Focus On

Duo delivers blow to judge despite ruling

Thursday, December 10, 2015 @ 7:00 PM | By Cristin Schmitz

A suspended Quebec judge has fended off allegations that he used cocaine as a lawyer but a Canadian Judicial Council (CJC) inquiry committee split 2-1 to recommend his removal from the federal bench for giving “false and deceitful evidence” in his defence.

The committee unanimously concluded Nov. 18 that it had not been presented with enough evidence to demonstrate, on the balance of probabilities, that Quebec Superior Justice Michel Girouard bought cocaine from two drug dealer clients while he was still practising law in Quebec’s Abitibi region before his appointment to the bench in 2010.

In an unusual move, however, two of three members of the committee recommended he be removed anyway because they thought his testimony “lacked candour, honesty and integrity” and “he deliberately attempted to mislead the committee by concealing the truth” in defending himself against the drug allegations.

“A compromising of a judge’s integrity through the giving [of] false and deceitful evidence before a committee of his peers undermines the integrity of the judicial system itself and strikes at the heart of the public’s confidence in the judiciary,” Federal Court Chief Justice Paul Crampton and Moncton lawyer Ronald LeBlanc of LeBlanc Maillet reasoned.

“If Justice Girouard were to continue as a judge of the Superior Court of Quebec, this would, in our opinion, undermine public confidence in the entire judicial system.”

Their conclusion was rejected by the chair of the committee, Manitoba Chief Justice Richard Chartier, who argued “that the inconsistencies, errors or weaknesses in Justice Girouard’s testimony are not serious enough to give rise to any concrete doubt about his credibility.”

Nor was there what Chief Justice Chartier saw as the required independent evidence to show that the judge deliberately attempted to mislead the inquiry.

He concluded that there were no grounds to recommend the judge’s removal, given that the inquiry unanimously dismissed the drug allegations and “we cannot impose a consequence for a misconduct that was not part of the notice of allegations” prepared by the CJC’s independent counsel.

The council of 39 chief and associate chief justices must now decide whether to permit the judge to return to his job, or follow the committee’s majority recommendation that the CJC deem him unfit for the bench.

Failing that, the committee’s majority has asked the council to consider bringing a new allegation of misconduct against the judge — either before a newly struck inquiry committee or the full council.

Such a new complaint would allege that his testimony “lacked candour, honesty and integrity” and that “he deliberately attempted to mislead the committee by concealing the truth.”

If the council concludes the judge is no longer fit for the bench, it may recommend removal to the federal justice minister. A judge can only be removed with approval of both Houses of Parliament — which has never occurred.

However even if Justice Girouard is eventually returned to his duties, his reputation has taken a serious hit.

“There is no scenario in which this matter looks good for Justice Girouard,” Osgoode Hall law dean Lorne Sossin told The Lawyers Weekly.

“Even his account that he was just involved in an innocent transaction [with a client] involving tax advice and adult videos seems problematic on several levels that lie outside the scope of the inquiry.”

Sossin noted “this will be a challenging case for the CJC, especially because the inquiry committee does not detail specific instances of lying. Rather the [majority] decision of the committee lists numerous inconsistencies which suggest at least one of the accounts given by the judge — or more — were less than truthful.”

At press time the judge’s counsel, Gérald Tremblay of Montreal’s McCarthy Tétrault, had not responded to requests for comment.

Justice Girouard has always vigorously denied using cocaine, or any drugs.

On that key issue, the inquiry committee was unanimous that there was not “clear and convincing evidence” capable of proving, on a balance of probabilities, that before he went to the bench the judge bought cocaine from two drug dealers, who were his clients at the time.

The evidence relied on by CJC independent counsel Marie Cossette of Lavery in Quebec City was: The testimony of “Mr. X,” a drug dealer who became a police informant after his arrest, who said he sold about 1 kg of cocaine to his then-lawyer between 1987 and 1991; and a silent video recording of one interaction with another client, a video store owner, whom Justice Girouard was representing in settling a tax matter, which showed the lawyer giving his client some money, and receiving an unidentified object in return (see 12-second video on CBC:

Chief Justice Chartier noted that what he saw in the video “seems shady to me,” while Justice Girouard acknowledged that it looks “suspicious.”

However the video store owner, a convicted marijuana dealer, denied ever selling cocaine to anyone, including his lawyer. Although the store owner said he did not remember details of the exchange which occurred days before Justice Girouard was appointed to the bench in 2010, he speculated that what he gave his lawyer was an invoice for previously viewed movies.

The judge testified he went to his client’s office to learn the amount the client was going to be able to pay in final settlement of a tax matter.

He said he took the opportunity to pay his client for some adult movies he had previously watched. The judge said his client handed him a note which contained the amount for settling the tax matter and describing where the client was borrowing the money.

The majority of the inquiry committee identified six “contradictions, inconsistencies and implausibilities” in the judge’s defence which were “much more than mere oversights attributable to the passage of time or the usual types of inconsistencies that can result from being nervous about testifying.”

Superior Court Chief Justice François Rolland was told in fall 2012 by Quebec’s Director of Criminal and Penal Prosecutions that Mr. X, who had been arrested as part of a large drug and organized crime investigation, had informed on his former lawyer. The video store recording of what police suggested looked like a cocaine buy was also seized separately during that investigation.

Chief Justice Chartier said the inaccuracies identified by the majority were not so serious or numerous as to warrant a recommendation for removal or to bring a further misconduct complaint against the judge.

“I consider that the inaccuracies identified by my colleagues can be the result of being nervous about testifying, or be mere oversights attributable to the passage of time or a genuine willingness to provide explanations or details regarding a prior response,” he said.

Sossin said by email the case “once again reveals the need for greater and more transparent dialogue about the standards of public confidence in the Canadian judiciary.

“This case seems to include many concerns — about the judge’s dealings with a known drug trafficker, about giving different versions of the events captured on video, about the ‘suspicious’ nature of the video itself, and more.”

He added judicial discipline is inherently difficult and complex, especially where, for constitutional reasons, it must be supervised by peers.

“There are no easy answers in cases such as this one,” Sossin observed. “My concern with the process is its opaqueness. There always seems to be a text within the text to be decoded — and broad references to what will, or will not, undermine ‘public confidence’ cannot take the place of genuine accounts of what standards the CJC is actually bringing to bear on its own.”