Top court urged to clarify process for firing federally appointed judges

Top court urged to clarify process for firing federally appointed judges

TORONTO — The body that oversees federally appointed judges wants the Supreme Court of Canada to decide whether the organization’s disciplinary decisions are beyond judicial scrutiny — a notion lower courts have flatly rejected.

In asking the country’s top court to clarify the process for firing judges, the Canadian Judicial Council argues its recommendations should be immune to legal second-guessing from Federal Court.

“Given the constitutional and judicial nature of the council’s decisions, they cannot be subject to review by the Federal Court, contrary to lower court rulings,” the council says in its leave application. “That said, there is a legislative void regarding the judicial supervision of the council’s decisions.”

The case arises out of a long-running fight to have a Quebec Superior Court justice, Michel Girouard, tossed off the bench. A complaint in November 2012 alleged Girouard, then a lawyer, had bought illegal drugs from a client. An inquiry committee rejected the allegations, despite its misgivings over the reliability and credibility of Girouard’s testimony.

A second complaint about how the judge had behaved during the initial proceedings led 20 of the 23 judges on council to recommend in February last year that Girouard should lose his job. The three dissenting judges said he did not have a fair hearing because some council members were unilingual.

Girouard asked Federal Court to set aside the recommendation he be removed from the bench.

In response, the council argued Federal Court had no authority to hear the case. In essence, council maintained it was not a federal board, commission or other tribunal subject to judicial scrutiny. Council, which comprises at least 17 chief or associate chief justices, maintained its own internal appeal mechanism was more robust than an appeal to the nine-judge Supreme Court.

In a scathing rebuke of council’s views last August, Federal Court Judge Simon Noel said no one — not even the country’s top judge who chairs the judicial council — was above the law.

In a democracy, Noel wrote, everyone who wields public power, no matter how important their titles, must be subject to independent review and held accountable — including the council and the chief justices who comprise its membership. The judge also took specific aim at the council and its executive director for a disrespectful attitude toward the court. 

“It is inconceivable that a single body, with no independent supervision and beyond the reach of all judicial review, may decide a person’s fate on its own,” Noel wrote in his decision. “However prestigious and experienced a body may be, it is not immune from human error, and may commit a major violation of the principles of procedural fairness that only an external tribunal, such as the Federal Court in this case, can remedy.”

The Federal Court of Appeal sided with Noel in May, saying council’s actions and decisions are administrative in nature.

The council is now seeking leave to appeal from the Supreme Court.

“Council believes that any review of recommendations in respect of the removal of a judge must recognize the constitutional dimensions of such recommendations,” the organization said in a statement. “Council seeks clarification of those constitutional principles from the Supreme Court. This includes whether such recommendations may be the subject of review and, if so, by whom.”

The judicial council has come under harsh criticism from the courts and others in recent years.

One high profile case that sparked outrage involved unilateral action against a prominent Ontario Superior Court judge who had accepted a six-month law school deanship. In an interview in March, Chief Justice Richard Wagner told The Canadian Press that the council needed sweeping internal and legislative reforms of its disciplinary process.

Colin Perkel, The Canadian Press

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