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Canada Federal appeal council says courts can review chief justices’ actions

The Federal Court of Appeal has rebuked Canada’s chief justices after they argued that the disciplinary actions they take against judges should not be scrutinized by the courts.

It said the chief justices would undermine judicial independence if they were permitted to recommend a “death sentence” for a judge’s career – without the possibility of a court reviewing whether they acted legally and fairly.

The rebuke comes in a case in which a Quebec judge was suspected of buying illicit drugs. The Canadian Judicial Council, a national body of chief and associate chief justices, cleared Justice Michel Girouard of the Superior Court on that charge, but recommended his dismissal because, it said, he had not testified with integrity.

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Justice Girouard asked the Federal Court to review the council’s decision, saying the process had been unfair. The judicial council argued that no such review could be done. It said its decisions are final, and must be final, to protect judicial independence.

The appeal court, upholding a scathing ruling last summer from Federal Court Justice Simon Noël, said the opposite was true.

“Subjecting the Council to judicial review can only increase judicial independence,” Justice Denis Pelletier, Justice Yves de Montigny and Justice Mary Gleason wrote in a jointly authored ruling this week.

They said all who hold public power must be accountable for its exercise.

The appeal court judges expressed surprise that the council had argued that the efficiency of its disciplinary process would be harmed if judicial review were permitted. Chief justices, they said, should know that efficiency should not prevail over legality and fairness.

“This is all the more true in a process that may result in the ‘death sentence’ for the judge concerned,” the appeal judges wrote.

Judicial review is designed as a check on the power of the state. But the judicial council said that it is independent, as a body of judges, and does not represent the state. In response, the Federal Court of Appeal said the judicial council is no different than any board, commission or tribunal, created by statute.

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Gérald Tremblay, a Montreal lawyer representing Justice Girouard, called it a landmark decision. “It’s good in our system that no one including the highest is above the law, or outside the law,” he said in an interview.

He recalled a time when fewer rulings could be appealed than today, and he and colleagues realized that judges permitted themselves excesses when they could not be appealed. "It is there that you have judges who allow themselves all sorts of silly remarks or treat you badly. The minute there is a review system there is a level of protection for anybody, any citizen.” He stressed the importance of judicial independence from not only the government, but from chief justices.

Norman Sabourin, the council’s executive director, could not be reached for comment.

The ruling means the Federal Court can now hear Justice Girouard’s case, scheduled for next week, that he was denied fairness by the body of chief justices.

It also means that a judicial review can be held in the case of Ontario Superior Court Justice Patrick Smith. He (and the Canadian Superior Court Judges Association) intervened in the Girouard case to argue for the importance of judicial review.

"This is an important decision which will enable judges whose conduct is being scrutinized to avail themselves of the courts in the same manner any other Canadian citizen can,” Brian Gover, a Toronto lawyer representing Justice Smith, said.

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The judicial council brought a complaint against Justice Smith after he took a temporary, unpaid position as dean of the Bora Laskin Law School at Lakehead University in Thunder Bay. Proceeding even as Justice Smith sought a stay in Federal Court, the council decided he had been wrong to take the job.

This week’s court ruling creates the possibility of an appeal to the Supreme Court of Canada, whose Chief Justice, Richard Wagner, chairs the council. University of Ottawa law professor Pierre Foucher said he doubts the court would agree to hear the case. “What I read today is pretty convincing,” he said of the appeal court ruling.

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