In Girouard v Canada (Attorney General), 2018 FC 865, Justice Noël of the Federal Court determined that a recommendation by the Canadian Judicial Council for the removal of a judge is subject to judicial review.
Background
The matter arose from a report by the CJC to the Minister of Justice recommending the removal of the Honourable Justice Michel Girouard of the Superior Court of Quebec. The CJC report was the result of an inquiry into Justice Girouard's conduct by the CJC's Inquiry Committee. Justice Girouard commenced four applications for judicial review with the Federal Court of the Inquiry Committee's initial report, the report by the CJC and other decisions made in the course of the inquiry. In response, the Attorney General of Canada brought a motion to strike the applications for judicial review. The CJC was given party status for the sole purpose of arguing whether the Federal Court had jurisdiction to review the CJC’s decision.
Federal Court decision
The CJC advanced three arguments as to why its decision to recommend Justice Girouard’s removal could not be the subject of judicial review, which the court dealt with as follows:
(1) The CJC and its Inquiry Committee are not federal boards, commissions or other tribunals and as such are not reviewable pursuant to section 18 of the Federal Court Act
The Federal Court determined that the CJC is a “federal board, commission, or other tribunal” for the purpose of section 18 of the Federal Court Act. In coming to its decision, the court rejected the CJC’s argument that it was not subject to section 18 because it is made up of chief justices appointed under section 96 of the Constitution Act, 1867.
The CJC argued that if section 18 of the FCA applied, it would have the unacceptable effect of subjecting superior court judges to the judicial review procedures of the Federal Court. The court found that the members of the CJC were not acting within their role as judges, but rather within their role as chief justices, and, in so doing, were exercising an administrative role relying on statutory authority, and not the Constitution. The CJC’s powers allow it to inquire into the conduct of judges, and the source of this power can be found in the Judges Act. The CJC’s power is not a codification of a constitutional power.
(2) The CJC and the Inquiry Committee have the status of a superior court
The CJC’s argument that it has the status of a superior court relied heavily upon subsection 63(4) of the Judges Act, which provides that the CJC, and its Inquiry Committee, “in making an inquiry or investigation under this section shall be deemed to be a superior court” (emphasis added) and lays out the specific powers the CJC can exercise.
The Federal Court found that contrary to its argument, the CJC did not have the attributes or qualities of a superior court. For example, a superior court’s powers cannot be totally removed or transferred to another body, a superior court has broad jurisdiction to engage in surveillance of lower tribunals and to ensure the legality of state decision-making, and a superior court possesses residual common law jurisdiction. The CJC did not have these qualities.
The Federal Court determined that Parliament included subsection 63(4) to provide judicial protection to the inquiring judges, to the judges being investigated, and also to provide the CJC with the power to fulfill its investigative mandate. Consequently, the CJC and the Inquiry Committee were not intended to have, and did not in fact have the status of a superior court.
(3) The CJC and Inquiry Committee reports and recommendations are not subject to the judicial review power of the Federal Court
The CJC argued that as the final decision to remove a judge rests with Parliament, the CJC’s report is merely a recommendation and as such, is not a decision within the meaning of section 18.1 of the FCA. However, the court held that a finding that a judge has become incapacitated or disabled from the due execution of his or her office had been described by the CJC itself as “capital punishment” for that judge’s career. Due to the importance of the report and recommendation for the judge, the Federal Court did not accept the CJC’s argument that its reports and recommendations did not constitute a decision under the FCA. The seriousness of the recommendation means that a high degree of procedural fairness is needed and therefore judicial review was required. As well, judicial review under section 18.1 is not limited to decisions or orders but also applies to reports from federal boards, committees or other tribunals.
Conclusion
As a result, the court found that decisions of the CJC and its Inquiry Committee are subject to judicial review as Parliament did not intend to create a new court with final authority, and if it had, would have done so expressly.
The CJC has indicated its intention to appeal this decision.
Christopher Wirth is a partner and Cameron Taylor is an articling student with Keel Cottrelle LLP