Re Hryciuk and Lieutenant Governor by and with the
Advice and Concurrence of the Executive Council et al. *
[Indexed as: Hryciuk v. Ontario (Lieutenant Governor)]
Court of Appeal for Ontario, Catzman, Weiler
and Abella JJ.A. November 4, 1996
* Application for leave to appeal to the Supreme Court of Canada
dismissed June 26, 1997 (La Forest, Gonthier and Major JJ.). S.C.C. File No.
25727. S.C.C. Bulletin, 1997, p. 1231.
Administrative law -- Inquiries -- Judicial Council
recommending that inquiry be held into two complaints against judge received by
Council -- Judge of General Division
appointed to conduct inquiry under s. 50 of Courts of Justice Act -- Inquiry
judge having mandate to conduct inquiry only
into question of whether judge should be removed because of two complaints
referred to her by Judicial Council -- Inquiry judge exceeding her jurisdiction
by hearing three additional complaints not made to Judicial Council and not
referred to in Order-in-Council appointing inquiry judge -- Evidence of those
three complaints forming integral part of her recommendation that judge be
removed from office -- Judge's appeal allowed
-- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 50.
After conducting an internal investigation into two complaints received with respect to
Judge H, the Judicial Council recommended to the Attorney General that an
inquiry be held with respect to those complaints. Accordingly, a judge of the
General Division was appointed to conduct an inquiry under
s. 50 of the
Courts of Justice Act. After Judge H had closed
his case, an adjournment was granted so that witnesses who were not immediately
available could be heard. Shortly before the inquiry reconvened, Judge H was
informed of three additional complaints, none of which was first made to the Judicial Council and none of which was
referred to in the order-in- council appointing the inquiry judge. He objected
to the new complaints being heard, but the inquiry judge agreed to hear them,
stating that it was a public inquiry and that she was duty-bound to hear all
relevant evidence. At the conclusion of the inquiry, she recommended that Judge
H be removed from office. Judge H's application for judicial review was dismissed. He appealed.
Held, the appeal
should be allowed.
Pursuant to s. 46 of the Courts of Justice Act, there can be no removal of a provincial court judge
unless two prior conditions have been met: that a complaint has been made to
the Judicial Council and that the removal is recommended for any of the reasons
set out in s. 46(1)(b) after an inquiry has been held pursuant to s. 50. The
three new complaints heard by the inquiry judge after Judge H had concluded his
defence were not first made to, or investigated by, the Judicial Council. These
complaints could not, therefore, be entertained by her. The language of the
statute is unambiguous, and leaves no
discretion to a judge conducting a s. 50 inquiry to hear new complaints not
previously screened by the Judicial Council. The inquiry judge had a specific,
narrow mandate under the legislation: to conduct an inquiry, not into the
general question of whether Judge H should be removed, but into whether he
should be removed because of those complaints referred to her by the Judicial Council, namely the two complaints
referred to in the order-in-council. By hearing three additional complaints not
so referred, she exceeded her jurisdiction.
The inquiry
judge based her recommendation on all the complaints she heard, including the
ones she had no authority to hear.
The evidence of those three complaints formed an integral part of her
recommendation that Judge H be removed. It was, therefore, impossible to say
what her recommendation would have
been if her finding had been based only on the two complaints she had
jurisdiction to hear.
Cases referred to
Cardinal v. Kent
Institution, [1985] 2 S.C.R. 643, 24 D.L.R.
(4th) 44, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, [1986] 1
W.W.R. 577, 69
B.C.L.R. 255, 63 N.R. 353; Crevier v. Quebec (Attorney General), [1981] 2
S.C.R. 220, 127 D.L.R. (3d) 1, 38 N.R. 541
Statutes
referred to
Courts of Justice Act (am. 1994, c. 12, s. 16), R.S.O. 1990, c.
C.43, ss. 46,
47(5), 48(1)(b), 49(1), (3), (5), (7), (9), 50
Public Inquiries Act, R.S.O. 1990, c. P.41
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 8
APPEAL from a judgment of the Divisional Court (1994),
18 O.R. (3d) 695, 115 D.L.R. (4th) 227, dismissing an application for judicial
review of a recommendation that a provincial court judge be removed from
office.
Brian H. Greenspan and Sharon E. Lavine, for appellant. Leslie M.
McIntosh, for respondents, Attorney General,
Legislative
Assembly for the Province of Ontario and the Lieutenant Governor in Council.
Dennis R. O'Connor, Q.C., and Freya Kristjanson, for respondent, the
Honourable Madam Justice Jean MacFarland.
The judgment of the court was delivered by ABELLA J.A.: --
Background
The process that
resulted in a recommendation on November 24,
1993
that Judge Walter P. Hryciuk be removed from judicial office, was initiated on
January 24, 1992 by a complaint from the Regional Director of Crown Attorneys
to the Ontario Judicial Council. After the resulting internal investigation,
the Judicial Council held in camera hearings in October 1992 with respect to
two complaints, to determine if a public inquiry into these two complaints
should be recommended.
In January
1993, the Judicial Council made such a recommendation to the Attorney General,
and on February 3, 1993, a judge of
the General Division was appointed to conduct the inquiry. Notices were
published in newspapers informing the public that hearings into the two
complaints would start on September 13, 1993, and inviting the public to
provide information or evidence.
The complaints were identified in the public notices as
follows:
This Inquiry into the question of whether His Honour Judge Walter P.
Hryciuk, a Judge of the Ontario Court (Provincial Division), should be removed
from office will, following the recommendation of the Judicial Council to the
Attorney General, consider the following matters of complaint:
1. That
His Honour Judge Walter P. Hryciuk, on Saturday, January 18, 1992, at Old City
Hall, Toronto, did sexually assault . . . an Assistant Crown Attorney for the
Toronto Region, by kissing her without her consent.
2. That
His Honour Judge Walter P. Hryciuk, in 1988, made remarks of a sexual nature to
. . . an Assistant Crown Attorney, and drew her attention to a sexually graphic
light switchplate in his judicial chambers.
The public hearings started on September 13, 1993. By September 15, all the evidence dealing
with the two complaints had been completed except for three witnesses who were
unavailable until the end of September. Judge Hryciuk's counsel agreed to a
two-week adjournment for the hearing of those witnesses on the understanding
that full disclosure of their
evidence
would be provided and that there would be an opportunity to reply. That
understanding was largely the reason Judge Hryciuk's counsel did not wait until
after the adjournment before
proceeding with his defence. Over the next three days, he called all of his
witnesses, including Judge Hryciuk, and completed his case. On September 17,
1993, the inquiry was adjourned until September 30 to hear evidence relating to
the two complaints from the three remaining witnesses.
What happened after September 17, 1993 forms the basis
of Judge Hryciuk's application for judicial review. Rather than facing the
three previously identified witnesses, he returned to the inquiry hearings on
September 30, having been informed in the intervening two weeks that he would
be facing three new complaints. He was informed about one of those complaints
on September 24. He learned about two others on September 29, 1993, the day
before the hearings were scheduled to resume. In fairness, he was informed about
them almost as soon as they came to the attention of the inquiry's counsel.
There is no
dispute that none of the new complaints was first made to the Judicial Council.
Nor is there any dispute that the new complainants waited until after Judge
Hryciuk had closed his case before
they brought their complaints directly to the inquiry.
Two exchanges at the inquiry are of particular interest.
The first took place on September 15, when inquiry counsel, having called all
of his available witnesses, recommended the
truncated procedure which eventually followed; namely, that he would call his
remaining three witnesses in two weeks, but that the inquiry would continue to
hear evidence, including any evidence Judge Hryciuk wished to call, subject to
Judge Hryciuk's right to respond to the remaining three witnesses.
Judge
Hryciuk's counsel raised no objection to this suggested procedure, but asked
for some assurances. The following exchange took place:
Counsel for Judge Hryciuk: I have no objection to the
procedure of the process, but do we have some assurance that
the only
witnesses that Judge Hryciuk will now face
. . . will be
McKenzie, Beneteau, and Hughes?
Do we have some assurance that there won't be any other
witnesses?
Inquiry
Judge: I'm not sure that Commission Counsel can
give you that assurance until such times as they have been in touch with those
witnesses.
I think that the only assurance that you can be given at
this point in time is that full disclosure will be made. I have insisted on
that, that when counsel know, the information will be conveyed to you.
If it turns out, as a result of those discussions, they
learn that there may be another witness, then obviously that's something that will
have to be disclosed to you, as well.
But I'm not sure, at this point in time, that Commission
Counsel can, nor do I think it appropriate that I put limits on those inquiries
at this point in time.
This is a public inquiry, and I feel duty bound to
hear all evidence if it's relevant.
. . . . .
But I want to ensure that you, on behalf of your client,
have full and complete disclosure of any such evidence, and full and complete
opportunity to respond to it, in such manner as you deem fit.
(Emphasis
added)
The second exchange took place on September 30 when the hearings
resumed. Judge Hryciuk's counsel, in requesting an adjournment, stated:
On Friday, last
Friday, six days ago, we were made aware of
another complaint. Yesterday, we were made aware of two more
complaints. . . .
I spoke with [inquiry counsel] this morning, and I may
have misunderstood what he was talking about, but I don't want to be seen here
as consenting to these complaints coming forward in a sense that it is within
your jurisdiction.
I'm saying
that there must be, at some point , there has to be somewhere or some point
where this case [sic] . . . we know
what the case is . . .
. . . . .
Judge Hryciuk and his family want this matter over with
as quickly as possible.
In response, the inquiry judge ruled that she would in
fact hear evidence of the new complaints, but granted an adjournment to October
4. Inquiry counsel also advised Judge Hryciuk's counsel that:
If they wish to launch an application to challenge the jurisdiction
to hear new complaints, obviously they are free to do so and nothing that I
have said in any way is intended to at all limit them from exercising what they
think are their rights in following what they consider to be an appropriate
course of action.
So, there is absolutely nothing, on our part, in any way
to limit Judge Hryciuk from doing so.
Judge Hryciuk did not bring any such application. The
inquiry then heard the evidence relating to three new complaints. One of the new complainants was a judge
who observed an incident in the judges' common room between Judge Hryciuk and
one of his female colleagues, which both Judge Hryciuk and that colleague
denied ever happened. The second complainant was a court reporter who
complained of a sexual assault while being hugged by Judge Hryciuk at a 1991
court Christmas party; and, while dancing with him at the same event, of
inappropriate comments
and
behaviour. The third complainant was a judge who married the second complainant in 1993, and gave evidence that
his wife told him these details shortly after they started dating in March
1993.
The inquiry judge's perception of her mandate was
based on her interpretation of the
relevant provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43; on the
concluding paragraph of the order-in-council appointing her; and on her
identification of the process as a public inquiry under the Public Inquiries
Act, R.S.O. 1990, c. P.41, rather than as a discipline proceeding under the
Courts of Justice Act. This
analysis led her to the
conclusion that she was obliged to hear all evidence which might be relevant to
the issue of whether Judge Hryciuk should be removed from office, regardless of
whether the complaints had first been made to the Judicial Council. As she
stated in her reasons (p. 9):
The issue
before the public inquiry is whether a judge should be removed from office by
reason of conduct incompatible with the execution of judicial office. It is a
function of the inquiry to look at the totality of the judge's conduct.
The issue in this appeal is whether this conclusion, resulting in the hearing of
three new complaints, was correct; or whether the inquiry judge exceeded her
jurisdiction by not restricting her inquiry to the two complaints screened and
referred by the Judicial Council.
Prior
Proceedings
An application was made by Judge Hryciuk to the Divisional Court to
quash the findings and recommendation of the inquiry: Hryciuk v. Ontario
(Lieutenant Governor) (1994), 18 O.R. (3d) 695, 115 D.L.R. (4th) 227. The
majority of the court was of the view that the application for judicial review
should be dismissed on, among other grounds, the following:
-- This
was not, contrary to the views of the inquiry judge, a public inquiry under the
Public Inquiries Act; it was a
disciplinary process under s. 50 of the Courts of Justice Act to
which the Public Inquiries Act applies. Nonetheless, there are no restrictions
on what matters can be considered by the s. 50 inquiry unless such restrictions
are found in the terms of the order-in-council. It was therefore within the
discretion of the inquiry judge whether to admit new evidence.
-- It was acknowledged that Judge Hryciuk was
entitled to procedural fairness, given that "his reputation and
livelihood" were at stake, including the right to pre- hearing disclosure
found in s. 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. This
section states:
8. Where the good character, propriety of conduct or
competence of a party is an issue in a proceeding, the party is entitled to be
furnished prior to the hearing with reasonable information of any allegations
with respect thereto.
(Emphasis
added)
While there was a technical violation of this section, the majority
held that the Statutory Powers Procedure Act was not applicable to s. 50
hearings under the Courts of Justice Act. In any event, even if it were
applicable, the section had been substantially complied with by the disclosures
made by inquiry counsel between the two sets of hearings days.
-- Even
though all relevant evidence was potentially admissible, there must be finality
to the process. At a certain point, no new allegations should be permitted.
That point is normally reached, the majority concluded, when the judge who is
the subject of the inquiry starts to testify. In this case, Judge Hryciuk was
"not afforded natural justice in that no consideration was given to the
potential unfairness of entertaining the new complaints": Hryciuk, supra,
at p. 711.
However, according to the majority, this was not a
breach of natural justice going to the "basis of jurisdiction".
Moreover,
since
the inquiry judge had a discretion to hear new evidence; since Judge Hryciuk
acquiesced in and waived any procedural defect by failing to bring a stated
case; and since Judge Hryciuk had suffered no prejudice, the majority declined
to interfere with the inquiry judge's conclusion.
In dissent,
Hartt J. concluded that Judge Hryciuk had been denied "the basic rights
that every member of society enjoys" (Hryciuk, supra, at pp. 715-16) in
not being advised prior
to
the commencement of the hearing what all the allegations of improper conduct
would be. Judge Hryciuk, in his view, was erroneously treated as if he were
entitled to no more notice than any other witness at a public inquiry would
get, rather than being treated, as he should have been, as the subject of the
inquiry.
While he agreed with the majority that this was in the
nature of a discipline hearing, not a public inquiry under the Public Inquiries
Act, Hartt J. nevertheless disagreed with his colleagues' conclusion that the
inquiry judge had a discretion to proceed with new complaints after Judge
Hryciuk had testified. In his view, the Statutory Powers Procedure Act and, in
particular s. 8 of the Act, were clearly applicable.
Accordingly,
there was no discretion to hear allegations about which Judge Hryciuk was not
informed prior to the start of the hearing. The inquiry judge consequently
exceeded her jurisdiction in admitting new allegations into evidence, and
thereby denied Judge Hryciuk a fair hearing.
As to why the court should interfere even though Judge
Hryciuk had taken no clear objection to the process, Hartt J. cited the
following observation of Le Dain J. in Cardinal v. Kent Institution, [1985] 2
S.C.R. 643 at p. 661, 24 D.L.R.
(4th) 44:
. . . I find it necessary
to affirm that the denial of a right to a fair hearing must always render a
decision invalid, whether or not it may appear to a reviewing court that the
hearing would likely have resulted in a different decision. The right to a fair
hearing must be regarded as an independent, unqualified right which finds its
essential
justification in the
sense of procedural justice which any person affected by an administrative
decision is entitled to have. It is not for a court to deny that right and
sense of justice on the basis of speculation as to what the result might have
been had there been a hearing.
Finally, Hartt J. concluded that the process in
this case was in violation of the legislative scheme outlined in ss. 46-50 of
the Courts of Justice Act whereby the Judicial Council must first consider
complaints before they are the subject of a s.
50 inquiry. Any
recommendation made after a s. 50 inquiry, in his view, could be based only on
findings made in relation to complaints recommended for public hearing by the
Judicial Council.
Hartt J.
therefore held that the inquiry judge's decision to hear the new complaints,
and her recommendation that Judge Hryciuk be removed from office, should be
quashed.
In my view, the applicable legislative framework
provides a complete answer to whether new complaints can be raised in the first
instance at a s. 50 inquiry.
Before outlining the basis for my conclusions, however, I make two ancillary but related
observations. First, I proceed on the assumption that judicial review is
available, despite the contention of counsel on behalf of the Attorney General
to
the
contrary. There was no dispute in the Divisional Court that this was a
discipline proceeding under s. 50 of the Courts of Justice Act, and not a
public inquiry under the Public
Inquiries Act. That opinion, with which I agree, leads me to conclude that the
proceeding cannot be insulated from judicial review on questions of
jurisdiction: Crevier v. Quebec
(Attorney General), [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1.
Secondly, it is worth noting that in the 1995 amendments
to the Courts of Justice Act (R.S.O. 1990, c. C.43, as amended by
S.O. 1994,
c. 12, s. 16), the Statutory Powers Procedure Act is specifically made
applicable to the public hearing stage of complaints into judicial conduct.
The Statutory
Scheme
The order-in-council dated February 3, 1993, sets out the relevant
factual and statutory antecedents to the appointment of a judge of the General
Division to inquire into whether Judge Hryciuk should be removed. It states:
WHEREAS:
A.
A letter of complaint dated January 24, 1992
from Jerome
F. Wiley, Regional Director of Crown Attorneys, Toronto Region,
regarding certain conduct of His Honour Judge Walter P. Hryciuk, a judge of the
Ontario Court (Provincial Division), was received by the Ontario Judicial
Council;
B. The
investigation by counsel to the Judicial Council gave rise to further
information regarding Judge Hryciuk;
The Judicial Council, on notice to Judge Hryciuk, proceeded under
subsection 49(1) of the Courts of Justice Act to investigate two matters of
complaint;
The Judicial Council held hearings on October 1 and 13, 1992, at
which witnesses were examined and cross-examined in the presence of Judge
Hryciuk and his counsel, and submissions were made by counsel for Judge Hryciuk
and the Judicial Council;
C. The
Judicial Council came to the conclusion that by reason of the evidence adduced
at the hearing before it, an inquiry should be held under section 50 of the
Courts of Justice Act with respect to these complaints;
The Judicial Council recommended to the Attorney General, under
subsection 49(7) of the Courts of Justice Act, in its report dated January 12,
1993, that the inquiry should be held;
D.
ON THE RECOMMENDATION OF THE UNDERSIGNED, THE
LIEUTENANT
GOVERNOR, BY AND WITH THE ADVICE AND CONCURRENCE OF THE EXECUTIVE
COUNCIL, ORDERS THAT:
the
Honourable Madam Justice Jean L. MacFarland, a judge of the Ontario Court
(General Division), is appointed under section 50 of the Courts of Justice Act
to inquire into the question whether His Honour Judge Walter P. Hryciuk, a judge of the Ontario Court (Provincial
Division), should be removed from office.
(I have lettered this document for ease of subsequent reference.)
From the order-in-council, it is clear that the process
leading to the appointment of Justice MacFarland strictly follows the route
laid out in ss. 46-50 of the Courts of Justice Act.
A. "A letter of complaint
dated January 24, 1992 from Jerome F. Wiley, Regional Director of Crown
Attorneys, Toronto
Region, regarding
certain conduct of His Honour Judge
Walter P. Hryciuk, a judge of the Ontario Court (Provincial Division), was
received by the Ontario Judicial Council."
A complaint
was made on January 24, 1992 by the Regional Director of Crown Attorneys. This
complies with s. 46 which requires that a complaint about a provincial court
judge must be made to the Judicial Council:
46(1) A provincial judge may be removed from office
before attaining retirement age only if,
(a) a
complaint regarding the judge has been made to the Judicial Council.
(Emphasis
added)
B. "The
investigation by counsel to the Judicial Council gave rise to further
information regarding Judge Hryciuk;
The Judicial
Council, on notice to Judge Hryciuk, proceeded
under subsection 49(1) of the Courts of Justice Act to investigate
two matters of complaint;
The Judicial
Council held hearings on October 1 and 13, 1992, at which witnesses were
examined and cross-examined in the presence of Judge Hryciuk and his counsel,
and submissions were made by counsel for Judge Hryciuk and the Judicial
Council."
The Judicial Council is mandated to investigate
complaints against provincial judges by virtue of ss. 48(1)(b) and 49(1) which
state:
48(1) The functions of the Judicial Council are,
. . . . .
(a) to receive and investigate
complaints against provincial judges.
. . . . .
49(1) Where the Judicial Council receives a complaint
against a provincial judge, it shall take such action to investigate the
complaint as it considers advisable.
(Emphasis
added)
The Judicial Council is authorized to engage counsel to assist in
its investigations pursuant to s. 47(5).
The Judicial Council's proceedings at this stage are not
public. Its powers to investigate a complaint include those found in Part II of
the Public Inquiries Act. These aspects of its function are found in ss. 49(3)
and (5) respectively:
49(3) The proceedings of the Judicial Council shall not
be public, but it may inform the Attorney General respecting matters that it
has investigated and the Attorney General may make public the fact that an
investigation has been undertaken.
(5) The Judicial Council has all the
powers of a commission under Part II of the Public Inquiries Act, which Part
applies to the investigation as if it were an inquiry under that Act.
Pursuant to
the above statutory authority, the Judicial
Council held hearings over a two-day period with respect to two complaints.
Judge Hryciuk was notified, was present with his counsel throughout the
hearings, and was permitted to make submissions. These rights were afforded to
Judge Hryciuk pursuant to s. 49(9) which precludes the Judicial Council from
recommending an inquiry unless these protections have been made available.
49(9) The
Judicial Council shall not make a report under subsection (7) unless the judge
was notified of the investigation and given an opportunity to be heard and to
produce evidence on his or her behalf.
C. "The
Judicial Council came to the conclusion that by reason of the evidence adduced
at the hearing before it, an
inquiry should be held under section 50 of the Courts of Justice Act
with respect to these complaints;
The Judicial Council recommended to the Attorney General, under
subsection 49(7) of the Courts of Justice Act, in its report dated January 12,
1993, that the inquiry should be held."
As a result of its hearings, the Judicial Council,
pursuant to s. 49(7), recommended to the Attorney General that an inquiry be
held under s. 50 with respect to these two
complaints
only. Section 49(7) requires that any recommendation that an inquiry be held,
is limited to a particular complaint. This must, of necessity, refer to a
complaint submitted to the Judicial Council pursuant to s. 46(1)(a).
49(7) The Judicial Council may report its opinion
regarding the complaint to the Attorney General and may recommend,
(a)
that an inquiry be held under section 50 . . .
(Emphasis added)
D. "On
the Recommendation of the Undersigned, the Lieutenant Governor, by and with the
Advice and Concurrence of the Executive Council, Orders that:
the
Honourable Madam Justice Jean L. MacFarland, a judge of the Ontario Court
(General Division), is appointed under section 50 of the Courts of Justice Act
to inquire into the question whether His Honour Judge Walter P. Hryciuk, a
judge of the Ontario Court (Provincial Division), should be removed from
office."
The Lieutenant Governor in Council appointed Justice
MacFarland to inquire whether Judge Hryciuk should be removed from office
pursuant to s. 50:
50(1) The Lieutenant Governor in Council may appoint a
judge of the General Division to inquire into the question whether a provincial
judge should be removed from office.
Analysis
The test for determining whether a judge should be removed is found
not in s. 50, but in s. 46:
46(1) A provincial judge may be removed from office
before attaining retirement age only if,
(a) a
complaint regarding the judge has been made to the Judicial Council; and
(b) the
removal is recommended by an inquiry held under section 50 on the ground that
the judge has become incapacitated or disabled from the due execution of his or
her office by reason of,
(i)
infirmity.
(ii)
conduct that is incompatible with the execution
of
his or her
office, or
(iii) having
failed to perform the duties of his or her office.
(2) An order
removing a provincial judge from office under this section may be made by the
Lieutenant Governor on the address of the Legislative Assembly.
(Emphasis
added)
Pursuant to s. 46, there can be no removal of a provincial court
judge unless two prior conditions have been met: that a complaint has been made
to the Judicial Council and that the removal is recommended for any of the
reasons set out in s.
46(1)(b)
after an inquiry has been held pursuant to s. 50. The mandatory nature of these
two conditions precedent is derived from the introductory language of s. 46(1)
which states that a provincial court judge can be removed only if these
conditions have been satisfied.
There are, therefore, two stages in this statutory scheme which must have taken place before
a provincial court judge can be removed by order of the Lieutenant Governor.
The first is that a complaint must be made to the Judicial Council for
investigation by that body into whether the complaint should be proceeded with
publicly. The second stage, if so recommended by the Judicial Council, is a
public hearing presided over by a judge of the General Division.
The two-stage process represents a clear statutory
intention that not all complaints about judges should be subjected to public
disclosure. Any such disclosure, even if the complaint is subsequently found to
be without merit, can cause irreversible damage to reputation and, more importantly,
to a judge's ability to maintain public confidence in his or her judicial
capacities. On the other hand, there is a significant public interest in having
some complaints aired publicly for the same purpose, namely, to maintain public
confidence in the judiciary. These are the competing interests the legislative
scheme is designed to balance. The Judicial Council has,
therefore,
been charged with responsibility for screening allegations against provincial
court judges, and to determine, after an investigation and/or a hearing,
whether the complaint raises a genuine issue about the judge's capacity to
continue to perform his or her judicial functions.
In this way,
judges are protected from routine vulnerability
to public opprobrium when the complaints are spurious; but neither are they
immune from public scrutiny when the complaint has sufficient merit that the
Judicial Council recommends that an inquiry take place.
The three new complaints heard by the inquiry judge after Judge Hryciuk had concluded his
defence were not first made to, or investigated by, the Judicial Council. These complaints could not, therefore, be
entertained by her. The language of
the statute is unambiguous, and leaves no discretion to a judge conducting a s.
50 inquiry to hear new complaints not
previously screened by the Judicial Council. Circumventing the statutory
requirement that there be a prior vetting by the Judicial Council defeats the
whole purpose of the legislative scheme, and violates the mandatory nature of
the two-stage process set out in s. 46 of the Courts of Justice Act.
Admittedly, the order-in-council, in its last paragraph, refers to the question
"whether His Honour Judge Walter P. Hryciuk . . . should be removed from
office". But this paragraph, which mirrors the language in s. 50, must be
read as part of a sequence of paragraphs which follows the sequence and
language in ss. 46-49 of the Courts of Justice Act. Section 49(1) directs the Judicial Council to investigate the complaint; s. 49(7) directs the
Judicial Council to report its opinion on the need for an inquiry with respect
to the complaint. The Lieutenant Governor's discretion in s. 50, therefore, to
order an inquiry into whether a judge should be removed, is limited to the
complaints investigated by the Judicial Council. Read in this way, the removal
from office referred to in the concluding paragraph of the order-in-council is
a potential outcome of the inquiry's examination into the authorized
complaints, not a general mandate.
The inquiry
judge had a specific, narrow mandate under the legislation: to conduct an
inquiry, not into the general question of whether Judge Hryciuk should be
removed, but into whether he should be removed because of those complaints
referred to her by the Judicial Council, namely, the two complaints referred to
in the order-in-council. By hearing three additional complaints not so
referred, she exceeded her jurisdiction.
The discipline
process under the Courts of Justice Act is mandatory. By requiring that there
be two stages of review, the legislature has balanced the public and judicial
interests in a way which attempts to protect both and compromise neither. The
fact that the subject of the process is a judge ought not, and does not, yield
particular procedural advantages to that judge. But neither should his or her
judicial office be a reason to deny procedural safeguards provided by law.
The inquiry
judge based her recommendation on all the complaints she heard, including the
ones she had no authority to hear. The evidence of those three complaints
formed an integral part of her recommendation that Judge Hryciuk be removed. It
is, therefore, impossible to say what her recommendation would have been if her
finding had been based only on the two complaints she had jurisdiction to hear.
Accordingly,
there is no alternative but to allow the appeal, set aside the order of the
Divisional Court, and quash the recommendation of the inquiry judge that Judge
Hryciuk be removed from office.
Appeal allowed.
