Hryciuk v. Ontario 31 O.R. (3d) 1 : 20 years later - A Look Back in Time

   November 4th marked the 20th anniversary of the Court of Appeal for Ontario's ground-breaking decision in Hryciuk  v. Ontario (Lieutenant Governor) 31 O.R. (3d) 1.  This was the case in which Justice Hryciuk, then a Provincial Court Judge was removed from office following a hearing before Madame Justice MacFarland only to be overturned by the Court of Appeal.  The case is both novel and highly relevant in terms of the principles of law which flowed from it. Those principles of law remain binding legal authority with respect to the removal from office of judicial officers and is consequently a matter of public importance. Accordingly, I wish to outline the very unique facts of the case and outline exactly what the Court of Appeal ruled.

The Initial Complaint:

   Two complaints were ordered to a hearing against Justice Hryciuk. They were:

1.   That His Honour Judge Walter P. Hryciuk, on Saturday, January 18, 1992, at Old City Hall, Toronto, did sexually assault Ms. Kelly Smith, An Assistant Crown Attorney for the Toronto Region.

2.   That His Honour Judge Walter P. Hryciuk, in 1988, made remarks of a sexual nature to Ms Susan Lawson, an Assistant Crown Attorney, and drew her attention to a sexually graphic light switchplate in his judicial chambers.

The Parties:

   On July 26, 1993 applications for standing were heard and granted to Judge Hryciuk, to Kelly Smith and to Susan Lawson.

Counsel for the Parties:

Richard D, McLean, Q.C. and Mark Elkin for Judge Hryciuk
Douglas C. Hunt, Q.C. and Jane Kelly for Kelly Smith and Susan Lawson
Dennis R. O'Connor, Q.C. and Freya Kristjanson - Commission Counsel

Duration of proceedings:

   "In addition to the two motion days, July 26 and August 23, there were ten days; September 13-17, September 30 and October 4-7, during which time, witnesses were heard and one day, October 7, for final submissions and argument, a total of thirteen days in all.  Some sixty-one witnesses gave evidence before he Commission."

How Justice MacFarland
Exceeded her jurisdiction:

"I am in total agreement with Mr. Justice Keith on this point.  In my view, it is the duty of the Commission to hear any and all relevant matters pertaining to the issue before it; it would be wrong to limit the inquiry to a consideration of only the two matters heard by the Judicial Council.

It seems to me that one of the purposes of the public inquiry is to open up to the public process, which to that point in time, has remained private.  It must be expected that members of the public who may think they had information relevant to the issue before the Commission, would come forward.  It would not, I suggest, be a very satisfactory response, nor in the public interest, to tell such persons that they must first make their complaint to Judicial Council, and then to have, if that body considers it appropriate, a second inquiry.  To say nothing of the perception that would be left with the public were such complaints ignored by this Commission and particularly so where one judge is in effect being asked to judge the conduct of a fellow judge.....This is a public inquiry and I feel duty bound to consider all evidence if it is relevant.

The Additional Complaints:

1.  Judge Boivard:  His Honour Judge Hryciuk grabbed the buttocks of a fellow female judge;

2.  Judge Knazen:  His Honour Judge Hryciuk stood up and thrust his pelvis toward the back of the same female judge as though simulating a sexual act, and made a comment about "X liking it from the back" or something similar;

3.  Marilyn Bartlett: Judge Hryciuk grabbed her wrist and said, "How would you like to have dinner with me next Wednesday ?"

4.   Marilyn Bartlett:  On another occasion she overheard a comment that Judge Hryciuk made to the court reporter assigned to his courtroom, namely, "Well, how would you like to spare half an hour of your time with me at 4:30 this afternoon after court ?"  "Ms. Bartlett said that the manner in which he made the comment was such that it had a sexual connotation."  On yet another occasion Ms. Bartlett was in Judge Hryciuk's courtroom and she heard him say to a female duty counsel, Ms. Black, "How about your phone number ?"  Ms. Bartlett thought the comment was inappropriate and it made her feel uncomfortable.

5.  Dale Lumb:  "Dale Lumb did not directly make any complaint against Judge Hryciuk.  Her name was mentioned in the context of another witness, Lesley Baldwin.  Ms. Baldwin had testified that when she was in the washroom at the Brampton court staff Christmas party several women had come to her to complain about Judge Hryciuk's conduct that evening.  Ms. Lumb was one of the women mentioned by Ms. Baldwin....During a slow dance with Judge Hryciuk his hand slipped under her dress.  Ms. Lumb asked Judge Hryciuk to move his hand and he did so. She claimed the incident had no effect on her and as she put it "whatever happened at the time was forgotten at the time."

6.   Suzanne McKenzie:  "She too, was at the Brampton court staff Christmas party in 1991.  Ms. McKenzie like Ms. Lumb made no complaint directly about Judge Hryciuk, but her name was also mentioned by Ms. Baldwin as being one of the women who complained to her about Judge Hryciuk's conduct that evening. During a slow dance with Judge Hryciuk that evening his hand slid from her back to her lower back just above her buttocks.  She said she not feel comfortable with where his hand was and she moved it up and said: "No, please don't at which point Judge Hryciuk stopped.

7.   Kelly James: "Judge Hryciuk shook her hand, straightened up slightly and as she leaned to kiss him on the cheek he said to her "Give me a big Christmas hug" pulling her toward him.  She fell into his chest and as she did so  his left hand came around and grasped her buttock.  He let go of her right hand which he had been shaking and brought her forward with such force that one of the fingers of his left hand slightly penetrated her vagina....Thereafter when she and Angie left the washroom to return to their table Judge Hryciuk called to her: "Not wearing any underwear tonight, are you Kell ?"

   "The second incident described by Ms. James involving Judge Hryciuk on that same evening occurred while she was dancing with him later on in the evening.  He asked her to dance by coming up behind her and simply taking her hand and pulling her to her feet as he did so.  She did not even realize it was him until after she was already on her feet.  As they began to dance she said Judge Hryciuk pressed her back with his hand and caused her breasts to rub against his chest.  He then began to grind his penis against her pelvis; he had an erection and said to her "...that ain't a roll of quarters you're feeling there" and either "baby or "sweetheart" and later "....yeah, that ain't a roll of lifesavers you're feeling there."


Justice MacFarland's 
Reasons for Recommending
Removal from Office:

   "Certain of the complaints brought against Judge Hryciuk, if viewed alone, would not of themselves in my view warrant removal from office.  For example the comment he made to Marilyn Bartlett and the comments he made to others in her presence would not in themselves warrant removal from office event though they are inappropriate and unprofessional.  However, when such comments are viewed with the rest of his conduct of which complaint is here made we have a judge who has consistently made sexist and demeaning comments to women.  He has continued to make such comments after taking a judicial education course on gender issues, he continued the conduct after a woman Crown Attorney spoke to him about his conduct, and even after the Judicial Council hearing had taken place and he was aware of the Smith and Lawson complaints he says he did not realize thee was anything wrong with his conduct until he took a further course in November, 1992 - after the Judicial Council hearing.  For more serious of course is his conduct in relation to Ms. Smith and Ms. James which is tantamount to sexual assault.


Court of Appeal Ruling:

   A unanimous panel of the Court of Appeal composed of Catzman, Weiler and Abella JJ.A allowed the appeal finding that Justice MacFarland exceeded her jurisdiction in hearing the additional complaints.  The court expressly found that the Commissioner's jurisdiction with respect to removal was not a general mandate but one which flowed from the two specific complaints referred to her for hearing - namely the Kelly Smith and Susan Lawson complaints.  The following passage by Justice of Appeal Abella captures the essence of the rationale underlying the decision to set aside the recommendation for removal:

"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 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."

..."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."

Note:  The full text of "Report of a judicial inquiry Re: His Honour Judge W.P. Hryciuk, a judge of the Ontario Court (Provincial Division)" is available online for those who wish to get an indepth understanding of this very significant and novel case.

Why the Canadian Judicial Council Majority's Recommendation to Remove Justice Girouard Should Not Stand

    The majority decision of the Hearing Panel adjudicating the complaint of judicial misconduct against Justice Girouard of the Quebec Superior Court will not stand for two fundamental 
reasons.  Firstly, the Hearing Panel dismissed the complaint of judicial misconduct which they were called upon to adjudicate.  The recommendation to remove a judge from office must be based on cause stemming from a complaint of judicial misconduct. Arguably, the complaint having been adjudicated and dismissed their jurisdiction is spent.  Secondly, the majority's act of recommending removal based on Justice Girouard's testimony in the proceedings before them is a clear breach of natural justice and fairness.  Justice Girouard and any other judicial officer, including justices of the peace, have a constitutional right not only to know the case they must meet before they are ordered to a hearing but all of the allegations must have been pre-screened by the review body.  

   In Hryciuk  v. Ontario  the recommendation to remove a Provincial Court Judge from the Bench was overturned by the Court of Appeal for Ontario because the Hearing Panel based its recommendation for removal from office on allegations which were not previously pre-screened pursuant to the statutory procedures applicable in that case.  The Court of Appeal for Ontario was clear that not all complaints of judicial misconduct against a judge warrant a hearing and accordingly the pre-screening is a fundamental right and the failure to comply with it renders the recommendation for removal a  nullity.

   I have posted excerpts from the Canadian Judicial Council Hearing Panel's Report below.  Readers who are interested in reading what the majority had to say should visit the Canadian Judicial Council's website for the full document.    

Inquiry Committee concerning the Honourable Michel Girouard

Report of the Inquiry Committee to the Canadian Judicial Council

18 November 2015

REPORT TO THE CANADIAN JUDICIAL COUNCIL

OF THE COMMITTEE CONSTITUTED PURSUANT TO SUBSECTION 63(2) OF THE JUDGES ACT TO INVESTIGATE THE CONDUCT OF JUSTICE MICHEL GIROUARD OF

THE SUPERIOR COURT OF QUEBEC

The Honourable Richard Chartier Chief Justice of Manitoba Chairperson

The Honourable Paul Crampton                                                  Me Ronald LeBlanc, Q.C.

Chief Justice of the Federal Court                                                LeBlanc Maillet

COUNSEL FOR THE HONOURABLE MICHEL GIROUARD

Me Gérald R. Tremblay, Ad. E. Me Louis Masson, Ad. E.

INDEPENDENT COUNSEL

Me Marie Cossette, Ad. E.

COUNSEL FOR THE INQUIRY COMMITTEE

Me Doug Mitchell

A.   Analysis

[159]    On the basis of the evidence introduced at the inquiry, the Committee cannot conclude, on a balance of probabilities that there was clear and convincing evidence that the exchange captured and recorded on video on September 17, 2010 is an illegal substance transaction.

108 Dr Rouillard’s report, Exhibit P-27, and his curriculum vitae, Exhibit P-27A.

[160]    Justice Girouard asked the Committee to lift the cloud of uncertainty that hangs over him109. It is understandable why Justice Girouard would have wanted the Committee to state that no illegal substance transaction took place on September 17, 2010. However, the Committee is unable to draw such a conclusion. The Committee’s analysis is set forth in the following paragraphs.

[161]    There is no direct evidence of the nature of the object that was exchanged.

[162]    After viewing the video recording, the Committee was unable to determine the nature of the object. Mr Lamontagne’s testimony and the evidence given by Justice Girouard are partly conflicting as to the nature of the object. Mr Lamontagne claimed that the object may have been an invoice for previously viewed movies. Justice Girouard, both at the inquiry and in response to Me Doray’s questions, stated that it was a note containing information regarding his client’s tax matter. According to these two versions, the object was a piece of paper, and not an illegal substance.

[163]    As a result of the demonstration performed by Sergeant-Supervisor Caouette, where he rolled, one by one, four small bags containing different quantities of flour representing cocaine110, the Committee is of the opinion that if the object was an illegal substance, it was likely cocaine and not marijuana, since Sergeant-Supervisor Caouette testified that marijuana is sold on the market in the form of buds111. On the basis of Sergeant-Supervisor Caouette’s testimony, the Committee concluded that such buds could not have been wrapped in a “Post-it” self-stick note, in the way that Mr Lamontagne had done shortly before Me  Girouard arrived in his office.

[164]    When searches were conducted at Mr Lamontagne’s movie rental store and at his residence, no cocaine was seized, although considerable quantities of marijuana were seized112. Based on the testimony of Sûreté du Québec officers who appeared before the Committee, only Sergeant Caouette and Sergeant Sirois could have observed Mr Lamontagne in possession of cocaine through video recordings that were captured from time to time.

However, according to their testimony, they did not see Mr Lamontagne in possession of cocaine. Furthermore, Mr Lamontagne was charged with trafficking marijuana, not cocaine.

[165]    Although the Committee is of the opinion that the evidence has shown that Mr Lamontagne could have easily obtained cocaine113, no evidence was submitted at the inquiry that he was actually in possession of this substance at any time in the months preceding the meeting of September 17, 2010, despite the fact that he had been under police surveillance for almost a year.

109 Justice Girouard’s testimony, May 12, 2015, at pp. 350-351.

110 Sergeant-Supervisor Caouette’s testimony, May 5, 2015, at pp. 160-163.

111 Sergeant-Supervisor Caouette’s testimony, May 5, 2015, at pp. 150-151.

112 Sergeant Marc April’s testimony, May 4, 2012, at pp. 129-139; PowerPoint Projet Crayfish/Résumé de l’enquête, Exhibit P-2, at pp. 27-37.

113 Mr Lamontagne unquestionably mixed with cocaine traffickers within the criminal organization that he belonged to.

In addition, he was highly placed within that organization, which gave him the status needed to obtain drugs easily. PowerPoint Projet Crayfish/Résumé de l’enquête, Exhibit P-2. See also the testimony of Sûreté du Québec officers, Transcript of May 4, 5 and 6, 2015.

[166]    Mr Lamontagne’s testimony that he took medication from his pocket and wrapped it in a “Post-it” self-stick note is certainly questionable. Based on the movement observed, it is highly unlikely that he was retrieving pills from his pocket. However, rejecting this testimony would not, in itself, provide evidence of the nature of the object that was exchanged.

[167]    Sergeant-Supervisor Y’s testimony was most helpful to the Committee and we gave it much credibility and probative value. He gave evidence that a single action is not a clear indication of the nature of a transaction. An undercover operator looks instead for a pattern of behaviour, in other words a series of consecutive actions, in order to detect an illegal substance transaction; he also looks for a similar pattern of behaviour with several other individuals.

[168]    Only one video recording of an exchange lasting eighteen (18) seconds was submitted to the Committee. Based on this sole exchange, the Committee is unable to determine if it captured a series of consecutive actions between a dealer of illegal substances and his client, or simply innocuous gestures. Although the gestures look suspicious, they are not clear and convincing.

[169]    Furthermore, the Committee rejected the evidence of similar facts regarding a history of similar transactions, and is of the opinion that the phone calls that were intercepted do not provide evidence of a context for an illegal substance transaction.

[170]    All things considered, there is no evidence that Me  Girouard used or purchased cocaine in the months preceding his appointment to the judiciary, despite the fact that individuals who were dealing in cocaine in the region had been under constant and lengthy surveillance.

[171]    The independent counsel argued that the evidence submitted to the Committee was sufficient to establish a presumption of serious, specific and corroborating facts that a cocaine transaction occurred on September 17, 2010. With great respect, the evidence presented to the Committee is insufficient to draw such a conclusion.

[172]    Nor can the Committee conclude, on the basis of the evidence on the record, that the exchange was not an illegal substance transaction, as requested by Justice Girouard.

[173]    Accordingly, count 3 has not been proven on a balance of probabilities.

II.    Other comments

[174]    The Committee found it disturbing that, in their final submissions, counsel for Justice Girouard suggested, in veiled terms, that police forces may have interfered in the case, as if to retaliate against Justice Girouard.114 There is no evidence to support such an inference. This is particularly disconcerting in light of the fact that the evidence shows there was a critical need for police action in the Abitibi region to deal with the activities of organized crime, and that, quite obviously, project Crayfish was a success.

[175]    Although he is entitled to a full and complete defence, Justice Girouard remains a

114 Submissions made by counsel for Justice Girouard, June 8, 2015, at pp. 239-245.

member of the judiciary throughout this inquiry and, in our opinion, he must ensure that his conduct is irreproachable. Such comments from his counsel, made in passing without any supporting evidence, bring the administration of justice into disrepute.

III.   The Committee’s conclusion

[176]    As previously mentioned, the Committee has determined that count 3 has not been proven.

[177]    The Committee does not deem it appropriate to pursue the inquiry into Justice Girouard’s conduct with respect to counts 1 (1987-1992), 2, 4 and 6. Many years have passed since the events described in counts 1, 2 and 4, which would inevitably weaken the quality of the evidence that may be submitted to the Committee. Furthermore, on the basis of findings and conclusions drawn from the evidence presented to the Committee, it seems unlikely that the independent counsel could, on a balance of probabilities, prove counts 1, 2 and 4.

[178]    With regard to count 6, in light of its conclusions regarding count 3, the Committee is of the opinion that it is not necessary to pursue the inquiry on this count.

IV.  Chief Justice Chartier’s dissenting opinion on the analysis of Justice Girouard’s testimony

[243]    Before explaining the reasons why I cannot share the opinion of my colleagues on their analysis of Justice Girouard’s testimony, I wish to reiterate that I fully agree with the Committee’s analysis set out at paragraphs 1 to 178.

[244]    Despite the fact that the Committee dismissed all allegations made against Justice Girouard, two of its members, Chief Justice Crampton and Me LeBlanc, Q.C., are of the opinion that, in his testimony before the Committee, Justice Girouard deliberately attempted to mislead the Committee by concealing the truth. Chief Justice Crampton and Me LeBlanc therefore recommend that Justice Girouard be removed from office or, alternatively, that a further count be brought against him. With all due respect, their recommendations give rise to serious concerns. Judges, like any other person facing allegations of misconduct, must know that, if successful in defending themselves against such allegations, they are not at risk, in the absence of extraordinary circumstances, of being removed from office because their testimony was rejected. Their confidence in the justice system depends on it.

[245]    I acknowledge that the credibility of judges must meet a higher standard. I also acknowledge that there can be extraordinary circumstances where the removal of a judge may be warranted solely only the basis of his or her conduct during an inquiry. However, I consider that this is not the case here.

[246]    For the reasons that follow, I cannot subscribe to the recommendations made by my colleagues.

[247]    First and foremost, although we generally agree on the relevant legal principles, we are divided on the assessment of the evidence surrounding Justice Girouard’s testimony and on the application of the law to the facts in evidence before the Committee. A witness’ testimony is assessed on the basis of reliability and credibility. Such an assessment must also provide some allowance for normal human error. In my view, the five or six inconsistencies identified by Chief Justice Crampton and Me LeBlanc were predictable, since they are of the kind that can be expected in a testimony that lasted five (5) days, amounted to more than eight hundred (800) pages of transcripts, and focused on a brief exchange lasting eighteen (18) seconds that occurred almost five (5) years ago. From my own experience, I can say that it is rare for a witness, in similar circumstances, to give evidence that is one hundred percent (100%) accurate. There will always be some inconsistencies.

[248]    As specified earlier, the Committee was unable to conclude, on the basis of the evidence submitted, that the object which Mr Lamontagne slipped to Me Girouard was cocaine. According to these two witnesses, they exchanged a note regarding either movie rentals or Mr Lamontagne’s tax matter. For them, it was an insignificant event that evoked no specific personal recollection of the meeting. Of course, there was the video recording. Unfortunately, this recording had no sound track. The absence of a sound track greatly hampered their exact recollection of the exchange. In my view, such a situation diminishes the evidential value of their testimony and makes it more difficult to draw definitive conclusions.

[249]    Although I acknowledge that there are some inconsistencies, errors or weaknesses in Justice Girouard’s testimony, I find that they affect the reliability of the testimony much more than the credibility of the witness. 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. In short, in my opinion, such inaccuracies, when considered separately or as a whole, do not give rise to any concrete doubt about the credibility of Justice Girouard’s testimony.

Furthermore, I consider that these inaccuracies are not so serious or numerous to warrant a recommendation for removal or to bring a further count against Justice Girouard. More specifically, I provide the following comments on the inconsistencies identified by my colleagues.

[250]    The payment made directly to Mr Lamontagne: In his letter of January 2013 to the Executive Director of the Council, Justice Girouard wrote that he purchased movies directly from Mr Lamontagne because he did not want adult movies to appear on his customer file. In his testimony before the Committee in May 2015, Justice Girouard specified that he purchased all kinds of movies from Mr Lamontagne, but rarely adult movies. My colleagues consider that there is a significant contradiction or inconsistency between Justice Girouard’s letter to the Executive Director and his testimony before the Committee. I do not share their view.

[251]    Justice Girouard did not think it was necessary to describe all his movie rental habits to the Executive Director of the Council.161 The evidence also shows that since Me Girouard was a special client of Mr Lamontagne’s movie rental business, the latter would personally offer

Me Girouard new releases of all sorts that were not yet available in his store.162 This also explains why Me  Girouard would often deal directly with Mr Lamontagne instead of the cashier

of the movie rental store. In my opinion, the explanations provided by Justice Girouard are plausible and credible.

[252]    The reason why Justice Girouard slipped money under the desk pad: At the beginning of the hearings, during the in camera session, Justice Girouard gave two reasons to explain why he slipped money under the desk pad: the first, so that it would not be obvious he was giving money to a trafficker; and the second, that he was acting out of habit. My colleagues consider that these two explanations are contradictory or inconsistent. I do not share their view. There can be more than one reason to explain an action. Near the end of his cross-examination by the independent counsel, on May 14, 2015, Justice Girouard confirmed that there were two reasons to explain his action163:

[TRANSLATION]

“Q.       So, in that instance where we see you, was it out of habit, or to avoid  being seen giving money to a trafficker?

A.         Well, I think it was a bit of both, but mostly out of habit.”

[253]    The moment when Justice Girouard and Mr Lamontagne began to discuss the tax matter: In his testimony at the in camera hearing, Justice Girouard stated that, during their entire

161 Justice Girouard’s testimony, May 13, 2015, at pp. 292-296.

162 Justice Girouard’s testimony, May 12, 2015, at p. 261; May 13, 2015, at pp. 256-258.

163 Justice Girouard’s testimony, May 14, 2015, at p. 45.

meeting of September 17, 2010, Mr Lamontagne and him discussed only the tax matter. He added that he may have also talked about the payment for previously viewed movies, but only for a few seconds.164 In deference to my colleagues, I consider that this is not a contradiction nor an inconsistency. It is merely a further detail provided by Justice Girouard. In my opinion, this part of his testimony is of little significance in this matter and is in no way an indication of false testimony.

[254]    The content of the note – the settlement amount: Mr Lamontagne testified that he had no recollection of the content of the note, but assumed that it was an invoice for movies. Justice Girouard stated that the note contained two pieces of information: the amount to settle the tax matter and the name of the lender. Although Mr Lamontagne was probably aware of the settlement amount, Justice Girouard testified that he needed to know how much Mr Lamontagne had to borrow and the name of the lender. My colleagues chose to accept the version of the facts provided by Mr Lamontagne, an imprisoned drug trafficker, instead of the one given by Justice Girouard. I do not share the opinion of my colleagues.

[255]    Mr Lamontagne’s testimony regarding the content of the note is far from being  conclusive or decisive – he has no recollection of it, but he thinks it was an invoice for movies. From Mr Lamontagne’s own testimony, it can be concluded that Justice Girouard’s version of the facts may be the correct one. I also note that, even though they accepted Mr Lamontagne’s version of the facts, my colleagues also question his credibility, at paragraph 204, where they state that the video recording does not show Mr Lamontagne using a pen to write a note. All in all, and unlike my colleagues, I am not prepared to accept Mr Lamontagne’s version of the facts, let alone prefer it to Justice Girouard’s version.

[256]    The content of the note – the message saying [TRANSLATION] “I’m under surveillance,  I’m being bugged”: My colleagues are of the opinion that there appears to be a substantial inconsistency between:

(i)            what is written in Me Doray’s summary of August 13, 2013, where Justice Girouard is said to have told Me Doray that the note he received from Mr Lamontagne contained a message saying [TRANSLATION] “I’m under surveillance, I’m being bugged”;

(ii)           Justice Girouard’s testimony at the in camera hearing on the issue of solicitor-client privilege, where he stated that the note may have contained a message saying that Mr Lamontagne believed he was “under surveillance”; and

(iii)          the evidence given by Justice Girouard in his main testimony, where he stated that there was no mention of surveillance in the note. It was instead Mr Lamontagne’s behaviour that led Justice Girouard to believe that Mr Lamontagne was under surveillance.

[257]    Justice Girouard testified that Me  Doray’s summary, which was provided to his counsel, indicated that Mr Lamontagne had written on the note, among other things, a message saying [TRANSLATION] “I’m under surveillance, I’m being bugged”. Justice Girouard stated before the Committee that Me Doray must have misunderstood him, and that he told him instead it was Mr

164 Justice Girouard’s testimony, May 5, 2015 (in camera), at p. 39.

Lamontagne’s behaviour which led him to believe that the latter was under surveillance165.

[258]    My colleagues are of the view that, if Me  Doray had incorrectly reported what Justice Girouard said, the latter would have communicated with Me Doray to ask for an amendment. They state that “[I]n the absence of evidence on this issue and of submissions from Justice Girouard’s counsel in this regard”, they conclude that Justice Girouard never asked for an amendment. With respect, I fear that such reasoning leads to a shift of the burden of proof to Justice Girouard. It is important to remember that neither the first, the subsequent or the final drafts of Me Doray’s summary, nor the correspondence between counsel for Justice Girouard and Me  Doray concerning the Doray report, were submitted in evidence to the Committee.

[259]    We must review the three different versions detailed above regarding this issue. As to version (i), I believe that we cannot rule out, on the basis of the evidence submitted, the possibility that Me Doray did in fact incorrectly report what Justice Girouard said. Justice Girouard testified that Me Doray had already made amendments to the first part of his summary166. Nothing in the evidence allows us to conclude that no amendments were required in the part of the summary concerning the meeting with Justice Girouard. As to version (ii), it must be remembered that Justice Girouard also said, in his testimony of May 5, that he was uncertain whether there was any mention of surveillance in the note167. Therefore, version (ii) may not be so inconsistent with version (iii).

[260]    Finally, my colleagues find it difficult to believe that Justice Girouard read the first draft of the summary dated May 6, 2013, but that he did not read the August 13, 2013 version. I must admit that I also find it hard to believe this part of his testimony. In my view, Justice Girouard’s explanation on this issue was weak and ambiguous. However, it is plausible that Justice Girouard, as a result of being exhausted and discouraged after finding out that the conduct review process would go forward168, did not immediately read Me Doray’s summary of their meeting.

[261]    The fact that Justice Girouard did not read the note: The final suspicious element raised by my colleagues concerns the fact that Justice Girouard did not immediately look at the note. This can easily be explained. Let us remember that the video recording has no sound track. As mentioned by Justice Girouard, Mr Lamontagne may have told him that the note contained the information he was expecting to receive while he was in his office.169 In my view, a negative inference should not be drawn from the fact that the two men do not recall what they talked about five (5) years ago. Certainly, the evidence shows that immediately after their meeting of September 17, 2010, Me Girouard contacted a Revenue Canada representative. This seems to be evidence corroborating his version of the facts.

[262]    I wish to make it very clear that what I saw on the video recording of September 17 seems shady to me. Even Justice Girouard acknowledged it in his testimony: what is shown on the video looks [TRANSLATION] “suspicious”. Although the video recording could certainly cast

165 Justice Girouard’s testimony, May 13, 2015, at pp. 367-374; May 14, 2015, at pp. 14-17.

166 Justice Girouard’s testimony, May 14, 2015, p. 17; Submissions made by counsel for Justice Girouard, May 14, 2015, at pp. 26-35.

167 Justice Girouard’s testimony, May 5, 2015 (in camera), at pp. 104-106.

168 Justice Girouard’s testimony, May 14, 2015, at pp. 14-19.

169 Justice Girouard’s testimony, May 14, 2015, at pp. 60-61 and 66.

doubt on the explanations provided by Justice Girouard, I cannot conclude that his explanations are false. The fact remains that the independent counsel was unable to provide the Committee with clear and conclusive evidence regarding the object that was exchanged and, therefore, the true nature of the transaction that was recorded on video. Although it is true that there are some inaccuracies in Justice Girouard’s testimony, it is important to make a distinction between a version of the facts that is disbelieved and one that is deliberately fabricated. As the Court of Appeal of Quebec stated in Bureautique Nouvelle-Beauce inc. c. Compagnie d’assurance Guardian du Canada170, [TRANSLATION] “[…] what is untrue is not necessarily deceitful.”

[263]    The second reason why I cannot subscribe to the position taken by my colleagues is that, in my humble opinion, the evidence of unthruthfulness, raised by my colleagues, is not sufficient in law to recommend removal. Generally, the assessment of a witness’s credibility is used to determine whether that person should be held liable. In the present matter, the conclusion regarding Justice Girouard’s credibility is not being used to determine whether the allegations against him have been made out, since all such allegations were dismissed by the Committee. Instead, my colleagues are using their assessment of Justice Girouard’s credibility at the hearing to recommend his removal from office.

[264]    In my opinion, in order to conclude that Justice Girouard deliberately attempted to mislead the Committee or that he lied during a disciplinary process, there needs to be more evidence than simply the Committee’s credibility assessment of Justice Girouard. There needs to be additional evidence that is independent of the impugned testimony, such as in instances of fabricated alibi or perjury. As Justice Moldaver wrote in R. c. Nedelcu171, at para. 23:

“While it is true that Mr. Nedelcu’s inconsistent discovery evidence might lead the triers of fact to reject his trial testimony, rejection of an accused’s testimony does not create evidence for the Crown – any more than the rejection of an accused’s alibi evidence does, absent a finding on independent evidence, that the alibi has been concocted. (See R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 61-67.) As Arbour J. observed at para. 67 of Hibbert:

A disbelieved alibi is insufficient to support an inference of concoction or deliberate fabrication. There must be other evidence from which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury.”

[265]    I find support for my analysis in decisions relating to judicial ethics, such as Therrien172 and Landreville173. In Therrien, there was factual evidence of a false statement made in the form submitted to the selection committee, being the fact of deliberately failing to disclose a criminal record to the selection committee. Similarly, in Landreville, there was also indisputable evidence of a lack of integrity. There was evidence of a fraudulent disposal of shares and an obvious conflict of interest.

170 Bureautique Nouvelle-Beauce inc. c. Compagnie d'assurance Guardian du Canada, EYB 1995-56102 (C.A.), at para. 20 and following.

171 Supra.

172 Supra.

173 Canada, Commission of Inquiry Re: The Hon. Mr. Justice Leo A. Landreville. Inquiry Re: The Honourable Justice Leo A. Landreville. Ottawa: The Commission, 1966.

[266]    In the opinion of my colleagues, there is independent evidence that Justice Girouard deliberately attempted to mislead the Committee. With all due respect, the evidentiary elements they rely on do not meet the standard of independent evidence. In order to establish that a false statement has been made, the Doray report and Me Doray’s testimony would have had to be submitted in evidence. In my opinion, the evidence given by Mr Lamontagne , an imprisoned drug trafficker, is insufficient. The fact that the video recording never shows Mr Lamontagne writing a note is inconclusive. The Committee only viewed brief scenes of the video recording. Mr Lamontagne may have written the note before the first scene that the Committee viewed. All in all, in my opinion, there is no question that there needs to be evidence, on a balance of probabilities, showing that the contradictions or inconsistencies were intentional and fabricated. In my view, there is no sufficient independent evidence that would lead me to conclude that Justice Girouard deliberately attempted to mislead the Committee.

[267]    An Inquiry Committee may consider an allegation only in cases where the matter may be serious enough to warrant removal, as provided for under subsection 1.1(3) of the By-laws. As I previously mentioned, I am of the opinion 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. Consequently, I am not convinced, on the basis of the evidence submitted, that the alleged misconduct suggested by Chief Justice Crampton and Me  LeBlanc meets the standard to support a further count being brought against Justice Girouard.

[268]    Another point. My colleagues recommend that, alternatively, a further count be brought against Justice Girouard. I do not agree with their recommendation. However, they suggest that such an inquiry not be conducted by this Committee. I agree with them on this last point. I am concerned that we, members of the Committee, would be in conflict of interest if we were to continue this inquiry, since such a further count would be the result of an alleged misconduct having occurred during the inquiry. By concluding that there is sufficient evidence to bring a further count against Justice Girouard, my colleagues have acted, in a way, as a Review Panel deciding that a further inquiry is justified. After hearing the evidence submitted, my colleagues and I have also expressed our opinion on this matter.

[269]    In my humble opinion, just as members of the Review Panel are not eligible to be members of the Inquiry Committee, members of our Committee cannot participate in any deliberations regarding such a further count: By-laws, paragraph 2(3)(b) and section 11(2). These provisions of the By-laws demonstrate that the statutory regime governing inquiries is sensitive to the issue of reasonable apprehension of bias.

[270]    My last point relates to the recommendation proposed by my colleagues to recommend the revocation of Justice Girouard despite the fact that our Committee dismissed all allegations against him. In my humble opinion, in the present case, we cannot impose a consequence for a misconduct that was not part of the Notice of Allegations. In my view, procedural fairness requires, if there is sufficient evidence of misconduct, that Justice Girouard be given an opportunity to respond to the issues raised by my colleagues.

[signed: R. Chartier]

THE HONOURABLE RICHARD CHARTIER

Chairperson of the Inquiry Committee

Chief Justice of Manitoba