HRYCIUK v. ONTARIO (Lieutenant Govenor) 1996 ONCA

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.