Comité d’enquête
au sujet de
l’hon. Michel Déziel
Inquiry Committee concerning
the Hon.
Michel Déziel
Rapport du
Comité d’enquête au Conseil canadien de la magistrature
Le 3 juin 2015
Report
of the Inquiry Committee to the Canadian Judicial Council
(Original French version)
3 June 2015
REPORT TO THE CANADIAN JUDICIAL COUNCIL
OF THE INQUIRY COMMITTEE CONSTITUTED PURSUANT
TO SUBSECTION 63(3) OF THE JUDGES ACT
TO
INVESTIGATE THE CONDUCT OF JUSTICE MICHEL DÉZIEL OF THE SUPERIOR COURT OF QUEBEC
The Honourable Ernest J. Drapeau Chief
Justice of New Brunswick and
Chief Justice of the Court of
Appeal of New Brunswick Chairperson
The
Honourable Glenn D. Joyal Me René
Basque, QC Chief Justice of the Court of Counsel
and member of the
Queen’s Bench of Manitoba law
firm Actus Law-Droit
3 June 2015
COUNSEL
FOR THE HONOURABLE MICHEL DÉZIEL
Me André Gauthier Me Michel Massicotte
INDEPENDENT COUNSEL
Me Suzanne
Gagné, Ad. E.
COUNSEL FOR THE INQUIRY COMMITTEE
Me JoAnn Zaor
I.
GENERAL OBSERVATIONS AND SUMMARY
[1] Public
confidence in the judiciary is essential to ensure the rule of law and promote the values of a democratic society.
[2] Judicial independence, as a constitutional
principle, aims at sustaining public
confidence and allows judges to render justice according to law, without any improper influence.
[3] Judicial
independence is a prerequisite for impartiality and must be protected because of its critical role in
the pursuit of fundamental social objectives.
[4] In
our society, the concept of judicial independence features three constituent elements: security of tenure,
financial security, and institutional or administrative
independence.
[5] The principle of security of tenure does
not preclude the removal of a judge from
office, but that outcome can only be justified following the application of a stringent standard. The Judges Act (the “Act”)1 provides that a judge of a superior court may be removed from
office only if he or she has become incapacitated or disabled from the due execution of the office of judge for
any of the reasons set out therein. Pursuant to paragraph 65(2)(b) of the Act, misconduct is one of those
reasons.
[6] The review of a judge’s conduct usually
relates to actions on his or her part in the
performance of judicial duties. However, nothing in the Act precludes an Inquiry
Committee or the Canadian Judicial Council from dealing with an allegation of misconduct that predates a judge’s appointment2.
[7] In the case at hand, the two allegations in the Amended Notice of Allegations relate to conduct by Justice Michel
Déziel in 1997, a few years before his appointment to
the judiciary. However, when Me Déziel engaged in that conduct, he knew full well it contravened provisions of Quebec’s legislation regulating the funding of municipal political parties. That legislation prohibited corporations from making financial contributions to municipal political parties and capped contributions by individuals at $750.
[8] The first allegation (allegation 1) is that
Justice Déziel, while a lawyer, engaged in
misconduct when he retained the services of
one Gilles Cloutier to convert the
sum of $30,000 into cheques of $750, issued by individuals and made payable to the Parti de l’Action civique of the municipality of Blainville. The
sum in question had been remitted to
Me Déziel by an engineering firm as a contribution to the electoral campaign of the Parti de l’Action civique. Allegation 1 also states that Mr
Cloutier subsequently gave Me Déziel cheques of $750 totaling $30,000.
[9] Justice Déziel categorically denies the version of events that
forms the substratum for the
misconduct targeted by allegation 1.
[10] The second allegation
(allegation 2) imputes misconduct to Justice Déziel on the basis that he agreed to act as an intermediary for the
purpose of transferring cash
contributions from the engineering firm mentioned above to the person responsible for organizing the electoral
campaign of the Parti de l’Action civique. The contributions in question would have
totaled between $30,000 and $40,000. Be
that as it may, it bears emphasizing that the funds in question include the $30,000 targeted by allegation 1.
[11] Justice Déziel accepts
as correct the version of the facts underlying the charge of misconduct in allegation 2.
[12]
Even though the Amended Notice of
Allegations articulates two distinct charges of misconduct, it is common ground that allegations 1 and 2
relate to the same infractions and
that the two allegations are mutually exclusive, since they both bring into play the same funds
($30,000). Moreover, there is no doubt that a
full- blown hearing into allegation 1 would have been problematic for
the pursuit of the
just,
least expensive and most expeditious determination of the proceeding. On that score, suffice it to acknowledge
that the orders the Inquiry Committee would
have had to issue in connection with a complete hearing into allegation 1 would, in all likelihood, have been contested
before the courts by the affected parties. The
result: significant outlays of public resources and a delay, likely for several years, of a just resolution of the matter.
[13] At
the request of Independent Counsel, the Inquiry Committee agreed to proceed
first with allegation 2. Ultimately, the Inquiry Committee concluded
that the facts undergirding
allegation 2 were substantiated. This conclusion was drawn on the basis of the record as a whole, and
reflects the Inquiry Committee’s conviction
that the version of the facts underlying allegation 1 is, at the very least, improbable.
[14] Bearing in mind the facts as
found by the Inquiry Committee, and taking
into account the importance of a judge’s role in our democratic system,
Justice Déziel’s admission that he
knowingly and repeatedly violated the provincial law in question, and the Independent Counsel’s submission on point,
the Inquiry Committee concluded that
the misconduct described in allegation 2 had
been established.
[15] The
Inquiry Committee then considered whether, having regard to the test adopted in the Marshall case, Justice Déziel has become incapacitated or disabled
from the due execution of the office
of judge by reason of that misconduct. The Marshall test forecloses any such
conclusion unless the following question is answered in the affirmative: “Is the conduct alleged so manifestly and
profoundly destructive of the concept
of the impartiality, integrity, and independence of the judicial role, that public confidence would be
sufficiently undermined to render the judge
standard.
[16] Considering the objective seriousness of the infractions (all non-criminal and commonly sanctioned by the minimum fine of $100), the time elapsed since their commission, the fact that any prosecution was time-barred before Justice Déziel’s appointment to the judiciary, and the numerous mitigating circumstances, including his irreproachable career, his apology, the unequivocal support of the Chief Justice and the Associate Chief Justice of the Superior Court of Quebec, and the absence of any risk of recidivism, the Inquiry Committee concluded that Justice Déziel has not become incapacitated or disabled from the due execution of the office of judge by reason of the misconduct described in allegation 2.
[17] Finally, the Inquiry Committee turned to
the determination of allegation 1. The
underlying complaint is based on a version of key events that is incompatible with the facts as found by the Inquiry
Committee in the course of its consideration
of allegation 2. Moreover, it is a version that conflicts with the
documentary record, the correctness
and reliability of which are in no way questioned.
[18] As
indicated, and underscored by the Independent Counsel, it is a version that [TRANSLATION] “seems implausible in
light of the financial statements in the
record”. That being so, the Inquiry Committee could not accept the version in question.
[19] Ultimately, and in the sole interest of
justice and the public interest, the Inquiry
Committee decided to put an end to the proceedings by summarily dismissing allegation 1.
II.
BACKGROUND
A)
THE COMPLAINT, ITS PRELUDE AND
JUSTICE DÉZIEL’S RESPONSE
[20] In a
letter dated May 2, 20134, the Honourable François Rolland,
Chief Justice of the Superior Court
of Quebec, informed the Canadian Judicial Council of the following: [TRANSLATION] “At the proceeedings of the Charbonneau
Commission, a witness named Gilles Cloutier made serious allegations against a judge of our Court, the Honourable
Michel Déziel, in regard to events that
occurred when Justice Déziel was a lawyer”.
[21] Chief Justice Rolland asked the Council to review these allegations, without otherwise providing details of the alleged misconduct or any opinion on the issue of whether it warranted removal from office. As discussed later in this report, Chief Justice Rolland subsequently provided a letter of support for Justice Déziel.
[22] For
purposes of clarity, the Commission of Inquiry on the Awarding and Management of Public Contracts in
the Construction Industry (the “Charbonneau
Commission”) was established by the Government of Quebec through an order in Council issued on November 9, 2011.
[23] The
Charbonneau Commission’s mandate is described on its Web site as follows: [TRANSLATION]
1)
To examine the existence of
schemes and, where applicable,
develop a profile of those involved in possible collusion and corruption in the awarding and
management of public contracts in
the construction industry, including possible links to the financing of political parties;
2)
To develop a profile of
possible organized crime infiltration in the
construction industry;
3) To examine possible solutions and make recommendations towards establishing measures to detect,
reduce and prevent collusion and
corruption in the awarding and management of public contracts in the construction industry as well as
its infiltration by organized crime.
[24] Mr Gilles Cloutier, a former vice-president of business development for the engineering firm Roche, testified before the Charbonneau Commission. On the whole, his testimony dealt with his activities as a political organizer, the orchestration of so-called “turn-key” elections, various business development strategies, as well as the impact of such strategies on the awarding of certain public contracts.
[25] Relevant to our purpose
is the testimony given by Mr Cloutier on May 2, 2013. At that time, the
witness spoke of actions taken by Me Déziel in October 1997, some six years before his appointment to
the Superior Court of Quebec in November
2003.
[26] Of particular interest, when questioned
about financial contributions that he and
his spouse made to municipal political parties in 1997, Mr Cloutier stated the following:
[TRANSLATION]
I often made contributions, (…) I was always trying
to obtain retainers in Blainville,
but it was difficult, it was always Dessau,
Dessau, Dessau and Dessau5.
[27] Mr Cloutier went on to add that in October
1997, he was contacted by Me Déziel, a
lawyer he was acquainted with and whom he knew to be [TRANSLATION] “a close
associate of the mayor” of Blainville, particularly
with regard to the “funding
[28] At that meeting, Me Déziel had a white envelope containing a sum of $30,000, in
[29]
Mr Cloutier stated that Me Déziel asked him if he would agree to convert the entire sum into cheques in the amount
of $750 made payable to the “Parti de l’Action civique de Blainville”8.
[30] Mr Cloutier said that he agreed to do this, that he personally took care of converting a sum of between $20,000 and $22,000, and that he enlisted the help of a man called Daniel Mieli to convert the rest9.
[31] When questioned about the persons he
approached for this purpose, Mr Cloutier
said he called on his close relations, such as nieces, relatives, his brother, friends and neighbours, wasting no time
with people who were not very politicized. In
[32] The
process having been completed in less than a week, Mr Cloutier testified that he returned to Me Déziel’s office
and, behind closed doors, handed him all the
cheques that had been written11. If, as stated by Mr Cloutier, the
entire sum of
$30,000 was converted into cheques
in the amount of $750, he would have handed
over to Me Déziel forty (40) cheques made payable to the Parti de l’Action civique.
[33]
In accordance with Chapter XIII of An Act
Respecting Elections and Referendums
in Municipalities, C.Q.L.R., c. E-2.2 (the “Elections Act”), a chartered accountant
named Sylvain Bédard audited the financial statements of the Parti de l’Action
civile de Blainville and submitted his “auditor’s report”
for the fiscal year ended December 31, 199712.
[34] Appendix 3 of this report contains a list of names and adresses of all electors who made one or more contributions totalizing more than $100.
[35]
This list shows thiry-nine (39) cheques in the amount of $750, one (1)
in the amount of $500, one (1) in
the amount of $700, and one (1) in the amount of $150, for a grand total of $30,600.
[36] Mr
Gilles Cloutier and his spouse are listed among those who contributed $750, as well
as mayor Pierre Gingras, his wife Christiane, Me Déziel’s wife, and a number of municipal councillors,
including Pierre Bertrand and Normand Finley. At the hearing, it was observed as being implausible that the
latter would have contributed to the Parti de l’Action civique’s election
fund through Mr Cloutier.
[37] In
accordance with section 4.1 of the Complaints
Procedures (the “Procedures”), Chief Justice Rolland’s
request was referred to the Honourable Edmond
Blanchard, then Chief Justice of the Court Martial Appeal Court of Canada and Vice-Chairperson of the Council’s
Judicial Conduct Committee.
[38] At
the request of Chief Justice Blanchard, Justice Déziel was asked to submit his comments concerning the matter. In
order to facilitate the process, Justice Déziel was provided with a copy of Chief Justice
Rolland’s letter dated May 2, 2013, a
copy of a Canadian Press news report
regarding Mr Cloutier’s testimony before
the Charbonneau Commission on May 2, 2013, and a copy of a press release published by the Canadian
Judicial Council on this matter13.
[39] In a letter dated June
19, 2013, Justice Déziel responded to the request and submitted his comments to Chief Justice Blanchard14.
[40] In
his letter, Justice Déziel states that, in March 2013, two investigators from the Charbonneau Commission met with him
to inform him that his name would be
mentioned during Mr Cloutier’s upcoming testimony.
[41]
Investigators told Me Déziel about Mr Cloutier’ claim that, at his request, he had given him a number of cheques in the
amount of $750 in exchange for cash. In response, Justice Déziel told
investigators that he had no recollection of such an occurrence and
categorically denied any such allegation.
[42] The
following excerpts from Justice Déziel’s letter provide a context for his involvement in the municipal election
held in Blainville in November 1997:
[TRANSLATION]
(…)
I told
investigators that I acted as an intermediary between Mr Rosaire Sauriol, of the engineering firm Dessau, and Mr Michel
Monette, a field organizer for the Blainville municipal election in 1997.
Indeed,
Dessau was involved in funding the electoral campaign of the Parti de l’Action civique de Blainville, led at the time by
Mr Pierre Gingras, who had been
mayor since 1993.
The amount of
Dessau’s contribution had been agreed between
Mr Sauriol and Mr Gingras. My only involvement was therefore to transfer this money to Mr Monette.
Following
meetings I had with Mr Sauriol in his office, he gave me sums of money ranging between $3,000 and $5,000. As I
recall, I received from Mr Sauriol a total
amount of between $30,000 and
$40,000,
which I handed over to the field organizer, Mr Monette, who is now deceased.
Mr Monette
was responsible for the daily organization of the Parti de l’Action civique de Blainville’s electoral campaign, which involved recruiting volunteers,
collecting donations, organizing activities,
etc.
[43] Further in his letter, Justice Déziel responded to the allegations made by Mr Cloutier in his testimony. He unequivocally refuted Mr Cloutier’s remarks from
May
2013, and unhesitatingly described his testimony as false, untruthful and implausible:
[TRANSLATION]
I am shocked to
learn that it is no longer a few cheques, but
rather
$30,000 that
I allegedly asked him to “launder” or convert
into amounts of $750.
(…)
As I recall,
the amount of electoral contributions was then sufficient to cover electoral expenses, and I
consider it improbable that forty
contributions would have been deposited in October 1997, especially at the same time, all the more so since I believe
that Mr Sauriol gave me the sums of
money before October 1997 for the purposes of
the electoral campaign. Ultimately, there was certainly not $30,000 remaining from those sums of money
in October 1997.
(…)
If Mr
Cloutier’s allegations are taken as true, those forty contributions would have been made under other names that he obtained.
This is completely ridiculous, unreasonable, and a total fabrication. (…)
Mr Cloutier’s
allegations against me are entirely false, untruthful and implausible.
At the time,
it was common knowledge that Mr Cloutier was in charge of business development for Roche, a Quebec engineering
firm, and I knew that the City of Blainville
was doing business with the
engineering firms of Dessault and Tecsult. Therefore, it was out of the question for me to deal with a
representative of another engineering
firm, all the more so since I was never authorized by mayor Pierre Gingras to approach anyone for
potential retainers; this was mayor
Gingras’ role, and not mine.
[44] Justice Déziel deemed it helpful to attach to his letter two documents suggesting that Mr Cloutier’s credibility was questionable. One of these documents was a copy of a news report published in the May 25, 2013 edition of La Presse, entitled [TRANSLATION] “Gilles Cloutier faces another charge of perjury”, and the
other
an excerpt from a testimony given by Mr Cloutier before the Charbonneau Commission on May 13, 2013.
[45] In the aforementioned testimony, Mr
Cloutier acknowledged from the outset that
he had lied to the Charbonneau Commission when he stated, under oath, that he owned a house in La Malbaie, when in
fact, he was only renting it. Mr Cloutier
formally apologized for having lied, which he attributed to the sin of pride15.
[46] After
review, Chief Justice Blanchard decided to refer the matter to a Review Panel, pursuant to the authority
provided by the Canadian Judicial Council Inquiries and Investigations
By-laws, SOR/2002-371 (the “By-laws”).
B)
THE REVIEW PANEL
[47] The Review Panel was constituted on November 19, 2013, under the chairmanship of the Honourable Richard Chartier, Chief Justice of Manitoba, assisted by the Honourable Ronald Veale, Senior Judge of the Supreme Court of Yukon, and the Honourable Marc Monnin, judge of the Manitoba Court of Appeal.
[48] On December 17, 2013, the Review Panel
asked Justice Déziel to provide further
information and clarification following his letter of June 19, 201316. Justice Déziel
quickly provided the requested information in a letter dated January 14, 201417.
[49]
After having reviewed the circumstances in the matter and considered the additional information provided by
Justice Déziel on January 14, 2014, the Review Panel unanimously decided that an Inquiry
Committee should be constituted, in
accordance with subsection 63(3) of the Act.
[50] In its report dated April 4, 2014, the
Review Panel described its primary mandate,
which was to consider any available information regarding the complaint and decide whether an Inquiry Committee
should be constituted.
[51] The Review Panel also pointed out the
intrinsic limits of its mandate, in that it
could not hear evidence, nor make findings of fact or draw inferences from the facts. Thus, it rightly noted that
the information it obtained was not subjected
to the rules of evidence and/or the rules of adversarial debate, and
could not be considered as conclusive.
[52] However, on the basis of the
information as a whole, the Review Panel was of the opinion that if Mr Cloutier’s remarks were taken as true,
or alternatively, if Justice
Déziel’s version of events, to the effect that he “agreed to act as an intermediary
and received illegal contributions from Mr Sauriol that he later transferred to Mr
Monette, the political party’s field organizer”, was to be considered, there would be cause for concern18.
[53] In view of the circumstances,
the Review Panel unanimously concluded that
“the conduct at issue may
undermine the principles of integrity and honour and, therefore, public confidence in the judge, to such an
extent that Justice Déziel may
C)
THE INQUIRY COMMITTEE
[54] In accordance with provisions of the By-laws, the Chief Justice of New Brunswick was appointed as a member and Chairperson of the Inquiry Committee, and the Chief Justice of the Court of Queen’s Bench of Manitoba was appointed as a member of the Inquiry Committee. Subsequently, the Minister of Justice, the
Honourable Peter Mackay, appointed Me René
Basque, QC, a lawyer from New Brunswick, as a non-judicial member of
the Committee.
[55] Also in accordance with
provisions of the By-laws, Me Suzanne
Gagné, Ad. E., was appointed as
Independent Counsel responsible for presenting the case to the Inquiry Committee, and Me JoAnn Zaor
was engaged as legal counsel to provide
advice and other assistance to the Inquiry Committee.
[56] Subsequently, the
Inquiry Committee was notified that Justice Déziel would be represented by Me André Gauthier and Me Michel Massicotte.
D)
PRELIMINARY STAGES OF THE INQUIRY
[57] On November 14, 2014, the Independent Counsel provided the Inquiry Committee and counsel for Justice Déziel with a document describing the essence of each complaint referred to the Inquiry Committee by the Review Panel.
[58] This document, entitled Notice of Allegations, reads as
follows:
A.
BACKGROUND
1.
On April
4, 2014, a Review Panel consisting of three judges, including two members of the Canadian Judicial Council, decided
that an Inquiry Committee should be
constituted regarding the conduct of the
Honourable Michel Déziel, Judge of the Superior Court of Quebec.
2.
Notice
is hereby given to Justice Déziel of the allegations that will be the subject of the inquiry.
3.
None of the following alleged
facts have been proven before the
Inquiry Committee.
4.
At the
hearing, in accordance with the requirements of the Canadian Judicial Council Inquiries and Investigations By-laws,
the Canadian Judicial Council Policy
on Inquiry Committees, and the Canadian
Judicial Council Policy on Independent Counsel, the Independent Counsel will present before the Inquiry Committee
all the evidence relevant to the
allegations against Justice Déziel.
B.
ALLEGATIONS
(1)
That Justice Déziel asked Mr
Gilles Cloutier to convert $30,000 into
contributions of $750.
5. On May 2, 2013, Mr Gilles Cloutier
testified before the Commission of
Inquiry on the Awarding and Management of Public Contracts in the Construction Industry.
6.
Mr Cloutier stated the following:
a)
In 1997,
Justice Déziel, who was then a lawyer, told Mr
Cloutier that he required his services and asked him to come to his office for a meeting;
b)
In October 1997, Mr Cloutier went to
Me Déziel’s office, and Me Déziel
gave him an envelope containing $30,000 in $100
bills;
c.) Me
Déziel told Mr Cloutier that this money was given to him by the Dessau engineering firm;
d)
Me
Déziel asked Mr Cloutier to convert this money into cheques in the
amount of $750 payable to the Action civique de Blainville party;
e)
Approximately
a week later, Mr Cloutier gave Me Déziel cheques in the amount of $750 totalizing $30,000.
7.
The request made by Me Déziel to Mr
Cloutier to convert $30,000 into
contributions of $750, if substantiated, could well support (1) the finding that Justice Déziel “has
become incapacitated or disabled
from the due execution of the office of judge” by reason of having been guilty of misconduct, within
the meaning of subsection 65(2) of
the Judges Act, and (2) a recommendation for removal from office.
(2)
That Justice Déziel acted as an
intermediary for the purpose of
receiving illegal contributions to a political
party.
8.
On June
19, 2013, Justice Déziel sent a letter to the
Executive Director and Senior General Counsel of the Canadian Judicial Council, in which he submitted
his comments to the Vice-Chairperson
of the Judicial Conduct Committee, the Honourable Edmond Blanchard.
9.
In his
letter, Justice Déziel denied the allegations made by Mr Cloutier stated in allegation (1) above.
10.
However,
Justice Déziel acknowledged the following facts:
a)
In 1997,
Justice Déziel was a lawyer and held the title of chief organizer of the Action civique de Blainville party for the municipal election;
b)
The Dessau engineering firm
contributed to funding the electoral
campaign of the Action civique de Blainville
party, then led by Mr Pierre Gingras, who had been the mayor of Blainville since 1993;
c)
The amount of this funding
was agreed between Mr Rosaire
Sauriol, of the Dessau engineering firm, and Mr Gingras;
d)
Justice
Déziel agreed to act as an intermediary by transferring
to Mr Monette a sum of between $30,000 and $40,000 received from Mr Sauriol.
11.
In a
letter dated January 14, 2014 that he sent to members of the Inquiry Committee, Justice Déziel specified the following:
a)
He does not believe that the
Action civique de Blainville party
disclosed that it had received the funds from the Dessau engineering firm;
b)
In 1997, personal
contributions were limited to $750 and only
individuals qualified as electors could contribute; corporations were excluded from making such contributions.
12.
Having acted as an intermediary
between Mr Sauriol and Mr Monette,
for the purpose of receiving contributions to a politicial party that he knew were illegal, could well support
(1) the finding that Justice Déziel
“has become incapacitated or disabled from the due execution of the office of judge” by reason of having been
guilty of misconduct, within the
meaning of subsection 65(2) of the Judges Act, and (2) a recommendation for removal from office.
[59] On January 15, 2015, the Inquiry Committee held a management conference on the matter.
[60] In addition to establishing a schedule for
the hearing of preliminary motions and
the hearing on the merits, the management conference was intended to clarify the issues involved.
[61] The Independent Counsel then informed the
Inquiry Committee that the alleged
offences were against the Elections Act20.
[62] The
Independent Counsel also observed that these offences were time-barred before Justice Déziel’s
appointment to the judiciary.
[63] Finally, the Independent Counsel confirmed
that the following assertions made by
Justice Déziel (particularly regarding his conduct in the performance of his judicial duties) were not challenged and
would not be disputed at the hearing on the merits:
[TRANSLATION]
Finally, as a
superior court judge, my conduct has always been
beyond reproach. I believe I am appreciated by my colleagues, as well as by counsel and litigants who
appear before me. In May 2013, I was
the coordinating judge for the judicial district of Laval. My Chief
Justice, the Honourable François Rolland, suspended me from this position during the ongoing inquiry,
a decision that I fully agreed with.
Since then, I have been presiding settlement conferences and fulfilling my judicial duties with as much enthusiasm. I can
tell you that several lawyers, as
well as the President of the Bar of Laval, have
expressed their unconditional support for me and their wish that I resume my duties as coordinating judge
as soon as possible.
Therefore, I still have the complete confidence of
the Bar, my colleagues and the
public. Moreover, the Honourable François
Rolland will reinstate me in my position as coordinating judge in the event that this file is closed. 21
[64] On January 26, 2015, the Inquiry Committee and counsel for Justice Déziel received an Amended Notice of Allegations, in which paragraphs 7 and 12 were amended was follows:
7. The
request made by Me Déziel to Mr Cloutier to convert $30,000 into contributions of $750, if
substantiated, would contravene sections 610, 611
and 637 of An Act Respecting Elections and Referendums in Municipalities and could
well support (1) the finding that Justice Déziel
“has become incapacitated or disabled from the due execution of the office of judge” by reason of having
been guilty of misconduct, within the
meaning of subsection 65(2) of the Judges Act, and (2) a recommendation for removal from office.
12. Having acted as an
intermediary between Mr Sauriol and Mr Monette,
for the purpose of receiving contributions to a politicial party that he knew were illegal, would contravene sections 610, 611 and 637 of An Act Respecting
Elections and Referendums in Municipalities and could well support (1) the finding that Justice
Déziel “has become incapacitated or
disabled from the due execution of the office of judge” by reason of having been guilty of misconduct,
within the meaning of subsection 65(2)
of the Judges Act, and (2) a recommendation for removal from office.
[65] It should be noted that the Amended Notice of Allegations is in keeping with the Review Panel’s report, with one exception. The Amended Notice of Allegations reiterates the description of the alleged misconduct and offences set forth by the Review Panel. On the other hand, while the Review Panel concluded that the conduct at issue may cause Justice Déziel to find himself “in a position incompatible with the due execution of the office of judge” (the reason set out in paragraph 65(2)(d) of the Act), the Amended Notice of Allegations states that the alleged misconduct may cause Justice Déziel to have become incapacitated or disabled from the due execution of the office of judge by reason of “having been guilty of misconduct” (the reason set out in paragraph 65(2)(b) of the Act). Justice Déziel did not object to this amendment and, for its part, the Inquiry Committee
agreed that the Amended Notice of Allegations provided “a complete picture of the
scope of the inquiry”22. In the opinion of the Inquiry
Committee, such a difference in
reasons for removal has no effect upon the choice of disposition in the case in point. It follows that the Inquiry Committee does not intend to revisit
this issue.
[66] To ensure a proper understanding, the
Inquiry Committee deems it helpful to cite
in full the related legislative provisions, as they read in 1997, when the alleged
actions occurred:
An Act Respecting Elections
and Referendums in Municipalities
610. The
following persons are guilty of an offence:
(1)
every official
representative, delegate of an official representative or person designated by either to solicit and collect
contributions who collects a
contribution with the knowledge that
a)
the person making the
contribution is not an elector of the
municipality;
b) the contribution is not being made by the
elector himself;
c)
the contribution is not being
made at the elector's own expense, unless
it consists in the furnishing of services;
d) the contribution causes the elector to exceed
the maximum prescribed in section 431;
(2)
every person who makes a
contribution contemplated in paragraph 1.
611. Every person who solicits or collects contributions or incurs expenses
other than
election expenses for an authorized party or
independent candidate without being its or his official representative,
his delegate or a person designated
in writing for that purpose by either, is guilty
of an offence.
612. Every official representative, delegate of an official
representative or person designated
by either to solicit and collect contributions
is guilty of an offence who
(1)
collects contributions
without issuing a receipt to the contributor;
(2)
collects a contribution of
money of $100 or more made otherwise than
by cheque or other order of payment;
(3)
collects a contribution made
by cheque or by other order of payment
that is not signed by the elector or not made payable to the order of the authorized party or independent
candidate or that he knows not to
be drawn on
an account of the elector in a financial institution having an office in Québec.
637. Every person who, by his act or omission, aids another person to commit an offence is guilty of the
offence as if he had committed it
himself if he knew or should have known that his act or omission would probably result in aiding to commit the offence.
Every person
who incites or leads another person to commit
an offence is guilty of the offence, and of any other offence the other person commits as a result of his
encouragement, advice or order, as if
he had committed it himself, if he knew or should have known that his encouragement, advice or order
would probably result in the
commission of the offences.
The fact that
no means or plan for committing the offence was
proposed or that it was committed otherwise than as proposed does not constitute a defence.
[67]
Finally, the Inquiry Committee recalls that, in accordance with the Elections
Act, more specifically sections 641 and 648, the alleged actions are
statutory offences punishable by a minimum fine of $100 and
prescribed by one year from the date
on which the prosecutor became aware of the commission of the offence; however, “no proceedings may be instituted where more than five years have
elapsed from the commission of the
offence”. Therefore, the Independent Counsel rightly observed that the alleged offences were time-barred,
even before Justice Déziel was appointed to the Superior Court.
E)
THE ALLEGATION OF CONFLICT OF INTEREST
[68] On March 10, 2015, the Inquiry Committee began its proceedings. As was indicated to the Independent Counsel and counsel for Justice Déziel, the Inquiry Committee wanted to deal firstly with the issue of a potential conflict of interest involving the Independent Counsel.
[69] On that particular point, it is worth
specifying that the Inquiry Committee received
no motion, formal or informal, seeking that Me Gagné be disqualified from acting
as
Independent Counsel. Rather, the issue was submitted to the Inquiry Committee through a letter stating certain
facts that, according to its originator, gave rise to questions of bias.
[70] Concerned with its responsibility, in the
public interest, for actively pursuing a
thorough search for the truth in the conduct of the inquiry23,
the Inquiry Committee addressed this issue and received in evidence four
letters that need to be examined.
[71] The
first letter, which gave rise to this issue, is dated February 9, 2015 and originated from Martin Cossette, a
lieutenant in the Service des enquêtes
sur la corruption of the Sûreté du Québec’s Marteau squad. This
letter, along with documents
attached to it, were introduced into the record as Exhibit C-1 and are reproduced in annex to this report.
[72] The
following excerpts from lieutenant Cossette’s letter provide the context of his request and concerns regarding a
potential conflict of interest involving the
Independent Counsel:
[TRANSLATION]
We have been informed
that hearings regarding the aforementioned judge will soon take place.
It has also been brought to our attention
that Mr Gilles Cloutier will testify at these hearings. According to our information, Me Suzanne Gagné, of
the law firm Létourneau & Gagné, will be sitting as a member of the Committee in
case number CJC 13-0065.
We wish to
bring to your attention certain facts that, in our opinion, are important
to consider regarding the conduct of
hearings and the Committee’s composition.
(…)
In case
number 200-26-025245-144, police officers from
the Service des
enquêtes sur la corruption executed a search warrant at
the home of Mr Marc-Yvan Côté. Lawyers from the media requested access to documents supporting the issuance of
the warrant, through a motion
to unseal
warrant materials. Mr Côté was involved in this proceeding and represented by Me Suzanne Gagné. As a result of
this motion, certain excerpts from documents supporting the issuance of the warrant were made public. From these
documents, it appears that Mr Gilles Cloutier implicated Mr Marc-Yvan Côté in a false invoicing scheme.
(…)
This
situation gives rise to several questions regarding the appearance of bias. As a member
of the Committee, could Me Gagné be called upon to
express an opinion on the credibility and content of Mr Gilles Cloutier’s testimony? If so, her
client, Mr Marc-Yvan Côté, is implicated by Mr Cloutier’s statements. In our opinion, there is
clearly the appearance of a potential conflict of interest. The attached documents also support our concern.
We feel it is
our duty to inform the Council of this matter.
(…)
(Emphasis added)
[73] For
purposes of clarity, the documents attached to lieutenant Cossette’s letter are copies of computerized minutes of
proceedings, from case number 200-26-
025245-144 of the registry of the Court of Quebec, Criminal and Penal Division, showing the procedures taken by
the media in order to gain access to documents
supporting the issuance of the search warrant executed at the home of Mr Marc- Yvan Côté.
[74] The second letter, dated February 19,
2015, originated from counsel for the
Inquiry Committee. The purpose of this letter, introduced into the record as Exhibit C-2, was to provide the
Independent Counsel with information received
and ask for her views on the matter, as shown by the following excerpts:
[TRANSLATION]
On February 3, 2015, we received a phone call
from Me Mylène Grégoire, chief
prosecutor of the Bureau de la lutte anticorruption.
This phone
call came after another entirely unexpected and
unsollicited call was received a few days earlier from lieutenant
Martin Cossette, a unit chief in the
Sûreté du Québec’s Service des enquêtes sur la corruption.
(…)
Thus, we have
been advised that Mr Gilles Cloutier provided
the Bureau de la lutte
anticorruption with information that, according to investigators, has led them to believe
that a false invoicing scheme was
set up in order to launder sums of cash.
Mr Gilles
Cloutier is the key witness in this entire investigation known as project JOUG.
Even though
no charge has yet been laid, we are aware that
several searches have been carried out. One of those was made at the
home of Mr Marc-Yvan Côté, a former
Liberal minister, sometime in January
2014.
We have been told by Me Grégoire that you have acted and are still acting on behalf of Mr Marc-Yvan
Côté, and that this information is
public.
(…)
Following
this phone call, we received a letter from lieutenant Martin Cossette on February 6, 2015, accompanied by documents
from case 200-26-025245-144, all of
which are attached to my letter.
(…)
All of this
information and material has been provided to the Inquiry Committee.
(…)
For the time
being, the Inquiry Committee wishes to hear your views, as it moves forward.
(…)
[75] The third letter, dated February 23, 2015, is the Independent Counsel’s response.
In it, she
informed the Inquiry Committee of her intention to carry on with her mandate as Independent Counsel and
responded to all of lieutenant Cossette’s
concerns as follows:
[TRANSLATION]
This is in
response to your letter of February 19, 2015, which was sent to me by email on February 20, 2015.
(…)
Lieutenant
Cossette then told me that he had contacted the CJC [Canadian Judicial Council], at the request of Me Mylène
Grégoire, a prosecutor in the Bureau de la lutte anticorruption in charge of an
investigation known as project JOUG. According to lieutenant
Cossette, Me Grégoire wanted to ensure that the CJC was well aware that I was a counsel for Mr
Marc-Yvan Côté, who is the subject of this
investigation.
I informed
lieutenant Cossette that I was retained by Mr Côté to represent him before the Commission of Inquiry on the
Awarding and Management of Public
Contracts in the Construction Industry (the
“Commission”). I represented him, among other instances, during his testimony before the Commission on
June 10 and 11, 2014. At that time,
the Commission’s prosecutor questioned him about statements made by Mr Cloutier regarding a false invoicing
scheme set up to launder sums of cash.
(…)
As for project Joug, no charge
has yet been laid against Mr Côté,
more than a year after the search carried out at his home. He retained
the services of another lawyer in the event he would be charged, which was well before my
appointment as Independent Counsel.
Incidentally, I represented
Mr Côté for the purposes of the motion
from the media to lift the publication ban on documents supporting the issuance of the search warrant, and I
consented on his behalf to extending
the detention of seized property. That was the end of my involvement in this matter.
I informed
lieutenant Cossette that I would not act on behalf of Mr Côté if criminal charges were brought against him as part of project JOUG, and I gave him the name of
his other lawyer. I am surprised that
he did not mention this in his letter of February 9, 2015 and that Me Grégoire did not talk to you
about it.
(…)
Me Grégoire’s
concerns seem to be based on a misunderstanding of the role of Independent Counsel appointed in accordance with the Canadian Judicial Council Inquiries
and Investigations By-laws. In
his letter of
February 9, 2015, lieutenant Cossette raises the issue of whether, as a member of the Inquiry Committe, I could be
called upon to express an opinion on
the credibility and content of Mr Cloutier’s
testimony. Since Mr Côté is implicated by Mr Cloutier’s statements, lieutenant Cossette concluded that there was the
appearance of a potential conflict
of interest.
First of all, I
am not a member of the Inquiry Committee. (…)
Furthermore,
contrary to lieutenant Cossette’s premise, it is not up to the independent counsel to weigh the evidence. (…)
(…)
In view of the
above, I consider that Me Grégoire and lieutenant
Cossette’s concerns are unfounded, and that there is no conflict of interest, nor any appearance of a
conflict of interest, between my role
as counsel for Mr Côté and my role as Independent Counsel, which consists in presenting, in a fair
manner and in the public interest, all
relevant and required evidence to the Inquiry Committee, whether it is adverse or favourable to Justice Déziel.
I would add that
lieutenant Cossette’s letter and the information
provided by Me Grégoire do not establish that Mr Côté’s potential defence – he has not yet been charged – rests on Mr Cloutier’s credibility. In this regard,
it is worth quoting the following excerpt
from the testimony that Mr Côté gave to the Commission regarding allegations made by Mr Cloutier about his involvement
in a false invoicing scheme:
[TRANSLATION]
Q : [1035] Let’s talk about Mr Cloutier.
Earlier, you said that the only way
illegal contributions, if I may use that
expression, were made, was through expense accounts, false expense accounts. Mr Cloutier also told us about false invoices
that he created, and that you approved, in order to launder cash, always for the purpose, in
particular, of reimbursing certain
contributions made to political parties. Is this true?
A.
Yes.
Consequently, I
intend to continue in my role as Independent
Counsel in this matter, and I do not believe it would be useful to have,
by my side, another counsel taking
evidence and making required
submissions regarding the allegation set out at item 1.
[76] This letter, along with documents attached
to it, were introduced into the record as
Exhibit C-3 and are reproduced in annex to this report.
[77] That
same day, Me Gauthier advised the Inquiry Committee of Justice Déziel’s position:
[TRANSLATION]
My client, Mr Justice Déziel, is relieved at the position taken by Me Gagné, since he is keen to proceed as
quickly as possible in dealing with
events that already date back to May 2013.
Not only
would a change in Independent Counsel probably delay the hearings, but it would also prejudice the work done so far
by both Me Massicotte and myself and
by Me Gagné, following the management
conference held on January 15, 2015.
[78] This letter, along with documents attached to it, were introduced into the record as Exhibit C-4.
[79] After
counsel were given the opportunity to complete their arguments, positions remained essentially the same,
Me Gagné claiming that she was not in a conflict of interest and Justice Déziel objecting to a postponement of
the hearings, which would have been
the inescapable consequence of the Independent
Counsel’s disqualification.
[80] The Inquiry Committee
concluded that Me Gagné was not in a conflict of interest for the following
reasons.
[81] The
Inquiry Committee’s mandate is very clear. It must decide in a fair and transparent manner if either
allegation set out in the Amended Notice of Allegations is founded, and if so,
whether a recommendation for removal is
warranted.
[82] For the purposes of its mandate, the
Inquiry Committee is invested with the
powers of a superior court. Therefore, it could refuse to hear the Independent
Counsel if it was demonstrated that
she was in a conflict of interest. Such a
conflict could give rise to a perception of bias on the part of the Inquiry Committee, which would seriously
undermine confidence in the Canadian Judicial Council and the judiciary in general.
Indeed, “it is of fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to
[83] Lieutenant Cossette’s email (C-1) suggests that he misunderstands Me Gagné’s role as Independent Counsel. In his defence, the Inquiry Committee acknowledges that this role is unusual.
[84] In its ruling in the matter of Justice Douglas25,
the Inquiry Committee looked into
the role of the Independent Counsel in the inquiry process and described it in this way:
[11] The role of independent counsel can only be understood in the context of the role of an inquiry
committee established under the
authority of s. 63(3) of the Judges Act. This understanding must be informed by the Council’s Complaints
Procedures, its By-laws and its
related policies, including Policy on Inquiry Committees, Policy on Independent Counsel, and Policy on
Counsel Conducting “Further
Inquiries”. In this respect, the pivotal function of a review panel, established under subsection
1.1(1) of the By-laws, must also be
understood. In other words, the responsibilities of an independent counsel are necessarily shaped and circumscribed
particularly by the role of an
inquiry committee established under s. 63(3) of the Judges Act. It is also important to bear in mind the purpose for
which the role of independent counsel
was created and the interpretation of that role
by the Council itself through its Policies. The history of the creation of that role and the related purpose has
been documented in the book by Ed
Ratushny, The Conduct of Public Inquiries (Irwin Law, 2009), at pages 230 et seq.
[85] The Policy on Independent Counsel, adopted by the Canadian Judicial Council in 2010 and referred to in the above excerpt, elaborates on what is expected from the Independent Counsel:
The central
purpose for establishing the position of Independent Counsel is to permit such counsel to act at “arm’s
length” from both the Canadian
Judicial Council and the Inquiry Committee. This allows Independent Counsel to present and test the evidence
forcefully, without reflecting any
predetermined views of the Committee or the Council. The Inquiry Committee relies on Independent Counsel to present the
evidence relevant to the allegations
against the judge in a full and fair manner.
The role of
Independent Counsel is unique. Once appointed,
Independent Counsel does not act pursuant to the instructions of any
client but acts in accordance with
the law and counsel’s best judgement of what is required in the public interest. This is an important public
responsibility that requires the
services of Counsel who is recognized in the legal community for their ability and experience.
Independent
Counsel is, of course, subject to the rulings of the Inquiry Committee, but is expected to take the initiative in
gathering, marshalling and
presenting the evidence before the Committee. As a preliminary issue, consideration should be given to
the relevance of any other complaints or
allegations against the judge, beyond the scope of the instant complaint or request under section 63(1). Additional
witnesses may have to be interviewed
and documents obtained.
The public
interest requires that all of the evidence adverse to the judge, as well as that which is favourable, be
presented. This also may require that
evidence, including that of the judge, be tested by cross-examination, contradictory evidence or both. This should
be done in a fair, objective and
complete manner.
Independent
Counsel is impartial in the sense of not representing any client but must be rigorous, when
necessary, in fully exploring all issues, including
any points of contention that might arise. Where necessary, Independent Counsel may need to adopt a
strong position in regard to the issues. At
the same time, it must be kept in mind that the judge could continue to
serve as a judge in future, so that
expressions about the judge’s credibility or
motives should be carefully considered.
Unlike other
settings, such as civil litigation, Independent Counsel has no authority to negotiate a “resolution”
of the issues before the Inquiry
Committee. However, Independent Counsel’s submissions will be considered by the Inquiry Committee.
[86] From the above, it can be seen that the Independent Counsel is a key player who participates in the Inquiry Committee process in his or her own way and according
to
well-established parameters. The Inquiry Committee process, let us recall, is not an adversarial proceeding, but
rather, as its name suggests, an investigative
function. Indeed, the Inquiry Committee is asked to gather all relevant evidence, weigh this evidence and, ultimately, make appropriate findings
in its final report.
[87]
The Inquiry Committee’ role must also be viewed in relation to its fundamental purpose, which, as
emphasized in the ruling in the matter of Justice Douglas26, serves only the public interest:
[46] The
nature of an inquiry committee was described by the Supreme Court of Canada in Ruffo [1995] 4 SCR 267. There, Justice Gonthier, for the majority, discussed the
role of a Comité d’enquête under the Quebec Courts of Justice Act, which is analogous to an
inquiry committee under the Judges Act. He
described its basic purpose as
“relating to the welfare of the public”. This
observation emphasizes the strong public interest that is manifest in this Committee’s mandate. Its role relates
primarily “to the judiciary rather
than the judge affected by the sanction”. It is required to inquire into the allegations about a judge’s conduct, determine whether they are justified and
recommend the appropriate sanction to
the Conseil. He elaborated on the nature
of its inquiry at paras. [72] -
[73]:
[…] the debate
that occurs before it does not resemble
litigation in an adversarial proceeding; rather, it is intended to be the expression of purely investigative functions marked by an
active search for the truth.
In light of
this, the actual conduct of the case is the
responsibility not of the parties but of the Comité itself. […] Any
idea of prosecution is thus structurally excluded. The complaint is merely what sets the process in motion. Its effect is not to initiate litigation
between two parties. This means that
where the Conseil decides to conduct an
inquiry after examining a complaint
lodged by one of its members, the Comité
does not thereby become both judge and party: as I noted earlier, the Comité’s primary role is to search for the
truth, this involves not a lis inter partes but
a true inquiry. […]
This
emphasizes the fundamental obligation of an inquiry committee to take responsibility in the public interest for
actively pursuing a thorough search
for the truth in the conduct of an inquiry.
[88] Inasmuch as the Independent Counsel’s role is part of this process, it is understood that his or her responsibilities must never encroach upon those of the Inquiry Committee.
[89] This delimitation is recalled, in no
uncertain terms, at paragraph 69 of the ruling
in the matter of Justice Douglas:
[69] The last
point is driven home even more forcefully by the opening paragraph of this Policy, which states:
An Inquiry
Committee has complete responsibility for, and control over, the scope and depth of its inquiry into the conduct of a
judge. At the outset and over the
course of the hearings, it relies heavily upon
Independent Counsel to ensure that all relevant evidence is gathered, marshalled, presented and
tested at its hearings. But it does not
“abandon” its own responsibility to such counsel, since the Canadian Judicial Council relies upon the
Committee for a complete report. One of
the key functions of the Committee is to make findings of fact.
In other
words, it is the inquiry committee’s inquiry and not that of the independent counsel. It also
emphasizes that the inquiry committee
must take full responsibility for fact-finding and cannot delegate this function to independent counsel.
[90] Considering this established framework and the defined roles, the Inquiry Committe can state that the Independent Counsel is not part of the Committee and is not its mandatary.
[91] Also,
witnesses that the Independent Counsel chooses to call are not “her” witnesses, but rather those that
she deems appropriate for establishing the facts in the public interest.
[92]
Finally, the explanations provided by Me Gagné show that lieutenant Cossette’s concerns are unfounded.
[93] For all the above reasons, the Inquiry
Committee concluded that allegations of
fact made by lieutenant Cossette were unfounded, that established facts did not give rise to a conflict of interest,
neither actual nor perceived, and that Me Gagné
could continue in her role as Independent Counsel in this matter.
III. THE MERITS
[94] Following this preliminary decision, the
Inquiry Committee continued its
proceedings and received in evidence the Joint
Record of Proceedings, Exhibits and
Legislation, introduced into the record as Exhibit C-5.
[95] This book is divided into 18 tabs containing the following documents:
|
Procedure
Amended Notice of
Allegations, dated January 23, 2015
|
Tab 1
|
|
Exhibits
Annual Reports of the Chief Electoral Officer
of Quebec, in a bundle
. 1996-1997
. 1997-1998
. 1998-1999
. 1999-2000
. 2000-2001
. 2001-2002
|
Tab 2
|
|
Report of the Inquiry Commission submitted by
Me Jean Moisan on June 12, 2006
|
Tab 3
|
|
Document entitled: “Parti de l’action civique de Blainville – Rapport du vérificateur et États
financiers pour l’exercice terminé
le 31 décembre 1997”
|
Tab 4
|
|
Excerpt from Mr Gilles Cloutier’s
testimony before the Commission of
Inquiry on the Awarding and Management of
Public Contracts in the Construction Industry on May 2, 2013, pages 42 to 70
|
Tab 5
|
|
Letter from the Honourable François Rolland,
Chief Justice of the Superior
Court of Quebec, to Me Normand Sabourin,
Executive Director of the Canadian Judicial Council, dated May 2, 2013
|
Tab 6
|
|
Excerpt from Mr Gilles Cloutier’s
testimony before the Commission of
Inquiry on the Awarding and Management of
Public Contracts in the Construction Industry on May 13, 2013, pages 22 to 27
|
Tab 7
|
|
Various newspaper articles published on May
13, 2013 and May 25, 2013
|
Tab 8
|
|
Letter from Me Normand Sabourin, Executive
Director of the Canadian Judicial,
to the Honourable Michel Déziel, Justice of
the Superior Court of Quebec, dated May 23, 2013, and attached documents
|
Tab 9
|
|
Letter from the Honourable Michel Déziel,
Justice of the Superior Court of
Quebec, to the Canadian Judicial Council,
dated June 19, 2013, and attached documents
|
Tab 10
|
|
Email from Ms Odette Dagenais to Ms Josée
Gauthier of the Canadian Judicial
Council, dated August 13, 2013
|
Tab 11
|
|
Letter from Me Normand
Sabourin, Executive Director of the
Canadian Judicial Council, to the Honourable Michel Déziel, Justice of the Superior Court of Quebec, dated
December 17, 2013
|
Tab 12
|
|
Letter from the Honourable Michel Déziel,
Justice of the Superior Court of
Quebec, to the Canadian Judicial Council,
dated January 14, 2014, and attached documents
|
Tab 13
|
|
Letters of support for the Honourable Michel
Déziel, Justice of the Superior
Court of Quebec, in a bundle:
. letter from Me Martine Nicol, President of the Bar of Laval, year 2013-2014, dated October 2013;
. letter from the Chief Justice of the
Superior Court of Quebec, the
Honourable François Rolland, dated January
20, 2015;
. letter from the Associate Chief Justice of the Superior Court of Quebec, the Honourable Jacques
R. Fournier, dated January 22, 2015;
|
Tab 14
|
|
|||||||||||
. letter
from Me Normand La Badie, currently President
of the Bar of the Laval district, dated January 26, 2015;
A) THE MOTION TO DIVIDE THE INQUIRY
[96] After this evidence was introduced, the
Independent Counsel applied to the
Inquiry Committee to submit a Motion from
Independent Counsel to divide the
inquiry.
[97] In
her motion, the Independent Counsel set out the facts in this matter and stated, at paragraph 9, that
[TRANSLATION] “the inquiry focuses on the following facts”, that is to say the
facts set forth in the Amended Notice of Allegations.
[98] Significantly, the Independent Counsel also stated the following at paragraph 10 of her motion:
[TRANSLATION]
“It is worth noting that allegations
1 and 2 are not cumulative, in the sense that they relate to the same
cash contributions that Justice Déziel is alleged to have either asked Mr Cloutier
to convert into
contributions
of $750 (allegation 1), or handed over to Mr
Monette, the
field organizer for the Parti de l’Action civique de Blainville (allegation 2)”.
(Emphasis added)
[99] From
the above, the Inquiry Committee wanted to confirm its understanding that allegations 1 and 2 relate to
versions of Justice Déziel’s conduct that are
different and, for the most part, contradictory, in connection with the
same financial contribution ($30,000)
made by the engineering firm Dessau to the Parti de l’Action civique de Blainville,
which, from a legal point of view, leads to the
premise that the alleged offences are mutually exclusive. The Independent Counsel and counsel for
Justice Déziel were in agreement with this axiom.
[100] On
the basis of this premise, the Independent Counsel set forth several new facts that occurred after the Review
Panel submitted its report, which led her to
propose, for the time being, that the Inquiry Committee proceed only with allegation 2 at this hearing.
Although the underlying facts are numerous, the
Inquiry Committee considers that they must be cited in full, in order to clearly outline the matter at issue and
fully appreciate the implications of dismissing the motion to divide and attempting to immediately hear
allegation 1, which is based on Mr
Cloutier’s oral testimony:
[TRANSLATION]
(…) NEW FACTS THAT OCCURRED SINCE
THE INQUIRY COMMITTEE WAS CONSTITUTED
11.
Allegation 1 rests mainly on Mr
Gilles Cloutier’s testimony and the
document entitled “Parti de l’Action civique de Blainville – Rapport du vérificateur et États
financiers pour l’exercice terminé le
31 décembre 1997” (Joint Record of Proceedings, Tab 4).
12. Mr
Cloutier was also a key witness for the prosecution in a high profile criminal trial that began on January 5, 2015 in St-Jérôme, in cases 700-01-098882-114 and 700-01-101736-117 (the “Boisbriand case”).
13.
On January 26, 2015, the
following facts were made public at the
trial in the Boisbriand case (Joint Record of Proceedings, Tab 15):
a)
Mr Gilles Cloutier was
arrested on September 2, 2014 and
charged with fifteen counts of perjury, as a result of a complaint filed by the Charbonneau Commission;
b)
The same day, Mr Cloutier
gave a five-hour video statement to investigators;
c)
Counsel for the defence in
the Boisbriand case submitted two
motions to compel the Charbonneau Commission
to provide them with documents related to the alleged acts of perjury;
d)
The Charbonneau Commission, through
its counsel Me Érika Porter, denied
certain facts stated by Mr Cloutier in
his video statement, such as the one to the effect that the Commission’s chief counsel, Me Sonia LeBel, met with Mr Cloutier to reassure him.
14.
On February 14, 2014, Me Michel
Massicotte, one of Justice Déziel’s lawyers, contacted Me Brigitte
Bélair, counsel for the prosecution
in the Boisbriand case, in order to obtain access to the police report, Mr Cloutier’s video statement, and an affidavit made by Me Sonia LeBel (Annexe 1).
15.
Me
Bélair refused, seeing no reason why she would have the right or the obligation to provide him with this evidence
(Appendix 1).
16. Moreover,
Me Massicotte was in possession of more than
fourteen prior statements made by Mr Cloutier, most of which were K.G.B. type statements, that he hoped to use in order
to test Mr Cloutier’s credibility
before the Inquiry Committee.
17.
These statements were given
to Me Massicotte in his capacity as
counsel for two defendants in the Boisbriand case, on the condition that he sign a non-disclosure agreement compelling him, among other things, to
use these statements only for the
purpose of defending his clients (Appendix 2).
18.
In a
letter dated February 9, 2015, counsel for Justice Déziel asked the
Independent Counsel to intervene in order to
release Me Massicotte from his non-disclosure agreement regarding prior statements made by Mr
Cloutier in the Boisbriand case, and
to obtain
access to the police report, Mr Cloutier’s video
statement, and Me Lebel’s affidavit (Appendix
3).
19. The same day, the Independent Counsel contacted investigative sergeant Guillaume Cotte,
who advised her that she had to submit
a request for access to information.
20. On
February 9, 2015, the Independent Counsel asked the Sûreté du Québec, Montérégie regional investigations division, for access to the entire investigation
file that led to Mr Cloutier’s arrest
for perjury (Appendix 4).
21. On February 25, 2015, investigative sergeant
Cotte confirmed to the Independent
Counsel that Mr Cloutier was arrested on
September 2, 2014 on fifteen counts of perjury
allegedly committed before the Charbonneau Commission, and that Mr Cloutier had given a five-hour video statement.
22.
Finally, in a letter dated March 4,
2015 and received on March 6, 2015,
the Sûreté du Québec advised the Independent Counsel that the requested documents could not be provided to her, [TRANSLATION] “so as not to
interfere with the conduct of a
judicial proceeding” (Appendix 5).
23. Although
the police report and the video statement are
not directly related to the subject matter of the inquiry, they pertain to Mr Cloutier’s credibility and could
well be evidence relevant to
allegation 1.
24.
Since
the Inquiry Committee is invested with the powers of the Superior Court of Quebec, it can summon investigative sergeant Cotte to appear and compel him
to produce this evidence, so that it
may be provided to the Independent Counsel and Justice Déziel.
25. If the Inquiry Committee
deems it necessary, it also has the
authority to release Me Massicotte from his non-disclosure
agreement regarding prior statements made by Mr Cloutier in the Boisbriand case, for the sole purpose
of providing a defense for Justice Déziel.
26.
Under these circumstances,
the Independent Counsel is not able
to present all the evidence relevant to allegation 1 at the public hearings scheduled for March 10 to
17, 2015.
27.
For the reasons that follow,
the Independent Counsel considers
that, in the interest of justice, the inquiry should be divided and allegation 2 should be heard first.
28. Such a measure would allow
the Inquiry Committee to decide, on
the basis of undisputed evidence, if as a result of violating the Elections Act in 1997 when he was a
lawyer, Justice Déziel has become
incapacitated or disabled from the due execution of the office of judge, and whether a recommendation for removal is warranted.
(…) THE EVIDENCE SUPPORTING
ALLEGATION 2
29.
Allegation
2 is the result of facts that Justice Déziel admitted in his letters to the CJC dated June 19, 2013 and January 14, 2014 (Joint Record of Proceedings, Tabs
10 and 13).
30. In a solemn declaration made
on February 26, 2015, Justice Déziel
also admitted that he had violated the Elections Act and apologized to his colleagues, his Chief Justice and the
public for the embarrassment that his
actions had caused (Joint Record of
Proceedings, Tab 16).
31. In
view of Justice Déziel’s admission, the Independent Counsel considers it unnecessary to present oral evidence and recommends that the Inquiry Committee
proceed with a summary hearing of
allegation 2.
32. Justice Déziel will of course
be present at the hearing to answer
any questions that members of the Inquiry Committee may need to ask
him.
33.
Other evidence supporting
allegation 2 has already been
introduced (Joint Record of Proceedings, Tabs 2, 3, 4, 10, 11, 12, 13, 14 and 16).
34. On the basis of undisputed
evidence supporting allegation 2, the
Independent Counsel and counsel for Justice Déziel will make submissions to
the Inquiry Committee on the issue of misconduct
and the issue of removal from office.
35.
Secondly, the Inquiry
Committee can decide if it is in the public
interest to hear allegation 1 and issue the orders described at paragraphs 24 and 25 of this motion.
36.
The Inquiry Committee being
the master of its own procedure,
nothing precludes it from dividing the inquiry and proceeding first with allegation 2.
[101] Counsel for Justice Déziel did not object
to the Motion from Independent Counsel to divide the inquiry.
[102] After having considered the information contained in this motion and further submissions made by the Independent Counsel and counsel for Justice Déziel, the Inquiry Committee allowed the motion, divided the inquiry into Justice Déziel’s conduct, and ordered that allegation 2 be heard first.
[103]
The Inquiry Committee also decided that, after hearing allegation 2, it would hear the parties on the advisability of
proceeding with allegation 1, in the interest
of justice and the public interest.
B)
THE HEARING OF ALLEGATION 2
[104] The Independent Counsel produced solely documentary evidence.
[105] During the proceedings, the Independent
Counsel mentioned that the version of
events underlying the misconduct set out in allegation 2 was derived directly from the facts acknowledged by Justice
Déziel in his letter of June 19, 201327.
[106] The Independent Counsel
recalled that the solemn declaration made by
Justice Déziel on February
26, 201528 reinforced this evidence, since it constituted a full and complete acknowledgment of this
version of the facts.
[107]
However, the Independent Counsel specified that the sum of money at issue in allegation 2, that is to say “a sum of
between $30,000 and $40,000”, includes the
sum of $30,000 referred to in allegation 1.
[108] Furthermore, the Inquiry Committee easily concluded that the different version of the facts put forward in allegation 1 was improbable, particularly in view of the information contained in the auditor’s report29. We will revisit this issue later.
[109] Therefore, the Inquiry Committee
concluded that the version of the facts set
forth in allegation 2 is to be taken as
true.
[110] On the basis of paragraph 10 of the Amended Notice of Allegations and with the necessary adaptations, the Inquiry
Committee made the following findings of fact:
a)
In
1997, Me Déziel held the title of chief organizer of the Parti de l’Action civique de
Blainville for the municipal election;
b)
The
engineering firm Dessau was involved in funding the electoral campaign of the Parti
de l’Action civique de Blainville, led at the time by Mr Pierre Gingras, who had been mayor since 1993;
c) The amount of this funding was agreed between Mr Rosaire Sauriol, of the firm Dessau, and mayor Gingras;
d)
Me Déziel agreed to act as an
intermediary by transferring a sum of between
$30,000
and $40,000, received from Mr Sauriol, to Mr Monette, the Parti de l’Action civique de
Blainville’s field organizer.
[111] The Inquiry Committee then focused its analysis on the issue of whether these facts constitute misconduct within the meaning of paragraph 65(2)(b) of the Act.
[112] The
answer depends, first of all, on the meaning and scope of the term “misconduct”.
[113] In our opinion, notwithstanding that the
impugned conduct of a judge occurred
prior to his or her appointment, an Inquiry Committee and the Council have full jurisdiction to act.
[114]
Just recently, another Inquiry Committee dismissed a claim to the contrary for the following reasons:
[TRANSLATION]
[37] The
issue of jurisdiction of a judicial council over alleged actions that occurred before the appointment of a judge is not
new. The Supreme Court of Canada had
the opportunity to look into this issue
in Therrien. In this case, Justice Therrien of the Court of Quebec, when he was a lawyer and filled
out an application for judicial
appointment, failed to disclose his criminal record. The Supreme Court stated the following:
“53 The appelant argues
that the Conseil de la magistrature
[du Québec] has no jurisdiction to review his conduct, since the ethical breach occurred before he was
appointed. He is accordingly of the
opinion that the misconduct that is the source
of the proceedings against him falls under the
exclusive jurisdiction of the discipline committee of the Barreau du Québec. I am unable to accept this
reasoning, for several reasons.”
[38] After
reviewing statutory provisions relevant to the Conseil de la magistrature du Québec, the Supreme
Court found that:
“54 […] The Conseil de la
magistrature therefore had
jurisdiction over the person and over the subject matter of the complaint. Whether or not the actions
were prior to the appellant’s
appointment is not relevant under the Act.”
[39]
Moreover, the Supreme Court emphasized that the responsibility for preserving the integrity of the judiciary
must include the authority to
examine the past conduct of a judge, prior to his or her appointment, which could undermine public confidence in the judge concerned. The Supreme Court also
expressed the opinion that “[…] in the interests of judicial
independence, it is important that discipline
be dealt with in the first place by peers”.
[50] Therefore, this Inquiry Committee has the
jurisdiction to investigate Justice
Girouard’s alleged actions. To conclude otherwise
would unduly limit the Conseil and the Committee’s mandate and diminish their ability to preserve the
integrity of the judiciary. 30
(Emphasis in original and citations omitted)
[115] We subscribe to this
interpretation of the Act.
[116] In this regard, it is
worth recalling what the Supreme Court of Canada stated in
Rizzo, a landmark decision with
respect to statutory interpretation:
Although much has been written about the interpretation of
legislation (see, e.g., Ruth
Sullivan, “Statutory Interpretation” (1997); Ruth Sullivan, “Driedger on the Construction of Statutes” (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, “The
Interpretation of Legislation in
Canada” (2nd ed.
1990)), Elmer Driedger in “Construction of
Statutes” (2nd ed.
1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation
cannot be founded on the wording of
the legislation alone. At p. 87, he states:
Today, there is
only one principle or approach, namely, the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the intention of
Parliament.
Recent cases
which have cited the above passage with approval include:
R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank
of Canada v. Sparrow Electric Corp.,
[1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion
Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.31
[117] The wording of paragraph 65(2)(b) (“having been guilty of misconduct”) does not limit its scope to misconduct that occurred subsequent to a judge’s appointment, and the overall context does not in any way support such a limitation.
Furthermore, the principle of
judicial independence, as it is perceived today,
advocates that discipline “be dealt with
in the first place by peers”.32 Finally, one of the purposes of Part II of the Act is to establish a system that gives the Canadian Judicial Council exclusive jurisdiction to conduct
an inquiry into any circumstances
that could result in the removal from office of a judge of a superior court.
[118] On
the basis of this well-established jurisdiction, the Inquiry Committee unanimously concluded that
Justice Déziel, when he was a lawyer, violated
the Elections Act and that he
knowingly committed these unlawful acts. These
facts, the seriousness of which must be assessed in light of the
important role of judges in our
democracy, led the Inquiry Committee to conclude that Justice Déziel had engaged in “misconduct” within the
meaning of paragraph 65(2)(b).
[119] The Inquiry Committee then considered the
second step of the test for removal,
which consists in determining whether the
alleged conduct is so manifestly and
totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of
individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge
incapable of
performing the duties of his office?33.
[120] The Independent Counsel expressed the view that Justice Déziel’s misconduct has not rendered him incapacitated or disabled from the due execution of the office of judge, within the meaning of subsection 65(2) of the Act, and therefore, that a recommendation for his removal from office is not warranted.
[121] The
Independent Counsel’s argument is set out in a document entitled [TRANSLATION] Independent
Counsel’s Written Submission regarding
Allegation 2.
[122] After setting out the background facts in the matter, the Independent Counsel recalls, at paragraph 19 and following of her document, the circumstances giving rise to removal.
[TRANSLATION]
(…)
THE TEST FOR REMOVAL
[19] The removal of a judge of a superior court is justified when 1)
the judge’s conduct falls within
subsection 65(2) of the Judges Act and 2) the
judge’s
removal is
necessary in light of the seriousness of the misconduct and the importance of preserving public
confidence in the justice system.
[20] In the first stage, subsection 65(2) of the Act provides that
the removal of a judge from office may
be warranted by reason of (a) age or infirmity, (b) having been guilty of misconduct, (c) having failed in the
due execution of the office of judge,
or (d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution
of the office of judge.
[21] In order to determine if the conduct at issue constitutes more
specifically an act of misconduct, we
must bear in mind the importance of the role
that judges play in our democracy. In this regard, the Supreme Court of Canada stated the following:
108
The judicial function is
absolutely unique. Our society
assigns important powers and responsibilities to the members of its judiciary. Apart from the traditional
role of an arbiter which settles
disputes and adjudicates between the rights of the parties, judges are also responsible for preserving the
balance of constitutional powers
between the two levels of government in our federal state. Furthermore, following the enactment of the Canadian
Charter, they have become one of the foremost defenders of individual freedoms and human rights and guardians of
the values it embodies: Beauregard,
supra, at p. 70, and Reference re Remuneration
of Judges of the Provincial Court, supra, at para. 123. Accordingly, from the point of view of the individual who appears before them, judges
are first and foremost the ones who state the law, grant the person rights or
impose obligations on him or her.
109
If we then look beyond the
jurist to whom we assign
responsibility for resolving conflicts between parties, judges also play a fundamental role in the eyes
of the external observer of the
judicial system. The judge is the pillar of our entire justice system, and of the rights and freedoms which that system is designed to promote
and protect. Thus, to the public, judges not only swear by taking their oath
to serve the ideals of Justice and Truth on
which the rule of law in
Canada and the foundations of our democracy
are built, but they are asked to embody them (Justice Jean Beetz,
Introduction of the first speaker at the conference marking the 10th anniversary of the
Canadian Institute for the Administration of
Justice, observations collected in Mélanges Jean Beetz (1995), at pp.
70-71).
110
Accordingly, the personal
qualities, conduct and image that a
judge projects affect those of the judicial system as a whole
and, therefore, the confidence that the public places
in it. Maintaining
confidence on the part of the public in its justice system ensures its effectiveness and proper functioning. But
beyond that, public confidence
promotes the general welfare and social peace
by maintaining the rule of law. In a paper written for its members, the Canadian Judicial Council explains:
Public
confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law.
Many factors, including unfair or
uninformed criticism, or simple misunderstanding of the judicial role, can adversely influence public confidence in and respect for the judiciary. Another
factor which is capable of
undermining public respect and confidence is any conduct of judges, in and out of court, demonstrating a lack of
integrity.
Judges should, therefore, strive to conduct
themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality, and good
judgment.
(Canadian
Judicial Council, Ethical Principles for Judges
(1998), p. 14)
111
The public will therefore
demand virtually irreproachable
conduct from anyone performing a judicial function. It will at least demand that they give the
appearance of that kind of conduct. They must be and must give the appearance of
being an example of impartiality,
independence and integrity. What is demanded of
them is something far above what is demanded of their fellow citizens. This is eloquently expressed by Professor
Y.-M. Morissette:
[TRANSLATION]
[T]he vulnerability of judges is clearly greater
than that of the mass of humanity or of “elites” in general: it is rather as if his or her function,
which is to judge others, imposed a
requirement that he or she remain beyond the judgment of others.
(“Figure
actuelle du juge dans la cité” (1999), 30 R.D.U.S. 1, at pp. 11-12)
In “The Canadian
Legal System” (1977), Professor G. Gall goes
even further, at p. 167:
The dictates of tradition
require the greatest restraint, the
greatest propriety and the greatest decorum from the members of our judiciary. We expect our judges to be almost superhuman
in wisdom, in propriety, in decorum and in
humanity. There must be no other group in society which must fulfil this standard of public expectation and, at the
same time, accept numerous
constraints. At any rate, there is no question
that a certain loss of freedom accompanies the acceptance of an appointment to the judiciary.
[Emphasis added]
[22] In the second stage, if the Council concludes that the conduct
at issue constitutes misconduct within
the meaning of subsection 65(2) of the Judges
Act, it must then determine, on the basis of the following test, whether the impugned conduct is serious enough to
warrant the judge’s removal from
office:
Is the conduct
alleged so manifestly and profoundly destructive
of the concept of the impartiality, integrity, and independence of the judicial role, that public confidence would
be sufficiently undermined to render
the judge incapable of executing the
judicial office?
[23] This test, developed in 1990 in the Marshall case, has since
been generally applied by the courts
and the Council in cases involving the potential
removal of a judge from office by reason of misconduct.
[24] In the matter of Justice Matlow, the Council emphasized the prospective nature of the test:
Implicit in the
test for removal is the concept that public
confidence in the judge would be sufficiently undermined to render him or her incapable of executing judicial office in the future in light of his or her conduct
to date.
[25] The Council also referred to the Supreme Court of Canada’s
decision in Ruffo v. Conseil de la
magistrature, which found that the impact of
an impugned conduct on public confidence must be assessed from the objective standpoint of what an informed
person, viewing the matter realistically and
practically – and having thought the matter through – would conclude.
[26] In the matter of Justice Flynn, the Inquiry Committee
considered the factors for assessing
the seriousness of the conduct at issue, in order to determine whether it sufficiently undermined public confidence
to warrant the judge’s removal from office:
In answer to
the second question, we now apply to the
impugned conduct of Mr. Justice Flynn the test for removal set
out in Marshall, which has been
considered earlier in these reasons.
The question may be posed as follows: is the
breach of the duty to act in a reserved manner demonstrated by Mr. Justice Flynn so manifestly and
profoundly destructive of judicial
impartiality, integrity and independence that
it undermines individual and public confidence in the justice system, thereby rendering the
judge incapable of performing the
duties of his office? In this
connection, we particularly noted the following: the irreproachable
career of the judge in question, the isolated nature of the
incident complained of, the unlikelihood of a similar incident
reoccurring, the judge’s acknowledgment of his remarks, his
letter and the acknowledgment made by his counsel that the
judge in question made a mistake in making the statements complained
of to the journalist. We remain convinced that the judge in question retains his independence and complete impartiality to continue
deciding matters brought before him
now and in the future. In view of all the circumstances, we are of the opinion that the conduct of
Mr. Justice Bernard Flynn has not
incapacitated or disabled him from the due execution
of his office within the meaning of subsection 65(2) of the Judges Act, and thus we do not recommend the removal of Mr. Justice Flynn.
[Emphasis added]
[27] In the matter of Justice Cosgrove, the Council examined the
potential effect of the following factors on the
application of the test for removal: i) the
apologies made by a judge to an Inquiry Committee; ii) the views expressed by Independent Counsel
regarding removal; and iii) consideration of
the judge’s judicial career, character and abilities, as described in
letters of support.
[28] With respect to apologies, the Council stated the following: The Apologies
[…]
[29] We agree that an apology is an important factor for Council to consider in assessing the future
conduct of a judge and, specifically, whether the judge recognizes that they
have engaged in misconduct and, futher, whether there is a reasonable
prospect that the judge will sincerely strive
to avoid inappropriate conduct
in future.
[30] Justice
Cosgrove’s apology in this case addresses both
of these aspects. Even accepting that the judge’s apology was sincere, we must consider an
additional – more important – aspect
in deciding whether a recommendation for removal is warranted: the effect upon public confidence of the actions of the judge in light of the nature and
seriousness of the misconduct.
[31]
For
Council, therefore, the key question is whether the apology is
sufficient to restore public confidence. Even a heartfelt and sincere apology may not be sufficient to alleviate the harm done to public
confidence by reason of serious and
sustained judicial misconduct.
[Emphasis added]
[29] With regard to Independent Counsel’s views, the Council was of
the opinion that:
[53] At the
hearing before us, Independent Counsel
emphasized again that it was open to the Inquiry Committee to come to its own view and that both the
majority and minority views
regarding the judge’s removal were defensible.
[54] The mandate of Independent
Counsel, it must be remembered, is
not that of a lawyer retained to achieve a
certain result. His view is but one
view, albeit a very important one, arrived at after considering
all issues. It cannot be the case that the members of the Inquiry Committee are in a lesser position than Independent Counsel in
coming to their own conclusion. Four of the five members of the Inquiry Committee were of the view that public confidence in the judge’s ability
to discharge his duties impartially
could not be restored. We agree. Recommending that the judge be removed from office is a grave duty and, given
the principle of judicial independence, one that must ultimately rest
with Council.
[Emphasis added]
[30] Finally, with respect to letters of support, the Council
expressed the following view:
[57] We are of the view that the opinions of
individuals, be they judicial
colleagues or otherwise, who do not have the
benefit of the evidentiary record and a complete knowledge and appreciation of the issues before Council, will generally be of little assistance in
determining whether public confidence
has been undermined to such an extent as to render a judge incapable of discharging the duties of their office. In this particular instance, we accord little
weight to the letters of support.
They may provide insight into the judge’s character
and work ethic, but they do not address the decisive issue before us, namely the damage done to public confidence by virtue of the judge’s judicial
misconduct. This is an issue that
rigthly rests with the Inquiry Committee and Council itself.
[31] In the matter of Justice Matlow, the Council acknowledged the
relevance of letters of support
provided by the judge at the sanction phase of
the proceedings:
[149] The
reasons of the Inquiry Committee indicate that
it viewed this evidence as partisan and, in any event, as representative of a small segment of
the public only. We do not disagree
with this assessment. But we also find the evidence to be relevant. Positing the opposite question, what if there were a deluge of letters from the local
community, including Justice
Matlow’s peers and lawyers, to the effect that he was unfit to hold office? Would that be relevant as
part of our deliberations? We think it may properly be. So too, are the support letters which have been
accepted as evidence.
[150] Character
is certainly relevant to the assessment of a
judge’s attributes. The letters deal with various aspects of Justice Matlow’s character, that is
his integrity, honesty,
conscientious work ethic, and commitment. While these letters are not relevant to whether the conduct complained of occurred, they may be relevant to why
the acts occurred, the context of the
acts, and whether the acts were committed
without malice and without bad faith. Character is also highly relevant to the issue of what recommendations should flow from a finding of judicial
misconduct. While the weight to be
given to this evidence is admittedly for the inquiry committee, and while an inquiry committee may elect to give it little weight, still it is an error in
principle to to simply ignore this
kind of evidence for all purposes. In particular, the evidence is relevant to the sanction phase of the
proceedings and ought to have been
considered in that context. It was not.
[32] In the context of the matter at hand, the Independent Counsel
considers it relevant to also take
into account the objective seriousness of the offences at the time they were committed, as well as the time that has
elapsed since then.
[33] Indeed, although the consequences of the impugned conduct on public confidence are assessed in a
present-day context at this inquiry, the
Independent Counsel considers that an informed person, viewing the matter realistically and practically –
and having thought the matter through –
would take into account the social and legislative context that prevailed at the time of the impugned conduct.
[34] The passage of time must be also considered, since it has a
bearing on the likelihood that a
similar conduct will reoccur and the leniency that may stem from the fact that the offences were committed several
years before the appointment of the
judge who is the subject of this inquiry.
(Citations omitted)
[123] After recalling these
principles, the Independent Counsel analyzed the evidence and
explained why she considers that public confidence has not been undermined to the extent that Justice
Déziel has become incapacitated or disabled from the due execution of the office of
judge:
B.
The second stage of the test
for removal
[38] At the second stage of the test for removal, one must consider the aggravating and mitigating factors
that are likely to affect the impact
of Justice Déziel’s conduct on public confidence.
[39] With respect to aggravating factors, the Independent Counsel notes the
following:
a.
The offences under the
Elections Act;
b.
The considerable sum at issue;
c.
The intentional, well thought
out and repetitive nature of the
conduct;
d.
The absence of regret and apology in
Justice Déziel’s letters of June 19,
2013 and January 14, 2014 (Joint Record of
Proceedings, Tabs 10 and 13).
[40] Concerning the latter factor, the Independent Counsel notes
that, in his letter of June 19, 2013,
Justice Déziel did not admit having
committed an offence under the Elections Act. Instead, he sought to minimize the seriousness of his actions
by mentioning that his only
involvement was to [TRANSLATION] “transfer this money to Mr Monette” and by emphasizing in the conditional that, even if Mr Cloutier’s version of events was taken
as true, [TRANSLATION] “it would
then be an offence under the Elections and Referendums Act, which would long since have been time-barred (limitation
period of five years)”.
[41] Also, in his letter of January 14, 2014, Justice Déziel
referred to hypothetical offences and
emphasized that he had no legal obligation
to declare to the Chief Electoral Officer that he had received sums of money from Dessau. As he later
admitted, he was not designated to
solicit or collect contributions, so that the mere act of collecting contributions from Dessau was
an offence under section 611 of the
Elections Act, in addition to aiding another person to commit an offence (sections 610, 612 and 637 of
the Elections Act).
[42] That said, in his solemn declaration of February 26, 2015, Justice Déziel expressed regret for the
tone of his previous letters and
acknowledged that he should have simply admitted his wrongdoing and shown restraint. He explained that his reaction
was caused by the hardship he had
suffered at the time, as a result of his wife’s illness and following her death on August 17, 2013. The
Independent Counsel is of the view
that Justice Déziel’s explanations regarding his state of mind and the sense of unfairness he felt are convincing,
such that little weight should be
given to the absence of regret and apology in
his letters of June 19, 2013 and January 14, 2014.
[43] With regard to mitigating factors, the Independent Counsel
notes the following:
a.
Justice Déziel’s acknowledgment of
the facts in his letter of June 19, 2013;
b.
His admission, in his solemn
declaration of February 26, 2015,
that he violated the Elections Act;
c.
His sincere apologies;
d.
The absence of risk of reoffending;
e.
The objective seriousness of
the offences committed in 1997,
particularly in regard to their endemic nature and the penalties provided for;
f.
The time elapsed since the
offences were committed and the fact
that they are now time-barred;
g.
Justice Déziel’s irreproachable career;
h.
The
support expressed by Chief Justice Rolland,
Associate Chief Justice Jacques R. Fournier, the President of the Barreau du Québec, Me Bernard
Synnott, and three other members of
the Barreau du Québec.
[44] As for the first four factors, Justice Déziel’s apologies and recognition that he engaged in misconduct
play an important role in assessing his
future conduct and, specifically, “whether there is a reasonable prospect that the judge will sincerely strive to avoid inappropriate conduct in future”.
[45] As the Council stated in the matter of Justice Cosgrove, “the key question is whether the apology is
sufficient to restore public
confidence”.
[46] In the present matter, the Independent Counsel is convinced
that there is no risk of reoffending
and that Justice Déziel’s sincere apologies are sufficient to reassure the public in
this regard.
[47] The objective seriousness of the offences and the time elapsed since they were committed are also
important factors to consider. In 1997,
every person who committed or aided another person to commit an offence under sections 610, 611 and 612
of the Elections Act was liable to a
fine of not less than $100 nor more than $10,000 (section 641of the Elections Act, Joint Record of Proceedings,
Tab 17). The Chief Electoral Officer
of Quebec’s annual reports from 1996 to 1999
show that, in the vast majority of cases, persons convicted of such offences were ordered to pay the
minimum fine of $100 (Joint Record
of Proceedings, Tab 2).
[48] The context that prevailed in 1997 regarding the funding of political parties must also be considered.
An informed person, viewing the
matter realistically and practically – and having thought the matter through – would take it into
account in assessing the seriousness of
Justice Déziel’s misconduct.
[49] In this regard, the report of the Moisan Inquiry Commission, released
on June 12, 2006, reveals that [TRANSLATION] “the scheme used by corporations to fund political parties
through contributions made under the
names of their employees is well known and widespread”
(Joint Record of Proceedings, Tab 3, page 16). Of course, the endemic nature of such schemes used by
corporations to fund political parties
does not excuse Justice Déziel’s misconduct, but we must be careful not to assess his conduct from
today’s perspective.
[50] It is also worth noting that these offences are prescribed by
five years (section 648 of the
Elections Act), and therefore, that they were
already time-barred when Justice Déziel was appointed to the judiciary on November 5, 2003.
[51] As emphasized by the Supreme Court of Canada in
R. v. Dudley, the limitation period
is an indication that an offence is not so significant
that, after a time, a person should have to fear prosecution:
[76] As one
academic has noted, it is primarily the
interests of the defendant that animate limitation
periods in criminal law: P.G. Barton, “Why Limitation
Periods in the Criminal Code?” (1998), 40 Crim. L.Q.
188. A central
purpose is to allow those who commit
minor offences to rest easy after a period: “… if the matter is of a level of seriousness of a summary conviction offence, it is not so
significant that, after a time, a
person should have to fear prosecution. He or
she should be able to get on with life without the threat of a criminal proceeding hanging over his or her head. The seriousness of indictable
matters overweighs this factor” (p. 190).
[52] Finally, the Independent Counsel emphasizes Justice Déziel’s irreproachable career. As for the
letters of support that were
submitted, although such evidence is generally of little help in assessing the harm done to public
confidence, it is nevertheless
relevant to the sanction phase when assessing the judge’s personal and professional qualities. In
the case of Justice Déziel, his qualities
are beyond question.
[53] Given all these circumstances, the Independent Counsel does not consider that public confidence in
Justice Déziel has been sufficiently
undermined to render him incapable of executing judicial office in the future, in light of his conduct to
date. On the other hand, the Inquiry
Committee should, in the view of the undersigned, express its
disapproval
of a conduct that is nevertheless reprehensible and unworthy of a lawyer who later became a judge.
(Citations omitted)
[124]
After finding that the facts set forth in this excerpt from the Independent
Counsel’s Written Submission regarding Allegation 2 were substantiated and that the
legal opinions expressed in it were well-founded, the Inquiry Committee agreed with the Independent
Counsel’s conclusion. Therefore, although we
are convinced that Me Déziel’s actions described in allegation 2 constitute misconduct within the meaning
of paragraph 65(2)(b) of the Act,
such reprehensible conduct
does not render Justice Déziel incapacitated or disabled from the
due execution of the office of judge.
[125] Of
course, implicit in the Inquiry Committee’s finding is its conviction that public confidence in Justice Déziel has
not been irreparably undermined.
[126] This belief is based,
among other things, on the letters of support34 for Justice Déziel that his counsel submitted on his
behalf and that were introduced into the
record with the consent of the Independent Counsel.
[127] The Inquiry Committee found this evidence
to be relevant and instructive with
regard to the issue of public confidence.
[128] In particular, the Inquiry Committee gave
considerable weight to the letters
originating from the Chief Justice and the Associate Chief Justice of the Superior Court of Quebec. For this
reason, the Inquiry Committee deems it useful to cite these letters in full:
[TRANSLATION]
Dear Me Gauthier:
You asked me
to send you a letter concerning the Honourable
Michel Déziel and, more
specifically, about his work at the Superior
Court since 2003.
In my capacity
as Chief Justice of the Court since 2004, I have had the opportunity to work with Jusitce Déziel on numerous
occasions, and I have always been
impressed by his rather exceptional availability.
Indeed, when
Justice Déziel has no decisions to write and is in a period of deliberation, he does not hesitate to contact my
office to generously offer his
services. I also asked Justice Déziel to act
as coordinating judge in Laval a few years ago, and he has performed this role brilliantly. Members of the law society of Laval hold him in high
esteem and have nothing but praise for him.
Justice Déziel is generous and a genuine ambassador of the Court.
Sincerely,
François Rolland Chief Justice
Dear Mr President
of the Barreau,
I am presently
Associate Chief Justice of the Superior Court.
From 2007 to 2011, I was the coordinating judge for the judicial
district of Laval, and it is during
this time that I came to best know the
Honourable Michel Déziel.
He is a
competent and devoted judge who fulfilled his duties in an exemplary manner and on a timely basis. In addition, when
his case assignments were completed
and his decisions rendered, he never
hesitated to voluntarily ask to have additional cases assigned to him.
When I sat on
the Court of Appeal, I also had the opportunity to examine some of his decisions and noticed the diligence and conscientiousness he brings to his work.
In my opinion, Justice Déziel is a competent and valued colleague. I state this without any hesitation.
Sincerely,
Jacques R. Fournier Associate Chief Justice
(Emphasis added)
[129] All things considered, the Inquiry Committee is of the opinion that the misconduct stated in allegation 2 does not warrant a recommendation for Justice Déziel’s removal from office.
C)
THE HEARING OF ALLEGATION 1
[130] Having made the above findings, the Inquiry Committee now turned its attention to assessing whether, in the interest of justice and the public interest, it was relevant to hear allegation 1 stated in the Amended Notice of Allegations.
[131] Although the Independent Counsel
acknowledges that the versions of the facts
set out in allegations 1 and
2 are mutually exclusive, she argues that the
testimonial evidence underlying allegation 1 can still be justified.
[132] The Inquiry Committee
did not agree with this argument for the following reasons.
[133] Firstly, the Inquiry Committee has
already taken as true the version of the facts
set out in allegation 2. This version is irreconcilable with the one
suggested in allegation 1.
[134] Secondly, this latter version,
which is based on Mr Cloutier’s testimony before the Charbonneau Commission, is at the very least improbable,
particularly in view of the auditor’s report35.
[135]
Thirdly, counsel for Justice Déziel and the Independent Counsel agree that it would be problematic to hear witnesses
in support of allegation 1. Such a hearing
could not be conducted within a “reasonable” timeframe and would lead to an unjustifiable
expenditure of public funds, because even if the version of the facts underlying allegation 1 were to be
accepted, the Inquiry Committee would
conclude that the resulting misconduct does not warrant the removal from office of Justice Déziel.
[136] For these reasons, the Inquiry Committee found that it was not in the interest of justice nor the public interest to continue hearing allegation 1.
[137] That being said, it is worth emphasizing
the evidence that led the Inquiry
Committee to find that the version of the facts underlying allegation 1 is improbable.
[138] As we indicated, allegation 1, as stated,
rests mainly on testimony given by Mr
Cloutier before the Charbonneau Commission on May 2, 2013.
[139] This
testimony is completely inconsistent with Justice Déziel’s version of the facts. However, before we can even
consider the truthfulness or falseness of a
factual contention, it must at the very least be plausible. So what to make of the version of events offered by Mr
Cloutier when compared to the auditor’s report36, the correctness and reliability of
which are in no way questioned?
[140] In his testimony, Mr Cloutier claims to
have received an envelope containing a
sum of $30,000, in $100 bills, that he converted into cheques in the amount of
$750 made payable to the Parti
de l’Action civique de Blainville.
[141] Mr Cloutier also claims to have given these cheques to Me Déziel and, in his testimony, categorically states that the entire sum of $30,000 was laundered.
[142]
Therefore, based on appropriate mathematical equations, Me Déziel should have received forty (40) cheques in the
amount of $750 made payable to the Parti de l’Action civique.
[143]
However, according to Appendix 3 of the auditor’s report37, the auditor counted thirty-nine (39) cheques in the amount of $750, one (1)
in the amount of $700, one
(1)
in the amount of $500, and one (1) in the amount of $150, all of which add up to a total sum of $30,600.
[144] First of all, on the basis of established facts, there is no consistency regarding the “laundered” sum, the number of cheques, or their amount.
[145] But
there is more. Appendix 3 of the auditor’s report shows that not all the contributors were relations of Mr
Cloutier, nor persons that he had control over.
[146] In fact, it is evident that
several contributions (at least ten) simply cannot be attributed to Mr Cloutier, since they originated from mayor
Gingras, his wife, municipal
councillors, and even Justice Déziel’s wife (the late Ghislaine Matteau).
[147] Without going into an
assessment of Mr Cloutier’s credibility, the
Inquiry Committee clearly understood, from submissions made by counsel
for Justice Déziel and the
Independent Counsel, that Mr Cloutier admitted committing perjury before the Charbonneau Commission
in May 2013, and that he was arrested in
September 2014 in relation to fifteen allegations of perjury, following a complaint filed by the Charbonneau Commission.
[148] Mr
Cloutier’s arrest was confirmed to the Independent Counsel by investigative sergeant Cotte on February
25, 2015.
[149]
All of this suggests that Mr Cloutier’s credibility is clearly in doubt, even before the start of his cross-examination,
which counsel for Justice Déziel are unable
to conduct, for the reasons stated in the Motion from Independent Counsel to divide
the inquiry and cited in full at paragraph 100 of this report.
[150] Faced with this situation, the
Independent Counsel acknowledged that the
evidence supporting allegation 1 had little weight, and that, even if it were given
evidentiary value, the test for removal would be assessed against what
has already been discussed.
[151] On the basis of the evidence as a whole,
and in the interest of justice and the
public interest, the Inquiry Committee summarily dismissed allegation 1 set out in the Amended Notice of Allegations.
IV.
SUBSTANTIVE FINDING
[152] For these reasons, the
Inquiry Committee found that a recommendation
for removal from office of the Honourable Michel Déziel is not warranted.
[153] Having fulfilled our
mandate, all that remains is for us to thank the Independent Counsel, Me Suzanne Gagné, Ad. E., counsel for
Justice Déziel, Me André Gauthier
and Me Michel Massicotte, and counsel for the Inquiry Committee, Me JoAnn Zaor, for their professionalism
and excellent contribution to the orderly
conduct of the proceedings.
[signed:
Ernest Drapeau]
The Honourable Ernest Drapeau, Chairperson
Chief Justice of New
Brunswick and Chief Justice of the
Court of Appeal of New Brunswick
[signed: Glenn Joyal]
The Honourable Glenn D. Joyal
Chief Justice of the Court of Queen’s Bench of Manitoba
[signed:
René Basque]
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