The majority decision of the Hearing Panel adjudicating the complaint of judicial misconduct against Justice Girouard of the Quebec Superior Court will not stand for two fundamental
reasons. Firstly, the Hearing Panel dismissed the complaint of judicial misconduct which they were called upon to adjudicate. The recommendation to remove a judge from office must be based on cause stemming from a complaint of judicial misconduct. Arguably, the complaint having been adjudicated and dismissed their jurisdiction is spent. Secondly, the majority's act of recommending removal based on Justice Girouard's testimony in the proceedings before them is a clear breach of natural justice and fairness. Justice Girouard and any other judicial officer, including justices of the peace, have a constitutional right not only to know the case they must meet before they are ordered to a hearing but all of the allegations must have been pre-screened by the review body.
In Hryciuk v. Ontario the recommendation to remove a Provincial Court Judge from the Bench was overturned by the Court of Appeal for Ontario because the Hearing Panel based its recommendation for removal from office on allegations which were not previously pre-screened pursuant to the statutory procedures applicable in that case. The Court of Appeal for Ontario was clear that not all complaints of judicial misconduct against a judge warrant a hearing and accordingly the pre-screening is a fundamental right and the failure to comply with it renders the recommendation for removal a nullity.
I have posted excerpts from the Canadian Judicial Council Hearing Panel's Report below. Readers who are interested in reading what the majority had to say should visit the Canadian Judicial Council's website for the full document.
reasons. Firstly, the Hearing Panel dismissed the complaint of judicial misconduct which they were called upon to adjudicate. The recommendation to remove a judge from office must be based on cause stemming from a complaint of judicial misconduct. Arguably, the complaint having been adjudicated and dismissed their jurisdiction is spent. Secondly, the majority's act of recommending removal based on Justice Girouard's testimony in the proceedings before them is a clear breach of natural justice and fairness. Justice Girouard and any other judicial officer, including justices of the peace, have a constitutional right not only to know the case they must meet before they are ordered to a hearing but all of the allegations must have been pre-screened by the review body.
In Hryciuk v. Ontario the recommendation to remove a Provincial Court Judge from the Bench was overturned by the Court of Appeal for Ontario because the Hearing Panel based its recommendation for removal from office on allegations which were not previously pre-screened pursuant to the statutory procedures applicable in that case. The Court of Appeal for Ontario was clear that not all complaints of judicial misconduct against a judge warrant a hearing and accordingly the pre-screening is a fundamental right and the failure to comply with it renders the recommendation for removal a nullity.
I have posted excerpts from the Canadian Judicial Council Hearing Panel's Report below. Readers who are interested in reading what the majority had to say should visit the Canadian Judicial Council's website for the full document.
Inquiry Committee concerning
the Honourable Michel Girouard
Report
of the Inquiry Committee to the
Canadian Judicial Council
18 November 2015
REPORT TO THE CANADIAN
JUDICIAL COUNCIL
OF THE COMMITTEE CONSTITUTED
PURSUANT TO SUBSECTION 63(2) OF THE JUDGES
ACT TO INVESTIGATE THE CONDUCT
OF JUSTICE MICHEL GIROUARD OF
THE SUPERIOR COURT OF QUEBEC
The Honourable Richard Chartier Chief Justice of Manitoba
Chairperson
The Honourable Paul Crampton Me Ronald LeBlanc, Q.C.
Chief
Justice of the Federal Court LeBlanc Maillet
COUNSEL FOR THE HONOURABLE
MICHEL GIROUARD
Me Gérald
R. Tremblay, Ad. E. Me Louis Masson, Ad. E.
INDEPENDENT COUNSEL
Me Marie Cossette, Ad. E.
COUNSEL FOR THE INQUIRY COMMITTEE
Me Doug Mitchell
A. Analysis
[159] On the basis of the evidence
introduced at the inquiry, the Committee
cannot conclude, on a
balance of probabilities that there was clear and convincing evidence that the
exchange captured and recorded on video on September 17, 2010 is an illegal
substance transaction.
[160] Justice Girouard asked the
Committee to lift the cloud of uncertainty
that hangs over him109.
It is understandable why Justice Girouard would have wanted the Committee to
state that no illegal substance transaction took place on September 17, 2010.
However, the Committee is unable to draw such a conclusion. The Committee’s
analysis is set forth in the following paragraphs.
[161] There is no direct
evidence of the nature of the object
that was exchanged.
[162] After viewing the video recording,
the Committee was unable
to determine the nature of
the object. Mr Lamontagne’s testimony and the evidence given by Justice
Girouard are partly conflicting as to the nature of the object. Mr Lamontagne
claimed that the object may have been an invoice for previously viewed movies.
Justice Girouard, both at the inquiry and in response to Me Doray’s questions, stated that
it was a note containing information regarding his client’s tax matter.
According to these two versions, the object was a piece of paper, and not an
illegal substance.
[163] As a result of the demonstration
performed by Sergeant-Supervisor
Caouette, where he rolled,
one by one, four small bags containing different quantities of flour
representing cocaine110, the Committee
is of the opinion that if the object was an illegal substance, it was likely cocaine and not marijuana, since
Sergeant-Supervisor Caouette testified that marijuana is sold on the market in
the form of buds111. On the basis of
Sergeant-Supervisor Caouette’s testimony, the Committee concluded that such
buds could not have been wrapped in a “Post-it” self-stick note, in the way
that Mr Lamontagne had done shortly before Me Girouard
arrived in his office.
[164] When searches were
conducted at Mr Lamontagne’s movie rental store and at his
residence, no cocaine was seized, although considerable quantities of marijuana
were seized112. Based on the
testimony of Sûreté du Québec officers who appeared before the Committee, only Sergeant Caouette
and Sergeant Sirois could have observed Mr Lamontagne in possession of cocaine
through video recordings that were captured from time to time.
However,
according to their testimony, they did not see Mr Lamontagne in possession of
cocaine. Furthermore, Mr Lamontagne was charged with trafficking marijuana, not cocaine.
[165] Although the Committee is of
the opinion that the evidence has shown that Mr
Lamontagne could have easily obtained cocaine113, no evidence was submitted at the inquiry
that he was actually in possession of this substance at any time in the months
preceding the meeting of September 17, 2010, despite the fact that he had been
under police surveillance for almost a year.
112 Sergeant Marc April’s testimony, May 4, 2012, at pp. 129-139; PowerPoint Projet Crayfish/Résumé de l’enquête,
Exhibit P-2, at pp. 27-37.
113 Mr Lamontagne unquestionably mixed
with cocaine traffickers within the criminal
organization that he belonged to.
In addition, he was highly placed within that organization, which gave
him the status needed to obtain drugs easily. PowerPoint Projet Crayfish/Résumé de l’enquête, Exhibit P-2. See
also the testimony of Sûreté du Québec officers,
Transcript of May 4, 5 and 6, 2015.
[166] Mr Lamontagne’s testimony that he took
medication from his pocket
and wrapped it in a “Post-it” self-stick note is certainly
questionable. Based on the movement observed, it is highly unlikely that he was
retrieving pills from his pocket. However, rejecting this testimony would not,
in itself, provide evidence of the nature of the object that was exchanged.
[167] Sergeant-Supervisor Y’s testimony was most helpful to the Committee and we gave it much credibility and probative value.
He gave evidence that a single action is not a clear indication of the nature
of a transaction. An undercover operator looks instead for a pattern of behaviour, in other words a series of
consecutive actions, in order to detect an illegal substance transaction; he
also looks for a similar pattern of behaviour with several other individuals.
[168] Only one video recording
of an
exchange lasting eighteen (18) seconds was submitted
to the Committee. Based on this sole exchange, the Committee is unable
to determine if it captured a series of consecutive actions between a dealer of
illegal substances and his client, or simply innocuous gestures. Although the
gestures look suspicious, they are not clear and convincing.
[169] Furthermore, the Committee rejected the evidence of similar facts
regarding a history of
similar transactions, and is of the opinion that the phone calls that were
intercepted do not provide evidence of a context for an illegal substance transaction.
[170] All things considered, there is no evidence
that Me Girouard used or purchased cocaine
in the months preceding his appointment to the judiciary, despite the
fact that individuals who were
dealing in cocaine in the region had been under constant and lengthy surveillance.
[171] The independent counsel argued
that the evidence submitted to
the Committee was sufficient to establish a presumption of
serious, specific and corroborating facts that a cocaine transaction occurred
on September 17, 2010. With great respect, the evidence presented to the
Committee is insufficient to draw such a conclusion.
[172] Nor can the Committee conclude, on the basis of
the evidence on the record,
that the exchange was not an
illegal substance transaction, as requested by Justice Girouard.
[173] Accordingly, count 3 has not
been proven on a balance of probabilities.
II. Other comments
[174] The Committee found it disturbing
that, in their final submissions,
counsel for Justice Girouard suggested, in veiled
terms, that police forces may have interfered in the case, as if to retaliate
against Justice Girouard.114 There is no evidence
to support such an inference. This is particularly disconcerting in light of
the fact that the evidence shows there was a critical need for police action in
the Abitibi region to deal with the activities of organized crime, and that,
quite obviously, project Crayfish was a success.
[175] Although he is entitled
to a full and complete defence, Justice
Girouard remains a
member of the
judiciary throughout this inquiry and, in our opinion, he must ensure that his
conduct is irreproachable. Such comments from his counsel, made in passing
without any supporting evidence, bring the administration of justice into disrepute.
III. The Committee’s conclusion
[176] As previously mentioned, the Committee has determined that count 3 has not been proven.
[177] The Committee does not
deem it appropriate to pursue the inquiry into Justice Girouard’s conduct with respect to
counts 1 (1987-1992), 2, 4 and 6. Many years have passed since the events
described in counts 1, 2 and 4, which would inevitably weaken the quality of
the evidence that may be submitted to the Committee. Furthermore, on the basis
of findings and conclusions drawn from the evidence presented to the Committee,
it seems unlikely that the independent counsel could, on a balance of probabilities,
prove counts 1, 2 and 4.
[178] With regard to count 6,
in light
of its conclusions regarding
count 3, the Committee is of the
opinion that it is not necessary to pursue the inquiry on this count.
IV.
Chief Justice Chartier’s dissenting opinion on the analysis of
Justice Girouard’s testimony
[243] Before explaining the reasons why
I cannot share the opinion of my colleagues on their
analysis of Justice Girouard’s testimony, I wish to reiterate that I fully
agree with the Committee’s analysis set out at paragraphs 1 to 178.
[244] Despite the fact that the Committee
dismissed all allegations made against
Justice Girouard, two of its
members, Chief Justice Crampton and Me LeBlanc, Q.C., are of the
opinion that, in his testimony before the Committee, Justice Girouard
deliberately attempted to mislead the Committee by concealing the truth. Chief
Justice Crampton and Me LeBlanc therefore recommend that Justice Girouard be removed from
office or, alternatively, that a further count be brought against him. With all
due respect, their recommendations give rise to serious concerns. Judges, like
any other person facing allegations of misconduct, must know that, if
successful in defending themselves against such allegations, they are not at
risk, in the absence of extraordinary circumstances, of being removed from
office because their testimony was rejected. Their confidence in the justice
system depends on it.
[245] I acknowledge that the credibility
of judges
must meet a higher standard.
I also acknowledge that there can be extraordinary circumstances
where the removal of a judge may be warranted solely only the basis of his or
her conduct during an inquiry. However, I consider that this is not the case here.
[246] For the reasons that follow,
I cannot subscribe to the recommendations made by my colleagues.
[247] First and foremost, although we generally agree on the relevant legal
principles, we are
divided on the assessment of the evidence surrounding Justice Girouard’s
testimony and on the application of the law to the facts in evidence before the
Committee. A witness’ testimony is assessed on the basis of reliability and
credibility. Such an assessment must also provide some allowance for normal
human error. In my view, the five or six inconsistencies identified by Chief
Justice Crampton and Me LeBlanc were predictable, since they are of the kind that can be
expected in a testimony that lasted five (5) days, amounted to more than eight
hundred (800) pages of transcripts, and focused on a brief exchange lasting
eighteen (18) seconds that occurred almost five (5) years ago. From my own
experience, I can say that it is rare for a witness, in similar circumstances,
to give evidence that is one hundred percent (100%) accurate. There will always
be some inconsistencies.
[248] As specified earlier, the Committee was unable to
conclude, on the basis of the evidence
submitted, that the object which Mr Lamontagne slipped to Me Girouard was cocaine. According
to these two witnesses, they exchanged a note regarding either movie rentals or
Mr Lamontagne’s tax matter. For them, it was an insignificant event that evoked
no specific personal recollection of the meeting. Of course, there was the
video recording. Unfortunately, this recording had no sound track. The absence
of a sound track greatly hampered their exact recollection of the exchange. In
my view, such a situation diminishes the evidential value of their testimony
and makes it more difficult to draw definitive
conclusions.
[249] Although I acknowledge that there
are some inconsistencies,
errors or weaknesses in Justice Girouard’s
testimony, I find that they affect the reliability of the testimony much more
than the credibility of the witness. I consider that the inaccuracies
identified by my colleagues can be the result of being nervous about
testifying, or be mere oversights attributable to the passage of time or a
genuine willingness to provide explanations or details regarding a prior
response. In short, in my opinion, such inaccuracies, when considered
separately or as a whole, do not
give rise to any concrete doubt about the credibility of Justice Girouard’s testimony.
Furthermore, I
consider that these inaccuracies are not so serious or numerous to warrant a
recommendation for removal or to bring a further count against Justice
Girouard. More specifically, I provide the following comments on the
inconsistencies identified by my colleagues.
[250] The payment made directly to Mr Lamontagne: In his letter
of January
2013
to the Executive Director of the Council, Justice Girouard wrote
that he purchased movies directly from Mr Lamontagne because he did not want
adult movies to appear on his customer file. In his testimony before the
Committee in May 2015, Justice Girouard specified that he purchased all kinds
of movies from Mr Lamontagne, but rarely adult movies. My colleagues consider
that there is a significant contradiction or inconsistency between Justice
Girouard’s letter to the Executive Director and his testimony before the Committee.
I do not share their view.
[251] Justice Girouard did not
think it was necessary to describe all his movie
rental habits to the Executive Director of the Council.161 The evidence also
shows that since Me Girouard was a special client of Mr Lamontagne’s movie rental
business, the latter would personally offer
Me Girouard new releases of all sorts that were not yet available in
his store.162 This also explains why Me Girouard would often
deal directly with Mr Lamontagne instead of the cashier
of the movie rental store. In my opinion, the explanations provided
by Justice Girouard are plausible and credible.
[252] The reason why Justice Girouard
slipped money under the desk pad: At the beginning of
the hearings, during the in camera session,
Justice Girouard gave two reasons to explain why he slipped money under the
desk pad: the first, so that it would not be obvious he was giving money to a
trafficker; and the second, that he was acting out of habit. My colleagues
consider that these two explanations are contradictory or inconsistent. I do
not share their view. There can be more than one reason to explain an action.
Near the end of his cross-examination by the independent counsel, on May 14,
2015, Justice Girouard confirmed that there were two reasons to explain his action163:
[TRANSLATION]
“Q. So, in that instance
where we see you, was
it out
of habit,
or to avoid being seen giving money to a trafficker?
A. Well, I think it was
a bit of both, but mostly
out of habit.”
[253] The moment when Justice Girouard
and Mr Lamontagne began to discuss the tax matter: In his testimony at the in camera hearing, Justice Girouard
stated that, during their entire
meeting
of September 17, 2010, Mr Lamontagne and him discussed only the tax matter. He
added that he may have also talked about the payment for previously viewed
movies, but only for a few seconds.164 In deference to my colleagues, I consider that this is not a
contradiction nor an inconsistency. It is merely a further detail provided by
Justice Girouard. In my opinion, this part of his testimony is of little
significance in this matter and is in no way an indication of false testimony.
[254] The content of the note – the settlement amount: Mr Lamontagne
testified that he had no recollection
of the content of the note, but assumed that it was an invoice for movies.
Justice Girouard stated that the note contained two pieces of information: the
amount to settle the tax matter and the name of the lender. Although Mr
Lamontagne was probably aware of the settlement amount, Justice Girouard
testified that he needed to know how much Mr Lamontagne had to borrow and the
name of the lender. My colleagues chose to accept the version of the facts
provided by Mr Lamontagne, an imprisoned drug trafficker, instead of the one
given by Justice Girouard. I do not share the opinion of my colleagues.
[255] Mr Lamontagne’s testimony regarding
the content of the note is far from being conclusive or decisive – he has no
recollection of it, but he thinks it was an invoice for movies. From Mr
Lamontagne’s own testimony, it can be concluded that Justice Girouard’s version
of the facts may be the correct one. I also note that, even though they
accepted Mr Lamontagne’s version of the facts, my colleagues also question his
credibility, at paragraph 204, where they state that the video recording does
not show Mr Lamontagne using a pen to write a note. All in all, and unlike my
colleagues, I am not prepared to accept Mr Lamontagne’s version of the facts,
let alone prefer it to Justice Girouard’s version.
[256] The content of the note – the message saying [TRANSLATION] “I’m under surveillance, I’m being bugged”: My colleagues
are of the opinion that there appears to be
a substantial inconsistency between:
(i)
what is written in Me
Doray’s summary of August 13, 2013, where Justice Girouard is said to
have told Me Doray that the note he
received from Mr Lamontagne contained a message saying [TRANSLATION] “I’m under
surveillance, I’m being bugged”;
(ii)
Justice Girouard’s testimony at the in camera hearing on the issue of
solicitor-client privilege, where he stated that the note may have contained a
message saying that Mr Lamontagne believed he was “under surveillance”; and
(iii)
the evidence given by Justice Girouard in his
main testimony, where he stated that there was no mention of surveillance in
the note. It was instead Mr Lamontagne’s behaviour that led Justice Girouard to
believe that Mr Lamontagne was under surveillance.
[257] Justice Girouard testified that Me Doray’s summary, which
was provided
to his counsel,
indicated that Mr Lamontagne had written on the note, among other things, a
message saying [TRANSLATION] “I’m under surveillance, I’m being bugged”.
Justice Girouard stated before the Committee that Me Doray must have misunderstood him, and that he
told him instead it was Mr
Lamontagne’s
behaviour which led him to believe that the latter was under surveillance165.
[258] My colleagues are of the view that, if Me Doray had incorrectly reported what Justice Girouard said, the latter would
have communicated with Me Doray to ask for an amendment. They state that “[I]n the absence of
evidence on this issue and of submissions from Justice Girouard’s counsel in
this regard”, they conclude that Justice Girouard never asked for an amendment.
With respect, I fear that such reasoning leads to a shift of the burden of
proof to Justice Girouard. It is important to remember that neither the first,
the subsequent or the final drafts of Me Doray’s
summary, nor the correspondence between counsel for Justice Girouard and Me Doray concerning the Doray report, were submitted in evidence to the Committee.
[259] We must review
the three different versions detailed above
regarding this issue. As to
version (i), I believe that we cannot rule out, on the basis of the evidence
submitted, the possibility that Me Doray did in fact incorrectly report what Justice Girouard said.
Justice Girouard testified that Me Doray had already made
amendments to the first part of his summary166. Nothing in the evidence allows us to
conclude that no amendments were required in the part of the summary concerning
the meeting with Justice Girouard. As to version (ii), it must be remembered
that Justice Girouard also said, in his testimony of May 5, that he was uncertain whether there was any mention
of surveillance in the note167.
Therefore, version (ii) may not be so inconsistent with version (iii).
[260] Finally, my colleagues find it
difficult to believe that Justice Girouard
read the first draft of the summary dated May 6, 2013, but that
he did not read the August 13, 2013 version. I must admit that I also find it
hard to believe this part of his testimony. In my view, Justice Girouard’s
explanation on this issue was weak and ambiguous. However, it is plausible that
Justice Girouard, as a result of being exhausted and discouraged after finding
out that the conduct review process would go forward168,
did not immediately read Me Doray’s summary of their meeting.
[261] The fact that Justice
Girouard did not read the note: The final suspicious element raised by
my colleagues concerns the fact that Justice Girouard did not immediately look
at the note. This can easily be explained. Let us remember that the video
recording has no sound track. As mentioned by Justice Girouard, Mr Lamontagne
may have told him that the note contained the information he was expecting to
receive while he was in his office.169 In my view, a negative inference should not be drawn from the fact
that the two men do not recall what they talked about five (5) years ago.
Certainly, the evidence shows that immediately after their meeting of September
17, 2010, Me Girouard contacted a Revenue Canada representative. This seems to be
evidence corroborating his version of the facts.
[262] I wish to make it
very clear that what I saw
on the video recording of September
17 seems shady to me. Even
Justice Girouard acknowledged it in his testimony: what is shown on the video
looks [TRANSLATION] “suspicious”. Although the video recording could certainly cast
doubt
on the explanations provided by Justice Girouard, I cannot conclude that his
explanations are false. The fact remains that the independent counsel was
unable to provide the Committee with clear and conclusive evidence regarding
the object that was exchanged and, therefore, the true nature of the
transaction that was recorded on video. Although it is true that there are some
inaccuracies in Justice Girouard’s testimony, it is important to make a
distinction between a version of the facts that is disbelieved and one that is
deliberately fabricated. As the Court of Appeal of Quebec stated in Bureautique Nouvelle-Beauce inc. c. Compagnie d’assurance Guardian du
Canada170,
[TRANSLATION] “[…] what is untrue is not necessarily deceitful.”
[263] The second reason why
I cannot subscribe to the position
taken by my colleagues is that, in my humble
opinion, the evidence of unthruthfulness, raised by my colleagues, is not
sufficient in law to recommend removal. Generally, the assessment of a
witness’s credibility is used to determine whether that person should be held
liable. In the present matter, the conclusion regarding Justice Girouard’s
credibility is not being used to determine whether the allegations against him
have been made out, since all such allegations were dismissed by the Committee.
Instead, my colleagues are using their assessment of Justice Girouard’s
credibility at the hearing to recommend his removal from office.
[264] In my opinion, in order
to conclude that Justice Girouard deliberately attempted to mislead the Committee or that he lied
during a disciplinary process, there needs to be more evidence than simply the
Committee’s credibility assessment of Justice Girouard. There needs to be
additional evidence that is independent of the impugned testimony, such as in
instances of fabricated alibi or
perjury. As Justice Moldaver wrote in R. c. Nedelcu171, at para.
23:
“While it is
true that Mr. Nedelcu’s inconsistent discovery evidence might lead the triers
of fact to reject his trial testimony, rejection of an accused’s testimony does
not create evidence for the Crown – any more than the rejection of an accused’s
alibi evidence does, absent a finding on independent evidence, that the alibi
has been concocted. (See R. v.
Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445,
at paras. 61-67.) As Arbour J. observed at para. 67 of Hibbert:
A disbelieved
alibi is insufficient to support an inference of concoction or deliberate
fabrication. There must be other evidence from which a reasonable jury could
conclude that the alibi was deliberately fabricated and that the accused was
involved in that attempt to mislead the jury.”
[265] I find support for my analysis in
decisions relating to judicial ethics, such as Therrien172 and Landreville173. In Therrien, there was factual evidence of
a false statement made in the form submitted to the selection committee, being
the fact of deliberately failing to disclose a criminal record to the selection
committee. Similarly, in Landreville,
there was also indisputable evidence of a lack of integrity. There was evidence
of a fraudulent disposal of shares and an obvious conflict of interest.
[266] In the opinion of
my colleagues, there is
independent evidence that Justice Girouard
deliberately attempted to mislead the Committee. With all due respect, the
evidentiary elements they rely on do not meet the standard of independent
evidence. In order to establish that a false statement has been made, the Doray
report and Me Doray’s
testimony would have had to be submitted in evidence. In my opinion, the
evidence given by Mr Lamontagne , an imprisoned drug trafficker, is insufficient.
The fact that the video recording never shows Mr Lamontagne writing a note is
inconclusive. The Committee only viewed brief scenes of the video recording. Mr
Lamontagne may have written the note before the first scene that the Committee
viewed. All in all, in my opinion, there is no question that there needs to be
evidence, on a balance of probabilities, showing that the contradictions or
inconsistencies were intentional and fabricated. In my view, there is no
sufficient independent evidence that would lead me to conclude that Justice
Girouard deliberately attempted to mislead the
Committee.
[267] An Inquiry Committee may consider an allegation
only in cases where the
matter may be serious
enough to warrant removal, as provided for under subsection 1.1(3) of the By-laws. As I previously mentioned, I am of
the opinion that the inconsistencies, errors or weaknesses in Justice
Girouard’s testimony are not serious enough to give rise to any concrete doubt
about his credibility. Consequently, I am not convinced, on the basis of the
evidence submitted, that the alleged misconduct suggested by Chief Justice
Crampton and Me LeBlanc meets the
standard to support a further count being brought against Justice Girouard.
[268] Another point. My colleagues
recommend that, alternatively, a
further count be brought against Justice Girouard. I do not
agree with their recommendation. However, they suggest that such an inquiry not
be conducted by this Committee. I agree with them on this last point. I am concerned that we, members of the
Committee, would be in conflict of interest if we were to continue this
inquiry, since such a further count would be the result of an alleged
misconduct having occurred during the inquiry. By concluding that there is
sufficient evidence to bring a further count against Justice Girouard, my
colleagues have acted, in a way, as a Review Panel deciding that a further
inquiry is justified. After hearing the evidence submitted, my colleagues and I
have also expressed our opinion on this matter.
[269] In my humble opinion, just
as members
of the Review Panel are not
eligible to be members of the
Inquiry Committee, members of our Committee cannot participate in any deliberations
regarding such a further count: By-laws,
paragraph 2(3)(b) and section 11(2).
These provisions of the By-laws demonstrate
that the statutory regime governing inquiries is sensitive to the issue of
reasonable apprehension of bias.
[270] My last point relates
to the recommendation proposed
by my colleagues to recommend
the revocation of Justice Girouard despite the fact that our Committee
dismissed all allegations against him. In my humble opinion, in the present
case, we cannot impose a consequence for a misconduct that was not part of the
Notice of Allegations. In my view, procedural fairness requires, if there is
sufficient evidence of misconduct, that Justice Girouard be given an
opportunity to respond to the issues raised by my colleagues.
[signed: R.
Chartier]
THE HONOURABLE RICHARD CHARTIER
Chairperson of
the Inquiry Committee
Chief Justice of Manitoba
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