As expected, the Canadian Judicial Council has today concluded that the majority's decision recommending Justice Girouard's removal based on his testimony in his judicial misconduct hearing is untenable. Accordingly, the Council has recommended that Justice Girouard not be removed from office.
Today's decision affirms one of the fundamental principles in judicial misconduct proceedings, namely, a judicial officer can not be removed from office for matters which were not first the subject of a proper complaint and investigation by a review body with a full opportunity to respond in a hearing.
In Ontario the leading case on this fundamental point is Hryciuk v. Ontario 1996 Canli 4013 (ONCA). Simply put - a judicial officer can not be removed from office on the basis of how he or she testifies or decides to conduct their defence. The following excerpts from the Report of the Canadian Judicial Council to the Minister of Justice explains in clear and simple language the underlying rationale for this:
[42] In this Report, we do not consider the majority's conclusion that the judge attempted to mislead the Committee by concealing the truth and that such conduct places him in a position incompatible with the execution of his office. The Council takes this approach because the judge was not informed that the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.
[43] Because the judge was entitled to this kind of notice and did not get it, the Council does not know whether the majority's concerns would have been resolved had it received an informed response to them from the judge.
Today's decision affirms one of the fundamental principles in judicial misconduct proceedings, namely, a judicial officer can not be removed from office for matters which were not first the subject of a proper complaint and investigation by a review body with a full opportunity to respond in a hearing.
In Ontario the leading case on this fundamental point is Hryciuk v. Ontario 1996 Canli 4013 (ONCA). Simply put - a judicial officer can not be removed from office on the basis of how he or she testifies or decides to conduct their defence. The following excerpts from the Report of the Canadian Judicial Council to the Minister of Justice explains in clear and simple language the underlying rationale for this:
[42] In this Report, we do not consider the majority's conclusion that the judge attempted to mislead the Committee by concealing the truth and that such conduct places him in a position incompatible with the execution of his office. The Council takes this approach because the judge was not informed that the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.
[43] Because the judge was entitled to this kind of notice and did not get it, the Council does not know whether the majority's concerns would have been resolved had it received an informed response to them from the judge.
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