In our November 27, 2018 article, we commented on the Federal Court’s decision in Girouard v Canada (Attorney General), 2018 FC 865, which determined that a recommendation by the Canadian Judicial Council for the removal of a judge is subject to judicial review. On appeal, this decision was recently upheld by the Federal Court of Appeal (2019 FCA 148).
Background
The issue arose as a result of a report by the CJC that recommended the removal of the Honourable Justice Michel Girouard of the Superior Court of Quebec. The CJC had initiated an inquiry after it received a complaint and a video that depicted Justice Girouard purchasing an illicit substance from one of his clients prior to his appointment on the bench. As mentioned in our previous article, Justice Girouard brought applications seeking judicial review of the CJC’s reports. The CJC brought a motion to strike the applications for judicial review. The Federal Court, however, held that the CJC and its Inquiry Committee are subject to judicial review as they constitute a federal board, commission or other tribunal pursuant to the Federal Court Act. The CJC appealed this decision to the Federal Court of Appeal.
Federal Court of Appeal
The CJC challenged the Federal Court’s holding in respect of the source and nature of the powers that the CJC exercised. The CJC argued that its powers were inherent in the way its members carried out their roles and that its powers derived from the Constitution, rather than under an Act of Parliament.
The Court of Appeal, however, affirmed the Federal Court’s determination that the CJC’s powers were solely derived from the Judges Act and held that the CJC’s investigative powers are purely statutory. The Court of Appeal rejected the CJC’s argument that the powers and jurisdiction of its members are judicial in nature. It held that the Federal Court was correct in concluding that the power exercised by the CJC was investigative in nature as set out under s. 60(2)(c) of the Judges Act.
The Court of Appeal emphasized the distinction between investigative and judicial powers. For example, it pointed to an investigative committee’s primary function being to seek and collect evidence, whereas a judge only weighs evidence submitted by the parties. The Court of Appeal also commented that it was not incongruous for a body formed by judges to be subject to judicial review.
The CJC argued, in the alternative, that the Federal Court failed to consider that a person appointed under s. 96 of The Constitution Act, 1867, such as a member of the provincial superior courts, would be excluded from the Federal Courts Act’s definition of a federal board, commission or other tribunal. The CJC relied on the fact that more than half of its members represented provincial superior courts. The Court of Appeal rejected this argument and agreed with the Federal Court’s conclusion that the judges sitting on the CJC carried out an administrative role, had jurisdiction under the Judges Act and the CJC’s powers as a committee are independent from the status of its members as judges.
The Court of Appeal emphasized that a party relying on a textual argument must demonstrate that a proposed interpretation is specifically reflected in the language of the statute and consistent with the context and purpose of the statute. It is insufficient for the CJC to point to a possible interpretation. Subsection 63(4) of the Judges Act specifies that the CJC “shall be deemed” to be a superior court, but this classification is limited to when it is making an inquiry or investigation. The Court of Appeal focused on this limitation and the “deemed to be” text as textual evidence that Parliament’s intention was not to provide the CJC with all of the attributes of a superior court. Similar to the point emphasized by the Federal Court, it commented that Parliament could have explicitly classified the CJC as a superior court if it had intended to do so.
The Court of Appeal also stressed that the CJC would maintain its jurisdiction to determine whether a superior court judge should be removed and the Federal Court would only address, on judicial review, the procedural fairness and legality of the CJC’s decisions.
Conclusion
The Federal Court of Appeal dismissed the appeal, upholding the Federal Court’s conclusion that the decisions of the CJC and its Inquiry Committee are subject to judicial review.
Christopher Wirth is a Partner and Armin Sohrevardi is a Summer Student with Keel Cottrelle LLP.