COURT OF APPEAL

CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC

No: 200-09-009462-174

(2015-CMQC-105) DATE: July 12, 2018

CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q.

ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. MARIE-FRANCE BICH, J.A. JACQUES J. LEVESQUE, J.A.

IN THE MATTER OF: THE HONOURABLE R. PETER BRADLEY

Judge of the Court of Québec MINISTER OF JUSTICE AND ATTORNEY GENERAL OF QUEBEC

Petitioner

R. PETER BRADLEY

Plaintiff v.

CONSEIL DE LA MAGISTRATURE DU QUÉBEC

Defendant and ATTORNEY GENERAL OF QUEBEC

Impleaded Party

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REPORT OF THE COURT OF APPEAL*

[1] The Minister of Justice of Quebec has requested the Court to issue a report pursuant to s. 95 of the Courts of Justice Act, CQLR, c. T-16 concerning the conduct of

Judge R. Peter Bradley, of the Court of Québec.

[2] In the course of the inquiry before the Court, Judge Bradley has filed an application for judicial review in which he challenges the decision of the inquiry committee which was convened under that Act.

ON THE APPLICATION FOR JUDICIAL REVIEW, THE COURT:

[3] For the reasons of the Chief Justice, with which Hilton and Levesque, JJ.A. concur, and for the separate reasons of Bich, J.A., with which Dutil, J.A. concurs, as well as for the concurring reasons of Hilton, J.A.,

[4] DISMISSES the application.

ON THE REQUEST OF THE MINISTER OF JUSTICE FOR A REPORT, THE COURT:

[5] For the reasons of the Chief Justice, with which Bich, Dutil and Levesque, JJ.A. concur,

[6] CONCLUDES that Judge Bradley has breached articles 1, 6 and 8 of the Judicial Code of Ethics,

[7] RECOMMENDS that the Minister of Justice not to remove Judge Bradley from office,

[8] DECLARES that a reprimand was required,

[9] CONFIRMS the sanction of a reprimand imposed by the minority members of the inquiry committee.

* This report has been signed in both official languages of Canada.

200-09-009462-174 PAGE: 3 [10] In his dissenting reasons, Hilton, J.A., recommends that the Minister remove Judge Bradley from office.

NICOLE DUVAL HESLER, C.J.Q.

ALLAN R. HILTON, J.A.

JULIE DUTIL, J.A.

MARIE-FRANCE BICH, J.A.

JACQUES J. LEVESQUE, J.A. Mtre Louis Masson Mtre Bénédicte Dupuis Joli-Coeur Lacasse For R. Peter Bradley

Mtre Dominique Rousseau Lavoie Rouseau For the Minister of Justice and Attorney General of Quebec Mtre Pierre Laurin Tremblay Bois Mignault For the Conseil de la magistrature du Québec Mtre François LeBel Accompanied by: Mtre Jean-Benoît Pouliot and Mtre Victoria Brown Langlois avocats Counsel designated to the assist the Court of Appeal Dates of the hearing: November 21, 22 and 23, 2017

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REASONS OF DUVAL HESLER, C.J.Q.

[11] This inquiry arises from a recommendation for dismissal made by the majority of

the inquiry committee seized with a complaint brought against Judge R. Peter Bradley1 in the context of the Court of Québec Small Claims Division case of Drolet c. Drolet. Two committee members dissented with respect to the sanction.

[12] The complaint filed by the plaintiff Drolet alleged the following misconduct on the part of Judge Bradley:

- Failing to show him any respect; - Criticizing the most important aspects of his case;

- Ignoring his replies;

- Criticizing him for having sought to produce proof of payment (with respect to

hardship and inconvenience);

- Insisting that he negotiate with the defendant Drolet who was in bad faith given his initial reaction;

- Showing only disdain towards him;

- Taking pleasure in adjourning the matter, thereby wasting his time.

[13] With respect to breach of the Judicial Code of Ethics,2 the inquiry committee unanimously concluded that Judge Bradley had deliberately refused to hear Mr. Drolet’s case (and thus to fulfill the duties of his office), under the pretense that he sought to reconcile the parties in circumstances which did not lend themselves to doing so and where the parties had clearly indicated their intention to proceed and nothing justified adjourning the hearing.

[14] The inquiry committee concluded that Judge Bradley had contravened ss. 1 and 6 of the Code of Ethics which provide that:

1. The judge should render justice within the framework of the law.

1 In Re Bradley, 2015 CMQC 105. 2 CQLR, c. T-16, r. 1.

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6. The judge should perform the duties of his office diligently and devote himself

entirely to the exercise of his judicial functions.

[15] The inquiry committee also held that Judge Bradley had made inappropriate and hurtful remarks towards the complainant, had failed to respect his duty to welcome and hear the parties, and had adopted a rigid attitude which offended the proper administration of justice, thereby contravening s. 8 of the Code of Ethics:

8. In public, the judge should act in a reserved, serene and courteous manner.

[16] The inquiry committee was divided, however, with respect to the appropriate sanction.

[17] On one hand, the majority – composed of Judge Côté, Mtre Jobin-Laberge and Mr. Sumu – was of the opinion that it was appropriate to dismiss Judge Bradley, and proposed that the Conseil de la magistrature recommend that the Minister of Justice and Attorney General file a request with the Court of Appeal pursuant to s. 95 CJA.

[18] The events recounted above constitute a second offence. The majority qualified this repeat offence as being “[TRANSLATION] serious” and concluded that dismissal was required.

[19] Judges Audet and Hébert were of a different mind with respect to the consequences that should flow from this second offence. They were of the opinion that, in the circumstances, recommending dismissal was not a fair, just and proportionate sanction – despite the seriousness of the breaches and the repeat nature of the offence. In Judge Audet’s view, there was still hope that Judge Bradley would improve in the future and revise his understanding of the legislature’s intent to facilitate settlement of disputes.3 For his part,

Judge Hébert highlighted that the threshold for seeking dismissal was the intimate conviction that it would be impossible for the judge to perform the duties of the office and that the principle of security of tenure no longer applied. This sanction is reserved for situations of exceptional gravity and, without minimizing the breaches established here, the former did not, in his view, reach this threshold.4 Like Judge Audet, Judge Hébert saw a reasonable possibility that a reprimand would sound an alarm for Judge Bradley to improve his behaviour without delay.5

3 Book of Exhibits, Tab 25, Reasons of Judge Pierre E. Audet, para. 7. 4 Book of Exhibits, Tab 25, Reasons of Judge Martin Hébert, para. 7 and 9. 5 Id., para. 10.

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BACKGROUND

[20] Before delving into the detailed evidence led before the Court during the inquiry set out at s. 95 of the Courts of Justice Act,6 it is fitting to list the various components of the evidence:

1) The recording of the Small Claims Division hearing before Judge Bradley.

2) The recording of Judge Bradley’s testimony before the inquiry committee, subject to an objection of irrelevance raised by his counsel, rendered moot when Judge Bradley essentially repeated before this Court what he had already said to the inquiry committee.

3) The testimony of Judge Bradley before this Court.

4) A large number of exhibits, including two filed at the hearing, subject to an objection

of irrelevance which will be dismissed.

[21] The following extracts from the hearing before Judge Bradley are illustrative.

[22] This is how things began:

[TRANSLATION]

The question I’m asking you is: are you prepared for me to suspend the hearing

so that you can go talk to each other frankly?7

[23] A beginning immediately followed by:

[TRANSLATION]

Because this isn’t a fantastic amount, you know, this story, and you could easily

find common ground.

Obviously, now. We’re going to have to – look at this, here, because in the four

hundred and seventy two dollars ($472), there are… there are items that wouldn’t be

granted, anyways, you know, that’s for sure, and that’s just the getting started…8

[24] Judge Bradley continued:

[TRANSLATION]

6 Courts of Justice Act, CQLR, c. T-16. 7 Transcripts, January 19, 2016, p. 7. 8 Ibid.

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Then, don’t tell me that you did it before, ok, don’t tell me about what happened

before, I don’t want to know, we’re talking about now.

[…]

So, if you accept to agree to meet and to reach an agreement, well, as I said earlier,

then that will be a document which, after the Court has examined it, you can just

keep to yourselves, saying: we agree to pay, in accordance with the agreement, X

amount to Mr. X, between now and X date. And that’s it, the file is settled and we

don’t have to talk about it anymore.

Is that understood?9

[25] The discussion continued. Once the plaintiff had explained that he was claiming postal expenses because the defendant had refused to sign an acknowledgement of receipt for the demand letter, the following remark was made:

[TRANSLATION]

Look Sir, you, uh, clearly don’t get it, ok, you don’t get it, ok, huh?10

[26] Then, the suggestion to settle came back up, after a remark that the plaintiff’s claim was worth at most “a round sum of”11 $466, made in the following fashion:

[TRANSLATION]

Now, if you accept to go meet each other to discuss, on the other side, to see if a

compromise is possible, you might, eventually, look at this thing together to see if

there isn’t something you can agree on, on both sides.

Do you understand what I’m telling you?12

[27] The defendant responded affirmatively. The Judge turned again to the plaintiff:

[TRANSLATION]

The Court: And you, do you understand what I’m telling you?

The plaintiff, Michel Drolet: I understand. I already spoke to him on the phone.

9 Id., p. 11 and 12. 10 Id., p. 19. 11 Id., p. 32. 12 Id.

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The Court: I’m not talking about – put the phone aside, let go of what happened

last month, last year – we’re someplace else now, we are here today, right, today

and, you know, that’s what I’m talking about.

But it’s up to you – if you want to think you have the right to all that in full, that’s

your choice to believe you have a right to all that, but look out, there, you’re going

to have to bring evidence that they committed a fault, and then that the fault they

committed, you’re going to have to identify it, the fault, it’s going to have to be

identified, the fault, and then it’s you that has the burden of proof.13

[28] Addressing the plaintiff, Justice Bradley continued:

[TRANSLATION]

So, there you go!

If you think you have everything you need to proceed today, we can proceed today,

I have no problem with that.

[…]

That being said, I return to my proposal, my suggestion: would you be willing, both of

you, for me to suspend, right now, just suspend, there, so that you can go talk to each

other in another room, to see if you can reach a reasonable compromise?14

[29] The plaintiff confirmed a little later that he had understood. The judge continued:

[TRANSLATION]

Third option: you come back: “We couldn’t agree, but maybe we’re not ready to

proceed today, maybe I gotta look closer at my file, to see if I’m able to lead all the

evidence necessary, according to the law, to prove fault and causation.

Then, you might say: “Well, for my part, maybe I would like to have an adjournment

so I can consult a lawyer in order to see what kind of evidence I need here.15

[30] The exchange ended shortly thereafter:

[TRANSLATION]

Is that ok, it’s clear for everybody what the three (3) options are, ok?

13 Id., p. 32, 33. 14 Id., p. 36. 15 Id., p. 38.

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One: you go talk to each other to see if you’re able to agree.

If you agree, that’s good, it’s over, we won’t talk about it anymore.

If you can’t agree, well then, you have two choices left:

One: we proceed, we proceed with the warning I gave you or you tell me: “Oh!

Well, we want an adjournment so we can take a better look at our file.”

[31] And the Judge persisted:

[TRANSLATION]

You lose nothing, it gives you the chance to better prepare yourselves to meet the

burden of proof and the evidence you have to present; is that clear?

That works?

You understood everything I just said?

The plaintiff, Michel Drolet: Yes, I understood.

[…]

I want to proceed because I already cons…

The Court: Yeah, yeah, let’s proceed.

The plaintiff, Michel Drolet: consulted a lawyer…16

[32] Judge Bradley then criticized the plaintiff for having cursed in front of him. When the latter tried to explain, twice, that he was simply stating the response17 he had received from the defendant when trying to discuss the situation, his explanation fell on deaf ears:

[TRANSLATION]

The Court: That is the last time I will hear you curse here.

The plaintiff, Michel Drolet: Ok. But that’s what he said to me, ok.

The Court: Eh?

16 Id., p. 40 and 41. 17 Id., p. 42.

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The plaintiff, Michel Drolet: I’m sorry, ok.

The Court: You’re going to learn to shut up.

The plaintiff, Michel Drolet: Yeah.

The Court: A reasonable person, especially at your age, should be capable of

a bit more moderation.

The plaintiff, Michel Drolet: I’m sorry, I repeated what he said to me.

The Court: It’s a good thing you apologized!

Right, it is my pleasure to continue; that’s what you want to do?

Let’s proceed.

I insist on telling you one thing, though: it’s a bad idea not to try to sit yourselves

down and talk to each other, not a good idea, I have to tell you.

And, especially with the new Code of Procedure… you know, play time is over.

Parties that come here just trying to tighten the screws on each other because

they’re unhappy and “I didn’t like his attitude” and all that, ta-ta-ta-ta, that’s over.

Taking the Court’s time just to teach someone a lesson, it doesn’t work like that.

But given the file was opened in fourteen (14), we’ll proceed, but next time it… it

won’t be like that.

[…]

It won’t work, there, I’m telling you ahead of time, ok, you have not met your burden

of proof.18

[33] After several remarks from Judge Bradley, the plaintiff directly suggested to the defendant that they talk. The latter, however, declined, saying he had understood very clearly. He still wanted to file a document – a location certificate. That triggered the following exchange:

18 Id.

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[TRANSLATION]

You understood so well that the answer is no, ok, it will be adjourned and it will be

at your [the defendant’s] expense.

[…]

If you don’t want to sit down, ok. Me, I’m not going to proceed today, because

everybody has to file their exhibits before the trial.19

[34] The defendant expressed his assent. The judge continued:

[TRANSLATION]

And, it’s been a long time, ok, that, that, it was clear, ok, uh, that’s it, it was clearly

indicated.

And ok, when you came here, it was in December, not twenty fifteen (2015), ok,

twenty fourteen (2014); nothing has happened since then.

The defendant: You’re right, Judge.

The Court: Yes, I know. Good. Ok… no – we are not proceeding, it’s off… it’s

official, there, you can show all your exhibits to the other side so that he may look

at them, that’s obvious.

The defendant: It’s just one (1) sheet of… of paper.

The Court: It’s not “just” one (1) sheet! No, no. One (1) single piece of paper

can change a lot of things.

The defendant: Perfect.

The Court: Hey, it can change a lot of things.

The defendant: Hum, hum.

The Court: Sometimes, ok, the thing will be this thick, and there’s no issue;

sometimes it’s one (1) sheet, and still, there’s a problem – it depends.

[35] The hearing ended with a long exhortation to settle20 and the trial was adjourned, with legal costs against the defendant.

19 Id., p. 50. 20 Id., p. 55 et seq. The entire hearing in the Small Claims Division is reproduced in Schedule 1 to this report.

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[36] Before the inquiry committee, Judge Bradley explained that the new Code of Civil Procedure required of him to attempt to have the parties settle their dispute. Moreover, he believed the plaintiff would benefit from an adjournment because the defendant wished to produce a location certificate that have not been filed.

[37] Before us, Judge Bradley restated the explanations he gave to the inquiry committee with respect to his conduct. He, admitted however, that he had been wrong to

criticize the plaintiff for having cursed in front of him, when the plaintiff had immediately told him that he merely was repeating what the defendant had said. He has, in addition, demonstrated openness towards correcting his behaviour.

ANALYSIS OF THE JUDGE’S BEHAVIOUR

[38] Before going into the analysis of Judge Bradley’s behaviour, it is useful to remember the particular context within which judges are called upon to perform their duty in the Court of Québec’s Small Claims Division.

[39] While it is true that judges who preside over hearings in a court of justice generally must demonstrate openness, patience and humility, these qualities are even more important in the Court of Québec’s Small Claims Division, where parties are not represented by counsel. The task at hand there requires even more from judges, as they are called upon to fill a number of roles.

[40] The judge must first welcome the litigants with benevolence. For most litigants, this will be a first encounter with judicial authority. For all, it will be an important moment in time – their “day in court”.

[41] The judge must also understand psychology: the debate should be limited to the

problem raised and the judge must avoid aggravating personal conflicts between the opposing parties. S/he must be courteous, while remaining mindful of the need to encourage the parties to respect applicable rules.

[42] A “small claims” judge is also something of an arbitrator, a moderator and an educator. Litigants may bring cases without fully understanding the legal basis for doing so. The opposing party, convinced of the merit of its own position – rightly or wrongly – will insist on winning. The person presiding the hearing must therefore avoid ruffling feathers while showing the parties what the legal limitations to their arguments consist of. This is not always an easy task.

[43] The judge must also be a good jurist. The debate before the judge may not set out the law by which it is governed. The judge must seek to understand the arguments advanced even when these may not be clearly or adequately expressed.

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[44] One must acknowledge that the judge presiding over hearings in the Small Claims Division must carry out particular, difficult judicial functions. This role, along with the judge’s manner of being and proceeding, sets the stage for building the confidence of citizens in the administration of justice. A litigant who comes before the Small Claims Division trusts that this will be an opportunity to vindicate his or her rights. S/he must made to feel welcomed and treated with dignity and respect.

[45] Judge Bradley’s conduct in this case cannot however be justified by the mere fact that he was presiding over a hearing in the Small Claims Division and had to conciliate the two parties. The courts’ mission in encouraging mediation and conciliation in no way changes the fact that these modes of settlement cannot be imposed upon the parties. The circumstances must lend themselves to mediation and the parties must consent to mediation. It is not a question of forcing the parties to engage in what may be a dead-end process. One might question whether, on the day of the hearing, Judge Bradley was even attempting to conciliate the parties within the meaning of art. 540, para. 3 C.C.P., given that instead of helping them to find common ground, he chose instead to endlessly exhort them to settle on their own, outside of his presence.

[46] In sum, Judge Bradley wants to justify his position by invoking the new provisions of the Code of Civil Procedure, according to which dispute resolution processes are part and parcel of civil justice for the purpose of maintaining social peace. He also emphasized the preliminary provisions as well as, arts. 9, 18 (concerning proportionality), 540 and 560 of the new Code, which he says governed his conduct.

[47] The provisions of the new Code may not be used to justify behaviour that constitutes serious ethical misconduct, made evident in this case by the mere reading of the transcripts and listening to the recording. Adjourning the hearing was not an appropriate solution to the parties’ refusal to lend themselves to a pointless encounter. Judge Bradley may have thought his role was to verify whether the parties were open to compromise but, once this had been done – several times in this instance, – that role was surely not, out of impatience or for any other reason, to refuse repeatedly to proceed with a hearing for which the parties were prepared and which could not be adjourned without causing them unnecessary inconvenience.

[48] Not only did Judge Bradley impose an adjournment without the parties asking him to do so and without any reasonable cause, he also recused himself from the case. Today, he asserts that this was to safeguard the impartiality of the trial, but this was not truly the issue as he had not engaged in any mediation and so could not have compromised his impartiality. If he then believed or now believes that his remarks at the hearing could give rise to an apprehension of bias,21 this simply illustrates how it is his behaviour, and nothing else, that brought the course of justice to a halt that day.

21 Indeed, in his written complaint, the complainant said he did not wish to proceed before Judge Bradley.

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[49] Before the inquiry committee, Judge Bradley argued that there had been no ethical misconduct and that he should not be reprimanded in any way. Before this Court, he initially stayed this course, arguing he shouldn’t be reprimanded and, further, “respectfully” insisting that the inquiry committee’s decision was illfounded. Questioned as to what it was that he understood the inquiry committee to have found he had done wrong, he responded that he was being reproached for having given undue weight to conciliation and for having used that as a pretext to adjourn cases and not to hear them. Invited to expand on this, he acknowledged that his choice of words had been inappropriate and that his remarks had not been tempered. He further admitted that he should have done more to actually listen to the parties.

[50] Incidentally, this is a step in the right direction, a more judicious, more neutral attitude and a more appropriate tone. This openness to behaviour modification must be noted as it is a factor that may influence the Court’s recommendation as to the appropriate sanction.

[51] Nevertheless, I wish to state unequivocally that I share the inquiry’s committee conclusions with respect to Judge Bradley’s violations of the Judicial Code of Ethics.

[52] Before turning to the issue of sanction, however, it is fitting to address Judge Bradley’s application for judicial review of the inquiry’s committee decision, the Court having advised the parties that it would address that application within the present report issued pursuant to s. 95 CJA.

THE APPLICATION FOR JUDICIAL REVIEW

[53] Judge Bradley essentially attacks the validity of the proceedings that led to the present inquiry and asks the Court:

- To quash the Minister’s decision;

- To declare s. 269 CJA invalid to the extent that it allows for an inquiry committee to be composed of a majority of individuals who are not judges or who have not sworn an oath of office to recommend the dismissal of a Court of Québec judge;

- To quash the decision rendered by the inquiry committee;

- To quash the decision of the Conseil de la magistrature du Québec.

[54] The conclusions sought rest upon several grounds which, in light of the oral argument, must be reformulated as follows.

[55] First, Judge Bradley submits that because the decision to adjourn the hearing was a judicial act, it is not subject to disciplinary review. Consequently, the inquiry committee had no jurisdiction to consider this purely legal act.

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[56] Second, Judge Bradley attacks the inquiry committee’s composition for including non-judges and even one non-jurist.

[57] Third, Judge Bradley takes issue with the fact that some of the inquiry’s committee members were not required to swear an oath guaranteeing their independence and impartiality.

[58] Fourth, he alleges a violation of procedural fairness, namely that the possibility that he would be dismissed from office was never debated before the inquiry committee. He argues that the possibility of dismissal was not mentioned, which was unfair and violated his right to full answer and defence.

[59] Finally, he attacks the decision itself, arguing it was unreasonable and failed to apply the proper legal principles.

THE INQUIRY COMMITTEE AND ITS ROLE IN THIS CASE

[60] At this point, it is appropriate to consider the composition of the five-member inquiry committee established pursuant to s. 269 CJA. The inquiry committee was composed of five members of the Conseil de la magistrature du Québec, namely:

Judge Pierre E. Audet, Associate Chief Judge Danielle Côté, and Judge Martin Hébert, all three being judges of the Court of Québec;

Mtre Odette Jobin-Laberge, a lawyer; and

Mr. Cyriaque Sumu.22

[61] This inquiry committee filed its report on February 1, 2017. In the report, the inquiry

committee covered both Judge Bradley’s breaches of professional ethics and the appropriate sanction.

[62] Let us now consider the grounds Judge Bradley invokes in support of his application for judicial review.

WAS THE INQUIRY COMMITTEE COMPETENT.

[63] In Judge Bradley’s view, his decision to adjourn the hearing was one that fell squarely within his judicial powers and that was made in a very specific context.

[64] Among others sources, he draws support from Bettan c. Dumais23 which highlights that a large percentage of complaints to the Conseil concern the Court of Québec Small

22 Book of Exhibits, Tab 3. 23 Bettan c. Dumais, 2000 CMQC 55.

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Claims Division. Given that the presence of lawyers is prohibited in that division, there is no intermediary between the judge, the witnesses and the parties. The judge asks questions, seeks the different versions of the facts, and explains rules of evidence while also deciding issues of law, attempting to reconcile the parties, calling the parties to order as necessary, and taking notes, since the judge will have to render a written judgment explaining to the parties (both convinced they are right) the reasons behind his/her decision. This context must necessarily be taken into account in determining whether a

complaint is well-founded.

[65] What to make of this argument?

[66] Certainly, hearings before the Small Claims Division require enormous tact on the part of judges and they must be given significant leeway in the manner in which they choose to make their presence felt. However, this does not obliterate the judge’s duty to act with serenity and reserve. Here, however, Judge Bradley adopted an inappropriate tone and an attitude that was condescending, smug and disagreeable. He did not speak to the parties, rather he preached at them without listening to the answers they offered. The question is whether, when such remarks are made in the framework of a judicial proceeding, the judge is thereby immunised from review as to whether s/he has ethically fulfilled the duties of the office.

[67] The answer is obviously no. Judicial independence may not be invoked to treat parties with disdain, to ignore what they say, or to adopt an agenda that does not correspond to their needs. This first ground must fail.

[68] Judge Bradley also relies on Boilard to support the notion that judges called to preside over an independent and impartial hearing should not be subject to disciplinary action.24 He asks the Court, sitting in review, to hold that the facts did not lend themselves

to a public inquiry such as the one with which we are charged, and that the decision at the origin of the complaint is not subject to disciplinary review.

[69] It is worth noting that Boilard has nothing in common with the present matter. Judge Boilard recused himself after several months of a biker gang trial because he was of the view that the conduct of one of the defence lawyers had so undermined his authority that he could not realistically continue to preside the trial. The Supreme Court held that such a decision, an exercise of judicial discretion, was subject to only one form of review: an appeal.

[70] As Arbour J. highlighted in Moreau-Bérubé, in order to preserve judicial independence, the remarks judges make while conducting the hearings over which they preside must receive a high degree of protection. She also emphasized, however, that

24 Report of the Canadian Judicial Council to the Minister of Justice of Canada under s. 65(1) of the Judges

Act concerning Mr. Justice Jean-Guy Boilard of the Superior Court of Quebec, December 19, 2013.

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judges may not abuse their independence without exposing themselves to disciplinary review:

58 […] In some cases, however, the actions and expressions of an individual

judge trigger concerns about the integrity of the judicial function itself. When a

disciplinary process is launched to look at the conduct of an individual judge, it is

alleged that an abuse of judicial independence by a judge has threatened the integrity

of the judiciary as a whole. The harm alleged is not curable by the appeal process.

59 The New Brunswick Judicial Council found that the comments of Judge

Moreau-Bérubé constituted one of those cases. While it cannot be stressed

enough that judges must be free to speak in their judicial capacity, and must be

perceived to speak freely, there will unavoidably be occasions where their actions

will be called into question. This restraint on judicial independence finds

justification within the purposes of the Council to protect the integrity of the judiciary

as a whole. […]

[71] The remarks of McLachlin J. in MacKeigan v. Hickman that “judicial immunity is central to the concept of judicial independence”25 seem appropriately apt and remain entirely relevant today. Judge Bradley is wrong, however, in invoking judicial independence to justify misconduct while acting in his judicial capacity during the hearing over which he presided that generated this complaint. In this case, neither Judge Bradley’s independence nor his neutrality were compromised in any way except as a result of his own behaviour.

WAS THE INQUIRY COMMITTEE PROPERLY FORMED.

[72] Judge Bradley submits that the inquiry’s committee recommendation is invalid, due to the inquiry committee’s composition. Invoking the principle that only the judiciary may discipline its own members, he highlights that in this case two non-judges participated in the majority decision. He claims that this majority recommendation was central to triggering the dismissal process in this matter.

[73] This argument is based on a false premise. In a democratic society that seeks to be ever-more transparent, and where institutional conduct is subject to ever greater scrutiny, it is no longer accepted as true that only professional initiates can understand and resolve disciplinary matters.

[74] In Therrien,26 moreover, the Supreme Court recognized the legitimacy of the participation of non-judges on an inquiry committee. In addition, it should be remembered

25 MacKeigan v. Hickman, [1989] 2 S.C.R. 796, p. 830, Chief Justice McLachlin being then a puisny judge

of the Supreme Court. 26 Therrien, (Re), 2001 SCC 35.

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that the Conseil de la magistrature, to which the members of the inquiry committee belong, is composed of a significant majority of judges (12 of the 16 members). Most importantly, if an inquiry committee recommends dismissal, such dismissal can only occur after the Court of Appeal, having undertaken its own inquiry, decides that the complaint is well-founded and that the judge’s conduct justifies dismissal. The Court of Appeal is composed exclusively of judges and its report is essential to the process of dismissing a judge.27 It is appropriate here to cite the following passage taken from the Supreme

Court’s decision in Therrien:

[101] In these circumstances, the presence of persons who are not members of

the judiciary at a preliminary stage may seem valuable in that it may provide input

for the deliberations of the committee members and bring another perspective to

the perceptions that members of the legal profession (in the case of the lawyers)

and the general public (in the case of the other members) have of the judiciary. In

my view, and in the specific circumstances of this case, the composition of the

inquiry committee of the Conseil de la magistrature complies with the structural

principle of judicial independence and the rules of procedural fairness.28

[75] In 1995, Gonthier J., writing for the majority in Ruffo v. Conseil de la magistrature, had already noted that the presence of non-judges on an inquiry committee “ensure[s] that its membership is not monolithic.”29 In his 1987 text entitled The Judiciary in Canada:

The Third Branch of Government, Professor Peter H. Russel supported the presence of non-judges on provincial judicial councils:

Judicial councils have also become the principal means of dealing with complaints

about Canadian judges who are appointed by provincial and territorial

governments. There are some interesting differences between these provincial

and territorial councils and the Canadian Judicial Council. Their composition is

considerably more diverse. As table 7.1 shows, all of them include representatives

of the legal profession and all but Nova Scotia’s have provision for non-lawyers.

This better protects the public interest than a system which relies entirely on judges

to respond to complaints about fellow judges. Even though the chief judges of

these councils will normally play the lead role in screening and following up

complaints, the presence of non-judges on the councils provides more assurance

of an adequate response […]30

[76] Turning back to Therrien, it was in these terms that the Supreme Court rejected the judge’s argument that the inquiry committee was unconstitutionally formed:

27 Id., para. 42 and 45. 28 Id., para. 101. 29 Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, para. 60. 30 Peter H. Russel, The Judiciary in Canada: The Third Branch of Government, Toronto, McGraw-Hill

Ryerson Limited, 1987, p. 184.

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98 The appellant argues that the involvement of one of the four persons who

are not members of the judiciary in the decision-making process violates the

collective or institutional dimension of the structural principle of judicial

independence, in that only a body composed of judges may recommend the

removal of a judge. He relies on certain remarks by Lamer C.J. in Reference re

Remuneration of Judges of the Provincial Court, supra, at para. 120:

The guarantee of security of tenure, for example, may have a collective or

institutional dimension, such that only a body composed of judges may recommend

the removal of a judge. However, I need not decide that particular point here.31

[Emphasis added in Therrien]

[77] This passage speaks for itself and does not support Judge Bradley’s argument. In this regard, it is important to note that the report and recommendations issued by the inquiry committee put in place by the Conseil de la magistrature are but a preliminary stage in the process set out by the Courts of Justice Act. The Court of Appeal intervenes at the second stage, undertaking its own inquiry into the judge’s conduct and producing its own report. Thus, there can be no recommendation to dismiss a Court of Québec judge except by way of the highest court in the province. The preliminary nature of the inquiry committee’s report and the role the Court of Appeal plays subsequently are thus determinative in analyzing the constitutionality of the process.

[78] In Therrien, moreover, Gonthier J. insisted on this point, specifying that the fact that the Court’s report “is judicial and in the nature of a decision is fundamental to the constitutionality of the proceeding as a whole.”32 All the required safeguards are thereby ensured.

[79] To conclude on this issue, the inquiry committee here was properly formed. In addition, the argument advanced by Judge Bradley merely reflects the positioning by the inquiry committee members and does not address the intrinsic constitutionality of the inquiry committee’s composition, in the sense that a separate, previous decision established an inquiry committee that included only three judges. One of the judges was a member of the majority, and the two others were in the minority. Such a specific circumstance is not, in itself, sufficient to demonstrate that the inquiry committee was unconstitutionally formed, to the extent that, if its members had taken different positions, the result could easily have been two judges recommending dismissal while the third opposed it. Either way, the inquiry committee’s constitutional validity is unaffected.

31 Therrien (Re), supra, note 26. 32 Ibid., para. 45.

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[80] In addition, in Moreau-Bérubé v. New Brunswick (Judicial Council), Arbour J., writing for the Supreme Court, clearly indicated that disciplinary committees must be “primarily”, not exclusively, composed of judges.33

[81] Finally, it is important to remind ourselves that this argument was not raised before the inquiry committee, thus raising the presumption that Judge Bradley acquiesced to the inquiry committee’s jurisdiction.

WAS AN OATH NECESSARY.

[82] Judge Bradley also invokes the fact that one of the inquiry committee member had not sworn an oath, and that another had not sworn the proper oath. He submits 11 decisions on this point.

[83] The argument must fail. Most of the decisions submitted deal with the absence of an oath of office imposed by law or distinguish the oath sworn by a decision-maker in the adjudicative context from a simple oath of discretion.34 Besides, the judicial oath is different from other oaths of office.35 The latter usually reflect the fact that by assuming a full-time state function, an oath of office confirms that an office created by law has been adequately filled on a permanent and on-going basis. However, many democratic functions are assumed on a purely temporary basis by individuals who are neither elected nor formally appointed and who swear no oath of office. This is the case, notably, for jury members in a criminal trial, whose oath in no way resembles an oath of office.

[84] At any rate, the issue of the oath is a red herring in this case. The oath serves only to reassure the parties that there is no reasonable apprehension of bias, a question raised in Ruffo, for example, where the Chief Justice was the complainant. Here, Judge Bradley raises no apprehension of bias on the part of the inquiry committee, rendering this aspect

of the debate all the more theoretical. The absence of such an oath cannot give rise to a presumption of bias.

[85] In addition, it is fitting to highlight yet again the limited role of an inquiry committee. If an inquiry committee decides to recommend dismissal, this recommendation will necessarily come before the Court of Appeal. As already mentioned, the Court of Appeal, being composed entirely of judges, has complete freedom to decide questions of law and fact raised by the complaint. Judicial review being thus assured, the application brought against the inquiry committee is baseless, because the Court of Appeal proceeds with its own inquiry. In other words, there is no judicial review in this case, and it is futile to examine the basis of

33 Moreau-Bérubé v. Nouveau-Brunswick (Conseil de la magistrature), 2002 SCC 11, para. 47. See also

para. 60. 34 See, for example, Labrie c. Roy, 2003 CanLII 13479 (C.A.), esp. para. 7, 11 and 12. 35 According to the author Luc Huppé (Les fondements de la déontologie judiciaire, (2004) 45 C. de D.

93-131) “[TRANSLATION] the goal of the judicial oath is, essentially, to obtain the judge’s commitment of devotion to fulfilling the judicial office.”

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a challenged decision which has no binding force. The standards of review applicable on appeal or in judicial review lose all relevance given that the Court of Appeal is empowered to decide all questions of fact and law raised by the initial complaint, regardless of these standards of review. The Court must come to its own independent recommendation.

WAS THERE PROCEDURAL FAIRNESS.

[86] All that remains, then, is to decide whether there has been a violation of procedural fairness due to the fact that Judge Bradley did not receive advance notice that dismissal was a possible and appropriate (justified) sanction in the circumstances at hand.

[87] In Moreau-Bérubé, the judge alleged a violation of natural justice, more specifically of the audi alteram partem rule, because she had not been informed that the Council could impose a sanction more severe than that recommended by the committee, arguing she would have made representations on this matter. While this argument may have resonated with the Court of Queen’s Bench and the Court of Appeal, it was not retained by the Supreme Court:

79 In the circumstances of this case, I cannot accept that the Council violated

Judge Moreau-Bérubé’s right to be heard by not expressly informing her that they

might impose a sanction clearly open to them under the Act. The doctrine of

legitimate expectations can find no application when the claimant is essentially

asserting the right to a second chance to avail him- or herself of procedural rights

that were always available and provided for by statute. Moreover, the inquiry panel

had no authority to make a recommendation to the Council about the appropriate

sanction. This is made abundantly clear in the Act, where s. 6.11(1) states, “the

panel shall report to the chairman its findings of fact and its findings as to the

allegations of misconduct, neglect of duty or inability to perform duties of the judge

whose conduct is in question”. This contrasts with the decision-making role of the

Council once the panel’s report is complete, as stipulated in s. 6.11(4) which states

that “[b]ased on the findings contained in the report . . . the Judicial Council may .

. . dismiss the complaint, . . . issue a reprimand . . ., or . . . recommend . . . that the

judge be removed from office”. Regardless of the fact that the panel made a

recommendation that it was not mandated to make, the Council had a clear and

plain discretion to choose between three options. I do not believe that the

respondent, a judge, who had legal advice throughout, could have

misapprehended the issues that were alive before the Judicial Council. She never

asserted making such an error until it was raised by Angers J. on judicial review

[…]

81 The fact that a recommendation for dismissal was not discussed prior to

being issued is also not relevant. The Council has no obligation to remind the

respondent to read s. 6.11(4) carefully. While the Council might have opted, as a

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part of their procedure, to remind Judge Moreau-Bérubé that the Council would not

be bound by any recommendations made by the inquiry panel, they chose not to,

and that was within their discretion. […]

[88] Here, Judge Bradley certainly could not be unaware that the CJA provides for only two sanctions: reprimand or the recommendation to hold an inquiry pursuant to s. 95, and that the procedure before the inquiry committee did not require a separate hearing on the

sanction – a separate hearing which did not take place here, and which Judge Bradley did not request. It is appropriate to add that both counsel assisting the inquiry committee and counsel for Judge Bradley made representations with respect to the sanction at the single hearing held. Mtre Laurin simply pled that this was a second breach and left the question of sanction open to the discretion of the inquiry committee,36 while Mtre Masson did not believe that “[TRANSLATION] the facts of the present matter would justify a reprimand.”37 Judge Bradley was free to say more, had he thought it appropriate or necessary to do so. He did not. In the circumstances, like in Moreau-Bérubé, it certainly did not fall to the inquiry committee to remind him to read s. 279 CJA carefully and to inform him it could “impose a sanction clearly open to them under the Act.”38

[89] As seen above, the role of this Court is to conduct its own exhaustive inquiry. The question of the appropriate sanction was discussed fully before the Court, and at the Court’s initiative, no less. That being so, the argument that a violation of procedural fairness flows from the absence of an advance warning before the inquiry committee as to the possibility of dismissal is without object. Indeed, it must be remembered that the Court of Appeal would not even be called upon absent a recommendation for dismissal. Ultimately, this Court is the final adjudicator of this matter.

[90] For all these reasons, I propose that the application for judicial review be dismissed.

THE SANCTION

[91] Having noted Judge Bradley’s significant breaches of professional ethics in the Drolet c. Drolet matter, the Court must consider its own recommendation as to the appropriate sanction. It is to be noted at the outset that there is a dissidence on that issue. What I will now present is the recommendation of the majority.

[92] Judge Bradley’s position that his misconduct did not reach the threshold of gravity required to justify even a reprimand cannot be retained. On the contrary, a severe reprimand would be in order here. Before the inquiry committee, moreover, the conclusion

36 Book of Exhibits, Tab 22, p. 142. 37 Ibid., p. 157. 38 Moreau-Bérubé v. Nouveau-Brunswick (Conseil de la magistrature), supra, note 33, para. 79 and 81.

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that there had been a breach of professional ethics was unanimous. It was only with respect to the question of dismissal that the inquiry committee was divided.

[93] Here, a majority of the Court believes that dismissal would be excessive at this juncture, despite the fact that this is a second offence. The Supreme Court in Therrien sets out the circumstances that can lead to a recommendation of dismissal39:

[147] The public’s invaluable confidence in its justice system, which every judge

must strive to preserve, is at the very heart of this case. The issue of confidence

governs every aspect of this case, and ultimately dictates the result. Thus, before

making a recommendation that a judge be removed, the question to be asked is

whether the conduct for which he or she is blamed 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 (Friedland, supra, at pp. 80-81).

[94] Judge Martin Hébert, who dissented with respect to the sanction recommended by the inquiry committee majority (namely, Judge Bradley’s dismissal), appropriately summarizes the state of the law on dismissal. Dismissal will only be imposed where the judge in question is incapable of fulfilling the duties of the office:

[TRANSLATION]

[7] Before dismissal can be recommended, one must reach an intimate

conviction that there is no possibility that the judge will be capable of performing

the duties of the office and that security of tenure no longer applies.

[8] In his text on judicial ethics, Professor Noreau reviews the relatively rare

cases in which dismissal of a judge was recommended.

[9] In light of the precedents described therein, the severity of this response

requires great caution to ensure the measure is applied only in situations of

exceptional gravity. Without wishing to minimize the breaches of professional

ethics committed by the judge here, they do not meet this threshold.

[10] Reprimand is the alternative. I acknowledge immediately that this choice is

not overly severe. This would be the second reprimand for the judge in question.

Without presuming what the future will bring, it is reasonable to hope that this will

sound the alarm so that the judge will modify his conduct without delay.

[Internal references omitted]

39 Therrien, supra, note 26, para. 147.

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[95] The Courts of Justice Act provides two sanctions only (this differs from what we see in the majority of Canadian provinces): reprimand and removal. The test established by the Supreme Court shows recourse to the reprimand should not be restricted to cases that could be qualified as minor, for then all other cases would justify the judges’ removal. Besides, when the case is a minor one, s. 267 C.J.A. states that the complaint can be summarily dismissed.

[96] It must therefore be concluded that breaches of ethics subject to a reprimand can reach a certain level of seriousness without reaching a level which would prevent a judge from making amends and remaining in office. Such is this case.

[97] The judge’s conduct on January 19, 2016 was certainly unacceptable. That no hearing was held on that day is inexcusable. Despite the leeway accorded to small claims judges, here, both listening and welcome were in short supply. Judicial remarks and conduct may sow seeds of doubt as to the integrity of the judiciary, especially where no appeal is available. Citizens demand much more from judges. They require nothing less than a voluntary and permanent commitment to the demands of the judicial office.

[98] That being said, this complaint concerns one particular hearing, not Judge Bradley’s general judicial conduct in the courtroom. As he told us, in his career of almost 17 years, he has presided over hundreds of trials and rendered as many decisions as a Court of Québec judge (including in the Small Claims division) without any complaint, except for a previous one. The evidence presented to the inquiry committee and to this Court contains nothing that could lead to conclude that Judge Bradley is not unknown to this type of breaches even if, in this respect, it was a second offence.

[99] A few words are warranted on the issue of recidivism. In 2014, the Conseil de la magistrature’s inquiry committee determined that Judge Bradley “[TRANSLATION] did not allow the parties to explain their case, not to mention that the insistence to hold a meeting to discuss a settlement discouraged the plaintiff from pursuing her procedure”40, which she withdrew. The inquiry committee concluded that by addressing the plaintiff in this manner, Judge Bradley did not “[TRANSLATION] fulfill his duty, which is to render justice” and “[TRANSLATION] did not usefully and diligently fulfill his judicial obligations,”41 thus breaching ss. 1 and 6 of the Judicial Code of Ethics.

[100] However, in its report, the inquiry committee noted that Judge Bradley “[TRANSLATION] had acted courteously in his statements”42 and that he was “courteous

40 Inquiry committee of the Conseil de la Magistrature, Laroche and Bradley, Inquiry Report of March 19,

2014, 2014 EXP-1492, para. 97. 41 Id., para. 89. 42 Id., para. 9.

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and respectful in the manner in which he addressed the parties.”43 For the judge to have had an erroneous view of his conciliatory role and to have misunderstood its limits does not in and of itself constitute a breach of ethics, the problem having more to do with his manner, characterized by an undue insistence in conciliation (like in the present case). The inquiry committee thus concluded that a reprimand was fitting.

[101] Of course, one may wonder what were to be done if a judge consistently adjourned

cases brought before him or her on the pretext of a possible conciliation or settlement? Ethically, such a situation would perhaps be different, but that is not what transpires from the 2014 report, from the 2016 report, nor from the inquiry led by this Court.

[102] Regarding the lack of courtesy, the complaint in this case seems to constitute an isolated instance, according to the evidence arising from this Court’s inquiry. As regards the erroneous manner in which Judge Bradley, on that day, exercised the conciliatory role that the Code of Civil Procedure vests in judges presiding over cases in the Small Claims division, its disciplinary overtone, under the circumstances, results above all from the fact that we are dealing with a second offence.

[103] The situation, it should be noted, differs markedly from those prevailing in Therrien, Ruffo and Moreau-Bérubé, in which the removal of a judge was upheld. In the first case, the Supreme Court held that the judge had lied about his past to improve his chances of being appointed to the bench, hiding the fact that he had a criminal record. In the second case, the judge was sanctioned for multiple ethical breaches of all sorts. And even if Moreau-Bérubé, in terms of facts, is – superficially – similar to Judge Bradley’s case in that it involves statements made in a courtroom, it is nevertheless distinguishable. First, in Moreau-Bérubé, not only were the comments made by the judge disparaging, but they mostly revealed the presence of biases such as to cast a serious doubt over the general

impartiality of the judge and, henceforth, over her capacity to perform her judicial function and adjucate matters involving some of her fellow citizens. Such is not the case here. Secondly, Moreau-Bérubé concerns the judicial review of a decision of the New Brunswick Judicial Council recommending that the judge be removed from office. At that time (2002), the Supreme Court considered that the decision was not “patently unreasonable” nor “simpliciter unreasonable”. That it was not such does not mean that any disciplinary measure other than removal would have been unreasonable.

[104] In this instance, considering the facts and circumstances arising out of the case before this Court as wells as the findings from its inquiry, the majority of us, I repeat, are of the opinion that dismissal is inadvisable and that a reprimand was sufficient.

43 Id., para. 89.

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[105] Judge Bradley is cognizant that he ought to have acted in moderation and used a more appropriate language. He also recognizes that he could have listened more.44 Given his openness to modifying his behaviour, made clear before the Court in responding to a specific question, a majority of us believe that his behaviour does not reach the degree of severity required to justify removal. A weighty ethical sanction – and it is the case of the reprimand, a sanction of a public nature – can lead to better insight and understanding of a judge’s duties. At this stage, we are of the view that it is appropriate to give Judge

Bradley, for the second time, the chance to reform.

[106] In short, Judge Bradley unduly pressured the parties to settle their dispute and adjourned without cause a hearing over which he should have presided the same day. He also breached his duty of courtesy during the hearing on January 19, 2016 by the tone and nature of his remarks. His misconduct breached ss. 1, 6 and 8 of the Judicial Code

of Ethics.45 This conclusion warrants a sanction and, by analogy with s. 279 C.J.A., dismissal being an overly severe measure, the majority confirms that the minority of the members of the inquiry committee were right in issuing Judge Bradley a reprimand.

NICOLE DUVAL HESLER, C.J.Q.

44 Testimony of Judge Bradley, transcript of November 22, 2017, pp. 236-239. 45 Supra, note 22.

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REASONS OF BICH, J.A.

[107] I agree entirely with the reasons of Chief Justice Duval Hesler with respect to the behaviour of Judge Bradley, who, on January 19, 2016, breached his duty of courtesy thereby offending the dignity and honour of his office. Moreover, through his remarks, he clumsily placed himself in a situation in which he could no longer effectively hear the matter with which he was seized, a matter which he then adjourned by creating a pretext to do so.

[108] I further agree with the Chief Justice’s reasons and conclusion with respect to the sanction and, like her, I believe that it is not appropriate to remove Judge Bradley from his office, as his conduct was not “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.”46

[109] On another front, I generally agree with the reasons and conclusions of the Chief Justice with respect to the application for judicial review presented by Judge Bradley – except on one point: I part ways with her on the procedural fairness of the Committee’s inquiry. In my view, the Committee should have split its inquiry such that the question of whether or not there was misconduct would have been decided before Judge Bradley was required to lead his evidence and make observations with respect to the sanction. I note immediately that the reservations I have regarding this issue do not affect the outcome of the application for judicial review nor my agreement with the Chief Justice’s other reasons and conclusions.

* *

[110] Judge Bradley submits that the Committee failed to respect procedural fairness when it did not warn him of the possibility that the Committee would recommend his removal, the ultimate sanction in the disciplinary process. Indeed, the Committee held a single hearing on the litigant’s complaint. This hearing, held on October 3, 2016, primarily concerned the occurrence and nature of the breaches of professional ethics alleged against Judge Bradley (breaches which he denied). The question of a sanction was addressed, but only summarily. Counsel assisting the Committee, reiterating his previous (and very brief) written observations, simply indicated that, in a case where, as here, there was a prior breach of professional ethics, a severe reprimand had been considered appropriate. Counsel for Judge Bradley, after having noted in his written observations that

46 Therrien (Re), [2001] 2 S.C.R. 3, para. 147 [Therrien].

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counsel for the Committee had not suggested a sanction other than reprimand, indicated that his client did not deserve such a sanction. The Committee members asked no questions on this topic and gave no indication that removal could be considered in these circumstances. Hence Judge Bradley’s surprise when, upon receiving the Committee’s report, he saw that the majority of the members recommended his removal. He argues that he was denied the opportunity to make submissions on this matter.

[111] On the basis of Moreau-Bérubé,47 the Chief Justice concludes that the Committee respected the rules of procedural fairness.48 With great respect, I do not share this view. More specifically, and even though the inquiry of the Court of Appeal does redress the grievance raised in that respect by the application for judicial review,49 I am of the view that the Committee should have split its own inquiry such that, once the allegations against him were decided, Judge Bradley could, with full knowledge of the matter, offer evidence, if necessary, and make relevant and appropriate submissions with respect to the sanction. Here is why.

[112] First, it should be remembered – and this is a truism – that committees participating in the disciplinary process established by the Courts of Justice Act50 are bound to respect the overarching requirement of procedural fairness,51 the content of which, as we know, varies depending on the circumstances, but which must surely be respected by the Conseil, the committee of inquiry provided for at s. 269 and 269.1 C.J.A. and, naturally, the Court of Appeal.52

[113] It is not because the committee of inquiry makes “recommendations” only (for reprimand or removal, as the case may be) that it owes no duty of procedural fairness. First, as indicated above,53 this recommendation, which directly affects the rights of the judge in question, binds the Conseil which, according to s. 279 C.J.A., must follow through with the recommendation either by issuing a reprimand or by recommending that the Minister file an application with the Court of Appeal, a prelude to potential removal. It would be superfluous here to enter into a discussion regarding the procedural requirements imposed by administrative law upon bodies which issue recommendations of this nature, duties that extend naturally to committees of inquiry established under the Courts of Justice Act. Indeed, the law has long acknowledged that a body vested with making inquiries and recommendations on matters important to the litigant must act fairly.

47 Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 [« Moreau-Bérubé »]. 48 Reasons of the Chief Justice, para. [86] à [89]. 49 See infra, para. [167] and ff. 50 CQLR, c. T-16 (“C.J.A.”). 51 As characterized by Binnie J., writing for the Supreme Court in Canada (Attorney General) v. Mavi,

[2011] 2 S.C.R. 504, para. 42. 52 See Therrien, supra, fn. 46, paras. 81 and ff., and Moreau-Bérubé, supra, fn. 47, para. 75. More

generally, see also: Canada (Attorney General) v. Mavi, supra, fn. 51, paras. 38 and ff.; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, paras. 14 and 15.

53 See : Ruffo c. Conseil de la magistrature, [1995] 4 S.C.R. 267 [« Ruffo »], para. 67 (majority reasons Gonthier J.) et para. 118 (dissenting reasons, Sopinka J.); Therrien, supra, fn. 46, para. 94.

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This is especially so when a person’s right to exercise a profession is at stake, a matter which requires “a high standard of justice”.54 Certainly this is no less true when the profession in question is that of a judge.

[114] Clearly, the committee plays only a preliminary role in matters of removal, as the Supreme Court indicated in Ruffo55 and in Therrien.56 This in no way minimizes, however, its duty to act fairly. Indeed, without the committee, there can be no removal and it is the committee’s recommendation which, by way of s. 279, para. 1(b) C.J.A., triggers the application to be made to the Court of Appeal pursuant to s. 95 C.J.A. and which, from that moment on, affects the right of the judge to exercise his or her function. The Court of Appeal, for its part, is not bound by the committee’s conclusions or recommendation, but the fact remains that the Court cannot be seized without such a recommendation, which is the sine qua non condition of its jurisdiction over the matter. This highlights the true and considerable importance of the committee’s recommendation on the judge’s rights.

[115] Moreover, when it recommends a reprimand, the committee’s role is in no way preliminary and thus constitutes the exercise of a de facto decision-making power.

[116] Neither should the committee be exempted from respecting the rules of natural justice or procedural fairness simply because, to borrow the words of the Supreme Court in Ruffo,57 “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”,58 “[a]ny idea of prosecution [thus being] structurally excluded” [emphasis in the original].59 On this note, a distinction may no doubt be drawn between judicial ethics and professional discipline but, even if the process is different, the goal is the same: in both cases, the objective is to censure misconduct in the interest of the public. More specifically, it is a matter of deciding whether there was misconduct which, if so, will lead to a reprimand or removal. The mechanics of judicial ethics are thus disciplinary in nature or, it could be said, they are a variation on the theme of discipline, and ss. 260 to 281 C.J.A., which aim at guaranteeing the integrity of the judiciary and public confidence in the judicial system, have, indeed, a disciplinary vocation. Therrien speaks, in that respect, of “[t]he disciplinary process for provincial court judges established by the Courts of Justice Act (…).”60

54 Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105, p. 1113. 55 Ruffo, supra, fn. 51, para. 89. 56 Therrien, supra, fn. 46, notably paras. 100-101. 57 Supra, fn. 53. 58 Id., para. 72 (majority reasons, Gonthier J.). 59 Id., para. 73. 60 Id., para. 35. The term “disciplinary process” is also used at paras. 41, 100, 104 and 135.

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[117] Finally, the committee put in place by the Conseil pursuant to ss. 269 and 269.1 C.J.A. is free to conduct its inquiry as it sees fit,61 as ss. 273 and 275 C.J.A. intend, but this freedom does not allow it to contravene the requirements of natural justice and procedural fairness and escape this framework.

[118] It is, however, unnecessary to say more because the Supreme Court has already so decided – first in Ruffo,62 and then in Therrien.63 In the latter case, Gonthier J. wrote for the Court:

81 Since Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, compliance with the rules of natural justice, which was required of the courts, has been extended to all administrative bodies acting under statutory authority, where they are expressed as the rules of procedural fairness (“duty to act fairly”). The fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653, and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 20. The Conseil de la magistrature and its committee of inquiry are not exceptions and are therefore subject to this principle. In Ruffo, supra, following a review of the various judicial ethics arrangements in Canada, I found accordingly, at para. 77:

In short, each system has its own rules, but they are all based on the same guiding principle: ensuring compliance with judicial ethics through proceedings that comply fully with the duty to act fairly.

82 Essentially, the duty to act fairly has two components: the right to be heard (the audi alteram partem rule) and the right to an impartial hearing (the nemo judex in sua causa rule). The nature and extent of the duty may vary with the specific context and the various fact situations dealt with by the administrative body, as well as the nature of the disputes it must resolve: Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96, cited with approval in 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, at para. 22, and Ruffo, supra, at para. 88. Thus, in Baker, supra, at paras. 23-28, L’Heureux‑Dubé J. specifically pointed out that several factors have been recognized in the jurisprudence as relevant to determining what is required by the duty of procedural fairness in a given set of circumstances. While she did not provide a comprehensive list of such factors, she referred to: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

61 This freedom was recognized in Therrien, supra, fn. 46, para. 89, to which I will return. See also:

Moreau-Bérubé, supra, fn. 47, para. 81, referring approvingly to a passage of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, regarding procedural choices left to administrative bodies.

62 Supra, fn. 53, para. 77. 63 Supra, fn. 46.

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(3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) respect for the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures. It is from this perspective that I will now consider the allegations of breach of the rules of procedural fairness made by the appellant in the instant case.64

[Emphasis added]

[119] There can thus be no doubt: the committee, like the Conseil de la magistrature itself, must comply with the rules of natural justice and procedural fairness, the particular content and requirements of which may vary according to the context. Was the rule that Judge Bradley seeks to benefit from here65 incumbent upon the Committee of Inquiry as part of its duty to act fairly?

[120] For the following reasons, I would answer this question in the affirmative.

[121] It is true that not all of the procedures and protections of criminal or penal proceedings (guaranteed by the common law and s. 7 of the Canadian Charter of Rights and Freedoms) should be imported into the disciplinary process (be it the professional disciplinary process, in general, or the judicial disciplinary process, in particular).66 Nevertheless, as Rochon J.A. wrote regarding the behaviour of a doctor in a matter governed by the Professional Code, “[TRANSLATION] however, nothing weighs against applying the relevant [criminal] rules, adapted to the specific context of disciplinary law.”67 In my view, these remarks are equally applicable to the inquiry governed by the Courts of Justice Act, and thus nothing weighs against importing certain relevant criminal or penal rules, adapted as necessary, to this context.

[122] If such imports may occasionally be permissible, it appears particularly appropriate with respect to the way in which criminal (or penal) law addresses questions of guilt and sentencing, the second being neither determined nor even argued before the first has

64 On the application of procedural fairness to judicial disciplinary matters, see also: Moreau-Bérubé,

supra, fn. 47, para. 75. 65 Although his application may sometimes give the impression that he would have been satisfied with a

notice similar to that given by commissions of inquiry (in the classic sense), a possibility rejected in Therrien, supra, fn. 46, para. 86.

66 See, for example: Cuggia c. Chambre de la sécurité financière, 2016 QCCA 1479, paras. 15 and 16; Beauchemin c. Chambre de la sécurité financière, 2010 QCCA 1235 (j. sitting alone – leave to appeal to the Supreme Court refused, February 24, 2011, No. 33877), para. 19; Québec (Procureur général) c. Bouliane, [2004] R.J.Q. 1185 (C.A.), (leave to appeal to the Supreme Court refused, March 3, 2005, No. 30401), paras. 83 and 84 (referring to Béliveau c. Comité de discipline du Barreau du Québec, [1992] R.J.Q. 1822 (C.A.), (leave to appeal to the Supreme Court refused January 21, 1992, No. 23118 and 23119), and Latulippe c. Tribunal des professions, J.E. 98-1367 (C.A.); Chambre des notaires du Québec c. Dugas, [2003] R.J.Q. 1 (C.A.) (leave to appeal to the Supreme Court refused June 12, 2003, No. 29575), para. 19; Ekmaty c. Tribunal des professions, [2001] R.J.Q. 605 (C.A.), para. 17.

67 Ekmaty c. Tribunal des professions, supra, fn. 66, para. 18.

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been established.68 In this tried and tested method we find the expression of a rule of natural justice equally applicable, and for similar reasons, to disciplinary matters of all sorts and equally suitable to and perfectly compatible with an inquiry governed by the Courts of Justice Act.

[123] This way of proceeding, which dissociates the stage of establishing misconduct from that of punishment, also corresponds to the practice of disciplinary instances of professional orders and other similar bodies, which separate findings of misconduct and sanction, the second being determined subsequently to the first, after a separate hearing and giving rise to a distinct decision. Of course there are cases where the hearing on sanction occurs immediately after the hearing on guilt, but not without first determining guilt and, where guilt is established, describing the facts found against the individual. Section 150 of the Professional Code69 requires this two-step procedure (and imposes it upon the Professions Tribunal in the case envisaged by s. 175, para. 3 of the Professional Code). Section 98 of the Real Estate Brokerage Act70 dictates that the real estate brokerage self-regulatory body follow the same two-step method, as does s. 376 of the Act respecting the distribution of financial products and services71 (by way of reference to the Professional Code) with respect to disciplinary committees of the Chambre de la sécurité financière and the Chambre de l’assurance de dommages (note also s. 379 of the same act). We could also refer to ss. 233 and 234 of the Police Act.72 Section 24 of the Municipal Ethics and Good Conduct Act73 and s. 96 of the Code of Ethics and Conduct of the Members of the National Assembly74 provide for the same means of proceeding, and both refer to an investigative procedure functionally similar to the mechanism put in place by the Courts of Justice Act.

[124] Faced with this, one might immediately object by saying that, given that the legislature did not deem it useful to include a similar provision in the Courts of Justice Act, the committee of inquiry is not bound to proceed in this fashion. In my view, however, this argument is misleading and falls well short of the mark.

[125] Indeed, one might well imagine the reasons why the legislature chose to provide explicitly for this procedural split in the Professional Code, the Real Estate Brokerage Act, the Act respecting the distribution of financial products and services, the Police Act, the Municipal ethics and good conduct Act or even the Code of ethics and conduct of the

68 See: Martin Vauclair, Traité général de preuve et de procédure pénales, 24th Ed., Cowansville, Thémis,

Yvon Blais, 2017, para. 2609 and ff., p. 1209 and ff. 69 CQLR, c. C-26. 70 CQLR, c. C-73.2. Section 98 of this act is completed, in concert, by s. 54 of the Regulation respecting

disciplinary proceedings of the Organisme d'autoréglementation du courtage immobilier du Québec, CQLR, c. C-73.2, r. 6.

71 CQLR, c. D-9.2. 72 CQLR, c. P-13.1. 73 CQLR, c. E-15.1.0.1. 74 CQLR, c. C-23.1.

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members of the National Assembly,75 since professional orders and para-professional bodies and their disciplinary councils or committees (those of the Barreau and the Chambre des notaires excepted), as well as other bodies concerned, do not consist primarily of jurists and must be offered guidance in order to ensure that the rules of natural justice are respected. In this sense, the legislative provisions cited above serve a pedagogical function by explicitly setting out the requirements of natural justice.

[126] By contrast, we can also easily understand that the legislature – mindful of the constitutional limits of its interventions in judicial discipline and respectful of the specialized jurisdiction and independence of the Conseil, the committee of inquiry and their members – did not deem it necessary to remind them of the principles of procedural fairness. Rather it was content to enact a general provision, s. 275 C.J.A., giving the committee free reign in conducting its inquiries, a freedom recognized by the Supreme Court,76 but which must nonetheless be exercised in conformity with natural justice, a principle that is at the very heart of day to day judicial practice.

[127] Indeed, judicial sensitivity to procedural fairness does not require a legislative reminder, as matters of contempt of court illustrate. We know that art. 61, para. 3 C.C.P. (which essentially reproduces the former art. 54 p.C.C.P.) provides that “[i]f the judgment finds that contempt of court was committed, it must state the sanction imposed and set out the facts on which the finding of contempt is based” – thus, theoretically, at the same time. We also know, however, that the Superior Court voluntarily splits proceedings in such matters,77 based on the model adopted by the Supreme Court in Carey v. Laiken.78 Why is there such a practice, which, at first glance, goes against the legislative will? Given

75 Just as the legislature provides for notice of a claim in the case of an inquiry that does not concern

ethical conduct. See, for example: An Act respecting the Commission Municipale, CQLR, c. C-35, s. 22, paras. 4 and 5; Securities Act, CQLR, c. V-1.1, s. 273, para. 2; Act respecting financial services cooperatives, CQLR, c. C-67.3, s. 355. This requirement has been condoned by the case law (see: Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440) but is not directly applicable to a committee of inquiry governed by the Courts of Justice Act, for the reason that Gonthier J. sets out at para. 86 of Therrien, supra, fn. 46. We also see this requirement, sometimes in a more summary form, in a variety of laws such as: Health Insurance Act, CQLR, c. A-29, s. 22.0.1, 22.2 and 38.3; Act respecting insurance, CQLR, c. A-32, s. 405.1 and 405.2; Act respecting administrative justice, CQLR, c. J-3, s. 5 and 6; Lobby Transparency and Ethics Act, CQLR, c. T-11.011, s. 53 and 54. We do not find it, however, in the Act respecting public inquiry commissions, CQLR, c. C-37, commissions which are, however, bound to respect it as a matter of procedural fairness.

76 See: Ruffo, supra, fn. 53, para. 73 of the reasons of Gonthier J., who noted the predominant role of the committee in establishing the rules of procedure governing its inquiry. See, in the vein: Therrien, fn. 46, paras. 88-89.

77 See: Lacroix c. Autorité des marchés financiers, 2018 QCCA 370 (j. sitting alone), para. 7, which notes the general character of this practice. See also: Javanmardi c. Collège des médecins du Québec, 2013 QCCA 306 (leave to appeal to the Supreme Court refused, July 11, No. 35325), para. 45. This has given rise to some indecision with respect to the right to appeal, a subject that the Court has taken on in several decisions (see, for example : Douek c. Brossard, 2016 QCCA 1884; Javanmardi c. Collège des médecins du Québec, supra).

78 [2015] 2 S.C.R. 79, paras. 18 and 65 (this case concerns contempt proceedings in Ontario).

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the quasi-penal nature of the proceeding, it would be seemingly impossible to proceed otherwise, in all fairness to the offender. As the Superior Court explained in Droit de la famille — 112094:

[…] A two-stage procedure has the following benefits: (a) it promotes the right to a fair hearing under art. 23 of the Québec Charter of Human Rights and Freedoms by allowing the Court to focus its attention solely on the issue of guilt in the first hearing; and (b) furthermore, it allows the delinquent found guilty of contempt, the opportunity to prepare representations for sentence, an important consideration given the potential for imprisonment and fine.79

[128] There is clearly no question of imprisonment in disciplinary matters (although there may be monetary sanctions), but these remarks are nevertheless applicable, as the advantages of a procedural split remain very real in terms of procedural fairness. Why should judicial discipline be exempted from this obligation, when reprimand and removal, the only available sanctions, have a similar impact as sanctions imposed in the context of professional discipline, for instance?

[129] One could object that since the Courts of Justice Act provides for only two sanctions (reprimand and removal), the judge in question may easily defend both possibilities as well as present evidence and observations without a separate hearing to be held after the finding of misconduct. That objection, in my view, is simplistic.

[130] Indeed, it is fundamentally unfair to ask someone who has not yet been declared guilty of any offence whatsoever (criminal, penal, disciplinary or ethical) to make necessarily speculative submissions respecting a sanction that could be imposed in the event that person were to be found guilty. Moreover, guilt alone is insufficient: it is also necessary to know which facts the decision-maker or investigator80 has found in support of such a conclusion. Indeed, how can someone faced with multiple allegations of misconduct submit any argument on a possible sanction, based on conjecture about the various scenarios the decision-maker or investigator may adopt on the evidence? This would not make for effective pleading nor, as such, full answer and defence.

[131] In addition, distinguishing a finding of misconduct from sanction and proceeding in two stages avoids requiring someone who disputes the existence or seriousness of the alleged misconduct to make submissions respecting the sanction which may detract from his or her contestation on the merits or to abstain from presenting evidence or making representations that might compromise such contestation. By separating the determination of the existence of misconduct from that of sanction, as the case may be, the offender is allowed not only to present evidence and make relevant observations on the sanction (and to make all of them), once misconduct has been established and explained, but also, if appropriate, to express regret or make amends and to reach an

79 2011 QCCS 3661, para. 2, fn. 1 (extract cited by Dalphond J.A. in Javanmardi, supra, fn. 77, para. 45.) 80 Who is here, as we have seen, a decision-maker in some cases and a quasi-decision maker in others.

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enlightened decision in this respect, in due course. Indeed, it is difficult to imagine an alleged offender (including one who is charged with an ethical breach) preventatively repenting while contesting the existence or severity of the alleged misconduct. Such a gesture would necessarily affect the credibility and relevance of such remarks. Again, this would not make for effective pleading nor full answer and defence, which, in the circumstances, are both components of audi alteram partem and procedural fairness.

[132] This, however, is precisely the opportunity that Judge Bradley was denied in the present case. Considering that counsel assisting the Committee made no specific recommendation with respect to the sanction (all the while implying a reprimand was the only possibility), Judge Bradley was required to make uninformed representations on the appropriate sanction for allegations of misconduct that he contested, for which he did not yet know if he would be found guilty (so to speak), and all this without knowing exactly for what the Committee would be blaming him in the end (supposing he would be blamed for something). He was therefore denied the possibility of effectively leading evidence relating to a sanction, or, otherwise, to apologize, affirm his willingness to change, etc. That there are but only two possible sanctions changes nothing about the foregoing.

[133] In short, it seems to me that the procedural fairness required in disciplinary and ethical matters was violated here: professionals in general, municipal councillors, members of parliament and anyone held in contempt of court have the right to this form of natural justice and I am not persuaded that judges implicated in a disciplinary process should be denied this basic guarantee. The fact that judges are held to particularly high standards of ethical conduct does not justify minimizing the guarantees of procedural fairness inherent to disciplinary processes.

[134] In sum, there is no doubt in my mind that:

1. The committee of inquiry must respect its duty to act fairly, as a component of natural justice.

2. Given the general context of the disciplinary process established by the Courts of Justice Act, the nature of the decision sought (determinative in all cases, even if preliminary in the case of removal) and its importance to the individual in question, whose rights and privileges are affected, procedural fairness required here that Judge Bradley be authorised to make submissions on the sanction after his guilt was determined and that he have an opportunity to submit evidence to this end, if necessary, which would have logically required splitting the inquiry.

[135] Moreover, it should be noted that if the Courts of Justice Act is silent on this point, the Règles de fonctionnement concernant la conduite d’une enquête81 are not (those

81 These rules, for which there appears to be no English version, were adopted by the Conseil de la

magistrature on January 28, 2015 and updated on October 11, 2016. The January 28, 2015 version

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provisions were enacted by the Conseil in order to guide the conduct of committees of inquiry “[TRANSLATION] despite the rules of procedure or practice that a committee of inquiry (committee) may adopt in conducting an investigation in compliance with s. 275 of the Act”).82 Indeed, s. 16 of these rules sets out the following:

[TRANSLATION]

SECTION 16

The committee’s report must include reasons and address the merits of the complaint and the sanction.

Subject to a contrary decision of the committee, the inquiry will not be split in order to hear representations on the sanction. Otherwise, the committee shall inform the parties of its intention to this effect.

If the committee concludes that the complaint is founded, it may only recommend that the judge be reprimanded by the Conseil or dismissed.83

[Emphasis added]

[136] The second paragraph of this provision is of interest here: the inquiry, we are told, is – subject to a decision to the contrary by the committee – not split in order to hear representations on the sanction. The committee must otherwise advise the parties of its intentions.84 In my view, and I say this respectfully, the opposite rule should be set out here: that is, splitting should be required, save for some exceptions.

[137] In any case, what we gather from this provision, as it is stands, is that there may be cases in which it will be appropriate or necessary to split the inquiry in two stages, one concerning misconduct and the other, if necessary, sanction. Despite the language of s. 16, this is a decision not solely dependent on the will of the committee because it will be compulsory whenever procedural fairness so requires. Indeed, the possibility that a committee split an inquiry cannot be arbitrary, as this would likely give rise to discrepancies – and thus injustices – in the treatment afforded to one judge to that afforded to another. The committee’s decision in that regard must be based on reasonable cause, first among which, it goes without saying, should be procedural fairness.

was in force at the time the Committee held its inquiry and, unless otherwise specified, is referred to in the present reasons.

82 S. 1 of the Règles de fonctionnement concernant la conduite d’une enquête. 83 S. 16 of the present version of these Règles is identical. One may perhaps question the jurisdiction of

the Conseil to enact these Règles, but that is not relevant to the present reasons. 84 S. 2 of these Règles provides that the word “[TRANSLATION] party” may be used to designate the

complainant, the judge in question or any other intervenor recognized by the committee.

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[138] But does procedural fairness always require a two-step process? We can perhaps imagine cases where such splitting would not be useful, for example where a judge admits the misconduct alleged by the complaint, such that the committee’s investigation and the proceedings before it will essentially concern the sanction. In a situation such as the one at hand, however, where the allegations are numerous and contested, procedural fairness requires the splitting allowed by s. 16 of the Règles. In my view, the Committee should have proceeded in this way in the case of Judge Bradley.85

[139] Of course, I acknowledge that my conclusion may not be left unchallenged, given the fact that the Supreme Court has apparently decided to the contrary in both Therrien and Moreau-Bérubé. It seems to me, however, that a distinction may be drawn with these two judgments, the outcomes of which may be explained by specific circumstances.

[140] Consider first the judgment in Moreau-Bérubé86 where Arbour J., writing for the Supreme Court, asserted that:

81 The fact that a recommendation for dismissal was not discussed prior to being issued is also not relevant. The Council has no obligation to remind the respondent to read s. 6.11(4) carefully [the provision that set out the sanctions to be considered, which included dismissal]. While the Council might have opted, as a part of their procedure, to remind Judge Moreau-Bérubé that the Council would not be bound by any recommendations made by the inquiry panel, they chose not to, and that was within their discretion.

[…]

83 I agree with the comments of Drapeau J.A. who noted that [TRANSLATION] “it is undeniable that at each step where she had the right, Judge Moreau-Bérubé was fully heard” (para. 150). Acknowledging that the nature of these disciplinary proceedings imposes on the Council a stringent duty to act fairly, I can find no breach of the rules of natural justice in the context of this case.

[141] The remark is severe, but its real scope must be put in perspective.

[142] The Judicial Council of New Brunswick “recommended the removal from office of a Provincial Court judge because of statements she made in court, while presiding over a sentencing hearing”87 (a recommendation that bound the lieutenant governor of the province). In so doing, the Council distanced itself from the recommendation made by the committee of inquiry charged with establishing the facts, a majority of which

85 A review of the inquiry reports published on the website of the Conseil de la magistrature seems to

indicate that this way of proceeding is not the norm and that inquiries generally proceed in a single stage.

86 Supra, fn. 47. 87 Moreau-Bérubé, supra, fn. 47, para. 1.

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recommended a reprimand.88 The judge in question filed an application for judicial review of the Council’s decision with the Court of Queen’s Bench. She prevailed, and the decision was confirmed by the Court of Appeal of New Brunswick, with a dissenting opinion. On appeal from this judgment, Arbour J., writing for the Supreme Court, adopted the position of the dissenting judge, allowed the appeal and restored the decision of the Council. The Supreme Court concluded, first, that it was not the committee of inquiry’s mission to provide a recommendation and, second, that its recommendation did not bind the Council whose decision on the merits was subject to the standard of review of reasonableness simpliciter (according to the state of law then applicable).89 Finally, the Supreme Court also dismissed the judge’s argument that “when the panel recommended something less than removal from the bench, they indirectly took away her ability to argue against that sanction, and that her representations to the Council would have been affected had she known that a recommendation for removal from the bench was being considered.”90 We saw earlier Arbour J.’s incisive remarks on this question.91

[143] But if the Supreme Court rejected this last argument, it should be noted that it was because, in her application for judicial review, the judge did not raise the Council’s failure to warn her that she might be dismissed or its failure to proceed in two stages. Indeed, it was the Court of Queen’s Bench judge who had himself raised the question of procedural fairness and concluded that, in the circumstances, the Council should have advised the judge that dismissal could be recommended. Justice Arbour noted this twice,92 which is unsurprising given the determinative nature of this fact, the judge herself having “never asserted making such an error [that is to say having “misapprehended the issues that were alive before the Judicial Council.”93] until it was raised by Angers J. on judicial review.”94 This is entirely different from the present case, where Judge Bradley raised the question in his application for judicial review (I will return later to the question of whether he could be reproached for not having asked the Committee to hold a separate hearing on the sanction).95

[144] Moreover, further distinguishing Moreau-Bérubé from the case before our Court, the remarks cited above and the severity of those of Arbour J. are better explained by the fact that the judge in question acknowledged her misconduct, for which she profusely and publicly apologized even before the ethical complaint was brought against her. Despite this acknowledgement, she asked the Council to dismiss the complaint, but the issue before that body, one may surmise, was in reality about the sanction, given the repeated apologies that followed the controversial remarks. By contrast, in the present case, before

88 One of the three committee members concluded that there had been no misconduct. 89 Moreau-Bérubé, supra, fn. 47, para. 67. 90 Id., para. 77. 91 Supra, para. [140]. 92 Moreau-Bérubé, supra, fn. 47, paras. 31 et 79 in fine. 93 Id., para. 79. 94 Ibid. 95 See infra, para. [153] to [163].

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the Committee of Inquiry Judge Bradley denied any ethical breach: the very existence of misconduct was the first subject to be considered and the question of sanction could only be addressed as a second step, that is to say only if the Committee concluded that misconduct had been established.

[145] If Moreau-Bérubé can be distinguished from the case at hand, both for the reasons mentioned above and due to the differences in the New Brunswick and Quebec disciplinary processes, what about Therrien, which occurred in Quebec?

[146] Gonthier J. wrote:

83 The appellant contends, first, that he did not receive sufficient notice of the findings that might be made by the committee of inquiry and was not granted a supplementary hearing, separate from the first, to state his views regarding appropriate sanctions for his conduct.

84 He argues that at the time of the argument before the committee of inquiry on March 26, 1997, his counsel expressed the wish to make submissions regarding the sanctions applicable to the appellant’s breaches of the code of ethics should the committee find that the complaint was justified. He stated at that time that he would prefer to be aware of the extent and gravity of the breaches found to have been committed before making argument. In response to this concern, the committee of inquiry sent a letter to counsel for the appellant, on May 30, 1997, in which it stated that it did not wish to communicate a portion of its inquiry report in advance, since the report constituted a whole which it was inappropriate to sever; it accordingly invited him to make all [TRANSLATION] “relevant submissions concerning the sanction to be recommended should the Committee’s report determine that the complaint is justified”. The plaintiff, the Minister of Justice of Quebec, had already indicated that he planned to leave the matter to the committee’s discretion. When counsel for the appellant initially declined to make representations, the committee repeated its invitation. Eventually, on July 11, 1997, the committee submitted its report without having received any submissions on behalf of the appellant, or the Minister.

(i) Whether Notice was Given

85 First, the appellant relies on the decision of this Court in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440, to require notice, in confidence, informing him before the conclusion of the hearings as to the various findings that might be made against him. In my view, that decision is of no assistance to the appellant in the case at bar. That requirement was imposed in a very particular context, one that is unique to commissions of inquiry which have a duty to “investigate and report on the state and management of the business, or any part of the business, of the department . . . and the conduct of any person in that service” (s. 6, Inquiries Act, R.S.C. 1985,

c. I‑11). In the course of such an inquiry, the commissioners have the authority to make a finding of misconduct against specific organizations or individuals and are

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required, where that is the case, to give those persons who are not parties to the inquiry warning of findings which may be made against them in the final report (para. 56).

86 In the case in bar, the committee of inquiry of the Conseil de la magistrature did not hold a general inquiry; it examined a specific complaint made against a particular judge. That judge was a party to the proceedings from the outset and was accordingly informed of the allegations made against him. In any case, I am of the view that the appellant had sufficient advance notice in the circumstances of this case. In accordance with s. 266 C.J.A., on receipt of the complaint the Conseil forwarded a copy of it to the judge. Furthermore, on February 6, 1997, the respondents filed a pleading entitled [TRANSLATION] “Particulars voluntarily provided by the plaintiff”, in which they detailed the subject matter of the complaint. In the circumstances, the appellant was well aware of all the findings of misconduct that might be made against him, and the committee of inquiry complied with its duty to act fairly in that regard.

(ii) Separate Supplemental Hearing

87 The appellant also contends that he had a right to a separate hearing on the question of sanctions, citing the procedure followed by the British Columbia Securities Commission and considered by this Court in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 608. While Iacobucci J. did not specify whether the procedure in question was necessary or even desirable in order to comply with the requirements of procedural fairness, he did say simply that this was the procedure chosen by the Commission for its inquiry.

88 Similarly, the committee of inquiry of the Conseil de la magistrature was master of its own procedure in the case at bar. In Les tribunaux administratifs au Canada : Procédure et preuve (1997), at p. 92, Professor Y. Ouellette comments as follows on the autonomy of administrative tribunals in developing their own quasi-judicial procedure:

[TRANSLATION] From the time that the first appellate administrative tribunals emerged in the United Kingdom early in the century, advocates of judicialization and advocates of procedural autonomy confronted each other, and the question was raised at that time as to whether or not judicial procedure should be used as a suppletive source or as a model to be emulated. Local Government Board v. Arlidge [[1915] A.C. 120 (H.L.)] may be regarded as the leading decision, firmly moving procedure in the direction of autonomy and dejudicialization. . . .

Lord Haldane began by explaining that granting appellate jurisdiction to an administrative agency rather than a court was the expression of a change in legislative policy and that the consequences of this political choice must be accepted. The agency must, of course, act in a judicial manner, but it must be assumed, absent any indication to the contrary, that the legislator wished to let the agency determine its own procedure so that it could act efficiently. Lord Shaw even went so far as to warn the judiciary against the temptation to impose

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its own methods on administrative tribunals. It is to him that we owe the famous proposition: the tribunal is the master of its own procedure.

89 The Quebec legislature has formally recognized this autonomy in the specific case of the committee of inquiry of the Conseil de la magistrature by enacting s. 275 C.J.A., expressly authorizing it to make rules of procedure or rules of practice that it may find appropriate for the conduct of an inquiry, and to make the orders, based on the Code of Civil Procedure, that are necessary for the carrying out of its duties. Thus, the committee was fully justified, out of concern for efficiency, in refusing to hold a separate hearing.

90 Furthermore, the facts of this case show that the committee of inquiry made a genuine effort to allow the appellant to make representations. While it informed him that the report to be submitted to the Conseil de la magistrature could not be severed in order to issue part of it in advance, it twice gave the appellant an opportunity to be heard, in writing, and even orally, on the question of the various applicable sanctions.

91 I therefore find that the appellant’s right to be heard was fully respected in the circumstances and I reject that ground of appeal. It remains to consider the second aspect of the duty to act fairly: the right to an impartial hearing.

[147] This seems clear enough but, in my opinion, does not exactly address the concerns raised herein.

[148] Firstly, and I write this with great deference, obviously, I am surprised that the overarching principle of procedural fairness,96 a condition of the fair exercise of power,97 could be subordinated to considerations of efficiency, at least in such a context. In addition, in my view there is no incompatibility between procedural fairness and efficiency – respect of the first being, on the contrary, a guarantee of the second, if only by limiting subsequent challenges. Moreover, it is difficult to see how holding a separate hearing on the sanction would encumber the process established by the Courts of Justice Act and render it less efficient. As we saw above, all professional discipline is based on this procedural principle, which seems unproblematic: why should it be so in the case of a process applicable to judges? As noted earlier,98 it seems to me that this two-prong approach is well-suited to the committee’s investigative mission, does not frustrate the process in any way and may easily be implemented: the “active search for the truth”, on both philosophical and practical levels, is thus strengthened.

[149] Secondly, the procedural freedom that the committee enjoys, and again I say this very respectfully, is subject to procedural fairness, the cardinal principle in such matters, which restrains the autonomy of administrative bodies, including this one. At any rate, this

96 As characterized by Binnie J. in Mavi, supra, fn. 51, para. 42. 97 See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, para. 90. 98 See supra, para. [122].

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is not a question of imposing onerous or incongruous measures upon the Committee (unreasonable or improper ones, to borrow from LeDain J. in Cardinal)99, but simply one of adopting a widespread practice.

[150] Finally, one might even speculate that splitting the inquiry would benefit the committee members themselves, who could then interact more freely with the individual concerned and ask all the appropriate questions regarding the sanction. Proceeding as they did here inevitably restrains their latitude, constrained as they are by a duty of discretion regarding their inclinations respecting misconduct or by the fact that, not having made a finding as to misconduct, they do not yet know where their reflection will lead them. Proceeding in two stages would at least avoid having them take verbal precautions or limit their observations (see infra, para. [161]).

[151] This being said, it must be observed that in Therrien, while the committee of inquiry did not wish to reveal its decision with respect to the misconduct alleged, still, according to Gonthier J., it “made a genuine effort to allow the appellant to make representations”100 by giving him two opportunities subsequent to the first hearings “to make all [TRANSLATION] ‘relevant submissions concerning the sanction to be recommended should the Committee’s report determine that the complaint is justified’”101 and “to be heard, in writing, and even orally, on the question of the various applicable sanctions”,102 an invitation to which the appellant did not respond. In this respect, Therrien may be

99 In Cardinal v. Director of Kent Institution, supra, fn. 52, Le Dain J., writing for the Court, explained the

following with respect to individuals placed in administrative segregation and for whom a prison disciplinary committee had recommended reintegration into the general population, which the director refused to do:

21. The issue then is what did procedural fairness require of the Director in exercising his authority, pursuant to s. 40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the Board, if he was satisfied that it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern C.J.S.C. and Anderson J.A. that because of the serious effect of the Director's decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. (…) 22. These were in my opinion the minimal or essential requirements of procedural fairness in the circumstances, and they are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. There is nothing to suggest that the requirement of notice and hearing by the Director, where he does not intend to act in accordance with a recommendation by the Segregation Review Board for the release of an inmate from segregation, would impose an undue burden on prison administration or create a risk to security.

[Emphasis mine]

In the present case, by analogy, one cannot see how splitting the inquiry would overburden the Committee, or neutralize or thwart its operation.

100 Therrien, supra, fn. 46, para. 90. 101 Id., fn. 46, para. 84. 102 Id., para. 90.

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distinguished from Judge Bradley’s case, as Judge Bradley was never invited to so address the committee, at least otherwise than during the inquiry held on October 3, 2016.

[152] Before this Court, however, counsel for the Conseil de la magistrature (respondent in the application for judicial review) observed that neither Judge Bradley nor his counsel requested a separate hearing on the sanction, as they could have pursuant to s. 16 of the Règles de fonctionnement concernant la conduite d’une enquête and as Judge Therrien had done in the matter cited above. This is correct, but may be explained, and even justified, by the manner in which the Committee’s inquiry unfolded.

[153] Indeed, in the circumstances, Judge Bradley could legitimately and reasonably believe that his removal, a matter which had not been addressed in any way at any stage of the inquiry,103 would not be recommended, even if the Committee did conclude that there had been one or more ethical breaches.

[154] For instance, contrary to the complaint formally brought against Judge Moreau-Bérubé, which expressly raised the possibility that she would “no longer [be] able to perform her duties as a judge”,104 this was not the case for the complaint filed against Judge Bradley. Certainly, the complainant made specific allegations against Judge Bradley, but without requesting or mentioning a particular sanction. By contrast also, the removal of the judge was clearly the central issue in Therrien, which is not the case here.

[155] In the preliminary decision issued in compliance with ss. 263, 265 and 268 C.J.A., the Conseil, for its part, concluded that the litigant’s complaint required investigation but did not broach the question of a sanction (which, admittedly, would have been premature). After having revisited certain facts, the Conseil thus decided that:

[TRANSLATION]

Analysis

[20] A review of the complaint does not permit summary judgment. It is appropriate to continue the complaint’s progress through the process ordered by the Courts of Justice Act.

[21] Listening to the audio recording of the hearing raises serious questions regarding the judge’s conduct. The inquiry will, among other things, permit light to be shed on the judge’s conduct.

103 Except at the stage of the report itself. 104 This formal complaint was prepared by counsel for the New Brunswick committee of inquiry pursuant

to s. 6.9, para. 10 of the Provincial Court Act, as it then was (that counsel subsequently acted as the prosecutor, s. 6.10, para. 4 of the same act; this is not the case in Quebec, where counsel assisting the committee of inquiry does not fulfill this function, according to the Règles de fonctionnement concernant la conduite d’une enquête and s. 281 C.J.A.). The complaint in question is reproduced at para. 5 of the judgment in Moreau-Bérubé, supra, fn. 47.

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[22] The gathering and analysis of the facts will also allow us to, among other things, determine whether the judge acted within the confines of the law, with integrity, dignity and honour, if he was able to be discrete, courteous and serene and if he meaningfully and diligently fulfilled the duties of his office.

Conclusion

[23] IN CONCLUSION, the Conseil de la magistrature decides to investigate the complaint filed by Mr. Marcel Drolet concerning Judge R. Peter Bradley.105

[156] The silence continued. Counsel assisting the Committee of Inquiry pursuant to s. 281 C.J.A., while not serving as a prosecutor, had the role of presenting “[TRANSLATION] observations on questions of fact and law with respect to the merits of the complaint, as well as with respect to the appropriate sanction”.106 He never raised the question of removal, except in an abstract way and without indicating that this would be an appropriate route to take here. In the written comments he made to the Committee, he indicated only this:

[TRANSLATION]

38. If the Committee of Inquiry concludes that the complaint is founded, it must recommend a sanction to the Conseil. Unfortunately, the law does not provide for much leeway with respect to the sanction:

“Courts of Justice Act, CQLR, c. T-16, s. 279:

If the report of the inquiry establishes that the complaint is justified, the council, according to the recommendations of the report of the inquiry,

(a) reprimands the judge; or

(b) recommends that the Minister of Justice and Attorney General file an application with the Court of Appeal in accordance with section 95 or section 167.

If it makes the recommendation provided for in paragraph b, the council suspends the judge for a period of thirty days.

39. The recommendation mentioned at paragraph (b) is dismissal of the judge.

40. In the De Michele case, counsel assisting the Committee, basing itself on the fact that the judge had reoffended, had invited the Committee to conclude that the ethical breaches alleged rendered the judge unable to perform the duties of the office. The Committee instead concluded that a severe reprimand was the most

105 Exhibit CA-2, Decision after Review of the Complaint, 2015-CMQC-105, March 8, 2016. 106 S. 22 of the Règles de fonctionnement concernant la conduite d’une enquête.

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appropriate sanction “[TRANSLATION] considering the absence of any intermediate measure between a reprimand and a recommendation for dismissal.” (par. 48)107

[157] It comes through fairly clearly in these remarks that, without expressly giving an opinion, counsel for the Committee implicitly recommended the same sanction as that in the De Michele case (where the judge had, as here, been the subject of a first reprimand sanctioning a previous ethical breach), that is to say, a reprimand. And this is exactly what counsel for Judge Bradley understood when at para. 40 of his “[TRANSLATION] challenge to the written argument of the advising attorney to the committee of inquiry”108 he indicated:

40. The respondent judge acknowledges the fact that counsel for the committee does not suggest a sanction other than reprimand.

[158] Finally, during pleading, counsel assisting the Committee declared that:

With respect to the sanction, and I will finish on this, I noted that in the De Michele case, there were repeat offences.

If the Committee recommends that the Conseil impose a sanction, this would also be a case of a repeat offence.

In De Michele, a decision from last spring, counsel had sought nothing less than recommendation for dismissal, but the Committee again recommended a reprimand.

So, that’s the precedent that I wanted to submit to you.109

[159] We may well try to dissect those words and suggest that counsel was in fact favourable to the removal, but did not recommend it solely because of the De Michele “precedent”. But, he actually said too little for anyone to conclude that this was indeed his intention, which he could have expressed much more clearly, if that was indeed what he intended.

[160] It should come as no surprise then that counsel for Judge Bradley (who pled, above all, the absence of an ethical breach) concluded that his colleague contemplated only reprimand, as his reply before the Committee shows:

[TRANSLATION]

For my part, I am convinced that Mr. Judge Bradley, who candidly expressed himself before you, with all of his experience, his competency… it is

107 Exhibit CA-8, p. 12. 108 Exhibit CA-23, p. 6. 109 Transcripts of the pleadings before the Committee of Inquiry, October 3, 2016, Exhibit CA-22, p. 142.

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true that this is a man, a pedagogue, who explains and re-explains with conviction, that he has already been blamed, he told you that he lives with this sanction every day, that he does everything he can to improve, but I do not think that the facts of this case justify reprimanding him.110

[161] Finally, it should be noted that the transcripts of the Committee’s inquiry reveals the Committee members asked no questions and offered no comments with respect to the sanction. They did not ask counsel to provide their views on removal or indicate, for example, that it would be wise to address the issue, their decision not having yet been made. They must have, however, observed the direction taken by both counsel. Their reserve is perhaps understandable, but if a court may, without contravening its duty of impartiality or indicating its intentions in advance, draw the parties’ attention to deficiencies in their evidence (art. 268 C.C.P.) or submit a question to them proprio motu, it is certainly possible for the members of a committee of inquiry (amongst which three judges, in principle experienced with art. 268 C.C.P.) to do so without violating or revealing their inclinations,111 even if this might – as in other proceedings – require some degree of gymnastics (such gymnastic would be unnecessary, of course, if the inquiry were split, see supra, para. [150]).

[162] On another note, it is true that the suggestion of assisting counsel in no way binds the committee, which is free to recommend either of the two sanctions provided for by law once the nature of the misconduct and the ethical breach have been established. It is also true that, having the benefit of advice and representation from counsel (and, here, I shall paraphrase Arbour J. in Moreau-Bérubé), Judge Bradley certainly did not need to be reminded of the terms of s. 279 C.J.A. and the existence of the two sanctions set out by this provision. One might also say that he could not simply rely on assisting counsel and that he needed only to prepare himself appropriately for both possible outcomes. Given the way in which the inquiry unfolded, however, in light of the remarks of counsel assisting the Committee, and faced with the silence of the Committee members on the question of sanction, one could reasonably believe that Judge Bradley was misled, the possibility of removal that ultimately materialized in the Committee’s report having never been mentioned.

[163] At the very least, one might be of the view that, all things considered, and in light of the rules generally applicable in disciplinary matters as well as s. 16 of the Règles de fonctionnement concernant la conduite d’une enquête (which did not exist at the time of Therrien), Judge Bradley could legitimately conclude that the sanction could be no worse than a reprimand.112 In the case at hand, and in the absence of split proceedings, which

110 Transcripts of the pleadings before the Committee of Inquiry, October 3, 2016, Exhibit CA-22, p. 157. 111 Para. 2 of s. 275 C.J.A. allowed them, moreover, to draw inspiration from the Code of Civil Procedure

for the purposes of conducting the inquiry. 112 I specify that I am not referring here to legitimate expectations within the meaning of Baker v. Canada

(Minister of Citizenship and Immigration), supra, fn. 61, which would have been based on past practice or procedural representations.

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would have respected procedural fairness and prevented any difficulties (including for the Committee itself), the Committee should have at least advised Judge Bradley that removal had not been ruled out and they should have offered to hear him on this issue (as in Therrien).

[164] For his part, Judge Bradley might not have thought it useful to request splitting the inquiry, to the extent that he believed he only faced, at worst, a recommendation for a reprimand. Faced with the possibility of removal, his attitude would undoubtedly have been different. But, he did not have the chance to consider this possibility (other than in a purely theoretical way) and to act accordingly.

[165] In short, for all of these reasons, and despite the judgments in Therrien and Moreau-Bérubé, I am of the view that the Committee failed to respect procedural fairness by not splitting the inquiry into two steps, one devoted to the existence of misconduct and the other to sanction. Subsidiarily, one may at least reproach the Committee for not having warned Judge Bradley that his submissions were incomplete,113 that he should consider removal and could not avoid this topic in his submissions (evidence and pleadings).

[166] Does this require that Judge Bradley’s application for judicial review be granted? This question must be answered in the negative.

[167] To the degree that the judgments in Therrien and Moreau-Bérubé are distinguishable for the reasons I have set out above, and considering my conclusion that the Committee did not act fairly by not splitting its inquiry, the application for judicial review should nevertheless be dismissed.

[168] Indeed, judicial review remains a discretionary remedy114 which may be refused when there exists an adequate alternative remedy,115 as is the case here: the de novo inquiry of the Court, pursuant to s. 95 C.J.A., obviates the procedural shortcomings on the part of the Committee. Certainly, there is some irony in the existence of this remedy (which is unrelated to Judge Bradley’s initiative and was imposed upon him), but remedy there is nonetheless.

[169] Indeed, the objective of this Court’s inquiry is clear and, this time, removal was the primary issue. There can have been no misunderstanding in that respect. The facts of the matter, moreover, are uncontested before the Court: it is only their nature and characterisation that remain at issue. Judge Bradley and his counsel have had ample

113 Relying on an adaptation of art. 268 C.C.P., which would have been permitted by s. 275, para. 2 C.J.A. 114 See, for example: Strickland v. Canada (Attorney General), [2015] 2 S.C.R. 713, para. 37 (majority

reasons, Cromwell J.); Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, paras. 36 and 40 (majority reasons, Binnie J.).

115 See: Strickland v. Canada (Attorney General), supra, fn. 114, paras. 40-45 (at para. 40, Cromwell J., writing for the majority, speaks of an “adequate alternative/solution de rechange adequate”.

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opportunity to explain why this sanction was not appropriate and to adduce relevant evidence.

[170] In short, in the circumstances, the procedural defect attributed to the Committee has been remedied by the very fact of the Court’s de novo inquiry. The Court explicitly addressed this sanction from every angle. It allowed Judge Bradley and his counsel to make all the representations they deemed necessary and to explain why removal would be a disproportionate sanction and, therefore, unjust and improper.

[171] Chief Justice Duval Hesler has precisely come to this conclusion, suggesting instead that a reprimand would sufficiently sanction Judge Bradley’s ethical misconduct. As I wrote at the start of these reasons, this is a conclusion which I share.

MARIE-FRANCE BICH, J.A.

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REASONS OF HILTON, J.A.

[172] The Court has before it two proceedings:

A. a motion on behalf of the Honourable R. Peter Bradley to judicially review the decision of the majority of an inquiry committee composed of five members (three judges, one member of the Bar and one other member of the public) of the provincial Conseil de la magistrature recommending that he be removed from office as a judge of the Court of Quebec following the filing of a complaint with it by Marcel Drolet116 dated January 21, 2016; and,

B. a referral from the Minister of Justice and Attorney General of Quebec pursuant to s. 95 of the Courts of Justice Act117 asking the Court to prepare a report as to whether Judge Bradley should be removed from office.

[173] I agree with my colleagues that Judge Bradley’s judicial review proceedings should be dismissed, although I do so for a single reason that can be stated briefly.

[174] In essence, the grounds of reproach he asserts were known to him prior to the commencement of the hearing, since he had previously undergone judicial misconduct proceedings in 2014 that led to him having a sanction imposed, albeit a lesser one than a recommendation for removal.118 The panel that rendered that unanimous decision was, like the panel in this matter, composed of three judges of the Court of Quebec, a member of the public and a member of the Bar. The decision adjudicated both the merits of the complaint and imposed a sanction, without there having been a separate hearing to

determine the sanction.

[175] In my view, it is now too late for Judge Bradley to assert the grounds of reproach in judicial review proceedings when he knew of their existence and the potential of a majority recommendation for removal that could be made by three members, two of whom were not judges. His position, in effect, is not based on principle, but on the particular outcome of the most recent hearing. One has to assume he would have been quite content with the dismissal of the complaint by the inquiry committee as it was constituted. A party in the position of Judge Bradley cannot wait to assert such serious grounds of attack, known in advance of the hearing, depending on its outcome.

116 Mr. Drolet was the plaintiff in a case on the roll of Judge Bradley in the Small Claims Division of the

Court of Quebec two days earlier on January 19, 2016. 117 R.S.Q., c. T-16. 118 2012 QCCMAG 62, Inquiry Report dated March 19, 2014.

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[176] For that reason, as the grant of judicial review is discretionary, I would dismiss his motion.

[177] With respect to the merits, I have reached a different conclusion from my colleagues and would recommend to the Minister that Judge Bradley be removed from office.

[178] My colleagues have set out at length the details of the proceedings before Judge Bradley that gave rise to the complaint against him and the constitution of an inquiry committee, his testimony before that committee, his testimony at the hearing before us, as well as the arguments submitted to us on his behalf. When reduced to their essentials, he justifies his conduct of the matter before him on the basis of provisions of the Code of Civil Procedure that came into force on January 1, 2016 that, from his perspective, emphasise the role of judges in promoting conciliation, including with respect to matters in the Small Claims Division of the Court of Quebec.119

[179] After a thorough review of the transcript of the hearing and his testimony, the inquiry committee concluded unanimously that Judge Bradley’s treatment of the parties and repeated insistence that they withdraw to undertake settlement discussions to resolve their dispute120 was compatible with only one conclusion: that he conducted himself in such a way so as to avoid hearing the case before him. He did so both by endlessly haranguing them to withdraw to discuss settlement, and by creating a reasonable apprehension of bias by constantly undermining the plaintiff’s case during his exchanges with him, all without having heard any evidence. Indeed, he was so successful in that respect that the defendant felt confident enough to say, having heard such belittling of his opponent, that he insisted that the plaintiff be made to satisfy his burden of proof.

[180] Even worse, he created a pretext for postponing the case that neither party

required nor requested by attributing unwarranted significance to a certificate of location establishing the boundary line between the parties’ properties that had not been filed beforehand, but which both parties had with them. This certificate of location had no bearing on the judicial resolution of the dispute before him, which related to damages to the plaintiff’s fence that separated their respective properties. In provoking the postponement, he exposed the parties and their witnesses to the unnecessary inconvenience and expense of having to return to have the case adjudicated by a different judge. The subsequent hearing in the Court of Quebec occurred on April 25, 2016 and the judgment granting the plaintiff’s claim was rendered on April 29, 2016. The judgment makes no reference or allusion to a certificate of location.121

119 See Articles 540 and 561 C.C.P. 120 I counted at least seven separate such instances during the 34 minute hearing at which he presided. 121 2016 QCCQ 3155.

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[181] The inquiry committee was also mindful of the previous finding against Judge Bradley with respect to a similar complaint by litigants in the Small Claims Division to which I have referred above, which bore striking similarities to the circumstances of the complaint with which the committee was seized. The current inquiry committee quite properly unanimously rejected his speculative contention that had the provisions of the current Code of Civil Procedure been in force at the time of the prior complaint, it would have been dismissed.

[182] The unanimous conclusion of the inquiry committee that Judge Bradley breached ss. 1 and 6 of the Judicial Code of Ethics122 governing provincially appointed judges is not only reasonable but inescapable. It is difficult to imagine these two litigants having had a worse experience before a Small Claims Division judge. Moreover, nothing in Judge Bradley’s testimony in this Court hints otherwise. On the contrary, that testimony, as well as the written and oral pleadings of his counsel, were aimed at justification, as if it was open to the Court to set aside the unanimous finding of the inquiry committee that his management of the Drolet file amounted to judicial misconduct, which it is not. We are not, after all, sitting in appeal from its finding of judicial misconduct, but rather, determining only whether the consequence of that unanimous finding should be his removal from office.

[183] The disagreement between members of the inquiry committee was only with respect to the sanction.

[184] Those in the majority who opted to recommend removal did so largely because they considered that despite the previous reprimand he had been given, Judge Bradley’s testimony demonstrated that he misunderstood his role and that a second reprimand would have no more effect on him than the initial one.

[185] The majority members consisted of one of the three judges on the panel plus the two members of the public, one of whom was an experienced litigation counsel. I consider the perspective of the two members of the public on the appropriate sanction just as valid as that of the sitting judges, inasmuch as they represent the interests of the public who appear before judges, albeit in different contexts. Those in the minority regretted the unavailability of intermediary sanctions between a reprimand and removal, but essentially recommended against removal as in their opinion it would be too severe a sanction in the circumstances.

[186] The relevant legislation governing this referral requires us to respond to one question and one question only: do we recommend to the Minister of Justice that Judge Bradley be removed from office as a Court of Quebec judge. In that respect, the answer

122 Judicial Code of Ethics, c. T-16, r.1. These provisions provide that: 1) “The judge should render justice

within the framework of the law”, and, 6) “The judge should perform the duties of his office diligently and devote himself entirely to the exercise of his judicial functions”.

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is affirmative or negative, and the Court has no statutory or inherent jurisdiction to issue its own declarations such as those that appear in the formal order of my colleagues, which will undoubtedly come as a surprise to Judge Bradley since such a possibility was never pleaded before us.

[187] The legislation in only one other province – New Brunswick - provides so limited a choice in response to a finding of judicial misconduct of a provincially appointed judge.123

In all other provinces, there is a much wider range of options.124

[188] My colleagues have canvassed the relevant jurisprudence that led to removal from office of two provincially appointed judges, one from New Brunswick125 and one from Quebec.126 I believe that two more recent decisions of the Ontario Judicial Council, which performs the same function in that province pursuant to s. 51.8 of the Courts of Justice Act127 as this Court performs in Quebec with respect to potential removal from office of provincially appointed judges and is presided by a judge of the Ontario Court of Appeal, offer an excellent framework with which to examine the present matter.

[189] In the first case,128 a judge hearing criminal cases the morning after the U.S. presidential election of 2016 entered his courtroom wearing a “Make America Great Again” hat he had purchased during the election campaign. He did so, he said, because he thought “it would add a bit of humour by starting off the day with the hat”. The judge first engaged in some banter with counsel present, put the hat on his desk, and dealt with the matters before him. He removed the hat from the courtroom after the morning adjournment, and returned to court that afternoon to see if there were other judges who needed assistance to complete their roll. There not being any, he rose to leave the courtroom. One of the counsel present then stated, “You’ve lost your hat.” He replied that his having done so “pissed off the other judges because they all voted for Hillary. I was the only Trump supporter up there, but that’s okay.”

123 Provincial Court Act (New Brunswick), R.S.B.N. 1973, c. P-21, s. 6.11(4). Even there, in issuing a

reprimand, the Chief Judge may be directed by the Judicial Council to do so “with such conditions as (it) considers appropriate”.

124 See: Alberta – Judicature Act, R.S.A. 2000, c. J-2, ss. 37 & 38; British Columbia - Provincial Court Act, R.S.B.C. 1996, c. 379, s. 28; Manitoba - The Provincial Court Act, C.C.S.M. c. C275, s. 39.1(1); Newfoundland and Labrador - Provincial Court Act, S.N.L. 1991, c. 15, ss. 25.1 & 25.2; Nova Scotia - Provincial Court Act, R.S.N.S. 1989, c. 238, ss. 17K – 17M; Ontario – Courts of Justice Act, R.S.O, 1990, c. C-43, s. 51.6(11); Prince Edward Island – Provincial Court Act, R.S.P.E.I. 1988 c. P-25, ss. 10(5) – 10(7); Saskatchewan – The Provincial Court Act, 1998, S.S. 1998, c. P-30.11, s. 62(2).

125 Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11. 126 Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35. 127 Supra, note 147. A major difference, however, is that in Ontario, there is only one stage to the process,

which begins and ends with the recommendation of the Council, without any subsequent involvement of the Court of Appeal.

128 IN THE MATTER of 81 complaints respecting the Honourable Bernd Zabel, Ontario Judicial Council, decision of September 11, 2017.

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[190] A barrage of negative comments quickly followed when what I have just described was reported two days later in a Toronto newspaper. The thrust of these comments related to the judge associating himself with some of the campaign promises of the newly elected president as they related to women, minorities, immigrants and Muslims.

[191] On the first occasion that he returned to court after the newspaper articles had been published, with journalists present, the judge acknowledged his error, apologized

for his “misguided sense of humour”, and stated he did not mean to endorse any political views or comments. He further apologized for any hurt he may have caused, and described what he did as a breach of the principles of judicial office and a lapse of judgment that he sincerely regretted.

[192] The Judicial Council received some 81 complaints against Judge Zabel. Their essence was that by associating himself with the views of candidate Trump that were characterized as misogynistic, racist, homophobic and anti-Muslim, “women and members of various minority groups would reasonably fear that they would not be treated fairly and impartially by Justice Zabel.”129

[193] In disposing of the matter, the Council restated a list of factors it had previously considered in determining an appropriate sanction for judicial misconduct, inasmuch as the Council considered that Judge Zabel’s conduct “amounted to a serious breach of the standards of judicial conduct, that it had an adverse impact on public confidence in the judiciary and the administration of justice”, and that it warranted the imposition of a sanction.130 These factors are as follows:

1. Whether the misconduct is an isolated incident or evidenced a pattern of misconduct;

2. The nature, extent and frequency of occurrence of the acts of misconduct;

3. Whether the misconduct occurred in or out of the courtroom;

4. Whether the misconduct occurred in the judge’s official capacity or in his private life;

5. Whether the judge acknowledged or recognized that the acts occurred;

6. Whether the judge has evidenced an effort to change or modify his conduct;

7. The length of service on the bench;

8. Whether there have been prior complaints about this judge;

9. The effect of the misconduct upon the integrity and respect for the judiciary;

10. The extent to which the judge exploited his position to satisfy his personal desires.

129 Ibid., para. [20]. 130 Ibid., para. [37].

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[194] The Council also correctly noted that the object of proceedings of this nature is not to punish the judge, but to focus on “what is necessary to restore a loss of public confidence arising from the judicial conduct in issue”,131 and that proportionality requires it to consider the least serious disposition before moving sequentially to the most serious one.132

[195] The Council then considered aggravating and mitigating factors.

[196] As for aggravating factors, the Council noted that the impugned conduct occurred in the courtroom, it breached the duty not to express political views, and the widespread publicity it attracted in the media, the public and the profession “harmed the reputation of justice in this province”.133 There were, however, several mitigating factors: Judge Zabel’s rapid acknowledgment of judicial misconduct both publicly and before the Council, his understanding that his attempt at humour in court on November 9 was construed as an endorsement of controversial political views of Donald Trump and that they had a negative impact on the administration of justice.134

[197] In addition, the Council noted Judge Zabel’s efforts to modify his conduct and the support he received from a judge of the Superior Court of Justice who assisted him in that regard. There was also an “unblemished” 27-year record of service, and 63 expressions of written support from judicial colleagues, members of the Bar and the public135 in which he was praised for “hard work, professionalism, integrity, and for being helpful to other judges and counsel.”136

[198] In light of all of the foregoing, the Council imposed the most serious sanction available to it short of a recommendation for removal: a suspension without pay for 30 days137 combined with a reprimand.138

[199] More recently, the Council rendered a decision following a complaint against a provincially appointed judge in which the judge admitted misconduct.139 The impropriety was described as communicating confidential information to a party by text messages, using his friendship with the recipient of the text messages to gain access to confidential information, expressing his views about a matter involving that party with which he was seized, making inappropriate comments indicating a bias against that party that appeared

131 Ibid., para. [43]. 132 Ibid., para. [44]. 133 Ibid., para. [46]. 134 Ibid., para. [48]. 135 Ibid., para. [53]. 136 Ibid., para. [54]. 137 Ibid., para. [69]. 138 Ibid., para. [70]. 139 IN THE MATTER OF a complaint respecting the Honourable Justice John Keast, decision of the Ontario

Judicial Council dated December 22, 2017.

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before him regularly, providing legal advice to his friend and seeking to conceal the impugned text messages from those who might be affected by their content.140

[200] In deciding what sanction to apply, the Council considered the factors I have enumerated in sub-paragraphs 193.1 – 193.10:

1. While the conduct did not demonstrate a pattern of misconduct, it was not isolated as it took place over a three-month period;

2. The text messages constituted misconduct as described in paragraph [215] above;

3. The misconduct did not take place in a courtroom but brought into play simultaneously his personal life and his judicial role;

4. The text messages improperly blurred his official and personal lives;

5. He immediately acknowledged the impropriety of his misconduct upon being made aware of the complaint;

6. He undertook counselling, the results of which show his understanding of his misconduct and the unlikelihood that he would engage in such conduct again;

7. He has a lengthy record of unblemished and exemplary service;

8. There are no prior incidents of judicial misconduct;

9. He remains a respected judge, and the panel received 60 letters of support on his behalf;

10. The acknowledged misconduct did not consist of exploitation of his judicial position nor to satisfy personal desires.

[201] The Council did not follow either the recommendation of its presenting counsel141 that he be suspended without pay for 15 days, nor that of counsel for the judge that he be given a warning. Instead, it issued the second most serious sanction combined with others: a reprimand, plus an order that he apologize to those individuals and the party affected by his misconduct, and that he be suspended without pay for 30 days.

140 Ibid., para. [28]. 141 This position is from all appearances not like that of an amicus curiae such as we had at the hearing

before us, but rather akin to someone who presents the evidence against the judge and also participates in the argument relating to an appropriate sanction.

200-09-009462-174 PAGE: 56

[202] How then would the impugned conduct of Judge Bradley measure up in regard to the factors identified by the Ontario Judicial Council in the two cases to which I have referred?

[203] At the outset, I note the absence of any mitigating factors of the kind identified in the two Ontario cases. Judge Bradley has not acknowledged any wrongdoing, and accordingly has not expressed any regret for his conduct in the Drolet case, promptly or

otherwise, nor has he made a clear and unambiguous commitment to act differently if he is not removed from office. The extract from his testimony before us that I have attached as a schedule to my reasons is ambiguous at best when looked at in the context that he continues to believe that the unanimous decision of the inquiry committee that he violated the Code of Ethics was unfounded.

[204] Furthermore, he went so far as to testify that none of the judges on the panel had relevant experience in the Small Claims Division,142 and that in his view, the inquiry committee decision was unfounded and should be corrected.143 Apart from the fact that it is not our role to do so, as we are not sitting in appeal from that decision, we have no evidence to suggest that the case management style he adopted in the Drolet case is replicated by any other judges sitting the Small Claims Division.

[205] The first four items as well as item eight can be answered by noting the detailed and unanimous finding of the inquiry committee to the effect that the misconduct occurred in the exercise of his judicial functions inside a courtroom, and that it represents the repetition of exactly the same misconduct for which he was reprimanded less than two years previously in 2014. His arguments based on provisions of the new Code of Civil

Procedure cannot be sustained.

[206] As for the fifth and sixth items, Judge Bradley acknowledged the facts giving rise

to the current complaint, but refused to recognize any wrongdoing before the inquiry committee or this Court, let alone express remorse or apologize. On the contrary, his testimony was aimed at justifying his conduct by reason of the coming into force of a new Code of Civil Procedure on January 1, 2016.

[207] He further asserted in argument that any of his decisions during the hearing were made in the exercise of his judicial discretion and could not properly be the subject of a complaint of judicial misconduct.

[208] First, the only “judgment” he rendered during the course of the hearing in question was to postpone the trial. The gravamen of the complaint against him is the manner in which he conducted the hearing and his repeated insistence that the parties withdraw to attempt to settle the case. Moreover, the parties had no effective recourse against the

142 Testimony of Judge Bradley, transcript of November 21, 2017, pp. 205-206. 143 Ibid.

200-09-009462-174 PAGE: 57

only judgment he rendered since judgments of the Small Claims Division cannot be appealed nor challenged by judicial review except for absence or excess of jurisdiction.144 Such immunization from appellate or judicial review makes it all the more important that proceedings be conducted in complete conformity with the governing code of ethics.

[209] With respect to the seventh item, Judge Bradley has been a member of the provincial judiciary since 2002. There is no doubt that his background prior to his

appointment amply qualified him for judicial appointment. His career as a judge would seem to have been perfectly normal but for the two disciplinary complaints he has faced and the methodology he has adopted in the Small Claims Division to arm-twist the parties to engage in a conciliation process instead of adjudicating their case. Indeed, a reading of the transcript of one of his interventions with the parties before him in the earlier case (which resulted in the plaintiff’s claim being abandoned), and the reaction of the inquiry committee seized of that complaint,145 bear a striking resemblance to what transpired in the Drolet case:

[…]

LA COUR :

Alors, ceci étant dit, j’ai, par ailleurs un pouvoir de conciliation, en vertu de la loi,

je siège pas, aujourd’hui, en chambre civile, ou alors, je suis médiateur, je fais

partie d’une équipe dédiée à cet égard, alors, je peux pas vous accompagner dans

une autre salle pour tenter de voir s’il y a possibilité d’un règlement dans le dossier.

Mais, cependant, j’ai un pouvoir de conciliation. Donc, si vous le jugez à propos,

vous êtes pas obligés d’accepter, on peut suspendre, vous allez vous parler dans

une autre salle, pour voir s’il y a pas un terrain d’entente qui pourrait convenir.

Parce que, en bout de ligne, vous, vous demeurez plus là pis, vous, c’est une

somme d’argent que vous voulez avoir, bon, pis en autant que vous fassiez la

preuve prépondérante, parce que si vous faites pas la preuve prépondérante, on

oublie ça carrément, et ça peut poser problème, hum.

[…]

Moi, je constate que, actuellement, là, on a des problèmes pis, comme vous avez

le fardeau de la preuve, ça… ça démarre pas bien, là. Pis dire que d’autres ont eu,

oui, je veux bien le croire, mais, là, personne est là pis la qualité du plancher, oui,

mais non, il y a personne qui…

144 Art. 564 C.C.P. 145 See paragraph [40] of the decision of the inquiry committee.

200-09-009462-174 PAGE: 58

Alors, ça va… ça va pas si bien que ça.

Pis vous me dites : « Oui, ben, peut-être que monsieur Dionne existe pas.»

Pis, là : « Ben, non, il existe ce monsieur-là, pis là j’ai peut-être regardé à la

mauvaise place, t’sais. »

Oui, il y a peut-être une autre filière que vous avez pas ouverte pis, ah ! regarde

donc ça, oh, surprise !

Alors, tout ça pour vous dire, si vous voulez le faire, l’exercice, c’est une

suggestion : je peux suspendre, vous allez vous parler dans une autre salle, pour

voir s’il y a pas un terrain d’entente raisonnable qui ferait en sorte que, oui, vous

pourriez decider, là, d’un accomodement qui vous a… qui vous arrangerait, de part

et d’autre.

Et si c’est ça, s’il y en a un, vous le mettez par écrit, vous revenez en salle, on

l’examine. Si tout le monde le trouve raisonnable, ça devient votre jugement.

Vous êtes pas obligés de le faire déposer au dossier de la Cour, une déclaration

de règlement hors Cour peut être tout aussi bien, parfaitement légale.

Le gros avantage de procéder comme ça, et d’avoir une entente, c’est que ça

devient votre jugement, c’est vous qui contrôlez l’issue.

Sinon, c’est le Tribunal.

Alors, s’il y a pas d’entente, vous revenez, tatata : « Pas d’entente. » Bon. On s’est

au moins parlé, c’est déjà bon, pas dans la bonne direction, « Malheureusement,

on n’a pas d’entente. »

Ben, à ce moment-là, soit qu’on procède avec les… les problèmes de preuve qu’il

y a dans le dossier, dont je vous ai fait part, et, si la prevue est pas rencontrée,

ben, je vais être obligé de rejeter, malheureusement, d’un bord et de l’autre.

Si, par contre, vous dites : « Ben, dans ce cas-là, on est aussi ben de repenser à

notre affaire, on va essayer de vous contacter pis de, bon, ramasser notre preuve

en conséquence », fort bien, alors, le dossier sera remis, vous serez reconvoqués

pis, à ce moment-là, on reprendre ça. Quand ? Ne me le demandez pas, c’est pas

moi qui gère ça.

[…]

200-09-009462-174 PAGE: 59

[210] Judge Bradley may have had only two complaints during his career as a Court of Quebec judge, but his testimony of justification suggests there is no reason to think he has acted any differently in all the other Small Claims Division cases he has heard, which is a factor that cannot be ignored.

[211] As far as item nine and the effect of his misconduct on the integrity and respect for the judiciary is concerned, the transcript when read as a whole leaves the clear

impression that he did everything he could to avoid hearing the case, and that he did not treat the parties with the dignity and respect to which they were entitled. It is hard to imagine a more direct assault on the integrity of and respect for the judiciary.

[212] I therefore endorse without hesitation what the inquiry committee that adjudicated his first complaint said, as reproduced at paragraph [40] of the decision of the second inquiry committee:

[102] Les propos d’un juge ou encore son attitude à la Cour sont en partie l’image

de la magistrature pour le public et peuvent avoir une influence sur la confiance

du public envers elle.

It is now obvious those earlier comments did not influence his conduct in the case of Mr. Drolet.

[213] I also note that the complaint against Judge Bradley asserts that he demonstrated no respect for Mr. Drolet, which is certainly borne out by the transcript of the hearing. His denigration of the plaintiff’s case was constant without having heard a single witness. Some of the propositions he put forward, such as the inadequacy of the statement of account for lack of detail from the individual who repaired the fence, was an obvious effort to persuade the plaintiff to reduce his claim for purposes of settlement or, worse, to dissuade him from proceeding at all. Upon being informed that the individual in question was present to testify to this supposed inadequacy, Judge Bradley reacted by asserting that allowing such testimony would take the defendant by surprise. That is yet another patently evident attempt to impugn the plaintiff’s case when the obvious purpose was to cajole him into reducing his claim to promote the possibility of a settlement.

[214] Judge Bradley’s treatment of the defendant was no less salutary in respect of the criticism he directed at him for precipitating a postponement because of the late filing of a certificate of location, which did not take the plaintiff by surprise since he also had a copy with him, and which in any event had no bearing on the merits of the claim, one way or the other. It is important to note that neither party requested a postponement; the judge purports to have done so to protect the plaintiff, which cannot be taken seriously. The judge’s gratuitous imposition of costs of the day against the defendant amounts to nothing less than an abuse of judicial discretion.

200-09-009462-174 PAGE: 60

[215] Judges who preside cases in the Small Claims Division have a difficult and delicate task. They must hear and decide cases based on principles of law that are presented by individuals who, in the vast majority of cases, have no legal training. In such circumstances, the quality of patience and understanding of the difficulties such parties face is essential. Such qualities were plainly lacking in the case giving rise to Mr. Drolet’s complaint against Judge Bradley.

[216] In short, I find the judge’s explanation of his conduct both before the inquiry committee and this Court to be patently unjustifiable when all of the facts and circumstances are examined.

[217] Far from being remorseful, Judge Bradley seeks vindication. As a result, I have no confidence that another reprimand will change his ways. I agree with what the inquiry committee unanimously concluded in this respect:

[63] À l’évidence, malgré la réprimande dont il a fait l’objet, le juge ne comprend

pas la portée de ses obligations déontologiques dont les principales sont

d’entendre les parties et de rendre jugement. Au contraire, il est convaincu que

son attitude est la bonne et il se sent conforter par les dispositions du nouveau

Code de procédure civile.

[218] That attitude stands in sharp contrast to the reaction of the two provincial court judges in Ontario, who not only admitted their misconduct, but apologized at the first opportunity, and took remedial measures to ensure they would not repeat their errors. They thus avoided the ultimate sanction of removal, but nevertheless had the penultimate sanction imposed on them.

[219] What we should have uppermost in our minds in deciding whether a reprimand or removal is the appropriate sanction is this: does the restoration of public confidence in the administration of justice permit us to recommend the return of Judge Bradley to his duties as a Court of Quebec judge with the mere hope that history will not repeat itself again, or do we decide that history should not repeat itself again by recommending his removal from office, leaving it to the Minister to decide whether or not to adopt our recommendation?

[220] It is on this aspect of the matter that I part company with my colleagues in the majority. They are just as critical as I am of the manner Judge Bradley handled the Drolet case that gave rise to the second such complaint of judicial misconduct against him.

[221] Indeed, the reasons of the Chief Justice criticize him, amongst others, in the following respects: (1) Paragraph 47: Judge Bradley does not understand that mediation and conciliation are consensual,; they cannot be imposed; (2) Paragraph 48: A reading of the transcript and listening to the recording of the hearing show that Judge Bradley improperly invoked provisions of the new Code of Civil Procedure to justify conduct that

200-09-009462-174 PAGE: 61

amounted to serious ethical shortcomings; (3) Paragraph 49: He acknowledged that his conduct as aforesaid deprived him of the required impartiality to preside at the trial of the action; (4) Paragraph 50: He continued to challenge the correctness of the decision of the inquiry committee now before us that he committed a breach of ethics and should not have been reprimanded; (5) Paragraph 72: He was wrong to have invoked the concept of judicial independence at the hearing he presided as a basis to justify his misconduct; (6) Paragraph 98: The manner in which he conducted the hearing in question was

unacceptable and the fact that the hearing did not take place is inexcusable.

[222] It is difficult to reconcile such a convincing analysis with a mere reprimand for someone already found to have breached the applicable judicial code of ethics on exactly the same basis, less than two years after the first finding of misconduct. The inevitable effect of the majority opinion will be properly perceived as giving more emphasis to the interests of the judge than to the restoration of public confidence in the administration of justice, which should be the Court’s overriding concern. It also has the unfortunate effect of not upholding the high standards expected of someone who has the distinction of holding judicial office in Quebec, as the eloquent description of the judicial function by Gonthier, J. makes clear: 146

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

108 La fonction judiciaire est tout à

fait unique. Notre société confie

d’importants pouvoirs et

responsabilités aux membres de sa

magistrature. Mis à part l’exercice de

ce rôle traditionnel d’arbitre chargé de

trancher les litiges et de départager

les droits de chacune des parties, le

juge est aussi responsable de

protéger l’équilibre des compétences

constitutionnelles entre les deux

paliers de gouvernement, propres à

notre État fédéral. En outre, depuis

l’adoption de la Charte canadienne, il

est devenu un défenseur de premier

plan des libertés individuelles et des

droits de la personne et le gardien des

valeurs qui y sont enchâssées :

Beauregard, précité, p. 70, et Renvoi

sur la rémunération des juges de

cours provinciales, précité, par. 123.

En ce sens, aux yeux du justiciable qui

se présente devant lui, le juge est

146 Therrien (Re), supra, note 149, [2001] 2 S.C.R. 3, paras. 108-110.

200-09-009462-174 PAGE: 62

foremost the ones who state the law,

grant the person rights or impose

obligations on him or her.

d’abord celui qui dit la loi, qui lui

reconnaît des droits ou lui impose des

obligations.

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).

109 Puis, au-delà du juriste chargé

de résoudre les conflits entre les

parties, le juge joue également un rôle

fondamental pour l’observateur

externe du système judiciaire. Le juge

constitue le pilier de l’ensemble du

système de justice et des droits et

libertés que celui-ci tend à promouvoir

et à protéger. Ainsi, pour les citoyens,

non seulement le juge promet-il, par

son serment, de servir les idéaux de

Justice et de Vérité sur lesquels

reposent la primauté du droit au

Canada et le fondement de notre

démocratie, mais il est appelé à les

incarner (le juge Jean Beetz,

Présentation du premier conférencier

de la Conférence du 10e anniversaire

de l’Institut canadien d’administration

de la justice, propos recueillis dans

Mélanges Jean Beetz (1995), p. 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:

110 En ce sens, les qualités

personnelles, la conduite et l’image

que le juge projette sont tributaires de

celles de l’ensemble du système

judiciaire et, par le fait même, de la

confiance que le public place en celui-

ci. Le maintien de cette confiance du

public en son système de justice est

garant de son efficacité et de son bon

fonctionnement. Bien plus, la

confiance du public assure le bien-

être général et la paix sociale en

maintenant un État de droit. Dans un

ouvrage destiné à ses membres, le

Conseil canadien de la magistrature

explique :

200-09-009462-174 PAGE: 63

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)

La confiance et le respect que le

public porte à la magistrature sont

essentiels à l’efficacité de notre

système de justice et, ultimement, à

l’existence d’une démocratie fondée

sur la primauté du droit. De nombreux

facteurs peuvent ébranler la confiance

et le respect du public à l’égard de la

magistrature, notamment : des

critiques injustifiées ou malavisées;

de simples malentendus sur le rôle de

la magistrature; ou encore toute

conduite de juges, en cour ou hors

cour, démontrant un manque

d’intégrité. Par conséquent, les juges

doivent s’efforcer d’avoir une conduite

qui leur mérite le respect du public et

ils doivent cultiver une image

d’intégrité, d’impartialité et de bon

jugement.

(Conseil canadien de la magistrature,

Principes de déontologie judiciaire

(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

111 La population exigera donc de

celui qui exerce une fonction judiciaire

une conduite quasi irréprochable. À

tout le moins exigera-t-on qu’il

paraisse avoir un tel comportement. Il

devra être et donner l’apparence

d’être un exemple d’impartialité,

d’indépendance et d’intégrité. Les

exigences à son endroit se situent à

un niveau bien supérieur à celui de

ses concitoyens. Le professeur Y.-M.

Morissette exprime bien ce propos :

[L]a vulnérabilité du juge est

nettement plus grande que celle du

commun des mortels, ou des «élites»

200-09-009462-174 PAGE: 64

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]

en général : c’est un peu comme si sa

fonction, qui consiste à juger autrui, lui

imposait de se placer hors de portée

du jugement d’autrui.

(« Figure actuelle du juge dans la cité

» (1999), 30 R.D.U.S. 1, p. 11-12)

Le professeur G. Gall, dans son

ouvrage The Canadian Legal System

(1977), va encore plus loin à la

p. 167 :

[TRADUCTION] Les membres de

notre magistrature sont, par tradition,

astreints aux normes de retenue, de

rectitude et de dignité les plus strictes.

La population attend des juges qu’ils

fassent preuve d’une sagesse, d’une

rectitude, d’une dignité et d’une

sensibilité quasi-surhumaines. Sans

doute aucun autre groupe de la

société n’est-il soumis à des attentes

aussi élevées, tout en étant tenu

d’accepter nombre de contraintes. De

toute façon, il est indubitable que la

nomination à un poste de juge

entraîne une certaine perte de liberté

pour la personne qui l’accepte.

[Soulignage ajouté]

[223] As I hope I have made clear in these reasons, I opt to place the interest of the public and the restoration of confidence in the proper administration of justice ahead of that of Judge Bradley. Accordingly, I would recommend to the Minister of Justice that Judge R. Peter Bradley be removed from office as a judge of the Court of Quebec.

ALLAN R. HILTON, J.A.

200-09-009462-174 PAGE: 65

SCHEDULE

[TRANSLATION]

THE HONOURABLE JACQUES LEVESQUE:

Q With the agreement of my colleagues, of course, Judge Bradley, you know

very well that we are not sitting in appeal of the decision rendered. We are

proceeding with an inquiry at the request of the Minister of Justice

I will ask you a question slowly, to make sure that you understand it well and also,

that you take the time to answer it to the best of your knowledge, because we seek

to be clear on your position.

Judge Bradley, you have given us the reasons for your decision not to hear the

case, to postpone it and to withdraw from the file, and you have explained those

reasons to us.

Today, at this time, has your thinking evolved in respect of the reproaches which

have been addressed to you concerning your refusal to hear the case?

A Well I would answer as follows: obviously, the decision of the Committee

seems to mean that they want to set norms concerning ah… my work and

my…understanding ah… of the…ah… my… my understanding of the new legal

provisions… ah… and that I will have to strongly take that into consideration and

readjust… the process, as the case arises, …of…of…of…conciliation even though

that is a little complicated, taking into account those new legal provisions also.

So, how is one to conciliate in the Small Claims Division?

Well, ah… and at the beginning, make it so that ah… if it does not work out, well

then… hear the case, but – hear the case, I have no problem with that but I always,

perhaps I am wrong … take care to make sure… that the evidence is complete…

ah… in those… in the files and if I say: “Well, you want to proceed, we will proceed”

and we set out in trial mode, well then, I render a decision, and then say: “Well,

this evidence was lacking, I had warned you, you did not heed my warning, well

you will have to live with my judgment!”

Yes, well.

So I think that …ah… I will definitely have to… set limits to the… the

possibilities…ah…of conciliation – and if the parties do not seem open to the idea,

well then, take all means possible to hear the case, in the circumstances, although

200-09-009462-174 PAGE: 66

things become, maybe, a little peculiar, when one has explained that there are

elements missing, and they insist on proceeding just the same; that is another

problem … ah… that we have, a problem that appears in… in all divisions, even in

the civil division, obviously.

So, this is something to be emphasized and then we say: “Well then, we will

proceed in any event, so lets proceed.”

So, definitely, as far as I am concerned, I will have to adjust … ah… in the… in…in

the circumstances.

Ah… There we are.

It’s not because I do not want to hear trials, quite the opposite, I want to hear them,

I want to pronounce judgments, but it seems to me, perhaps I am wrong, that what

is important is that litigants may fully exercise their rights, even if that looks

suspect, because: “Well, because you would not go into conciliation, well I am

postponing your case.”

I don’t believe that’s the case, even though it may seem so.

I think the reasons I gave in this matter, a matter of troubles between neighbours,

it was the thing to do, but it does not mean that in all files, it would be the thing to

do, quite the opposite, in cases where it is not a dispute between neighbours.

So there.

I can put such considerations aside and simply proceed while telling myself: “Well,

I tried to do everything I could, in a reasonable way. It did not work out, so well,

let’s proceed and have the trial, that’s all.”

Well.

As I told you, the problem is, it depends on the file we get. That too is… it’s that

also but, well, if it’s preferable, I don’t know, if it’s better to adapt, well, for my part,

I am in agreement, I have no problem in adapting. But perhaps I find it peculiar to have to restrict our role, our mission to attempt to conciliate, if

circumstances allow.

I don’t do it… there are conditions; if the conditions are met, it seems to me that…

it’s an option that should be considered seriously… ah… and if that’s not the case,

well, what…

200-09-009462-174 PAGE: 67

But, between that and postponing the case because they would not compromise,

well, I don’t think that’s right, but …ah… in the circumstances, that is what

motivated me, because it was trouble between neighbours, and I thought it was

clearly preferable, to… to… at least not have parties… who were… not totally

hostile, but in a difficult relationship, well, I think that the… the serenity would have

been lacking to do the trial, at that time, for one thing.

And it is one of the reasons for which I, there, I recused myself from the file also,

in the circumstances.

THE CHIEF JUSTICE:

Thank you…

A I would end…

THE CHIEF JUSTICE:

Judge Bradley?

A By saying that I love my work as a judge, immensely, I take it to heart, and

I hope to be able to resume my work as a judge.

I thank you very much for having listened to me and heard me.

I wish you a good advis… - well, I will not presume, but I was going to say, “a good

advisement process.”

Experience tells me that, yes, it could be otherwise.

But, in the end, I will say no more.

Please excuse me.