In October 2002, the Attorney General of Quebec requested an inquiry to determine if Justice Jean-Guy Boilard was guilty of misconduct or a failure to execute his office

20030003 - In October 2002, the Attorney General of Quebec requested an inquiry to determine if Justice Jean-Guy Boilard was guilty of misconduct or a failure to execute his office. At issue was the judge’s decision to recuse himself from a highprofile trial that he was conducting in 2002 against a group of Hell’s Angels’ bikers accused of crimes that included murder and narcotics trafficking.

The background to this inquiry was described in the Council’s Annual Report for 2002–03, and the matter proceeded to its conclusion in 2003– 04. During the trial, a lawyer acting in a separate but related trial complained to the Council about allegedly disparaging remarks made by the judge at an earlier trial. The Council reviewed the allegations and, though it found the conduct not serious enough to warrant Justice Boilard’s removal from office, concerns were expressed to him in the written decision. The press learned of the findings before the judge had read the Council’s letter. Feeling that he had lost the “moral authority” to preside over the court, Justice Boilard opted to recuse himself from the current trial, and a new trial was subsequently ordered. The recusal resulted in a considerable loss of time and money and, in the view of the Attorney General of Quebec, put the delivery of justice at risk.

A three-person Inquiry Committee was established to consider the matter. During the hearing, the independent counsel (who marshals and presents evidence on behalf of the public) submitted that the judge’s decision could not be reviewed by the Council as it concerned the judge’s capacity to preside with complete independence and impartiality. Counsel for Justice Boilard argued that there was no prima facie evidence of misconduct and therefore no case to answer. Counsel for the Attorney General of Quebec expressed disagreement with the rationale for Justice Boilard’s decision and posed certain ethical questions.

The Inquiry Committee concluded that Justice Boilard’s decision to recuse himself was “improper,” especially given that the original complainant was not appearing before him in the biker trial. The report added that the judge had misunderstood the nature of the Council’s intervention, which did not question his ability to carry out his duties effectively; it merely urged him to “alter his approach in his relations with counsel.” The report went on to state that, despite this finding, the judge was not guilty of conduct that incapacitated him from the due execution of his office. Accordingly, the committee did not find that a recommendation for removal of the judge from the bench was warranted.

The Council, in reviewing the report of the Inquiry Committee, agreed that there were no grounds for removal. It also concluded, however, that the judge had acted in good faith and within his prerogative as a judge. The Council reported to the Minister of Justice that “a discretionary judicial decision cannot form the basis for any of the kinds of misconduct, or failure or incompatibility in due execution of office, contemplated by…the Judges Act.” The Boilard case illustrates the review process when a complaint comes not from a member of the public but from a provincial Attorney General. In such cases, an Inquiry Committee must be convened and the Council must subsequently submit its recommendation to the Minister of Justice.