Inquiry Committee finds Boilard decision "improper" but not grounds for removal from bench
OTTAWA, August 8, 2003 - Mr. Justice Jean-Guy Boilard's decision to withdraw from a Quebec bikers' trial was "improper" but not grounds for his removal from the bench, a judicial inquiry has concluded.
In citing an expression of disapproval from the Canadian Judicial Council as his reason for abandoning the conduct of the trial, Mr. Justice Boilard "acted with undue haste, guided more by his personal feelings than by an objective view of the situation," said an Inquiry Committee of the Council, in its report released today.
The judge's conduct lacked concern "for the due administration of justice and the image of detachment and calm which the judiciary should project to the public" and for those reasons the judge "failed in the due execution of his office" within the meaning of the Judges Act, the Inquiry Committee concluded. But it said his conduct did not incapacitate or disable Mr. Justice Boilard from the due execution of his office and it did not recommend his removal from the bench.
Attorney General sought inquiry
The Attorney General of Quebec asked the Council on October 28, 2002 to carry out an inquiry into whether Mr. Justice Boilard's July 22, 2002 decision to abandon the conduct of a "Hell's Angels mega-trial"constituted misconduct or grounds for removal under terms of the Judges Act.
Mr. Justice Boilard had been the subject of a complaint from lawyer Gilles Doré about a previous case, which led a Panel of the Council to express disapproval of the judge's "lack of patience and excessive remarks".
Mr. Justice Boilard stated that because of what he termed the "reprimand" he felt he no longer had "the moral authority, and perhaps also the necessary capacity," to preside over the bikers' trial and he was thinking about retirement. At the time, 113 witnesses had been heard and 1,114 exhibits entered in the record. Mr. Justice Pierre Béliveau was appointed to replace Justice Boilard and continue the trial, but later decided to discharge the jury and begin the trial again. Mr. Justice Boilard subsequently decided not to retire and was assigned another case in October 2002.
The Canadian Judicial Council is obligated to hold an inquiry if requested to do so by the attorney general of a province pursuant to s.63(1) of the Judges Act. The Inquiry Committee reports its finding and conclusions to the Council on whether or not a recommendation should be made for removal of the judge from office. The Council can only recommend removal. Only the Governor General, acting on an address of the House of Commons and the Senate can remove a superior court judge from office.
Reason for withdrawal "unrelated" to trial
The Inquiry Committee said Mr. Justice Boilard's reason for withdrawal was "in no way related to the trial over which he was presiding." It added:
Paradoxically, he said he was unable to continue performing his duties in this trial in particular, whereas on October 28, 2002 he said he was able to sit in a completely different proceeding.
The judge had misunderstood the meaning and scope of the expression of disapproval directed at him by a Panel of the Council. The Panel "did not question the judge's ability to carry out his duties effectively, but urged him to alter his approach in his relations with counsel at hearings." He should have taken time to reflect rather than "immediately" arriving at his decision and he should have consulted his Chief Justice, said the Inquiry Committee.
By withdrawing in these circumstances, the judge in question created a precedent which, if it were to be followed, would have a highly prejudicial effect on the management of judicial proceedings in Canada, and would be contrary both to the interests of litigants and the due administration of justice. It is inconceivable especially at a time when trials are increasing in scope and length that any observation by an ethical body to a judge, commenting on his conduct or expressing some concern, could have the effect of leading him to abandon the conduct of one or more of the cases with which he was seized.
. . . Clearly, the judge's conduct was not that of a judge concerned with the due administration of justice and the image of detachment and calm which the judiciary should project to the public.
Nevertheless, the Inquiry Committee concluded that Mr. Justice Boilard's failure in this respect was not "so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence in the system of justice would be sufficiently undermined to render the judge incapable of executing the judicial office."
And the Committee noted the judge's twenty-six-year judicial career, his contribution to the development and application of the criminal law in Quebec and in Canada, and his involvement in the training of judges.
In view of all these circumstances, we consider that the conduct complained of did not make him incapacitated or disabled from the due execution of his office within the meaning of s. 65(2) of the Judges Act, and for these reasons we do not recommend the removal of Justice Jean-Guy Boilard.
The Chairperson of the Inquiry Committee was the Honourable John D. Richard, Chief Justice of Federal Court of Appeal. Other members were the Honourable J.J. Michel Robert, Chief Justice of Quebec, and Michael Cain, Q.C., a lawyer appointed by the Minister of Justice of Canada.
It was the fifth inquiry held in public at the request of a Minister of Justice of Canada or the attorney general of a province under s.63(1) of the Judges Act since the creation of the Canadian Judicial Council in 1971. The other four cases were Marshall in 1990, Bienvenue in 1996, Flahiff in 1999 and Flynn in 2002. The reports of this and previous inquiries are available on the Council Web site at http://www.cjc-ccm.gc.ca/.
Contact:
Ms. Jeannie Thomas
Executive Director
(613) 998-5182