N.B. v. Moreau-Bérubé (2002), 281 N.R. 201 (SCC)
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Temp. Cite: [2002] N.R. TBEd. FE.005
Her Majesty The Queen in Right of The Province of New Brunswick, as represented by The Office of The Executive Council and The Judicial Council (appellants) v. Judge Jocelyne Moreau-Bérubé (respondent)
(28206; 2002 SCC 11)
Indexed As: Conseil de la magistrature (N.-B.) v. Moreau-Bérubé
Supreme Court of Canada
McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
February 7, 2002.
Summary:
At a sentencing hearing, a Provincial Court judge made disparaging remarks as to the honesty of residents of the Acadian Peninsula, where she worked and resided. Notwithstanding an apology in open court three days later, the provincial Judicial Council received complaints. A panel of inquiry found that the remarks constituted misconduct, but found no bias or lack of public trust. The panel determined that a reprimand would suffice. The Judicial Council, based on the panel’s report and the judge’s submissions, determined that the judge’s remarks created a reasonable apprehension of bias and loss of public trust that rendered the judge unable to act impartially in performing her duties. The Council recommended that the judge be removed from office. By Order-in-Council, the provincial Cabinet removed the judge. The judge sought judicial review.
The New Brunswick Court of Queen’s Bench, Trial Division, in a judgment reported 218 N.B.R.(2d) 256; 558 A.P.R. 256, allowed the application and quashed the removal. Council recommended removal, which was a penalty more severe than that considered by the panel of inquiry. It was contrary to the rules of natural justice to consider a more severe penalty without notice to the judge and without giving her an opportunity to make submissions respecting the more severe penalty. Further, the Council exceeded its jurisdiction in ignoring fact findings by the panel and making contrary fact findings. The court rejected a constitutional challenge to the provisions granting the power to remove a judge from office. The Council appealed.
The New Brunswick Court of Appeal, in a judgment reported 233 N.B.R.(2d) 205; 601 A.P.R. 205, Drapeau, J.A., dissenting, dismissed the appeal. The court affirmed the finding of a breach of natural justice and jurisdictional error in ignoring certain fact findings by the panel. The Council appealed.
The Supreme Court of Canada allowed the appeal and restored the Judicial Council’s decision recommending removal from office. The Judicial Council was entitled to a high degree of deference and the standard of review was patent unreasonableness. The Council was not bound by the panel’s fact findings. Section 6.11(4) of the Provincial Court Act only required that the Council take the panel’s fact findings into account. The Council’s decision was not patently unreasonable. There was no breach of natural justice. The decision to recommend removal from office was justified on the evidence before the Council.
Administrative Law – Topic 222
The hearing and decision – Right to be heard – When available – [See
Administrative Law – Topic 2447
].
Administrative Law – Topic 2267
Natural justice – The duty of fairness – Reasonable expectation or legitimate expectation – The Supreme Court of Canada stated that “the doctrine of reasonable expectations does not create substantive rights, and does not fetter the discretion of a statutory decision-maker. Rather, it operates as a component of procedural fairness, and finds application when a party affected by an administrative decision can establish a legitimate expectation that a certain procedure would be followed … The doctrine can give rise to a right to make representations, a right to be consulted or perhaps, if circumstances require, more extensive procedural rights. But it does not otherwise fetter the discretion of a statutory decision-maker in order to mandate any particular result” – See paragraph 78.
Administrative Law – Topic 2447
Natural justice – Procedure – Notice – Notice of sanctions to be imposed – A panel of inquiry hearing complaints of misconduct by a Provincial Court judge found misconduct based on remarks made in open court, but opined that the misconduct did not warrant removal from office -The Judicial Council, after considering the panel’s report and the judge’s submissions, came to a contrary fact finding and recommended removal – The judge submitted that she had a reasonable expectation that the Council would not impose a more severe penalty than the reprimand recommended by the panel – The judge submitted that if the Council was considering removal, natural justice required notice that it intended to do so and the right to make submissions on that issue – The Supreme Court of Canada held that there was no denial of natural justice – The doctrine of reasonable expectation could not fetter the Council’s available options of dismissing the complaint, reprimanding the judge or recommending removal – The panel’s mandate was limited to fact findings – It had no mandate to recommend a sanction -The judge knew or should have known the issues before the Council (including the possibility of removal) – The Council had no obligation to give the judge notice of the possibility of removal, an option clearly provided for in the Provincial Court Act – At every step in the proceeding the judge was fully heard – See paragraphs 74 to 83.
Administrative Law – Topic 2450
Natural justice – Procedure – Notice – Legitimate expectation of notice doctrine – [See
Administrative Law – Topic 2447
].
Administrative Law – Topic 2493
Natural justice – Procedure – At hearing – Right to make submissions – [See
Administrative Law – Topic 2447].
Courts – Topic 312
Judges – Independence of judiciary – Security of tenure – The Supreme Court of Canada affirmed that the provisions of the Provincial Court Act granting the Judicial Council the power to have a Provincial Court judge removed from office did not violate the security of tenure of Provincial court judges – See paragraphs 18, 84.
Courts – Topic 453
Judges – Discipline – Inquiry – Jurisdiction – A Provincial Court judge made disparaging remarks about the honesty of the people where she lived and worked – A panel of inquiry appointed under the Provincial Court Act to hear complaints of misconduct determined that the remarks constituted misconduct warranting a reprimand, but that the conduct was not sufficient to warrant removal from office (i.e., no bias or loss of public trust) – The Judicial Council had a discretion under s. 6.11(4) of the Act to dismiss the complaint, direct that a reprimand be issued or recommend removal from office – That decision was to be “based on” the findings contained in the panel’s report and the representations of the judge – The Judicial Council, in recommending removal, came to a contrary conclusion (i.e., found a reasonable apprehension of bias and loss of public trust) – The Supreme Court of Canada held that s. 6.11(4) did not bind the Judicial Council to the panel’s fact findings – The words “based on” required that the Council take the panel’s findings into account, but Council was not “bound by” those findings – Council was free to give the panel’s findings the weight it considered appropriate – See paragraphs 63 to 67.
Courts – Topic 453.1
Judges – Discipline – Duty of fairness – [See
Administrative Law – Topic 2447
].
Courts – Topic 476
Judges – Removal – By reason of inability – At a sentencing hearing, a Provincial Court judge made disparaging comments as to the honesty of residents of the Acadian Peninsula, where she worked and resided – Notwithstanding an apology in open court three days later, the Judicial Council received complaints – A panel of inquiry found that the remarks constituted misconduct – The panel determined that a reprimand would suffice – The Judicial Council, based on the panel’s report and the judge’s submissions, reached a contrary conclusion; that the judge’s remarks resulted in a reasonable apprehension of bias and a loss of public trust – The Council recommended removal from office – The Supreme Court of Canada stated that “I find nothing patently unreasonable in the Council’s decision to draw its own conclusions with regard to whether the comments of [the judge] created an apprehension of bias sufficient to justify a recommendation for her removal from duties as a provincial court judge. Even on a standard of reasonableness simpliciter, I would find no basis to interfere with the Council’s decision. … the [judge] has received a fair hearing, conducted in accordance with the will of the legislature and consistent with the requirements of both judicial independence and integrity.” -See paragraphs 35 to 73.
Courts – Topic 479
Judges – Removal – Judicial review – The Supreme Court of Canada held that the standard of review for decisions of a provincial Judicial Council was patent unreasonableness – Seven of the 10 members of the Judicial Council were judges from the Court of Appeal, Court of Queen’s Bench and Provincial Court – It would be nonsensical for a single judge, reviewing the decision of a Council composed of seven other judges, to afford Council’s decision little deference – Further, Council members had a degree of speciality not enjoyed by ordinary courts of review – There must be a degree of authority and finality in Council’s decisions – Accordingly, Council’s decisions must be afforded a great deal of deference – Issues of statutory interpretation by the Council (normally attracting the correctness standard) should attract considerable deference and reviewing courts should not interfere unless Council’s interpretation was one that the statute could not reasonably bear – See paragraphs 36 to 62.
Cases Noticed:
Michaud v. Institut des comptables agréés (N.-B.) (1994), 149 N.B.R.(2d) 328; 381 A.P.R. 328 (C.A.), dist. [para. 15].
College of Physicians and Surgeons (Ont.) v. Petrie (1989), 32 O.A.C. 248 (Div. Ct.), refd to. [para. 15].
Jackson v. Saint John Regional Hospital (1993), 136 N.B.R.(2d) 64; 347 A.P.R. 64 (C.A.), refd to. [para. 15].
R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 18].
Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 18].
Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 37].
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 37].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 37].
Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 37].
Syndicat national des employés de la commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 37].
U.E.S., Local 298 v. Bibeault – see Syndicat national des employés de la commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).
Québec (Ministre de la Justice) v. Therrien, J., [2001] 2 S.C.R. 3; 270 N.R. 1, refd to. [para. 46].
Ruffo (Juge) v. Conseil de la magistrature et al., [1995] 4 S.C.R. 267; 190 N.R. 1, refd to. [para. 46].
Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 46].
Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1, refd to. [para. 46].
Vriend et al. v. Alberta (1996), 181 A.R. 16; 116 W.A.C. 16; 132 D.L.R.(4th) 595 (C.A.), refd to. [para. 55].
R. v. Ewanchuk (S.B.) (1998), 212 A.R. 81; 168 W.A.C. 81; 13 C.R.(5th) 324 (C.A.), refd to. [para. 55].
Reilly, P.C.J. v. Wachowich, C.J.P.C. (1999), 234 A.R. 1; 71 Alta. L.R.(3d) 214 (Q.B.), affd. (2000), 266 A.R. 296; 228 W.A.C. 296; 192 D.L.R.(4th) 540 (C.A.), refd to. [para. 57].
Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 74].
Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 75].
Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 53 N.R. 353, refd to. [para. 75].
Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 75].
Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 78].
Statutes Noticed:
Provincial Court Act, R.S.N.B. 1973, c. P-21, sect. 6, sect. 6.1(1), sect. 6.6(1), sect. 6.6(3), sect. 6.7, sect. 6.8(1), sect. 6.9(1), sect. 6.9(7), sect. 6.9(8), sect. 6.9(10), sect. 6.10(1), sect. 6.10(3), sect. 6.11(1), sect. 6.11(2), sect. 6.11(3), sect. 6.11(4), sect. 6.11(8) [para. 2].
Authors and Works Noticed:
Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (2001 Looseleaf Update), vol. 1, pp. 7-66, 7-67 [para. 75].
Canadian Judicial Council, Report to the Canadian Judicial Council of the Inquiry Committee Established Pursuant to Subsection 63(1) of the Judges Act at the request of the Attorney General of Nova Scotia (1990), generally [para. 12].
de Smith, Stanley A., Judicial Review of Administrative Action (4th Ed. 1980), pp. 212, 213 [para. 15].
Friedland, Martin L., A Place Apart: Judicial Independence and Accountability in Canada (1995), pp. 80, 81 [para. 51]; 84 to 87, 129 [para. 44].
Shapiro, Debra, Legitimate Expectation and its Application to Canadian Immigration Law (1992), 8 J.L. & Social Pol’y 282, p. 297 [para. 78].
Counsel:
J.C. Marc Richard and Chantal A. Thibodeau, for the appellant, Judicial Council;
Cedric L. Haines, for the appellant, Province of New Brunswick;
Anne E. Bertrand, Paul Bertrand and Michael Phalen, for the respondent.
Solicitors of Record:
Barry Spalding Richard, Saint John, N.B., for the appellant, Judicial Council;
Attorney General for New Brunswick, Fredericton, N.B., for the appellant, Province of New Brunswick;
Bertrand & Bertrand, Fredericton, N.B., for the respondent.
This appeal was heard on June 19, 2001, before McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.
On February 7, 2002, Arbour, J., delivered the following judgment in both official languages for the Court.
