The public inquiry into the conduct of Girouard found that he tried to mislead the committee and conceal the truth during his testimony, which rendered him “incapacitated or disabled in the due execution of his office,” the report said. Three members of the council dissented, citing a violation of Girouard’s right to procedural fairness.
“The authority of the judiciary in any democratic society rests on public confidence and public confidence cannot exist in the absence of displaying the highest norms of conduct and ethical principles for judges,” says Norman Sabourin, executive director and senior general counsel for the Canadian Judicial Council.
The lawyer who represented Girouard says he and his client are disappointed with the reasoning of the majority and that his client has a good professional reputation.
“There was never, never a word of complaint about his work as a judge. Never,” says Gérald R. Tremblay of McCarthy Tétrault LLP.
The saga began after Girouard was seen on a security video meeting with his then-client, video store owner and convicted drug trafficker Yvon Lamontagne, in 2010, two weeks before his appointment to the Quebec Superior Court. A committee was set up to address what appeared to be illegal activity on the tape.
In the video, which was seized by police as part of an investigation into Lamontagne, Girouard is seen putting money on the table at which the two are sitting and receiving a folded Post-it note from Lamontagne, which Girouard then puts in his pocket.
One hour before the meeting between Girouard and Lamontagne, the latter had hosted a “major distributor of cocaine” and “completed a drug transaction,” according to the council’s report. Subsequent to the events captured on tape, Lamontagne was convicted of drug trafficking and gangsterism and sentenced to nine years imprisonment.
Girouard told the committee that the Post-it note contained the amount that Lamontagne needed to borrow in order to settle a tax matter he was involved in and the name of the person from whom he would borrow the money.
The council convened a committee in 2015 to address that it appeared Girouard was buying drugs in the video. They found that the evidence was insufficient to make a determination as to what was exchanged between Lamontagne and Girouard. But Girouard’s testimony to the first committee led the council to set up another to review his conduct.
Ethics and professionalism lawyer Gavin MacKenzie of MacKenzie Barristers PC says he has never seen anything like this case, where a committee is set up to investigate misconduct, does not find adequate evidence to prove that misconduct, but the judge’s own testimony gets him removed.
“I haven’t seen that before, where a judge is accused of misconduct and the inquiry committee isn’t able to make a finding that the misconduct is proven to the necessary degree of certainty and yet didn’t accept the evidence of the judge and felt that his evidence justified a removal from office in itself,” he says.
The first committee found that Girouard had given false evidence and recommended that he should be removed because of loss of credibility and integrity, but the council did not consider this recommendation because the committee was set up to deal with the alleged drug transaction and “the Judge was not given notice that the majority’s concerns about his credibility had become a distinct allegation of misconduct.”
In June 2016 in a joint letter to the council, the ministers of justice and attorneys general of Canada and Quebec stated that an inquiry should be held regarding Girouard’s credibility and integrity, stemming from his lack of co-operation with the original committee. The second committee convened in spring 2017 and issued a report in November 2017, unanimously finding that Girouard should be removed.
The council wrote in its report that Girouard was an “uncooperative and obstinate witness” and his “inconsistent, illogical and evolving attempts to explain this transaction” led the committee to question his credibility.
“He was not able to provide an explanation, the comments he made were inconsistent, contradictory, lacked in forthrightness, etc., and that very fact illustrates a lack of integrity and that lack of integrity prevents him from discharging his duties as a judge,” Sabourin says.
Girouard produced a 116-page submission to the council, which, according to the council’s report, did not provide a satisfactory explanation of what happened in the video.
Three of the council members, justices David Smith, Lawrence O’Neil and B. Richard Bell, chose to dissent, stating that the record available to the unilingual, English-speaking members of the council was different than the one that was provided in French. In order to adhere to the principle that “he who decides must hear,” the dissenters said all participants in the decision-making process should understand and consider the complete record.
In their dissenting report, the council members wrote that 4,000 pages of stenographic notes on hearings before the first and second inquiry committees were not included in English. Therefore, the members who are unilingual did not have access to them.
The concerns of the dissenting members were adequately addressed by the majority, says MacKenzie.
“All the members of the council had access to the submissions of both council before them and obviously they had access to the inquiry committee's report in both official languages. One point the majority makes, which I think is persuasive, is that on appeal, not all members of the court of appeal read every transcript of an inquiry. An adjudicative body is entitled to rely on the arguments that are put by council before them to frame the issues.”
“The minority is absolutely right on that issue at least,” says Tremblay, who adds that he cannot believe that judges would “decide on the basis of evidence that we can’t read.”
“The whole thing is totally unsatisfactory,” he says.