In the Name of God, Go!

The Canadian Judicial Council wants a tardy, cantankerous judge gone. So do I.

Yesterday, the Canadian Judicial Council published a report recommending the removal from office of a Quebec Superior Court judge, Gérard Dugré. I hadn’t followed this sordid story until now, and was a bit wary on seeing the news, especially given that media reports mentioned, somewhat blandly, off-colour remarks and such as grounds for the CJC’s recommendation. Was it a case of tone policing rather than genuine misconduct? It turns out, no ― not at all.

I haven’t been able to find out much about Justice Dugré’s career prior to his appointment to the bench, but here’s at least one indication that it was an accomplished one: back in 2006, he was named Plaideur de l’année ― oral advocate of the year ― by Le Monde juridique. Among other winners of this particular accolade is one Suzanne Côté, in 2008, now of course Justice Côté of the Supreme Court of Canada. Presumably, one doesn’t get this sort of recognition without being a talented and hardworking lawyer, as Justice Côté’s example suggests. Unfortunately, on his appointment to the bench, Justice Dugré did not live up to this kind of standard.

The CJC report proposes two grounds for his removal, each of them independently sufficient. The first is chronic tardiness in the delivery of judgments Justice Dugré took under advisement. The second, the one that seems to have attracted more media attention, is his persistent misbehaviour in the courtroom.

On the subject of delay, the report deals with two somewhat different issues. For one thing, there was a particular case where Justice Dugré disregarded his own undertaking to the parties to give judgment promptly in light of the exigency of the circumstances (the matter involved the sale of a family home, and delay resulted in heavy financial costs as well as, obviously, stress and inconvenience). Having let the parties think the case would be disposed of in weeks if not days, Justice Dugré took eight months.

But this case was, it turns out, merely illustrative. Concerns about Justice Dugré’s slowness were raised early in his tenure. He received both admonitions and help from his Chief Justices and Associate Chief Justices. His assistant kept track of his delays, presumably as part of this process. It was all to no avail. Of his

185 judgments, 60% … were rendered more than six months after being taken under advisement and 18% were rendered more than a year after that date. … [T]here were no other judges who experienced comparable delays in rendering judgments. [67]

One shudders at the thought of the cost this imposed on everyone involved in these cases ― again, financial cost, stress, delayed life plans. The CJC is right that a judge who behaves like this must not be allowed to continue in office.

And then, there are Justice Dugré’s courtroom antics. I will give only a few examples from the litany in the CJC report, which itself, I take it, is only a selection from what had been established during the fact-finding process. It is hard not to chuckle at reading some them ― Justice Dugré’s mannerisms had a certain darkly comedic quality. Only, he was a judge, not a comic, and there were real people at the receiving end of it all.

For example, in what the CJC describes as “a choice of school case” (in the family law context, I assume), Justice Dugré “[o]n two occasions, proposed a solution whereby the child in question would be sent to boarding school or put up for adoption”. [68] In a civil case, Justice Dugré

[m]ade jokes in reference to allegations of sexual misconduct about a
colleague of one of the parties. He asked whether one of the parties had
been “accused of sexual assault yet”, suggesting that he just wanted to
make sure that “everyone’s behaved themselves.” The case had
absolutely nothing to do with sexual assault. [70]

In a different family law case, Justice Dugré “[s]uggested the complainant’s non-disclosure of certain documents could result in a finding of contempt of court and incarceration in a cell with starving rats”. [71] In the same case, in addition to taking over the examination of witnesses ― for forty minutes at a stretch in one instance, justice Dugré went on the following rant, which the CJC soberly describes as “shar[ing] his views on alcoholism with a witness on the stand

Because a lot of people drink two bottles of wine a day, one at noon, one in the evening, are perfectly, they aren’t alcoholics at all, because they like wine, and they really like it. And after all, lunch goes on for three hours, and supper goes on for three hours. So, there’s five glasses, in a bottle of wine, so there’s, we’re two people, that makes two glasses, four glasses. Fine. They had two bottles of wine. That’s nothing. But a guy who has one glass of wine, he gets totally enraged, and all that, but he has to be careful, he can’t touch that, he’s not allowed. Because he gets totally crazy. So, that’s what alcoholism is. [71]

To which one is sorely tempted to say, go home, my Lord, you’re drunk. The CJC doesn’t put it in so many words, but its conclusion is to the same effect: Justice Dugré’s “behaviour in belittling parties and counsel, making inappropriate and offensive comments and not permitting parties an opportunity to present their case, are all sufficient to ground a finding of judicial misconduct”. [82] Again, no disagreement from me on this one.

Before ending this sorry tale, a word on Justice Dugré’s response to the CJC process. Assuming the report provides a fair account of his arguments (and I have no reason not to assume this), they consisted very largely of procedural quibbles about the manner in which his conduct was investigated and considered. This is of a piece with Justice Dugré’s repeated attempts to stop the investigation in its tracks by filing multiple judicial review applications, which resulted in three increasingly terse dismissals by the Federal Court of Appeal, and two dismissed applications for leave to appeal to the Supreme Court.

Of course, a judge investigated by the CJC is entitled to procedural fairness, but there is something unseemly in the extreme when this entitlement is used in an attempt to avoid a conclusion on the merits, instead of to ensure a fair consideration of the case, which there seems to be no reason to think Justice Dugré was denied. I have no problem with a person accused of a crime trying to “get off on a technicality”. But when a public officeholder’s fitness for office is in question, I think decency requires him or her to see to it that a decision on the merits is reached, so long as the process affords him or her a full opportunity to make his or her case. Justice Dugré, for his part, chose not to testify. The CJC is careful to note that no adverse inference should be drawn from this, but from a moral rather than a legal standpoint, I think this is bad form at the very least.


So while Justice Dugré will now have the opportunity to commence yet another judicial review, I can only hope he does not take it. This is pretty much his last chance to leave a job for which, for whatever reason, he turned out to be utterly unsuited with at least a modicum of good grace. He should have gone long ago. He must do it now. Now.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

4 thoughts on “In the Name of God, Go!”

  1. This judge sounds rather like a nice guy compared to so many I have seen in action. Judge Rooke in Calgary is a stand out. He cusses litigants like he is in the fish market yelling how stink his fish is so we must buy them quickly for cheap. Ask any Self Representing Litigant (SRL) about Judge Rooke. Better yet, just read his decisions and all the names he has called them. I could name many more whose conduct makes this judge look like a nice choir boy. The CJC knows about them for there have been many complaints but they are still sitting on the bench carrying out a reign of terror in our courtrooms

  2. Leonid,

    You said the following: “So while Justice Dugré will now have the opportunity to commence yet another judicial review, I can only hope he does not take it.”

    I believe that the Canadian Judicial Council allows him to have due process before the inquiry committee. Are you saying that there could be a further opportunity for judicial review by the Courts of Law that Justice Dugre could take? If so, would that have to take place before the Minister of Justice and His Majesty’s Attorney General For/Of Canada tables the Canadian Judicial Council recommendation in the House of Commons and the Senate pursuant to the Constitution Act 1867, Part VII — Judicature, Section 99(1)?

    Ronald A. McCallum, B. A. (History and Political Science)

    1. Final CJC recommendations are subject to judicial review―for instance, a judge might argue that he wasn’t, in fact, given due process. (I don’t think such an argument would have merit in this case, but speaking generally… ) So yes, Justice Dugré could go for it, and given the number of futile challenges he’s launched so far, sadly, I wouldn’t be surprised if he does.

      On timing, s 71 of the Judges Act explains that the CJC process doesn’t “affect[] any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge”. In principle, the AG’s actions are independent of the CJC process, which is an additional safeguard for judicial independence. Perhaps it is best for the AG to let the judicial review process play itself out all the same, out of an abundance of caution. But he isn’t legally bound to.

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