Canadian Judicial Council releases Inquiry Committee report concerning Justice Bernard Flynn of the Superior Court of Québec
OTTAWA, January 31, 2003 – A Quebec judge's remarks to a journalist about a Montreal-area property transaction were "inappropriate and unacceptable" but do not render him unfit to remain on the bench, an Inquiry Committee says in a report made public today by the Canadian Judicial Council.
The Inquiry Committee was established at the request of then Quebec Attorney General Paul Bégin in light of comments attributed to Mr. Justice Bernard Flynn of the Superior Court of Quebec. The judge was quoted in Le Devoir of February 23, 2002 defending the sale of municipal assets of L'île-Dorval to local residents.
The Attorney General asked the Council to determine whether, by speaking out in the circumstances, the judge had become, pursuant to paragraph 65(2)(c) of the Judges Act, "incapacitated or disabled from the due execution of the office of judge by reason of having failed in the due execution of that office".
The three-person Inquiry Committee, chaired by the Honourable Joseph Z. Daigle, Chief Justice of New Brunswick, said Mr. Justice Flynn should not have spoken out about the sale of the Town of L'île-Dorval assets to local residents, who included his wife. The report said that «the duty to act in a reserved manner, as well as the image of impartiality and integrity which the judiciary must project, require that judges refrain from entering the arena of political controversy». Similarly, they should not deal with issues likely to come before their own courts.
The purchase of the Île-Dorval property was unquestionably a subject of current political and legal controversy, said the Inquiry Committee. The judge knew that the then Minister of Municipal Affairs had publicly stated that the proposed purchase of public property would be rejected. Provincial legislation subsequently prohibited the disposal of any property having a value greater than $10,000, without the prior authorization of the Minister.
The report said that neither the judge's interview with the journalist nor the transactions themselves could be considered "private" matters. The Inquiry Committee took into account a letter of explanation from Mr. Justice Flynn that he had not initiated the exchange with the journalist, hoping to be able to persuade her that the action taken by the individuals had been in good faith. But the letter fell short of an explicit acknowledgment that the judge had erred in making his remarks to her, an acknowledgment made subsequently by the judge's lawyer during the Inquiry Committee's public hearing.
Moreover, the judge's partisan comments on municipal mergers and the relevant legislation were liable to undermine public confidence in the judiciary and adversely affect the perception of impartiality which Mr. Justice Flynn would have to project should he be called upon to interpret or apply the legislation. His comments on the likelihood of government intervention in the sale were liable to create a reasonable suspicion among the public that a member of the judiciary was attempting to press the executive not to act in a matter of law and order.
While expressing disapproval of Mr. Justice Flynn's "inappropriate and unacceptable" remarks, the Inquiry Committee did not find the judge incapable of fulfilling his judicial functions and did not recommend his removal from the bench under the terms of paragraph 65(2)(c) of the Judges Act.
Applying criteria for removal enunciated by the 1990 Inquiry Committee regarding the Nova Scotia judges, the Flynn Inquiry Committee asked:
. . . is the breach of the duty of restraint demonstrated by Mr. Justice Flynn so manifestly and profoundly destructive of judicial impartiality, integrity and independence that it undermines individual and public confidence in justice system, thereby rendering the judge incapable of performing the duties of his office?
The report said the Inquiry Committee members remain convinced Mr. Justice Flynn retains his independence and his complete impartiality to continue deciding matters brought before him now and in the future. The report noted the judge's irreproachable career, the isolated nature of the incident, the unlikelihood of a similar incident reoccurring and the judge's acknowledgment of his error expressed by his letter and his lawyer.
Other members of the Inquiry Committee were the Honourable Alban Garon, Chief Judge of the Tax Court of Canada, and Paul Bédard of the Montreal law firm Gowling Lafleur Henderson.
The Canadian Judicial Council must hold an inquiry into a complaint about a judge when requested to do so by the Attorney General of a province or the Minister of Justice of Canada pursuant to subsection 63(1) of the Judges Act.
The full text of the Inquiry Committee's report may be found on the Council's Web site at http://www.cjc-ccm.gc.ca/ , which also sets out the Council's mandate and process for dealing with complaints regarding judges.
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