Date: 20060213
Docket: A-12-05
Citation: 2006 FCA 62
CORAM: DESJARDINS J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
YVES BOURBONNAIS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Montréal, Quebec, September 12, 2005.
Judgment delivered at Ottawa, Ontario, February 13, 2006.
REASONS FOR JUDGMENT: NADON J.A.
CONCURRING: DESJARDINS J.A.
PELLETIER J.A.
Date: 20060213
Docket: A-12-05
Citation: 2006 FCA 62
CORAM: DESJARDINS J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
YVES BOURBONNAIS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal from a decision by Mr. Justice Simon Noël of the Federal Court, dated December 17, 2004, dismissing the application for judicial review of a decision of the Immigration and Refugee Board (the IRB) filed by the appellant.
[2] A brief summary of the facts will facilitate understanding of the issues raised by the appeal.
[3] In 2004, close to a hundred charges were laid against the appellant, a member of the IRB from 1996 to 2003, the last three of those years as a member of the Immigration Appeal Division of the IRB, and other persons for, inter alia, fraud against the government, breach of trust and obstruction of justice. More particularly, the appellant is charged with having solicited and accepted money for the purpose of issuing favourable decisions to certain persons in cases that were being heard by him.
[4] In a letter dated April 6, 2004, the appellant, through his counsel, asked the IRB to assume the fees and disbursements he would have to incur in order to defend himself on the charges against him. The justification for this request appears at page 2 of this letter and reads as follows:
[Translation] Therefore, Mr. Bourbonnais was exercising his responsibilities as an administrative law judge. It was in this context, that is, the context of the exercise of his responsibilities as an administrative law judge, that the Attorney General, at the request of the RCMP, chose to lay charges against Mr. Bourbonnais. He is charged with a number of acts in relation to the exercise of his responsibilities as a Board member within the IRB. That is why, in accordance with the existing legal tradition, all of the fees and disbursements incurred by Mr. Bourbonnais' defence should be assumed by the Government of Canada.
[5] On April 30, 2004, the IRB management, through its general counsel, Paul Aterman, informed the appellant's counsel that the IRB would not assume the payment of his legal costs and fees. Relying on the Treasury Board's Policy on the Indemnification of and Legal Assistance for Crown Servants (the indemnification policy), the IRB said that in its opinion the appellant had not established that he had "acted honestly and without malice within his ... scope of duties or employment and met reasonable departmental expectations" related to his responsibilities (See article 7.2).
[6] Following receipt of this letter, the appellant, on June 1, 2004, filed an application for judicial review in the Federal Court, seeking the following conclusions:
1. To declare that the applicant is entitled to obtain from the Immigration and Refugee Board the payment of the legal costs and fees of his counsel that are incurred in assuming his defence in the context of the charges laid against him, issued on March 18, 2004, including his out-of-court fees pertaining to the collateral proceedings in the courts of ordinary law including this motion, and that he be paid the amount within thirty days following the transmission of the fees memoranda sent to it by the applicants' counsel.
2. To declare that an IRB member sitting in the Immigration Appeal Division is not a public servant and the Policy on the Indemnification of and Legal Assistance for Crown Servants is not applicable to him.
3. To declare that an IRB member sitting in the Immigration Appeal Division has the same powers, rights and privileges as a superior court judge on any question relating to his jurisdiction, and consequently is entitled to have the IRB pay the legal costs and fees of his defence when he is charged with committing criminal acts or omissions while performing his duties as an IRB member, even if such charges are laid after his retirement.
4. To order the said Board to act accordingly.
[7] As I indicated at the beginning of my reasons, on December 17, 2004, Noël J. dismissed the appellant's application for judicial review. In his opinion, the appellant was not entitled to obtain from the IRB the payment of the legal costs and fees he would have to incur in defending himself against the charges laid against him. At paragraph 6 of his reasons, the judge summarizes as follows the conclusions he had reached:
[6] For the reasons stated below, the application for declaratory relief is not granted as:
- the judicial independence associated with a court of law is not of the kind conferred on administrative tribunals, as judicial independence is determined by the enabling statute creating them;
- the judicial independence associated with the IRB and its members, including members of the Immigration Appeal Division, does not include an absolute right to have costs and fees paid by the IRB when a retired member is prosecuted for actions which took place while he was performing his duties as member;
- an IRB member is not an employee of the federal government;
- according to the facts and arguments submitted, the Legal Assistance Policy applies to sitting and retired members, so the IRB's decision not to pay the legal costs and fees is upheld in the particular circumstances of this proceeding.
[8] The appeal raises, in my opinion, a number of questions that can be summarized as follows, as the respondent suggests:
1. Did Noël J. err in fact and in law in finding that the appellant was not entitled to obtain indemnification for fees and disbursements incurred for the purpose of defending himself on the criminal charges laid against him?
2. Did Noël J. breach the principles of natural justice?
[9] Before proceeding to a discussion of the first question, I hasten to dispose of the second.
[10] The appellant advances two arguments. First, he submits that the language of the reasons of Noël J. [Translation] "is imbued with surprising bias toward the appellant and the duties he exercised...", adding that his decision [Translation] "constitutes a denial of fundamental justice,...". In my opinion, this argument has no merit.
[11] In support of his first argument, the appellant refers to paragraphs 76 and 78 of the reasons for judgment of Noël J. to demonstrate the bias that he says is apparent in the judgment. With respect, I see nothing in these paragraphs or elsewhere in the other paragraphs of the reasons of Noël J. that could support the appellant's allegation. As Mr. Justice Létourneau of this Court said in Arthur v. Canada (Attorney General), 2001 FCA 223, July 4, 2001, such an allegation:
8. ...cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard.
[12] The appellant's second argument on this question is that Noël J. failed to recognize his right to a hearing on the existence of civil and criminal immunity in common law of all holders of quasi-judicial office for acts committed in the course of their duties.
[13] Relying on paragraph 77 of the reasons of Noël J., and more particularly the following passage:
77. As to the perception that IRB members might have to pay legal costs and fees of prosecutions during their retirement, and consequently their judicial independence would be seriously compromised, a reasonable and informed person would know that there is a Legal Assistance Policy which provides that even in retirement such services are available, provided the prosecution is related to duties and that good faith and honesty are present. In addition, he or she would know the new section 156 of the new Act, providing civil and criminal immunity and immunity from being called to testify, provided the facts giving rise to the prosecution were related to the exercise or purported exercise of the functions of the Immigration Appeal Division members. Such a perception would be difficult to maintain based on the information given above.
the appellant submits that the judge found significant evidence in the fact that the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the new Act) provides civil and criminal immunity and non-compellability in section 156, while there was no similar provision in the Immigration Act, R.S.C. 1985, c. I-2 (the old Act), which was in force at the time of the acts with which the appellant is charged. The appellant goes on to submit that there is a well-established common law principle that the holders of quasi-judicial office enjoy immunity for acts committed in the course of their duties and that section 156 of the new Act [Translation] "is but the statutory crystallization of this". Consequently, he argues, the judge erred in seeing something significant in section 156 of the new Act, adding that the parties had never argued the question of immunity at common law, since they had agreed on the existence of an immunity even under the old Act.
[14] In my opinion, this argument too is without merit. As the respondent points out, it cannot be concluded from the remarks of Noël J. that he was of the opinion that the members of the IRB, before the coming into force of the new Act, did not enjoy immunity under the common law. The judge made no such finding, but simply noted that the old Act, contrary to the new one, did not provide statutory immunity.
[15] A close reading of the reasons of Noël J. persuades me that he drew no definitive conclusion concerning immunity at common law. Consequently, the judge did not breach the audi alterem partem rule in any way, as the appellant submits.
[16] The major question before us concerns the appellant's right to be indemnified for the legal costs and fees he will incur in defending himself on the charges against him. The appellant's thesis, which Noël J. rejected, is that as a member of the Immigration Appeal Division of the IRB, he enjoyed the same powers, rights and privileges as the superior court judges on any question within his jurisdiction and accordingly that he was entitled to have the Crown bear the costs of his defence when charged with crimes committed while he was exercising his duties, even if the charges were laid after his retirement.
[17] More particularly, the appellant relies on the principle of judicial independence and its essential components: security of tenure, financial security and institutional independence. He further submits that the notions of security of tenure and financial security include the right to defend and be heard, and consequently the quasi-constitutional right to have the Crown bear his legal costs and fees.
[18] The appellant's thesis rests on the premise that a superior court judge, charged with similar crimes, would have an absolute and unconditional right to have the Crown indemnify him for his legal costs and fees. Although he did not rule on this question, Noël J., at paragraph 72 of his reasons, expressed some doubts concerning the appellant's premise:
[72] There is also the question of whether a superior court judge, enjoying all the powers, rights and privileges of judicial independence, would have his application granted in a similar situation. Certainly, there would be much to consider in arriving at such a conclusion. No evidence in that regard was submitted.
[19] If there is no foundation for this premise, the appellant's thesis collapses and his appeal must consequently be dismissed.
[20] For the purposes of the following discussion, I will assume that the appellant, as a member of the Immigration Appeal Division of the IRB, has the same powers, rights and privileges associated with judicial independence as a judge belonging to a court.
[21] In Cosgrove v. Canadian Judicial Council, 2005 FC 1454, October 26, 2005, Madam Justice Mactavish of the Federal Court recently made an excellent summary of the nature, purpose, object and content of judicial independence. I reproduce, therefore, paragraphs 92 to 102 of her reasons:
[92] A starting point for this discussion is Article 2.02 of the Universal Declaration on the Independence of Justice (reproduced in S. Shetreet and J. Deschênes, eds., Judicial Independence: The Contemporary Debate (Boston, Mass.: M. Nijhoff, 1985), 447, at p. 450), which states that:
Judges individually shall be free, and it shall be their duty, to decide matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
[93] Judicial independence in Canada finds its origins in unwritten constitutional principles, whose origins can be traced to the Act of Settlement of 1701: Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577, at ¶ 83. These principles find textual recognition and affirmation in the preamble to the Constitution Act, 1867, in the judicature provisions of that same instrument (ss. 96 to 101), and in subsection 11(d) of the Charter which provides, in part, that:
| 11. Any person charged with an offence has the right |
11. Tout inculpé a le droit : |
| (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. |
d) d'être présumé innocent tant qu'il n'est pas déclaré coupable, conformément à la loi, par un tribunal indépendant et impartial à l'issue d'un procès public et équitable.
|
[94] In Beauregard v. Canada, [1986] 2 S.C.R. 56 at ¶ 21, 30 D.L.R. (4th) 481, the Supreme Court of Canada stated that:
Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. [See also Valente v. The Queen, [1985] 2 S.C.R. 673, per Le Dain J., at 685.]
[95] In Gratton, supra, at ¶ 16, Justice Strayer echoed this sentiment, noting that "it is equally important to remember that protections for judicial tenure were 'not created for the benefit of the judges, but for the benefit of the judged'".
[96] That is, the purpose of judicial independence is not to confer on judges a special position of privilege, but rather to ensure that those appearing before Canadian judges can have confidence in the impartiality of those judging them.
[97] Judicial independence has both an individual and an institutional dimension, each of which depends on there being objective conditions or guarantees to ensure the judiciary's freedom from interference from any other entity: Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at ¶ 18.
[98] Because the goal of judicial independence is the maintenance of public confidence in the impartiality of the judiciary, judges must not only be independent in reality: they must also be seen to be independent. Thus, in determining whether a judge enjoys the necessary objective conditions or guarantees of judicial independence, the question to be asked is "what would an informed person, viewing the matter realistically, and practically - and having thought the matter through - conclude?" (See Valente, supra, at pp. 684 and 689)
[99] In answering this question in the circumstances of this case, it is also necessary to have regard to what the courts have had to say about the content of judicial independence.
[100] The Supreme Court of Canada has determined that there are three essential conditions of judicial independence: security of tenure, financial security and institutional independence with respect to administrative matters bearing on the exercise of judicial functions: Valente, supra, at pp. 694, 704 and 708. See also PEI Judges Reference, supra, at ¶ 115.
[101] These conditions are not exhaustive, however, and it has long been recognized that the scope of the constitutional guarantee of judicial independence, as it relates to the independence of individual judges, extends beyond matters that might lead directly to the removal of the judge. Judicial independence can also require that judges be insulated from external influences that could potentially be seen to undermine their ability to adjudicate impartially.
[102] By way of example, in the PEI Judges Reference, supra, at ¶ 226, the Supreme Court found that a provision in the Alberta Provincial Court Judges Act that allowed for the Attorney General of Alberta to determine where a given judge had to reside, even after the judge's appointment, created the reasonable apprehension that the power could be used to punish judges whose decisions did not please the government of the day, or alternatively, to benefit judges whose decisions favoured the government. As a result, this provision was determined to violate the administrative independence of the Alberta Provincial Court.
[22] I would complement the summary by Mactavish J. with the comments of Sir Guy Green, Chief Justice of the State of Tasmania, Australia, which are reported in an article entitled "The Rationale and Some Aspects of Judicial Independence" (1985), 59 A.L.J. 135, at page 135, where he explained the principle of judicial independence in the following words:
I thus define judicial independence as the capacity of the courts to perform their constitutional function free from actual or apparent interference by, and to the extent that it is constitutionally possible, free from actual or apparent dependence upon any person or institutions, including, in particular, the executive arm of government, over which they do not exercise direct control.
[23] It is clear from the foregoing that the purpose behind the principle of judicial independence is to enable judges to hear and determine, in complete freedom, the cases that are before them. Consequently, the principle of judicial independence will constitute a barrier against any external constraint tending to influence the judge in the performance of his or her duties.
[24] Integral to judicial independence is the immunity conferred on superior court judges in regard to any legal proceeding resulting from decisions or actions taken in the context of their duties. In Sirros v. Moore, [1974] All ER 776, the English Court of Appeal considered this question and, at pages 781 and 782, 784 and 785, Lord Denning M.R. formulated the principle of judicial immunity in the following words:
[Pages 781-782] Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. ...
[Page 784] What is the test on which the judges of the superior courts are thus immune from liability for damages even though they are acting without jurisdiction? Several expressions are to be found. A judge of a superior court is not liable for anything done by him while he is 'acting as a judge', or 'doing a judicial act' or 'acting judicially' or 'in the execution of his office' or 'quatenus a judge". What do all these mean? They are much wider than the expression 'when he is acting within his jurisdiction'. I think each of the expressions means that a judge of a superior court is protected when he is acting in the bona fide exercise of his office and under the belief that he has jurisdiction, though he may be mistaken in that belief and may not in truth have any jurisdiction. ...
[Page 785] ... Each [judge] should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: 'If I do this, shall I be liable in damages?' So long as he does his work in the honest belief it to be within his jurisdiction - in fact or in law - but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.
[Underlining added]
[25] In Taylor v. Canada, [2000] 3 F.C. 298, this Court, per Sexton J.A., at paragraph 28 of his reasons, justified the principle of judicial immunity as follows:
[28] Finally, the most serious consequence of permitting judges to be sued for their decisions is that judicial independence would be severely compromised. If judges recognized that they could be brought to account for their decisions, their decisions might not be based on a dispassionate appreciation of the facts and law related to the dispute. Rather, they might be tempered by thoughts of which party would be more likely to bring an action if they were disappointed by the result, or by thoughts of whether a ground-breaking but just approach to a difficult legal problem might be later impugned in an action for damages against that judge, all of which would be raised by the mere threat of litigation. In Lord Denning's words [in Sirros v. Moore, [1974] 3 All ER 776 (C.A.)], a judge would "turn the pages of his books with trembling fingers, asking himself: "If I do this, shall I be liable in damages?"
[26] At paragraphs 30 et seq. of his reasons, Sexton J.A. addresses the "bad faith" exception to judicial immunity, i.e. whether such immunity is not absolute. He recalls the words of Lord Denning in Sirros, supra, at page 785, where the Master of the Rolls stated that the judge was immune from liability to damages so long as he has acted in good faith and in the sincere conviction that he has acted within his jurisdiction. Sexton J.A., after reviewing the Canadian authorities on this point and, in particular, the decision of the Supreme Court of Canada in Morier et al. v. Rivard, [1985] 2 S.C.R. 716, and the decisions of the Quebec Court of Appeal in Royer v. Mignault, [1998] R.J.Q. 670 (C.A.), leave to appeal to the Supreme Court refused, [1988] 1 S.C.R. xiii, and Proulx v. Quebec (Attorney General), [1997] R.J.Q. 419 (C.A.), in which the Court of Appeal adopted the bad faith exception formulated by Lord Denning in Sirros, supra, concluded as follows at paragraph 41:
[41] While it cannot be said that the Supreme Court of Canada has definitively decided the point, I am inclined to accept the proposition that Lord Denning's exception to judicial immunity is good law in Canada: that is, judicial immunity does not apply where it is shown that a judge knowingly acts beyond his jurisdiction.
[27] It is interesting to note that section 156 of the new Act is in the same vein as Mr. Justice Sexton's conclusion. This provision reads as follows:
| 156. Immunity and No Summons - The following rules apply to the Chairperson and the members in respect of the exercise or purported exercise of their functions under this Act: No criminal or civil proceedings lie against them for anything done or omitted to be done in good faith; and They are not competent or compellable to appear as a witness in any civil proceedings.
|
156. Immunité et incontraignabilité - Dans l'exercice effectif ou censé tel de leurs fonctions, le président et les commissaires bénéficient de l'immunité civile et pénale pour les faits - actes ou omissions - accomplis et des énonciations faites de bonne foi et ne sont, au civil, ni habiles à témoigner ni contraignables. |
[28] In the case at bar, the appellant does not contend that he is entitled to judicial immunity in regard to the criminal prosecution that has been brought against him. In my opinion, there would be no merit whatsoever to any such claim. As Lord Denning stated in Sirros, supra, at page 782: "...Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts."
[29] Professor Friedland, in A Place Apart: Judicial Independence and Accountability in Canada, May 1995, a report prepared for the Canada Judicial Council, strongly agrees. At page 37, he states:
What if the wrongful action is related to the judge's judicial duty? Obviously there can be no immunity for, say, soliciting or accepting bribes. Some of the U.S. federal cases mentioned above involved such conduct. But if the charge is false imprisonment or assault relating to a judicial action, the answer should be different. One should not permit a person to do through the criminal process what cannot be done through a civil suit. The tests, such as that proposed by Denning for civil liability (absolute liability if the judge is "acting in the bona fide exercise of his office and under the belief that he has jurisdiction") should be equally applicable to criminal liability. Again, there is the question of whether legislation can make the judge criminally liable. In the U.S., it is clear that Congress has this power. In an 1880 U.S. Supreme Court case, it was held that a federal statute making it a misdemeanour with a $5,000 fine for a judge to breach a civil rights statute relating to the selection of jurors was constitutional. It is far less clear that the Supreme Court of Canada would arrive at the same result.
[Underlining added]
[30] In the same vein are the remarks by Abimbola A. Olowofoyeku in Suing Judges: A Study of Judicial Immunity (Oxford: Clarendon Press, 1993), at pages 76 and 77:
It is clear from some of the cases discussed above, however, that the immunity of judges from criminal liability is not total. In this respect the law of England is the same as that of the USA. Excepting the general principles of immunity discussed above, any judicial officer who violates the criminal law would be as liable therefore as any other private person. According to Woodhouse J. of the New Zealand Court of Appeal, 'a judge can, of course, be made to answer, and in a proper case, pay dearly, for any criminal misconduct. Like any other citizen criminal proceedings may be brought against him.' This is because 'criminal conduct is not part of the necessary functions performed by public officials'. Thus a judge who commits theft, assault, or murder, for example, should not, and would not be able to, claim judicial immunity, since these would have nothing to do with his office as a judge. However, even in cases where the offence is connected with a judicial function, e.g. receiving bribes or committing some other fraudulent or corrupt act, immunity will still not be available. Although conviction of judges for such crimes is virtually unheard of in England, there are dicta. But cases of such liability abound in the USA. The defence of judicial immunity from indictment was rightly rejected in both Braatelein v. United States and United States v. Hastings (above). The law on immunity from criminal liability was aptly summed up by White J. of the US Supreme Court in O'Shea v. Littleton,
We have never held that the performance of the duties of judicial ... officers requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights ... On the contrary the judicially fashioned doctrine of official immunity does not reach so far as to immunize criminal conduct proscribed by an Act of Congress.
A principle similar to this would probably apply (with appropriate modifications) in most common-law jurisdictions.
[Underlining added]
[31] It is clear from these authorities that the appellant is unable to invoke judicial immunity from the charges now weighing against him. However, he claims he is entitled to obtain payment of the legal costs and fees that he will have to bear in defending himself. In support of this proposition, the appellant refers us to two decisions, Hamann v. Québec (Ministre de la Justice), [2001] R.J.Q. 2046 (C.A.), and Fortin v. Procureur général du Québec, [2001] R.J.Q. 1323 (S.C.).
[32] At paragraph 69 of his reasons, Noël J. disposed of this argument as follows:
[69] Before concluding, it is worth noting that it was argued that Hamann and Fortin, supra, supported the argument that the legal costs and fees should have been borne by the IRB. However, the facts in those two cases involved judges in the context of a removal. In the case at bar, the member did not have the status of a judge and was not involved in a removal proceeding. Further, as noted earlier, members are subject to a Legal Assistance Policy. Accordingly, those two cases cannot be of any assistance here.
[33] In my opinion, Noël J. was not wrong in concluding that neither Hamann nor Fortin supported the appellant's contention. In those cases the judges, both municipal court judges, were the subjects of complaints filed with the Conseil de la magistrature du Québec. The issue was whether the judges were entitled to obtain payment by the Quebec Minister of Justice of their out-of-court fees in their defence before the Conseil. In both cases, criminal proceedings had been taken against the judges, in Hamann for obstructing justice (subsection 139(2) of the Criminal Code) and in Fortin for driving a motor vehicle with a blood-alcohol level exceeding 80 mg of alcohol in 100 ml of blood (sections 253(b) and 251 of the Criminal Code). Although it is not apparent from the a Hamann and Fortin decisions, it does not seem that the judges asked the Minister of Justice to defray the costs of their defence in the criminal courts.
[34] In Hamann, supra, relying, inter alia, on the Supreme Court of Canada decision in Valente v. The Queen, [1985] 2 S.C.R. 673, the Quebec Court of Appeal ruled as follows at paragraphs 12 to 15 of its reasons:
[Translation]
¶ 12 The appellant argues that the Minister of Justice's refusal to bear the respondent's counsel fees does not infringe the principle of judicial independence since it does not affect the three essential components of that concept, security of tenure and financial security of the judges and institutional and administrative autonomy. The Court, like the trial judge, is of the contrary opinion. The Supreme Court, in Valente v. The Queen, clearly states that the rule of security of tenure means:
"... that the judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard."
¶ 13 The Court is of the opinion that the right to be heard necessarily includes the right to be assisted by counsel.
¶ 14 In the case at bar, it is obvious that dismissal is a possible ultimate punishment for the actions charged against the respondent who, moreover, like any other person, had the benefit of the presumption of innocence at the time the complaints were laid. The principle of security of tenure is therefore directly at issue in this case, as is the concept of the respondent's financial security, in his capacity as a judge, since the out-of-court fees he may incur would in all likelihood exceed his income as a part-time municipal judge, a situation that is peculiar to this case.
¶ 15 Incidentally, in this case the Court is also of the opinion that it would be unreasonable, pursuant to these concepts, that a judge could be obliged to defend himself at his own expense against an unscreened complaint in the nature of the one made by the Club juridique.
[35] In Fortin, supra, Lemelin J. of the Superior Court, at paragraphs 31 to 33 of his reasons, expressed full agreement with the Court of Appeal in Hamann, supra:
[Translation]
¶ 31 Viewed from this standpoint, the one that should be adopted, in the Court's opinion, the Court sees no valid reason to suppress or reduce the objective constitutional guarantees of Judge Fortin. He continues to have the right to defend his office without having his judicial independence compromised. If he had to bear the costs of his defence, there is a risk that he could not do so for financial reasons or that he would choose to resign. His independence would then have been compromised by the Minister's refusal to pay the fees of his counsel.
¶ 32 No one should be able easily or conveniently to obtain the dismissal or sanction of a judge. That is the very essence of the security of tenure of the judge's position. For that reason, the judicial system must provide Judge Fortin with reasonable resources to defend his position, not so much in his own interest but in order to avoid an infringement of the security of tenure of the position.
¶ 33 The termination of the contract for services that the Minister gave Judge Fortin's counsel after he had been convicted may be perceived as an interference of the executive and in particular as an indication that the Minister of Justice is of the opinion that Judge Fortin no longer has the constitutional protections and privileges that pertain to his office. That would amount to the Minister substituting his own decision for the decision that the Conseil alone has the duty to render on the complaint that it will hear.
[36] There can be no doubt, as the Quebec Court of Appeal and Superior Court found, that the principle of judicial independence requires, in the context of a judge's dismissal proceeding, that the judge be entitled to the payment of his out-of-court fees he will have to incur in defending himself. As Lemelin J. says so well, in Fortin, supra, the judge must have [Translation] "reasonable resources to defend his position". However, in the instant case, the appellant is charged with soliciting and accepting money in exchange for favourable decisions. Consequently, the sole purpose of the trial he will have to undergo is to determine his guilt on those charges. Those proceedings do not challenge the notion of security of tenure, an essential component of judicial independence. I conclude, therefore, that these decisions are of no use in this case.
[37] As a further argument, the appellant submits that unless the government defrays the costs and fees of his defence, a reasonable and informed person would have the conviction that judicial independence is compromised. Specifically, the appellant claims that because he has rendered numerous decisions unfavourable to the Government, he is vulnerable before that Government which, in order to punish him, could unjustly accuse him.
[38] It is because of this possibility that the appellant submits that the reasonable and informed person would consider judicial independence to be compromised failing the payment of his defence costs, since in such a situation the appellant could not present an adequate defence against the charges against him owing to his limited financial resources.
[39] I hasten to say that the appellant has filed no evidence that might sustain an allegation that the charges brought against him result or could result from any intention on the part of the Government to avenge itself or punish him. In fact, the appellant does not contend or suggest that the charges against him have such a goal.
[40] His contention, as I understand it, is based on the premise that since such a scenario is always possible, it is imperative that a judge always be indemnified when charges related to acts committed in the course of his duties are laid against him.
[41] In my opinion, there is no basis whatsoever to this argument. I am unable to see how a reasonable and informed person could perceive, absent any evidence supporting, if only minimally, an allegation that the Government is attempting to punish the judge, that judicial independence would be compromised if the judge were, like any other citizen, to bear the legal costs of his defence.
[42] Given the charges against the appellant, given the fact that the appellant cannot invoke judicial immunity from these charges, and given that none of the essential components of judicial independence is involved, I am unable to conclude that a superior court judge facing charges similar to those laid against the appellant, could demand that the Crown pay his legal costs and fees.
[43] In view of this conclusion, it is unnecessary for us to decide whether the appellant, in his capacity as a member of the Immigration Appeal Division of the IRB, has powers, rights and privileges similar to those of a superior court judge.
[44] For these reasons, I would dismiss the appeal with costs.
"I concur.
Alice Desjardins J.A."
"I concur.
"J.D. Denis Pelletier J.A."
Certified true translation
Monica F. Chamberlain
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-12-05
STYLE: YVES BOURBONNAIS v. A.G.C.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 12, 2005
REASONS FOR JUDGMENT: NADON J.A.
CONCURRING: DESJARDINS J.A.
PELLETIER J.A.
DATE OF REASONS: February 13, 2006
APPEARANCES:
Éric Meunier FOR THE APPELLANT
Jean-Jacques Rainville
François Joyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dunton Rainville, Partners FOR THE APPELLANT
Montréal, QC
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General
of Canada
Ottawa, ON
Date: 20060213
Docket: A-12-05
Ottawa, Ontario, February 13, 2006
CORAM: DESJARDINS J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
YVES BOURBONNAIS
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT
The appeal is dismissed with costs.
"Alice Desjardins"
J.A.
Certified true translation
Monica F. Chamberlain