Québec City, this 26th day of August 2009 COMPLAINT FILED BY:

Transcription

1 CANADA PROVINCE DE QUÉBEC INQUIRY COMMITTEE OF THE CONSEIL DE LA MAGISTRATURE 2008 CMQC 43 Québec City, this 26th day of August 2009 COMPLAINT FILED BY: Mr. Adnan Dany Saba AGAINST: Judge Richard Alary IN THE PRESENCE OF: Judge Paule Gaumond, J.C.Q. Judge Sophie Beauchemin, J.M.C. Henri Grondin, Q.C. Cyriaque Sumu Judge René de la Sablonnière, J.C.Q., Committee Chairman INQUIRY COMMITTEE REPORT [1] October 1, 2008, the Complainant sent the Conseil de la magistrature du Québec a complaint regarding Judge Richard Alary, a judge in the Municipal Court of Longueuil. [2] We are reproducing this complaint below, without modifying it: "Le 21 sept. 2008, am, Mr. R. Alary juge ou avocat? coure minicipale Longuelle m appeler pour m avertire de ne pas prendre aucune démarche ou action que ce sois contre ma seoure Atina Saba parce que je suis perdant d avence et elle est bien protéger par 3 ou 4 avocats dans son cabinet. S.V.P. maître informe moi de l agissement de ce monsieur ou ce juge-la ou bien seullement la fonctionnement du système judissieur."

2 2 [TRANSLATION:] "On September 21, 2008, at 11 a.m., Mr. R. Alary, judge or lawyer?, of the municipal court of Longueuil, called me to warn me not to take any steps or action whatsoever against my sister, Atina Saba, because I have lost before I start and because she is well protected by 3 or 4 lawyers in his office. Please give me an explanation of the actions of that man, or that judge, or merely of how the judicial system works." I. DISPUTED ISSUES [3] In this inquiry, it is a matter of first determining whether Judge Alary, in practising as a lawyer, consequently engaged in an activity that was incompatible with his functions as a municipal judge, in violation of Article 7 of the Code of Ethics for Municipal Judges of Québec, and secondly, whether he used his position as a municipal judge in order to exert undue influence on the Complainant, thereby violating Article 9 of this Code. II. THE FACTS [4] Judge Richard Alary sits on the bench of the Municipal Court of Longueuil as a parttime judge, paid per sitting. Subject to certain rules, he may therefore act as a private practice lawyer, in accordance with the Act respecting municipal courts (R.S.Q. c ). [5] The Complainant sent a formal notice to his sister, demanding that she pay the charges related to the funerals of members of their family. [6] As a private practice lawyer, Mr. Alary accepted an assignment, on a pro bono basis, to represent the Complainant's sister. [7] According to the testimonies heard, the Complainant received a phone call on Sunday, September 21, The person at the other end identified himself as the lawyer for his sister and he talked to him about his formal notice. [8] There are contradictory versions of the contents of that conversation. According to the Complainant, at the time of that phone call, Judge Alary intimidated him, in telling him to be careful, because his sister was well protected by his law firm, made up of four (4) or five (5) lawyers. According to the judge, he never spoke such words: first, he practises alone, and secondly, he merely explained to the Complainant that he was representing his sister and that he would be responding to his formal notice very shortly. And in fact, he did so the very next day, on Monday, September 22, [9] In answering the call, the Complainant noticed on the call display on his phone that the name "Richard Alary" was marked, followed by a telephone number. He phoned the telephone number displayed, to find out where it came from, and discovered that it was the

3 3 telephone number of Ville de Longueuil. He made a number of calls during the following days in order to identify who placed that call, and learned, in the end, that it was a judge of the Municipal Court of Longueuil. In fact, after a number of conversations with the municipality, he succeeded in finding out that there was a judge by that name. During his initial efforts, he was told, in reply to his inquiries, that there was no municipal employee by that name. In the meantime, the Complainant had received the reply to his formal notice, written by the judge, and he perceived this as a threat. [10] As for the judge, he explained that he had placed a telephone call from his municipal judge's office on Sunday, September 21, 2008, because the deadline for responding to the Complainant's formal notice was soon expiring, if it had not already done so, and he wanted to inform him, as quickly as possible, that he would be receiving a reply. [11] However, the judge had forgotten his cellphone in his car. He was unaware of the fact that his name and the telephone number of Ville de Longueuil were marked on the call display of the Complainant's telephone. This situation was apparently due to a computer breakdown in communications. Normally, when phoning from his judge's office, he said that "private caller" is marked on the call display. [12] During the following week, the Complainant tried, a number of times, to reach the judge at his judge's office, although he had already used the judge's cellphone number to reach him. He had found this number on the letter responding to his formal notice. The Judge's assistant, ill at ease with receiving numerous calls from the Complainant, finally asked the judge to speak to him, in order to put a stop to these calls. The judge asked her to place the call and he spoke to the Complainant a second time. [13] During this second conversation, the Complainant told him about his uneasiness due to the fact that a judge can intervene in his dispute with his sister before the Small Claims division. The Complainant asked him whether he was acting as a judge or a lawyer. [14] The judge then explained that the matter concerned in the correspondence between him and his sister didn't come under his jurisdiction as a judge and that it was in his capacity as a lawyer that he wrote to him. He added that it was a judge from the Court of Québec who would sit on the bench, and that he wouldn't be representing his sister before the Court, because lawyers aren't allowed to do so in the Small Claims division. When the conversation ended, the Complainant seemed satisfied with these explanations. [15] Before the inquiry committee, the judge said that he remained a member of the Bar association (the Barreau), following his appointment as judge of the Municipal Court of Longueuil, particularly to maintain his group insurance, since he couldn't benefit from a group insurance plan otherwise. He had acted as a pro bono lawyer in a number of cases since his appointment. Since he considers life has been kind to him, this is his way of giving back to society what it has given to him. [16] He doesn't present arguments and submissions before the courts. His office is located in his home. As for his correspondence in his capacity as a lawyer, he uses

4 4 stationery with his name and the word "lawyer" marked on it. The address is a post office box number, the telephone number is that of his cellphone and the fax number is connected to his home. [17] In the phone directory of lawyers of the Barreau du Québec, he is listed as follows: M e Richard Alary Juge de la Cour municipale de Longueuil 100 place Charles-Lemoyne C.P. 1000, Bureau 292 Longueuil QC J4K 5H3 Tel.: (450) , extension 2150 Fax: (450) [18] The judge said that this is the address that he had provided when he was appointed judge and that he had never subsequently concerned himself with that listing. No one had contacted him at that telephone number to consult him as a lawyer. [19] During the conversations with the Complainant, he never used his title as judge to try and influence him, and the Complainant has acknowledged this. [20] The judge follows the unwritten rule whereby when he is in his office at the Municipal Court, he must solely devote his time to his work as a judge. He described this breach of this rule as a mishap, due to the fact that he had forgotten his cellphone in his vehicle and due to the urgent nature of the situation. III. THE LAW A) EXERCISING INCOMPATIBLE FUNCTIONS [21] In agreeing to act as a lawyer, was Judge Alary breaching the Code of Ethics for Municipal Judges of Québec, by exercising an incompatible function? [22] At the time of the occurrence of the facts that gave rise to this inquiry, the judge was a part-time judge in the Municipal Court of Longueuil and paid on a per-sitting basis. [23] He is also a member of the Barreau du Québec. [24] This matter concerns a judge's standards of conduct when exercising professional activities other than those of his function of judge. [25] Article 7 of the Code of Ethics for Municipal Judges of Québec (R.R.Q., c. T-16, r.4.2) is involved here:

5 5 7. The judge should refrain from any activity which is not compatible with his functions of municipal judge. [26] Let's examine the situation with regard to this provision. [27] The judges of the Municipal Court in Longueuil are paid on a per-sitting basis. This court is run by a judge who is responsible for the court and not by a president judge, and so its judges are still allowed to practise their law profession, except before any municipal court and before the Court of Québec, pursuant to sections 37 and 45.1 of the Act respecting municipal courts (R.S.Q. c ): 37. Notwithstanding any provision to the contrary, neither the acceptance of the office of municipal judge nor the exercise of the functions of such office shall prevent an advocate from practising as an advocate before a court of justice, but he shall thereby be prevented from practising as an advocate before any municipal court or before the Court of Québec Every judge exercising his or her functions in a municipal court to which a president judge has been appointed must exercise such functions on an exclusive basis. [ ]" [28] The rules on conflicts of interest of part-time judges are stipulated in section 45 of the Act respecting municipal courts: 45. A municipal judge, in addition to complying with the standards of conduct and fulfilling the duties imposed by the code of ethics adopted pursuant to section 261 of the Courts of Justice Act (chapter T-16), shall observe the following rules: (1) He shall not, even indirectly, enter into a contract with a municipality within the territory in which the municipal court has jurisdiction, except in the cases provided for in section 305 of the Act respecting elections and referendums in municipalities (chapter E-2.2), adapted as required, nor shall he advise any person negotiating such a contract; (2) He shall not, even indirectly, agree to represent or act against a municipality or a member of the municipal council, an employee other than an employee within the meaning of the Labour Code (chapter C-27) or a police officer of a municipality within the territory in which the municipal court has jurisdiction; (3) He shall not hear a case pertaining to a contract described in paragraph 1 to which an advocate with whom he practises as an advocate is a party or a case in which such an advocate is representing or acting against a municipality or person contemplated in paragraph 2; (4) He shall not hear a case involving a question similar to one involved in another case in which he represents one of the parties;

6 6 (5) He shall, with respect to every case referred to him, make and file in the record a declaration stating not only the grounds of recusation to which he is aware he is liable and which are set out in article 234 of the Code of Civil Procedure (chapter C-25), but also any grounds indirectly connected with him and arising either from the fact that he is representing one of the parties or from the activities of a person with whom he practises as an advocate. [29] To further emphasize the exceptional situation of these municipal judges, here is what Chief Justice Lamer wrote in R. v. Lippé 1 : "Based on such considerations, I find that the occupation of practising law gives rise to a reasonable apprehension of bias in a substantial number of cases and is therefore per se incompatible with the functions of a judge. [ ] While I have found that the occupation of practising law is per se incompatible with the function of a judge, the next step in the analysis is to consider any safeguards which may now be in place or any other considerations of which a fully informed person would be aware which may alleviate the risks of bias." [30] The safeguards that Chief Justice Lamer subsequently dwelled on are as follows: the oath, judicial immunity, the Code of ethics for municipal judges of Québec as well as certain provisions of various laws relating, in particular, to conflicts of interest. These safeguards prompted the Supreme Court of Canada to conclude, in the Lippé decision, that the system of municipal court judges authorized to practise law in Quebec did not infringe upon the principle of the safeguard of judicial impartiality. [31] Practising the law profession is therefore not incompatible with the function of a municipal judge who is paid on a per-sitting basis and who belongs to a Court that is not run by a president judge. Such compatibility is nevertheless subject to compliance with the stipulated safeguards in the laws in order to alleviate the risks of a perception of incompatibility by a reasonable and well-informed individual. [32] Strict compliance with the rules imposed on municipal judges who continue to practise their law profession is essential in order to preserve the impartiality, integrity and independence of this particular institution. These rules require a clear-cut separation between the judge's functions and his other activities 2. Judges who practise their law profession under such circumstances must be very careful, given the exceptional system from which they benefit. 1 [1991] 2 S.C.R. 114, p Beauregard v. Canada [1986] 2 S.C.R. 56, p. 73; Mackin v. New Brunswick (Minister of Finances) [2002] 1 S.C.R. 405, par ; Ref. re Remuneration of Judges of the Prov. Court of P.E.I. [1997] 3 S.C.R., par. 252.

7 7 B) UNDUE INFLUENCE ON THE PART OF THE JUDGE [33] In his conduct as a lawyer, did Judge Alary violate article 9 of the Code of Ethics for Municipal Judges of Québec by exerting undue influence, thereby undermining the integrity and independence of the courts? [34] Article 9 stipulates: "The judge should uphold the integrity and defend the independence of the judiciary, in the best interest of justice and society." [35] Judge Alary's office procedures normally make a clear-cut separation between his activities as a lawyer and his function as a judge. [36] He is familiar with the rule of not using his judge's office nor the equipment and materials there to perform his work as a lawyer. The present situation constitutes exceptional circumstances and stems from the urgency of the situation and the fact that he forgot his cellphone in his vehicle. For this reason, the Committee does not consider it appropriate to address this matter in further detail. [37] It was through an unintentional and accidental concurrence of circumstances that confusion was caused over functions in the Complainant's mind: It was a Sunday and urgent action had to be take action, as the deadline for responding to the formal notice was about to expire, if it had not already done so; The judge was at his office to do some court work there; however, he forgot his cellphone in his vehicle; The judge was unaware of the fact that his name and the municipality's telephone number were marked on the Complainant's call display, due to a power failure in the telephone system, and contrary to the normal situation. [38] The second phone call placed from the judge's office was made in reply to numerous calls from the Complainant to the judge's secretary. [39] Moreover, the judge hastened to well clarify the confusion in the Complainant's mind as soon as he was informed of it. [40] Furthermore, the judge acknowledges that he shouldn't have used the telephone at his judge's office to do his lawyer's work. He, himself, describes his action as isolated and as a mishap.

8 8 [41] The judge testified in a calm, serene manner, in reply to the Complainant's allegations and interpretations of the events. His account of the facts is precise, coherent and credible. [42] The Committee accepts the judge's version that he never tried to intimidate the Complainant and that he never used his title of judge to try and influence the Complainant. CONCLUSION [43] For all these reasons, the Committee is of the opinion that the actions for which the judge has been criticized are of the nature of a blunder, worsened through a technological breakdown in the telephone system at his judge's office. [44] A reasonable person, well-informed of the facts of this matter, cannot conclude that there was any incompatibility in this case, between the judge's functions and his profession as a lawyer, nor that the integrity and independence of the judiciary were undermined in exerting undue pressure on the Complainant. [45] The judge didn't violate the Code of Ethics for Municipal Judges of Québec. [46] FOR THESE REASONS, THE COMMITTEE: [47] DECLARES that this complaint is unfounded. Honourable Paule Gaumond, J.C.Q. Honourable Sophie Beauchemin, J.C.M. Henri Grondin, Q.C. Cyriaque Sumu Honourable René de la Sablonnière, J.C.Q. Committee Chairman