Judges fighting ejection from the bench could see their pensions frozen

The stage is set for possible changes to the rules that govern Canada's judges — changes that would prevent them from growing their pensions while they fight to avoid being removed from the bench.

However, the changes might not apply to one Quebec judge who — over the course of a legal battle to keep his job that has lasted nearly seven years — has collected more than $2.2 million in salary without hearing any cases.

A report quietly tabled in Parliament a few days ago endorses a proposal by Justice Minister David Lametti that would prevent judges fighting removal from the bench from accumulating years of service toward qualifying for pensions.

Lametti proposed that the change take effect once it's adopted, and said it should apply to any judge whose removal has been recommended by the Canadian Judicial Council, a national body that investigates allegations of misconduct made against judges.

But the report by the Judicial Compensation and Benefits Commission (JCBC) says the change should not apply to anyone currently fighting to remain on the bench.

"It would be unfortunate if the making of the request and the results of this report negatively affected those [who] are already the object of deliberations and recommendations by the Canadian Judicial Council and who have yet to complete the process of exercising recourses available to them within the law," wrote the members of the commission, chaired by former Quebec cabinet minister Gil Rémillard.

Quebec judge fighting removal

Only one judge could be affected by the proposed change right now.

Quebec Superior Court Justice Michel Girouard, named to the bench in 2010, has been collecting a $329,900 annual salary and building up pension credits — but hasn't heard any cases since January 2013, following an allegation that he bought illegal drugs from a client.

While that allegation wasn't proven, in February 2018 the Canadian Judicial Council found that Girouard "attempted to mislead and conceal the truth during the process of review of allegations against him."

"Council concludes, in the majority, that the judge's integrity has been fatally compromised and that public confidence in the judiciary warrants a recommendation that he be removed from office," the council wrote.

Girouard has been fighting the council's recommendation ever since, arguing in part that a number of the judges on the council could not understand French.

If Girouard is still a judge after Sept. 30, 2020, he'll qualify for early retirement and a pension in the form of an annuity.

A 'perceived incentive' to delay

In a letter to the JCBC dated May 31, Lametti said annuities for retired judges are "substantial."

"In the context of judicial conduct proceedings, the nature of these arrangements may give rise to a perceived incentive for a judge who is the subject of a judicial conduct complaint to prolong the proceedings in order to reach their date to qualify for either a full or reduced judicial annuity," Lametti wrote.

"Even where this is not the judge's intention, the perception may remain that the judge launched the challenge primarily with a view to benefiting financially. This risks undermining public confidence in the integrity of Canada's federally-appointed judiciary."

Lametti is proposing that the clock stop on a judge's accumulation of service years toward a pension once the Canadian Judicial Council recommends that judge's removal from the bench. If a judge successfully fights the recommendation and is returned to the bench, he said, the service years would be restored.

"Such an amendment would protect a judge seeking to challenge a CJC recommendation for removal from the allegation that the challenge was being launched simply with a view to benefiting financially," Lametti wrote in his letter.

"It would also ensure that a judge is not penalized for launching such a challenge, where that challenge is ultimately upheld."

In its report dated Oct. 28, the JCBC said groups such as Quebec's bar association and the Canadian Superior Court Judges Association supported Lametti's proposal. Justice Girouard opposed it.

Lametti's office said he will study the commission's report.

"As the minister of justice, I have the responsibility to improve our judicial system while respecting the principle of judicial independence," Lametti said in a statement to CBC News. "I will take the time to fully consider this report and will work with the Chief Justice to determine the appropriate path forward."

Lametti has until February to give his formal response to the report. Should he decide to go ahead with the proposed changes, the Judges Act calls for him to do it "within a reasonable period."

That might not be the only change coming. In Lametti's mandate letter, Prime Minister Justin Trudeau instructs him to "develop proposals for reform of Canada's system of judicial governance and discipline."

Meanwhile, Girouard continues to fight for his job.

Elizabeth Thompson can be reached at elizabeth.thompson@cbc.ca