During a sentencing hearing Judge Moreau-Bérubé made statements about people from the Acadian Peninsula, saying that they were predominantly dishonest, that honest people were "few and far between, and they are becoming fewer and fewer". The following day she made a public apology saying she was speaking without notes "off the cuff". Many complaints were made to the New Brunswick Judicial Council as a result. An inquiry panel found that while the comments were judicial misconduct, they were not such that they would recommend her removal from office. Despite this recommendation, the Judicial Council recommended her removed. The New Brunswick Court of Queen's Bench quashed her removal on the finding that the Judicial Council was bound by the finding of the inquiry. The New Brunswick Court of Appeal dismissed the appellant's appeal.
- Does the authority granted by s.6.11(8) of the Provincial Court Act of New Brunswick, empowering the Lieutenant-Governor in Council to remove a Provincial Court judge without first addressing a legislative assembly, violate the principles of judicial independence, and more specifically security of tenure?
Appeal allowed with costs, Judicial Council decision restored.
The court held that the proper standard of judicial review is a pragmatic and functional approach, which creates a spectrum of levels of deference to the decision of judicial councils, from the correctness (viz. low deference) to the patently unreasonable (viz. high deference). There are four main factors to be considered:
- is the problem under review a question of law, fact or both,
- is a privative clause present,
- what is purpose of tribunal's enabling statute,
- has the tribunal any particular expertise in the matter.
Being primarily composed of members of all levels of the New Brunswick judiciary the council should be characterized as a unique decision-making body with some degree of specialization, and as a tribunal with equal or better qualifications than a reviewing court to make decisions it is legislated to make. Therefore, the decisions of the council should be reviewed only with a great deal of deference. Pursuant to s.6.11(4) of the Provincial Court Act, the council was to make a decision "[b]ased on the findings contained in the [inquiry panel's] report." The words "based on" equate with "take into account," not "bound by." Council is free to put the weight it considers appropriate on the panel's report. Council's conclusions on questions of mixed law and fact should be afforded a high degree of deference. There is nothing patently unreasonable in council's decision, and therefore no basis for this court's interference. Finally, at each step in the review process, respondent had opportunities to be fully heard. As such, there was no breach of the duty to act fairly.