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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD  July 31, 2002

Did Justice Boilard make
the right decision?


I was stunned when I first heard of Judge Boilard's decision to quit smack in the middle of the 17 Hells Angles mega trial. Although I can't say that I relished the different occasions when I had to plead before him, I never knew him as being sensitive to public or judicial criticism. While it is true that the Canadian Judicial Council severely reprimanded him for his remarks towards a defense attorney, it had nothing to do with the ongoing trial. His reaction to the Council's criticism was all the more astonishing considering his own tendency to publicly criticize lawyers, witnesses, government agencies and officials whenever they failed to live up to his standards.

Despite Chief Justice Lyse Lemieux's attempt to put up a brave front by declaring that there were many Superior Court judges equally capable of continuing the trial, I couldn't think of more than a handful of judges who have the necessary experience and qualifications to hear such a complicated case. Seeing the manner in which he conducted himself in the recent high profile murder trial of Hells Angels leader Maurice (Mom) "Mom" Boucher, Justice Pierre Beliveau was definitively high on my list. Still, I can't help but wonder how interested he was in taking over the case, especially at this time of the year.

Whether or not Justice Pierre Beliveau declares a mistrial and begins a new trial or continues where Justice Boilard left off, both his decision and timing will have enormous consequences. A new trial will mean having to find 12 new jurors which is certainly no easy feat considering the nature of the charges as well as the number of accused and attorneys involved. Furthermore, the Crown would face the difficult and very costly task of having to produce, all over again, more than three months of evidence involving wiretaps and informants.

On the other hand, failing the express agreement of all of the attorneys as well as the accused, there could be a serious problem down the line if Judge Beliveau decides to continue the trial from where Justice Boilard left off. For one, I am still not entirely convinced that the Criminal Code justifies the continuation of the jury trial before another judge. The relevant article of the code provides that the proceedings may be continued before another judge "if for any reason " the original judge " is unable to continue". There could be a serious problem if the Appeal Court reached the conclusion that Judge Boilard was indeed able to "continue" but refused to do so because of personal feelings.

I simply can't see how the Council's reprimand could jeopardize his required impartiality to continue the trial anymore than it could provide grounds for an appeal court to order a new trial had he decided not to quit. In the event the appeal court considers Justice Boilard's reasons for withdrawing from the biker trial as insufficient to justify the continuation of the trial before Justice Beliveau, the court could just as well set aside the jury's verdict and order another trial. Even if Justice Beliveau is justified in continuing the trial from where Judge Boilard withdrew, the proposed month adjournment to assimilate the proof may not be long enough. Any prolonged delay always runs the risk of having a negative impact on a jury's collective memory of the evidence.

I'm also having a hard time understanding Judge Boilard's claim that because of the reprimand he no longer had " the moral authority" to continue hearing the high-profile case. Mind you, had the same decision been reached by our appeal courts, I would have been satisfied. By the very nature of our judicial system, appeal court judges are in a much better position to decide such matters in an objective manner.

While the July letter from the Canadian Judicial Council Committee blasts Justice Boilard for his unprofessional remarks, it never stated nor implied that the criticism prevented him from continuing to hear the biker's case. Quite clearly the Council's Panel representative, Chief Justice Garon of the Canada Tax Court, didn't mince his words when he qualified Justice Boilard's remarks towards the complainant attorney as a "personal attack ", "disgraceful ", " offensive"," humiliating" and "abusive". However, the committee members also concluded that no investigation was warranted and the file was closed.

While the Council's criticism would naturally have a profound impact on any judge, all the more when a ruling is leaked to the media before it is received by the judge, the three very prominent judges on the committee had every right to assume that Judge Boilard would continue on with his case. Although, in retrospect, it would have been much wiser to have delayed the drafting of the letter until the jury trial was over, what Chief Justice Alban Garon of the Tax Court Canada said in his letter was not much different than what many Montreal criminal lawyers and prosecutors have been privately saying for years.

Just as lawyers must learn to accept criticism from judges, the same is true for trial judges whenever their judgments are overturned by our appeal courts due to blatant legal errors or irregular conduct. Much like injured professional hockey or football players, judges are expected to silently absorb such criticism, draw the proper lessons and carry on with their duties accordingly. It is not as if Justice Boilard's rulings have never been overturned by the Quebec Court of Appeal, quite the contrary. Therefore, the natural assumption is that he learned long ago never to succumb to his personal feelings.

In November 1998 he committed a costly legal error when he instructed the jurors on what evidence could corroborate an accomplice turned- crown witness in the high profile murder trial of Maurice (Mom) Boucher's who was charged with the first degree murder of two prison guards. As a result of the erroneous instructions, the jurors were left with little choice but to acquit him. On Oct. 10, 2000, the Quebec Court of Appeal overturned the acquittal and ordered a new trial. Following the second murder trial, which ended last May, the jury convicted Boucher on all charges. Ironically, the presiding judge was again Justice Pierre Beliveau.

Seeing that the costly error never prevented Justice Boilard from trying "Mom" Boucher's alleged accomplices in the present mega trial, I find it all the more surprising that the harsh slap on the wrist by the Canadian Judicial Council pushed him to resign from the case. One thing is certain, despite the controversy over Judge Boilard's surprising decision, time will tell to what extent it was calculated to serve the interests of justice.