No relief for reprimanded ex-judge after sexist comments to victim in rape trial
Par Michaël Lessard, avocat et Mme Sangitha Jeyaseelan, student at the Faculty of Law at the University of Montreal
Former judge Jean-Paul Braun’s appeal to overturn a reprimand by Quebec’s judicial council was denied[i]. The retired judge was sanctioned for making inappropriate comments to a victim during a trial for sexual assault. The Superior Court of Quebec rejected his claim that the initial decision was unreasonable and that he was not properly heard during the council’s proceedings.
Mr. Braun made headlines in 2017 after making several inappropriate comments about a 16-year-old sexual assault victim. His remarks were widely condemned in the media and lead to a slew of complaints including one from the Minister of Justice at the time, Stéphanie Vallée.
His comments during the proceedings included multiple references to the victim’s appearance, stating that she had a voluptuous figure that made her particularly noticeable, was slightly overweight and had a very pretty face. He also used an expression “fleur bleue” that indicates a certain romanticism and naiveté, adding comments that she must have been charmed by the assailant, a taxi driver who embarked her[ii].
Following the complaints, Quebec’s judicial council opened an inquiry and concluded that Mr. Braun’s comments were inappropriate in the setting of a public trial and indecorous to such an extent as to constitute an ethical breach worthy of a formal reprimand[iii]. Mr. Braun applied for a judicial review of that decision before the Superior Court of Quebec.
The court performed a two-tiered analysis, first examining whether the ex-judge’s right to be heard had been infringed upon, and, second, whether the administrative tribunal’s decision could be categorized as unreasonable.
Mr. Braun argued that the Quebec’s judicial council decision to sanction his comments referring to the “myth” of the “jeune fille fleur bleue” was unexpected and that the lack of notice relative to the Court’s use of the term “myth” prevented him from fully being heard. However, Justice Lacoste counters this assertion by stating that Mr. Braun was aware that his comments on the myth of the “jeune fille fleur bleue” were offensive and the subject of the complain against him. Justice Lacoste referred to an article in the Journal de Montréal which cites Braun’s use of the expression[iv]. The Court concludes that “the council does not have the obligation to provide judge Braun with a new notice while it deliberates and decides to use the word or concept ‘myth’. It is not a new question raised by the council during its deliberation”[v].
Subsequently, the Court examined the reasonableness of the administrative decision per the approach outlined in Canada (Minister of Citizenship and Immigration) v. Vavilov [vi]. This case reiterated and clarified principles of judicial review mentioned in Dunsmuir v. New Brunswick[vii]. Whereas Dunsmuir emphasized the exercise of restraint during judicial review, Vavilov specifies that the process of judicial review relies not only on examination of the reasonableness of the decision but also on an appraisal of the underlying rationale behind the decision. The outcome must be reasonable as must be the decision-making process of the administrative tribunal. However, the Court mustn’t usurp the functions of the lower tribunal and re-evaluate the decision based on its own appreciation of the facts. The Superior Court of Quebec concluded that, since the Quebec judicial council decision to reprimand Mr. Braun was reasonable and logical, it could not be overturned.
The Court’s decision sends a strong message that sexist rhetoric is unacceptable in the courtroom by concluding that the council’s reprimand is not only reasonable but also the correct sanction. It is a laudable stance. As one of us argued, nurturing the many myths surrounding sexual violence affects the dignity of the judge’s office[viii]. Moreover, these myths have concrete impacts on the reporting of sexual violence[ix]. The stereotyped view of victims that emphasizes the innocence and naiveté of the victim has been denounced as a harmful by-product of rape culture that actively discourages reporting by survivors who may not conform to this narrow image[x]. Research has shown that these outdated attitudes reduce victim cooperation with investigators and constitute a serious obstacle to justice[xi]. The Court confirms that the council was right in reprimanding this behaviour.
The full decision can be found here.
[i] Braun c. Conseil de la magistrature du Québec, 2020 QCCS 2028.
[ii] For the written opinion, see R. c. Figaro, 2017 QCCQ 7257.
[iii] Ministre de la Justice du Québec c. Braun, 2017-CMQC-066 à 2017-CMQC-077, 2017-CMQC-080, 2017-CMQC-084, 2017-CMQC-108, online: <https://perma.cc/4YND-S9ZB>.
[iv] Michael Nguyen, « Tollé contre les propos d’un juge », Journal de Montréal, October 25, 2017, online: <https://perma.cc/22D7-9B2C>.
[v] Braun c. Conseil de la magistrature du Québec, 2020 QCCS 2028, par. 17, translated, citation omitted.
[vi] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[vii] Dunsmuir v. New Brunswick, 2008 SCC 9.
[viii] Lessard, Michaël (2017). « Why couldn’t you just keep your knees together? » L’obligation déontologique des juges face aux victimes d’agression sexuelle. McGill Law Journal, 63(1), 155-187, online: <https://ssrn.com/abstract=3162883>.
[ix] Kelly, L., Lovett, J., & Regan, L. (2005). A gap or a chasm. Attrition in reported rape cases. Home Office Research, Development and Statistics Directorate. 31-34.
[x] Randall, M. (2010). Sexual assault law, credibility, and “ideal victims”: Consent, resistance, and victim blaming. Canadian Journal of Women and the Law, 22(2), 397-433.
[xi] Kaiser, K. A., O’Neal, E. N., & Spohn, C. (2017). “Victim refuses to cooperate”: A focal concerns analysis of victim cooperation in sexual assault cases. Victims & Offenders, 12(2), 297-322.