|
Judges - Justices of the Peace. Gibbon v. Justice of the Peace Review Council
In Gibbon v. Justice of the Peace Review Council (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against the decision and disposition of the 'Justice of the Peace Review Council' of a complaint about a justice of the peace's (JP) misconduct when her son was charged with an HTA offence. The JP was removed from office.
The applicant was indigenous and raised Gladue doctrine, which sets out a methodology for criminal sentencing of indigenous offenders - an application which was accepted by the tribunal although this was in an administrative/professional-discipline context. At paras 37-69 the court considers Gladue and the found misconduct in relation to the issues of: the role of indigenity in causation of the misconduct (1), non-participation in a healing circle (2), rehabilitation and the importance of having indigenous participation in the judicial system (3), remorse and it's absence (4-5), and credibility and judicial integrity (6):(c) The Proceedings Below
[30] On January 13, 2020, the Respondent received a complaint about the Applicant’s misconduct, as described above. As set out in the Amended Notice of Hearing (upon which the decisions below were based), the Applicant was alleged to have engaged in a pattern of conduct towards the prosecutor who had carriage of her son’s case, towards her judicial colleagues, and towards court staff, that constituted or gave the appearance of a failure to act with independence, impartiality and integrity in respect to court proceedings involving her son. It was further alleged that the pattern of inappropriate conduct undermined independence, impartiality and integrity of the Applicant’s judicial office.
[31] The hearing into these allegations took place over seven days on June 14-16, 18, July 4-5 and November 12, 2021. In the unanimous Merits Decision, dated February 7, 2021, the Review Council panel found that the Applicant had engaged in a pattern of conduct that, taken all together, constituted judicial misconduct. The Review Council panel heard submissions as to disposition on April 6, 2022 and May 24, 2022 and rendered their Disposition Decision on August 25, 2022. Subsequently, the Review Council made a recommendation for payment towards legal fees of the Applicant in connection with the proceedings before the Review Council.[4]
The Disposition Decision
(a) The Majority Decision
[32] The majority of the panel found that a recommendation that the Applicant be removed from office was necessary to restore public confidence in the administration of justice. (Disposition Decision, para. 121) . Lauzon v. Ontario (Justices of the Peace Review Council)
In Lauzon v. Ontario (Justices of the Peace Review Council) (Ont CA, 2023) the Court of Appeal considered an appeal of a JR of a 'Justices of the Peace Review Council' order that removed the JP from office for disciplinary reasons related to an article she wrote critical of Crown prosecutors and the bail courts. In these quotes the courts laments the cultural disrespect for JPs in the legal profession:[64] This dismissive treatment substantially downplayed the thrust of JP Lauzon’s complaints and the evidence, which is that justices of the peace were and are routinely disrespected in the administration of justice by other justice system actors. It is quite obvious that justices of the peace deserve respect from other actors, particularly those with whom they most frequently interact – Crown prosecutors.
[65] Justices of the peace are not to be treated by the other actors in the justice system as mere “rubber stamps”. While this image emerged in a case about issuing search warrants,[32] this point, made by Morden J.A., applies equally to justices and to their other functions, including approving bail: “[t]he function of the Judge is the most important safeguard. It is implicit in the provision that the Judge is not to act as a rubber stamp.”[33] The Supreme Court approved this comment in Baron v. Canada,[34] where Sopinka J. said, “[t]he concept of a rubber stamp role would be completely inconsistent with the role assigned to the judiciary”.[35] Despite this weighty authority, Hill J. felt obliged to make the same point much more recently in R. v. Singh: “[t]he show cause judge is not a rubber stamp.”[36]
[66] There was something more visceral going on in practice that showed persisting and pernicious disrespect for justices of the peace in the context of setting bail conditions. This came out especially clearly in the words of Martin J. recently in R. v. Zora,[37], who specifically approved Hill J.’s strong words in Singh:The ladder principle and the rigorous assessment of bail conditions will be more strictly applicable when bail is contested, but joint proposals must still be premised on the criteria for bail conditions established by the guarantees in the Charter, the provisions of the Code, and this Court’s jurisprudence ([R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509], at para. 44). Judicial officials “should not routinely second-guess joint proposals” given that consent release remains an efficient method of release in busy bail courts (Antic, at para. 68). However, everyone should also be aware that judicial officials have the discretion to reject overbroad proposals, and judicial officials must keep top of mind the identified concerns with consent releases. In R. v. Singh, 2018 ONSC 5336, [2018] O.J. No. 4757 (QL), Hill J. noted that, even post-Antic, counsel sometimes do not appear aware of this judicial discretion:Too often, as is evident from some transcripts of show cause hearings coming before this court, counsel conduct themselves as though a “consent” bail governs the release/detention result with all that is required of the court is a signature. At times, outright hostility is exhibited toward a presiding justice of the peace who dares to make inquiries, to require more information, or to reasonably challenge the soundness of the submission. This is fundamentally wrong. [para. 24] [Emphasis added.] [67] JP Lauzon’s cri de coeur on March 14, 2016, preceded Antic,[38] Singh and Zora. The merits hearing in 2019 followed both Antic and Singh. The disposition hearing in July 2020 also followed the release of Zora. It is unknown whether JP Lauzon’s article contributed to these careful but strong judicial restatements of the responsibilities of the justice system actors, including prosecutors and justices of the peace in bail courts, but there is no doubt that JP Lauzon tapped a deep well of justifiable discontent, as these authorities amply show.
[68] Plainly, justices of the peace deserve, but at times have not been accorded, due respect from the other actors in the justice system, at least in the time before JP Lauzon’s article was published. The judicial comments resonate with and support important elements of JP Lauzon’s message. She testified that she found bail hearings especially stressful in light of her concerns and asked to be relieved of them. That request was accommodated for some time. But then she was obliged to return to hearing bail applications and her growing frustration led her to write the article. This is the particular context within which the disciplinary proceedings were started. . Ballam v. Justices of the Peace Review Council
In Ballam v. Justices of the Peace Review Council (Div Court, 2023) the Divisional Court, in a judicial review, upheld a decision of the Justice of the Peace Review Council that held a JP to have engaged in 'judicial misconduct', here while "engaged in the practice of law without a license or insurance, and without having resigned as a JP".
. Gibbon v. Justices of the Peace Review Council
In Gibbon v. Justices of the Peace Review Council (Div Court, 2022) the Divisional Court, in the course of a judicial review, granted a stay of recommendations that a justice of the peace be removed from office.
. Ling v. Justices of the Peace Review Council
In Ling v. Justices of the Peace Review Council (Div Ct, 2021) the Divisional Court reviewed basics of the role of a Complaint Committee under the Justices of the Peace Act:[14] A Complaints Committee is not, in the first instance, directed to conduct a hearing. Rather it undertakes an investigation, as it considers appropriate (see Justices of the Peace Act, s. 11(7)). When its investigation is complete, the Complaints Committee must dispose of the complaint by:(a) dismissing the complaint if it is frivolous, an abuse of process or outside the jurisdiction of the Complaints Committee;
b) inviting the justice of the peace to attend before the Complaints Committee to receive advice concerning the issues raised in the complaint or send the justice of the peace a letter of advice concerning the issues raised in the complaint, or both;
c) ordering that a formal hearing into the complaint be held by a hearing panel; or
d) referring the complaint to the Chief Justice of the Ontario Court of Justice. (See Justices of the Peace Act, s. 10(1), which authorizes the Justices of the Peace Review Council to establish rules of procedure for complaints committees and hearing panels and the Rules of Procedure promulgated thereunder at p. 27, s. 7.1)
[15] To be clear, and for the assistance of Mr. Ling, we repeat that the jurisdiction of the Justices of the Peace Review Council is limited to the investigation and review of complaints about the conduct of a justice of the peace. It does not have the authority to consider complaints about the exercise of judicial discretion, including how a justice of the peace applies the law or assesses the evidence. It does not have the authority to change or overturn a judicial decision.
|
