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Judges - Judicial Discipline. 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 court considers judicial discipline:[22] The statutory provisions governing the Hearing Panel’s disposition decision are ss. 11.1 and 11.2 of the Justices of the Peace Act. Once a hearing panel has found misconduct, s. 11.1(10), sets out the possible dispositions:After completing the hearing, the panel may ...
(a) warn the justice of the peace;
(b) reprimand the justice of the peace;
(c) order the justice of the peace to apologize to the complainant or to any other person;
(d) order that the justice of the peace take specified measures, such as receiving education or treatment, as a condition of continuing to sit as a justice of the peace;
(e) suspend the justice of the peace with pay, for any period;
(f) suspend the justice of the peace without pay, but with benefits, for a period up to 30 days; or
(g) recommend to the Attorney General that the justice of the peace be removed from office in accordance with section 11.2. [23] Section 11.1(10)(g) puts removal from office in a different, more serious register, as s. 11.2 of the Act notes:11.2 (1) A justice of the peace may be removed from office only by order of the Lieutenant Governor in Council.
(2) The order may be made only if,
(a) a complaint about the justice of the peace has been made to the Review Council; and
(b) a hearing panel, after a hearing under section 11.1, recommends to the Attorney General that the justice of the peace be removed on the ground that he or she has become incapacitated or disabled from the due execution of his or her office by reason of,
...
(ii) conduct that is incompatible with the due execution of his or her office [24] The goal of the disposition is to restore public confidence in the justice of the peace and the judiciary in general.[13]
[25] The majority and the dissenting member agreed that the “ladder principle” applied, which the dissent explained at para. 159: “[t]he Hearing Panel must consider imposing the least serious disposition first, and only upon rejecting that as inappropriate, would we move on to consider more serious dispositions.”
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(b) The aggravating and mitigating factors
[128] The disposition phase requires a hearing panel to consider both aggravating and mitigating factors, and so resembles criminal and quasi-criminal sentencing. These factors are set out, non-exclusively, in s. 17.3 of the Justices of the Peace Review Council Procedures Document.[62] The majority and the dissenting member both considered the factors. It is telling and unusual that the majority did not identify a single mitigating factor in JP Lauzon's favour.
[129] The contrast between the dissent and the majority begins with their discussion of the first and second factors, which address whether the misconduct was an isolated incident or shows a pattern, and the nature of the misconduct. The dissent noted, at para. 166, that the Panel “only found misconduct” respecting the article’s publication and its “language and tone”. He added that because “there is no pattern of misconduct … this would be a mitigating factor.”
[130] As to the nature of the misconduct, the dissent observed, at paras 180-83, that while the article “received much publicity”, there were “only three formal complaints” and “[n]o letters of complaint were received from members of the public.” He noted that although the article “undermined public confidence in the administration of justice,” he believed “that the relatively muted response from the public … should now be taken into account when determining the appropriate sanction to impose.”
[131] The majority took a different approach. It noted, at para. 78, presenting counsel’s submission that “it is open to this Panel to find that the evidence shows continuing bias by Her Worship since the publication of the Article” so that the misconduct is better characterized not as an “isolated event, but part of a pattern of misconduct.” While professing to keep separate the complaints and JP Lauzon’s conduct since the article’s publication – really only her defence and her testimony – the majority did not do so.
[132] Another factor asks whether the justice has “evidenced an effort to change or modify [her] conduct”. This factor is not especially relevant where the behaviour is not repeated, as it was in several of the cases noted above. The dissent considered this to be a mitigating factor: “[t]here have been no further articles or opinions written by Justice of the Peace Lauzon in the more than four years since the National Post article was published in March 2016”: at para. 171. The majority’s comment, at para. 97, was to express dismay that JP Lauzon refused to accept that she “crossed a bright line” and that “she stands by her position that the Article was appropriate and necessary”. It noted, at para. 107, JP Lauzon’s counsel’s submission that she “has refrained from responding to media requests for interviews”, which implied “that there is little risk of the conduct reoccurring.” The majority rejected this submission virtually without explanation, noting at para. 34 that her decision not to engage with the media following the publication of the article could not be treated as “genuine efforts at remediation”.
[133] The single most aggravating factor for the majority was not its concern for the effect of JP Lauzon’s conduct on public respect for the judiciary, to which it referred at paras. 121-25, but her refusal to accept with docility the Panel’s judgment in the merits decision, with which she disagreed, and her failure to express remorse, show insight, acknowledge and apologize for publishing the article, and seek the Panel’s forgiveness during the disposition phase, which could all have served as mitigating factors.
[134] The majority referred to several precedents in order to establish some well-founded and uncontroversial propositions. Judicial councils can, and sometimes must, recommend a removal from office based on expressions made to the public or the media (Moreau-Bérubé, Flynn, Matlow, and Camp). Possible aggravating or mitigating factors in disposition include the presence or absence of insight (Massiah); admitting or declining to admit to misconduct (Flynn, Zabel); and the presence or absence of an apology (Matlow, Zabel), although sometimes an apology will not suffice (Camp). The problem is not with these general propositions but with their proportional application to JP Lauzon. In their details, these precedents are not factually or legally apposite, as I pointed out in my discussion of them. The majority cherry-picked quotes without engaging in an analysis of the nature and seriousness of the misconduct at issue in the cases.
[135] More fundamentally, the majority made a legal error in its approach. Because JP Lauzon continued to assert her defence, the majority effectively turned her adamant defence into an aggravating factor. This is wrong in principle because it interferes with JP Lauzon’s right to make full answer and defence. Although written in the professional discipline context, the Divisional Court’s comments in Groia v. Law Society of Upper Canada apply here by parity of reasoning:The appellant's lack of remorse, in the circumstances of this case, cannot be treated as an aggravating factor. To do so represents a fundamental misapplication of the principles outlined in R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.), at para. 82. It is also difficult to see how the Hearing Panel could have reached a conclusion that the appellant's misconduct demonstrated a "substantial likelihood of future misconduct" when there had been no such misconduct by the appellant in the ten years since the events of the Felderhof trial and the appellant had an otherwise unblemished discipline record as a lawyer.[63] [136] The same principle is well established in criminal sentencing.[64]
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