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Judges - Judicial Misconduct. 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 to court considers judicial misconduct, and cites a number of judicial misconduct fact precedents:[21] Judicial misconduct is not defined in the Justices of the Peace Act. Determinations of judicial misconduct are highly contextual and fact specific and focus on whether the conduct of the justice of the peace is compatible with judicial office. The Ontario Judicial Council, led by Justice Sharpe, observed in a decision regarding a provincially appointed judge: “Judges, however, are not guided or bound by a crystal clear set of rules. They must look to more general principles of judicial ethics that have evolved over time.”[11] As a result, judicial misconduct cases cannot be resolved “in a mechanical fashion by simply pointing to a rule that clearly allows or prohibits” the conduct by a judicial officer.[12]
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(a) The precedents
[106] As noted in Vavilov, the Hearing Panel was required to advert to precedents in assessing the disposition.[42]
(i) Overview
[107] In the dissenting member’s view, JP Lauzon’s removal from office would constitute a marked departure from the existing jurisprudence. Indeed, in Canadian history, no judges have ever been removed purely for their extrajudicial speech.[43]
[108] The cases set a high bar that must be met before misconduct will justify a recommendation for removal from judicial office. Cases that have led to removal have involved types of misconduct that overshadow what JP Lauzon did in this case. As I explain below, examples include discriminatory and sexist speech, participation in illegality, self-dealing, repeated instances of misconduct, and the failure to do the work required of the office. It was incumbent on the majority to engage with the precedents cited by the dissent on matters of principle, but it did not do so.
(ii) Discriminatory and sexist speech
[109] Discriminatory speech is especially problematic and might lead to a recommendation for removal from office. For example, in Moreau-Bérubé, the Supreme Court discussed the case of a judge who made on-the-bench comments about the residents of the Acadian peninsula, where she served. Justice Moreau‑Bérubé called many of the residents dishonest people and wondered aloud whether she was herself “surrounded by crooks.” The gravity of her speech meant that an apology was not enough to avoid Moreau-Bérubé J.’s removal. The majority cited this case to underscore the importance of a lack of insight and the absence of an apology. But these mattered far less than Moreau-Bérubé J.’s discriminatory speech itself, which was radically more serious. By contrast, in her concern about the public she was serving, JP Lauzon criticized the conduct of a few Crown prosecutors who appeared in front of her, and her criticisms were valid.
[110] To a similar effect, Bienvenue J. made racist and sexist comments on the bench demeaning women, Jewish people and Black people.[44] His conduct was repeated. The removal recommendation in Bienvenue was for serious reasons that are not present in this case. The majority discussed Bienvenue, at para. 39, but only for the proposition that a removal recommendation would not have the chilling effect that the dissent claimed, a point that is completely unrelated to the dissent’s Bienvenue analysis. The majority did not take seriously the risk that discipline for JP Lauzon’s truthful judicial speech would have such a chilling effect.
[111] The recommendation to remove Camp J. from office was for comments in court that perpetuated stereotypes about women victims of sexual assault.[45] The majority, at para. 52, cited Camp to show that even a single, highly prejudicial or offensive comment might be sufficiently grave to seriously undermine public confidence. However, the majority did not take account of the radical difference in the types of speech at issue. Justice Camp’s statements suggested bias against half of the population and showed that he might not be able to properly assess evidence in sexual assault cases. Such misconduct is far more serious than anything JP Lauzon said in the article or in her testimony.
[112] Zabel J. created a media firestorm for wearing a “Make America Great Again” hat in open court the day after Donald Trump’s election as president of the United States.[46] The personal discriminatory beliefs that the public might infer from Zabel J.’s on-the-bench conduct as seeming to endorse the Trump campaign risked causing a loss of trust in members of many different communities he served, who would be appearing before him in court in search of justice. Justice Zabel disavowed such beliefs and he was not ultimately removed from office.
[113] Discriminatory speech is far distant from the issue in this case. JP Lauzon’s expression was intended to address the very issue of justice for the accused parties who appear before her and whose liberty is often at stake. This is at the heart of her article. It is unreasonable to draw a comparison, as the majority did, between JP Lauzon’s beliefs and those expressed in Moreau-Bérubé, Bienvenue, Camp, and Zabel.
(iii) Participation in illegality
[114] The next most serious level of misconduct warranting removal is when a justice participates in illegality. The Phillips case is illustrative. [47] JP Phillips misled a police officer during a traffic stop. She and her daughter were in a car; her daughter was driving and ran a red light. Her daughter lied to the police officer about her identity and JP Phillips assisted her in doing so. The hearing panel noted that her misconduct showed that she did not obey the law and no remedial education could restore public confidence in such circumstances. It was this logic that led to her removal, and which could not justify a lower penalty.
[115] JP Foulds’ removal from office was based on several findings of misconduct, one of which was supervising steps of a criminal prosecution in which a close friend, who would later be a romantic partner, was the complainant and in which JP Foulds might have been required as a witness.[48] JP Foulds’ motivation was self-serving and a clear subversion of the rule of law.
[116] JP Welsh faced two disciplinary proceedings involving an element of illegality.[49] These cases showed a pattern of misconduct that nonetheless did not lead to a recommendation for removal. In 2009, JP Welsh was given remedial education as a result of misconduct that included altering the amount of fine for a judge and paying it on her behalf; he was also criminally charged for this conduct, pled guilty, and then was absolutely discharged. He was ultimately not removed because there was no evidence of corruption. Several years later, however, he faced another misconduct hearing after he unilaterally altered a return date for a person without the person’s knowledge, resulting in the person missing the date, being arrested and spending time in custody. The appropriate disposition was found to be a combination of a reprimand, an apology, further education and a suspension without pay for ten days. The majority’s disposition reasons in this case do not engage with the high bar Welsh sets for removal.
[117] In sum, by failing to engage with both Phillips and Foulds, the majority failed to consider the clear logical gap: how is it possible that JP Lauzon’s misconduct warrants the same result as the illegal conduct of JP Phillips and JP Foulds? The majority does not say, nor does it explain why JP Lauzon’s conduct warranted a harsher sanction than JP Welsh received.
(iv) Self-dealing
[118] Self-dealing is another category of serious misconduct that might lead to a recommendation for removal from office. For example, Flynn J., a judge of the Superior Court of Quebec, spoke to a journalist on a matter in which he had a personal interest and also an indirect financial interest through his wife.[50] He was later quoted in an article and though his statements were found to be inappropriate, his removal from office was not recommended. Here, the dissent, at para. 206, and majority, at para. 57, relied on Flynn for the same proposition: his acknowledgment that he should not have spoken to a journalist was a mitigating factor that weighed against his removal. The dissent posited that Flynn J.’s misconduct was more serious than that of JP Lauzon because of his personal pecuniary interest. The majority did not respond to this distinction. Instead, it focused only on Flynn J.’s acknowledgement of misconduct, which it contrasted to JP Lauzon’s lack of acknowledgement or apology. The majority distinguished Flynn from the present case, reasoning that JP Lauzon’s testimony gave rise to a reasonable apprehension of bias, if not actual bias.
[119] Another case of self-dealing was that of Matlow J. An inquiry committee of the Canadian Judicial Council recommended that Matlow J. be removed from office because he engaged in political speech outside of the courtroom driven by personal interest.[51] More specifically, Matlow J. participated in and, at times, led, an advocacy campaign against a municipal planning approval process in his neighbourhood in Toronto. The tone of Matlow J.’s expression (intemperate and offensive toward municipal politicians) and the forums he chose (news outlets and a letter to the Attorney General) were raised, as was the fact that he was essentially giving legal advice to the advocacy group in which he participated.[52] Based on this misconduct, the Inquiry Committee recommended his removal, but the recommendation was not accepted by a majority of the Canadian Judicial Council, which considered Matlow J.’s apology, albeit last-minute, as a mitigating factor despite the repeated nature of his misconduct over a long period of time.[53]
[120] Because their personal pecuniary interests were engaged, the misconduct of Flynn J. and Matlow J. was each more serious than JP Lauzon’s, as the dissent pointed out. The majority did not address this difference.
[121] The majority noted, at para. 120, that JP Lauzon wrote the article “to satisfy her own personal desires, specifically the desire for retribution.” There is likely an element of this negative emotion behind her words, but it does not equate to self-dealing on the same scale as in Flynn and Matlow.
(v) Neglect of office
[122] Some cases have considered a justice of the peace’s neglect of the requirements of the office. I have already discussed Welsh, which led to a deprivation of liberty. Re Winchester considered whether misconduct was sufficiently serious to justify a removal recommendation.[54] JP Winchester closed bail court early one afternoon, even though she was aware that there was a young defendant waiting who was likely eligible for release on bail. The hearing panel decided that the appropriate disposition was a combination of a reprimand, an apology to the defendant, and a suspension without pay for a period of five days.[55] JP Winchester failed to perform her duties, leading to a violation of a young person’s right to reasonable bail – a concept at the core of the work of a justice of the peace. But no recommendation for removal was made.
[123] The Winchester hearing panel noted that the misconduct did not show “that there was any irremediable compromise of personal integrity that would justify removal”.[56] Further, the Winchester panel noted that “the applicable caselaw supports the proposition that cases of misconduct that involve errors in judgment without an element of dishonesty or unscrupulousness are more likely to receive a disposition geared towards rehabilitation.”[57] The majority in this case, by contrast, failed to grapple with these principles, which the hearing panel for Winchester had set out mere months before the disposition reasons in the case at bar.
[124] There is no evidence that JP Lauzon’s personal integrity has been compromised, no element of dishonesty or corruption, and no complaint that she did not conscientiously perform her duties before and after the complaints.
(vi) Repeated misconduct
[125] Some cases have pointed to the problem of repeated misconduct to warrant removal. In Ruffo (Re),[58] the Court of Appeal of Quebec, consistent with the recommendation of the Conseil de la magistrature du Québec, recommended that Ruffo J. be removed from office based on the cumulative effect of a number of instances of misconduct. Her extrajudicial speech was just one component in a large array of misconduct complaints that included instances of illegal decisions, conflicts of interest, participation in a commercial trade show, as well as an appearance in a Via Rail advertisement using her judicial title.[59]
(vii) Combined instances of misconduct
[126] Finally, in some cases there is a combination of instances of misconduct. The outcome of the removal recommendation for JP Massiah was multi-faceted.[60] JP Massiah abused his power in the workplace, and subjected his inferiors to repeated sexual harassment relentlessly and for a long period of time.[61] The majority in this case, at para. 132, cited Massiah to support its position that a lack of insight can be an aggravating factor, but that was not the point of the case. The misconduct in Massiah was very different and much more serious than JP Lauzon’s.
(viii) Summary of precedents
[127] The precedents establish that a removal recommendation usually requires truly offensive speech, a disregard for the rule of law – including actually breaking the law, an element of self-dealing, the failure to perform the duties of the office, repeated misconduct, misbehaviour that extends over a long period of time, or combined instances of misconduct. None of these apply to JP Lauzon.
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