Court addresses application of principles governing judicial discipline

Court addresses application of principles governing judicial discipline.

Administrative law – Decisions reviewed – Justices of the Peace Review Council – Judicial review – Appeals – Procedural requirements and fairness – Standard of review – Reasonableness – Professions – Judges – Professional misconduct or conduct unbecoming – Removal from office

Ontario (Justice of the Peace) v. Ontario (Justices of the Peace Review Council), [2023] O.J. No. 2661, 2023 ONCA 425, Ontario Court of Appeal, June 15, 2023, P.D. Lauwers, L.B. Roberts and B. Miller JJ.A.

The appellant, a Justice of the Peace, wrote an article in 2016 that was critical of the operation of bail courts and the conduct of some Crown prosecutors in her court. The article was published in the National Post.

Three Crown prosecutors made complaints about the article to the Justices of the Peace Review Council (the “Council”), in accordance with the Justices of the Peace Act, R.S.O. 1990, c. J.4. Following an investigation, in 2018, the Council’s Complaints Committee ordered a formal hearing.

The Hearing Panel unanimously found the appellant committed judicial misconduct. The Hearing Panel found it was not the publication of the article that constitute judicial misconduct, but how the appellant wrote the article. The Hearing Panel found the appellant was under an obligation as a judicial officer “to maintain the integrity, impartiality and independence of her office while exercising her expressive rights to criticize problems in the administration of justice”, finding “she failed to exercise caution and restraint and thereby crossed a line giving the appearance of bias and undermining public confidence [in] the judiciary.” The Hearing Panel found the appellant’s conduct exhibited a reasonable apprehension of bias, if not actual bias, against Crown prosecutors.

The majority of the Hearing Panel recommended removal from office to restore public confidence in the administration of justice. The dissenting member recommend a reprimand and a 30-day suspension without pay.

On judicial review to the Divisional Court, the court found the Hearing Panel’s decisions on the merits and disposition were both reasonable.

On appeal to the Court of Appeal, the court found the Hearing Panel’s decision on the merits was reasonable, but its decision on disposition was unreasonable, on the basis the penalty was disproportionate.

The court identified three relevant aspects of judicial independence, reflected in the Canadian Judicial Council’s Ethical Principles for Judges.

First, the principle of judicial independence, constitutionally enshrined as “the cornerstone, a necessary prerequisite, for judicial impartiality.” This is a positive value of judicial independence.

Second, the “precautionary principle,” which demands a high standard of ethical conduct from judges in order to maintain public confidence in the judiciary. This principle is protective or defensive in its orientation.

Third, case specific considerations. In particular, would a finding of misconduct and imposition of a particular sanction be an appropriate restriction on judicial independence?

On the merits, the court found the article “functioned as a polemic, using some inflammatory language (for example, ‘disgrace’ and ‘devoid of the rule of law’) that might, on one reading, be seen as capable of undermining public confidence in the justice system.”

On the disposition, the court found the Hearing Panel made “manifest errors” that rendered its decision unreasonable.

In particular, the court found the Hearing Panel: erred in law in failing to take the appellant’s s.2 rights under the Charter into account adequately; it failed to take due account of the governing principles in the areas of judicial independence and judicial impartiality; it erred in its finding the appellant was biased against Crown prosecutors; it failed to take into account the relevant precedents and the appropriate mitigating and aggravating factors; and it failed to carry out the robust proportionality analysis required by Doré v. Barreau du Québec, 2012 SCC 12. The court found the majority’s decision to recommend removal from office did not reflect the high bar established by the precedents for such a recommendation, nor was it reasonable in light of the proper application of the mitigating and aggravating factors. By contrast, the court found the dissenting member’s approach to the disposition decision was measured and proportionate.

The court found the record disclosed the appellant “is deeply committed to the improvement of the system of justice” and was most unlikely to repeat the misconduct, borne out by the fact that she did not repeat it in the years that she sat after the complaints were brought.

Rather than remitting the matter to another hearing panel, the court (with the agreement of the respondent Council) determined the appropriate remedy. It allowed the appeal in part, quashing the majority’s disposition and substituting the disposition recommended by the Hearing Panel’s dissenting member: a reprimand and a 30-day suspension without pay.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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