Thursday, November 27, 2014

Judicial Independence and the Practice of Indemnifying Judicial Officers for Defence Costs

     Did you know that the practice of indemnifying judicial officers for their legal costs in defending allegations of judicial misconduct is a common occurrence in all jurisdictions and at every level of court in Canada ?  A recent article in the Toronto Star entitled "Taxpayers billed for guilty justices' legal fees" takes issue with this long established custom suggesting that doctors and other professionals are not indemnified for their legal costs so this long established practice ought to stop. The piece goes on to demonstrate a gross lack of understanding of the principle of judicial independence by quoting a number of individuals including the following - "The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty."

     Equating judicial officers with "other professionals" and persons charged with criminal offences fails to appreciate the constitutional principle which underlies this long  established practice.  In our system there exists a divide between the judiciary and what is commonly referred to as government. A fundamental principle in our system is that judicial officers must be independent from the influence of government in order to properly discharge their judicial duties. Judicial officers must be granted security of tenure.  Justices of the Peace in Ontario are statutorily entitled to serve until age 70 and unless removed for cause following a public hearing.  Another component of judicial independence is financial security.  Judicial officers must be adequately compensated to ensure impartiality and independence.

     The practice of indemnification of legal costs for judicial officers is directly related to the financial security requirement and the principle that justice must be seen to be done.  The judicial misconduct adjudicative process is in place to protect the public interest in judicial independence and the rule of law.  The mere possibility that the "government" could theoretically bankrupt a sitting judicial officer through this process undermines judicial independence and the rule of law.  Judicial officers are not "other professionals" and criminal defendants.  Indemnification of the legal costs of judicial officers is in fact a reasonable restraint on the "government" which protects and preserves the cornerstone of our justice system - judicial independence and the rule of law.

NOTE:  This piece is written to draw attention to an issue of public importance.  Democracy and the rule of law work better with the free communication of ideas.  Tax payers in Ontario cover the bill for much less serious and fundamental rights as judicial independence. Virtually every police service collective agreement in Ontario has a legal indemnification clause entitling police officers indemnification for legal costs.  Taxpayers in Ontario pay substantially more for the defence of police officers than judicial officers.  It is not even close !


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