Canadian Judicial Council Affirms Paramount Importance of Notice and Fairness in Not Recommending Removal for Justice Girouard

     As expected, the Canadian Judicial Council has today concluded that the majority's decision recommending Justice Girouard's removal based on his testimony in his judicial misconduct hearing is untenable.  Accordingly, the Council has recommended that Justice Girouard not be removed from office.

     Today's decision affirms one of the fundamental principles in judicial misconduct proceedings, namely, a judicial officer can not be removed from office for matters which were not first the subject of a proper complaint and investigation by a review body  with a full opportunity to respond in a hearing.

     In Ontario the leading case on this fundamental point is Hryciuk  v. Ontario 1996 Canli 4013 (ONCA).  Simply put - a judicial officer can not be removed from office on the basis of how he or she testifies or decides to conduct their defence.  The following excerpts from the Report of the Canadian Judicial Council to the Minister of Justice explains in clear and simple language the underlying rationale for this:

[42]   In this Report, we do not consider the majority's conclusion that the judge attempted to mislead the Committee by concealing the truth and that such conduct places him in a position incompatible with the execution of his office.  The Council takes this approach because the judge was not informed that the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.

[43]   Because the judge was entitled to this kind of notice and did not get it, the Council does not know whether the majority's concerns would have been resolved had it received an informed response to them from the judge.

How to Make a Complaint Against a Justice of the Peace: Excerpts from the Justices of the Peace Review Council Website

Making a Complaint

If you have a complaint of misconduct about a provincial judge or a justice of the peace, you must state your complaint in a signed letter.  The letter of complaint should include the date, time and place of the court hearing and as much detail as possible about why you feel there was misconduct.  If your complaint involves an incident outside the courtroom, please provide as much information as you can, in writing, about what you feel was misconduct on the part of the judge or justice of the peace.


Written complaints should be mailed or faxed to:

The Justices of the Peace Review Council
P.O. Box 914
Adelaide Street Postal Station
31 Adelaide Street East
Toronto,  Ontario
M5C 2K3

(416) 327-2339 Fax


http://www.ontariocourts.ca/ocj/conduct/do-you-have-a-complaint/

Decisions Reveal Inconsistency in Justices of the Peace Review Council Hearing Panels and Lack of Transparency

   The Justices of the Peace Review Council was restructured in and around 2009 dispensing with the previous adjudicative format of a commission of inquiry and replacing it with the current format of a tripartite hearing panel chaired by a judge of the Ontario Court of Justice along with a justice of the peace and member who is either a judge, a lawyer or a community member.  In the past six years a total of nine cases have been adjudicated by this new body. Those cases are Barroilhet, Massiah I, Guberman, Phillips, Foulds, Kowarsky, Johnson, Spadafora and Massiah II.

     In this post I will analyse the nine cases which have been adjudicated under this newly restructured tripartite Hearing Panel system in order to identify any inconsistencies in the composition of the hearing panels.  I will also point out that in three of the cases which came before the JPRC recently both of the judicial officers required for the three person panel were only disclosed to be temporary members of the Review Council years after the fact in a December 2015 Correction to the 2013 Annual Report to the Attorney General.  An undated Correction to the 2011 Annual Report is on the JPRC website.  The 2014 Annual Report has yet to be released so I can not comment on it here.

Applicable Section of the Legislation:

s.11.1(1)    When a hearing is ordered under subsection 11(15), the chair of the Review Council shall establish a hearing panel from among the members of the Review Council to hold hearing in accordance with this section.

Composition:

(2)    A hearing panel shall be composed of,

(a)   a judge who shall chair the panel;

(b)   a justice of the peace; and

(c)   a member who is a judge, a lawyer or a member of the public.


Temporary Members

s.8(10)   The Chief Justice of the Ontario Court of Justice may appoint a judge or a justice of the peace who is not a member of the Review Council to be a temporary member of a complaints committee or a hearing panel in order to deal fully with a matter.


Composition of Hearing Panels:

  The language of the s.11.1(1) makes it clear that hearing panels are to be composed of "members of the Review Council."     Section 8(10) provides the Chief Justice with the jurisdiction to appoint a temporary member to sit on both complaints committees and hearing panels. Careful attention must be paid to the language of this grant.  It allows the Chief Justice to appoint a judge or a justice of the peace who is not a member of the Review Council to be a temporary member. The language is clearly limited to the singular with respect to the power of appointment.  Accordingly, it is doubtful that the Chief Justice could appoint two temporary members under this statutory language.  Let us examine how this new administrative body has been interpreting this new manner of operation over the years by looking at decided cases and the composition of the hearing panels.

The Decided Cases:

   In the first two cases, Barroilhet and Massiah I Mr. Douglas Hunt. Q.C. was Presenting Counsel.  In those two cases, both of which were fully contested, the composition of the Hearing Panels consisted exclusively of members of the Review Council.  In Barroilhet the hearing panel was composed of Justice Livingstone, Her Worship Mews and Lawyer, Margot Blight.  In Massiah I the hearing panel was composed of Justice Vaillancourt, Her Worship Rozon and community member, Dr. Phillips.

   In the next seven cases the composition of the Hearing Panels contained "temporary members" and even non-members of the Review Council.  Of the seven cases five were effectively guilty pleas and only two were contested hearings.  It is noteworthy that it is over this same span of time which the JPRC adopted its no indemnification for JP legal defence costs.  Let us examine the composition of the panels below.

H.W. Foulds(2013):

In this case only the community member, Dr. Emir Crowne was a member of the Review Council. In a recent correction to the JPRC Seventh Annual Report 2013 released in December, 2015 the Registrar of the Justices of the Peace Review Council has revealed that both Justice Agro and Regional Senior Justice of the Peace Leaman were appointed temporary members by the Chief Justice.  By the way the Foulds (2013) decision is the JPRC's new "no indemnification policy". 

H.W. Phillips(2013):

In this case in which the justice of the peace was removed from office the panel contained a single member of the Review Council, Ms. Cherie Daniel, community member.  The chair of the panel Justice Taylor was a temporary member and Regional Senior Justice of the Peace Bryant was a non-member.  In a recent correction to the JPRC Seventh Annual Report 2013 released in December, 2015 the Registrar of the Justices of the Peace Review Council has revealed that Justice Taylor was appointed a temporary member by the Chief Justice.  No correction has been issued with respect to Regional Senior Justice of the Peace Bryant.

H.W. Kowarsky(2011):

In this case the chair of the hearing panel Justice Hawke does not appear to be a member or temporary member of the Review Council according to its publications to date*. An undated Correction to the 2011 Annual Report now shows Justice Hawke as a temporary member.

H.W. Guberman(2011):

In this case H.W. Guberman resigned from office rather than face a hearing.  The hearing panel was composed of only one member of the Review Council.  Based on the Review Council's published public documents both the judge and justice of the peace on the panel were neither members or temporary members. An undated Correction to the 2011 Annual Report now lists Justice Taylor and JP Hendricks as temporary members.

H. W. Massiah II(2013)*:

The Notice of Hearing in this case was issued in 2013.  In this case the hearing panel was composed of one member of the Review Council, namely, Ms. L. Foster, community member.  In a correction to the JPRC Seventh Annual Report 2013 released in December, 2015 the Registrar of the Justice of the Peace Review Council revealed that Justice Livingstone and His Worship Cuthbertson were both appointed temporary members by the Chief Justice.

H.W. Johnson (2014)*

The Notice of Hearing in this case appears to have been issued in 2014.  The Justices of the Peace Review Council has yet to publish its Annual Report and therefore it is impossible to know the status of the panel members in this case.

H.W. Spadofora:

Decisions on the Justices of the Peace Review Council website have not been accessible for several weeks now. This is the only place where the public can access these decisions. Once I have this decision in hand I may be able to look into the panel composition. I regret the inconvenience.

The JPRC website is now functional.  Two of the panel members, Justice Rosenberg and Community Member, Leonore Foster are members of the Review Council and the Justice of the Peace, Regional Senior Justice of the Peace Swords is not a member according to the 2013 Annual Report - which is the only way which members of the public can ever know who the Chief Justice appoints as a temporary member.

Analysis and Commentary:

Departure from JPA
Mandatory Membership
Requirement:

   The above decisions reveal a clear inconsistency and a total lack of transparency in the composition of the hearing panels adjudicating these judicial misconduct cases.  Despite the fact that there has been no legislative amendment to the Act between the Barroilhet and Massiah I rulings by this tribunal the composition of the hearing panels have clearly departed from the mandatory requirement in the Justices of the Peace Act that hearing panels be appointed from among the members of the Review Council. Why ?  I do not profess to the know the answer to this question.  However, I believe that it is one that I and my fellow Ontario residents have every reason and right to ask in our free and democratic society.

   As it stands, persons who are members of the Justices of the Peace Review Council are so identified in the tribunal's Annual Report to the Attorney General of Ontario.  This Annual Report is to be filed with the Ontario Legislature annually.  Recent reports from the Toronto Star suggest that these annual reports are considerably behind their required publication dates.(see "Ontario Failing to Release Reports of Complaints Against Judges - Torstar, Jan.23rd, 2017)  What this means is that the people of Ontario have no way of knowing whether the persons sitting on hearing panels and investigating complaints of judicial misconduct have the right to do so in accordance with the enabling legislation.

   Indeed, it is not uncommon for the tribunal to issue amendments several years after the fact informing the public that a judge or a justice of the peace was appointed a temporary member by the Chief Justice.(see Correction to 2011 and 2013 Annual Report on the JPRC website)  This was the case in Re Massiah (2015) where the Registrar of the Justices of the Peace Review Council issued an amendment some two years later informing the public that both the chair of the panel, Justice Livingstone and His Worship Cuthbertson were appointed temporary members.  The same thing happened in Re Foulds and Re Phillips - both judicial officers on those panels were years later revealed to be temporary members.

   This is yet another area where Ontario needs to improve on transparency.  Justice must be seen to be done.  Informing the public and litigants several years after the fact that not one but two of the three judicial officers on a three member panel were appointed temporary members is hardly in keeping with the principles of fundamental justice and transparency and could never be in the public interest.

NOTE: This post was updated on January 27th, 2017.

Lawyer's Prayer to St. Thomas More

     Dear Scholar and Martyre,
it was not the King of England
but you who were the true Defender of the Faith.

     Like Christ unjustly condemned,
neither promises nor threats could make you accept a civil ruler
     as head of the Christian Church.

Perfect in your honesty and love of truth,
grant that lawyers and judges may imitate you
and achieve true justice for all people.

Amen.

"Kangaroo Court": Origins of the Term and Examples of its Application by the U.S. Supreme Court

Black's Law Dictionary
Fifth Edition:

Kangaroo court:  Term descriptive of a sham legal proceeding in which a person's rights are totally disregarded and in which the result is a foregone conclusion because of the bias of the court or other tribunal.


*West's Encyclopedia of American Law
Edition 2

Kangaroo Court: [Slang of U.S. origin] An unfair, biased or hasty judicial proceeding that ends in a harsh punishment; an unauthorized trial conducted by individuals who have taken the law into their own hands, such as those put on by vigilantes or prison inmates; a proceeding and its leaders who are considered sham, corrupt, and without regard for the law.

The concept of kangaroo court dates to the early nineteenth century.  Scholars trace its origin to the historical practice of itinerant judges on the U.S. frontier.  These roving judges were paid on the basis of how many trials they conducted, and in some instances their salary depended on the fines from the defendants they convicted.  The term kangaroo court comes from the image of these judges hopping from place to place, guided less by concern for justice than by the desire to wrap up as many trials as the day allowed.

Application by U.S. Supreme Court:

*The term is still in common usage by defendants, writers and scholars critical of a court or trial. The U.S. Supreme Court has also used it.  In Re Gault, 387 U.S.1, 87 S. Ct, 18 L. Ed 2d 527 (1967), a case that established that children in juvenile court have the right to due process, the Court reasoned, "Under our Constitution, the condition of being a boy does not justify a kangaroo court."  Associate Justice William O. Douglas once wrote, "Where police take matters into their own hands, size victims beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution.  It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court".(Williams   v. United States, 341 U.S. 97, 71 S. Ct. 576 95 L.Ed. 774 [1951]

In Rideau   v.  Louisiana 373 U.S. 723 (1963) the U.S. Supreme Court used the term kangaroo court in clear and forceful terms to denounce and overturn the conviction and death sentence of Wilbert Rideau for armed robbery, kidnapping and murder flowing from a trial where the local Sheriff televised a 20 minute interrogation and confession by Rideau and then had him arraigned. When counsel appointed for Rideau brought a motion for a change of venue the trial judge denied it. Rideau was convicted and sentenced to death.   The Supreme Court reasoned that it was a denial of due process of law to refuse the request for a change of venue after the people of the Parish had been exposed repeatedly and in depth to the spectacle of the petitioner personally confessing in detail to the crimes with which he was later to be charged.

In denouncing the filmed and televised confession, the court makes some instructive points which are of great help in appreciating the meaning of the term kangaroo court.  Here are some excerpts from the decision:

"Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.  In Brown   v.  Mississippi, 297 U.S. 278, this Court set aside murder convictions secured in a state trial with all the formalities of fair procedures, based upon "free and voluntary confessions" which in fact had been preceded by grossly brutal kangaroo court proceedings while the defendants were held in jail without counsel.  As Chief Justice Hughes wrote in that case, "The state is free to regulate the procedure of its courts in accordance with its own conceptions of policy....[But] it does not follow that it may substitute trial by ordeal." 297 U.S. at 297 U.S. 285 Cf. White  v. Texas, 310 U.S. 530.  That was almost a generation ago, in an era before the onrush of an electronic age.

The case now before us does not involve physical brutality.  The kangaroo court proceedings in this case involved a more subtle but no less real deprivation of due process of law.  Under our Constitution's guarantee of due process, a person accused of committing a crime is vouchsafed basic minimal rights. Among these are the right to counsel,  the right to plead not guilty and the right to be tried in a courtroom presided over by a judge.  Yet, in this case, the people of Calcasieu Parish saw and heard, not once but three times, a "trial" of Rideau in a jail, presided over by a sheriff, where there was no lawyer to advise Rideau of his right to stand mute."


NOTE: *This information is from htttp://legal-dictionary.thefreedictionary.com  It is by no means intended to represent an exhaustive discussion of the U.S. Supreme Court's use of the term.