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.
(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.
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.
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".
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.
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.
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.
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
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.