Greenspan: "The Role of the Defence is Making Sure Democracy Works" - An Examination of Groia's Prosecution

     Law is a challenging area for the media to report upon.  Many in the media lack the knowledge of law necessary to report critically and intelligently on legal issues. In making this statement it is not my intention to unfairly criticize the media but merely to make what I see as a relevant observation.  As a direct result of this limitation, the reporting of legal issues by our media is focused on outcome first and foremost - guilty - not guilty - incivil - rude - profane etc.

     The media's coverage of Mr. Groia's prosecution for incivility has - like many other legal issues covered by the media- understandably been more results oriented and has fallen short of delivering the underlying facts and issues to the interested parties - lawyers and the people they serve.  For example, few in the public are aware of the following ten salient facts in the Groia case:

1.   The Law Society of Upper Canada(LSUC) began its "investigation " of Mr. Groia in February 2003 on its own initiative after Investigation Counsel read an article in the National Post concerning the state of the Felderhof trial.

2.   The LSUC called no witnesses before the Hearing Panel. It relied exclusively on the reasons of Justices Campbell and Rosenberg and the Ontario Securities Commission's submissions.

3.   Joe Groia testified in his own defence along with Nicholas Richter, Kevin Richards, Mr. Felderhof, Brian Greenspan, Professor Alice Wooley, Stanley Fisher and Peter Hoy.

4.   The Ontario Securities Commission unsuccessfully raised issues of Mr. Groia's conduct before the trial judge.

5.  The Ontario Securities Commission unsuccessfully brought a judicial review application claiming that the trial judge had lost jurisdiction, on amongst other grounds by failing to restrain Mr. Groia from "making unsubstantiated allegations" against the OSC prosecution.

6.   The Divisional Court dismissed the OSC's judicial review application.

7.   The OSC appealed unsuccessfully to the Court of Appeal.

8.   The trial continued until its conclusion before the trial judge and Mr. Groia's client was fully acquitted.

9.   The trial judge censured OSC counsel for their refusal to abide by his ruling.

10.  Counsel for the OSC apologized to the court.


Excerpt from Mr. Groia's Factum 
at Divisional Court: 

[54]     Justice Campbell dismissed the OSC application.  He found that Justice Justice Hryn had not lost jurisdiction and made the following comments:

-    The trial was hard fought with a degree of excess on each side, with no side having a monopoly over incivility or rhetorical excess.  That animosity spilled over into the judicial review proceedings, with Mr. Code for the OSC characterizing Mr. Groia's arguments as a "bald-faced lie" and comparing him to a "bomb-thrower" four months after 9-11.

-    Hryn J. took the daily temperature of the trial and had a wide discretion to determine how to deal with the conduct of counsel in the course of making their submissions.

- The dividing line between colourful language and abusive language is not always clear and it was not the task of the court to pick over every word of Mr. Groia's submissions to see if they might be considered offensive.

- Mr. Groia was entitled to make allegations of abuse of process and professional misconduct.  Justice Hryn did not lose jurisdiction and those allegations did not affect the fairness of the trial.

- Nothing in Mr. Groia's submissions could have reasonably prevented Mr. Naster from discharging his prosecutorial duties in a professional manner.


Excerpts of Brian Greenspan's
Evidence:

"The way I perceive it is Mr. Groia was making repeated accusations, and it was to some extent finding a receptive judge who was increasingly of the view that the Crown was misconducting itself. I think that is the flavor of the trial.....I think that is the dilema.  I may not have described it exactly the way it unfolded her, but that's the tension.  It's the tension between your obligation to your client."

"Quite frankly, without being too romantic about it, many of us think the the role of defence is making sure democracy works.  So you look at it and say, "If I'm there and I see a judge letting me do something, unless its getting really difficult, I think that you might push the envelope as far as you possibly can."  (Evidence of Mr. Greenspan August 18, 2011)

The Struggle for Admission by Women and African-Canadians in Ontario's Legal Profession

     The Province of Ontario was established in 1867.  Prior to this time, the area of land now known as Ontario was initially known as Upper Canada.  Upper Canada was a British Colony.  In what was Upper Canada neither women nor African-Canadians had any legal status to be lawyers in that jurisdiction.  The area was later known as Canada West from 1841 to 1867.  The status of both groups appears by the accounts I have reviewed to be the same - neither women nor African Canadians were permitted by law to practice as lawyers.  In this era it was clearly a privilege to practice law and not a right.

Admission of African-Canadian
Delos Rogest Davis:

     Delos Rogest Davis, an African-Canadian could not practice law in Ontario by gaining admission like everyone else through The Law Society of Upper Canada.  In order for Delos Rogest Davis to practice law in Ontario the Legislature of the Province of Ontario had to pass legislation permitting him to do so.  Davis was unable to find a white lawyer willing to hire an African-Canadian student-at-law.  William Balfour, a Liberal MLA introduced a bill in 1884 which authorized Delos Rogest Davis to practice law in Ontario.

Admission of Clara Brett Martin:

     The first woman to be admitted to practice law in Ontario was Clara Brett Martin.  Ms. Martin was admitted to practice law in Ontario in 1897.  Like, her African-Canadian brother Ms. Martin faced unspeakable hurdles in order for her to share in the privilege to practice law in Ontario.  First, her application for admission as a student-at-law was referred to a special committee of benchers.  This special committee it is said denied Ms. Martin on a preliminary question of law, without hearing from Ms. Martin.  The legal question they considered was whether women could be admitted since the enabling statute made reference to "persons" and women were not considered "persons" at the time.

     Ms. Martin was denied admission as a student of law by the special committee of the Benchers of The Law Society of Upper Canada on the basis that she was not a "person" and therefore could not be admitted as a student-at law.

Legislature Intervenes Again:

Student-at-Law

     Once again Liberal MLA, William Balfour steps in and introduced a bill compelling The Law Society of Upper Canada to interpret the word "person" to include women.  A bill was ultimately passed allowing that The Law Society of Upper Canada had the power to admit women as student-at-law.  The benchers ultimately voted by a margin of one to admit. The deciding vote was that of the Premier of Ontario, Sir Oliver Mowat, in his capacity as ex officio bencher.  Ms. Martin successfully completed her exams finishing first.*  She then pursued becoming a lawyer.

Admission as Lawyer

     Ms. Martin's struggles for admission were far from over.  The Law Society of Upper Canada declined to admit her.  Again, the legislature passed a bill authorizing The Law Society of Upper Canada to admit women as lawyers.  Again, Mr. Mowat, now the former premier intervened and Ms. Martin was admitted as a lawyer on February 2, 1897.

- 1960 - first African-Canadian woman admitted as a lawyer, Myrtle Blackwood Smith
- 1976 - first Aboriginal woman admitted as a lawyer, Roberta Jamieson


Commentary:  What's in a name ?

     Upper Canada was a colony of Britain.  It no longer exists.  When it did exist it had a record on fairness and equality that is incompatible with the present standards and values.  There is no sound policy or other reason for continuing the current name of the regulator of lawyers in Ontario as The Law Society of Upper Canada.

  

NOTE;  This piece is written to draw attention to issues of public importance and interest. I am not and do not profess to be a historian.  I am a mere lawyer.  The main source of my information for this piece was the following:  Clara Beth Martin by Beth Atcheson, April 23, 2003; William Balfour from Wikipedia. If any of the historical facts discussed above are in error I remain fully committed to correction as this exercise is not one of pointing fingers and making accusations but one of enlightenment. I am a firm believer that our system works best when we learn and continue to improve ourselves.

Will Bathhouse Raid Victims Be Compensated ?

     The Chief of the Toronto Police Service is scheduled to formally apologize to the Gay and Lesbian community tomorrow for the infamous Bathhouse Raids carried out on February 5th, 1981.  On February 5th, 1981  one hundred and fifty police officers used crow-bars and sledge-hammers to break-into four bathhouses where gay men socialized. They arrested roughly 300 people and charged them with various morality-based sexual offences - most of which were later withdrawn at court.  All of this police conduct was perpetrated with the full force and effect of law in Ontario.  All of this after homosexual sexual acts were decriminalized and Prime Minister Pierre Trudeau proclaimed that the state had no place in the bedrooms of the nation.

     The actions of the Toronto Police Service naturally caused profound harm to the recipients of their actions and their friends and families.  Naturally, those who suffered ought to be fairly compensated.

     Clearly, no one can argue against a public acknowledgement of wrong-doing.  This is an integral part to change and renewal.

     However, the timing of the apology - coming as it does on the heels of the largest mass shooting in U.S. history  - where a lone gunman killed 49 people and injured just as many on account of their sexual orientation causes me to reflect more deeply on this anticipated apology.  It is shocking to my conscience that these police actions were perpetrated under the full force and authority of the law in Ontario and with no consequence to the perpetrators.  That is problematic.  It suggests to me that what ever apology is forthcoming for this wrong-doing must by necessity go beyond the police.    

   
     

Thoughtful Quotes on the Civility Issue

"In the hothouse of a trial, particularly when you have a vicious battle going on....it is extremely difficult for somebody to come after the event and pick it apart and say, well, you really shouldn't have said that. "  

     Former Supreme Court of Canada Justice Ian Binnie (Law Times Dec.17th, 2012)


"If you look at the civility cases, you do not see lawyers from government, you do not see lawyers from large commercial law firms, you do not see lawyers from the more frankly powerful aspects of the profession."  

     Professor Alice Wooley (Law Times Dec.17th, 2012)


"To have a system that I have to live with as a trial lawyer that tells me I can be found after the fact to have been uncivil without any criteria, guidance is troubling."

     Thomas Heintzman (Law Times Dec.17th, 2012)


"The Law Society may have the legal jurisdiction to initiate disciplinary proceedings against a counsel for alleged uncivil conduct in the face of the court.  But it should never exercise that jurisdiction where, as in this case, the trial judge was in the best position to censure the alleged misconduct but declined to do so.  The Law Society does not enhance its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors.  And such prosecutions will have a chilling effect on advocates.

     Edward Greenspan and L. David Roebuck (The Horrible Crime of Incivility - Globe & Mail - August 2, 2011)


"There have been incidents of incivility that warrant attention.  This is the behaviour at the extreme end of the scale - the lawyer throwing a cup of coffee at another lawyer, the lawyer swearing in court, the lawyer who is drunk at a client meeting.  Really bad behaviour.  Not merely a question of tone, a persistently unfounded legal argument or the odd intemperate comment...This year, the Supreme Court of Canada in Dore  v. Barreau du Quebec adopted the definition of incivility as "potent displays of disrespect for the participants in the justice system, beyond mere rudeness or discourtesy." Then the Law Society hearing panel in the Groia case imposed a higher standard, defining incivility as "a consistent pattern of rude, provocative or disrupting conduct by the lawyer,  as well as ill-considered or uninformed criticism of the competence, conduct, advice or charges of another lawyer. Should the bar be set so high ?  Or do we need more confidence in our profession that most issues of civility will take care of themselves; that the door of the Law Society should not be the first stop ?  Only when bad conduct, rudeness and acrimony distracts from the real focus of the justice system, interferes with its proper functioning and undermines participation in and use of the justice system does it become a problem warranting the regulator's attention".


     Marie Henein - 5 Big ideas - get a grip on civility - Precedent - October 12, 2012


"The concern with respect to prosecuting lawyers for incivility is not founded on the premise that civility has no place in the work of lawyers.  Rather, it is founded on a deep and well-founded fear that unless the rules and standards of civility are carefully tailored so as not to impair fundamental rights such as confidentiality and the lawyer's duty to vigorously defend the accused they are not in the client's best interest to the extent that they interfere with the discharge of the lawyer's duty to the client."

     Ernest J. Guiste (Incivility as Professional Misconduct - August 25th, 2012)

Court of Appeal Dismisses Groia Appeal with a Powerful Dissent from Brown J.A.

     In reasons for judgment reminiscent of the late Lord Denning's dissent in Miller   v.  Jackson [1977] QB 966 Madame Justice of Appeal Cronk of the Court of Appeal for Ontario dismissed  high profile securities lawyer and now Bencher of the Law Society of Upper Canada, Joe Groia's long awaited appeal.  Cronk J. A. along with MacPherson J.A.(the majority)upheld the Divisional Court's ruling finding Mr. Groia guilty of professional misconduct.

Cronk J.A.:

[1]   For almost 220 years, the Law Society of Upper Canada has governed the legal profession in the public interest under statutory authority granted to it by the legislature of Ontario.  For close to a century, in the exercise of its statutory mandate, the Law Society has formed a body of rules governing the professional conduct and ethical obligations of lawyers, both inside and outside the courtroom.  Lawyers who fail to meet the standards of practice established by these rules are subject to the Law Society's complaints and discipline processes.  In Ontario, as elsewhere in Canada, it is a privilege to practice law, not a right.

The Master of the Rolls
in Miller  v. Jackson (supra):

[1]   In summertime village cricket is the delight of everyone.  Nearly every village has its own cricket field where the young men play and the old men watch.  In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years.  They tend it well.  The wicket area is well rolled and mown.  The outfield is kept short.  It has a good clubhouse for the players and seats for onlookers.  The village team play there on Saturdays and Sundays.  They belong to a league, competing with the neighbouring villages.  On other evenings after work they practice while the light lasts.  Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, he has issued an injunction to stop them.  He has done it at the instance of a newcomer who is no lover of cricket.

J.A. Brown's Powerful Dissent:

     In stark contrast to the majority's Denning-like judgement stands the powerful and thoughtful dissenting judgement of Brown J.A - evoking memories of the dissents written by the late Chief Justice Bora Laskin.  Brown J.A.'s judgment is a judicial masterpiece for several reasons.  First of which is his appreciation and delineation of the underlying facts and context which bring the issue before the court for adjudication.  The following facts from his introduction are crucial to a proper adjudication of the questions which were before the Court of Appeal.  I will reproduce them as is.

[244]   This is a singular case.  The Felderhof trial lasted several years, split into two phases.  Phase One lasted 70 days; Phase two, 90 days.  Neither during nor after the trial did anyone involved in the trial complaint to the Law Society of Upper Canada about Mr. Groia's conduct; not the prosecutors; not the trial judge; not the clients; nor any witnesses. Not one.

[245]   The prosecution, the Ontario Securities Commission ("OSC", did complain about Mr. Groia's conduct, but not to the Law Society.  The OSC complained to the courts.  The prosecution first complained to the trial judge about Mr. Groia's conduct.   The trial judge made several rulings.

[246]   The ruling did not satisfy the prosecution, so it applied to the Superior of Justice arguing, in part, that Mr. Groia's conduct, and what they saw as the trial judge's failure to restrain it, were resulting in an unfair trial.  The prosecution wanted the trial stopped, and a new trial judge appointed. The application judge of the Superior Court of Justice refused to remove the trial judge.

[247]   The OSC appealed to this court.  The appeal was dismissed.

[248]   So, the trial continued to its conclusion - an acquittal of Mr. Felderhof.

[249]   The senior courts to which the prosecutors complained were not silent about Mr. Grois's conduct.  Quite the contrary.  In no uncertain terms they expressed their very strong displeasure. In the language of earlier times, they administered a public shaming to Mr. Groia.  They told Mr. Groia to cut it out and smarten up.  He listened, and he did.  Phase two continued without incident.

[250]   Neither the application judge nor any of the members of this court in R  v. Felderhof (2003) 68 O.R. (3d) 481, complained to the Law Society.  That option was open to them.  That is what the British Columbian Court of Appeal did in R   v.  Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667, 191, B.C.A.C. 223.  But that is not what the courts did in this case.  A public shaming was administered; directions for the remainder of the trial were given; the courts moved on.

[251]   But not the Law Society.  In 2003, a staff member read an article about the Felderhof trial.  A file was opened.  In 2009, after the trial had ended, the Law Society commenced professional misconduct proceedings against Mr. Groia, acting as its own complainant.

[255]   Our disagreement, therefore lies not in the continued importance of civility to the health of Ontario's legal system.  Our disagreement lies in how to determine when a barrister's in-court conduct amounts to professional misconduct because it is uncivil.

[256]   I would allow the appeal for two reasons.  First, in my view, the correctness standard of review applies where a discipline regulator deals with allegations of professional misconduct involving what a barrister did in a courtroom before a presiding judge.

[257]   Second, the Appeal Panel's Conduct Decision cannot survive review on either a correctness or reasonableness standard.  Although the Appeal Panel stated ar paras 225 and 233, that it would assess the member's conduct in the context of "the dynamic, complexity and particular burdens and stakes of the trial, " including the reaction of the trial judge to the member's conduct, the analysis actually conducted by the Appeal Panel failed to take into account, in any meaningful way, how the trial judge ruled on the complaints by OSC about Mr. Groia's conduct and how Mr. Groia responded to the trial judge's rulings on those complaints.  In brief, the Appeal Panel examined Mr. Groia's conduct as if only two people were present in the courtroom - Mr. Groia and the prosecutor.  The Appeal Panel ignored the third person - the trial judge - and failed to give any meaningful consideration to his rulings about Mr. Groia's conduct in its assessment of whether that conduct amounted to professional misconduct.  That, in my view, rendered the Conduct Decision both incorrect and unreasonable.

The Framing of the Issue:

     A court can not properly adjudicate an issue like the one raised in the Groia case unless it properly captures the very essence of the legal question before it.  In the parlance of reviewing courts in days gone by - the review court must ask itself the right question in order to provide the proper answer. This is what the learned justice said on this vital point:

[265]   Mr. Groia captured the essence of the question that lies at the heart of this case in the opening sentences of his factum:

"Whose responsibility is it to run a trial in a Canadian court - the trial judge or the Law Society of Upper Canada ?  Who determines the boundaries of acceptable courtroom behaviour - judges or regulators ?

[266]  Those are the key questions to ask.  The factor that drives the analysis in this case is the location of the impugned conduct - a courtroom.

[267]  In my view, the finding that Mr. Groia had committed professional conduct for statements he made in court should be reviewed on the correctness standard.  My proposition is a simple one.  Under our Constitution it is the independent judiciary that controls what takes place in a courtroom.  In the context of a regulators's inquiry into a barristers in-court conduct, that principle translates into the application of a correctness standard of review.  By employing a correctness standard, the judiciary maintains its ultimate control over the courtroom by having the "last word, so to speak, on whether a barrister's in-court conduct merits professional misconduct sanction.

Conclusion

[465]   Taking into consideration all three elements of the test for determining whether a barrister's in-court conduct amounts to professional misconduct, I conclude that the Appeal Panel erred in finding that Mr. Groia had engaged in professional misconduct.

[436]   A hard-fought, high-profile criminal trial saw inappropriate submissions and allegations by Mr. Groia over the course of several days in Phase One.  The trial judge responded to the prosecution's complaints about the inappropriate conduct.  He ultimately directed Mr. Groia to stop making allegations of prosecutorial misconduct.  Mr. Groia complied with the trial judge's rulings.  This court then gave strong directions to both the trial judge and Mr. Groia about how to deal with the disputed evidentiary and abuse of process issues during the balance of the trial.  This court found that the fairness of Phase One of the trial had not been compromised by Mr. Groia's conduct and the prosecution was not prevented from having a fair trial.  At the same time, this court administered a "public shaming" to Mr. Groia.  He mended his ways during the balance of the trial.  The remaining 90 days of the trial proceeded without incident.

[437]   And, no one involved in the trial or the judicial reviews complained to the Law Society about Mr. Groia's conduct.

[438]   Great weight must be given to Mr. Groia's compliance with the direction of the courts and to the fact that his conduct did not affect trial fairness.  When that is done, and when the circumstances of the Felderhof trail are looked at in their entirety, I conclude that Mr. Groia did not engage in professional misconduct contrary to the Rules of Professional Conduct.  Consequently, I conclude that the Appeal Panel erred in determinging that he did.

[438]   My colleague concludes that a reasonableness standard of review applies.  Even using that standard, I would grant the appeal.


COMMENTARY AND ANALYSIS:

     This issues raised by the Groia case are easily the most significant questions of law and policy faced by both the legal profession and the public they serve to date.  This case clearly deserves to be heard by the Supreme Court of Canada.


NOTE:

*The Law Society was created in 1797 to regulate the legal profession in the British colony of Upper Canada.  The Law Society has continued to retain its original name, even though Upper Canada ceased to exist as a political entity in 1841. The Society governed the legal profession in the coterminous Canada West from 1841 to 1867, and in Ontario since confederation in 1867. (Wikipedia the free encyclopedia)

In 1884, William Douglas Balfour, a Liberal MLA for Essex South introduced a bill in 1884 which authorized Delos Rogest Davis, the son of a former slave, to practice law in Ontario.  Mr. Balfour also supported the vote for women and the admission of women to the practice of law.

How Muhammad Ali Touched Me as a Boxer and as a Lawyer

     As a young man I was moved by Ali's boxing skills and bravado.

I sported his white shorts with black trim as a fighter. I danced, 

I jabbed and I often shot-off my mouth !

     Years later when I became a lawyer I was inspired by his frankness

and conviction for simple truths and justice knowing that the state would 

punish him for speaking them. Inspired by Ali - I write - I make legal 

submissions in court and before tribunals about fairness, natural justice

and The Rule of Law.  

     In punishing him the state amplified his message and made him much more

significant than itself.

     He forced the state to unwittingly live up to its own ideals and fundamental

principles.

     Long live the spirt of Muhammad Ali !

Does Secrecy, Retirement and "Part-Time Judges" Do a Disservice to Public Confidence in Ontario's Judicial Misconduct Regime ?

     Judicial misconduct proceedings involving provincially appointed judicial officers in Ontario are administered by two bodies, namely, the Ontario Judicial Council - which governs complaints involving provincially appointed judges and the Justices of the Peace Review Council, which deals with justices of the peace.  While both bodies are governed by separate pieces of legislation they each have a pre-screening process wherein a panel containing a judge and other members referred to as a complaints committee conducts an initial screening/investigation of all complaints. Depending on the outcome of their investigation this body may dismiss the complaint or order other avenues of resolution including ordering a formal hearing.

Pre-Screening of Complaints
in Private:

     In both the OJC and JPRC complaint intake and resolution process to date both the work and identify of the complaints committee members are kept private.  Yes that is correct - private. They are kept private.  For some reason these two tribunals have determined that even the identity of the panel members must be shielded from both litigants and the public.  In a recent JPRC proceeding a panel member sat and convened with the rest of the hearing panel over a course of five months and four hearing dates before volunteering that she had sat on a complaints committee involving the justice of the peace who was subject to discipline before her. Presenting Counsel in that case wrote, "Presenting Counsel does agree that there may be a potential concern about the risk of an appearance of bias if " the member "remains on the panel." The member stepped aside. However, requests for the identify of all other panel members who sat in judgement of the subject of the hearing in the past was denied because this information is private and confidential. It would appear that litigants and the public are supposed to put blind trust in the processes of the OJC and the JPRC.

"Part-Time Judges
Compound the Problems
of Fairness and Impartiality:

     In Ontario a Provincial Court Judge can apply to become a "part-time judge" after retirement under the Courts of Justices Act.  The Act provides that the Chief Justice with the consent of the Attorney General may designate a judge a part-time judge and that such a judge is effectively a judge of the Ontario Court of Justice.  A judge who requires the consent of the Attorney General to preside can hardly be said to have the requisite judicial independence to sit in judgment of other judicial officers.  He or she may in their heart but in the final analysis this is not the test. Such an arrangement fails the objective and well known test that justice must be seen to be done - appearance is as important as reality.

Retirement and Responsibility:

     The current practice before both the OJC and the JPRC is that the retirement of a judge or justice of the peace deprives both bodies of jurisdiction to deal with judicial misconduct complaints. In Re Justice Dianne M. Nicholas the Notice of Hearing asserted judicial misconduct against Justice Nicholas in the following words:

The Facebook  Judge

"In October, 2012, Justice Nicholas posted comments on the Facebook wall of an Assistant Crown Attorney in which she criticized judgments rendered by two other judges in criminal driving cases and disclosed personal information about of one of the judges. The posting was seen by persons working in the justice system. These actions and comments were alleged to be a failure to meet the high standard of conduct expected of judges and may have resulted in the perception that Justice Nicholas would not be impartial in the adjudication and sentencing of criminal driving cases."

     Justice Nicholas put in her retirement and a unanimous panel of the OCJ wrote:

18.   Once a judge retires, he or she is no longer a "judge" or "provincial judge" and the Council no longer has jurisdiction to hold a hearing or impose a disposition.  Though not made explicit by the legislation, this limit on the Council's jurisdiction is implicit in the statutory language.

    The same result occured in Re Justice of the Peace Spadofora. In that case the JP was alleged to have submitted expense claims in which he misrepresented information and claimed for overnight stays and driving distances that were incorrect, excessive and/or inappropriate.

     His Worship Spadofora put in his retirement and a unanimous panel of the JPRC wrote:

7.     In the circumstances, it is not a good use of public funds to proceed with the hearing.  A minimum of five full days were scheduled for the hearing of evidence.  The Panel would then need time to deliberate and issue a decision.  It is unlikely that the hearing process would be fully concluded before the retirement would take effect.  On January 31st, when the retirement takes effect, the Review Council and the Hearing Panel will lose jurisdiction over the matter.


Retirement - Re-Appointment
and Retirement Again ?:

     The current interpretation with respect to the OJC and the JPRC losing jurisdiction when a judicial officer retires raises grave and profound questions for the legality of legal proceedings where a judge publicly retires, gets reappointed as a "part-time judge" under the Courts of Justice Act and is named to chair a Hearing Panel of the JPRC.  Assuming the current interpretation on jurisdiction currently held by both the OJC and the JPRC - it is possible for a judge so appointed to commit judicial misconduct of any sort in those proceedings and to be absolved of all responsibility should a complaint be initiated with these bodies simply by retiring.  Surely, such a scenario does not bode well for restoring any semblance of public confidence in either our judicial misconduct system or our judiciary generally.
 

Commentary:

     Law-makers in Ontario who are serious about maintaining the fundamental principles of judicial independence, impartiality and the Rule of Law need to reevaluate and correct the flaws in the processing and adjudication of judicial misconduct complaints cited above.  No useful purpose is served in keeping the identity of complaints committee members secret from litigants and the public. Litigants and the public can not be expected to blindly trust the integrity of the process. A litigant is entitled to know who sat in judgment of him or her since one who sat in judgment of the litigant may be partial against the litigant.

     No useful and surely no public interest purpose is served by appointing retired, part-time judges to adjudicate judicial misconduct proceedings when they require the consent of the Attorney General to preside and the Attorney General is the party to whom the Hearing Panel's recommendation for removal from office and recommendation for indemnification of the judicial officer's defence costs is directed.  If it is the case that justice must be seen to be done then this current practice is entirely inconsistent with this fundamental principle. The injustice in such a state of affairs is compounded when such a judge can avoid a judicial misconduct proceeding merely by retiring.

    Transparency is the foundation of  any fair and just investigation and adjudicative process.  The need for transparency in these proceedings is heightened where - as here - there are in fact two classes of judges who sit in judgment on these panels.  Those who do not require the consent of the Attorney General to discharge their judicial duties and those who require her consent.  In such a climate not knowing who sits in judgement in a proceeding to ultimately determine judicial office is simply unacceptable and inconsistent with fundamental justice. In closing, how does retirement restore public confidence in the judiciary ?