Friday, June 3, 2016

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.


     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 ?

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