Tuesday, August 2, 2016

Part-Time Judges and the Demise of Judicial Independence in Ontario

     Three justices of the peace have been removed from office since 2009 in Ontario.
Every one of the justices of the peace removed from office is a non-lawyer. At the time of this writing the available information indicates that possibly two of these justices of the peace was removed by a "part-time' or per diem judge of the Ontario Court of Justice.

     Part-time or per diem judges can only sit with the consent of the Attorney General.  On its face, as a matter of law, it is questionable whether a judge who requires the consent of the Attorney General whom they will recommend removal or indemnification for legal costs to has the requisite independence from the Attorney General to preside over these cases.  The recommendation for removal by the Hearing Panel is made to the Attorney General.  The recommendation for indemnification for the costs associated with a subject JPs cost of defending the judicial misconduct proceedings is also made to the Attorney General.

     The use of part-time or per diem judges to adjudicate judicial misconduct proceedings in Ontario contravenes the well established principle that justice must be seen to be done. There is arguably a strong appearance of bias or unfairness in this practice.  The practice arguable undermines judicial independence to the extent that the Attorney General has a say in whether or not such judges can sit or continue to sit at all.  The danger with this type of arrangement is that justices of the peace and the people who they serve both suffer.  Justices of the Peace suffer to the extent that the well-established safe-guards which come with judicial independence, namely, security of tenure and financial security are now more illusory than real.  Justices of the Peace are said to have the right to counsel but only if they defend themselves in a manner satisfactory to the body seeking to remove them.  The public suffers to the extent that they are not receiving an integral part of what hundreds and thousands working people gave their lives up for - freedom - The Rule of Law and the right to an independent and impartial judiciary.

     The following are the Hearing Panels involved in each of those cases:

JP Barroilhet(July 2009):

Chair: Justice Deborah Livingstone
JP:  Her Worship Senior Justice of the Peace Mews
Lawyer: Ms. S. Margot Blight

JP Phillips(July 2013):

Chair: Justice Paul M. Taylor*
JP: Regional Senior Justice of the Peace Katheen Bryant
Community Member: Ms. Cherie Daniel

JP Massiah (January 2015):

Chair: Justice Deborah Livingstone*
JP: Justice of the Peace Cuthbertson
Lawyer: Ms. S. Margot Blight - replaced by Ms. Lenore Foster 10 or so months into the proceedings

     *An article published in the London Free Press on May 31, 2011 entitled "From Justice Deb...to just Deb" indicated that Justice Livingstone was retiring after 21 years as a criminal court judge effective June 1st and that she would return as a per diem judge.

     *The Ontario Court of Justice website today lists Justice Paul Taylor as a per diem judge.  It is not clear whether or not he held this same status when he chaired the Hearing Panel in the Phillips matter in July 2013.

     * In both Phillips and Massiah the hearing panel recommended to the Attorney General removal from office and non-payment of legal costs.

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