Friday, February 17, 2017

Foulds 2017 Reveals Serious Access to Counsel Issue for JPs

   My readers will know that I have been arguing for some time now that the judicial misconduct complaint process covering Ontario's justices of the peace is plagued with procedural irregularities. Readers will be aware that I defended a justice of the peace for some two years only for a hearing panel to refuse to make a recommendation that the Attorney General of Ontario indemnify my client for the costs of his defence of the allegations against him.

    Fast-forward a year and now J.P. Foulds, the namesake behind the JPRC's new policy for JPs 'footing the bill"* as Presenting Counsel in Re Massiah put it - is now the victim of the "footing the bill" policy.  The "footing the bill" policy states:

"it is only in exceptional circumstances that the public purse should bear the legal costs of a judicial officer who has engaged in judicial misconduct."  (Re Foulds 2013)

   J.P. Foulds who has yet to be found liable of any misconduct on the current set of allegations before the Justices of the Peace Review Council would appear to be having financial difficulty in retaining counsel to defend him.    The following excerpts from the Decision speak to this issue:

28.  On September 28, 2016, the Respondent appeared in person.  Mr. Mark Sandler and Ms. Amanda Ross attendedd with the Respondent.  Mr. Sandler informed the Panel this His Worship was in the process of being in a position to retain him and Ms. Ross as counsel in relation to the hearing.

29.   A pre-hearing conference was ordered and scheduled for January of 2017.  As Mr. Sandler has not been fully retained by His Worship, it is unlikely that the conference was of benefit in narrowing issues.

30.  On January 20, 2017, Mr. Sandler informed the Panel that His Worship now contemplates that Mr. Sandler would not likely be properly retained until approximately September, 2017.

34.  In balancing the uncertain outcome of the judicial review process, the principle that a justice of the peace should be represented by counsel in the complaints process, and the public interest in having a timely hearing into the allegation set out in the Notice of Hearing, the Panel concludes that hearing dates should be scheduled today for three weeks in October.  By that time, His Worship will have had more than a year to get his financial affairs in order and to retain counsel who is available to accommodate the scheduled dates."

Commentary and Analysis:

  I am disappointed.   I am saddened that justices of the peace in Ontario have noting but an illusory right to counsel in judicial misconduct proceedings which could be brought against them by any citizen who walks into their court and as Massiah 2014 and 2015 show the Director of Court Operation and Presenting Counsel can bring complaints too.

  I am troubled as a litigation lawyer because I know in my heart that many a justice of the peace may be forced to admit liability and lose their office for matters which may not be removable offences at all and which they could defend if only they had a real right to counsel. It is a shame plain and simple.  Ontario can do better.

   Believe it or not the Justices of the Peace Act has no enforcement language to compel the Attorney General to pay on a hearing panel's recommendation of compensation.  This is not the case for Provincial Court Judges.   S.51.7(8) of the Courts of Justice Act expressly stated: "The Attorney General shall pay compensation to the judge in accordance with the recommendation."

   I ask - how can this be right ?


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