Thursday, March 9, 2017

Does Race Play a Role in JPRC "Complaints" and Decisions to Compensate ?

The Recent Reported
Cases at the JPRC:

1.  Re Foulds (March 27, 2013) - African-Canadian Male; This is the case which a JPRC hearing panel denied compensation to J.P. Massiah claiming that there was a presumption against compensation where misconduct is established and the Divisional Court ruled that this was based on a "flawed legal premise".

2. Re Phillips (November 4, 2013)  - Aboriginal Woman; compensation denied.

3.  Re Johnson(August 19, 2014) - African-Canadian Male; Notwithstanding that removal was not recommended, compensation denied.

4.  Re Spadafora (April 7, 2015 - Caucasian Male; compensation granted where the J.P. retired and the JPRC determined that jurisdiction was lost.

4.  Re Massiah(June 17, 2015) - African-Canadian Male - compensation denied even though the Hearing Panel raised its own motion on jurisdiction and invited the parties to make submissions on the issue and expressly acknowledged that it would take some work. In addition, the Hearing Panel sought the guidance of counsel for the parties on the impact, if any, of a Divisional Court decision.

5.    Re Whittaker (September 8, 2015) - Caucasian Male - compensation granted where the J.P. retired in the face of allegations that "His Worship demonstrated a pattern of conduct that gave rise to a perception of bias and partiality; abused his judicial power by acting in a punitive and arbitrary manner to punish people in a manner inconsistent with law; and acted in a manner unbecoming of a justice of the peace, causing a loss of confidence in his ability to act impartially and with integrity"
(Decision on the Request for a Recommendation for Compensation of Legal Costs at para 3)

Commentary and Analysis:

   It would be irresponsible of me to argue that based on the above-referenced information that there is a direct co-relation between race and the decision to compensate Ontario's justices of the peace in judicial misconduct proceedings. Although the information reveals that two Caucasian males received compensation for their legal costs in 2015 following Foulds(2013) both of these justices of the peace retired.  As such, there was no finding of judicial misconduct against them.  Proponents of the "foot their own bill" vision with respect to compensation will forcefully argue that race has nothing to do with this process it is the result of a finding of judicial misconduct which is the cause.

   As one who has worked in the field of advocating for equality in employment opportunities for the past thirty or so years , the above data reveals a very troubling concern that justices of the peace from "racialized minority groups"* may be disproportionately subject to discipline before Ontario's Justices of the Peace Review Council.  Do justices of the peace from "racialized minority groups" have a greater propensity to run afoul of judicial ethics and proper conduct ?  or Are justices of the peace from this group prone to the overall dynamic in our criminal justice system which the Report of the   Commission on Systemic Racism in the Ontario Criminal Justice System co-chaired by Justice Cole and Margaret Gittens revealed in their report - a clear inequality between African-Canadians and others in virtually every aspect of the criminal prosecution process in Ontario.  Does the lamentable legal and social malaise of racial profiling play a role in this reality ?

   Answers to the above-noted question are profound and not always capable of quick answers. The answers to this troubling but highly relevant question calls for a careful study of the types of complaints leveled against these justices of the peace(Foulds, Phillips, Johnson and Massiah) and where they come from.  Are the complaints against them initiated by members of the public in the ordinary course ?  Are the complaints against them initiated by staff in the administration of justice or players in the judicial misconduct system ?  Are the complaints or Notice of Hearings issued against them asserting the breach of other general statutes like the Ontario Human Rights Code ?  If there misconduct is founded on another statute, for example, the Human Rights Code are they being permitted to raise allowable defences under the Human Rights Code ?

Work Needed to
Answer These

   The answer to these questions will no doubt provide us with a clear answer to this disturbing trend. Policy-makers who wish to end racism and discrimination in Ontario's criminal justice system may wish to examine this. If the initiation and the result is what the decision to compensate rests on then it is of paramount importance that we ensure that the the decision to initiate and find liability is not tainted by any racial animus. I will examine the facts and circumstances surrounding the proceedings involving these justices of the peace in an upcoming post.

*This is a term that professional regulators and others involved and concerned about these issues have chosen to use to describe non-Caucasian persons. I borrow it out of efficiency.

Notice:  This piece is written for the sole purpose of drawing attention to an issue of public importance.  The disciplining of judicial officers is an issue of public importance. The decision to compensate or not compensate judicial officers in these proceedings is also an issue of public importance. The goal of eliminating racial bias and achieving equality among all Ontario residents without regard to irrelevant factors such as race is also a matter of public importance.

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