Tuesday, March 7, 2017

Why the Justices of the Peace Act and Procedures May be Unconstitutional - Part 2 of 2

   Under the Justices of the Peace Act it is clear that justices of the peace who must respond to the investigation and the adjudication of a complaint have the right counsel. That such a right exists is supported by the express provisions in the Act(s.11(16) and s.11.1(17) addressing compensation to the justice of the peace for "'all or part of the cost of legal services" incurred in either the investigation or hearing.

Access to Counsel 

   Unlike the federal system operated by the Canadian Judicial Council, justices of the peace are not ensured access to counsel paid for by the Attorney General of Ontario through out the complaint process.  Rather, they have what can best be described as a hallow right to indemnification at what is in essence an unfettered discretion by a complaints committee or a hearing panel at the conclusion of the proceedings. This right is hallow because unlike the case with judges of the Ontario Court of Justice there is no statutory language in the Justices of the Peace Act or Procedures which compels the Attorney General to pay a justice of the peace compensation even if a complaints committee or a hearing panel recommends it.

   The access to justice problem which this creates for Ontario's justices of the peace is clearly evidenced in the Justices of the Peace Review Council's ireconciable decisions in Re Massiah 2012, Re Foulds 2017 and Re Massiah 2015.  In Foulds 2017 a panel recently held the proceedings in abeyance for several months to permit J.P. Foulds to get his financial affairs in order to enable him to retain counsel. In Re Massiah 2012 the justice of the peace was fully indemnified by way of payment by the Attorney General to counsel directly notwithstanding a finding of misconduct after a hearing.

   In Re Massiah 2015 the panel refused to make a recommendation for compensation seemingly because the j.p. elected to defend his office by asserting a lack of jurisdiction, institutional and reasonable apprehension of bias in the process, abuse of process generally and abuse of process founded on the Supreme Court of Canada decision of Blencoe  v.  B.C. Human Rights Commission. The panel went on to conclude that "the misconduct that has been established has nothing to do with the concept of judicial independence".

   In Re Massiah 2015 the justice of the peace was forced to defend two separate and distinct sets of allegations.  One initiated by Presenting Counsel on a separate matter which was determined to be the jurisdiction providing "complaint in writing" and an unscreened and uninvestigated set of allegations set out in a Notice of Hearing by a second Presenting Counsel. Those proceedings started in May, 2013 and concluded in June, 2017 with the hearing panel refusing to recommend compensation for the cost of legal services.

Nordheimer J. identified the problem posed by the JPRC's compensation policy in the following words:

[54]   Fourthly, there is a serious risk that, if we hold a presumption that a judicial office holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of the Gordian Knot.  On the one hand,, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process.  That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely to be significant.  Few judicial office holders would be able to self-fund those expenses.

J.P. Salary:

   A typical justice of the peace in Ontario earns roughly $120,000-$170,000 or so.  As the Nordheimer J. notes above few judicial office holders would be able to self-fund the expenses associated with defending their office. To expect a justice of the peace to self-fund these cases clearly improperly encroaches on their guarantee of financial security under the constitutional doctrine of judicial independence.

Threat to Judicial Independence
Said the Divisional Court:

Nordheimer J. touched on the constitutional dimension of this problem in the following words:

[54]   .....On the other hand, that same person, in order to avoid those dire financial consequences, may simply decide that it is easier and financially safer, to simply resign their office.  In doing so, though, they leave the allegations unanswered and consequently, in most persons' minds, admitted to.  If that is the knot that a judicial officer(sic) holder faces, it means the mere fact of a complaint becomes in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results. Either the judicial office holder, for reasons other than the merits of a particular complaint, acquiesces in the removal from office or they may choose to avoid decisions that will subject them to criticism.

Inequity between OCJ
judges and justice of the 
peace Indefensible:

   In Re Hon. Justice Williams (2002),  a decision from the Ontario Judicial Council, Madame Justice Agro recused herself from the compensation portion of those proceedings because she sat on a board which provides funding for judges who appear before the Ontario Court of Justice. Justices of the Peace have no such fund.  A recommendation for costs involving a judge can be enforced by virtue of the clear and express language in the Courts of Justice Act which states:

s.51.7(8)   The Attorney General shall pay compensation to the judge in accordance with the recommendation.

The Justices of the Peace Act and Procedures has no enforcement language compelling the Attorney General to compensate even if a recommendation is made.

Ethical Problems Flowing
From Current JPA Scheme:

   The job of a lawyer is to fearlessly defend their client within the bounds of the law.  A statutory scheme which calls for lawyers to defend members of the judiciary in circumstances where the adjudicative body is given an unfettered discretion to recommend that the judicial officer is compensated by the Attorney General for all or some of the legal costs incurred in the proceedings at the end of the proceeding is fraught with the following procedural and ethical problems:

1.   Is there a chance that the judicial officer's defence may be compromised ?

2.   Is there a chance that the issue of access to counsel and compensation for counsel
      can be politicized so as to distort the central issue of judicial independence and
      the right to defend one's office ?

Contingency Fees ?:

   The effect of the statutory scheme providing justices of the peace in Ontario with access to counsel is that the Attorney General is imposing what amounts to a contingency type retainer of counsel arrangement on these judicial officers where the executive branch of government and its agents and tribunals have unfettered control over the outcome. The panel decides whether to "uphold or dismiss the complaint".   We may indemnify you so that you may pay your counsel but ONLY IF you win.  The problem with such an arrangement is compounded when one considers the fact that even with a recommendation from a hearing panel there is no means by which the Attorney General can be compelled to pay.





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