In light of the overwhelming response to my recent posts on the complaints process at the Justices of the Peace Review Council it appears that there is great interest among members of the public with respect to the workings of this very important administrative tribunal. In this follow-up post I will explore the provisions in the enabling legislation which safe-guard the fundamental principles of judicial independence, institutional impartiality and institutional independence in the complaints process.
What is judicial independence ?
One of the fundamental principles in our system of justice in Ontario is that judicial officers must be free to judge without fear of reprisal or reward from third parties and in particular government. Two well recognized indicia of independence of judicial officers are remuneration and security of tenure. S.21.1(2) of the Justices of the Peace Act provides for the Justices of the Peace Remuneration Commission to make recommendations with respect to the remuneration of justices of the peace. S.5(2) provides that every justice of the peace shall retire upon attaining the age of seventy years and s.11.2(1) provides that a justice of the peace may be removed from office by order of the Lieutenant Governor in Council. The removal from office can only take place after a hearing before a hearing panel which recommends to the Attorney General that the justice of the peace be removed.
It is important to note the very circumscribed role of the Attorney General plays in the removal from office process. The enabling legislation provides the justice of the peace with the right to a hearing before a hearing panel. It is only after a finding of judicial misconduct where the panel makes an express finding that the justice of the peace is unable, because of disability, to perform the essential duties of his or her office, the justice of the peace has engaged in conduct that is incompatible with the due execution of his or her office, or the failure of the justice of the peace to perform the duties of his or her office that a recommendation may be made to the Attorney General to remove the justice of the peace from office. The Attorney General can not unilaterally remove a justice of the peace from office under the legislation.
Can the Attorney General Bring a Complaint
under the Justices of the Peace Act:
This is far from a simple question. It is not a simple question on account of the various roles which the Attorney General plays not only in the administration of justice proper but particularly under the Justices of the Peace Act. The Attorney General plays a role in the appointment of the individuals who sit on the Justices of the Peace Review Council. The Attorney General plays a role in the appointment of both Ontario Court of Justice judges and justices of the peace. At the conclusion of a hearing before a hearing panel of the JPRC the panel may recommend to the Attorney General that the justice of the peace be indemnified for his or her legal costs flowing from the hearing. Lastly, it is the Attorney General who receives the recommendation for removal from office following a hearing.
Unlike the Judges Act, R.S.C., 1985 c.J-1 the Justices of the Peace Act, R.S.O 1990 ch J.4 does not give the Attorney General express authority to initiate complaints against a justice of the peace. However, s.10.2(3) makes it crystal clear that neither the Attorney General, a judge or a justice of the peace has the authority to bring a representative complaint on behalf of a person who comes to them with a complaint. The provision provides that these recipients of such complaints shall provide the person making the complaint with information about the Review Council's role in the justice system and about how a complaint may be made and shall refer the person to the Review Council. Clearly, if the Attorney General is expressly prohibited from bringing a representative complaint on behalf of a third party it stands to reason that this prohibition would naturally extend to the Deputy Attorney General, Assistant Deputy Attorney General
and senior managers affiliated with the office of the Attorney General who may be considered agents of the Attorney General. The absence of such an extension of the prohibition would make a mockery of the principles of judicial independence, institutional impartiality and institutional independence. The logical extension of an absence of such a prohibition would result in a situation where a senior management employee of the Ministry of the Attorney General could round up her subordinates, take statements from them and send them off to the JPRC as complaints.
There may well be circumstances in which it may be proper in upholding the rule of law for the Attorney General of Ontario to bring a complaint against a justice of the peace under the Justices of the Peace Act but those circumstances are rare and exceptional. It must never be forgotten that the Attorney General is an elected politician and a member of the Ontario Bar. That office is mandated by law and custom to protect the public interest and uphold the principle of the Rule of Law. In Cosgrove v. Canadian Judicial Council [2007] 4 F.C.R. 714 the Attorney General for Ontario brought a complaint against then Justice Cosgrove. That was an exceptional case. Firstly, the enabling legislation expressly authorized such complaints from both the federal and provincial attorney generals. Secondly, the allegation in that case was the judge deliberately failed to follow established legal principles in staying a first degree murder charge. The court determined that it was consistent for the attorney general to protect the public interest and part of this mandate includes the participation in review of the conduct of judges. The other two principles cited above, namely, institutional impartiality and institutional independence provide a logical explanation for why complaints regarding judicial officers are rare and exceptional under the Justices of the Peace Act.
What is institutional impartiality ?
The principle of institutional impartiality is the concern which led our law-makers to create a tribunal known as the Justices of the Peace Review Council to deal with the issue of complaints against justices of the peace in Ontario. It is that fundamental belief that justice "must be seen to done". The legislature having established the Justices of the Peace Review Council it would be repugnant to the Rule of Law for the Attorney General or any other member of the "government" to directly or indirectly influence the operation or dealing of that tribunal. The Justices of the Peace Review Council can never allow itself to be even perceived as being a tool of the Attorney General or any other part of the "government".
Analysis and Commentary:
The Justices of the Peace Review Council is an independent tribunal established by the legislature of the Province of Ontario to deal with, among other issues, the receipt and investigation of complaints of judicial misconduct and the adjudication of judicial misconduct hearings. The proper discharge of this important statutory function in a free and democratic society requires that the Justices of the Peace Review Council be and be seen to be free of any perception of partiality towards the Attorney General or any other agent of that office or the "government" proper.
If under s.10.2(3) of the Act the Attorney General is expressly prohibited from bringing representative complaints on behalf of third parties, the fundamental principles of judicial independence, institutional impartiality and independence are rendered illusory and meaningless if the Deputy Attorney General, Assistant Deputy Attorney General and senior members of the Attorney General's staff can bring such representative complaints.
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the vital importance of the impartiality and independence of the Justices of the Peace Review Council from political and other irrelevant considerations in the proper discharge of their statutory mandate.
What is judicial independence ?
One of the fundamental principles in our system of justice in Ontario is that judicial officers must be free to judge without fear of reprisal or reward from third parties and in particular government. Two well recognized indicia of independence of judicial officers are remuneration and security of tenure. S.21.1(2) of the Justices of the Peace Act provides for the Justices of the Peace Remuneration Commission to make recommendations with respect to the remuneration of justices of the peace. S.5(2) provides that every justice of the peace shall retire upon attaining the age of seventy years and s.11.2(1) provides that a justice of the peace may be removed from office by order of the Lieutenant Governor in Council. The removal from office can only take place after a hearing before a hearing panel which recommends to the Attorney General that the justice of the peace be removed.
It is important to note the very circumscribed role of the Attorney General plays in the removal from office process. The enabling legislation provides the justice of the peace with the right to a hearing before a hearing panel. It is only after a finding of judicial misconduct where the panel makes an express finding that the justice of the peace is unable, because of disability, to perform the essential duties of his or her office, the justice of the peace has engaged in conduct that is incompatible with the due execution of his or her office, or the failure of the justice of the peace to perform the duties of his or her office that a recommendation may be made to the Attorney General to remove the justice of the peace from office. The Attorney General can not unilaterally remove a justice of the peace from office under the legislation.
Can the Attorney General Bring a Complaint
under the Justices of the Peace Act:
This is far from a simple question. It is not a simple question on account of the various roles which the Attorney General plays not only in the administration of justice proper but particularly under the Justices of the Peace Act. The Attorney General plays a role in the appointment of the individuals who sit on the Justices of the Peace Review Council. The Attorney General plays a role in the appointment of both Ontario Court of Justice judges and justices of the peace. At the conclusion of a hearing before a hearing panel of the JPRC the panel may recommend to the Attorney General that the justice of the peace be indemnified for his or her legal costs flowing from the hearing. Lastly, it is the Attorney General who receives the recommendation for removal from office following a hearing.
Unlike the Judges Act, R.S.C., 1985 c.J-1 the Justices of the Peace Act, R.S.O 1990 ch J.4 does not give the Attorney General express authority to initiate complaints against a justice of the peace. However, s.10.2(3) makes it crystal clear that neither the Attorney General, a judge or a justice of the peace has the authority to bring a representative complaint on behalf of a person who comes to them with a complaint. The provision provides that these recipients of such complaints shall provide the person making the complaint with information about the Review Council's role in the justice system and about how a complaint may be made and shall refer the person to the Review Council. Clearly, if the Attorney General is expressly prohibited from bringing a representative complaint on behalf of a third party it stands to reason that this prohibition would naturally extend to the Deputy Attorney General, Assistant Deputy Attorney General
and senior managers affiliated with the office of the Attorney General who may be considered agents of the Attorney General. The absence of such an extension of the prohibition would make a mockery of the principles of judicial independence, institutional impartiality and institutional independence. The logical extension of an absence of such a prohibition would result in a situation where a senior management employee of the Ministry of the Attorney General could round up her subordinates, take statements from them and send them off to the JPRC as complaints.
There may well be circumstances in which it may be proper in upholding the rule of law for the Attorney General of Ontario to bring a complaint against a justice of the peace under the Justices of the Peace Act but those circumstances are rare and exceptional. It must never be forgotten that the Attorney General is an elected politician and a member of the Ontario Bar. That office is mandated by law and custom to protect the public interest and uphold the principle of the Rule of Law. In Cosgrove v. Canadian Judicial Council [2007] 4 F.C.R. 714 the Attorney General for Ontario brought a complaint against then Justice Cosgrove. That was an exceptional case. Firstly, the enabling legislation expressly authorized such complaints from both the federal and provincial attorney generals. Secondly, the allegation in that case was the judge deliberately failed to follow established legal principles in staying a first degree murder charge. The court determined that it was consistent for the attorney general to protect the public interest and part of this mandate includes the participation in review of the conduct of judges. The other two principles cited above, namely, institutional impartiality and institutional independence provide a logical explanation for why complaints regarding judicial officers are rare and exceptional under the Justices of the Peace Act.
What is institutional impartiality ?
The principle of institutional impartiality is the concern which led our law-makers to create a tribunal known as the Justices of the Peace Review Council to deal with the issue of complaints against justices of the peace in Ontario. It is that fundamental belief that justice "must be seen to done". The legislature having established the Justices of the Peace Review Council it would be repugnant to the Rule of Law for the Attorney General or any other member of the "government" to directly or indirectly influence the operation or dealing of that tribunal. The Justices of the Peace Review Council can never allow itself to be even perceived as being a tool of the Attorney General or any other part of the "government".
Analysis and Commentary:
The Justices of the Peace Review Council is an independent tribunal established by the legislature of the Province of Ontario to deal with, among other issues, the receipt and investigation of complaints of judicial misconduct and the adjudication of judicial misconduct hearings. The proper discharge of this important statutory function in a free and democratic society requires that the Justices of the Peace Review Council be and be seen to be free of any perception of partiality towards the Attorney General or any other agent of that office or the "government" proper.
If under s.10.2(3) of the Act the Attorney General is expressly prohibited from bringing representative complaints on behalf of third parties, the fundamental principles of judicial independence, institutional impartiality and independence are rendered illusory and meaningless if the Deputy Attorney General, Assistant Deputy Attorney General and senior members of the Attorney General's staff can bring such representative complaints.
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the vital importance of the impartiality and independence of the Justices of the Peace Review Council from political and other irrelevant considerations in the proper discharge of their statutory mandate.
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