"Taxpayers billed for guilty justices' legal fess" read the headline in a November 20, 2014 article published in the Toronto Star. The article went on to identify "The guilty JPs" and the corresponding sums of money paid out by the Attorney General of Ontario to compensate them for the cost of defending judicial misconduct proceedings initiated against them under the Justices of the Peace Act. The Toronto Star article went on to suggest that these "guilty JPs" "had their legal fees compensated to the tune of more than $200,000.
A question of law arises with respect to the publication of this information given that the Procedures Document which governs proceedings before the Justices of the Peace Review Council did not provide for making this aspect of the proceedings public until an amendment on May 14th, 2015 during the proceedings involving JP Massiah.
The May 14, 2015 copy of the Procedures Document reads as follows on this point:
"The Review Council's consideration of the question of compensation shall take place in public if there was a public hearing into the complaint, and otherwise shall take place in private. The hearing panel may recommend that the justice of the peace be compensation for all or part of the cost of legal services incurred in connection with the hearing".
The May 6, 2014 copy of the Procedures Document reads as follows on this point:
"The hearing panel may recommend that the justice of the peace be compensated for all or part of the cost of the legal services incurred in connection with the hearing."
A Look at the Five Cases:
In four of the five cases cited in the article a review of the Reasons for Decision in each of them shows that the issue of compensation is neither discussed or adjudicated in them.(see Re JP Welsh, JP Kowarsky, JP Guberman, JP Massiah) This would tend to be consistent with the May 6, 2014 Procedures Document and the May 14, 2015 amendment which called for the compensation portion of the hearing being public if there was in fact a public hearing.
Re Foulds 2013 is the first case in which a hearing panel of the Justices of the Peace Review Council addresses the issue of compensation in their published decision. This decision is dated July 24th, 2013 - 22 months prior to the amendment in their Procedures Document making this portion of the proceedings a public matter. It is in Foulds 2013 that a hearing panel of the JPRC introduced the new standard on compensation decisions which was relied upon in Re Massiah (2015) to deny compensation.
Who is quoted in the Star Article:
The following persons affiliated with the Justices of the Peace Review Council are prominently quoted in the Toronto Star story: Mr. Douglas Hunt - Presenting Counsel in Re Massiah, and Marilyn King, Registrar of the Justices of the Peace Review Counsel. An unnamed spokesman for the Attorney General is said to have confirmed that "the government paid the full recommended amount to all five disciplined JPs."
Douglas Hunt:
Lawyer Douglas Hunt presented the case against Massiah in his first hearing and was found by the JPRC Hearing Panel to have been the complainant in the second proceeding. Mr. Hunt is no stranger to cases of this nature having acted for the complainants in the landmark judicial misconduct case of Hryciuk v. Ontario where a removal order was overturned by the Ontario Court of Appeal. The following are the quotes the Toronto Star attributes to him in their publication:
- Compensation for legal fees for JPs was "an important issue that obviously needs to be looked at."
- "The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty".
- But, Hunt said it is important JPs have access to resources to defend themselves against allegations brought forward by the government.
Commentary:
In my 23 years as a lawyer in Ontario I have yet to see a Crown Attorney argue against funding by Legal Aid Ontario or otherwise to enable Ontario residents to defend themselves in criminal proceedings. Most reasonable and informed observers agree that a system which pits the unlimited resources of the state against an individual of limited financial means runs the risk of undermining the legal legitimacy of its findings of guilt. We in Ontario take great pride in our current system of Legal Aid where individuals of limited means have some access to a lawyer of their choice to defend their legal rights.
Indemnification of the legal costs incurred by judicial officers in defending judicial misconduct proceedings can not be equated with a criminal or a civil trial. The right to bring a complaint of judicial misconduct against a judicial officer is a right which every single resident who enters a court of law is guaranteed in Ontario. Accordingly, it can reasonably be said that the right to indemnification for defending their office is an implied term and condition of the judicial appointment. Otherwise, a judicial officer making $120,000 a year could not reasonably defend their office in a judicial misconduct proceedings spanning 5 years, some 30 days and more than $700,000**.
Indemnification of the legal costs associated with judicial officers defending their office by the Attorney General is part of the public interest component of this office. This is because indemnification is the small price that we pay for judicial independence and the right to be able to complain and initiate proceedings to correct unsatisfactory behaviour from our judges.
Indeed, the Government of Ontario is not as prosperous as it once was. We have witnessed substantial and damaging cut-backs throughout the administration of justice which threaten to undermine its proper operation. This is an issue for the law-makers to tackle. It is not one that Presenting Counsel and the Registrar of the Justices of the Peace Review Council need to champion.
(readers are invited to read Michele Mandel's of April 10th, 2014 entitled Oshawa JP's Sexual Harassment Hearing Lags)
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the operation of agencies and tribunals charged with the discharge of important public functions such as the Justices of the Peace Review Council. How these agencies conduct their business is vitally important and must at all times be seen to be fair and impartial. If there are any inaccuracies in this publication kindly bring them to my attention and I will correct them. My role is to educate and not to punish. Democracy and the Rule of Law work best when the participants have full and fair disclosure of all of the necessary information. Readers are invited to read Michele Mandel's coverage of this issue in the Toronto Sun as well.
**Estimated cost of the two proceedings for substantially the same conduct at the same time for which a panel chaired by esteemed jurist Charles Vallencourt issued a reprimand, a 10 day suspension, gender-boundary sensitivity training and letters of apology - all of which were complied with but Massiah's return was prevented by Presenting Counsel, Mr. Hunt's report to the JPRC which they found to be a complaint more than 3 years after it was submitted by Mr. Hunt.
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