Readers will recall that a hearing panel chaired by now retired Madame Justice Livingstone referred me to the governing body of lawyers in this province, The Law Society of Upper Canada alleging among other things that I brought a frivolous motion seeking a publication ban on behalf of my client. The fact is that a positive general reputation and integrity are among a judicial officers most significant traits or qualities. A careful review of the Justices of the Peace Act itself will confirm this point.
Private Investigations:
The Act expressly provides that in s. 11(8) a complaints committee's investigation of a complaint shall be conducted in private. The rationale for this is entirely related to the fundamental importance and indeed state interest in preserving and protecting judicial officers from improper influence from the state or otherwise which may interfere with their judicial independence and hence The Rule of Law. This important principle was taken a step farther when 20 years ago Madame Justice Abella of the Court of Appeal for Ontario ruled in the landmark case of Hryciuk v. Ontario that only complaints which have been pre-screened by the judicial council in that case are properly before an inquiry judge to adjudicate the question of removal from judicial office. Accordingly, it should be clear to readers that an unfounded allegation against a judge ought not to receive any publicity under this statutory scheme.
The Publication Ban
Motion in Re Massiah:
Readers will recall that there was a serious legal question of jurisdiction placed before the Hearing Panel the moment I took up my retainer on that case. The question of the existence of a "complaint" as that term is used in s.10.2(2) was squarely raised in a preliminary motion challenging the jurisdiction of the Hearing Panel to adjudicate a "complaint" in June, 2013.
Indeed, the Hearing Panel itself retained independent counsel on the question of their jurisdiction and did not receive an opinion until May, 2014.
In those circumstances a lawyer who fails to seek an interim publication ban at least until the question of the legality of the "complaint" is adjudicated would be in breach of his or her duty to his client under such a statutory scheme and indeed within the reality of the vital importance of a positive general reputation and integrity for judicial officers. Again, I was simply doing my job as a lawyer.*
The Facts:
When I brought the motion seeking an interim publication ban there was widespread media coverage of the allegations. The motion record filed on this motion shows that at least three articles were cited. This was so even though the question of the "complaint" was not adjudicated by the Hearing Panel until January 12th, 2015. The Hearing Panel made its decision on the publication ban motion in and around April, 2014. They denied it. Publication of the allegations continued at large.
The JPRC Practice:
As the case cited below illustrates publication ban motions are common place at the JPRC. In Re Kowarsky a publication ban protecting the subject Justice of the Peace was obtained with the consent of Presenting Counsel. I have searched wide and far and I have not found any publication dealing with the Re Kowarsky matter by the main stream press at the time of the proceedings. Indeed, interested readers may wish to review the Hearing Panel's decision in Re Kowarsky. They will see that the words which HW Kowarsky was found to have uttered which constituted judicial misconduct are not even quoted in the published Reasons for Decision. That panel
wrote:
[10] The sexually inappropriate comment, involving eight words, was very short. It is agreed, and the Panel finds that the comment was not intended to be hurtful.
On the other hand, at each and every turn the proceedings in Re Massiah was in the press. When the Toronto Sun's Michele Mandel was not advocating for his removal, she was advocating that he not be compensated for his defence. Curiously, Michele Mandel seems to believe that some lawyers ought not to be punished for doing their job but some are.(see: Wrong to Silence Marie Henein for Doing her Job.)
Readers will recall that there was a serious legal question of jurisdiction placed before the Hearing Panel the moment I took up my retainer on that case. The question of the existence of a "complaint" as that term is used in s.10.2(2) was squarely raised in a preliminary motion challenging the jurisdiction of the Hearing Panel to adjudicate a "complaint" in June, 2013.
Indeed, the Hearing Panel itself retained independent counsel on the question of their jurisdiction and did not receive an opinion until May, 2014.
In those circumstances a lawyer who fails to seek an interim publication ban at least until the question of the legality of the "complaint" is adjudicated would be in breach of his or her duty to his client under such a statutory scheme and indeed within the reality of the vital importance of a positive general reputation and integrity for judicial officers. Again, I was simply doing my job as a lawyer.*
The Facts:
When I brought the motion seeking an interim publication ban there was widespread media coverage of the allegations. The motion record filed on this motion shows that at least three articles were cited. This was so even though the question of the "complaint" was not adjudicated by the Hearing Panel until January 12th, 2015. The Hearing Panel made its decision on the publication ban motion in and around April, 2014. They denied it. Publication of the allegations continued at large.
The JPRC Practice:
As the case cited below illustrates publication ban motions are common place at the JPRC. In Re Kowarsky a publication ban protecting the subject Justice of the Peace was obtained with the consent of Presenting Counsel. I have searched wide and far and I have not found any publication dealing with the Re Kowarsky matter by the main stream press at the time of the proceedings. Indeed, interested readers may wish to review the Hearing Panel's decision in Re Kowarsky. They will see that the words which HW Kowarsky was found to have uttered which constituted judicial misconduct are not even quoted in the published Reasons for Decision. That panel
wrote:
[10] The sexually inappropriate comment, involving eight words, was very short. It is agreed, and the Panel finds that the comment was not intended to be hurtful.
On the other hand, at each and every turn the proceedings in Re Massiah was in the press. When the Toronto Sun's Michele Mandel was not advocating for his removal, she was advocating that he not be compensated for his defence. Curiously, Michele Mandel seems to believe that some lawyers ought not to be punished for doing their job but some are.(see: Wrong to Silence Marie Henein for Doing her Job.)
Justices
of the Peace Review Council
IN THE MATTER OF A HEARING UNDER SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990,
c. J.4,
as amended
Concerning a Complaint about the Conduct
of
Justice of the Peace Tom Foulds
Before:
The Honourable Justice Peter Tetley, Chair
Justice
of the Peace Monique Seguin
Ms. Jenny Gumbs, Community Member
Hearing Panel of the
Justices of the Peace Review Council
SUPPLEMENTARY REASONS FOR INTERIM RULING
Counsel:
Mr. Scott K. Fenton Mr. Mark J. Sandler
Ms. Amy Ohler Ms.
Amanda Ross
Fenton, Smith
Barristers Cooper,
Sandler, Shime & Bergman LLP
Presenting
Counsel
His Worship Tom Foulds appearing in person
SUPPLEMENTARY REASONS FOR INTERIM RULING
HEARD: September 28, 2016
Background
[1]
On August 2, 2016, a Complaints Committee of
the Justices of the Peace Review Council (the “Review Council”), acting
pursuant to subsection 11(15) of the Justices
of the Peace Act (the “Act”),
ordered a complaint regarding the conduct or actions of His Worship Justice of
the Peace Tom Foulds to be referred to a Hearing Panel of the Review Council
pursuant to section 11.1 of the Act.
[2]
A Notice of Hearing was served on the
Respondent on September 2, 2016. The Notice of Hearing specified a first
appearance date, before the Hearing Panel of the Review Council, of September
28, 2016.
[3]
On September 28, 2016, the Respondent
appeared in person. Mr. Mark Sandler and Ms. Amanda Ross attended with the
Respondent in the capacity of un-retained counsel.
[4]
Mr. Sandler advised the Hearing Panel that
although he had not yet been retained as counsel for the purpose of the hearing
proceedings, he anticipated the formalization of his retainer in the relatively
near future. Mr. Sandler also advised that he had acted as legal counsel for
the Respondent in the proceedings before the Complaints Committee.
[5]
Mr. Sandler acknowledged non-compliance with
the procedures of the Review Council that requires ten days written notice in
advance of a procedural motion.
[6]
In the absence of formal notice, motion
record, filed authorities, factum or other form of supporting documentation,
the Hearing Panel received and considered Mr. Sandler’s oral request that the proceedings
be briefly adjourned with the Notice of Hearing filed provisionally or filed
and marked as Exhibit A but that the Panel should order that the Notice of
Hearing and these proceedings not be published until such time as the motion of
non-publication could be properly argued once legal counsel was retained.
[7]
These requests were ultimately dismissed on
the basis that the applicable statutory directives, directives founded on
recognition that the complaints process is designed to maintain and restore
public confidence in the investigation of complaints involving justices of the peace,
outweighed the Respondent’s privacy interests and undermined his request that a
publication ban be ordered on an interim basis.
Relevant factual considerations
[8]
During the course of his submissions, Mr.
Sandler advised that the Respondent is currently seeking judicial review of the
decision of the Complaints Committee of the Justices of the Peace Review
Council. The decision of the Committee forms the basis for the particulars of
the complaint that is the subject matter of this hearing.
[9]
Mr. Sandler referred to the Procedures of the
Review Council which provide that the initial set-date commences with the
filing of the Notice of Hearing, at which point the proceedings become public.
He advised that in view of the Respondent’s existing legal challenge to the decision
of the Complaints Committee to order a hearing, the Hearing Panel was urged to
exercise restraint in receiving the Notice of Hearing as a numbered exhibit that
could be publicized as existing legal proceedings brought by His Worship Foulds
include a challenge to both the legal and factual foundations of the complaint
itself.
[10]
Mr. Sandler
expressed concern with regard to the “potential prejudice” to Justice of the
Peace Foulds as His Worship seeks judicial review of the decision of the Complaints
Committee. The nature or specifics of the “potential prejudice” to the
Respondent were not specified other than by general reference to the assertion
that the publicizing of the complaint may be reasonably foreseen to effect the
ability of the Respondent to continue to discharge the duties of his office
while the legal challenge continues to unfold.
[11]
Mr. Sandler,
as noted, requested that the Notice of Hearing not be received as an exhibit,
or alternatively, that it be received provisionally or marked as a lettered
exhibit subject to an order that it could not be published to enable the
Respondent to formalize counsel’s retainer with a view to enabling a formal
notice of motion to be brought before this Panel or alternatively, a motion in
the context of the application for judicial review that His Worship has instituted
in the Divisional Court, with a view to securing an order of prohibition
pending the outcome of the existing judicial review challenging the decision of
the Complaints Committee.
[12] In
summary terms, Mr. Sandler requested the following alternative relief:
That the Hearing
Panel defer its decision on the receipt of the Notice of Hearing as a public
numbered exhibit until such time as counsel is retained and a formalized Notice
of Motion is received or alternatively, receive the Notice of Hearing and the
particulars of the complaint, filed provisionally, or in the alternative, filed
and marked as Exhibit “A”, but subject to an order that it not be published until
such time as counsel’s motion can either be formalized and heard by the Panel or
a challenge to the jurisdiction of the Hearing Panel determined.
Legal Considerations
[13] The
Review Council Procedures document provides as follows:
6. (1) A hearing shall be commenced by a
Notice of Hearing in accordance with this part.
(2) Recognizing the role that the complaints
process has in maintaining and restoring public confidence and that the
legislative requirements for maintaining privacy no longer apply for formal
hearings under section 11.1 of the Act,
once presenting counsel files a Notice of Hearing as an exhibit in the initial
set date proceeding presided over by the Hearing Panel, the complaints process
will become public, subject to any orders by the Hearing Panel.
(3) Once the complaint has become public, the
registrar will have notice about the hearing posted in the prescribed form on
the Review Council’s website, subject to any orders by the Hearing Panel. Not
less than two weeks prior to the commencement of the hearing, the Registrar will
have notice in the prescribed form published in the local newspaper. The public
notice will include a brief summary of the allegations of conduct. The public
notice shall not identify complainants or witnesses, due to the possibility
that the complainant or witness could bring a motion in the proceeding for an
order of non-publication of his or her identity. The Hearing Panel may, on such
grounds as it deems appropriate, abridge the time for publication.
[14]
These Procedures
recognize that the complaints process is designed to assist in the restoration
of public confidence that can only be achieved by a process that is both open
and accessible to the public.
[15]
This
intention is further reflected in section 9(6) of the Act. This provision reads as
follows:
Meetings of the Review Council and of its complaints
committees shall be held in private but, subject to subsection 11.1 (4),
hearings under section 11.1 shall be open to the public. 2006, c. 21,
Sched. B, s. 7.
[16]
A review of
these provisions confirms that the enabling statute and the procedural rules
arising from that statute create a “strong presumption of openness”. That
intention reflects the fact that there is a significant and continuing public
interest in the maintenance of judicial conduct proceedings that are
transparent and accessible.
[17]
The Supreme
Court of Canada decision in R. v. Mentuck,
[2001] 3 S.C.R. 442 directs that an applicant who seeks a publication ban in
such circumstances must demonstrate that his or her privacy interests outweigh
the public’s interest, including the right to free expression and the
maintenance of transparency in our legal system.
[18]
As Presenting
Counsel rightfully submits, section 9(6) of the Act directs that the proceedings “shall be open to the
public”. By virtue of the enabling
statute itself, these proceedings are intended to be public.
[19]
The Statutory Powers Procedure Act applies
to this hearing and section 9 of that Act
directs that any “oral hearing”... “shall be open to the public”. Section 6(2)
of the Act reflects that objective by
providing that the complaints process becomes public once the Notice of Hearing
is received as a numbered exhibit.
[20]
As the
hallmarks of a review process are openness and transparency, Presenting Counsel
submits that the openness of the proceedings should not be deferred until such
time as counsel is either formally retained or contemplated challenges to the
jurisdiction of the Hearing Panel have been mounted and/or determined.
[21]
In the
submission of Presenting Counsel, the Notice of Hearing is akin to an information
in a criminal case and may be viewed as simply representing an unfounded or
unproven allegation.
[22]
Presenting Counsel
also references the aforementioned Dagenais/Mentuck
test and the duty to notify the media in advance of the application of the kind
contemplated by His Worship and Mr. Sandler as a consequence of the significant
public interest in accountability and transparency that proceedings of this kind
entail.
[23]
Reference is
made by Presenting Counsel to two previous decisions of the Hearing Panels of
the Review Council, in which requests were made for orders that contents of the
Notice of Hearing not be made public. These applications include the
determination of a complaint regarding the conduct of Justice of the Peace
Solange Guberman, dated October 11, 2011, and that related to a complaint
regarding the conduct of Justice of the Peace Errol Massiah, dated April 11,
2014.
[24]
These
decisions serve to reiterate and confirm the emphasis that is placed on
maintaining openness in and public accessibility to these proceedings.
Analysis and Conclusion
[25]
In
dismissing the Respondent’s application, consideration has been given to the
following factual and legal considerations:
(i)
That open and publically accessible courts
and tribunals are the hallmark of our legal system and a coveted feature of our
democratic society;
(ii)
These principles (openness and accessibility)
have been incorporated into the Statutory
Powers Procedures Act and are reflected in the Review Council Procedures as previously noted
(see section 6);
(iii)
The Notice of Hearing in this matter was
formalized and served on September 2, 2016, some four weeks before the first
appearance without recommendation by the Complaints Committee that the matter
be considered via an in-camera hearing as authorized by section 9(1) of the Statutory Powers and Procedures Act;
(iv)
The Respondent has not met the test
applicable for a non-publication order as referenced by the Supreme Court of
Canada in Her Majesty the Queen v.
Toronto Star Newspapers, 2005 S.C.C. 41, [2005] 2 S.C.R. 188, at paragraph
26. In this regard, the Respondent has not established “why such an order is
necessary in order to prevent a serious risk to the proper administration of
justice because reasonably alternative measures will not prevent the risk” and
that the “salutary effects of the publication ban outweigh the deleterious
effects on the rights and interests of the parties and the public, including
the effects on the right to free expression, the right of the accused to a fair
and public trial, and the efficacy of the administration of justice”;
(v)
While the allegations of alleged misconduct
may cause embarrassment to the Respondent, there is nothing to suggest that the
mere receipt of the Notice of Hearing and the particulars of the complaint
will, in themselves, undermine the ability of the Respondent to discharge the
duties associated with his office. That said, the allegations relate directly
to the performance of the Respondent’s duties as a judicial officer. In these
circumstances, it cannot reasonably be expected that such conduct would not be
subject to public scrutiny;
(vi)
The request that the Notice of Hearing be
noted as Exhibit “A”, rather than public exhibit property, is concluded to
amount to the equivalent of a de facto interim publication ban that would in
essence defeat the principles of openness that are determined to be of priority
in these proceedings;
(vii)
As there is no pre-existing judicial
directive that this hearing be made “non-public”, with no advance notification
to the press, no formalized motion and no supporting materials, it is
concluded, on application of the principles of openness referenced above, that
the oral motion is dismissed and the Notice of Hearing should be received as an
exhibit and in accordance with the Procedures of the Review Council, the
complaints process will become public. In accordance with the Procedures of the
Review Council, the public notice shall not identify any named complainant or
witness due to the possibility that a complainant or witness could bring a
motion in the proceeding for an order of non-publication of his or her
identity. Accordingly, the redacted version of the Notice of Hearing, with the
exclusion of the names of any complainant, is received as Exhibit 1(B) and it
is a public exhibit.
(viii)
In reaching this determination, it is
acknowledged that the publication of a Notice of Hearing cannot be challenged
until the Notice of Hearing has been made an exhibit. In effect, the Respondent
is deprived of the ability to secure a “pre-emptive order” by way of a request
for judicial review. That circumstance alone, in the view of the Hearing Panel,
does not constitute an incident of procedural unfairness and is not concluded
to be unreasonable.
(ix)
In reaching this decision, the Hearing Panel
understands that the receipt of the Notice of Hearing as an exhibit effectively
amounts to the specifics of the complaint being made public and may negate the
efficacy of any future application for non-publication. It is acknowledged that
the Notice of Hearing and the attached Appendix set out in detail the particulars
of the complaint. That is effectively the result of the receipt of the Notice
of Hearing as a public numbered exhibit. The Hearing Panel is mindful of that
fact.
Conclusion
[26]
While the
publication of the allegations referenced in the Notice of Hearing may cause
embarrassment to Justice of the Peace Foulds, the potential for embarrassment
alone is not a sufficient reason to grant the requested order.
[27]
The
reference to the potential undermining of His Worship’s ability to discharge
the duties of his office is similarly concluded to be speculative and without
any factual foundation. We conclude, on
the basis of the review of the legal principles cited, that proceedings of this
nature should be open to the public and the publication of the particulars in
the Notice of Hearing and the Notice of Hearing itself should not be restricted
in any way.
Dated
this 19th day of October, 2016
HEARING PANEL:
The
Honourable Justice Peter Tetley, Chair
Her
Worship Monique Seguin, Justice of the Peace Member
Ms.
Jenny Gumbs, Community Member
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