COURT FILE NO.: 766/03

DATE: 20050906

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MATLOW AND E. MACDONALD JJ.

B E T W E E N:

HIS WORSHIP JUSTICE OF THE PEACE RICK C. ROMAIN

Applicant

• and -

LIEUTENANT GOVERNOR BY AND WITH THE ADVICE AND CONCURRENCE OF THE EXECUTIVE COUNCIL AND THE ATTORNEY GENERAL OF THE PROVINCE OF ONTARIO

THE COMMISSION OF INQUIRY RE: HIS WORSHIP RICK C. ROMAIN, A JUSTICE OF THE PEACE

Respondents

David E. Harris, for the Applicant

Gavin MacKenzie, for the Commission of Inquiry

Sean Hanley for the Attorney General

HEARD at Toronto: April 27, 2005

O’DRISCOLL J.:

I. Nature of Proceedings

1The Applicant brings an application for judicial review seeking an order quashing the Order in Council of the Lieutenant Governor in Council (LGIC), dated November 27, 2003, removing the Applicant from his office as a Justice of the Peace. The impugned order was based on the report of Commissioner Otter, dated July 17, 2003. The report, issued following an inquiry, found misconduct on the part of the Applicant of such a nature as to disable him from continuing to carry out the office of a Justice of the Peace.

II. The Relevant Sections of the Justice of the Peace Act, R.S.O. 1990, c. J.4 (the Act) Applicable to Such Inquiry

s. 12. (1) The Lieutenant Governor in Council may appoint a provincial judge to inquire into the question whether there has been misconduct by a justice of the peace.

(2) The Public Inquiries Act applies to the inquiry.

(3) The report of the inquiry may recommend that the Lieutenant Governor in Council remove the justice of the peace from office in accordance with section 8 or that the Review Council implement a disposition under subsection (3.3) [i.e. warn, reprimand, suspend with or without pay.]

s. 8. (1) A justice of the peace may be removed from office only by order of the Lieutenant Governor in Council.

(2) The order may be made only if,

(a) a complaint regarding the justice of the peace has been made to the Review Council; and

(b) the removal is recommended, following an inquiry held under section 12, on the ground that the justice of the peace has become incapacitated or disabled from the due execution of his or her office by reason of,

(i) infirmity,

(ii) conduct that is incompatible with the execution of the duties of his or her office,

III. Background and Chronology

2The Applicant, now 52 years of age, was appointed by an Order in Council on November 26, 1987. He became a full time Justice of the Peace on December 1, 1994. From then on, he performed a full range of functions required of that office including presiding in assignment court, bail court, in-take court and Provincial Offences Court.

3The Justices of the Peace Review Council (Review Council), established under s. 9 of the Act, received three separate complaints about the Applicant’s conduct while presiding in a courtroom. The complaints were summarized in the “Statement of Agreed Facts” as follows:

1. Whether Justice of the Peace Romain [on April 19, 2000] made a decision to convict and imposed sentence without hearing evidence or argument in a case in which the defendant was represented by a court agent who was asking that the case be transferred to another court as a result of an order prohibiting the agent from appearing before Justice of the Peace Romain.

2. Whether Justice of the Peace Romain [on July 4, 2001] ordered a law student who informed Justice of the Peace Romain that he had no instructions to act for the defendant at trial, that he must remain for the duration of the trial, and refused to allow the law student to telephone his firm for instructions or to leave the courtroom to use the washroom, in a case involving a defendant charged with being intoxicated in a public place.

3. Whether Justice of the Peace Romain [on March 21, 2002] made a decision to convict and imposed sentence without hearing evidence or argument because the defendant, who was charged with a traffic offence, refused to remove his head covering on the ground that it was a religious head covering and that an order that he remove it would be contrary to his rights under the Charter of Rights and Freedoms.

4Regarding each complaint, the Review Council recommended to the Attorney General of Ontario that an inquiry be held under s. 12(1) of the Act to determine whether or not there had been misconduct on the part of the Applicant.

5On December 18, 2002, the LGIC appointed Judge R.J. Otter of the Ontario Court of Justice to be the Commissioner to hold a hearing regarding the three complaints.

6The Commissioner, with the powers set out in the Inquiries Act, held the inquiry on March 26, 27 and 28, 2002. The Applicant had counsel. The Commission had counsel. The inquiry proceeded on the basis of an “Agreed Statement of Facts”.

7Commission counsel submitted that each of the three complaints had been established and amounted to misconduct on the part of the Applicant. However, Commission counsel declined to take any position on penalty. The Commissioner filed his Report with the LGIC on July 17, 2003.

IV. Commissioner’s Report and his Findings of Misconduct

8The Commissioner wrote:

Neither counsel seriously challenge that all three issues outlined in paragraphs 9(i) to 9(iii) inclusive of the Statement of Agreed Facts should be answered in the affirmative. A full analysis of those facts together with the oral testimony of all witnesses and the filed exhibits supports that conclusion. I conclude that each question should be answered affirmatively. (Report of Commissioner: page 16)

… But the facts and findings give rise to a troubling pattern of conduct that warrants a deeper analysis than just the specific response to these three complaints. (Ibid.: page 17)

Firstly, this is not an isolated incident but three separate incidents. …

Secondly, the temporal framework of these incidents is disconcerting. They occurred over a period of approximately two years: April 19^th, 2000, July 4^th, 2001 and March 21^st, 2002. …

Thirdly, it is clear on the facts that the incidents cannot simply be attributable to inexperience or a lack of knowledge that might be the case of someone newly appointed to office. Justice of the Peace Romain had been a Justice of the Peace for 12.5 years at the time of the incident with the law student, Jonathan Linden and over 14.5 years at the time of the incident with Mr. Ross. …

Fourthly, each incident in itself is serious but even more so when all three are considered cumulatively. Underlying each incident is a disturbing pattern of denials of due process: the illegal detention of a student in a courtroom, coupled with the threat to use agents of the state, police officers, to enforce that detention; the denial of a right to a hearing to a defendant following a disagreement with his agent; the refusal to allow an explanation of a religious justification to wear a head covering in court, followed by a denial of a hearing of the trial in response to that assertion of religious freedom by the defendant. Each in itself is troubling, but cumulatively they show a course of conduct of irrational, arbitrary and vindictive abuses of judicial power, denying defendants fundamental fairness of judicial process.

All three complaints would not have occurred with the exercise of common sense and good judgment. (Ibid.: page 17-18)

Fifthly, despite the rehabilitative and educative steps that Justice of the Peace Romain has taken and the length of time he has had to reflect on his handling of these cases, there remains a troubling tendency on his part to minimize and attempt to rationalize or justify what he did…….

(Ibid.: page 19)

Finally, all these incidents occurred in [sic] public courtroom while in session. A judicial officer in the exercise of the powers of judicial office is always in a position [sic] power vis-à-vis all others in a courtroom, including law students, paralegals, unrepresented defendants and court staff. All three complainants were justifiably upset by their mistreatment in Justice of the Peace Romain’s courtroom……

(Ibid.: page 19)

The sole purpose of this inquiry is to ascertain whether or not there has been misconduct in regards to these particular complaints and if so, what disposition should follow.

(Ibid.: page 20)

In reviewing the three complaints before this commission individually and cumulatively, I have no difficulty concluding that in each of the incidents Justice of the Peace Romain’s behaviour constituted misconduct.

(Ibid.: page 23)

V. The Commissioner’s Report and Penalty

9Having found that the evidence before him established “misconduct”, it was then the duty of the Commissioner to decide, as stipulated by s. 12(7) and s. 8(2) of the Act, the nature of the penalty to be recommended to the Review Council or to the LGIC. Did the nature of the misconduct call for a warning or a reprimand or a suspension with or without pay as provided under s. 12(3.3) of the Act? Or, did the nature of the misconduct require a recommendation by the Commissioner to the LGIC that the Justice of the Peace in question be removed from office because he “has become incapacitated or disabled from the execution of his office by reason of conduct that is incompatible with the execution of the duties of his office (s. 8(2)(b)(i))”? In considering this issue, the Commissioner wrote:

It is vitally important for a justice of the peace to conduct himself or herself in a manner that ensures the public has and retains confidence in the administration of justice. (Ibid.: page 21)

Given the critically important role of justice of the peace at the gateway to our judicial system, I am of the view that there is no reason that a justice of the peace should not be held to the same high standard of conduct as all other judicial officers. (Ibid.: page 21)

10The Commissioner then referred to page 42 of the June 1996 Report of the Inquiry Committee of the Canadian Judicial Council appointed under s. 63(1) of the Judges Act, R.S. 1985, c. J. 1 when reporting into the conduct of Mr. Justice Jean Bienvenue. There, the test employed was:

Is the conduct alleged so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office?

Of the test employed in the Bienvenue case, Commissioner Otter wrote:

I am of the view that it would be appropriate to adopt the same criterion to this case. [Report: p. 22]

11In the Bienvenue case, the Committee of Inquiry concluded that the judge had been incapacitated or disabled from the due execution of his duties of office. It was found that his conduct had disqualified him from holding office as a Superior Court Judge. In essence, because of the nature of his misconduct, Bienvenue J.’s usefulness as a Superior Court Judge had come to an end.

12Commissioner Otter considered the cumulative effect of the three complaints and quoted from the 1985 Report of Mr. Justice Houlden reporting on the conduct of Ontario Provincial Judge Lloyd Henriksen. In his report, Houlden J.A. quoted from the Supreme Court of California:

The number of wrongful acts is relevant to determining whether they were merely isolated occurrences or, instead, part of a course of conduct establishing lack of temperament and ability to perform judicial functions in an even-handed manner.

13Commissioner Otter was of the view that the cumulative effect was a significant factor to be considered in this case.

14The Commissioner, in reviewing the three complaints and his recommendation to the LGIC, wrote:

His conduct as evidenced in these three complaints is destructive of the impartiality, integrity and independence of the judicial role and would undermine public confidence in the administration of justice. (Ibid.: page 23)

In my view, despite the letters of commendation and his rehabilitative steps, a reprimand does not adequately reflect the gravity and extent of the misconduct. Given the pattern of these three complaints, over a period of almost two years by an experienced justice of the peace, in the face of complaints pending, the individual and collective seriousness of the incidents and a continuing reluctance by Justice of the Peace Romain to fully accept responsibility for his conduct, I am of the view that a reprimand is insufficient. Justice of the Peace Romain’s misconduct evidenced by these complaints has undermined confidence in him in his judicial role and strongly contributed to damaging public confidence in the judicial system. …. His remedial steps are insufficient and come too late to restore public confidence in him as a judicial officer. (Ibid.: page 24)

15The Commissioner filed his report with LGIC on July 17, 2003. On November 27, 2003, the LGIC passed an Order in Council removing the Applicant from the office of Justice of the Peace. On the same day, the Commissioner’s report was made public.

VI. Issues Put Forward by Counsel for the Applicant

16In his factum, counsel for the Applicant lists his main issues on this application for judicial review as follows:

“Issue #1: The Commissioner Was Wrong in Holding That a Judge Standard of Conduct, as Opposed to a Justice of the Peace Standard, Was Applicable.

Issue #2: The Commissioner’s Recommendation was Unreasonable in Light of Four Errors Made in Characterizing the Seriousness of the Applicant’s Conduct…

Issue #3: The Commissioner Erred in Not Evaluating the Damage to Public Confidence Caused by the Applicant’s Conduct, and Erred in Not Balancing Against this the Importance of Preserving Judicial Independence.

Issue #4: The Commissioner’s Approach to the Question of Remorse Was Unreasonable.”

VII. Standard of Review to be Utilized by the Divisional Court

17The Act has neither a privative clause nor a statutory right of appeal. The questions and the issues before Commissioner Otter involved questions of mixed fact and law and whether the misconduct justified removal from office. These findings and decisions are dependent upon findings of fact made by the Commissioner based, in large part, upon his assessment of the testimony of the witnesses who were before him. This included matters of credibility.

18In my view, the following decisions of the Supreme Court of Canada call for a high level of deference to the Commissioner’s findings. Jurisdiction is not an issue. In my view, the standard of review is one of reasonableness.

Pushpanathan v. Canada (Minister of Citizen and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, at para. 30

Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 49

Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 39

Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 31

VIII. Did the Commissioner “raise the bar too high”?

19In my view, this question is in the abstract and defies an answer. The Act requires the Commissioner to hear the evidence and make findings. If the findings amount to misconduct, the next question is: should the penalty be something less than a recommendation for removal or has the misconduct caused the Justice of the Peace to be incapacitated or disabled from fulfilling his duties because the misconduct is incompatible with the continued execution of the duties of office. All this is determined on a case by case basis.

20With respect, I adopt the following from the factum of counsel for the Commission:

29. … it was reasonable for the Commissioner to consider authorities relating to the behavioural standards of other judicial officers. Justices of the peace make decisions affecting the liberty of citizens, they determine whether process will issue, they decide whether to issue search warrants and, if designated by the Lieutenant Governor in Council as was the Applicant, they preside in court at trial on a number of matters. Public respect and confidence are no less important for a justice of the peace than for a judge.

In my view, it was reasonable for the Commissioner to conclude that the misconduct of the Applicant involved serious misuse of his powers as a Justice of the Peace and that the misconduct cannot be characterized as a misunderstanding or misapprehension of the law.

IX. Conclusion

21In my view, none of the allegations set out in Issues #l to #4 inclusive, submitted by counsel for the Applicant, has been made out. On the record before him, the conclusions reached by Commissioner Otter were reasonable. The application for judicial review of the LGIC’s Order in Council, dated November 27, 2003, is dismissed.

X. Costs

22Neither party asked for costs. Accordingly, no order as to costs is made.

O’Driscoll J.

Matlow J.

E. Macdonald J.

Released:

COURT FILE NO.: 766/03

DATE: 20050906

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, matlow and e. macdonald jj.