CITATION: Barriolhet v. Justices of the Peace Review Council, 2011 ONSC 3246
COURT FILE NO.: 543/09
DATE: 20110608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON and low JJ.
B E T W E E N:
JUSTICE OF THE PEACE JORGE BARRIOLHET
Applicant
- and -
JUSTICES OF THE PEACE REVIEW COUNCIL AND THE LIEUTENANT GOVERNOR BY AND WITH THE ADVICE AND CONCURRENCE OF THE EXECUTIVE COUNCIL OF THE LEGISLATIVE ASSEMBLY FOR THE PROVINCE OF ONTARIO AND THE ATTORNEY GENERAL OF ONTARIO
Respondents
Brian Greenspan, for the Applicant
Douglas Hunt, Q.C., for the Respondent Justices of the Peace Review Council
Kim Twohig, for the Attorney General of Ontario
HEARD AT TORONTO: May 26, 2011
Swinton J.:
Overview
[1] The applicant, former Justice of the Peace Jorge Barriolhet, has brought an application for judicial review, seeking an order quashing Order-in-Council 1706/2009, which revoked his appointment as a justice of peace following the recommendation of a Hearing Panel of the Justices of the Peace Review Council.
[2] The applicant argues that the Hearing Panel erred in denying his application for severance, gave inadequate reasons for its decision on the merits and arrived at an unreasonable disposition. As well, he argues that he was denied natural justice because he was not given an opportunity to make submissions before the Order-in-Council was adopted. For the reasons that follow, I would dismiss the application for judicial review.
Preliminary Order
[3] At the outset of the hearing, an issue was raised about the proper parties to this application for judicial review, given the relief sought. On consent, this Court orders that the Lieutenant Governor by and with the Advice and Concurrence of the Executive Council of the Legislative Assembly for the Province of Ontario and the Attorney General of Ontario are added as respondents to this judicial review application, and the title of the proceeding is amended accordingly.
The Statutory Framework
[4] The Justices of the Peace Act, R.S.O. 1990, c. J.4 ("the Act") provides for the creation of the Justices of the Peace Review Council, whose functions include the power to establish complaints committees and to investigate complaints (s. 8(2)(b)). Pursuant to s. 11(15), a Complaints Committee, following an investigation, may order a formal hearing into a complaint by a Hearing Panel.
[5] A Hearing Panel is composed of a judge, as chair, a justice of the peace, and a member who is a judge, lawyer or a member of the public (s. 11.1(2)). The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, except ss. 4 and 28, applies to the hearing (s. 11.1(4)). After a hearing, the Panel may dismiss the complaint or, if it upholds the complaint, may make one of the following dispositions pursuant to s. 11.1(10):
a) warn the justice of the peace;
(b) reprimand the justice of the peace;
(c) order the justice of the peace to apologize to the complainant or to any other person;
(d) order that the justice of the peace take specified measures, such as receiving education or treatment, as a condition of continuing to sit as a justice of the peace;
(e) suspend the justice of the peace with pay, for any period;
(f) suspend the justice of the peace without pay, but with benefits, for a period up to 30 days; or
(g) recommend to the Attorney General that the justice of the peace be removed from office in accordance with section 11.2.
[6] Section 11.2 deals with the removal of a justice of peace from office. Pursuant to s. 11.2 (1), a justice of the peace "may" be removed from office only by order of the Lieutenant Governor in Council. The conditions for such an order are set out in s. 11.2(2):
The order may be made only if,
(a) a complaint about the justice of the peace has been made to the Review Council; and
(b) a hearing panel, after a hearing under section 11.1, recommends to the Attorney General that the justice of the peace be removed on the ground that he or she has become incapacitated or disabled from the due execution of his or her office by reason of,
(i) inability, because of a disability, to perform the essential duties of his or her office, if an order to accommodate the justice of the peace's needs would not remedy the inability, or could not be made because it would impose undue hardship on the person responsible for meeting those needs, or was made but did not remedy the inability,
(ii) conduct that is incompatible with the due execution of his or her office, or
(iii) failure to perform the duties of his or her office.
Background Facts
[7] The applicant was appointed a justice of the peace in 2002. Prior to his appointment, he had operated J.H. Barriolhet & Associates, a paralegal firm, which at one time operated under the name "Stop All Traffic Tickets & Associates."
[8] A Hearing Panel was appointed to determine an allegation that the applicant had conducted himself in a manner that was incompatible with the due execution of his office, and therefore, he had become incapacitated or disabled from due execution of his office. The Notice of Hearing set out particulars in 19 paragraphs and ended with paragraph 20, which states,
The above-noted conduct as set out in paragraphs 1 through 19 is incompatible with the due execution of your duties and has brought the administration of justice into disrepute.
[9] The applicant has taken the position throughout these proceedings that the particulars allege two categories of misconduct: a conflict of interest complaint relating to his interactions with a paralegal company operated by his wife operating under the name "Stop All Traffic Ticket & Associates" ("the paralegal company") and the Evans complaint relating to his involvement in assisting a family friend in a matter under the Provincial Offences Act, R.S.O. 1990, c. P.33.
[10] The conflict of interest complaint arose from allegations about the applicant's continued involvement with the paralegal company following his appointment, including allegations that he had assisted an employee of the company, Consuela Hernandez, with cases, and he had failed to recuse himself from cases in which agents of the paralegal company appeared.
[11] The Evans complaint arose from allegations that the applicant had hired and instructed Ms. Hernandez to request the re-opening of a careless driving conviction on behalf of a family friend, Chad Evans. The applicant was alleged to have contacted the presiding Justice of the Peace in Brantford and requested that she re-open the matter, even though Mr. Evans had not signed the necessary affidavit. It was alleged that the applicant also attempted to cure the defect by offering to sign the affidavit on behalf of Mr. Evans.
The Severance Decision
[12] Prior to the commencement of the hearing, the applicant brought an application to sever the conflict of interest allegations from the Evans allegations. On January 9, 2009, the Hearing Panel dismissed the application with reasons.
[13] The Hearing Panel stated that it would consider and apply the factors considered in severing a multiple count indictment in a criminal trial. It found that there was a sufficient nexus of fact and law between the Evans allegations and the conflict of interest allegations to justify them being heard together, especially because of their proximity in time and the involvement of Ms. Hernandez and the applicant's former business in all the allegations.
[14] The Hearing Panel found that hearing the allegations together would not hinder the applicant's defense, noting that there was no suggestion that the defenses would be antagonistic or incompatible (Transcript, pp. 103-104). In the Panel's view, holding a single hearing would provide optimum fairness in the circumstances of the case.
The Decision on the Merits and the Disposition
[15] An eight day hearing was held. The applicant did not call evidence and, at the close of the case, he made three admissions that amounted to judicial misconduct. He acknowledged that he had, from time to time, improperly assisted his wife, Martha Mateluna, by providing her with general advice respecting court documents. He also acknowledged that he had improperly signed orders in the intake office and presided over joint submissions in respect of individuals represented by his wife's paralegal company. Finally, he acknowledged that he had improperly intervened in the Evans matter and improperly communicated with the presiding Justice of the Peace. However, he denied offering to swear an affidavit on behalf of Mr. Evans.
[16] The Hearing Panel found that twelve particulars in the Notice of Hearing had been proven and that judicial misconduct had been established. In its reasons, the Panel made findings beyond the applicant's admissions of judicial misconduct. For example, it found that the applicant had instructed Ms. Hernandez to represent Mr. Evans on the re-opening request, had offered to sign an affidavit for Mr. Evans, and had asked the presiding Justice of the Peace to waive the requirement that the defendant Mr. Evans execute an affidavit as required by legislation.
[17] The Hearing Panel also concluded that the applicant was actively involved in Ms. Hernandez's employment as a paralegal, that he was involved with individual clients of Stop All Traffic Tickets following his appointment, that he improperly assisted his wife by advising her about court documents, and that he improperly assisted Ms. Hernandez in respect of individual clients. The Hearing Panel also found that the applicant knew, prior to his appointment, that he should relinquish any interests in any paralegal organization.
[18] In its disposition decision dated October 15, 2009, the Hearing Panel stated (at para. 27):
The impartiality, integrity and independence of the judiciary and the confidence of individual members of the public appearing before this Justice of the Peace have, we conclude, been irreparably undermined by His Worship Barriolhet's misconduct. There were additional findings of misconduct in our Reasons for Decision, but it is the misconduct in the Chad Evans matter which we find to be the most egregious. We conclude that such misconduct renders His Worship Barriolhet incapable of performing the duties of his office.
[19] The Hearing Panel concluded that in the case of the Evans matter"the most serious sanction is the only remedy which, in our view, would restore the public's confidence in the administration of justice" (at para. 28).
The Order-in-Council
[20] On October 29, 2009, the applicant was removed from office by way of Order-in-Council 1706/2009. He was given no opportunity to make submissions to the Attorney General before this occurred, nor was he given notice that a recommendation was being placed before the Executive Council.
The Issues
[21] This application raises the following issues:
Did the Hearing Panel err in refusing to sever the conflict of interest allegations from the Evans allegations?
Were the reasons of the Hearing Panel inadequate because of the treatment of the evidence of witnesses Hernandez and Alvarez?
Was the disposition unreasonable?
Was there a denial of procedural fairness because the applicant had no opportunity to respond to the Hearing Panel's recommendation before it was implemented?
Issue No. 1: Did the Hearing Panel err in refusing to sever the conflict of interest allegations from the Evans allegations?
[22] The applicant argues that the standard of review with respect to this issue is correctness, as the Hearing Panel was required to apply general principles of law concerning severance.
[23] The respondent Council submits that the determination whether to grant severance of some of the allegations is a question of mixed fact and law that attracts a standard of review of reasonableness. That was the standard applied in Romain v. Ontario (Lieutenant Governor), 2005 31588 (ON SCDC), [2005] O.J. No. 3721 (Div. Ct.), a decision under the regime in existence prior to the current Act.
[24] I accept that the Hearing Panel was required to be correct in the legal principles that it applied. However, the application of those principles requires a consideration of the facts of the present case and an exercise of the Hearing Panel's discretion. Therefore, this Court should intervene only if the Hearing Panel applied incorrect legal principles or came to an unreasonable decision.
[25] The applicant argues that the Hearing Panel should have taken into consideration the factors set out in R. v. Last (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 (S.C.C.), a judgment released after the ruling of the Hearing Panel. In Last, the Supreme Court set out the standard for intervention in a criminal case where a judge has made a decision on severance: a reviewing court should intervene when the judge has failed to act judicially in making the severance ruling, or where the ruling has resulted in an injustice (at para. 15). The Court also commented on the broad discretion of the trial judge, instructing a reviewing court to intervene only if the judge erred on a question of law or made an unreasonable decision (at para. 21).
[26] The concern in a criminal case is whether the interests of justice require severance. The onus is on the applicant to show that the interests of justice require severance. In Last, the Court set out a list of factors to be considered when balancing the interests of the accused against the public interest of a single trial (at para. 18). They include:
• the general prejudice to the accused
• the legal and factual nexus between the counts
• the complexity of the evidence
• whether the accused intends to testify on one count but not the other
• the possibility of inconsistent verdicts
• the desire to avoid a multiplicity of proceedings
• the use of similar fact evidence at trial
• the length of the trial having regard to the evidence called
• the potential prejudice to the accused with respect to the right to be tried within a reasonable time and
• the existence of antagonistic defences as between co-accused.
[27] The applicant argues that the Hearing Panel failed to consider all these factors and focused just on the questions of sufficient nexus and the likely incompatibility of the applicant's defences if the allegations were heard together. He argues that the allegations were not connected in any meaningful way. He also argued that the Hearing Panel failed to consider the impact of the failure to grant severance on his ability to conduct his own defence, in particular his decision whether or not to testify.
[28] The Hearing Panel applied the correct legal test to determine whether to sever the allegations. While nexus and prejudice were the main focus in its reasons, the Panel stated that it had considered a number of factors: the legal nexus between the allegations, the complexity of the issues, the possibility of inconsistent findings, the desire to avoid a multiplicity of proceedings and the possibility of general prejudice to the applicant (Transcript, p. 100).
[29] In my view, the decision of the Hearing Panel was reasonable. There was a close factual nexus between the conflict of interest allegations and the Evans matter. Ms. Hernandez, an employee of the paralegal company with which the applicant was alleged to have had an inappropriate involvement, was involved in the Evans matter. Moreover, the Evans matter was not an isolated event. Like the other allegations, it was part of a course of conduct that related to the applicant's capacity to continue in judicial office.
[30] This is not a case where there was a possibility of inconsistent verdicts if severance were granted, although severance could result in inconsistent findings with respect to the credibility and reliability of Ms. Hernandez's evidence.
[31] The Hearing Panel had to determine whether it was in the interests of justice to order severance. In coming to its decision, it could reasonably have regard to the nature of judicial misconduct proceedings and, in particular, their remedial nature (see Ruffo v. Conseil de la magistrature, 1995 49 (SCC), [1995] 4 S.C.R. 267 at para. 68). In the present case, the allegations are not like counts in an indictment that allege separate offences. Rather, there was one allegation in the Notice of Hearing: that the applicant had conducted himself in a manner incompatible with the due exercise of his office. The particulars were reasonably considered together, so that a determination could be made whether his conduct, taken as a whole, warranted a recommendation that he be removed from office.
[32] The Hearing Panel weighed against that consideration the question whether there would be serious prejudice to the applicant were severance refused. The Panel correctly observed that there is a greater risk of prejudice where there is a trial of an accused on multiple counts before a jury than in a hearing by judge alone. In the present case, the Panel was composed of a judge, a justice of the peace and a lawyer.
[33] While the applicant argues that the refusal to grant severance hampered his defence, because it hampered his decision whether to testify, this is but one factor to be considered in the balance (Last at para. 27). Moreover, as counsel for the Justices of the Peace Review Council submitted, the applicant could have asked that a procedure be put in place to permit him to testify only to one complaint, as in Stone and Law Society of Upper Canada (1979), 1979 1949 (ON SC), 26 O.R. (2d) 166 (Div. Ct.), had he elected to testify.
[34] In conclusion, the decision of the Hearing Panel on the application to sever fell within the range of reasonable, acceptable outcomes.
Issue No. 2: Were the reasons of the Hearing Panel inadequate because of the treatment of the evidence of witnesses Hernandez and Alvarez?
[35] The applicant argues that the Hearing Panel failed, in any meaningful way, to satisfy the functional requirement of reasons for judgment. First, there were significant inconsistencies in the evidence of Ms. Hernandez which went to her credibility, but were not addressed. Second, the reasons do not address how Ms. Alvarez's evidence affected Ms. Hernandez's credibility and reliability.
[36] In my view, there is no merit to the argument that the Hearing Panel's reasons were inadequate. The members set out their findings of fact and the evidence on which those findings are based in detail.
[37] The Hearing Panel did not find the evidence of Ms. Alvarez to be helpful, as she had left the employ of the paralegal company in 2004, several years before Ms. Hernandez commenced her employment in 2006. They were entitled to come to that conclusion.
[38] The Hearing Panel was aware of frailties in the testimony of Ms. Hernandez and did not accept her evidence on every issue. When finding that the applicant was actively involved in her employment as a paralegal with Stop All Traffic Ticket, the Hearing Panel considered both her testimony and corroborating documents. For example, with respect to client Cornejo, the Hearing Panel found that the applicant made handwritten corrections on pleadings submitted on the client's behalf by Ms. Hernandez.
[39] The applicant takes issue with a statement in the reasons that the Hearing Panel accepted the "uncontradicted evidence" of Justice of the Peace Miller in the Evans matter, and the fact that the Panel went on to find that the applicant offered to sign the affidavit. According to the applicant, Justice of the Peace Miller conceded in cross-examination that she might have misunderstood the applicant because of his accent.
[40] The evidence of Justice of the Peace Miller was uncontradicted in that the applicant led no evidence to refute what she said. The Hearing Panel, having heard her full testimony and having considered the email she wrote shortly after speaking to the applicant, was entitled to conclude that the applicant offered to sign the affidavit.
[41] In sum, the reasons of the Hearing Panel are adequate to permit meaningful judicial review, and the decision on the merits was a reasonable one.
Issue No. 3: Was the disposition unreasonable?
[42] The standard of review on this issue is reasonableness.
[43] The applicant argues that the recommendation of removal was disproportionate to other penalties imposed by the Council in similar circumstances. He relies on another decision of a Hearing Panel in a matter decided subsequent to the recommendation in his case, In the Matter of a Hearing Respecting the Conduct of Justice of the Peace Paul A. Welsh (December 9, 2009).
[44] In the present case, the Hearing Panel determined that the removal of the applicant from office was necessary to restore the public's confidence in the judiciary and the administration of justice. Given its findings with respect to misconduct, especially the applicant's conduct in the Evans matter, the disposition by the Hearing Panel was reasonable.
[45] In the Welsh case relied on by the applicant, the Panel had concluded that the misconduct was out of character. In contrast, in the present case, the Hearing Panel concluded that the applicant did not have a momentary lapse of judgment in the Evans matter.
Issue No. 4: Was there a denial of procedural fairness because the applicant had no opportunity to respond to the Hearing Panel's recommendation before it was implemented?
[46] The applicant points to the word "may" in s. 11.2 of the Act as showing that the Lieutenant Governor in Council has a discretion to exercise after receiving the recommendation of the Hearing Panel. He argues that procedural fairness requires that he should have been given an opportunity to make submissions to the Attorney General prior to the adoption of the Order-in-Council removing him from office. Moreover, he was given no notice before the recommendation of the Hearing Panel was placed before the Executive Council, so that he had no opportunity to make submissions to the decision maker.
[47] In determining whether there has been a denial of procedural fairness, consideration should be given to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23-27: the nature of the decision being made and the process followed, the nature of the statutory scheme, the importance of the decision to the individual, legitimate expectations, and the choices of procedure made by the decision maker.
[48] While the decision made by the Executive Council to remove the applicant from office is of utmost importance to him, this is not a case where procedural fairness requires that the justice of the peace have an opportunity to make submissions to the Attorney General or the Executive Council before the removal decision is made. When one looks at the statutory scheme, it is evident that the applicant's rights to procedural fairness arise in the proceedings before the Justices of the Peace Review Council and, in particular, before the Hearing Panel.
[49] Justices of the peace exercise judicial functions directly related to the enforcement of the law (Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857 at para. 24). The statutory scheme that has been put in place protects the constitutional principle of judicial independence, in particular, the core principle of security of tenure (Valente v. The Queen, 1985 25 (SCC), [1985] 2 S.C.R. 673 at 698). As the Supreme Court of Canada observed in Ell, judicial independence is a means to maintain public confidence in the administration of justice (at para. 29).
[50] The complaints and hearing process in the Act ensures that a justice of the peace cannot be removed until an independent tribunal has determined that there is just cause for removal. That determination can be made only after a hearing at which the justice of the peace has a full opportunity to be heard. Thus, the process chosen ensures that tenure is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.
[51] The legislation does not give the Attorney General any power to hear an appeal from the recommendation of the Hearing Panel nor to make a separate recommendation to the Executive Council. His or her function is to convey the Hearing Panel's report to the Executive Council. The Act does not contemplate notice to the justice of the peace nor a further opportunity to make submissions. Indeed, the process suggested by the applicant would undermine the principle of judicial independence from the political arm of government.
[52] If the justice of the peace takes issue with the report of the Hearing Panel, the remedy is to seek judicial review. While the applicant submitted that he should have been given notice of the proceedings before the Executive Council so that he could request a delay pending judicial review, there is no indication that he requested any delay from the Attorney General. Moreover, the better forum for such a request, in my view, is before the Hearing Panel, where a request could be made to delay the implementation of the recommendation so that proceedings before the courts could be pursued.
Conclusion
[53] For these reasons, the application for judicial review is dismissed. No party seeks costs.
Swinton J.
Aston J.
Low J.
Released: June , 2011
CITATION: Barriolhet v. Justices of the Peace Review Council, 2011 ONSC 3246
COURT FILE NO.: 543/09
DATE: 20110608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
aston, swinton and low jj.
B E T W E E N:
JUSTICE OF THE PEACE JORGE BARRIOLHET
Applicant
- and -
JUSTICES OF THE PEACE REVIEW COUNCIL AND THE LIEUTENANT GOVERNOR BY AND WITH THE ADVICE AND CONCURRENCE OF THE EXECUTIVE COUNCIL OF THE LEGISLATIVE ASSEMBLY FOR THE PROVINCE OF ONTARIO AND THE ATTORNEY GENERAL OF ONTARIO
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: June 8, 2011