COURT OF APPEAL FOR ONTARIO

CITATION: Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425

DATE: 20230615

DOCKET: C70248

Lauwers, Roberts and Miller JJ.A.

BETWEEN

Justice of the Peace Julie Lauzon

Applicant (Appellant)

and

Justices of the Peace Review Council

Respondent (Respondent)

Lawrence Greenspon and Paul Daly, for the appellant

Adam Goldenberg and Adam Dobkin, for the respondent

Scott Rollwagen and Aoife Quinn, for the intervener The Association of Justices of the Peace of Ontario

Heard: September 27, 2022

On appeal from the order of the Divisional Court (Justice David Aston, Justice Katherine E. Swinton and Justice Freya Kristjanson), dated September 27, 2021, with reasons reported at 2021 ONSC 6174, dismissing an application for judicial review of decisions of the Justices of the Peace Review Council dated May 7, 2020, and November 27, 2020.

Table of Contents

I. OVERVIEW.. 4

(1) Procedural history. 4

(2) The issue. 7

II. THE STANDARD OF REVIEW.. 9

III. THE ISSUE: WERE THE HEARING PANEL’S DECISIONS REASONABLE?. 10

(1) The approach in Vavilov. 11

(2) The role to be played by judicial independence. 14

(a) Judicial independence as a constitutional necessity. 16

(b) The precautionary aspect of judicial independence. 17

(c) The role of judicial independence in this case. 19

(3) Judicial impartiality and bias. 22

IV. ANALYSIS. 23

(1) The finding that JP Lauzon is biased was unreasonable. 23

(a) Findings of the Hearing Panel that are warranted on the evidence. 24

(b) The Hearing Panel’s approach to the evidence was unreasonable. 26

(i) The Hearing Panel did not take a holistic approach to the article. 27

(ii) The Hearing Panel discounted the factual veracity of JP Lauzon’s criticisms 28

(iii) The Hearing Panel’s views of JP Lauzon’s misconduct escalated. 32

(iv) The Panel dismissed JP Lauzon’s positive motivation as a significant factor in their analysis. 34

(v) The Hearing Panel was not even-handed in its approach to the evidence 35

(c) The finding of irremediable bias was not reasonable. 36

(i) The test for bias is objective, not subjective. 36

(ii) There is no support for bias in the evidence cited. 39

(iii) There is no evidence of operative bias. 43

(iv) There was no post-complaint evidence of bias. 44

(2) The majority’s assessment of the seriousness of JP Lauzon’s misconduct was not reasonable. 45

(a) The precedents. 46

(i) Overview. 47

(ii) Discriminatory and sexist speech. 47

(iii) Participation in illegality. 50

(iv) Self-dealing. 51

(v) Neglect of office. 53

(vi) Repeated misconduct 55

(vii) Combined instances of misconduct 55

(viii) Summary of precedents. 56

(b) The aggravating and mitigating factors. 56

(3) The proportionality analysis required by Doré. 60

(a) Doré restated. 61

(b) The application of Doré. 65

(i) Assessing the negative or deleterious effects of JP Lauzon’s removal 68

(ii) Assessing the positive effects or benefits of JP Lauzon’s removal in terms of the public good. 70

(iii) The proportionality analysis. 71

V. DISPOSITION. 75

APPENDIX OF TRANSCRIPT REFERENCES. 77

Lauwers J.A.:

I. OVERVIEW

[1] Her Worship Julie Lauzon should be sitting as a justice of the peace. That she is not sitting is an injustice to be remedied.

[2] These reasons lay out at some length the governing principles respecting judicial discipline and their application in order to ensure that the errors made in this proceeding can be avoided in the future.

(1) Procedural history

[3] Julie Lauzon was appointed as a justice of the peace in 2011. In 2016, after several years of presiding in bail court, she wrote an article sharply critical of the operation of bail courts and the conduct of some Crown prosecutors in her court, which was published in the National Post. Three complaints about the article were made to the Justices of the Peace Review Council, in accordance with the Justices of the Peace Act, R.S.O. 1990, c. J.4. The complaints were made on the same day, by several senior Crown Attorneys: James Cornish, Assistant Deputy Attorney General, Criminal Law Division, Ministry of the Attorney General; Brian Saunders, Director of Public Prosecutions of the Public Prosecution Service of Canada; and Kate Matthews, President of the Ontario Crown Attorneys’ Association.

[4] In 2018, after an investigation, the Council’s Complaints Committee ordered a formal hearing. The Hearing Panel was composed of Justice Feroza Bhabha of the Ontario Court of Justice; Margot Blight, a lawyer in private practice; and His Worship Thomas Stinson. The Panel unanimously found that JP Lauzon committed judicial misconduct.[^1]

[5] In the merits decision, the Hearing Panel rightly observed that by publishing an article on issues in the bail system a judicial officer would not necessarily be committing misconduct. Instead, the Panel asserted that it was how JP Lauzon wrote the article that constituted misconduct. The Panel added, at para. 173, that JP Lauzon “was under an obligation to be mindful of her role as a justice of the peace and her duties as a judicial officer to maintain the integrity, impartiality and independence of her office while exercising her expressive rights to criticize problems in the administration of justice.” At para. 164, the Panel set out the issue as whether in publishing the article “she failed to exercise caution and restraint and thereby crossed a line giving the appearance of bias and undermining public confidence [in] the judiciary.” The Panel criticized JP Lauzon’s use of language in the article, finding, at para. 245, that it was not “judicious” or “measured”, but was “accusatory, insulting, inflammatory, and personal”, especially regarding prosecutors, and was designed to “garner maximum media attention”.

[6] However, there was a dramatic escalation in the Hearing Panel’s description of the seriousness of JP Lauzon’s misconduct, and again in the majority’s disposition reasons, which asserted that her misconduct was showing “a reasonable apprehension of bias, if not actual bias” against Crown prosecutors.

[7] Following the disposition hearing, two of the Panel members recommended JP Lauzon’s removal from office as necessary in order to restore public confidence in the administration of justice. The dissenting member, His Worship Thomas Stinson, then a Regional Senior Justice of the Peace, was the only panellist with personal experience of the courtroom pressures that justices of the peace face.[^2] He largely agreed with the majority’s discussion of the disposition principles, but parted ways on their application. He found that a more appropriate recommendation would be a reprimand and a 30-day suspension without pay. In his view, this disposition would drive home to JP Lauzon the seriousness of the misconduct and would also restore public confidence in the integrity of the judiciary as a whole, and in the administration of justice.

[8] The Divisional Court dismissed JP Lauzon’s application for judicial review of the merits and disposition decisions on the basis that both were reasonable. This court granted JP Lauzon leave to appeal under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

(2) The issue

[9] The overarching issue in this appeal is whether the Hearing Panel’s merits and disposition decisions were reasonable in the sense demanded by Vavilov.[^3] In my view, the Panel’s conclusion that JP Lauzon committed judicial misconduct by publishing the article in the form and tone that it took was reasonable. Parts of the article functioned as a polemic, using some inflammatory language (for example, “disgrace” and “devoid of the rule of law”) that might, on one reading, be seen as capable of undermining public confidence in the justice system. However, the majority’s finding of the misconduct for which her removal from office was recommended – ongoing personal bias against Crown prosecutors – was unreasonable.

[10] In the absence of a reasonable finding that JP Lauzon was biased, was it reasonable for the majority to recommend her removal based on the misconduct of publishing the article with its inflammatory elements? In my view, it was not. The penalty was plainly disproportionate.

[11] The Hearing Panel erred in law in failing to take JP Lauzon’s s. 2 rights under the Canadian Charter of Rights and Freedoms into account adequately in both the merits and the disposition decisions, and in failing to reconcile those rights with the constitutional principles of judicial independence and the separation of powers under the aegis of Doré v. Barreau du Québec.[^4] These were the Hearing Panel’s most serious errors but not the only ones it made, as I will explain.

[12] JP Lauzon argues that the Hearing Panel erred in holding that it must take the approach to the application of s. 1 of the Charter under Doré and should instead have applied R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. However, as will become clearer later in these reasons, in my view, the differences between the two approaches would make no difference to the outcome of this case. The application of the robust proportionality analysis prescribed byDoré could only lead to the conclusion that JP Lauzon’s removal from office would be grossly disproportionate to the nature, extent and seriousness of her misconduct.

[13] Further, the majority’s decision to recommend JP Lauzon’s removal from office did not reflect the high bar established by the precedents for such a recommendation, nor was it reasonable in light of the proper application of the mitigating and aggravating factors. By contrast, the dissenting member’s approach to the disposition decision was measured and proportionate.

[14] I would allow the appeal in part, quash the majority’s disposition and substitute the disposition recommended by the Hearing Panel’s dissenting member: a reprimand and a 30-day suspension without pay.[^5] In my view, the record discloses that JP Lauzon is deeply committed to the improvement of the system of justice. She is capable and is most unlikely to repeat the misconduct. This is amply borne out by the fact that she did not repeat it in the years that she sat after the complaints were brought.

II. The standard of review

[15] This court's approach to an appeal from the Divisional Court in an administrative law matter is to step into the shoes of the lower court and to focus on the decision of the tribunal under review.[^6]

[16] The standard of review for the Hearing Panel’s merits and disposition decisions is reasonableness. In Vavilov, the Supreme Court repeated the principle that “[r]easonableness is a single standard that takes its colour from the context”.[^7] The context here is that JP Lauzon’s Charter rights are implicated, as are the constitutional principles of judicial independence and the separation of powers. In my view, it is not necessary to parse the merits or disposition reasons on the basis of correctness.[^8]

III. The issue: were the hearing panel’s decisions reasonable?

[17] At issue in this case are the scope of judicial independence and its limits. JP Lauzon asserted repeatedly that her insistence on exercising her judicial independence by speaking out on problems in bail courts was principled and necessary in the face of provocations she and other justices of the peace experienced daily in bail court at the instance of Crown prosecutors. JP Lauzon stood by her convictions in the merits phase and continued to stand by them in the disposition phase, despite the strong wording of the merits decision.

[18] By contrast, the Hearing Panel’s focus was on the duty of impartiality. It saw JP Lauzon’s strong position less as her insisting on principle than as a sign that she was biased against Crown prosecutors. Her assertions of judicial independence and her moral obligation to insist on it were seen by the Panel as just more evidence of bias.

[19] I address in turn the approach prescribed by Vavilov, the role of judicial independence, how judicial impartiality and bias factor into the analysis, the relevant precedents, the application of the mitigating and aggravating factors, and the interpretation and application of Doré.

(1) The approach in Vavilov

[20] Robust reasonableness review under Vavilov rests in part on a legal expectation: “[t]hose who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose”.[^9] Also relevant are “the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies,”[^10] to which I will return below.

[21] Judicial misconduct is not defined in the Justices of the Peace Act. Determinations of judicial misconduct are highly contextual and fact specific and focus on whether the conduct of the justice of the peace is compatible with judicial office. The Ontario Judicial Council, led by Justice Sharpe, observed in a decision regarding a provincially appointed judge: “Judges, however, are not guided or bound by a crystal clear set of rules. They must look to more general principles of judicial ethics that have evolved over time.”[^11] As a result, judicial misconduct cases cannot be resolved “in a mechanical fashion by simply pointing to a rule that clearly allows or prohibits” the conduct by a judicial officer.[^12]

[22] The statutory provisions governing the Hearing Panel’s disposition decision are ss. 11.1 and 11.2 of the Justices of the Peace Act. Once a hearing panel has found misconduct, s. 11.1(10), sets out the possible dispositions:

After completing the hearing, the panel may …

(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.

[23] Section 11.1(10)(g) puts removal from office in a different, more serious register, as s. 11.2 of the Act notes:

11.2 (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 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,

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

[24] The goal of the disposition is to restore public confidence in the justice of the peace and the judiciary in general.[^13]

[25] The majority and the dissenting member agreed that the “ladder principle” applied, which the dissent explained at para. 159: “[t]he Hearing Panel must consider imposing the least serious disposition first, and only upon rejecting that as inappropriate, would we move on to consider more serious dispositions.”

[26] One type of fundamental reasoning flaw identified in Vavilovarises “when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.”[^14] Two of the legal constraints relevant to this proceeding are the principles of judicial independence and the principles for discerning judicial bias, to which I now turn.

(2) The role to be played by judicial independence

[27] In my view, the Hearing Panel’s approach to judicial independence was legally flawed. This flawed reasoning had a serious impact on the Panel’s evolving view of what JP Lauzon’s misconduct actually was.

[28] Articulating the scope of judicial independence and the limitations on it in any specific case is sometimes quite difficult. There is room for honest and strongly held differences of opinion on problems in the system of justice and how strongly judicial views may be publicly expressed.[^15]

[29] The Hearing Panel did not adequately grapple with the issue of judicial independence, especially not in the majority’s disposition reasons. Judicial independence is to be protected, but that protection must not entail unduly discouraging its actual exercise in judicial speech by applying disproportionate discipline for it.

[30] Three aspects of judicial independence come to the fore in this case. The first is that the principle of judicial independence is constitutionally enshrined as “the cornerstone, a necessary prerequisite, for judicial impartiality.”[^16] This is the positive value of judicial independence. The second aspect is what I would call the “precautionary principle,” which demands a high standard of ethical conduct from judges in order to maintain public confidence in the judiciary. This principle is protective or defensive in its orientation. The third aspect focuses acutely on the case-specific details: in a judicial misconduct case like the one at bar, would a finding of misconduct and imposition of a particular sanction be an appropriate restriction on judicial independence? I note that the Hearing Panel did not self-instruct on all of these principles. Instead, it remained focused almost exclusively on the precautionary principle.

[31] These three aspects of judicial independence are reflected in the Canadian Judicial Council’s Ethical Principles for Judges.[^17] Although the revised version was not yet in force when the Hearing Panel did its work, these principles are rooted in long-standing jurisprudence and experience, and in the 1998 iteration of the Ethical Principles. The Statement on Judicial Independence provides:

An independent judiciary is indispensable to impartial justice under law. Judges uphold and exemplify judicial independence in both its individual and institutional aspects.[^18]

[32] This statement is supported by four principles:

A. Judges exercise their judicial functions independently and free of extraneous influence.

B. Judges firmly reject improper attempts to influence their decisions in any matter before the court.

C. Judges exhibit and promote high standards of judicial conduct so as to reinforce public confidence in the independence of the judiciary.

D. Judges encourage and uphold arrangements and safeguards to maintain and enhance the institutional and administrative independence of the judiciary.

[33] These principles animate the three aspects of judicial independence I outlined above. I now turn to a fuller discussion of their implications for this case.

(a) Judicial independence as a constitutional necessity

[34] The Canadian Judicial Council’s commentaries elaborate on the principles supporting judicial independence. Commentary 1.A.1 notes that judges must be “impervious to improper external intervention in the exercise of their functions” and must retain “the liberty and responsibility … to hear and decide cases that come before them in accordance with their conscience, without interference from others.” Commentary 1.A.3 states that judicial independence “connotes a status or relationship with others, including the executive branch of government and other judges.” It further states that judges must “apply the law without fear or favour and without regard to whether the decision is popular.” The overarching worry, rooted in the constitutional separation of powers, is that the executive or legislative branches could intervene to push judges towards their preferred outcomes.

[35] The relevant implication in this case is the risk that the public could see JP Lauzon’s removal from office as an instance of the successful interference by the executive branch, within which Crown prosecutors function, against judicial officers who take issue with the conduct of Crown prosecutors in courtrooms.

(b) The precautionary aspect of judicial independence

[36] Commentary 1.C.1 in Ethical Principles for Judges provides an internal limitation on judicial independence; it raises the precautionary principle:

Judicial independence and judicial ethics are interrelated. Judges should exemplify and promote high standards of judicial conduct as one element of assuring the independence of the judiciary. In turn, the independence and integrity of the judiciary preserves public confidence in the rule of law and acceptance of court decisions. Unethical conduct by judges erodes that confidence. Thus, judges share a collective responsibility to promote and observe high standards of conduct.

[37] In Moreau-Bérubé v. New Brunswick (Judicial Council), the Supreme Court stated that a judicial council “must also be equally sensitive to the reasonable expectations of an informed dispassionate public that holders of judicial office will remain at all times worthy of trust, confidence and respect.”[^19] Judges must conduct themselves appropriately in public in order to preserve confidence in the administration of justice.

[38] Justice Gonthier discussed the interplay between judicial independence and the requirement for judges to act in a reserved and careful manner inRuffo v. Conseil de la magistrature.[^20] He stated:

The duty of judges to act in a reserved manner is a fundamental principle. It is in itself an additional guarantee of judicial independence and impartiality, and is aimed at ensuring that the public’s perception in this respect is not affected. The value of such an objective can be fully appreciated when it is recalled that judges are the sole impartial arbiters available where the other forms of dispute resolution have failed. The respect and confidence inspired by this impartiality therefore naturally require that judges be shielded from tumult and controversy that may taint the perception of impartiality to which their conduct must give rise.[^21]

[39] The precautionary principle describes a threat that poor judicial conduct can pose to public support for judicial independence. There are three outcomes to be avoided. One is that judges might engage in misconduct and thereby undermine public confidence. The second is that other stakeholders might unreasonably impugn the actions of judicial officers to those to whom they are accountable, in a manner that threatens judicial independence. The third is that judicial officers might retreat into timorous silence. None of these is in the public interest.[^22]

[40] To put it simply, judicial conduct that offends the other branches of government might motivate those branches to act in such a way as to undermine judicial independence by asserting that the conduct should be punished as misconduct. These competing tensions were at play in this case.

(c) The role of judicial independence in this case

[41] Commentary 1.A.6 emphasizes the importance of judges educating the public about judicial independence:

Informing the public with respect to the role of the judiciary and judicial independence is an important judicial function. It is in the public interest for judges to take advantage of appropriate opportunities to enhance the public’s understanding of the fundamental importance of judicial independence.

This role has particular relevance to JP Lauzon’s case.

[42] Judicial independence is linked to public confidence in the administration of justice. If the public does not believe that judges are acting independently and freely from the influence of other branches of government, the public will lose confidence that courts are deciding cases objectively based on the facts and the law. Justices must not be seen as mere “rubber stamps” for Crown prosecutors.

[43] While JP Lauzon’s comments were not made from the bench, they related to her experiences as a sitting justice. The complaints against JP Lauzon were from Crown prosecutors about how she described the conduct of some of them in her courtroom. This constellation of interests has obvious separation of powers implications.

[44] In Moreau-Bérubé, the Supreme Court instructed judicial councils to be careful in discipline for judicial speech because it engages the core tenets of judicial independence:

The Judicial Council has been charged by statute to guard the integrity of the provincial judicial system in New Brunswick. In discharging its function, the Council must be acutely sensitive to the requirements of judicial independence, and it must ensure never to chill the expression of unpopular, honestly held views in the context of court proceedings. [Emphasis added.][^23]

[45] While Moreau-Bérubé related to speech from the bench, in my view, the same concern about chilling effects exists for JP Lauzon’s article. This concern is of particular importance when the impugned speech relates to the administration of justice, on which scholars and judges agree that judges must have more latitude to speak out. Sopinka J., speaking extrajudicially, observed that “[i]f a matter is troubling a judge and relates to the work of the court, a public discussion will often serve not only to clear the air, but will also result in a happier, more effective judge.”[^24] The Canadian Judicial Council has expressed the view that “members of the Judiciary should avoid taking part in controversial political discussions except only in respect of matters that directly affect the operation of the courts” (emphasis added).[^25]

[46] Beyond doubt, a core component of judicial independence is security from removal from office, particularly at the behest of representatives of other branches of government who might object to judicial decisions.[^26] As stated by Arbour J., “[w]hile acting in a judicial capacity, judges should not fear that they may have to answer for the ideas they have expressed or for the words they have chosen.”[^27]

[47] Accordingly, it was incumbent on the majority to consider carefully whether its removal recommendation at the behest of senior Crown law officers, who are part of the executive branch of government, could undermine other justices of the peace in their ability to control the process of their courtroom and to speak out about issues they see in court. As explained below, this is a principle to which the Hearing Panel paid scant attention.

(3) Judicial impartiality and bias

[48] Judicial impartiality is critical to justice, fairness, and the rule of law. The presence or absence of impartiality is usually addressed by invoking the well-known test for bias: “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly.”[^28] The question is to be assessed from the objective perspective of the reasonable person.[^29] The evaluation is not subjective. The analysis is fact and circumstance specific.[^30] The apprehension must be substantial and realistic, not the apprehension of a “very sensitive or scrupulous conscience”.[^31] The Hearing Panel did not expressly self-instruct on these principles.

IV. ANALYSIS

[49] In this section of the reasons, I explain, first, why the majority’s finding that JP Lauzon is biased against Crown prosecutors cannot be sustained on the evidence. Second, I consider errors in the majority’s assessment of the seriousness of JP Lauzon’s misconduct in light of the precedents and the aggravating and mitigating factors. Third, I conclude with the robust proportionality analysis prescribed by Doré.

(1) The finding that JP Lauzon is biased was unreasonable

[50] At its core, the majority’s disposition turns on its finding that JP Lauzon was irremediably biased against Crown Attorneys. The majority said, at para. 150 of the disposition reasons:

Her Worship’s misconduct and her testimony and manner in these proceedings leads to the conclusion that her ability to discharge the duties of office is irreparably compromised such that she is incapable of executing judicial office. Her Worship’s misconduct and refusal to accept that such conduct and attitude held by a justice of the peace towards Crown Attorneys is inappropriate is so manifestly and profoundly destructive of the judicial role and the impartiality, integrity and independence of the judiciary that public confidence requires her to be removed from office. [Emphasis added.]

[51] The finding of an “appearance of bias” by the Hearing Panel in the merits decision was significantly amplified by the majority in the disposition reasons. The majority faulted JP Lauzon, at para. 59 of the disposition decision, and stated that she could not be said to have retained her independence and impartiality “given: 1) the absence of any insight into or acknowledgment of her misconduct and 2) the continuing animus she displayed against Crown Attorneys during these proceedings.” It concluded: “[t]hat gives rise to a reasonable apprehension of bias, if not actual bias.”

[52] In my view, neither the finding of bias by the Hearing Panel in the merits decision nor the majority’s amplified finding in the disposition decision was reasonable.

[53] I explain this conclusion in four parts. First, for context, I describe the Hearing Panel’s findings that are reasonably warranted on the evidence. Second, I point out ways in which the Panel’s approach to the evidence was unreasonable and unbalanced. Third, I show that the majority’s unreasonable approach was carried forward in its assessment of the aggravating and mitigating factors, and infected the disposition. And finally, I explain why the finding that JP Lauzon is irremediably biased against Crown prosecutors cannot be sustained.

(a) Findings of the Hearing Panel that are warranted on the evidence

[54] In the merits decision, the Hearing Panel rightly observed that a judicial officer would not necessarily commit misconduct by publishing an article on issues in the bail system. Instead, the Panel asserted that it is how JP Lauzon wrote the article that constituted misconduct. At para. 164, the Panel stated:

Given the widely acknowledged issues with the bail system in Ontario, it was not inappropriate for Her Worship to express her views as someone familiar with the issues, and to signal problems she observed firsthand with the approach to bail in Ontario. The issue is whether in doing so she failed to exercise caution and restraint and thereby crossed a line giving the appearance of bias and undermining public confidence on the judiciary.

[55] The Panel added, at para. 173, that JP Lauzon “was under an obligation to be mindful of her role as a justice of the peace and her duties as a judicial officer to maintain the integrity, impartiality and independence of her office while exercising her expressive rights to criticize problems in the administration of justice.” The Panel criticized JP Lauzon’s use of language in the article, finding, at para. 245, that it was “neither judicious nor measured”, but was “accusatory, insulting, inflammatory, and personal”, and was “expressly designed by her to garner maximum media attention”.

[56] The Panel also criticized the article for failing to present a “balanced” view by not explaining why video hearings were in use (paras. 219-21), what the prosecutors’ side of the issues was (para. 225), and how the bail system operates (paras. 246-48).

[57] Although the Hearing Panel uses different words at different points throughout the merits reasons, it initially characterized JP Lauzon’s misconduct as writing an inflammatory and unbalanced article for the public. It took the view that its publication undermined public confidence in the administration of justice and created an apprehension of bias. The Panel said, at para. 145:

The overall effect of the Article was such that Her Worship failed to uphold the dignity, integrity and impartiality expected of the judiciary. To maintain public confidence in the judiciary, a justice of the peace must be, and appear to be, impartial and act with integrity. A justice of the peace must conduct his or her extrajudicial activities so that he or she does not cast doubt on his or her capacity to act impartially as a judicial officer. Her Worship publicly admonished and laid blame squarely on prosecutors who appear before her in court for issues she allegedly encountered in bail court, thereby creating an apprehension that she was biased against the Crown Attorneys. Finally, Her Worship acted in a manner that undermined public confidence in the administration of justice when she publicly asserted that the court was “a disgrace” and “devoid of the rule of law.” A justice of the peace should preserve and encourage, not undermine, respect for the judiciary and the administration of justice. [Footnote omitted.]

[58] The Hearing Panel’s characterization of JP Lauzon’s misconduct at paras. 164, 245, and 145 of the merits reasons, quoted above, was reasonable, but the amplification of the language around the seriousness of her misconduct in the balance of its merits decision, and especially in the majority’s disposition reasons, noted below at paras. 72-74, was not reasonable.

(b) The Hearing Panel’s approach to the evidence was unreasonable

[59] The Hearing Panel’s approach to the evidence was unreasonable. The Panel consistently decontextualized those aspects of the case on which JP Lauzon relied in framing her defence. Such a decontextualized approach is not consistent with the fully contextual approach that Vavilov demands.

[60] I pick out five reasoning flaws: the Hearing Panel did not take a holistic approach to JP Lauzon’s article; its articulation of her misconduct evolved; the Panel did not take seriously the truth of her assertions about problems in the bail system; it discounted her positive motivation in writing the article; and it was not even-handed in its approach to the evidence. I deal with each flaw in turn.

(i) The Hearing Panel did not take a holistic approach to the article

[61] In reading the article, the Hearing Panel did not take a holistic approach. The true subject of the article was JP Lauzon’s distress at the plight of people, presumed innocent, who are saddled with inappropriate bail conditions because, as she put it, “people will agree to just about anything to regain their freedom and go back home to their families and daily routines.” She believes passionately that it is “the JP’s legal responsibility to ensure that the conditions placed on a person’s bail are reasonable, lawful and appropriate.” Circumstances such as video bail court and agreements between defence counsel and the Crown can put pressure on justices to go along with inappropriate bail conditions, something that she refused to do, causing prosecutors to react inappropriately. She said, “[i]t is not my job as a JP to sign off on release documents that are unlawful.” She noted the cumulative effect of “forced, rushed video appearances, a lack of respect for the JP bench and the absence of the rule of law in this court.” She added: “I can no longer call it a court of law. It is a disgrace.” These circumstances, she said, had the effect of making bail courts “dysfunctional and punitive” and therefore “devoid of the rule of law.”

[62] These are very strong words, no doubt, but these words signal JP Lauzon’s righteous anger at a deplorable state of affairs in bail court. The Hearing Panel did not account for the context in which she was driven to use such words, as it would have had it taken a holistic approach to evaluating the article. While the intemperate language JP Lauzon used supports the Panel’s misconduct finding, as I will explain, properly considered, it does not evidence any operative bias against prosecutors.

(ii) The Hearing Panel discounted the factual veracity of JP Lauzon’s criticisms

[63] JP Lauzon’s complaints about bail court were factually valid. The Hearing Panel referred to the academic evidence about systemic problems with bail courts, at paras. 161-64 of the merits decision. However, at para. 161, the Panel substantially discounted the merits of JP Lauzon’s complaints about prosecutorial disrespect by making her concerns seem commonplace, that is, “not controversial”. As noted, the Panel acknowledged at para. 164 that “it was not inappropriate for Her Worship to express her views as someone familiar with the issues, and to signal problems she observed firsthand with the approach to bail in Ontario”. But then the Panel deconstructed the article and reached the conclusion, at para. 247, that it was really all about the behaviour of prosecutors.

[64] This dismissive treatment substantially downplayed the thrust of JP Lauzon’s complaints and the evidence, which is that justices of the peace were and are routinely disrespected in the administration of justice by other justice system actors. It is quite obvious that justices of the peace deserve respect from other actors, particularly those with whom they most frequently interact – Crown prosecutors.

[65] Justices of the peace are not to be treated by the other actors in the justice system as mere “rubber stamps”. While this image emerged in a case about issuing search warrants,[^32] this point, made by Morden J.A., applies equally to justices and to their other functions, including approving bail: “[t]he function of the Judge is the most important safeguard. It is implicit in the provision that the Judge is not to act as a rubber stamp.”[^33] The Supreme Court approved this comment in Baron v. Canada,[^34] where Sopinka J. said, “[t]he concept of a rubber stamp role would be completely inconsistent with the role assigned to the judiciary”.[^35] Despite this weighty authority, Hill J. felt obliged to make the same point much more recently in R. v. Singh: “[t]he show cause judge is not a rubber stamp.”[^36]

[66] There was something more visceral going on in practice that showed persisting and pernicious disrespect for justices of the peace in the context of setting bail conditions. This came out especially clearly in the words of Martin J. recently in R. v. Zora,[^37], who specifically approved Hill J.’s strong words in Singh:

The ladder principle and the rigorous assessment of bail conditions will be more strictly applicable when bail is contested, but joint proposals must still be premised on the criteria for bail conditions established by the guarantees in the Charter, the provisions of the Code, and this Court’s jurisprudence ([R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509], at para. 44). Judicial officials “should not routinely second-guess joint proposals” given that consent release remains an efficient method of release in busy bail courts (Antic, at para. 68). However, everyone should also be aware that judicial officials have the discretion to reject overbroad proposals, and judicial officials must keep top of mind the identified concerns with consent releases. In R. v. Singh, 2018 ONSC 5336, [2018] O.J. No. 4757 (QL), Hill J. noted that, even post-Antic, counsel sometimes do not appear aware of this judicial discretion:

Too often, as is evident from some transcripts of show cause hearings coming before this court, counsel conduct themselves as though a “consent” bail governs the release/detention result with all that is required of the court is a signature. At times, outright hostility is exhibited toward a presiding justice of the peace who dares to make inquiries, to require more information, or to reasonably challenge the soundness of the submission. This is fundamentally wrong. [para. 24] [Emphasis added.]

[67] JP Lauzon’s cri de coeur on March 14, 2016, preceded Antic,[^38] Singh and Zora. The merits hearing in 2019 followed both Antic and Singh. The disposition hearing in July 2020 also followed the release of Zora. It is unknown whether JP Lauzon’s article contributed to these careful but strong judicial restatements of the responsibilities of the justice system actors, including prosecutors and justices of the peace in bail courts, but there is no doubt that JP Lauzon tapped a deep well of justifiable discontent, as these authorities amply show.

[68] Plainly, justices of the peace deserve, but at times have not been accorded, due respect from the other actors in the justice system, at least in the time before JP Lauzon’s article was published. The judicial comments resonate with and support important elements of JP Lauzon’s message. She testified that she found bail hearings especially stressful in light of her concerns and asked to be relieved of them. That request was accommodated for some time. But then she was obliged to return to hearing bail applications and her growing frustration led her to write the article. This is the particular context within which the disciplinary proceedings were started.

[69] I also note that the Hearing Panel declined to make a finding as to whether the patently outrageous conduct of the prosecutors that JP Lauzon described actually happened, casting doubt by innuendo on her evidence about “issues she allegedly encountered in bail court”: para. 145 (emphasis added).

[70] Tellingly, however, the entire premise of presenting counsel’s questions in cross-examining JP Lauzon about the identity of the prosecutors whose conduct she described in the article was that these events did in fact happen in full view of the many people in those courts. Presenting counsel raised, and the Hearing Panel accepted, that the prosecutors, whom she did not name in the article, were embarrassed at the prospect that they could be identified. Despite their implicit acceptance that the events occurred as described, the tenor of both decisions is that the Hearing Panel was affronted by the fact that JP Lauzon defended herself by asserting the veracity of her article.

[71] It was unreasonable for the Hearing Panel to downplay the veracity of both the general and the specific complaints JP Lauzon set out so forcefully in the article.

(iii) The Hearing Panel’s views of JP Lauzon’s misconduct escalated

[72] It is essential to the fairness of the discipline process for the subject to know precisely the misconduct that is at issue. From its initial characterization of JP Lauzon’s misconduct as writing an inflammatory and unbalanced article for the public, the Panel’s identification of JP Lauzon’s misconduct evolved, with the Panel’s sense of her moral turpitude escalating even over the course of the merits reasons.

[73] The Panel effectively reduced the case against JP Lauzon to her being irremediably biased against Crown counsel appearing before her. At the end of its long merits decision, the Panel stated, at para. 300, “[t]he overall tenor of the Article, we find, gave the appearance of a retributive personal attack on prosecutors rather than a serious, considered, and civil critique of the bail system and the importance of judicial independence.” In para. 59 of the disposition decision, the majority torqued the misconduct into “a reasonable apprehension of bias, if not actual bias,” and then added, at para. 84 of the disposition decision: “[t]his Panel found that Justice of the Peace Lauzon inappropriately used the power and prestige of her judicial office to exact retribution on Crown Attorneys who she thought were disrespectful to her.”

[74] There is a dramatic escalation in how the misconduct is described from para. 145 to para. 300 of the merits decision, and then again at para. 84 of the majority’s disposition reasons, emphasized by repetition, as if it were not possible to censure JP Lauzon sufficiently.

(iv) The Panel dismissed JP Lauzon’s positive motivation as a significant factor in their analysis

[75] The Hearing Panel discounted the obvious evidence of JP Lauzon’s positive motivation in publishing the article. She swore an affidavit explaining her motivation, to which the Panel referred at para. 156 of the merits decision. She testified at length about her frustration with the situation in bail court in a manner consistent with the article.

[76] The Hearing Panel was grudging in its treatment of her evidence. The Panel properly acknowledged that it was not inappropriate for JP Lauzon to speak out on bail issues at para. 164. However, the Panel did not make a finding on whether the article was written with good intentions, stating, at para. 294, with a certain implied doubt, “even if the Panel were to accept, without deciding, that Her Worship’s conduct was solely motivated by good intentions … [it] could not decide the issue before [it] solely on the basis of good intentions.” Later, at para. 296, the Panel stated, “[i]f Her Worship was motivated in part to write the article in defence of her judicial independence, we find that she missed the mark entirely.”

[77] The Panel’s failure to treat the positive motivation issue seriously, when it would inevitably later inform the assessment of the aggravating and mitigating factors in the disposition decision, was an obvious reasoning error. Motivation is a relevant consideration even though not dispositive.

(v) The Hearing Panel was not even-handed in its approach to the evidence

[78] It seems that, to the Hearing Panel, JP Lauzon could do nothing right, and the Crown prosecutors about whose behaviour she complained could do nothing wrong. In other words, the Hearing Panel did not scrutinize fairly and even-handedly JP Lauzon’s evidence and that offered by presenting counsel.

[79] The Hearing Panel refused to give any weight to the evidence of other justices of the peace whose testimony corroborated JP Lauzon’s evidence about her experiences in bail court. By contrast, the Panel did accept the evidence of Crown prosecutors, and even allowed critical evidence on the part of a retired Crown to be adduced by transcript without the possibility of her cross-examination.

[80] To summarize this section of the reasons, the Hearing Panel did not give JP Lauzon’s evidence and arguments due consideration and failed to take account of the full context in which she wrote the article. The Panel’s view of her misconduct morphed and escalated. Had it approached its task in a reasonable and balanced way, the Panel would have taken into account that JP Lauzon’s claims about the conduct of Crown prosecutors and problems with bail courts were true and that her primary motivation in writing the article was to expose problems she saw in bail courts. It was unreasonable to ignore the evidence of other justices of the peace who would have corroborated JP Lauzon’s testimony about the issues plaguing bail courts. Taken together, these deficiencies in its approach led the Hearing Panel to an unreasonably harsh characterization of JP Lauzon’s misconduct as exhibiting actual bias against Crown prosecutors.

(c) The finding of irremediable bias was not reasonable

[81] The majority’s finding that JP Lauzon was irremediably biased against Crown prosecutors was unreasonable. There are four reasons for this conclusion: the majority applied a subjective and not an objective test for judicial bias; the evidence cited in support of its finding of bias does not support the finding; there is no evidence of operative bias on JP Lauzon’s part against Crown prosecutors; and, post-complaint, JP Lauzon sat for years without incident.

(i) The test for bias is objective, not subjective

[82] As noted above, the test for judicial bias is objective; the presence of bias is to be assessed from the perspective of a reasonable person. The Hearing Panel erroneously adopted the subjective view of bias advanced by presenting counsel. The emotive tropes he used deeply influenced the Panel’s thinking, as is evident throughout in the emotive language it used. In taking this subjective approach, the majority’s primary consideration, as expressed in its disposition reasons, was whether the Crown prosecutors in Ottawa felt like they could receive a fair hearing before JP Lauzon.

[83] Presenting counsel used two highly effective framing devices in advancing this approach. First, in written submissions during the merits phase, he argued that JP Lauzon’s testimony and conduct during the proceedings demonstrated continuing and apparent actual bias, lack of remorse, lack of understanding of the impropriety of her conduct, and lack of regard for the proceedings. Presenting counsel told the Panel in the merits phase that it would be open to it to conclude that JP Lauzon was incapable of performing the duties of her office. The Panel dismissed an objection that this submission was premature.

[84] Notably, presenting counsel argued in the disposition phase that “the evidence shows continuing bias by Her Worship since the publication of the Article and in that regard, the misconduct cannot be characterized as an isolated event, but part of a pattern of misconduct” (para. 78 of the disposition reasons, emphasis added). The majority accepted this submission. This key framing device had the effect of positioning JP Lauzon for disposition purposes as a repeat offender based on her beliefs rather than her behaviour, as the dissent rightly deplored at paras. 166-67.

[85] Second, presenting counsel urged the Panel to accept the evidence of Kate Matthews, former president of the Ontario Crown Attorneys’ Association and one of the complainants, which was reviewed at length by the Hearing Panel at paras. 274-86 of the merits decision. The Panel relied heavily on this testimony to substantiate its finding that JP Lauzon showed bias against Crown prosecutors.

[86] Ms. Matthews testified that the article did not “accurately or fairly capture” the difficulties and realities of being a Crown prosecutor in bail court. She saw the article as “unbalanced”. It was “one-sided” because the public would have no understanding of why Crown prosecutors make the decisions they do. She added that the ongoing media attention for a one-sided article means that people would accept it as true.

[87] In a question that reveals the subjective approach to bias presenting counsel advocated throughout, he asked Ms. Matthews, “[h]ow did you personally feel about the article?” She answered: “I experienced all of those [negative] emotions when I read it.” She then went on at length to explain why the “article completely deflated us in everything we are trying to do.”

[88] In Ms. Matthews’ view, JP Lauzon’s comments that prosecutors were “cynics” and “bullies” meant that they were not taking notice of the law and were not concerned with it. She found this “terribly insulting.” Ms. Matthews viewed JP Lauzon’s comment that Crown Attorneys sometimes behaved like “toddlers having tantrums” as demeaning. She testified that the fact that individual Crowns who engaged in misconduct in her bail court were not named in the article made it worse because it painted the entire office with the same brush.

[89] The Hearing Panel was deeply affected by Ms. Matthews’ testimony that “[Crown prosecutors] would never feel that [they] could have a fair and impartial hearing before this Justice, who so clearly, in my view, showed such great disdain for every Assistant Crown Attorney in the Ottawa Crown’s office. I don’t think you could feel that you could bring a hearing in front of her in a fair way.” Ms. Matthews’ testimony was extremely influential for the majority, who relied on this evidence at paras. 37, 110, 123, and 124 of the disposition reasons.

[90] However, the Hearing Panel did not grapple with credibility or the weight to be given to Ms. Matthews’ evidence. Ms. Matthews was not a factual witness who could testify about what occurred in JP Lauzon’s court. Indeed, there was no evidence proffered from any member of the public, Crown Attorney, or other person who attended before JP Lauzon. Rather, Ms. Matthews provided only her subjective opinion. The Panel simply accepted that Crown Attorneys felt that they could not get a fair hearing and used this to support its conclusion that JP Lauzon was biased against them, which reveals that the Hearing Panel took a subjective approach to the assessment of bias.

(ii) There is no support for bias in the evidence cited

[91] A review of the evidence that the Hearing Panel cited in support of its finding that JP Lauzon was biased reveals that it does not support such a finding. The flavour of the evidence is revealed by the transcripts. For brevity, in this section of the decision, I summarize and pare down the excerpts. Expanded and cross-referenced excerpts are found in the Appendix of Transcript References.

[92] In the merits decision, the Hearing Panel referred to two main sources of bias: the article itself and JP Lauzon’s conduct throughout the proceedings. The Panel summarized its view of the bias, at para. 145: “Her Worship publicly admonished and laid blame squarely on prosecutors who appear before her in court for issues she allegedly encountered in bail court, thereby creating an apprehension that she was biased against the Crown Attorneys.” The Panel cited several transcript references to JP Lauzon’s testimony in support of this assertion. But the transcripts do not bear this out. In the excerpts cited, JP Lauzon simply stated that many of the problems in bail courts were caused by certain Crown prosecutors, a view she articulated in the article. The following excerpts are reflective of her testimony:

Q. My question was, what you're saying here in the article is that the law goes out the window, and you're blaming that on the Crown, right, in this article?

A. To the extent where they are interfering with the application of the law, yes.[^39]

Q. Okay. So this dysfunction and punitiveness, that is the fault of the Crown, right?

A. It is as a result of the Crown behaviour, very much so.

Q. Across the country? Did you answer that question?

A. Many others throughout the country, that is what it says, yes.[^40]

[93] As for the article itself, the Hearing Panel stated, at para. 300, that “the overall tenor of the [a]rticle … gave the appearance of a retributive personal attack on prosecutors rather than a serious, considered, and civil critique of the bail system and the importance of judicial independence.” In support of this conclusion, the Panel cited excerpts from JP Lauzon’s examination. However, in the cited excerpts, JP Lauzon stated that she did not see the article as an attack on “the credibility, integrity and good faith” of Crown prosecutors, whether personal or otherwise. In fact, she noted that “some Crowns really got it. Some Crowns are nothing but professional.”

[94] JP Lauzon defended her use of language, stating that the circumstances called for “[l]anguage that was strong enough to get the message across that there was a very big issue.” In one of the transcript passages cited by the majority, JP Lauzon testified that she had avoided naming the individual Crown prosecutors whom she saw as causing the most problems, but she acknowledged that they would know who they were from her accurate depictions of their behaviour, so that an investigative reporter might be able to identify them.

[95] The Panel did briefly consider JP Lauzon’s response to questions about bias, which came during a long cross-examination. She stated that she did not “think for a moment that this would give the impression of bias, no matter who was reading the article”, although she eventually acknowledged that she did not “think [she] considered the issue” of whether the article “might cause an impression of bias or favouritism”. This was an honest if naïve answer.

[96] The view of bias as essentially subjective underpins the majority’s disposition reasons. The majority found, at para. 23 of the disposition decision, that JP Lauzon continues to “harbour disdain bordering on contempt for Crown counsel”. In support of this assertion, the majority cited several transcript excerpts in which JP Lauzon stated that she thought that Crowns had acted inappropriately in bail hearings. Importantly, these passages all related to the time the article was written, not to the present. For instance, she testified that at the time she wrote the article:

At that point in time, the Crowns ran the bail court. The Crowns ran number 6 court. Once in a while there would be a federal Crown or a provincial Crown that did not attempt to run the court, that understood the law. It wasn't an issue. They knew that if they chose not to show cause, then they had to show cause if I questioned the conditions as to why those conditions were reasonable and necessary under any of the three grounds.

[97] JP Lauzon distinguished between the conduct of Crown prosecutors and defence counsel, who she stated “rarely … act like this”, even though “they may not confidently apply … the law in every aspect.” These comments do not show disdain or contempt for all or even many Crown counsel. They do show her anger at the disrespect shown to her by some prosecutors.

(iii) There is no evidence of operative bias

[98] There is simply no evidence of operative bias on JP Lauzon’s part against Crown prosecutors. There is no evidence that the bail conditions she imposed or refused to impose before or after the complaints were made reflected any bias against Crown prosecutors whatsoever. I am confident that if such evidence existed, it would have been adduced. Relatedly, the scope for operative bias on the part of a justice of the peace in approving bail conditions is extremely limited. In approving bail conditions, justices are not determining the merits of the prosecution, but only bail, so it is hard to imagine how the notion advanced by Ms. Matthews that prosecutors would not get a “fair hearing” would actually play out practically. It clearly did not play out in actuality.

[99] I add this: Crown prosecutors are not ordinary litigants or advocates. They are ministers of justice and should have no notion of winning or losing in the outcome of the proceedings.[^41] The majority’s implicit view that Crown prosecutors fear JP Lauzon’s “power and prestige”, a phrase the majority repeated at paras. 2, 74, 84 and 120, plainly carried no weight with Crown prosecutors. Crown prosecutors are not shrinking violets in any Ontario courtroom, and they evidently were not in JP Lauzon’s courtroom. There is a certain irony in the majority’s view that JP Lauzon used her “power and prestige” to get the article published, when the article showed that she had neither in her courtroom.

(iv) There was no post-complaint evidence of bias

[100] The finding of bias was also unreasonable based on the record. JP Lauzon continued to sit for years after the complaints at issue in this proceeding without any complaints about bias in anything she did, including approving bail conditions. As the dissenting member noted, at para. 196:

As was acknowledged by her counsel during his submissions on disposition, Justice of the Peace Lauzon has not expressed any remorse for writing the National Post article. But her four subsequent years of unblemished conduct on the bench indicate that – notwithstanding her beliefs – she will not continue with the behaviour that she manifested in writing the article. [Emphasis in original.]

[101] This observation is irrefutable.

[102] To conclude, by focusing on bias as subjective, the Panel asked itself the wrong legal question. It considered only whether Crown prosecutors felt that JP Lauzon was biased. Instead, the Panel should have asked itself whether an informed person viewing the matter realistically and practically would believe that litigants would receive a fair hearing before JP Lauzon in bail court – an objective test. Had the Panel applied the proper legal test, it would not have been able to conclude that either the article or JP Lauzon’s posture in defending the complaints brought by senior Crown prosecutors could establish a reasonable apprehension that she was biased against Crown prosecutors. There is simply no evidence of bias in her actions before or after the complaints were made. Indeed, while JP Lauzon’s language was intemperate and amounted to misconduct, an informed member of the public might well appreciate that JP Lauzon was not motivated by bias, but by her commitment to doing justice.

[103] There is no doubt that JP Lauzon was angry at her disrespectful treatment at the hands of some, but not all, Crown prosecutors. She was angry both at her treatment by presenting counsel, and by the merits reasons, because she believed, with some evident justification, that her cause was just. While she manifested her anger in an inappropriate way in the article, her anger did not amount to bias on any measure.

(2) The majority’s assessment of the seriousness of JP Lauzon’s misconduct was not reasonable

[104] Contextually, the disposition phase was a new moment. A little more than two months after the merits decision was released, the Panel reconvened for disposition submissions. JP Lauzon’s counsel advised against ordering an apology because she lacked remorse. The vehemence of the majority’s disposition reasons suggests that it found JP Lauzon’s stance to be defiant and therefore worthy of the ultimate sanction – removal from office.

[105] The majority made errors in its assessment of the seriousness of JP Lauzon’s misconduct in light of the precedents and the aggravating and mitigating factors. It also failed to adequately consider the effect that the disposition would have on JP Lauzon – a factor it was required to account for under Vavilov. By not engaging adequately with the precedents and the approach required by Vavilov, the majority escalated the misconduct that the Hearing Panel initially found – publication of an inflammatory article – to something much more serious – irremediable bias – without the necessary evidentiary record to support such a finding.

(a) The precedents

[106] As noted in Vavilov, the Hearing Panel was required to advert to precedents in assessing the disposition.[^42]

(i) Overview

[107] In the dissenting member’s view, JP Lauzon’s removal from office would constitute a marked departure from the existing jurisprudence. Indeed, in Canadian history, no judges have ever been removed purely for their extrajudicial speech.[^43]

[108] The cases set a high bar that must be met before misconduct will justify a recommendation for removal from judicial office. Cases that have led to removal have involved types of misconduct that overshadow what JP Lauzon did in this case. As I explain below, examples include discriminatory and sexist speech, participation in illegality, self-dealing, repeated instances of misconduct, and the failure to do the work required of the office. It was incumbent on the majority to engage with the precedents cited by the dissent on matters of principle, but it did not do so.

(ii) Discriminatory and sexist speech

[109] Discriminatory speech is especially problematic and might lead to a recommendation for removal from office. For example, in Moreau-Bérubé, the Supreme Court discussed the case of a judge who made on-the-bench comments about the residents of the Acadian peninsula, where she served. Justice Moreau‑Bérubé called many of the residents dishonest people and wondered aloud whether she was herself “surrounded by crooks.” The gravity of her speech meant that an apology was not enough to avoid Moreau-Bérubé J.’s removal. The majority cited this case to underscore the importance of a lack of insight and the absence of an apology. But these mattered far less than Moreau-Bérubé J.’s discriminatory speech itself, which was radically more serious. By contrast, in her concern about the public she was serving, JP Lauzon criticized the conduct of a few Crown prosecutors who appeared in front of her, and her criticisms were valid.

[110] To a similar effect, Bienvenue J. made racist and sexist comments on the bench demeaning women, Jewish people and Black people.[^44] His conduct was repeated. The removal recommendation in Bienvenue was for serious reasons that are not present in this case. The majority discussed Bienvenue, at para. 39, but only for the proposition that a removal recommendation would not have the chilling effect that the dissent claimed, a point that is completely unrelated to the dissent’s Bienvenue analysis. The majority did not take seriously the risk that discipline for JP Lauzon’s truthful judicial speech would have such a chilling effect.

[111] The recommendation to remove Camp J. from office was for comments in court that perpetuated stereotypes about women victims of sexual assault.[^45]The majority, at para. 52, cited Camp to show that even a single, highly prejudicial or offensive comment might be sufficiently grave to seriously undermine public confidence. However, the majority did not take account of the radical difference in the types of speech at issue. Justice Camp’s statements suggested bias against half of the population and showed that he might not be able to properly assess evidence in sexual assault cases. Such misconduct is far more serious than anything JP Lauzon said in the article or in her testimony.

[112] Zabel J. created a media firestorm for wearing a “Make America Great Again” hat in open court the day after Donald Trump’s election as president of the United States.[^46]The personal discriminatory beliefs that the public might infer from Zabel J.’s on-the-bench conduct as seeming to endorse the Trump campaign risked causing a loss of trust in members of many different communities he served, who would be appearing before him in court in search of justice. Justice Zabel disavowed such beliefs and he was not ultimately removed from office.

[113] Discriminatory speech is far distant from the issue in this case. JP Lauzon’s expression was intended to address the very issue of justice for the accused parties who appear before her and whose liberty is often at stake. This is at the heart of her article. It is unreasonable to draw a comparison, as the majority did, between JP Lauzon’s beliefs and those expressed in Moreau-Bérubé, Bienvenue, Camp, and Zabel.

(iii) Participation in illegality

[114] The next most serious level of misconduct warranting removal is when a justice participates in illegality. The Phillips case is illustrative. [^47] JP Phillips misled a police officer during a traffic stop. She and her daughter were in a car; her daughter was driving and ran a red light. Her daughter lied to the police officer about her identity and JP Phillips assisted her in doing so. The hearing panel noted that her misconduct showed that she did not obey the law and no remedial education could restore public confidence in such circumstances. It was this logic that led to her removal, and which could not justify a lower penalty.

[115] JP Foulds’ removal from office was based on several findings of misconduct, one of which was supervising steps of a criminal prosecution in which a close friend, who would later be a romantic partner, was the complainant and in which JP Foulds might have been required as a witness.[^48] JP Foulds’ motivation was self-serving and a clear subversion of the rule of law.

[116] JP Welsh faced two disciplinary proceedings involving an element of illegality.[^49] These cases showed a pattern of misconduct that nonetheless did not lead to a recommendation for removal. In 2009, JP Welsh was given remedial education as a result of misconduct that included altering the amount of fine for a judge and paying it on her behalf; he was also criminally charged for this conduct, pled guilty, and then was absolutely discharged. He was ultimately not removed because there was no evidence of corruption. Several years later, however, he faced another misconduct hearing after he unilaterally altered a return date for a person without the person’s knowledge, resulting in the person missing the date, being arrested and spending time in custody. The appropriate disposition was found to be a combination of a reprimand, an apology, further education and a suspension without pay for ten days. The majority’s disposition reasons in this casedo not engage with the high bar Welsh sets for removal.

[117] In sum, by failing to engage with both Phillips and Foulds, the majority failed to consider the clear logical gap: how is it possible that JP Lauzon’s misconduct warrants the same result as the illegal conduct of JP Phillips and JP Foulds? The majority does not say, nor does it explain why JP Lauzon’s conduct warranted a harsher sanction than JP Welsh received.

(iv) Self-dealing

[118] Self-dealing is another category of serious misconduct that might lead to a recommendation for removal from office. For example, Flynn J., a judge of the Superior Court of Quebec, spoke to a journalist on a matter in which he had a personal interest and also an indirect financial interest through his wife.[^50] He was later quoted in an article and though his statements were found to be inappropriate, his removal from office was not recommended. Here, the dissent, at para. 206, and majority, at para. 57, relied on Flynn for the same proposition: his acknowledgment that he should not have spoken to a journalist was a mitigating factor that weighed against his removal. The dissent posited that Flynn J.’s misconduct was more serious than that of JP Lauzon because of his personal pecuniary interest. The majority did not respond to this distinction. Instead, it focused only on Flynn J.’s acknowledgement of misconduct, which it contrasted to JP Lauzon’s lack of acknowledgement or apology. The majority distinguished Flynn from the present case, reasoning that JP Lauzon’s testimony gave rise to a reasonable apprehension of bias, if not actual bias.

[119] Another case of self-dealing was that of Matlow J. An inquiry committee of the Canadian Judicial Council recommended that Matlow J. be removed from office because he engaged in political speech outside of the courtroom driven by personal interest.[^51]More specifically, Matlow J. participated in and, at times, led, an advocacy campaign against a municipal planning approval process in his neighbourhood in Toronto. The tone of Matlow J.’s expression (intemperate and offensive toward municipal politicians) and the forums he chose (news outlets and a letter to the Attorney General) were raised, as was the fact that he was essentially giving legal advice to the advocacy group in which he participated.[^52] Based on this misconduct, the Inquiry Committee recommended his removal, but the recommendation was not accepted by a majority of the Canadian Judicial Council, which considered Matlow J.’s apology, albeit last-minute, as a mitigating factor despite the repeated nature of his misconduct over a long period of time.[^53]

[120] Because their personal pecuniary interests were engaged, the misconduct of Flynn J. and Matlow J. was each more serious than JP Lauzon’s, as the dissent pointed out. The majority did not address this difference.

[121] The majority noted, at para. 120, that JP Lauzon wrote the article “to satisfy her own personal desires, specifically the desire for retribution.” There is likely an element of this negative emotion behind her words, but it does not equate to self-dealing on the same scale as in Flynn and Matlow.

(v) Neglect of office

[122] Some cases have considered a justice of the peace’s neglect of the requirements of the office. I have already discussed Welsh, which led to a deprivation of liberty. Re Winchester considered whether misconduct was sufficiently serious to justify a removal recommendation.[^54] JP Winchester closed bail court early one afternoon, even though she was aware that there was a young defendant waiting who was likely eligible for release on bail. The hearing panel decided that the appropriate disposition was a combination of a reprimand, an apology to the defendant, and a suspension without pay for a period of five days.[^55] JP Winchester failed to perform her duties, leading to a violation of a young person’s right to reasonable bail – a concept at the core of the work of a justice of the peace. But no recommendation for removal was made.

[123] The Winchester hearing panel noted that the misconduct did not show “that there was any irremediable compromise of personal integrity that would justify removal”.[^56] Further, the Winchester panel noted that “the applicable caselaw supports the proposition that cases of misconduct that involve errors in judgment without an element of dishonesty or unscrupulousness are more likely to receive a disposition geared towards rehabilitation.”[^57] The majority in this case, by contrast, failed to grapple with these principles, which the hearing panel for Winchester had set out mere months before the disposition reasons in the case at bar.

[124] There is no evidence that JP Lauzon’s personal integrity has been compromised, no element of dishonesty or corruption, and no complaint that she did not conscientiously perform her duties before and after the complaints.

(vi) Repeated misconduct

[125] Some cases have pointed to the problem of repeated misconduct to warrant removal. In Ruffo (Re),[^58] the Court of Appeal of Quebec, consistent with the recommendation of the Conseil de la magistrature du Québec, recommended that Ruffo J. be removed from office based on the cumulative effect of a number of instances of misconduct. Her extrajudicial speech was just one component in a large array of misconduct complaints that included instances of illegal decisions, conflicts of interest, participation in a commercial trade show, as well as an appearance in a Via Rail advertisement using her judicial title.[^59]

(vii) Combined instances of misconduct

[126] Finally, in some cases there is a combination of instances of misconduct. The outcome of the removal recommendation for JP Massiah was multi-faceted.[^60] JP Massiah abused his power in the workplace, and subjected his inferiors to repeated sexual harassment relentlessly and for a long period of time.[^61] The majority in this case, at para. 132, cited Massiah to support its position that a lack of insight can be an aggravating factor, but that was not the point of the case. The misconduct in Massiah was very different and much more serious than JP Lauzon’s.

(viii) Summary of precedents

[127] The precedents establish that a removal recommendation usually requires truly offensive speech, a disregard for the rule of law – including actually breaking the law, an element of self-dealing, the failure to perform the duties of the office, repeated misconduct, misbehaviour that extends over a long period of time, or combined instances of misconduct. None of these apply to JP Lauzon.

(b) The aggravating and mitigating factors

[128] The disposition phase requires a hearing panel to consider both aggravating and mitigating factors, and so resembles criminal and quasi-criminal sentencing. These factors are set out, non-exclusively, in s. 17.3 of the Justices of the Peace Review Council Procedures Document.[^62] The majority and the dissenting member both considered the factors. It is telling and unusual that the majority did not identify a single mitigating factor in JP Lauzon's favour.

[129] The contrast between the dissent and the majority begins with their discussion of the first and second factors, which address whether the misconduct was an isolated incident or shows a pattern, and the nature of the misconduct. The dissent noted, at para. 166, that the Panel “only found misconduct” respecting the article’s publication and its “language and tone”. He added that because “there is no pattern of misconduct … this would be a mitigating factor.”

[130] As to the nature of the misconduct, the dissent observed, at paras 180-83, that while the article “received much publicity”, there were “only three formal complaints” and “[n]o letters of complaint were received from members of the public.” He noted that although the article “undermined public confidence in the administration of justice,” he believed “that the relatively muted response from the public … should now be taken into account when determining the appropriate sanction to impose.”

[131] The majority took a different approach. It noted, at para. 78, presenting counsel’s submission that “it is open to this Panel to find that the evidence shows continuing bias by Her Worship since the publication of the Article” so that the misconduct is better characterized not as an “isolated event, but part of a pattern of misconduct.” While professing to keep separate the complaints and JP Lauzon’s conduct since the article’s publication – really only her defence and her testimony – the majority did not do so.

[132] Another factor asks whether the justice has “evidenced an effort to change or modify [her] conduct”. This factor is not especially relevant where the behaviour is not repeated, as it was in several of the cases noted above. The dissent considered this to be a mitigating factor: “[t]here have been no further articles or opinions written by Justice of the Peace Lauzon in the more than four years since the National Post article was published in March 2016”: at para. 171. The majority’s comment, at para. 97, was to express dismay that JP Lauzon refused to accept that she “crossed a bright line” and that “she stands by her position that the Article was appropriate and necessary”. It noted, at para. 107, JP Lauzon’s counsel’s submission that she “has refrained from responding to media requests for interviews”, which implied “that there is little risk of the conduct reoccurring.” The majority rejected this submission virtually without explanation, noting at para. 34 that her decision not to engage with the media following the publication of the article could not be treated as “genuine efforts at remediation”.

[133] The single most aggravating factor for the majority was not its concern for the effect of JP Lauzon’s conduct on public respect for the judiciary, to which it referred at paras. 121-25, but her refusal to accept with docility the Panel’s judgment in the merits decision, with which she disagreed, and her failure to express remorse, show insight, acknowledge and apologize for publishing the article, and seek the Panel’s forgiveness during the disposition phase, which could all have served as mitigating factors.

[134] The majority referred to several precedents in order to establish some well-founded and uncontroversial propositions. Judicial councils can, and sometimes must, recommend a removal from office based on expressions made to the public or the media (Moreau-Bérubé, Flynn, Matlow, and Camp). Possible aggravating or mitigating factors in disposition include the presence or absence of insight (Massiah); admitting or declining to admit to misconduct (Flynn, Zabel); and the presence or absence of an apology (Matlow, Zabel), although sometimes an apology will not suffice (Camp). The problem is not with these general propositions but with their proportional application to JP Lauzon. In their details, these precedents are not factually or legally apposite, as I pointed out in my discussion of them. The majority cherry-picked quotes without engaging in an analysis of the nature and seriousness of the misconduct at issue in the cases.

[135] More fundamentally, the majority made a legal error in its approach. Because JP Lauzon continued to assert her defence, the majority effectively turned her adamant defence into an aggravating factor. This is wrong in principle because it interferes with JP Lauzon’s right to make full answer and defence. Although written in the professional discipline context, the Divisional Court’s comments in Groia v. Law Society of Upper Canada apply here by parity of reasoning:

The appellant's lack of remorse, in the circumstances of this case, cannot be treated as an aggravating factor. To do so represents a fundamental misapplication of the principles outlined in R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.), at para. 82. It is also difficult to see how the Hearing Panel could have reached a conclusion that the appellant's misconduct demonstrated a "substantial likelihood of future misconduct" when there had been no such misconduct by the appellant in the ten years since the events of the Felderhof trial and the appellant had an otherwise unblemished discipline record as a lawyer.[^63]

[136] The same principle is well established in criminal sentencing.[^64]

(3) The proportionality analysis required by Doré

[137] The remaining question is whether the majority took due account of JP Lauzon’s Charter rights and related constitutional elements in the proportionality analysis required by Doré.

[138] I first restate Doré in light of the Supreme Court’s decisions in Loyola High School v. Quebec (Attorney General)[^65] and Law Society of British Columbia v. Trinity Western University,[^66] and then consider whether the Hearing Panel applied Doré properly.

[139] I noted above that the Hearing Panel did not err in taking the Doréapproach to the application of s. 1 of the Charter rather than R. v. Oakes, on the basis that the differences between the two approaches would make no difference to the outcome of this case. This is because the disposition decision cannot survive the robust proportionality review Doré demands.

(a) Doré restated

[140] It is axiomatic that “[a]ll law and law‑makers that touch the people must conform to” the Charter.[^67] The Charter applies in assessing the constitutional validity of both laws and of decisions made by officials and statutory tribunals discharging statutory mandates, including the Hearing Panel.[^68]

[141] Section 2 of the Charter states, “[e]veryone has the following fundamental freedoms … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. No exception is made for judges or justices of the peace. The cases relating to judicial discipline for ethical and other lapses recognize this. Accordingly, the Hearing Panel was required to take due account of JP Lauzon’s Charter rights at every step of its work, in this instance, in both the merits phase and the disposition phase.

[142] At issue in Doré was whether the Barreau du Québec had violated lawyer Gilles Doré’s freedom of expression under s. 2(b) of the Charter by penalizing him with a reprimand for harshly criticizing a Superior Court judge. The Court of Appeal of Québec found that Mr. Doré’s freedom of expression had been limited by the Barreau du Québec’s decision. The live issue was whether that limit could be demonstrably justified, as was required by s. 1 of the Charter, according to the principles of a free and democratic society. In answering that question, the Court of Appeal of Québec applied the methodology developed in in R. v. Oakes[^69] for assessing the reasonableness of a limit on a right or freedom that has been prescribed by law, and upheld the penalty. The Oakes test, has four aspects:

1. Is the legislative goal pressing and substantial?

2. Is there proportionality between the objective of the legislation and the means chosen to achieve it? This question is assessed by three enquiries:

a. Rational connection: is there a causal link between the impugned measure and the pressing and substantial objective?

b. Minimal impairment: does the limit impair the exercise of the right or freedom more than is reasonably necessary to accomplish the objective?

c. Proportionate effects: is there proportionality between the deleterious and salutary effects of the law?

[143] The Supreme Court dismissed Mr. Doré’s appeal. However, the court, in reasons written by Abella J., developed what it called the “administrative law approach” in order to adapt the existing Charter rights limitation analysis in Oakes to the review of a type of government action that is categorically different from passing a law: discretionary administrative decision-making.

[144] Because Mr. Doré had not challenged the constitutionality of the provision in the Code of Ethics under which he was prosecuted, Abella J. found that the analysis could therefore traverse to a modified version of the three-part proportionality inquiry.[^70]

[145] In place of the Oakes test, Abella J. prescribed a two-step process in which “the decision-maker should first consider the statutory objectives”,[^71] and then ask “how the Charter value at issue will best be protected in view of the statutory objectives”.[^72] This expectation was later enhanced in Loyola and Trinity Western: tribunals must carry out “a robust proportionality analysis consistent with administrative law principles”,[^73] one that works “the same justificatory muscles” as the Oakes test, not a “watered-down version”.[^74] It is noteworthy that Abella J. added the word “robust” and emphasized it in Loyola when she reprised the Doré framework. This word was clearly meant to be taken seriously, and I do.

[146] The majority in Trinity Western said: “The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context.”[^75] This language built on Abella J.’s formulation in Loyola, where she said that, under Doré, “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue”.[^76]

[147] When a tribunal is making a disposition or setting a penalty, the Doré proportionality analysis of a rights limitation is fully engaged. As the Supreme Court also recognized in Groia, at para. 113, when a professional misconduct finding engages expressive freedom, the tribunal must likewise proportionately balance its statutory objective with that freedom. In this case, the Hearing Panel’s fullest discussion of Doré is found in the merits reasons, and it is not revisited in the disposition reasons. This is because the Panel invoked Doré in properly dismissing JP Lauzon’s application for a stay under s. 24(2) on the basis that her s. 2(b) Charter right to freedom of expression was limited by the proceedings. But the Panel did not adequately attend to the application of Doré in the disposition phase.

[148] What does a “robust proportionality analysis” involve? In my view, the analysis must advert to the proportionality analysis developed by the Supreme Court in Oakes for cases in which a government actor is seeking to limit a Charter right. The proportionality analysis from Oakes asks whether the limit on the right is proportionate in effect to the public benefit conferred bythe limit.[^77] Two aspects must be carefully assessed: the negative effects on the individual whose rights are engaged, and the positive effects on the public good. Using the court’s own words, this analysis is to take “full account of the ‘severity of the deleterious effects of a measure on individuals or groups’”,[^78] that is, whether the “benefits of the impugned law are worth the cost of therights limitation”,[^79] or, more precisely, whether “the deleterious effects are out of proportion tothe public good achieved by the infringing measure”.[^80] This is to be a “broader assessment”.[^81] These principles apply with necessary modifications to tribunal decisions such as the disposition decision in this case.

(b) The application of Doré

[149] The Hearing Panel did not undertake a full Doré analysis but simply said, at para. 138 of the merits decision, that it would be “guided by Charter principles” in making its findings about the article and otherwise going about its work, and did not revisit the matter in the disposition reasons. The Doréapproach should not tempt tribunals to elide key steps in the analysis. Because the rights limitation analysis in this case was complex and involved many competing public interests, the Hearing Panel had to do more.

[150] Under Doré, the Hearing Panel was required to engage in a robust limitations analysis that takes the guarantee of s. 1 seriously: the rights set out in the Charter are guaranteed subject only to reasonable limits that are demonstrably justified. An administrative decision-maker must bear in mind the elements of the affected Charter rights and determine whether the proposed disposition would constitute an unreasonable limit. One way of acting unreasonably is to limit the right more than is necessary to achieve the statutory objectives in the particular context. This is the kind of unreasonableness captured by the “minimal impairment” branch of the Oakes proportionality test. The context here included the fact that JP Lauzon is a public office holder protected by the constitutional principles of judicial independence associated with the separation of powers.

[151] The Panel was required to undertake a robust analysis of the impact of its proposed disposition on JP Lauzon’s rights. To structure this analysis, the Panel was required to undertake three inquiries: first, to assess the negative or deleterious effects that the removal recommendation would have on the exercise of right asserted by JP Lauzon (on the assumption that the recommendation would be accepted by the Attorney General and implemented by Cabinet) as well as any collateral effects, for example, creating a chilling effect on the rights of others; second, to assess the positive effects or benefits of that disposition in terms of the public good; and third, to undertake the proportionality analysis by assessing, for example, whether the disposition involves means that are always impermissible, whether the disposition is needed to achieve the good sought, or whether the deleterious effects or costs imposed by the disposition are out of proportion to the public good to be achieved. The Panel did not do that work, and it is not up to this court, in an effort to salvage the disposition, to reconstruct what the Panel’s approach would have been. It is not the reviewing court’s function to fill a “fundamental gap” in a tribunal’s reasoning by mining the record.[^82]

[152] The manifest errors made by the majority render its disposition decision unreasonable: it failed to take due account of the governing principles in the areas of judicial independence and judicial impartiality; it erred in its finding that JP Lauzon was biased against Crown prosecutors; it failed to take into account the relevant precedents and the appropriate mitigating and aggravating factors; and it failed to carry out the robust proportionality analysis required by Doré. This is the kind of matter that would ordinarily be remitted to another hearing panel, as Vavilov suggests.[^83] But it is time for this odyssey to end and remitting the matter would serve no useful purpose. Indeed, the respondent, the Justices of the Peace Review Council, has asked this court to determine the appropriate disposition if we found the Hearing Panel had erred. I now turn to that task.

(i) Assessing the negative or deleterious effects of JP Lauzon’s removal

[153] There are two perspectives at play, one personal and the other systemic. The obligation to take seriously the impact on JP Lauzon of the decision to recommend her removal comes from Vavilov: “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes”.[^84]

[154] But the point is more acute in its focus – more attitudinal and case-specific. The prompt should be for the Hearing Panel to be demanding of the standard of proof on presenting counsel, to be understanding of JP Lauzon’s principled position, to give her the benefit of the doubt where appropriate, and to recognize the remarkable precedent that her removal would establish, given the constitutional dimensions of judicial independence underpinned by the separation of powers, the importance of judicial impartiality and Doré proportionality.

[155] The dissenting member was right to point out, at para. 160 of the disposition decision, that the Hearing Panel should “act cautiously” in the disposition because, as stated in Re Baldwin:

It is important to recognize, however, that the manner in which complaints of judicial misconduct are addressed can have an inhibiting or chilling effect on judicial action. The process for reviewing allegations of judicial misconduct must therefore provide for accountability without inappropriately curtailing the independence or integrity of judicial thought and decision-making. [Emphasis added by dissent.][^85]

[156] This statement built on the decision of Gonthier J. in Therrien:

Thus, before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office. [Emphasis added by dissent.] [^86]

[157] The effect on JP Lauzon of losing her office as justice of the peace and her livelihood is obviously severe, but the systemic concerns go much deeper. The possible consequences for judicial independence from offending or annoying the executive have particular salience in JP Lauzon’s case. It was, after all, members of the executive branch of government (senior Crown prosecutors) who together filed complaints against her. Her removal would signal that the executive can interfere with the independence of the judiciary where it disapproves of a judicial officer’s challenge, via truthful speech if intemperately expressed in part, to the conduct of government actors – Crown prosecutors. If JP Lauzon’s conduct were condemned and she were to be removed from the bench, other judges might be dissuaded from being critical of the administration of justice under the authority of the executive, which would undermine judicial independence, freedom of expression and the separation of powers.

[158] Giving effect to the Hearing Panel’s flawed approach to the analysis would give rise to a bad precedent in several ways, especially the reframing of the test for bias in subjective terms. It would substantially lower the bar for a justice’s removal. As noted, the precedents establish that a removal recommendation usually requires truly offensive speech, a disregard for the rule of law, including actually breaking the law, an element of self-dealing, the failure to perform the duties of the office, repeated misconduct, misbehaviour that extends over a long period of time, or combined instances of misconduct. None of these apply to JP Lauzon.

(ii) Assessing the positive effects or benefits of JP Lauzon’s removal in terms of the public good

[159] It could be argued that JP Lauzon’s expression of her honestly felt opinion was so misguided that her misconduct warrants a firm denunciation of the language used in the article (such as “disgrace” and “devoid of the rule of law”) in order to protect public confidence in the justice system – the value reflected in the precautionary principle relating to judicial independence. A tough disciplinary response would reinforce the obligation of a judicial officer to use official channels to rectify problems, and not resort to the court of public opinion. JP Lauzon’s removal would stand as a warning to other judicial officers to be more careful in any extrajudicial speech.[^87]

(iii) The proportionality analysis

[160] I agree with the Hearing Panel that the statutory objective in this case is the protection of public confidence in the independence, integrity, and impartiality of the judiciary, particularly in JP Lauzon. I also agree with several other of the Panel’s statements. The Panel found, at para. 137 of the merits decision, that JP Lauzon had an obligation to be restrained in her public speech and mindful of her role, though she did have the right to express herself on the issues. The Panel noted, at para. 137, that “[s]ome restraint on judicial independence is necessary and justified to protect the confidence in the judiciary as a whole”, citing Doré. The majority noted, at para. 34 of the disposition reasons, that JP Lauzon is free to express herself, so long as she does so with “dignified restraint”. However, the Panel found, at para. 304 of the merits decision, that the article “exceeded, by far, the bounds of permissible speech for a judicial officer”. While I might have omitted the words “by far”, I otherwise agree.

[161] The majority placed weight on a factual comparison to Doré, but it is not apposite. If anything, the decision in Doré reinforces the sense of disproportion in this case. The penalty of a mere reprimand in Doré informed the Supreme Court’s proportionality analysis in approving the penalty in that case. But removal from office is a far weightier penalty, and its imposition against JP Lauzon in this case would be disproportionate.

[162] The focus must be on JP Lauzon’s actual misconduct. Having concluded that the majority’s finding that her conduct “gives rise to a reasonable apprehension of bias, if not actual bias” was not principled, legally correct, or proven, what is left? We are left with what the Hearing Panel initially found to be the misconduct – writing the article in a certain inflammatory fashion – or, as the dissenting member described it at para. 166, for “the language and tone used by her in the opinion article” that might, on one reading, undermine public confidence in the justice system. It was the public nature of JP Lauzon’s intemperate remarks that the Hearing Panel initially found to be misconduct.

[163] This initial view of JP Lauzon’s misconduct was sound. But there is a lurking issue that requires comment. Any judge with experience in a given locale soon discovers frequent litigants about whom the judge forms impressions, both good and bad. Some litigants are unfailingly helpful and pleasant. Some are not. Judges know that they are obliged to set aside such personal impressions, even those formed after long experience, and pursue justice impartially. This is no less true of bail court. As JP Lauzon observed in testimony, “some Crowns really got it. Some Crowns are nothing but professional.” Others were less so. This was the source of her stinging comments about certain Crown prosecutors, though those comments were better left unsaid, or said in a less inflammatory manner.

[164] This observation about a judge’s experience is consistent with the dissent’s note, at para. 196, that JP Lauzon should not be punished for the “beliefs” she holds, which is exactly what he suggested the majority was doing. He pointed out that “her four subsequent years of unblemished conduct on the bench indicate that – notwithstanding her beliefs – she will not continue with the behaviour that she manifested in writing the article.” The duty of any judicial officer is to lean against inappropriate personal inclinations and to continue to be impartial even in the face of provocations. JP Lauzon’s record in her career, especially after the complaints were made, shows that she well understands this duty and can discharge it effectively.

[165] For the misconduct of writing the article in an inflammatory manner, the dissenting member took the view that neither the precedential case law nor the application of the aggravating and mitigating factors warranted JP Lauzon’s removal from office. He considered several relevant factors at paras. 241-52: this was a single act of misconduct; a recommendation for removal from office – the last and highest rung on the disciplinary ladder – strikes at the heart of judicial independence; there was no whiff of criminality or self-dealing; and the misconduct had not subsequently been repeated. In his view, JP Lauzon’s removal from office would constitute a marked departure from the existing jurisprudence. He noted her years of service without incident, especially since the beginning of the disciplinary process.

[166] I cannot improve upon the dissenting members trenchant comments, at para. 248-49:

First, the Canadian Judicial Inquiry Committee in Re Certain Judges of the Nova Scotia Court of Appeal (the “Marshall Report”) in 1990 unanimously defined the test for removal asthis: “The standard, in our view, must be an objective one based in part, at least, on conduct which could reasonably be expected to shock the conscience and shake the confidence of the public as opposed to conduct which is, and often must be, unpopular with part of that public. [Emphasis added by dissent.]

Keeping this statement in mind, I would again refer to my earlier comments with respect to the reaction of the public to Justice of the Peace Lauzon’s article, and conclude that the public appeared to have been neither particularly shocked nor overly shaken by her comments.[^88]

[167] I return to the question asked by Gonthier J. in Therrienand cited by the dissenting member: “the question to be asked is whether the conduct for which [JP Lauzon] is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary” that only removal will suffice.[^89]

[168] For the reasons given by the dissenting member, which I endorse, the answer is no. JP Lauzon’s removal from office as justice of the peace for writing a polemical article that, nonetheless, accurately identified real problems with bail courts, would be grossly disproportionate to the nature, extent and seriousness of her judicial misconduct. The dissenting member recommended that JP Lauzon be reprimanded and suspended without pay for a period of thirty days. His approach to the disposition decision was measured and proportionate. I agree with him that this disposition would drive home to JP Lauzon the seriousness of the misconduct and would also restore public confidence in the integrity of the judiciary as a whole and in the administration of justice.

V. DISPOSITION

[169] I would allow the appeal in part and would substitute the disposition that JP Lauzon be reprimanded and suspended without pay for a period of thirty days. I would award costs in favour of the appellant in the amount of $15,000 for the application for leave to appeal and $25,000 for the appeal, both figures all-inclusive. The parties did not address the issue of the costs of the hearing before the Hearing Panel. The parties may address the court on this issue in written submissions of no more than two pages, plus a costs outline, within ten days of the release of these reasons, if they cannot resolve it.

Released: June 15, 2023 “P.D.L.”

“P. Lauwers J.A.”

“I agree. Roberts J.A.”

“I agree. B.W. Miller J.A.”

APPENDIX OF TRANSCRIPT REFERENCES

As noted at para. 91, above, this appendix sets out the portions of the transcripts that the Hearing Panel in the merits decision and the majority’s disposition decision relied on in support of the finding of bias.

The Merits Decision

At para. 145, the Hearing Panel stated, “Her Worship publicly admonished and laid blame squarely on prosecutors who appear before her in court for issues she allegedly encountered in bail court, thereby creating an apprehension that she was biased against the Crown Attorneys”. In support of this, the Panel cited the Transcript of September 17th, 2019 at p. 186, lines 3-24, and p. 232, lines 13-16:

Transcript of September 17th, 2019, at p. 186

Q. Thank you. You say here that the law goes out the window, and you're blaming that on the Crown, aren’t you?

A. Well, their choice...their choice, some of them, to influence the presiding judicial officer or intimidate the judicial officer into not applying the law.

Q. So the answer to my question is yes?

A. What is your question again?

Q. My question was, what you’re saying here in the article is that the law goes out the window, and you’re blaming that on the Crown, right, in this article?

A. To the extent where they are interfering with the application of the law, yes.

Q. So it’s the Crown that causes the law to go out the window?

A. Well, I don't see who else it would be in the courtrooms that I have been in with regard to that.

Q. So, yes is the answer to my question?

A. Yes.

Q. Thank you.

Transcript of September 17th, 2019, at p. 232

Q. Okay. So this dysfunction and punitiveness, that is the fault of the Crown, right?

A. It is as a result of the Crown behaviour, very much so.

Q. Across the country? Did you answer that question?

A. Many others throughout the country, that is what it says, yes.

At para. 300, the Hearing Panel stated, “[t]he overall tenor of the article … gave the appearance of a retributive personal attack on prosecutors rather than a serious, considered, and civil critique of the bail system and the importance of judicial independence”. In support of this conclusion, the Panel referred to the Transcript of September 17, at p. 197, line 10 to p. 198, line 6:

Transcript of September 17th, 2019, at p. 197-98

Q. To be clear, isn’t it fair that this article is a full-on attack on the credibility, integrity and good faith of Crown counsel who appear in your court?

A. No, no. And don’t disregard the Crown behaviour that led to these observations that I made and then later wrote about. You cannot not take those into account. But you weren’t there, hardly anybody is there. We are there and we live it.

Q. So your account of that behaviour is not an attack on the credibility, integrity and good faith of Crown counsel?

A. No, no, because some Crowns really got it. Some Crowns are nothing but professional.

Q. Okay. What about the ones who you say are not professional, it’s a full-on attack on their integrity and good faith, isn’t it?

A. I’m not saying that they had bad faith in behaving the way they do, but they just... like I said, I don’t know what is going through their mind. I certainly would not qualify it as an attack. It’s just stating the facts.

At paras. 261-62, the Hearing Panel quoted excerpts of JP Lauzon’s testimony with respect to the possible appearance of bias, referring to the Transcript of September 17, 2019, at p. 174, line 11 to p. 178, line 13:

Transcript of September 17th, 2019, at p. 174-178

Q. You will agree that it’s important for judicial officers when they engage in public speech to avoid becoming part of the political fray?

A. I am the most apolitical person you’re ever going to meet, Mr. Smith.

Q. Okay. So does that mean you agree with me?

A. I am saying that there was no political aspect to this article whatsoever.

Q. Okay. And you will agree that it’s important for judicial officers when they engage in public speech, make public statements, to avoid leaving the impression of bias or favouritism?

A. I thought the bias question had been addressed by the complaints committee.

Q. I am asking you whether you have a duty to avoid writing in public or speaking in public in a way that leaves an impression of bias or favouritism?

A. I think...I think, Mr. Smith and the panel, that when it comes to speaking the truth, it’s not always politically correct and it’s not always pretty. The main...the fundamental aspect of speaking out is being truthful, and if that ruffles a few feathers as a consequence, the bottom line is, when you speak out, you need to be truthful, and have no other motive than to fix the problem.

Q. So truth is the only limit on your ability to make public comment?

A. Well, I think...I mean, you’re not going to go out and insult people all over the place. You’re not going to do that. You’re going to use the language that you need to make sure that people understand what the facts are. And, yes, you absolutely have to be truthful.

Q. So even if that leaves the impression of bias or favouritism?

A. Well, you know, I can’t speak to the impression that it would leave because that is subjective, right? That is somebody else reading the article. But the truth is the truth and it has to be factual. So, like I said, if it upsets certain people, well, probably there is an issue to begin with. So somebody is going to be upset by what you write when you speak the truth.

Q. So when you write in the National Post, it wasn’t your concern what impression was going to be left by your article, is that what you’re telling me, because that is subjective in the minds of someone else?

A. I... like I have already said, the entire one hundred percent goal of writing this article was to point out the issues and have them dealt with. I’ve written to Jesse Kline and I wrote in my affidavit that there was never any intention other than that.

Q. So you didn’t consider what impression your article was going to leave?

A. It had to be written.

Q. I would really...I think it would be faster if you answered my questions.

A. I didn’t...I didn't say, “Oh, this is”...no. I mean, this was the issue, this is a huge issue, and that is all I was thinking of.

Q. So, no, you did not consider whether it would cause an impression in the reader of bias or favouritism?

A. I could say this...this is the extent to which I can answer your question. I'm doing the best that I can. I didn’t think for a moment that this would give the impression of bias, no matter who was reading the article.

Q. My question was, Your Worship, whether you didn’t think about the idea that it might cause an impression of bias or favouritism. Does that mean you didn’t consider the issue, or you did and you didn’t think it would cause an impression of bias or favouritism?

A. I don’t think I considered the issue.

Q. Okay. Thank you. You will agree with me, Your Worship, that is your duty when you’re speaking publicly as a judicial officer to contribute to public confidence in the integrity, impartiality and independence of the court?

A. Yes.

Q. And you will agree with me, when you as a judicial officer speak publicly, members of the public are likely to attach significant legitimacy to your comments, given your position of authority?

A. I don’t think so.

Q. You don’t. Okay.

From paras. 274-286, the Hearing Panel reviewed the evidence of Kate Matthews, the former President of the Ontario Crown Attorneys Association, under the heading “Evidence of the Appearance of Bias”.

At paras. 275-76, the Panel relied on the Transcript of October 9, 2019, at p. 39, line 15 to p. 40, line 22, noting Ms. Matthews’ testimony that JP Lauzon’s article did not accurately reflect the challenges and competing interests that prosecutors face, and her evidence that the article was “very unbalanced”, placing all the blame on Crown Attorneys:

Transcript of October 9, 2019, at pp. 39-40

A. So, we have various concerns with the article, but with respect to morale, the article does not, in my view, and the view of the board, accurately, fairly capture the role of an assistant Crown attorney in the bail courts, the pressures that they are under, the factors that go into the decision-making on a day-to-day basis.

It seemed to lay the blame for every failing of the bail court system at the feet of Crown attorneys. It was very unbalanced, and there is really very little we can do in terms of countering the tone, the tenor and the content of the article.

Q. You have indicated that these are the views of...that were being reported to you. How did you personally feel about the article?

A. I experienced all of those emotions when I read it. I have...as you know, I have been an assistant Crown attorney for 20 years. I know very well what it is like to be in bail court. I understand all of the pressures that go into that. We are not immune to criticism by any means, and we are criticized personally...you know, we will get it from all sides. We get complainants who are not happy with our decisions. Police officers, the bench, any number of people. But we, in my view, go in there with many different interests that we have to consider. We are not there acting on any one person. We have to consider the interests of the public, public safety, the interests of the accused. Our obligations to the administration of justice. Our obligations to the bench.

At para. 277, the Panel referred to the Transcript of October 9, 2019, at p. 40, line 23 to p. 41, line 9, in discussing Ms. Matthews’ evidence of the complexities of bail and the pressures on Crowns who act in bail court, and on the deflating effect the article had on Crowns:

Transcript of October 9, 2019, at pp. 40-41

Bail is very complicated. It is not a simple matter. We have a lot of training in bail. We are told that it is a critical aspect of the process, and it is very difficult to do bail court when we have very little...we often don’t have enough resources to do so. We don’t have enough courtrooms. There is a lot of pressure to respect the right to get a bail hearing decided quickly. All of those pressures come to bear on a Crown who is doing bail court, and I felt that this article completely deflated us in everything we are trying to do.

In the same reference, the Hearing Panel cited JP Lauzon’s testimony from the Transcript of September 17, 2019, at p. 99, line 6 to p. 100, line 14:

Transcript of September 17, 2019, at pp. 99-100

A. That is not an easy court for a Crown at all, because they get files in the morning, they have to go through those files as quickly as they can, assess the criminal record and everything else, have a discussion with defence, and hopefully come up with some conditions and a consent release, or decide that they’re going to show cause. I understand, because you see them walking in when it’s time to do Polycom or whatever, and they’re, like...it's 11:30 in the morning and they’ve already had enough. Well, months on end of that? This is what I meant, is that they, in my view, from where I was sitting, had reached a point where, “I really don't care anymore. Let’s just get this list done and just agree with my conditions, so that we can move on to the next one.”

Q. Now, when you say for months, I understand you to mean it was...was it the same Crown attorney?

A. Yes.

Q. Okay. So the same individual would be basically posted in that...

A. Yes.

Q. ...court for months on end?

A. To me, that would be exhausting. You didn’t...anyway, every time I went in there, they were there, and speaking to my colleagues, “Who is the outside Crown today?” “Oh, well, it's the same person.” It's enough to...anyway...exhaust somebody, in my view, but...so this is what I meant by cynicism, is that the...and it’s just my observations, but it did not appear like they really cared too much about the person’s liberty, or the reasonableness of conditions, or, as one seasoned Crown called them, the Charter concepts.

The Panel referred to the Transcript of October 9, 2019, at p. 42, lines 3-15 when it discussed Ms. Matthew’s testimony that the article painted prosecutors as “cynics” and “bullies” which meant that “they were not taking notice of the law and were not concerned with it”:

Transcript of October 9, 2019, at p. 42

Q. “… It is at this point that the law goes out the window and cynicism and bullying kick in...” How did you and your colleagues react to that passage from the article?

A. Well, obviously we are painted as cynics, as bullies. I assume what is being said there, at least how I interpret this, is law goes out the window, which means that we don’t take any notice of it. We are not concerned with it. We are just concerned with getting our way, that we...I am not sure exactly how to take that except for terribly insulting.

At para. 279, the Panel referred to Ms. Matthews’ evidence about the article describing Crowns as being like “toddlers having tantrums”, citing the Transcript of October 9, 2019, at p. 45, line 13 to p. 46, line 8:

Transcript of October 9, 2019, at pp. 45-46

Q. And I will draw your attention, please, to the last full paragraph on that page, the one that starts, “Lauzon says”.

A. Yes?

Q. “...Lauzon says it is the responsibility of the justice of the peace to make sure conditions on the accused are reasonable, and she says she is getting serious pushback from Crown lawyers when she questions them. The behaviour of some Crown counsel that she describes is, in our view, more suited to a toddler denied Twizzlers at a Loblaws checkout than to justice system professionals...” How did you and your colleagues react to that passage in this editorial?

A. I think it is fair to say that we take our jobs very seriously, and the obligations that flow from it. We come in and do our best every day, and to be described in the public as toddlers having tantrums was incredibly demeaning.

At para. 280, the Panel excerpted portions of Ms. Matthews’ testimony in the Transcript of October 9, 2019, at p. 43, lines 11-18:

Transcript of October 9, 2019, at p. 43

The difficulty with this passage is that, as I said, it is very one-sided. The public...anyone reading this article will only know this point of view, will have no information with respect to why the Crown may make decisions as they do, why they may decide to bring an appeal, whether they may not, what the law is with respect to appeals. It doesn't tell the full story.

At para. 281, the Hearing Panel noted Ms. Matthew’s view that it was worse that the article did not name individual prosecutors, which she explained in the Transcript of October 9, 2019, at p. 43, line 19 to p. 44, line 4:

Transcript of October 9, 2019, at pp. 43-44

Q. Did it matter to you or your colleagues that no single Crown attorney is named in this article?

A. I actually in some ways think it was worse, because it ended up painting the entire Ontario...sorry, Ottawa Crown's office with the same brush. I suspect there would have been a lot of rumours, murmurings about who it is she was referring to. But, really, it is the entire office who is then implicated in the behaviour as she describes it.

At para. 282, the Hearing Panel discussed Ms. Matthews’ testimony that the ongoing media attention for a one-sided article meant that people would accept it as fact and as truth, referring to the Transcript of October 9, 2019, at p. 45, line 2 to p. 46, line 15:

Transcript of October 9, 2019, at pp. 45-46

Q. Can I ask you to look at what is marked as Exhibit 13? And it bears the heading, “Editorial: Find Out What is Going On with the Bail System”. Have you seen that article before?

A. I have.

Q. And, again, how did it come to your attention?

A. In the same way.

Q. Thank you. Could I ask you to turn to the second page of that exhibit?

A. Yes.

Q. And I will draw your attention, please, to the last full paragraph on that page, the one that starts, “Lauzon says”.

A. Yes?

Q. “...Lauzon says it is the responsibility of the justice of the peace to make sure conditions on the accused are reasonable, and she says she is getting serious pushback from Crown lawyers when she questions them. The behaviour of some Crown counsel that she describes is, in our view, more suited to a toddler denied Twizzlers at a Loblaws checkout than to justice system professionals...” How did you and your colleagues react to that passage in this editorial?

A. I think it is fair to say that we take our jobs very seriously, and the obligations that flow from it. We come in and do our best every day, and to be described in the public as toddlers having tantrums was incredibly demeaning. And the other concern that arose from that is that it illustrated the concern about having a one-sided article written by a sitting justice out there in the sphere...this is what people will pick up on and accept as truth, and accept as fact, and then draw their own interpretations from it. So, it grows and spreads.

At paras. 283-84, the Hearing Panel discussed Ms. Matthews’ evidence as to why it was difficult for Crown Attorneys to respond to JP Lauzon’s article, citing the Transcript of October 9, 2019, at pp. 46, line 16 to p. 47, line 10 (in chief) and p. 56, line 19 to p. 57, line 23 (cross-examination):

Transcript of October 9, 2019, at pp. 46-47

Q. You said a few minutes ago in response to one of my questions that there was little that you could do to answer the article. Why didn’t the OCAA respond in the press? Why didn’t, for example, you as president write your own op-ed?

A. There are really two reasons. The main concern is that I... we saw it as very unseemly. We couldn’t do that in a way that would, I think, be viewed as an attack upon a sitting justice, which we would never do. I don’t believe we ever have done in that way, in a public forum.

We felt the most appropriate forum for this was the forum that we are in here today. It is unseemly to have a province of Crown attorneys having, essentially, a squabble or a battle with a sitting justice in the media.

It is not a...as I said, this is not simple stuff, what was happening in the bail system. It is complicated, and it doesn’t lend itself very easily to op-eds in a newspaper.

Transcript of October 9, 2019, at pp. 56-57

Q. Okay. And if you look at their comments that they made at the time, if you put all that together, would you not agree with me that that could have been the basis for an op-ed piece by the Crown Attorneys Association?

A. No.

Q. No?

A. Because, as I say, this doesn’t...it doesn’t...I mean, this is very...how would I describe it? I mean, it is a very blanket kind of response...

Q. M'hmm.

A. ...that doesn’t dive into the details of it. It doesn’t talk about the fact that, you know, at 3:00 in the afternoon, you still have 18 bail hearings that are waiting to be heard. You have nowhere to send them. You have to make decisions.

It doesn’t talk about...our policy directive is pages long on bail, and that is... that doesn’t even capture some of the special bail directives that we have. You can’t capture...you can’t address the inflammatory parts of Justice of the Peace Lauzon’s article, I don’t believe, in an op-ed. You just can’t.

You can just say, “We do our duties. These are our obligations. We have these considerations”. I don’t believe there is an appropriate way in the media to be able to properly address the inflammatory parts.

At para. 285, the Hearing Panel highlighted Ms. Matthews’ testimony about an article she had written in a legal publication in response to a critical article written by a member of the defence bar, citing the Transcript of October 9, 2019, at p. 87, line 20 to p. 90, line 20 (cross-examination), and p. 92, line 1 to p. 93, line 1 (re-examination):

Transcript of October 9, 2019, at pp. 87-90

Q. Okay. It is in the decision in the Court of Appeal in Picard. Michael Spratt, in an article, blamed overzealous, possessive Crown Attorneys as being responsible for the cases being delayed. You responded to that in an article indicating that he was simply wrong. Do you recall that?

A. I don’t know that I said...I definitely wrote the article. It has been a while since I have read it. I can’t remember. I think what I was saying in the article is that he didn’t give the complete picture. I would have to read it again.

Q. Unfortunately, I only have one copy, and mine is highlighted.

A. I will ignore.

Q. It is all right, that is the portion I would like to take you to.

A. Yes.

Q. Okay. Is that the article that you wrote?

A. It is.

Q. All right. And it is entitled, “Don't Blame Crown Attorneys for Court Delays”?

A. Yes. I didn’t pick the title, by the way.

Transcript of October 9, 2019, at pp. 92-93

Q. Starting with the last issue, Ms. Matthews, you...my friend has taken you to an article in which you responded to some criticism that was visited upon assistant Crown attorneys in Ontario. You responded to that. How many times have you responded in the press to criticisms that were made against Crown Attorneys?

A. I think that was the only time. There was another article that was in response. I wrote a letter to the editor in response to another article written by defence counsel, but it was one where I was actually in agreement with what was being said.

Q. Okay. So, you were ad idem. This article that has just been made Exhibit 15, do you remember which publication it appeared in?

A. It was Canadian Lawyer or Lawyers Weekly, or whatever it is called now.

Q. I am going to suggest to you...I have got it on my computer screen here. I am going to suggest to you that it appeared in the Canadian Lawyer Magazine.

A. Correct, yes.

Q. Okay. Do you have an understanding of what the audience is for that magazine?

A. Lawyers, I would think.

Finally, at para. 286, the Hearing Panel quoted Ms. Matthews’ testimony about Crown Attorneys feeling like they could not have a fair hearing before JP Lauzon, citing the Transcript of October 9, 2019, at p. 47, lines 11-23:

Transcript of October 9, 2019, at p. 47

Q. You may have already answered some of this question, but this is where I wanted to end with. And what did it mean to you and your membership that it was a sitting justice of the peace who wrote this article?

A. The concern is that you would never feel that you could have a fair and impartial hearing before this Justice, who so clearly, in my view, showed such great disdain for every assistant Crown Attorney in the Ottawa Crown's office. I don't think you could feel that you could bring a hearing in front of her in a fair way.

The Disposition Reasons

At para. 23 of the majority’s disposition decision, the majority stated that JP Lauzon continues to “harbour disdain bordering on contempt for Crown counsel”, which it said speaks to her “lack of respect” for her duty of impartiality. In support of this, it referred to numerous portions of the transcripts: Transcript of September 17th, 2019, at pp. 32,[^90] 63, 98, 114, 145, 186, and 229; Transcript of September 18, 2019, at pp. 21, line 2 to p. 25, line 1; p. 59, line 11, to p. 61, l. 25:

Transcript of September 17th, 2019, at p. 32

Q. Yes, I have it. Do the members of the panel...

A. If you go down to the paragraph...two paragraphs above items 1, 2, 3, 4 at the bottom the page...is everyone there?

Q. Yes.

A. Okay. So here is what I propose at a meeting with Justice Block and Mr. O'Driscoll, the Crown attorney, back in January of ‘15. One of the things I noticed was Justice Block, Justice Michael Block at that time was the local administrative judge for Durham, and this was being proposed by the local administrative justice of the peace, Her Worship Forestall. She met with the LAJ and the Crown. I see no mention of defence having been consulted with respect to this change. So, here again is another indicia to me that our bail courts were being run with a bent towards letting the Crowns run the bail courts.

Q. Okay.

A. So I had a concern with that as well, so I just thought I would bring that to your attention as well.

Transcript of September 17th, 2019, at p. 63

Q. All right. Let’s talk a little bit about that. When you say you encountered problems with consent releases, what were the problems that you were having with that?

A. At that point in time, the Crowns ran the bail court. The Crowns ran number 6 court. Once in a while there would be a federal Crown or a provincial Crown that did not attempt to run the court, that understood the law. It wasn’t an issue. They knew that if they chose not to show cause, then they had to show cause if I questioned the conditions as to why those conditions were reasonable and necessary under any of the three grounds.

Transcript of September 17th, 2019, at p. 98

A. Okay. So I've already spoken about the inability...the unwillingness to apply the law. Again, the Crowns who don’t appear to understand the law or even interested in the law and with all of the pushback that I’m getting, I mean, I’m still applying it, but independently, without fear, no.

Transcript of September 17th, 2019, at p. 114

A. … They may come once in their lifetime to help bail somebody out or support somebody. They give a bow, they expect certain things in a court of law, most importantly the application of the law, and there not be this wrestling match between...and I’m going to say the Crowns and the bench, because I've never seen a defence counsel ever, in the eight years ever, have I seen a defence counsel do any of this. And they've not always been pleased with my decisions either. When you detain, they’re not happy.

Transcript of September 17th, 2019, at p. 145

Q. Okay. How about something like moderate or respectful, rationale, those sorts of things?

A. There was nothing disrespectful about what I wrote.

Q. Well, how about moderate? I am not asking you whether it was not...well, I guess I am, but how about moderate, does that fit with your definition of tempered?

A. The circumstances called for strong language, not disrespectful language. Language that was strong enough to get the message across that there was a very big issue.

Q. Okay. So, strong but not tempered; is that what you're saying?

A. It had to be strong.

Q. So, not tempered?

A. Draw the conclusion that you want from that.

Transcript of September 17th, 2019, at p. 186

Q. Thank you. You say here that the law goes out the window, and you’re blaming that on the Crown, aren't you?

A. Well, their choice...their choice, some of them, to influence the presiding judicial officer or intimidate the judicial officer into not applying the law.

Q. So the answer to my question is yes?

A. What is your question again?

Q. My question was, what you're saying here in the article is that the law goes out the window, and you're blaming that on the Crown, right, in this article?

A. To the extent where they are interfering with the application of the law, yes.

Q. So it's the Crown that causes the law to go out the window?

A. Well, I don't see who else it would be in the courtrooms that I have been in with regard to that.

Q. So, yes is the answer to my question?

A. Yes.

Transcript of September 17th, 2019, at p. 229

A. … you will rarely see a defence counsel in bail court act like this, then they may not confidently apply every...the law in every aspect. They...I know for a fact that a number of them stop asking for justification of conditions, because of the response that they got from the Crown.

Transcript of September 18th, 2019, at p. 21

Q. … Did you consider Mr. Wightman's reputation at all before you published this sentence about him turning his back on you?

A. I don't name him.

Q. Did you consider his reputation?

A. I was...I didn’t because he’s not named in there.

Q. Okay. So you...sorry, go ahead.

A. It was not attack on his reputation. I did not name him. So the only people who would know about this is him, myself and whoever was in the courtroom probably would have identified him and remembered the incident.

Transcript of September 18th, 2019, at p. 22-25

A. Yes.

Q. A packed courtroom?

A. Yes.

Q. They all could know who you were talking about when they read this article in the National Post, right?

A. Yes. And they...

Q. And...

A. And they would have all been witnesses to the incident.

Q. And for sure, Mr. Wightman knew who you were talking about, right?

A. Yes, I suspect he would, if he even read the article. I don’t even know if he read it.

Q. Well, isn’t it the basis for an application for your recusal later on, this very article?

A. He’s...well, the article, but he’s not the one who made the complaint, to my knowledge.

Q. Well, we will come to that document. Now, going to the next sentence in that paragraph. So we know for sure that the first sentence in that paragraph is about Mr. Wightman. The second sentence is about Mr. Tallim and he would be able to identify himself from this article too, wouldn’t he?

A. I don't know. But, he wasn’t the only one who did that. I don’t know that he would be able to.

Q. Okay. And in any case, you didn’t really care?

A. Well, it was behaviour that I was seeing often in the court and I had to raise it.

Q. You didn’t really care...

A. About?

Q. ...that Mr. Tallim might be able to identify himself?

A. No.

Q. Or that anyone else might be?

A. No. I was hoping they would realize that their behaviour was causing an issue.

Q. And you didn’t think there was any risk that his identity might become known?

A. No.

Q. Did you consider that a reporter might do a follow-up story on this and try to figure out who these three lawyers are referred to in this paragraph?

A. I purposely left the names out for that reason. Let me finish, Mr. Smith, please. I purposely left the names out so that that would not happen. If somebody who...okay, so now you are acting just like Vikki Bair. Like, I’m answering. If you don’t like my answer that’s fine. You are entitled to not like my answer, but please...

THE CHAIR: Sorry. I am just going to...just for the record, my head was down. What is it that Mr. Smith did that...

THE WITNESS: Like that. Much like Vikki Bair did in a recusal...

THE CHAIR: Okay. It needs to be captured on the record.

THE WITNESS: Okay. Just shaking his head, and it feels, from where I’m sitting, as disregard for my answer. I’m answering to the best that I can and...what was I saying? I've forgotten.

MR. GREENSPON: Purposely left the names out.

THE WITNESS: Okay. I purposely left the names out. If somebody in reading the article wanted to investigate and consult the public record, they may have been able to identify one of the people that I was speaking about.

Transcript of September 18th, 2019, at pp. 59-61

Q. It was beneath the dignity of your office?

A. Quite the contrary. No.

Q. And with the benefit of some distance, you can now see with hindsight how the Crown could reasonably think that you were biased against them?

A. Again, it’s difficult for me to put myself in the Crown’s shoes, but no, I hope not.

Q. Let me ask this. How would a defence lawyer feel, coming into your court representing some defendant, if in the National Post you had called him or her a “cynical bully, unlawful, rude and having a childishly short temper” without putting his or her side of the story into the article?

A. Well, yes. I am not a defence lawyer and I can...you know...is this only based on the observations of defence lawyers in my court? I have, on a number of occasions, spoken to defence lawyers about something that I found inappropriate and they took it quite well. But, I have never ever, ever had a defence lawyer behave this like in my court, ever.

Q. You haven’t really answered my question, Your Worship.

A. Sorry.

Q. I’m asking, if you had made the same kinds of allegations against a defence lawyer in the pages of the National Post, how would that lawyer feel coming into your courtroom?

A. I cannot answer that question because that’s a very hypothetical question and that is not what is before us.

Q. Wouldn’t such a lawyer rightfully ask you to recuse yourself from his or her client’s case?

A. Again, I can’t answer that. It’s hypothetical.

Q. You can’t answer that question?

A. No. You can ask me with regard to the Crown, and we have already dealt with that. No. And that was the Cody Boast case.

Q. Okay. You had the option, didn’t you, Your Worship, of writing an article about the problems with the bail system, without castigating, or insulting, or accusing anyone of misconduct, didn’t you?

A. Again, the castigating word is not something I am familiar with, and I... you can term it that way, but in writing the article, I had to be truthful and I had to describe fully what the issues were.

Q. So you didn’t have the option of writing an article that didn’t insult, or criticize Crown counsel?

A. I think that anything short of what I did write, I might as well have written an article for publication, like I said, in the Law Review, or a thesis, but this was not the object of this article.

[^1]: I refer to Her Worship Justice of the Peace Lauzon throughout as JP Lauzon for efficiency. I note that the Panel dismissed a second complaint about her in-court speech.

[^2]: I note in passing Gonthier J.’s observation in Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 57: “in the interests of judicial independence, it is important that discipline be dealt with in the first place by peers.”

[^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.

[^4]: 2012 SCC 12, [2012] 1 S.C.R. 395.

[^5]: This disposition would be consistent with the respondent’s request to this court to determine the appropriate disposition if we found the Hearing Panel had erred.

[^6]: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, at paras. 10-12; Ottawa Police Services v. Diafwila, 2016 ONCA 627, 352 O.A.C. 310, at para. 51.

[^7]: Vavilov, at para. 89.

[^8]: Vavilov, at para. 17.

[^9]: Vavilov, at para. 118.

[^10]: Vavilov, at para.106.

[^11]: See Re McLeod (Ont. Judicial Council, 2018) at para. 55. Limits on extrajudicial speech in Canada remain unclear and there is sparse academic commentary in recent years: see generally Kent Roach, “Judges and free speech in Canada” in H. P. Lee, ed, Judiciaries in Comparative Perspective (Cambridge University Press: 2011) at 175. While academic writers agree that some limits on extrajudicial free speech are justified and desirable, the extent and manner in which extrajudicial speech should be limited is debated. For commentary advocating a less restrictive approach, see Jeremy Webber, “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr. Justice Berger” (1984) 29 McGill L.J. 369, and Wayne MacKay, “Judicial Free Speech and Accountability: Should Judges Be Seen but Not Heard?” (1993) 3 N.J.C.L. 159. For commentary advocating a more restrictive approach based on the type and manner of extrajudicial speech, see J. Clark Kelso, “Time, Place, and Manner Restrictions on Extrajudicial Speech by Judges” (1995) 28:3 Loy. L.A. L. Rev. 851, and Jasmin Moran, “Courting Controversy: The Problems Caused by Extrajudicial Speech and Writing” (2015) 46 V.U.W.L.R. 453.

[^12]: McLeod, at para. 56.

[^13]: See s. 17.1 of the Justices of the Peace Review Council Procedures Document.

[^14]: Vavilov, at para. 101.

[^15]: See McLeod, at para. 55: “Judges, however, are not guided or bound by a crystal clear set of rules.”

[^16]: R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114, at p. 139. See also Conférence des juges de paix magistrats du Québec v. Québec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 33. These guarantees are not individual to the judges, but belong to the public: see Fabien Gélinas, “The Dual Rationale of Judicial Independence”, in Alain Marciano, ed., Constitutional Mythologies: New Perspectives on Controlling the State (New York: Springer, 2011) 135, at p. 152.

[^17]: Canadian Judicial Council, Ethical Principles for Judges (Ottawa: 2021).

[^18]: Ethical Principles, at p. 13.

[^19]: 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 72.

[^20]: 1995 CanLII 49 (SCC), [1995] 4 S.C.R. 267.

[^21]: Ruffo (SCC), at para. 107.

[^22]: Professor Jeremy Webber provided academic commentary on the precautionary principle in his article, “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr Justice Berger” (1984) 29:3 McGill L.J. 369. He observed, at pp. 380-81, that there was once a concern that judicial free speech could interfere with the proper function of the legislative and executive branches of government, and that the limits on judicial speech were meant to maintain the separation of powers. He discounts this concern. But Webber suggested two ways in which modern judicial speech can interfere with judicial independence, both of which are, in my view, consistent with the Supreme Court’s approach to the topic. First, there is the concern that “judges’ comments may so annoy the executive or legislature that the offended body turns on the judiciary, reducing the latter’s independence”: Webber, at p. 382. Second, there is a risk that judges will speak out on broad, collective issues, and thereby undermine their role as adjudicators of individual disputes.

[^23]: Moreau-Bérubé, at para. 72.

[^24]: Justice John Sopinka, “Must a Judge be a Monk – Revisited” (1996) 45 U.N.B.L.J. 167, at p. 170.

[^25]: Canadian Judicial Council, “Report and Record of the Committee of Investigation into the Conduct of the Hon. Mr Justice Berger and Resolution of the Canadian Judicial Council” (1983) 28 McGill L.J. 378, at p. 379.

[^26]: Moreau-Bérubé, at para. 56.

[^27]: Moreau-Bérubé, at para. 57.

[^28]: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60, citing Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.

[^29]: Wewaykum, at para. 67.

[^30]: Wewaykum, at para. 77.

[^31]: Wewaykum, at para. 76.

[^32]: Re Paroian, Courey, Cohen & Houston and The Queen (1980), 1980 CanLII 1577 (ON CA), 29 O.R. (2d) 471 (C.A.).

[^33]: Paroian, at p. 482.

[^34]: 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416.

[^35]: Baron, at p. 439.

[^36]: 2018 ONSC 5336, at para. 25

[^37]: 2020 SCC 14, [2020] 2 S.C.R. 3.

[^38]: 2017 SCC 27, [2017] 1 S.C.R. 509.

[^39]: Transcript of September 17th, 2019, at p. 186.

[^40]: Transcript of September 17th, 2019, at p. 232.

[^41]: See Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23-24; see also R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 49.

[^42]: Vavilov, at para. 106.

[^43]: Justice Ruffo of the Court of Quebec was removed for a combination of judicial and extra judicial conduct. See Kent Roach, “Judges and free speech in Canada” in H. P. Lee, ed., Judiciaries in Comparative Perspective (Cambridge University Press: 2011) 175, at p. 183.

[^44]: Re Bienvenue (Can. Judicial Council, 1996).

[^45]: Re Camp (Can. Judicial Council, 2017).

[^46]: Re Zabel(Ont. Judicial Council, 2017).

[^47]: Re Phillips (Disposition Reasons) (Ont. Justices of the Peace Review Council, 2013).

[^48]: Re Foulds (Disposition Reasons) (Ont. Justices of the Peace Review Council, 2018).

[^49]: Re Welsh (Ont. Justices of the Peace Review Council, 2009) and Re Welsh (Ont. Justices of the Peace Review Council, 2018).

[^50]: Flynn (Can. Judicial Council, Report by the Inquiry Committee, 2003).

[^51]: Re Matlow (Can. Judicial Council, 2003).

[^52]: Matlow, at paras. 109-23.

[^53]: Matlow, at para. 179.

[^54]: Re Winchester (Disposition Reasons) (Ont. Justices of the Peace Review Council, 2020).

[^55]: Winchester, at paras. 21-24.

[^56]: Winchester, at para. 10.

[^57]: Winchester, at para. 10.

[^58]: Ruffo (Re), 2005 QCCA 1197, leave to appeal refused, [2006] C.S.C.R. no. 48.

[^59]: Ruffo (QCCA), at para. 412.

[^60]: (Disposition Reasons) (Ont. Justices of the Peace Review Council, 2012).

[^61]: Re Massiah (Misconduct Reasons) (Ont. Justices of the Peace Review Council, 2012), affirmed, Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191 (Div. Ct.).

[^62]: The elements of s. 17.3 of the Justices of the Peace Review Council Procedures Document are also known as the “Chisvin factors”, after Re Chisvin (Ont. Judicial Council, 2012).

[^63]: Groia v. Law Society of Upper Canada, 2015 ONSC 686, 124 O.R. (3d) 1 (Div. Ct.), aff’d 2016 ONCA 471 131 O.R. (3d) 1, rev’d 2018 SCC 27, [2018] 1 S.C.R. 772 (the ONCA and SCC decisions did not address lack of remorse).

[^64]: See e.g., R. v. Valentini(1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at p. 205; R. v. Reeve, 2020 ONCA 381, 151 O.R. (3d) 65, at paras. 11-14.

[^65]: 2015 SCC 12, [2015] 1 S.C.R. 613.

[^66]: 2018 SCC 32, [2018] 2 S.C.R. 293.

[^67]: Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 29, quoting with approval Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 70, per McLachlin J. (as she then was) (dissenting).

[^68]: See Slaight Communications v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at pp. 1077-78 (confirming that the Charter applies to statutory arbitrators exercising judicial functions); Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 40 (confirming that the Charter applies to Human Rights Commissions exercising judicial functions). See also Vavilov, at para. 57.

[^69]: 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.

[^70]: Doré, at paras. 2 , 6, and 18. Justices Deschamps and Abella took this approach in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, but the majority resisted, as Charron J. noted at para. 21.

[^71]: Doré, at para. 55.

[^72]: Doré, at para. 56. I note here that Abella J. in some respects seems to conflate the concepts of Charter rights and Charter values, concepts that this court has stressed should be kept separate: see Gehl v. Canada (Attorney General), 2017 ONCA 319, 238 O.R. (3d) 52, at paras. 77-83; E.T. v. Hamilton-Wentworth District School Board, 2017 ONCA 893, 140 O.R. (3d) 11; McKitty v. Hayani, 2019 ONCA 805, 439 D.L.R. (4th) 504, at para. 88.

[^73]: Loyola, at para. 3 (emphasis in original).

[^74]: Trinity Western, at paras. 79-82.

[^75]: Trinity Western, at para. 57 (emphasis added).

[^76]: Loyola, at para. 4 (emphasis added). Although it is unclear here what it is that is to be “balanced” or what it means to “proportionately balance”, the import of the statement is that Charter rights are not to be limited more than needed to achieve the statutory objective that is taken, in the analysis, as a given.

[^77]: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 73.

[^78]: Hutterian Brethren, at para. 76, quoting Oakes, at para. 140.

[^79]: Hutterian Brethren, at para. 77.

[^80]: Hutterian Brethren, at para. 78.

[^81]: Hutterian Brethren, at para. 77.

[^82]: Vavilov, at para. 96.

[^83]: Vavilov, at para. 124.

[^84]: Vavilov, at para. 133.

[^85]: (Ont. Judicial Council, 2006), cited with approval in Re Douglas (Ont. Judicial Council, 2006).

[^86]: Therrien, at para. 147; see also, Moreau-Bérubé, at para. 51.

[^87]: It could be argued that the substance and tone of majority’s findings and its own intemperate language have spoiled JP Lauzon’s reputation irretrievably, which permanently disqualifies her. A knowledgeable reader of this decision would not accept the majority’s characterization of JP Lauzon, nor would it be fair or just to remove a judicial officer based on the public’s reception of improper findings by a judicial council.

[^88]: The dissent’s comments about the muted response of the public are set out above in para. 131.

[^89]: Therrien, at para. 147, cited by the dissenting member, at para. 161.

[^90]: I note that this page of the transcript is part of the examination of JP Maxine Coopersmith, not JP Lauzon.