CITATION: Lauzon v. Justices of the Peace Review Council, 2021 ONSC 6174
DIVISIONAL COURT FILE NO.: DC-21-2630
DATE: 20210927
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON, and KRISTJANSON, JJ.
BETWEEN:
Justice of the Peace Julie Lauzon
Applicant
– and –
Justices of the Peace Review Council
Respondent
– and –
The Association of Justices of the Peace of Ontario
Intervenor
Lawrence Greenspon and Graham Bebbington for the Applicant
Ian R. Smith and Andrew Guaglio for the Respondent
Scott Rollwagen for the Intervenor
HEARD at Ottawa (virtually): June 1, 2021
Aston and Swinton JJ.
Overview
[1] On March 14, 2016, the applicant, Justice of the Peace Julie Lauzon, published an article on the National Post’s website entitled “When Bail Courts Don’t Follow the Law” (the “Article”). The Article provided a critique of the bail system, with particularly critical comment on the conduct of Ottawa Crown Attorneys in the bail process. The Article prompted three complaints to the respondent Justices of the Peace Review Council. The complaints were filed by the president of the Ontario Crown Attorney’s Association on its behalf, the Assistant Deputy Attorney General, Criminal Law Division, on behalf of the Ministry of the Attorney General of Ontario, and the Director of Public Prosecutions on behalf of the Public Prosecution Service of Canada.
[2] On May 7, 2020, the respondent’s Hearing Panel found that the applicant had committed judicial misconduct in relation to the Article (the “Misconduct Decision”). In a second decision dated November 27, 2020, the Hearing Panel released its decision on disposition (the “Disposition Decision”). Two of the three panel members recommended that the applicant be removed from office with a dissenting member concluding that a reprimand and suspension of duties without pay for 30 days was the appropriate disposition. The Disposition Decision also unanimously recommended a reduction in the applicant’s entitlement to reimbursement for legal costs.
[3] The applicant brings this judicial review application to quash those decisions and for other declaratory relief. For the reasons following, the application is dismissed. There is no basis to interfere with the Misconduct Decision or the Disposition Decision.
The Issues
[4] The applicant raises four distinct grounds for the relief sought:
The Hearing Panel should have refused to consider the merits of the complaints. The applicant’s position is that the Ottawa Crown Attorney’s office led a concerted campaign to have her removed from office, using the complaint process to attack and undermine her judicial independence. Consequently, she submits, the complaints constitute an abuse of the complaint process.
The Hearing Panel was not sufficiently respectful of the applicant’s freedom of expression as a judicial officer under s. 2(b) of the Canadian Charter of Rights and Freedoms.
The Reasons of the Hearing Panel are flawed and its conclusions unreasonable, both with respect to the merits and the decision on disposition.
The Hearing Panel denied the applicant procedural fairness by holding her robust defence of her freedom of speech against her, thereby depriving her of her right to full answer and defence.
Did the complaints constitute an abuse of the statutory complaint process such that the Hearing Panel ought to have declined to consider the merits of those complaints?
[5] The parties disagree on the applicable standard of review on this issue.
[6] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 17, the Supreme Court affirmed that reasonableness is the presumed standard of review unless an issue falls within the exception of “constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies”.
[7] The applicant submits that the complaints are an attack on judicial independence, a “constitutional question”, for which correctness is the applicable standard of review.
[8] The applicant submits that judicial independence is a fundamental constitutional principle. There is no doubt that is so. However, it does not mean that a complaint about judicial conduct necessarily constitutes an attack on judicial independence. This case is about the public’s confidence in the applicant as an impartial judicial officer. It is fact specific. It is not necessary or desirable to reframe the issue in the abstract as “a constitutionally protected value”.
[9] Similarly, general questions of law of central importance to the legal system as a whole are those that require uniform and consistent answers because of their broad impact on the administration of justice. The fact that the matter is “of wider public concern” is not sufficient by itself to attract the correctness standard, “nor is the fact that the question when framed in a general or abstract sense, touches on an important issue” (Vavilov paras. 10, 16-17).
[10] At paragraphs 116-129 of its decision, the Hearing Panel explained why the filing of a complaint by an Attorney General is not unconstitutional or an improper or arbitrary interference with judicial independence in and of itself. The analysis and conclusion on that point are lucid and correct.
[11] To elevate the issue to a “constitutional question” or a “general question of law of central importance to the legal system as a whole,” the applicant needed to establish, as a threshold finding of fact, that the complaints were not bona fide complaints about conduct, but were an attempt to disenfranchise a particular judicial officer. We agree with the respondent that the necessity of reviewing factual findings particular to the case means that the standard of review is reasonableness with respect to the issue of abuse of process (Vavilov at para. 126).
[12] The applicant submits that because all three complaints were filed on the same day, the only reasonable inference is that there was a coordinated effort on the part of the complainants that was the culmination of a campaign to disenfranchise her. The Hearing Panel declined to draw that inference from the timing of the complaints and found no other evidence of an inappropriate attack on the applicant’s judicial independence. We also note that none of the complainants are members of the Ottawa Crown Attorney’s Office.
[13] The Hearing Panel found as a question of fact that there was no campaign against the applicant, as alleged. There is no basis for this Court to interfere with the Hearing Panel’s factual finding that there was no campaign to subvert the applicant’s judicial independence.
[14] That finding is sufficient reason to reject the applicant’s contention that the Hearing Panel should not have considered the merits of the complaints on the basis that those complaints constituted an abuse of process.
[15] The Hearing Panel also pointed out that after the complaints were lodged there was an independent investigation of each complaint. The independent investigation resulted in a recommendation that the respondent conduct a hearing into the complaints. The applicant has never explicitly challenged that decision.
[16] The Hearing Panel did not err in considering the merits of the complaints, as it reasonably concluded that the applicant had not demonstrated that the complaints and hearing process were abusive.
Did the Hearing Panel err in its conclusion that the applicant’s conduct was not protected by her right of free speech?
[17] The applicant submits that the expression of her views in the Article is protected free speech under s. 2(b) of the Charter, and she cannot be “penalized” unless fettering her freedom of expression can be justified. Moreover, justification must factor into account her position as an independent judicial officer.
[18] The applicant argues that the Hearing Panel erred in not applying R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103 when determining whether there was misconduct and in determining the disposition, if misconduct was established. The respondent disagrees and argues that the Hearing Panel correctly applied Doré v. Barreau du Québec, [2012] S.C.R. 395 in addressing the issue of freedom of expression
[19] The choice of the applicable legal test is a question of law. The appropriate standard of review of that issue is correctness.
[20] We agree with the Hearing Panel’s conclusion that the applicable test in this case is the test articulated in Doré, as the applicant was challenging the Hearing Panel’s decision as a violation of her right to freedom of expression. Doré squarely determines that disciplinary bodies should approach Charter issues of free expression in their decisions by balancing the claimant’s right of free expression against the restrictions sought to be imposed, rather than by the application of the Oakes test.
[21] In the application of the legal test to the facts as found, the standard of review is reasonableness.
[22] Before both the Hearing Panel and this Court the applicant did not back away from the Article. She defended it as accurate and truthful. The Hearing Panel plainly explained that the issue before it was not the applicant’s decision to criticize the bail system, but rather the manner by which she did so, including the language that she used, the personal attacks that she levied against Crown counsel appearing before her, and the statements she made conveying disdain for the justice system in which she is an integral participant.
[23] The Hearing Panel considered the applicant’s right of free speech by balancing her freedom of expression against the restrictions set out in “Principles of Judicial Office for Justices of the Peace of the Ontario Court of Justice” and other sources and authorities referred to in its decision. Contrary to the submission of the applicant, the Hearing Panel expressly took into account the importance of protecting freedom of expression by judicial officers when it conducted that balancing exercise. See, for example, paragraphs 164, 173 and 304 of its Misconduct Decision.
[24] The Hearing Panel’s conclusion that the opinions in the Article exceeded the limits of permissible speech by a judicial officer and undermined public confidence in the administration of justice is reasonable and justified.
Is the Hearing Panel’s Misconduct Decision otherwise reasonable?
[25] The applicant submits that the Hearing Panel erred in failing to take into account the evidence of six Justices of the Peace in support of the applicant. We disagree. The Hearing Panel accepted the premise there were significant systemic problems within the bail system, so the evidence of the other Justices of the Peace was unnecessary to prove that point. It was therefore open to the Hearing Panel to confine its consideration to the words and conduct of the applicant herself.
[26] The applicant submits that the Hearing Panel erred in taking into account other articles and commentary by third parties that were triggered by her Article. A fair reading of the Hearing Panel’s decision makes it plain that the context of its references to these articles was not to punish the applicant for the words of others. The context focused on public perception and whether the Article did in fact undermine public confidence in the administration of justice. In that context the Hearing Panel reasonably regarded that commentary as relevant and material evidence.
[27] The applicant submits that the absence of any evidence whatsoever from any member of the public undermines the Hearing Panel’s conclusions concerning public confidence in the administration of justice. We disagree. There was ample evidence from which to draw that reasonable inference. By the applicant’s own testimony, the Article was intended to stir up negative public opinion about the operation of the bail system.
[28] The applicant submits the Hearing Panel erred in failing to give any weight to the submissions of the intervenor, the Association of Justices of the Peace of Ontario. The Hearing Panel explained at paragraphs 50-56 of the Misconduct Decision how the intervenor had exceeded the scope of its intervention and improperly taken on an advocacy role. It was open to the Hearing Panel to refuse consideration of the intervenor’s submissions as a consequence.
[29] The applicant submits the Hearing Panel erred in considering the transcript of Ms. Bair’s interview with Investigator Burns. It was the applicant who introduced that evidence, so it was not unreasonable to take it into account.
Did the Hearing Panel deprive the applicant of procedural fairness?
[30] The applicant submits that “by holding the Applicant’s robust defence of her speech against her, the Hearing Panel deprived the Applicant of her right to full answer and defence”. This submission mainly relates to the Disposition Decision.
[31] It is apparent from the Misconduct Decision that the Hearing Panel recognized the complaints process as remedial, not punitive. See, for example, paragraphs 32-33, 139 and 164 of the Misconduct Decision.
Conclusion with respect to the Misconduct Decision
[32] The Misconduct Decision does not reflect any denial of procedural fairness. It is transparent, intelligible and supported by findings of fact grounded in cogent evidence. The finding of judicial misconduct is reasonable. The application to set it aside is unanimously dismissed.
Is the Disposition Decision unreasonable?
The applicant’s arguments
[33] The applicant argues that the disposition decision of the majority - a recommendation to the Attorney General that she be removed from office - was unreasonable. She asks this Court to set it aside and make the order recommended by the dissenting member of the Hearing Panel – a reprimand and a thirty-day suspension without pay.
[34] The applicant submits that the majority failed to adopt a remedial approach and instead acted in a punitive manner. Given that there were no prior findings of misconduct against her and she continued to sit as a justice of the peace until January 2021 without further incident, the recommendation of removal from office is said to be unreasonable. She also submits that the majority improperly treated her absence of remorse as an aggravating factor, and that the finding that she continued to show disdain for Crown attorneys was not supported by the evidence.
The Reasons of the Hearing Panel
[35] The majority and the dissenting member agreed on the approach to be taken and the factors to be considered. They also agreed that the applicant’s misconduct was very serious. Where they parted ways was in respect to the final disposition that would restore the public’s confidence in the administration of justice.
[36] The disposition decision of the majority begins with an acknowledgement that the function of the Justice of the Peace Review Council is remedial (at para. 3):
Our paramount objective in imposing a disposition is to protect and restore the integrity of the judiciary as a whole, not to punish Her Worship personally.
That remedial objective was repeated several other times in the reasons – for example, at paras. 27 and 101.
[37] The decision noted that s. 11.1(10) of the Justices of the Peace Act, R.S.O. 1990, c. J.4 sets out a range of possible dispositions, stating that previous hearing panels had adopted a progressive approach when considering disposition (at paras. 4 and 8). The most serious dispositions are suspension or a recommendation for the removal from office. Pursuant to s. 11.2(2), a justice of the peace may be removed from office by an order of the Lieutenant Governor in Council if the hearing panel makes a recommendation for removal on the ground that the justice of the peace “has become incapacitated or disabled from the due execution of her or her office” by reason of (ii) “conduct that is incompatible with the due execution of his or her office.”
[38] All members of the Hearing Panel considered the Chisvin factors (Re Chisvin (Ontario Judicial Council, 2012)) that have been considered in the jurisprudence in determining an appropriate disposition that would restore public confidence in the administration of justice after a judicial officer has been found to have committed misconduct (see para. 45). These factors are now codified in the Justices of the Peace Review Council Procedural Rules:
17.3 Factors that may be relevant to an assessment of the appropriate sanction for judicial misconduct include, but are not limited to:
i. Whether the misconduct is an isolated incident or evidences a pattern of misconduct;
ii. The nature, extent and frequency of occurrence of the act(s) of misconduct;
iii. Whether the misconduct occurred in or out of the courtroom;
iv. Whether the misconduct occurred in the justice of the peace’s official capacity or in his private life;
v. Whether the justice of the peace has acknowledged or recognized that the acts occurred;
vi. Whether the justice of the peace has evidenced an effort to change or modify his conduct;
vii. The length of service on the bench;
viii. Whether there have been prior findings of judicial misconduct about this justice of the peace;
ix. The effect the misconduct has upon the integrity of and respect for the judiciary; and
x. The extent to which the justice of the peace exploited his or her position to satisfy his or her personal desires.
[39] All three members of the Hearing Panel agreed that the applicant’s conduct in publishing the Article was serious, as “it was planned and carefully thought out” (at para. 17). Its impact was significant, and the Hearing Panel had concluded that the publication undermined public confidence in the administration of justice. She also “betrayed her ethical obligation to remain impartial” (at para. 19). The Panel also concluded that the Article was personal and retributive against a number of Crown Attorneys in Ottawa (at para. 20).
[40] The majority was particularly concerned about the applicant’s lack of acknowledgement of the misconduct and her lack of remorse. They observed that the applicant had not engaged in further education about her ethical obligations, nor sought out a judicial mentor. They concluded that her evidence at the hearing showed that she continued to believe she had acted appropriately in publishing the Article and in using the language she did, and they observed that “she continues to harbour disdain bordering on contempt for Crown counsel” (at para. 23).
[41] The majority explained that their task was to determine which disposition “will restore the loss of faith in Her Worship’s ability to uphold the impartiality and integrity of her judicial role in carrying out her judicial functions when she does not acknowledge that she erred at all” (at para. 33). They considered whether a disposition such as a reprimand, education, or a suspension would be adequate to restore public confidence in the judiciary as a whole, and they decided that these dispositions were not appropriate.
[42] With respect to the Chisvin factors, the majority considered that there was a single act of misconduct, and this was a mitigating factor, and there had been no other findings of misconduct (at para. 77).
[43] The majority also noted that the act of publishing the Article did not occur in the courtroom. However, it was not purely private activity, in that the applicant sent the Article to a national newspaper, she identified herself as a justice of the peace, and she commented on her experience in the courtroom, using her office to add weight to the opinions she expressed. As well, the Hearing Panel had found in the merits decision that she was acting to take retribution against certain Crown Attorneys. Therefore, the majority concluded that the conduct was more closely related to her professional life than her private life, and that the “hybrid context of the misconduct” was an aggravating factor (at para. 84).
[44] Where the majority differed from the dissent is in the treatment of the applicant’s lack of insight into her misconduct and her ethical obligations as a judicial officer (at para. 31). The majority observed,
Insight or contrition can indeed go a very long distance in restoring the public’s faith in the jurist, the judiciary and the administration of justice. This is because it balances human fallibility with the potential for rehabilitation. It also can serve to restore faith in the judicial officer and by extension, the judiciary and the administration of justice (at para. 36).
They had stated earlier that the applicant’s biased beliefs against Crown counsel “speak to the absence of any likelihood of genuine remediation or rehabilitation” (at para. 31).
[45] While the applicant acknowledged that she wrote the Article, the majority concluded that she showed no insight or acknowledgment or recognition of the misconduct and its gravity (at para. 92). While the applicant argues that the majority treated the lack of acknowledgement or an apology as an aggravating factor, the majority made it clear that it was not doing so. As they stated (at para. 95):
The absence of acknowledgement of the misconduct, while not aggravating, can be significant because it is directly relevant to other factors that the Panel is obliged to consider in imposing the appropriate disposition. Those factors are:
(a) Whether there is any indication of an effort to modify the conduct that led to the complaint, and
(b) Whether there is a risk that the conduct will be repeated. (emphasis added)
[46] The majority treated the applicant’s length of service – five years at the time of the publication of the Article and nine years at the time of the decision – as a neutral factor.
[47] In considering the factor of “the extent to which the judicial officer has exploited her position to satisfy her personal desires”, the majority concluded that this was an aggravating factor, because she had used “the power and prestige of her office to satisfy her own personal desires, specifically the desire for retribution” against Crown counsel in Ottawa (at para. 120). They also concluded that the absence of criminal activity or corruption was not a mitigating factor.
[48] Ultimately, the majority conclude that “the effect of misconduct on the integrity and respect for the judiciary” – that is, the publication of the Article - was the most aggravating factor (at para. 121).
[49] The majority also considered the applicant’s conduct during the hearing as relevant to disposition. They noted the applicant’s refusal to acknowledge her misconduct. They also considered her conduct during the complaint process, citing examples that led them to find that her conduct “fell below the dignity expected of a judicial officer” and “also demonstrated an enduring animosity for and lack of impartiality towards Crown counsel at the Ottawa Crown’s office” (at para. 143).
[50] The majority found the Zabel case (Ontario Judicial Council, 2017) to be especially helpful, as there had been a single isolated act of serious misconduct by the judge in the courtroom arising from an inappropriate exercise of expressive rights. The judge received a suspension, rather than a recommendation for removal from office, because he quickly acknowledged his misconduct and apologized; he had had a long and unblemished career; and he had broad support from both defense and Crown counsel concerning his impartiality and good reputation.
[51] In contrast, they noted that in Re Camp, Report of the Canadian Judicial Council to the Minster of Justice (March 8, 2017), removal from office was recommended despite the judge’s apology for insensitive comments in a sexual assault trial and significant remedial efforts, because those steps were not sufficient to restore public confidence in the administration of justice (at paras. 39-42). Similarly, in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, a judge was removed because of derogatory comments about Acadiens made in the courtroom, despite an early apology, given the apprehension of bias created by the comments (at paras. 71-72).
[52] The majority concluded that the applicant’s conduct had rendered her incapable of performing her duties as a justice of the peace. In their view, the only disposition that would restore public confidence in the judiciary and the administration of justice was a recommendation that she be removed from office (at para. 151).
[53] The dissenting member placed different weight on some of the factors to be considered. He emphasized that there was only one incident of misconduct, and that was a mitigating factor. He also noted that the applicant had continued to serve without incident. However, while the conduct occurred outside the courtroom, the Article dealt with matters in the courtroom, and this was an aggravating factor for him. Like the majority, he treated the applicant’s length of service as a neutral factor.
[54] The dissent found that the Chisvin factor of whether the applicant acknowledged or recognized the misconduct was neutral, because she acknowledged writing the Article, but failed to express remorse for the misconduct (at para. 170). He found that the effect of the misconduct on the integrity and respect for the judiciary was the most aggravating factor because of the manner in which she expressed herself in the Article (at para. 174). However, he also observed there had been no complaints from members of the public, and this should be taken into account (at para. 183).
[55] We note that the dissent does not assess the applicant’s lack of insight and lack of remorse during the hearing. Ultimately, he concluded that one act of misconduct, that had no criminal activity or corruption attached, followed by a period without repetition of the conduct should not lead to a recommendation for removal.
Analysis
[56] The majority reasons are logical, transparent and consistent with the jurisprudence in similar cases. Throughout those reasons, the majority was mindful that their task was not to punish the applicant. They took a remedial approach, as they were required to do, and they applied the factors they were required to consider in light of the evidence. We see no basis for judicial intervention.
[57] The fact that the majority and the dissent put different weight on certain factors and evidence does not render the majority decision unreasonable. The majority recognized that the applicant committed one act of misconduct, but that one act was very serious.
[58] The majority also recognized that the applicant continued to sit as a justice of the peace until January 2021 without incident, and that she had no prior record of misconduct. They treated her length of service, five years at the time of the publication of the Article and nine years at the time of the hearing, as a neutral factor. So, too, did the dissent.
[59] The applicant argues that the majority failed to give adequate weight to the mitigating factor that she acknowledged writing the Article. However, there was really no debate about whether she wrote the Article. The important consideration for the majority was whether she understood that she had violated her ethical obligations in doing so in the manner she did, and they found that she never acknowledged her ethical failures. There is ample evidence in the record to support their conclusion.
[60] Key to the majority’s decision was the fact that the applicant failed to acknowledge that she had done something ethically wrong, and the gravity of this misconduct. The majority was also concerned that the applicant continued to express animus towards Crown Attorneys in Ottawa, giving rise to an ongoing apprehension of bias. In their view, these were key factors in determining whether a suspension would be sufficient to restore public confidence in the applicant as a judicial officer and in the administration of justice.
[61] It was reasonable for the majority to consider the applicant’s conduct during the hearing in determining disposition, because it showed her lack of insight and lack of remorse. Indeed, her counsel initially took the position that evidence of her conduct during the merits hearing would rightly be considered at the disposition stage.
[62] The applicant did not testify during the disposition hearing, nor did she lead evidence of any counselling or remedial efforts. However, comments from her counsel and her testimony during the merits hearing clearly showed her lack of remorse and insight into her misconduct. For example, in submissions on disposition, her counsel asked the Hearing Panel not to order that the applicant apologize, “given the lack of remorse on the part of Justice of the Peace Lauzon. It would be tantamount to an order to Justice of the Peace Lauzon to be less than genuine …”.
[63] Before the Panel and again before this Court, the applicant took the position that she has been vindicated by the Supreme Court decisions in R. v. Antic, 2017 SCC 27 and R. v. Zora, 2020 SCC 14, where the Supreme Court discussed the proper approach to bail hearings. However, the applicant fails to realize that the finding of misconduct was not based on her views of the bail system, but rather the language used, the forum, and the personal attacks on the Crown Attorneys who appeared before her. Antic and Zora do not excuse her misconduct.
[64] The majority made a number of important findings, based on the evidence, about the applicant’s conduct during the proceeding and its significance for the determination whether public confidence in the administration of justice could be restored by a suspension, rather than a recommendation for removal.
[65] Notably, the majority found that the applicant had misled the Complaints Committee during the investigation stage. In a letter sent on her behalf by her former counsel and signed by her, she expressed regret for aspects of the National Post Article. At the merits hearing, however, she claimed that she had failed to review the letter before it was sent, and she expressed no regrets for her conduct. The majority found her testimony “highly problematic” and called into question her integrity, “which is something a judicial officer should guard jealously when responding to the Committee about alleged misconduct” (at para. 138). The majority also observed that her testimony raised “concerns about Her Worship’s ability to adjudicate on matters with integrity and impartiality” (at para. 138).
[66] In addition, the majority found that the applicant gave contradictory evidence about whether she had any intention to embarrass anyone or pursue animosity in writing the Article (at para. 139). The majority concluded that she showed continued animosity towards Crown prosecutors (at para. 140). They noted that she would not concede that Crown counsel had a good faith basis for initiatives such as the use of video appearances in bail hearings, and she responded to a question by saying “you’re assuming that people [in the Ottawa Crown Attorney’s Office] are of good faith.”
[67] Finally, the majority observed that her conduct towards presenting counsel at the hearing was combative. This led the majority to conclude that her “conduct during these proceedings fell below the dignity expected of a judicial officer”, and it also demonstrated ongoing “animosity for and lack of impartiality towards Crown counsel at the Ottawa’s Crown’s office” (at para. 143).
[68] The findings made by the majority are deserving of deference, as the Panel members were able to assess the evidence and the comportment of the applicant during the hearing. There was ample evidence to support their findings with respect to the applicant’s failure to act with restraint and dignity, as well as the finding of apparent bias against the Crown Attorneys in the Ottawa office.
[69] The majority’s decision carefully explained the similarities and differences between the present case and those past cases it found similar, notably Zabel, Matlow, Camp and Moreau-Bérubé. While the dissent cited further cases, the majority reasonably focused on these cases and explained why. Of particular importance in the cases of Zabel and Matlow was the presence of an apology, as well as very long and unblemished service. The majority also observed that despite apologies in Camp and Moreau-Bérubé, and significant remedial efforts in Camp, the disposition was a recommendation of removal from office because of the impact of the conduct on the administration of justice.
[70] In Zabel, expressions of support from both Crown counsel and defense counsel were an important consideration for the tribunal. In the present case, the majority noted that there was no such evidence of community support, although they noted that some other justices of the peace had expressed support in affidavits filed in the merits hearing. It was reasonable for the majority to consider this difference from Zabel.
[71] The applicant has identified no error in the principles applied. The majority noted that the test for the public confidence in the administration of justice is an objective one, not subjective (see, as well, Camp at para. 45). Accordingly, even if the applicant believes she is not biased against the Crown Attorneys, the evidence supports a finding of a reasonable apprehension of bias, given her conduct and comments.
[72] The applicant argues that the majority failed to apply the correct test from the Marshall Report (Inquiry Committee of the Canadian Judicial Council, August 1990), cited in the dissenting reasons - that is, whether the conduct could reasonably be expected “to shock the conscience and shake the confidence of the public”. However, the test actually adopted in the Report is in the following sentence (at p. 27):
Is the conduct alleged so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office?
That is the test that was applied by the majority.
[73] While the applicant argues that the majority treated her lack of remorse as an aggravating factor, we disagree. They clearly said that this was not an aggravating factor. However, her lack of insight, failure to take remedial steps and lack of remorse were all important considerations as to whether public confidence in the administration of justice could be restored by a suspension rather than a recommendation for removal from office.
[74] The task of this Court on judicial review is to determine whether the applicant has shown the majority disposition to be unreasonable. In our view, the majority reasonably concluded that the applicant’s conduct, both in publishing the Article and in her conduct at the hearing, showed that she did not understand the gravity of her ethical failures, and her ongoing animosity is inconsistent with her obligation of judicial impartiality and dignity.
[75] We note that the dissenting member, in recommending a suspension, does not adequately address the lack of insight, the lack of remorse, and the ongoing animosity against the Ottawa Crown attorneys. Moreover, while he puts weight on the fact that there had been a “relatively muted public response” to the publication of the Article (at para. 183), we note that the three complaints against the applicant came from individuals who play an important public role – the Assistant Attorney General for Ontario, the federal Director of Public Prosecutions, and the president of the Ontario Crown Attorney’s Association. The latter gave evidence, relied upon by the majority, about the impact of the article on Crowns throughout the province.
[76] The majority decision was logical, transparent and intelligible, and the recommendation to remove the applicant from office was a reasonable outcome in the circumstances.
Was the compensation ruling unreasonable?
[77] Pursuant to s. 11.1(17) of the JPA, a justice of the peace, following a hearing, may make an application to the Hearing Panel for a recommendation to the Attorney General that there be an order for compensation for legal costs incurred during the complaints and hearing process.
[78] As the Hearing Panel correctly pointed out, the leading case on the issue of compensation for costs is Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191 (Div. Ct). As the Court stated there, the starting premise is that the costs of the process should be publicly supported. As Nordheimer J. stated (at para. 56):
… adjudicative bodies, dealing with complaints against judicial office holders, ought to start from the premise that it is always in the best interests of the administration of justice, to ensure that persons, who are subject to such complaints, have the benefit of counsel. Consequently, the costs of ensuring a fair, full and complete process, ought usually to be borne by the public purse, because it is the interests of the public, first and foremost, that are being advanced and maintained through the complaint process. Again, this reflects the public interest nature of the process.
[79] However, there are a number of factors to be considered when the Hearing Panel determines whether compensation should be recommended, including the nature of the misconduct, costs associated with steps that were unmeritorious or unnecessary, or steps taken that prolonged the proceeding. Again, in Massiah, the Court stated (at para. 57):
All of that is not to say that, in every case where a judicial officer holder is subject to a successful complaint, that judicial officer holder can expect that his or her legal expenses will be compensated. It is a decision that must be made separately in each case and only after a consideration of the particular circumstances of the case viewed in the context of the objective of the process. Chief among those circumstances will be the nature of the misconduct and its connection to the judicial function. For example, misconduct that is more directly related to the judicial function may be more deserving of a compensation order than conduct that is less directly related. In contrast, conduct that any person ought to have known was inappropriate will be less deserving of a compensation decision than would conduct that is only determined to be inappropriate as a result of the ultimate decision in a particular case. Further, misconduct where there are multiple instances may be less deserving of a compensation recommendation than would a single instance of misconduct. Similarly, repeated instances of misconduct may be less deserving of a compensation recommendation than one isolated incident.
[80] Finally, the Court also stated that the Hearing Panel could determine that compensation should not be recommended for steps that were unmeritorious or unnecessary (at para. 60).
[81] The applicant sought compensation for legal costs in the amount of $202,481.31 including HST and disbursements. Her first counsel, Domenic Lamb, represented her through the complaints process and up to the hearing. His invoices totaled $66,454.66. Her second counsel, Mr. Greenspon, represented her at the hearing and the disposition stage. His invoices totaled $136,026.65.
[82] The Hearing Panel unanimously concluded that the applicant should receive partial compensation in the amount of $112,011.28 for costs and disbursements plus HST. The Hearing Panel recommended compensation of $47,199.43 plus HST for Mr. Lamb’s services and $64,811.25 plus HST for Mr. Greenspon’s services.
[83] While the Hearing Panel properly started with the premise that the applicant should be compensated, it chose not to recommend complete compensation for several reasons. First, the misconduct was very serious, and the applicant had “traversed her judicial role into her personal life.” Second, her conduct was patently inappropriate, and the applicant “knew that she was crossing an ethical line for which she could face disciplinary consequences” (at para. 301). Third, she resiled from her initial expression of regret at the Complaints Committee. Fourth, some steps taken prolonged the hearing – for example, calling three justices of the peace as witnesses whose evidence was found irrelevant. As well, the Charter challenge and the abuse of process application both failed, and the latter was held to have no evidentiary foundation. Fifth, the change in counsel prior to the hearing had had an impact on costs.
[84] While the applicant argues that the compensation decision is unreasonable, we disagree. The Hearing Panel enunciated the correct legal principles and carefully considered whether full compensation should be awarded. It explained the factors that led it to exercise its discretion not to recommend full compensation in the circumstances of this case. Its decision is deserving of deference, and we see no reason for judicial interference with its recommendation on compensation for costs.
Conclusion
[85] For these reasons, the application for judicial review is dismissed. In accordance with the agreement of the parties, costs to the respondent are fixed at $15,000. There shall be no costs to the intervenor.
Justice D.R. Aston
Justice Swinton
I agree _______________________________
Justice Kristjanson
Released: September 27, 2021
CITATION: Lauzon v. Justices of the Peace Review Council, 2021 ONSC 6174
DIVISIONAL COURT FILE NO.: DC-21-2630
DATE: 20210927
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Swinton and Kristjanson JJ.
BETWEEN:
Justice Julie Lauzon
Applicant
– and –
Justices of the Peace Review Council,
Respondent
– and –
The Association of Justices of the Peace of Ontario
Intervenor
REASONS for Decision
Aston and Swinton JJ.
Released: September 27, 2021