CITATION: Gibbon v. Justice of the Peace Review Council, 2023 ONSC 5797
DIVISIONAL COURT FILE NO.: 541/22 DATE: 20231018
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, D.L. Corbett and J.A. Ramsay JJ.
BETWEEN:
JUSTICE OF THE PEACE ANNA GIBBON Anil K. Kapoor and Sarah Weinberger, for the Applicant Appellant
– and –
JUSTICE OF THE PEACE REVIEW COUNCIL Linda Rothstein and Alysha Shore, for the Respondent Respondent
HEARD at Toronto (by ZOOM): April 19, 2023
REASONS FOR DECISION
D.L. Corbett J.
[1] By unanimous decision, a panel of the respondent Review Council found that the Applicant failed to meet the standards expected of her as a justice of the peace (the “Merits Decision”).[^1] Subsequently, the panel held a hearing into the appropriate disposition for this misconduct. The respondent sought a recommendation that the Applicant be removed from office. The Applicant argued that a less severe disposition is available and warranted when her misconduct is seen through the lens of the factors set out in the Supreme Court of Canada’s decision in R. v. Gladue, 1999 679 (SCC), [1999] 1 SCR 688 and subsequent jurisprudence applying Gladue. Both the majority and the minority accepted that Gladue principles should be applied, but they reached different conclusions after applying Gladue principles to the circumstances of this case.
[2] By reasons dated August 25, 2022, the majority recommended to the Attorney General of Ontario that the Applicant be removed from office as a justice of the peace (per Lipson J. (Chair) and Mr John Tzanis, Charyna J.P. dissenting) (the “Disposition Decision”).[^2] The Applicant applies to this court for judicial review seeking an order quashing the majority Disposition Decision and substituting the minority decision in its place or, alternatively, remitting the case to a fresh panel of the respondent Review Council for disposition.
[3] The Applicant is indigenous. The central issue in this application is whether the Applicant’s indigeneity was taken into account reasonably in the majority Disposition Decision.
Summary and Disposition
[4] I conclude that both the majority and the minority identified and applied Gladue principles appropriately in the context of this case; there is no error in principle in the decisions below and the majority decision is reasonable. It is not for this court to re-weigh the evidence, or to assess whether the majority or minority decision is “more reasonable”. Deference is owed by this court on judicial review. Having found that the majority decision discloses no error in principle and is reasonable, there is no basis for this court to interfere. Therefore, for the reasons that follow, I would dismiss the application for judicial review.
Facts
(a) The Applicant
[5] In February 2013, the Applicant was appointed as a justice of the peace and assigned to the Northwest Region, which includes the City of Thunder Bay. The Applicant served as a justice of the peace competently and diligently for roughly six years prior to the events giving rise to the discipline proceedings giving rise to this application. As noted in the majority’s reasons, the Applicant’s successful tenure as a justice of the peace was a mitigating factor to be taken into account in determining an appropriate disposition (Merits Decision, para. 84).
(b) The Applicant’s Misconduct: Summary of the Merits Decision[^3]
[6] On February 5, 2019, the Applicant’s teenaged son was the driver of a car involved in a collision. Upon learning of this event from her husband by telephone, the Applicant went to the scene of the collision. At the scene, the Applicant and her son were informed by a police officer that “we believe your son didn’t stop” at the intersection. Police laid a charge against the son of failing to yield pursuant to s. 136(1)(b) of the Highway Traffic Act, a charge for which the penalty, upon conviction, is a fine of $85, plus court costs, plus three demerit points.
[7] The following day, February 6, 2019, the Applicant entered the non-public area of the Thunder Bay provincial offences court office, spoke with the Supervisor of Court Services, Jodie Kontzie, and provided Ms Kontzie with her son’s Certificate of Offence, requesting a trial. The Certificate was processed by a clerk in the office, Jessica Strobel, who identified the case as one to be scheduled in “conflict court” because the defendant’s mother was a justice of the peace presiding in Thunder Bay. Ms Strobel placed a note on the file stating “Conflict Court HW Gibbon’s son”.
[8] In late February 2019, the case was scheduled in conflict court for trial on June 19, 2019 and notice of the trial date was given to the Applicant’s son.
[9] On March 4, 2019, the Applicant filed her son’s “Request for Provincial Offences Disclosure” form at the prosecutor’s office. She put her own name and phone number on the disclosure form and requested court staff to phone her when the disclosure was ready. The Applicant followed up twice with the prosecutor’s office to find out when the disclosure would be ready, and when it was, she picked it up herself and provided it to her son. Staff told the Applicant that a prosecutor had been assigned and that the case was scheduled for trial on June 19, 2019.
[10] On May 3, 2019, the June 2019 sitting schedule was provided to justices of the peace in the Northwest Region, including the Applicant. It showed that Justice of the Peace Gordon Chaput was scheduled to preside in Thunder Bay conflict court on June 19, 2019.
[11] In late May, 2019, the prosecutor’s office retained an out-of-town paralegal, Nicole Klein, to act as prosecutor for the trial of the Applicant’s son. The prosecutor’s office advised Ms Klein that the investigating officer was not available on the scheduled trial date and asked whether Ms Klein preferred to have a summons issued to compel attendance of the investigating officer, or to have an application prepared requesting adjournment of the trial date. Ms Klein directed office staff to contact the Applicant’s son to provide him with disclosure, and to provide contact information for Ms Klein so that they could discuss resolution, failing which Ms Klein would seek an adjournment to a date in 2020 on which the investigating officer would be available to testify. On May 27 and 28, Ms Klein and the Applicant’s son exchanged emails and telephone messages but did not speak directly by phone.
[12] On May 28, 2019, the Applicant telephoned Ms Klein and identified herself as the mother of the accused. She confirmed that she had her son’s consent to speak on his behalf. Ms Klein advised the Applicant that the investigating officer was not available on the trial date, and the Applicant told Ms Klein that her son had an exam scheduled the day after the trial.
[13] There were significant conflicts in the evidence of Ms Klein and the Applicant about what was said during this telephone call. The Review Council considered these conflicts in detail and found as follows:
(i) the Applicant and Ms Klein spoke about a possible resolution of the charge;
(ii) the Applicant said she did not believe there was a reasonable prospect of conviction;
(iii) the Applicant asked Ms Klein if she knew who she was;
(iv) the Applicant said that her son would seek an adjournment because of his exams.
In reaching these findings, the Review Council preferred the credibility and reliability of Ms Klein’s evidence over that of the Applicant, and in one respect found that the Applicant’s evidence was not forthright (Merits Decision, paras. 92 and 101).
[14] It was the Applicant’s “standard practice” to invite visiting out-of-town colleagues to dinner when they presided in Thunder Bay. She considered this a gesture of friendliness and collegiality to extend this hospitality to visiting colleagues.
[15] On the morning of June 19, 2019, before court started, the Applicant invited Justices of the Peace Chaput and Margot MacLeod to dinner that night. HW Chaput accepted the Applicant’s invitation. He did not know when he accepted the invitation that he was scheduled to preside over the trial of the Applicant’s son that day.
[16] When the case was called before him in court, HW Chaput did not recognize the defendant’s name or realize that he was related to the Applicant.
[17] During the course of brief submissions respecting the prosecution’s request for an adjournment (opposed by the Applicant’s son), HW Chaput reviewed the file and saw the note indicating that the defendant was the Applicant’s son. It is not disputed that the note should not have formed part of the file – however, it was still in the file and it was read by HW Chaput.
[18] Once he read the note, HW Chaput advised the parties that he would not be able to proceed with the trial and that it would have to be adjourned. Subsequently, HW Chaput sent a text message to the Applicant advising that he would be unable to attend dinner that evening because he did not believe “the OPTICS are favourable”. Sometime later, the Applicant responded by text stating “I understand completely Gord – please know we hold you no ill will Anna”.
[19] There was no conflict in the evidence of HW Chaput and the Applicant respecting these events. However, the Review Council did find some of the Applicant’s testimony respecting these events not to be credible. In her testimony, the Applicant said that she did not know HW Chaput would be presiding over her son’s trial at the time she invited him to dinner. On this point, the Review Council found:
The evidence is clear that [the Applicant] invited two out-of-town justices of the peace, HW McLeod and HW Chaput, to her home for dinner on the same date that her son was scheduled to appear in conflict court. Regardless of whether she knew with certainty that HW Chaput would be the presiding justice of the peace at her son’s trial, [the Applicant] was clearly aware that an out-of-town justice of the peace would be presiding at her son’s trial that day, and she knew that HW Chaput was an out-of-town justice of the peace.
The Review Council also found that the Applicant’s testimony on this point was discredited by the contents of her email to HW Chaput after the event, and by her response to the JPRC dated August 31, 2020 – in which her account seems to be that she did not consider it a problem because she had expected that her son’s case would have been disposed of before dinner, and thus there would be no issue of trying to influence the result. I would also note that the Applicant had the regional schedule for June, which showed HW Chaput as the justice of the peace assigned to preside in Thunder Bay conflict court on June 19, 2019.
[20] Following the appearance before HW Chaput, the Applicant’s son and his lawyer told the Applicant what had happened. The Applicant was very angry and upset. She immediately went to the provincial offences court office, let herself in with her court security card, went to the office of Ms Kontzie, and asked Ms Kontzie to call Regional Senior Justice of the Peace Bernard Caron on speakerphone. That call lasted 5-10 minutes, during which the Applicant:
a. wanted to know how the conflict note was left in the file;
b. expressed frustration over mounting legal costs associated with the adjournment;
c. was “angry” and “incredulous”;
d. asked who was going to “lose their job” over the conflict note remaining in the file;
e. “intimidated” Ms Kontzie.
[21] RSJP Caron directed the Applicant to leave Ms Kontzie’s office twice during the conversation. Eventually, the Applicant followed this direction, left Ms Kontzie’s office, and went to speak with RSJP Caron in his office.
[22] During her conversation with RSJP Caron, the Applicant was “still very upset” and “still very angry” because she felt that her son was “denied justice”. She wanted to know “what RSJP Caron was going to do about this.” She again expressed her view that someone should lose their job over the situation.
[23] There was some disputed evidence about these events. The Review Council resolved these disputed credibility issues largely against the Applicant, on the basis that she was very upset at the time of these conversations and “her ability to see her own behaviour was impaired” (Decision, para. 117). The Review Council found:
Based on all the evidence before us, we find that [the Applicant] asked Ms Kontzie to speak to the prosecutor about having the charges dropped and demanded that the court clerk who had left the sticky note on her son’s file be fired. Regardless of whether or not [the Applicant] used foul language in the course of her discussion with Ms Kontzie, even on [the Applicant’s] own evidence, it is abundantly clear that Her Worship spoke to Ms Kontzie in an angry and aggressive manner.
We also find that [the Applicant] asked RSJP Caron to have the charge against her son withdrawn or stayed…. (Decision, paras. 120-121)
[24] On July 3, 2019, RSJP Caron sent the Applicant an email which included the following:
I have no authority to ask the POA office or the prosecutor to have someone disciplined, to have the matter withdrawn or stayed. More importantly, you have to be careful when advocating for your son. You will always be a Justice of the Peace and therefore, you should not use you[r] position or appear to use your position to influence the outcome. If there are some recourses or remedies, the[y] are for your son’s lawyer and him alone to make before another Justice of the Peace or the prosecutor. [Emphasis in original]
[25] The Applicant’s response to RSJP Caron stated as follows:
Thank you for your reply Your Worship,
What would we have done if my son didn’t have a lawyer? As for advocating for my child, I’m legally bound to assist self-defendant representatives in court but I’m not able to assist my son as his mother? I was a mother long before my appointment and will continue to be a mother long after my appointment. My son contacted a lawyer only after I REFUSED to assist him in court. I choose my professional obligations once again over my child’s [n]eeds.
If I were member of the public I would have demanded to speak to the supervisor (she is a public servant and answerable to the public) at the front counter, berated her publicly and probable [sic] taken this issue to the Mayor and made it public. Instead, I maintained my professionalism, asked politely to speak with her privately and ensured that that conversation was not held alone as I requested she contact you.
You are implying that I’m trying to influence the outcome. That is NOT what I’m trying to do and take quite offense that you would even suggest that. From the start of this issue, I have been transparent and detached from this process as to not jeopardize or influence the outcome. As I’ve shared with you on numerous occasions, my son has been horribly discriminated against in this community and has a fear of speaking with people in positions of authority. …
[26] The Applicant’s son’s trial took place in December 2019, and he was found guilty of the traffic offence with which he was charged on January 3, 2020. Immediately following this, the Applicant sent RSJP Caron two text messages, as follows:
Fri, Jan 3, 2:42 PM
Just wanted you to know that [name omitted] was found guilty today – considering his matter would have been dismissed last year if the clerk hadn’t put that sticky note on his certificate he is now losing 3 demerit points and his insurance is going through the roof. So much for Justice for my son.
Fri. Jan 3, 5:56 PM
Justice Wilson found that his testimony wasn’t “credible”. Meanwhile the other kid could [sic] remember the make of the car he was driving.
[27] On February 3, 2020, RSJP Caron advised the Applicant that she would not be assigned to provincial offences court in Thunder Bay pending final disposition of a complaint that had been filed with the Justices of the Peace Review Council (that is, the complaint at issue in this application).
[28] On March 17, 2020, the Applicant encountered Ms Strobel in a check-out line at a local grocery store, and they had a casual conversation while paying for their groceries. As they were leaving, Ms Strobel asked the Applicant how she was feeling, since the Applicant had been off work on medical leave. In response, the Applicant discussed her son’s case and the stress it was causing her family, including the financial toll. There was a conflict in the evidence about other aspects of this conversation, and the Review Council found that the Applicant also said the following to Ms Strobel:
(i) her son’s conviction was unfair as it was possibly related to race or his being the Applicant’s son, as people were not happy with her appointment;
(ii) all of the court clerks in the Thunder Bay office are experienced and know not to leave notes on court files;
(iii) she or her family were going to sue the City because her son was not treated fairly;
(iv) she was under review by the JPRC and they were trying to take her job.
In coming to these conclusions, the Review Council gave detailed reasons for its findings that the evidence of Ms Strobel on these points was “credible and reliable” (Decision, para. 128), including reference to contemporaneous notes of the conversation made by Ms Strobel and a contemporaneous report of the conversation by Ms Strobel to her supervisor, Ms Kotzie.
[29] The facts and evidence for this summary of the background facts of the case are set out in detail in the Merits Decision, at paras. 43 to 129. That decision was not appealed and is the factual basis for the Disposition Decision.
(c) The Proceedings Below
[30] On January 13, 2020, the Respondent received a complaint about the Applicant’s misconduct, as described above. As set out in the Amended Notice of Hearing (upon which the decisions below were based), the Applicant was alleged to have engaged in a pattern of conduct towards the prosecutor who had carriage of her son’s case, towards her judicial colleagues, and towards court staff, that constituted or gave the appearance of a failure to act with independence, impartiality and integrity in respect to court proceedings involving her son. It was further alleged that the pattern of inappropriate conduct undermined independence, impartiality and integrity of the Applicant’s judicial office.
[31] The hearing into these allegations took place over seven days on June 14-16, 18, July 4-5 and November 12, 2021. In the unanimous Merits Decision, dated February 7, 2021, the Review Council panel found that the Applicant had engaged in a pattern of conduct that, taken all together, constituted judicial misconduct. The Review Council panel heard submissions as to disposition on April 6, 2022 and May 24, 2022 and rendered their Disposition Decision on August 25, 2022. Subsequently, the Review Council made a recommendation for payment towards legal fees of the Applicant in connection with the proceedings before the Review Council.[^4]
The Disposition Decision
(a) The Majority Decision
[32] The majority of the panel found that a recommendation that the Applicant be removed from office was necessary to restore public confidence in the administration of justice. (Disposition Decision, para. 121)
(b) The Minority Decision
[33] The dissenting member would have imposed a combination of dispositions including:
a. a warning;
b. a reprimand;
c. a 30-day suspension without pay;
d. mentoring with a senior jurist;
e. participation in a healing circle as directed by the Indigenous Peoples Court;
f. an apology to those most affected by the Applicant’s conduct; and
g. additional education. (Disposition Decision, paras. 137-144)
Applicant’s Arguments
[34] The Applicant argues that the majority decision is unreasonable in the following respects:
(i) The majority was unreasonable in how it approached the Applicant’s indigenous heritage, and in particular:
a. the majority required a causal link between the Applicant’s experience as an indigenous person and the nature of her misconduct, an approach expressly rejected in Gladue jurisprudence; [Argument 1]
b. the majority unreasonably found that the Applicant lacked sufficient insight into and acceptance of responsibility for her misconduct to participate effectively in a healing circle. As a result, the panel unreasonably rejected a culturally appropriate disposition, undermining confidence in the administration of justice, especially for indigenous persons and communities; [Argument 2]
c. the majority failed to reconcile the objective of rehabilitation emphasized in Gladue with the primary goal of restoring public confidence in the administration of justice. In particular, the majority failed to weigh the impact on public confidence in the administration of justice of removing an indigenous female justice of the peace from office in the Northwest Region. [Argument 3]
(ii) The majority unreasonably focused on the issue of the Applicant’s remorse and acceptance of responsibility, and in particular:
a. the majority’s finding that the Applicant lacked genuine remorse and did not accept responsibility for her actions were unreasonable and not supported by the evidence; [Argument 4]
b. the majority unreasonably treated the absence of remorse as an aggravating factor going to the root of its finding that removal was required to restore public confidence in the administration of justice, despite its express finding that the absence of remorse was an absence of a mitigating factor, rather than an aggravating factor. [Argument 5]
(iii) The majority unreasonably relied upon its adverse finding of the Applicant’s credibility as a basis for concluding that the Applicant would not be seen as able to carry out her duties adjudicating matters affecting the public, thus transforming a credibility finding into a basis of liability and disposition. [Argument 6]
(iv) The issues stated above, individually and taken altogether, render the majority’s disposition unreasonable. [Argument 7]
Analysis
[35] I have numbered the Applicant’s arguments parenthetically, above, for clarity, and now turn to a consideration of the merits of those arguments.
Jurisdiction and Standard of Review
[36] This Court has jurisdiction to hear this application pursuant to ss. 2 and 6 of the Judicial Review Procedure Act, RSO 1990, s. J.1. The standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 17; Ballam v. Justices of the Peace Review Council, 2023 ONSC 2502 (Div. Ct.).
Grounds Raised by the Applicant
- The majority required a causal link between the Applicant’s experience as an indigenous person and the nature of her misconduct, an approach expressly rejected in Gladue jurisprudence
[37] The majority accurately stated the law when it found that there must be a “demonstrated connection between the licensee’s Indigenous background and the proven misconduct” (Disposition Decision, para. 26). A “demonstrated connection” need not be a “causal connection” however there must be some relationship between the misconduct and indigenous background. The majority cited a prior disposition decision of the JPRC in which the following observation was made:
All judicial officers know they may be faced with the dilemma of supporting a family member or a friend at the cost of their judicial integrity. It is a dilemma that all judicial officers hope to confront only in the abstract, in the seminar room during judicial education, as opposed to in real life. Re Phillips (JPRC 2013), para. 31, quoted in Disposition Decision, para. 28.
[38] The majority reasonably found that the Applicant engaged in an extended pattern of misconduct, which she justified to herself on the basis that she was trying to protect her son – in the context of prosecution of an alleged driving infraction. This conduct continued after she was warned by her Regional Senior Justice of the Peace to stay out of her son’s case and to leave it to her son’s lawyer to advocate on his behalf. The Applicant’s response is clear evidence that she was unable to see that she was not permitted to advocate for her son in the matter – an inability that continued right up to her first draft apology letters for the Disposition Hearing.
[39] The majority reasonably found that the Applicant’s indigeneity may have been “connected” to her immediate response to the adjournment of her son’s trial, but that there was no “demonstrated connection” to the long and consistent pattern of misconduct over the course of about a year. I see no reversible error in this conclusion. From the outset, the Applicant sought to insinuate herself into the proceedings on her son’s behalf, and when, in the end, her son was found guilty, she then case aspersions on the result, implicating the justice system and justice system participants.
[40] The majority found that, as of the time of the Disposition Hearing, the Applicant had not shown insight into her misconduct and its impact on others involved in the administration of justice. This lack of insight was so extensive as to obviate real remorse. The majority found:
[The Applicant’s] refusal during the hearing to fully acknowledge her wrongdoing, the adverse findings of credibility made against her in the misconduct proceeding, and the lack of insight or acknowledgment that she has shown in her draft apology letters… have made it impossible for us to be satisfied that public confidence can be restored by any combination of the dispositions that are available under s. 11.1(10)(a)-(f) of the JPA. (Disposition Decision, para. 116)
[41] In her dissenting reasons, Charyna J.P. concluded:
In my opinion, this combination of remedial dispositions would have the effect of impressing upon HW Gibbon the seriousness of her misconduct, and would permit her to gain insight into her misconduct and to take responsibility for how her conduct has adversely affected a number of justice system participants and how her conduct undermined public confidence in herself, the judiciary, and in the administration of justice. (Disposition Decision, para. 144)
[42] Based on these passages, the minority did not challenge the findings of the majority that the Applicant lacked insight into her misconduct. Rather, the minority concluded that the Applicant could gain this appreciation through the combination of remedial dispositions she would impose.
[43] The majority was not satisfied that the hope for future insight and acceptance of responsibility was enough to restore public confidence in the justice system. They correctly found that this restoration was their paramount task (Disposition Decision, para. 105). This conclusion is reasonable.
- The majority unreasonably found that the Applicant lacked sufficient insight into and acceptance of responsibility for her misconduct to participate effectively in a healing circle. As a result, the panel unreasonably rejected a culturally appropriate disposition, undermining confidence in the administration of justice, especially for indigenous persons and communities.
[44] The majority made two findings pertinent to this argument. First, they found that the Applicant’s lack of insight into and acceptance of responsibility for her misconduct was a reason that no disposition short of removal would be appropriate. Another way to put this finding is as follows: if, given the uncontested facts and the facts as the Review Council found them to be, the Applicant still did not realize that her conduct – in multiple ways over an extended period – was obvious and serious judicial misconduct, then she doesn’t “get it”. This finding was reasonable and supports a conclusion that no disposition short of a recommendation for removal would be appropriate. Second, the majority found that the Applicant’s lacked integrity as a witness before them. This finding reinforced the finding of lack of insight and provided a further basis to conclude that removal was the only disposition consistent with restoring public confidence in the administration of justice.
[45] The minority saw the healing circle as one means by which the Applicant could gain insight into her conduct. Such a conclusion is reasonable, but is no answer to the majority’s conclusion: leaving a justice of the peace in office whose integrity has been so badly damaged, and whose conduct has been so serious, when she lacks appreciation for the impact of her conduct on the justice system, is inconsistent with the Review Council’s paramount goal. This majority conclusion was reasonable.
- The majority failed to reconcile the objective of rehabilitation emphasized in Gladue with the primary goal of restoring public confidence in the administration of justice. In particular, the majority failed to weigh the impact on public confidence in the administration of justice of removing an indigenous female justice of the peace from office in the Northwest Region.
[46] I accept the Applicant’s analogy between rehabilitation in Gladue (a criminal case) and the importance of the judiciary reflecting the communities it serves and, in particular, the importance of having indigenous jurists on the bench – both generally and in communities with proportionally large indigenous populations, such as the North West Region, including Thunder Bay.
[47] Issues of racism and the continuing impact of Canada’s colonial history on indigenous communities will not vanish overnight by appointing a few indigenous jurists. The commitment to reconciliation must be much deeper to effect real change. But taking positive and decisive steps to shape a judiciary that reflects the communities it serves is much more than a symbolic gesture. Justice Bertha Wilson, in her watershed article more than thirty years ago, wrote as follows:
If women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human. (Justice Bertha Wilson, “Will Woman Judges Really Make A Difference?” Osgoode Hall Law Journal 28.3 (1990): 507-522, at 522)
The same may be said for indigenous jurists in a contemporary context where the established need for real reconciliation is rightly a national priority. I would not hesitate to conclude that appointing and retaining indigenous jurists should be taken into account as part of a Gladue analysis when considering disposition in judicial misconduct proceedings.
[48] In my view, the majority did take this important factor into account. In the final paragraph of the majority’s analysis, they state as follows:
It weighs extremely heavily on the members of this panel to conclude that [the Applicant’s] conduct has been so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role as to render her incapable of executing the judicial office.
It is evident from the majority’s reasons that this sentiment is heartfelt and not mere pious sentiment. As reflected in cases discussed by the majority, the misconduct in this case was not “close to the line” or just a moment of bad judgment or loss of control. The Applicant exercised poor judgment in going to the scene of the collision and speaking with the police officer. She inappropriately insinuated herself into her son’s case by filing the disclosure request in her own name and repeatedly contacting the prosecutor’s office about it, eventually picking it up herself. She acted inappropriately when she phoned the prosecutor to discuss her son’s case, when she sought to tell the prosecutor “who she was”, when she discussed resolution, and when she negotiated an agreed adjournment. All of these are things a jurist should not do in aid of a family member. Her intervention in her son’s traffic incident continued, on and on, and on and on, involving court staff, another justice of the peace and her Regional Senior Justice of the Peace. All of these steps were, are best, ill-advised and perilous to public confidence in the administration of justice. When the Applicant interacted with others in circumstances where there were no witnesses and no record of events, she left herself open to contests of credibility on material matters, a situation any jurist should strive to avoid.
[49] A lapse in judgment, inappropriate conduct in the heat of the moment, a visceral reaction to deeply held historic distrust of justice institutions – all of these could be forgiven – in the right circumstances – if, in the cold light of day, the moment having passed, the Applicant came to grips with her duties as a jurist. But that did not happen. Right up to the Merits Hearing – where she gave false testimony – and the preparation for the Disposition Hearing – where her initial draft apology letters were manifestly deficient – the Applicant demonstrated repeatedly that she could not step away from the situation sufficiently to recognize her misconduct.
[50] It is a loss for the judiciary that the Applicant may be removed from office as a result of the majority’s recommendation. It is likewise a loss for Thunder Bay, for the North West Region, and for Ontario. It is apparent that the majority were aware of this, and it explains why their conclusion weighed so heavily upon them. But they concluded – as they were entitled to do on the record – that they could not be satisfied that the Applicant would discharge her duties independently, impartially and with integrity in future. The desirability of retaining an indigenous jurist could not displace this core finding.
[51] The majority wrestled with the principles in Gladue and concluded that a recommendation to remove the Applicant was required to maintain public confidence in the administration of justice. On the basis of the majority’s findings – which were available to them on the record – this conclusion was manifestly reasonable.
- The majority’s finding that the Applicant lacked genuine remorse and did not accept responsibility for her actions were unreasonable and not supported by the evidence
[52] The Applicant argued that the majority unreasonably disregarded the final version of draft apology letters tendered at the Disposition Hearing and instead discounted them as, in effect, insincere. The majority’s findings on this point are questions of fact and were available on the record. Second, the substance of the letters was inconsistent with the Applicant’s conduct over a long period, including during the Merits Hearing, and as reflected in her first two draft apology letters. There was a strong basis for the majority’s conclusion that the final versions of the draft apology letters were tailored to respond to the submissions of counsel opposite and there is no basis for this court to interfere with that finding.
[53] Even the minority was not prepared to invest much reliance on the final versions of the apology letter. The minority did not point to the final versions of the letter as a basis to conclude that the Applicant had come to understand her misconduct and to regret it. While the minority did not find that the letters should be discounted as less than a sincere reflection of the Applicant’s views and feelings, the minority recognized that further work would be required for the Applicant to gain a full appreciation of her misconduct and the harm it has done.
- The majority unreasonably treated the absence of remorse as an aggravating factor going to the root of its finding that removal was required to restore public confidence in the administration of justice, despite its express finding that the absence of remorse was an absence of a mitigating factor, rather than an aggravating factor
[54] For an extended period, the Applicant explained and justified her conduct on the basis of the duty she felt to her son. Right up to the time she delivered her first draft apology letters, she believed that her conduct was explicable and justified because she felt her role as a mother was a proper basis for the steps she took. Her lack of insight into her misconduct was consistent, prolonged, and steadfast. It is clear from the majority’s reasons that their primary concern with this record was not so much the Applicant’s lack of contrition, but her lack of understanding that her conduct – throughout – was a profound departure from the standards of conduct required of a jurist.
[55] The majority correctly stated and applied the law that “absence of remorse” is the absence of a mitigating factor and not an aggravating factor (Disposition Decision, para. 79). The majority also correctly found that absence of insight into and acceptance of responsibility for, the serious and prolonged misconduct in this case, bore directly on the suitability of a disposition other than removal from the bench. In simple terms, the majority found that the Applicant’s failure to understand and acknowledge her misconduct was a proper basis to conclude that she could not safely remain on the bench. If she did not understand the basic ethical problems with her behaviour, the risk of recurrence was inconsistent with any other disposition.
[56] Remorse is related to, but is not the same thing as, insight and acceptance of responsibility. If one cannot see that one has misconducted oneself, one cannot be remorseful for the misconduct. The relation between these concepts is not the “Catch 22” it can be in some circumstances – where the conduct itself is denied. In this case, much of the conduct was acknowledged but its characterization as “misconduct” was not. By the time of the Disposition Hearing, even the disputed conduct was acknowledged (in the sense that the Merits Decision had been made), and even then the characterization of the “conduct” as “misconduct” was apparently not understood or accepted by the Applicant. It is clear from the majority’s reasons that they correctly focused on the Applicant’s lack of insight and acceptance of her misconduct, rather than the absence of remorse that would come from insight, in concluding that removal should be recommended. This was an appropriate way in which to address these issues and is reasonable.
- The majority unreasonably relied upon its adverse finding of the Applicant’s credibility as a basis for concluding that the Applicant would not be seen as able to carry out her duties adjudicating matters affecting the public, thus transforming a credibility finding into a basis of liability and disposition
[57] I do not accept the premise of the Applicant’s submissions on this point and conclude that the majority properly considered the impact of adverse credibility findings on a proper disposition of the case.
[58] Credibility findings are matters that can reflect on a jurist’s integrity and their suitability for judicial office. Integrity and truthfulness are matters of character and may be important qualities for any professional. Their importance for legal professionals is heightened, since these are professionals are officers of the court. For judicial officers, the standard is at its very highest. A jurist testifying under oath is expected to be scrupulously honest, candid and forthright. When it is found that they are not, this can strike to the heart of their integrity. See Massiah v. JPRC, 2016 ONSC 6191, paras. 40-41 (Div. Ct.), per Nordheimer J. (as he then was).
[59] Credibility is multi-faceted. A witness’s evidence may be found to be not credible for many different reasons, not all of which would call their integrity into question. A witness may make a mistake in their evidence. They may express it infelicitously. They may have difficulty recalling events, or their memory of events may have declined over time. Some witnesses have difficulty confining themselves to recounting what they actually recall and testify to inferences they would draw from what they do recall as their actual recollections. The list could go on. Jurists, of all people, should understand these credibility issues, and when testifying under oath should strive to exemplify the qualities of truth-telling, candour and forthrightness against which credibility is assessed.
[60] The majority distinguished between credibility findings that may be findings that a witness lacks integrity and findings that a witness’s sworn evidence should not be accepted for reasons that do not impact on their integrity. For example, there was a conflict in the evidence about whether the Applicant used profanity in her conversation with Ms Kotzie and RSJP Caron. The majority concluded that, to the extent the Applicant may have used profanity – and testified to the contrary – it was explicable on the basis that the Applicant was (admittedly) very upset and angry at the time and may not have recalled how she expressed those feelings. Given this finding, it would of course have been better if the Applicant had testified that she did not recall using profanity and that she was not in the habit of ever doing so – rather than asserting that she did not use profanity. But these are matters of splitting hairs about the Applicant’s manner of conveying her evidence, and in the view of the Review Council, it did not reflect lack of integrity.
[61] Other conflicts in the evidence, however, were viewed differently by the Review Council. Conflicts in the evidence about the conversation between the prosecutor and the Applicant were resolved against the Applicant for detailed and compelling reasons, and the inevitable conclusion from these reasons was that the Applicant was being untruthful in her evidence – whether these were deliberate lies about what was said in the conversation, or failures to accurately convey the quality of the Applicant’s recollection of the call. Some of the disputed facts could not easily be forgotten – such as whether there were resolution discussions and whether the Applicant asked for and agreed to an adjournment. Further, the Review Council made one express finding that the Applicant was less than forthright in her evidence about her son’s exam schedule (Merits Decision, para. 101).
[62] In respect to the disputed aspects of the conversation in the grocery store parking lot between the Applicant and Ms Strobel, the Review Council found that Ms Strobel’s evidence was “credible and reliable”. They did not make expressly an obverse finding that the Applicant’s evidence on these points was not credible and reliable, but this is implicit.
[63] The findings about the Applicant’s credibility respecting her knowledge of who was assigned as justice of the peace to hear her son’s trial, are likewise serious. The Review Council stopped short of finding that the Applicant knew that HW Chaput was assigned to hear the trial beforehand, though such a finding could have been available to the Review Council on the record. In simple terms, if the Applicant did not know which out-of-town justice of the peace would be presiding, she should have gone out of her way to have no contact with any out-of-town justice of the peace on the day of her son’s trial. If she did not know, then she should not have invited any out-of-town justice of the peace to dinner the night after her son’s trial.
[64] At para. 108 of the Merits Decision, the Review Council found as follows:
We further agree with presenting counsel’s position that the hearing panel can take into consideration that HW Gibbon’s testimony denying that she knew that HW Chaput would be presiding over her son’s trial is inconsistent with the account she gave in her response letter to the JPRC, dated August 31, 2020. Her letter suggests that she knew HW Chaput would be sitting on her son’s case when she stated: “I had no intention of attempting to influence him in respect to any decision-making role he may have played in respect to the Trial of my son…as the decision would already have been made”. Furthermore, when she invited him, she believed he would have rendered his decision before their dinner and had no intention of discussing the case with him at dinner. We find that the statements in her letter to the JPRC to be a more accurate reflection of Her Worship’s knowledge and thought pattern at the time she extended the dinner invitation to HW Chaput.
This passage is couched in moderate language but is devastating substantively. It is a finding that the Applicant knew that HW Chaput would be presiding at her son’s trial – when she spoke to him the morning of the trial, when she extended a dinner invitation – and when she responded to HW Chaput’s text after the trial, cancelling his acceptance of the dinner invitation. It is a finding that the Applicant’s oral testimony on this point was false. It is in respect to an important point of contention and matters where it would be difficult to understand how the Applicant could have been mistaken. At the very least it reflects a lack of trustworthiness, as a witness, that impugns the Applicant’s general reliability.
[65] In the Disposition Decision, the majority found as follows on this point:
We agree that the hearing panels in Lauzon and Massiah did, on occasion, use stronger language than we did in making their adverse credibility findings against the subject judicial officer. However, it is also the case that this panel found HW Gibbon not to be a credible witness with respect to every important factual issue in dispute: see paras. 90-101, 106-108, 115-21.
The overarching issue here is what disposition is required to restore public confidence in the justice of the peace and in the administration of justice generally. Where a hearing panel of the JPRC makes adverse credibility findings against a justice of the peace, this will be an aggravating factor in the assessment of the appropriate remedial disposition. The nature and strength of the adverse credibility finding will play into the analysis, but the fact remains that the public trust in a member of the judiciary will be shaken whenever an adverse credibility finding is made against them. (Disposition Decision, paras. 98 and 99)
[66] The nature and extent of the adverse credibility findings made against the Applicant were proper considerations on disposition, and the majority’s approach to this issue was reasonable.
- The issues stated above, individually and taken altogether, render the majority’s disposition unreasonable.
[67] I do not find favour with any of the Applicant’s submissions, and therefore need not consider whether individually or collectively they render the majority’s decision unreasonable.
[68] In my view, the Review Council gave thorough and thoughtful reasons for the Merits Decision, and the majority gave thorough and thoughtful reasons for their Disposition Decision.
[69] I have not analysed the minority’s disposition reasons, because that is not necessary to do so to dispose of this application. I would note here, however, that I found the minority’s reasons also to be thorough and thoughtful. Their focus was on the minority’s hope that her proposed disposition would lead the Applicant to a proper understanding of the nature and extent of her misconduct. The majority was not satisfied that hope was sufficient to maintain confidence in the administration of justice if the Applicant is not removed from office. For all the reasons given, I find that conclusion is reasonable on the record in this case.
Disposition and Costs
[70] I would dismiss the application for judicial review. The respondent Review Council does not seek costs and none are ordered.
[71] I would not leave this matter without noting that counsel on both sides provided superb written and oral assistance to the court, for which I am grateful.
“D.L. Corbett J.”
I agree: “Sachs J.”
I agree: “J.A. Ramsay J.”
Date of Release: October 18, 2023
CITATION: Gibbon v. Justice of the Peace Review Council, 2023 ONSC 5797
DIVISIONAL COURT FILE NO.: 541/22 DATE: 20231018
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, D.L. Corbett and J.A. Ramsay JJ.
BETWEEN:
Justice of the Peace Anna Gibbon Appellant
– and –
Justice of the Peace Review Council Respondent
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: October 18, 2023
[^1]: A copy of the Merits Decision may be found at: 2022-gibbon-reasons-EN.pdf (ontariocourts.ca). [^2]: A copy of the Disposition Decision may be found at: Justice of the Peace Anna Gibbon (ontariocourts.ca). I would suggest that it would be consistent with the transparency that should characterize judicial discipline proceedings for JPRC decisions to be assigned neutral citations and distributed for publication on legal databases, in the same manner that judicial decisions and the decisions of other tribunals (including other discipline tribunals) are disseminated. [^3]: The facts set out in this section are taken from the Review Council’s Merits Decision. Except where otherwise referenced below, the facts set out in this summary were agreed or uncontested as noted in paras. 43-129 of the Merits Decision. [^4]: A copy of this decision may be found at: Concerning a Complaint about the Conduct of Justice of the Peace Anna Gibbon (ontariocourts.ca).