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By Ernest Guiste
PRIDE Guest Columnist
If the government of Ontario is serious about combating racism and systemic discrimination, one of the first, and most effective, steps in this direction is to review the staffing and operation of its agencies and tribunals to ensure that they reflect the population which they serve and, most importantly, who fund them.
If we have learned anything from the movement for gender equality in the administration for justice over the past 20 years it is that is in the public interest.
In this the second column on the bodies dealing with judicial misconduct, I will focus on the Justices of the Peace Review Council (JPRC).
The Justices of the Peace Review Council is the body established by the government of Ontario to investigate and adjudicate complaints of professional misconduct against justices of the peace in Ontario.
Justices of the peace are judicial officers who adjudicate bail hearings, Provincial Offences Act matters, preside over criminal hearings, set court dates and various other matters.
The Supreme Court of Canada has ruled that their office is subject to the well established constitutional principles of judicial independence.(see Ell v. Alberta 1 S.C.R.. 867)
The Justices of the Peace Review Council is composed of a council, consisting of members from the judiciary, the legal profession and community members.
Cases referred to a hearing, following the investigation of a complaint, are presented or prosecuted by a lawyer retained by the Review Council, who is referred to as Presenting Counsel.
The lawyer defending the justice of the peace at a hearing is referred to as Responding Counsel.
These lawyers are retained by the justice of the peace and, in accordance with constitutional practice and tradition under the financial component of judicial independence, the Attorney General indemnifies the justice of the peace for the cost of his or her defence. (see for example – Re Blackburn(1994), Re Romain (2002), Re Obakata (2003), Re Sinai (2008), Re Quon (2007), Re Kowarsky (2012) and Re Massiah (2012)
I will review the composition of this administrative body, looking at the racial composition of judicial members, lawyer members, community members, Presenting Counsel and Responding Counsel, based upon the JPRC’s published Annual Reports and their decisions.
Judicial Members:
The latest publication of the JPRC’s Annual Report to the Attorney General reveals the following judicial members: Chief Justice of the Ontario Court of Justice – Chief Justice Annemarie Bonkalo; Associate Chief Justice Co-Ordinator of Justices of the Peace – The Honourable Justice John A. Payne (until September 2, 2013); The Honourable Faith Finnested (effective September 2, 2013); three Justices of the Peace appointed by the Chief Justice of the OCJ – HW Hudson, HW Ralph and HW Rozon; two judges of the OCJ appointed by the Chief Justice of the OCJ – Justice Rosenberg and Justice Vailancourt; Regional Senior Justice of the Peace – HW Bryant.
Observation:
Of the nine regular judicial members on this council all but one is of Euro-Canadian – HW Hudson is African-Canadian. There are no Indo-Canadians, no Asian-Canadians and no Aboriginals sitting on this council, according to its published Annual Report. Although we are now in 2016, the latest Annual Report which this council has published is 2013.
Temporary Judicial Members:
In addition to the regular members on this council, the Chief Justice of the Ontario Court of Justice appears to have some jurisdiction to appoint temporary judicial members to sit as members of complaints committees or hearing panels.
The following are the temporary members so appointed in the 2013 year of business, according to the Correction to the JPRC Seventh Annual Report 2013: Justice Agro, Justice Carr, Justice DeMarco, Regional Senior Justice Leaman, Justice Livingstone, Justice Payne, Her Worship Rozon, Justice Paul Taylor and His Worship Cuthbertson.
Observation:
Of the nine temporary judicial members appointed to this council by the Chief Justice all of them are of Euro-Canadian.
Lawyer member – Margot Blight (reappointed June 2013 for four years).
Observation:
The lawyer member is a Euro-Canadian.
Community members – Dr. E. Crowne, Cheri A. Daniel, M. Phillips, S. Silver (until May 1, 2013) and Leonore Foster (effective May 29, 2013).
Observation:
It would appear that four individuals are appointed through the Public Appointments Secretariat to sit on this council. The JPRC Annual Report for 2013 shows two African-Canadians, one Indo-Canadian and a person of European descent or Euro-Canadian. The Euro-Canadian’s appointment ended on May 1, 2013 and was replaced by another Euro-Canadian effective May 29, 2013.
Again, just as with the Ontario Judicial Council the government of Ontario has clearly sought to have these members reflect the community served and funded by them. Regrettably, these members have little or no influence on the adjudication of judicial misconduct complaints.
Presenting Counsel:
Like its sister body the Ontario Judicial Council, JPRC records reveal that every single lawyer appointed as Presenting Counsel to present cases before this administrative body since 1994 has been Euro-Canadian.
Responding Counsel:
JPRC records reveal that since 1994 some 14 hearings into the conduct of justices of the peace have taken place before this administrative body. In all but three of these public hearings, Responding Counsel – i.e. the lawyer defending the justice of the peace was a Euro-Canadian.
Commentary:
It is now conventional wisdom that diversity in the administration of justice is clearly in the public interest. No sensible person could argue against the goal of increasing the representation of both women and the vastly underrepresented racial groups which make up our community. One could make a very strong and cogent argument that it is simply wrong to promote one group at the expense of the other.
Ontario has had no difficulty in raising the number of women in virtually every aspect of the administration of justice over the past 20 years. Regrettably, the same cannot be said for raising the representation of the various racial groups, which make up the Ontario population and who fund the administration of justice.
This represents a serious short-coming on the part of our government. We need to do better. We can do better.
Attacking and remedying this serious social problem will go a long way in making Ontario a better, stronger and more vibrant society for all of us.
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance. If any of the facts in this piece are in error this was not intentional and the writer is committed to correcting any of them. The point of the piece is not to point fingers but to hightlight where we can do better.
Ernest Guiste is a trial and appeal lawyer in Toronto, who represents clients in administrative law, criminal, employment, human rights and personal injury and insurance. He can be contacted by telephone at (416) 364-8908, or by email: ejguiste@yahoo.com
