A Reasonable Sanction

A Justice of the Peace (the JP) intervened several times when her son was charged with failing to yield before a traffic collision. The interventions included directly obtaining information from the prosecution, speaking with colleagues, speaking with the prosecuting paralegal about the disposition of the matter, inviting the judicial official who would be hearing at least part of the matter to dinner on the same day as the hearing, and disparaging the outcome of the proceedings to others. Some of the conduct occurred after she was warned by the Regional Senior Justice of the Peace to not involve herself in the matter. The full Review Council Panel found that she had failed to meet the standards expected of a justice of the peace. The majority of the Review Panel recommended that she be removed from office. The minority would have ordered a series of sanctions, including a healing circle (the JP was Indigenous), that would have restored her, eventually, to her position. The JP sought judicial review seeking the substitution of the minority disposition for that of the majority.


The primary issue was whether the majority of the Review Panel had appropriately considered the circumstances of the JP, as an Indigenous mother advocating for her son, given the history of the treatment of Canada’s Indigenous peoples, including in the legal system. The Divisional Court held that the majority of the Review Panel had appropriately applied the principles from the Supreme Court of Canada decision in Gladue. The Court said:


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.


In finding the disposition of the majority to be reasonable, the Court noted the following nuances in the application of sanctioning principles to disciplinary matters:


  • When considering whether something less than removal is appropriate, the Review Panel appropriately considered the JP’s lack of insight. While the JP was entitled to make a vigorous defence, in this case most of the foundational facts were not disputed. Her position was that there was nothing wrong with her conduct. As such, it was reasonable to find that no disposition short of removal would be appropriate given the seriousness of the misconduct. The Court said that it was reasonable for the majority to conclude that a healing circle was unlikely to create the necessary insight.
  • The Court also found that the majority had considered the public interest that would be served in not removing a judicial officer given the need for greater representation of members of the Indigenous communities in the legal system. The Court agreed that this was a relevant and important consideration, but said:

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.

  • The Court discussed at some length the use by the majority of the JP’s lack of remorse when dealing with disposition. “The majority correctly stated and applied the law that ‘absence of remorse’ is the absence of a mitigating factor and not an aggravating factor …” While there is a relationship between lack of insight and a lack of remorse (one cannot be remorseful for something one does not have the insight to appreciate was wrong), the Review Panel could look at the lack of insight, separate from a lack of remorse, as a major consideration as to why it recommended removal.
  • It is often said that where a discipline panel finds that a practitioner’s testimony was not credible, that finding cannot be used as an aggravating factor on sanction. The Court refined that proposition. The Court noted that many credibility findings do not relate to the honesty of a witness. For example, the witness’ memory could be faulty. However, in this case the credibility findings had to be seen as demonstrating a lack of honesty or integrity by the JP. For judicial officers, absolute honesty and integrity are an essential component of their position. Given the nature of the misconduct, and the concern about lack of insight, the “nature and extent of the adverse credibility findings made against the Applicant were proper considerations on disposition…”


Interestingly, the Court also indicated that the reasons of the minority of the Review Panel were also reasonable suggesting that, if that had been the final disposition, the Court would have upheld it as well. That suggestion reinforces the deference that should be given by the Court to decisions on sanction. The Divisional Court’s decision can be found at: Gibbon v. Justice of the Peace Review Council, 2023 ONSC 5797 (CanLII).



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