The Other Side of Lauzon

Most of the attention in media and legal circles about the Ontario Court of Appeal’s decision in the Lauzon case will focus on the concept of judicial independence and the freedom of adjudicators to express opinions in public. For most regulators, however, the significance of the decision relates to the Court’s comments about determining sanction (or “disposition” as the Court called it).

In Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (CanLII), a Justice of the Peace (the JP) wrote an article for a national newspaper that was “sharply critical of the operation of bail courts and the conduct of some Crown prosecutors in her court”. Complaints were made to the Justices of Peace Review Council by several senior Crown Attorneys. The hearing panel found that the tone and language used in the article was inappropriate for a judicial officer. The Court upheld that finding. However, the majority of the hearing panel then went on to recommend the removal of the JP from office. The dissenting hearing panel member would have imposed a reprimand and a 30-day suspension without pay. The Court directed that the dissenting member’s disposition should be imposed.

The Court found that the majority of the hearing panel made a number of errors in its sanctioning decision. For example, in an extended discussion of the concept of judicial independence, the Court expressed concern that inadequate consideration was given to the fact that the complaints came from the executive branch of government (i.e., Crown law officers) who were dissatisfied with this JP’s comments. An excessive sanction could compromise the independence of judicial officers generally.

On a similar note, the Court was concerned that the finding by the majority of the hearing panel, that the JP was irremediably biased against Crown Attorneys, was an unsupported amplification of its main finding. The conclusion on bias was inconsistent with the evidence and was based on an incorrectly subjective view of bias (that Crown Attorneys might feel that this JP is biased against them is irrelevant). As a result, the majority took an exaggerated role of the seriousness of the conduct.

The Court emphasized the need for the hearing panel to engage with the precedents when determining the appropriate sanction. The Court found that previous cases resulting in a recommendation for removal were of a much more serious nature. In fact, many of the cases in which removal was not imposed were more serious than this case. This JP’s conduct did not fall into any of the categories of misconduct that ordinarily resulted in serious sanction.

The Court also discussed the need for sanctioning decisions to take into account constitutional rights, particularly freedom of expression. It was not sufficient to only consider constitutional values when deciding whether the conduct amounted to misconduct. A proportionality analysis must also be done when considering sanction. The hearing panel needed to balance three considerations:

  1. The degree to which the proposed sanction would affect the freedom of expression, both of this JP and others (e.g., the chilling effect on other JPs or to the bail system as a whole);
  2. The degree to which the sanction would advance the regulatory goal being served (e.g., maintaining confidence in judicial officers); and
  3. Whether the proposed sanction is proportional to the above competing interests. The Court discussed a “laddering” approach. Starting with the least significant sanction, only where it would not meet the necessary goals would the panel consider the next most serious sanction.

The Court also disagreed with the majority’s approach to mitigating and aggravating factors. The majority failed to recognize that the conduct of concern was an isolated incident that did not demonstrate a pattern of behaviour. Indeed, that there were no similar comments in the years since the discipline process began, was seen as important by the Court. The factor of whether the JP had taken measures to modify her behaviour was seen as being of little importance where there was an isolated incident that had not been repeated.

The Court was particularly concerned that the majority had emphasized the JP’s unwillingness to accept the finding of misconduct (with which she still disagreed). The majority of the panel commented on her “failure to express remorse, show insight, acknowledge and apologize for publishing the article, and seek the Panel’s forgiveness during the disposition phase, which could all have served as mitigating factors”. It was an error of law to turn the JP’s adamant defence into an aggravating factor. It can only be seen as the absence of that mitigating factor, not an aggravating factor on its own.

The Court cited several professional misconduct cases as relevant to the issues. Discipline panels will be wise to consider how they characterize the seriousness of misconduct findings, to engage with precedents to suitably value their application to a pending case, to using a proportional analysis when determining what sanction is necessary to achieve the regulatory goals, and to appropriately analyze mitigating and aggravating factors.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc, at Law360 Canada.

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