On May 9, 2024, the Supreme Court of Canada refused leave to appeal to Ontario’s Justices of the Peace Review Council, which had asked the top court to reinstate the 2020 recommendation to Ontario’s attorney general by two of three members of a council discipline hearing panel that justice of the peace Julie Lauzon (JP Lauzon), who now sits in Cornwall, Ont., should be fired for misconduct.
The catalyst for the council’s majority recommendation was a scathing National Post opinion piece JP Lauzon wrote in 2016, which highlighted serious systemic problems she saw in Ottawa’s bail court and which included critical comments about the behaviour of some unnamed Crowns who reacted negatively when she questioned them, as part of her responsibility as a justice of the peace to ensure that conditions imposed on accused in bail court are reasonable, as required by law.
According to the Ontario Court of Appeal’s later assessment of the matter, “in her concern about the public she was serving, JP Lauzon criticized the conduct of a few Crown prosecutors who appeared in front of her, and her criticisms were valid.”
However, deep offence was felt in the Crown’s office in Ottawa, where the opinion piece was seen as one-sided, insulting, inaccurate and unjustly painting all local prosecutors with the same negative brush. It was seen by some as unfairly blaming Crowns for all the problems in bail court; not reflecting the many challenges and competing interests with which Crowns must contend; and, most seriously, as raising the prospect that the justice of the peace harboured bias against prosecutors, such that Crowns would feel that their cases could not get a fair and impartial hearing before a justice of the peace “who so clearly, in my view, showed such great disdain for every assistant Crown attorney in the Ottawa Crown’s office” (according to later testimony before the discipline panel from the former head of the Ontario Crown Attorneys’ Association).
The day the article was published, March 14, 2016, top management at Ontario’s Ministry of the Attorney General and the federal Public Prosecution Service of Canada, and the then head of the Ontario Crown Attorneys’ Association, filed misconduct complaints with the justice of the peace review council. This culminated in 2020 in a majority recommendation by the council’s hearing panel that JP Lauzon should be removed from office; however, all three panel members agreed that “she failed to exercise caution and restraint and thereby crossed a line giving the appearance of bias and undermining public confidence [in] the judiciary,” by using “accusatory, insulting, inflammatory, and personal” language — especially regarding prosecutors — that was designed to “garner maximum media attention.”
JP Lauzon challenged the hearing panel’s decision via judicial review, including in a first-level loss in Ontario’s Divisional Court: 2021 ONSC 6174.
The Supreme Court of Canada’s refusal last week to hear an appeal from the Justices of the Peace Review Council leaves in place, however, a unanimous judgment last year by the Ontario Court of Appeal: Lauzon v. Ont. (Justices of the Peace Review Council), 2023 ONCA 425.
The Court of Appeal’s decision concluded that JP Lauzon could properly speak out about longstanding problems that persisted in her bail court and that she had “positive motivation” in bringing these “valid” concerns to the public’s attention.
Rather, the justice of the peace’s misconduct lay in her use of some “inflammatory” and “intemperate” language, such as “disgrace” and “devoid of the rule of law,” and in “stinging comments about certain Crown prosecutors” that were “better left unsaid, or said in a less inflammatory manner” that “might, on one reading, be seen as capable of undermining public confidence in the justice system.”
The Court of Appeal agreed with the dissenting member of the Justice of the Peace Review Council hearing panel below that an appropriate penalty was not firing but rather a reprimand and 30-day suspension without pay.
“JP Lauzon’s removal from office as justice of the peace for writing a polemical article that, nonetheless, accurately identified real problems with bail courts, would be grossly disproportionate to the nature, extent and seriousness of her judicial misconduct,” the Court of Appeal ruled.
It noted that “the record discloses that JP Lauzon is deeply committed to the improvement of the system of justice. She is capable and is most unlikely to repeat the misconduct. This is amply borne out by the fact that she did not repeat it in the years that she sat after the complaints were brought.”
The Court of Appeal panel’s 99-page analysis and disposition of the case’s intertwined constitutional issues of judicial free speech, judicial independence and separation of powers also points out “the risk that the public could see JP Lauzon’s removal from office as an instance of the successful interference by the executive branch, within which Crown prosecutors function, against judicial officers who take issue with the conduct of Crown prosecutors in courtroom.”
“To put it simply, judicial conduct that offends the other branches of government might motivate those branches to act in such a way as to undermine judicial independence by asserting that the conduct should be punished as misconduct,” the Court of Appeal said. “These competing tensions were at play in this case.”
The appeal court admonished that it was incumbent on the majority of the hearing panel “to consider carefully whether its removal recommendation at the behest of senior Crown law officers, who are part of the executive branch of government, could undermine other justices of the peace in their ability to control the process of their courtroom and to speak out about issues they see in court,” a principle to which the hearing panel paid “scant attention.”
The Court of Appeal also said there was “no doubt” that JP Lauzon’s “cri de coeur” about problems in bail court, which problems were later echoed by other Justices of the Peace, “tapped a deep well of justifiable discontent,” including that “plainly, justices of the peace deserve, but at times have not been accorded, due respect from the other actors in the justice system, at least in the time before JP Lauzon’s article was published.”
The appeal court also firmly rejected the justice of the peace hearing panel’s finding of an apprehension of bias against prosecutors by JP Lauzon, as had been alleged in Crown complaints to the council.
(Complaints were made by James Cornish, Brian Saunders and Kate Matthews, who were in 2016, respectively, the assistant deputy attorney general with the criminal law division of the Ontario Ministry of the Attorney General, Director of Public Prosecutions of the Public Prosecution Service of Canada and president of the Ontario Crown Attorneys’ Association.)
“There is simply no evidence of bias in her actions before or after the complaints were made,” Justice Peter Lauwers wrote for the Court of Appeal.
“Indeed, while JP Lauzon’s language was intemperate and amounted to misconduct, an informed member of the public might well appreciate that JP Lauzon was not motivated by bias, but by her commitment to doing justice.”
“There is no doubt that JP Lauzon was angry at her disrespectful treatment at the hands of some, but not all, Crown prosecutors,” Justice Lauwers explained. She was also angry at her treatment by presenting counsel before the JP council, and by the panel’s reasons on the merits “because she believed, with some evident justification, that her cause was just,” he said. “While she manifested her anger in an inappropriate way in the article, her anger did not amount to bias on any measure.”
The court of appeal ruled that the hearing panel’s analysis of the judicial independence issues raised by the case was “legally flawed” and also failed to take a “holistic” approach in analyzing the impugned opinion piece.
“The true subject of the article was JP Lauzon’s distress at the plight of people, presumed innocent, who are saddled with inappropriate bail conditions because, as she put it, ‘people will agree to just about anything to regain their freedom and go back home to their families and daily routines,’” Justice Lauwers said.
“She believes passionately that it is ‘the JP’s legal responsibility to ensure that the conditions placed on a person’s bail are reasonable, lawful and appropriate,” he wrote. “Circumstances such as video bail court and agreements between defence counsel and the Crown can put pressure on justices to go along with inappropriate bail conditions, something that she refused to do, causing prosecutors to react inappropriately,” he observed.
“She said, ‘[i]t is not my job as a JP to sign off on release documents that are unlawful.’ She noted the cumulative effect of ‘forced, rushed video appearances, a lack of respect for the JP bench and the absence of the rule of law in this court.’ She added: ‘I can no longer call it a court of law. It is a disgrace.’ These circumstances, she said, had the effect of making bail courts ‘dysfunctional and punitive’ and therefore ‘devoid of the rule of law.’”
Justice Lauwers said that “these are very strong words, no doubt, but these words signal JP Lauzon’s righteous anger at a deplorable state of affairs in bail court.”
The appeal court held that “the hearing panel did not account for the context in which she was driven to use such words, as it would have had it taken a holistic approach to evaluating the article. While the intemperate language JP Lauzon used supports the panel’s misconduct finding, ... properly considered, it does not evidence any operative bias against prosecutors.”
In addition, the flawed approach of the majority of the hearing panel to assessing an appropriate penalty for the Justice of Peace’s misconduct “would substantially lower the bar for a justice’s removal,” Justice Lauwers wrote. No judicial officer has ever been fired for off-the-bench speech in Canada.
“Jurisprudence establishes that a removal recommendation usually requires truly offensive speech, a disregard for the rule of law, including actually breaking the law, an element of self-dealing, the failure to perform the duties of the office, repeated misconduct, misbehaviour that extends over a long period of time, or combined instances of misconduct,” Justice Lauwers said. “None of these apply to JP Lauzon.”
He also noted that “it was, after all, members of the executive branch of government (senior Crown prosecutors) who together filed complaints against her.”
Removing JP Lauzon “would signal that the executive can interfere with the independence of the judiciary where it disapproves of a judicial officer’s challenge, via truthful speech if intemperately expressed in part, to the conduct of government actors — Crown prosecutors,” Justice Lauwers wrote. “If JP Lauzon’s conduct were condemned and she were to be removed from the bench, other judges might be dissuaded from being critical of the administration of justice under the authority of the executive, which would undermine judicial independence, freedom of expression and the separation of powers”.
Lawrence Greenspon, Greenspon Granger Hill
“If the takeaway from this is the court [of appeal] said, ‘Well, you know, she lived up to her duty to speak out, but she didn’t speak out in the right tone,’ to me, that’s unfortunate, and from [JP Lauzon’s] perspective, she would have liked the opportunity to have had argued on her behalf [at the Supreme Court of Canada] the fact that she should never have been disciplined in the first place,” Greenspon said.
“What she said was entirely accurate,” Greenspon stressed. “She was just saying, ... ‘the kind of changes that should have happened to this bail system — that the Supreme Court of Canada [subsequently] called for in Zora and Antic — are not happening on the ground and ... here’s what’s actually happening in my courtroom.’” R. v. Zora, 2020 SCC 14 and R. v. Antic, 2017 SCC 27.
“I think it was entirely warranted,” Greenspon said. The issue before the review council was “‘Well, she didn’t use the right tone, or ... her words, were too harsh,” he said. “I don’t have a lot of time for that kind of argument where you say, ‘Well, I agree with what you’re saying, but I don’t like the way you said it ... Is that what we really want to be, on a matter of free speech and judicial independence? Do we really want to be in that kind of an argument zone?”
Scott Rollwagen, Lenczner Slaght
Rollwagen said, “The decision of the Supreme Court of Canada, while it’s [on] a leave application, and can’t be taken as an endorsement of the results, we were pleased that the case didn’t go any further because we think that the Court of Appeal came to a sound and principled balancing of the considerations involved: of the need to enforce standards of judicial conduct but always with a view to understanding the impact on the perception of the independence of the bench when complaints are made like this.”
Asked whether the case effectively delivers a message to judicial officers that they may speak out publicly about problems they see in the administration of justice or tells them, in essence, to shut up, Rollwagen replied, “I don’t think this decision can be taken either as an invitation to speak publicly or as a firm message saying that all public speech is prohibited.”
“A justice shouldn’t be shy about speaking out if there are real legitimate concerns about the administration of justice that they feel need to end,” he advised. “And the ultimate takeaway from this decision is that a judicial officer shouldn’t fear for his or her position if they sincerely and honestly make a public statement about a concern they have with the administration of justice,” he told Law360 Canada. “It’s in the discretion of an individual judicial officer. But it’s important to make sure that any speech is measured and consistent with the dignity of the office.”
At press time, Law360 Canada had not received answers to queries posed to the Ontario Ministry of the Attorney General and the Ontario Crown Attorneys’ Association.
The Public Prosecution Service of Canada replied saying it “cannot comment on the civil proceedings that followed” its 2016 complaint about JP Lauzon to the Justices of the Peace Review Council.
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca call or 613-820-2794.