Judicial Officers show presumptively have their costs of a discipline hearing regardless of result

Massiah v Justices of the Peace Review Council, 2016 ONSC 6191:

[49]           In my view, the 2012 Panel started from a flawed premise, that is, that where there has been a finding of judicial misconduct, the presumption should be that compensation will not be made.  Specifically, the 2012 Panel said:

… it is only in exceptional circumstances that the public purse should bear the legal costs of a judicial officer who has engaged in judicial misconduct.

The 2012 Panel adopted this presumption from an earlier decision of a different Hearing Panel of the JPRC in Re Foulds (JPRC, July 21, 2013).  

[50]           I do not accept that any such presumption exists nor do I find any cogent reasons why such a presumption should exist.  Rather, there are compelling reasons for the opposite approach.  

[51]           First, and as noted above, dismissal of a judicial officer is a matter of public importance.  The considerations to be taken into account in dismissing a judicial officer include not only the conduct of the individual, but its effect on the justice system as a whole.  The principal objective of the complaint process is to restore and maintain public confidence in the integrity of the judiciary, not to punish the judicial officer holder, although punishment may result.

[52]           Second, where a Provincial Attorney General makes a complaint against a federally appointed judicial officer, a hearing is mandatory.[1]  While the same provision does not apply in the case of judges of the Ontario Court of Justice or of justices of the peace, the prospect of a complaint emanating from the Government is, nonetheless, a real one.  This possibility is of some significance given that one of the most important roles performed by a judicial officer is to stand between the state and the citizen, in terms of the application of government powers.  This role is referenced in the earlier statement I quoted above from Re Therrien.  Judicial officers are therefore exposed not only to the vagaries of complaints by citizens but also to those of government.  

[53]           Thirdly, judicial office holders, by the very nature of their duties, and the decisions that they make, naturally attract criticism and animosity.  It is an easy matter for someone, or some group, to make a complaint regarding something that a person, who holds judicial office, does, says, or decides.  While there are screening mechanisms to ensure that only complaints that appear to have a requisite degree of validity, and that are related to judicial conduct rather than judicial decisions, are permitted to proceed beyond the stage of the initial complaint, the impact on the holder of a judicial office, where a hearing is called, is significant, as this case and others have amply demonstrated.

[54]           Fourthly, there is a serious risk that, if we hold to a presumption that a judicial officer holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of the Gordian Knot.  On the one hand, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process.  That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely to be significant.  Few judicial office holders would be able to self-fund those expenses.  On the other hand, that same person, in order to avoid those dire financial consequences, may simply decide that it is easier, and financially safer, to simply resign their office.  In doing so, though, they leave the allegations unanswered and consequently, in most persons' minds, admitted to.  If that is the knot that a judicial officer holder faces, it means that the mere fact of a complaint becomes, in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results.  Either the judicial office holder, for reasons other than the merits of a particular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criticism.

[55]           The legal expenses issue is not a fanciful one.  In this case, for example, the applicant incurred legal fees in excess of $600,000.  In setting out that fact, I do not, for a moment, mean to suggest that that level of legal fees was either appropriate or justified for what took place in this case.[2]  I merely use it as an example of the type of financial consequence that may arise for a judicial officer holder, who finds her/himself in the position of having to decide whether s/he can actually afford to respond to a complaint.

[56]           For these reasons, adjudicative bodies, dealing with complaints against judicial office holders, ought to start from the premise that it is always in the best interests of the administration of justice, to ensure that persons, who are subject to such complaints, have the benefit of counsel.  Consequently, the costs of ensuring a fair, full and complete process, ought usually to be borne by the public purse, because it is the interests of the public, first and foremost, that are being advanced and maintained through the complaint process.  Again, this reflects the public interest nature of the process.

Of the Law Societies of Upper Canada and Nunavut