Editorial: Refine the rules

Should justices of the peace, or judges for that matter, have their legal costs covered when they face disciplinary proceedings?
On its face, it seems reasonable to suggest that if a justice of the peace does something bad, he or she should be on the hook for legal costs. But as the Justices of the Peace Review Council has pointed out, judicial independence is an important consideration. It’s certainly valid to question that assertion since a disciplinary matter doesn’t necessarily imperil judicial independence, but it’s still worthwhile for hearing panels to consider it as justification for awarding costs.

The concerns follow reports in the Toronto Star that taxpayers have shouldered $220,000 in legal fees for five justices of the peace facing allegations since 2009. The review council had found four of them guilty of judicial misconduct while a fifth resigned before a hearing took place, according to the Star.

It’s important to note the review council doesn’t always approve such requests. Last year, it rejected former justice of the peace Donna Phillips’ request to have the public cover her legal tab after she resigned amid a recommendation to remove her from office. She had been in hot water for lying to police for her daughter during a routine traffic stop, and the panel rejected her request for costs in part because of the severity of her actions. It found the average Canadian “would be shocked” if it compensated her for her legal costs.

In its ruling on the Phillips matter, the panel noted a previous case that outlined some guidance and factors to consider in such requests. They included the severity of the misconduct, the justice of the peace’s conduct during the hearing, and any previous findings of misconduct. They’re all reasonable factors to consider.

But in light of the concerns that review council panels have gone too far in their willingness to award costs to guilty justices of the peace, it’s clear we’d benefit from detailed guidance on the issue. It’s reasonable, for example, to suggest justices of the peace should have to more clearly and specifically demonstrate how not awarding costs would imperil judicial independence. The bar should be high when it comes to the severity of cases, and it seems the factors should count against a justice of the peace who resigns ahead of facing the music.

It’s not a simple issue. While it’s reasonable to suggest costs awards should be very rare or not an option at all, the circumstances facing Manitoba Associate Chief Justice Lori Douglas are a good example of why it’s important to preserve it. If her hearing had proceeded to completion and, hypothetically, a finding of misconduct, it would have been entirely fair for Douglas to have sought costs.

Glenn Kauth

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