JP has change of heart, admits misconduct in tossing 68 charges

Despite his initial defence of his actions in dismissing a slew of charges in 2012, a justice of the peace admitted to misconduct last week and apologized for what he did.

“I understand that I didn’t conduct myself in a professional manner. I recognize that I have embarrassed myself, the bench, and in particular my family,” Justice of the peace Alfred Johnston told a Justices of the Peace Review Council panel on Tuesday. “I sincerely apologize for all the inconvenience this has caused and I can assure you nothing like this will ever happen again.”

Johnston was before the panel for tossing out a list of 68 charges in December 2012 for want of prosecution because the Crown was just over a minute late. In an agreed statement of facts, Johnston also admitted to failing to provide assistance to a self-represented litigant in traffic court. In that incident, when a courier driver accused of driving while using a handheld device couldn’t pronounce the name of a case he was referring to correctly, Johnston was “intemperate, mocking, and sarcastic, which was wholly unnecessary,” according to presenting counsel Marie Henein at the hearing last week.

Johnston also refused to allow the defendant, Alexander Leaf, to retrieve a copy of legislation from his car to help him recall the specific section that made an exemption under the Highway Traffic Act for handheld devices for the courier industry. Johnston incorrectly stated there wasn’t such an exemption.

In an October 2013 response to the complaints, Johnston chided some of those who had raised concerns about the incidents. For example, he took the media to task for coverage that raised concern about the loss of fine revenue due to the dismissed charges. “A newspaper article raises concerns regarding the loss of revenue,” he wrote. “I understand that it is not part of my function, as a judicial officer, to raise money for anyone, notwithstanding a restitution order.”

He also continued to blame the prosecutor, Michael Rose, who showed up late. “It’s unfortunate; the author refuses to recognize the simple fact, that, if Mr. Rose, prosecutor for the city of Toronto, had been present in court, as and when required, this never would have happened,” he wrote in response to an affidavit.

But last week, Johnston admitted the incidents, which happened 11 days apart, constituted judicial misconduct.

His lawyer, Peter Brauti, asked the hearing panel to consider that his client was dealing with health and family crises at the time of the misconduct. Johnston’s 35-year marriage had ended around that time and he had also suffered a heart attack, said Brauti.

Although those factors don’t excuse his client’s conduct, “hopefully the panel can accept there’s a human side to this case as well,” he added. There should be “room for understanding and mercy” even if judicial officers are subject to a higher standard than others, Brauti suggested.

Johnston, who became a justice of the peace in 2003, plans to retire in a year. A notation that he had failed to act professionally as a judicial officer would be “a sad, terribly disappointing end to a career,” according to Brauti.

Henein is seeking a suspension without pay for Johnston, a penalty Brauti characterized as “an overly severe disposition.” He instead suggested a reprimand and a warning. Johnston would also continue with counselling he started on his own volition, Brauti said.

The panel, chaired by Ontario Court Justice Marjoh Agro, will return on Aug. 19 with its disposition. Before that date, Johnston is to present proof of his medical condition and how it affected him at the time of the incidents.

During his interaction with Leaf at the November 2012 hearing, Johnston was dismissive. His comments included: “You can’t even cite the section you’re arguing” and “We don’t have people stand up trying to argue something they know very little about.” Leaf repeatedly abandoned his arguments because of Johnston’s failure to assist him, said Henein.

In a letter of apology, Johnston offered some context for what happened. “I was suffering from a great degree of stress, but did not seek out assistance,” he wrote.

“I am very much a private person and did not feel comfortable sharing my struggles with others. Instead, I attempted to resolve these issues personally. This approach led me to become even more isolated and upset with my circumstances.”

Leaf tells Law Times he took a day off work to attend the hearing. “I want to be here to look him in the eye,” he says.

“I’m here to let him know he disturbed my life.”

Henein said Johnston’s misconduct is significant because it harms the public’s confidence in the justice system.
Traffic courts are “the first and the only contact with the justice system” for many people, she said.

“Justices of the peace hold a critical authority. People’s perception of what the justice system looks like and how it operates . . . is from their interaction with justices of the peace.”

It’s not the first time a judicial officer has been under fire for dismissing a slew of cases due to a tardy prosecutor. In 2012, Ontario Court Justice Howard Chisvin faced the Ontario Judicial Council for tossing 33 criminal charges after a Crown prosecutor was late returning from a break. The panel reprimanded Chisvin, who said he had been under unspecified “personal stresses” at the time.

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