Justice of the peace wrote newspaper column criticizing the bail system
The Ontario Court of Appeal has overturned the removal of a justice of the peace who wrote a newspaper column criticizing the bail system, finding that she was motivated by a deep commitment to the justice system’s improvement and that her complaints were “factually valid.”
In Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, the court found that the recommendation from the hearing panel of the Justices of the Peace Review Council, which called for the removal of Julie Lauzon, was “plainly disproportionate.”
“Her Worship Julie Lauzon should be sitting as a justice of the peace,” begins the decision by Justices Peter Lauwers, Lois Roberts, and Bradley Miller. “That she is not sitting is an injustice to be remedied.”
“A very powerful statement,” says Lawrence Greenspon, who acted for Lauzon. “I don't recall the last time I saw any appellate decision in this country that started off with those words.”
While the court found the hearing panel’s judicial misconduct finding reasonable, it found the view that Lauzon had demonstrated an “ongoing personal bias against Crown prosecutors” was not. With the latter finding taken out of the equation, it was unreasonable for the hearing panel to recommend her removal, said Justice Lauwers, who wrote the reasons for the court.
The hearing panel’s “most serious errors” were its failure to adequately consider Lauzon’s freedom of thought, belief, and expression under s. 2 of the Charter, said Lauwers. He added that the hearing panel also neglected to “reconcile those rights with the constitutional principles of judicial independence and the separation of powers under the aegis of Doré v. Barreau du Québec.” The only possible conclusion of “the robust proportionality analysis” from Doré would be that Lauzon’s removal would be “grossly disproportionate to the nature, extent, and seriousness of her misconduct,” he said.
“The reason the decision is important is because the Court of Appeal recognizes and takes into account the fundamental freedom of expression, the importance of judicial independence, and the separation of powers,” says Greenspon.
The court allowed Lauzon’s appeal in part, quashed the hearing panel’s disposition, and substituted a disposition of a 30-day suspension without pay, which a dissenting hearing panellist had recommended.
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Lauwers said the record showed that Lauzon is “deeply committed to the improvement of the system of justice” and that she is unlikely to repeat the misconduct, which was “amply borne out” by the fact that she has not done so since the complaints were lodged.
Julie Lauzon has been a justice of the peace since 2011. She wrote a column in the National Post in 2016 criticizing bail-court operation and the conduct of some Crown prosecutors, which produced three complaints against her to the Justices of the Peace Review Council.
In Lauzon’s column, she described the bail-court process over which she presides, and where she said it goes off the rails. Under the law, the criminally accused are presumed innocent and are not to be denied reasonable bail without just cause. Given the nature and severity of the charges, some will remain in custody, and others, for whom the prosecutor does not seek detention, are released with an undertaking that they will return for their next court appearance. If the prosecutor wants conditions attached to the release, they are required under the Criminal Code to state clearly why these conditions are necessary.
It is the imposition of conditions where Lauzon said, “the law goes out the window, and cynicism and bullying kick in.” In Ottawa, where she sits, parties present justices of the peace with the news that the accused will be released and a list of conditions already entered into the system.
She said it is the justice of the peace’s responsibility to ensure the conditions are “reasonable, lawful, and appropriate.” Without sufficient justification, the accused is supposed to be released without them. But some believe that where the accused and prosecutor consent to the conditions, the court must accept them. This raises the problem that people held in custody will agree to “just about anything” to get out of jail, said Lauzon.
Because of Lauzon’s interpretation of bail law, one prosecutor told defence lawyers that “all deals were off the table” while she was presiding, another threw a temper tantrum and screamed at her in response to her questioning of certain conditions, and another prosecutor asked her to recuse herself from all bail hearings, she said.
“Between forced, rushed video appearances, a lack of respect for the JP bench and the absence of the rule of law in this court, I can no longer call it a court of law. It is a disgrace,” said Lauzon. “… Unfortunately, Ottawa’s main bailout court, and others, have devolved into dysfunctional and punitive bodies, devoid of the rule of law.”
Lauwers said that the hearing panel had also discounted that Lauzon’s criticisms of bail court were “factually valid.” The Supreme Court of Canada has expressed the same views in Baron v. Canada, [1993] 1 SCR 416, and R. v. Zora, 2020 SCC 14. In the former, it said that other justice-system actors should not treat justices of the peace as “rubber stamps.” And the court noted in the latter that there was “persisting and pernicious disrespect for justices of the peace in the context of setting bail conditions.”
“[T]here is no doubt that JP Lauzon tapped a deep well of justifiable discontent, as these authorities amply show,” said Lauwers. “… It was unreasonable for the Hearing Panel to downplay the veracity of both the general and the specific complaints JP Lauzon set out so forcefully in the article.”
In 2018, the council’s complaints committee hearing panel unanimously found that Lauzon had committed judicial misconduct. The panel found that it was not that she had published an article detailing issues in the bail system but that she had done so using language that was not “judicious” and “measured,” was “accusatory, insulting, inflammatory, and personal,” and was designed to “garner maximum media attention.” How Lauzon expressed her views “gave the appearance of bias and undermined public confidence in the judiciary,” said the panel.
While unanimous in their findings, the panel was split on their recommendation. Two of the three panellists recommended removal from office, while the third recommended a reprimand and a 30-day suspension without pay.
The Divisional Court dismissed Lauzon’s application for judicial review, and she appealed to the Court of Appeal.