The case of an Ontario Justice of the Peace facing discipline for speaking out about a dysfunctional court system is very troubling for the integrity of the justice system. However, it is not so for the reasons one may initially think.
Complaints have been filed against Julie Lauzon, a Justice of the Peace sitting in Ottawa. The complaints were initiated after Lauzon published a scathing editorial in the National Post, criticizing what she called a "broken" bail system in the Ontario courts. In Ontario, justices of the peace preside over bail hearings. They also, as in British Columbia, perform other judicial functions such as reviewing applications for search warrants.
The basis of the complaints was a concern that Ms. Lauzon's article brought the administration of justice into disrepute, by publicly denigrating the reputation of Crown counsel and thereby also raised a reasonable apprehension of bias against the Crown. The complaints allege that Ms. Lauzon's article harmed the justice system.
I call foul.
While it is certainly unusual for a sitting Justice of the Peace to publicly criticize the Crown or the court, it is hard to call it unfair or wrong.
Most members of the public spend very little time in court. Those who make it to court at all, may spend a few minutes to a few hours there. There is a very small section of the population who spend the majority of their time in court: judges, judicial justices of the peace, and lawyers. As a result of the frequency of their attendance in court, these people are in the best position possible to criticize the pitfalls of the system, and celebrate its successes.
But lawyers, judges, and judicial justices of the peace are often prevented from doing so, out of a concern that their comments may bring the administration of justice into disrepute.
This is a rule that is out of step with the obligations of counsel, judges, and justices of the peace to ensure the proper functioning of the administration of justice.
The Supreme Court of Canada recently overturned a disciplinary sanction against Joe Groia, a lawyer who had made a number of allegations of misconduct against the Crown in the course of lengthy criminal litigation. What the court made clear there was that so long as there is a good faith basis for the allegation, it is not professional misconduct to make it.
So too should it be open to a judge or judicial justice, with a good faith basis for doing so, to publicly criticize a system in place in court. Let's not forget that Julie Lauzon was right. Ontario's Attorney General has since publicly spoken out about the bail system in Ontario and has taken steps to reform it, in part to address concerns raised in Ms. Lauzon's article.
Recently, the Supreme Court of Canada denied leave to appeal in a case involving a Quebec lawyer, Madelaine Drolet-Savoie, who was disciplined after speaking out against the mechanism for child apprehension cases in Quebec. She had stated:
"It operates in a vacuum. There are always the same judges, the same counsel for the DYP, the same legal aid lawyers representing the children. The result is that the DYP gets what he wants in the vast majority of cases. It's not just David against Goliath. It's David against two or three Goliaths."
The Quebec Bar association fined her, on the basis that her comments reflected a "value judgment on the judicial process, whose credibility and integrity she impugned."
But what if she was right?
A person attending court on a single day couldn't possibly know that the bail system in Ontario was in dire need of rehabilitation. A lawyer, a judge, or a justice of the peace is in the best position to know this. And the downsides of a court system will never improve if the people who are suffering those do not speak out.
The Justice of the Peace here was right to speak out and identify what was flawed about the system and how it operated to perpetuate injustice. She was right to do that because it is more important that the people who come before the court feel they have a fair shot at getting bail, and that they will be treated fairly by the Crown and the court than it is to protect the Crown's feelings from getting hurt, particularly in a case where it seems the Crown may have been behaving in an inappropriate manner.
In the words of Dr. Seuss, in The Lorax: "Unless someone like you cares a whole awful lot, nothing is going to get better. It's not."
I for one am glad that Julie Lauzon, Joe Groia, and Madelaine Drolet-Savoie chose to speak up. And I hope that the Judicial Justice of the Peace Review Council agree that Ms. Lauzon had enough with a broken system, and did what was necessary and appropriate to attempt to fix it.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.