Top Ontario court officials faced discipline behind closed doors over 'racist,' 'bereft' comments

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Two top Ontario court officials – a judge and a justice of the peace – avoided public hearings and instead faced discipline behind closed doors last year after complaints were filed over respective comments they made about a young racialized offender and an accused Indigenous person.

The two cases were dealt with by arms-length judicial conduct agencies the Ontario Judicial Council (OJC) and the Justice of the Peace Review Council (JPRC) and are outlined within the councils’ 2022 annual reports, released in June.

In both cases, the councils referred the complaints to their respective chief justices as opposed to ordering public hearings, meaning the names and court locations of the officials were kept secret.

A public hearing may be ordered when either the OJC panel or JPRC committee believes that an allegation is rooted in fact and could result in a finding of misconduct. Only a select few cases make it to the public hearing stage, with the majority being referred to the councils’ chief justices, who can decide upon courses of action behind closed doors.

In the case of the judge, the OJC’s chief justice recommended further educational training, while the justice of the peace was advised on the importance of mindful language.

While the councils underline that the complaints process is intended to be “‘remedial in nature, rather than punitive,” a national civil liberties organization says the avoidance of hearings and subsequent anonymity in both of these cases is “unacceptable from a transparency and accountability perspective.”

“It is alarming that the review panels in both cases did not consider making racist and anti-Indigenous comments serious enough to require a public hearing into whether judicial officials committed misconduct,” Shakir Rahim, lawyer and director of the CCLA’s criminal justice program, told CTV News Toronto in a statement.

“Individuals from racialized and Indigenous communities could rightfully feel a reasonable apprehension of bias if they appeared before these judicial officials.”

THE CASE OF THE JUDGE

The OJC found that in the case of the judge, tasked with sentencing a 15-year-old offender who pleaded guilty of robbery, the official made comments that “ could reasonably be perceived as racist, xenophobic, culturally insensitive [...] and antithetical to rehabilitative principles.”

“You can’t see why people wouldn’t think you’d be a disgusting human being to be involved in a robbery that involved pistol-whipping a white woman,” the judge was confirmed by the council’s review panel to have said during the hearing.

“This is the very thing that triggers emotions in people that see a problem with immigration,” he continued.

The judge told the young person, who had been diagnosed with post-traumatic stress disorder as a result of time spent in refugee camps, that he was not unique in his circumstances, the document shows.

“There are lots of individuals that have come to this country from refugee camps. There are lots of individuals that have suffered all kinds of indignities in their life in their countries and what they’ve had to do to leave those countries to come to Canada, to be welcomed in Canada and what they do are the right things,” he said.

“They work hard, they behave themselves, and they learn our culture, our way of life so that they can contribute in a positive way to our country.”

The panel called the comments “particularly troubling, given that they were directed at a young, racialized person who was suffering from PTSD and who was receiving psychiatric medical care to address the traumas he had experienced.”

In his response to the complaint, the judge said he was “deeply remorseful.” According to the panel, the official said he felt this way “because the shortcomings he exhibited during the sentencing proceeding are not reflective of the type of judge, and human being, he is.”

The subject judge advised the panel that he takes “full responsibility for his conduct and, if given the opportunity, will unreservedly apologize,” the report found.

The panel found that the judge would benefit from “reviewing his conduct with the chief justice and engaging in further education and/or counselling.” The report says he then attended education sessions with a university professor “on the subject of a trauma-informed approach to racialized youth in the criminal justice system.”

“Given the steps taken by the subject judge to reflect upon and learn from this complaint, the review panel concluded that no further action was required,” the panel wrote in its closing remarks.

THE CASE OF THE JUSTICE OF THE PEACE

In the case of the justice of the peace, a JPRC committee found that the official expressed a belief that Indigenous people are awarded a “benefit” compared to other citizens when navigating the legal system

During an accused Indigenous person’s, the justice of the peace referred to a “benefit [Indigenous people] have, if I may say, or the privilege they have compared to other citizens just because they’re Aboriginal,” according to a transcript included in the report.

Racialized groups have long been overrepresented in the criminal justice and incarceration system, and the Criminal Code of Canada states, when making decisions about releasing people on bail, jurists must give particular attention to “the circumstances of Aboriginal accused, and accused who belong to a vulnerable population that is overrepresented in the criminal justice system.”

The lawyer who filed the complaint to the council called the justice’s remarks “bereft of any understanding of the history of Indigenous people in Canada or the case law and statutory framework meant to address their overrepresentation in the justice system.”

The committee found that the justice’s remarks “could reasonably be perceived as suggesting that the justice of the peace held the belief that Indigenous people receive an unjustified or unwarranted benefit or privilege in the criminal justice system.”

In response to the complaint, the justice said she called her words “inappropriate and injudicious.” Since the complaint was filed, the committee reported that the justice has apologized and educated herself.

A majority of the committee found it reasonable that the justice be provided with written advice by the Chief Justice on the importance of the choice of language in the courtroom, after which it found no further action was required and closed the file.