Citizenship and Immigration Committee on April 26th, 2018

[Marilyn King]

It provides a structure to inform the public and a remedy for the public if they're concerned about the conduct of a justice of the peace. It provides a remedy to make that justice of the peace accountable. It provides dispositions to alter that conduct. It provides an educational platform, if you like, so that other justices of the peace know the expectations of what their conduct should be. When we put out the annual report each year, we send a copy of that annual report to every justice of the peace sitting on the bench, so that they have the opportunity to be educated as well. The primary thing is it provides a framework for accountability for judicial conduct that otherwise would not be there.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Thank you.

How much information about complaints against the justices of the peace is made publicly available?

[Marilyn King]

How much information about the complaints is made available?

[Larry Maguire, Conservative, Brandon—Souris, MB]

Yes.

[Marilyn King]

I don't know if you were provided the annual report. I did send the electronic version.

By way of an example, where there's a complaint and it did not meet the threshold to order a public hearing, it still provides the information that a complainant made a complaint, what kind of court she appeared in, and what the allegations were of what conduct. In this case, for example, the complainant believed that the justice of the peace was unfair, racist, and ignored her and so on. All of that would be set out.

The steps taken by a complaints committee are set out, so it would say that the complaints committee ordered the court transcript or had witnesses interviewed. If it's not dismissed, it will disclose that the justice of the peace was invited to respond. Some information of what they responded would probably be included in the case summary. The disposition is there. The reasons for it are there. If the committee had concerns because of the principles of judicial office that were not upheld by the justice of the peace, that information is there.

This particular case summary that I'm looking at, for example, is about two and a half pages long. It varies by complaint and by complexity of the complaint. If it's a hearing, all of the decisions made by the hearing panel are public. The hearing itself is fully public as well. Basically, the open court principle applies if it's a hearing.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Thank you.

What we've heard a great deal in this committee, in hearing testimony throughout the past months, is that there's a sensitivity required by members in regard to the panels and appeals. How much sensitivity training do justices of the peace receive in regard to their role?

[Marilyn King]

Because I don't oversee their training, I can't speak to the details of it, but the education plan for justices of the peace is posted on the review council's website. My understanding is that, since 2007, justices of the peace do receive very extensive training when they are appointed to the bench. When you say “sensitivity training”, I'm not sure if you're meaning so that you won't conduct yourself in a discriminatory manner or...?

[Larry Maguire, Conservative, Brandon—Souris, MB]

That's part of it, thank you, but we spent a good deal of time on whether the panel should be made up of lawyers and how much training you should have as a member in regard to the law. Or, is it more just what the member would expect or, through their lifetime experiences, add to that role? I'm just wondering about that. Some of them may never have been in a situation like that. I'm just wondering if the justices of the peace receive any kind of training in regard to this role that we could use as a reference here.

[Marilyn King]

Again, I'm sorry to have to clarify. Justices of the peace who are sitting on the review council and dealing with complaints...?

[Larry Maguire, Conservative, Brandon—Souris, MB]

Yes.

[Marilyn King]

Every member of the review council, whether a justice of the peace, a judge, a lawyer, or a community member, receives orientation education when they join the council. They get it again when they're going on a hearing in terms of covering the nature of an overview of what the process is, explaining the criteria, and reminding them of what the law is for the threshold for a hearing being ordered. Also, they're provided with some relevant case law. Every member gets orientation education, regardless of their background.

[The Chair, Liberal, Rob Oliphant]

I'm afraid I need to cut you off there.

Ms. Kwan, you have about eight minutes.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Mr. Chair, and thank you, Ms. King, for your testimony.

How are the panel's community members or community representatives chosen?

[Marilyn King]

My understanding is that they apply through the public website of the Public Appointments Secretariat. I'm not involved in that interview process. I know that they have to provide their resumé, and I believe they have to provide references; it's through the normal Public Appointments Secretariat process. Then I'm informed of who the members are. I don't have input into who those people are.

[Jenny Kwan, NDP, Vancouver East, BC]

I see. A pool of people, then, is selected through that process. Then, for each of the complaints, do they just get assigned to the specific complaint?

[Marilyn King]

Oh, I'm sorry. I misunderstood you.

Through the Public Appointments Secretariat, they're appointed to the council, so there are four in a pool to select from for the community members. They're assigned to investigate complaints based on various criteria. For example, where did the complaint arise? We avoid assigning complaints to members who work or live in the area where a complaint arose, so they would be perceived to be more neutral and objective. The caseload determines it, so we just try to make sure that everybody has an equal number of them as well. Then, of course, if it's ordered to a hearing, they are eliminated. If they have been on the investigation, they cannot be on the hearing panel. It's geography and caseload, really, that are the critical things.

[Jenny Kwan, NDP, Vancouver East, BC]

In determining the seriousness of a complaint, in determining the threshold of whether or not it goes to a public hearing, how is that threshold set and who makes it?

[Marilyn King]

The threshold is actually set out in the procedure, so the public knows what the criteria are. The committee decides whether those criteria have been met by conducting the investigation and considering the evidence gathered during the investigation. At that point, if they believe that the threshold set out in the public procedures and the criteria have been met, then it's ordered to a public hearing.

[Jenny Kwan, NDP, Vancouver East, BC]

I see, so then you meet full transparency and accountability, so that people know where the threshold is. If you violate this threshold based on an independent investigation, then this is how it is going to proceed.

[Marilyn King]

Yes.

[Jenny Kwan, NDP, Vancouver East, BC]

That's very helpful.

Now, in a situation where a complaint has been made and substantiated against a particular individual, and let's say some sanctions have been put in place, whether they be additional training or whatever, what process do you go through to ensure that the remedy or the additional sanctions have been effective? What kind of evaluation and follow-through...?

[Marilyn King]

No, there isn't any evaluation to see if it's been effective. For example, the only one I can think of that this would apply to would be if there were further training or treatment or counselling ordered. Generally, that is assigned through a public order for the chief justice to take steps to ensure that this happens. The chief justice reports back to confirm that those steps were taken. If it's an order of apology, the apology is always communicated in writing through our office, and then we communicate that to the complainant or the person affected by the misconduct, just to ensure that everyone knows what the apology was, that it was appropriate, and that it did take place.

In terms of the other remedies, for example, if it were a suspension for 30 days or less, then I guess the way it's known to be effective is if we get another complaint about the person. For example, there was a former justice of the peace who had a public hearing, after which further counselling and training was ordered, but then we had another complaint, and following the second hearing he was removed from office.

[Jenny Kwan, NDP, Vancouver East, BC]

I see.

As to the outcomes of the complaints, are the only outcomes that are made public those that result in remedies? In all the other cases, if they have not met the threshold, would that be kept confidential?

[Marilyn King]

No, that isn't correct. The annual report includes every complaint that comes in the door and is within the jurisdiction of the council. Even if it's dismissed, it's described in there. If it's not ordered to a public hearing, the legislation says that the names of the complainant and of the justice of the peace are not to be made made public, because a hearing was not ordered. That threshold wasn't reached. A case summary, however, for every complaint is provided in the annual report. In addition to that, at the end of the complaints process, even if it's a dismissal, advice, or whatever, the complainant receives a letter in writing to inform them of what happened with their complaint. For every complaint, there's public information.

[Jenny Kwan, NDP, Vancouver East, BC]

I see. Do you have a list of the sanctions that may apply, or that you can share with the committee with respect to complaints?