Citizenship and Immigration Committee on April 26th, 2018

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

I'm going to call this meeting to order as members take their places.

This is the 107th meeting of the Standing Committee on Citizenship and Immigration. We are continuing and perhaps even concluding our study of the Immigration and Refugee Board's appointment, training, and complaint processes.

I want to thank Ms. King, who is the Registrar at the Justices of the Peace Review Council in Ontario, for joining us today.

I'm sure you've been told the background to this. We've been looking at training and the process of appointments. In looking at the complaints process in particular, we recognize the difference between judicial bodies, quasi-judicial bodies, and administrative law bodies, etc. We were looking at the different systems of complaint processes that could inform our examination of the current system at the IRB.

Thank you very much. You're our only witness today. To give you a bit of a breakdown, we'll probably take about 45 minutes, hear a presentation from you, and then questions from both sides of the House. We'll see where we're at from there.

You can take it away with an opening statement of up to seven minutes.

[Marilyn King, Registrar, Justices of the Peace Review Council]

Thank you, honourable Chair.

Good morning, honourable members.

Thank you for the invitation to have a representative of the Justices of the Peace Review Council attend before the committee.

As the chair indicated, my name is Marilyn King. I am the Registrar of the Review Council. I am a lawyer, and I have a history of public service that has included positions such as a crown attorney, executive director of a community legal clinic providing services to low-income clients, and various financial, policy, and operational roles in the justice sector. I have been the registrar of the review council since January of 2008.

I will give you a brief overview of the review council and its role. I believe you've all been provided with the annual report and also with the brochure that's provided to members of the public through various places. There's more detail in there, but briefly, given the role of justices of the peace in the administration of justice, they are expected to be sensitive to the high expectations of the public that judicial officers will remain worthy of trust, confidence, and respect.

In that context, the review council was established by the Justices of the Peace Act as an independent body to receive and investigate complaints about the conduct of justices of the peace. The current composition of the review council and its legislated responsibilities were established in 2007.

The objective of the review council, like other judicial discipline bodies, is to preserve or, if necessary, restore public confidence in the judiciary in general. Case law in the courts recognizes that judicial discipline bodies must determine the appropriate disposition that preserves or restores the integrity not just of the individual justice of the peace, but also of the whole of the judiciary

In terms of membership, to carry out its role, the review council must respect judicial independence in judicial decision-making, while providing a means of accountability for judicial conduct. The review council has members with knowledge of judicial decision-making, the nature of judicial independence, and the work being carried out by justices of the peace, as well as members who can provide input from the perspective of the public.

The members who review and investigate complaints and determine the appropriate disposition are three judges of the Ontario Court of Justice who are appointed by the chief justice, one regional senior justice of the peace appointed by the chief justice, three justices of the peace appointed by the chief justice, and four community members appointed by the Lieutenant Governor in Council on the recommendation of the attorney general. There is also one lawyer appointed by the attorney general from a list of three names received from the Law Society of Ontario.

The act also states that in the appointment of members there is an importance in reflecting Ontario's linguistic duality and the diversity of the population, as well as ensuring overall gender balance.

In investigating, any person can make a complaint to the review council about the conduct of a justice of the peace. Complaints must be made in writing, and there is no mandatory form used. Any letter can be written. The legislation requires that the investigation be conducted in private, and that is unlike the stage of a hearing, if one is ordered, which is generally public.

Each complaint is assigned to a three-person complaints committee that includes a judge, a justice of the peace, and either a community member or the lawyer member, for investigation. If the complaint arises from a court proceeding, court transcripts and audio recordings of the proceedings are ordered and reviewed by all members of the committee. If the allegations relate to conduct outside of the courtroom, an independent lawyer may be retained to interview witnesses and provide the copy with a certified transcript of any interviews.

A written response may be invited from the justice of the peace. If so, he or she is provided with full disclosure about the complaint and the information under consideration by the committee.

A justice of the peace can retain a lawyer to assist in responding, and at the end of the process can request compensation for their legal costs. The committee makes a recommendation to the attorney general, and it's within the discretion of the attorney general as to whether or not to pay the amount recommended.

When a complaints committee's investigation is complete, it has a range of dispositions available to it. They can dismiss the complaint. They can provide advice to the subject of the complaint, either in person or in writing. They can order a public hearing, or they can refer the complaint to the Chief Justice with conditions, such as education or treatment.

The act provides that the review council can establish rules of procedure to guide its complaints committees and its hearing panels. It has, in fact, developed those procedures, and they're available to the public on the review council's website. The review council uses those criteria in the procedures to guide the committee on whether a hearing should be ordered and what the appropriate disposition is. A hearing will be ordered if the complaints committee believes that a finder of fact could find that the justice of the peace engaged in judicial misconduct. The act does not define judicial misconduct, but cases have held that the test for judicial misconduct is the following:

whether the impugned conduct is so seriously contrary to the impartiality, integrity, and independence of the judiciary that it has undermined the public’s confidence in the ability of the judge to perform the duties of office or in the administration of justice generally and that it is necessary for the Judicial Council to make one of the dispositions referred to in the section in order to restore that confidence.

If a hearing is ordered, it is heard by a hearing panel of three different members—again, a judge, a justice of the peace, and either a community member or a lawyer, and those members cannot have been the members who were involved in the investigation of a complaint. Notice of the hearing is posted on the website, and it's put in a newspaper where the complaint arose.

An independent lawyer, called “presenting counsel”, is retained to present the evidence to support the allegations that are set out in the complaint that goes in the notice of hearing, and the the justice of the peace, or his or her lawyer, may also present evidence.

After a hearing, if there is a finding of judicial misconduct, the possible dispositions include a warning; a reprimand; an order of an apology; an order of specified measures, such as further education or treatment as a condition of continuing to sit as a justice of the peace; a suspension without pay for up to 30 days; a suspension with pay; or if not any of those, a recommendation to the attorney general for removal from office.

To recommend removal from office, the hearing panel must determine that the conduct of the justice of the peace is so manifestly contrary to the independence, impartiality, and integrity of the judiciary that the confidence in the justice system of individuals appearing before that justice of the peace or of the public would be undermined, rendering the justice of the peace incapable of performing the duties of his or her office.

In summary, public confidence in the administration of justice is viewed to be of paramount importance. Justices of the peace are, for many members of the public, their first and often only experience in the justice system, and they are the face of justice. The complaints process carried out by the review council therefore has a role in maintaining and restoring public confidence in the judiciary and in the administration of justice.

Thank you. I tried to keep that to seven minutes.

[The Chair, Liberal, Rob Oliphant]

Thank you very much. That was very helpful, and thank you for your public service. I recognize that it's not in your job description to appear before a House of Commons standing committee, but it's very helpful for us, so thank you for being here.

Ms. Alleslev has the floor for our first questioning.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

I'd like to echo that. Thank you very much, because this really does give us a clearer perspective on what an alternative type of review board looks like.

My first question is around the fact that yours in an independent review board. Could you give us some idea of why that's important? Could you give us any advice on how to determine what criteria we should use to determine whether the process of a review board should be independent or within the system?

[Marilyn King]

In the case of the Justices of the Peace Review Council, it should, in particular, be independent of the government. The government should not be perceived to be influencing or having any role in the outcome, so that it is independent of the government. That is why the chief justice appoints some of the members. Although the attorney general and the Lieutenant Governor in Council do play a role in appointing community members, to my understanding that's because that process is done through the Public Appointments Secretariat, which probably also exists by analogy in the federal system. The law society, of course, puts forward three names. The law society is effectively doing a preliminary screen.

The result is that the people who are investigating complaints and making the decisions on the complaints are doing that independently, based on the input they bring from their various backgrounds, not controlled by any person.

The other layer that supports that independence is the confidentiality of the process, which has, in fact, been challenged by the media. The Toronto Star challenged it recently with regard to another body that I support and that's analogous to this one. The confidentiality of the process means, for example, that even though the chief justice has a role in appointing members of the bench to the body, she does not have knowledge of complaints that come in the door unless a public hearing is ordered or unless a disposition is a referral of a complaint to her. Confidentiality in the process supports that independence.

My experience, in the eight years I've been there, is that having the body making its decisions independently, but also having their procedures public so that people know what's happening...and also having an annual report.... When you have an opportunity to look at the annual report, you'll see that it does provide case summaries on every complaint that comes in the door. If it's not ordered to be a public hearing, there are still case summaries provided.

I have participated with a group of lawyers who do what I do in the States. My experience has been that the annual report put out by the review council provides, comparatively speaking, a fairly high degree of detail on the nature of complaints that come in the door. When you have an independent body making decisions, everyone knows the kind of people who are on the decision-making bodies—the complaints committee and the hearing panel—and everybody knows, if they read the annual report, the kinds of complaints that come in, how they are addressed, and the reasons they are addressed. That all supports the public confidence in the process. In some provinces they don't have a body set up like this one. If a complaint simply goes to a chief justice, those additional supports to preserve or restore public confidence are not, respectfully, the same, in my opinion.

I don't know if that answers the question.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

It absolutely does. What you've done is to give us a reason for its being independent but not public, and at the same time transparent, if I understood you correctly.

[Marilyn King]

Yes.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

By publishing its procedures and composition; having three separate bodies choose its composition, in a way; and with the code of conduct, the sanctions, and an annual report, you're addressing the requirement for transparency as well as independence, but you're still keeping the process confidential. Did I get that right?

[Marilyn King]

I would add a couple of things to that. The process is confidential unless the threshold is reached where a public hearing is ordered.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

I meant “procedures”. The procedures are public.

[Marilyn King]

Yes. As well, if it's a serious enough complaint to warrant a hearing, the hearing is public. Right now, for example, I think we have three or four public hearings under way.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

There's a certain threshold that determines whether or not—

[Marilyn King]

Yes.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

That's brilliant.

Now let's talk about the composition of the panel. You stated that it's not one person and that it often will have a community member or honest broker on it. Can you give us some rationale for why that's important in maintaining the public confidence?

[Marilyn King]

Yes. It always has three at the investigative stage—a different three if it's serious enough to warrant a hearing. It's important to have someone on each of those bodies, which the judge and justice of the peace do. They provide an understanding of the work of the person who's being complained of, for example.

It's very important to have community input. The lawyer, the community person, or whoever the third person is on the committee or hearing panel does bring, in my experience, valuable input from members of the public. The other members, again in my experience, very much seek out and value the input from the community member as well. Sometimes the judiciary may see it from the perspective of what the justice system is to them on a day-to-day basis, whereas a member of the public might have a different perspective. They're not as familiar with the justice system, and they're seeing it the way a member of the public would see it. Having a member of the public on it, whether it's the lawyer or whether it's one of the other four community members, in my experience is very valuable.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Fantastic.

The following is an unfair question to ask you, but you are the expert. What would you say are some of the areas you would like to strengthen in the review council process? Therefore, what recommendations would you make to us in looking at that kind of complaints review process?

[The Chair, Liberal, Rob Oliphant]

Please respond very briefly, if you have anything.

[Marilyn King]

I'll just tell you how we do strengthen the review process. In the course of hearings—and sometimes not hearings, but usually in hearings—they tend to be represented by lawyers, so issues may arise that show something in the procedures that could be improved, refined, or clarified. The procedures are basically viewed as live documents. If a deficiency or a weakness is noted in the procedures, they aren't locked in stone. The legislation provides that they have the authority to make the procedures, but the procedures are up to the council.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Excellent. Thank you very much.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

Mr. Maguire.

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

Thank you, Mr. Chair.

Welcome, and thank you for your testimony, Ms. King.

I was particularly interested to hear that the justices of the peace have panels to hear these complaints made against them. Do you think that the system is preferable to having just the chairperson hear complaints, as is the case with our IRB?

[Marilyn King]

I apologize, I only learned about this on Friday, so I didn't have a chance to research the structure of the IRB. I'm sorry that I don't know that. If I'd had time, I would have researched that.

My experience is that having the input of three people with different perspectives is beneficial. They do have different perspectives on it. It can be complicated, in terms of what scenarios might come in the door.

The other thing this does is that it keeps the chief justice, in our case, preserved from the process. One of the potential dispositions can be referral to the chief justice, who meets privately with the judicial officer and can discuss the concerns of the committee. That can be a very remedial, educational step. If she were dealing with all of the complaints, it would be harder to communicate what happened—and some of the feedback that comes out of that meeting—back to the members of the public. Having the body independent from the chief justice allows for that type of remedy, but it still allows for the body to provide that information back.

If the chief justice were dealing with all of the complaints, it would be so much more difficult to provide the degree of information and feedback back to the public, and to be transparent about what went on. I can't speak for your process; I can only speak for my own.

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

Thank you.

Do you think that the creation of the justice of the peace advisory council has improved the quality of justice of the peace appointments?

[Marilyn King]

At the same time that this format of the Justices of the Peace Review Council was established in 2007, a more rigorous appointments process was put in place. In the time I've been there, I certainly have seen hearings occur, and I've seen all of those dispositions pretty much implemented.

I have to have some confidence that the process is working. If justices of the peace are given an opportunity to alter their conduct, and they come back for a second hearing—which actually happened recently, twice—that does show there's still a process there and there's still a remedy there for it to come back. The public would say the process isn't perfect, but my perception is that it is effective.

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

What is the advantage, then, of having a justice of the peace review council?