Taxpayers are picking up the legal bills of justices of the peace disciplined for offences including sexual harassment, falling asleep in court and demonstrating a “pervasive” lack of understanding of basic law.
Since 2009, five Ontario justices of the peace (JPs) had their legal fees paid by taxpayers, totalling $220,000, the Star has found. Four were found guilty of judicial misconduct, while the fifth resigned before a hearing took place.
Three were suspended by the Justices of the Peace Review Council, which has ruled on judicial complaints since 2007.
Toronto constitutional lawyer Rocco Galati says taxpayers should never have to pick up the legal bill of a disciplined JP.
“If they are acting outside the scope of the law and it’s a clear breach of their office then they should pay — no question,” Galati said.
“If you are disciplined as a doctor or a lawyer, nobody pays your fees.”
JP Errol Massiah was suspended for 10 days in 2012 after the council found he had sexually harassed female court staff.
The public forked out $123,000 for his legal fees.
Massiah is now facing another public hearing over similar allegations at a different courthouse, where he has been accused of leering at, touching or making sexual remarks to court clerks, prosecutors and defendants.
“Mrs. H, looking gooood,” he allegedly said to a female provincial prosecutor while looking her up and down as she walked into the courthouse, according to the notice of hearing. On a separate occasion, he allegedly leaned toward her, with his mouth close to her ear and said: “Oooh, lady in red.”
Massiah is also accused of inviting female court staff into his chambers while he was bare-chested or taking his shirt on or off. His case is ongoing.
A second JP, Solange Guberman, resigned before a panel could rule on the litany of allegations against her.
>p>They included a “pervasive” lack of understanding of basic law, falling asleep in court, screaming at staff and calling them “stupid,” relying on police officers and prosecutors for advice and speaking French when she was aware not all parties in the court could understand.
Her legal tab of $36,000 was billed to the taxpayer.
Lawyer Doug Hunt, who presented the case against Massiah in his first hearing, said the compensation of legal fees for JPs was “an important issue that obviously needs to be looked at.”
“The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty,” he said.
But, Hunt said it is important JPs have access to resources to defend themselves against allegations brought forward by the government.
Under the Constitution, JPs are guaranteed judicial independence, Ontario judicial registrar Marilyn King said.
“Recognizing the nature of judicial independence, higher courts have held that judicial officers should be entitled to receive reimbursement of costs for legal representation where the allegations are dismissed, and in some circumstances where there is a finding of judicial misconduct,” she told the Star.
Galati, who recently blocked a judicial appointment to the Supreme Court, says that justification is “misguided.”
“Judicial misconduct and paying to defend judicial misconduct has nothing to do with judicial independence,” he said.
Judicial independence is about giving judges the freedom on the bench to make decisions without legislative influence — “not free to run amok and then expect the taxpayer to pay for their misconduct,” Galati said.
Ian Greene, York University judicial administration expert, agreed.
“Being independent means you try your best to decide impartially, it does not mean you have the right to be involved in sexual harassment,” he told the Star.
Ontario has about 400 JPs who preside over relatively minor provincial offence matters, such as bail hearings and issuing search warrants.
Every year about 50 complaints are lodged against JPs, but the vast majority are dismissed because they relate to a disagreement with judicial decision-making, King said.
A legislation change in 2007 gave the council power to conduct hearings against JPs and to ask the Attorney General to cover their legal costs. A spokesman for the AG told the Star on Thursday that the government paid the full recommended amount to all five disciplined JPs.
In 2013, Tom Foulds was suspended without pay for a week after attempting to influence an investigation by public health inspectors into a Toronto restaurant owned by one of his friends. The public paid $3,000 for his legal fees.
In Foulds’ hearing, the review discussed whether a guilty JP should have their legal costs covered.
The panel found that in cases where JPs were found guilty, their “costs might still be warranted, but on a lower scale.” The decision is based on factors that include the severity of the misconduct and complexity of the hearing.
Since then, two other JPs who admitted misconduct were made to pay their own fees.
Last week, JP Santino Spadafora, who was facing allegations of misconduct and fraud, escaped a disciplinary hearing by retiring from his post.
His allegedly inappropriate expense claims, totaling $16,400, “showed a pattern of repeatedly providing misleading and untrue facts,” the council said. The alleged fraud prompted criminal charges, which were later dropped.
Spadafora, 60, was due to face the allegations at a formal conduct hearing on Nov. 24, but he chose to retire— which meant the council no longer had jurisdiction over him, his lawyer, Mark Sandler, said.
Sandler requested the council compensate Spadafora’s legal costs. The decision is still pending.
The guilty JPs
The five JPs found guilty of judicial misconduct who have had their legal fees paid by the public purse:
• In 2009, JP Paul Welsh, aged 60 at the time, admitted to judicial misconduct after four unrelated charges were filed against him with the Justices of the Peace Review Council. The allegations included an “inappropriate demeanour and a lack of civility” during trials and that Welsh had a perception of favour or bias towards clients who were known to him, according to the council’s reasons for decision. Welsh admitted to reducing Ontario Judge Martha Zivolak’s traffic fine by half to $90 and personally paying the fine without her consent. He was charged with obstruction of justice and received $25,931.54 from taxpayers to cover his court costs.
• In 2011, JP Paul Kowarsky, aged 68 at the time, appeared before the hearing panel when he was caught on a courtroom audio recording making sexually inappropriate comments to a clerk. The comment involved eight words, was “insulting and degrading” and the court clerk did not return to work the next day, according to the council’s reasons for decision. When the clerk complained to Kowarsky about the comments and told him she looked upon him as a father figure, “His Worship raised his voice to the point that he could reasonably be considered to be yelling,” the decision read. The clerk was left shaking and crying and requested not to be assigned to his courtroom again. Kowarsky admitted judicial misconduct and that his comment was “completely inappropriate, unwelcomed and wrong.” He was reprimanded by the council and taxpayers were left to cover his $32,795 legal bill.
• In 2011, JP Solange Guberman, aged 65 at the time, was suspended and then resigned before a hearing panel could make a finding into the litany of charges against her. Guberman was accused of a “pervasive” lack of understanding of basic law, falling asleep in the courtroom, a lack of judicial independence, screaming at staff and calling them “stupid,” excessively favouring the opinions of prosecutors and speaking in French when she was aware parties in the court could not understand, according to a notice of hearing. Guberman’s “inappropriate conduct and incompetence” was pervasive throughout her judicial tenure, it read. She allegedly failed to perform the duties of office and denied the fundamental rights of defendants. Guberman resigned before the hearing and taxpayers forked out $36,074 for her legal fees.
• In 2012, JP Errol Massiah was found guilty of judicial misconduct for sexually harassing female court staff. Now he is facing another public hearing over similar allegations — this time from a different courthouse. Massiah is accused of leering at, touching and making sexual or offensive remarks to female court staff, prosecutors and defendants between 2007 and 2010, according to a complaint filed to the council. It is alleged Massiah slowly looked female court staff up and down “giving rise to a perception of an undressing look”. He also allegedly said to court staff: “Girl, you’re looking good today” and “those pants look really good on you.” He was accused of “eyeballing” and staring at the chest of a female JP in a social setting. After the 2012 hearing, Massiah was reprimanded, forced to apologize to the complainants, ordered to undergo counseling in gender sensitivity and suspended without pay for 10 days. His court costs of $123,000 were paid for the public. His second hearing is ongoing.
• In 2013, JP Tom Foulds attempted to influence an investigation being undertaken by Public Health inspectors of the City of Toronto. The investigation was into a local restaurant owned and operated by a friend of Foulds that was shut down by Public Health Inspectors. Foulds allegedly went to the restaurant when the officials were there and told the inspectors it should never have been closed, according to the reasons for decision. He asked the inspectors to remove the ‘closed’ sign in the window because he had friends attending an LCBO event at the restaurant the following night. The complaint against Foulds was filed by the city’s director of healthy environments and alleged that he appeared to use his position to remove the closed sign. Foulds was suspended without pay for a week. The public paid $3,000 worth of his court costs.