I typically write about lawyer discipline, not judicial discipline. But to my surprise, there seems to have been virtually no attention to the important decision of the Ontario Divisional Court in Gibbon v Justices of the Peace Review Council in the year and a half since it was released.[1]
Gibbon was an Ontario Justice of the Peace who had attempted to influence Highway Traffic Act proceedings against her son, specifically by contacting the assigned prosecutor and by inviting the assigned Justice of the Peace to dinner.[2] While the panel of the Justices of the Peace Review Council was unanimous on the merits that there had been misconduct, there was a dissent on the disposition.[3] The majority held that Gibbon JP should be removed from office, but the dissenting member would have imposed several measures short of removal.[4]
Both sets of reasons applied Gladue principles in determining the disposition. As the Divisional Court put it, “[t]he majority reasonably found that the Applicant’s indigeneity may have been “connected” to her immediate response to the adjournment of her son’s trial, but that there was no “demonstrated connection” to the long and consistent pattern of misconduct over the course of about a year.”[5] The dissent JPRC panelist emphatically disagreed:
In my opinion, HW [Her Worship] Gibbon’s conduct throughout the prosecution of her son’s Highway Traffic Act charge was connected with her experiences as an Indigenous woman in the community of Thunder Bay and a justice system participant…. In my view, HW Gibbon’s judgment was clouded by these past experiences from the moment her son got the ticket…. In my opinion, her desire for fair justice in her son’s case, and her repeated intervention in his case, is inextricably related to her unfair experiences as an Indigenous woman with the justice system and in the community in Thunder Bay.[6]
This difference, among other factors, is reflected in the disagreement between the JPRC panel majority and the JPRC panel dissent over the appropriate disposition.
Gibbon is important for at least two reasons.[7] First, it appears to be the first decision applying Gladue principles in judicial discipline – a point of law that the Divisional Court upheld on judicial review virtually without comment.[8] Insofar as Gibbon explicitly followed a 2013 decision applying Gladue principles in lawyer discipline, it may not seem particularly surprising.[9] However, this application and its ready acceptance by the Divisional Court panel is particularly notable in the aftermath of a pair of decisions from the Supreme Court of Canada that can be read as pushing back against the application of Gladue principles in contexts outside criminal sentencing.[10] Contrast here, for example, the more recent decision in R v Bellegarde.[11] In that decision, Kilback J holds – with respect, unfortunately in my view, if not erroneously – that “[i]n light of the Supreme Court decision in Anderson [R v Anderson, 2014 SCC 41], if Gladue is to be extended to the ss. 24(2) [Canadian Charter of Rights and Freedoms] analysis based on the reasoning in Leonard [United States of America v Leonard, 2012 ONCA 622] (as argued by Mr. Bellegarde), that extension should be made by an appellate court.”[12]
Second, Gibbon is also important because it represents a second wave of Gladue decisions in professional or judicial discipline – and in administrative law more generally. Whereas the first wave was fundamentally about whether or not Gladue principles apply,[13] this second wave accepts their application but grapples instead with what impact Gladue principles have in any specific case. Indeed, as noted by Erica Richler, the reasons by the Divisional Court also suggest that they would also have upheld the dissenting reasons of the JPRC Panel as reasonable.[14] While Richler notes that “[t]hat suggestion reinforces the deference that should be given by the Court to decisions on sanction”,[15] in my view it also demonstrates deference to, and possibly reflects flexibility around, the impact of Gladue principles in administrative law contexts generally or professional or judicial discipline more specifically. Indeed, the Divisional Court explicitly held that “both the majority and the minority identified and applied Gladue principles appropriately in the context of this case.”[16]
While this first wave, focused on the applicability of Gladue principles in professional or judicial discipline and other administrative law contexts, is by no means finished, Gibbon demonstrates that this second wave has arrived. I would be reluctant to assume that this question of the impact of Gladue principles will be more straightforward than the question of whether or not Gladue principles apply. Like the first wave, this second wave may well require “re-energization of traditional legal creativity”.[17]
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[1] Gibbon v Justices of the Peace Review Council, 2023 ONSC 5797 (Div Ct) [Gibbon Div Ct], aff’g Re: Gibbon (JPRC 25 August 2022), online: <https://www.ontariocourts.ca/ocj/files/jprc/decisions/2022-gibbon-disposition-EN.pdf> [Gibbon JPRC Disposition]. But see Erica Richler, “A Reasonable Sanction: Gibbon v. Justices of the Peace Review Council, 2023 ONSC 5797 (CanLII)”, 92528 CanLII Connects (20 October 2023) <https://canliiconnects.org/en/commentaries/92528>; Natasha Danson, “Lack of Remorse vs. Degree of Insight – Part 1”, 295 Gray Areas, 2024 CanLIIDocs 2398.
[2] Gibbon Div Ct, supra note 1 at paras 6-18. See Gibbon JPRC Disposition, supra note 1 at paras 109-11.
[3] Gibbon Div Ct, supra note 1 at para 1.
[4] Ibid at paras 32-33.
[5] Ibid at para 39.
[6] Gibbon JPRC Disposition, supra note 1 at paras 130-133.
[7] Richler, supra note 1, focuses on four other issues: insight; the under-representation of Indigenous judicial officers; remorse; and the relevance of credibility to the disposition. On the relationship between remorse and insight, see Danson, supra note 1.
[8] As the JPRC panel noted, Gladue principles were argued in one earlier JPRC case, but that earlier panel held that there was insufficient evidence to apply them in that matter. See Gibbon JPRC Disposition, supra note 1 at para 34.
[9] Gibbon JPRC Disposition, supra note 1 at para 26; Law Society of Upper Canada v. Terence John Robinson, 2013 ONLSAP 18. On Robinson, see e.g. Andrew Flavelle Martin, “Gladue at Twenty: Gladue Principles in the Professional Discipline of Indigenous Lawyers” (2020) 4:1 Lakehead LJ 20 at 29-30 [Martin, “Indigenous Lawyers”].
[10] R v Anderson, 2014 SCC 41 [Anderson]; R v Kokopenace, 2015 SCC 28 [Kokopenace]. See Martin, “Indigenous Lawyers”, supra note 9 at 39-43. See also Alexandra Hebert, “Change in Paradigm or Change in Paradox? Gladue Report Practices and Access to Justice” (2017) 43:1 Queen’s LJ 149 at 173.
[11] R v Bellegarde, 2024 SKKB 126 [Bellegarde]
[12] Bellegarde, supra note 11 at pars 33-36 [quotation is from para 36].
[13] See e.g. Andrew Flavelle Martin, “Creative and Responsive Advocacy for Reconciliation: The Application of Gladue Principles in Administrative Law” (2020) 66:2 McGill LJ 337 [Martin, “Gladue Principles in Administrative Law”].
[14] Richler, supra note 1: “Interestingly, the Court also indicated that the reasons of the minority of the Review Panel were also reasonable suggesting that, if that had been the final disposition, the Court would have upheld it as well.” See Gibbon Div Ct, supra note 1 at para 69: “I have not analysed the minority’s disposition reasons, because that is not necessary to do so to dispose of this application. I would note here, however, that I found the minority’s reasons also to be thorough and thoughtful.” See also para 4: “It is not for this court to re-weigh the evidence, or to assess whether the majority or minority decision is “more reasonable”. Deference is owed by this court on judicial review.”
[15] Richler, supra note 1.
[16] Gibbon Div Ct, supra note 1 at para 4.
[17] Martin, “Gladue Principles in Administrative Law”, supra note 13 at 375.
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