Law Times

Page 6 December 1, 2014 • Law Times www.lawtimesnews.com COMMENT Refine the rules hould justices of the peace, or judges for that matter, have their legal costs covered when they face disciplinary proceedings? On its face, it seems reasonable to suggest that if a justice of the peace does something bad, he or she should be on the hook for legal costs. But as the Justices of the Peace Review Council has pointed out, judicial independence is an important consideration. It's certain- ly valid to question that assertion since a disciplinary matter doesn't necessarily imperil judicial independence, but it's still worthwhile for hearing panels to consider it as justification for awarding costs. The concerns follow reports in the Toronto Star that taxpayers have shouldered $220,000 in legal fees for five justices of the peace facing allegations since 2009. The review council had found four of them guilty of judicial misconduct while a fifth resigned before a hearing took place, according to the Star. It's important to note the review council doesn't always approve such requests. Last year, it rejected former justice of the peace Donna Phillips' request to have the public cover her legal tab after she re- signed amid a recommendation to remove her from office. She had been in hot water for lying to police for her daughter during a rou- tine traffic stop, and the panel rejected her request for costs in part because of the severity of her actions. It found the average Canadian "would be shocked" if it compensated her for her legal costs. In its ruling on the Phillips matter, the panel noted a previous case that outlined some guidance and factors to consider in such re- quests. They included the severity of the misconduct, the justice of the peace's conduct during the hearing, and any previous findings of misconduct. They're all reasonable factors to consider. Big plans go up in smoke bet there are lots of nervous people on First Nations reserves these days. But maybe they're not so nervous. Ontario Finance Minister Charles Sousa says the province is cracking down on contraband tobacco and the underground economy to find money. But in the next breath, the minister also said: "I'm not suggesting we're going to go onto the reserve itself." That's because Ontario has no juris- diction on reserves and as Haldimand- Norfolk MPP Toby Barrett notes: "Can't remember the last time the RCMP were down on the reserve. They don't even have an office here anymore." Besides, Ontario has no backbone to move against First Nations com- munities. Witness the Douglas Creek Estates situation in Caledonia, Ont., where members seized homes in 2006 and are still in control. More recently, a "cease work" order by the rogue Haude- nosaunee Confederacy Chiefs Council interrupted work on a new bridge on Highway 3 over the Grand River. In his economic update, Sousa ad- mitted the province is half a billion dol- lars short of projected revenues and will have to look at "other tools" to balance the books by 2017-18. Part of the response was a call to action over the under- ground economy and illegal cigarettes. It's a pipe dream to think the government can crack down on underground transactions. Cash is king for transactions of up to $2,000 or $3,000. Few would pony up $25,000 in cash for a kitchen renovation even to save the sales tax, but it's a lot easier to pay a few hundred dollars un- der the table for a quick job like a deck or car repair. So Sousa's big plan to require companies bidding on Ontario con- tracts to certify that their taxes are up to date won't succeed because the transac- tions are well beyond the average cash- deal threshold and always on the books. Let's go back to cigarettes. The area sur- rounding Caledonia has the majority of tobacco farms in Canada. It's also prime smoke shack country with some of them actually on Crown land and operating with impunity as part of a large network of First Nations cigarette manufacturing and distribution operations. "Some of it is just ma- chines in garages but some are very large machines like the big tobacco companies use," says Barrett. About 175 organized crime groups run contra- band tobacco operations along with various types of drug activity. The strategy is to track leaf tobacco coming in and cigarettes going out and s. 24.1 of the Ontario Tobacco Tax Act does give great powers to stop, search, and seize any vehicle, vessel, trailer or rail car without a warrant on any Ontario road. Since the transaction takes place on the reserve, possession, delivery, storage, and transportation charges are the only option. The act also says "no person shall, unless permitted under this act or the regulations to do so, possess any quanti- ty of unmarked cigarettes or unmarked fine cut tobacco." So simple possession is also illegal and again allows for warrant- less search and seizure. Penalties range from $100 fines plus three times the tax payable on the t obacco for fewer than 200 cigarettes and can rise to as high as $10,000 plus up to two years' imprisonment for larger amounts. The reality, though, is that without dedicated resources and special fund- ing, the Ontario Provincial Police can't mount a consistent campaign. They may undertake a few show cases to scare the public and that's what Barrett fears. "They'll go after the low-hanging fruit," says Barrett. "And that's a red f lag to me because they'll probably go after the farmers just like they've been beating up on the corner store operators because that's where they've been fighting the war on tobacco." The only strategy so far that has stopped the smoke shacks is lowering the taxes to make them unprofitable. But this government has an addiction problem of its own to worry about: It can't stop spending money it doesn't have. LT Ian Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. 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It's reasonable, for example, to suggest justices of the peace should have to more clearly and specifi- cally demonstrate how not awarding costs would imperil judicial independence. The bar should be high when it comes to the severity of cases, and it seems the factors should count against a justice of the peace who resigns ahead of facing the music. It's not a simple issue. While it's reasonable to suggest costs awards should be very rare or not an option at all, the circumstances facing Manitoba Associate Chief Justice Lori Douglas are a good example of why it's important to preserve it. If her hearing had proceeded to completion and, hypo- thetically, a finding of misconduct, it would have been entirely fair for Douglas to have sought costs. — Glenn Kauth S I Queen's Park Ian Harvey

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