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Notice of hearing into a complaint about the conduct of the Honourable Justice John Keast

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Notice of Publication Ban:

In accordance with the order of the Hearing Panel there shall be no publication of any information that identifies or tends to identify the child or children or any family member involved in any child protection matter (the “Publication Ban”).

Current status:

Pursuant to sections 51.4(18) and 51.6 if the Courts of Justice Act, R.S.O. 1990, c.43, as amended, a Hearing Panel of the Ontario Judicial Council is conducting a hearing into a complaint regarding the conduct and actions of the Honourable Justice John Keast.

The hearing continued on November 27, 28 and 29, 2017, at Neesons Court Reporting, 77 King Street West, Suite 2020, Toronto.

The Hearing Panel heard a motion to determine the admissibility of certain text messages between Justice Keast and a senior employee of the Children’s Aid Society of the District of Sudbury and Manitoulin. The Hearing Panel ruled the text messages admissible, with reasons to follow. The text messages were filed as an exhibit.

The parties then filed an Agreed Statement of Facts. In the Agreed Statement of Facts, Justice Keast admitted that he had engaged in judicial misconduct. The Hearing Panel made a finding of judicial misconduct by Justice Keast.

The hearing then proceeded to the matter of disposition. Through his counsel, Mr. Paul Stern, Justice Keast filed a Response/Affidavit, a letter report, and a binder of letters from judges, lawyers and staff attesting to his character and contributions.

Justice Keast’s Response/Affidavit served as his evidence-in-chief. Presenting Counsel, Mr. Scott Hutchison, cross-examined Justice Keast. Brief re-examination followed.

Both parties then filed factums and books of authorities on the matter of the appropriate disposition. Thereafter, the Hearing Panel heard oral submissions from both parties on the matter. Counsel for His Honour filed a dossier containing 60 letters of support for Justice Keast. A report was filed that confirmed that Justice Keast sought out and completed a period of counselling.  Presenting Counsel submitted that an appropriate disposition was to suspend Justice Keast, without pay, for a period of 15 days.  Counsel for Justice Keast submitted that a warning or reprimand was the appropriate disposition.

The Hearing Panel did not accept the submission of either counsel. The Panel said “while removal from office is not warranted, in our view, imposition of the most serious sanction permitted by law short of removal is.” The Hearing Panel concluded that the following sanctions are the appropriate disposition: a reprimand; an order that Justice Keast make certain apologies; and, an order suspending Justice Keast, without pay, for a period of 30 days. The Panel noted that the sanctions are in addition to Justice Keast having been non-assigned for fifteen months. The Reasons for Decision are posted on the Public Hearings Decisions webpage under year 2017.

Through his counsel, Justice Keast is asking that the Hearing Panel make a recommendation to the Attorney General, pursuant to section 51.7 of the Courts of Justice Act, that he be compensated for his legal costs.

The Hearing Panel ruled that the request for compensation for legal costs would proceed by way of written submissions. In the written submissions filed on December 8, 2017 by his counsel, Justice Keast requested a recommendation that he should be compensated in the amount of $149,585.92 including legal fees, HST and disbursements. On February 6, 2018, the Hearing Panel issued Reasons for Decision – Compensation for Legal Costs, recommending to the Attorney General that Justice Keast be given $50,000 compensation for Legal Costs. The decision is posted on the Public Hearings Decisions 2018 webpage.

Presenting Counsel had earlier advised the Hearing Panel that it will indicate, in writing, no later than December 15th, 2017, whether a motion will be brought by a party requesting that the Hearing Panel state a case to the Divisional Court pursuant to section 13 of the Statutory Powers Procedures Act so that the Court may inquire into the facts to determine whether the CBC acted in contempt of the Publication Ban. Presenting Counsel confirmed that they would not be bringing such a motion.

Background:

The complaint was investigated by a two-person Complaint Subcommittee, consisting of a judge and a community member. The hearing was ordered by a Review Panel that included two judges, a lawyer member and a community member.

The Hearing Panel is composed of a judge of the Court of Appeal for Ontario, who is the Chair of the Panel, a judge of the Ontario Court of Justice, a lawyer member and a community member.  On May 31, 2017, the Panel ordered that the following information be posted on the Council’s website:

    1. Pursuant to sections 51.4(18) and 51.6 of the Courts of Justice Act, R.S.O. 1990, c. 43, as amended (the “CJA”), the Ontario Judicial Council (the “Council”) directed that a complaint regarding the conduct or actions of the Honourable Justice John Keast (the “Applicant”) be referred for a hearing (the “Hearing”).
    2. The Hearing Panel of the Council (the “Panel”) set May 31, 2017, as the date on which Presenting Counsel would file with it the Notice of Hearing, and the Panel would set a date for the Hearing and establish a timeline for the proceedings.
    3. The Applicant brought a motion (the “Motion”) returnable on May 31, 2017. In the Motion, the Applicant asked:
      1. that the Notice of Hearing, the Motion materials, and the Applicant’s name and identifying information be kept private or be made the subject of a publication ban;
      2. that the Hearing be conducted in private;
      3. for directions regarding notice to “stakeholders”;
      4. for directions regarding communication with witnesses; and
      5. for an order prohibiting the publication of the contents or existence of certain text messages until the Panel determines their admissibility.
    4. Given the nature of the relief sought on the Motion, when the Panel convened on May 31, 2017, it began by hearing and deciding certain issues raised on the Motion. It then made the following orders (the “Orders”):
      1. the Applicant’s name shall be disclosed in the Notice of Hearing. However, the Appendix to the Notice of Hearing shall be redacted to protect those with a privacy interest;
      2. all documentation filed in this proceeding up to the filing of the Notice of Hearing with a redacted Appendix, including all materials filed on the Motion and those submitted at the oral hearing of Motion, shall be treated by all parties as confidential for all purposes. Such materials shall be sealed and do not form part of the public record of the proceedings;
      3. a pre-hearing conference in this matter shall take place on July 24, 2017;
      4. the Panel shall reconvene on August 9 and 10, 2017, at Neesons Court Reporting, 77 King Street West, Suite 2020, Toronto, to hear any further motions that any party or interested person wishes to bring;
      5. if the Applicant wishes to pursue his request for a private hearing, he shall give notice to the media;
      6. a moving party’s motion materials shall be filed no later than July 6, 2017, at 4 p.m. and responding materials, if any, shall be filed no later than July 31, 2017, by 4 p.m.;
      7. the Hearing shall take place on September 5, 6 and 7, 2017, at Neesons Court Reporting, 77 King Street West, Suite 2020, Toronto; and
      8. normal Hearing hours shall be from 9 a.m. to 5 p.m.
    5. Presenting Counsel then filed with the Panel Exhibit 1A, the Notice of Hearing with an unredacted version of Appendix A.  Thereafter, Presenting Counsel filed Exhibit 1B, the Notice of Hearing with a redacted version of Appendix A.

On August 9, 2017, the Hearing Panel continued its order that all documentation filed in this proceeding up to that date must be sealed and treated by all parties as confidential for all purposes, pending motions being heard related to privacy interests. The Hearing Panel also ordered, on the consent of all counsel present, that there shall be no publication of any information that identifies or tends to identify the child or children or any family member involved in any child protection matter.

On November 28, 2017, the Hearing Panel heard a motion by counsel for Justice Keast seeking an Order that the text messages between himself and a senior employee of the CAS should be found to be inadmissible. The motion was dismissed.

On November 28 and 29, the Hearing Panel heard a motion on behalf of Justice Keast seeking an Order that materials previously filed should continue to be sealed and that evidence and documentation to be filed should also be sealed. Counsel for Justice Keast referred to stories about the proceedings published by the CBC, arguing that the stories violated the publication ban ordered by the Panel. Counsel for the CAS brought a motion for redactions in the text messages. Both motions raised arguments about the interests of children involved in child protection matters and their families. The CBC brought a motion arguing against sealing of any documents or redactions.

The Hearing Panel listened carefully to all of the arguments and dismissed the motions seeking sealing of documents or redactions. The Panel noted that the open courts principle applies and decided that there was not clear and convincing evidence that restrictions in addition to the existing publication ban were necessary.

The Alleged Misconduct:

The hearing is considered whether the conduct summarized below amounted to judicial misconduct:

It is alleged that His Honour engaged in conduct and acted in a manner contrary to the impartiality, integrity and independence of the judiciary when he inappropriately communicated with a party about confidential information about a matter and engaged in conduct which may be perceived as attempting to influence the actions taken in judicial proceedings that may occur in that matter.

Possible Dispositions:

Pursuant to section 51.6(11) of the Courts of Justice Act, a Hearing Panel may dismiss the complaint, with or without a finding that it is unfounded, or if it upholds the complaint, it may decide upon any one of the following sanctions singly or in combination:

  • warn the judge;
  • reprimand the judge;
  • order the judge to apologize to the complainant or to any other person;
  • order the judge to take specified measures such as receiving education or treatment, as a condition of continuing to sit as a judge;
  • suspend the judge with pay, for any period; or,
  • suspend the judge without pay, but with benefits, for a period up to thirty days.

The Panel may also make a recommendation to the Attorney General that the judge be removed from office. This sanction stands alone and cannot be combined with any other sanction. Under section 51.8 of the Courts of Justice Act, a judge may be removed from office only by order of the Lieutenant Governor in Council.

Additional Information:

A judge whose conduct is being investigated in proceedings before the Council may be represented by counsel and is given the opportunity to be heard and to produce evidence.

Photographic and audio-visual devices are not permitted in the hearing room. For information on the use of electronic devices in the hearing room, please review the Council’s Protocol Regarding the Use of Electronic Communication Devices in the OJC Hearing Proceedings.

Presenting Counsel is Ms. Marie Henein, Henein Hutchison LLP, Telephone:  416-368-5000.

Counsel for Justice Keast is Mr. Paul Stern, Stern Landesman Clark LLP, Telephone: (416) 869-3422.

For general information, contact: Ms. Marilyn E. King, Registrar, telephone 416-327-5672.