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Donating Judges is a series of articles examining the politicization of federal appointments to Canada’s courts and tribunals by the National Post and the Investigative Journalism Foundation.
OTTAWA – The federal judicial watchdog issued an “expression of concern” but declined to further sanction an Ontario Superior Court judge who made multiple donations to the Liberal Party of Canada while on the bench.
In a decision published Thursday, a three-person review panel of the Canadian Judicial Council (CJC) confirmed a National Post and Investigative Journalism Foundation (IJF) report last year that Ontario Superior Court Justice Diana Piccoli had made multiple donations totalling at least $700 to the Liberals after her appointment in 2019.
The panel of two judges and one member of the public highlighted the “serious nature” of Piccoli’s conduct. It also rejected an assertion by Piccoli’s lawyer that the breach was “trivial.”
“Political donations by a judge are not trivial and have the potential to undermine public confidence in the independence of the judiciary,” read a statement from the council.
But the panel limited its disciplinary action to an “expression of concern,” the “lowest level of sanction available,” due to corrective actions taken by Piccoli over the last year, her “positive reputation” among colleagues and her “self-reporting” of the donations after the Post/IJF article.
CJC spokesperson Krista Ferraro confirmed the decision is a “first on all fronts” since the judicial conduct regime was overhauled and streamlined in June 2023.
In an interview, York University law professor Allan Hutchinson said the sanction was akin to a “rap on the knuckles”.
“A serious breach presumably should result in a serious sanction. And it’s hard to see an ‘expression of concern’ as a serious sanction,” he said.
He noted that this ruling speaks to a need for a better judicial disciplinary process that includes more external influence instead of “judges judging judges.”
“The irony of this is, judges are very good at telling other groups what they should be doing and what they shouldn’t be doing,” he said. “When it comes to themselves, it’s problematic.”
On Aug. 14, 2023, National Post and the IJF revealed that Piccoli appeared to have made three donations to the Liberal Party of Canada since her appointment: a $300 donation in 2019 and two donations totalling $400 in 2021.
At the time, the CJC said it launched a probe into the donations after questions from the Post and IJF. The council’s Ethical Principles require that judges cease all partisan political activity, including political donations.
The CJC decision reveals that the day after the Post/IJF article, Piccoli wrote the council to “self-report” the donations which had recently been “brought to my attention” via the media.
“Such donations, even in modest amounts, are inappropriate,” she wrote, according to an excerpt of her letter cited in the ruling.
One month later, she said she found a receipt for a $200 donation to the Liberals in December 2020. She also met Court of Appeal for Ontario Justice Gary T. Trotter three times in October 2023 for possible mentorship on ethical matters.
In the new judicial review process, a complaint against a judge first goes to a screening officer who determines if is reviewable by the council. It can then go to a second screening by a CJC reviewing member, who can dismiss the complaint or refer it to a review panel of three members.
The decision shows that on Sept. 29, an unnamed screening officer recommended the complaint be moved up to a reviewing member, finding that the donations were “not in line” with the ethical guidelines and “may” constitute judicial misconduct.
Piccoli subsequently argued through her lawyer Scott Hutchison that her transgression was “trivial,” that the donations were only “technically” inconsistent with the CJC’s ethical guidelines and that the complaint should be dismissed by the reviewing member.
He also submitted 11 letters of support from fellow judges, including the chief justice of the Ontario Superior Court and Trotter, the Court of Appeal for Ontario judge, who said it was “highly unlikely” Piccoli would ever violate the CJC’s Ethical Principles again.
“The present matter is ‘trivial’ in this sense in that, on sober reflection, it is a relatively minor and attenuated transgression by a judge universally regarded as an outstanding jurist, and who has taken active steps to address any lingering doubt about her commitment to the highest standards of judicial ethics,” Piccoli’s lawyer wrote to the CJC.
But the council’s reviewing member disagreed and escalated the complaint to a review panel. An excerpt of the reviewing member’s decision reveals concerns over the fact Piccoli only disclosed the donations to the CJC after the Post/IJF report.
“Of concern is the fact that Justice Piccoli was appointed in May 2019, made donations in 2019 and 2021, and did not disclose these donations until certain media reports were brought to her attention, in August 2023,” the reviewing member wrote.
“Consequently, this matter is not trivial, and cannot be dismissed as such.”
In its ruling, the review panel also disagreed with Piccoli’s assessment that the matter was “trivial” and refused to dismiss the complaint.
The panel found that the donations had the potential to undermine the public’s confidence in judicial independence. It also noted that Piccoli should have known that political donations were contrary to the CJC’s guidelines.
“It is crucial that the actual and perceived separation of the judiciary from the other branches of government be protected,” the members wrote. “Donations such as those made by Justice Piccoli create the risk this distinction may be blurred resulting in harm to the administration of justice.”
Despite its concerns over the offence, the panel concluded there was “no possible basis” to justify Piccoli’s removal from office for the offence. The judge’s “self-reporting” after the media story, the fact she proactively sought mentorship and submitted nearly a dozen letters of support from her peers weighed in her favour, they added.
Piccoli, through her counsel, declined to comment on the ruling.
In an interview, Acadia University professor Erin Crandall said political donations by a judge are anything but “trivial” but that the CJC’s public expression of concern is a much more appropriate remedy than resignation.
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