A judge has been issued an “expression of concern” from the Canadian Judicial Council for making political donations to the Liberal Party of Canada after being appointed to the Ontario Superior Court of Justice. However, the council avoided imposing further sanctions against the judge.
The National Post and the Investigative Journalism Foundation were the first to expose that Ontario Superior Court Justice Diana Piccoli had donated at least $700 to the Liberals after being appointed in 2019. They submitted their findings to the Canadian Judicial Council on Aug. 8 and published an article on Aug. 14.
Piccoli self-reported the donations to the council on Aug. 15, 2023.
“As has been noted in certain media reports (that the Council is aware of) it has been brought to my attention that in 2019 and in 2021, I donated a total of $700 to the Liberal Party of Canada,” wrote Piccoli in her letter to the council.
She later revealed on Sep. 19, 2023, that she had found another receipt for a $200 donation to the Liberals. She said she doesn’t remember the donation, but it could have been in response to telephone solicitations.
A panel consisting of three judges issued their decision on Thursday. The trio decided to impose a public expression of concern to reflect the misconduct of Piccoli.
“This recognizes the serious nature of the conduct and the potential loss of public confidence in the independence of the judiciary,” reads the decision. “An expression of concern is the lowest level of sanction available to a review panel and would reflect the corrective actions taken by Justice Piccoli and her positive reputation.”
The current ethical principles for judges were adopted in 2021, replacing a version from 1998 that had been updated in 2004. The principles are not a code of conduct but an “aspirational guidance to federally appointed judges in relation to ethical issues,” according to the Canadian Judicial Council.
Jula Huges, dean of the law faculty at Lakehead University said that while some of the ethical guidelines are “aspirational” or “advisory,” others are straightforward.
“Political donations fall… in that second category of you’re just not allowed. All partisan activity must cease and that’s a must,” said Hughes.
The newest iteration of the principles contains the same section as the previous two, noting that judges must cease all political activity upon taking judicial office. They must also avoid any conduct that could imply that they were engaged in any political activity.
When a complaint is submitted to the council, it is first reviewed by a screening officer. Should they deem it worthy, it is further reviewed by a reviewing member. The reviewing member then determines its merit and, if deemed worthy, refers it to the council to establish a review panel.
The council’s review panel can issue a private or public expression of concern, a private or public warning or reprimand, and order the judge to apologize publicly or privately. The panel can also order the judge to attend counselling or a continuing education course.
Piccoli was counselled by a lawyer named Scott Hutchison.
He argued that the breach should be considered “trivial” because the amounts were modest, and the review resulted from Piccoli’s self-reporting.
“It is respectfully submitted that 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,” wrote Hutchison.
The panel determined that it could not be dismissed as trivial “because it has the potential to undermine public confidence in the independence of the judiciary from the other branches of government.”
They added that Piccoli should have known that the donations were an ethical breach. However, the panel noted that she self-reported to the council, took training on ethical issues for judges, and received various positive comments and letters of support from the legal community.
“The review panel agreed there was no possible basis on which Justice Piccoli’s removal from office could be justified in the circumstances,” reads the review panel’s full decision.
However, they also deemed that the complaint should not be dismissed because any donation to a political party from a judge, no matter the size, is not trivial.
The full decision, including the expression of concern, was signed by the three judges on June 25, 2024.
The panel emphasized that its response should be open and transparent. The three judges on the review panel believe that this was accomplished by publicizing the expression of concern.
True North reached out to the Canadian Judicial Council and the Ontario Superior Court for comment but received no reply.