Justice Nicholas faced scrutiny over ‘wrong’ remarks posted on Facebook
An outspoken Ottawa judge who criticized a cancer-suffering colleague and another senior judge on Facebook has apologized and decided to retire rather than face a disciplinary hearing.
Ontario Court Justice Dianne Nicholas officially stepped down from the bench on Dec. 31. It was two weeks before she was scheduled to appear before the Ontario Judicial Council over remarks Nicholas said she inadvertently posted on the Facebook page of a local assistant Crown attorney in October 2012.
As a result of her retirement, the Ontario Judicial Council no longer has the jurisdiction to hold a hearing or to discipline Nicholas.
“What I said was completely wrong,” Nicholas told the Citizen on Monday. “I regret it; I shouldn’t have said it. I apologized immediately.”
In the online post, Nicholas identified a fellow judge and regional senior justice by their initials and complained that one had given a woman a reduced sentence because she had a certain kind of cancer that “is hardly a killer ... in fact the very same f’n cancer that (the sentencing judge) has herself... .!!!!”
Nicholas also lamented that between the two judges, the situation for sentences with driving offences “is getting ridiculous,” because their sentences were “far below the mark.” The contents of Nicholas’s post were part of an agreed statement of facts presented during a hearing in May 2014 into the judge’s conduct.
The Facebook post was seen by friends of the assistant Crown attorney, about 50 of whom were lawyers, and were “widely discussed” among defence lawyers, prosecutors, police and clerks at the courthouse.
Word of the remarks eventually reached the judges’ chambers and created what was described as a “toxic atmosphere,” according to Ontario Judicial Council documents. Two judges refused to work with Nicholas.
The Defence Counsel Association of Ottawa also expressed concerns about whether Nicholas could still be impartial in cases involving criminal driving offences.
Nicholas said Monday she regretted the post.
“I was horrified when I found out that I posted that. It was never meant to be public. It was at a time of great stress in my life. I never intended to post it,” said Nicholas.
Nicholas, who has been off work since Oct. 22, 2012, said she went on long-term disability because of mental health issues.
She said she decided to retire on her doctor’s advice rather than face a lengthy and stressful disciplinary hearing.
Nicholas said the other judge was “absolutely right” to be upset about the cancer comment.
She said she doesn’t remember posting the comments, which she said were made during a difficult time in her life.
“Had I not been really exhausted and overworked and in a depression, I obviously wouldn’t have made those comments,” she said.
Nicholas — who had been a judge for 23 years — was facing anything from a warning or reprimand to suspension with or without pay, or removal from office, had the disciplinary hearing proceeded.
According to Nicholas, she offered to take any penalty short of dismissal — including suspension with pay — in order to resolve the case.
She has now agreed never to work as a judge again. Retired judges can return to work after the age of 65 to work in a per diem capacity, but Nicholas undertook she wouldn’t seek to do that.
“It’s been a very sad way for me to end my career,” said Nicholas. “It’s been painful and stressful and the only way I could end it was by retiring.”
Nicholas said her mental health has worsened since she made the online remarks.
“I do have a disability. I’m receiving disability benefits and I have been told I can never return to work,” said Nicholas.
Nicholas said she had been receiving 66 per cent of her salary while off work on long-term disability. Nicholas’ salary in 2011, the last full year she worked, was $258,236, according to Ontario’s salary disclosure list. She will continue to receive a disability pension along with a penalty on her pension as a result of retiring early, she said.
Nicholas had admitted judicial misconduct in a previous incident in 2004 after making inappropriate comments in open court and to her neighbours two years earlier.
In that instance, Nicholas knew the brother of a woman who was appearing before her. She said she knew the man, who was once her daughter’s soccer coach, and that he was a “loser” who had become romantically involved with the mother of another player on the soccer team and that she was “not a big fan of that.”
The woman was alienated from her brother and agreed to allow the case to remain before Nicholas, but the judge later told neighbours that the woman had pleaded guilty to welfare fraud.
The woman heard about it from her niece, who had heard it from the neighbour’s children and a complaint was made to the judicial council.
Nicholas agreed and acknowledged that her conduct was inappropriate and indiscreet and that her misconduct was a serious matter.
The judicial council at that time accepted her “sincere apology” and allowed her to continue sitting as a judge after determining the matter could be dealt with by reprimand, apology or re-education. (See also Ontario Judicial Council)