Wednesday, November 1, 2017

More Evidence of Bias/Unfairness in JP Removal Case: JP's Submissions Overlooked ? - Part 4

E. J. GUISTE
PROFESSIONAL CORPORATON
TRIAL & APPELLATE ADVOCACY

2 COUNTY COURT BLVD., SUITE 494
BRAMPTON, ONTARIO, L6W 3W8
TEL.(416) 364-8908.  FAX (416) 364-0973
E-MAIL:    ejguiste@yahoo.com
                      
February 6th, 2017                                                  E MAIL                                              
                                               
JUSTICES OF THE PEACE REVIEW COUNCIL
1 Queen Street East, Suite 2310
Toronto, Ontario
M5C 2W5

Attention:  Ms. M. King, Registrar and Counsel

Dear Ms. King:

RE:      MASSIAH – COMPENSATION – REHEARING

            The following are JP Massiah’s submissions on the question raised in your letter of January 23rd, 2017 and Presenting Counsel’s letter of February 1st, 2017.

Role of Registrar:

            It is unclear from your letter of January 23rd, 2017 whether you are writing as
Registrar to the JPRC, Counsel to the JPRC or on behalf of the hearing panel.

Composition of Hearing Panel:

            The Justices of the Peace Act stipulates that a hearing panel shall contain a judge who shall chair the panel, a justice of the peace and a member who is a judge, a lawyer or a member of the public.  All the members of the panel constitute a quorum according to s.11.1(3).

            Accordingly, JP Massiah requests that a member of the JPRC who is a Judge of the Ontario Court of Justice be appointed to satisfy the statutory quorum.  This is precisely what happened when Ms. Margot Blight recused herself.

Public Hearing:

            The Procedures Document at p.23 provides that consideration of the question of compensation shall take place in public if there was a public hearing.  There are no exceptional circumstances put forward by JP Massiah or Presenting Counsel to move from the presumption of a public hearing called for by both the JPA and the Procedures Document.

The Facts:

            JP Massiah does not agree that the underlying facts regarding the issue of compensation is res judicata. Rather, the purpose of the contemplated hearing is to adjudicate the issue of compensation afresh. JP Massiah recommends that the practice of both oral and written submissions be continued.

            I trust that this is satisfactory .
                                   
Yours very truly,
 ERNEST J. GUISTE
Per




Ernest J. Guiste
Cc co-counsel, Mr. House, Presenting Counsel – Ms. Henein and Mr. Gourlay

Mr. Massiah via e mail 

More Evidence of Bias/Unfairness in JP Removal: Presenting Counsel on Panel Composition - Part 3



Excerpts from Presenting Counsel's Submission


February 1, 2017

Marilyn E. King
Registrar
Justices of the Peace Review Council
31 Adelaide Street East
Toronto, Ontario
M5C 2K3

Dear Ms. King:

RE:  Justice of the Peace Massiah   v.   Justices of the Peace Review Council


As Presenting Counsel, we take the view that the re-hearing of the compensation question should be conducted by the two remaining members of the Panel.  In discussions with then-counsel for Mr. Massiah, (Mr. Anand) following the release of the Divisional Court's decision, it was agreed that this was the appropriate way to proceed....

While the chair of the tribunal may well have the discretion to add a member to an existing panel with the consent of the parties, in our view this is not an appropriate case for any such discretion to be exercised and we would not consent to it....

We would also like to indicate that we are content to have the re-hearing of the compensation issue conducted in writing, should the panel be so inclined.  Full submissions on the facts have already been made to the panel, and a transcript of those submissions is available. The remaining issue the the discrete legal question of how the Divisional Court's reformulation of the applicable legal principles should apply to the application of s.11.1(17) of the Justices of the Peace Act.  This could be adequately addressed in writing, in our view.

Yours very truly,


Henein  Hutchison LLP

Marie Henein
Mathew Gourlay
Presenting Counsel




What does the Justices of the Peace Act say ? 


Justices of the Peace Act

Hearing Panels

Composition:

s.11.1(2)   A hearing panel shall be composed of,

(a)   a judge who shall chair the panel;
(b)   a justice of the peace; and
(c)   a member who is a judge, a lawyer or a member of the public.

Quorum

(3)   All members of the panel constitute a quorum.




NOTE:  This excerpt of Presenting Counsel's submission to the JPRC on the issue of the composition of the Hearing Panel and whether the standard oral hearing format would be departed from is published here to draw attention to an issue of public importance.  Rule 59 of the Rules of Civil Procedure allow for the varying or amending of orders where something was not raised or adjudicated upon and that something impacts the court's order. According to Presenting Counsel in her submissions, the JP's appellate counsel was aware of this point. Could not the current impasse caused by the Panel's inability to decide have been averted through a Rule 59 motion on consent ?


More Evidence of Bias/Unfairness in JP Removal Case: No Juris Decision by OJC Re Panel Chair - Part 2


ONTARIO JUDICIAL COUNCIL

September 2, 2016

Mr. Ernest J. Guiste
Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario, L6W 3W8

Dear Mr. Guiste:

RE: Complaint about a judge

I am writing in relation to your complaint about the Honourable Justice Deborah Livingstone.

Her Honour has fully retired from the bench and is no longer a judge. As she is no longer a judge, the Ontario Judicial Council no longer has jurisdiction and cannot continue to review or investigate your complaint.

Thank you.

Yours very truly,

Marilyn E. King
Registrar


NOTE:  This decision is published here to draw attention to an issue of public importance. Complaints about judicial officers in our system are issues of public importance since it is the public whom judicial officers serve through The Rule of Law and the constitutional principle of Judicial Independence. The Chair of the Hearing Panel in the Re Massiah removal case resigned as a judge prior to the Divisional's Court's decision remitting the matter of the JP's compensation for his legal costs back to the original panel for adjudication.  Marilyn King is both the Registrar of the Ontario Judicial Council and the Justices of the Peace Review Council. Ms. King also retained Presenting Counsel to present the adjudication of the complaint against JP Massiah and was instructing JPRC counsel before the Divisional Court(to the very same law firm). The Divisional Court was not made aware that the original panel had now lost its chair and arguably could not entertain the rehearing with only two members pursuant to their enabling legislation.

Readers must understand that the fact that a judge retires in these circumstances is not
in and of itself evidence that they misconducted themselves. This writer makes no such
suggestion.  That is not the point. The point is - did the JPRC have a duty to inform the
Divisional Court of this development so as to save the parties involved time and
resources and to bring some semblance of fairness and decorum to a proceeding which
started in August 2010.  I believe it safe to say that the Divisional Court would not have
remitted the matter back to the "original panel" if they were informed that the
"original panel" no longer existed.

Growing Evidence of Bias/Unfairness in JP Removal Case: Unable to Decide Panel Rules - PART I

IN THE MATTER OF A HEARING UNDER SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4, as amended
Concerning a Complaint about the Conduct of
Justice of the Peace Errol Massiah
Before:    Justice of the Peace Michael Cuthbertson
Ms. Leonore Foster, Community Member
   
Hearing Panel of the Justices of the Peace
Review Council

NO UNANIMOUS Decision REGARDING COMPENSATION


Counsel:
Ms. Marie Henein                                        Mr. Ernest J. Guiste
Mr. Matthew Gourlay                                   E. J. Guiste Professional Corporation
Henein Hutchison, LLP
Presenting Counsel                                    Counsel for Mr. Errol Massiah



NO UNANIMOUS DECISION REGARDING COMPENSATION

SUMMARY:    The Hearing Panel has not been able to reach a unanimous decision on the request by Mr. Massiah for a recommendation to the Attorney General under sections 11(17) and (18) of the Justices of the Peace Act that the Mr. Massiah should be compensated for legal costs incurred by him in connection with the hearing .

1)    Pursuant to the Divisional Court’s decision in Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191, the Hearing Panel’s decision in 2015 to not recommend to the Attorney General that Mr. Massiah be compensated for legal fees incurred by the hearing was set aside and submitted back to the Hearing Panel for its re-consideration.

2)    Unfortunately, the Chair of the Hearing Panel, the Honourable Deborah Livingstone had fully retired as a judge of the Ontario Court of Justice prior to the Divisional Court’s ruling.

3)    By virtue of s. 4.4(1) of the Statutory Powers Procedures Act (SPPA), the remaining two members of the Hearing Panel, Justice of the Peace Michael Cuthbertson and community member Ms. Leonore Foster, were tasked with determining the matter.

4)    We note that s 4.2(3) of the SPPA states:
The decision of a majority of the members of a panel, or their unanimous decision in the case of a two-member panel, is the tribunal’s decision.
5)    The Hearing Panel received submissions on the compensation issue from both parties earlier this year. After concluding decisions on motions brought by Mr. Massiah, we began deliberations on the request for a recommendation for the compensation of legal costs. We have worked diligently and cooperatively in attempting to come to a unanimous decision but regrettably have been unable to do so.

6)    As a result, we have considered options both in statute and case law on how to now proceed. There exist two options. The first option would require a joint position by both parties. That option is:



Option 1
Pursuant to s. 4.2.1(2) of the SPPA, the Chief Justice could appoint one person to replace the former Chair of the Hearing Panel, if both parties consent. Then the three member Panel could re-consider the issue of the recommendation of compensation of legal costs and make a determination.

7)    If the parties cannot jointly agree to proceed under Option 1 then, in our view, this Hearing Panel must act as follows:
            Option 2
Pursuant to the decision in Law Society of Upper Canada v Watson, 2015 ONLSTH 189 (see also Worker’s Compensation Appeals Tribunal Decision no. 969/941, 1996 CanLii 9786 (ON WSIAT)), we must advise the Chief Justice that we are deadlocked and request that, pursuant to s. 11.1(1) of the Justices of the Peace Act, she appoint a new three member Hearing Panel to replace us. That new Hearing Panel would then have the responsibility of re-considering the request for a recommendation for compensation of legal costs, in accordance with the Divisional Court’s ruling.
8)    We therefore request that both parties liaise on the issue. We request that each of the parties advise us in writing of its position on Option 1 no later than Friday, November 24, 2017.


Dated:                    October 25, 2017
Hearing Panel:    Justice of the Peace Michael Cuthbertson
Ms. Leonore Foster, Community Member



 NOTE:  This decision is published to draw attention to an issue of public importance. Judicial officers throughout the common law countries are traditionally indemnified for their costs in defending their office. Ontario has opted to depart from this well established tradition and adopted what Presenting Counsel referred to as the "foot their own bill" policy. In Ontario JPs adjudicate bail hearings where they are called upon to adjudicate whether one who stands accused should be deprived of their liberty. This work combined with the Supreme Court of Canada's pronouncement in Ell  v. Alberta assures them all of the rights and privileges of judicial independence.

Friday, October 27, 2017

Tips on Advancing a Battered Spouse Syndrome Defence

   Domestic violence is a very serious social and legal problem.  Every year too many individuals suffer serious bodily harm and often death as a result of domestic violence.  All too often victims do not have the financial resources to secure the quality of legal services they deserve.

   Individuals who are historical victims of serious emotional and physical abuse at the hands of their spouses are all too often placed in situations where they are criminalized when they stand up for themselves in self-defence. This should not happen if police services which are mandated in Ontario to investigate domestic violence occurrences in this province on the same level of priority as homicides adhered to the polices put in place to prevent this.

   If you have been retained to defend an individual who has been charged in circumstances where in the context of a domestic relationship they act to defend themselves here are a few tips which may help you in advancing what has come to be known as the "Battered Wife Syndrome Defence". For the sake of clarity and simplicity I will refer to the defence as "Battered Spouse Syndrome Defence".

Battered Spouse
Syndrome Defence:

   What is the Battered Spouse Syndrome Defence ?  This is a defence which was recognized by our Supreme Court of Canada in R   v.  Lavalee [1990] 1 S.C.R. 852.  In R v. Lavalee a battered spouse shot and killed her common law partner by shooting him in the back of the head as he left her room. The killing took place after one of many heated confrontations in which the deceased had taunted her with the threat that either she kill him or he would kill her. The crux of the appeal was the court giving its blessing to the use of expert psychiatric evidence to show that the battered spouse had a reasonable apprehension of death or grievous bodily harm and believed on reasonable grounds that she had no alternative by to shoot.

Secure Historical
Medical Records:

   If after interviewing your client you determine that there is an air of reality to the prospect that your client may have acted out of an act of what I will refer to as self-preservation you will want to start compiling historical evidence of the nature of the relationship and any injuries suffered by your client.


Secure Police
Service Domestic
Violence Policy:

   In Ontario every police is mandated by law to have a Domestic Violence Investigation Policy. This policy will define such terms as "victim" and "dominant aggressor" - among others.  Victim in the Toronto Police Service policy for example is not confined to the current victim of charges before the court.  Hence, if some years ago your client was the victim of an occurrence and those charges were withdrawn when he or she failed to show for trial - your client is arguably a "victim" under the TPS Domestic Violence Policy since it does not set time limitations to the definition of victim and it incorporates within it an obligation by officers to ascertain who is the "dominant aggressor" based on among other grounds, historical information.

   Good lawyers will know that it is not uncommon for police officers not to follow policies. The failure of the police to follow their very own policies in the investigation of these occurrences can have very significant consequences for the strength of the Crown case against your client. Police officers under these policies should follow-up and find out why a complainant witness did not show up for court. The typical reason is fear for life or limb. If you are armed with such an omission on the part of the investigating police service you are well on your way to building your case that the acts and omissions of the investigating police service put your client's safety in danger.

Consider Testifying
at Preliminary Inquiry:

   Although often frowned upon by defence lawyers, you may wish to consider putting your client on the stand at the preliminary inquiry stage.  Not all clients will be able to do this. However, if your client is strong and determined it can be helpful on three fronts. The first is that it is very theraputic for the client to communicate their suffering.  The second is that it provides a less hostile environment for exposure to the trial process. Lastly, it provides cogent evidence that the Crown and the police can use to consider whether there is a reasonable prospect of conviction or whether the continued prosecution is in the public interest.  Putting in medical records as exhibits at the preliminary inquiry should send a very clear message to any responsible police service or prosecutor.  Since the preliminary judge is not concerned with weighing evidence and assessing credibility your client will be committed to stand trial.  However, you will have built a good foundation for your expert witness.

Retain an
Expert Witness:

   After your preliminary inquiry you will now be ready to retain an expert witness to assess your client and to provide an opinion on the use of force in the circumstances.  Dr. Peter Jaffe of the University of Western Ontario in London, Ontario is one of the leading authorities on domestic violence.  He is very knowledgeable and highly respected in his field by lawyers and judges alike. He also accepts clients who are funded by Legal Aid Ontario.


About the author:

E.J. Guiste is a rights litigation lawyer based in the Toronto area. His work involves both criminal and civil litigation - trial and appeal - with particular emphasis on ensuring that all players in the administration of justice adhere to and respect The Rule of Law.  Feel free to call for a consultation meeting if you have been charged in circumstances where you may have been acting to preserve your life, the life of your child or avoid bodily harm or you require an opinion on a potential civil claim. 




 





Saturday, October 14, 2017

"Access to Justice" Defined

     Let me start by first acknowledging that the term "access to justice" is  a political term and not a term of law.  Equality on the other hand is a term of law. In using the term political to describe the term "access to justice" I am not speaking of political science.  Political Science is a recognized course of study in the social sciences.  The political nature of the term means that it will have differing meanings for differing groups in the legal market based on things such as history, race, gender, sexual orientation and especially socio-economic status.

   
Divisible into Two
Major Categories:

     The term or goal of "access to justice" can be divided into two major categories. The first is what I will refer to as "economic access to justice". This category of "access to justice" concerns itself with the affordability of legal services to the public and for those who can not afford - affirmative intervention by the state to provide counsel.

     The second category of "access to justice" is rooted in the fundamental principles of The Rule of Law and Judicial Independence.  We could refer to this category as substantive "access to justice." It concerns itself with ensuring that all litigants in our courts have their grievances adjudicated fairly, impartially and dispassionately without regard to any irrelevant considerations including on the basis of the first category.

Critical Areas Calling 
for Access to Justice:  

     Critical areas of inequitable access to justice among litigants in Ontario include the following:  1. adjudication of claims involving sexual assault against women; 2. adjudication of claims by African-Canadians involving racial discrimination, racial profiling and judicial and professional misconduct; 3. adjudication of claims of ineffective assistance of counsel by criminal defendants; 4.  adjudication of claims against hospitals and medical doctors.


Commentary:

     Policy-makers who are serious about seeking to cure the lamentable problem of inequality in what has come to be termed "access to justice" in our justice system need to recognize and accept that there are indeed two major categories of "access to justice."  Focusing on one at the exclusion of the other is merely a "band-aid' solution and will serve to only aggravate the problem.

   

Friday, October 13, 2017

Access to Justice - What is it ? - Introduction

   The term "access to justice" is easily the most used or talked about terms among high court judges, regulators and governments in Canada.  We must begin to make legal services more accessible to all segments of the community is the prevailing sentiment. Hence, according to what I will refer to as the conventional wisdom among the three sources of input on this subject matter access to justice entails making legal services more affordable to the general public.  Of course the assumed fact in this policy choice is that this is the ONLY impediment denying what is now acknowledged to be significant and growing portions of the consumers of legal services a fair and impartial hearing of their legal clams and grievances.

   Therein lies the problem.  The current discourse on "access to justice" has failed to delineate and define what exactly is the problem we wish to solve when we employ the term "access to justice". In addition, the current discourse on the topic is entirely devoid of serious consideration of the issue from the perspective and interest of the consumers of legal services who are adversely impacted.

  In the next post I will dedicate some time to the question of what is "access to justice".