Saturday, February 25, 2017

Legal Authorities Raised by the Parties before the Divisional Court and Court of Appeal - Part I

J.P. Massiah's Schedule A Authorites - Main Factum:

1.  Barriolet  v.  JPRC 2011 ONSC 3246
2.  Blencoe   v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307
3.  D'Mello  v.  LSUC 2015 ONSC 5841
4.  Dunsmuir  v.  New Brunswisck 2008 SCC 9
5.  Ell  v.  Alberta 2003 SCC 35
6.  Groia  v.  LSUC 2015 ONSC 686 (Div Ct.)
7.  Igbinosun  v. LSUC 2008 Canli 36158
8.  In the Matter of a Compliant Re JP Kowarsky (30 May 2011) , online JPRC
9.  In the Matter of JP E. Massiah (1 March 2012) online: JPRC
     (a)  Letter from Marilyn King to the Hon. John Gerretsen dated May 4, 2012
     (b)  Letter from Marilyn King to the Hon. John Gerretsen dated June 13, 2012
10.  In the Matter of JP E. Massiah, Reasons for Disposition (12 April 2012) , online: JPRC
11.  Kane  v.  University of B.C. 1980 Canli 10
12.  Koita  v.  Toronto 2000 Canlii 22748
13.  LSUC   v.  Armstrong 2011 ONLSAP 1
14.  LSUC   v.  Marler, 2014 ONLSTH 203
15.  LSUC   v.  Shifman, 2014 ONLSTA 21
16.  R  v. A.E.  2013 ONCA 713
17.  R  v.  Beauregard 1986 Canlii 24 [1986[ 2 S,C,R, 56
18.  R  v,  Skolnick [1982] 2 /S.C.R. 47
19.  R  v.  Valente [1985] 2 S.C.R. 673
20.  RE Foulds (21 July 2013) online: JPRC
21.  Report of Judicial Inquiry Re; H.W. Benjamin Sinai (7 March 2008), online: JPRC
22.  Report of a Judicial Inquiry Re: H.W. Blackburn (21 January 1984) online: JPRC
23.  Report of a Judicial Inquiry Re: H.W. Obakata (6 November 2003), online: JPRC
24.  Report of a Judicial Inquiry Re H.W. Rick C. Romain (17 July 2003) online: JPRC
25  Watt  v.  LSUC 2005 Canlii 21111  

J.P. Massiah's - Schedule A - Authorities - Reply Factum:

1.  Howe  v.  Institute of Chartered Accountants of Ontario 19 O.R. (3d) 483
2.  Douglas  v.  Canada (Attorney General) 2014 FC 299
3.  Barriolhet  v.  JPRC 2011 ONSC 3246
4.  Moreau-Berube  v.  New Brunswicck [2002] 2 S.C.R. 307
5.  Blencoe   v.  B.C. Human Rights Commissions [2000] 2 S.C.R. 307
6.  LSUC  v.  Shifman 2014 ONLSTA 21
7.  Re Ruffo 2005 CPCCA 1197
8.  In the Matter of JP E. Massiah, Reasons for Disposition (April 12, 2012)

J.P. Massiah's - Schedule A - Authorities - on Leave to Appeal Motion

1.  Barriolhet   v.  JPRC 2011 ONSC 3246
2.  Bishop  v.  LSUC 2014 ONSC 5057
3.  Blencoe  v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307
4.  D'Mello  v.  LSUC 2015 ONSC 5841
5.  Report of the Canadian Judicial Council Re Gioroud J.
6.  Inquiry Committee convened by the CJC re Girourd J. April 20, 2016
7.  Hryciuk  v.  Ontario (1986) 31 O.R. (3d) 1 (ONCA)
8.  LSUC  v. Armstrong 2011 ONLSAP 1
9.  Moreau-Berube  v.  New Brunswick [2002] 1 S.C.R. 249
10.  In the Matter of J.P. Donna Phillips, Decision on Disposition (24 October 2013)
11 Re Ruffo 2005 CPCCA 1197
12. Watt  v. LSUC 2005 Canlii 2111 

Friday, February 24, 2017

Why the Constitutionality of the Justices of the Peace Act Requires A Ruling

   Justices of the Peace in Ontario are denied two of the fundamental rights flowing from the constitutional principle of judicial independence - they are - 1. security of tenure and financial security.  In addition to this justices of the peace in Ontario are denied reasonable access to counsel to defend themselves against any form complaint of judicial misconduct leveled against them - including complaints which could be characterized as complaints from the state or agents of the state.

   To compound this there is no limitation period with respect to the bringing of judicial misconduct complaints against justices of the peace.(see Re Massiah 2015 - Decision on Jurisdiction and Alleged Abuses of Process)

Divisional Court

   In Massiah  v.  Justices of the Peace Review Council 2016 ONSC 6191 the Divisional Court allowed the portion of J.P. Massiah's judicial review application challenging the decision to deny him compensation for the cost of the defending the proceedings - Compensation Decision. The Divisional Court made the following relevant pronouncements in its ruling:

[49]   In my view, the 2012 Panel started from a flawed premise, that is,that where there has been a finding of judicial misconduct, the presumption should be that compensation will not be made. Specifically, the 2012 Panel said:..."it is only in exceptional circumstances that the public purse should bear the legal costs of a judicial officer who engaged in judicial misconduct."

The 2012 Panel adopted this presumption from an earlier decision of a different Hearing Panel of the JPRC in Re Foulds (JPRC, July 21, 2013).

[50]   I do not accept that any such presumption exists nor do I find any cogent reasons why such a presumption should exist.  Rather, there are compelling reasons for the opposite approach.

[51]   First, and as noted above dismissal of a judicial officer is a matter of public importance.

[52]   ....the prospect of a complaint emanating from the Government is, nonetheless, a real one. This probability is of some significance given that one of the most important roles performed by a judicial officer is to stand between the state and the citizen, in terms of the application of government powers. This role is referenced in the earlier statement I quoted above from Re Therien.  Judicial officers are therefore exposed not only to the vagaries of complaints by citizens but also to those of government.

[53]   ....While there are screening mechanisms to ensure that only complaints that appear to have a requisite degree of validity, and that are related to judicial conduct rather than judicial decisions, are permitted to proceed beyond the stage of the initial complaint, the impact on the holder of a judicial office, where a hearing is called, is significant, as this case and others have amply demonstrated.

[54]   Fourthly, there is a serious risk that, if we hold a presumption that a judicial officer holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of th Gordian Knot.  On the one hand, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process. That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely significant.  Few judicial office holders would be able self-fund those expenses.  On the other hand, that same person, in order to avoid those dire financial consequences, may simply decide that it is easier, and financially safer, to simply resign their office.  In doing so, though, they leave the allegations unanswered and consequently, in most persons' minds, admitted to.  If that is the knot that a judicial officer holder faces, it means that the mere fact of a complaint becomes, in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results.  Either the judicial office holder, for reaasons other than the merits of a particular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criticism.

[56]   For these reasons, adjudicative bodies, dealing with complaints against judicial office holders, ought to start from the premise that it is always in the best interests of the administration of justice, to ensure that persons, who are subject to such complaints, have the benefit of counsel. Consequently, the costs of ensuring a fair, full and complete process, ought usually to be borne by the public purse, because it is the interests of the public, first and foremost, that are being advanced and maintained through the complaint process.  Again, this reflects the public interest nature of the process.

On Compensation
by Vallencourt Panel:

[58]   This case itself presents as an example of how different circumstances can give rise to different decisions on compensation.  The 2011 Panel recommended that the applicant be compensated for his legal expenses.  The 2012 Panel did not.  Those apparently conflicting results, though, simply reflect that there were crucial differences in the circumstances between the two proceedings.

Deficient Record of
Proceedings Filed
by JPRC:

    The Justices of the Peace Review Council's Record of Proceedings before the Divisional Court did not contain an 11 tab document entitled Respondent's Submissions on the Question of the Indemnification filed by J.P. Massiah on the compensation portion of the hearing.  This document contained the compensation documents from the 2011 Panel. These documents showed the following salient facts about the 2011 Panel's decision to compensate - which the Divisional Court was denied access to:

1.   There was no submission from Presenting Counsel for non-payment or in fact any submissions at all on right or quantum to compensation; and

2.   The Attorney General's office paid J.P. Massiah's lawyers directly rather than by a cheque payable to counsel in trust or payable directly to J.P. Massiah.

Justices of the Peace
Entitled to Judicial 

   The Supreme Court of Canada's decision in Ell  v. Alberta [2003] 1 S.C.R. 857 confirmed that principle of judicial independence applied to justices of the peace .   In Valente  v.  The Queen [1985] 2 S.C.R. 673 the Supreme Court of Canada set out the three essential conditions of judicial independence.  They are:  1.  security of tenure; 2. financial security; and 3. institutional independence.

Security of tenure:

   "The essentials of such security are that a judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard."  (Valente v. The Queen)

Financial security:

   "The essence of financial security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence." (as above)

Right to counsel and 
reasonable access to
counsel to defend

   If justices of the peace in Ontario are to have any meaningful right to security of tenure and financial security it would seem reasonable that they have a right to reasonable access to counsel in order to defend their office on judicial misconduct complaints.  This is especially the case where the complaint is one emanating from the Government as Nordheimer J. correctly noted in Massiah  v. Justices of the Peace Review Council 2016 ONSC 6191 at paragraph 52.

Hearing Panel
Compensation Decision:

[24]   We reject Mr. Massiah's assertion that, in relation to numerous pre-hearing motions, his defence was "clearly well-grounded on recognized and viable procedural grounds."  We agree with and reiterated below examples included in Presenting Counsel's submissions which highlight a number of the frivolous motions brought by Mr. Guiste on behalf of his client:

- publication ban motion
- motion for disclosure and particulars
- motion asserting institutional and reasonable apprehension of bias
- motion for leave to entertain further submissions

Unjustifiable Inequity
Between OCJ Judges
and Justices of the Peace:


    "Presenting Counsel shall prepare the Notice of Hearing for the approval of the review panel that referred the complaint for a hearing."(Procedures Document - Procedural Code for Hearing paragraph 7 at page 22)

Justices of 
the Peace:

    "Presenting Counsel shall prepare the Notice of Hearing. (Procedures Document - Procedural Code for Hearings paragraph 7 at page 17)

Prima facie conflict
between s.10.2, 11(15), 
11.1(15) and Procedures
Document - paragraph

   The Justices of the Peace Act, R.S.O 1990 c. J.4 expressly stipulates the complaints must be in writing and that a hearing panel may dismiss or uphold the complaint.  In Re Massiah 2015, a panel chaired by now retired Justice Deborah Livingstone recommended the removal of J.P. Massiah from office not based on a complaint but based on particulars in a Notice of Hearing which not only exceeded the complaint and was not pre-screened and investigated by a complaints committee. The Notice of Hearing in Re Massiah 2015 was NOT reviewed by the complaints committee which supposedly order the complaint to a hearing. Needless to say, JP Massiah's first and only notice of the significant particulars in the Notice of Hearing was once it was served on him post issuance on May 31st, 2013.

Judges of Ontario Court
of Justice Right to
compensation for cost
of defending misconduct:

Courts of Justice Act:

s.51.7(8)   The Attorney General shall pay compensation to the judge in accordance with the recommendation.

Justices of the Peace Act:

   The Justices of the Peace Act contains no directive compelling the Attorney General to compensate justices of the peace where a recommendation is made.

No Limitation Period
on complaints ruled
Re Massiah 2015 panel:

   To compound these very serious flaws in the Justices of the Peace Act and its corresponding Procedures Document, a panel chaired by now retired former part-time judge of the Ontario Court of Justice, Deborah Livingstone, recently ruled in Re Massiah 2015 that there is no time limit on when a complaint of judicial misconduct can be brought against a sitting justice of the peace even though those allegations are founded on rights under the Human Rights Code of Ontario.

About the author:

Ernest J. Guiste is a Roman Catholic,  African-Canadian lawyer who champions the principles of fairness and access to justice for all persons in the community. Mr. Guiste believes that a judge, a justice of the peace and indeed all citizens must all have confidence that the administration of justice will treat them fairly without regard to irrelevant considerations and in accordance with the Rule of Law.  Mr.  Guiste is the author of "A Catholic Lawyer's Prayer" - a prayer he wrote and published as a direct result of the actions taken against him and anticipated to be taken against him by the Hearing Panel and others for his stance in defending a member of the judiciary fearlessly.

Monday, February 20, 2017

The Admission of African-Canadians to the Bar: A Historical Example of the Constitutional Role of the A.G. in the Administration of Justice:

   Among the best examples of the unique position which the office of the Attorney General holds in the administration of Ontario is the historical exclusion of African-Canadian and women from Ontario's legal profession and how the Attorney General intervened to rectify these two wrongs.  Yes - at one point in our lamentable history African-Canadians and women were not permitted to practice law in Ontario. The Law Society of Upper Canada would not allow them in keeping with the norms of that period in time.

   In both instances it was the intervention of the Attorney General which was responsible for their ultimate right to practice law in Ontario.  This intervention arose from the duty and responsibility of the Attorney General to defend the Rule of Law and safeguard civil rights for all in Ontario.

   Below are some excerpts from the Attorney General's factum(Intervener) in Canadian Judicial Council Inquiry of Justice Paul Cosgrove touching on the constitutional role of the Attorney General in the administration of justice.

The Ministry of the 
Attorney General Act: 

23.   ...In Ontario, the principle statutory recognition of the responsibilities of the Attorney General is set out in the Ministry of the Attorney General Act, R.S.O. 1990 c. M.17, s.5, which codifies the historical common law position of the Attorney General.

s. 5.

The Attorney General
(a)   is the Law Officer of the Executive Council
(b)   shall see that the administration of public affairs is in accordance with law;
(c)   shall superintend all matters connected with the administration of justice in Ontario;
(d)   shall perform the duties and have the powers that belong to the Attorney General and Solicitor General for England by law or usage, so far as those duties and powers are applicable to Ontario, and also shall perform the duties and have the powers that, until the Constitution Act, 1867, belonged to the offices of the Attorney General and Solicitor General in the provinces of Canada and Upper Canada and which, under the provisions of that Act, are within the scope of the powers of the Legislature;
(e)   shall advise the Government upon all matters of law connected with legislative enactments and upon all matters of law referred to him or her by the Government;
(f)   shall advise the Government upon all matters of a legislative nature and superintend all Government measures of a legislative nature;
(g)   shall advise the heads of the ministries and agencies of Government upon all matters of law connected with such ministries and agencies;
(h)   shall conduct and regulate all litigation for and against the Crown or any ministry or agency of Government in respect of any subject within the authority or jurisdiction of the Legislature;
(i)   shall superintend all maters connected with judicial offices;
(j)   shall perform such other functions as are assigned to him or her by the Legislature or by the Lieutenant Governor in Council.

26.   The Attorney General occupies a unique position in Canadian law.  While both an elected member of the Legislature and a member of the Executive, he or she is also the Chief Law Officer of the Crown, with an independent responsibility to sustain and defend the Constitution and the rule of law.  This unique position imposes a duty on the Attorney General to consider, objectively and independently of partisan considerations, what actions must be taken to uphold the rule of law.

        It is understood in our province that the attorney general is first and foremost the chief law officer of the Crown, and that the powers and duties of that office take precedence over any others that may derive from his additional roles as minister of justice and member of Cabinet.

(The Hon. Ian G. Scott, "Law, Policy and the Role of the Attorney General: Constancy and Change in the 1980s" (1989) 39 U.T.L.J. 109 at 122)

         Attorneys General are above all servants of the law, responsible for protecting and enhancing the fair and impartial administration of justice, for safeguarding civil rights, and maintaining the rule of law.

(The Hon. R. Roy McMurtry, "The Office of Attorney General", in D. Mendes da Costa, ed., The Cambridge Lectures (Toronto: Butterworths, 1981) at 7

Sunday, February 19, 2017

Basic Principles on the Independence of the Judiciary (United Nations)

Basic Principles on the Independence of the Judiciary
Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law,

Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay,

Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation,

Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality,

Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens,

Whereas the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors,

Whereas it is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct,

The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general

The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist.

Independence of the judiciary

1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

Freedom of expression and association

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

Qualifications, selection and training

10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

Conditions of service and tenure

11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.

Professional secrecy and immunity

15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.

16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

Discipline, suspension and removal

17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Saturday, February 18, 2017

Constitutional Question Filed in Re Massiah: J.P's Security of Tenure and Access to Counsel Inferior to Judges

Courts of Justice Act

IN THE MATTER OF a Complaint(s) respecting
Justice of the Peace in the
Central East Region


The Applicant intends to challenge the provisions of the Justices of the Peace Act dealing the making of complaints of judicial misconduct and the provisions of the JPRC Procedures Document dealing with the preparation of a Notice of Hearing.    Further, the Applicant intends to question the constitutional validity of the provisions in the Justices of the Peace Act and the Justice of the Peace Review Council’s Procedures Document addressing compensation for the cost of defending complaints. 

 The provisions of the Justices of the Peace Act clearly call for a “complaint” and require that a hearing panel “uphold or dismiss a “complaint”.  This express requirement in the Act is contradicted by the JPRC Procedures Document which authorizes the JPRC to retain Presenting Counsel who is given unfettered discretion to draft a Notice of HearingThis unfettered discretion granted Presenting Counsel under this statutory scheme violates the security of tenure of the Applicant and indeed all justices of the peace. This unfettered discretion is avoided in the complaint process dealing with judges of the Ontario Court of Justice through section 7 of the Ontario Judicial Council Procedures Document at p.22 thereby protecting their security of tenure.

The provisions dealing with compensating the Applicant, and indeed all justices of the peace in Ontario,  for legal costs incurred in defending judicial misconduct complaints violates the financial security component of judicial independence, unlawfully encroaches on the right to counsel and the right to make full answer in defence of one’s judicial office, has the potential to place lawyers in a conflict of interest with their clients, has the potential to undermine the independence of the Bar and make lawyer’s beholden to the Review Council or the executive branch and violates s.7 of the Canadian Charter of Rights and Freedoms since the statutory scheme contains no statutory language placing a legal obligation on the Attorney General to indemnify justices of the peace even if a recommendation for compensation is made by a hearing panel – statutory language which is found in the Courts of Justice Act dealing with Provincial Court Judges.

The question is to be argued on Monday, March 6th, 2017 at 10 .A.M. or a date soon thereafter that is mutually convenient to the parties, at a place to be designated by the Justices of the Peace Review Council.

The following are the material facts giving rise to the constitutional question:

1.   There exists a conflict between the Justices of the Peace Act, R.S.O. 1990, sections 10.2(1),(2), 11(15), 11(19), 11.1(1), 11.1(10) and the JPRC Procedures Document authorizing Presenting Counsel to draft a Notice of Hearing with no oversight or review by the Complaints Committee which ordered the hearing.

2.   This conflict between the Act and the Procedures Document provides Presenting Counsel retained by the JPRC with an unfettered discretion which can and did violate J.P. Massiah’s security of tenure.  The Applicant was removed from his judicial office not based on an upholding of a complaint in writing but based on the hearing panel’s finding that allegations in Presenting Counsel’s Notice of Hearing was made out on a balance of probabilities – a question which was not before the hearing panel for adjudication.

3   Both complaints committees and hearing panels may recommend that a justice of the peace be compensated for the costs of defending an investigation and or a hearing into their conduct under the following sections of the Justices of the Peace Act, R.S.O. 1990 c. J.4  s.11(16) and (17) and 11.1(17) and (18).

4.  Relying on past practice and the Justices of the Peace Review Council’s pronouncement in their Procedures Document of his right to counsel in order to defend allegations of judicial misconduct initiated against him by former Presenting Counsel, Mr. Doug Hunt, (The Hunt Allegations – Appendix A) and more serious allegations, asserting violations of the Human Rights Code and a prior history of judicial misconduct,  raised in a Notice of Hearing dated May 31st, 2013(The Henein Allegations – Appendix B),  JP Massiah retained two lawyers, namely, Ernest J. Guiste, an African-Canadian and Jeff House, a Euro-American-Canadian to represent him.

5.  The proceedings before the hearing panel of the Justices of the Peace Review Council commenced in May, 2013 and ended in June, 2015 and involved a total of twenty-three days of hearings and extensive written submissions by both parties. The hearing panel itself raised a jurisdictional question which it invited the parties to make submissions on which ultimately resulted in the panel retaining Independent Counsel and obtaining an opinion. (Independent Counsel opinion – Appendix C)

6.  After agreeing to Mr. Guiste’s request that adjudication of the jurisdiction and abuse of process motions be held in abeyance in order to decide them on a full evidentiary record the Chair of the hearing panel stated to Mr. Guiste that this was a pyrrhic victory.  A pyrrhic victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat.   (Excerpt of June transcript – Appendix D)

7.  The combined Bill of Costs for JP Massiah’s defence of the allegations against him totaled roughly $600,000 with roughly $500,000 for the services of Ernest J. Guiste and roughly $100,000 for the services of Jeff House.(Appendix E collectively)  Ernest J. Guiste was on the case from start to finish and Jeff House joined him in May, 2014.

8.  The hearing panel recommended to the Attorney General of Ontario that JP Massiah be removed from office and declined to make a recommendation for compensation of his costs associated with defending the complaint and the allegations raised against him in Presenting Counsel’s Notice of Hearing. (Compensation Decision – Appendix F)

9.  The day following release of the hearing panel’s Compensation Decision the Chair of the hearing panel re-tweeted an article from the Toronto Sun proclaiming that tax-payers would not have to pay JP Massiah’s legal fees and his lawyer has been referred to the Law Society of Upper Canada. This act created the impression in the minds of reasonable observers that the Chair of the Panel endorsed the Toronto Sun article and Presenting Counsel’s submission that it is not whether counsel should be compensated but rather whether the public, rather than the client, should be required to “foot the bill”.  (Tor Sun Article and re-tweet from Deborah Livingstone @dresden girrl – Appendix G)

10.   JP Massiah sought judicial review of the hearing panel’s decisions on liability, penalty and compensation and JP Massiah once again incurred substantial legal fees in doing so.   J.P. Massiah incurred legal fees of $130,000 on the judicial review and leave to appeal motion. October 4th, 2016 the Divisional Court remitted that matter of compensation back to the original JPRC panel and proceeded to order costs against him personally notwithstanding his success on the compensation point. The Registrar of the JPRC has demanded payment of those costs forthwith payable to “The Ministry of Finance”.

11.  The Henein Allegations asserted violations of the Human Rights Code of Ontario, including the creation of a poisoned work environment and a prior history of judicial misconduct even though this set of allegations pre-dated or were contemporaneous to the first proceedings which Mr. Hunt was Presenting Counsel on. The first notice which J.P. Massiah received of these allegations was in the Notice of Hearing itself.   These allegations did not arise from Mr. Hunt’s complaint and as a result were not pre-screened and investigated by the complaints committee which investigated Mr. Hunt’s complaint.

12.  JP Massiah earned roughly $120,000 annually as a Justice of the Peace.

13.  The JPA and its Procedures Document fail to guarantee JP Massiah the financial security component of the constitutional right of judicial independence and the right to properly defend his office to the extent that what the JPA and it Procedures Document provides is an illusory right without any statutory language for enforcement as found in s.51.7 (8) of the Courts of Justice Act, R.S.O. 1990 c C.43.   This lack of a statutory language for enforcement improperly empowers the hearing panel with an unfettered discretion to compensate or not compensate and even to interfere with the right of counsel to defend without fear of both financial and professional punishment and absent due process of law which is borne out by the Review Council’s pattern and practice in dealing with this issue and was evident in the Applicant’s case before Justice Vallencourt and here.

14.  The problem with the JPA and its Procedures Document on the issue of the Applicant’s and indeed all justices of the peace compensation for defending judicial misconduct proceedings under the JPA is that the legal proceedings initiated against JP Massiah have yet to conclude and both Mr. House and Mr. Guiste are duty bound by the best traditions of their profession not to abandon their client in the circumstances in which he was placed and the existing statutory scheme provides no enforcement mechanism that even if a recommendation for compensation were to be made that the Attorney General would be under any legal obligation to satisfy it.  Counsel are being arbitrarily compelled to forego their fees or risk professional discipline.

15.   The provisions of the JPA and its Procedures Document are therefore unconstitutional in that they violate the financial security component of J.P Massiah and indeed all justices of the peace in Ontario’s right to judicial independence, undermine and or compromise their right to counsel by creating an apparent conflict of interest, undermine and or compromise the independence of the bar by intentionally or unintentionally making lawyers who defend justices of the peace in Ontario de facto agents of the state subject to financial reward or financial and professional penalty and punishment at a hearing panel’s unfettered discretion without regard to due process of law.

16.   Indeed, in a prior proceeding involving J.P. Massiah before a JPRC hearing panel chaired by Justice Vallencourt J.P. Massiah’s counsel were paid directly by a Government of Ontario cheque even thought liability was clearly established against him.

The following is the legal basis for the constitutional question:

1.         The position held by the Applicant as a Justice of the Peace is protected by the constitutional principle of Judicial Independence;

2.         The Constitutional Principle of Judicial Independence provides the Applicant with security of tenure – a fact that is reflected in s.11.2 of the Act but is rendered moot or illusory by the unfettered discretion granted Presenting Counsel in drafting the Notice of Hearing and then aggressively defending the JPRC decision on judicial review, filing the record of proceedings pursuant to s.10 of the Judicial Review Procedures Act and now acting on the rehearing of the compensation issue remitted for re-hearing by the Divisional Court on or about October 4th, 2016.

3.         The financial component of judicial independence guarantees judicial officer like the Applicant of financial security and this financial security includes the right to indemnification by the Attorney General for Ontario for defending his office – especially where the attack on the office stems not from the public per se but from Presenting Counsel who under the JPRC Procedures Document and established jurisprudence are required to be impartial and independent;

4.         The Applicant was required to defend allegations in a Notice of Hearing prepared by counsel retained by the Review Council to present the case against him which Notice of Hearing raised allegations that he violated or acted contrary to the Human Rights Code and were not part of the complaint in writing filed with the Review Council against him.

5.         The extra allegations advanced by Presenting Counsel’s Notice of Hearing received great publicity in the press and made the task of the Applicant defending his office significantly more onerous and arguably impaired the fairness of the entire proceedings.

6.         The hearing panel itself sought the guidance of all counsel on determining and resolving their own questions on jurisdiction raised in July, 2013 and only resolved in July, 2014.

7.         The hearing panel refused to make a recommendation to the Attorney General to pay for the cost of the Applicant to defend himself as requested by Presenting Counsel. The Divisional Court overturned that decision finding that it was based on a false premise that “it is only in exceptional circumstances that the public purse should bear the legal costs of a judicial officer who has engaged in judicial misconduct.

8.         Both the Hunt Report and the Notice of Hearing dated May 31st, 2013 stem from office-holders created by the executive branch to independently advance complaints brought pursuant to s.10.2 and fall within a category analogous to those cited in paragraph 52 do the Divisional Court Decision dated October 4, 2016 in that they are clearly not complaints by citizens as all of the witnesses confirmed at the hearing but more accurately complaints by the government or the executive branch. 

9.         Hearing Panels under the JPA may recommend compensation but neither the JPA or the Procedures Document contain any statutory language requiring the Attorney General to make payment on a recommendation.

10.       Justices of the Peace therefore unlike Provincial Court Judges do not have the benefit of a compulsory payment clause like s.51.7(8) of the Courts of Justice Act thereby depriving them of one of the objective conditions or guarantees mandated by the financial security provision of the constitutional principle of judicial independence, access to counsel and indemnification for the cost of defending their office.

The following constitutional questions are raised:   

1.         Does the unfettered discretion granted Presenting Counsel in the JPRC Procedures Document in drafting the Notice of Hearing violate judicial security of tenure for the Applicant and indeed all Justices of the Peace in Ontario ?

1a.       Did this unfettered discretion violate the Applicant’s right to security of tenure in this case to the extent that paragraphs 1-6 and 14 were neither made to the JPRC in writing nor were they investigated by a complaints committee ?

1b.       Did the unfettered discretion violate the Applicant’ security of tenure in this case to the extent that all of the remaining paragraphs in the Notice of Hearing arose from the investigation itself and not from a complaint in writing to the JPRC and accordingly were not investigated by a complaints committee ?
 2.        Does the financial security guarantee of the constitutional principle of judicial independence place a duty on the Attorney General for Ontario to ensure that justices of the peace like the Applicant have the right to reasonable access to counsel to defend judicial misconduct proceedings:  1. Generally;   2. Where complaints can be characterized as complaints from the executive branch or its agents – such as Presenting Counsel in the subject statutory forum  as part of the sine qua non of the concept of The Rule of Law and the constitutional principle of judicial independence?

3.         Assuming such a duty exists, what are the proper constitutional parameters to be placed on this duty ?  For example, does this duty extend to the costs associated with corresponding applications in the courts flowing from the judicial misconduct proceedings – such as those ordered by the Divisional Court in the judicial review proceedings ?

4.         Of what legal significance is it that the allegations in this case bare the following hallmarks and qualities:

            1.         The allegations are not from members of the public per se
                        but stem from the office of two separate Presenting Counsel;

            2.         The allegations which are the subject of this application 
                         pre-dated or were contemporaneous to the allegations 
                         dealt with by the first Presenting Counsel;

            3.         The allegations which the Applicant was compelled to 
                        defend in the May 31st, 2013 Notice of Hearing raised 
                        issues of the Applicant’s conduct being unwelcome, 
                        vexatious and creating a poisoned work environment under 
                        the Human Rights Code as well as an allegation of a prior 
                        record of discipline and a propensity to commit the allegation
                        against him – none of which was part of the complaint filed under
                        s.10.2 of the JPA;

            4.         The allegations in the Notice of Hearing related to allegations 
                        arising between 2007 and 2010 and were the subject of a hearing 
                        in 2014;

            5.         Particulars 1-6, 7(b), 7(c), 7(d), 7(e), 7(f), 8(a), 8(b), 8(c), 8(d), 
                        10, and 14 were not made to the Review Council pursuant to 
                        s.10.2 of the JPA and were not screened and investigated by a 
                        Complaints Committee under s.11 of the JPA

            6.         The Justices of the Peace Review Council Procedures Document 
                         stipulates that the role of Presenting Counsel is not to seek a 
                         particular order, but rather to ensure the matter is evaluated 
                         fairly and dispassionately to the end of achieving a just result 
                         and Presenting Counsel abandoned this role in favor of a full-
                         blown prosecution of the Applicant based on propensity 

            7.         Although Presenting Counsel undertook not to introduce 
                        evidence of the finding of the First Proceeding as similar 
                        fact evidence this is exactly what was done.  Presenting 
                        Counsel further abandoned impartiality and stepped into 
                        the role of prosecutor by accusing the applicant of being 
                        “untruthful” in his evidence and invited the panel 
                        to use credibility to justify removal from office and it did.

            8.         The hearing panel’s decision to deny indemnification and to 
                         make a referral to the Law Society of Upper Canada was at 
                         the behest of Presenting Counsel and the hearing panel 
                         exhibited no independent analysis or judgement.

 5.        Does the absence of statutory language in the JPA similar to s.51.7(8) of the Courts of Justice Act, R.S.O c. C. 43 affirmatively requiring the Attorney General of Ontario to compensate justices of the peace like the Applicant where a recommendation for compensation is made violate the constitutional principle of judicial independence and more particularly the financial security component and or s.7 of the Canadian Charter of Rights and Freedoms ?

6.         Does the current statutory regime under the JPA and the corresponding Procedures Document have the potential to undermine a lawyer’s duty of loyalty to his client and or create a potential conflict of interest and thereby violate s.7 of the Charter by making or creating a financial incentive for lawyers to be agents of the Review Counsel or the executive branch ?

7.         Does the current statutory regime under the JPA and the corresponding Procedures Document have the potential to impair the independence of the bar by unduly circumscribing the lawyer’s obligations to fearlessly defend their client without fear of financial or professional punishment ?

 February 16th, 2017                    E.J. GUISTE PROFESSIONAL CORPORATION
                                                     Trial & Appellate Advocacy 
                                                      2 County Court Blvd., Suite 494, 
                                                      Brampton, ON, L6W 3W8
                                                     Tel.(416) 364-8908 – Fax (416) 364-0973

                                                     Jeff House, Barrister & Solicitor
                                                     31 Prince Arthur Ave., Toronto, ON., M5R 1B2
                                                     Tel.(416)707 6271  - Fax (416) 960-5456
                                                     Co-counsel for the Applicant


The Justices of the Peace Review Counsel
Adelaide Street Postal Station, P.O. Box 914
Toronto, Ontario, M5C 2K3
Attention:  Ms. M. King, Registrar

235 King Street East, 3rd Floor
Toronto, Ontario, M5A 1J9
Attention:  Ms. M. Henein and Mr. M. Gourlay, Presenting Counsel

 The Attorney General of Ontario (as required by section 109 of the Courts of Justice Act)

The Attorney General for Ontario
Constitutional Law Branch

4th floor

720 Bay Street

Toronto, Ontario M5G 2K1

fax: (416) 326-4015

The Attorney General of Canada (as required by section 109 of the Courts of Justice Act)

Suite 3400, Exchange Tower

Box 36, First Canadian Place

Toronto, Ontario M5X 1K6

fax: (416) 952-0298

(or Justice Building

Ottawa, Ontario K1A 0H8

fax: (613) 954-1920)

(Names and addresses of lawyers

Commentary and Analysis:

What distinguishes or system of law from lesser systems of law is The Rule of Law, Judicial Independence and the Independence of the Bar.  The executive branch must act within the bounds of the law like everyone else.  They can not denude justices of the peace in Ontario of constitutional rights such as security of tenure and financial security.  There is no reason in law or good conscience why Provincial Court Judges can have legislation which does not subject them to the whims of a Notice of Hearing prepared by Presenting Counsel which bare no resemblance to the complaint which was filed with the Review Council and was not pre-screened and investigated by Complaints Committee and to add insult to injury - which Notice of Hearing is not reviewed by the Complaints Committee.  There is no reason in law or good conscience why Provincial Court Judges have enforcement legislation in the Courts of Justice Act which gives a Hearing Panel's recommendation to pay compensation to a judge who defends judicial misconduct allegations but justices of the peace have no similar enforcement language in the Justices of the Peace Act.  Plain and simply this is bad law.  Ontario can do better.