Wednesday, September 21, 2016

Three Most Fatal Errors Committed by Judicial Misconduct and Professional Discipline Hearing Panels

1.   Jurisdiction - Hearing Panels adjudicating both judicial and professional
      misconduct proceedings have limited jurisdiction.  Their jurisdiction stems
      primarily from the statute creating them.  In virtually every jurisdiction in
      North America the starting point for jurisdiction is a complaint in writing.
      What constitutes a complaint in writing is a question of law which is routinely
      litigated as a preliminary issue in both judicial misconduct and professional
      discipline hearings.

      In Ontario the seminal case on jurisdiction in the judicial misconduct arena is
      Hryciuk  v.  Ontario 31 O.R. (3d) 1.  In that case the Court of  Appeal for Ontario
      reversed a finding of judicial misconduct and hence removal from office on
      the basis that the decision-maker exceeded her jurisdiction by entertaining
      factors or incidents which went beyond the complaint and which were not
      pre-screened by the complaints committee. The court, led by Madame Justice
     Abella, ruled that the decisions on both liability and penalty could not stand since
     it could not be ascertained as to whether removal would follow if only the matters
     which were properly before the decision-maker were considered.

      A similar result occurred in Katzman  v. Ontario College of Pharmacists 2002
      Canli 16887 (ONCA).  There the court held that a complaints committee did not
      have jurisdiction to refer matters beyond two specific complaints which they were
      appointed to investigate and hence findings of misconduct based on them were
      set aside.

2.   Abuse of Process -  The common law doctrine of abuse of process is a very broad
   and flexible doctrine whereby proceedings could be stayed when a court or tribunal
   finds that the interests of justice would not be served by carrying out a proceeding
   on its merits on account of unfairness in the proceedings.  The Supreme Court of
   Canada expanded on the circumstances which will give rise to an abuse of process
   in Blencoe  v.  B.C. Human Rights Commission.  In Blencoe the Supreme Court
   held that a stay of proceedings or other remedy may be in order where there has
   been inordinate delay in the prosecution of a matter which has caused prejudice to
   the subject of the proceedings in terms of mental suffering or other harm or where
   there has been delay which has adversely impacted the reliability of the evidence.

   Delay has firmly established itself as one of the most serious grounds of abuse of
   process at the Law Society Tribunal. In Re Baker and LS.U.C. 2000 a hearing
   panel chaired by R. Yachetti, Q.C. stayed proceedings against the subject lawyer
   invoking the doctrine of abuse of process while also relying on the principles
   articulated by the B.C. Court of Appeal in Blencoe  v. B.C. Human Rights
Presumptive Prejudice:

   In Re Baker (supra) the hearing panel determined that a delay of some
   10 years in the prosecution of the case was presumptively prejudicial and
   overrode the societal interest of having the case adjudicated on its merits. In
   rejecting the argument of very learned and able counsel, the late Edward
   Greenspan that the complexity of the matters, the seriousness of the complaints
   and the societal interest in seeing them resolved after a full hearing on the merits
   the hearing panel stated, ...."our system of jurisprudence at every level does not
   condone the sacrifice of individual rights at the altar of societal interests."

Psychological harm as

   In the past year or so our Divisional Court has been called upon to review two
   cases from the Law Society Tribunal involving the interpretation of Blencoe
   v.  B.C. Human Rights Commission (supra).  In Totera  v.  The Law Society of
   Upper Canada 2016 ONSC 1578 the court provided guidance on the psychological
   harm aspect of prejudice to the subject of the proceedings. In Totera (supra) a
   hearing panel of the Law Society Tribunal stayed the subject lawyer's discipline
   proceedings applying Blencoe (supra) finding that a close to six year delay in
   bringing the case to hearing was inordinate and caused psychological harm to him.
   The Law Society Appeal Panel overturned the stay concluding that they applied the
   wrong test in assessing prejudice. The majority of the Law Society Appeal panel
   were of the view that the lawyer failed to establish prejudice because he was a
   "thin skull" person with a propensity to suffer more than the average person.
   The Divisional Court restored the stay order by the original Hearing Panel
   concluding that the Appeal Panel was incorrect in finding the Hearing Panel
   erred on this point.

Mitigation of penalty
an available remedy for
inordinate delay:

   A very common error of administrative tribunal in the adjudication of abuse of process
   motions asserting Blencoe(supra) is to forget that a stay is not the only remedy available
   for remedying inordinate delay.  In keeping with this mindset it is quite common for
   hearing panels in both judicial misconduct proceedings and professional discipline
   proceedings to issue three discrete decisions(1.Decision on the Motion, 2. Decision
   finding liability and 3. Decision on penalty) which all fail to address the following
   salient questions:  1.  Was the delay inordinate ?   2.  Does the delay bring the
   adjudicative process into disrepute ?  3.  Did the delay affect the fairness of the
   hearing or cause psychological harm  to the subject of the hearing ?  This manner
   of adjudication is a clear error of law where the subject party has squarely sought
   a mitigation of penalty as an alternative remedy for the delay.

   In Law Society of Upper Canada  v.  Abbott 2016 ONSC 641 the Divisional Court
   upheld the majority decision of a Law Socieity Tribunal appeal panel substituting a
   two year suspension for the revocation of a lawyer's licensce to practice law. In that
   case the Appeal Panel found that a seven year delay was unwarranted and not the
   fault of the lawyer and could be a mitigating factor on penalty.  This is what the
   court said on the point:

[48]   In this case, the Appeal Division was faced with what it found to be a period of
unwarranted delay that exceeded seven years, none of which was the fault of the
appellant.  There is not issue that delay that does not justify a stay can be a mitigating
factor in penalty. The only issue was whether such a delay could be a factor that turned
a revocation into one that did not involve the lawyer leaving the profession. The
Appeal Division concluded that it could. It did so because it recognized that delay
in the investigation and prosecution of serious misconduct could be just as harmful
to the integrity of and the public's confidence in the legal profession as the Appellant's
continued right to practice law. The Appeal Division's reasoning on this issue was
justifiable, transparent and intelligible and the conclusion it came to fell within the
"range of possible, acceptable outcomes which are defensible in respect of the facts
and the law." (Dunsmuir,para 47)

3.   Use of Prior Decisions - The question of what use can be made of a prior decision
of another hearing panel involving the same subject before a hearing panel is yet
another significant source of error in both judicial misconduct and professional
discipline hearings.  There appears to be a temptation to circumscribe the subject
judge or professional in his or her defence of the current allegations based on the
findings of the prior panel. This is a clear error of law and a hypothetical set
of facts should illustrate the error in this logic. Judge A was found liable of
judicial misconduct in 1972 pertaining to the manner in which she interacted with
court staff between 1967 and 1969.  In 1994 Judge A is called to answer to similar
allegations - only this time her acts are alleged to be unwanted, vexatious and
amounting to creating a poisoned work environment involving a different set
of staff between 1966 and 1969. Clearly, the fact that Judge A may have been
found liable by the first hearing panel can not in law prevent Judge A in the
second hearing from asserting that her conduct was welcomed and that she
did not create a poisoned work environment. This is so even if the offence
in question is not dependent on the intent of Judge A. Judge A's defence
in that context is not dependent on her state of mind but is dependent on
whether in all of the circumstances her acts could be found by a reasonable
third person to be vexatious and unwelcome and not solely the subjective belief of the
recipients.(see or eg. CHRC  v.  Canadian Armed Forces 1999 Canlii 18902
and General Motors of Canada Limited  v. Johnson 2013 ONCA 502)
This involves a fact-finding process by the hearing panel whereby
they subject all of the evidence to a careful analysis of both the credibility
and reliability of the evidence.(see for eg. Faryna  v.  Chorney [1952] 2 D.L.R. 354.)
Evidence that a hearing panel failed to subject  the evidence to this scrutiny is a
fundamental and manifest error of law which denudes all of their decisions of any
legal force and effect.


Saturday, September 10, 2016

The Justice Camp Case: Why Removal From Judicial Office is Such a Big Deal

   The judicial misconduct proceedings involving Justice Camp have once again brought the issue of removal from judicial office into the spotlight.  While hearing a sexual assault case Justice Camp asked the complainant why she simply did not keep her knees together if she did not want to be penetrated.  He also criticized the rape shield provisions in the Criminal Code and made other inappropriate comments. Justice Camp has acknowledged his wrongdoing and has taken affirmative steps to correct or modify his thinking around the issues of sexual assault.  Assuming that Justice Camp is truly remorseful and that he can successfully modify his thinking - should he nonetheless
be removed from office ?  That is the question which is currently before a panel of the
Canadian Judicial Council.  

   Removal from judicial office is a rare occurrence in Canada.  Only two judges have been ordered removed from office in the history of the Canadian Judicial Council.  While many in the media and the public are quick to advocate that our system of adjudicating judicial misconduct is in chronic need of reform and that removal from office ought to occur with greater regularity, those advocating for such changes are guided more by passion and political correctness rather than law and logic. Removal from judicial office is a matter of law and not politics.

     A judge's removal from office is a very serious matter in a system with a written constitution which subscribes to The Rule of Law and the constitutional principle of Judicial Independence.  Judicial Independence, simply put, is the foundation upon which The Rule of Law stands. There can be no Rule of Law in the absence of Judicial Independence.  It is the court which is the arbiter of all legal disputes under our constitution - including disputes in which either the executive branch or legislative branch may have a specific interest.  Accordingly, as the Supreme Court of Canada recognized in  The Queen   v.  Beauregard [1986] 2 S.C.R. 56 , "judicial independence is essential for fair and just dispute-resolution of individual cases.  It is also the lifeblood of constitutionalism in democratic societies."  When looked at from this important perspective the removal of a judge from office must be approached with the utmost of caution and strict adherence to natural justice and fairness throughout the entire process - from investigation to conclusion of the hearing.  Clearly, anything less than this would understandably call into question the legal legitimacy of the removal process.  

Traditional Grounds for Removal:

     Impartiality and integrity are arguably the two most significant qualities which a judge must have in order to perform their judicial duties.  Impartiality here refers to an absence of bias towards or against any of the parties actually before the court or interests which may be impacted by the decisions.  Integrity here refers to the trait of honesty and fair-mindedness.  Conduct by a judge which flows directly from the discharge of their adjudicative function which call into question these two fundamental traits are clearly among the most serious forms of judicial misconduct.

Asserting Dishonesty Against
A Group from the Bench:

     In Moreau-Berube   v.   New Brunswick (Judicial Council), 2002 SCC 11 Judge Moreau-Berube was removed from office for making derogatory comments about the residents of the Acadian Peninsula while presiding over  a sentencing hearing.  She stated that the majority of residents of the Acadian Peninsula were dishonest.  It is necessary and instructive to reproduce a portion of the judge's utterance so that the reader can fully appreciate the substance of this judge's misconduct.  The following is an excerpt of what she said in open court:

[Translation]  "These are people who live on welfare and we're the ones who support
them; they are on drugs and they are drunk day in and day out. They steal from us left
, right and centre and any which way, they find others as crooked as they are to buy the
stolen property.  It's a pitiful sight.  If a survey were taken in the Acadian Peninsula,
of the honest people as against the dishonest people, I have the impression that the
dishonest people would win.  We have now got to the point where we can no longer
trust our neighbour next door or across the street.  In the area where I live, I wonder
whether I'm not myself surrounded by crooks.  And, that is how people live in the
Peninsula, but we point the finger at outsiders.  Ah, we don't like to be singled out in
the Peninsula.  And it makes me sad to say this because I live in the Peninsula now.
It's my home.  But look at the honest people in the Peninsula, they are very few and
far between, and they are becoming fewer and fewer"....

Exhibiting Bias that Denies Principle
of Equality Before the Law From 
the Bench:

     During a murder trial involving a woman who killed her husband the trial judge
compared women to men with the purpose of suggesting that somehow women
were more sadistic than men by stating - "even the Nazis did not eliminate millions
of Jews in a painful and bloody manner. They died in the gas chambers, without
suffering."  In recommending removal from office the Council stated that: "
Judges are, of course, entitled to their own ideas and need not follow the fashion
of the day or meet the imperatives of political correctness.  However, judges
cannot adopt a bias that denies the principle of equality before the law and brings
their impartiality into question." (see Canadian Judicial Council Inquiry re Bienvenue
J. , 1996)


Saturday, August 27, 2016

JPRC Hearing Panel's Referral of Ernest Guiste to the LSUC: My Defence in Brief - Part I

Breaches of Natural Justice
and Fairness:

1.         The Hearing Panel denied a right to file a Reply to
            Presenting Counsel’s Submissions on Compensation
            raising concerns about the conduct, competence and
            integrity of counsel Ernest Guiste;

2.           The Hearing Panel failed to consider every single case –
              sixteen in total referred to it by Mr. Guiste and Mr. House
              on the compensation application without reasons for so doing;

3.            The Hearing Panel failed to adjudicate the questions of 
               law raised by Mr. Guiste and Mr. House with respect to 
               whether a duty existed on the Attorney General to 
               indemnify judicial officers for the cost of defending
               judicial misconduct proceedings;

 4.           In denying indemnification the Hearing Panel focused
               on the conduct of the defence and effectively cut and 
               paste the submissions of Presenting Counsel word for word 
               in Paragraph 24 (i)-(vii) in its Compensation Decision 
               without any independent analysis of the points raised therein;

   5.         The above error was compounded when the Hearing Panel
                denied a right to reply on this point;

    6.         The Hearing Panel denied compensation due to 
                 alleged delay and frivolous motions even though 
                 every motion brought by Mr. Guiste and Mr. House 
                 would appear to have been brought with their leave 
                 as is required by 14(4) of the JPRC Procedures Document;

    7.         The above error is compounded when it is clear 
                that the Hearing Panel failed to adhere to the 
                mandatory obligation placed on them by s.19 of 
                the JPRC Procedures Document to schedule and 
                render a decision on such motions “as soon as
                is reasonably possible;                                                                      

    8.         In interpreting and applying the constitutional principle of
                Judicial Independence the Hearing Panel focused only on
                “individual” and failed to consider or apply the “collective
                or institutional aspect” to judicial independence – that aspect
                of judicial independence calling for “objective conditions or

    9.         The Hearing Panel invited counsel to assist it in ascertaining
                 its jurisdiction acknowledging on the record that it would
                 take “some work” on July 24, 2013;

    10.        On or about April 28th, 2014 the Hearing Panel 
                 retained Independent Counsel to advise them on 
                 their initial question on jurisdiction raised on 
                 July 24th, 2013 and  a second question on the 
                 complaint in writing requirement and invited
                 counsel to make submissions on the opinion 
                 which culminated in their Decision on 
                 Threshold Jurisdiction Questions of June 6, 2014;

    11.         At para 10 of the above Decision the Hearing Panel stated
                  “There appear to be no decisions from judicial conduct
                  hearings for justices of the peace where relief for alleged
                  irregularities in the complaints process were considered.

    12.         At para 27 of the said Decision they wrote:  In response
                  to the jurisdiction question raised by the Panel, in or view,
                  both Presenting Counsel and Counsel for His Worship also
                  provided material and/or oral submissions related to the
                  abuse of process and fairness motion.  As well, Mr. Gover
                  also commented on abuse of process and fairness issues in
                  his legal opinion.  Submissions from all counsel on those
                  issues have been instructive.

   13.          At para 30 their Compensation Decision the Hearing Panel
                  wrote that the conduct of Mr. Guiste is not relevant to this 

    14.        On November 19th, 2013 when leave was properly sought
                 by Mr. Guiste to address what he thought may have been a 
                 concern regarding his conduct by the Hearing Panel the 
                 Chair or the Panel stated: "Your conduct isn't an issue with
                 this Panel, Mr. Guiste."

    15.        On April 28th, 2014 the Chair of the Hearing Panel cited
                 Mr. Guiste's concern regarding procedure for their decision
                 to retain Independent Counsel to advise them. The Chair
                 expressly cited the following quote by Mr. Guiste: "this
                 case provides a splendid opportunity for us to fix the 
                 Justices of the Peace Review Council. There are some
                 serious flaws in terms of procedural integrity of 
                 investigations and the like, and some good might come
                 out of this."  

    16.        On November 19th, 2013 Mr. Guiste stated to the panel:
                 "As I indicated earlier there are two salient mandatory
                 provisions, the the Complaints Committee has to 
                 acknowledge receipt of a complaint, to write the 
                 complainant; it didn't happen here. And they also have
                 to inform them where its' going, is it going to a hearing, 
                 and so on and so forth."  

   17.         Once again, Mr. Guiste raised the issue of two mandatory
                 requirements which the complaints committee failed to
                 address in their written submission on jurisdiction. Indeed, 
                 Mr. House expressly cross-examined every witness on their
                 intent to make a complaint.

18.            It was not until January 12th, 2015 that the Hearing Panel
                 ruled on what constituted the "complaint in writing" even
                 though s.19 of the JPRC Procedures Document placed a
                 mandatory obligation on them to schedule and render a 
                 decision on such motions "as soon as is reasonably possible."

U.N. Basic Principles on the Role of Lawyers:

16.           Governments shall ensure that lawyers (a) are able to perform
                 all of their professional functions without intimidation, hindrance,
                 harassment or improper interference; and (c) shall not suffer, or
                 be threatened with, prosecution or administrative, economic or
                 other sanctions for any action taken in accordance with recognized
                 professional duties, standards and ethics.

Dore   v.  Barreau du Quebec 2012
SCC 12:

[63]        But in dealing with the appropriate boundaries of civility, the
              severity of the conduct must be interpreted in light of the 
              expressive rights guranteed by the Charter, and, in partiuclar, 
              the public benefit in ensuring the right of lawyers to express
              themselves about the justice system in general and judges in
              particular. (MacKenzie, at p.26-1; R  v. Kopyto (1987, 67
              O.R. (2d) 449 (C.A.); and Attorney General  v. Times
              Newspapers Ltd., [1974] A.C. 273 (H.L)

[64]        In Histed   v.  Law Society of Manitoba, 2007 MBCA 150, 
              225 Man.$. (2d) 74, where Steel J.A. upheld a disciplinary
              decision resulting from a lawyer's criticism of a judge, the
              critical role played by lawyers in assuring the accountability
              of the judiciary was acknowledged:

              Not only should the judiciary be accountable and open to
              criticism, but lawyers play a very unique role in ensuring
              that accountability.  As professionals with special expertise
              and officers of the court, lawyers are under a special
              responsibility to exercise fearlessness in front of the courts.
              They must advance their cases courageously, and this may
              result in criticism of proceedings before or decisions by
              the judiciary.  The lawyer, as an intimate part of the legal
              system, plays a pivitol role in ensuring the accountability
              and transparency of the judiciary.  To play that role 
              effectively, he/she must feel free to act and speak 
              without inhibition and with courage when circumstances
               demand it.

[65]      Proper respect for these expressive rights may involve 
             disciplinary bodies tolerating a degree of discordant
             criticism.  As the Ontario Court of Appeal observed
             in a different context in Kopyto, the fact that a lawyer
             is criticizing a judge, a tenured and independent
             participant in the justice system, may raise, not lower,
             the threshold for limiting a lawyer's expressive rights
             under the Charter. This does not by any means argue
             for an unlimited right on the part of lawyers to breach
             the legitimate public expectation that they will behave
             with civility.  

Analysis and Commentary:

             Decisions denying judicial officers indemnification for the
             cost of their defence in judicial misconduct proceedings in
             Canada are an anomaly. I am aware of only four decisions in
             this country's history. They are all decisions of either the
             Ontario Judicial Council or its sister tribunal the Justices
             of the Peace Review Council post 2012 - Re Chisvin (OJC
             February 22, 2013), Re Phillips (JPRC , November 4, 
             2013), Re Johnson (JPRC, August 19, 2014) and Re
             Massiah (JPRC - June 16, 2015).

             In Re Chisvin a judge of the Ontario Court of Justice 
             dismissed several cases on his docket because the 
             Crown Attorney was a few minutes late in attending
             court. He plead guilty and there was no contested
             hearing.  In Re Johnson was also a guilty plea
             with no contested hearing for similar conduct. In
             Re Phillips a Hearing Panel found that the 
             JP mislead a police officer in an investigation
             and denied indemnification. In Re Massiah, 
             2015 the Hearing Panel denied indemnification relying
             on Re Foulds (JPRC, July 21, 2013), Re Phillips (supra), 
             Re Johnson (supra) and Re Chisvin (supra)  An application
             for judicial review was filed in Re Massiah and it has yet
             to be decided by the courts.

             Decisions in which a court or a tribunal publishes an
             Addendum containing a complaint of professional 
             misconduct against counsel who argued a case before
             them are the exception and not the norm in Canada.
             If there is one constant in our system of justice with
             respect to professional misconduct on the part of 
             lawyers or judicial misconduct on the part of 
             judicial officers - it is the recognition that the
             reputations of judges and lawyers are highly
             valued and easily irreparably tarnished. Could
             the hearing panel have launched its complaint
             without publicizing it ?  I submit they could of.
             Did the Hearing Panel intend to tarnish my 
             reputation ?  I can never know what was in their
             minds and hearts.  What I do know is that my
             recent discovery that the Chair of the Hearing
             Panel - Justice Deborah Livingstone appears to
             have retweeted a very critical article penned by
             Michele Mandel the day following the release
             of the said Adendum - from a twitter account
             bearing the name Deborah Livingstone
            @dresdengirrl along with her picture raises 
            grave concerns in my mind.  


Tuesday, August 2, 2016

Part-Time Judges and the Demise of Judicial Independence in Ontario

     Three justices of the peace have been removed from office since 2009 in Ontario.
Every one of the justices of the peace removed from office is a non-lawyer. At the time of this writing the available information indicates that possibly two of these justices of the peace was removed by a "part-time' or per diem judge of the Ontario Court of Justice.

     Part-time or per diem judges can only sit with the consent of the Attorney General.  On its face, as a matter of law, it is questionable whether a judge who requires the consent of the Attorney General whom they will recommend removal or indemnification for legal costs to has the requisite independence from the Attorney General to preside over these cases.  The recommendation for removal by the Hearing Panel is made to the Attorney General.  The recommendation for indemnification for the costs associated with a subject JPs cost of defending the judicial misconduct proceedings is also made to the Attorney General.

     The use of part-time or per diem judges to adjudicate judicial misconduct proceedings in Ontario contravenes the well established principle that justice must be seen to be done. There is arguably a strong appearance of bias or unfairness in this practice.  The practice arguable undermines judicial independence to the extent that the Attorney General has a say in whether or not such judges can sit or continue to sit at all.  The danger with this type of arrangement is that justices of the peace and the people who they serve both suffer.  Justices of the Peace suffer to the extent that the well-established safe-guards which come with judicial independence, namely, security of tenure and financial security are now more illusory than real.  Justices of the Peace are said to have the right to counsel but only if they defend themselves in a manner satisfactory to the body seeking to remove them.  The public suffers to the extent that they are not receiving an integral part of what hundreds and thousands working people gave their lives up for - freedom - The Rule of Law and the right to an independent and impartial judiciary.

     The following are the Hearing Panels involved in each of those cases:

JP Barroilhet(July 2009):

Chair: Justice Deborah Livingstone
JP:  Her Worship Senior Justice of the Peace Mews
Lawyer: Ms. S. Margot Blight

JP Phillips(July 2013):

Chair: Justice Paul M. Taylor*
JP: Regional Senior Justice of the Peace Katheen Bryant
Community Member: Ms. Cherie Daniel

JP Massiah (January 2015):

Chair: Justice Deborah Livingstone*
JP: Justice of the Peace Cuthbertson
Lawyer: Ms. S. Margot Blight - replaced by Ms. Lenore Foster 10 or so months into the proceedings

     *An article published in the London Free Press on May 31, 2011 entitled "From Justice just Deb" indicated that Justice Livingstone was retiring after 21 years as a criminal court judge effective June 1st and that she would return as a per diem judge.

     *The Ontario Court of Justice website today lists Justice Paul Taylor as a per diem judge.  It is not clear whether or not he held this same status when he chaired the Hearing Panel in the Phillips matter in July 2013.

     * In both Phillips and Massiah the hearing panel recommended to the Attorney General removal from office and non-payment of legal costs.

Wednesday, July 27, 2016

"Freedom" By Montano St. Jules

(click to enlarge)

Montano St. Jules is a gifted African-Canadian photographer blessed with the ability to convey powerful and moving messages through his photography.  He was raised in Montreal and now resides in Toronto.

"Freedom" - what does it mean ?  "Freedom" means different things to different people.
"Freedom" is not absolute !  Who defines the limits of "Freedom" ?

Montano St. Jules' photographs entitled "Freedom" invites viewers to think and reflect seriously on the concept of freedom for both the African-American and African-Canadian in today's troubled society.

Mandi Gray in Her own Words:Post Zuker J. Conviction

     Five days following Justice Zuker's finding Mustafa Ururyar guilty of sexually assaulting Mandi Gray, Ms. Gray published an article in Now Magazine entitled - Mandi Gray: Six Lessons I Learned From My Rape Case.  Here are a few quotes from that article.

"On July 21, Justice Marvin Zuker found Mustafa Ururyar, the man who raped me in early 2015 guilty of one count of sexual assault."

"A guilty verdict in a rape trial is statistically rare, and in this instance is tied to the defence's basing its case solely on outdated rape myths in order to discredit and humiliate me as a promiscuous party girl and scorned, jilted and jealous ex-partner of the accused."

"5.   Be cautious about what you choose to disclose throughout the process.  Anything you discuss during the administration of the sexual assault evidence kit at the hospital or with a worker in the legal system (such as the Crown or the Victim-Witness Assistance Program) may be disclosed to your abuser and used as evidence."

       "For example, and "off-the record" meeting I had with the Crown and the investigating detective was later disclosed to the defence."

       "Unfortunately, Victim-Witness workers rarely tell victims that the notes they take of their conversations with you must be given to the Crown, who has a legal obligation to disclose to the accused's lawyer.  You can and should ask how and why the information being collected will be used.  The more information provided, the greater the likelihood that an inconsistency will emerge, providing defence lawyers with the opportunity to construct your story as not credible."

Monday, July 25, 2016

Three Serious Legal Errors Committed by the Trial Judge in the York University "Rape Case"

1.  The trial judge failed to consider relevant evidence of consent and mistaken belief in consent in convicting Mr. Ururyar.

At paragraph 23 of his Reasons for Judgment the trial judge recites portions of the examination in chief of Ms. Bristol:

Q.   Mr. Ururyar, did you have sex with Mandi Gray the morning of January 31st, 2015 ?

A.   Yes I did.

Q.   Do you believe the sex was consensual ?

A.  Yes, there's no doubt in my mind.

Later at p.15 of his Reasons for Judgment he quotes the following evidence:

Q.  Did you believe that the sex was consensual while you were engaging in intercourse:

A.  Yes, I do.

Q.   And why did you think that ?

A.   All of the sex acts that took place were mutual.  We were both participating in them, the kissing, ah, the oral sex and the intercourse.

Q.   Was there any indication to you that Ms. Gray was not enjoying herself ?

A.   No, there wasn't.

Q.   Was there any indication to you that shed did not want, ah, she wanted you to stop.

A.   No.

Q.   Did Ms. Gray cry at all during intercourse ?

A.  No, definitely not.

Q.  Did you ever get an impression that Ms. Gray was unhappy or not enjoying herself ?

A.   No, I didn't get that impression.

Q.   Did you ever feel that Ms. Gray was non-responsive to your actions ?

A.   No.

At paragraph 37 on p.17 of the Reasons for Judgment the trial judge quotes the following from Ms. Bristol's examination in chief:

Q.   And can you describe all the reasons why you believe that ?

A.   Well, beginning at the text message in the evening when she said she wanted me to come to the bar and then we would go and have sex.   And then at Victory Cafe, we arranged for her to come over to my place, ah and on the walk home, she also said - she also expressed wanting to have sex when we got back to my place.  Um, and then when we started kissing, she then got on to of me to perform oral sex and then she got into a position for us to have intercourse.

Q.   Okay, did you force Ms. Gray to perform any of those sexual acts ?

A.  No, not at all.

Curiously, the trial judge concludes that consent and mistaken belief in consent are non-issues in the trial.  He writes the following at p.171 of his Reasons for Judgment:

[481]   Mr. Ururyar denies he sexually assaulted Ms. Gray.  Consent is therefore not an issue and more importantly Ms. Gray's historical text, even if alleged by Mr. Ururyar, may well be irrelevant.

[482]   Further since (it never took place) consent is a non-issue, there is no factual foundation, if argued, of any defence of honest, but mistaken belief in consent, although this defence was not advanced at trial.

2.     The trial judge applied a different standard of scrutiny to the evidence of the defendant and complainant.

     At paragraph 359 of his Reasons for Judgment the trial judge comments on what would appear to be a central part of the defence case on both consent and credibility, namely, the "hot sex" text. The complainant invited the defendant to come out drinking with her by way of a text message on the night of the incident and to have "hot sex" afterwards.  This is what the trial judge wrote:

[359]   Evidence of a victim's sexual behaviour and sexual predisposition ordinarily is inadmissible.  The "hot sex' text falls short of making anything apparent.  The "hot sex" text can be read in many ways.  If anything, Mr. Ururyar's made his alleged guilt more likely, as perhaps providing a stimulus for his later alleged assault.

      This is to be contrasted with how he treats the frailties in the complainant's evidence.  He states:

[487]   How can you prove it ?  You don't remember.  He knows you don't remember.  He is going to write the script and he did.  Testimony incomplete, memory loss, etc. etc.   And, of course, typically, no dialogue in the story.  One full sentence by Ms. Gray ?  What is it ?  No power, no voice, defenceless.

R   v.  Gravesande  2015 
ONCA 774:

     In R  v. Gravesande (supra) the Court of Appeal for Ontario was clear that it is an error of law for a trial judge to apply a higher or stricter level of scrutiny to the evidence of the defence to the evidence of the Crown.  The court went on to say that to successfully advance this ground of appeal the appellant must identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the defference due to a trial judge's credibility assessment.

3.     The trial judge treated the evidence of the parties unevenly in a way that gave rise to a reasonable apprehension of bias.

      A proper and thorough reading of Zuker J's Reasons for Judgment in R  v.  Ururyar could leave a reasonable third-party observer versed with the facts and issues in this case to the conclusion that the adjudicative process was unfair and biased - if not in reality, in appearance. (see for example - Clayson-Martin  v.  Martin 2015 ONCA 596 where the Court of Appeal reversed a trial judgment on this ground)   The following passage from the Reasons for Judgment is one of several passages tending to support such a legal argument.

[523]   There is a context for Ms. Gray's behaviour.  The myths of rape should be dispelled once and for all.   We cannot perpetuate the belief that niceness cannot coexist with violence, evil or deviance, and consequently the nice guy must not be guilty of the alleged offence.  Nice people supposedly don't rape.  This is not society's image.  The accused knew Ms. Gray.  And if you don't remember and when you know you don't remember, he, Mr. Ururyar, is going to get to write the script.  Ms. Gray did remember.  Everything, of course not.  What happened to her, yes.

NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance.  The principle that cases - all cases - must be decided impartially and in accordance with established legal principles is an issue of public importance.  There is a real danger when passion and politics displaces law. That I submit is never in the public interest.