Thursday, December 18, 2014

The case for Crown disclosure of police domestic violence investigation polices in Ontario

     In R  v. Stinchombe the Supreme Court of Canada recognized an affirmative duty on the Crown to disclose all relevant evidence in the hands of the Crown to a defendant in advance of the defendant having to make a decision on how he or she elects to proceed or to set a trial date.  This duty was expanded in R   v.  Mcneil to include production of police discipline records.  It is also recognized that items such as use of force reports with respect to the case at hand are relevant and ought to be produced to the defence.

     All police services in Ontario are mandated by statute to implement policies on how to investigate domestic violence occurrences.  Section 29 of Ontario Regulation 3/99 Adequacy and Effectiveness of Police Services requires all police services boards to have a policy on investigations into domestic violence occurrences.  In addition, section 12(1)(d) requires the Chief of Police to develop and maintain procedures on and processes for undertaking and managing investigations into domestic violence occurrences.

   The overall thrust of these policies clearly acknowledge and promote the need for a thorough investigation which seeks to ascertain who is the dominant aggressor before the laying of charges.  Not surprisingly, the one policy that I am familiar with, namely, the Toronto Police Service policy stipulates that all persons who were present and observed the occurrence are to be interviewed - including the suspect.  Clearly, that practice makes perfect sense particularly as it relates to third parties who witnessed the occurrence.  Such persons could confirm or refute the allegation.

   What is defence counsel to do when faced with a situation where the police may have failed to investigate an occurrence in accordance with their police services domestic violence policy ?  In such circumstances the first order of business is to seek production of the subject policy under the authority of R  v.  Stinchcome and R   v.  Mcneil.  The fact that the manner of the police investigation of these types of occurrences is statutorily mandated puts the disclosure of such polices on a similar footing to police misconduct records and use of force reports.  The danger of non-compliance by a police officer involved in investigating a domestic violence occurrence is best illustrated by an example.

     John and Linda have an incident at their home in which Linda alleges that John assaulted her.  Sally their 12 year old daughter was present and witnessed the entire incident.  Linda reports to the police two weeks after the incident and asks them not to interview her daughter. The police comply with Linda's request.  The police do not interview John regarding the incident.  The police then set out and arrest and charge John.  As part of John's release conditions he is removed from the family home and has minimal contact with his daughter Sally.  Some eight months later John is at trial seeking production of the domestic violence policy of the investigating police service.  The Crown has closed its case without calling Sally or the investigating police officers.

   It should be readily evident that production of the domestic violence policy is relevant and necessary in the above-noted scenario.  The failure of the police to comply with their own policy in the conduct of the investigation has the potential to impair trial fairness for John.  Clearly, John ought not to be required to call a witness at trial that he has no knowledge of what she will testify to at trial. John is supposed to have full disclosure of the case he has to meet prior to setting a trial date and is by virtue of the non-compliance with the policy deprived of this fundamental right and in my view a fair trial.

   I would be pleased to hear what other lawyers have to say about this issue.

Sunday, November 30, 2014

Apprehension of Bias and the Lawyer's Duty to Assert it

     A lawyer representing a client has an affirmative duty to initiate a motion asserting an apprehension of bias against a court or tribunal hearing his or her client's case where the lawyer reasonably believes the circumstances justify such a motion and his or her client so instructs.  The jurisprudence on this issue stipulates that such a motion must be brought promptly.  Indeed, the failure to bring such a motion at first instance will foreclose the ability to raise this issue on appeal.  Regrettably, lawyers, judges and adjudicators are human beings and the very act of bringing such a motion has the potential to cause defensiveness in a judge or adjudicator and yes - a potential allegation of incivility to the governing body.

     In this post I wish to attempt to delineate the governing law on the issue of apprehension of bias and why a lawyer is duty bound to assert such a claim where he or she reasonably believes that there are facts and circumstances which justify the bringing of such a motion.  In addition, I wish to also delineate some of the circumstances which our courts have found to create a reasonable apprehension of bias. As with many other areas of law the circumstances giving rise to a reasonable apprehension of bias are infinite and turn on the overall facts and circumstances of the case.

Justice must be
seen to be done:

     Bias is the antithesis of the Rule of Law.  A trial or hearing which suffers from bias denudes itself of legality by virtue of denying the subject litigant a fair and impartial hearing. A denial of a right to a fair hearing cannot be cured by the tribunal's subsequent decision.  A decision of a tribunal which denied the parties of a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal.  The damage created by the apprehension of bias can not be remedied.  The hearing, and any subsequent order resulting from it, must be void. (see Nfld Telephone   v.  Nfld Public Utilities [1992] 1 S.C.R. 626.

A serious decision
by counsel:

     The decision to bring a motion alleging an apprehension of bias is one of the most serious decisions that a lawyer must make in the representation of any client and especially on behalf of a client who faces serious consequences from the subject legal proceedings.  While one act or comment on the part of a judge or adjudicator is capable of  establishing a reasonable apprehension of bias it is advisable to thoroughly evaluate the record of the proceedings to date and identify at least three items which could tend to support such an allegation.

     In seeking to identify the supporting evidence for an apprehension of bias claim it is recommended that one identify the key issues in the case and organize the evidence in the following categories:  1.  evidence of a closed mind on a material issue;  2.   evidence of an animus against the client;   3.   evidence of an animus against counsel; and 4.  evidence of a preference or bias towards one party in the litigation.  Before embarking on the application make sure to seek input from colleagues in order to asses the reasonableness of your concerns.  It is possible that others who are removed from the litigation may be able to provide a more objective basis of the claim than one who is engrossed it it.  Lastly avoid being "baited" into allegations of actual or personal bias by the judge or adjudicator.  That is not the point at all.

The Test for Reasonable
Apprehension of Bias:

     "The apprehension of bias must be a reasonable one, held by reasonable and right minded
persons, applying themselves to the question and obtaining thereon the required information.
In the words of the Court of Appeal, that test is "what would an informed person, viewing the
matter realistically and practically - and having thought the matter through - conclude.
Would he think that it is more likely than not that [the decision-maker], whether consciously
or unconsciously, would not decide fairly."  (see Committee for Justice and Liberty   v.
National Energy Board [197] 1 S.C.R. 369)

Closed Mind:

     Evidence of a closed mind on a material issue in a trial or other legal proceeding by a judge or adjudicator is compelling evidence in support of an apprehension of bias. This ground places reliance on statements made by the judge or adjudicator typically within the proceedings.  Since judges and adjudicators are entitled to ask questions and make comments during a legal proceeding it is not every statement or intervention which will be found to constitute evidence of an apprehension of bias.

     In R  v.  Brown 2003 Canli 52142 (ON CA) the Court of Appeal for Ontario had opportunity to clarify the law in this area.  This was the case in which Dee Brown, then a member of the Toronto Raptors, was stopped and charged with an alcohol related offence.  His lawyer, Steven Skurka, brought a Charter application asserting an arbitrary stop motivated by racial profiling.  The trial judge made several comments tending to indicate his disapproval with the argument of racial profiling advanced on behalf of Mr. Brown and went on to convict Mr. Brown.  The conviction was set aside on a Summary Conviction appeal and in a subsequent appeal to the Court of Appeal by the
Crown the Court of Appeal had the following to say:

[96]   "As a general proposition, it may be said that a trial judge has considerably more scope to intervene during the submissions segment of the trial than during the evidence segment.  The purpose of the intervening is to enable the judge to obtain the assistance of counsel on matters that are of concern to him or her in order to fully understand the case that is being submitted.  Judicial interventions for this purpose do not have to take any particular form and I do not rule out blunt statement of the judge's tentative conclusions, provided that their purpose is to afford counsel the opportunity to "bring the judge around."  I think that some of the trial judge's statements could be understood as serving this purpose.  Others, however, such as those expressing the trial judge's view that the allegations in the application were "serious, offensive, nasty or malicious," are somewhat like conversation-stoppers and serve mainly to indicate the judge's general antipathy to the application and not to elicit helpful responses." 

Sarcasism and cynicism
have no place in the process:

     R   v.  Moore 2004 Canli 4354 (ON SC) provides a splendid example of the application of the principle that justice must be seen to be done.  In that case the defendant was charged with "over 80" and ran a defence challenging the accuracy of the breathalyzer reading and called other evidence with a view to raising a reasonable doubt. The trial judge went on to reject the defendant's evidence and convicted him.  On appeal the trial judge's reasons for judgment were alleged to demonstrate a patent distaste both for those who defend cases of over 80 and for the law that the court is obligated to administer.    The trial judge went on the make the following statements in his reasons for judgement:

"Smarter minds than mine have determined that I am not allowed to use that in my assessment of his credibility, and so I do not."  - "Smarter minds that mine have determined that I am not allowed to use that in this case to determine whether he had more than 80 milligrams of alcohol per 100 milliliters of his blood." - "Smarter minds than mine have determined that there is no presumption of accuracy on those machines. Notwithstanding, thousands and thousands of people plead guilty because they register more than 80 on those machines but in cases where the evidence to the contrary is adduced, I must give the accused the benefit of the doubt if I have some doubt that the evidence to the contrary has raised a doubt about the guilt of the accused."

     In setting aside the conviction and ordering a new trial Langdon J. stated, "Mr. Daley did not suggest that the trial judge deliberately disregarded the law that bound him.  But the tone of passages quoted plainly suggests to a disinterested and informed observer that the trial judge approached the Carter defence, not with an open mind and impartial mind, but with cynicism and a degree of intolerance that, if it was not apparent as the trial proceeded, became apparent retrospectively as the decision was given in court."





Thursday, November 27, 2014

Judicial Independence and the Practice of Indemnifying Judicial Officers for Defence Costs

     Did you know that the practice of indemnifying judicial officers for their legal costs in defending allegations of judicial misconduct is a common occurrence in all jurisdictions and at every level of court in Canada ?  A recent article in the Toronto Star entitled "Taxpayers billed for guilty justices' legal fees" takes issue with this long established custom suggesting that doctors and other professionals are not indemnified for their legal costs so this long established practice ought to stop. The piece goes on to demonstrate a gross lack of understanding of the principle of judicial independence by quoting a number of individuals including the following - "The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty."

     Equating judicial officers with "other professionals" and persons charged with criminal offences fails to appreciate the constitutional principle which underlies this long  established practice.  In our system there exists a divide between the judiciary and what is commonly referred to as government. A fundamental principle in our system is that judicial officers must be independent from the influence of government in order to properly discharge their judicial duties. Judicial officers must be granted security of tenure.  Justices of the Peace in Ontario are statutorily entitled to serve until age 70 and unless removed for cause following a public hearing.  Another component of judicial independence is financial security.  Judicial officers must be adequately compensated to ensure impartiality and independence.

     The practice of indemnification of legal costs for judicial officers is directly related to the financial security requirement and the principle that justice must be seen to be done.  The judicial misconduct adjudicative process is in place to protect the public interest in judicial independence and the rule of law.  The mere possibility that the "government" could theoretically bankrupt a sitting judicial officer through this process undermines judicial independence and the rule of law.  Judicial officers are not "other professionals" and criminal defendants.  Indemnification of the legal costs of judicial officers is in fact a reasonable restraint on the "government" which protects and preserves the cornerstone of our justice system - judicial independence and the rule of law.

NOTE:  This piece is written to draw attention to an issue of public importance.  Democracy and the rule of law work better with the free communication of ideas.  Tax payers in Ontario cover the bill for much less serious and fundamental rights as judicial independence. Virtually every police service collective agreement in Ontario has a legal indemnification clause entitling police officers indemnification for legal costs.  Taxpayers in Ontario pay substantially more for the defence of police officers than judicial officers.  It is not even close !


Sunday, November 9, 2014

Why Jian Ghomeshi's Prosecution May be a Wrongful Conviction in the Making ?

     As the authorities investigate and deliberate on whether or not to charge Jian Gomeshi under the Criminal Code they ought to take a serious read of the Executive Summary and Recommendations of The Commission on Proceedings Involving Guy Paul Morin.  Readers will recall that Guy Paul Morin was charged with the murder of his next door neighbor, Christine Jessop.  He was tried not once but twice.  Mr. Morin was acquitted at his first trial in 1986.  A new trial was ordered by the Court of Appeal for Ontario(affirmed by the Supreme Court of Canada).  Mr. Morin was tried a second time and found guilty of first degree murder.  Mr. Morin appealed and on the basis of fresh evidence tendered by the Crown and defence he was acquitted of the charge on January 23rd, 1995.  DNA evidence established that Mr. Morin was not the donor of semen stains found on the deceased's body.  The authorities acknowledged that Mr. Morin was innocent, apologized and compensated him.

     As a result of Mr. Morin's wrongful conviction we in Ontario were the beneficiaries of the Hon. Fred Kaufman's insightful report to the Government of Ontario into, among other things, the conduct of the criminal investigation in Mr. Morin's case.  Two investigative flaws identified in the Morin Inquiry and other similar inquiries as significant contributors to wrongful convictions,  "Tunnel Vision" and "Noble Cause Corruption",  may likely present a challenge to the authorities in any prosecution of Mr. Ghomeshi.

     Tunnel Vision was defined by the Morin Iquiry as "the single minded overly  narrow focus on an investigation or prosecutorial theory as to unreasonably colour the evaluation of information received and one's conduct in response to the information."

     Noble Cause Corruption refers to the practice where police officers violate legal or ethical standards in pursuit of what they perceive to be the benefit of society at large.

Tunnel Vision:

     The Jian Ghomeshi allegations are a perfect case-study for the phenomenon of tunnel vision in a criminal investigation - dated complaints of sexual and violent crimes against women by a man who can be described as a public figure or celebrity in an era of political-correctness where there exists "mainstream guilt" for historical wrongs perpetrated against women under the colour of law.  The complainants all know the subject of the criminal investigation.  The subject of the investigation knows the complainants.  They key issue is one of  consent at the time of the alleged conduct  -except for acts which the complainant can not at law consent to(bodily harm for example).  The complainants allege a lack of consent.  Mr. Ghomeshi, as I understand it, has publicly asserted that he acted with consent.

Consent a state of mind:

     A key question for investigators in a case such as this is an explanation for the delay in advancing the criminal complaint.  Delay on its own will not always impair the credibility or reliability of a complaint but it must be carefully investigated.  The rationale for this can be found once one appreciates that consent is a state of mind at the time of the offence which unlike DNA evidence
is not fixed and is subject to change by the complainant either intentionally or unintentionally.

Objective and Subjective

     A complainant can objectively consent to an act thereby inviting an action only to then later
assert a lack of consent depending on their objective.  I raised this legal point in Webb   v.  Waterloo Region Police Services Board et al 2002 Canli 41983 (Ont. C.A.) - a case in which the defendant, a gay man, was cruising in an area known for consensual cruising activity between men encountered an undercover police officer who accepted an invitation to go into the woods with the plaintiff only to arrest and charge him for sexual assault when contact occurred. My use of the word objective above is not to imply that I have any knowledge that the complainants in the Ghomeshi case actually possess any improper objective as I do not know that.  I use it because in the Webb case I was successful in obtaining an admission from the officer that he concealed his identity from Mr. Webb and accepted his invitation to go into the woods knowing what goes on there because he was playing a role and Webb would not have committed the offence had he known.

     Publicity with respect to legal proceedings involving the alleged perpetrator may be a key element which may lead a complainant to effectively reevaluate their consent to a dated occurrence. What may have been consensual because the complainant accepted the conduct at the time can be subsequently deemed "inappropriate conduct" following widespread publicity of sexual misconduct or criminal allegations against the alleged perpetrator.  A complainant may reason that on receipt of the "new information" from the publicity they now feel naive and violated where they did not at the material time. The publicity may provide a new perspective for the complainant to evaluate the historical conduct which she may have consented to in the past and bring forward her "true opinion" on the question.

Nobel Cause Corruption:

     The current waive of political-correctness fueled by the the intense public coverage in this case make it susceptible to Noble Cause Corruption.  Political-correctness on the issues of sexual harassment and sexual assault by men against women has reached a point where,
if left unchecked, the issues of consent, credibility and reliability are secondary to the allegation itself.  The so called victim's narrative and the acceptance of this narrative holus bolus appears on the verge of creating a strict liability offence and dispensing with established legal principles like the presumption of innocence.  This is the climate in which these allegations are received.

     No one - especially the police, prosecutors and even the judiciary - want to be called out as
"condoning" the allegations and "impeding" the victim's right to "vindication".  Vindication under this regime of political-correctness is a finding of guilt.  Reports are already being attributed to at least one of the complainants on the "positive reception" she has received from the police.  Police for their part have already announced that they want to make available all of the resources available - such as counselling etc. to persons who come forward.  In light of these reports one wonders to what extent investigators may be reluctant to ask hard questions of the complainants.  What may often happen in such circumstances is the phenomenon where police adopt the "tell your story to the judge approach". In employing this approach police officers simply take the information at face value and leave the unanswered questions to either the prosecutor or the trial judge.

Challenge for investigators:

     Investigators tasked with investigating a case like Mr. Ghomeshi's must start with a recognition
of the nature and potential frailties associated with the legal concept of consent.  Unless there is evidence of bodily harm consent would be a defence to the subject allegations.  Police must be objective, impartial and thorough in their investigations.  Police must not be afraid to ask the hard and perhaps embarrassing questions.  Police are not legally obligated to lay criminal charges at the whim or direction of anyone.  Police may lay a criminal charge where they have formulated reasonable grounds for believing that an offence has been committed.  Political-correctness and publicity ought to have no role in  the execution of this police function.  The forum for victims to seek vindication is the civil forum and not the criminal law forum.

Friday, October 31, 2014

Did police chief invite criminal complaints against Ghomeshi and thereby initiate his prosecution ?

   Did I correctly understand a media report to the effect that Chief Blair invited persons alleged to have been victimized by Jian Ghomeshi to come forward to initiate a criminal complaint ?  

   Did I correctly understand a media report in the Globe & Mail that two women have since come forward and that the Toronto Police Service is now engaged in a criminal investigation of Jian Ghomeshi ?

     Assuming the first report referred to above to be correct, under what legal authority can a Chief of Police invite persons to make criminal complaints ?   Assuming these women act on the invitation, Mr. Gomeshi is charged and it turns out that he is exonerated in circumstances where it becomes clear that their testimony was neither credible or reliable, would not the Chief of Police be subject to potential liability for malicious prosecution for initiating this criminal prosecution ?

Tuesday, August 12, 2014

Steel Pulse - Chant A Psalm

Tuesday, July 1, 2014

Independent Counsel's Legal Opinion on Panel's Question on Jurisdiction

     Last July I became involved in defending His Worship Massiah on a complaint of judicial misconduct which is currently before a Hearing Panel of the Justices of the Peace Review Council(JPRC).  My first order of business was to bring a motion challenging the panel's jurisdiction to entertain on grounds of jurisdiction and abuse of process.  Notwithstanding the fact that the JPRC's own procedures provide for the bringing of such motions the panel raised a preliminary question of law asking whether they had the jurisdiction to entertain the motion I brought.

     Independent counsel was retained to assist the Hearing Panel with this question of law.  The following is the legal opinion the Hearing Panel received.  Ms. Michele Mandel of the Toronto Sun suggested in an article she wrote on April 10th, 2013 that  I was bringing frivolous motions to delay the proceedings.  I think that even she will agree that the hearing could not get started until such time as the Hearing Panel's own question of law was resolved.  I suspect that Ms. Mandel was not aware of this salient fact when she wrote her story.
The legal opinion suggests that the motion I brought was within the jurisdiction of the Hearing Panel to entertain.

May 23, 2014

Sent via E-mail

Ms.Marilyn King
Justice of the Peace Review Council
P.O. Box p14,
Adelaide Street Postal Station,
31 Adelaide Street East,
Toronto, Ontario
M5C 2K3

Dear Ms. King:

Re: Hearing Regarding Justice of the Peace Errol Massiah

Please convey this letter to the Panel hearing the above-noted matter (the "Hearing Panel").

As you know, the Hearing Panel has asked us for independent legal advice (in accordance with s. 8(15) of the Justices of the Peace Act) concerning two issues, which arise in the context of a motion brought by Mr.Gusite on behalf of the Justice of the Peace Massiah, and on which the parties have filled written submissions. The question in relation to which the Hearing Panel seeks independent advice on are as follows:
1.      What is the extent of the jurisdiction (if any) of this Hearing Panel of the Justice the Peace Review Council to review and/or grant relief concerning decisions or actions taken by the Complaints Committee?

2.      What is the extent of the jurisdiction (if any) of the Hearing Panel to consider whether there is a valid complaint under s. 10.2 of the Justices of the Peace Act[1] (“JPA” or “Act”), or is the Hearing Panel mandated only to proceed with a hearing once it has been ordered by the Complaints Committee under s. 11(15)(d) of the JPA?
Our advice and opinion may be summarized as follows:
1.      The Hearing Panel does not have jurisdiction to "sit in review" of, vary or overturn, decisions of the Complaints Committee, nor to give the Complaints Committee direction or refuse to comply with the Complaints Committee's decision to order a hearing under s. 11(15)(d) of the JPA. However, the Hearing Panel does have jurisdiction to determine questions of law and to grant relief within, and affecting, the current hearing. Such determinations may (and in this instance appear to) require the Panel to consider the steps taken by the Complaints Committee and draw legal conclusions from them, and empower the Panel to grant relief accordingly, including a remedy for abuse of process and Charter remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms.

2.      Yes, the Hearing Panel may consider and determine the question of whether a valid “complaint” exist under s. 10.2 of the JPA as part of its jurisdiction to determine any question of fact or la arsing in the proceedings before it.

In short, the question of whether the Hearing Panel has jurisdiction really turns on the purpose for which it is considering the Complains Committee’s processes. The Hearing Panel cannot take action, which would effectively appropriate powers exclusively within the Complaints Committee’s jurisdiction, but it may be make orders and determinations within the present hearing which require it to consider the Complaints Committee’s processes and how they operated in the present case.

In view of the submissions made by Presenting Counsel (and replied to by Mr. Guiste), we also consider several of the specific grounds asserted in the Amended notice of Application dated February 23, 2014, from the perspective of the Hearing Panel’s jurisdiction.

What follows is an explanation of our opinion and the analysis underlying it, in addition to these specific comments which are set out at the conclusion.


The jurisdiction of the Hearing Panel to “review and/or grant relief concerning decisions or actions taken by the Complains Committee” requires careful consideration of the separate functions of each of the two bodies as established under the JPA. The Complaints Committee, as established in s. 11, performs an investigative function which can (as it has in this case) lead to an order that a formal hearing be held into a complaint made under s. 10.2. Its members are prohibited, by s. 11(4), from then participating in such a hearing. Its investigates are held in private (s. 11(8)). Its core power is to determine, at the conclusion of the investigation, whether to dismiss a complain, invite the justice of the peace to  attend to receive advice, order a formal hearing by a Hearing Panel, or refer the complaint to the Chief Justice, arises under s. 11(15).

The Hearing Panel, by a contrast, is established only a consequence of a Complaints Committee’s decision that a hearing is necessary under s. 11(15)(c). The resulting hearing is an oral, adjudicative hearing governed by the Statutory Powers Procedure Act[2] (“SPPA”)[3], at the conclusion of which the Hearing Panel is entitles to reach the dispositions listed in s. 11.1(10) of the Act. Unsurprisingly, the Panel has no express authority to override, review, or reconsider any of the determinations made by the Complaints Committee nor to exercise any of its powers.

In our view, the structure of the JPA makes it clear that the Hearing Panel cannot “review” a decision or action of the Complaints Committee in the sense of altering or varying that decision. To do so would be to puport to exercise powers granted to the Complaints Committee in s. 11 of the Act, which are clearly separate from the powers granted to the Hearing Panel under s. 11. However, it may in a sense “grant relief concerning” such decisions or actions where those decisions or actions are significant to the exercise of a power of the Panel concerning its won mandate.

In other words, the Panel may not purport to vary, overturn or otherwise modify a decision or action already taken by a Complaints Committee. But it can make orders its own proceedings that include an analysis of a Complaints Committee’s actions or decision, including potentially reaching the conclusion that a Complaints Committee made a decision, or took an action in error. The Hearing Panel’s powers in that regard include the power to consider and decide the specific item you have raised under Question 2: the validity of a “complaint” made under s. 10.2 of the JPA.

We find support for our views from several sources, but the two of greatest significance are: (a)     the statutory author and the jurisprudence governing administrative tribunal remedies for abuses of process; and (b) the jurisprudence surrounding tribunal jurisdiction to determine questions of law.

            Abuse of Process

Section 23 of the S.P.P.A. explicitly grants the Hearing Panel the power to make orders to control abuses of its process. The term “abuse of process” is a wide one with more than one discrete meaning. It can include attempts to improperly re-litigate already-decided issues (e.g., Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63) but also encompasses a wide variety of “fairness” issues arising in the course of administrative processes. The Supreme Court confirmed the availability of administrative law remedies for abuse of process most definitely focused on the issue of when an inordinate or undue relay in the proceedings becomes unacceptable to the point of becoming an “abuse of process”, emphasizing that such delays must involve significant prejudice to the ability of the individual to receive fair hearing.[4]

The broadest category of abuse of process (and that which appears to be implicated by the motion before the Hearing Panel) is that caught by the general principle and cannot be limited to specific sets of facts: an abuse of process exists where “the damage of the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (Blencoe, para. 120, citing Brown & Evans, Judicial Review of Administrative Action, p. 9-68). Put another way, an abuse of process requires the tribunal to conclude that the proceedings have become “unfair to the point that they are contrary to the intersects of justice”, a situation described as being “extremely rare” (Blencoe, para. 120 , citing R. v. Power, [1994] 1 S.C.R. 601). Given that it is fundamentally a “flexible doctrine” (C.U.U.P.E. at para. 37), it is impossible to define with precision what circumstances or conduct within the course of administrative proceedings can be relevant to finding an abuse of process.

The Hearing Panel has explicitly asked us not to express any view on the substance of the motions, which we understand are still being argued, and none of these comments should be taken as an assessment of the substance or the merits of the arguments made or the relevant evidence underlying those arguments. It is open to the Hearing Panel to find that these arguments are well – or poorly-funded, and to conclude that they are legally relevant or irrelevant to the current proceeding. We simply conclude that the nature and character of the issues raised[5] are such that the Hearing Panel has jurisdiction to hear and consider these issues, and evidence and argument to support them, in so far as they relate to the conduct of the Complaints Committee, under its broad authority to consider whether these proceedings against Justice of the Peace Massiah meet the definition of an “abuse of process”.

            Administrative Law Remedies

Another important thread of jurisprudence to consider – particularly with respect to the Panel’s second question concerning its authority to determine the validity of a “complaint” under s. 10.2   of the JPA – emerges from a series of Supreme Court of Canada cases leading with jurisdiction, these decisions shed some light on the more general power of a tribunal to decide “questions of law” arising in proceedings before them. In Martin v. Nova Scotia (Workers Compensation Board), 2003 SCC 54, the Court explained how this power could be located either in explicit statutory language, or implicitly provided for in the governing legislation. As there is no express provision granting the Panel the power to decide all questions of law arising in proceedings before, it, the Court’s guidance on implicit conferral of such power is of greatest significance:

Absent an explicit grant, it becomes necessary to consider whether the legislator intended to confer upon the tribunal implied jurisdiction to decide questions of law arising under the challenged provision. Implied    jurisdiction must be discerned by looking at the statue as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively ; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statue itself, particularly when depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its intended mandate. As is the case for explicit jurisdiction, if the tribunal is found to have implied jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision.

Martin, supra para. 41

Here there is no direct challenge to the constitutional validity of any provision of the JPA. Nonetheless, the Court’s explanation of the power to determine questions of law (including statutory interpretation) is significant to considering the Hearing Panel’s jurisdiction here. In our view, the Hearing Panel clearly has the power to determine questions of law provided they arise in the course of the hearing before them, for several of the reasons mention in Martin:

·         The mandate of the tribunal cannot be effectively fulfilled without the power to determine questions of law. The broad subject matter of judicial misconduct implies the probability that questions of law will be raised in the course of considering whether a complaint against a Justice of the Peace ought to be upheld in any given case.
·         This conclusion is bolstered by provisions in the JPA which clearly contemplate the likelihood that the Hearing Panel will make legal determinations,, including the authorization to retain “counsel” to assist it in s. 8(15), and the power to determine the parties to the heating under s. 11.1(8).
·         The Rules of Procedure referred to in s. 11.1(5) specifically contemplate (e.g., at s 18(3)) the determination of questions of law arsing in motions.
·         The Hearing Panel is fundamentally adjudicative in nature, as reflected by the application of the S.P.P.A.
·         As it is composed of a judge, a justice of the peace, and a third person who may (though she need not) be a judge or a lawyer, the Hearing Panel is clearly has the institutional competence to determine questions of law.

It also appears clear to us that there is jurisdiction in the Hearing Panel to consider questions of law specifically arising under s. 10.2 of the JPA not only because of these general factors, but because the hearing Panel’s own governing provision (s. 11.1) repeatedly refers to the subject matter of the hearing as being the “complaint”. This is seen, for example, at ss. 11 11.1(9), (10) and (19). Particularly with respect to s. 11.1(10), the triggering event for the hearing Panel’s jurisdiction to impose specific dispositions is the Hearing Panels view as to whether to uphold the “complaint”. It is therefore necessarily the case that the Hearing Panel must have the power to consider both the content of, and the legislative requirements applicable to, a “complaint” within the meaning of the JPA, since ultimately it is a “complaint” which the Hearing Panel is adjudicating.

We therefore conclude, based on this jurisprudence as well, that the Hearing Panel has jurisdiction to consider the specific issue of the sufficiency of the “complaint” within the meaning of s. 10.2 both in assessing whether it has jurisdiction to convene the hearing, or as part of a broader consideration of whether an “abuse of process1” has occurred.

            Prematurity Jurisprudence under the Regulated Health Professional Act

We would also not the weight of authority of the Divisional Court cases which considered analogous arguments concerning alleged improprieties in the complaints process of the various health colleges established under the Regulated Health Professional Act (“RHPA”), which are referred to in Presenting Counsel’s written submissions as to jurisdiction at paragraphs 10-19. While the RHPA is a different statutory regime, there are similarities in that a similar “complaints committee”[6] exits to oversee an investigation, and a “discipline committee” exists to conduct SPPA -governed oral discipline hearings.

We would agree that the weight of authority is that allegation of impropriety in the complaints process, which might create an abuse of process or similar basis for granting relief, ought to be raised at the hearing stage, in this case before this Hearing Panel, and that any attempt to take such issues directly to the Divisional Court after the Complaints Committee referral to hearing would likely to be regarded as premature and therefore quashed by the Court in the absence of extraordinary circumstances. The reason employed by the Court in the cases referred to by Present Counsel is that such issues ought to be litigated at the administrative level. The implication of these decision for purposes of the Hearing Panel’s questions is simple to confirm the analysis above: the hearing Panel must have jurisdiction to entertain these issues, since it would be premature to advance them before the Divisional Court until the Hearing Panel has dealt with them, as well as with the hearing on the merits.

            Specific Comments on the Grounds Asserted in the Amended Notice of Application

The Amended Notice of Application dated February 23, 2014, asserts eleven grounds for the present motion. Our views flow from the above propositions with respect to the Hearing Panel’s jurisdiction, but it is helpful to comment at least briefly on these specific grounds and we do so in light of Presenting Counsel’s submissions that at least Grounds #4 and #5 are outside the Hearing Panel’s jurisdiction. We note again that these comments should not be taken to express a view as to whether the issues are meritorious or whether, assuming the grounds were all made out, they would or could amount to an abuse of process, but are prepared to assist the Hearing Panel with advice or analysis on that issue should it later deem that assistance appropriate.

Paragraphs 1 through 2b, 3a and 6 have to do with the legality and appropriateness of the investigation undertaken by the Complaints Committee. These issues, whether or not they have substantive merit or evidentiary support, in our view fall within the hearing Panel’s jurisdiction to determine whether an abuse of process has occurred, and/or whether this Hearing Panel has before it a lawful “compliant” to uphold or dismiss.

Paragraph 3 raises a discreet issue with respect to whether there is any legal consequence to the fact that the complaints before the hearing Panel pre-date a prior proceeding. The Hearing Panel clearly has jurisdiction t o make this determination, whether under its jurisdiction to consider whether an abuse of process has occurred and in considering the legal sufficiency of the “compliant”.

Paragraph 4 attacks both the “tone and manner” of t e investigation, and the allegation that the investigation was initiated by the Council’s Registrar for an improper or unlawful purpose. Presenting Counsel submit, at paragraph 7 of their Factum, that this issue is res judicata, moot and not included in the allegations in the Notice of Hearing because this complaint was never referred for hearing. While we believe this impossible view to take, we believe that the more reasonable view of the Hearing Panel’s jurisdiction is that it does have jurisdiction to consider the issues raised by paragraph 4 under its “abuses of process” jurisdiction, and the arguments made by Presenting Counsel are really arguments to be made on the merits. That is, Presenting Counsel’s arguments go to (A) the factual merits of paragraph 4, and (b) the legal impact of these facts, and not to the hearing Panel’s jurisdiction to consider the issue.

Paragraph 5 asserts that the applicant was removed from its judicial duties improperly. Presenting Counsel submit at paragraph 8 of their Factum that this lies outside the Hearing Panel’s jurisdiction because this was a decision made by the Regional Senior Judge that lies outside the realm of the Review Council’s powers and processes. In our Vies, the More reasonable view (from our understanding of any abuse of process argument and it viability or legal force, that they are towards the Hearing Panel’s jurisdiction to entertain the issues as part of its consideration of the motion.


We hope the above analysis has been helpful and suitably responsive to the Haring Panel’s request. We would be pleased to provide further advice at the Hearing Panel’s request on any aspect of this matter.

Yours truly,

For: Brian Gover

NOTE:  This piece is written for the sole purpose of bringing to the public's attention an issue of public importance.  The current proceedings involving His Worship Massiah are an issue of public importance because it involves questions touching on fairness, natural justice and most importantly the constitutional doctrine of judicial independence and the Rule of Law.  A free and democratic society works best when the people are aware of all of the facts.

[1] R.S.O. 1990, C J.4
[2] R.S.O. 1990, c. S.22
[3] Other than ss. 4 and 28 thereof, as provided for in s. 11.1(4) of the JPA.

[4] For example, because witnesses have become unavailable, memories have faded, key documents are no longer accessible, or significant psychological harm or stigma has attached to the individual such that the administrative process would be brought into disrepute.
[5] Listed, for example, in paragraph 2 of the Applicant’s Reply Factum Re Jurisdiction.
[6] Referred to in the RHPA as the Inquiries, Complaints and Reports Committee.