Monday, December 5, 2016

Former Attorney General Opens Up on Ontario Criminal Justice System


   In an article published in Precedent on December 5th, 2016 former Attorney General, Michael Bryant is quoted as making the following statements;

1.   "I had no idea that innocent people were, every day, being treated like guilty people."

2.   "I had no idea that the presumption of innocence is a joke."

   Some in the legal profession may be quick to condemn the comments attributed to Mr. Bryant. Indeed, it will be interesting to see how the investigators at the Law Society of Upper Canada receive these alleged comments. Readers will recall the ongoing battle between the Law Society of Upper Canada and their prosecution of the able and respected trial lawyer, Mr. Joseph Groia.

   As a lawyer who routinely represents clients for whom the law does not seem to work, I have great insight into Mr. Bryant's words and can understand his critique.  It is clear to me that up until his encounter with the criminal justice system Mr. Bryant, like most in the criminal justice system, enjoyed a life which was privileged and removed from the reality which working people in Ontario encounter in our courts everyday.  As a Catholic lawyer I can only hope that Mr. Bryant has found inner peace and that he will use his voice to speak for those who are voiceless.

   Mr. Bryant's lawyer in his encounter with the criminal justice system, Marie Henein, zeroed in on perhaps the biggest obstacle in his path for redemption.  The Precedent article quotes her in the following words: "Today's digital world is an extraordinary burden", says Henein.  "The mere fact of an accusation makes it extremely difficult for someone to move on.  What's the first thing you do when you meet someone ?  You google them.  So for the rest of your life, you're explaining yourself. It's hard."    

NOTE:  This article is written for the sole purpose of drawing attention to an issue of public importance.  The right of lawyers to speak frankly on the workings of the administration of justice is a matter of public importance. Censoring and punishing lawyers for their honest and frank criticism of the administration of justice is inconsistent with our fundamental principles. Assuming the quotes attributed to Mr. Bryan are correct they motivate and push for change and ought not to be censored and punished.  

Thursday, December 1, 2016

CJC Inquiry Committee Recommends Removal of Justice Camp Affirming Principle that Removal Not to be Undertaken Lightly

   Justice Camp must be removed from judicial office in order to maintain public confidence in the justice system recommends the Inquiry Committee established to adjudicate the complaint against him stemming from statements he made during the trial of R  v. Wagar.  Readers will recall that this is the judge who asked the complainant in a sexual assault trial why she did not keep her knees together in order to avoid penetration and soundly called into question the fairness and rationale for the "Rape Shield Law".  The" Rape Shield Law" is a statutory amendment which was made to the Criminal Code of Canada to presumptively designate the complainant's historical sexual behaviour inadmissible.  The Supreme Court of Canada found this law to be constitutional in the case of R  v.  Darrach [2000] 2 S.C.R. 443.

   The Inquiry Committee's report is very instructive.  I will highlight some of it below.

[242]   A finding of misconduct does not necessarily lead to a recommendation for removal from office.  The Committee must now consider whether the Judge's misconduct renders him incapable of executing the judicial office.

The Test for the Removal of a Judge

[243]   The test for the removal of a judge was developed by the Inquiry Committee into the conduct of Justices MacKeigan, Hart, Macdonald, Jones and Pace, which has become known as the Marshall Inquiry.  The inquiry arose from comments that judges of the Nova Scotia Court of Appeal made in their reasons on a reference regarding the conviction for murder of Donald Marshall Jr. , in which the Court of Appeal acquitted him of murder.

[244]   The majority of the Inquiry Committee in the Marshall Inquiry observed that the judicial role requires decision-making "free from external interference or influence, and as a corollary, judges are under a "judicial duty to exercise and articulate independent thought in judgments free from fear of removal.  The duty does not "immunize judges from fair criticism, but "it guarantees that the expression of opinions honestly held by judges in their adjudication of the relevant law, evidence or policy in a specific case will not endanger their tenure.

[245]   The majority in the Marshall Inquiry acknowledged the words of the Supreme Court of Canada in R   v.  Valente that "the removal of a judge is not to be undertaken lightly.  The majority explained that judicial independence "attained entrenchment in our constitution not merely, or even mainly, for the benefit of a judiciary.  It is also a fundamental benefit to the public served by the judiciary.

[248]   The majority in the Marshall Inquiry also stated that the test for removal of a judge must allude specifically to public confidence in the administration of justice, be objective, and "be used in part, at least, on conduct which could reasonably be expected to shock the conscience and shake the confidence of the public as opposed to conduct which is, and often must be, unpopular with part of the public".

[278]   Justice Camp's misconduct is manifestly serious.  It caused significant harm to public confidence in the judicial role, in an area of law in which the courts and Parliament have made concerted efforts to enhance public confidence over the past four decades.

[281]  Fundamentally, Justice Camp's misconduct is rooted in a profound lack of impartiality and failure to respect equality before the law.  As the majority in the Marshal Inquiry made clear, an important element in the test for removal is the presence of bias. The majority emphasized, however, that what is at the core of bias is not having existing views or attitudes, but rather a failure to control those existing views or attitudes: "True impartiality is not so much not holding views or having opinions, but the capacity to prevent them from interfering with a willingness to entertain and act on different points of view".

[325]   It is our view that, on all of the evidence, this case meets the high threshold for removal.

[327]   The problem with Justice Camp's misconduct was not that he had gaps in his knowledge, but that he filled those gaps with an antipathy towards legislative reforms in the law and reliance on discredited stereotypes and myths.  Justice Camp by his own evidence, was familiar with the leading cases as well as the Criminal Code provisions dealing with sexual assault.  In other words, he ignored the fundamental requirement of a judge to accept that although he  has knowledge gaps, he must proceed in a way that reinforces confidence in the integrity of the judiciary and does not imperil it.

Analysis and commentary:

   The removal of a judge from office is a very serious matter in our system of law. In lesser systems of law this task is often based on arbitrary criteria and the whim of the decider. We have departed from this manner of operation and removal in our system is fueled by an objective determination that not only has the judge committed an act of misconduct but that act of misconduct is such that it renders him or her incapable of executing judicial duties.

   Fairness, impartiality and integrity are three of the key traits required to judge. Hence, acts committed in the execution of the judicial function tending to call into question any of these traits are the best candidates for removal from office. Where there is no evidence that a judge has committed any act of misconduct with respect to the adjudication of a case removal is NOT the presumptive remedy. In the CJC forum where the only available remedy is removal such a judge ought not to be removed from office and this is borne out by the history of cases dealt with by the CJC. In forums such as Ontario where there exists a graduated penalty scheme removal ought NOT to flow from this type of judicial misconduct.

Committee to be Commended:

   In reviewing the Committee's Report in this case I was impressed with the professionalism and dignity with which they approached their duty.  Their Report speaks to the issue before them in an impartial and fair tone which focused on the issue at hand and not on Justice Camp as a person. On the facts of this case the Committee could have attacked Justice Camp as a person but they seem to recognize that this was not the task which they were called upon to adjudicate. They restricted their inquiry to that which was properly before them.  This is a very important and often overlooked aspect of these types of proceedings.  The manner in which the removal is executed speaks volumes to the integrity of the administration of justice itself.

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance.  The removal of a judge from office is an issue of public importance. The manner in which this removal is executed is perhaps a more significant issue of public importance. In the final analysis, justice must be seen to be done.

   

Tuesday, November 29, 2016

Abuse of Process to be Raised in Discipline Hearing Involving Acquitted Doctors

   "Doctors acquitted of gang sex assault face discipline hearing" read the headline in the Toronto on November 28, 2016.  Readers may recall that two doctors - Dr. Chauhan and Dr. Kayilasanathan were acquitted by Justice Julie Thorburn following a trial in which they were accused of, among other charges, gang sexual assault. According to the Toronto Star those two doctors are now the subject of a hearing before a panel of the College of Physicians and Surgeons of Ontario which alleges they engaged in sexual activities with a woman without her consent and administered a drug or drugs to the said woman without her knowledge.

Respondent Counsel:

  Ms. Marlys Edwarth - who represented Dr. Chauhan in the criminal proceedings - is representing him in the discipline proceedings before the panel at the College of Physicians.  Ms. Edwarth is amongst the best counsel that money can buy in this country - if not the best.  She is well versed in not only criminal trial and appellate advocacy but is also skilled in administrative law and constitutional law.
 
   Mr. Tom Curry of Lanzer Slaght LLP is representing Dr. Kayilasanathan.  Like Ms. Edwarth, Mr. Curry is a gifted trial and appellate lawyer with skill and expertise in professional discipline matters and administrative law.

Abuse of Process Asserted:

   According to the Toronto Star article both lawyers are bringing a motion alleging an abuse of process.  Mr. Curry is quoted in the Star article in the following words: "The abuse of process motion is about the interplay between the acquittal in the criminal case and the basis for it and the college's ability to prosecute the same case on the same facts."

   Reading between the lines from the Star article it would appear that the basis for the abuse of process motion is related to findings of fact made by Madame Justice Thorburn in the criminal proceedings - including the following:  1.  Video surveillance evidence showing the complainant leaving the hotel; 2. Evidence that text messages were sent by one of the women when she said she would have been unable to move; 3.  Blood, urine and hair samples showed no evidence of drugging.

Lawyers Doing their Job:

   As is often the case in cases of this nature, there will be some who will be quick to attack the work and reputation of Ms. Edwarth and Mr. Curry as they discharge their duty in properly defending their client.  Readers will recall the crusade put on by the mainstream press when I properly brought a motion asserting a lack of jurisdiction and abuse of process on behalf of my own client, Justice of the Peace Massiah. On April 10th, 2014 Michel Mandel of the Toronto Sun boldly wrote:

"The irony seems apparent to everyone but Justice of the Peace Errol Massiah and his zealous counsel. .....but his lawyer Ernest Guiste is tying up his second complaint hearing with motions, challenges and endless accusations that the judge and her panel are biased.  Yet, Massiah claims he's the victim of an abuse of process ?  Pot meet kettle."

Commentary:

   Abuse of process is a highly flexible remedy available to courts and tribunals to stop what they find to be unfair, biased or proceedings which are not otherwise in the public interest to prosecute. It must NOT be thought of as a remedy for the GUILTY to escape justice but as a remedy to ensure that when we make findings of guilt or liability we do so in accordance with the high standards for fairness and integrity that have come to distinguish our legal system from others.  The Law Society of Upper Canada hearing panel's decision in Re Baker is a classic case on this point.

   Lawyers ought never to be punished or censored for doing their jobs.  It is lawyers who are the vehicle through which the people's rights and freedoms come to fruition. When we punish and censor the lawyers we denigrate the legal system and we invite or plant the seeds for tyranny, bigotry and sexism.  We don't want that !  Do we ?
 

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance.  The doctrine of abuse of process is an important and vital safeguard in our free and democratic society. It is the duty of a lawyer representing a client to raise it when ever he or she feels that the circumstances call for it.  The lawyer ought never to be afraid to raise it. A climate in which lawyers - of all people - are afraid to speak freely and to do their job freely could never be in the public interest. 

Friday, November 25, 2016

Divisional Court Overturns Two Decisions as Unreasonable Today

   The Divisional Court overruled two labour arbitrators finding their decisions unreasonable in separate Reasons for Decisions released today - once again calling into question the supposedly new era of deference to decisions of administrative tribunals.

   In Toronto East General Hospital  v.  Ontario Nurses' Association 2016 ONSC 7331 and Canadian Staff Union   v.  C.U.P.E 2016 ONSC 7292 - panels composed of Justices Nordheimer, Dambrot and King found both decisions rendered by arbitrators in those cases to be unreasonable and set aside the decisions.

Dunsmuir  v.  New Brunswick
[2008] 1 S.C.R. 190:

   In each of the decisions issued today finding the decisions unreasonable the Divisional Court clearly relies upon Dunsmuir supra in supporting its decision.  The Toronto East General Hospital decision was six pages long. The Canadian Staff Union decision was five pages long.  In both of the decisions released today the court and the parties were in agreement on the standard of review being reasonableness.  This is consistent with the existing jurisprudence on this issue.

Did the Divisional Court
employ the wrong standard
of review in Massiah supra ?

   This is to be contrasted with the Divisional Court's recent decision in Massiah  v.  Justices of the Peace Review Council 2016 ONSC 6191 where the court upheld as reasonable a hearing panel of the Justices of the Peace Review Council's decision removing a judicial officer from office as reasonable. In Massiah the Divisional Court makes no mention of Dunsmuir supra. Their decision in that case was nineteen pages.

   In Massiah the Divisional Court appears to have employed a reasonableness standard of review to the decisions of the hearing panel. This is a panel composed primarily of ad hoc personnel. In this case the panel consisted of a part-time judge of the Ontario Court of Justice, a Justice of the Peace and a lay person. Indeed, the hearing panel in Re Massiah contained only one member of the Justices of the Peace Review Council. That was the lay person.  Both the judge and the justice of the peace were appointed temporary members by the Chief Justice of the Ontario Court of Justice.  There is no privative clause in the Justices of the Peace Act. Furthermore, the question of whether or not a justice of the peace should be removed from office involves consideration and application of the well established constitutional principle of judicial independence.

   Would not the fact that the court is considering and applying the constitutional principle of judicial independence invite a standard of review of correctness in accordance with Dunsmuir supra ?

NOTE:  This piece is written for the sole purpose of drawing attention to issues of public importance. The standard of review to be applied to decisions of administrative tribunals is an issue of public importance.  So too is the removal of judicial officers. It is not lost on the author that the decisions overturned today were both made by female labour arbitrators. Academics and policy-makers who have the time and the resources to research these issues may wish to look into whether decisions made by female labour arbitrators receive less deference than those made by male arbitrators.

Monday, November 21, 2016

Publication Ban Motions at the JPRC: The Practice, Rationale and Inconsistency

  Readers will recall that a hearing panel chaired by now retired Madame Justice Livingstone referred me to the governing body of lawyers in this province, The Law Society of Upper Canada alleging among other things that I brought a frivolous motion seeking a publication ban on behalf of my client. The fact is that a positive general reputation and integrity are among a judicial officers most significant traits or qualities. A careful review of the Justices of the Peace Act itself will confirm this point. 

Private Investigations:

   The Act expressly provides that in s. 11(8) a complaints committee's investigation of a complaint shall be conducted in private. The rationale for this is entirely related to the fundamental importance and indeed state interest in preserving and protecting judicial officers from improper influence from the state or otherwise which may interfere with their judicial independence and hence The Rule of Law.  This important principle was taken a step farther when 20 years ago Madame Justice Abella of the Court of Appeal for Ontario ruled in the landmark case of Hryciuk  v. Ontario that only complaints which have been pre-screened by the judicial council in that case are properly before an inquiry judge to adjudicate the question of removal from judicial office.  Accordingly, it should be clear to readers that an unfounded allegation against a judge ought not to receive any publicity under this statutory scheme. 

The Publication Ban
Motion in Re Massiah:

   Readers will recall that there was a serious legal question of jurisdiction placed before the Hearing Panel the moment I took up my retainer on that case. The question of the existence of a "complaint" as that term is used in s.10.2(2) was squarely raised in a preliminary motion challenging the jurisdiction of the Hearing Panel to adjudicate a "complaint" in June, 2013.

   Indeed, the Hearing Panel itself retained independent counsel on the question of their jurisdiction and did not receive an opinion until May, 2014.

   In those circumstances a lawyer who fails to seek an interim publication ban at least until the question of the legality of the "complaint" is adjudicated would be in breach of his or her duty to his client under such a statutory scheme and indeed within the reality of the vital importance of a positive general reputation and integrity for judicial officers. Again, I was simply doing my job as a lawyer.*  

The Facts:

   When I brought the motion seeking an interim publication ban there was widespread media coverage of the allegations. The motion record filed on this motion shows that at least three articles were cited.  This was so even though the question of the "complaint" was not adjudicated by the Hearing Panel until January 12th, 2015.  The Hearing Panel made its decision on the publication ban motion in and around April, 2014. They denied it. Publication of the allegations continued at large.

The JPRC Practice:

   As the case cited below illustrates publication ban motions are common place at the JPRC. In Re Kowarsky a publication ban protecting the subject Justice of the Peace was obtained with the consent of Presenting Counsel.  I have searched wide and far and I have not found any publication dealing with the Re Kowarsky matter by the main stream press at the time of the proceedings. Indeed, interested readers may wish to review the Hearing Panel's decision in Re Kowarsky. They will see that the words which HW Kowarsky was found to have uttered which constituted judicial misconduct are not even quoted in the published Reasons for Decision. That panel
wrote:

[10]   The sexually inappropriate comment, involving eight words, was very short.  It is agreed, and the Panel finds that the comment was not intended to be hurtful.

   On the other hand, at each and every turn the proceedings in Re Massiah was in the press. When the Toronto Sun's Michele Mandel was not advocating for his removal, she was advocating that he not be compensated for his defence. Curiously, Michele Mandel seems to believe that some lawyers ought not to be punished for doing their job but some are.(see: Wrong to Silence Marie Henein for Doing her Job.) 
Justices of the Peace Review Council
IN THE MATTER OF A HEARING UNDER SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4,
as amended
Concerning a Complaint about the Conduct of
Justice of the Peace Tom Foulds
Before:    The Honourable Justice Peter Tetley, Chair
                  Justice of the Peace Monique Seguin
                  Ms. Jenny Gumbs, Community Member
Hearing Panel of the Justices of the Peace Review Council
SUPPLEMENTARY REASONS FOR INTERIM RULING
Counsel:
Mr. Scott K. Fenton                                    Mr. Mark J. Sandler
Ms. Amy Ohler                                            Ms. Amanda Ross                
Fenton, Smith Barristers                           Cooper, Sandler, Shime & Bergman LLP
Presenting Counsel                                 

His Worship Tom Foulds appearing in person

SUPPLEMENTARY REASONS FOR INTERIM RULING

HEARD: September 28, 2016

Background

[1]           On August 2, 2016, a Complaints Committee of the Justices of the Peace Review Council (the “Review Council”), acting pursuant to subsection 11(15) of the Justices of the Peace Act (the “Act”), ordered a complaint regarding the conduct or actions of His Worship Justice of the Peace Tom Foulds to be referred to a Hearing Panel of the Review Council pursuant to section 11.1 of the Act.
[2]           A Notice of Hearing was served on the Respondent on September 2, 2016. The Notice of Hearing specified a first appearance date, before the Hearing Panel of the Review Council, of September 28, 2016.
[3]           On September 28, 2016, the Respondent appeared in person. Mr. Mark Sandler and Ms. Amanda Ross attended with the Respondent in the capacity of un-retained counsel.
[4]           Mr. Sandler advised the Hearing Panel that although he had not yet been retained as counsel for the purpose of the hearing proceedings, he anticipated the formalization of his retainer in the relatively near future. Mr. Sandler also advised that he had acted as legal counsel for the Respondent in the proceedings before the Complaints Committee.
[5]           Mr. Sandler acknowledged non-compliance with the procedures of the Review Council that requires ten days written notice in advance of a procedural motion.
[6]           In the absence of formal notice, motion record, filed authorities, factum or other form of supporting documentation, the Hearing Panel received and considered Mr. Sandler’s oral request that the proceedings be briefly adjourned with the Notice of Hearing filed provisionally or filed and marked as Exhibit A but that the Panel should order that the Notice of Hearing and these proceedings not be published until such time as the motion of non-publication could be properly argued once legal counsel was retained.
[7]           These requests were ultimately dismissed on the basis that the applicable statutory directives, directives founded on recognition that the complaints process is designed to maintain and restore public confidence in the investigation of complaints involving justices of the peace, outweighed the Respondent’s privacy interests and undermined his request that a publication ban be ordered on an interim basis.

Relevant factual considerations

[8]           During the course of his submissions, Mr. Sandler advised that the Respondent is currently seeking judicial review of the decision of the Complaints Committee of the Justices of the Peace Review Council. The decision of the Committee forms the basis for the particulars of the complaint that is the subject matter of this hearing.
[9]           Mr. Sandler referred to the Procedures of the Review Council which provide that the initial set-date commences with the filing of the Notice of Hearing, at which point the proceedings become public. He advised that in view of the Respondent’s existing legal challenge to the decision of the Complaints Committee to order a hearing, the Hearing Panel was urged to exercise restraint in receiving the Notice of Hearing as a numbered exhibit that could be publicized as existing legal proceedings brought by His Worship Foulds include a challenge to both the legal and factual foundations of the complaint itself.
[10]        Mr. Sandler expressed concern with regard to the “potential prejudice” to Justice of the Peace Foulds as His Worship seeks judicial review of the decision of the Complaints Committee. The nature or specifics of the “potential prejudice” to the Respondent were not specified other than by general reference to the assertion that the publicizing of the complaint may be reasonably foreseen to effect the ability of the Respondent to continue to discharge the duties of his office while the legal challenge continues to unfold.
[11]        Mr. Sandler, as noted, requested that the Notice of Hearing not be received as an exhibit, or alternatively, that it be received provisionally or marked as a lettered exhibit subject to an order that it could not be published to enable the Respondent to formalize counsel’s retainer with a view to enabling a formal notice of motion to be brought before this Panel or alternatively, a motion in the context of the application for judicial review that His Worship has instituted in the Divisional Court, with a view to securing an order of prohibition pending the outcome of the existing judicial review challenging the decision of the Complaints Committee.
[12]        In summary terms, Mr. Sandler requested the following alternative relief:
That the Hearing Panel defer its decision on the receipt of the Notice of Hearing as a public numbered exhibit until such time as counsel is retained and a formalized Notice of Motion is received or alternatively, receive the Notice of Hearing and the particulars of the complaint, filed provisionally, or in the alternative, filed and marked as Exhibit “A”, but subject to an order that it not be published until such time as counsel’s motion can either be formalized and heard by the Panel or a challenge to the jurisdiction of the Hearing Panel determined.

Legal Considerations

[13]        The Review Council Procedures document provides as follows:
6. (1) A hearing shall be commenced by a Notice of Hearing in accordance with this part.
(2) Recognizing the role that the complaints process has in maintaining and restoring public confidence and that the legislative requirements for maintaining privacy no longer apply for formal hearings under section 11.1 of the Act, once presenting counsel files a Notice of Hearing as an exhibit in the initial set date proceeding presided over by the Hearing Panel, the complaints process will become public, subject to any orders by the Hearing Panel.
(3) Once the complaint has become public, the registrar will have notice about the hearing posted in the prescribed form on the Review Council’s website, subject to any orders by the Hearing Panel. Not less than two weeks prior to the commencement of the hearing, the Registrar will have notice in the prescribed form published in the local newspaper. The public notice will include a brief summary of the allegations of conduct. The public notice shall not identify complainants or witnesses, due to the possibility that the complainant or witness could bring a motion in the proceeding for an order of non-publication of his or her identity. The Hearing Panel may, on such grounds as it deems appropriate, abridge the time for publication.
[14]        These Procedures recognize that the complaints process is designed to assist in the restoration of public confidence that can only be achieved by a process that is both open and accessible to the public.
[15]        This intention is further reflected in section 9(6) of the Act.  This provision reads as follows:
Meetings of the Review Council and of its complaints committees shall be held in private but, subject to subsection 11.1 (4), hearings under section 11.1 shall be open to the public. 2006, c. 21, Sched. B, s. 7.
[16]        A review of these provisions confirms that the enabling statute and the procedural rules arising from that statute create a “strong presumption of openness”. That intention reflects the fact that there is a significant and continuing public interest in the maintenance of judicial conduct proceedings that are transparent and accessible.
[17]        The Supreme Court of Canada decision in R. v. Mentuck, [2001] 3 S.C.R. 442 directs that an applicant who seeks a publication ban in such circumstances must demonstrate that his or her privacy interests outweigh the public’s interest, including the right to free expression and the maintenance of transparency in our legal system.
[18]        As Presenting Counsel rightfully submits, section 9(6) of the Act directs that the proceedings “shall be open to the public”.  By virtue of the enabling statute itself, these proceedings are intended to be public.
[19]        The Statutory Powers Procedure Act applies to this hearing and section 9 of that Act directs that any “oral hearing”... “shall be open to the public”. Section 6(2) of the Act reflects that objective by providing that the complaints process becomes public once the Notice of Hearing is received as a numbered exhibit.
[20]        As the hallmarks of a review process are openness and transparency, Presenting Counsel submits that the openness of the proceedings should not be deferred until such time as counsel is either formally retained or contemplated challenges to the jurisdiction of the Hearing Panel have been mounted and/or determined.
[21]        In the submission of Presenting Counsel, the Notice of Hearing is akin to an information in a criminal case and may be viewed as simply representing an unfounded or unproven allegation.
[22]        Presenting Counsel also references the aforementioned Dagenais/Mentuck test and the duty to notify the media in advance of the application of the kind contemplated by His Worship and Mr. Sandler as a consequence of the significant public interest in accountability and transparency that proceedings of this kind entail.
[23]        Reference is made by Presenting Counsel to two previous decisions of the Hearing Panels of the Review Council, in which requests were made for orders that contents of the Notice of Hearing not be made public. These applications include the determination of a complaint regarding the conduct of Justice of the Peace Solange Guberman, dated October 11, 2011, and that related to a complaint regarding the conduct of Justice of the Peace Errol Massiah, dated April 11, 2014.
[24]        These decisions serve to reiterate and confirm the emphasis that is placed on maintaining openness in and public accessibility to these proceedings.

Analysis and Conclusion

[25]        In dismissing the Respondent’s application, consideration has been given to the following factual and legal considerations:
                    (i)              That open and publically accessible courts and tribunals are the hallmark of our legal system and a coveted feature of our democratic society;
                  (ii)              These principles (openness and accessibility) have been incorporated into the Statutory Powers Procedures Act and are reflected in the  Review Council Procedures as previously noted (see section 6);
                 (iii)              The Notice of Hearing in this matter was formalized and served on September 2, 2016, some four weeks before the first appearance without recommendation by the Complaints Committee that the matter be considered via an in-camera hearing as authorized by section 9(1) of the Statutory Powers and Procedures Act;
                 (iv)              The Respondent has not met the test applicable for a non-publication order as referenced by the Supreme Court of Canada in Her Majesty the Queen v. Toronto Star Newspapers, 2005 S.C.C. 41, [2005] 2 S.C.R. 188, at paragraph 26. In this regard, the Respondent has not established “why such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk” and that the “salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice”;
                  (v)              While the allegations of alleged misconduct may cause embarrassment to the Respondent, there is nothing to suggest that the mere receipt of the Notice of Hearing and the particulars of the complaint will, in themselves, undermine the ability of the Respondent to discharge the duties associated with his office. That said, the allegations relate directly to the performance of the Respondent’s duties as a judicial officer. In these circumstances, it cannot reasonably be expected that such conduct would not be subject to public scrutiny;
                 (vi)              The request that the Notice of Hearing be noted as Exhibit “A”, rather than public exhibit property, is concluded to amount to the equivalent of a de facto interim publication ban that would in essence defeat the principles of openness that are determined to be of priority in these proceedings;
                (vii)              As there is no pre-existing judicial directive that this hearing be made “non-public”, with no advance notification to the press, no formalized motion and no supporting materials, it is concluded, on application of the principles of openness referenced above, that the oral motion is dismissed and the Notice of Hearing should be received as an exhibit and in accordance with the Procedures of the Review Council, the complaints process will become public. In accordance with the Procedures of the Review Council, the public notice shall not identify any named complainant or witness due to the possibility that a complainant or witness could bring a motion in the proceeding for an order of non-publication of his or her identity. Accordingly, the redacted version of the Notice of Hearing, with the exclusion of the names of any complainant, is received as Exhibit 1(B) and it is a public exhibit.
              (viii)              In reaching this determination, it is acknowledged that the publication of a Notice of Hearing cannot be challenged until the Notice of Hearing has been made an exhibit. In effect, the Respondent is deprived of the ability to secure a “pre-emptive order” by way of a request for judicial review. That circumstance alone, in the view of the Hearing Panel, does not constitute an incident of procedural unfairness and is not concluded to be unreasonable.
                 (ix)              In reaching this decision, the Hearing Panel understands that the receipt of the Notice of Hearing as an exhibit effectively amounts to the specifics of the complaint being made public and may negate the efficacy of any future application for non-publication. It is acknowledged that the Notice of Hearing and the attached Appendix set out in detail the particulars of the complaint. That is effectively the result of the receipt of the Notice of Hearing as a public numbered exhibit. The Hearing Panel is mindful of that fact.

Conclusion

[26]        While the publication of the allegations referenced in the Notice of Hearing may cause embarrassment to Justice of the Peace Foulds, the potential for embarrassment alone is not a sufficient reason to grant the requested order.
[27]        The reference to the potential undermining of His Worship’s ability to discharge the duties of his office is similarly concluded to be speculative and without any factual foundation.  We conclude, on the basis of the review of the legal principles cited, that proceedings of this nature should be open to the public and the publication of the particulars in the Notice of Hearing and the Notice of Hearing itself should not be restricted in any way.
Dated this 19th day of October, 2016
HEARING PANEL:
The Honourable Justice Peter Tetley, Chair
Her Worship Monique Seguin, Justice of the Peace Member

Ms. Jenny Gumbs, Community Member

Thursday, November 17, 2016

Canadian Judicial Council Announces Dates of Public Hearing re Justice Michel Girouard

   Dates for the adjudication of the fresh complaints filed against Justice Girouard based on his testimony before the Hearing Panel who adjudicated his initial judicial misconduct proceedings were announced by the Canadian Judicial Council yesterday.  The new Inquiry Committee will proceed with public hearings January 30 to February, 2017 and again from February 20, 2017 to Febraury 24, 2017 as needed.  The hearings will be held in Quebec City at the Quebec courthouse, 300 Jean-Lesage Blvd.

   Readers will recall that this is the Quebec judge who was accused of being involved in a drug trafficking transaction and the Hearing Panel found that the substantive complaint against him was not made out on the evidence but two of the three panel members concluded that he ought nonetheless to be removed from office based on his testimony before them which they concluded was not credible. On further review within the Canadian Judicial Council administrative framework the recommendation for removal was set aside.  It was set aside on the reasoning that it was in breach of natural justice and fairness since Justice Girourard was not provided with any notice in advance that the manner of his testimony would be used against him as a separate and distinct ground of misconduct.

Hryciuk  v. Ontario
1996 Canlii 4013 (ONCA):

   We in Ontario are quite familiar with this reasoning when 20 years ago Madame Justice Rosalie Abella quashed a removal from office order against Justice Walter Hryciuk of the Ontario Court of Justice employing that very reasoning in the landmark case of Hryciuk  v.  Ontario.  The Court of Appeal was clear that a judge can not be removed from office unless the complaint has been pre-screened by the judicial council in that case and that removal may only result from that complaint being established.  The inquiry the court ruled was not a general one to determine whether the judge ought to be removed from office but rather a limited one focusing on whether he or she ought to be removed for the particular complaint filed.

   Readers will also recall my now well documented struggle of trying to obtain a fair and impartial hearing for my client, His Worship Massiah, in judicial misconduct proceedings before a hearing panel of Ontario's Justices of the Peace Review Council.  My objection that the Notice of Hearing had 7 allegations of misconduct that were not pre-screened by the Complaints Committee and hence my client received no notice of until the issuance of the Notice of Hearing on or about May 31st, 2013 was dismissed along with the myriad of other procedural irregularities in those proceedings.

    However, the following excerpts from the hearing panels Disposition Decision and Presenting Counsel's Written Submissions on Disposition raise yet another discrete breach of natural justice and fairness and Hryciuk Error:

Presenting Counsel:

[81]   Presenting Counsel submits that administrative law principles of fairness place limits on the ability of a tribunal to give effect to new misconduct that comes to light in the course of a hearing. This principle was given effect by the Court of Appeal in Hryciuk.  It leads to the conclusion that untruthful testimony in the course of a hearing could only be pursued as a separate instance of misconduct through the usual procedural mechanisms beginning with a fresh complaint.

[81]   However, even though His Worship's untruthful testimony cannot be considered a separate head of misconduct, Presenting Counsel submits that it can legitimately be considered on disposition as a factor going to public confidence.  It pertains directly to the likelihood of His Worship committing similar misconduct in the future and his fitness to continue to hold office.

Respondent's Submissions:

[47]   Presenting Counsel suggests two further areas which might convince the Panel that removal from office could be called for.  First, it is suggested that the panel's finding that Justice Massiah's testimony was dishonest or unreliable could underpin a determination that removal is appropriate. Justice Massiah is required to accept the findings of the panel.  However, it is submitted on his behalf that this finding should not be used against him on the penalty phase, as envisaged in Hryciuk in the Court of Appeal.

Disposition Decision:

[64]   When we consider the extent and duration of His Worship Massiah's misconduct, and his testimony, before us, which demonstrated a complete lack of insight into the gravity of his misconduct even after a previous public hearing, we conclude that the dispositions set out in paragraphs 11.1(10) (a) to (f) are not sufficient to restore public confidence in His Worship Massiah or in the judiciary in this case.


Justice of Appeal Abella 
in Hryciuk (supra):

   "The language of the statute is unambiguous and leaves no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council.  The inquiry judge had a specific, narrow mandate under the legislation: to conduct an inquiry, not into the general question of whether Judge H should be removed, but into whether he should be removed because of those complaints referred to her by the Judicial Council, namely, the two complaints referred to in the order-in-council.  By hearing three additional complaints not so referred, she exceeded her jurisdiction.

   The inquiry judge based her recommendation on all the complaints she heard, including the ones she had no authority to hear.  The evidence of those three complaints formed an integral part of her recommendation that Judge H be removed.  It was, therefore, impossible to say what her recommendation would have been if her finding had been based only on the two complaints she had jurisdiction to hear."


What was the "complaint" which the 
Hearing Panel was called up to 
Adjudicate ?

   In November of 2011 while acting as Presenting Counsel in a separate case involving His Worship Massiah Mr. Douglas Hunt, Q.C. took statements from five persons claiming to have information regarding His Worship Massiah and sent them off to his instructing counsel, Ms. Marilyn King, who also happens to be the Registrar of the Justices of the Peace Review Council. When Ms. King received the information she sent Mr. Hunt a letter asking him whether this was a new complaint.
Mr. Hunt wrote back simply stating that members of the public brought information to his attention and he was sending it in for consideration.

Here is the Hunt Report in a nutshell:

1. B.N - a provincial prosecutor was anticipated to state that his colleague M.E. told him
that Ms. Sole-Defendant, a litigant, who had earlier appeared before His Worship Massiah spoke
with him and he appeared to hand her a business card that appeared to be his official
Justice of the Peace business card.  He was not called as a witness by Presenting Counsel.

2. M.E.- a prosecution assistant was anticipated to state she made the observation noted
above with resepect to HW Massiah's interaction with Ms. Sole-Defendant and that she conveyed
this to B.N. She was not called as a witness by Presenting Counsel.

3. QQ - Supervisor, Provincial Prosecutors was anticipated to state that sometime in
2009 he saw HW Massiah give his business card to woman who had previously appeared
before him.  "My assumption is it is his, I don't know what else it would be, but I am
assuming that, but he's handing her a business card while they wee in conversation. That
struck me as strange."

When asked by a lawyer from Mr. Hunt's office whether HW Massiah ever acted inappropriately in his presence, QQ said the following:

A.  These are tough questions aren't they ?  I will say no to that, but it doesn't mean I am being overly supportive of him.  What often bothered me about him, that's not too strong a word to use I don't think, in courtrooms, he was kind of leering, ogling, attractive woman(sic) in court and that to me is not how we do things. We may say he as just being friendly and I will probably say, "Okay", but it was obvious on a number of occasions and that's about as far as it goes.

A.B.  Obvious on a number of occasions with whom ?

QQ   Female, attractive defendants

A.B.   Did they, in your experience, were they treated differently than other defendants ?

QQ   No. I don't think he ever, as far as I am aware, I don't think there was ever any lack of impartiality with him as a jurist or a judicial officer making decisions on penalty for example. I have never seen that, I will give him that.  That is not the issue.

A.B   ....Do you recall the name of the defendant ?

QQ   I do not.  I didn't make any notes.  I should have taken some notes or kept a docket but I didn't. That doesn't sound good, but I never keep any details.

4.   II - A POA clerk - brought a number of issues including the BB touching incident.
Two incidents involving her daughter were dismissed by the complaints committee,
namely, 1. "I had the pleasure of meeting your daughter" and 2. a touching incident
involving her daughter.  She mentioned EE going up to his chambers and encountering
him shirtless. She mentioned the PP chest incident.

5.   HH - a provincial prosecutor advised that in the late spring of 2010 she was
proceeding towards the entrance of 605 Rossland Road, past the entrance for the
Justices of the Peace. Justice of the Peace Massiah was sitting outside the Justices
of the Peace entrance. No one else was present. As HH passed HW Massiah she
says that he said, "Looking Gooood " and "raked her" up and down with his eyes.

That is it.  That is the Hunt Report. That is the "complaint" which was filed against HW Massiah.
(see Record of Proceedings - Vol.II - Tab 37)  If you have a minute to spare I invite you to take the time and compare it to the Notice of Hearing.(see Record of Proceedings - Vol.I - Tab 2)

You will see that there is an obvious lack of congruence between the "complaint" and Notice of Hearing.  If you dig further you see that there is a lack of congruence between the "complaint", the Notice of Hearing and the matters which the Hearing Panel relied upon to make the removal order.

The long and short of it is that the Hearing Panel considered a myriad of issues which were not part of the complaint and was not investigated by the complaints committee in making their removal decision.  Some of their findings of liability, namely, paragraphs 1-6 and 14 in the Notice of Hearing were made with no evidence. Presenting Counsel conceded in their written submissions that no evidence was called on these items.


NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance - the removal of a judicial officer from office. Judicial officers can not be fired as the main stream press have frequently characterized this removal from judicial office. Those who defend them in accordance with their duty as counsel ought not to be the subject of arbitrary penalty and sanction without due process of law either.
  

   

Tuesday, November 15, 2016

Did the JPRC Violate their Own Procedures in Compensation Policy Change Media Coverage ?

 
   "Taxpayers billed for guilty justices' legal fess" read the headline in a November 20, 2014 article published in the Toronto Star.  The article went on to identify "The guilty JPs" and the corresponding sums of money paid out by the Attorney General of Ontario to compensate them for the cost of defending judicial misconduct proceedings initiated against them under the Justices of the Peace Act. The Toronto Star article went on to suggest that these "guilty JPs" "had their legal fees compensated to the tune of more than $200,000.

   A question of law arises with respect to the publication of this information given that the Procedures Document which governs proceedings before the Justices of the Peace Review Council did not provide for making this aspect of the proceedings public until an amendment on May 14th, 2015 during the proceedings involving JP Massiah.

   The May 14, 2015 copy of the Procedures Document reads as follows on this point:

"The Review Council's consideration of the question of compensation shall take place in public if there was a public hearing into the complaint, and otherwise shall take place in private. The hearing panel may recommend that the justice of the peace be compensation for all or part of the cost of legal services incurred in connection with the hearing".

   The May 6, 2014 copy of the Procedures Document reads as follows on this point:

"The hearing panel may recommend that the justice of the peace be compensated for all or part of the cost of the legal services incurred in connection with the hearing."

A Look at the Five Cases:

   In four of the five cases cited in the article a review of the Reasons for Decision in each of them shows that the issue of compensation is neither discussed or adjudicated in them.(see Re JP Welsh, JP Kowarsky, JP Guberman, JP Massiah)   This would tend to be consistent with the May 6, 2014 Procedures Document and the May 14, 2015 amendment which called for the compensation portion of the hearing being public if there was in fact a public hearing.

   Re Foulds 2013 is the first case in which a hearing panel of the Justices of the Peace Review Council addresses the issue of compensation in their published decision.  This decision is dated July 24th, 2013 - 22 months prior to the amendment in their Procedures Document making this portion of the proceedings a public matter.  It is in Foulds 2013 that a hearing panel of the JPRC introduced the new standard on compensation decisions which was relied upon in Re Massiah (2015) to deny compensation.

Who is quoted in the Star Article:

   The following persons affiliated with the Justices of the Peace Review Council are prominently quoted in the Toronto Star story:  Mr. Douglas Hunt - Presenting Counsel in Re Massiah, and Marilyn King, Registrar of the Justices of the Peace Review Counsel. An unnamed spokesman for the Attorney General is said to have confirmed that "the government paid the full recommended amount to all five disciplined JPs."

Douglas Hunt:

Lawyer Douglas Hunt presented the case against Massiah in his first hearing and was found by the JPRC Hearing Panel to have been the complainant in the second proceeding. Mr. Hunt is no stranger to cases of this nature having acted for the complainants in the landmark judicial misconduct case of Hryciuk  v.  Ontario where a removal order was overturned by the Ontario Court of Appeal. The following are the quotes the Toronto Star attributes to him in their publication:

- Compensation for legal fees for JPs was "an important issue that obviously needs to be looked at."

- "The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty".

- But, Hunt said it is important JPs have access to resources to defend themselves against allegations brought forward by the government.


Commentary:

   In my 23 years as a lawyer in Ontario I have yet to see a Crown Attorney argue against funding by Legal Aid Ontario or otherwise to enable Ontario residents to defend themselves in criminal proceedings.  Most reasonable and informed observers agree that a system which pits the unlimited resources of the state against an individual of limited financial means runs the risk of undermining the legal legitimacy of its findings of guilt. We in Ontario take great pride in our current system of Legal Aid where individuals of limited means have some access to a lawyer of their choice to defend their legal rights.

   Indemnification of the legal costs incurred by judicial officers in defending judicial misconduct proceedings can not be equated with a criminal or a civil trial. The right to bring a complaint of judicial misconduct against a judicial officer is a right which every single resident who enters a court of law is guaranteed in Ontario. Accordingly, it can reasonably be said that the right to indemnification for defending their office is an implied term and condition of the judicial appointment. Otherwise, a judicial officer making $120,000 a year could not reasonably defend their office in a judicial misconduct proceedings spanning 5 years, some 30 days and more than $700,000**.

   Indemnification of the legal costs associated with judicial officers defending their office by the Attorney General is part of the public interest component of this office. This is because indemnification is the small price that we pay for judicial independence and the right to be able to complain and initiate proceedings to correct unsatisfactory behaviour from our judges.

   Indeed, the Government of Ontario is not as prosperous as it once was. We have witnessed substantial and damaging cut-backs throughout the administration of justice which threaten to undermine its proper operation. This is an issue for the law-makers to tackle.  It is not one that Presenting Counsel and the Registrar of the Justices of the Peace Review Council need to champion.
(readers are invited to read Michele Mandel's of April 10th, 2014 entitled Oshawa JP's Sexual Harassment Hearing Lags)

NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the operation of agencies and tribunals charged with the discharge of important public functions such as the Justices of the Peace Review Council. How these agencies conduct their business is vitally important and must at all times be seen to be fair and impartial. If there are any inaccuracies in this publication kindly bring them to my attention and I will correct them. My role is to educate and not to punish.  Democracy and the Rule of Law work best when the participants have full and fair disclosure of all of the necessary information.  Readers are invited to read Michele Mandel's coverage of this issue in the Toronto Sun as well.

**Estimated cost of the two proceedings for substantially the same conduct at the same time for which a panel chaired by esteemed jurist Charles Vallencourt issued a reprimand, a 10 day suspension, gender-boundary sensitivity training and letters of apology - all of which were complied with but Massiah's return was prevented by Presenting Counsel, Mr. Hunt's report to the JPRC which they found to be a complaint more than 3 years after it was submitted by Mr. Hunt.