Saturday, October 14, 2017

"Access to Justice" Defined

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

Divisible into Two
Major Categories:

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

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

Critical Areas Calling 
for Access to Justice:  

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


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


Friday, October 13, 2017

Access to Justice - What is it ? - Introduction

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

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

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

Sunday, October 1, 2017

Copy of Letter to Jagmeet Singh M.P.P. Re Law Society Name Change


TEL.(416) 364-8908.  FAX (416)364-0973

June 22nd, 2016                                                      VIA: FAX (905) 799-9505
                                                                                                (416) 325-1790
Mr. J. Singh, M.P.P.                                                            

Dear Jagmeet:

            I think it is time that The Law Society of Upper Canada comes out of the 
days of Upper Canada and changes its name to reflect the fact that Upper 
Canada no longer exists and we are in the Province of Ontario.  Please see my 
attached post which explains why this needs to be done at this time.

            I trust that this is satisfactory.  Feel free to call me.

Yours very truly,

Ernest J. Guiste.

Friday, September 29, 2017

Does The Majority Ruling in Groia v. L.S.U.C.(ONCA) Rely on a Flawed Premise ?

   In Groia   v.  The Law Society of Upper Canada the majority reasons dismissing his appeal contain what this writer believes to be a flawed legal premise which arguably impacted their analysis and outcome of the legal question before them.  That flawed legal premise is found in the first paragraph of the majority's reasons.

The Ruling:

[1]   For almost 220 years, the Law Society of Upper Canada has governed the legal profession in the public interest under statutory authority granted to it by the legislature of Ontario.


   The Law Society was created in 1797 to regulate the legal profession in the British colony of Upper Canada. Ontario was founded on July 1st, 1867.

The Ruling continued:

[1]   ....For close to a century, in the exercise of its statutory mandate, the Law Society has formed a body of rules governing the professional conduct and ethical obligations of lawyers, both inside and outside the courtroom.  Lawyers who fail to to meet the standards of practice established by these rules are subject to the Law Society's complaints and disciple processes.  In Ontario, as elsewhere in Canada, it is a privilege to practice law, not a right.


   The term "it is a privilege to practice law, not a right" is the flawed premise which permeates the majority's ruling - in this writer's opinion.  What does this term mean ?  The writer's asking of this question ought to alert readers to the inherent ambiguity and hence arbitrariness in the term. In this writer's opinion this term is one which is well grounded in our history as a nation and is arguably more of a political term than a legal principle.  The most obvious reference was when our federal government passed laws restricting immigration on what are today widely accepted as irrelevant and discriminatory grounds. Indeed, the very Law Society which is the subject of the appeal followed this sentiment in restricting access to African-Canadians and women based on this principle - namely - "it is a privilege to practice law, not a right."

   Accordingly, in this writer's opinion - the majority decision by the Court of Appeal for Ontario appears to have answered the wrong legal question.  The majority appears to have focused their attention on whether the governing body acted within its jurisdiction without properly considering that the court had in fact addressed the incivility and it was in fact spent. In this context the reference to "it is a privilege to practice law, not a right" makes perfect sense.  Justice Brown got it right when he wrote:

[255]   Our disagreement, therefore lies not in the continued importance of civility to the health of Ontario's legal system.  Our disagreement lies in how to determine when a barrister's in-court conduct amounts to professional misconduct because it is uncivil.

Mr. Groia Complied with
The Court's Directions:

   Indeed, a significant point raised by Justice Brown in his dissent is that the courts addressed the issue in the proceedings and Mr. Groia complied.  He wrote:

[249]   The senior courts to which the prosecutors complained were not silent about Mr. Groia's conduct.  Quite to the contrary.  In no uncertain terms they expressed their very strong displeasure. In the language of earlier times, they administered a public shaming to Mr. Groia. They told Mr. Groia to cut it out and smarten up.  He listened, and he did.  Phase two continued without incident

About the author:

E.J. Guiste is a trial and appeal law based in Toronto, Ontario.  He has an unwavering passion for equality and The Rule of Law.  He is the author of "A Catholic Lawyer's Prayer" - which can be found on this blog.  This prayer articulates the inherent fear and danger which lawyers dedicated to the proper defence of  their clients are exposed to as part of their duty as a lawyers.  Read it here !

NOTE:  This piece is written for the sole purpose of shedding light on an issue of public importance.  The views expressed here are the views of the writer on the subject and should by no means be interpreted as a form of disrespect to any institution or person involved in the issue.


Saturday, July 8, 2017

J.P. Foulds June, 2017 and Massiah 2015* Exposes Unconstitutionality and Attorney General Mis-step

   Re His Worship. Foulds 2013 is the Justices of the Peace Review Counsel's(JPRC) case in which that tribunal's policy of requiring justices of the peace in Ontario to "foot their own bill" was established.

   Both the JPRC's 2013 decision and the recent pronouncements in Re His Worship Foulds  June 21st, 2017 - where H.W. Foulds confirmed to the hearing panel seized with his current matter that he has been unable to retain counsel provides clear and compelling evidence that the Notice of Constitutional Question brought by J.P. Massiah in March, 2017 is sound and worthy of judicial consideration.

   J.P. Massiah's Notice of Constitutional Question asserts that the Justices of the Peace Act and its Procedures Document is unconstitutional because -

1.  Justices of the Peace in Ontario are denied security of tenure because Presenting Counsel is granted unfettered discretion to draft a Notice of Hearing which could exceed and potentially have no relationship to the "complaint in writing" which is the initiating jurisdictional document;

2.  The existing system of indemnification has the potential to interfere with a justices of the peace's right to counsel in that it compensates some judicial officers and not others in an arbitrary manner which creates an unfettered discretion whereby lawyers may be faced with potential discipline and non-payment for simply discharging their duties as lawyers - as were counsel E.J. Guiste and Jeff House. Mr. House was not referred to the Law Society for discipline.  Furthermore, the Attorney General is not compelled to pay on any recommendation under the Justices of the Peace Act as is the case with recommendations to compensate for the legal costs incurred by Ontario Court of Justice judges under the Courts of Justice Act.

   Readers will recall that His Worship Fould's hearing was adjourned on February 14, 2017 to June 20th, 2017 in order to allow him to retain counsel to defend the judicial misconduct allegations brought against him.

   It ought to be clear to our law and policy makers in Ontario that it is not enough that justices of the peace in Ontario have an illusory right to counsel to defend themselves in judicial misconduct proceedings through the "foot their own bill policy". The Rule of Law and the constitutional principle of Judicial Independence is meaningless if our justices of the peace can be subject to complaints of judicial misconduct and removal from office without actually being able to have counsel to defend their offices.  The "foot their own bill" policy may sell newspapers and resonate with some constituents in the community who are fixated on the goal of curbing runaway government spending at any cost but it is not by any means sound law.

The Toronto Star Calls
for Public Funding:

   Yesterday The Toronto Star published an editorial calling for the Ontario Government to fund families at inquests into police shootings. In a succinctly worded piece recognizing the significant public interest role played by counsel representing the victims of police shootings that paper advocated for the Ontario Government to provide public funding to enable these families to retain counsel to advocate this important perspective at inquests. In making this point The Toronto Star raised the following question: So why would the government appear to  be committed to funding a system that isn't designed to challenge the SIU or police officers ?

   Clearly, the same question can and should be raised with respect to the Justices of
the Peace Review Council's "foot-your-own bill" policy with respect to the Attorney
General providing funding to enable Justices of the Peace to defend their office at
judicial misconduct hearings.  This is not revolutionary rhetoric from E.J. Guiste.
Indeed, the United Nations policies call for proper funding of the administration of
justice for such matters.  Why would the government appear to be committed to
funding a system that isn't designed to allow justices of the peace in Ontario access
to counsel to defend allegations of judicial misconduct ?

   The question is even stronger in the specific case of J.P. Massiah.
Why would the Attorney General pay counsel for J.P. Massiah in his
first hearing directly and then not pay counsel in his current proceeding after a
hotly contested hearing which saw the Association of Justices of the Peace of Ontario,
The Toronto Star and The Sun granted intervener status ?

Divisional Court Found
Foulds 2013 Based on 
Flawed Premise:
(Massiah 2015*)

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

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

Attorney General Silent ?:

   The more pressing question is why are the legal costs of some J.Ps covered by the Attorney General and not others ?  Why were J.P. Massiah's legal costs paid to his lawyers directly by the Attorney General following his first proceeding but not in the second ?  Why did the Attorney General or Government of Ontario fund the prosecution of two judicial misconduct proceedings on J.P. Massiah when the second was based on similar facts which pre-dated the first disposition, clearly exceeded what was found to be the complaint and disregarded established legal principles involving among others Hryciuk  v. Ontario and the Human Rights Code jurisprudence from the Court of Appeal for Ontario and the Divisional Court ?

Not a Single
Public Complaint:

   This is troubling especially when one considers that not a single member of the public has filed any complaint against J.P. Massiah. The first complaint came from the Director of Court Operations at the Ministry of the Attorney General and was copied to the Deputy Attorney General - now counsel to Henein Hutchison LLP and the second complaint came from Mr. Doug Hunt, Q.C. - Presenting Counsel in J.P. Massiah's first hearing and according to fresh evidence recently put before the Ontario Court of Appeal* - a former Assistant Attorney General for Ontario and a law partner with current Presenting Counsel's spouse in and around the time of his complaint to the JPRC.

Attorney General at ONCA:
(Massiah v. JPRC)

[35]   The Attorney General submits that the statutory purpose of the Justices of the Peace Act is best achieved , not through the application of presumptions for or against compensation for legal costs incurred to respond to discipline proceedings, but through an objective and principled weighing of factors relevant to public confidence in the administration of justice.  Foulds  provides this set of factors and it was reasonable for the 2012 Hearing Panel to consider and apply it.

Ministry of the Attorney
General Act, R.S.O. :

s.5   The Attorney General,

(a)   is the Law Officer of the Executive Council;

(b)   shall see that the administration of public affairs is in accordance with the law;

(c)   shall superintend all matters concerned with the administration of justice in Ontario;

(g)   shall advise the heads of the ministries and agencies of Government upon all matters of law connected with such ministries and agencies;

(h)   shall superintend all matters connected with judicial offices;

Blacks Law Dictionary:

   To have charge and direction of; to direct the course and oversee the details; to regulate with authority; to manage; to oversee with the power of direction; to take care with authority.

About the author:

E.J. Guiste is a Catholic lawyer of African-Canadian descent in Toronto, Ontario.
He authored "A Catholic Lawyer's Prayer" as a result of his struggles in 
defending J.P. Massiah. He is a strong advocate for the Rule of Law and the
fundamental principle of Judicial Independence - without which Ontario is no
better than the "Banana Republics" that we have become so proud of sending
foreign aid to.

Mr. Guiste is once again counsel to J.P. Massiah in proceedings before the Ontario
Court of Appeal seeking to set aside the JPRC Hearing Panel's findings of liability
and penalty on among other grounds that the "record of proceedings" filed with the
appellate courts was deficient and prevented appellate consideration of the issues
of jurisdiction and abuse of process raised as well as the constitutionality of the
Justices of the Peace Act generally as was well as its application in the case.

A motion filed with the Court of Appeal for Ontario on June 30th, 2017 asks that 
court to determine whether the JPRC's counsel are in a conflict of interest.
Evidence in support of the motion shows they drafted the subject Notice of Hearing
, presented the case before the Hearing Panel, and failed to call Mr. Hunt,
the complainant at the subject hearing - in circumstances where fresh evidence reveals
that current Presenting Counsel's spouse was a law partner in Mr. Hunt's law firm -
thereby depriving J.P. Massiah of confronting the complainant on his intention to
complain about his conduct only to vigorously defend their actions in the 
appellate courts in a tone and manner inconsistent with the Court of 
Appeal for Ontario's ruling in Ontario (Children's Lawyer)  v.  Ontario 
(Information and Privacy Commissioner) 75 O.R. (3d) 309 [2005] O.J. No. 
1426 (ONCA).

Mr. Guiste believes that the issues in this case are issues of public importance and that
transparency and full disclosure is in the public interest and part of his duty as a lawyer
in a free and democratic society. This publication is made in the good faith belief that
justice must be seen to be done.

NOTE:  The issues raised in this publication are issues raised in a motion filed by E.J.
Guiste on behalf of J.P. Massiah in Ontario Court File No. M47083 on June 30th, 2017.
These issues are awaiting disposition and have yet to be judicially pronounced upon. 

Sunday, June 18, 2017

Defending an Allegation of Professional Misconduct ?

   Next to the defence of one's liberty, the defence of one's professional status and reputation is easily the most serious legal proceeding that one could be involved in.  Aside from the obvious potential loss of one's livelihood, professional misconduct proceedings have the added ability to significantly destroy one's years of developing and establishing one's professional reputation and financial security as well as potentially permanently impacting one's physical and mental health.

   Here are a couple important tips you may wish to consider should you be placed in a position where you require counsel to defend against a complaint of professional misconduct from your profession's governing body in Ontario.

1.  Research your lawyer carefully:

   Individual's facing professional misconduct frequently retain their lawyers through word of mouth from others in their profession without any independent research on the lawyer.  In doing so, they may unwittingly deprive themselves of the benefit of counsel on the unique factual circumstances of their situation.

Jurisdictional Irregularities:

   For example, the case may involve irregularities in the complaint or adjudicative process which may deprive the adjudicative body of jurisdiction to adjudicate the complaint.  The failure to raise such an irregularity before the adjudicative body at the outset will typically deprive the professional of the right to raise this fundamental issue on appeal or judicial review. The investigative or adjudicative body may be improperly constituted.  There may be an issue surrounding the sufficiency of the  "complaint" filed with the regulatory body.

Bias and Conflict of Interest:

   Another fundamental issue in the defence of a professional misconduct complaint is bias and conflict of interest involving either the adjudicators or the lawyers with carriage of prosecuting the complaint before the adjudicative body.  In our system of law bias denudes an administrative tribunal or court of jurisdiction.  This means that any decision made by a biased tribunal or court is a nullity. Our law is clear that bias must be raised promptly otherwise the ability to raise it on appeal or judicial review may be lost.

2.   Get a Second and Even
      A Third Opinion:

   If your situation involves either of the two issues noted above, you will want to seek out lawyers who have experience with these types of legal issues.  There is nothing wrong with getting a second opinion.  In fact, getting a second and even a third opinion is not only sensible but it may save you your profession and not to mention a lot of money in the long rune.  If one has a toothache one does not consult a gynecologist.

3.   Be mindful of costs.

   The defence of professional misconduct proceedings in Ontario is very expensive and can easily bankrupt most professionals.  This is because the professional must not only pay for his or her counsel but they must also pay for the governing body's costs associated with prosecuting them should they be found liable.  Just a few weeks ago the College of Physicians and Surgeons of Ontario revoked the liscense of a doctor and ordered him to pay some $300,000 in costs. It is safe to say that the costs of his own lawyer would be slightly lower than that of the governing body.

   It is not uncommon for clients to be forced to defend allegations without counsel once their financial resources run out.  Legal Aid Ontario does not fund these proceedings.  It is vitally important to get a good sense of the ultimate costs associated with the proceedings as early as possible and to negotiate a retainer agreement which will assist in seeing you through the proceedings.

Thursday, June 8, 2017

Problems with gender, racial or sexual harassment at your police service ?

   The right to be free from discrimination and harassment based on the prohibited grounds under the Ontario Human Rights Code provides strong and effective remedies when properly litigated with the help of an experienced human rights lawyer.  The fact that you are a probationary officer is not an impediment.  I secured reinstatement for a dismissed probationary officer under the Code seven years after his dismissal and as a second class constable.

   Employees experiencing these problems often do not receive the full support of their bargaining agents.  If you have questions or concerns in this area, feel free to call me for a consultation.

E.J. Guiste - 416 - 364-8908