Tuesday, August 2, 2016

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

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

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

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

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


JP Barroilhet(July 2009):

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

JP Phillips(July 2013):

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

JP Massiah (January 2015):

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


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

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

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





Wednesday, July 27, 2016

"Freedom" By Montano St. Jules

(click to enlarge)

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

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

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


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

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


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

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

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

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

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


Monday, July 25, 2016

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



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


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

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

A.   Yes I did.

Q.   Do you believe the sex was consensual ?

A.  Yes, there's no doubt in my mind.

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

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

A.  Yes, I do.

Q.   And why did you think that ?

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

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

A.   No, there wasn't.

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

A.   No.

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

A.  No, definitely not.

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

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

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

A.   No.

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

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

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

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

A.  No, not at all.

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

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

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


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

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

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

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

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

R   v.  Gravesande  2015 
ONCA 774:

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


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

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

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


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






   

Friday, July 22, 2016

Do the Reasons in R v. Ururyar Reveal Legal Error ?

     I have read the Reasons for Judgment in R  v. Mustafa Ururyar (July 21, 2016) and I must confess that I am of the view that they tend to reveal serious legal error rather than any ground-breaking advancement in our criminal law.  Perhaps the most significant error which jumps out at me from the Reasons for Judgment is the appearance that the trial judge goes to unreasonable lengths to embrace hollus bolus what I will describe as the emerging "victim-focused" theory of liability.  Paragraphs 489-508 inclusive of the Reasons recite a series of propositions and academic writings which appear to be entirely without any contextual application to the facts of the case or submitted by counsel for the parties.  Clearly, if these references were not raised by the litigants but by the trial judge they may prove to be problematic to the decision withstanding appellate review.  It is also clear on a proper reading of the Reasons that the trial judge's conclusion that the defences of consent and honest but mistaken belief in consent were abandoned appear to be in error.

Victim-Focused
Theory of Liability:

     The "victim-focused" theory of liability in sexual assault and sexual harassment cases is a theory of liability founded on the assumption that the subjective perceptions of the victim of these acts or omissions is what should govern in adjudicating these matters. In the sexual harassment context, the oft-cited articulation of this theory of liability is the Court of Appeal's obiter in Bannister  v. General Motors 40 O.R. (3d) 577: "No female should be called upon to defend their dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented.  It is an abuse of power for a supervisor to condone or participate in such conduct."   As I have argued elsewhere, tribunals like the Justices of the Peace Review Council and others have taken this quote to dispense with the consent defence or "vexatious" and "unwelcome" statutory defence to sexual harassment under the Human Rights Code (see for example Re His Worship Massiah (2015)). For their purposes it is sufficient that the recipient is "uncomfortable" and does not by word or conduct have to signal any disapproval with the act or utterance to the perpetrator.  The following passages from Zuker J's Reasons for Judgement in R  v.  Ururyar clearly seem to adopt this theory of liability:

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

[482]     Further since (it never took place) consent is a non-issue, there is no factual foundation, if argued, of any defence of honest, but mistaken belief in consent, although this defence was not advanced at trial.  see supra, R  v.  Ewanchuk, [1999] 1 S.C.R. 330, at paras. 41-49

[492]     Without consent, "No", means "No", no matter what the situation or circumstances.  It doesn't matter if the victim was drinking, out at night along, sexually exploited, on a date with the perpetrator, or how the victim dressed.  No one askes to be raped.  The responsibility and blame lie with the perpetrator who takes advantage of a vulnerable victim or violates the victim's trust to commit the crime of assault.

 Consent Actually
A Live issue on trial:

     The following excerpts from the Reasons for Judgement show that consent and honest but mistaken belief in consent were in fact live issues at trial:

[227]     To find the accused guilty of sexual assault, the Crown must prove each of the following elements beyond a reasonable doubt.

i.   That Mr. Ururyar intentionally applied force to Ms. Gray;

ii   That Ms. Gray did not consent to the force that Mr. Ururyar applied;

iii   That Mr. Ururyar knew that Mr. Gray did not consent to the force that applied; and

iv   That the force that Mr. Ururyar applied took place in circumstances of a sexual naurre.

[228]   If the Crown has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. Ururyar not guilty of sexual assault.

[242]   To determine Mr. Ururyar's state of mind he knew about Ms. Gray's consent or lack of it, I must consider all the evidence.

[243]   I must consider their words and conduct before, at the time and after Mr. Ururyar applied force to Ms. Gray.

[244]   If I have a reasonable doubt that Mr. Ururyar knew that Ms. Gray did not consent to the force that Mr. Ururyar applied, then I must find Mr. Ururyar not guilty.
   

Defence Counsel
Did Not Abandon
Consent or Honest
But Mistaken Belief
in Consent:

[353]   MS. BRISTOW:  "Right. But if you don't believe his evidence, just based on Ms. Grey's evidence, in my submission, there is enough there to raise a reasonable doubt as to whether or not there was an honest but mistaken belief in consent. just based on what Ms. Grey said happened.











Saturday, July 16, 2016

Part II - Lack of Racial Diversity at Ontario's Judicial Misconduct Bodies: The Justices of the Peace Review Council

     If the Government of Ontario is serious about combating racism and systemic discrimination one of the first and most effective steps in this direction is to review the staffing and operation of its agencies and tribunals to ensure that they reflect the population which they serve and most importantly who fund them. If we have learned anything from the movement for gender equality in the administration for justice over the past twenty years it is that is in the public interest.

     In this the second post on the bodies dealing with judicial misconduct, I will focus on the Justices of the Peace Review Council.  The Justices of the Peace Review Council is the body established by the Government of Ontario to investigate and adjudicate complaints of professional misconduct against justices of the peace in Ontario.  Justices of the peace are judicial officers who adjudicate bail hearings, Provincial Offences Act matters, preside over criminal set court and various other matters. The Supreme Court of Canada has ruled that their office is subject to the well established constitutional principle of judicial independence.(see Ell  v. Alberta 1 S.C.R.. 867)

     The Justices of the Peace Review Council is composed of a council consisting of members from the judiciary, the legal profession and community members.  Cases referred to a hearing following the investigation of a complaint are presented or prosecuted by a lawyer retained by the Review Council who is refereed to as Presenting Counsel.  The lawyer defending the justice of the peace at a hearing is referred to as Responding Counsel.  These lawyers are retained by the justice of the peace and in accordance with constitutional practice and tradition under the financial component of judicial independence the Attorney General indemnifies the justice of the peace for the cost of his or her defence. (see for example - Re Blackburn(1994), Re Romain (2002), Re Obakata (2003), Re Sinai (2008), Re Quon (2007), Re Kowarsky (2012) and Re Massiah (2012))

     I will review the composition of this administrative body looking at the racial composition of judicial members, lawyer members, community members, Presenting Counsel and Responding Counsel based upon the JPRC's published Annual Reports and their decisions.

Judicial Members:

     The latest publication of the JPRC's Annual Report to the Attorney General reveals  the following judicial members:  Chief Justice of the Ontario Court of Justice - Chief Justice Annemarie Bonkalo; Associate Chief Justice Co-Ordinator of Justices of the Peace - The Honourable Justice John A. Payne (until September 2, 2013); The Honourable Faith Finnested (effective September 2, 2013);
3 Justices of the Peace appointed by the Chief Justice of the OCJ - HW Hudson, HW Ralph and HW Rozon; 2 judges of the OCJ appointed by the Chief Justice of the OCJ - Justice Rosenberg and Justice Vailancourt; Regional Senior Justice of the Peace - HW Bryant.

Observation:

     Of the 9 regular judicial members on this council all but one is of Euro-Canadian - HW Hudson is African-Canadian.  There are no Indo-Candians, no Asian-Canadians and no Aboriginals sitting on this council according to its published Annual Report.  Although we are now in 2016, the latest Annual Report which this council has published is 2013.

Temporary Judicial Members:

     In addition to the regular members on this council, the Chief Justice of the Ontario Court of Justice appears to have some jurisdiction to appoint temporary judicial members to sit as members of complaints committees or hearing panels.  The following are the temporary members so appointed in the 2013 year of business according to the Correction to the JPRC Seventh Annual Report 2013:

Justice Agro, Justice Carr, Justice DeMarco, Regional Senior Justice Leaman, Justice Livingstone, Justice Payne, Her Worship Rozon, Justice Paul Taylor and His Worship Cuthbertson.

Observation:

     Of the 9 temporary judicial members appointed to this council by the Chief Justice all of them are of Euro-Canadian.

Lawyer member - Margot Blight (reappointed June 2013 for four years).

Observation:

     The lawyer member is a Euro-Canadian.

Community members - Dr. E. Crowne, Cheri A. Daniel, M. Phillips, S. Silver (until May 1, 2013) and Leonore Foster (effective May 29, 2013)

Observation:

     It would appear that 4 individuals are appointed through the Public Appointments Secretariat to sit on this council.  The JPRC Annual Report for 2013 shows two African-Canadians, one Indo-Canadian and a person of European descent or Euro-Canadian. The Euro-Canadian's appointment ended on May 1, 2013 and was replaced by another Euro-Canadian effective May 29, 2013.

     Again, just as with the Ontario Judicial Council the Government of Ontario has clearly sought to have these members reflect the community served and funded by the them.  Regrettably, these members have little or no influence on the adjudication of judicial misconduct complaints.

Presenting Counsel:

     Like its sister body the Ontario Judicial Council, JPRC records reveal that every single lawyer appointed as Presenting Counsel to present cases before this administrative body since 1994 has been Euro-Canadian.

Responding Counsel:

     JPRC records reveal that since 1994 some 14 hearings into the conduct of justices of the peace have taken place before this administrative body.  In all but three of these public hearings Responding Counsel - i.e. the lawyer defending the justice of the peace was a Euro-Canadian.


Commentary:

     It is now conventional wisdom that diversity in the administration of justice is clearly in the public interest.  No sensible person could argue against the goal of increasing the representation of both women and the vastly underrepresented racial groups which make up our community.  One could make a very strong and cogent argument that it is simply wrong to promote one group at the expense of the other.

     Ontario has had no difficulty in raising the number of women in virtually every aspect of the administration justice over the past twenty years.  Regrettably, the same can not be said for raising the representation of the various racial groups which make up the Ontario population and who fund the administration of justice. This represents a serious short-coming on the part of our government. We need to do better. We can do better.  Attacking and remedying this serious social problem will go a long way in making Ontario a better, stronger and more vibrant society for all of us.

NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance. If any of the facts in this piece are in error this was not intentional and the writer is committed to correcting any of them. The point of the piece is not to point fingers but to hightlight
where we we can do better.


     

   

   

     

   


Tuesday, July 12, 2016

It is a Privilege and Not a Right: Two Famous Quotes From our Past

Excerpts from Argument Against Women's 
Suffrage, 1911 by J. B. Sandford, Chairman
of Democratic Caucus :

     Suffrage is not a right.  It is a privilege that may or may not be granted.  Politics is no place for a woman consequently the privilege should not be granted to her.....

     Woman suffrage has been proved a failure in states that have tried it.  It is wrong. California should profit from the mistakes of other states. Not one reform has equal suffrage effected.  On the contrary, statistics go to show that in most equal suffrage states, Colorado particularly, that divorces have greatly increased since the adoption of the equal suffrage amendment, showing that it has been a home destroyer.  Crime has also increased due to lack of the mothers in the home.


William Lyon MacKenzie King - Prime Minister of Canada:

     "It is not a fundamental human right of any alien to enter Canada. It is a privilege."