Wednesday, May 4, 2016

Are Ontario Lawyers Protected from Harassment and Discrimination ? Law Society Condemns Treatment of Lawyers in 4 Asian Countries

    The Law Society of Upper Canada recently expressed "grave concerns about the harassment of lawyers" in four Asian countries urging that the states of China, Malaysia, Thailand and Indonesia comply with Articles 16 and 23 of the United Nations' Basic Principles on the Role of Lawyers. For the sake of brevity and clarity I will quote directly from the Law Society's publications with respect to China.  The expressions of "grave concern" are substantially of the same nature and quality with respect to the other countries and lawyers.  Interested readers can visit the Law Society website directly for the full publications involving the other lawyers and countries.

China:

     The Law Society of Upper Canada expresses grave concerns about the harassment of human rights lawyer Zhang Kai in China.

     Zhang Kai is a prominent Beijing human rights lawyer.  On 25 August 2015, Zhang Kai was arrested in Wenzhous, Zheijiang Province, while advising a congregation faced with orders to remove the cross from their church.  The arrest occured just hours before Zhang Kai was due to meet an American State Department official to discuss religious freedom in China.

     After his arrest, Zhang Kai was placed under residential surveillance in an undisclosed location with an order to detain him for up to six months.  Zhang Kai was not heard from again until 25 February 2016 when he appeared on state television in a taped confession.  In the video, Zhang Kai expressed remorse and admitted to conspiring with foreign groups in order to stir up religious unrest in China.  He also claimed to have received payment from China Aid to defend churches and other Christian organizations.

     After the broadcast, Zhang Kai was charged with "endangering state secrets" and "gathering a crown to disturb public order"; thereafter, Zhang Kai was transferred from residential surveillance to criminal detention.  His parents were informed of the transfer on 28 February 2016.

     On 23 March 2016, Zhang Kai posted on WeChat and Weibo saying that he had been "safely returned to his hometown in Inner Mongolia."  His comments on social media do not provide reasons for his sudden release.

     The Law Society of Upper Canada urges the government of China to comply with Articles 16 and 23 of the United Nations' Basic Principles on the Role of Lawyers.

Article 16 states:

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

Moreover, Article 23 states:

Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.  In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization.

The Law Society urges the government of China to:

a.   Put an end to all acts of harassment against Zhang Kai as well as other human rights lawyers and defendants in China:

b.   Guarantee in all circumstances the physical and psychological safety and integrity of Zhang Kai;

c.   Guarantee all the procedural rights that should be accorded to Zhang Kai; and

d.  Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments.


For more information, please contact Susan Tonkin, Communications Advisor - Media Relations, at 416 947-7605 or stonkin@lsuc.on.ca

Sunday, May 1, 2016

Lack of Transparency in S.I.U. Operations and Failure to Disclose Loku Report Indefensible

     The Ontario Government's refusal to fully disclose the S.I. U report into the death of Andrew Loku is plain and simply indefensible in a free and democratic society governed by The Rule of Law. Rather than taking this opportunity to promote racial equality by "putting their money where their mouth is" the Government of Ontario has consciously and deliberately elected to maintain the status quo and follow the path of history.

     History shows us that what is fair and just is almost always resisted by governments of the day. Here are a few examples:  Apartheid in South Africa; the vote for women - even in Ontario; Civil rights for African-Americans and Equality and fairness for Canada's Aboriginal Peoples.  Each and everyone of these events/social conditions were likewise resisted by the governments of their day.

     The Ontario Government's position on the Loku Report and civilian oversight on police actions in Ontario suggests that they are not yet ready ready for real change on this issue and the broader issue of racial equality.  The issue of civilian oversight in Ontario is inextricably linked to race.  Their failure to address this glaring social problem seriously undermines their recent public pronouncements on addressing the racial discrimination problem in Ontario facing African-Canadians.

   

Wednesday, April 20, 2016

Canadian Judicial Council Affirms Paramount Importance of Notice and Fairness in Not Recommending Removal for Justice Girouard

     As expected, the Canadian Judicial Council has today concluded that the majority's decision recommending Justice Girouard's removal based on his testimony in his judicial misconduct hearing is untenable.  Accordingly, the Council has recommended that Justice Girouard not be removed from office.

     Today's decision affirms one of the fundamental principles in judicial misconduct proceedings, namely, a judicial officer can not be removed from office for matters which were not first the subject of a proper complaint and investigation by a review body  with a full opportunity to respond in a hearing.

     In Ontario the leading case on this fundamental point is Hryciuk  v. Ontario 1996 Canli 4013 (ONCA).  Simply put - a judicial officer can not be removed from office on the basis of how he or she testifies or decides to conduct their defence.  The following excerpts from the Report of the Canadian Judicial Council to the Minister of Justice explains in clear and simple language the underlying rationale for this:

[42]   In this Report, we do not consider the majority's conclusion that the judge attempted to mislead the Committee by concealing the truth and that such conduct places him in a position incompatible with the execution of his office.  The Council takes this approach because the judge was not informed that the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.

[43]   Because the judge was entitled to this kind of notice and did not get it, the Council does not know whether the majority's concerns would have been resolved had it received an informed response to them from the judge.

Friday, April 15, 2016

How to Make a Complaint Against a Justice of the Peace: Excerpts from the Justices of the Peace Review Council Website


Making a Complaint

If you have a complaint of misconduct about a provincial judge or a justice of the peace, you must state your complaint in a signed letter.  The letter of complaint should include the date, time and place of the court hearing and as much detail as possible about why you feel there was misconduct.  If your complaint involves an incident outside the courtroom, please provide as much information as you can, in writing, about what you feel was misconduct on the part of the judge or justice of the peace.


Written complaints should be mailed or faxed to:

The Justices of the Peace Review Council
P.O. Box 914
Adelaide Street Postal Station
31 Adelaide Street East
Toronto,  Ontario
M5C 2K3

(416) 327-2339 Fax


http://www.ontariocourts.ca/ocj/conduct/do-you-have-a-complaint/

Thursday, April 14, 2016

Decisions Reveal Patent Inconsistency in Composition of Justices of the Peace Review Council Hearing Panels


   The Justices of the Peace Review Council was restructured in and around 2009 dispensing with the previous adjudicative format of a commission of inquiry and replacing it with the current format of a tripartite hearing panel chaired by a judge of the Ontario Court of Justice along with a justice of the peace and member who is either a judge, a lawyer or a community member.  In the past six years a total of nine cases have been adjudicated by this new body. Those cases are Barroilhet, Massiah I, Guberman, Phillips, Foulds, Kowarsky, Johnson, Spadafora and Massiah II.

     In this post I will analyse the nine cases which have been adjudicated under this newly restructured tripartite Hearing Panel system in order to identify any inconsistencies in the composition of the hearing panels.

Applicable Section of the Legislation:

s.11.1(1)    When a hearing is ordered under subsection 11(15), the chair of the Review Council shall establish a hearing panel from among the members of the Review Council to hold hearing in accordance with this section.

Composition:

(2)    A hearing panel shall be composed of,

(a)   a judge who shall chair the panel;

(b)   a justice of the peace; and

(c)   a member who is a judge, a lawyer or a member of the public.


Temporary Members

s.8(10)   The Chief Justice of the Ontario Court of Justice may appoint a judge or a justice of the peace who is not a member of the Review Council to be a temporary member of a complaints committee or a hearing panel in order to deal fully with a matter.


Composition of Hearing Panels:

  The language of the s.11.1(1) makes it clear that hearing panels are to be composed of "members of the Review Council."     Section 8(10) provides the Chief Justice with the jurisdiction to appoint a temporary member to sit on both complaints committees and hearing panels. Careful attention must be paid to the language of this grant.  It allows the Chief Justice to appoint a judge or a justice of the peace who is not a member of the Review Council to be a temporary member. The language is clearly limited to the singular with respect to the power of appointment.  Accordingly, it is doubtful that the Chief Justice could appoint two temporary members under this statutory language.  Let us examine how this new administrative body has been interpreting this new manner of operation over the years by looking at decided cases and the composition of the hearing panels.

The Decided Cases:

   In the first two cases, Barroilhet and Massiah I Mr. Douglas Hunt. Q.C. was Presenting Counsel.  In those two cases, both of which were fully contested, the composition of the Hearing Panels consisted exclusively of members of the Review Council.  In Barroilhet the hearing panel was composed of Justice Livingstone, Her Worship Mews and Lawyer, Margot Blight.  In Massiah I the hearing panel was composed of Justice Vaillancourt, Her Worship Rozon and community member, Dr. Phillips.

   In the next seven cases the composition of the Hearing Panels contained "temporary members" and even non-members of the Review Council.  Of the seven cases five were effectively guilty pleas and only two were contested hearings.  Let us examine the composition of the panels below.

H.W. Foulds(2013):

Panel composed of two temporary members, namely, Justice Agro and Regional Senior Justice of the Peace Leaman.  In this case only the community member, Dr. Emir Crowne was a member of the Review Council. In a recent correction to the JPRC Seventh Annual Report 2013 released in December, 2015 the Registrar of the Justices of the Peace Review Council has revealed that both Justice Agro and Regional Senior Justice of the Peace Leaman were appointed temporary members by the Chief Justice.

H.W. Phillips(2013):

In this case in which the justice of the peace was removed from office the panel contained a single member of the Review Council, Ms. Cherie Daniel, community member.  The chair of the panel Justice Taylor was a temporary member and Regional Senior Justice of the Peace Bryant was a non-member.  In a recent correction to the JPRC Seventh Annual Report 2013 released in December, 2015 the Registrar of the Justices of the Peace Review Council has revealed that Justice Taylor was appointed a temporary member by the Chief Justice.  No correction has been issued with respect to Regional Senior Justice of the Peace Bryant.

H.W. Kowarsky(2011):

In this case the chair of the hearing panel Justice Hawke does not appear to be a member or temporary member of the Review Council according to its publications to date.

H.W. Guberman(2011):

In this case H.W. Guberman resigned from office rather than face a hearing.  The hearing panel was composed of only one member of the Review Council.  Based on the Review Council's published public documents both the judge and justice of the peace on the panel were neither members or temporary members.

H. W. Massiah II(2013)*:

The Notice of Hearing in this case was issued in 2013.  In this case the hearing panel was composed of one member of the Review Council, namely, Ms. L. Foster, community member.  In a correction to the JPRC Seventh Annual Report 2013 released in December, 2015 the Registrar of the Justice of the Peace Review Council revealed that Justice Livingstone and His Worship Cuthbertson were both appointed temporary members by the Chief Justice.

H.W. Johnson (2014)*

The Notice of Hearing in this case appears to have been issued in 2014.  The Justices of the Peace Review Council has yet to publish its Annual Report and therefore it is impossible to know the status of the panel members in this case.

H.W. Spadofora:

Decisions on the Justices of the Peace Review Council website have not been accessible for several weeks now. This is the only place where the public can access these decisions. Once I have this decision in hand I may be able to look into the panel composition. I regret the inconvenience.

The JPRC website is now functional.  Two of the panel members, Justice Rosenberg and Community Member, Leonore Foster are members of the Review Council and the Justice of the Peace, Regional Senior Justice of the Peace Swords is not a member according to the 2013 Annual Report - which is the only way which members of the public can ever know who the Chief Justice appoints as a temporary member.

Analysis and Commentary:

   The above decisions reveal a clear inconsistency in the composition of the hearing panels adjudicating these judicial misconduct cases.  Despite the fact that there has been no legislative amendment to the Act between the Barroilhet and Massiah I rulings by this tribunal the composition of the hearing panels do not seem to accord with the plain and ordinary language of the legislation. Why ?  I do not profess to the know the answer to this question.  However, I believe that it is one that I have every reason and right to ask in our free and democratic society.











Wednesday, April 13, 2016

Lawyer's Prayer to St. Thomas More

     Dear Scholar and Martyre,
it was not the King of England
but you who were the true Defender of the Faith.

     Like Christ unjustly condemned,
neither promises nor threats could make you accept a civil ruler
     as head of the Christian Church.

Perfect in you honesty and love of truth,
grant that lawyers and judges may imitate you
and achieve true justice for all people.

Amen.

Monday, April 4, 2016

Kangaroo Court: Origins of the Term and Examples of its Application by the U.S. Supreme Court



Black's Law Dictionary
Fifth Edition:

Kangaroo court:  Term descriptive of a sham legal proceeding in which a person's rights are totally disregarded and in which the result is a foregone conclusion because of the bias of the court or other tribunal.


*West's Encyclopedia of American Law
Edition 2

Kangaroo Court: [Slang of U.S. origin] An unfair, biased or hasty judicial proceeding that ends in a harsh punishment; an unauthorized trial conducted by individuals who have taken the law into their own hands, such as those put on by vigilantes or prison inmates; a proceeding and its leaders who are considered sham, corrupt, and without regard for the law.

The concept of kangaroo court dates to the early nineteenth century.  Scholars trace its origin to the historical practice of itinerant judges on the U.S. frontier.  These roving judges were paid on the basis of how many trials they conducted, and in some instances their salary depended on the fines from the defendants they convicted.  The term kangaroo court comes from the image of these judges hopping from place to place, guided less by concern for justice than by the desire to wrap up as many trials as the day allowed.

Application by U.S. Supreme Court:

*The term is still in common usage by defendants, writers and scholars critical of a court or trial. The U.S. Supreme Court has also used it.  In Re Gault, 387 U.S.1, 87 S. Ct, 18 L. Ed 2d 527 (1967), a case that established that children in juvenile court have the right to due process, the Court reasoned, "Under our Constitution, the condition of being a boy does not justify a kangaroo court."  Associate Justice William O. Douglas once wrote, "Where police take matters into their own hands, size victims beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution.  It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court".(Williams   v. United States, 341 U.S. 97, 71 S. Ct. 576 95 L.Ed. 774 [1951]

In Rideau   v.  Louisiana 373 U.S. 723 (1963) the U.S. Supreme Court used the term kangaroo court in clear and forceful terms to denounce and overturn the conviction and death sentence of Wilbert Rideau for armed robbery, kidnapping and murder flowing from a trial where the local Sheriff televised a 20 minute interrogation and confession by Rideau and then had him arraigned. When counsel appointed for Rideau brought a motion for a change of venue the trial judge denied it. Rideau was convicted and sentenced to death.   The Supreme Court reasoned that it was a denial of due process of law to refuse the request for a change of venue after the people of the Parish had been exposed repeatedly and in depth to the spectacle of the petitioner personally confessing in detail to the crimes with which he was later to be charged.

In denouncing the filmed and televised confession, the court makes some instructive points which are of great help in appreciating the meaning of the term kangaroo court.  Here are some excerpts from the decision:

"Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.  In Brown   v.  Mississippi, 297 U.S. 278, this Court set aside murder convictions secured in a state trial with all the formalities of fair procedures, based upon "free and voluntary confessions" which in fact had been preceded by grossly brutal kangaroo court proceedings while the defendants were held in jail without counsel.  As Chief Justice Hughes wrote in that case, "The state is free to regulate the procedure of its courts in accordance with its own conceptions of policy....[But] it does not follow that it may substitute trial by ordeal." 297 U.S. at 297 U.S. 285 Cf. White  v. Texas, 310 U.S. 530.  That was almost a generation ago, in an era before the onrush of an electronic age.

The case now before us does not involve physical brutality.  The kangaroo court proceedings in this case involved a more subtle but no less real deprivation of due process of law.  Under our Constitution's guarantee of due process, a person accused of committing a crime is vouchsafed basic minimal rights. Among these are the right to counsel,  the right to plead not guilty and the right to be tried in a courtroom presided over by a judge.  Yet, in this case, the people of Calcasieu Parish saw and heard, not once but three times, a "trial" of Rideau in a jail, presided over by a sheriff, where there was no lawyer to advise Rideau of his right to stand mute."


NOTE: *This information is from htttp://legal-dictionary.thefreedictionary.com  It is by no means intended to represent an exhaustive discussion of the U.S. Supreme Court's use of the term.