Saturday, May 31, 2014

Re His Worship Massiah - Excerpts from April 9th, 2014 Proceedings and Excerpt from Panel's Bias Decison

Mr. Guiste:
(p.148-153 - April 9th, 2014)

     Thank you very much, Justice Livingstone.  I want first to say that I don't take the issue of raising objections lightly.  I've been around the block.  I've represented people not before this particular tribunal, but I have a very sound sense of how to proceed and when to make an objection and when not make an objection.

     And the rationale behind raising some objections, because I do both trials and appellate advocacy, and I know all too well that if you sit in a proceeding and there are irregularities that are going on, and you sit silent, you can be said to acquiesce in those and therefore maybe unable to assert his rights at a later date.  Another lawyer may pick up the file and be representing him and say well, Mr. Guiste didn't raise that issue and they could say he was ineffective.

     So I have a duty and with the greatest of respect, I understand your role, I respect all of you, and I do not want you to have the impression that somehow I am disrespectful of you or that I am discourteous to you.

     I recognize that in order for a legal system to work, there has to be effective communication between the parties, between the presenting counsel and the panel, and the defendant and the panel, and we all play different roles.

     And the impression that I am left with after my friend Mr. Gourlay made his submissions and I tried to interject was that it didn't matter what I had to say, that somehow it was more  important to you hear his full story without hearing my objection.

     That to me demonstrates a sort of -- and I don't want to allege that the panel is at this stage displaying an apprehension of bias, but what I'm concerned about is the channels of communication, the fairness of the process has to be apparent to third parties looking at this, and I can tell you that my feeling is, having sat and listened to him and you received what he had to say, although I tried to make objections that were quashed, leaves me with a sense that I am not getting a fair hearing ?  And we can leave that for another day.

     But I wish to now point out why I was objecting to what he was doing.  You will recall -- in my notes this is what I wrote, improper, my friend is arguing the motion.  The issue was a preliminary issue.  Adequacy of reasons of CC he said, not the role.  Justice of the Peace Massiah knows why a hearing was ordered.  Globally can be explored at a hearing, he told you.  Should go to a hearing.  One second.

     So Mr. Gourlay, it is my submission, went beyond the ambit of the issue we are dealing with.  Does the panel have jurisdiction to deal with the motion before His Worship ?  That was the question that Justice of the Peace Cuthbertson raised, and we came prepared, I had a written submission and so did my friend, on that issue.

     But my friend clearly went beyond that with the tribunal, the panel encouraging him, notwithstanding my efforts to circumscribe him.

     For example, he said a complaint was received from Mr. Hunt, an investigation was conducted, a decision was made for hearing, His Worship knows why he is here, you should dismiss the motion and proceed to a hearing.   No authority cited for natural justice, fairness, et cetera.  The motion will be supported by evidence, is what I've been trying to tell you.

     This is a preliminary stage on the question do have jurisdiction to entertain it, yes or no, and you might give your reasons.  Should you say yes, evidence is going to be called in support of the motion.  My friend can cross-examine on that evidence and we can have a fair hearing on that issue.

     But what my friend did was he exceeded that.  You allowed him to essentially argue the motion. Then he brought up the very inflammatory point about that you have to be mindful of the significant public costs of these proceedings.  That's an irrelevant consideration.

     So because the Ministry of the Attorney General and the Government of Ontario is paying presenting counsel's salary, because they want this to be rammed through and dealt with, done, guilty.  That's not why we're here.

     He said that you have to be mindful of the signficant public costs and insinuated that somehow because I am providing Justice Massiah with a defence fit for a justice and raising each and every issue that I can legitimately raise in his defense, somehow I am not doing my role as a lawyer, somehow I am being incivil.  There has been reference to me being incivil, wasting time, not complying with the rules.

     You will see that the issue that my friend raised about the late filing of the Justice's affidavit, the panel had said the 10th and I indicated in one of my submissions to you that it was difficult because we were doing the judicial review in and around the same time, February 12th, I was in court.

     So, at the end of the day I just wanted to be perfectly clear that Justice Massiah has a right to forcefully advance his position.  I as an advocate, I am the vehicle towards that.  I am fairly mindful of my role to be courteous to the panel and I believe I have been courteous to the panel.

     I apologize if the panel feels or presenting counsel feels that I am bringing too many legal issues, but I see that as my duty and I don't think I have to apologize, but if you feel that I'm giving you too much work, I apologize for that.

     But I think I have a legitimate duty in rising and making objections of this nature.  He clearly went beyond the ambit that we had agreed.  We're talking about rules, that I am not complying with rules.  Well, the reason we were here was on the small issue of does the panel have jurisdiction.  You allowed him to say a complaint was received from Mr. Hunt, an investigation was conducted, a decision was made, His Worship knows why he is here, you should dismiss the motion and proceed to a hearing.

     So, when he does that, he is foreclosing my ability to respond on very important points.  These points, I would submit, had to be calculated to put in his reply rather than in his opening so then I can't say anything.  That's unfair.  That's what I was trying to tell you, Madam Justice.


     Thank you, Mr. Guiste, for that speech.  I have heard the speech.  I accept your apology for your comments that have been disrespectful and inappropriate.  In my view there have been some both today and on previous dates.  I object to your position that this panel does not want to hear law and that you're concerned that you are giving us too much law.

Panel's Decision on this issue:

[21]     "The most egregious allegation of apprehension of bias was asserted by the Applicant's counsel against the Chair of the Hearing Panel in the oral submissions on May 28th, 2014.  He referred to the transcript of April 9, 2014.  On that day, in the course of submissions by Mr. Guiste on the issue of the Hearing Pane's jurisdiction, he suggested an apprehension of bias of the panel.  He is invited to briefly explain his concerns (Transcript April 9, 2014, p.147)  He provides a lengthy, broad-ranging explanation (Transcript, April 9, 2014, pp. 148 - 153), which includes the following statement: "I apologize if the panel feels or presenting counsel feels that I am bringing too may legal issues, but I see that as my duty and I don't think I have to apologize, but if you feel that I'm giving you too much work, I apologize for that. (Transcript April 9, 2014, p.152)

[22]     At the conclusion of Mr. Guiste's explanation, the Chair of the Hearing Panel states: "Thank you Mr. Guiste for that speech." (Transcript April 9th, 2014, p.153)

[23]     Mr. Guiste now alleges that the use of the word "speech" by way of a sarcastic comment to him, would cause a reasonable observer to believe that the Chair of the the Hearing Panel was biased - demonstrating disrespect to both His Worship and his counsel and their racial heritage, stereotyping Mr. Guiste as a black man on a soap box.  The Hearing Panel finds such an assertion completely offensive.

NOTE:  This piece is written for the sole purpose of drawing public attention to two issues of public importance.  Firstly, the manner of the initiation and adjudication of complaints of judicial misconduct against justices of the peace in Ontario.  The public must always be concerned about the fairness of this process and the mainstream media does a poor job of bringing these vital issues to the populace.  Secondly, the role of the lawyer in the proper execution of his duty.  Interested persons are invited to obtain a full transcript of the proceedings to date and to follow this very important case. Read the panel's ruling on bias along with the transcripts and the transcript of May 27, 28 and 29th, 2014 when the motion was argued. Readers are
also encouraged to read Michele Mandel's April 10th, 2014 piece in the Toronto Sun entitled Judge Can't Take Judgment.





A Catholic Lawyer's Prayer

Almighty God I pray for your guidance and protection as I discharge my duty as a lawyer.

 I cherish and take pride in this most honourable role that you have given me the
distinguished privilege to play in our free and democratic society.

 I am the guardian of my clients' rights and liberties.

 My clients look to me to assert their legal rights.

 I am sworn to protect my clients and The Rule of Law from government,
the police, tortfeasors and even the judiciary.

 The principle that the law must apply equally to all is my sword.

 Almighty God the discharge of my duty as a lawyer may give cause to observers and their
 supporters who wish to silence and harm me.  Almighty God protect me always from that cause.

 Almighty God I understand as a student of history that there is always a price which
accompanies  the fearless pursuit of justice and The Rule of Law.  Almighty God protect me from that agenda.

Amen !