Saturday, January 17, 2015

Justice of the Peace Massiah's Factum on His Motion for an Interim Publication Ban

     One of the cornerstones of our system of justice is that a person who stands accused has a right to counsel and a right to defend themselves in a fair and impartial hearing.  In my view, those rights are especially important in the context of allegations of judicial misconduct and particularly where those allegations are premised on the right of court employees to be free from sexual harassment in the workplace.  The Court of Appeal for Ontario recognized the high level of scrutiny which trial judges must subject allegations of racial discrimination asserting a poisoned  work environment.  It is reasonable that sexual harassment would deserve equal scrutiny.   The following is what Cronk J.A. said on this point:

 [4]     An  allegation  of  discriminatory  treatment  in  the  workplace  due to racism is  a serious claim that implicates the reputational and employment interests of the  claimant, as well as those of the alleged perpetrators.  It  can  also  affect  the   dignity, self-worth and health of both the alleged victim  and  those  accused  of  racist conduct. An  allegation  of  this  type  can  reverberate  for  many  years  after                           the incident or  incidents  in  question,  with  potentially  long-term  consequences  for  all  concerned.
[5] No less serious are judicial findings of racially-motivated conduct  in  the workplace  and a poisoned  work  environment due  to   racism.   Judicial consideration of an  allegation  of  constructive  dismissal  based  on  alleged  racism  in the workplace requires careful scrutiny of and balanced attention to all the evidence relating to the allegation in order  to  determine  whether  it is  more likely  than  not that  the  alleged   racism occurred.

     As I have stated elsewhere, my first observation and order of business on being called upon to assist Justice of the Peace Massiah was that the legality of the very complaints and the process to bringing the case to a hearing was in issue.  Accordingly, I brought the appropriate motion in July, 2013 in accordance with my duty to him as a lawyer.

     A lawyer retained to defend a judicial officer on allegations of judicial misconduct founded upon a violation of the rights of unionized court employees to be free from sexual harassment under the Ontario Human Rights Code's commits serious professional misconduct by failing to serve his client if he or she does not take steps to seek a publication ban - at least on an interim basis.

     Accordingly, the record in the proceedings show that I brought a motion on behalf of His Worship Massiah seeking a publication ban "prohibiting publication of the allegations in the Notice of Hearing until the questions of their legality and the jurisdiction of the panel to entertain them is conclusively determined in law".

     The Hearing Panel heard the motion in November, 2013.   They reserved on their decision which they released on April 11th, 2014.

     I have attached below a copy of the factum I prepared on behalf of His Worship Massiah and submitted to the Hearing Panel on the motion.

                                                             File No.: 05-22-041/11PD2

IN THE MATTER OF a complaint(s) respecting
Justice of the Peace in the
Central East Region



1.         This Applicant seeks an order to cure the irresponsible, sensational, scandalous and
defamatory publication of the allegations in this proceeding to date.  The failure to cure these
transgressions threatens to undermine the very integrity and legitimacy of the adjudication 
process itself.

2.         During the course of a public inquiry involving the Applicant which resulted in Reasons for
Disposition dated April 12th, 2012 Presenting Counsel “received calls from a number of individuals
who work at the courthouse located at 604 Rossland Road in Whitby.  Those individuals provided
information regarding their interactions with Justice of the Peace Massiah…. And therefore we are
transmitting it to the Council for its consideration.”

                                                Applicant’s Motion Record – Report to the JPRC – Mr. Hunt’s
                                                Letter of November 3rd, 2011 – Tab 2 – Tab A
3.         Presenting Counsel failed to inform the individuals noted above about the role of the 
JPRC and refer them there as mandated by s.10.2(3) of the Justice of the Peace Act.

                                                            As above

4.         “I am writing to confirm whether the information has been forwarded for the Council’s
consideration as a new complaint ?” wrote the Registrar for the JPRC in response to Presenting
Counsel’s correspondence.

                                                            As above- Registrar’s letter dated Nov.3/11 – Tab B

5.         By letter dated January 2nd, 2013 the Registrar wrote to the Applicant particularizing the
Alleged complaints and requesting an answer from him.

                                                            As above – Registrar’s letter dated Jan.2nd/13 – Tab 3

6.         On May 31st, 2013 the Registrar issued a 15 count Notice of Hearing (NOH) from the 
JPRC.  This NOH included seven additional counts of misconduct not raised in the Registrar’s 
letter dated January 2nd, 2013.

                                                            As above – Notice of Hearing – Tab 6

 7.         The Applicant has filed a motion seeking a dismissal/stay of the allegations against him 
on two grounds, namely, jurisdictional and abuse of process.  The allegations not having been
brought in the manner prescribed by the Justice of the Peace Act are not complaints in accordance
with the legislation and consequently the JPRC has no jurisdiction to entertain them.  Secondly, 
the manner of the investigation conducted on the allegations combined with the fact that these
allegations mirror complaints for which the Applicant was already sanctioned and cover the same
period of time make the Applicant’s continued prosecution and abuse of process.

                                                            Applicant’s Motion Record – Abuse of Process
Legality of “complaints”
in question:

8.         The question as to whether or not the allegations in the NOH were brought in accordance 
with law and are “complaints” as that term is used in s.10.2 of the  Justice of the Peace Act is a live
issue to be adjudicated by the panel.

The publications to date:

8.         Since the commencement of these proceedings three media outlets have published stories 
on the case against the Applicant.  All of them have published the allegations against the Applicant 
as if they are fact without any disclaimer when in fact the panel has yet to rule on them.

                                                Oshawa JP who sexually harassed staff faces new complaints
                                                JP facing fresh sexual harassment complaints
                                                Justices of the Pease appear before review council

                                                             PART III - THE ISSUES & LAW:
8.         THE ISSUES

1.         Does the panel have the jurisdiction to grant the relief sought by the Applicant ?   

2.         Do the unique circumstances of this case warrant the panel’s exercise of their jurisdiction for        the order sought by the Applicant ?

                                                            PART III - THE LAW:
                                    “If an order was made under subsection 9 and the panel dismisses
                                    the complaint with a finding that it was unfounded, the justice of the
                                    peace shall not be indentified in the report without his or her consent
                                    and the panel shall order that information that relates to the complaint
                                    and might identify the justice of the peace shall never be made
                                    public without his or her consent.”
                                                            Justices of the Peace Act, s.11.1(21)

 10.                               “A publication ban should only be ordered when such an order
                                    is necessary to prevent a serious risk to the proper administration
                                    of justice, because reasonable alternative measures will not prevent
                                    the risk, and when 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.”

                                                            R    v.   MENTUCK [2001] 3 S.C.R. 442   

11.       IT IS RESPECTFULLY SUBMITTED THAT - where as here – the legality of the
“complaints” and the jurisdiction of this panel to entertain them is in issue it is not only wise
but in the public interest and the interest of the administration of justice to curb the right to
publish to the extent necessary to do justice.  Justice can not be done if the media is permitted
to publish “willy nilly”.  To do otherwise would be contrary to the Rule of Law, natural justice and

           12.        The Applicant requests an order prohibiting publication of the allegations in the NOH until the questions(sic) of their legality and the jurisdiction of the panel to entertain them is conclusively determined in law.

                                                                        ALL OF WHICH IS RESPECTFULLY SUBMITTED.
August 29th, 2013

                                                                        E. J. Guiste, Co-counsel for the Applicant


1.         R   v.  Mantuck [2001] 3 S.C.R. 442

2.         The three publications noted in the factum


1.         Justices of the Peace Act, 1990,  Ch. J.4s – s.10.2 – 11.1


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