Justices of the Peace Review Council
IN
THE MATTER OF A HEARING UNDER SECTION 11.1 OF
THE
JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4, AS AMENDED
Concerning a Complaint about the Conduct of Justice of the
Peace Errol Massiah
Before: The Honourable Justice Deborah K. Livingstone, Chair, Justice of the Peace Michael Cuthbertson and Ms. Leonore
Foster, Community Member
Hearing
Panel of the Justices of the Peace Review Council
REASONS FOR
DECISION
Counsel:
Ms. Marie Henein Mr.
Ernest J. Guiste
Mr. Matthew Gourlay E. J. Guiste
Professional Corporation
Henein Hutchison LLP Mr. Jeffry A. House
Presenting
Counsel Counsel
for His Worship Errol Massiah
Mr. James Morton Morton Karrass LLP
Counsel for the Association of Justices of the Peace of Ontario (Intervenor)
Counsel for the Association of Justices of the Peace of Ontario (Intervenor)
PUBLICATION BAN:
On June 11, 2014, this Panel made an order that the names of all witnesses
who appear in any of the facta or motion materials or application
records in this hearing shall not be
published, nor shall any information that might identify them be published.
Names of witnesses have been redacted.
REASONS FOR DECISION
Introduction
1. A complaints committee of the Justices of the
Peace Review Council, pursuant to Section 11(15)(c) of the Justices of the Peace Act, R.S.O. 1990,
c.J.4, as amended (the “Act”), ordered that a formal hearing
into a complaint regarding the conduct of Justice
of the Peace Errol Massiah
be held by a Hearing
Panel of the Review
Council under Section 11.1 of the Act.
2.
His Worship Massiah was appointed as a justice
of the peace on May 30, 2007.
3. The Notice of Hearing,
dated May 31, 2013, particularizes the complaint against His Worship Massiah that was ordered
to a hearing and is appended to these
reasons as Exhibit 1. The allegations involve
inappropriate conduct towards
and sexual harassment of female court staff, prosecutors and defendants.
4. A set-date
took place July 4, 2013 and after hearing and adjudicating upon a
number of pre-hearing motions, the Panel began hearing evidence on July 15, 2014.
5. Presenting
Counsel called thirteen witnesses. Counsel for His Worship called six witnesses, in addition to His Worship
Massiah, who testified on his own behalf.
6.
Written and oral submissions
were provided by counsel, with submissions
concluding on October 8, 2014.
7.
Presenting Counsel submits
that the evidence supports a finding of judicial
misconduct.
8.
His Worship Massiah was the
subject of a previous public hearing, which
concluded on March 1, 2012, in findings
of judicial misconduct. It is alleged
that the events presented in evidence before this Hearing Panel occurred
prior to the findings of judicial misconduct at the previous
hearing and at a different
court location.
The Law
Role of Presenting Counsel
9.
Pursuant
to section 4 of the Justices of the Peace Review Council’s Procedural Code for Hearings, established
pursuant to subsection 10(1) of the Act, Presenting Counsel’s duty before the Hearing
Panel is “not to seek a particular order against a respondent, but to see that the complaint against
the justice of the peace
is evaluated fairly
and dispassionately to the end of achieving a just result.”
Role of the Hearing Panel
10.
The Hearing Panel is to
determine whether the evidence presented in the hearing does or does not result in a finding of judicial misconduct
such that the complaint should be dismissed or one or more of the range of dispositions set out under section
11.1 (10) of the Act are
required in order to restore
public confidence in the judicial officer and in the judiciary.
Standard of Proof
11. We accept that the standard
of proof in this hearing
is that of civil cases,
on the balance of
probabilities. The Supreme Court of Canada set out the test in F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008
SCC 53 at paragraph 49:
[46] Similarly, evidence must always be sufficiently
clear, convincing and cogent to satisfy the balance of probabilities test.
But again, there is no objective standard to measure
sufficiency. In serious cases, like the
present, judges may be faced with evidence of events that are alleged to have
occurred many years before, where there is little other evidence
than that of the plaintiff
and defendant. As difficult as the task may be, the judge must make a decision. If a
responsible judge finds for the
plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that
judge that the plaintiff satisfied the balance
of probabilities test.
.....
[49] In the result, I would reaffirm that in civil cases
there is only one standard of proof
and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence
with care to determine whether it is more likely than not that an alleged event occurred.
12.
The Panel must ask itself: Is there credible
cogent and compelling evidence to satisfy the Panel that, on the balance of
probabilities, there was judicial
misconduct?
F.H. v. McDougall 2008
SCC 53; Law Society of Upper Canada v. Neinstein,
2010 ONCA 193.
Judicial Misconduct
13.
The Principles of Judicial Office for Justices of the Peace of the Ontario
Court of Justice have
been established pursuant to s. 13(1) of the Justices of the Peace Act
in order to provide guidance
on the conduct expected of justices of the
peace. For present purposes, the relevant principle is:
3.1 Justices of the peace should maintain their personal
conduct at a level which will ensure
the public’s trust and confidence.
14.
Because
of the unique role that judicial officers play in the constitutional democracy, the authority they enjoy, and the
esteem in which they are held, judges
and justices of the peace are expected to conduct themselves in exemplary fashion – not just in court, but outside of it as well. As the Supreme Court of Canada stated
in Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at paras. 110-11:
110. Accordingly,
the personal qualities, conduct and image that a judge projects affect those of the judicial system as a whole
and, therefore, the confidence that
the public places in it. Maintaining confidence on the part of the public
in its justice system ensures
its effectiveness and proper
functioning. But beyond that, public confidence promotes the general welfare and social peace by
maintaining the rule of law. In a paper written for its members, the Canadian
Judicial Council explains: Public confidence in and respect for the judiciary are essential
to an effective judicial system and, ultimately, to democracy founded on the rule of law. Many factors, including unfair or uninformed
criticism, or simple misunderstanding of the
judicial role, can adversely influence public confidence in and respect for the judiciary. Another factor
which is capable of undermining
Canadian Judicial Council, Ethical Principles for Judges (1998),p. 14
111. The
public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that
they give the appearance of that kind of conduct. They must be and must give
the appearance of being an example of impartiality, independence and integrity. What is
demanded of them is something far above what
is demanded of their fellow citizens.
15.
Hearing Panels established by
the Ontario Judicial Council have adopted the
principles set out in Therrien in
assessing whether judges of the Ontario Court
of Justice have engaged in
judicial misconduct:
[8] Based on Re:
Baldwin and Re: Evans, the test
for judicial misconduct combines two
related concerns: (1) public confidence; and (2) the integrity, impartiality and independence of the judge or the administration of justice. The first
concern requires that the Hearing Panel be mindful not only of the conduct in question, but also of the appearance
of that
conduct in the eyes of the public.
As noted in Therrien,
the public will at
least demand that a judge
give the appearance of integrity, impartiality and independence. Thus,
maintenance of public confidence in the judge
personally, and in the administration of justice generally, are central
considerations in evaluating impugned conduct. In addition, the conduct must be such that it implicates
the integrity, impartiality or independence
of the judiciary or the administration of justice.
Re Douglas (OJC, 2006)
16.
That same test has been
adopted and applied by Hearing Panels of the
Justices of the Peace Review Council.
Decision on Disposition Re
Barroilhet (JPRC, 2009); Reasons for Decision Re Foulds (JPRC, 2013); Reasons for Decision Re Phillips (JPRC,
2013); Reasons for Decision Re Johnston (JPRC, 2014)
17.
There is no difference
in the standards of conduct
that apply for judges and for
justices of the peace of the Ontario Court of Justice. Both are judicial
officers of the Court:
A justice of the peace in Ontario is a judicial officer
appointed pursuant to the Justices
of the Peace Act, R.S.O. 1990, C. J.4. This Act affirms that a justice of the peace has judicial
jurisdiction throughout Ontario and creates a framework under which
justices of the peace are appointed and
hold office, and also provides for the conditions under which they perform their duties...The judicial functions, powers and duties
of a justice of the peace are set out in legislation and
case law. Two of the more important
legislative Acts which confer jurisdiction upon a justice
of the peace are the Criminal Code and the Ontario Provincial Offences Act, but there are many other federal and provincial
statutes and regulations that empower
justices of the peace with legal authority and/or jurisdiction. Primarily, the two main areas of jurisdiction are
criminal law and regulatory law
(provincial offences).
Justices of the Peace Advisory Appointments Committee,
www.ontariocourts.ca/ocj/jpaac/role/
18.
Under
section 13(1) of the Justices of the
Peace Act, the Associate Chief Justice
Co-ordinator of Justices of the Peace established standards of conduct for justices of the peace.
Under section 8(c) of the Act, the Justices
of the Peace Review Council approved those standards in the form of the
Principles of Judicial Office of Justices
of the Peace of the Ontario Court of Justice
(the “Principles”) on
December 7, 2007. The preamble to the Principles states that:
The justices of the peace of the Ontario Court of Justice
recognize their duty to
establish, maintain, encourage and uphold high standards of personal conduct
and professionalism so as to preserve the
independence and integrity of their judicial office and to preserve the faith and trust that society places in the
men and women who have agreed to accept the responsibilities of judicial office.
19.
Section 1.2 of the Principles states
that “Justices of the peace have a duty to follow
the law.”
20.
Section
3.1 of the Principles provides that “Justices of the peace should maintain their personal conduct at a level
which will ensure the public’s trust and
confidence.”
21.
We agree with the conclusion stated by the Canadian Judicial
Council in their decision in the Report of the Canadian Judicial Council to the Minister of Justice
Concerning the Honourable Justice Theodore Matlow (December, 2008 at paras. 94-100) that while the principles of
judicial office do not constitute a prescriptive
code of conduct, they do set out a general framework of values and considerations that will necessarily
be relevant in evaluating allegations of improper conduct by a justice of the
peace. The fact that conduct complained of is inconsistent with or in breach of the
Principles constitutes a factor to be taken
into account in determining whether there has been judicial misconduct.
22.
In the Report of a Judicial Inquiry Re: His Worship Benjamin
Sinai, released on March
7, 2008, the Commissioner made the following comments regarding the important role that justices of the
peace occupy in relation to the public
perception of the judicial system:
It is clear that justices
of the peace are very important judicial
officers. Although they are not required
to have formal legal training
before their appointment,
their decisions regarding bail, the issuance of search warrants and Provincial
Offence matters seriously impact the liberty and privacy of those who appear before them. Indeed, for the
vast majority of society who has contact with the court
system, their first and only contact
would be to appear before a justice of the peace.
As Justice Hogan stated in the Commission of Inquiry into the conduct of His
Worship Justice of the Peace Leonard Blackburn:
“It is the justices of the peace who preside
in court on matters
such as parking tags, speeding tickets, by-law infractions, and Provincial Offences. These are the
day-to-day type of “judicial” issues
that confront most people. It is therefore quite probable that a great number of the public
will form judgments of our justice system
based on their experiences with a justice of
the peace.”
23.
As the allegations in the complaint
relate to sexually-themed comments and conduct
by His Worship, we have jurisdiction to look beyond the Justices of the Peace Act and to consider the law on sexual harassment and sexualization in the workplace as defined under the Human Rights Code to assist us in determining whether there was judicial misconduct:
49. The intersection of the ODSPA regime with
human rights law in the present
dispute only accentuates the importance of the SBT deciding the entire dispute in front of it. In Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992
CanLII 67 (SCC),
[1992] 2 S.C.R.
321, at
p. 339, Sopinka
J. described human
rights legislation as often being the
“final refuge of the disadvantaged and the disenfranchised” and the “last protection of the most vulnerable members
of society”. But this refuge can be rendered
meaningless by placing
barriers in front
of it. Human rights
remedies must be accessible in order to be effective.
Tranchemontagne v. Ontario
(Director, Disability Support Program) [2006]
1 S.C.R. 513, 2006 SCC 14 at para. 49
24.
The Ontario Human Rights Code R.S.O. 1990,
c. H.19 (the “Code”) defines harassment in section 10, as “engaging in a course
of vexatious comments
or conduct that is known or ought reasonably to be known to be unwelcome”. A single
instance of inappropriate conduct may be a violation of the Code if
it creates a poisoned environment.
Bannister
v. General Motors of Canada Ltd., 40 O.R. (3d) 577 (Ont. C.A.)
25.
As
His Worship’s previous employment history included work as an investigator for the Ontario Human Rights
Commission, Presenting Counsel argued, and we accept, that his professional
experience would have familiarized him with the law and principles prohibiting sexual harassment in the workplace. Section 7(2) of the
Code states as follows:
Harassment because of sex in workplaces
(2) Every person who is an employee has a right to
freedom from harassment in the
workplace because of sex, sexual orientation,
gender identity or gender expression by his or her employer
or agent of the
employer or by another employee.
R.S.O 1990, c. H.19, s. 7(2); 2012, c. 7, s. 6 (2).
26.
Sexual harassment is
recognized by the Supreme Court of Canada as a form of discrimination on the basis of sex. In Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, Chief Justice Dickson wrote: Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the
workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as
Adjudicator Shime observed in Bell v. Lada,
supra, and as has been widely
accepted by other adjudicators and
academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both
economic and sexual power. Sexual
harassment is a demeaning practice, one that constitutes a profound affront to the
dignity of the employees forced to endure it.
By requiring an employee to contend with unwelcome sexual actions or explicit
sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim
both as an employee and as a human
being. Perpetrators of sexual harassment and victims of the conduct
may be either male or female.
However, in the present sex stratified labour
market, those with the power to harass sexually will predominantly be male
and those facing
the greatest risk of harassment will tend to be female.
27.
A
“poisoned work environment” can exist when unwelcome comments or conduct inappropriately sexualize a
workplace. In Smith v. Menzies Chrysler, 2009 HRTO1936, the Ontario Human Rights
Tribunal stated at paragraph 151: The purpose of section
7(2) of the code is to protect employees from
sex harassment
and this includes inappropriate sexualization of the workplace. Human
rights jurisprudence has long accepted that the
“emotional and psychological circumstances in the workplace” which underlie the work atmosphere
constitute part of the terms and conditions
of employment: see Dhillon v. F. W. Woolworth Co. (1982), 3 C.H.R.R. D/743 (Ont. Bd. Inq.) at para. 6691 and Moffatt v. Kinark Child & Family
Services (1998), 35 C.H.R.R.
D/205 (Ont. Bd. Inq.) (“Moffatt”). It is well-
settled law that the prohibition against
discrimination in section 5(1) affords employees the right to be free from a
poisoned work environment in relation to Code-protected grounds. If sexually
charged comments and conduct contaminate the work environment, then
such circumstances can constitute a discriminatory term or condition of
employment contrary to both section 5(1) and 7(2) of the Code: see Cugliari v. Telefficiency
Corporation, 2006 HRTO 7 (CanLII), 2006 HRTO 7
(CanLII) and Moffatt, supra. [Emphasis added.]
28.
Further in Smith, at paragraph 148, the Ontario
Human Rights Tribunal acknowledges
that the Supreme Court of Canada in Janzen
defined sexual harassment
broadly, extending from jokes and innuendo to actual touching: The Supreme Court’s interpretation of
sexual harassment clearly
contemplates a broad range of behaviours with respect to matters of sex, including, but not limited to, sexual
gestures, sexual posturing and
sexually-oriented practices, which negatively impact the work environment. As such, sexual harassment law provides protection from the imposition of sexually inappropriate overtones and undercurrents in the workplace.
Smith, supra, at para. 148
29.
At a previous JPRC hearing,
in addition to the one involving His Worship
Massiah, an inappropriate sexualized comment to a female court staff was held to amount to a finding of judicial
misconduct: Re Kowarsky (JPRC, 2011.)
Assessment of the Evidence in
Relation to the Allegations
30.
As Presenting Counsel
submitted, the first six allegations particularized in the Notice of Hearing describe offensive and inappropriate
conduct by His Worship in or around a courthouse
directed specifically at females. The particulars of the complaint regarding the conduct of His Worship that were
ordered to a hearing in the Notice of Hearing are set out below:
1.
Between May 30, 2007 and August 23, 2010, you engaged
in a course of conduct,
including comments and/or conduct, towards
female court staff, prosecutors and defendants that was known or ought to have reasonably been known to
be unwelcome or unwanted. The conduct resulted in a
poisoned work environment that was
not free of harassment;
2.
You acted in a manner
inconsistent with the Ontario Court of Justice Discrimination and Harassment
Policy for Judges and Justices of the Peace by failing to
treat others in the justice system
with mutual respect and dignity;
3.
You displayed improper and/or
offensive conduct and made
inappropriate, sexual and/or offensive comments directed at females that made persons working in the justice system feel uncomfortable, uneasy or embarrassed;
4.
Your Worship ought to have
known that such behaviour, particularly
given your position as a judicial officer, could cause offence, harm, discomfort and/or undermine the
dignity of female staff and prosecutors;
5.
The behaviour occurred in the
workplace at the Courthouse or at a
location or event related to the workplace;
6.
Your
Worship’s inappropriate and/or offensive conduct contributed to a poisoned work environment such that the
comments and/or behaviour created a
hostile or offensive work environment for
individuals or groups and diminished individuals’ confidence in you as a judicial
officer and their confidence in the administration of justice.
31.
The “work
environment” from which the allegations arose was the Region of Durham Provincial Offences Court at 605 Rossland
Road East in Whitby, at which His Worship presided from time
to time after his appointment in May of 2007.
32.
His
Worship Massiah’s testimony was that he did not at any time during the relevant time frame between May 30,
2007 and August 23, 2010 engage in any
inappropriate conduct or make any comments towards any female in or around the Whitby courthouse which were
unwanted, or unwelcome or which poisoned
the work environment.
33.
In
outlining his professional career before his appointment, or “ascension” to the justice of the peace
bench, as it is described in Tab 2, P. 1 of His Worship’s
written submissions, Justice of the Peace Massiah stated:
A.
My training, to some extent,
involved quite a lengthy career
in the Ontario Public
Service, initially started
with Employment Standards, working my way through.
Police complaint, as an investigator and a hearing
officer, leading right up to working at the Ministry of Transportation of
Ontario as a hearing officer.
(Transcript July
29 pp. 6, 7)
34.
What he failed to mention, until it was raised by Presenting Counsel
in cross- examination, was
his six years of experience working with the Ontario Human Rights Commission, including investigation, mediation and adjudication.
(Transcript
July 29, p. 143)
35.
His
Worship described that part of his training as a justice of the peace included
education on sexual harassment and sexual discrimination and testified that “I
would say I have a grasp or a sense of what was expected
and what was required …”
(Transcript
July 29, p. 11)
36.
His Worship
testified that the culture of the Durham
courthouse was one of “a great sense of camaraderie, a great
sense of people getting along, working well.”
(Transcript July 29, p. 16)
He stated that the collegiality was actively encouraged by his superiors. (Transcript July 29, p. 17)
37.
His Worship
testified that part of his training was “that we were told that our clerks are equal, or very, very
important component of the administration of justice.”
(Transcript
July 29, p. 20)
38.
When asked by his counsel to describe his interaction with the women in the office, His Worship stated:
A. I thought I was well received
initially. My personality, I’m a very
compassionate, personable, engaging, understanding individual. And I brought that individual personality and
characteristics in my interaction with all of the clerks that I engaged in … I used compliments to - - as
part of my management style. And by that, I mean, I would simply just say, “How are you doing
today? How are you feeling?” And so on.
(Transcript July
29, pp. 21-22)
39.
When asked by
his counsel to clarify his “compliments”, His Worship stated:
A. Well, I would say, you know “You’re
looking well.” Mainly their health
conditions, you know, “You’re looking well, how are you feeling?” That was my understanding of my compliments, or at least that’s what I
extended greatly. Or more so than others, I should say.
Q. What do you
mean by that?
A. Well, there were times I would
say that, you know, “You’re looking –“ you
know, “You’re looking great today;” or, “Is something happening?” Based
on my level of familiarity, or interaction, or friendliness with that particular individual. This was not a blanket – I didn’t say
that to everyone, I have no reason
to say that to everyone. And I said it equally to males. I make mention of one individual who from time to
time put together, you know, get all
spiffy and so on. And I would,
in a jocular manner, or in a humorous
way just indicate that something
must be happening today, because he’s
looking, you know, very fine, or dressed up at the time and so on. And so the banter went back and forth. And that was, in my opinion,
this was regular. This was all part of the culture.
(Transcript July 29, pp. 22, 23)
40.
In
sharp contrast to His Worship’s description of the camaraderie and collegiality at the Whitby courthouse was the evidence
of a number of the witnesses who were court staff there. Two themes
resonated in their testimony.
41.
The
first theme was that there is a distinct hierarchy in a courtroom and courthouse. The judicial officer, in
this case the justice of the peace, His Worship
Massiah, was the person in charge. The court staff served him. They were not a ‘team’ of equals.
42.
II,
with over 16 years of experience as a court clerk stated: “…we aren’t a team. I need his permission to go pee.”
(Transcript
July 15 p. 110)
43.
BB,
an administrative clerk since 2005, was asked by Presenting Counsel about how His Worship’s conduct impacted
“her view of the administration of justice, if at all”. She answered:
A. Feeling disbelief that that kind
of behaviour was happening in this day
and age. And that, you know, what can I – what can I do to
just kind of avoid. And especially the position that he held, the
status. You know, I’m down
here and he’s up there, and that was making me
feel uncomfortable. And not really believing that that kind of behaviour was taking place, especially in the
environment that we were working in it’s a very
professional environment.
(Transcript July 16, p. 84)
44.
HH, a provincial prosecutor, with 35 years of experience in the courts, stated in her cross-examination:
A. That was just – that’s just
not the way it is. We are not on
level footing. We are not on level footing with the jurists.
There is a very different power dynamic. The Justice
of the Peace is in charge. They have
counsel, they make the decisions, we just present the case.
Q. Right.
That’s inside the courtroom, right?
A. Even outside courtroom.
(Transcript July 17, p. 86)
45.
We note that at the previous hearing
before a different Hearing Panel of the
Justices of the Peace Review Council, involving judicial misconduct by His Worship
Massiah towards female court staff, the Panel referred to the relationship between a presiding justice of the peace and court clerks.
In their decision, that Panel
cited comments made in the Review Council hearing
regarding His Worship Paul Kowarsky at para.
198:
[198]
In the Matter of a Complaint Concerning
the conduct of Justice of the Peace Kowarsky, the Panel noted at
paragraph 16:
[16] …the Panel notes the following about the
employment of courtroom clerks. Courtroom clerks are employed by the Court Services Division of the Ministry of the Attorney
General and not by the Ontario Court of Justice directly.
There is, however, a clear working
relationship between a presiding justice of the peace and a courtroom clerk
as established by the Courts of Justice Act R.S.O.
1990. c. C. 43, s. 76(2).
76.(1) In matters that are assigned
by law to the judiciary, registrars,
court clerks, court reporters, interpreters
and other court staff shall act at the direction of the chief justice of the court. 2006, c. 21, Sched.
A, s.14.
(2) Court personnel referred to in
subsection (1) who are assigned to
and present in the courtroom shall
act at the direction of the presiding judge, justice of the peace, master or case
management master while the court is
in session. 20056, c. 21, Sched. A,
s. 14; 2009, c.33, Sched.2, s.20(16).
[199] The Panel further observed at paragraph 36 that:
[36] … even
though a courtroom
clerk is not employed by the
Court directly, as noted above, the courtroom clerk acts under the direction of the presiding justice of
the peace in the courtroom. In order to maintain the integrity of the
judiciary within this framework, the standard of conduct
expected in this relationship could
reasonably be expected to be analogous to that expected of someone in a
supervisory capacity in a more typical working
relationship.
Re Massiah, Reasons for Decision, (JPRC, 2012)
46.
His
Worship’s evidence before us clearly demonstrated that he still fails to appreciate or acknowledge that there is
a court hierarchy and the implications
that hierarchy has for those who work in the justice system who interact with him or appear before him in the courtroom.
47.
We accept,
as compelling evidence, that in a courtroom setting, the judicial
officer is considered by his or her court staff to be “in charge”.
We reject His Worship’s
contention that all were “equals”, a “team”, at the Whitby courthouse.
48.
The second
theme portrayed through
the evidence of the witnesses was the notion of a “courthouse culture”. Unlike the culture of collegiality His Worship
described, we heard evidence from a number of court staff and prosecutors alike about the unwillingness of someone
at a lower level in the courthouse hierarchy
to complain about someone at the top – such as a justice of the peace. We heard
also that if staff made a comment to a supervisor about a judicial officer, nothing would happen.
49.
Both II, and HH
testified that the culture of the courthouse was “not to complain’.
(Transcript July 15, pp. 58,
59, 101, 103, 122. Transcript July 17, pp. 33, 34, 50, 83)
50.
When a court clerk,
EE, told her supervisor, JJ, that His Worship Massiah
had been getting dressed for court with his chambers door open when she delivered his court dockets, the
supervisor did nothing. Both Ms. JJ and KK, supervisors of the court staff,
made light of the inappropriateness of a judicial officer undressing with the door open and inviting
staff to enter
when they appeared
at the open door in the course of performing their job.
(Transcript July
16, pp. 165,
166; Transcript July
28, pp. 210,
211, 212;
Transcript
July 28, pp. 44, 45)
51.
It should be noted that in cross-examination, Ms. JJ re-considered her lack of response
to Ms. EE when she stated that: In hindsight, because we are all having this
conversation, I can look at it and say “Well, maybe I should have called her in and said ‘okay. I
want to hear about this. When is this happening? How is this happening’?” No I didn’t do that.
(Transcript July 28, p. 211)
52.
KK, supervisor of Court Support Services,
testified that II made her aware that BB was extremely upset and agitated
by an incident involving His Worship
Massiah. Ms. KK testified that Ms. BB was crying, shaking, extremely upset and she wanted it to go away. Ms. KK
confirms that she spoke to Ms. JJ who took the
position that if there was no complaint coming from the person that was impacted, there was nothing they
could do. Ms. KK could not recall whether she
suggested to Ms. JJ they should speak
to II who witnessed it. No further
steps were taken to investigate what had happened.
(Transcript
July 28, pp. 70-83)
53.
In
cross-examination by Presenting Counsel, Ms. JJ first indicated that she could not recall Ms. KK talking to her
about an incident between His Worship and BB.
Ms. Henein questioned her further, making it clear that the Panel had been told by Ms. KK that she told Ms. JJ about
BB and her concern, that II had witnessed
it, and that BB was reluctant and did not want to come forward.
Ms. JJ then acknowledged that she did “have a bit of a recollection”. She testified that she
although she had only this vague recollection, she did not disagree with Ms.
KK’s evidence and she could confirm
that she never took any action involving II and BB.
(Transcript
July 28, pp. 206, 207)
54.
It is curious and concerning, in our view, that Ms. JJ would have only a vague recollection of receiving such information from Ms. KK, particularly in a work environment that was, as set out in
the Regional Municipality of Durham Harassment and Discrimination
Prevention Policy, expected to be free of
sexual harassment.
55.
Submissions by Counsel for His Worship
were that any notion that court staff thought of His Worship as their
“employer” was “just nonsense” and that it is unreasonable for us to accept that a
staff member or prosecutor would be fearful
of complaining about inappropriate conduct on the part of a justice of the peace. Counsel argued that as none of the staff or Ms. HH told His Worship
that his conduct was
unwelcome, it would implicate the independence of the judiciary to accept their evidence at the hearing
that inappropriate conduct occurred.
56.
In our view, this is an untenable argument.
We reject the premise
that a court clerk or prosecutor is a patently unreliable witness if
she expresses that she,
subjectively, was cognizant of a differential power dynamic between a judicial officer and a court employee. And
we reject the argument that it is the obligation
of any person who experiences sexualizing behaviour, or harassing behaviour to confront the alleged harasser. That is
not the law in Ontario.
Bannister
v. General Motors of Canada Ltd., 40 O.R. (3d) 577. (Ont. C.A.)
57.
As it relates to our general assessment of the evidence
of the witnesses in this hearing, we accept the existence of
the “courthouse culture” at this courthouse.
The discomfort and unease of a number
of the court staff called
by Presenting Counsel as
witnesses to give evidence against a justice of the peace was palpable. It was clear to us that speaking
about His Worship
Massiah was not something they were comfortable doing.
58.
Our obligation is to assess
the credibility and reliability of all of the witnesses, including His Worship, and to determine
if, on the evidence we accept to be
cogent and compelling, judicial misconduct has been proven
on the balance of probabilities. After hearing the evidence,
we find at the outset that “court
hierarchy” and “courthouse culture” are reliable concepts and that the testimony about them from the witnesses
called by Presenting Counsel rings true.
59.
Counsel for His Worship
questioned the managerial staff whom he called as witnesses, Ms. JJ, Ms. LL and Ms. KK,
about the collective agreement in existence between the Region of Durham
and its staff, and the agreement
eventually was filed as Exhibit 29 in the hearing at the request of Counsel for His Worship.
Evidence was led by His Worship about the Regional Municipality of Durham Harassment and Discrimination Prevention Policy
which aims to protect staff from
inappropriate conduct in the workplace and from reprisals for
exercising their rights under the Human Rights Code. His Worship’s position
is that this Panel should accept
that the existence of the collective agreement
and anti-harassment workplace
policy should be used to find against the credibility of the witnesses who testified about his conduct and comments.
The Panel should be persuaded that if
such conduct had occurred, the collective agreement would have and should have been used at the Whitby courthouse by
the staff to complain about His Worship
Massiah. Since they failed to do so, the Panel should find either that the conduct
did not happen or that staff had a different remedy and His Worship should
not now be the subject of this hearing.
60.
We reject
these arguments. We note that LL, a
supervisor of administrative staff,
testified that it was a union environment and everyone had the right at work to be free from harassment. The policy set out a protocol for an employee
to make a complaint and then an investigation had to be done and steps
taken accordingly. In
cross-examination, she reviewed with Ms. Henein the broad range of harassment,
personal harassment and sexual harassment that the Policy indicated should not be experienced by employees in the workplace. She also agreed with Ms. Henein that the Policy applied
only to employees
and not to justices of the
peace, and the protocol and remedies available to staff under the Policy did not apply to justices of the peace.
(Transcript
July 28, pp. 18-38)
61.
In our view, as Presenting
Counsel submitted, the provisions in such documents
are intended to protect the right of employees to work in an environment that is free of workplace harassment and sexually
inappropriate conduct, not to impose
an obligation on them in a manner that is inconsistent with human rights legislation and case law in
Ontario. Nor should they be used by a judicial
officer to try to erect an obstacle to judicial disciplinary proceedings
that involve allegations about
sexually inappropriate conduct. We note
the comments referenced recently
by the Supreme Court of Canada in Tranchemontagne v. Ontario
(Director, Disability Support Program), [2006] 1 S.C.R.513, 2006 SCC14:
…In Zurich Insurance Co. v.
Ontario (Human Rights Commission), [1991]
2.S.C.R. 321, at page 339 Sopinka J. described human
rights legislation as often being
the “final refuge of the disadvantaged and disenfranchised” and the “last protection of the most vulnerable members
of society”. But this refuge can be rendered meaningless
by placing barriers in front of it.
Human rights remedies must be accessible in order to be effective.
62.
Similarly, counsel
for His Worship cross-examined Ms. HH about her failure
to complain about
alleged conduct by His Worship
towards her to her collective bargaining unit for prosecutors or to the Law Society
of Upper Canada.
Her response was that His Worship was not a member of either body and
they would have no jurisdiction over him.
(Transcript
July 17, p. 40)
63.
Again, in our view, there is no obligation in law for Ms. HH to have made a complaint in any other forum before we
can assess here whether we accept her
evidence about His Worship in our determination of whether there has been judicial misconduct.
64.
The allegations contained in
paragraphs 1 through 6 in the Notice of Hearing, as referred to herein
paragraph 32, describe
general patterns of behaviour, rather than specific incidents.
65.
For the sake of clarity, we
will firstly address the specific acts alleged, in paragraphs 7
through 14 of the Notice of Hearing in the context of the evidence, and then will relate
the specific acts which we accept occurred, if any, back to the general allegations. Paragraph 7 alleges inappropriate
interaction with female staff,
including: a) leering at and/or ogling female court staff.
66.
His Worship specifically
denied that allegation. The question to His Worship and his response was as follows:
Q.
So, first of all, I think it would be fair to say that there is a general allegation out there that you
ogled, or looked clerks and other women
up and down. So do you have a
generalized response to that or - -
A.
Yeah, I do. That’s an impression that individuals or others have.
I do not share that, I do not agree with it. I do not look at anyone,
anyone in an ogling manner, or up and down fashion, I simply do not.
In court, I administer my role that I’m
required to do. And that is, I am
required to make an assessment of anyone coming before me. Both in terms
of themselves, how they’re behaving and what have you. And I made that part of my initial judgments.
I have no reason to do that and I
did not do that.
(Transcript July 29, pp. 30,31)
67.
Several witnesses called by
Presenting Counsel described the leering, as
alleged.
68.
II, a court clerk,
previously described as having sixteen
years of experience in the courts,
including at Old City Hall, Toronto Provincial Offences Court, Oshawa Criminal Court, and since 2007 at
the Durham Provincial Offences Court,
testified as follows:
A. Well, I just feel he always had
never missed the opportunity to look a
female staff up and down. We’re sitting in the back corridor, so oftentimes, you have to - - people from admin, or court staff, have to go through that back corridor
to go to our bathrooms. And if he was
standing out there, he would always look them up and down, leering,
in my opinion.
Q. When you say “leering,” what do you mean by that? A.“Leering” to me
is like checking you out in a sexual manner.
Q.
Did you see that occur on one occasion, or two occasions? Can you give us a
sense of how often this would occur?
A. Multiple occasions.
Q. All right.
And this would just be a weekly
event, a monthly event?
A. It was just an ongoing event.
(Transcript July 15, pp. 37, 38)
69.
MM, a trial scheduler
at the Whitby courthouse, testified
he had worked in the courts since 1998. He noticed that when His Worship Massiah
would look at female staff, “he’d have to look them
over … it was, you know, checking them out kind of thing. Like, you know, that you
would do to somebody you are interested
in, you know”.
(Transcript
July 16, p. 145)
70.
BB, the administrative clerk
referred to earlier in our reasons, described, both in words, and by moving her head up and down slowly, that His Worship Massiah would look at her and at other
female staff by eyeing them up and down. It
made her feel uncomfortable “when somebody is checking somebody out. Observing their entire body, scanning
their entire being.”
(Transcript
July 16, p. 80)
71.
Counsel
for His Worship argued that we should reject the evidence from II about ogling. His Worship’s position was
that her evidence is too vague to be relied
upon, and that she bore an animus
against His Worship
Massiah. His Worship alleged the animus developed from
her disagreement with him after she tried to prevent someone from speaking out in the
body of the court and he stopped her,
and her frustration at how he conducted himself in the courtroom generally, and therefore her motivation to make
allegations about his conduct is suspect.
Similarly, Mr. House argued we should not accept BB’s evidence as her specific recollection of events was not
clear, particularly when she was questioned by
the lawyers retained to assist the complaints committee in its investigation.
72.
It
is significant, however, in our view, that a male staff member, Mr. MM, described exactly the same type of
“checking out” of female staff by His Worship
Massiah as Ms. II and Ms. BB describe.
73.
Further corroboration of how His Worship looked
at female staff arose in the
evidence of JJ, the Manager
who was called as a witness by His Worship’s counsel to testify on his
behalf. She gave her evidence from British Columbia by teleconference. She described an observation she had made of
His Worship’s conduct which made her
feel uncomfortable. Ms. JJ said she was showing a female human resources official around the courthouse. The
lady had a low-cut blouse on and was
wearing and a pendant on her neck, and when the ladies met His Worship Massiah,
Ms. JJ observed His Worship
ask about and pay extra attention to the pendant and stare
at the woman’s bodice.
(Transcript
July 28, pp. 165, 195, 196)
74.
In cross-examination, she disclosed why she felt uncomfortable watching
His Worship’s conduct towards
the woman:
Q. So there was something about the way Justice of the
Peace Massiah was interacting with this woman that made it sexual, right?
A.Yes.
Q. All right. And that's what made you feel uneasy,
right?
A. Yes.
(Transcript July
28, p. 196)
75.
The evidence
of Ms. II, Ms. BB, Mr. MM, Ms. HH and of Ms. JJ is inconsistent with His Worship’s assertion:
A. I live in a house with my wife,
and a 26 year old, an 18 year old, and a
15 year old, sir. I have a great deal of respect,
great deal of respect
and understanding of women. And that is something I would never do. I do not scan anyone’s body.
(Transcript July
29, pp.34 - 35)
76.
Another
female staff member, AA, who, since 2009, worked in the Oshawa Criminal Court and then at the Whitby court, described His
Worship’s behaviour when they were first
introduced. This interaction is particularized at paragraph
7(b) of the Notice of Hearing.
77.
Her
evidence of His Worship’s handshake, and “just receiving like a long up and down look, that made me feel
uncomfortable at the time” is striking in its
similarity to the conduct
that Ms. II, Ms. BB, and Mr. MM described.
(Transcript
July 17, p.157)
78.
We note
that His Worship, in his evidence about this allegation, was adamant that, even though he did not recall meeting
Ms. AA, it did not occur as she
described:
A. I may
give a nod -- I have a formal manner, if you wish, which is that, “How are you?” I give a nod of the head, which is a formality
of acknowledgment. Nothing to
do with scanning of the eyes, or the eyes
going up and down. I have no reason to do that, I didn’t do that, I would
never do such a thing. (Emphasis added.)
(Transcript July
29, p. 39)
79.
The specific
acts alleged in paragraph 7(c),
(d), (e) and (f) in
the Notice of Hearing refer to comments
from His Worship
to female staff,
which Presenting Counsel
submit to the Panel were inappropriate. The Notice of Hearing describes comments
as being sexual, suggestive and/or inappropriate comments and including gender-related comments about an
individual’s physical characteristics
or mannerisms; and/or suggestive or offensive
remarks.
80.
BB was the alleged recipient of the comments
specified in paragraphs 7(c)
“Looking good today” and 7(e) “I like two-tone blondes”.
81.
Ms. BB, was initially
unable to recall
these specific comments
by His Worship. She was allowed an opportunity to refresh her memory
from the transcript of her interview
during the investigation, and she testified that the comments were
made to her by His Worship as he was walking down the hall towards his courtroom, passing Ms. BB on her way
to the staff washroom. Ms. BB described
the context, as she recalled it, in which the comments were made:
Q. And what was
the relevance?
A. My hair at
the time was blonde, it was dark underneath.
Q. I see, okay.
And do you remember the context of that comment at all?
A. It was just kind of out of the blue. Again, it was
not just the statement, it was the way it was conveyed.
Q. And how was
it conveyed?
A. Like I said before, he’d inhale, the exhale,
the way he looked at you.
(Transcript July 16, p. 82)
82.
His Worship denied making either comment to Ms.
BB. The wording of his
response,
however, was somewhat equivocal:
A.
I do not recall ever saying that to BB in any context that comes to mind.
No, I do not recall that. I’m apt to say that - - no. In terms of her specifically, no, I don’t recall ever saying that to her. I was about to say that part of my general, my general exchanges or pleasantries that
I’ve made, I make reference, and I have done so in the past. But specifically to BB, I do not recall
ever saying that to her.
(Transcript July
29, p. 33, 34)
83.
The comments alleged in paragraph 7(d) of
the Notice of Hearing all relate to CC, who worked as a court clerk at the Rossland
Road courthouse since its
inception but with experience in courtrooms since 1998 or 1999.
84.
Ms. CC testified that His
Worship called clerks by their first names, but that she did not think this was right, that it indicated a lack of
respect, because he was her superior.
(Transcript
July 15 pp. 163,188)
85.
Ms. CC expected to be referred
to as “Madam Clerk”, which all of the other judges and justices of the peace
called her.
(Transcript
July 15, p. 187)
86.
Ms.
CC found it inappropriate that His Worship addressed her as “girl”, “hey girl”, “what’s going on girl”.
(Transcript
July 15, p. 165)
87.
According
to Ms. CC, His Worship would make comments to her about what she was
wearing, “how it looked good” or “it fit good”, …Such comments
did not make her feel good “ because when I’m in the courtroom, he’s
my boss”.
(Transcript
July 15, pp. 168, 169)
88.
Ms. CC, like Ms. II, Ms. BB and Mr. MM, also described
observing His Worship scanning female court clerks and
administrative staff, “eyeballing from the top
to the bottom and back up.”
(Transcript
July 15, pp. 170, 171)
89.
His
Worship admitted he may have addressed CC as “girl”, “as a sort of manner of what I call in-depth familiarity”.
(Transcript
July 29, p. 40)
90.
Paragraph 7(f)
of the Notice of Hearing sets out the allegation
that His Worship made the comment, “Oh DD, you’re
looking great today” and “Have you lost weight? Those pants really look good
on you” to a court clerk, DD.
91.
Ms. DD was called as a witness by His Worship.
She did not recall His Worship
commenting about her pants or her weight.
(Transcript
July 28, pp. 138, 139)
92.
EE, another court clerk,
testified that she heard His Worship make the comments and that it stood out in
her memory because she would have felt uncomfortable if the comment had
been made to her.
(Transcript
July 16, pp. 169, 170)
93.
His Worship denied ever making
such comments to DD. (Transcript
July 29, p. 46)
94.
Mr. MM, like his female co-workers, gave evidence about
the manner in which
His Worship made comments towards
female staff. Mr. MM observed
that His Worship’s comments towards female
court staff “crossed
the line” and “it was something I would never do, you know,
and that’s kind of why it would stay with
me you know”. “It was kind of like, you know, mostly it was like, ‘Did he
really just say that?’” Mr. MM explained:
A. I mean, specifics, I can’t give
you. But I do remember, you know, him
saying things that –
making compliments to some of the women I work with. And just the tone and the way
it was said, it didn’t really sit right with
me, you know.
Q. Why not?
A. Just because
it didn’t seem professional to me.
Q. What about it, to the best of your recollection, did
not seem professional?
A. Well, it was kind of –there might have
been some undertones to it that, you
know, whether it was sexual or – it just wasn’t right.
(Transcript July
16, pp. 138,139)
95.
Paragraph
8 of the Notice of Hearing alleges that His
Worship invited court staff into his chambers when he was not fully dressed and sets out allegations that involved four different women.
96.
EE,
referred to previously herein, testified that on two occasions she had gone to His Worship’s
chambers in the morning to deliver his docket. Because
the door was open, Ms. EE
assumed no one was present, but when she entered, His Worship was
standing there getting dressed, putting his shirt on. He was shirtless. Ms. EE was surprised, she stated, to see His Worship bare-chested and she apologized. His
Worship’s response was “it’s okay, don’t worry about it”. On the second
occasion, the door was again open when she walked in and she believed that he had his shirt on and was buttoning it up.
(Transcript
July 16, pp. 159-162, 184).
97.
Ms. EE, who has been employed
in the court system for over 15 years and who
worked as a court clerk with justices
of the peace for about 10 of those years, told the Panel that at the time of the alleged events, clerks started work at 8:00 a.m. and that part of their duties was to get the court
docket ready and take it to the justice of the peace in his or her chambers.
(Transcript
July 16, p. 156, 157)
She testified that in all her years working with
justices of the peace, she had never
walked in on one who was changing. There was a private bathroom in the office with a door that could have
been used for changing or dressing. If the door
to the office had been closed, she would have knocked and waited.
(Transcript
July 16, pp. 163, 164)
98.
Ms. EE testified that after the first incident,
she told her supervisor JJ but there was no follow-up; after the second
similar occurrence, she was uncomfortable so
she “kind of made sure that if I did go up, it would be either
really early in the
morning at 8 o’clock, or closer to the time where all the justices
are around and sort of talking. I wouldn’t walk into
a room.” She didn’t tell His Worship that she thought it was inappropriate for
him to be changing with the door open because “I didn’t think it was my place
to tell him that.”
(Transcript
July 16, pp. 162-164)
99.
CC, referred
to previously, testified that justices of the peace usually had the
door to their chambers shut in the morning when they arrived
and were getting ready for the day and robing.
(Transcript July 14, pp. 174-175.) She recalled two incidents clearly in her mind when she went to deliver
paperwork to His Worship, knocked on
an open door and was invited in by His Worship Massiah to enter the office when he was not fully dressed.
Because of the office’s “L-shaped” format
she could not see His Worship prior to entering, but when she did walk in, he had his pants on and was putting on his
shirt. He was not wearing an undershirt. On
the first occasion, she recalled,
Ms. CC felt embarrassed and she immediately turned and left. She testified
that “I felt that – I was afraid, really, because I didn’t know what to do. As I said,
he was my boss, I don’t know what I could have done.”
(Transcript
July 15, p. 179-184)
100. On the second
occasion, she recalls
exclaiming something like “Oh my God”,
and His Worship saying “something like “it’s okay, I’m just about done.” She did not
report the incidents to anyone. She testified that, “At that time when things
were happening, he could hurt me more than I could hurt him, by status alone. I don't think -- at that time, I didn't
think anybody would listen to a courtroom clerk.”
(Transcript
July 15, pp. 179-185)
101. FF was an administration clerk at the Rossland court
during the relevant
time frame. She testified that her interaction with His Worship and
other justices of the peace would relate to clarification of signing of paperwork. She recalled one occasion when she attended
at His Worship Massiah’s chambers, knocked on the open door but saw no-one and heard no
response. When she looked into the
office, she saw His Worship’s bare arm. She was uncomfortable and backed out of the office. She waited, knocked again, heard “come in” and His Worship was
then fully dressed. She did not report this
incident.
(Transcript
July 17, pp. 137-142)
102. His Worship
Massiah testified that the justices
of the peace never close
their chambers doors, unless in a private meeting and did not want to be interrupted.
(Transcript
July 29, p. 50)
103. GG, a court clerk at the Rossland court,
testified that His Worship Massiah would
occasionally change out of his judicial robes
in the hallway behind the courtrooms – which stuck out in her mind because she had not observed any other justices do that. His Worship
was not bare-chested – he had an undershirt
on when she observed this behaviour.
(Transcript
July 17, p. 177)
104. His Worship categorically denied that any staff member saw him shirtless. He always wears an undershirt, he stated; he also described
a large disfigurement on his chest, that is visible – “Let’s put it this
way, I do not go to the beaches and
take off my shirt, sir.”
(Transcript
July 29, pp. 53, 54)
105. Paragraphs 9 and 10 in the Notice of Hearing are allegations
relating to HH, now HH, the
provincial prosecutor previously referred to herein. Paragraph 9 alleges that in late spring or early
summer of 2010, Ms. HH, a provincial
prosecutor, was coming in from the parking garage to the courthouse. As she was walking past His Worship, he
said, “Mrs. HH, looking goooood” in a manner
that conveyed sexual undertones. With his eyes he also looked her up and down in a manner that conveyed sexual
connotations. This caused Ms. HH to feel very
uncomfortable and vulnerable.
106. Ms. HH described that her initial
interactions with His Worship Massiah,
shortly after he started presiding in Whitby, were normal.
(Transcript
July 17, p. 20)
107. The
incident which Ms. HH described as inappropriate occurred in 2010, as she was walking from the courthouse parking
lot towards the west doors in the
building leading to her office.
Ms. HH observed His Worship
Massiah sitting on some
concrete blocks that ran along the building.
108. Ms. HH testified
that as soon as she saw His Worship “…I thought, I have to walk past him. And I didn’t want to.”
She said that she knew he was going to say
something and that “I just knew that he wouldn’t
be -- just be nice and be normal”.
(Transcript
July 17, p. 23)
109. She described the incident as follows: I was
walking up, and he was – he would
have been to my right,
but just slightly
ahead so I could still see him. And he said, “Mrs. HH, looking
good.” He stretched
out the “looking”, he stretched out the ‘good’, and he raped me up and
down with his eyes. And I wanted – so many
things went through my mind at that moment. I wanted to turn on him and say,
“What are you doing?” I wanted to take a turn on him and take a round out of him, “that’s not how you address me. This
is not right.”
(Transcript
July 17, pp. 23, 24)
110. Ms. HH described
how she felt: “..the look, the eyes up and down, it was totally inappropriate. And I felt, I felt very vulnerable. I'm outside, I'm all alone,
there was nobody else there.”
(Transcript
July 17, p. 23)
111. Ms. HH testified that she did not confront His
Worship Massiah, but rather: “I just
kept walking. I didn’t turn to him and say, “thanks”. I didn’t say anything. I just
kept my lips pressed tightly together and kept walking. I was very offended. This was - even years later, I can still
see him sitting there and still - I still remember, I had a little catch in my step. Because I thought about it, I thought about turning
on him. And then I thought it would be, it would be suicide for my career.”
(Transcript
July 17, pp. 25, 26)
112. His Worship recalled an incident when Ms. HH
approached him and he said “It’s
looking good”, referring
to the 2:00 p.m. docket.
His evidence was that she “clearly must have misinterpreted” his remark.
(Transcript
July 29, p. 75)
113. Paragraph 10 alleges that between
2007 and 2008, when HH was walking
up the stairs in the courthouse, His Worship leaned in toward her from behind and with
his mouth close to her ear, he said, “Oooh,
Lady in red” in a manner that appeared to be deliberately
flirtatious, intimate and/or suggestive in an
inappropriate way toward a female in the workplace.
114. This second incident involving Ms. HH was
described in the evidence of NN, who at the relevant time was a provincial
prosecutor and colleague of HH. Her
Worship testified that she and Ms. HH were walking up the stairs to their offices, side by side, chatting. Ms. HH
was wearing a “striking red business suit. It was a pencil skirt to just below her knees, and a fitted red jacket.”
(Transcript
July 18, p. 111)
115.
NN testified:
A. And just as we were getting
to the top of the stairs, His Worship
Massiah came up beside me, and immediately behind HH, taking me a bit by surprise, and leaned into – toward HH’s left
ear and said to her in a low voice, “Ooh,
lady in red.” The way it was said, surprised me. And the way it was said --- the way
it was said was in a very low, suggestive voice. But certainly plenty loud enough for me to hear as well, I was right beside her. I
would characterize it as in a low singsong type of voice.
And the “ooh,
lady in red” part was drawn out, the “oooh.”.
It was said in a very – it’s hard
to articulate it without saying it myself.
But it was said in a way that was – that
was suggestive in my mind, flirtatious and very suggestive. As if it was admiring,
certainly, that came across.
But in a way that it has sexual overtones, and that was very surprising to me, the way he said it.
(Transcript July 18, pp. 111,112)
116. NN stated that at the top of the stairs, His
Worship walked away, “And I saw him
just sort of look back over his shoulder into our direction, and just threw a really big smile. Which I can only characterize appeared
to be a very playful
sort of smile.”
(Transcript
July 18, p. 113)
117. Ms. HH testified that she didn’t remember
everything about this incident because
she was in a conversation with NN, but she recalled being on the stairs, having
His Worship Massiah brush past her and that something was said. She remembered NN’s reaction, “the look of
surprise, and disgust on her face.”
(Transcript
July 17 pp. 26, 27)
118. NN stated that she personally thought the
comment was “inappropriate and
unfortunate given his position as a Justice of the Peace and with a prosecutor”.
When asked to elaborate, she testified as follows:
A.
Remember that the – a Justice of the Peace,
of course, has a wide range of discretion in the
courtroom. And a prosecutor appears
frequently in front of the same Justice of the Peace, develop a rapport with each other. Which that rapport,
lack of rapport, could affect
how effective we are at securing
just results bringing
matters before us. And a Justice of the Peace has a
position of authority, implicit in their
role, and can significantly affect the outcome of those cases. So it’s important to a prosecutor maintain a
collegial relationship with the bench,
and of course out of respect for what that represents,
separate and apart from the actual person
that’s in the role. And a
person in that level of authority, I think has to be particularly mindful of their
– of how they present, whether it’s in a courtroom or
outside the courtroom. And it made
me very uncomfortable as a woman and as a
prosecutor, that that sort of comment would be made. I thought it went across the line.
(Transcript July 18, pp. 113, 114)
119. His Worship’s evidence was that he did not
recall the incident on the stairs
involving Ms. HH. He testified:
A. I offered an inference that I’m
familiar with a song that is associated
“Lady in Red”
and if that was the case, then it’s quite
possible I may have said, “lady in red”, and whether I was humming
the bar or whether I was – I guess
acknowledging that she wore a red outfit of some sort. But I do not recall that
incident at all. And more so, I have
never, will never flirt with Ms. HH.
Which is now – HH.
(Transcript July
29, pp. 69, 70)
120. NN, in cross-examination, specifically rejected the suggestion that His Worship was singing to Ms. HH.
(Transcript
July 18, pp. 121, 122)
121. In addition, His Worship Massiah described Ms.
HH as “not one of my preferred
prosecutors, put it gently that way”.
(Transcript
July 29, p. 71)
122. Through cross-examination of Ms. HH by His
Worship’s counsel, it was suggested
that Ms. HH had a motivation to complain about His Worship Massiah because she was aware
that he could be a witness in a complaint about her directed
to the Law Society by another Justice of the
Peace.
(Transcript
July 17, pp. 52-56)
123. From the evidence, it would appear
that the complaint to the Law Society of Upper
Canada against Ms. HH was investigated and dismissed in a time frame
months before these allegations came to the attention of the Review Council.
124. Paragraph 11 of the Notice
of Hearing alleges
that His Worship
approached administrative clerk BB as she was seated
at her desk, stood inappropriately close, hovered over her, and touched her shoulders
and in a sensual way said,
“How are you doing today?” causing her to feel
uncomfortable.
125. A number of witnesses testified
in relation to the allegation involving Ms. BB. In
oral submissions, Counsel
for His Worship submitted that if this allegation is accepted
to be true, it, standing on its’ own, it would be evidence of judicial misconduct.
126. Ms.
BB, previously referred to herein, told Presenting Counsel about an interaction with His Worship Massiah:
A.
There was one particular time where he came around
the corner, I was
working, typing at my desk, and from what I can remember,
he just put his arms on my shoulders and made a remark. I don’t really remember what it was, I just
remembering feeling uncomfortable.
Q. Okay. And can you tell us more
about that? What the context for that
interaction was?
A.
The context? Well as I said, I’m typing at my desk, and he just come up behind me and sort of put his
hands on my shoulders and made a
comment. And I can’t remember what the comment was, but I remember feeling very uncomfortable.
(Transcript
July 16, p. 48)
127. Ms. BB said that after the incident, she tried to avoid His Worship, including using the public washrooms, rather than the staff washroom
where she would have to go down the hallway where
the courtrooms were.
(Transcript
July 16, p. 51)
128. II, previously referred
to herein, also described the incident with Ms. BB. Ms. II testified that she was bringing His
Worship Massiah to the administration area to sign some paperwork that her colleague,
OO, had for him to sign. When she and
His Worship were approaching OO together, His Worship veered off to the right to where Ms. BB was sitting, working
at her computer on her desk, with her back
towards him. Ms. II described, “Well, first of all, he’s supposed to be coming with me to OO to get the paperwork, but he
decided to go towards BB, and creep up on her. She didn’t even know he was
coming, and completely inappropriate
and…” She testified that His Worship came up behind Ms. BB and “put his hands on her shoulders”. Ms. II testified,
“Well, to me, it was sexual in nature.”
(Transcript
July 15, pp. 44-46)
129. Ms. II described that she could hear a little “…
like, oh, how are you doing” but that
when His Worship spoke to Ms. BB she “never turned around. She kept her head
straight towards her computer.” When Ms. II went to Ms. BB after His Worship
had moved away, Ms. BB “ … turned around and her face was beat (sic) red, she whipped her head around and looked me right in the eye “and Ms.
II told her “you don’t have
to take this.” Ms. BB responded with something like “I know.”
(Transcript
July 15, p. 48)
130. Ms. BB was examined by both Presenting Counsel in examination-in-chief and by
His Worship’s counsel in cross-examination about her statements in 2012 to the lawyers who were assisting the
complainant committee by interviewing
witnesses in relation to the complaint about His Worship Massiah. Ms. BB referenced her response on July 4, 2012 during the following
exchange in her testimony:
A. Okay. There’s a
question by the investigator and I was asked:
“Do you recall
him coming up behind you, putting his hands on your
shoulder, and saying something to you and then walking away?” My answer was: “Yup, that may have happened; yup, yup. I remember it was definitely not appropriate what was
said, what he did, but I – and I
remember that because of the reactions. I remember because of how
I felt. I don’t remember the specifics.”
(Transcript July 16, pp. 74, 75)
131. However, she also told His Worship’s counsel,
in cross-examination, that she
was telling the truth when she told the investigator in 2012 that “I don’t
remember him putting his hands on me”.
Q. So with respect to the saying something, you're quite certain that something was said?
A. Yes.
(Transcript July 16, pp. 86, 103,
104)
132. In cross-examination, Mr. House also referred to
Ms. BB’s 2012 responses and memory of
the incident in the following exchanges with
her:
Q. But I'm going to suggest to you that what you told them was that you didn't have any recollection of him
touching you?
A. No. I pointed that out on page 30, line 209. (Transcript July 16, p. 86)
And later, she said:
Q. Was your
memory about the incident better then or now?
A.
Well, on page 209 -- I think, I think what had happened is, because it was
such an uncomfortable situation, I had pushed it to the back of my head.
(Transcript July
16, p. 89)
133. In cross-examination, II was confronted with the transcript of her interview with the lawyers who interviewed witnesses for the complaints
committee wherein she stated – “His hands are, to
me, looked like was on her shoulder”. She agreed that His Worship’s body was partially blocking her view, but “they looked to me that they were on her shoulder.”
(Transcript
July 15, p. 135)
134. KK, the supervisor referred to previously herein, called as a witness
by His Worship, recalled arranging
a meeting with Ms. BB after Ms. II told her she had observed a very upsetting interaction
between His Worship Massiah and BB. Ms.
II told Ms. KK that Ms. BB was not comfortable reporting
it, and when Ms. BB attended with Ms. KK she had a
“meltdown”, was crying and shaking, was upset
with Ms. II for having
reported the incident
to Ms. KK, and said that she didn’t
want to discuss it and just wanted it to go away.
(Transcript
July 28, pp. 67-70)
135. Ms. KK testified that when Ms. JJ, the office
manager, to whom we have referred
previously, returned from sick leave, she went to her for guidance about BB. Ms. JJ’s response was “If there’s no
complaint coming forward from the person that
was impacted, there’s nothing we can do.”
(Transcript
July 28, pp. 79, 80)
136. His Worship’s evidence was that he did not touch
BB and that he never touched anyone
without their consent.
(Transcript
July 29, p. 35)
137. Paragraph 12 of the Notice of Motion
alleges that at a dinner with a group of justices
of the peace at the University Women’s Club, His Worship inappropriately “eyeballed” a female justice of the
peace and stared at her chest.
138. His Worship PP was appointed to the Court at the
same time as His Worship Massiah and
they were at a training program together in 2007. At the end of the program there was a celebration dinner
at the University Women’s Club. His Worship
Massiah delivered an impromptu speech
and appeared to be looking down at a visiting female Justice
of the Peace from Manitoba rather than making
eye contact with the rest of the audience. His Worship PP’s wife noted it as well and made a comment to her husband.
His Worship PP found His Worship
Massiah’s actions odd.
(Transcript
July 18, pp. 21-23)
139. His Worship Massiah
testified that he did not stare at a female
Justice of the Peace‘s chest. When asked about the
allegation his evidence was:
A. I’m familiar with the
function. And that is the time when we were just
concluding our training. And there
was a celebration, if you wish,
after the, after our extensive training. And we had two visiting – three to be exact, two from Winnipeg,
one from Nunavut. We had three visiting Justices of the Peace, or
all of them justices, shadowing what
we were doing while we were getting part of the training. And I was unexpectedly asked to give a oral thanks for their participation by Andrew Clark, who
is the Chief Advisor. And I recalled
scribbling in my hand on a piece of paper here, just some points that I wanted to
reference. And delivering a remark, you
know, and thanking them for attending and trust that they learned very well. I did not, I have no reason
to look at anyone’s breasts,
or anyone’s bosom in that manner.
I think I was probably
a bit more – I was
sweating a little bit, because I was called unexpectedly to deliver the remarks to my colleagues. But no, I did not I did not, -- no, that is, -- that is,
anyone should know that is
inappropriate and certainly I would not.
(Transcript July 29, pp. 67, 68)
140. Paragraph 13 alleges
that His Worship Massiah demonstrated inappropriate
conduct towards female defendants in the courtroom, including leering at female defendants in the court who appeared before him, looking
them up and down in a
sexual manner when they were standing in the courtroom, or walking up to the front of the court, or walking away to
the door of the courtroom, giving them “the once over”. The Notice of Hearing further
alleges that some prosecutors and some
court staff felt that their confidence in him as a judicial
officer and that public confidence in the administration of justice were negatively impacted
by their observations of this conduct in the courtroom towards female defendants.
141. QQ is now the manager
of provincial prosecutions at the Whitby courthouse,
having commenced work in the court system,
as a court clerk, in 1984. During the relevant time frame he appeared
as a prosecutor in His Worship Massiah’s court four to five times a month.
(Transcript
July 18, pp. 30-32)
142. Mr.
QQ testified that after reading an article in the Law Times, wherein comments by His Worship Massiah in
response to allegations from the previous
Hearing about him were reported,
and having heard talk amongst
the staff, he contacted
then Presenting Counsel Doug Hunt.
(Transcript
July 18, p. 33)
143. From what he had observed
in His Worship’s court, Mr. QQ’s opinion
was that the comments from His
Worship in the Law Times were not accurate. When
asked about His Worship’s behaviour in the courtroom when he was the prosecutor, Mr. QQ testified:
A. There were times and it was – okay.
He was always pretty fair with
people, and maybe friendlier than some jurists would be. He liked to establish a rapport, I think, with all
the people in the courtroom.
Q. Yes?
A. But, in my observation, there
were times when, particularly with
attractive female defendants, I observed that there was a bit more
interest expressed, non-verbally, by His Worship. With the persons walking up towards the dais, while
engaged in conversation, dealing with
matters and walking away.
Q. Can you give me a little bit more
detail in terms of what you observed
him doing when an attractive female defendant would be before him?
A. This didn’t happen
all the time, but often enough that I observed
it numerous times.
You
can be friendly to someone,
you can be positive, you can be smiling, you can be open, that’s okay
and normal, in my view, there’s
nothing wrong with that. When I was interviewed earlier,
I’ll use the same words, it went beyond that. It
tended to be, to me, more a once
over, kind of up and down, checking out type of observation, which I observed numerous times, and I thought
it was embarrassing. But, yeah.
Q. All right.
So it was an up and down. Did you ever observe
him – is that what you mean by “leering”?
A. Yeah, I do. Kind of excessive interest. (Transcript July 18, pp. 36, 37)
144. Mr. QQ described the type of behaviour he observed in the context
of how His Worship looked at
a particular attractive female defendant who appeared before him in the courtroom:
Q. How did you
perceive it?
A. I perceived it as a lot of interest in a non-verbal
way, that's the way I perceived it,
that's my perception.
Q. Would
it be the type of interest you'd expect in the courtroom?
A. No.
Q. What sort of context would you expect that sort of display?
A. Social situation, party.
(Transcript July 18, p. 41)
145.
In re-examination, he provided further
information about his observations:
A. But the point is, I wanted to reiterate the fact that
the leering and ogling, to me, is
what I was concerned about.
And I could see at some point,
it being characterized as just being friendly. And I did not agree with
that. There's a line, and I told that to
the folks earlier who were investigating. You can be friendly with someone, and that's fine. But the line has to stop -- especially in the courtroom,
when you go past that line, that was my concern.
Q. And the leering and ogling that you observed, was it
within the line or past the line?
A. Far past.
(Transcript
July 18, p. 96)
146. Mr. QQ testified about the impact of His Worship
Massiah’s conduct in the court on Mr.
QQ’s confidence in the administration of justice. He stated:
A.When these types of situations would occur, I felt it was inappropriate at the least. It just seemed
wrong to me, it’s not what should
be happening in a courtroom in
this country.
I thought – there’s a time for socializing and that type of
thing. This is not the time, or the place for that matter.
It offended me. I felt it lessened the entire dignity of the court,
the process. People in the room saw
this type of thing, and I’d be thinking, “what do we look like? ‘We’ look
like?” Because I’m part of this process. I
think I’m – of course in a different role, but people see us, actors, as
playing our parts and they lump us together, I think: “people” being
defendants, etcetera.
Just
wrong, just inappropriate, unnecessary, made no sense to me.
I’ve never seen it to this extent in my career. Unusual, that’s how I felt.
(Transcript July 18, pp. 44, 45)
147. NN, who was, as stated previously, a provincial
prosecutor at the relevant time,
testified that His Worship Massiah developed a reputation among her
colleagues. She also observed “that it appeared that he had a pattern with a certain type of young female
defendants, where he behaved differently in
the courtroom.” When asked to explain the behaviour, NN stated:
A. Yes. In terms of his language, not all the time, but
with some regularity I’m afraid, he would start referring to them by their first
name, which was surprising. A person before or after he
might refer to as “mister” or “miss” so and so. And his body language, to me appeared to change.
Q. In what way?
A. Well, from sort of leaning
forward, all of a sudden calling them by
their first name. Sometimes pushing the paper away, and just trying to have a bit more of a connection
with them, with the person.
Q. If you were to characterize it or
summarize it, how would you
characterize the interaction you observe him engaging in with the attractive, female defendants?
A.How would I
characterize it? It would appear to me that he was trying to make a connection.
Q. What do
you mean by “a connection”?
A. Like an intimate connection to
the extent that the role was very
restrictive, of course, but …
(Transcript
July 18, pp. 105, 106)
148. As to the impact His Worship’s conduct on then
prosecutor, now NN, she testified
that it:
A. … diminished my
confidence in his ability to put aside any biases for a certain type of profile of a defendant before him, and
treat them all equally and the same. And it seemed to me, he had difficulty doing that with a certain type of defendant before him, particularly young, attractive females. And that diminished my confidence in
his ability to objectively execute
his duties.
(Transcript July 18, p. 115)
149. II’s evidence was that her observations as a court clerk about how His Worship
Massiah interacted with female defendants was “… typically he was over friendly,
he would address them by their first names.”
(Transcript
July 15, p. 33)
150.
She testified
that:
A.
Well, yeah. I mean, to be fair, I sit in front, he sits behind me; so I’m not looking at him, obviously. But it would
just be addressing them by their first names, just the tone, the manner, the tone of his voice, the way he would, you know, “Hi, II.
So what happened today?” And just
sort of very casual, not – I didn’t think it was very
professional the way he addressed
– in my experience working
in the judicial system for years – the way he
addressed the defendants.
(Transcript July 15, p. 36)
151. Ms. II’s reaction to these observations affected
her confidence in the administration
of justice. She stated:
A.
Well, you know, I didn’t have much confidence in it, that he would be
on the bench and treating females, the defendants, in an overly friendly manner. And that the staff, I just found the arrogance.
Because all of this stuff was done right out in the open.
(Transcript July 15, p. 51)
152. His Worship Massiah categorically rejected the
suggestion that a prosecutor’s or
staff member’s confidence in the administration of justice was affected negatively by his conduct. His evidence was:
A. Absolutely. That they’re
incorrect, point blank. There’s two aspects
to that.
On the one hand, any prosecutor or defence person within courtroom operations choose to disagree
with my sentencing, disagree with my findings, disagree with my decisions,
there’s an option, there’s an
avenue for them to proceed.
To the best of my knowledge, that had
not been done.
Secondly, if they choose to make observations as to how I conduct myself, if you wish, with regards
to defendants coming before me,
which is what I think you’re alluding
to. As I indicated to you, in that
one of the stresses of our early training was for us to be very mindful, very attune to unrepresented defendants.
We provide
adequate information, we slow the process down, if need be, we provide very clear directions as to their duties
and their rights. And would say that
this has caused some members, particularly in
605 Rossland, to be a little
perturbed by my similarly manner to truly
ensure that anyone coming before me, clearly understands why
they’re there, and to some extent to make them feel comfortable.
And one point I want to raise
with regards to that, because
I saw a number of facial expression to this. Is that I would thank
a defendant coming before say,
and me “thank you for attending”. I am not aware
that my colleagues do that; I do that.
Q. Why do you do that?
A.
Again, I go back to the fact that one of the stresses was of customer service. We are public servants, all right? We are the face, if you wish,
of the -- well, let’s just go with judges – the person who the public will come
in contact with in the judicial system.
And we are to extend courtesy, patience, understanding,
and clearly to advise them of their
rights. If we need to slow it down, if we need to take the time to do so, we do so. And so I dispense my duties
in that manner.
(Transcript July 29, pp. 76-78)
153. Paragraph 14 of the Notice of Hearing
alleges that the conduct described in paragraphs 1-13, the range of women who were recipients of his conduct,
and together with the history of His Worship’s misconduct of a similar
nature towards other women at a
different courthouse, demonstrate a pattern of
inappropriate conduct toward women in the justice system.
154. On March 1, 2012, in a hearing cited as Re Massiah,
Reasons for Decision (JPRC, 2012) a Hearing
Panel of the Justices of the Peace Review Council made findings of judicial
misconduct by His Worship, based on evidence called in that hearing about his
conduct towards female court staff at a location different from the courthouse that the present allegations
relate to:
[314] The Panel has found that the following
allegations have been made
out to the standard of proof as set out by the Supreme Court of Canada in
McDougall:
Paragraph 2: The incident involving comments about a clerk’s eyes
and wanting to stare into them coupled with
the suggestion that the clerk would prefer abuse
over compliments.
Paragraph 4: The incident suggesting that the clerk could see the justice of the peace without
his shirt by just
letting him know.
Paragraph 5: The incident involving
the justice of the peace commenting
on the attractiveness of a clerk who
was in the training phase of her employment
coupled with a further comment
on her physical appearance and getting out of court for a date.
Paragraph 7: The incident wherein
the justice of the peace remarked about what a clerk had done thirteen weeks earlier that resulted in
her pregnancy and giving her a nudge
in connection with the comment.
Paragraph 10: The incident when the
justice of the peace stated that, “It’s not
that you haven’t seen anything like it before. Mine is just brown.”
Paragraph 11: The incident wherein
the justice of the peace said, “Damn
girl, where did that figure come from”?
Paragraph 12: The incident
involving the statement to
a clerk, “Oh, look at you,
pregnant and you still look good.”
[315] The Panel
further finds that the aforementioned conduct amounts to judicial misconduct. It is
not our intention to repeat the comments and
observations regarding judicial misconduct that we have mentioned earlier in
these reasons except in the most general way.
155. His Worship has testified that he now “accepts”
the findings of the public hearing
in 2012. It is noteworthy that in the Fall of 2013, after the present
hearing was ordered and
hearing dates were scheduled, His Worship brought an application for judicial review of the prior hearing’s decision.
That application, cited at Massiah v. Justices of the Peace Review
Council, 2014 ONSC 3415, was
unsuccessful.
156.
His Worship testified in examination-in-chief:
A. I think I have learned, I've
learned very clear and very well, I've
alluded to the fact that despite my best intention, or despite what I
believe to be a nice, collegial banter back and forth and so on, can be interpreted
or can be received in a manner that is not intended to.
(Transcript July 29, p. 85)
157.
In cross-examination, he responded to a
question from Ms. Henein as follows:
Q.
Just so we are clear,
and we are going to come back to this,
you maintain even today,
as you sit here under
oath, that all you were doing was giving innocuous
compliments; is that right?
A. My intention was to create a
friendly, engaging working environment
with my clerks and all members of the staff.
That was my intention,
and I said I put emphasis on that aspect.
What I am about to say is not intended to be an excuse.
On reflection,
I would say that I still had on my political hat. Five months earlier I ran for
local office, for local council,
and it is clear to me that I did not
make that adjustment. I came on board. I was very pumped.
I was extremely pleased and
happy to be there. I greeted everyone in a very
uplifting manner, shook hands. I reached out to people. So naturally, that style, on reflection,
perhaps caused some people to be concerned
or seemingly very, very different.
(Transcript July 30, pp. 11-12)
158.
His Worship also provided the responses below
during cross-examination:
Q. So you accept that you were making
sexual comments?
A. They were
in violation of the Code, yes.
Q. No, that is not what I asked you.
You were making sexual comments; do
you accept that then today?
A.
Yeah, but I don't quite understand what you meant by I'm making
sexual comments.
(Transcript
July 30, p. 13)
Assessments of Credibility
159. As set out in paragraph 12 herein, the standard of proof in a hearing
of this nature is “on the
balance of probabilities”. As set out in paragraph 58 herein, our obligation is to assess
the credibility and reliability of all of the witnesses and determine if there is clear, convincing and cogent evidence
which proves judicial misconduct to
that standard.
160. His Worship Massiah’s evidence must be assessed in the same light as that of the
other witnesses. As has already been stated, His Worship specifically denies leering, ogling and making
inappropriate sexualized comments to females in the Whitby courthouse, inviting female staff into his chambers
when not fully clothed, and touching
a female staff member seated at her desk.
161. His denials of such behaviour were unconvincing,
in our view. His explanations for
his habit of making friendly, personal comments, which he described as “compliments” and “comments mainly on
their health conditions”, were that they
were part of his “management style”, and “banter” which was “part of the culture”. His evidence in relation
to his chambers was that justices never close their doors. His evidence that he never
touched Ms. BB included the proviso that
because of his particular height and weight and the close proximity of the desks in the administrative workplace, an
inadvertent touching could occur.
162. This evidence is considered in the context of
other concerning evidence from His Worship. Given his considerable
employment experience with the Ontario
Human Rights Commission prior to his appointment to the bench, and his
training while a justice of the peace on the subject of workplace harassment prevention, His Worship’s
evidence that compliments such as “you’re looking
great today” or “is something happening” were based on “my level of familiarity, or interaction, or
friendliness with that particular individual” does not ring true. In our
view, His Worship’s evidence was an attempt to minimize the obvious sexualized manner in the
workplace, which he portrayed as his “management
style” in the workplace.
163. His testimony, and his demeanour
while testifying, painted
a picture of a man who is arrogant and who perceived
himself to be appealing to women. When his
lawyer was questioning him about his compliments to women, he said:
A. My personality, I'm a very compassionate, personable, engaging, understanding individual. And I
brought that individual personality and
characteristics in my interaction with all of the clerks
that I engaged in. I received -- I
thought I was well received, in essence.
(Transcript July
29, p. 22)
164. When counsel for His Worship Massiah suggested
in cross-examination of AA that in the courthouse, there was “a reference to Justice Massiah that he's very
full of himself, very arrogant”, she confirmed that this was the case.
(Transcript July
17, p.167)
165. In examination-in-chief, His Worship did not mention
his experience working
in the area of human rights law. Only in cross-examination did he acknowledge it. When questioned about the omission,
one which we see as very significant, he said: “It was just
part of the continuation of my career, my career development.”
(Transcript
July 29, p. 142)
166. In cross-examination he acknowledged that his work in human rights included involvement in the adjudication
of workplace sexual harassment “quite a bit”.
Yet he attempted to downplay that background and expertise in the
context of the allegations of
judicial misconduct, stating:
A.
You make reference to the fact that my training and my work at the time at the Human Rights Commission,
which was quite some time back, I do
not recall -- I do not recall that I dealt with cases with regards to
compliments. I dealt with a variety of different sexually- related matters possibly in violation of the Code, but I do not recall any one particular case in reference to compliments.
(Transcript July
30, p. 16)
167. His Worship Massiah’s efforts to minimize and
deny the seriousness of his conduct
was apparent when he was giving evidence about Mr. Hunt’s disclosure to him of new allegations
being received. His testimony was: “My understanding
that there were allegations made -- and actually, I choose not to use the word "allegations". I choose to
use the word “information”."
(Transcript
July 29, p. 86)
168. It
is notable and concerning that His Worship took this stance, put forward these views and gave this evidence after findings of judicial misconduct in a previous judicial discipline hearing
relating to sexualized comments to females at
another courthouse.
169. When questioned about the previous
findings made by that Hearing
Panel, His Worship’s evidence was equivocal
at best. In one moment
he testified that he
“accepts” the prior findings, but also maintained they were “incorrect”. He appeared
unable or unwilling to acknowledge the distinction between appropriate and inappropriate conduct in
the workplace. The following exchange from His Worship’s cross-examination, cited in our
findings of fact above, is an example of his obfuscation:
Q. So you accept that you were making
sexual comments?
A. They were in
violation of the Code, yes.
Q. No, that is not what I asked you. You were making
sexual comments; do you accept that
then today?
A. Yeah, but I don’t quite understand what you meant by I’m making
sexual comments
(Transcript
July 30, p.13)
170. In a similar
vein of denial and misrepresentation, His Worship asserted
that the Chief Justice “on her
own volition- there was not a requirement…recommended
counselling”
and that he voluntarily accepted the suggestion.
(Transcript July
29, p. 83)
171. In fact, one of the dispositions of the previous
Hearing Panel was an order that
His Worship take gender sensitive counselling. His Worship conceded, in cross- examination, that that was indeed
the case.
(Transcript
July 30, p. 40)
172. His Worship’s evidence was variable and
inconsistent regarding whether females
who received compliments they deemed inappropriate had an onus to speak out, or
speak up to His Worship.
At one point, in cross-examination, His Worship
appeared to agree with Presenting Counsel’s suggestion that it was not the woman’s obligation, but
his evidence then shifted. The exchange
was as follows:
Q. Yes. And that it is your
obligation, not the woman’s obligation, to not engage in conduct
that may potentially be perceived in a negative way, right?
A. That’s correct. I
hastened to add, however, prior to Bill 168 there was an onus, and the onus is
clearly to engage the individual or the person
who alleged to have made the conduct, to alert them of the possibility that it was unwelcome, or not
appreciated, or quite frankly some
indication. And should that person continue, to fail to cease and
desist, and of course it can constitute – yes.
Q. Just so we understand it. Your
position is that it was the obligation of these women to raise it with you?
A.
Not an obligation, it certainly
was an indication that, if you wish, a
requirement to advise, if need be, or to alert the alleged
perpetrator, prior to Bill 168.
(Transcript
July 29, p. 151)
173. When Bill 168 was presented to him by Presenting Counsel
in the course of cross-examination the following day, His
Worship tried to disavow his earlier evidence:
Q.
Correct, and it has nothing
to do with changing any obligation on a
victim to report or tell the harasser
to stop, right? There is nothing in there
about that; will you accept that?
A.
Absolutely, and if I said -- again,
if I misspoke or if I conveyed
this impression, then I was wrong and I will say that right now. There has always been an obligation,
and I have never – again, that is all I can say, is that the obligation on
someone perpetrating harassment in
any form – there is no obligation on the person who is the recipient or
receiving that behaviour to advise. I thought I tried to explain, perhaps
this morning, that in the broader
sense what the context were, but what I – referring to Bill
168 – let me put it this way. Perhaps
what I intended to convey
in Bill 168 was it added
definition, call it the broadening, the widening, the tightening up, if you
wish, that of additional behaviour impediments.
(Transcript July 30, pp. 37, 38)
174. Counsel for His Worship, in his written
submissions, highlighted that we should consider “internal consistency or
inconsistency of evidence”, “the witness’s
opportunity and/or inclination to tailor evidence”, and “the witness’s
opportunity and/or inclination to embellish evidence” as relevant
factors in the assessment of credibility and reliability. In all of
these aspects, we find His Worship’s evidence to be problematic. His
testimony was replete with inconsistency, an air of insincerity, and
efforts to adjust his testimony to minimize the inappropriateness of his conduct. We do not accept that he is a credible witness or that his
evidence was reliable.
175. Counsel for His Worship submitted that a number
of the witnesses called by
Presenting Counsel had a questionable motive to make the allegations against His Worship Massiah such that their evidence about his
actions or comments should be disbelieved.
In relation to II, his position was that as she made no complaint about His Worship until she read
about the first hearing, and although
she testified that she had no knowledge of the previous
complaints, she was concerned he would get “a kiss”, in
effect, a minimal disposition; thus, her
motivation to give evidence should be suspect. He argued that she bore an animus against His Worship because he
appeared to coddle defendants,
especially females, and because he overruled her on an occasion when she
called security to the courtroom to assist with a person
who spoke out. He argued that she demonstrated racial bias
against His Worship when she used the term “soul brother” to describe
his manner of speaking.
176. In our view, Ms. II’s evidence was cogent and unshaken. Regarding
her use of the term “soul
brother”, we accept her evidence that she did not call His Worship a “soul brother” as a racialized
term, but rather, used it to describe the tone of his voice and the manner in which he spoke. Ms. II, like other
witnesses including Ms. HH, Ms. BB,
and NN, described through imitation in their testimony, the tone and
manner of His Worship’s “compliments” to them. As Ms. II described, the words as well as the slow, breathy
manner of expressing them, were reminiscent
of a style of speaking which the phrase “soul brother” connotes. Ms. BB described how His Worship
would slowly inhale
and exhale, commenting as he was exhaling, in
a sensual way.
177. The motivation of QQ, HH and NN was also questioned by His Worship
in the oral and written submissions, wherein he alleged
that it was the prosecutor’s office which “generated” the
second set of allegations resulting in this
hearing.
178. In our view, the evidence
of Ms. II, who had worked many years in the court system as a clerk, and the evidence
of the three prosecutors, each with
significant experience in a courtroom, were not only consistent in their descriptions about the type of inappropriate behaviour from His Worship which they observed, but also as to why they finally decided
something needed to be
said about it. We find that their motivation for complaining was not an animus
towards His Worship but rather their incredulity at His Worship’s
comments put forward in his
defence in the previous hearing. We find
as credible their respective indignation when they read the article
about his testimony
from the Law Times in
circumstances where they each knew that his conduct was also
inappropriate at the courthouse where they worked. We accept that despite the
courthouse culture at their location
that discouraged or oppressed complaining about inappropriate behaviour by a justice
of the peace, when the clerks at another
courthouse were being accused by His Worship of “ganging up” against him, the response of experienced staff and prosecutors was to speak out, and describe their observations of His
Worship Massiah and the impact his behaviour
had on them and others who worked with them.
179. His Worship, in his evidence,
appeared to attribute Ms. HH’s complaint against him to some grudge she might have held against
him in relation to a complaint
lodged by another justice of the peace against her with the Law Society.
This testimony made no logical sense. Ms. HH’s evidence, which we
accept, was that the complaint was dismissed before her involvement in this
proceeding, so it would
have no relevant connection to His Worship
and further that she had no
inclination that His Worship was a possible witness, as the complaint was made by another justice of the peace.
180. As referenced earlier, when His Worship also
suggested that when Ms. HH saw him
raking her body up and down with his eyes in a sexual manner, and he said, “looking gooooood, Ms. HH”, she
possibly “misinterpreted” a comment he made
about a court docket “looking
good”. His Worship
appeared to us to be “gilding
the lily”. It was palpable
from her testimony that Ms. HH still has an emotional reaction from the experience and that she recalled it very vividly.
The fact that she may have used two different verbs
to describe His Worship’s attention,
namely “raking” and/or “raping” her with his eyes, is of no relevant significance. We accept Ms. HH’s version of the incident.
181. Counsel for His Worship argued that the evidence
of CC should be rejected in its
entirety. In cross-examination she was confronted with an email exchange between her and His Worship’s
previous counsel Eugene Bhattacharya when he
sought to have her act as a character witness for His Worship during the previous hearing, and specifically
with an email dated September 12, 2011
(Exhibit 19). In that document, Ms.
CC made complimentary comments, describing His Worship as a “very kind, caring,
and down-to-earth person”, who
“always treats me with the greatest respect.” “Yes he may make comments with regards to how you look or a new
hairdo but has never made me feel
uncomfortable.”
182. Ms. CC acknowledged writing the email but
testified that she wrote it so that the
lawyer, who had called her repeatedly at work and at home, would not bother her anymore. She testified that “ … he was pressuring me to become
a character witness for his first trial. I was not going to be a character witness,
because he has no character.”
(Transcript
July 15, p. 200)
183. We accept that Ms. CC’s reliability with respect to
His Worship’s interactions with her
and other staff is questionable, in that the contents of her email are inconsistent with her evidence that
she observed His Worship “eyeballing” female staff,
and that he made personal
comments to her which made her feel uncomfortable. Her comments in the email were made with the knowledge that they
could be used and relied upon in a hearing
about judicial discipline, and they must be considered in that context.
184. Ms. CC’s explanation, however, that she felt she
had to disclose what she knew when she was interviewed by the investigators in this proceeding because she was sworn to tell the truth, was believable in the context
of the courthouse culture. Ms. CC stated in cross-examination:
A.
I did not feel that it was not inappropriate. What I was trying to put
across is that in my training and my experience in the courts, that things went on, which were never
brought to light.
I would never
go and say anything against
a higher judge,
judiciary, Justice of the Peace, those are kind of things, whether they
bother me or not, that I would keep to
myself.
(Transcript July 15, pp. 192, 193)
185. Even if Ms. CC’s email in the previous hearing
renders her description of His Worship’s inappropriate conduct
unreliable, other witnesses, including Ms. II,
Mr. QQ and NN gave compelling evidence
about what they saw and heard even when the looks and/or comments were
not specifically addressed to them. It was
clear to us that their concerns were for others who were the subjects of His Worship’s conduct and for the impact on
the administration of justice. Each of them expressed a sense of surprise and discomfort that a justice
of the peace would conduct himself in such a way. For example, in
giving his evidence, Mr. QQ appeared uncomfortable when asked to
describe “ogling” and he genuinely
appeared to regret that he had not taken steps much earlier
to address the situation.
186. The nature of these experiences has left an impression with these witnesses. Like Ms. HH, AA had a clear
memory of how His Worship Massiah looked at
her when she was introduced to him, describing it as a “long up and down look that made me feel uncomfortable at the
time.” She explained:
A. Just the introduction, look in
the eyes, but then looking from the eyes
downwards, and then back up again. Just not maintaining eye contact, which just made me feel uncomfortable.
Q. What did you
take that look to convey, if anything?
A.
Well, it just -- it just made me take note of it, and it just felt kind of sexual in nature. Like it just felt
different than any of the introductions
that I ever had at that courthouse. So it stood out in my mind, and I just took note of it. …that wasn't
the typical introduction that I would get in the legal setting, and so it stood out as something
that I would take note of and remember for future interactions.
(Transcript
July 17, p. 157)
187. We note that one of the court clerks, who testified
she was not offended by His Worship’s comments to her, not only
highlighted the themes of hierarchy and
courthouse culture but also the type of “compliment” which His Worship Massiah frequently bestowed. GG met His
Worship in 2008 and found him to be “friendly”
and “approachable”. He made comments to her, she stated, like “nice hair”, “oh you look good today” and “oh, I’m glad
we’re off the record so I can tell you how
good you look today”. Although Ms. GG accepted these comments to be compliments, when asked if anything His Worship did made her feel weird she
stated:
A.
Yeah. I mean, once – once you hear, oh somebody is thinking that he’s – I don’t know how to explain it. But, yeah he’ll look you right in your eyes, and it did feel strange, I
guess, sometimes. Because most times
you’re – I don’t know – you don’t look people right in their eyes
and tell them how good they look it’s just something that would make me feel a little bit awkward.
Q. It would make you
feel awkward because
why?
A. Because he’s a
Justice of the Peace, he’s an older man, he’s attractive, and you’re just kind of a much lower level, and I don’t know, Hierarchy I guess.
Q. Did any other Justices of the
Peace ever look you in the eye and tell
you, “you look good”?
A. No, not – no.
(Transcript
July 17, pp. 179, 180)
188. When asked if she ever considered reporting His
Worship’s conduct, Ms. GG testified:
A. It didn’t really bother me
that much; I wasn’t really offended by it. I’m
surprised everybody else was offended by it, because they never seemed to have a problem with it at
the time. And in the past, also, if there was a problem, and if it involved a Justice of the Peace, if you would ever
say anything to management, it’s just
as if the Justice of the Peace – you can’t complain about them; anything they do is okay. So I just
wouldn’t feel like there would be a
point to even complain because – management isn’t going to do anything about it.
(Transcript July 17, p. 184)
189. We are satisfied
that there is consistent, cogent
and compelling evidence
from numerous witnesses, female
and male, staff
and prosecutors, which
proves on the balance of probabilities that leering
and ogling of female court staff,
prosecutors and defendants, and inappropriate sexualized comments towards female court staff and a female
prosecutor by His Worship Massiah were
common occurrences at the Whitby courthouse.
190. Ms. JJ, who testified on His Worship’s
behalf, and Ms. GG who stated she was
not personally offended by his compliments to her, provided similarly cogent and corroborative evidence about His
Worship’s behaviour.
191. We reject the evidence of His
Worship that a perception that he was leering
and ogling female defendants in the courtroom resulted from his manner
of taking his glasses off and on,
and that action led to the belief that he was looking their bodies up and down. He testified as follows in examination-in-chief:
Q.
…So, first of all, I think it would be fair to say that there is a general allegation out there that you
ogled, or looked clerks and other women
up and down. So do you have a generalized response to that or --
A. Yeah, I do. That's an impression
that individuals or others have. I do
not share that, I do not agree with it. I do not look at anyone, anyone
in an ogling manner, or up and down fashion, I simply do not. In court, I administer my role that I'm
required to do. And that is, I am required
to make an assessment of anyone coming before me. Both in terms of themselves, how they're behaving
and what have you. And I made that part of my initial judgments. I
have no reason to do that and I did
not do that.
Q. I see you have glasses
in front of you.
A. Yes.
Q. So let me
ask you about your vision. What is your vision
like?
A.
Fairly poor. I see you a little bit at the far side there, I need to put on my glasses, I cannot see that well. So I
take it on and off.
Q. Okay.
Is there some reason you sometimes take it off?
A. Yes. Because I have 20-20 vision
close up, and I can concentrate on
what I am doing in front of me. I’ve got to be mindful of my decision or the information I have before me.
(Reporter sought clarification.)
Q.
So what are you telling
me about now when you say you have to be mindful of your decision?
A. In other words, I pay attention
to what I'm doing in front of me. And as I
need to, to make an observation, or to reference a point. I put my glasses on and I get a sense of what I am looking
at, for example, if someone appeared before me, then I put
my glasses on and I would see that I
have someone before me, in whatever fashion and manner, and I concentrate on
that.
So if I'm looking at a person without my glasses, I
really -- I don't see that person
very well.
(Transcript July
29, pp. 30-32)
192. In cross-examination, he agreed that the
prescription for the glasses was a fairly
minor modification. His Worship attempted, nevertheless, to attribute his leering and ogling behaviour to putting
his glasses on and off in court. Mr. QQ, however,
confirmed that the act of putting glasses
on and off was not a valid
explanation for conduct that was in fact leering and ogling at women,
and Mr. QQ’s evidence of what he
observed was convincing.
193. We accept that His Worship made inappropriate
comments to females both in the courtroom and in and around the courthouse. We accept
as reliable and compelling the evidence of NN, who characterized His Worship’s behaviour in her testimony:
A.
It frankly reinforced
the concern that I had – the behaviour that I had observed
in the courtroom. And it made me, even though it wasn’t directed at me, it made me feel very uncomfortable that a man in which I interacted professionally, would
behave in a way that objectified how
a woman looks.
(Transcript July
18, p. 115)
194. Counsel for His Worship argued
also that BB was incapable of being believed. He argued that Ms. BB’s
evidence had been adversely affected by the passage
of time; that it was II who planted the details of the touching incident
because of her animus for His Worship,
and then pressured Ms. BB to come forward
with her allegations. Counsel
pointed to the statements Ms. BB provided
when she was interviewed by
the investigators assisting the Complaints Committee during the investigation to argue that her testimony that she
was touched by His
Worship should be found to be unreliable and should not be accepted.
195. In our view, Ms. BB’s explanation of why she provided fewer details and was
more vague in her recollections when she spoke with the investigators than she was when she gave evidence before us
has a ring of truth. She testified she
wanted to put it out of her mind. What she recalled
most specifically was her
reaction to His Worship moving behind her and doing and saying
something inappropriate.
196. That reaction was strikingly consistent with Ms.
II’s evidence as to what she says she
observed. We accept, as His Worship
argued, that Ms. II would not have had
an unobstructed view of His Worship’s hands, and if or where they were on Ms. BB’s
shoulders. We also accept,
however, from the evidence of RR and AA,
(whose evidence was admitted for the limited purpose of rebutting the allegation of recent fabrication advanced
in His Worship’s cross-examination of Ms. BB), that Ms. BB was upset after an incident
involving His Worship, and how
uncomfortable he had made her feel and she expressed this discomfort to others after it occurred. Further cogent
evidence of the inappropriate interaction
between His Worship and Ms. BB came during the testimony of staff supervisor, KK, who recalled meeting
with Ms. BB after II reported the incident. Ms. KK
testified in cross-examination that, at the time, Ms. II seemed genuinely agitated and upset. Ms. KK testified that when she met with Ms. BB, Ms. BB was upset with Ms. II, not for making
something up about Justice of the Peace Massiah, as His Worship’s counsel suggested, but rather because Ms. BB
did not want Ms. II to tell Ms. KK
about the incident; she did not want to talk about the incident; and she just wanted
it ‘to go away”. Ms. KK testified
that Ms. BB was crying
and shaking during their interview. And, as previously referenced, neither Ms. KK,
nor Ms. JJ, both staff supervisors, took any further steps to investigate or
address what had occurred between a justice of the peace and a female staff member in the workplace, despite both Ms. II reporting and Ms. BB confirming
that there had been “an incident”.
197. Ms. AA’s evidence corroborated Ms. BB’s
explanation that she sought to put this
experience with His Worship Massiah out of her mind. Ms. AA testified:
A. Well, I remember her feeling that
it made her -- saying that it made her
feel very uncomfortable, like I think even kind of shivering when she
said it. Like it was kind of awful to think about, or talk about.
(Transcript July
17, 2014, p. 162)
198. We accept that there is
credible, cogent and compelling evidence that
His Worship interacted inappropriately with Ms. BB, including moving
close behind her while she was working at her desk and without
warning deliberately touching her
shoulders with his hands. We reject
His Worship’s proposal that if there was
a touching, it was inadvertent, because of his stature and the tightness of the space. There is no plausible evidence
or explanation from His Worship
which would place him behind an administrative staff member’s desk,
leaning close to her, such that an accidental touching
could occur. We accept
Ms. II’s evidence that he was in the office to sign
paperwork and he veered in a different direction,
approached Ms. BB from behind. We find
that he touched her and leaned close,
commenting in her ear.
199. His Worship PP’s evidence about the alleged
incident at the University Women’s
Club in Toronto was unspecific and not reliable as to proof of His Worship Massiah looking at the chest of a
female justice of the peace.
200. With respect to the allegation that His Worship
invited female court staff into his
chambers when he was not fully clothed, as we stated above, His Worship testified that he rarely
shut the door of his chambers. His evidence was that it was an informal atmosphere
and his colleagues would just walk in. In our view,
his evidence on this point
is not logical or credible
as he said that if anyone
knocked at the open door, he never said, “come in”. His evidence was: “And I may say, "I'm
coming," or "coming." And I didn't say the "coming in."
I said, "I'm coming."
(Transcript
July 29, p.54)
201. As referenced earlier,
His Worship categorically denied that any staff member saw him shirtless and suggested he
was reluctant to have anyone see his body.
In cross-examination, when speaking about an incident addressed at the earlier JPRC hearing, he testified that
he did not tell a clerk that she could see him
with his shirt off. Rather, he said that he had been on various supplements and said to a
colleague, “If you want to see me with my shirt off, just let me know.”
(Transcript
July 30, pp. 105, 106).
This is a direct contradiction with his expression of
self-consciousness about his scar.
202. We accept that His Worship was
in the habit of changing into his court attire with his chambers door open, and inviting
staff to enter if they arrived when he was doing so. As EE testified, she felt
so uncomfortable after she found herself in
his chambers with him in a state of partial undress,
that she went downstairs and told her manager,
JJ. Both the managers, Ms. KK and Ms. JJ, confirmed the evidence of Ms. EE that she had seen
him with his shirt off. Surprisingly neither
manager seemed to appreciate that such conduct
by His Worship was
inappropriate. Rather, their evidence was that Ms. EE made light of it and enjoyed it. Neither of the managers
took any steps to investigate the incidents
reported to them by their female staff.
203. With respect to the “Lady in red” allegation, His Worship acknowledged that he may have uttered
those words but he could not recall. He testified
that what he most heartily disagrees
with is that he leaned in and whispered it. He categorically stated that he would not do that, particularly with Ms. HH. This
evidence is contradicted by what we accept occurred in relation to Ms. BB, when he leaned close to her and said
something in her ear. In fact, the actions have a striking similarity. As stated previously, Her Worship NN's
description of His Worship’s conduct on the stairs in
relation to Ms. HH was compelling. We accept her version of the events, and
find that His Worship leaned in toward Ms. HH
and that the comment “Lady in red” was made with flirtatious sexual overtones.
204. There
is, in our view, credible cogent evidence from the many witnesses previously referenced which proves, on the balance of
probabilities, that between May 30,
2007 and August 23, 2010, at the Whitby courthouse, His Worship engaged in a course of conduct, which included both
sexualized comments and conduct
towards female court staff, a female prosecutor, and female defendants, that was known or ought reasonably to be known to be unwelcome, unwanted and inappropriate. There is compelling evidence
that proves a pattern of such
conduct by His Worship towards women in the workplace which made them feel uncomfortable, uneasy, embarrassed and offended.
205. In our view this pattern of inappropriate and
offensive conduct resulted in a
poisoned work environment that was not free of harassment such that the comments and/or behaviour created a
hostile or offensive work environment for
individuals or groups and diminished individuals’ confidence in him as a judicial officer and their confidence in the administration of justice. There is cogent, credible evidence that female
staff were affected in their daily work. Ms. BB used the public washroom to avoid the risk of meeting His
Worship in the hall and asked other
clerks to take documents to His Worship’s chambers, until the time when the policy changed and female
clerks no longer took paperwork to the
chambers of justices of the peace at that location. Several staff members,
including Ms. BB and Ms. EE, avoided
his chambers when they believed
he would be present or alone.
There is compelling evidence from Ms. HH that
she dreaded walking past him outside the courthouse and got out of his
courtroom as soon as her work there was completed, not remaining to “chit chat” as she did with other judicial officers. There is credible evidence
from Mr. QQ, NN and Ms. II that
their confidence in Justice of the Peace Massiah and in the administration of justice was negatively impacted
by his conduct towards females
in the courtroom.
206. His Worship’s evidence
that his compliments, which we accept
objectified and sexually
harassed women, were simply part of his “management style” demonstrated complete lack of insight or callous
disregard for the women in his
workplace. Given his depth of experience working in the area of human rights
law, and his position as a judicial officer, His Worship would have known or ought to have known that such behaviour
could cause offence, harm, discomfort and/or
undermine the dignity of female staff and prosecutors.
207. We note that the Ontario Court of Justice Discrimination and Harassment Policy for
Judges and Justices
of the Peace was not established until 2009. However, we find that His Worship acted in a manner inconsistent with the Human Rights Code. His actions constituted
sexual harassment and he failed to treat others in the justice
system with mutual respect and dignity. He also acted in a manner
inconsistent with the Principles
of Judicial Office of Justices
of the Peace of the Ontario Court of Justice that
articulate the public’s expectation of a high level of conduct from justices of the peace.
208. His Worship Massiah’s interaction with female
staff was inappropriate and included
sexual, suggestive and/or inappropriate comments and/or conduct. His conduct
included gender-related comments about an individual’s physical characteristics or mannerisms; and/or unwelcome
physical contact; and/or suggestive
or offensive remarks or innuendoes about the female gender; and/or leering or inappropriate staring, including:
(a) Leering
at and/or ogling at female court staff and female
defendants.
(b) When he was introduced to AA in 2007, he slowly
looked her up and down in a
sexual way causing her to feel uncomfortable
and giving rise to a perception of an “undressing” look.
(c) He said to Ms. BB, “Looking good today, BB” while looking her up and
down head to toe with his eyes, and he often looked her up
and down head to toe.
(d) He said to Ms. BB in the back hallway near the
woman’s washroom that he liked
two-tone blondes.
(e) He said to Ms. GG “nice hair”,
“oh you look good today” and “oh, I’m
glad we’re off the record so I can tell you how good you look
today”.
209. We accept that His Worship left
the door to his chambers open when he was
changing his clothes despite the fact that he had a washroom
area where he could change in privacy, and often
changed in the office area outside of the
private washroom, in circumstances where he would have or ought to have
known female court staff could enter. The evidence demonstrated that clerks generally went to the chambers of justices of the peace around the same time each morning to take the court docket
and could be expected to be coming and
going from those offices to bring paperwork as part of their duties.
210. Based
on the evidence we find to be cogent and compelling, we accept that the allegations set out in Paragraphs
1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(e), 8(a), 8(c),8(d), 9, 10, 11, 13,and 14 of
the Notice of Hearing, have been made out on the balance of probabilities.
211. In
light of the nature of the conduct set out above, the range of women who were recipients of the conduct
of His Worship Massiah that has been proven on a
balance of probabilities, and his history of judicial misconduct of a similar nature at
a different courthouse, his conduct demonstrates a pattern of inappropriate
conduct toward women in the justice system.
Conclusion
212. The
acts that have been found to be made out in paragraph 210 above individually and collectively
constitute judicial misconduct that warrants
a disposition(s) under section 11.1(10) of the Justices of the Peace Act to preserve
the integrity of the judiciary and restore public confidence.
213. The hearing
will reconvene on Monday, March 23, 2015 at 10:00 a.m. for oral
submissions on disposition and any evidence that either party may wish to call on the issue of the appropriate disposition.
Date: January 12,
2015
Hearing Panel: The Honourable Deborah K.
Livingstone, Chair
His Worship
Michael Cuthbertson
Ms. Leonore
Foster, Community Member
No comments:
Post a Comment