JPRC Hearing Panel: We Will Consider Evidence of HW's Transfer on Disposition

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

Ms. Leonore Foster, Community Member

Hearing Panel of the Justices of the Peace Review Council

DECISION ON HIS WORSHIP’S MOTION FOR LEAVE OF THE HEARING PANEL TO RECEIVE AND ENTERTAIN FURTHER EVIDENCE ON DISPOSITION

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 Mr. Robert H. Karrass Morton Karrass LLP

Association of Justices of the Peace of Ontario (Intervenor)

DECISION ON HIS WORSHIP’S MOTION FOR LEAVE OF THE HEARING PANEL TO RECEIVE AND ENTERTAIN FURTHER EVIDENCE ON DISPOSITION

1.        This is a public hearing taking place pursuant to section 11.1 of the Justices of the Peace  Act  in  relation  to  a   complaint  about  the  conduct  of  His   Worship Errol Massiah. On January 23, 2015, this Hearing Panel issues its Reasons for Decision, finding that His Worship engaged in judicial misconduct towards females at the Whitby courthouse. The matter was adjourned until March 23, 2015 for submissions on the appropriate disposition(s) that should be imposed  under section 11.1(10) of the Justices of the Peace Act.

2.        Presenting Counsel and His Worship Massiah had the opportunity to file written submissions on the question of the appropriate disposition(s). Presenting Counsel had until Monday, February 2, 2015 to file written submissions and filed submissions by that date. His Worship was to file submissions by Monday, February 23, 2015. On February 22, 2015, Mr. Guiste requested an extension of one-week until Monday, March 2, 2015 to file His Worship’s submissions on disposition. The extension was granted and the submissions were received on that date.

3.        On March 23, 2015, an opportunity was provided for counsel to make oral submissions. Presenting Counsel and Counsel for His Worship made oral submissions at that time. The Panel reserved on its decision and adjourned the hearing until April 28, 2015 to give its decision on the appropriate disposition(s).

4.        On April 8, 2015, Counsel for His Worship Massiah filed a Notice of Motion requesting leave of the Panel to receive and entertain further evidence on disposition.

5.        The motion indicated that through inadvertence, Counsel for His Worship forgot to apprise the Panel of the fact that on July 10, 2012, Associate Chief Justice Payne approved in writing His Worship Massiah’s request to transfer to the Toronto Region. A copy of the email from the Associate Chief Justice was filed as documentary evidence in support of the motion.

6.        The motion referred to paragraphs 27 and 41 in the decision of the Hearing Panel in the case Re Kowarsky (JPRC, 2012).

7.        Counsel for His Worship argued that there was no prejudice to anyone and the evidence is relevant to the issues to be adjudicated.

8.        Presenting Counsel made no submissions on the motion.

9.        The Panel has considered the motion and will accept the material that has been filed and will consider it in our deliberations on disposition.

  Dated April 15, 2015. HEARING PANEL:

The Honourable Justice Deborah K. Livingstone, Chair Justice of the Peace Michael Cuthbertson

Ms. Leonore Foster, Community Member

RE His Worship Kowarsky - Reasons for Decision

[27]     Justice of the Peace Kowarsky sought and has been given approval to be assigned to locations other than the one where the complainant works.  Also, if she changes locations he will make similar arrangements.  A letter has been filed from Regional Senior Justice Robert Bigelow, dated April 19, 2011.  This letter agrees to carry out this scheduling request.  The significance of this voluntary accommodation by His Worship has been underlined by Presenting Counsel as being a significant consideration for the complainant and in turn the Panel.

[41]     Further, the Panel acknowledges that Justice of the Peace Kowarsky has taken a very significant step in having his assignment adjusted to accommodate the complainant.  It is a measure that may not have been achievable in any other way.  It is a very positive act for the complainant.  It is an act that exhibits integrity and should assist in restoring public confidence.