Saturday, July 11, 2015

Excerpts from Reasons for Decision on Liability and Excerpts of Evidence on Paragraphs 8(a)-(d) of the Notice of Hearing


[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)

[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 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 "its 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 don'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(sic) 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 the incident.

(Transcript July 17, pp. 137-142)

[103]   GG, a court clerk at the Rossland court, testified that His Worship Massiah would occasionally change out of 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 his 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; this 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)

[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 uncomfortable after she found herself in his chambers with him in a state of partial undress, that she went downstairs and told manager, JJ.  Both 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

July 15, 2014 (p.181 - 182)


Q.   And can you place those two incidents in time at all for us, in terms of, was it early on when - in your relationship with Mr. Massiah, or in his tenure, or later on; do you have a sense ?

A.   I can't answer that, I'm sorry.

Q.   Okay.  How many years would you say it was where you worked with His Worship ?

A.   I can't even recall that, when he was actually on his own and - - I can't recall.

Q.   What do you mean by "actually on his own" ?

A.   Without a mentor

Q.   Okay So you're unable to help us out at all about when these two incidents took place ?  Sorry go ahead.

A.   Are you asking me for a year, or a date, or...

Q.   Early in his tenure, later in his tenure ?

A.   As best I can put it is the early stages of me knowing him.

Q.   And do you recall where(sic) these two incidents close in time together ?

A.   I think so, yes.  Because I think after, if it were one or if it were three, after I would turn around and say, "well, am not coming in."  It didn't happen anymore.

July 16th, 2014 @ p.23

Q.   Right.  So would it be fair to say that on some material particulars your recollections have been weakened by the passage of time ?

A.   I think that would be a fair statement.

July 28th, 2014 - at p. 53-55

                                  Q.   I've asked you about EE
3     .
                                  A.   Yes.

                                    Q.   And have you exhausted your memory
         about what EE said to you when you
        were discussing the fact that she had seen Justice
         Massiah's --

                                    MS. HENEIN:  What page are we on?
                                  BY MR. HOUSE:
                                  Q.   I think it's 23, I believe.
                                  A.   It was said in a joking way;
       that's what I said.  It was not a complaint, she
       made light of it, she made fun of it.
                                  Q.   Okay.  If you would just take a
       look at page 24 to refresh your memory.
                                  A.   Okay.
                                  Q.   Did you overhear her saying
       anything about that interaction with Justice

                                  A.   Could I just read this?  Because I
       don't recall.
                                  JUSTICE LIVINGSTONE:  Yes.
                                  THE WITNESS: (Witness reviews document.)
                                  I don't recall -- like I'm reading that
       and obviously I remembered that back in July, two
       years ago, but I don't...
                                  BY MR. HOUSE:
                                  Q.   So first of all, tell us what it
       is you said back in July.   Can you read to us what
       you said back in July?
                                  A.   I said:
                                             "I overheard her tell her
                                  colleagues how she went up there and
                                  because she always thought he was a
                                  handsome man, and she kind of liked
                                  the fact that he was up there
                                  without his shirt on."
                                  Q.   And you now are saying that you
       don't have any recollection of her having said
                                  A.   I remember her not being offended
       by that, he was not wearing a shirt.   I remember it
       not being a big deal, she made light of it.   Like I
       said earlier, it sounded like she rather enjoyed it.

                                  Q.   But right now you can't remember
       overhearing something she said to her colleagues?
                                  A.   No, I don't specifically remember.
       I obviously did if I said it back then.   I
       specifically remember that it wasn't an unpleasant
       thing for her.
                                  MR. HOUSE:  Thank you very much.

                                  Those are my questions.

July 28th, 2014 - p. 84

                                  Q.   Let me ask you a little bit about EE
                                  When EE came to you and
       said that she had gone upstairs and had seen
       Justice of the Peace Massiah with his shirt off,
        was that the very first time you heard a clerk talk
         about that?
                                    A.   Yes, I believe so.
                                    Q.   All right.  So it had never been
       brought to your attention that there had been other
       experiences with this?
                                  A.   Of the same nature?
                                  Q.   Yes.
                                  A.   No.
                                  Q.   Had there been, would that have
       been something that you would be concerned about as
       a manager?
                                  A.   Yes.
                                  Q.   Why?
                                  A.   Just, I -- I don't know.  Because
       if it happens all the time, I would say there's a

       trend or a pattern, there's maybe something that I
       would have to look into.
                                  Q.   All right.  And when EE approaches you and tells you this, you say
       she's joking about it, right?
                                  A.   That's how she presented it, yes.
                                  Q.   Did you say, "well, then why are
       you raising it with me"?
                                  MR. HOUSE:  Sorry, I didn't hear the
                                  BY MS. HENEIN:
                                  Q.   Did you say to her, "why are you
       telling me about this"?
                                  A.   I don't recall what I said to her.
                                  Q.   Did you say to her, "were you
       bothered by this"?
                                  A.   No, I didn't, because she clearly
       was not bothered by it.
                                  Q.   Did she ever report it again to
                                  A.   Not that I recall.
                                  Q.   And in terms of your knowledge of
       what EE is like, and how she deals
       with things, you said other than a workplace
       relationship, you have no external dealings with

       her; is that fair?  You weren't friends?
                                  A.   I mean, the few staff have
       functions after work, that kind of thing, but I
       have no personal relationship.

July 28th, 2014 at p. 184...

                                    Q.   Okay, understood.
                                    Now, you've testified that EE, in particular, 
                  was one of the people who appeared to have some camaraderie
                  with Justice Massiah; is that true?

                  A.  That's true.

                 Q. and was there ever an incident in
                                               which EE talked to you about seeing
                         some or all of Justice Massiah's chest?
                                  A.   Yes, she did.

                                  Q.   Tell us about that.
                                  A.   I don't exactly know what, you
       know, precipitated that.   I mean, when I was going
       around and asking questions, you know, as I said
       there, or as you had clarified there, you know, I
       asked, "how do you get along with the judiciary?"
       You know, I would have -- I would have, you know --
       I may have named some names, but I wouldn't have
       named his name, His Worship Massiah's name
       specifically, without naming other people.   "Oh,
       how are you?  How is that working out?"   You know?

                                  Q.   Right.
                                  A.   And, you know, the other visiting
       Justices of the Peace, "how is that working out?"
       You know, so that kind of thing.   So it was
       probative, but it wasn't directed to try to -- for
       me, I know what I was probing for, but it wasn't
       going to be obvious to anybody else.
                                  However, I know that EE and --
       you know, I can remember her coming over to my
       office and saying "oh, we like working with His
       Worship Massiah.  And sometimes I get to see him
       without his shirt on."
                                  And that certainly made me get somewhat
       concerned.  And she's like, "so we try to catch him

       sometimes without his shirt on" and --
                                  Q.   Sorry, sorry.
                                  A.   Pardon me.
                                  Q.   She said what?
                                  A.   She said, "sometimes we like to
       catch him without his shirt on."
                                  (Reporter sought clarification.)

                                  MR. HOUSE:  Actually, I don't think
       that comment was addressed to you, Madam
                                  JUSTICE LIVINGSTONE:  Please have her
       repeat the answer.

                                  BY MR. HOUSE:
                                  Q.   Could you please repeat the last
       answer, though.  It may be that we didn't have the
       full sense of it.  Someone says that I spoke over
       your answer, for which I apologize.

                                  THE REPORTER:  I can read back what I

                                  JUSTICE LIVINGSTONE:  Please.
                                  Ms. JJ, can you hear my voice?
                                  THE WITNESS:  No, I can't.

                                  JUSTICE LIVINGSTONE:  Let Madam
       Reporter tell us what she has and then ask
       Ms. JJ if that is her full answer.

                                  BY MR. HOUSE:
                                  Q.   Ms. JJ, the Honourable
       Justice Livingstone is presiding over this matter,
       and she would like the court reporter to read to
       you what she believes is her last answer.   And then
       you are free to add anything to that, or if you
       think that has captured your answer, you can tell
       us that, okay?

                                  A.   Thank you.
                                  -- Reporter's Note:  Whereupon the
       answer was read back as follows:
                                             "Answer:  And, you know, the
                                 other visiting Justices of the
                                  Peace, "how is that working out?"
                                  You know, so that kind of thing.   So
                                  it was probative, but it wasn't
                                  directed to try to -- for me, I know
                                  what I was probing for.  But it
                                  wasn't going to be obvious to
                                  anybody else.
                                           "However, I know that
                                  EE and -- you know, I can
                                  remember her coming over to my
                                  office and saying, "oh, we like
                                  working with His Worship Massiah.

                                  And sometimes I get to see him
                                  without his shirt on."
                                           "And that certainly made me get
                                  somewhat concerned.  And she's like,
                                  "so we try to catch him sometimes
                                  without his shirt on" and --

                                  BY MR. HOUSE:
                                  Q.   So is there anything you'd like to
       add to that answer, Ms. JJ ?
                                  A.   No.  I'd like to take away some of
       the "you knows," but...
                                  Q.   Well, everyone is amused at that
       answer, and so unfortunately we're verbatim here.
       All counsel suffer in the same way.
                                  A.   All right, no.  I don't think I
       need to -- I want to add anything to that
                                  Q.   All right.
                                  A.   I should say, maybe I should say,
       I was somewhat taken aback by that comment.   And
       that she says, "oh, I'm just kidding."   And so I
       guess I do have something to add to that.
                                  "Oh, I'm just kidding.  But sometimes
       we catch him without his shirt on."   So she was
       treating it very light, and I let it stand that way.

                                  Q.   All right, thank you.
                                  I'm just reviewing my notes to see if
       there's anything else that I need to ask you.   So
       if you could just hold on for a second please.

                                  MR. HOUSE:  All right.  Those are my
       questions.  Thank you very much.

July 28th, 2014 - at p. 210

                                  Q.   And let me just ask you about
       EE and your saying that she seemed to
       be joking about seeing Justice of the Peace Massiah
       with his shirt off.
                                  A.   Um-hum.
                                    Q.   Do you recall today you said that
         they would try to "catch him with his shirt off."
                                    A.   That's what she said, um-hum.
                                    Q.   You didn't tell that to the
       investigators, did you?
                                  A.   I thought I did.
                                  Q.   Well --
                                  A.   I don't know, if it's not in the
       transcript it's certainly in my memory.
                                  Q.   So you recall -- you recall
       EE making a joke about catching
       Justice of the Peace Massiah with his shirt off,
       but you do not recall a serious complaint involving
       BB and II; am I right?
                                  A.   If you want to put it in those
       terms, that's what it looks like.   That's not -- I

       don't recall what other incidents that I can put it
       all into context, and I guess that's true about
       most people that you -- some things you recall
       clearly, and other things you don't.   I don't know.
                                  Q.   Let's talk about the one you
       recall.  EE, when she says to you, you
       know, "I caught him with his shirt off."   And she
       makes light of it, what do you do to consider that
       a little further?  Do you ask her any questions,
       "how is it that you come to see him with his shirt
                                  A.   Well, whatever my response was to
       her, that's when she said -- and I don't remember
       my exact words -- but as I said, I took -- I
       reacted to her making that comment.   And that's
       what she said was, "well, we try to catch him with
       his shirt off."  So to me, when I repeat that back
       to you and when I thought about it, I knew she was
       trying to make light of the situation, that she was
       treating it with some frivolity.
                                  In hindsight, because we're 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.

                                  Q.   And did you try to ask her when
       she said, "we try to catch him with his shirt off"
       did you even ask, "how many times does that

                                  A.   No, I didn't.

July 16, 2014 - at p.183-184

Q.   Okay.  And these occasions when you went up to Justice Massiah's office on the second floor, and he was completing getting dressed, do you know what years those were in ?  Was that early on in his attendance there, or was that later ?

A.   I believe he started when were were at 701 Rossland, and we were there about two or three years, and it happened at 605 Rossland.  So it was after we moved.  I think it was probably 2007, 2008.

NOTE:  Due care has been taken to reproduce accurately the excerpts of the panel's decision on liability and the excerpts of the transcripts quoted herein without comment or analysis. If any errors are located please bring them to my attention forthwith for correction. 

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