Sunday, July 12, 2015

Findings Against HW Massiah on Paragraphs 7(b), 7(c), 7(d), 7(e) and 7(f) of the Notice of Hearing, Excerpts of HW Massiah's written submissions and Excerpts of the respective witnesses testimony and Exhibit 25

The particulars of the complaint regarding the conduct of Your Worship 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 Warship'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;

The acts are set out below in paragraphs 7 to 15 below.
7.                    Your interaction with female staff was inappropriate and included sexual, suggestive and/or inappropriate comments and/or conduct.  Your  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.

(b)               When you were introduced to "AA" in 2007, you slowly looked her up and down causing her to feel uncomfortable and giving rise to a perception  of an "undressing" look.

(c)                You said to "BB", "Looking good today, 'B"' while looking her up and down head to toe with your eyes, and you often looked her up and down head to toe.

(d)               You said to "CC", "Girl, you're looking good today", "Oh, you look very nice today", "Those look really good", "Fits you", "Forms you".

(e)                You said to "BB" in the back hallway near the woman's washroom that you like two-tone blondes.

(f)                 You said to "DD", "Oh 'D', you're looking great today" and "Have you lost weight? Those pants look really good on you."

8.                    You invited court staff into your chambers when you were not fully dressed, including:

(a)                On two occasions between 2007 and August of 2010, you were in your chambers changing your clothes with the door open when "EE" came to your chambers to bring you paperwork. You told her to enter the chambers in circumstances when you were not fully dressed. In one instance you were about to put your shirt on and in one instance your shirt was wide open. You were either putting your  shirt on or talcing it off. You told her, "That's okay", "no,  no,  don't worry, just  stay" and said, "come on  in".

(b)               On two different occasions, you were in your chambers  changing  your clothes with the door open and when "CC" was delivering documents to you, you told her to come in when you were not fully dressed. On least one occasion, you were bare chested. You were either putting your shirt on or taking it off. When she turned around to leave, you made comments such as "no, no, it's fine, it's fine."

(c)                On another occasion, you were in your chambers changing your clothes with the door open and when "FF" was delivering documents to you, you were standing in partial view of the door with your shirt off.

(d)               In the hallway behind the courtroom, you inappropriately removed  your robe when you were wearing an undershirt underneath, and no dress shirt, in the presence of a female court staff person, "GG".

9.                 In late spring or early summer of 2010, when "HH", a provincial prosecutor,  was  coming in :from the parking garage to the courthouse. As she was walking  past  you,  you  said, "Mrs. "H", looking goooood" in a manner that conveyed sexual undertones. With your eyes you also looked her up and down in a manner that conveyed sexual connotations. This caused Ms. "H" to feel very uncomfortable and vulnerable.

10.             Between 2007 and 2008, when "HH", a provincial prosecutor, was walking up the stairs in the courthouse, you leaned in toward her from behind and with your mouth close to her ear, and you said, "Oooh, Lady in red" in a manner that appeared to be deliberately flirtatious, intimate and/or suggestive in an inappropriate way for a female in the workplace.

 11.            You approached "BB" when she was seated at her desk, stood inappropriately close to her, hovered over her, touched her shoulders and in a sensual, sexual way said, "How are you doing today?" causing Ms. "B" to feel very uncomfortable and shaken.

12.                In 2007 at a dinner at the University Women's Club in Toronto with other justices of the peace, you inappropriately "eyeballed" a female justice of the peace and stared at her chest.

13.                You  demonstrated  inappropriate  conduct  towards  female  defendants  in  the  courtroom, including leering female defendants in the court who appeared before you, 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" Some prosecutors  and some court staff felt that their  confidence  in you  as a judicial  officer and that public confidence in the administration of justice  were negatively  impacted by their observations of your conduct in the courtroom towards female defendants.

14.               In light of the nature of the conduct set out above in paragraphs 1 to 13, the range of women who were recipients of your conduct, and your history of judicial misconduct of a similar nature at a different courthouse, your conduct demonstrates a pattern of inappropriate conduct toward women in the justice system.

15.          The act or acts as set out in the above paragraphs 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.

Excerpt from Panel's Decision on
Jurisdiction and Alleged Abuses of Process
(January 12, 2015):

[119]   The ability of each witness, including His Worship, to recall events and provide accurate testimony on events of years ago is an issue to be assessed when we consider and weigh the evidence on its merits.  In our opinion, a passage of tie that may cause memory to fade does not, however, form a basis to conclude there has been an abuse of process.  No legal basis or actual prejudice on the facts of this case was presented which counters this view.

Excerpts from Panel's Decision on Liability
(January 12, 2105):

[208]   His Worship'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 Ms. BB, "Looking good today, BB" while looking her up and down head to toes with his eyes, and he often looked her up and down head to toe.

(d)   He said to 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.

Excerpts of His Worship Massiah's 
written submissions on the allegations
of AA:

Lack of particularity in

16.       The allegations brought against HW Massiah are wanting of the following particulars:

1.      Material facts in support of the communications being unwelcome or unwanted;

2.      Material facts in support of the alleged poisoned work environment created by HW Massiah;

3.      “AA in 2007”.  Witness can not remember the other party present who did the introducing;

4.      Material facts in support of a course of vexatious conduct;

5.      Particulars of date, time and place for 7(a), (b), (c ), (d), (e), (f), 8(a), (b), ( c), (d), 9, 10, 11, 13.

Adverse impact
of delay on ability
to recall material points:

16.       Several of the witnesses were unable to recall material points to the allegations such as date, the content of conversations, alleged occurrences themselves and some were quite forthright in acknowledging that the passage of time adversely impacted on their ability to recall material points.

                                                            Testimony of BB - entire
                                                            Testimony of CC - see p.6,22,23,26,
                                                            28, 30, 168, 181, 238, 240
                                                            Testimony of QQ - see
                                                            Testimony of NN - see p.104, 126, 127,
                                                            Testimony of PP- see p.22, 24, 25, 27,
                                                            Testimony of Witness X - see p.125, 130, 131,
                                                            Testimony of AA - see p.156, 157, 166
                                                            Testimony of HW Masiah

Excerpt of AA's testimony
In Examination-in-Chief by 
Presenting Counsel:
(July 17th, 2015 at p.157-157)

Q:   Okay.  Do you recall being introduced to His Worship Massiah ?

A.   I do.  That was at Criminal Court.  I don't remember when it was, but I remember it, yes.

Q.   Are you able to describe the circumstances and any details of that meeting ?

A.   I remember being by the Bail Court.  There was two Bail Courts side by side, I was in the back hallway.  I was not working in Bail Court that day, I was working for another justice.  And I remember someone introducing me, I don't remember who that was.  But I remember the introduction.

Excerpts of His Worships's written
submissions on abuse of process re 
BB's testimony:
(referred to as Ms. F in those 

48.       Sid(sic) not want to make a complaint against Justice Massiah. Eventually, when she was “pressured” by II to do so, she went to management to complain about this pressure. She stated she did not remember what had occurred. She told one witness at the time that Justice Massiah had “touched her hair”, something which could easily be accidental in a closed space. Later, she claimed that the incident involved an utterance and no touching, and she wanted to get on with her life.

49.       She did not claim to be fearful of making a complaint, and in fact Ms. JJ revealed that she had made a complaint against a different Justice of the Peace, evidence that she was aware of the procedures and could act if she felt it important.

50.       It is submitted that, even if her interview by investigators is taken to be a “complaint” she cannot demonstrate good faith as required by human rights jurisprudence to overcome the dated nature of her allegations. 

Excerpts of His Worship's written
submissions on the merits re BB's
(referred to as Ms. F in those

Evidence of BB
(referred to as F
in the written submissions)

F testified that Justice Massiah once came to her desk and “from what I can remember”  “just put his arms on my shoulders and made a remark”. It made her feel very uncomfortable. If true, this would be evidence of judicial misconduct, but it is submitted, it cannot be believed.

Evidence of F,
July 16th, page 49, lines 6-16

Mr. Gourlay for Presenting Counsel asked her why she had never made this allegation before giving her testimony. We submit that he was right to do so. Ms. F however, stated that she had said this previously, and pointed to a leading question by investigators: “Do you recall him coming up behind you, putting his hands on your shoulder, and saying something to you and then walking away” Answer: “Yup, yup. yup, that may have happened.”

She continued: “I remember it definitely was not appropriate what he said what he did, I remember because of the reactions. I remember because of how I felt. I don’t remember specifics.”

Evidence of F,
July 16th, page 76

Adverse impact
of delay:

It is submitted that a statement such as this in response to a leading question would, if it stood alone, be entitled to very little weight, if any. However, as became clear in cross examination, that response was in the context of numerous statements that she did not remember anything about the incident.

For example, she testified in cross that she had earlier told the investigators that there was an incident which made her feel uncomfortable, but that she didn’t remember specifics. In answer to the question: “What made you uncomfortable about it?” she had replied “it was a comment, I think, that was made.”

Earlier, she had told investigators, in response to the question: “And what did happen? What was inappropriate? she answered “I don’t remember exactly what it was that happened, I can’t remember if it was a remark, ...I remember it being inappropriate...and I remember speaking to another co-worker about it, because I believe she overheard And years down the road, that’s when she asked me to come forward. And with what was going on in Oshawa I said I really didn’t remember the incident that much.”

Question: Did you say that? 

Answer: Yes. 

Question:  Is that true? 

Answer: Yes.

Evidence of F,
July 16th, pages 94-95

She testified that though she “did not remember much about the incident” she “felt pressure to testify about the incident” and was being “pushed to do something she didn’t want to do” by II, who was relating the incident to the ongoing hearings in Oshawa (the first Panel.) She complained to her supervisor and the matter was dropped for the time being. At that point, she told II “Good luck to the girls over there.”
                                                Evidence of F
                                                July 16th, p. 97-102

Excerpts of His Worship's 
written submissions on 
abuse of process re CC's
(referred to as B in the
written submissions)

Ms. B:

51.       Her viva voce evidence was entirely unreliable, and it  is submitted, can be usefully compared to  the emails sent to her and received by Mr. Bhattachuria, counsel at the previous hearing. Those provide a time- sensitive record of her feelings about Justice Massiah at the time. They show that she had many good things to say about Massiah in September 2011, things which essentially confirm Justice Massiah’s testimony that he was well-received in the Rossland Courthouse.

52.       The email record confirms that she would be unable to provide character evidence for Justice Massiah because of “pressure” within the office. Her email to that effect is dated  just subsequent to the date of the Law Times article, and when the prosecutors group was seeking out complainants among staff there.

                                                            Ex - 25

53.       She also told investigators that “the outcome” of the first case convinced her that she had been wrong to have believed that Justice Massiah’s behaviour had been appropriate and simply a reflection of his culture, ie. “the islands”.

                                                            Testimony of B – p.36-38 etc.  

Excerpts of His Worship's 
written submission on the 
merits re CC's testimony:
(referred to as B in the
written submissions)

Evidence of B
(CC in decision)

The second witness was B. We submit that her evidence was totally unbelievable and should be rejected in its entirety.

B was of the view that Justice Massiah was a “Barberion”, ie. originally from Barbados. She testified at length that he favoured, not women, but “his own kind”. She testified that after convicting people, he would ask where they were from, and if the answer was Barbados, he would treat them more lightly. This evidence put her powers of observation utterly into question. Justice Massiah is not from Barbados. He would have no reason to favour people from Barbados. No transcripts supporting this supposed bias were presented.

Further, B’s testimony was shaken in cross examination on other grounds. She had provided a statement to previous counsel, at the previous hearing, to the effect that Justice Massiah was a friendly justice whose compliments to her were welcome, and who had done nothing inappropriate. She disavowed the email she sent previous counsel, Mr Bhattachiriya, on the basis that each and every positive statement made about Justice Massiah was made by her only to get counsel to stop badgering her.

This testimony is unreliable. It should be noted that she told the investigators that, at the time, she had been naive in thinking that his comments to her such as “Hey girl, looking good” and similar, were simply a reflection of the fact that people from the Caribbean islands talk that way and have a more relaxed culture.

She told the investigators that “the outcome” of the previous hearing made her now recognize that what she had previously thought to be friendly and culture- based differences, was in fact gender-based discrimination. . Her answers to the investigators about her change in attitude and the reasons therefore were put to her in cross-examination; her reply did In fact, the timing of her emails to counsel suggest strongly that she changed her evidence at the same time as the prosecutors’ group were organizing further complaints against Justice Massiah, and her colleague II was looking for other complaints to bring forward. Exhibit 25 indicates that she wrote the lawyer directly that she could not be a character witness due to pressure in the office.

It is submitted that her ability to characterize Massiah’s behaviour first as positive, then as entirely negative, is explained by pressure in the office, and not by Mr. Bhattachuria’s attempt to get her to be a witness. If  her concern was to end the conversation with Mr. Bhattachuria, as she testified, a simple statement that she did not wish to be a character witness would have sufficed, it is submitted.

It is submitted that her evidence is not worthy of belief; if anything, the emails which form Exhibit 25 constitute a more contemporaneous record of her relationship with Justice Massiah than does her testimony before the panel.

Impact of Delay:

B was very clear that the passage of time adversely impacted her recollection on some material particulars.(July 16th at p.23)  She could not tell us when in time the dressing issue took place. (July 16th at p.181-82)  At p.238 she could not recall whether in fact she ever told Mr. Bhattacharya that she could not be a character witness for him because of the dressing incident.  She later suggests that he did not ask her about that because she would have told him about it. (at p.240)  Again she admits that the passage of time has affected her ability to recall some of the material points.(at p.240 ln 23)

            Cogent evidence that Ms. B is not an objective and disinterested witness can be seen at p 22 of the July 16th, 2014 transcript of her testimony.  When confronted with her investigation interview where she stated that HW Massiah would chat about, amongst other things, “how court looked, like the docket” she defiantly states that “I don’t recall.”  Although she acknowledges that she was trying to be very honest in her answers then she nonetheless defiantly refuses to acknowledge that her memory would have been better at the time she gave the statement than at this time.

                                                            Exhibit 25 - emails between Mr. Bhattacharya and
                                                            Ms. B
                                                            Testimony of C. B - July 15th
                                                            and 16th, 2014

C's character reference
for His Worship - Ex. 25

To whom it may concern:

This is B returning your e mail.  I apologize in advance for being late as I was on holidays and just returned today.

My comments are as follows for His Worship Massiah:

1.   I have worked with him since he was appointed to his Justice of the Peace position.
2.   I have been in the justice system as a criminal court reporter, court clerk, C.S.O. and court cleark monitor and further to date as P.O.A. court clerk monitor for approximately 14 years.
3.   I have worked with His Worship many times in and out of court.
4.   He is a very kind, caring and down to earth person.
5.   He always treats me with the greatest of respect - even though he is the Justice of the Peace and I am the clerk of the court.  He has never made me feel lower.
6.   We have conversations in the mornings, in chambers, and he has never done or said anything inappropriate to me.  We have carried on humour and of course I have accepted it with no regret or thereat.
7.   He always give praise and thanks when he is working with me.
8.   Yes he may make comments with regards to how your look or a new hair do but has never made me feel uncomfortable.  When he is in intake court, and is sometimes wearing a suit, I also make comments of the same to him.

There is so much more that I could say about His Worship but since he has been away for so long some things are hard to remember.

Again, the bottom line is, I find no merit to the case against him from his dealings with myself nor do I think he could/would be that type of person.



B's October 7, 2011 e mail
Ex. 25
Mr. Bhattacharya, 

I was happy to answer your inquiries about His Worship Massiah.  However, I do not consent to attending any type of hearing to testify for personal reasons.  I hope you respect my decision as it would make me fell very uncomfortable to appear in front of my peers.



Excerpt of Panel's findings
re DD (paragraph 7(f))

[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)

Excerpts of DD's
testimony under cross-examination
by Presenting Counsel - July 28, 2014
at p.138-139:

Q.   Do you recall His Worship at some point commenting on the fact that you had lost weight ?

A.   No.

Q.   And did he ever comment to you about your clothing, and tell you that your pants fit you nicely or  form you ?

A.   No. 

Q.   All right.  When you say "no", just so we're clear for the record.  Does that mean that comment never occurred, or you do not recall it ?

A.   That comment never occurred.


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