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,
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 DISPOSITION
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
Mr. James Morton,
Morton Karrass LLP
Counsel for the Association of Justices of
the Peace of Ontario (Intervenor)
the Peace of Ontario (Intervenor)
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names of all witnesses who appear in any of the facta or motion materials or application records in this hearing shall not be published, nor shall any information that might identify them be published.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.
DECISION ON DISPOSITION
1. In our decision, dated January 12, 2015, pursuant to section 11.1(10) of the Justices of the Peace Act, R.S.O. 1990, c.J. 4, as amended (hereafter “the Act”), this Hearing Panel found that the evidence was sufficiently clear, convincing and cogent to establish on a balance of probabilities that Justice of the Peace Errol Massiah had engaged in judicial misconduct. We found that the following 13 allegations referred to in the Notice of Hearing, filed as Exhibit 1(b), were proven by the evidence presented before us:
1) Between May 30, 2007 and August 23, 2010, he engaged in a course of conduct, including comments and/or conduct, towards female court staff, prosecutors and defendants that was known, or ought reasonably to have been known, to him to be unwelcome or unwanted. The conduct resulted in a poisoned work environment that was not free of harassment.
2) He acted in a manner inconsistent with the Human Rights Code by failing to treat others in the justice system with mutual respect and dignity.
3) He 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) His Worship ought to have known that such behaviour, particularly given his 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) His 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 him as a judicial officer and their confidence in the administration of justice.
7) His 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.
(b) When he was introduced to “AA” in 2007, he slowly looked her up and down causing her to feel uncomfortable and giving rise to a perception of an “undressing” look.
(c) He said to “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.
(e) He said to “BB” in the back hallway near the women’s washroom that he liked two-tone blondes.
8) He invited court staff into his chambers when he was not fully dressed, including:
(a) On two occasions between 2007 and August of 2010, he was in his chambers changing his clothes with the door open when “EE” came to his chambers to bring him paperwork. He told her to enter the chambers in circumstances when he was not fully dressed. In one instance he was about to put his shirt on and in one instance his shirt was wide open. He was either putting his shirt on or taking it off. He told her, “That’s okay”, “no, no, don’t worry, just stay” and said, “come on in”.
(c) On another occasion, he was in his chambers changing his clothes with the door open. When “FF” was delivering documents to him, he was standing in partial view of the door with his shirt off.
(d) In the hallway behind the courtroom, he inappropriately removed his robe when he was wearing an undershirt but no dress shirt, in the presence of a female court staff person, “GG”.
9) In late spring or early summer of 2010, “HH”, a provincial prosecutor, was coming in from the parking garage to the courthouse. As she was walking past His Worship who was sitting outside he said, “Ms. “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.
10) Between 2007 and 2008, when “HH”, the provincial prosecutor previously referred to, was walking up the stairs in the courthouse, he 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 for a female in the workplace.
11) He approached “BB” from behind 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. “BB” to feel very uncomfortable and shaken.
13) He demonstrated inappropriate conduct towards female defendants in the courtroom. This included leering at the female defendants looking them up and down in a sexual manner when they were standing in the courtroom, or walking up to or away from the front of the court, and giving them “the once over”. 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.
14) In light of the nature of the conduct set out above, the range of women who were recipients of his conduct, and his history of judicial misconduct of a similar nature at a different courthouse, his conduct demonstrated a pattern of inappropriate conduct toward women in the justice system.
2. We concluded that 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.
3. We now consider the issue of what disposition or dispositions are appropriate to restore the public’s confidence in the judiciary and the administration of justice.
4. Section 11.1 (10) of the Act provides that:
11.1(10) After completing the hearing, the panel…if it upholds the complaint… may,
a) warn the justice of the peace;
b) reprimand the justice of the peace;
c) order the justice of the peace to apologize to the complainant or to any other person;
d) order that the justice of the peace take specified measures, such as receiving education or treatment as a condition of continuing to sit as a justice of the peace;
e) suspend the justice of the peace with pay, for any period;
f) suspend the justice of the peace without pay, but with benefits, for a period up to 30 days;
g) recommend to the Attorney General that the justice of the peace be removed from office in accordance with section 11.2.
5. Section 11.1 (11) of the Act provides that the “panel may adopt any combination of the dispositions” except that a recommendation to the Attorney General that a justice of the peace be removed cannot be combined with another sanction.
6. Section 11.2(2) of the Act provides that a justice of the peace may be removed from office only if a complaint about the justice of the peace has been made to the Review Council and following a hearing under s. 11.1, the Hearing Panel, recommends to the Attorney General that the justice of the peace be removed on the ground that “he or she has become incapacitated or disabled from the due execution of his or her office by reason of, inter alia, ‘conduct that is incompatible with the due execution of his or her office’ or the ‘failure to perform the duties of his or her office’.”
7. In accordance with the Procedures of the Review Council, Presenting Counsel’s role is not to seek a particular order against a justice of the peace 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. In that capacity, Presenting Counsel impartially assists the Hearing Panel in its consideration of the appropriate disposition(s).
8. Public confidence in the justice system is at the heart of a hearing into judicial misconduct. Like the Hearing Panel in Re Barroilhet: Decision on Disposition (JPRC, October 15, 2009) at para. 9, we take guidance from the principles established by the Supreme Court of Canada in Ruffo v. Conseil de la magistrature,  4 SCR 267 (SCC). At para. 68 in Ruffo, Justice Gonthier described the role of a judicial disciplinary body comparable to our Justices of the Peace Review Council established under the Quebec Courts of Justice Act:
 The Comité’s role in light of these statutory provisions was accurately described by Parent J., at p. 2214:
[Translation] … the Comité is the body established for a purpose relating to the welfare of the public, namely to ensure compliance with the code of ethics that sets out the rules of conduct for and duties of judges toward the public, the parties to a case and counsel. The Comité’s role is to inquire into a complaint alleging that a judge has failed to comply with the code, determine whether the complaint is justified and, if so, recommend the appropriate sanction to the Conseil.
The Comité’s mandate is thus to ensure compliance with judicial ethics in order to preserve the integrity of the judiciary. Its role is remedial and relates to the judiciary rather than the judge affected by a sanction. In this light, as far as the recommendations the Comité may make with respect to sanctions are concerned, the fact that there is only a power to reprimand and the lack of any definitive power of removal become entirely comprehensible and clearly reflects the objectives underlying the Comité’s establishment: not to punish a part that stands out by conduct that is deemed unacceptable but rather to preserve the integrity of the whole.
Ruffo v. Conseil de la magistrature,  4 SCR 267 (SCC) at para. 68
9. Accordingly, in assessing the conduct of justices of the peace, the role of a Hearing Panel under section 11.1 of the Act is remedial and relates to the judiciary in general rather than the specific justice of the peace affected by a sanction. As such, the role of the Hearing Panel in addressing judicial misconduct is not to punish a part, i.e., the individual justice of the peace who stands out by conduct that is deemed unacceptable but, rather to preserve the integrity of the whole, i.e., the entire judiciary itself.
10. Both Presenting Counsel and Counsel for His Worship agree that we should be guided by the ethical expectations that are inherent in the judicial function and are well established in Canadian jurisprudence. In Re Therrien,  2 SCR 3, at paras. 108- 111, Justice Gonthier clarifies these duties in his comments on the role of the judge and the manner in which the public perceives that role:
 The judicial function is absolutely unique. Our society assigns important powers and responsibilities to the members of its judiciary. Apart from the traditional role of an arbiter which settles disputes and adjudicates between the rights of the parties, judges are also responsible for preserving the balance of constitutional powers between the two levels of government in our federal state. Furthermore, following the enactment of the Canadian Charter, they have become one of the foremost defenders of individual freedoms and human rights and guardians of the values it embodies: Beauregard, supra, at p. 70, and Reference re Remuneration of Judges of the Provincial Court, supra, at para. 123. Accordingly, from the point of view of the individual who appears before them, judges are first and foremost the ones who state the law, grant the person rights or impose obligations on him or her.
 If we then look beyond the jurist to whom we assign responsibility for resolving conflicts between parties, judges also play a fundamental role in the eyes of the external observer of the judicial system. The judge is the pillar of our entire justice system, and of the rights and freedoms which the system is designed to promote and protect. Thus, to the public, judges not only swear by taking their oath to serve the ideals of Justice and Truth on which the rule of law in Canada and the foundations of our democracy are built, but they are asked to embody them (Justice Jean Beetz, Introduction of the first speaker at
the conference marking the 10th anniversary of the Canadian Institute for the Administration of Justice, observations collected in Melanges Jean Beetz (1995), at pp. 70-71).
 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 the public respect and confidence is any conduct of judges, in and out of court, demonstrating a lack of integrity. Judges should, therefore, strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality, and good judgment.
(Canadian Judicial Council, Ethical Principles for Judges (1998), p. 14)
 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 …
11. We agree with the comments made by the Hearing Panel in Re Phillips: Decision on Disposition (JPRC, 2013):
 Central to our analysis is the concept of judicial integrity expressed in the Report of the Canadian Judicial Council to the Minister of Justice Concerning the Honourable Paul Cosgrove, supra, where the Council wrote: Public confidence in the judiciary is essential in maintaining the rule of law and preserving the strength of our democratic institutions. All judges have both a personal and collective duty to maintain this confidence by upholding the highest standards of conduct.
Report of the Canadian Judicial Council to the Minister of Justice Concerning the Honourable Paul Cosgrove of the Superior Court of Justice of Ontario, supra., at para. 1
12. We adopt the approach described by the Hearing Panel in Re Baldwin (OJC, 2002) at page 6 when determining the appropriate disposition: It is only when the conduct complained of crosses this threshold that the range of dispositions in s. 51.6 (11) is to be considered. Once it is determined that a disposition under s. 51.6(11) is required, the Council should first consider the least serious – a warning – and move sequentially to the most serious – a recommendation for removal – and order only what is necessary to restore the public confidence in the judge and in the administration of justice generally.
13. We adopt also the reasoning of Justice Otter in the Romain Inquiry Report that the same principles applicable in judicial misconduct cases involving judges are applicable to justices of the peace: Given the critically important role of the justice of the peace at the gateway to our judicial system, I am of the view that there is no reason that a justice of the peace should not be held to the same high standard of conduct as all other judicial officers.
The Honourable Mr. Justice Russell J. Otter, Report of the Judicial Inquiry Re: His Worship Rick C. Romain (2003), at p. 21, aff’d Romain v. Lieutenant Governor in Council (2005), 258 DLR (4th) 567 (Ont. Div. Ct.)
14. Counsel for His Worship, in his written submissions, argued, and we accept, that security of tenure for justices of the peace, as for judges, is the first of the essential conditions of judicial independence. Removal from the bench is the most serious disposition and must only be imposed in circumstances where the judicial officer’s ability to discharge the duties of office is irreparably compromised such that he or she is incapable of executing judicial office.
15. In 2009, in relation to His Worship Jorge Barroilhet, the Hearing Panel stated:
 In light of these findings, the Hearing Panel must determine whether the conduct of the justice of the peace in issue is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the justice of the peace, or of the public in its justice system, would be undermined, rendering the justice of the peace incapable of performing the duties of his or her office.
Re Barroilhet: Decision on Disposition (JPRC, October 15, 2009)
16. In reviewing our findings of misconduct in this case, Presenting Counsel has urged us to consider the list of factors which the Hearing Panel in Re Chisvin (OJC, November 26, 2012 at para. 38) found to be helpful in its consideration of the appropriate disposition. We agree that these ten factors should guide us. They are:
1) Whether the misconduct is an isolated incident or evidenced a pattern of misconduct;
2) The nature, extent and frequency of occurrence of the acts of misconduct;
3) Whether the misconduct occurred in or out of the courtroom;
4) Whether the misconduct occurred in the judge’s official capacity or in his private life;
5) Whether the judge has acknowledged or recognized that the acts occurred;
6) Whether the judge has evidenced an effort to change or modify his conduct;
7) The length of service on the bench;
8) Whether there have been prior complaints about this judge;
9) The effect the misconduct has upon the integrity of and respect for the judiciary; and;
10) The extent to which the judge exploited his position to satisfy his personal desires.
17. We found there was a pattern of misconduct at the Whitby courthouse by His Worship towards women in the workplace which made them feel uncomfortable, uneasy, embarrassed and offended. As we stated in our Reasons for Decision (JPRC, January 12, 2015), this pattern of inappropriate and offensive conduct resulted in a poisoned work environment that was not free of harassment. The comments and/or behaviour of His Worship created a hostile or offensive work environment for individuals or groups and diminished confidence in him as a judicial office. His conduct also diminished their confidence in the administration of justice. The women who were subjected to his misconduct included females who worked as staff, prosecutors, and litigants. When considered in addition to the findings of misconduct by the previous Hearing Panel that heard evidence about his misconduct towards female court staff at a different courthouse, the breadth of the overall pattern of conduct at both courthouses is significant and stunning.
18. The frequency and extent of the misconduct was relentless, occurring as early as his initial introductions to staff when he first began appearing at the Whitby courthouse. We accepted the testimony of both males and females, who received or observed the inappropriate comments and conduct, that women working in the courthouse felt sexualized and uncomfortable as a result of His Worship’s judicial misconduct. We were satisfied 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.
19. Although His Worship Massiah has been on the bench since 2007, as a result of the sequence of events, he has been unassigned to work since August of 2010. The complaint about his misconduct at a different location was ordered to a hearing in 2010. During that hearing, new allegations came to light about his misconduct at the second location, the Whitby courthouse, eventually resulting in the second hearing over which we have presided. His length of active service on the bench therefore is relatively brief, 2007 to 2010. The findings of misconduct in this matter span the entire period of His Worship Massiah’s active tenure on the justice of the peace bench. We further note that much of his first year would have been involved with educational training rather than presiding on his own.
20. We found that the misconduct in this case occurred both in and out of the courtroom with females who were cognizant of a differential power dynamic between a judicial officer and a court employee.
21. As stated, this is the second judicial discipline hearing in relation to a second set of findings of misconduct against His Worship Massiah. The findings establish that this is the second court location where His Worship objectified and sexually harassed women.,l
22. Counsel for His Worship argued that His Worship has acknowledged or recognized that the acts occurred in that he made no attempt to hide what he was doing, and at the time, he thought that the sexualized comments were appropriate, and he was “kind of oblivious” to his conduct.
23. Our findings, based on the evidence presented before us in this hearing, reject the argument that His Worship “fully understands now” what is and what is not inappropriate judicial conduct.
24. We refer specifically to paras. 46, 162, 167 and 169 of our Reasons for Decision, dated January 12, 2015:
“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.” (para. 46)
“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.” (para. 162)
“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.” (para. 167)
“When questioned about the previous finding 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.” (para. 169)
25. The previous Hearing Panel concluded, based on the information presented at that time, the public nature of the hearing would have brought home to His Worship any misunderstandings about his position of authority in relation to the female staff. That belief was proven wrong by His Worship’s testimony before us. Despite His Worship’s exposure to and opportunity to learn from the findings, reasons, and disposition from the previous hearing, and despite the decision of the Divisional Court in Massiah v. Justices of the Peace Review Council 2014 ONSC 3415 wherein his application for judicial review of the decisions made in the first hearing was dismissed, there was no forthright, unequivocal or convincing acknowledgement by His Worship during this hearing of the inappropriateness of his acts found to demonstrate misconduct or of the impact of his actions upon the women subjected to that misconduct. Nor was there convincing evidence that he felt remorse for those impacts.
26. Even though the findings in our hearing pre-date the decisions from the previous hearing, the findings of judicial misconduct at that hearing are relevant on the issue of disposition here in that misconduct of a similar nature has now been established in two different courthouses, involving sexualized comments and conduct towards females over whom His Worship had authority. The reasons and disposition from the first hearing are relevant as we consider His Worship’s testimony before us, in a second public hearing and what disposition(s) would restore the confidence in the judiciary of a reasonable member of the public. It is our view that a reasonable informed member of the public would be concerned by His Worship’s serious ongoing failure to understand or his unwillingness to respect the right of women in the workplace in a courthouse to be free of sexual harassment by a judicial officer. A reasonable person would conclude that His Worship’s professional experience and the judicial training program Workplace Harassment Prevention Workshop: Better Safe than Sorry attended by His Worship in the Fall of 2007 would have, or should have, educated him, prior to the time when he gave evidence before us. It should have eliminated any excuse for misunderstanding the impropriety of or the victimization caused by his actions. It should have reinforced the expectation of virtually irreproachable conduct required of a justice of the peace.
27. Counsel for His Worship submitted that His Worship has made an effort to change or modify his conduct.
28. His Worship was ordered by the previous Hearing Panel to undergo specific education or counselling in gender sensitivity and professional boundaries as deemed appropriate by the Chief Justice. We have reviewed the report, dated June 7, 2012, contained at Tab 3 of Volume 1 of His Worship’s written submissions on the Penalty Phase, which outlines the counselling in which His Worship was engaged as the Chief Justice directed. We have reviewed, also, the documents contained at Tab 7 (from the same volume as noted above) which describes a one-to-one Remedial Human Rights session in which His Worship voluntarily participated on April 3, 2012. We acknowledge that, in his testimony, His Worship expressed some regrets about his conduct, and claimed to have gained insight about his conduct.
29. Our findings were, however, that from His Worship’s testimony before us, there was cogent evidence that His Worship’s view of his conduct has not changed to any degree, even after it was found by the previous Hearing Panel that similar actions and comments constitute judicial misconduct. His Worship continues to describe his comments to the females at his workplace as “compliments” and as part of his “management style”. He denied touching a female member of the administrative staff but then equivocated that an inadvertent touching could have occurred because of his stature and the close proximity of the desks. He “reflected” that he was “very pumped” and therefore “greeted everyone in a very uplifting manner.”
30. In considering the extent to which His Worship exploited his position to satisfy his personal desires, we note that in our Reasons for Decision, we found that his evidence “was an attempt to minimize the obvious sexualized manner in the workplace” and His Worship, even when acknowledging some of the allegations of misconduct “adjusted his testimony to minimize the inappropriateness of the conduct.”
31. Most significant to our deliberation upon the appropriate sanction is the effect the misconduct has on the integrity of and respect for the judiciary.
32. We heard, and accepted as compelling, the evidence of two experienced prosecutors who testified that His Worship’s conduct lessened the entire dignity of the court and that their confidence in His Worship Massiah and in the administration of justice was negatively impacted by his conduct towards women in the courtroom.
33. Public knowledge that a judicial officer has been found to have engaged in judicial misconduct, in the form of sexual harassment of females, at two separate courthouses cannot but have an adverse effect on public confidence in and respect for not only His Worship, but also for the judiciary as a whole.
34. There have now been findings from two distinct Hearing Panels that at least 11 women have been subject to inappropriate sexual comments and conduct by His Worship. Other witnesses, found to be credible and reliable, described observing inappropriate conduct by His Worship towards others, including female court staff, a female prosecutor, and female defendants.
35. Counsel for His Worship argues that we should be guided by the previous Panel’s statement that they “are confident that His Worship Massiah will not engage in this type of conduct in the future”. Therefore, we should conclude that even though we have found a sustained pattern of inappropriate sexually-themed conduct over the course of three years at the Whitby courthouse, despite the finding of similar misconduct at a different courthouse, His Worship should be allowed, after a suspension, to return to the bench and to complete the follow-up counselling ordered at the first hearing. He submits that His Worship’s misconduct is “learned behaviour”, like “racism” and that it would be unfair to fault him for not learning as much as he would have wanted to, when he was unable to complete the follow-up program. As the misconduct found by us pre-dated, in time, the findings of misconduct made by the first Hearing Panel, His Worship’s position is that our disposition should be similar sanctions to those previously imposed.
36. We are also mindful, however, that the mandate of this Panel is “not to punish a part that stands out by conduct that is deemed unacceptable but rather to preserve the integrity of the whole.” In our view, we are entitled to take into account the findings and nature of His Worship’s misconduct in both courthouse locations in considering whether a specific disposition can restore confidence in this judicial officer, but also in determining what disposition is sufficient to restore public confidence in the judiciary in general and in the justice system as a whole.
37. We rely on Mr. Justice Ivan Rand’s comment regarding the test for removal of a judge of the Supreme Court of Ontario:
Would the conduct, fairly determined in the light of all circumstances, lead [fair-minded persons] to attribute such a defect of moral character that the discharge of the duties of the office hereafter would be suspect?; has it destroyed unquestioning confidence of uprightness, of moral integrity, of honesty in decision, the elements of public honour? If so, then unfitness has been demonstrated.
The Honourable Mr. Justice Ivan C. Rand, Inquiry re: The Honourable Mr. Justice Leo A. Landreville (1966), p. 97
38. The central issue in our determination here, as all the relevant jurisprudence directs, is what is required to restore the public confidence.
39. In all of the authorities provided by both Presenting Counsel and Counsel for His Worship, there are, fortunately, very few cases in which misconduct by judicial officers has required discipline proceedings for conduct amounting to sexual harassment. The most recent and relevant is Re Kowarsky (JPRC, May 30, 2011). The sexually- inappropriate conduct in that case involved one comment, involving eight words, made to one court clerk, by a justice of the peace, while court was in session and they were both at work in their specific roles. The comment was an ill-conceived attempt at humour.
40. In describing the seriousness of the misconduct, the Hearing Panel there stated at paras. 35-36:
Firstly, conduct of this nature would not be tolerated from any other participant in the court process particularly when, as here, court is in session. In order to maintain the integrity of the judiciary a presiding judicial officer must conduct himself/herself at least as well as everyone else before the Court. When, as here, actions fall below this level there is an undermining of public confidence in the administration of justice.
Secondly, 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. This conduct fell short of this expectation and as such it is an additional source of the undermining of public confidence in the administration of justice.
41. In Re Kowarsky, the justice of the peace admitted that his conduct constituted judicial misconduct; he acknowledged that his conduct was completely inappropriate, unwelcome and wrong and that it upset the complainant. He made a full apology to the complainant. A psychological report provided to the Hearing Panel included comments that showed the justice of the peace had reflected upon his behaviour and its impact on the complainant, that he was genuinely remorseful, and had adjusted his behaviour such that he was unlikely to make a similar mistake in the future. The Panel found that he had real concern for the harm caused to the complainant.
42. That Hearing Panel imposed a reprimand. It stated, at paras. 40-43:
The Panel finds that actions already taken by Justice of the Peace Kowarsky make consideration of some of the possible dispositions unnecessary. These actions include having apologized to the complainant at the time and as part of the hearing process and having taken appropriate counselling from Dr. Haskell. Dr. Haskell’s opinion also confirms the lack of need for further counselling. The Panel commends these actions as they assist in restoring public confidence.
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.
The Panel’s decision is to reprimand Justice of the Peace Kowarsky.
43. Counsel for His Worship made the Panel aware that Justice of the Peace Massiah requested a transfer of his assignment to the Toronto Region and on July 10, 2012, his request was approved in writing. Counsel submits that, we, like the Hearing Panel in Kowarsky, should consider this to be a very significant step of having his assignment changed to accommodate the women at the courthouse where the first findings of misconduct occurred and we should conclude that this demonstrates a response by His Worship which “exhibits integrity and should assist in restoring public confidence”.
44. We disagree. The facts in Kowarsky are significantly different and distinguishable. In Kowarsky, there was one complainant and a single comment at one specific court location, admitted to and acknowledged by His Worship Kowarsky to be misconduct. Here, there were numerous women subjected to His Worship Massiah's misconduct, including court staff, a prosecutor, and female defendants. There were numerous acts of misconduct, none of which was admitted to or unequivocally acknowledged by His Worship. The request to transfer and approval to do so came at a time before the second set of allegations had been ordered to a hearing, before there were findings that His Worship engaged in misconduct towards females at a second courthouse and before there were findings that he is unable or unwilling to acknowledge the distinction between appropriate and inappropriate conduct in the workplace. In our view, the request and approval in writing to transfer are of no relevant significance in our deliberations and do not assist in restoring public confidence in this case
45. In the 1999 judicial inquiry in relation to Justice of the Peace Leonard Blackburn, an agreed statement of fact set out that His Worship had made inappropriate sexual remarks to a 16 year old student doing a high school co-op placement at the courthouse and to a 21 year old woman who had attended his office in order to lay a private Information.
46. In describing the judicial standard of conduct to be considered, Madam Justice Hogan, who conducted the Inquiry, stated as follows:
However, justices of the peace are very important judicial officers. Among other duties, they make decisions that affect a person’s liberty such as bail, they determine whether process will issue, they decide whether or not to issue search warrants, and they preside in court. In fact, for many people their only contact with a judicial decision maker is with a justice of the peace. 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 judgements of our justice system based on their experiences with a justice of the peace. Justice of the Peace Blackburn was a presiding justice of the peace which means that he carried out the full range of duties that could be assigned to a justice of the peace, including presiding in court.
The Honourable Madam Judge Mary L. Hogan, Commissioner, Report of a Judicial Inquiry Re: His Worship Leonard P. Blackburn (1999) p. 4
47. In her recommendation that His Worship Blackburn be removed from the bench, Justice Hogan concluded, at pp. 6-7:
When justices of the peace accept their appointments they can’t help but appreciate that they are a part of the justice system and the public will have certain expectations of their behaviour while discharging their judicial duties.
Being mindful of the principles set out above regarding judicial conduct, it is my opinion that Justice of the Peace Blackburn by his behaviour to the complainants in this Inquiry has – and here I adopt the words of Madam Justice MacFarland in the Hryciuk decision – “displayed a lack of regard for the dignity and honour of his judicial position. His conduct must seriously diminish public respect and confidence in him and thereby severely impair his ability to function” as a justice of the peace.
I conclude that Justice of the Peace Blackburn’s misconduct is such that it does not serve the best interests of the administration of justice in this province that he continue as a justice of the peace. Of particular significance to me in coming to this conclusion was the nature of the behaviour, the fact that it occurred in the court of his judicial duties and the age and circumstances of the young women to whom his behaviour was directed. I take this view despite the fact that he apologized, admitted the allegations thereby sparing the complainants from testifying and attended gender equity training. None of these factors can excuse his behaviour, nor restore the necessary public respect and confidence in him.
48. The 2003 case of Justice of the Peace G. Leonard Obokata involved sexual misconduct in the form of unwanted touching rather than comments. While at a judicial conference in Toronto, His Worship went out to dinner with a number of colleagues and consumed a large amount of alcohol. On the walk from the restaurant back to the hotel with a female colleague, His Worship reached over, grabbed one of her breasts and twisted his hand. When the colleague loudly protested, Justice of the Peace Obokata then repeated the action. On his account, he then immediately apologized.
49. Justice Cathy Mocha, sitting as a Commissioner of the Inquiry, described the seriousness of the admitted misconduct as follows:
There is no justification for Justice of the Peace Obokata’s misconduct. It was serious, deliberate and it was repeated. Although there may have been some additional motivations for his actions there is one that is clear. The intent of the misconduct, at least in part, was to demean and show disrespect toward Justice of the Peace X both personally and generally as a woman. Such misconduct would not have occurred without some deficiency in his ability to respect women. Consequently, this misconduct does not just potentially cast doubt on his judgment concerning sexual assault cases, as argued by his counsel, but on any matter before him in which a woman is involved. It casts doubt on his respect for the law. It casts doubt on his morality. It casts doubt on his ability to feel empathy. Impartiality, integrity and morality are all essential elements of the administration of justice.
The Honourable Madam Justice Cathy Mocha, Commissioner, Report of a Judicial Inquiry Re: His Worship G. Leonard Obokata (2003), p. 5
50. His Worship Obokata’s disposition was a thirty-day suspension without pay and an order to complete a gender equity program. His Worship’s immediate apology, his conduct of the proceedings and his demonstration of appreciation of the impact of his misconduct on the administration of justice were highlighted by the Commissioner for imposing a sanction short of the most serious disposition.
51. There are many aspects in the case before us which are distinguishable from the precedents cited. Here, we have found His Worship’s misconduct to have been sustained and repetitive towards a range of women all having different roles in the justice system. He was the subject of findings of judicial misconduct at the earlier hearing and that hearing provided him a remedial opportunity for him to learn and accept that his conduct was not acceptable. Yet, he still fails to appreciate or acknowledge that there is a court hierarchy and the implications that hierarchy has on those who work in the justice system. He continues to be unable or unwilling to acknowledge the distinction between appropriate and inappropriate conduct in the workplace and the impact that inappropriate conduct and commentary has on both recipients and observers.
52. Our findings of His Worship’s misconduct, which significantly included unwanted touching as well as sexualized comments may have related to events which pre-date the findings of the previous Panel, but from His Worship’s testimony before us there was no convincing demonstration of any understanding, appreciation or assimilation of the insight one would expect, and that public confidence requires, in a judicial officer whose duties would include presiding over bail hearings where the charges could involve sexual offences.
53. We have considered the admissible portions of the Psycho-Social Assessment from Ralph Agard, Psychotherapist, dated February 16, 2015. Presenting Counsel submitted, and Mr. House, on His Worship’s behalf, conceded that much of the report’s content was inadmissible and therefore irrelevant. On the crucial issue of whether His Worship now appreciates the nature of his misconduct and is remorseful for it, we highlight Mr. Agard’s comments on page 14:
There is little doubt that Justice of the Peace Massiah is very remorseful. During our sessions he was emotionally demonstrative of deep personal thought processes when consideration was given to the fact that he might have unknowingly offended others. His strong family values and his commitment to his marriage, from a sociological perspective give credence to this observation. Documentation reviews indicate that he wrote apology letters to all those who it was alleged he had offended. He also did so to a particular individual in which there was no finding of guilt. We have determined from a behavioural perspective that this remorse is genuine particularly at the probability that he might have offended some of his workplace colleagues.
54. Regrettably, Mr. Agard’s opinion that His Worship “might have unknowingly offended others”, or that there is a “probability that he might have offended some of his workplace colleagues” does not acknowledge the evidence or our findings that “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”. Two Hearing Panels have found as fact that His Worship did engage in offensive conduct. Apology letters were tendered only to the women who were subjected to his conduct at the first location and only after the Hearing Panel had made their findings of misconduct. In this hearing, under cross-examination, His Worship said that he was “truly sorry for any inconvenience or awfulness that I may have caused to any person”. Those words must be considered in the context of his overall evidence and demeanour throughout this proceeding, and our findings in that regard. No sincere, credible or meaningful apology was extended to the persons subjected to a poisoned work environment resulting from his misconduct at the Whitby courthouse.
55. Mr. Agard states further on page 14 of his assessment:
When consideration is given to his humble beginning and lived experiences, it is easy to accept his assertion of regret. His regret rests in what he believes to be a humiliating of his family and his community notwithstanding his sense of guilt or innocence. Justice Massiah has completed an education program regarding sexual harassment of his own volition. This may very well be viewed as a self-imposed sanction or way of coping with his regret.
56. We note Mr. Agard’s conclusion is that His Worship’s regret rests not in relation to the impacts suffered by the women who were subjected to that conduct or the persons who observed his conduct at the Whitby courthouse, but on the humiliation of his family and community “notwithstanding his sense of guilt or innocence”.
57. Although it is completely irrelevant, in our view, we express concern and discomfort with the observation made by Mr. Agard on page 15 of his assessment, wherein he states that His Worship “is a self-made individual whose immigrant and racialized minority lived experiences developed in him a sense of justice, forthrightness, and a dedication to service to the broader community”. Race has nothing to do with this case, despite the frequent and troubling suggestions by Mr. Guiste, His Worship’s co- counsel, that it did. (See our Decision on the Motion Alleging Bias (JPRC, May 29, 2014), para. 23.)
58. In addition, we have reviewed the letters of support contained at Tabs 14 to 23 of Volume III of His Worship’s brief of documents in relation to the Penalty Phase.
59. We accept that His Worship has friends in the community who find him to be a person of integrity. However, we adopt the findings from the Canadian Judicial Council’s decision in Cosgrove on the relevance of such letters of support:
We are of the view that the opinions of individuals, be they judicial colleagues or otherwise, who do not have the benefit of the evidentiary record and a complete knowledge and appreciation of the issues before Council, will generally be of little assistance in determining whether public confidence has been undermined to such an extent as to render a judge incapable of discharging the duties of their office.
Report of the Canadian Judicial Council to the Minister of Justice in the Matter of the Honourable Mr Justice Paul Cosgrove (March 30, 2009), at para. 57
60. The Hearing Panel in Re Barroilhet: Decision on Disposition, supra, referred to and applied the test established by the Supreme Court of Canada to determine whether removal from office is the appropriate disposition for judicial misconduct:
In light of these findings, the Hearing Panel must determine whether the conduct of the justice of the peace in issue is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the justice of the peace, or of the public in its justice system, would be undermined, rendering the justice of the peace incapable of performing the duties of his or her office.
61. Presenting Counsel referred us to the words of Mr. Justice Sydney Robins from the Williams Inquiry to assist us in determining whether His Worship Massiah’s conduct warrants the ultimate sanction of removal:
Every judge in his judicial and non-judicial activity has a responsibility to preserve and enhance public confidence in the administration of justice. He serves as an exemplar of justice […] and confidence in our system of justice in large measure depends on him. When he engages in misconduct, the magnitude of the misconduct may be measured by the extent to which he has impaired the confidence of the public in himself as a judge and in the administration of justice.
There must be allowance for forgivable error; human frailties and fallibilities must not be forgotten; none of us can attain the ideal. To warrant removal misbehaviour should be more than indiscretion or error in judgment. There are no tests of misbehaviour capable of exact definition. Nor are there standards of judicial conduct which admit of quantitative measurement. Each case must ultimately depend on the nature of the conduct, all the facts surrounding it, its effect on the judge’s ability to perform his official duties, and the extent to which it has impaired public confidence in the judge and in the administration of justice.
The Honourable Mr. Justice Sydney L. Robins, Commission of Inquiry re: Provincial Judge Harry J. Williams (1978), quoted in Hon. J. MacFarland, Report of Judicial Inquiry re: His Honour Judge W.P. Hryciuk (1993), p. 55
62. Contrary to the submissions made by counsel for His Worship, the sexually inappropriate misconduct of His Worship Massiah, a judicial officer, towards women in the courthouse is not a case where there was indiscretion or error of judgment which should be considered to be an allowable result of human frailty or fallibility.
63. The evidence in this hearing from people who work at the Whitby courthouse showed the corrosive impact that sexual harassment by judicial officers can have on public confidence. We accept the submission from Presenting Counsel that the Washington Supreme Court’s statement in the Deming case is applicable here:
His conduct has degenerated the respect of the public for the judiciary. Applying the evidence to the above factors we conclude that Judge Deming has demonstrated a lack of those personal and professional qualities which are necessary to qualify one to hold judicial office in the State of Washington. The nature, extent and frequency of the acts of sexual harassment, all involving his judicial position, reflect an unacceptable pattern of behavior. This misconduct occurred both in and out of the courtroom, often in public situations. He exploited his official judicial position for which there can be no excuse. Nothing in the record suggests that additional time on the bench would result in an end to this inappropriate conduct.
In re the Matter of Honourable Mark S. Deming, Judge, Pierce County District Court No. 1, 108 Wash.2d 82, 736 P.2d 639 (Supreme Court of
64. When we consider the extent and duration of His Worship Massiah’s misconduct, and his testimony, before us, which demonstrated a complete lack of insight into the gravity of his misconduct even after a previous public hearing, we conclude that the dispositions set out in paragraph 11.1(10) (a) to (f) are not sufficient to restore public confidence in His Worship Massiah or in the judiciary in this case.
65. The sexual harassment of women in the courthouse by His Worship Errol Massiah, who has demonstrated through his testimony before us a refusal or inability to accept that sexually inappropriate conduct by a justice of the peace towards women in the workplace is not acceptable, is so manifestly and profoundly destructive of the judicial role and integrity in the judiciary that public confidence requires him to be removed from office.
66. His Worship Massiah has become incapacitated or disabled from the due execution of his office by reason of judicial misconduct incompatible with the due execution of his office. We find that the only disposition which can restore the public confidence in the integrity of the judiciary and in the administration of justice is a recommendation to the Attorney General that His Worship Errol Massiah be removed from office in accordance with section 11.2 of the Justices of the Peace Act. Accordingly, we make that recommendation.
Date: April 28, 2015
Hearing Panel: The Honourable Deborah K. Livingstone, Chair
His Worship Michael Cuthbertson