Wednesday, September 2, 2015

Some Evidence on the Panel's Conduct Allegation Re Guiste

Excerpts of Independent
Counsel's May 23, 2014 
Opinion to the Hearing Panel:

.....The questions in relation to which the Hearing Panel seeks independent advice on are as follows:

1.   What is the extent of the jurisdiction (if any) of this Hearing Panel of the Justices of the Peace Review Council to review and /or grant relief concerning decision or actions taken by the Complaints Committee ?

2.   What is the extent of the jurisdiction (if any) of the Hearing Panel to consider whether there is a valid complaint under s.10.2 of the Justices of the Peace Act ("JPA" or "Act"), or is the Hearing Panel mandated only to proceed with a hearing once it has been ordered by the Complaints Committee under s.11(15) of the JPA ?

Our advice and opinion may be summarized as follows:

1.   The Hearing Panel does not have jurisdiction to "sit in review" of, vary, or overturn, decisions of the Complaints Committee, not to give the Complaints Committee direction or refuse to comply with the Complaints Committee's decision to order a hearing under s.11(15) of the JPA.  However, the Hearing Panel does have jurisdiction to determine questions of law and to grant relief within and affecting, the current hearing.  Such determinations may (and in this instance appear to) require the Panel to consider the steps taken by the Complaints Committee and draw legal conclusions from them and empower the Panel to grant relief accordingly, including a remedy for abuse of process and Charter remedies under s.24(1) of the Canadian Charter of Rights and Freedoms.

2.   Yes, the Hearing Panel may consider and determine the question of whether a valid "complaint" exists under s.10.2 of the JPA as part of its jurisdiction to determine any question of fact or law arising in the proceedings before it.

.....It also appears to us that there is jurisdiction in the Hearing Panel to consider questions of law specifically arising under s.10.2 of the JPA not only because of these general factors, but because of the Hearing Panel's own governing provision (s.11.1) repeatedly refers to the subject matter of the hearing as being the "complaint".  This is seen, for example, at ss. 11.1(9), (10) and (19).  Particularly with respect to s.11.1(10), the triggering event for the Hearing Panel's jurisdiction to impose specific dispositions is the Hearing Pane's view as to whether to uphold the "complaint".  It is therefore necessarily the case that the Hearing Panel must have the power to consider both the content of, and the legislative requirements applicable to, a "complaint" within the meaning of the JPA, since ultimately it is a "complaint" which the Hearing Panel is adjudicating.

We therefore conclude, based on this jurisprudence as well, that the Hearing Panel has jurisdiction to consider the specific issue of the sufficiency of the "complaint" within the meaning of s.10.2, both in assessing whether it has jurisdiction to convene the hearing, or as part of a broader consideration of whether an "abuse of process" has occurred.

Panel explains why it 
retained Independent Counsel
(April 28th, 2014 - transcript at p.4-5)

JUSTICE LIVINGSTONE:   And to be brief, the reason we have determined it is appropriate to engage independent counsel to provide us with a legal opinion is because of a point raised by you, Mr. Guiste, on April 9th and I will refer specifically to the transcript, so we are all clear, the transcript from April 9th at page 78, line 8, and I don't know if you wish to have that in front of you, but Mr. Guiste had stated in his submission that: "this case provides a splendid opportunity for us to fix the Justices of the Peace Review Council.  There are some serious flaws in terms of procedural integrity of investigations and the like, and some good may come out of this."  Our view is, as a result of that comment, it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had an independent opinion in respect of the administrative law which applies in this hearing.

Excerpts from Association of Justices 
of the Peace of Ontario's written 
submissions to the Panel dated 
July 25th, 2013:

5.   The Presenting Counsel is a part of, and subject to Review Council.  Presenting Council's sole authority to act is its engagement pursuant to s.8 of the Act by Review Council.  As such, it is submitted, a complaint cannot come from Presenting Counsel - any such complaint would, in effect, be a complaint from Review Council.

6.   More generally, Review Council's role is not to investigate or police Justices of the Peace, but rather to consider complaints brought properly before it.  Granting Review Council a policing role for Justices of the Peace would require a change in the mandate of Review Council and would, it is submitted, require a statutory amendment.

7.   Accordingly, it is submitted that only written complaints from identified complainants made through the regular process are proper.  Complaints generated by Presenting Counsel as engaged by Review Council are not proper.  In the instant case any possible complainants who came to the attention of former Presenting Counsel ought to have been told of their entitlement to make complaints and any such complaints, if made, should have been with in the ordinary course.

8.   AJPO's position with regard to jurisdiction relating to abuse of process is that this panel has authority to act. 

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