Friday, October 16, 2015

Hryciuk Error Raised in July, 2013 and Again in May, 2014 in Massiah Case

Excerpts from Applicant's
Factum on Bias Motion
(May 16, 2014):

Table of Contents:

1.   Applicant's Factum

2.   Justices of the Peace Review Council - Procedures Document - p.5

3.   Presenting Counsel E mail dated May 15th, 2014 responding to Jan.7th/14 and
Jan.13th, 2014 from Applicant's counsel

4.   Hryciuk   v.  Ontario 1996 Canlii 4013 (Ont.C.A.) Headnote

1.   The Applicant respectfully requests the Hearing Panel to rule on the following points of law:

(i)   Does the current process of complaint-intake, investigation and adjudication of judicial misconduct complaints under the Justices of the Peace Act give rise to a reasonable apprehension of bias - generally - such that it violates the constitutional doctrine of judicial independence ?

(ii)   If not - Do the particular facts with respect to the intake, investigation and adjudication of this matter give rise to a reasonable apprehension of bias ?

(iii)   Did the Chair of the Review Council have jurisdiction to replace Ms. Blight from the Hearing Panel if so - does this remedy concerns of reasonable apprehension of bias ?

(iv)   Do the matters raised in the Notice of Motion and supporting affidavit establish a reasonable apprehension of bias by the Hearing Panel ?

(v)   Did the Hearing Panel exceed its jurisdiction by retaining Independent Counsel ?

(vi)   If not - did the Hearing Panel display a reasonable apprehension of bias by virtue of their stated reason for doing so ?

"Presenting Counsel"

15.   "Presenting Counsel is the name given to the lawyer retained by the Review Council to prosecute the case before the Hearing Panel.  According to Presenting Counsel's e mail dated May 15th, 2014: "The Registrar, in her capacity as the Registrar and counsel, has the responsibility of retaining Presenting Counsel on behalf of the Review Counsel.

16.   It is Presenting Counsel who prepares the Notice of Hearing.

17.   It is clear on the face of the Notice of Hearing that the 14 counts alleged go beyond the proper ambit of any complaint which could be said to have been received by the Review Council.

Excerpt from Hryciuk

"The language of the statute is unambiguous, and leaves no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council. The inquiry judge had a specific, narrow mandate under the legislation: to conduct an inquiry, not into the general question of whether Judge H should be removed,  but into whether he should be removed because of those complaints referred to her by the Judicial Council, namely the two complaints referred to in the order-in-council.  By hearing three additional complaints not so referred, she exceeded her jurisdiction.".

Excerpt from the Applicant
Factum on Jurisdiction/Abuse of
Process Motion:(July 11, 2013)

10.  The NOH dated May 31st, 2013 included seven additional counts of alleged misconduct not raised in the Registrar's letter dated January 2nd, 2013.

As above - Letter dated January 2nd, 2013 - Tab 3
Notice of Hearing - Tab 6

11.   Paragraph 14 in the NOH purports to rely upon a "history of judicial misconduct."

As above - Notice of Hearing - Tab 6

Excerpt from Presenting Counsel's
Motion Record - July, 2013:
JPRC Procedures Document

Previous Complaints

A complaint committee confines its investigation to the complaint before it. The issue of what weight, if any, should be given to previous complaints made against a justice of the peace who is the subject of another complaint before the Justices of the Peace Review Council may be considered by the members of the complaints committee where the Registrar, with the assistance of legal counsel (if deemed necessary by the Registrar), first determines that the prior complaint or complaint are strikingly similar in the sense of similar fact evidence and would assist them in determining whether or not the current incident could be substantiated.

Excerpt from Presenting 
Counsel's Written submissions
on liability:

The Notice of Hearing:

22.   The first six allegations are general in nature, encompassing patterns of behaviour rather than specific incidents.  We will therefore focus our submissions on paragraphs 7-14, which relate to specific episodes on which evidence was called.  Presenting Counsel respectfully submits that if some or all of the specific allegations in paragraphs 7-14 are found to have been proven, the general allegations in paragraphs 1 - 6 would easily be made out.

Paragraph 14: A Pattern of inappropriate conduct toward women in the justice system.

179.   All of the above, together with the findings made by the prior Hearing Panel in 2012 (which His Worship now says he "accepts" notwithstanding his recent unsuccessful application for judicial review), clearly amount to a pattern of inappropriate conduct toward women.

Excerpt from Hearing 
Panel's Liability Decision:

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 a balance of probabilities.

Excerpt from Hearing Panel's 
Decision on Jurisdiction and Abuse
of Process Motion:

6.   Counsel for His Worship argued that the legislative requirements under s.10.2 of the Act were not followed at the time of the purported complaint(s).  As well, His Worship was of the view that the Complaints Committee exceeded its authority in the investigations it undertook.  In addition, His Worship submitted that the Notice of Hearing was improper.  If any of these concerns proves to be valid, then this Panel would not have jurisdiction to proceed.

7.   The Panel finds that it has jurisdiction in this matter, therefore the motion is dismissed.  First, Mr. Hunt was the complainant.  Second, a complaint in writing existed.  Third, the Complaints Committee conducted its investigation within its authority.  Finally, the Notice of Hearing filed as Exhibit 1A and 1B provides this Panel with authority over the hearing.  Accordingly, all of the jurisdictional prerequisites exist for this Panel to fulfill its responsibilities under the Act, including making findings on the evidence and imposing the appropriate disposition.  Our reasons follow.

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