Evidence of Error in Re Massiah(2015) Dismissal of Jurisdiction and Blencoe Motions: A Case Comment

No Evidence:

     Among the strongest grounds of judicial review of an administrative tribunal's decision is the ground of no evidence.  A decision made on no evidence is simply repugnant to the principles of fundamental justice and legality.(see for example Evans and Mullan et al Administrative Law, Cases Text, and Materials 3rd Edition)

   No one can reasonably argue against this fundamental point of law.

"A Pyrrhic Victory":

   In clear language the Chair of the Hearing Panel stated that the panel would hear all of the evidence and adjourn the consideration of the Abuse of Process motion until all of the evidence was heard. Indeed, the Chair of the Hearing Panel, now fully retired Justice Livingstone, stated that this accomplishment was tantamount to winning the battle but losing the war so to speak. ( "It is a Pyrrhic Victory Mr. Guiste" - p.69 - July 7th, 2014 transcript)

   The Hearing Panel heard all of  the evidence and did indeed rule on the abuse of process motions after having heard all of the evidence.  If all a hearing panel had to do was hear evidence and make any ruling they saw fit we would not need appellate lawyers and appellate courts.  The problem is the Hearing Panel dismissed the jurisdiction and abuse of process motion without applying the evidence to their adjudication of the questions of jurisdiction and abuse of process before them and without applying the established legal principles set out by the Supreme Court of Canada in Blencoe  v.  Human Rights Commission [2000] 2 S.C.R. 307.  The following points from their Reasons is clear and cogent evidence of this point:

1.   As I have written elsewhere, one of the most common errors of law that tribunals will commit when adjudicating issues of this nature is to independently isolate the issues raised on the motion and the substantive issues to be decided.  Why would a tribunal do this ?  The only reasonable reason for a tribunal to do this is for perceived administrative efficiency.  To provide reasons to support their conclusions. In this case they failed to ground their rulings on these motions on the sound evidentiary foundation which the evidence they heard would provide electing instead to make conclusionary findings independent of this evidence.

Breach of Natural Justice

   The inherent danger in proceeding in this manner is that there is a very real danger that the tribunal may deny the subject party before them of natural justice by summarily dismissing the motion without carefully applying the evidence to the questions involved in adjudicating the jurisdiction and abuse of process issues. One way in which a tribunal can evade a proper consideration and application of the principles involved in adjudicating these motions is to summarily dismiss the issue as a matter going to the merits and not an abuse of process. The Hearing Panel did exactly that when it summarily dismissed these motions in its Decision of Jurisdiction and Alleged Abuses of Process on January 12th, 2015.

[75]   We found several of His Worship's submissions to be more about the merits of the case than relevant to an abuse of process. We will consider issues relating to the merits of the case in that decision and focus on the abuse of process issues here. (supra)

[77]   Fifth, fading memories may affect credibility of witnesses but do not constitute an abuse of process.(supra)

[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 time that may cause memory to fade does not, however, form a basis to conclude that 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. (supra)

Insufficient Reasons/
Breach of Natural Justice

1.   The Hearing Panel does not cite any evidence from any of the numerous witnesses who testified before them in making the decision to dismiss the jurisdiction and abuse of process motions.

2.   The Hearing Panel does not indicate in its reasons which of His Worship's submissions they found to be more about the merits of the case than an abuse of process.

Did the Hearing Panel Apply
Justice Camp Style Reasoning 
and Stereotypes ?:

3.   The Hearing Panel does not properly address the crucial issue of whether the delay in this case adversely impacted the reliability of the evidence. Instead, the hearing panel did what courts and tribunals have done historically when called upon to adjudicate cases involving the rights of women and African-Canadians in this country and in the United States - they resorted to relying on credibility to the detriment of the Respondent.  In the final analysis credibility is the answer for why he was found liable, why he was removed as opposed to some other penalty and to a large extent why he was not compensated for the cost of defending the proceedings. Here are a few examples:

He Spoke like
a "Soul Brother"

[176]   In our view, Ms II's evidence was cogent and unshaken. Regarding her use of the term "soul brother", we accept her evidence that she did not call His Worship a "soul brother" as a racialized term, but rather, used it to describe the tone of his voice and the manner in which he spoke. Ms. II, like other witnesses, including Ms. HH, Ms. BB, and NN, described through imitation in their testimony, the tone and manner of His Worship's "compliments" to them. As Ms. II described, the words as well as the slow, breathy manner of expressing them, were reminiscent of a style of speaking which the phrase "soul brother" connotes. Ms. BB described how His Worship would slowly inhale and exhale, commenting as he was exhaling, in a sensual way. (see Reasons for Decision date January 12, 2015)

Arrogant and Believed
Himself Appealing to
Women:

[163]   His testimony, and his demeanour while testifying, painted a picture of a man who is arrogant and who perceived himself to be appealing to women.  When his lawyer was questioning him about his compliments to women, he said:

A.   My personality, I 'm very compassionate, personable, engaging, understanding individual. And I brought that individual personality and characteristics in my interaction with all of the clerks that I engaged in. I received - I thought I was well received in essence. (Reasons for Decision)

He Did it Before
Therefore He 
Must be Guilty:

[211]   In light of the nature of the conduct set out above, the range of women who were recipients of the conduct of His Worship Massiah that has been proven on a balance of probabilities, and his history of judicial misconduct of a similar nature at a different courthouse, his conduct demonstrates a pattern of inappropriate conduct toward women in the justice system. (Reasons for Decision)

Notice of Hearing Expressly
Invites Liability Based on
Propensity/Bad Character:

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.

Credibility Factor Played
Out in Media Prior to 
Liability Finding:

   "In light of the nature of the conduct set out above, "alleges the notice of hearing" , "the range of women who were recipients of your conduct and your history of judicial misconduct of a similar nature at a different courthouse, you conduct demonstrates a pattern of inappropriate conduct toward women in the justice system." (Michel Manel - Toronto Sun - July 24th, 2013)

   "Two strikes and he's out - it's high time Justice of the Peace Errol Massiah is told to hang up his robes." (Michel Mandel - Toronto Sun - January 13th, 2015)


Hearing Panel Failed to Adjudicate
The Question the Act authorized them
to Adjudicate:

s.11.1(10) of the Justices of the Peace Act delineates the legal issue the Hearing Panel is to adjudicate in the following words:

After completing the hearing, the panel may dismiss the complaint, with or without a finding that it is unfounded or, if it upholds the complaint, it may,

(a)   warn the justice of the peace....
(g)   recommend to the Attorney General that the justice of the peace be removed from office in accordance with section 11.1

The Hearing Panel Adjudicated
Presenting Counsel's Notice of
Hearing which Grossly Exceeded
the "Complaint":

Reasons for Decision(Liability)
(January 12th, 2015)

[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, 7a, 7b, 7c, 7e, 8a, 8d, 9, 10, 11, 13 and 14 of the Notice of Hearing, have been made out on the balance of probabilities.


Breach of Natural Justice/Fairness
and Error of Law on Application
of Hryciuk  v. Ontario:

   Allegations 1-6 in the Notice of Hearing invoke rights and obligations under the Ontario Human Rights Code.  They include allegations that Massiah's actions were vexatious, unwelcome and amounted to a poisoned work environment.  At para 207 of their Decision on Liability the Hearing Panel expressly found that His Worship "acted in a manner inconsistent with the Human Rights Code."  None of these allegations were part of what the Hearing Panel found to be the "complaint", namely, The Hunt Report.  The record of proceedings shows clearly that HW Massiah was asked by the Complaints Committee to respond to what they investigated. That does not discharge the panels obligations of natural justice and the jurisdictional constraints mandated by Hryciuk.

   The overriding error committed by the Hearing Panel and overlooked by the Divisional Court is that the record of proceedings*shows clearly that the items in 1-6 and 14 of the Notice of Hearing were never received by the Justices of the Peace Review Council and never investigated by a Complaints Committee.  Accordingly, HW Massiah received no notice of them until Presenting Counsel's Notice of Hearing was issued by the JPRC on or about May 31st, 2013.

Propensity Evidence
and Bad Character
Evidence Permeated
and Tainted the Liability
Finding:

[153]   Paragraph 14 of the Notice of Hearing alleges that the conduct described in paragraphs 1-13, the range of women who were recipients of his conduct, and together with the history of His Worship's misconduct of a similar nature towards other women at a different courthouse, demonstrate a pattern of inappropriate conduct toward women in the justice system.  (see Reasons for Decision - On Liability January 12th, 2015)

S.12 Canada Evidence Act

(1)   A witness may be cross-examined as to whether he has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.

   It is well settled in our law that where the probative value of evidence is outweighed by its prejudicial value such evidence can and ought to be properly excluded.  (see R  v.  Corbett (1988) 41 C.C.C. (3d) 385 (S.C.C.)

   It is one thing to invoke a prior record of discipline in the penalty phase of a hearing but a totally different matter to assert such a record in the liability phase and then to expressly ground all of the other allegations on it as was done in Re Massiah (2015).   This is not only unprecedented in judicial misconduct hearings in Canada and the Commonwealth but it is entirely inconsistent with established legal principles.  This error is compounded where as here the record being relied upon involves allegations which pre-dated the previous finding of liability.  According to our Supreme Court of Canada in R  v. Skolnick [1982] 2 S.C.R. 47 this is NOT a situation in which penalty can be increased as a subsequent offence.

[211]   In light of the nature of the conduct set out above, the range of women who were recipients of the conduct of His Worship Massiah that has been proven on a balance of probabilities, and his history of judicial misconduct of a similar nature at a different courthouse, his conduct demonstrates a pattern of inappropriate conduct toward women in the justice system. (Reasons for Decision - On Liability - January 12th, 2015)

The Deficient Record
of Proceedings:

*For reasons unknown to the writer, the five volume of transcripts flowing from the Complaints Committee investigation were not part of the JPRC's Record of Proceedings before the Divisional Court although the Hearing Panel incorrectly refers to it as the Investigator's Report in their Decision on Jurisdiction and Alleged Abuse of Process. I have written on this omission before and I have stated that keeping with this tribunal's tradition of fairness and respect for The Rule of Law that this must be inadvertent.

Missing Exhibits:

1A - Notice of Hearing (unredacted and subject to a publication ban) - Filed June 10th, 2014
2    - Mr. Ernest J. Guiste letter dated June 28, 2013 and Notice of Motion - Filed July 4, 2013
3    - Applicant's Factum  - Filed July 24, 2013
4    - Applicant's Book of Authorities - Filed July 24, 2013
5    - Factum of Presenting Counsel - Filed July 24, 2013
6    - Book of Authorities of Presenting Counsel - Filed July 24, 2013
7    - Applicant't Reply Factum - Filed July 24, 2013
8    - Notice of Motion re Publication Ban - Filed July 29, 2013
9    - Written Submissions of the Association of Justices of the Peace of Ontario - Filed July 29, 2013**(Was later filed on consent by the parties)

Documents the Hearing Panel
and parties agreed would be
"part of the record" but were
not in the "Record of Proceedings"

1.   Five Volume Transcripts of the Complaints Committee's Investigation
2.   Motion Records and facta on jurisdiction/abuse of process, publication ban, bias
3.   Written submissions of the parties on liability, disposition and compensation with the exception of
Written Submissions of the Association of Justices of the Peace of Ontario and Reply Submissions of Presenting Counsel dated October 6, 2014

Hearing Panel Proclaims

The Chair of the Hearing Panel clearly proclaimed on October 8th, 2014 at pages 158-163 of the transcript that all of the above-noted documents would be part of the record "for any further applications which could follow our decision".(see JPRC Record of Proceedings - Vol.III - Tab 60)

Consequences of 
Deficient Record:
       
What flows from this omission is that a reviewing court's ability to judiciously perform their duty on judicial review with respect to any of the decisions under review is hampered.  For example, the Hearing Panel's third finding in dismissing the jurisdiction motion, namely, "the Complaints Committee conducted its investigation within its authority." (see  para 7 - supra) How is a reviewing court to review this in the absence of seeing how the investigation was conducted and what was part of it and what was not ?  The same can be said with respect to the dismissal of the abuse of process motion.  For example, how is the reviewing court supposed to review the important question of whether particulars 1-6 and 14 on the Notice of Hearing were investigated by the Complaints Committee ? In their Compensation Decision one of the factors which the Hearing Panel relied upon in denying compensation was stated in the following words:

[15]  (c)   Mr. Massiah's conduct in advancing many pre-hearing motions, which were without merit, frequently appeared to be a deliberate attempt to prolong the process. This caused public resources to be unnecessarily expended.

Once again, how is a reviewing court to review this finding in the absence of being able to independently review the motions records, facta etc. ?  Clearly, to simply accept this conclusionary statement by a tribunal in the absence of any evidence is an error of law.

Commentary and Analysis:

   In the final analysis, it is this writers opinion that the decisions on liability and penalty in Re Massiah (2015) stand on serious and troubling errors of law.  Their decisions are unprecedented in numerous ways including their decision on compensation and their referral of this writer to the Society. Likewise, the Divisional Court's recent decision suffers from similar error.

Note: This piece is written for the sole purpose of drawing attention to an issue of public importance. The removal of a judicial officer in our law is an issue of public importance. The censorship and punishment of lawyers while doing their job is an issue of such importance that the United Nations has saw fit to have policies on it which member states are to respect. Anyone with evidence or law which undermines the opinion expressed in this piece is invited to bring it to the writers attention. Democracy and the Rule of Law work best when everyone is well informed and can express their views without fear of censorship or losing their livelihood.





     

 

Five Errors of Law in Re Massiah (2015) Inviting a Correctness Standard of Review

1.   The Hearing Panel embarked on the wrong inquiry - asking itself whether JP Massiah should be removed from his judicial duties based on Presenting Counsel's Notice of Hearing rather than addressing the question which the Justices of the Peace Act authorized them to adjudicate under s.11.1(1), namely, whether they should "uphold or dismiss the complaint" before them.

[73]   Therefore, the NOH with its particulars, dated July 4, 2013 and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.  (Decision on Jurisdiction and Alleged Abuses of Process - January 12th, 2015)

[89]   Section 11 of the Act mirrors the legal framework of the Courts of Justice Act which was determined to be mandatory in Hryciuk. It is this section which governed the actions of Mr. Hunt and the Justices of the Peace Review Council when it received the Hunt Report in November 2011.  As determined above, it received those allegations as a new complaint and established a Complaints Committee to consider them. His Worship Massiah was informed of the new allegations during his first hearing.


2.  The Hearing Panel based both its decision on liability and penalty on findings of misconduct which it  made in excess of its jurisdiction contrary to Hryciuk  v. Ontario (1996) 31 O.R. (3d)  1 (ONCA) by considering particulars or allegations which were not first made to the Review Council and investigated by its Complaints Committee. (particulars 1, 2, 3, 4, 5, 6, and 14 of the Notice of Hearing and later by employing HW Massiah's own testimony to support his removal from office. To compound this error the Hearing Panel made an express finding that HW Massiah acted in a manner inconsistent with the Human Rights Code when this was not part of what they determined to be the "complaint")

[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, 7a, 7b, 7c, 7e, 8a, 8c, 8d, 9, 10, 11, 13, and 14 of the Notice of Hearing, have been made out on the balance of probabilities. (Reasons for Decision, January 12, 2015)

[88]   The law on the process which is to be followed when new allegations arise during a hearing on judicial misconduct is well settled.  The Ontario Court of Appeal determined the law in 1996 in a case involving Judge Hryciuk of the provincial criminal court. (Decision on Jurisdiction and Alleged Abuses of Process)


3.   The Hearing Panel erred in law in its adjudication of the motions asserting 1. reasonable apprehension of bias; 2.  jurisdiction and 3.  abuse of process - in that;

Bias Motion

1.   The Hearing Panel failed to address the following question expressly raised to them, namely, do the particular facts with respect to the intake, investigation and adjudication of this matter give rise to a reasonable apprehension of bias; and

2.   Dismissed this motion without addressing the objection to the NOH raised on behalf of HW Massiah that the Notice of Hearing was contrary to Hryicuk supra in that it exceeded any complaint which could be said to have been received by the Review Council. (see Decision on The Motion Alleging Bias - May 29, 2014)

Jurisdiction and Abuse of 
Process Motion:   

   The Hearing Panel dismissed both of these motions without consideration of the evidence in support of both notwithstanding the fact that they agreed to hear and consider these motion on all of the evidence.  Proof in support of this fatal error is found in the fact that the Hearing Panel issued two decisions on the same day. They issued a Decision on Jurisdiction and Alleged Abuses of Process and Reasons for Decision.  The following is clear from their very own Reasons:

1.   The Hearing Panel did not consider or apply the evidence which they heard to their adjudication of the these motions - although Presenting Counsel properly instructed them on this point.
2.   The Hearing Panel did not adjudicate the discrete abuse of process issue raised by HW Massiah relying on Blencoe  v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307 in accordance with the established jurisprudence, including the recent jurisprudence from the Divisional Court itself.

The following excerpts from their decision dismissing the motion make this crystal clear:

[74]   In His Worship's view, the process which has brought him before this Hearing Panel has been unnecessary and/or unfair to such an extent that the matter should be concluded without further proceeding**. (Decision on Jurisdiction and Alleged Abuse of Process)

[75]   We found several of His Worship's submissions to be more about the merits of the case than relevant to an abuse of process.  We will consider issues relating to the merits of the case in that decision and focus on the abuse of process issues here. (surpa)

[77]      ....Fifth, fading memories may affect the credibility of witnesses but do not constitute an abuse of process. (supra)

[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 time that may cause memory to fade does not, however, form a basis to conclude that 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. (supra)

**The panel's failure to apply the evidence to the motions is clearly inconsistent with how the parties before them agreed to proceed. Presenting Counsel consistently advocated for a "wait and see" approach in their 2013 and 2014 submissions. This is what the chair of panel had to say on this point on June 18, 2014:

Justice Livingstone(now retired):  So, your abuse of process motion may be argued in writing, as you requested, Mr. Guiste. What we would propose to do is have those reasons in by the 7th of July, when we would normally have been proceeding; however, we will not rule on them until we have heard the evidence, so to allow, with caution, any potential further issues about abuse of process to be canvassed after the evidence is in. So, its a Pyrrhic victory to some extent, Mr. Guiste. at p. 69

**It is to appreciated that the allegations in this matter are from 2007-2010 and evidence was heard in 2014 and decisions were made in 2015.  Presenting Counsel's Notice of Hearing was issued three years after the earliest incident.  The hearing took place seven years after the earliest incident and four years after the last incident. The Hearing Panel determined that Presenting Counsel, Mr. Douglas Hunt's*** report was a complaint three years and two months after he submitted it to the Justices of the Peace Review Counsel. Two witnesses testified that they did  not make notes or secure transcripts of court proceedings which may have supported their claims. One witness AA could not remember the person who introduced her to HW Massiah when she asserted he looked her up and down when they were introduced. Surely, even judicial officers must have a right to have misconduct allegations brought against them dealt without inordinate delay.

***Mr. Douglas Hunt, Q.C. was counsel to the complainants in the Re Hryciuk Case.


The Standard of Review:

   Re Massiah(2015) involves the removal of a judicial officer for judicial misconduct under s.11.1(10) of the Justices of the Peace Act, R.S.O 1990, c.J.4. That section provides:

After completing the hearing, the panel may dismiss the complaint, with or without a finding that it is unfounded or, if it upholds the complaint, it may,

(a)   warn the justice of the peace;....
(g)   recommend to the Attorney General that the justice of the peace be removed from office in accordance with section 11.2.

Removal from office

S.11.2(1)  A justice of the peace may be removed from office only by the order of the Lieutenant Governor in Council.

Removal for cause

(2)   The order may be made only if,

(a)   a complaint about the justice of the peace has been made to the Review Council; and
(b)   a hearing panel, after a hearing under section 11.1, 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,

(ii)   conduct that is incompatible with the due execution of his or her office.

The Justices of the Peace Act has no privative clause.  In Ell  v. Alberta [2003] 1 S.C.R. 857 the Supreme Court of Canada recognized that justices of the peace are protected by constitutional principle of judicial independence. As such, they are entitled to "a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees" as stated by Le Dain J. in Valente  v. The Queen, [1985] 2 S.C.R.673.  The removal of a judicial officer like Massiah involving the interpretation and application of both the Justices of the Peace Act and the constitutional principle of judicial independence is one that arguably has wide implications for judicial misconduct proceedings generally.

In Alberta  v.  University of Calgary 2016 SCC 53 the Supreme Court of Canada recently held that a standard of review of correctness applied to a determination of whether s.56(3) of a Freedom of Information statute allowed the review of documents over which solicitor-client privilege is claimed. The court reasoned that a correctness standard applied because the question of what statutory language is sufficient to infringe solicitor-client privilege "is one that has potentially wide implications on other statutes."

The question of whether a Notice of Hearing containing particulars which were not first made to the Justices of the Peace Review Council in the form of a complaint in writing and then investigated by a Complaints Committee appointed under that Act is arguable in the same category as the situation in Alberta  v. University of Calgary supra. Certainly, a judicial officer must like everyone else know the case they have to make. That is a fundamental principle in our system of justice.


NOTE:  This piece is written for the sole purpose of drawing attention to an issues of public importance. The removal of a judicial officer in our system is an issue of public importance. It is one which ought not to be shielded by secrecy but must always be subject to the utmost of transparency otherwise judicial independence and the Rule of Law is seriously undermined.  Robust and constructive debate on issues of public importance is what distinguishes us from lesser societies. When we begin to punish and censor those who are simply doing their work as lawyers we invite tyranny, bigotry, sexism and all that is wrong to rule.

Did the Hearing Panel In Re Massiah (2013) Misapprehend the Opinion they Sought from Mr. Brian Gover ? A Case Comment

   During the hearing into the complaint against HW Massiah independent counsel was retained to provide the Hearing Panel with legal advice as a result of the preliminary motions on jurisdiction and abuse of process initiated on behalf of HW Massiah.  The Chair of the Hearing Panel proudly proclaimed that this decision was on account of the following point raised on behalf of the Respondent:

"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."

The Chair of the Hearing Panel pronounced:

"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."

Examples of Misapprehension:

1.   Mr. Gover advised the Hearing Panel that it is a "complaint" which they are called upon to adjudicate at p. 5 of his opinion to them.

The Hearing Panel went on to conclude that it is the Notice of Hearing which gives them jurisdiction and they found liability based not on the "complaint" but on the particulars in the Notice of Hearing prepared by Presenting Counsel. The record of proceedings are crystal clear that the Notice of Hearing goes beyond what the Hearing Panel found to be the complaint - five will-say statements containing no allegations of vexatious, unwelcome or conduct amounting to a poisoned work environment.  The Hearing Panel even found that HW Massiah acted in a manner inconsistent with the Human Rights Code.

2.  Mr. Gover advised the Hearing Panel that delay can amount to abuse of process where witnesses have become unavailable, memories have faded, key documents are no longer accessible or significant psychological harm or stigma has attached to the individual such that the administrative process would be be brought into disrepute citing Blencoe  v.  B.C. Human Rights Commission 2000 SCC 44 at p.3 of his opinion.

The Hearing Panel went on to conclude that - '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 time 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 that view."

3.   Mr. Gover twice stated that he found that Presenting Counsel's argument to the asserted abuse of process grounds "are more directed to the merits of any abuse of process argument and its viability or legal force, than they are towards the Hearing Panel's jurisdiction to entertain the issues as part of its consideration of the motion."

The Hearing Panel went on to dismiss the abuse of process motion proclaiming:

[75]   We found several of His Worship's submissions to be more about the merits of the case than relevant to an abuse of process.  We will consider issues relating to the merits of the case in that decision and focus on the abuse of process issues here. (Decision of Jurisdiction and Alleged Abuses of Process)



 

Former Attorney General Opens Up on Ontario Criminal Justice System

   In an article published in Precedent on December 5th, 2016 former Attorney General, Michael Bryant is quoted as making the following statements;

1.   "I had no idea that innocent people were, every day, being treated like guilty people."

2.   "I had no idea that the presumption of innocence is a joke."

   Some in the legal profession may be quick to condemn the comments attributed to Mr. Bryant. Indeed, it will be interesting to see how the investigators at the Law Society of Upper Canada receive these alleged comments. Readers will recall the ongoing battle between the Law Society of Upper Canada and their prosecution of the able and respected trial lawyer, Mr. Joseph Groia.

   As a lawyer who routinely represents clients for whom the law does not seem to work, I have great insight into Mr. Bryant's words and can understand his critique.  It is clear to me that up until his encounter with the criminal justice system Mr. Bryant, like most in the criminal justice system, enjoyed a life which was privileged and removed from the reality which working people in Ontario encounter in our courts everyday.  As a Catholic lawyer I can only hope that Mr. Bryant has found inner peace and that he will use his voice to speak for those who are voiceless.

   Mr. Bryant's lawyer in his encounter with the criminal justice system, Marie Henein, zeroed in on perhaps the biggest obstacle in his path for redemption.  The Precedent article quotes her in the following words: "Today's digital world is an extraordinary burden", says Henein.  "The mere fact of an accusation makes it extremely difficult for someone to move on.  What's the first thing you do when you meet someone ?  You google them.  So for the rest of your life, you're explaining yourself. It's hard."    

NOTE:  This article is written for the sole purpose of drawing attention to an issue of public importance.  The right of lawyers to speak frankly on the workings of the administration of justice is a matter of public importance. Censoring and punishing lawyers for their honest and frank criticism of the administration of justice is inconsistent with our fundamental principles. Assuming the quotes attributed to Mr. Bryan are correct they motivate and push for change and ought not to be censored and punished.  

CJC Inquiry Committee Recommends Removal of Justice Camp Affirming Principle that Removal Not to be Undertaken Lightly

   Justice Camp must be removed from judicial office in order to maintain public confidence in the justice system recommends the Inquiry Committee established to adjudicate the complaint against him stemming from statements he made during the trial of R  v. Wagar.  Readers will recall that this is the judge who asked the complainant in a sexual assault trial why she did not keep her knees together in order to avoid penetration and soundly called into question the fairness and rationale for the "Rape Shield Law".  The" Rape Shield Law" is a statutory amendment which was made to the Criminal Code of Canada to presumptively designate the complainant's historical sexual behaviour inadmissible.  The Supreme Court of Canada found this law to be constitutional in the case of R  v.  Darrach [2000] 2 S.C.R. 443.

   The Inquiry Committee's report is very instructive.  I will highlight some of it below.

[242]   A finding of misconduct does not necessarily lead to a recommendation for removal from office.  The Committee must now consider whether the Judge's misconduct renders him incapable of executing the judicial office.

The Test for the Removal of a Judge

[243]   The test for the removal of a judge was developed by the Inquiry Committee into the conduct of Justices MacKeigan, Hart, Macdonald, Jones and Pace, which has become known as the Marshall Inquiry.  The inquiry arose from comments that judges of the Nova Scotia Court of Appeal made in their reasons on a reference regarding the conviction for murder of Donald Marshall Jr. , in which the Court of Appeal acquitted him of murder.

[244]   The majority of the Inquiry Committee in the Marshall Inquiry observed that the judicial role requires decision-making "free from external interference or influence, and as a corollary, judges are under a "judicial duty to exercise and articulate independent thought in judgments free from fear of removal.  The duty does not "immunize judges from fair criticism, but "it guarantees that the expression of opinions honestly held by judges in their adjudication of the relevant law, evidence or policy in a specific case will not endanger their tenure.

[245]   The majority in the Marshall Inquiry acknowledged the words of the Supreme Court of Canada in R   v.  Valente that "the removal of a judge is not to be undertaken lightly.  The majority explained that judicial independence "attained entrenchment in our constitution not merely, or even mainly, for the benefit of a judiciary.  It is also a fundamental benefit to the public served by the judiciary.

[248]   The majority in the Marshall Inquiry also stated that the test for removal of a judge must allude specifically to public confidence in the administration of justice, be objective, and "be used in part, at least, on conduct which could reasonably be expected to shock the conscience and shake the confidence of the public as opposed to conduct which is, and often must be, unpopular with part of the public".

[278]   Justice Camp's misconduct is manifestly serious.  It caused significant harm to public confidence in the judicial role, in an area of law in which the courts and Parliament have made concerted efforts to enhance public confidence over the past four decades.

[281]  Fundamentally, Justice Camp's misconduct is rooted in a profound lack of impartiality and failure to respect equality before the law.  As the majority in the Marshal Inquiry made clear, an important element in the test for removal is the presence of bias. The majority emphasized, however, that what is at the core of bias is not having existing views or attitudes, but rather a failure to control those existing views or attitudes: "True impartiality is not so much not holding views or having opinions, but the capacity to prevent them from interfering with a willingness to entertain and act on different points of view".

[325]   It is our view that, on all of the evidence, this case meets the high threshold for removal.

[327]   The problem with Justice Camp's misconduct was not that he had gaps in his knowledge, but that he filled those gaps with an antipathy towards legislative reforms in the law and reliance on discredited stereotypes and myths.  Justice Camp by his own evidence, was familiar with the leading cases as well as the Criminal Code provisions dealing with sexual assault.  In other words, he ignored the fundamental requirement of a judge to accept that although he  has knowledge gaps, he must proceed in a way that reinforces confidence in the integrity of the judiciary and does not imperil it.

Analysis and commentary:

   The removal of a judge from office is a very serious matter in our system of law. In lesser systems of law this task is often based on arbitrary criteria and the whim of the decider. We have departed from this manner of operation and removal in our system is fueled by an objective determination that not only has the judge committed an act of misconduct but that act of misconduct is such that it renders him or her incapable of executing judicial duties.

   Fairness, impartiality and integrity are three of the key traits required to judge. Hence, acts committed in the execution of the judicial function tending to call into question any of these traits are the best candidates for removal from office. Where there is no evidence that a judge has committed any act of misconduct with respect to the adjudication of a case removal is NOT the presumptive remedy. In the CJC forum where the only available remedy is removal such a judge ought not to be removed from office and this is borne out by the history of cases dealt with by the CJC. In forums such as Ontario where there exists a graduated penalty scheme removal ought NOT to flow from this type of judicial misconduct.

Committee to be Commended:

   In reviewing the Committee's Report in this case I was impressed with the professionalism and dignity with which they approached their duty.  Their Report speaks to the issue before them in an impartial and fair tone which focused on the issue at hand and not on Justice Camp as a person. On the facts of this case the Committee could have attacked Justice Camp as a person but they seem to recognize that this was not the task which they were called upon to adjudicate. They restricted their inquiry to that which was properly before them.  This is a very important and often overlooked aspect of these types of proceedings.  The manner in which the removal is executed speaks volumes to the integrity of the administration of justice itself.

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance.  The removal of a judge from office is an issue of public importance. The manner in which this removal is executed is perhaps a more significant issue of public importance. In the final analysis, justice must be seen to be done.

   

Abuse of Process to be Raised in Discipline Hearing Involving Acquitted Doctors

   "Doctors acquitted of gang sex assault face discipline hearing" read the headline in the Toronto on November 28, 2016.  Readers may recall that two doctors - Dr. Chauhan and Dr. Kayilasanathan were acquitted by Justice Julie Thorburn following a trial in which they were accused of, among other charges, gang sexual assault. According to the Toronto Star those two doctors are now the subject of a hearing before a panel of the College of Physicians and Surgeons of Ontario which alleges they engaged in sexual activities with a woman without her consent and administered a drug or drugs to the said woman without her knowledge.

Respondent Counsel:

  Ms. Marlys Edwarth - who represented Dr. Chauhan in the criminal proceedings - is representing him in the discipline proceedings before the panel at the College of Physicians.  Ms. Edwarth is amongst the best counsel that money can buy in this country - if not the best.  She is well versed in not only criminal trial and appellate advocacy but is also skilled in administrative law and constitutional law.
 
   Mr. Tom Curry of Lanzer Slaght LLP is representing Dr. Kayilasanathan.  Like Ms. Edwarth, Mr. Curry is a gifted trial and appellate lawyer with skill and expertise in professional discipline matters and administrative law.

Abuse of Process Asserted:

   According to the Toronto Star article both lawyers are bringing a motion alleging an abuse of process.  Mr. Curry is quoted in the Star article in the following words: "The abuse of process motion is about the interplay between the acquittal in the criminal case and the basis for it and the college's ability to prosecute the same case on the same facts."

   Reading between the lines from the Star article it would appear that the basis for the abuse of process motion is related to findings of fact made by Madame Justice Thorburn in the criminal proceedings - including the following:  1.  Video surveillance evidence showing the complainant leaving the hotel; 2. Evidence that text messages were sent by one of the women when she said she would have been unable to move; 3.  Blood, urine and hair samples showed no evidence of drugging.

Lawyers Doing their Job:

   As is often the case in cases of this nature, there will be some who will be quick to attack the work and reputation of Ms. Edwarth and Mr. Curry as they discharge their duty in properly defending their client.  Readers will recall the crusade put on by the mainstream press when I properly brought a motion asserting a lack of jurisdiction and abuse of process on behalf of my own client, Justice of the Peace Massiah. On April 10th, 2014 Michel Mandel of the Toronto Sun boldly wrote:

"The irony seems apparent to everyone but Justice of the Peace Errol Massiah and his zealous counsel. .....but his lawyer Ernest Guiste is tying up his second complaint hearing with motions, challenges and endless accusations that the judge and her panel are biased.  Yet, Massiah claims he's the victim of an abuse of process ?  Pot meet kettle."

Commentary:

   Abuse of process is a highly flexible remedy available to courts and tribunals to stop what they find to be unfair, biased or proceedings which are not otherwise in the public interest to prosecute. It must NOT be thought of as a remedy for the GUILTY to escape justice but as a remedy to ensure that when we make findings of guilt or liability we do so in accordance with the high standards for fairness and integrity that have come to distinguish our legal system from others.  The Law Society of Upper Canada hearing panel's decision in Re Baker is a classic case on this point.

   Lawyers ought never to be punished or censored for doing their jobs.  It is lawyers who are the vehicle through which the people's rights and freedoms come to fruition. When we punish and censor the lawyers we denigrate the legal system and we invite or plant the seeds for tyranny, bigotry and sexism.  We don't want that !  Do we ?
 

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance.  The doctrine of abuse of process is an important and vital safeguard in our free and democratic society. It is the duty of a lawyer representing a client to raise it when ever he or she feels that the circumstances call for it.  The lawyer ought never to be afraid to raise it. A climate in which lawyers - of all people - are afraid to speak freely and to do their job freely could never be in the public interest. 

Divisional Court Overturns Two Decisions as Unreasonable Today

   The Divisional Court overruled two labour arbitrators finding their decisions unreasonable in separate Reasons for Decisions released today - once again calling into question the supposedly new era of deference to decisions of administrative tribunals.

   In Toronto East General Hospital  v.  Ontario Nurses' Association 2016 ONSC 7331 and Canadian Staff Union   v.  C.U.P.E 2016 ONSC 7292 - panels composed of Justices Nordheimer, Dambrot and King found both decisions rendered by arbitrators in those cases to be unreasonable and set aside the decisions.

Dunsmuir  v.  New Brunswick
[2008] 1 S.C.R. 190:

   In each of the decisions issued today finding the decisions unreasonable the Divisional Court clearly relies upon Dunsmuir supra in supporting its decision.  The Toronto East General Hospital decision was six pages long. The Canadian Staff Union decision was five pages long.  In both of the decisions released today the court and the parties were in agreement on the standard of review being reasonableness.  This is consistent with the existing jurisprudence on this issue.

Did the Divisional Court
employ the wrong standard
of review in Massiah supra ?

   This is to be contrasted with the Divisional Court's recent decision in Massiah  v.  Justices of the Peace Review Council 2016 ONSC 6191 where the court upheld as reasonable a hearing panel of the Justices of the Peace Review Council's decision removing a judicial officer from office as reasonable. In Massiah the Divisional Court makes no mention of Dunsmuir supra. Their decision in that case was nineteen pages.

   In Massiah the Divisional Court appears to have employed a reasonableness standard of review to the decisions of the hearing panel. This is a panel composed primarily of ad hoc personnel. In this case the panel consisted of a part-time judge of the Ontario Court of Justice, a Justice of the Peace and a lay person. Indeed, the hearing panel in Re Massiah contained only one member of the Justices of the Peace Review Council. That was the lay person.  Both the judge and the justice of the peace were appointed temporary members by the Chief Justice of the Ontario Court of Justice.  There is no privative clause in the Justices of the Peace Act. Furthermore, the question of whether or not a justice of the peace should be removed from office involves consideration and application of the well established constitutional principle of judicial independence.

   Would not the fact that the court is considering and applying the constitutional principle of judicial independence invite a standard of review of correctness in accordance with Dunsmuir supra ?

NOTE:  This piece is written for the sole purpose of drawing attention to issues of public importance. The standard of review to be applied to decisions of administrative tribunals is an issue of public importance.  So too is the removal of judicial officers. It is not lost on the author that the decisions overturned today were both made by female labour arbitrators. Academics and policy-makers who have the time and the resources to research these issues may wish to look into whether decisions made by female labour arbitrators receive less deference than those made by male arbitrators.

Publication Ban Motions at the JPRC: The Practice, Rationale and Inconsistency

  Readers will recall that a hearing panel chaired by now retired Madame Justice Livingstone referred me to the governing body of lawyers in this province, The Law Society of Upper Canada alleging among other things that I brought a frivolous motion seeking a publication ban on behalf of my client. The fact is that a positive general reputation and integrity are among a judicial officers most significant traits or qualities. A careful review of the Justices of the Peace Act itself will confirm this point. 

Private Investigations:

   The Act expressly provides that in s. 11(8) a complaints committee's investigation of a complaint shall be conducted in private. The rationale for this is entirely related to the fundamental importance and indeed state interest in preserving and protecting judicial officers from improper influence from the state or otherwise which may interfere with their judicial independence and hence The Rule of Law.  This important principle was taken a step farther when 20 years ago Madame Justice Abella of the Court of Appeal for Ontario ruled in the landmark case of Hryciuk  v. Ontario that only complaints which have been pre-screened by the judicial council in that case are properly before an inquiry judge to adjudicate the question of removal from judicial office.  Accordingly, it should be clear to readers that an unfounded allegation against a judge ought not to receive any publicity under this statutory scheme. 

The Publication Ban

Motion in Re Massiah:

   Readers will recall that there was a serious legal question of jurisdiction placed before the Hearing Panel the moment I took up my retainer on that case. The question of the existence of a "complaint" as that term is used in s.10.2(2) was squarely raised in a preliminary motion challenging the jurisdiction of the Hearing Panel to adjudicate a "complaint" in June, 2013.

   Indeed, the Hearing Panel itself retained independent counsel on the question of their jurisdiction and did not receive an opinion until May, 2014.

   In those circumstances a lawyer who fails to seek an interim publication ban at least until the question of the legality of the "complaint" is adjudicated would be in breach of his or her duty to his client under such a statutory scheme and indeed within the reality of the vital importance of a positive general reputation and integrity for judicial officers. Again, I was simply doing my job as a lawyer.*  

The Facts:

   When I brought the motion seeking an interim publication ban there was widespread media coverage of the allegations. The motion record filed on this motion shows that at least three articles were cited.  This was so even though the question of the "complaint" was not adjudicated by the Hearing Panel until January 12th, 2015.  The Hearing Panel made its decision on the publication ban motion in and around April, 2014. They denied it. Publication of the allegations continued at large.

The JPRC Practice:

   As the case cited below illustrates publication ban motions are common place at the JPRC. In Re Kowarsky a publication ban protecting the subject Justice of the Peace was obtained with the consent of Presenting Counsel.  I have searched wide and far and I have not found any publication dealing with the Re Kowarsky matter by the main stream press at the time of the proceedings. Indeed, interested readers may wish to review the Hearing Panel's decision in Re Kowarsky. They will see that the words which HW Kowarsky was found to have uttered which constituted judicial misconduct are not even quoted in the published Reasons for Decision. That panel
wrote:

[10]   The sexually inappropriate comment, involving eight words, was very short.  It is agreed, and the Panel finds that the comment was not intended to be hurtful.

   On the other hand, at each and every turn the proceedings in Re Massiah was in the press. When the Toronto Sun's Michele Mandel was not advocating for his removal, she was advocating that he not be compensated for his defence. Curiously, Michele Mandel seems to believe that some lawyers ought not to be punished for doing their job but some are.(see: Wrong to Silence Marie Henein for Doing her Job.) 

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,

as amended

Concerning a Complaint about the Conduct of

Justice of the Peace Tom Foulds

Before:    The Honourable Justice Peter Tetley, Chair

                  Justice of the Peace Monique Seguin

                  Ms. Jenny Gumbs, Community Member

Hearing Panel of the Justices of the Peace Review Council

SUPPLEMENTARY REASONS FOR INTERIM RULING

Counsel:

Mr. Scott K. Fenton                                    Mr. Mark J. Sandler

Ms. Amy Ohler                                            Ms. Amanda Ross                

Fenton, Smith Barristers                           Cooper, Sandler, Shime & Bergman LLP

Presenting Counsel                                 

His Worship Tom Foulds appearing in person

SUPPLEMENTARY REASONS FOR INTERIM RULING

HEARD: September 28, 2016

Background

[1]           On August 2, 2016, a Complaints Committee of the Justices of the Peace Review Council (the “Review Council”), acting pursuant to subsection 11(15) of the Justices of the Peace Act (the “Act”), ordered a complaint regarding the conduct or actions of His Worship Justice of the Peace Tom Foulds to be referred to a Hearing Panel of the Review Council pursuant to section 11.1 of the Act.

[2]           A Notice of Hearing was served on the Respondent on September 2, 2016. The Notice of Hearing specified a first appearance date, before the Hearing Panel of the Review Council, of September 28, 2016.

[3]           On September 28, 2016, the Respondent appeared in person. Mr. Mark Sandler and Ms. Amanda Ross attended with the Respondent in the capacity of un-retained counsel.

[4]           Mr. Sandler advised the Hearing Panel that although he had not yet been retained as counsel for the purpose of the hearing proceedings, he anticipated the formalization of his retainer in the relatively near future. Mr. Sandler also advised that he had acted as legal counsel for the Respondent in the proceedings before the Complaints Committee.

[5]           Mr. Sandler acknowledged non-compliance with the procedures of the Review Council that requires ten days written notice in advance of a procedural motion.

[6]           In the absence of formal notice, motion record, filed authorities, factum or other form of supporting documentation, the Hearing Panel received and considered Mr. Sandler’s oral request that the proceedings be briefly adjourned with the Notice of Hearing filed provisionally or filed and marked as Exhibit A but that the Panel should order that the Notice of Hearing and these proceedings not be published until such time as the motion of non-publication could be properly argued once legal counsel was retained.

[7]           These requests were ultimately dismissed on the basis that the applicable statutory directives, directives founded on recognition that the complaints process is designed to maintain and restore public confidence in the investigation of complaints involving justices of the peace, outweighed the Respondent’s privacy interests and undermined his request that a publication ban be ordered on an interim basis.

Relevant factual considerations

[8]           During the course of his submissions, Mr. Sandler advised that the Respondent is currently seeking judicial review of the decision of the Complaints Committee of the Justices of the Peace Review Council. The decision of the Committee forms the basis for the particulars of the complaint that is the subject matter of this hearing.

[9]           Mr. Sandler referred to the Procedures of the Review Council which provide that the initial set-date commences with the filing of the Notice of Hearing, at which point the proceedings become public. He advised that in view of the Respondent’s existing legal challenge to the decision of the Complaints Committee to order a hearing, the Hearing Panel was urged to exercise restraint in receiving the Notice of Hearing as a numbered exhibit that could be publicized as existing legal proceedings brought by His Worship Foulds include a challenge to both the legal and factual foundations of the complaint itself.

[10]        Mr. Sandler expressed concern with regard to the “potential prejudice” to Justice of the Peace Foulds as His Worship seeks judicial review of the decision of the Complaints Committee. The nature or specifics of the “potential prejudice” to the Respondent were not specified other than by general reference to the assertion that the publicizing of the complaint may be reasonably foreseen to effect the ability of the Respondent to continue to discharge the duties of his office while the legal challenge continues to unfold.

[11]        Mr. Sandler, as noted, requested that the Notice of Hearing not be received as an exhibit, or alternatively, that it be received provisionally or marked as a lettered exhibit subject to an order that it could not be published to enable the Respondent to formalize counsel’s retainer with a view to enabling a formal notice of motion to be brought before this Panel or alternatively, a motion in the context of the application for judicial review that His Worship has instituted in the Divisional Court, with a view to securing an order of prohibition pending the outcome of the existing judicial review challenging the decision of the Complaints Committee.

[12]        In summary terms, Mr. Sandler requested the following alternative relief:

That the Hearing Panel defer its decision on the receipt of the Notice of Hearing as a public numbered exhibit until such time as counsel is retained and a formalized Notice of Motion is received or alternatively, receive the Notice of Hearing and the particulars of the complaint, filed provisionally, or in the alternative, filed and marked as Exhibit “A”, but subject to an order that it not be published until such time as counsel’s motion can either be formalized and heard by the Panel or a challenge to the jurisdiction of the Hearing Panel determined.

Legal Considerations

[13]        The Review Council Procedures document provides as follows:

6. (1) A hearing shall be commenced by a Notice of Hearing in accordance with this part.

(2) Recognizing the role that the complaints process has in maintaining and restoring public confidence and that the legislative requirements for maintaining privacy no longer apply for formal hearings under section 11.1 of the Act, once presenting counsel files a Notice of Hearing as an exhibit in the initial set date proceeding presided over by the Hearing Panel, the complaints process will become public, subject to any orders by the Hearing Panel.

(3) Once the complaint has become public, the registrar will have notice about the hearing posted in the prescribed form on the Review Council’s website, subject to any orders by the Hearing Panel. Not less than two weeks prior to the commencement of the hearing, the Registrar will have notice in the prescribed form published in the local newspaper. The public notice will include a brief summary of the allegations of conduct. The public notice shall not identify complainants or witnesses, due to the possibility that the complainant or witness could bring a motion in the proceeding for an order of non-publication of his or her identity. The Hearing Panel may, on such grounds as it deems appropriate, abridge the time for publication.

[14]        These Procedures recognize that the complaints process is designed to assist in the restoration of public confidence that can only be achieved by a process that is both open and accessible to the public.

[15]        This intention is further reflected in section 9(6) of the Act.  This provision reads as follows:

Meetings of the Review Council and of its complaints committees shall be held in private but, subject to subsection 11.1 (4), hearings under section 11.1 shall be open to the public. 2006, c. 21, Sched. B, s. 7.

[16]        A review of these provisions confirms that the enabling statute and the procedural rules arising from that statute create a “strong presumption of openness”. That intention reflects the fact that there is a significant and continuing public interest in the maintenance of judicial conduct proceedings that are transparent and accessible.

[17]        The Supreme Court of Canada decision in R. v. Mentuck, [2001] 3 S.C.R. 442 directs that an applicant who seeks a publication ban in such circumstances must demonstrate that his or her privacy interests outweigh the public’s interest, including the right to free expression and the maintenance of transparency in our legal system.

[18]        As Presenting Counsel rightfully submits, section 9(6) of the Act directs that the proceedings “shall be open to the public”.  By virtue of the enabling statute itself, these proceedings are intended to be public.

[19]        The Statutory Powers Procedure Act applies to this hearing and section 9 of that Act directs that any “oral hearing”... “shall be open to the public”. Section 6(2) of the Act reflects that objective by providing that the complaints process becomes public once the Notice of Hearing is received as a numbered exhibit.

[20]        As the hallmarks of a review process are openness and transparency, Presenting Counsel submits that the openness of the proceedings should not be deferred until such time as counsel is either formally retained or contemplated challenges to the jurisdiction of the Hearing Panel have been mounted and/or determined.

[21]        In the submission of Presenting Counsel, the Notice of Hearing is akin to an information in a criminal case and may be viewed as simply representing an unfounded or unproven allegation.

[22]        Presenting Counsel also references the aforementioned Dagenais/Mentuck test and the duty to notify the media in advance of the application of the kind contemplated by His Worship and Mr. Sandler as a consequence of the significant public interest in accountability and transparency that proceedings of this kind entail.

[23]        Reference is made by Presenting Counsel to two previous decisions of the Hearing Panels of the Review Council, in which requests were made for orders that contents of the Notice of Hearing not be made public. These applications include the determination of a complaint regarding the conduct of Justice of the Peace Solange Guberman, dated October 11, 2011, and that related to a complaint regarding the conduct of Justice of the Peace Errol Massiah, dated April 11, 2014.

[24]        These decisions serve to reiterate and confirm the emphasis that is placed on maintaining openness in and public accessibility to these proceedings.

Analysis and Conclusion

[25]        In dismissing the Respondent’s application, consideration has been given to the following factual and legal considerations:

                    (i)              That open and publically accessible courts and tribunals are the hallmark of our legal system and a coveted feature of our democratic society;

                  (ii)              These principles (openness and accessibility) have been incorporated into the Statutory Powers Procedures Act and are reflected in the  Review Council Procedures as previously noted (see section 6);

                 (iii)              The Notice of Hearing in this matter was formalized and served on September 2, 2016, some four weeks before the first appearance without recommendation by the Complaints Committee that the matter be considered via an in-camera hearing as authorized by section 9(1) of the Statutory Powers and Procedures Act;

                 (iv)              The Respondent has not met the test applicable for a non-publication order as referenced by the Supreme Court of Canada in Her Majesty the Queen v. Toronto Star Newspapers, 2005 S.C.C. 41, [2005] 2 S.C.R. 188, at paragraph 26. In this regard, the Respondent has not established “why such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk” and that the “salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice”;

                  (v)              While the allegations of alleged misconduct may cause embarrassment to the Respondent, there is nothing to suggest that the mere receipt of the Notice of Hearing and the particulars of the complaint will, in themselves, undermine the ability of the Respondent to discharge the duties associated with his office. That said, the allegations relate directly to the performance of the Respondent’s duties as a judicial officer. In these circumstances, it cannot reasonably be expected that such conduct would not be subject to public scrutiny;

                 (vi)              The request that the Notice of Hearing be noted as Exhibit “A”, rather than public exhibit property, is concluded to amount to the equivalent of a de facto interim publication ban that would in essence defeat the principles of openness that are determined to be of priority in these proceedings;

                (vii)              As there is no pre-existing judicial directive that this hearing be made “non-public”, with no advance notification to the press, no formalized motion and no supporting materials, it is concluded, on application of the principles of openness referenced above, that the oral motion is dismissed and the Notice of Hearing should be received as an exhibit and in accordance with the Procedures of the Review Council, the complaints process will become public. In accordance with the Procedures of the Review Council, the public notice shall not identify any named complainant or witness due to the possibility that a complainant or witness could bring a motion in the proceeding for an order of non-publication of his or her identity. Accordingly, the redacted version of the Notice of Hearing, with the exclusion of the names of any complainant, is received as Exhibit 1(B) and it is a public exhibit.

              (viii)              In reaching this determination, it is acknowledged that the publication of a Notice of Hearing cannot be challenged until the Notice of Hearing has been made an exhibit. In effect, the Respondent is deprived of the ability to secure a “pre-emptive order” by way of a request for judicial review. That circumstance alone, in the view of the Hearing Panel, does not constitute an incident of procedural unfairness and is not concluded to be unreasonable.

                 (ix)              In reaching this decision, the Hearing Panel understands that the receipt of the Notice of Hearing as an exhibit effectively amounts to the specifics of the complaint being made public and may negate the efficacy of any future application for non-publication. It is acknowledged that the Notice of Hearing and the attached Appendix set out in detail the particulars of the complaint. That is effectively the result of the receipt of the Notice of Hearing as a public numbered exhibit. The Hearing Panel is mindful of that fact.

Conclusion

[26]        While the publication of the allegations referenced in the Notice of Hearing may cause embarrassment to Justice of the Peace Foulds, the potential for embarrassment alone is not a sufficient reason to grant the requested order.

[27]        The reference to the potential undermining of His Worship’s ability to discharge the duties of his office is similarly concluded to be speculative and without any factual foundation.  We conclude, on the basis of the review of the legal principles cited, that proceedings of this nature should be open to the public and the publication of the particulars in the Notice of Hearing and the Notice of Hearing itself should not be restricted in any way.

Dated this 19^th day of October, 2016

HEARING PANEL:

The Honourable Justice Peter Tetley, Chair

Her Worship Monique Seguin, Justice of the Peace Member

Ms. Jenny Gumbs, Community Member