Breaches of Natural Justice
and Fairness:
1. The Hearing Panel denied a right to
file a Reply to
Presenting
Counsel’s Submissions on Compensation
raising concerns about the conduct, competence and
integrity of counsel Ernest Guiste;
raising concerns about the conduct, competence and
integrity of counsel Ernest Guiste;
2. The Hearing Panel failed to consider
every single case –
sixteen
in total referred to it by Mr. Guiste and Mr. House
on the compensation application without reasons for so doing;
3. The Hearing Panel failed to adjudicate
the questions of
law raised by Mr. Guiste and Mr. House with
respect to
whether a duty existed on the Attorney General to
indemnify judicial officers for the cost of defending
judicial misconduct proceedings;
whether a duty existed on the Attorney General to
indemnify judicial officers for the cost of defending
judicial misconduct proceedings;
4. In denying indemnification the Hearing
Panel focused
on
the conduct of the defence and effectively cut and
paste the submissions of
Presenting Counsel word for word
in Paragraph
24 (i)-(vii) in its Compensation Decision
without any independent analysis of the
points raised therein;
5. The above error was compounded when the
Hearing Panel
denied
a right to reply on this point;
6. The Hearing Panel denied compensation due to
alleged delay and frivolous motions even though
every motion brought by Mr. Guiste and Mr. House
would appear to have been brought with
their leave
as is required by 14(4) of the JPRC Procedures Document;
7. The above error is compounded when it
is clear
that the Hearing Panel failed to adhere to
the
mandatory obligation placed
on them by s.19 of
the JPRC Procedures Document to schedule
and
render a decision on such motions “as soon as
is
reasonably possible”;
8. In interpreting and applying the
constitutional principle of
Judicial
Independence the Hearing Panel focused only on
“individual”
and failed to consider or apply the “collective
or
institutional aspect” to judicial independence – that aspect
of
judicial independence calling for “objective conditions or
guarantees”.
9. The Hearing Panel invited counsel to
assist it in ascertaining
its
jurisdiction acknowledging on the record that it would
take
“some work” on July 24, 2013;
10. On or about April 28th, 2014
the Hearing Panel
retained Independent Counsel to advise them
on
their initial question on
jurisdiction raised on
July 24th, 2013 and a second question on the
complaint in writing
requirement and invited
counsel
to make submissions on the opinion
which culminated in their Decision on
Threshold Jurisdiction Questions
of June 6, 2014;
11. At para 10 of the above Decision the
Hearing Panel stated
“There
appear to be no decisions from judicial conduct
hearings
for justices of the peace where relief for alleged
irregularities
in the complaints process were considered.
12. At para 27 of the said Decision they
wrote: In response
to
the jurisdiction question raised by the Panel, in or view,
both
Presenting Counsel and Counsel for His Worship also
provided
material and/or oral submissions related to the
abuse
of process and fairness motion. As well,
Mr. Gover
also
commented on abuse of process and fairness issues in
his
legal opinion. Submissions from all
counsel on those
issues
have been instructive.
13. At para 30 their Compensation Decision the Hearing Panel
wrote that the conduct of Mr. Guiste is not relevant to this
decision.
14. On November 19th, 2013 when leave was properly sought
by Mr. Guiste to address what he thought may have been a
concern regarding his conduct by the Hearing Panel the
Chair or the Panel stated: "Your conduct isn't an issue with
this Panel, Mr. Guiste."
15. On April 28th, 2014 the Chair of the Hearing Panel cited
Mr. Guiste's concern regarding procedure for their decision
to retain Independent Counsel to advise them. The Chair
expressly cited the following quote by Mr. Guiste: "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 might come
out of this."
16. On November 19th, 2013 Mr. Guiste stated to the panel:
"As I indicated earlier there are two salient mandatory
provisions, the the Complaints Committee has to
acknowledge receipt of a complaint, to write the
complainant; it didn't happen here. And they also have
to inform them where its' going, is it going to a hearing,
and so on and so forth."
17. Once again, Mr. Guiste raised the issue of two mandatory
requirements which the complaints committee failed to
address in their written submission on jurisdiction. Indeed,
Mr. House expressly cross-examined every witness on their
intent to make a complaint.
18. It was not until January 12th, 2015 that the Hearing Panel
ruled on what constituted the "complaint in writing" even
though s.19 of the JPRC Procedures Document placed a
mandatory obligation on them to schedule and render a
decision on such motions "as soon as is reasonably possible."
U.N. Basic Principles on the Role of Lawyers:
16. Governments shall ensure that lawyers (a) are able to perform
all of their professional functions without intimidation, hindrance,
harassment or improper interference; and (c) shall not suffer, or
be threatened with, prosecution or administrative, economic or
other sanctions for any action taken in accordance with recognized
professional duties, standards and ethics.
Dore v. Barreau du Quebec 2012
SCC 12:
[63] But in dealing with the appropriate boundaries of civility, the
severity of the conduct must be interpreted in light of the
expressive rights guranteed by the Charter, and, in partiuclar,
the public benefit in ensuring the right of lawyers to express
themselves about the justice system in general and judges in
particular. (MacKenzie, at p.26-1; R v. Kopyto (1987, 67
O.R. (2d) 449 (C.A.); and Attorney General v. Times
Newspapers Ltd., [1974] A.C. 273 (H.L)
[64] In Histed v. Law Society of Manitoba, 2007 MBCA 150,
225 Man.$. (2d) 74, where Steel J.A. upheld a disciplinary
decision resulting from a lawyer's criticism of a judge, the
critical role played by lawyers in assuring the accountability
of the judiciary was acknowledged:
Not only should the judiciary be accountable and open to
criticism, but lawyers play a very unique role in ensuring
that accountability. As professionals with special expertise
and officers of the court, lawyers are under a special
responsibility to exercise fearlessness in front of the courts.
They must advance their cases courageously, and this may
result in criticism of proceedings before or decisions by
the judiciary. The lawyer, as an intimate part of the legal
system, plays a pivitol role in ensuring the accountability
and transparency of the judiciary. To play that role
effectively, he/she must feel free to act and speak
without inhibition and with courage when circumstances
demand it.
[65] Proper respect for these expressive rights may involve
disciplinary bodies tolerating a degree of discordant
criticism. As the Ontario Court of Appeal observed
in a different context in Kopyto, the fact that a lawyer
is criticizing a judge, a tenured and independent
participant in the justice system, may raise, not lower,
the threshold for limiting a lawyer's expressive rights
under the Charter. This does not by any means argue
for an unlimited right on the part of lawyers to breach
the legitimate public expectation that they will behave
with civility.
Analysis and Commentary:
Decisions denying judicial officers indemnification for the
cost of their defence in judicial misconduct proceedings in
Canada are an anomaly. I am aware of only four decisions in
this country's history. They are all decisions of either the
Ontario Judicial Council or its sister tribunal the Justices
of the Peace Review Council post 2012 - Re Chisvin (OJC
February 22, 2013), Re Phillips (JPRC , November 4,
2013), Re Johnson (JPRC, August 19, 2014) and Re
Massiah (JPRC - June 16, 2015).
In Re Chisvin a judge of the Ontario Court of Justice
dismissed several cases on his docket because the
Crown Attorney was a few minutes late in attending
court. He plead guilty and there was no contested
hearing. In Re Johnson was also a guilty plea
with no contested hearing for similar conduct. In
Re Phillips a Hearing Panel found that the
JP mislead a police officer in an investigation
and denied indemnification. In Re Massiah,
2015 the Hearing Panel denied indemnification relying
on Re Foulds (JPRC, July 21, 2013), Re Phillips (supra),
Re Johnson (supra) and Re Chisvin (supra) An application
for judicial review was filed in Re Massiah and it has yet
to be decided by the courts.
Decisions in which a court or a tribunal publishes an
Addendum containing a complaint of professional
misconduct against counsel who argued a case before
them are the exception and not the norm in Canada.
If there is one constant in our system of justice with
respect to professional misconduct on the part of
lawyers or judicial misconduct on the part of
judicial officers - it is the recognition that the
reputations of judges and lawyers are highly
valued and easily irreparably tarnished. Could
the hearing panel have launched its complaint
without publicizing it ? I submit they could of.
Did the Hearing Panel intend to tarnish my
reputation ? I can never know what was in their
minds and hearts. What I do know is that my
recent discovery that the Chair of the Hearing
Panel - Justice Deborah Livingstone appears to
have retweeted a very critical article penned by
Michele Mandel the day following the release
of the said Adendum - from a twitter account
bearing the name Deborah Livingstone
@dresdengirrl along with her picture raises
grave concerns in my mind.
17. Once again, Mr. Guiste raised the issue of two mandatory
requirements which the complaints committee failed to
address in their written submission on jurisdiction. Indeed,
Mr. House expressly cross-examined every witness on their
intent to make a complaint.
18. It was not until January 12th, 2015 that the Hearing Panel
ruled on what constituted the "complaint in writing" even
though s.19 of the JPRC Procedures Document placed a
mandatory obligation on them to schedule and render a
decision on such motions "as soon as is reasonably possible."
U.N. Basic Principles on the Role of Lawyers:
16. Governments shall ensure that lawyers (a) are able to perform
all of their professional functions without intimidation, hindrance,
harassment or improper interference; and (c) shall not suffer, or
be threatened with, prosecution or administrative, economic or
other sanctions for any action taken in accordance with recognized
professional duties, standards and ethics.
Dore v. Barreau du Quebec 2012
SCC 12:
[63] But in dealing with the appropriate boundaries of civility, the
severity of the conduct must be interpreted in light of the
expressive rights guranteed by the Charter, and, in partiuclar,
the public benefit in ensuring the right of lawyers to express
themselves about the justice system in general and judges in
particular. (MacKenzie, at p.26-1; R v. Kopyto (1987, 67
O.R. (2d) 449 (C.A.); and Attorney General v. Times
Newspapers Ltd., [1974] A.C. 273 (H.L)
[64] In Histed v. Law Society of Manitoba, 2007 MBCA 150,
225 Man.$. (2d) 74, where Steel J.A. upheld a disciplinary
decision resulting from a lawyer's criticism of a judge, the
critical role played by lawyers in assuring the accountability
of the judiciary was acknowledged:
Not only should the judiciary be accountable and open to
criticism, but lawyers play a very unique role in ensuring
that accountability. As professionals with special expertise
and officers of the court, lawyers are under a special
responsibility to exercise fearlessness in front of the courts.
They must advance their cases courageously, and this may
result in criticism of proceedings before or decisions by
the judiciary. The lawyer, as an intimate part of the legal
system, plays a pivitol role in ensuring the accountability
and transparency of the judiciary. To play that role
effectively, he/she must feel free to act and speak
without inhibition and with courage when circumstances
demand it.
[65] Proper respect for these expressive rights may involve
disciplinary bodies tolerating a degree of discordant
criticism. As the Ontario Court of Appeal observed
in a different context in Kopyto, the fact that a lawyer
is criticizing a judge, a tenured and independent
participant in the justice system, may raise, not lower,
the threshold for limiting a lawyer's expressive rights
under the Charter. This does not by any means argue
for an unlimited right on the part of lawyers to breach
the legitimate public expectation that they will behave
with civility.
Analysis and Commentary:
Decisions denying judicial officers indemnification for the
cost of their defence in judicial misconduct proceedings in
Canada are an anomaly. I am aware of only four decisions in
this country's history. They are all decisions of either the
Ontario Judicial Council or its sister tribunal the Justices
of the Peace Review Council post 2012 - Re Chisvin (OJC
February 22, 2013), Re Phillips (JPRC , November 4,
2013), Re Johnson (JPRC, August 19, 2014) and Re
Massiah (JPRC - June 16, 2015).
In Re Chisvin a judge of the Ontario Court of Justice
dismissed several cases on his docket because the
Crown Attorney was a few minutes late in attending
court. He plead guilty and there was no contested
hearing. In Re Johnson was also a guilty plea
with no contested hearing for similar conduct. In
Re Phillips a Hearing Panel found that the
JP mislead a police officer in an investigation
and denied indemnification. In Re Massiah,
2015 the Hearing Panel denied indemnification relying
on Re Foulds (JPRC, July 21, 2013), Re Phillips (supra),
Re Johnson (supra) and Re Chisvin (supra) An application
for judicial review was filed in Re Massiah and it has yet
to be decided by the courts.
Decisions in which a court or a tribunal publishes an
Addendum containing a complaint of professional
misconduct against counsel who argued a case before
them are the exception and not the norm in Canada.
If there is one constant in our system of justice with
respect to professional misconduct on the part of
lawyers or judicial misconduct on the part of
judicial officers - it is the recognition that the
reputations of judges and lawyers are highly
valued and easily irreparably tarnished. Could
the hearing panel have launched its complaint
without publicizing it ? I submit they could of.
Did the Hearing Panel intend to tarnish my
reputation ? I can never know what was in their
minds and hearts. What I do know is that my
recent discovery that the Chair of the Hearing
Panel - Justice Deborah Livingstone appears to
have retweeted a very critical article penned by
Michele Mandel the day following the release
of the said Adendum - from a twitter account
bearing the name Deborah Livingstone
@dresdengirrl along with her picture raises
grave concerns in my mind.
