Saturday, August 27, 2016

JPRC Hearing Panel's Referral of Ernest Guiste to the LSUC: My Defence in Brief - Part I

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;

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;

 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

    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 

    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.  


Tuesday, August 2, 2016

Part-Time Judges and the Demise of Judicial Independence in Ontario

     Three justices of the peace have been removed from office since 2009 in Ontario.
Every one of the justices of the peace removed from office is a non-lawyer. At the time of this writing the available information indicates that possibly two of these justices of the peace was removed by a "part-time' or per diem judge of the Ontario Court of Justice.

     Part-time or per diem judges can only sit with the consent of the Attorney General.  On its face, as a matter of law, it is questionable whether a judge who requires the consent of the Attorney General whom they will recommend removal or indemnification for legal costs to has the requisite independence from the Attorney General to preside over these cases.  The recommendation for removal by the Hearing Panel is made to the Attorney General.  The recommendation for indemnification for the costs associated with a subject JPs cost of defending the judicial misconduct proceedings is also made to the Attorney General.

     The use of part-time or per diem judges to adjudicate judicial misconduct proceedings in Ontario contravenes the well established principle that justice must be seen to be done. There is arguably a strong appearance of bias or unfairness in this practice.  The practice arguable undermines judicial independence to the extent that the Attorney General has a say in whether or not such judges can sit or continue to sit at all.  The danger with this type of arrangement is that justices of the peace and the people who they serve both suffer.  Justices of the Peace suffer to the extent that the well-established safe-guards which come with judicial independence, namely, security of tenure and financial security are now more illusory than real.  Justices of the Peace are said to have the right to counsel but only if they defend themselves in a manner satisfactory to the body seeking to remove them.  The public suffers to the extent that they are not receiving an integral part of what hundreds and thousands working people gave their lives up for - freedom - The Rule of Law and the right to an independent and impartial judiciary.

     The following are the Hearing Panels involved in each of those cases:

JP Barroilhet(July 2009):

Chair: Justice Deborah Livingstone
JP:  Her Worship Senior Justice of the Peace Mews
Lawyer: Ms. S. Margot Blight

JP Phillips(July 2013):

Chair: Justice Paul M. Taylor*
JP: Regional Senior Justice of the Peace Katheen Bryant
Community Member: Ms. Cherie Daniel

JP Massiah (January 2015):

Chair: Justice Deborah Livingstone*
JP: Justice of the Peace Cuthbertson
Lawyer: Ms. S. Margot Blight - replaced by Ms. Lenore Foster 10 or so months into the proceedings

     *An article published in the London Free Press on May 31, 2011 entitled "From Justice just Deb" indicated that Justice Livingstone was retiring after 21 years as a criminal court judge effective June 1st and that she would return as a per diem judge.

     *The Ontario Court of Justice website today lists Justice Paul Taylor as a per diem judge.  It is not clear whether or not he held this same status when he chaired the Hearing Panel in the Phillips matter in July 2013.

     * In both Phillips and Massiah the hearing panel recommended to the Attorney General removal from office and non-payment of legal costs.