Thursday, November 17, 2016

Canadian Judicial Council Announces Dates of Public Hearing re Justice Michel Girouard

   Dates for the adjudication of the fresh complaints filed against Justice Girouard based on his testimony before the Hearing Panel who adjudicated his initial judicial misconduct proceedings were announced by the Canadian Judicial Council yesterday.  The new Inquiry Committee will proceed with public hearings January 30 to February, 2017 and again from February 20, 2017 to Febraury 24, 2017 as needed.  The hearings will be held in Quebec City at the Quebec courthouse, 300 Jean-Lesage Blvd.

   Readers will recall that this is the Quebec judge who was accused of being involved in a drug trafficking transaction and the Hearing Panel found that the substantive complaint against him was not made out on the evidence but two of the three panel members concluded that he ought nonetheless to be removed from office based on his testimony before them which they concluded was not credible. On further review within the Canadian Judicial Council administrative framework the recommendation for removal was set aside.  It was set aside on the reasoning that it was in breach of natural justice and fairness since Justice Girourard was not provided with any notice in advance that the manner of his testimony would be used against him as a separate and distinct ground of misconduct.

Hryciuk  v. Ontario
1996 Canlii 4013 (ONCA):

   We in Ontario are quite familiar with this reasoning when 20 years ago Madame Justice Rosalie Abella quashed a removal from office order against Justice Walter Hryciuk of the Ontario Court of Justice employing that very reasoning in the landmark case of Hryciuk  v.  Ontario.  The Court of Appeal was clear that a judge can not be removed from office unless the complaint has been pre-screened by the judicial council in that case and that removal may only result from that complaint being established.  The inquiry the court ruled was not a general one to determine whether the judge ought to be removed from office but rather a limited one focusing on whether he or she ought to be removed for the particular complaint filed.

   Readers will also recall my now well documented struggle of trying to obtain a fair and impartial hearing for my client, His Worship Massiah, in judicial misconduct proceedings before a hearing panel of Ontario's Justices of the Peace Review Council.  My objection that the Notice of Hearing had 7 allegations of misconduct that were not pre-screened by the Complaints Committee and hence my client received no notice of until the issuance of the Notice of Hearing on or about May 31st, 2013 was dismissed along with the myriad of other procedural irregularities in those proceedings.

    However, the following excerpts from the hearing panels Disposition Decision and Presenting Counsel's Written Submissions on Disposition raise yet another discrete breach of natural justice and fairness and Hryciuk Error:

Presenting Counsel:

[81]   Presenting Counsel submits that administrative law principles of fairness place limits on the ability of a tribunal to give effect to new misconduct that comes to light in the course of a hearing. This principle was given effect by the Court of Appeal in Hryciuk.  It leads to the conclusion that untruthful testimony in the course of a hearing could only be pursued as a separate instance of misconduct through the usual procedural mechanisms beginning with a fresh complaint.

[81]   However, even though His Worship's untruthful testimony cannot be considered a separate head of misconduct, Presenting Counsel submits that it can legitimately be considered on disposition as a factor going to public confidence.  It pertains directly to the likelihood of His Worship committing similar misconduct in the future and his fitness to continue to hold office.

Respondent's Submissions:

[47]   Presenting Counsel suggests two further areas which might convince the Panel that removal from office could be called for.  First, it is suggested that the panel's finding that Justice Massiah's testimony was dishonest or unreliable could underpin a determination that removal is appropriate. Justice Massiah is required to accept the findings of the panel.  However, it is submitted on his behalf that this finding should not be used against him on the penalty phase, as envisaged in Hryciuk in the Court of Appeal.

Disposition Decision:

[64]   When we consider the extent and duration of His Worship Massiah's misconduct, and his testimony, before us, which demonstrated a complete lack of insight into the gravity of his misconduct even after a previous public hearing, we conclude that the dispositions set out in paragraphs 11.1(10) (a) to (f) are not sufficient to restore public confidence in His Worship Massiah or in the judiciary in this case.

Justice of Appeal Abella 
in Hryciuk (supra):

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

   The inquiry judge based her recommendation on all the complaints she heard, including the ones she had no authority to hear.  The evidence of those three complaints formed an integral part of her recommendation that Judge H be removed.  It was, therefore, impossible to say what her recommendation would have been if her finding had been based only on the two complaints she had jurisdiction to hear."

What was the "complaint" which the 
Hearing Panel was called up to 
Adjudicate ?

   In November of 2011 while acting as Presenting Counsel in a separate case involving His Worship Massiah Mr. Douglas Hunt, Q.C. took statements from five persons claiming to have information regarding His Worship Massiah and sent them off to his instructing counsel, Ms. Marilyn King, who also happens to be the Registrar of the Justices of the Peace Review Council. When Ms. King received the information she sent Mr. Hunt a letter asking him whether this was a new complaint.
Mr. Hunt wrote back simply stating that members of the public brought information to his attention and he was sending it in for consideration.

Here is the Hunt Report in a nutshell:

1. B.N - a provincial prosecutor was anticipated to state that his colleague M.E. told him
that Ms. Sole-Defendant, a litigant, who had earlier appeared before His Worship Massiah spoke
with him and he appeared to hand her a business card that appeared to be his official
Justice of the Peace business card.  He was not called as a witness by Presenting Counsel.

2. M.E.- a prosecution assistant was anticipated to state she made the observation noted
above with resepect to HW Massiah's interaction with Ms. Sole-Defendant and that she conveyed
this to B.N. She was not called as a witness by Presenting Counsel.

3. QQ - Supervisor, Provincial Prosecutors was anticipated to state that sometime in
2009 he saw HW Massiah give his business card to woman who had previously appeared
before him.  "My assumption is it is his, I don't know what else it would be, but I am
assuming that, but he's handing her a business card while they wee in conversation. That
struck me as strange."

When asked by a lawyer from Mr. Hunt's office whether HW Massiah ever acted inappropriately in his presence, QQ said the following:

A.  These are tough questions aren't they ?  I will say no to that, but it doesn't mean I am being overly supportive of him.  What often bothered me about him, that's not too strong a word to use I don't think, in courtrooms, he was kind of leering, ogling, attractive woman(sic) in court and that to me is not how we do things. We may say he as just being friendly and I will probably say, "Okay", but it was obvious on a number of occasions and that's about as far as it goes.

A.B.  Obvious on a number of occasions with whom ?

QQ   Female, attractive defendants

A.B.   Did they, in your experience, were they treated differently than other defendants ?

QQ   No. I don't think he ever, as far as I am aware, I don't think there was ever any lack of impartiality with him as a jurist or a judicial officer making decisions on penalty for example. I have never seen that, I will give him that.  That is not the issue.

A.B   ....Do you recall the name of the defendant ?

QQ   I do not.  I didn't make any notes.  I should have taken some notes or kept a docket but I didn't. That doesn't sound good, but I never keep any details.

4.   II - A POA clerk - brought a number of issues including the BB touching incident.
Two incidents involving her daughter were dismissed by the complaints committee,
namely, 1. "I had the pleasure of meeting your daughter" and 2. a touching incident
involving her daughter.  She mentioned EE going up to his chambers and encountering
him shirtless. She mentioned the PP chest incident.

5.   HH - a provincial prosecutor advised that in the late spring of 2010 she was
proceeding towards the entrance of 605 Rossland Road, past the entrance for the
Justices of the Peace. Justice of the Peace Massiah was sitting outside the Justices
of the Peace entrance. No one else was present. As HH passed HW Massiah she
says that he said, "Looking Gooood " and "raked her" up and down with his eyes.

That is it.  That is the Hunt Report. That is the "complaint" which was filed against HW Massiah.
(see Record of Proceedings - Vol.II - Tab 37)  If you have a minute to spare I invite you to take the time and compare it to the Notice of Hearing.(see Record of Proceedings - Vol.I - Tab 2)

You will see that there is an obvious lack of congruence between the "complaint" and Notice of Hearing.  If you dig further you see that there is a lack of congruence between the "complaint", the Notice of Hearing and the matters which the Hearing Panel relied upon to make the removal order.

The long and short of it is that the Hearing Panel considered a myriad of issues which were not part of the complaint and was not investigated by the complaints committee in making their removal decision.  Some of their findings of liability, namely, paragraphs 1-6 and 14 in the Notice of Hearing were made with no evidence. Presenting Counsel conceded in their written submissions that no evidence was called on these items.

NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance - the removal of a judicial officer from office. Judicial officers can not be fired as the main stream press have frequently characterized this removal from judicial office. Those who defend them in accordance with their duty as counsel ought not to be the subject of arbitrary penalty and sanction without due process of law either.


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