Friday, November 4, 2016

My Defence to the JPRC Referral to the LSUC - Part IV: The Notice of Hearing was Contrary to Hryciuk

   Today marks the 20th anniversary of the Ontario Court of Appeal landmark decision in Hryciuk  v.  Ontario 31 O.R. (3d) 1.  This is the case in which Justice MacFarland, sitting as an Inquiry Judge, appointed under the Courts of Justice Act, ordered Judge Walter Hryciuk's removal as a Provincial Court Judge on account of sexually inappropriate acts and comments towards various court staff.

   A unanimous panel of the Court of Appeal composed of Catzman, Weiler and Abella JJ. A. overturned the removal order finding that the Justice MacFarland exceeded her jurisdiction by entertaining matters which were not previously pre-screened by the Judicial Council. In Judge Hryciuk's case he faced two complaints involving Kelly Smith and Susan Lawson. Those two complaints were properly screened by the Judicial council and ultimately forwarded for a public hearing. After Judge Hryciuk completed his case, new complaints were brought forward and Justice MacFarland decided that since it was a public inquiry it was proper to hear everything and so she did.

   That decision by Justice MacFarland proved to a fatal jurisdictional error. In a nutshell, the Court of Appeal held that Justice MacFarland's mandate was not a general one but one which flowed from the two specific complaints referred to her for hearing - namely the Kelly Smith and Susan Lawson complaints. Because the three new complaints heard by her were not not first made to or investigated by the Judicial Council they could not be entertained by her.  The Court of Appeal said:

"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. Circumventing the statutory requirement that there be prior vetting by the Judicial Council defeats the whole purpose of the legislative scheme, and violates the mandatory nature of the two-stage process set out in s.46 of the Courts of Justice Act."

Application to Re Massiah:

   In Re Massiah, Douglas C. Hunt, Q.C*., in his capacity as Presenting Counsel retained by the Justices of the Peace Review Council to present a separate case against His Worhship Massiah took will-say statements from staff at the Provincial Offences Court who called him to provide information regarding His Worship Massiah and forwarded them to the JPRC in the form of a report. The JPRC treated this report as a complaint and appointed a Complaints Committee to investigate.

   The Hunt Report as it has come to be identified contained will-says from five individuals. None of the will-says asserted vexatious, unwelcome acts or utterances which created a poisoned work environment.  In the course of the investigation some incidents came to light. In a letter dated January 2nd, 2013 the Registrar of the JPRC, acting on behalf of the Complaints Committee invited His Worship Massiah's response to the the matters which the Complaints Committee found required an answer from him and he answered.  Under the statutory scheme the Complaints Committee can order a hearing.  A public hearing was ordered.  Curiously, I questioned whether the Complaints Committee actually carried out this statutory obligation since the Notice of Hearing on its face states that the Review Council ordered the hearing and no order was ever disclosed to me. The Hearing Panel's response was to issue an order prohibiting me from making further submissions on behalf of my client. (see Decision dated November 18th, 2014)

   The JPRC retained counsel to act as Presenting Counsel. This is the lawyer who presents the case on behalf of the JPRC. Under the JPRC procedures Presenting Counsel drafts a Notice of Hearing which provides particulars of the allegations which the Hearing Panel will adjudicate.

   The Notice of Hearing in Re Massiah was dated May 31st, 2013. It contained 15 plus counts of misconduct.

Motion Asserting Lack of Jurisdiction
and Abuse of Process served June 28th, 

   The factum I served and filed with the Hearing Panel on behalf of my client clearly raised the Hryicuk Error on the face of the Notice of Hearing.  At paragraph 10 I stated: "The NOH dated May 31st, 2013 included seven additional counts of alleged misconduct not raised in the Registrar's letter dated January 2nd, 2013."  At paragraph 11 I stated: "Paragraph 14 in the NOH purports to rely upon a "history of judicial misconduct."

Factum of Presenting Counsel
Dated July 19th, 2013:

2.   In brief, the response is as follows:

(iii)   the process followed to address the new complaint was consistent with the mandatory two-stage process set out under the Act that requires a confidential investigation before a complaints committee can determine whether a public hearing into allegations is required to maintain public confidence in the justice of the peace and in the judiciary.  His Worship received these procedural safeguards by law. (Hryciuk  v. Ontario (1996) 31 O.R. (3d) 1 (C.A.))

8.   As a result, a complaints committee was assigned to investigate the new allegations and to determine the appropriate disposition under s.11(15) of the Act, the Applicant was given an opportunity to respond, and in due course a Notice of Hearing was issued in respect of the new allegations. (Henderson  v.  College of Physicians (2003) 65 O.R. (3d) 146 (C.A.)

34.   In conclusion, Presenting Counsel submits that the Motion should be dismissed, without prejudice to renew it at the end of the Hearing.

Flawed Instruction on
Hryciuk Followed by
Hearing Panel:

   In their written submissions dated March 13th, 2014 this is the instruction provided by Presenting Counsel on Hryciuk supra:

....The case demonstrates the propriety of the Hearing Panel (or in that case the inquiry judge)  considering whether the screening process contemplated in the legislative framework has been satisfied.  If the statutory scheme was complied with - i.e. a person made a written complaint to the council; the complaint was investigated by a Complaints Committee; the Complaints Committee determined as a result of its investigation that there were allegations of judicial misconduct; the particulars of the allegations against the respondent which would be the subject of the hearing were set out in a Notice of Hearing; and the Complaints Committee had jurisdiction to order those allegations to hearing - then the Hearing Panel can be satisfied that it has jurisdiction to proceed to hear the evidence in relation to those allegations."

   The Hearing Panel like Presenting Counsel failed to address the objection to the Notice of Hearing containing 7 allegations which were not pre-screened by the Complaints Committee in accordance with Hryciuk.  Instead they focused their attention on simply concluding that the statutory scheme was complied with.  They said the following at para 96 of their Decision on Jurisdiction and Abuse of Process:

"Logically then, given that the law was followed in the process which led to this hearing in order to ensure that he was afforded due process and that the public interest was protected, it cannot be successfully argued that His Worship has suffered prejudice from it."

JPRC Re-Argued the
Erroneous Instruction
Before Divisional Court:

   The JPRC once again argued the flawed interpretation of Hryciuk supra in their factum before the Divisional Court recently.

    It is clear in the Hearing Panel's Decision on Jurisdiction and Alleged Abuses of Process at paragraph 6 below that it was argued on behalf of His Worship Massiah that the Notice of Hearing was improper and that if this was the case the panel would have no jurisdiction to proceed.

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

Presenting Counsel -
Admission that No 
Evidence was called on 
1-6 of the NOH:

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

Hearing Panel
Liability Finding:

[207]   ...However, we find that His Worship acted in a manner inconsistent with the Human Rights Code.  His actions constituted sexual harassment and he failed to treat others in the justice system with mutual respect and dignity.

[210]   Based on the evidence we find to be cogent and compelling, we accept that the allegations set out in paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(e), 8(a), 8(c), 8(d), 9, 10, 11, 13, and 14 of the Notice of Hearing, have been made out on a balance of probabilities.

Improper Use of 
Matters Already Dismissed
by Complaints Committee:

   Although the Complaints Committee dismissed (O) - The allegation that you favoured or were partial to attractive female defendants when making decisions as a judicial officer the Hearing Panel nonetheless managed to make the following finding:

[148]   As to the impact His Worship's conduct on the prosecutor, now NN, she testified that it:

A.   ....diminished my confidence in his ability to put aside any biases for a certain type of profile or a defendant before him, and treat them all equally and the same.  And it seemed to me, he had difficulty doing this with a certain type of defendant before him, particularly young, attractive females.  And that diminished my confidence in his ability to be objectively execute his duties. (Reasons for Decision at p.39)

   In addition, although the Complaints Committee dismissed  (N) - The allegation that you sometimes referred to female defendants by their first names the Hearing Panel nonetheless managed to make the following finding:

[149]   II's evidence was that her observations as a court clerk about how His Worship Massiah interacted with female defendants was "...typically he was over friendly, he would address them by their first names."

[150]   She testified that:

A.   Well, yea.  I mean, to be fair, I sit in front, he sits behnd me; so I'm not looking at him, obviously.  But it would just be addressing them by their first names, just the tone, the manner, the tone of his voice, the way he would, you know, "Hi II.  So what happened today ?"  And just sort of very casual, not - I didn't think it was very professional the way he addressed - in my experience working in the judicial system for years - the way he addressed the defendants.

[151]   Ms. II's reaction to these observations affected her confidence in the administration of justice. She stated:

A.   Well, you know, I did't have much confidence in it, that he would be on the bench and treating females, the defendants, in an overly friendly manner.  And that the staff, I just found the arrogance. Because all of this stuff was done right out in the open.

Improper Use of Matters
Not Screened by the 
Complaints Committee:

[73]   Further corroboration of how His Worship looked at female staff arose in the evidence of JJ, the Manager who was called as a witness by His Worship's counsel to testify on his behalf.  She gave her evidence from British Columbia by teleconference.  She described an observation she had made of His Worship's conduct which made her feel uncomfortable.  Ms. JJ said she was showing a female human resources official around the courthouse.  The lady had a low-cut blouse on and was wearing and(sic) a pendant on her neck, and when the ladies met His Worship Massiah, Ms. JJ observed His Worship ask about and pay extra attention to the pendant and stare at the woman's bodice.

Justice Livingstone
Confronted Mr. House
with JJ's "Complaint":
(October 8th, 2014 - transcript at p.55-66)

MR. HOUSE:   It's not someone else.  And at the time of the investigation and the hearing of the first panel our witness, JJ, who was the supervisor, herself made a soert of unofficial check with the people to see if there was anything that arose, and nothing did. Now, what that shows you, in my submission, is that it was pretty obvious that if thee's five complaints about five women that he's saying, you know, "Hi good looking", and so on, it was pretty obvious to Ms. PP that there might be something at the other place and there was nothing.

JUSTICE LIVINGSTONE:  In fact there was according to her.  She raised it in her -- she said there was an incident that bothered her and mentioned it to the --

MR. HOUSE:   Not a complaint.

JUSTICE LIVINGSTONE:  No, not formally.

More from Presenting Counsel
Submissions on Disposition
on Hryciuk:

80.   Presenting Counsel submits that administrative law principles of fairness places 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 the 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 liklihood of His Worship committing similar misconduct in the future and his fitness to continue to hold judicial office.

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

Notice:  This piece is written for the sole purpose of drawing attention to the issues of public importance raised by the acts of the Hearing Panel in their following acts: 1. circumscribing a lawyer's right to defend his client by virtue of their order prohibiting submissions contrary to established international law; and 2.  publicly reporting a lawyer for discipline contrary to established law and practice. If there is anything in this post which is incorrect please bring same to the attention of the writer forthwith and it will be corrected. The purpose of the post is remedial and not punitive. Democracy and the administration of justice is best served by transparency and fair play.


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