The recent decision by the Ontario Divisional Court upholding the JPRC Hearing Panel's findings of liability and penalty and allowing His Worship Massiah's judicial review application of their Compensation Decision has generated considerable discussion among Ontario's legal community. It was not lost on this writer that the Divisional Court's finding that the lower decision was reasonable departs from the established jurisprudence from the Supreme Court of Canada on the type and quality of analysis which goes into this inquiry without any effort to distinguish the facts and circumstances which would allow for such departure. Some observers and critics have been quick to express concern and criticism regarding the cost of the defence without even reviewing the Bill of Costs and the Written Submissions made on the Compensation part of the proceedings. Allegations of this nature are easy to make and are essentially political arguments rather than sound, reasoned legal arguments.
Argument in Brief:
Contrary to the mainstream media and others, the cost of Mr. Massiah's two judicial misconduct proceedings was high not because of any acts or omissions of Mr. Massiah or his counsel but because of institutional flaws and a clear absence of independence in the current operation of Presenting Counsel. The record is crystal clear that as early as June, 2013 an objection was made to the Notice of Hearing containing 7 allegations/particulars not pre-screened as mandated by the Court of Appeal's decision in Hryciuk v. Ontario O.J. No. 3813, 31 O.R. (3d) 1 (C.A.). Of all of the irregularities in this case, and there were many, this one stands out as clear and cogent evidence that there was a lack of independence between Presenting Counsel and the Justices of the Peace Review Council which adversely impacted the fairness of those proceedings. A review of the Justices of the Peace Review Council's factum in the Divisional Court proceedings makes it clear that any finding that Hryciuk v. Ontario supra was complied with is based on an error in instruction which failed to consider or address the fact that paragraphs 1-6 and 14 on the Notice of Hearing were not part of what was found to be the complaint - namely - the Hunt Report and was not pre-screened by the Complaints Committee.
What is Presenting Counsel ?:
The JPRC's Procedural Code for Hearing defines "Presenting Counsel" as "counsel engaged on behalf of the Review Council to prepare and present the case against a respondent. "Respondent" shall mean a justice of the peace in respect of whom an order for a hearing is made. (see 1(c) and 1(d).
Not Presenting Counsel's
Job to Initiate Complaints:
The proceedings which were the subject of a judicial review application before the Divisional Court stemmed not from a complaint from a member of the public but from Mr. Doug Hunt, acting in his capacity as Presenting Counsel in proceedings before a Hearing Panel chaired by Justice Vaillencourt. According to Mr. Hunt publicity surrounding the hearing he was presenting caused staff at the POA court in Whitby to contact his office with information regarding Mr. Massiah and he took their information and prepared a report which he forwarded to the JPRC's Registrar and his instructing counsel on the case he was presenting. How is this act by Mr. Hunt not inconsistent with the stipulation that Presenting Counsel is independent of the Review Council ? Would not the proper discharge of his duty as Presenting Counsel require him to simply inform the callers of the existence of the Review Council and inform them on how to make a complaint ?
The rest is history. Five will says taken by Mr. Hunt led to an investigation by a complaints committee where some 33 persons were interviewed and five volumes of investigation transcripts were generated. Apparently, the complaints committee ordered a hearing. I say apparently because I have never seen any order from the complaints committee to this effect. This problematic order is made all the more problematic when one considers the next step in the process.
New Presenting Counsel
Retained by JPRC:
Once the complaints committee makes the order for a hearing the JPRC retains counsel to prepare and present the case. Paragraph 7 of the Procedural Code for Hearing authorizes Presenting Counsel to prepare the Notice of Hearing. In the Massiah case the Notice of Hearing drafted by Presenting Counsel went beyond Mr. Hunt's complaint and raised issues which the complaints committee did not investigate and which Mr. Massiah was not invited to answer to, namely, paragraphs 1-6 and 14 of the Notice of Hearing.(see Notice of Application for Judicial Review Indeed, Presenting Counsel herself acknowledged in her written submissions on liability that no evidence was called on those counts. The fact that those written submissions were not before the Divisional Court deprived that court of the ability to truly review the Decision on Jurisdiction and Alleged Abuse of Proces and the Liability Decision in the manner mandated by the Supreme Court of Canada in Dunsmuire v. New Brunswick.
Wrong Party Drafting
Notice of Hearing:
There are two problems with this manner of procedure. Firstly, the persons best situated to draft the Notice of Hearing are the ones who investigated the matter and who are statutorily empowered to order a hearing. This makes perfect sense in light of Hryciuk v. Ontario since they would be less inclined to insert issues or matters which were not investigated by them. Assuming that the Complaints Committee made an order for a hearing - would not that order have to delineate the issues for hearing making the need for Presenting Counsel to draft one redundant ?
Secondly, providing Presenting Counsel with this responsibility denudes that office of the very independence which Paragraphs 3 and 4 of the Procedural Code for Hearings expressly articulates. One need just examine the words of paragraph 4 to see how providing this role to Presenting Counsel undermines their independence -if not in reality then by appearance:
Paragraph 4: The duty of legal counsel engaged under this Part shall not be to seek a particular order against a respondent, but to see that the complaint against the justice of the peace is evaluated fairly and dispassionately to the end of achieving a just result. (at p.18 JPRC Procedures Document)
The requirement that Presenting Counsel draft the Notice of Hearing has the effect of at a minimum creating an appearance of partiality to the JPRC and against the respondent justice of the peace. At a higher level it creates a real and dangerous impediment to a fair and dispassionate evaluation of the complaint. An example will illustrate the point. Mr. Gover, the Independent Counsel, whom the Hearing Panel retained to advise them on the issues of jurisdiction and abuse of process told them that it is a complaint which they are called upon to adjudicate and it is the complaint which gives them jurisdiction. Presenting Counsel on the other hand told them it was the Notice of Hearing which provided them with jurisdiction. The Hearing Panel accepted and acted on the latter advice.
Hearing Panel Failed
to Address the Fundamental
Question of the Propriety of
the Notice of Hearing:
It is clear on a proper reading of the JPRC Hearing Panel's Decision on Jurisdiction and Alleged Abuses of Process that they failed to address the fundamental question of whether the Notice of Hearing exceeded the Hunt Report and the Complaint Committee's investigation. The Hearing Panel appears to have understood the objections I raised to their jurisdiction. This is what they said on p.2 of the said Decision:
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 investigations 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.
July 2013 Objection to
the Notice of Hearing on
Hryciuk Grounds Resisted
by Presenting Counsel:
The proper objection raised on behalf of Mr. Massiah based on Hryciuk v. Ontario i.e. that the Notice of Hearing contained 7 counts or particulars which were not previously screened by the complaints committee was forcefully resisted and prompted the following instruction on Hryciuk by Presenting Counsel:
.....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 a hearing - then the Hearing Panel can be satisfied that it has the jurisdiction to proceed to hear the evidence in relations to those allegations." ( at p.11 Submissions of Presenting Counsel dated March 13th, 2014)
Hearing Panel Adopted
Holus Bolus this flawed
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."
The error committed by the Hearing Panel with respect to their application of Hryciuk is that they did as they were told by Presenting Counsel and failed to consider the objection that 7 counts on the Notice of Hearing were not pre-screened by the Complaints Committee as required by Hryciuk. Presenting Counsel specifically instructed them that it was for them to determine whether the statutory scheme was complied with and if it was they could be satisfied that they had the jurisdiction to proceed to hear the evidence in relation to those allegations.
Before Divisional Court:
This same error is repeated in the JPRC's factum ( * Presenting Counsel before JPRC) before the Divisional Court at paragraph 16 where they expressly raise Hryciuk v. Ontario (1996) 31 O.R. (3d) 1. I have reproduced it in its entirety for the purpose of clarity.
16. In late 2011, during the course of that hearing, several employees at the Durham Region Provincial Offences Court (the "Whitby courthouse"), where the Applicant also presided, contacted Mr. Hunt to say that the Applicant had conducted himself in a similar manner at their workplace. Recognizing that it would be wrong in law to call evidence on the new allegations of misconduct at the hearing that was already underway, lawyers from Mr. Hunt's office interviewed each of them, had the interviews transcribed, and submitted the transcripts to the JPRC in a document titled "Complaint Respecting His Worship Justice of the Peace Errol Massiah." It appears that the people who spoke with the lawyers from Mr. Hunt's office were told that the information they provided would be forwarded to the Review Council. Mr. Hunt disclosed the new allegations to counsel for the Applicant. In accordance with the Act, a Complaints Committee was convened; the Committee determined that in fairness to the Applicant, the new allegations should be held in abeyance pending the completion of the first hearing to ensure that any investigation, such as interviewing of witnesses, would not in any way interfere with, or be perceived to be interfering with, the ongoing matter. After the hearing was completed, the Committee carried out an investigation; the Applicant was provided an opportunity to respond in writing to the allegations that the Committee considered capable of grounding a finding of judicial misconduct; and finally, a new Hearing Panel was convened to conduct a hearing on the allegations referred by the Complaints Committee.
Lieutenant Governor in Council and
Attorney General's Factum before
the Divisional Court:
3. On the Applicant's issues relating to the JPRC's jurisdiction, procedural fairness and findings, as well as the standard of review to be applied, the Attorney General agrees with the JPRC that there is no basis to set aside the recommendation of the JPRC or the Order in Council.
Clearly, this party did not address the issue which the JPRC Hearing Panel properly identified in its Decision on Jurisdiction and Alleged Abuses of Process as one which was fatal to its jurisdiction - that the Notice of Hearing was improper.
Evidence that Hryciuk (ONCA)
was Significant to Presenting Counsel's
Hryciuk v. Ontario (ONCA) is cited in two of Presenting Counsel's Book of Authorities. In one Book of Authorities it is cited as the first case. In another it is the 13th case.
Report of Inquiry Re
Although this case was overturned by the Court of Appeal for Ontario it is actually relied upon by Presenting Counsel in their Book of Authorities on Disposition.
The JPRC hearing panel referred me to the LSUC in a very public manner when this was not called for. It can not be the case in a free and democratic society which is guided by the Rule of Law that I must sit by quietly while my good name is improperly attacked. Like my idol the late Nelson Mandela I will resist firmly, quietly and always being mindful and respectful of the law. The law can oppress but when applied properly is a great liberator. I have chosen to see the law as a liberator and not as an oppressor. Transparency is the key ingredient to making the law a liberator and not an oppressor.