Monday, December 12, 2016

Five Errors of Law in Re Massiah (2015) Inviting a Correctness Standard of Review

1.   The Hearing Panel embarked on the wrong inquiry - asking itself whether JP Massiah should be removed from his judicial duties based on Presenting Counsel's Notice of Hearing rather than addressing the question which the Justices of the Peace Act authorized them to adjudicate under s.11.1(1), namely, whether they should "uphold or dismiss the complaint" before them.

[73]   Therefore, the NOH with its particulars, dated July 4, 2013 and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.  (Decision on Jurisdiction and Alleged Abuses of Process - January 12th, 2015)

[89]   Section 11 of the Act mirrors the legal framework of the Courts of Justice Act which was determined to be mandatory in Hryciuk. It is this section which governed the actions of Mr. Hunt and the Justices of the Peace Review Council when it received the Hunt Report in November 2011.  As determined above, it received those allegations as a new complaint and established a Complaints Committee to consider them. His Worship Massiah was informed of the new allegations during his first hearing.

2.  The Hearing Panel based both its decision on liability and penalty on findings of misconduct which it  made in excess of its jurisdiction contrary to Hryciuk  v. Ontario (1996) 31 O.R. (3d)  1 (ONCA) by considering particulars or allegations which were not first made to the Review Council and investigated by its Complaints Committee. (particulars 1, 2, 3, 4, 5, 6, and 14 of the Notice of Hearing and later by employing HW Massiah's own testimony to support his removal from office. To compound this error the Hearing Panel made an express finding that HW Massiah acted in a manner inconsistent with the Human Rights Code when this was not part of what they determined to be the "complaint")

[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, 7a, 7b, 7c, 7e, 8a, 8c, 8d, 9, 10, 11, 13, and 14 of the Notice of Hearing, have been made out on the balance of probabilities. (Reasons for Decision, January 12, 2015)

[88]   The law on the process which is to be followed when new allegations arise during a hearing on judicial misconduct is well settled.  The Ontario Court of Appeal determined the law in 1996 in a case involving Judge Hryciuk of the provincial criminal court. (Decision on Jurisdiction and Alleged Abuses of Process)

3.   The Hearing Panel erred in law in its adjudication of the motions asserting 1. reasonable apprehension of bias; 2.  jurisdiction and 3.  abuse of process - in that;

Bias Motion

1.   The Hearing Panel failed to address the following question expressly raised to them, namely, do the particular facts with respect to the intake, investigation and adjudication of this matter give rise to a reasonable apprehension of bias; and

2.   Dismissed this motion without addressing the objection to the NOH raised on behalf of HW Massiah that the Notice of Hearing was contrary to Hryicuk supra in that it exceeded any complaint which could be said to have been received by the Review Council. (see Decision on The Motion Alleging Bias - May 29, 2014)

Jurisdiction and Abuse of 
Process Motion:   

   The Hearing Panel dismissed both of these motions without consideration of the evidence in support of both notwithstanding the fact that they agreed to hear and consider these motion on all of the evidence.  Proof in support of this fatal error is found in the fact that the Hearing Panel issued two decisions on the same day. They issued a Decision on Jurisdiction and Alleged Abuses of Process and Reasons for Decision.  The following is clear from their very own Reasons:

1.   The Hearing Panel did not consider or apply the evidence which they heard to their adjudication of the these motions - although Presenting Counsel properly instructed them on this point.
2.   The Hearing Panel did not adjudicate the discrete abuse of process issue raised by HW Massiah relying on Blencoe  v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307 in accordance with the established jurisprudence, including the recent jurisprudence from the Divisional Court itself.

The following excerpts from their decision dismissing the motion make this crystal clear:

[74]   In His Worship's view, the process which has brought him before this Hearing Panel has been unnecessary and/or unfair to such an extent that the matter should be concluded without further proceeding**. (Decision on Jurisdiction and Alleged Abuse of Process)

[75]   We found several of His Worship's submissions to be more about the merits of the case than relevant to an abuse of process.  We will consider issues relating to the merits of the case in that decision and focus on the abuse of process issues here. (surpa)

[77]      ....Fifth, fading memories may affect the credibility of witnesses but do not constitute an abuse of process. (supra)

[119]   The ability of each witness, including His Worship, to recall events and provide accurate testimony on events of years ago is an issue to be assessed when we consider and weigh the evidence on its merits. In our opinion, a passage of time that may cause memory to fade does not, however, form a basis to conclude that there has been an abuse of process.  No legal basis or actual prejudice on the facts of this case was presented which counters this view. (supra)

**The panel's failure to apply the evidence to the motions is clearly inconsistent with how the parties before them agreed to proceed. Presenting Counsel consistently advocated for a "wait and see" approach in their 2013 and 2014 submissions. This is what the chair of panel had to say on this point on June 18, 2014:

Justice Livingstone(now retired):  So, your abuse of process motion may be argued in writing, as you requested, Mr. Guiste. What we would propose to do is have those reasons in by the 7th of July, when we would normally have been proceeding; however, we will not rule on them until we have heard the evidence, so to allow, with caution, any potential further issues about abuse of process to be canvassed after the evidence is in. So, its a Pyrrhic victory to some extent, Mr. Guiste. at p. 69

**It is to appreciated that the allegations in this matter are from 2007-2010 and evidence was heard in 2014 and decisions were made in 2015.  Presenting Counsel's Notice of Hearing was issued three years after the earliest incident.  The hearing took place seven years after the earliest incident and four years after the last incident. The Hearing Panel determined that Presenting Counsel, Mr. Douglas Hunt's*** report was a complaint three years and two months after he submitted it to the Justices of the Peace Review Counsel. Two witnesses testified that they did  not make notes or secure transcripts of court proceedings which may have supported their claims. One witness AA could not remember the person who introduced her to HW Massiah when she asserted he looked her up and down when they were introduced. Surely, even judicial officers must have a right to have misconduct allegations brought against them dealt without inordinate delay.

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

The Standard of Review:

   Re Massiah(2015) involves the removal of a judicial officer for judicial misconduct under s.11.1(10) of the Justices of the Peace Act, R.S.O 1990, c.J.4. That section provides:

After completing the hearing, the panel may dismiss the complaint, with or without a finding that it is unfounded or, if it upholds the complaint, it may,

(a)   warn the justice of the peace;....
(g)   recommend to the Attorney General that the justice of the peace be removed from office in accordance with section 11.2.

Removal from office

S.11.2(1)  A justice of the peace may be removed from office only by the order of the Lieutenant Governor in Council.

Removal for cause

(2)   The order may be made only if,

(a)   a complaint about the justice of the peace has been made to the Review Council; and
(b)   a hearing panel, after a hearing under section 11.1, recommends to the Attorney General that the justice of the peace be removed on the ground that he or she has become incapacitated or disabled from the due execution of his or her office by reason of,

(ii)   conduct that is incompatible with the due execution of his or her office.

The Justices of the Peace Act has no privative clause.  In Ell  v. Alberta [2003] 1 S.C.R. 857 the Supreme Court of Canada recognized that justices of the peace are protected by constitutional principle of judicial independence. As such, they are entitled to "a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees" as stated by Le Dain J. in Valente  v. The Queen, [1985] 2 S.C.R.673.  The removal of a judicial officer like Massiah involving the interpretation and application of both the Justices of the Peace Act and the constitutional principle of judicial independence is one that arguably has wide implications for judicial misconduct proceedings generally.

In Alberta  v.  University of Calgary 2016 SCC 53 the Supreme Court of Canada recently held that a standard of review of correctness applied to a determination of whether s.56(3) of a Freedom of Information statute allowed the review of documents over which solicitor-client privilege is claimed. The court reasoned that a correctness standard applied because the question of what statutory language is sufficient to infringe solicitor-client privilege "is one that has potentially wide implications on other statutes."

The question of whether a Notice of Hearing containing particulars which were not first made to the Justices of the Peace Review Council in the form of a complaint in writing and then investigated by a Complaints Committee appointed under that Act is arguable in the same category as the situation in Alberta  v. University of Calgary supra. Certainly, a judicial officer must like everyone else know the case they have to make. That is a fundamental principle in our system of justice.

NOTE:  This piece is written for the sole purpose of drawing attention to an issues of public importance. The removal of a judicial officer in our system is an issue of public importance. It is one which ought not to be shielded by secrecy but must always be subject to the utmost of transparency otherwise judicial independence and the Rule of Law is seriously undermined.  Robust and constructive debate on issues of public importance is what distinguishes us from lesser societies. When we begin to punish and censor those who are simply doing their work as lawyers we invite tyranny, bigotry, sexism and all that is wrong to rule.

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