Wednesday, November 1, 2017

More Evidence of Bias/Unfairness in JP Removal Case: JP's Submissions Overlooked ? - Part 4

E. J. GUISTE
PROFESSIONAL CORPORATON
TRIAL & APPELLATE ADVOCACY

2 COUNTY COURT BLVD., SUITE 494
BRAMPTON, ONTARIO, L6W 3W8
TEL.(416) 364-8908.  FAX (416) 364-0973
E-MAIL:    ejguiste@yahoo.com
                      
February 6th, 2017                                                  E MAIL                                              
                                               
JUSTICES OF THE PEACE REVIEW COUNCIL
1 Queen Street East, Suite 2310
Toronto, Ontario
M5C 2W5

Attention:  Ms. M. King, Registrar and Counsel

Dear Ms. King:

RE:      MASSIAH – COMPENSATION – REHEARING

            The following are JP Massiah’s submissions on the question raised in your letter of January 23rd, 2017 and Presenting Counsel’s letter of February 1st, 2017.

Role of Registrar:

            It is unclear from your letter of January 23rd, 2017 whether you are writing as
Registrar to the JPRC, Counsel to the JPRC or on behalf of the hearing panel.

Composition of Hearing Panel:

            The Justices of the Peace Act stipulates that a hearing panel shall contain a judge who shall chair the panel, a justice of the peace and a member who is a judge, a lawyer or a member of the public.  All the members of the panel constitute a quorum according to s.11.1(3).

            Accordingly, JP Massiah requests that a member of the JPRC who is a Judge of the Ontario Court of Justice be appointed to satisfy the statutory quorum.  This is precisely what happened when Ms. Margot Blight recused herself.

Public Hearing:

            The Procedures Document at p.23 provides that consideration of the question of compensation shall take place in public if there was a public hearing.  There are no exceptional circumstances put forward by JP Massiah or Presenting Counsel to move from the presumption of a public hearing called for by both the JPA and the Procedures Document.

The Facts:

            JP Massiah does not agree that the underlying facts regarding the issue of compensation is res judicata. Rather, the purpose of the contemplated hearing is to adjudicate the issue of compensation afresh. JP Massiah recommends that the practice of both oral and written submissions be continued.

            I trust that this is satisfactory .
                                   
Yours very truly,
 ERNEST J. GUISTE
Per




Ernest J. Guiste
Cc co-counsel, Mr. House, Presenting Counsel – Ms. Henein and Mr. Gourlay

Mr. Massiah via e mail 

More Evidence of Bias/Unfairness in JP Removal: Presenting Counsel on Panel Composition - Part 3



Excerpts from Presenting Counsel's Submission


February 1, 2017

Marilyn E. King
Registrar
Justices of the Peace Review Council
31 Adelaide Street East
Toronto, Ontario
M5C 2K3

Dear Ms. King:

RE:  Justice of the Peace Massiah   v.   Justices of the Peace Review Council


As Presenting Counsel, we take the view that the re-hearing of the compensation question should be conducted by the two remaining members of the Panel.  In discussions with then-counsel for Mr. Massiah, (Mr. Anand) following the release of the Divisional Court's decision, it was agreed that this was the appropriate way to proceed....

While the chair of the tribunal may well have the discretion to add a member to an existing panel with the consent of the parties, in our view this is not an appropriate case for any such discretion to be exercised and we would not consent to it....

We would also like to indicate that we are content to have the re-hearing of the compensation issue conducted in writing, should the panel be so inclined.  Full submissions on the facts have already been made to the panel, and a transcript of those submissions is available. The remaining issue the the discrete legal question of how the Divisional Court's reformulation of the applicable legal principles should apply to the application of s.11.1(17) of the Justices of the Peace Act.  This could be adequately addressed in writing, in our view.

Yours very truly,


Henein  Hutchison LLP

Marie Henein
Mathew Gourlay
Presenting Counsel




What does the Justices of the Peace Act say ? 


Justices of the Peace Act

Hearing Panels

Composition:

s.11.1(2)   A hearing panel shall be composed of,

(a)   a judge who shall chair the panel;
(b)   a justice of the peace; and
(c)   a member who is a judge, a lawyer or a member of the public.

Quorum

(3)   All members of the panel constitute a quorum.




NOTE:  This excerpt of Presenting Counsel's submission to the JPRC on the issue of the composition of the Hearing Panel and whether the standard oral hearing format would be departed from is published here to draw attention to an issue of public importance.  Rule 59 of the Rules of Civil Procedure allow for the varying or amending of orders where something was not raised or adjudicated upon and that something impacts the court's order. According to Presenting Counsel in her submissions, the JP's appellate counsel was aware of this point. Could not the current impasse caused by the Panel's inability to decide have been averted through a Rule 59 motion on consent ?


More Evidence of Bias/Unfairness in JP Removal Case: No Juris Decision by OJC Re Panel Chair - Part 2


ONTARIO JUDICIAL COUNCIL

September 2, 2016

Mr. Ernest J. Guiste
Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario, L6W 3W8

Dear Mr. Guiste:

RE: Complaint about a judge

I am writing in relation to your complaint about the Honourable Justice Deborah Livingstone.

Her Honour has fully retired from the bench and is no longer a judge. As she is no longer a judge, the Ontario Judicial Council no longer has jurisdiction and cannot continue to review or investigate your complaint.

Thank you.

Yours very truly,

Marilyn E. King
Registrar


NOTE:  This decision is published here to draw attention to an issue of public importance. Complaints about judicial officers in our system are issues of public importance since it is the public whom judicial officers serve through The Rule of Law and the constitutional principle of Judicial Independence. The Chair of the Hearing Panel in the Re Massiah removal case resigned as a judge prior to the Divisional's Court's decision remitting the matter of the JP's compensation for his legal costs back to the original panel for adjudication.  Marilyn King is both the Registrar of the Ontario Judicial Council and the Justices of the Peace Review Council. Ms. King also retained Presenting Counsel to present the adjudication of the complaint against JP Massiah and was instructing JPRC counsel before the Divisional Court(to the very same law firm). The Divisional Court was not made aware that the original panel had now lost its chair and arguably could not entertain the rehearing with only two members pursuant to their enabling legislation.

Readers must understand that the fact that a judge retires in these circumstances is not
in and of itself evidence that they misconducted themselves. This writer makes no such
suggestion.  That is not the point. The point is - did the JPRC have a duty to inform the
Divisional Court of this development so as to save the parties involved time and
resources and to bring some semblance of fairness and decorum to a proceeding which
started in August 2010.  I believe it safe to say that the Divisional Court would not have
remitted the matter back to the "original panel" if they were informed that the
"original panel" no longer existed.

Growing Evidence of Bias/Unfairness in JP Removal Case: Unable to Decide Panel Rules - PART I

IN THE MATTER OF A HEARING UNDER SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4, as amended
Concerning a Complaint about the Conduct of
Justice of the Peace Errol Massiah
Before:    Justice of the Peace Michael Cuthbertson
Ms. Leonore Foster, Community Member
   
Hearing Panel of the Justices of the Peace
Review Council

NO UNANIMOUS Decision REGARDING COMPENSATION


Counsel:
Ms. Marie Henein                                        Mr. Ernest J. Guiste
Mr. Matthew Gourlay                                   E. J. Guiste Professional Corporation
Henein Hutchison, LLP
Presenting Counsel                                    Counsel for Mr. Errol Massiah



NO UNANIMOUS DECISION REGARDING COMPENSATION

SUMMARY:    The Hearing Panel has not been able to reach a unanimous decision on the request by Mr. Massiah for a recommendation to the Attorney General under sections 11(17) and (18) of the Justices of the Peace Act that the Mr. Massiah should be compensated for legal costs incurred by him in connection with the hearing .

1)    Pursuant to the Divisional Court’s decision in Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191, the Hearing Panel’s decision in 2015 to not recommend to the Attorney General that Mr. Massiah be compensated for legal fees incurred by the hearing was set aside and submitted back to the Hearing Panel for its re-consideration.

2)    Unfortunately, the Chair of the Hearing Panel, the Honourable Deborah Livingstone had fully retired as a judge of the Ontario Court of Justice prior to the Divisional Court’s ruling.

3)    By virtue of s. 4.4(1) of the Statutory Powers Procedures Act (SPPA), the remaining two members of the Hearing Panel, Justice of the Peace Michael Cuthbertson and community member Ms. Leonore Foster, were tasked with determining the matter.

4)    We note that s 4.2(3) of the SPPA states:
The decision of a majority of the members of a panel, or their unanimous decision in the case of a two-member panel, is the tribunal’s decision.
5)    The Hearing Panel received submissions on the compensation issue from both parties earlier this year. After concluding decisions on motions brought by Mr. Massiah, we began deliberations on the request for a recommendation for the compensation of legal costs. We have worked diligently and cooperatively in attempting to come to a unanimous decision but regrettably have been unable to do so.

6)    As a result, we have considered options both in statute and case law on how to now proceed. There exist two options. The first option would require a joint position by both parties. That option is:



Option 1
Pursuant to s. 4.2.1(2) of the SPPA, the Chief Justice could appoint one person to replace the former Chair of the Hearing Panel, if both parties consent. Then the three member Panel could re-consider the issue of the recommendation of compensation of legal costs and make a determination.

7)    If the parties cannot jointly agree to proceed under Option 1 then, in our view, this Hearing Panel must act as follows:
            Option 2
Pursuant to the decision in Law Society of Upper Canada v Watson, 2015 ONLSTH 189 (see also Worker’s Compensation Appeals Tribunal Decision no. 969/941, 1996 CanLii 9786 (ON WSIAT)), we must advise the Chief Justice that we are deadlocked and request that, pursuant to s. 11.1(1) of the Justices of the Peace Act, she appoint a new three member Hearing Panel to replace us. That new Hearing Panel would then have the responsibility of re-considering the request for a recommendation for compensation of legal costs, in accordance with the Divisional Court’s ruling.
8)    We therefore request that both parties liaise on the issue. We request that each of the parties advise us in writing of its position on Option 1 no later than Friday, November 24, 2017.


Dated:                    October 25, 2017
Hearing Panel:    Justice of the Peace Michael Cuthbertson
Ms. Leonore Foster, Community Member



 NOTE:  This decision is published to draw attention to an issue of public importance. Judicial officers throughout the common law countries are traditionally indemnified for their costs in defending their office. Ontario has opted to depart from this well established tradition and adopted what Presenting Counsel referred to as the "foot their own bill" policy. In Ontario JPs adjudicate bail hearings where they are called upon to adjudicate whether one who stands accused should be deprived of their liberty. This work combined with the Supreme Court of Canada's pronouncement in Ell  v. Alberta assures them all of the rights and privileges of judicial independence.

Friday, October 27, 2017

Tips on Advancing a Battered Spouse Syndrome Defence

   Domestic violence is a very serious social and legal problem.  Every year too many individuals suffer serious bodily harm and often death as a result of domestic violence.  All too often victims do not have the financial resources to secure the quality of legal services they deserve.

   Individuals who are historical victims of serious emotional and physical abuse at the hands of their spouses are all too often placed in situations where they are criminalized when they stand up for themselves in self-defence. This should not happen if police services which are mandated in Ontario to investigate domestic violence occurrences in this province on the same level of priority as homicides adhered to the polices put in place to prevent this.

   If you have been retained to defend an individual who has been charged in circumstances where in the context of a domestic relationship they act to defend themselves here are a few tips which may help you in advancing what has come to be known as the "Battered Wife Syndrome Defence". For the sake of clarity and simplicity I will refer to the defence as "Battered Spouse Syndrome Defence".

Battered Spouse
Syndrome Defence:

   What is the Battered Spouse Syndrome Defence ?  This is a defence which was recognized by our Supreme Court of Canada in R   v.  Lavalee [1990] 1 S.C.R. 852.  In R v. Lavalee a battered spouse shot and killed her common law partner by shooting him in the back of the head as he left her room. The killing took place after one of many heated confrontations in which the deceased had taunted her with the threat that either she kill him or he would kill her. The crux of the appeal was the court giving its blessing to the use of expert psychiatric evidence to show that the battered spouse had a reasonable apprehension of death or grievous bodily harm and believed on reasonable grounds that she had no alternative by to shoot.

Secure Historical
Medical Records:

   If after interviewing your client you determine that there is an air of reality to the prospect that your client may have acted out of an act of what I will refer to as self-preservation you will want to start compiling historical evidence of the nature of the relationship and any injuries suffered by your client.


Secure Police
Service Domestic
Violence Policy:

   In Ontario every police is mandated by law to have a Domestic Violence Investigation Policy. This policy will define such terms as "victim" and "dominant aggressor" - among others.  Victim in the Toronto Police Service policy for example is not confined to the current victim of charges before the court.  Hence, if some years ago your client was the victim of an occurrence and those charges were withdrawn when he or she failed to show for trial - your client is arguably a "victim" under the TPS Domestic Violence Policy since it does not set time limitations to the definition of victim and it incorporates within it an obligation by officers to ascertain who is the "dominant aggressor" based on among other grounds, historical information.

   Good lawyers will know that it is not uncommon for police officers not to follow policies. The failure of the police to follow their very own policies in the investigation of these occurrences can have very significant consequences for the strength of the Crown case against your client. Police officers under these policies should follow-up and find out why a complainant witness did not show up for court. The typical reason is fear for life or limb. If you are armed with such an omission on the part of the investigating police service you are well on your way to building your case that the acts and omissions of the investigating police service put your client's safety in danger.

Consider Testifying
at Preliminary Inquiry:

   Although often frowned upon by defence lawyers, you may wish to consider putting your client on the stand at the preliminary inquiry stage.  Not all clients will be able to do this. However, if your client is strong and determined it can be helpful on three fronts. The first is that it is very theraputic for the client to communicate their suffering.  The second is that it provides a less hostile environment for exposure to the trial process. Lastly, it provides cogent evidence that the Crown and the police can use to consider whether there is a reasonable prospect of conviction or whether the continued prosecution is in the public interest.  Putting in medical records as exhibits at the preliminary inquiry should send a very clear message to any responsible police service or prosecutor.  Since the preliminary judge is not concerned with weighing evidence and assessing credibility your client will be committed to stand trial.  However, you will have built a good foundation for your expert witness.

Retain an
Expert Witness:

   After your preliminary inquiry you will now be ready to retain an expert witness to assess your client and to provide an opinion on the use of force in the circumstances.  Dr. Peter Jaffe of the University of Western Ontario in London, Ontario is one of the leading authorities on domestic violence.  He is very knowledgeable and highly respected in his field by lawyers and judges alike. He also accepts clients who are funded by Legal Aid Ontario.


About the author:

E.J. Guiste is a rights litigation lawyer based in the Toronto area. His work involves both criminal and civil litigation - trial and appeal - with particular emphasis on ensuring that all players in the administration of justice adhere to and respect The Rule of Law.  Feel free to call for a consultation meeting if you have been charged in circumstances where you may have been acting to preserve your life, the life of your child or avoid bodily harm or you require an opinion on a potential civil claim. 




 





Saturday, October 14, 2017

"Access to Justice" Defined

     Let me start by first acknowledging that the term "access to justice" is  a political term and not a term of law.  Equality on the other hand is a term of law. In using the term political to describe the term "access to justice" I am not speaking of political science.  Political Science is a recognized course of study in the social sciences.  The political nature of the term means that it will have differing meanings for differing groups in the legal market based on things such as history, race, gender, sexual orientation and especially socio-economic status.

   
Divisible into Two
Major Categories:

     The term or goal of "access to justice" can be divided into two major categories. The first is what I will refer to as "economic access to justice". This category of "access to justice" concerns itself with the affordability of legal services to the public and for those who can not afford - affirmative intervention by the state to provide counsel.

     The second category of "access to justice" is rooted in the fundamental principles of The Rule of Law and Judicial Independence.  We could refer to this category as substantive "access to justice." It concerns itself with ensuring that all litigants in our courts have their grievances adjudicated fairly, impartially and dispassionately without regard to any irrelevant considerations including on the basis of the first category.

Critical Areas Calling 
for Access to Justice:  

     Critical areas of inequitable access to justice among litigants in Ontario include the following:  1. adjudication of claims involving sexual assault against women; 2. adjudication of claims by African-Canadians involving racial discrimination, racial profiling and judicial and professional misconduct; 3. adjudication of claims of ineffective assistance of counsel by criminal defendants; 4.  adjudication of claims against hospitals and medical doctors.


Commentary:

     Policy-makers who are serious about seeking to cure the lamentable problem of inequality in what has come to be termed "access to justice" in our justice system need to recognize and accept that there are indeed two major categories of "access to justice."  Focusing on one at the exclusion of the other is merely a "band-aid' solution and will serve to only aggravate the problem.

   

Friday, October 13, 2017

Access to Justice - What is it ? - Introduction

   The term "access to justice" is easily the most used or talked about terms among high court judges, regulators and governments in Canada.  We must begin to make legal services more accessible to all segments of the community is the prevailing sentiment. Hence, according to what I will refer to as the conventional wisdom among the three sources of input on this subject matter access to justice entails making legal services more affordable to the general public.  Of course the assumed fact in this policy choice is that this is the ONLY impediment denying what is now acknowledged to be significant and growing portions of the consumers of legal services a fair and impartial hearing of their legal clams and grievances.

   Therein lies the problem.  The current discourse on "access to justice" has failed to delineate and define what exactly is the problem we wish to solve when we employ the term "access to justice". In addition, the current discourse on the topic is entirely devoid of serious consideration of the issue from the perspective and interest of the consumers of legal services who are adversely impacted.

  In the next post I will dedicate some time to the question of what is "access to justice".



Sunday, October 1, 2017

Copy of Letter to Jagmeet Singh M.P.P. Re Law Society Name Change

E.J. GUISTE
PROFESSIONAL CORPORATION
CRIMINAL TRIAL & APPELLATE ADVOCACY

2 COUNTY COURT BLVD., SUITE 494
BRAMPTON, ONTARIO, L6W 3W8
TEL.(416) 364-8908.  FAX (416)364-0973
E-MAIL ejguiste@yahoo.com
                 

June 22nd, 2016                                                      VIA: FAX (905) 799-9505
                                                                                                (416) 325-1790
Mr. J. Singh, M.P.P.                                                            


Dear Jagmeet:
                                                                                                
RE:              LAW SOCIETY OF UPPER CANADA – NAME CHANGE

            I think it is time that The Law Society of Upper Canada comes out of the 
days of Upper Canada and changes its name to reflect the fact that Upper 
Canada no longer exists and we are in the Province of Ontario.  Please see my 
attached post which explains why this needs to be done at this time.

            I trust that this is satisfactory.  Feel free to call me.

Yours very truly,




Ernest J. Guiste.
Encl.



Friday, September 29, 2017

Does The Majority Ruling in Groia v. L.S.U.C.(ONCA) Rely on a Flawed Premise ?

   In Groia   v.  The Law Society of Upper Canada the majority reasons dismissing his appeal contain what this writer believes to be a flawed legal premise which arguably impacted their analysis and outcome of the legal question before them.  That flawed legal premise is found in the first paragraph of the majority's reasons.

The Ruling:

[1]   For almost 220 years, the Law Society of Upper Canada has governed the legal profession in the public interest under statutory authority granted to it by the legislature of Ontario.

Commentary:

   The Law Society was created in 1797 to regulate the legal profession in the British colony of Upper Canada. Ontario was founded on July 1st, 1867.

The Ruling continued:

[1]   ....For close to a century, in the exercise of its statutory mandate, the Law Society has formed a body of rules governing the professional conduct and ethical obligations of lawyers, both inside and outside the courtroom.  Lawyers who fail to to meet the standards of practice established by these rules are subject to the Law Society's complaints and disciple processes.  In Ontario, as elsewhere in Canada, it is a privilege to practice law, not a right.

Commentary:

   The term "it is a privilege to practice law, not a right" is the flawed premise which permeates the majority's ruling - in this writer's opinion.  What does this term mean ?  The writer's asking of this question ought to alert readers to the inherent ambiguity and hence arbitrariness in the term. In this writer's opinion this term is one which is well grounded in our history as a nation and is arguably more of a political term than a legal principle.  The most obvious reference was when our federal government passed laws restricting immigration on what are today widely accepted as irrelevant and discriminatory grounds. Indeed, the very Law Society which is the subject of the appeal followed this sentiment in restricting access to African-Canadians and women based on this principle - namely - "it is a privilege to practice law, not a right."

   Accordingly, in this writer's opinion - the majority decision by the Court of Appeal for Ontario appears to have answered the wrong legal question.  The majority appears to have focused their attention on whether the governing body acted within its jurisdiction without properly considering that the court had in fact addressed the incivility and it was in fact spent. In this context the reference to "it is a privilege to practice law, not a right" makes perfect sense.  Justice Brown got it right when he wrote:

[255]   Our disagreement, therefore lies not in the continued importance of civility to the health of Ontario's legal system.  Our disagreement lies in how to determine when a barrister's in-court conduct amounts to professional misconduct because it is uncivil.

Mr. Groia Complied with
The Court's Directions:

   Indeed, a significant point raised by Justice Brown in his dissent is that the courts addressed the issue in the proceedings and Mr. Groia complied.  He wrote:

[249]   The senior courts to which the prosecutors complained were not silent about Mr. Groia's conduct.  Quite to the contrary.  In no uncertain terms they expressed their very strong displeasure. In the language of earlier times, they administered a public shaming to Mr. Groia. They told Mr. Groia to cut it out and smarten up.  He listened, and he did.  Phase two continued without incident


About the author:

E.J. Guiste is a trial and appeal law based in Toronto, Ontario.  He has an unwavering passion for equality and The Rule of Law.  He is the author of "A Catholic Lawyer's Prayer" - which can be found on this blog.  This prayer articulates the inherent fear and danger which lawyers dedicated to the proper defence of  their clients are exposed to as part of their duty as a lawyers.  Read it here !


NOTE:  This piece is written for the sole purpose of shedding light on an issue of public importance.  The views expressed here are the views of the writer on the subject and should by no means be interpreted as a form of disrespect to any institution or person involved in the issue.

   

Saturday, July 8, 2017

J.P. Foulds June, 2017 and Massiah 2015* Exposes Unconstitutionality and Attorney General Mis-step

   Re His Worship. Foulds 2013 is the Justices of the Peace Review Counsel's(JPRC) case in which that tribunal's policy of requiring justices of the peace in Ontario to "foot their own bill" was established.

   Both the JPRC's 2013 decision and the recent pronouncements in Re His Worship Foulds  June 21st, 2017 - where H.W. Foulds confirmed to the hearing panel seized with his current matter that he has been unable to retain counsel provides clear and compelling evidence that the Notice of Constitutional Question brought by J.P. Massiah in March, 2017 is sound and worthy of judicial consideration.

   J.P. Massiah's Notice of Constitutional Question asserts that the Justices of the Peace Act and its Procedures Document is unconstitutional because -

1.  Justices of the Peace in Ontario are denied security of tenure because Presenting Counsel is granted unfettered discretion to draft a Notice of Hearing which could exceed and potentially have no relationship to the "complaint in writing" which is the initiating jurisdictional document;

2.  The existing system of indemnification has the potential to interfere with a justices of the peace's right to counsel in that it compensates some judicial officers and not others in an arbitrary manner which creates an unfettered discretion whereby lawyers may be faced with potential discipline and non-payment for simply discharging their duties as lawyers - as were counsel E.J. Guiste and Jeff House. Mr. House was not referred to the Law Society for discipline.  Furthermore, the Attorney General is not compelled to pay on any recommendation under the Justices of the Peace Act as is the case with recommendations to compensate for the legal costs incurred by Ontario Court of Justice judges under the Courts of Justice Act.

   Readers will recall that His Worship Fould's hearing was adjourned on February 14, 2017 to June 20th, 2017 in order to allow him to retain counsel to defend the judicial misconduct allegations brought against him.

   It ought to be clear to our law and policy makers in Ontario that it is not enough that justices of the peace in Ontario have an illusory right to counsel to defend themselves in judicial misconduct proceedings through the "foot their own bill policy". The Rule of Law and the constitutional principle of Judicial Independence is meaningless if our justices of the peace can be subject to complaints of judicial misconduct and removal from office without actually being able to have counsel to defend their offices.  The "foot their own bill" policy may sell newspapers and resonate with some constituents in the community who are fixated on the goal of curbing runaway government spending at any cost but it is not by any means sound law.

The Toronto Star Calls
for Public Funding:

   Yesterday The Toronto Star published an editorial calling for the Ontario Government to fund families at inquests into police shootings. In a succinctly worded piece recognizing the significant public interest role played by counsel representing the victims of police shootings that paper advocated for the Ontario Government to provide public funding to enable these families to retain counsel to advocate this important perspective at inquests. In making this point The Toronto Star raised the following question: So why would the government appear to  be committed to funding a system that isn't designed to challenge the SIU or police officers ?

   Clearly, the same question can and should be raised with respect to the Justices of
the Peace Review Council's "foot-your-own bill" policy with respect to the Attorney
General providing funding to enable Justices of the Peace to defend their office at
judicial misconduct hearings.  This is not revolutionary rhetoric from E.J. Guiste.
Indeed, the United Nations policies call for proper funding of the administration of
justice for such matters.  Why would the government appear to be committed to
funding a system that isn't designed to allow justices of the peace in Ontario access
to counsel to defend allegations of judicial misconduct ?

   The question is even stronger in the specific case of J.P. Massiah.
Why would the Attorney General pay counsel for J.P. Massiah in his
first hearing directly and then not pay counsel in his current proceeding after a
hotly contested hearing which saw the Association of Justices of the Peace of Ontario,
The Toronto Star and The Sun granted intervener status ?

Divisional Court Found
Foulds 2013 Based on 
Flawed Premise:
(Massiah 2015*)

[49]   In my view, the 2012 Panel started from a flawed premised, that is, that where there has been a finding of judicial misconduct, the presumption should be that compensation will not be made.  Specifically, the 2012 Panel said:...."it is only in exceptional circumstances that the public purse should bear the legal costsof a judicial officer who has engaged in judicial misconduct.

The 2012 Panel adopted this presumption from an earlier decision of a different Hearing Panel of the JPRC in Re Foulds (JPRC, July 21, 2013).


Attorney General Silent ?:

   The more pressing question is why are the legal costs of some J.Ps covered by the Attorney General and not others ?  Why were J.P. Massiah's legal costs paid to his lawyers directly by the Attorney General following his first proceeding but not in the second ?  Why did the Attorney General or Government of Ontario fund the prosecution of two judicial misconduct proceedings on J.P. Massiah when the second was based on similar facts which pre-dated the first disposition, clearly exceeded what was found to be the complaint and disregarded established legal principles involving among others Hryciuk  v. Ontario and the Human Rights Code jurisprudence from the Court of Appeal for Ontario and the Divisional Court ?

Not a Single
Public Complaint:

   This is troubling especially when one considers that not a single member of the public has filed any complaint against J.P. Massiah. The first complaint came from the Director of Court Operations at the Ministry of the Attorney General and was copied to the Deputy Attorney General - now counsel to Henein Hutchison LLP and the second complaint came from Mr. Doug Hunt, Q.C. - Presenting Counsel in J.P. Massiah's first hearing and according to fresh evidence recently put before the Ontario Court of Appeal* - a former Assistant Attorney General for Ontario and a law partner with current Presenting Counsel's spouse in and around the time of his complaint to the JPRC.

Attorney General at ONCA:
(Massiah v. JPRC)

[35]   The Attorney General submits that the statutory purpose of the Justices of the Peace Act is best achieved , not through the application of presumptions for or against compensation for legal costs incurred to respond to discipline proceedings, but through an objective and principled weighing of factors relevant to public confidence in the administration of justice.  Foulds  provides this set of factors and it was reasonable for the 2012 Hearing Panel to consider and apply it.

Ministry of the Attorney
General Act, R.S.O. :

s.5   The Attorney General,

(a)   is the Law Officer of the Executive Council;

(b)   shall see that the administration of public affairs is in accordance with the law;

(c)   shall superintend all matters concerned with the administration of justice in Ontario;

(g)   shall advise the heads of the ministries and agencies of Government upon all matters of law connected with such ministries and agencies;

(h)   shall superintend all matters connected with judicial offices;


"Superintend" 
Blacks Law Dictionary:

   To have charge and direction of; to direct the course and oversee the details; to regulate with authority; to manage; to oversee with the power of direction; to take care with authority.
 

About the author:

E.J. Guiste is a Catholic lawyer of African-Canadian descent in Toronto, Ontario.
He authored "A Catholic Lawyer's Prayer" as a result of his struggles in 
defending J.P. Massiah. He is a strong advocate for the Rule of Law and the
fundamental principle of Judicial Independence - without which Ontario is no
better than the "Banana Republics" that we have become so proud of sending
foreign aid to.

Mr. Guiste is once again counsel to J.P. Massiah in proceedings before the Ontario
Court of Appeal seeking to set aside the JPRC Hearing Panel's findings of liability
and penalty on among other grounds that the "record of proceedings" filed with the
appellate courts was deficient and prevented appellate consideration of the issues
of jurisdiction and abuse of process raised as well as the constitutionality of the
Justices of the Peace Act generally as was well as its application in the case.

A motion filed with the Court of Appeal for Ontario on June 30th, 2017 asks that 
court to determine whether the JPRC's counsel are in a conflict of interest.
Evidence in support of the motion shows they drafted the subject Notice of Hearing
, presented the case before the Hearing Panel, and failed to call Mr. Hunt,
the complainant at the subject hearing - in circumstances where fresh evidence reveals
that current Presenting Counsel's spouse was a law partner in Mr. Hunt's law firm -
thereby depriving J.P. Massiah of confronting the complainant on his intention to
complain about his conduct only to vigorously defend their actions in the 
appellate courts in a tone and manner inconsistent with the Court of 
Appeal for Ontario's ruling in Ontario (Children's Lawyer)  v.  Ontario 
(Information and Privacy Commissioner) 75 O.R. (3d) 309 [2005] O.J. No. 
1426 (ONCA).

Mr. Guiste believes that the issues in this case are issues of public importance and that
transparency and full disclosure is in the public interest and part of his duty as a lawyer
in a free and democratic society. This publication is made in the good faith belief that
justice must be seen to be done.

NOTE:  The issues raised in this publication are issues raised in a motion filed by E.J.
Guiste on behalf of J.P. Massiah in Ontario Court File No. M47083 on June 30th, 2017.
These issues are awaiting disposition and have yet to be judicially pronounced upon. 

Sunday, June 18, 2017

Defending an Allegation of Professional Misconduct ?

   Next to the defence of one's liberty, the defence of one's professional status and reputation is easily the most serious legal proceeding that one could be involved in.  Aside from the obvious potential loss of one's livelihood, professional misconduct proceedings have the added ability to significantly destroy one's years of developing and establishing one's professional reputation and financial security as well as potentially permanently impacting one's physical and mental health.

   Here are a couple important tips you may wish to consider should you be placed in a position where you require counsel to defend against a complaint of professional misconduct from your profession's governing body in Ontario.


1.  Research your lawyer carefully:

   Individual's facing professional misconduct frequently retain their lawyers through word of mouth from others in their profession without any independent research on the lawyer.  In doing so, they may unwittingly deprive themselves of the benefit of counsel on the unique factual circumstances of their situation.

Jurisdictional Irregularities:

   For example, the case may involve irregularities in the complaint or adjudicative process which may deprive the adjudicative body of jurisdiction to adjudicate the complaint.  The failure to raise such an irregularity before the adjudicative body at the outset will typically deprive the professional of the right to raise this fundamental issue on appeal or judicial review. The investigative or adjudicative body may be improperly constituted.  There may be an issue surrounding the sufficiency of the  "complaint" filed with the regulatory body.

Bias and Conflict of Interest:

   Another fundamental issue in the defence of a professional misconduct complaint is bias and conflict of interest involving either the adjudicators or the lawyers with carriage of prosecuting the complaint before the adjudicative body.  In our system of law bias denudes an administrative tribunal or court of jurisdiction.  This means that any decision made by a biased tribunal or court is a nullity. Our law is clear that bias must be raised promptly otherwise the ability to raise it on appeal or judicial review may be lost.

2.   Get a Second and Even
      A Third Opinion:

   If your situation involves either of the two issues noted above, you will want to seek out lawyers who have experience with these types of legal issues.  There is nothing wrong with getting a second opinion.  In fact, getting a second and even a third opinion is not only sensible but it may save you your profession and not to mention a lot of money in the long rune.  If one has a toothache one does not consult a gynecologist.


3.   Be mindful of costs.

   The defence of professional misconduct proceedings in Ontario is very expensive and can easily bankrupt most professionals.  This is because the professional must not only pay for his or her counsel but they must also pay for the governing body's costs associated with prosecuting them should they be found liable.  Just a few weeks ago the College of Physicians and Surgeons of Ontario revoked the liscense of a doctor and ordered him to pay some $300,000 in costs. It is safe to say that the costs of his own lawyer would be slightly lower than that of the governing body.

   It is not uncommon for clients to be forced to defend allegations without counsel once their financial resources run out.  Legal Aid Ontario does not fund these proceedings.  It is vitally important to get a good sense of the ultimate costs associated with the proceedings as early as possible and to negotiate a retainer agreement which will assist in seeing you through the proceedings.

Thursday, June 8, 2017

Problems with gender, racial or sexual harassment at your police service ?

   The right to be free from discrimination and harassment based on the prohibited grounds under the Ontario Human Rights Code provides strong and effective remedies when properly litigated with the help of an experienced human rights lawyer.  The fact that you are a probationary officer is not an impediment.  I secured reinstatement for a dismissed probationary officer under the Code seven years after his dismissal and as a second class constable.

   Employees experiencing these problems often do not receive the full support of their bargaining agents.  If you have questions or concerns in this area, feel free to call me for a consultation.

E.J. Guiste - 416 - 364-8908

Tuesday, June 6, 2017

Another Judge Opts to Retire Following A Judicial Misconduct Complaint

   The Canadian Judicial Council announced yesterday that the Inquiry Committee established to inquire into the conduct of the Honourable F. Newbould permanently stayed its proceedings as a result of the judge's retirement effective June 1st, 2017.  Now retired Justice Newbould was facing a complaint which alleged that he acted improperly by making oral submissions at a public hearing and writing two letters to the City Council with respect to a property dispute which touched cottage lands which his family had owned for over a hundred years.

   Ontario Court of Justice Judge Deborah Livingstone similarly opted to "fully retire" after the writer filed a complaint with the Ontario Judicial Council alleging, among other things, a lack of impartiality in the Re Massiah 2015 proceedings. An article published in The London Free Press on May 31, 2011 entitled "From Justice Deb....to just Deb proclaimed that she was retiring after 21 years as a criminal court judge.  Less than two years prior to her first retirement Justice Livingstone chaired a Hearing Panel of the Justices of the Peace Review Council which recommended the removal from office of His Worship Barroilhet on October 15th, 2009. Following her recommendation for the removal from office of His Worship Massiah in April 2015 and this writer's complaint of judicial misconduct against her, Justice Livingstone opted to "fully retire".

   Complaints of judicial misconduct, like pleadings in an action, are mere allegations until they are proven in a legal proceeding. In the case of both of these judges the fact of their retirement can not equate with findings of misconduct against them.

About the author:

Ernest J. Guiste is a Catholic lawyer who devotes his practice to representing persons
wronged by governmental actors, employers and defending criminal allegations.
His recent defence of H.W. Massiah inspired him to write, A Catholic Lawyer's Prayer,
a plea to the Almighty to protect him from those who may wish to harm him as a result
of his ethical and proper representation of his client.

Wednesday, May 31, 2017

Problems with Gender and Racial Discrimination in Higher Education ?

   The right to be free from discrimination and harassment under the Ontario Human Rights Code applies to colleges and universities in their delivery of services to students. Over the past twenty some years I have successfully acted for students studying law, nursing and graduate students who have found themselves either expelled directly or constructively expelled as a result of gender or racial discrimination at the hands of professors and or school administrators.

   Give me a call and allow me to put my extensive experience to work for you.

E.J. Guiste - Tel. (416) 364-8908 or E mail me - ejguiste@yahoo.com

Albert Einstein: The Negro Question

  The great physicist Albert Einstein wrote and published the following essay in Pageant Magazine in 1946.  His words are as relevant in current day Ontario, Canada as they were in the United States in 1946 when he wrote them. I am taking the liberty to reproduce the entire paper on account of its historical and educational value.

The Negro Question
by
Albert Einstein


I am writing as one who has lived among you in America only a little more than ten years, and I am writing seriously and warningly.  Many readers may ask: "What right has he to speak about things which concern us alone, and which no newcomer should touch ?

I do not think such a standpoint is justified.  One who has grown up in an environment takes much for granted.  On the other hand, one who has come to this country as a mature person may have a keen eye for everything peculiar and characteristic.  I believe he should speak out freely on what he sees and feels, for by so doing he may perhaps prove himself useful.

What soon makes the new arrival devoted to this country is the democratic trait among the people.  I am not thinking here so much of the democratic political constitution of this country, however highly it must be praised.  I am thinking of the relationship between individual people and of the attitude they maintain toward one another.

In the United States everyone feels assured of his worth as an individual.  No none humbles himself another person or class.  Even the great difference in wealth, the superior power of a few, cannot undermine this healthy-self-confidence and natural respect for the dignity of ones's fellow man.

There is, however, a somber point in the social outlook of Americans.  Their sense of equality and human dignity is mainly limited to men of white skins.  Even among these there are prejudices of which I as a Jew am clearly conscious; but they are unimportant in comparison with the attitude of the "Whites" toward their fellow-citizens of darker complexion, particularly toward Negros.  The more I feel an American, the more this situation pains me.  I can escape the feeling of complicity in it only by speaking out.  Many a sincere person will answer: "Our attitude towards Negros is the result of unfavorable experiences which we have had by living side by side with Negros in this country. They are not our equals in intelligence, sense of responsibility, reliability."

I am firmly convinced that whoever believes this suffers from a fatal misconception.  Your ancestors dragged these black people from their homes by force; and in the white man's quest for wealth and an easy life they have been ruthlessly suppressed and exploited, degraded into slavery.  The modern prejudice against Negroes is the result of the desire to maintain this unworthy condition.

The ancient Greeks also had slaves.  They were not Negroes but white men who had been taken captive in war.  There could be no talk of racial differences.  And yet Artistotle, one of the great Greek philosophers, declared slaves inferior beings who were justly subdued and deprived of their liberty.  It is clear that he was enmeshed in a traditional prejudice from which, despite his extraordinary intellect, he could not free himself.  A large part of our attitude toward things is conditioned by opinions and emotions which we unconsciously absorb as children from our environment.  In other words, it is tradition - besides inherited aptitudes and qualities - which makes us what we are.  We but rarely reflect how relatively small as compared with the powerful influence of tradition is the influence of our conscious thought upon our conduct and convictions.  It would be foolish to despise tradition.  But with our growing self-consciousness and increasing intelligence we must begin to control tradition and assume a critical attitude toward it, if human relations are ever to change for the better.  We must try to recognize what in our accepted tradition is damaging to our ate and dignity - and shape our lives accordingly.

I believe that whoever tries to think things through honestly will soon recognize how unworthy and even fatal is the traditional bias against Negroes.

What, however, can the man of good will do to combat this deeply rooted prejudice ?  He must have the courage to set an example by word and deed, and must watch his children become influenced by this racial bias.

I do not believe there is a way in which deeply entrenched evil can be quickly healed.  But until this goal is reached there is no greater satisfaction for a just and well-meaning person than the knowledge that he has devoted his best energies to the service of the good cause. 

Monday, May 29, 2017

The JP's Sworn Evidence on Compensation Re-Hearing Unchallenged and Uncontradicted


Excerpts From
JP's Affidavit Sworn
March 19th, 2017:


2.         I swear this affidavit for three reasons. 

3.         Firstly, the hearing panel on the court ordered rehearing of my claim for compensation has elected to depart from the public hearing format provided by the Procedures Document for the adjudication of claims for compensation and has provided no answer to my requests for guidance on how evidence will be received by them on the rehearing since it was my intention to give viva voce evidence. 

4.         Secondly, both the Divisional Court panel and the 2012 Panel, as the Divisional Court has identified it in its Reasons have made conclusionary and incorrect findings against me on the issue of my compensation claim which I must correct at this time.

5.         Thirdly, as an evidentiary foundation for the motions which the JPRC has publicly acknowledged receipt of.

2012 Panel Did Not
Adjudicate Issue The
JPA Authorized them to:


6.         Although my lawyers and Independent Counsel retained to advise the Hearing Panel 
advised them that it was a “complaint” which they were to adjudicate under the Act they went 
on to adjudicate the particulars in Presenting Counsel’s Notice of Hearing instead contrary to the opinion they received from Independent Counsel in Exhibit 17.

Human Rights Code
Relied upon by
Presenting Counsel:

7.         Because Presenting Counsel’s Notice of Hearing raised issues involving the Human Rights Code I felt compelled to retain additional counsel who was not only versed in Human Rights Law but had skill in the areas of Administrative and Constitutional law.  I therefore retained Mr. Ernest J. Guiste.

8.         Mr. Guiste’s challenged the propriety of the Notice of Hearing drafted by Presenting Counsel and the jurisdiction of the Hearing Panel to hear the matter for want of a “complaint” pursuant to the legislation in a motion brought pursuant to the Procedures Document and which motion was entertained by the Hearing Panel and Presenting Counsel.

9.         The Hearing Panel raised its own jurisdiction question i.e. whether they had the jurisdiction to entertain the motion brought on my behalf.  The Hearing Panel had my counsel provide work for its benefit on its motion.  The Hearing Panel’s own jurisdictional question was not resolved until around July 7th, 2014 causing me to incur significant legal costs not typically incurred in these proceedings.

10.       To compound matters, the Hearing Panel did not adjudicate the question of whether the Hunt Report was a complaint until January 12th, 2015.  Once again, causing me to incur significant legal fees to defend my office.  I am not aware of a similar case in which a judicial officer was required to defend judicial misconduct allegations which were made public before a determination was made as to their legality.

11.       I am in possession of an affidavit sworn by the Registrar and Counsel to the JPRC, Ms. Marilyn King on August 19th, 2016 containing a letter which she deposed she wrote to Mr. Hunt to satisfy the mandatory reporting requirement called for by the Justices of the Peace Act.  Attached to this affidavit and marked as Exhibit A is a true copy of Marilyn King’s sworn affidavit and letter.

12.       Mr. Guiste expressly raised the non-reporting point before the Panel on November 19th, 2013,  again in his Reply submissions on the Hearing Panel’s question on jurisdiction at p.5 and then both Mr. House and Mr. Guiste raised it again in their written submissions on Jurisdiction and this letter was never placed before the Panel. 

13.       I instructed Mr. Guiste to seek a publication ban once I saw the beating that my 
reputation was taking in the local press and the question of the legality of the “complaint” 
against me was unresolved at the time.  I am not aware of any other judicial officer being 
punished for brining(sic) a motion seeking in interim publication ban in the circumstances 
in which I found myself.

14.       I instructed Mr. Guiste to bring a motion asserting a reasonable apprehension of bias for, among other reasons, the fact that the Notice of Hearing issued by Presenting Counsel contained allegations which were not first made to the Review Council and investigated by a Complaints Committee as mandated by the Court of Appeal in Hryciuk  v. Ontario.

15.       I instructed Mr. Guiste to bring a motion seeking particulars and disclosure in advance of the hearing.  My best recollection is that by the time this motion was brought Mr. House was part of my defence team. There was still important outstanding disclosure when the hearing commenced in that Presenting Counsel failed to provide me with contact information for two of the management witnesses I called.  Mr. Guiste somehow tracked them down.

16.       I did not claim legal costs relating to the preliminary motions in the amount of $500,000 and $116,000 for the hearing proper as suggested by Presenting Counsel and determined by the Divisional Court at paragraph 14 of their Decision.   Mr. Guiste was and continues to be my lead counsel.  Although he allowed Mr. House to examine the witnesses, he continued to do all of the fact-gathering, legal research and the bulk of the written submissions.  It is noteworthy that the Bill of Costs was not part of the “record of proceedings” filed by the JPRC at Divisional Court.
           
17.       Following the hearing of evidence and prior to a decision being rendered I instructed my defence team to bring a motion seeking the Hearing Panel’s leave to address inconsistencies in the testimony given by material witnesses before the Hearing Panel and during their investigation interviews and to address two further jurisdiction issues  - 1. The Notice of Hearing states that the Review Council ordered my hearing when it had no such jurisdiction and a copy of an order was never produced and 2. The applicability of Weber  v. Ontario since the staff were unionized and covered by a collective agreement which addressed their concerns.

18.       I incurred further costs of roughly $130,000 to appellate counsel, Raj Anand of Weir & Foulds LLP in pursuing judicial review and leave to appeal of the Panel’s decisions.

19.       I have been without income now for close to two years.

20.       I would not have been able to defend my office but for Mr. Guiste and Mr. House agreeing to defer their fees and disbursements until I am indemnified by the Attorney General in accordance with the practice I came to understand and expect from past practice.

21.       Had it been made clear to me that in accepting the appointment to become a Justice of the Peace that I would be subject to complaints not only from the public but from within the statutory regime established to deal with such complaints itself and that I would have to defend my office at my own cost I would not have accepted the appointment.

Excerpt from Presenting 
Counsel's Submissions
of May 1st, 2017:

16.   In this respect, Presenting Counsel reiterates the submissions made at the initial compensation hearing in respect of Mr. Massiah's litigation conduct.  That conduct includes the episodes enumerated at para 5 of the Addendum.

31.   In an affidavit dated March 19, 2017, Mr Massiah appears to state that he has not acutualy paid his counsel to date.  Rather, his counsel agreed to "defer their fees and disbursements until I am indemnified by the Attorney General in accordance with the practice I came to understand and expect from past practice."

2012 Panel's Position on
Counsel's Conduct on 
November, 19, 2013 a p.49:

MR. GUISTE:  But it's related to the main issue, and I would ask for leave that we address 
it now, get it out of the way and deal with the other issue.  Because when it involves my 
conduct then it calls into question my ability to act fearlessly in the representation of my 
client.  So I think it's important to clarify that.

JUSTICE LIVINGSTONE:   Your conduct isn't an issue with this Panel, Mr. Guiste.  
What is at issue with this Panel, right  now, is what has been raised about Ms. Blight's 
involvement in the subcommittee in relation to a previous different complaint.

2012 Panel Compensation
Decision - Counsel's Conduct:

30.   The conduct of Mr. Massiah's lawyer, Mr. Guiste, is not relevant to this decision.

Presenting Counsel and 
complainant, Mr. Hunt's
Public Statement on the
issue of indemnification:

"Lawyer Doug Hunt, who presented the case against Massiah in his first hearing, said that compensation of legal fees for JP's was "an important issue that obviously needs to be looked at.
The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty", he said.

But, Hunt said it is important JPs have access to resources to defend themselves against allegations brought forward by the government. (see TorStar - Taxpayers billed for guilty justices' legal fees - 
Nov.20, 2014)

NOTE:  This piece is published here because the removal of a judicial officer in the free world and in Ontario is an issue of pubic importance.  The ability of a judicial officer to defend himself or herself against complaints of judicial misconduct is a part of our fundamental justice in Ontario. The right of counsel to defend their client's fearlessly and without threat of censorship and punishment without due process of law is perhaps as fundamental in our law as the right of freedom of expression. It is published in the spirit that Justice Must be Seen to Be Done.