Thursday, December 21, 2017

Flashback: Free Speech and Cause for Dismissal: 2009 Leave to Appeal to the SCC

                                                            Court File No.:   33399

(Appealed from the Ontario Court of Appeal)




(R.40(1) of the Supreme Court Act)

 TAKE NOTICE that the Applicant Ms. Jennifer Jeremiah will apply for leave to this Court pursuant to section 40(1) of the Supreme Court Act, R.S.C. 1985, c-S-26, as amended, E.S. 1985 (3rd) Supp., c.34, for an order granting leave to appeal to the Supreme Court of Canada from the order of the Ontario Court of Appeal dated August 25th, 2009, File No. C44442 dismissing the Applicant’s appeal against the dismissal of an action seeking , amongst other relief, damages under section 24 of the Canadian Charter of Rights and Freedoms before Mr. Justice Riopelle of the Ontario Superior Court
 of Justice at the City of Toronto, in the Province of Ontario.

  TAKE NOTICE that the said application for leave shall be made on the following grounds:

This case is of fundamental importance to all Canadians in that it touches on four issues of paramount importance in our system of justice, namely, freedom of speech, fault-based criminal liability(and s.264.1(1) of the Criminal Code) availability of legal redress against the state for the violation of fundamental rights and access to justice.

In this case – the Applicant – a 47 year of old woman with roughly 17 years of service with her employer was summarily dismissed and charged with one count of uttering a threat to cause serious bodily harm under the Criminal Code of Canada during a meeting with supervisors in which she was resisting management’s efforts to unilaterally change her schedule.  She is alleged to have said, “I have a family and I have told them all about you and if anything should happen to me they will be waiting for you.”

The Respondent police officer who was called to take a report the day following the incident took statements from the immediate supervisor – who is the alleged target of the threat and another manager who was present at the meeting.  He recorded the alleged words noted above in his memo book.  As part of his investigation, he asked the complainant – “what do you think she meant by those words ?”  The complainant replied that – they may wait for me after work and beat me up or come and burn my house down.”  The complainant also wrote a contemporaneous recording of the alleged words spoken along with a statement prepared for her employer’s human resources department.  The Respondent officer did not inquire into and did not receive these versions as part of his investigation. Each version of the complainant’s three statements had a different version of the alleged words spoken.

While conducting pre-trial screening procedures a Crown Attorney wrote the following to the Officer in Charge:

            “Al, this could mean anything. e.g they’re driving
            her to illness & her family might be there to sue the Bay
            & supervisors – So is this a threat to sue them ? In context,
            , wouldn’t a judge have a doubt – How do you know that it
            is a threat to cause bodily harm ? Should this be peace 
            bonded ? ( at most ?)                 

                        After P.C. Elliot took the statement he caused an Occurrence 
                        to be opened on the Police service computer system  P.C.  
                        Herman was ordered to investigate the matter.  He determined 
                        that no offence was committed and he closed the Occurrence.  
                        He called the complainant and advised her of this fact.  
                        P.C. Elliott, who, initiated the Occurrence – had went on leave 
                        following its submission. On his return he proceeded 
                        to arrest and charge the Applicant without checking the police 
                        computer system to see that the matter was closed.
The criminal charge against the Applicant was withdrawn.  However, she lost her employment on account of a release condition prohibiting her from attending at the place of work or communicating with her supervisors. 

Her civil action seeking redress against the police respondents was dismissed on account of the serious and fundamental errors of law made by the trial judge and which errors were hollos bolus accepted by the Court of Appeal for Ontario.

Adding to the gravity of these errors the Court of Appeal for Ontario went on to overturn the trial judges decision not to order costs against the Applicant on account of her impecueunosity and ordered her to pay $40,000 to the police respondents for the trial and $7,500 for the appeal.

1.         Is an Applicant bringing a Constitutional Question alleging the violation of her right to the equal protection and benefit of the law and free speech foreclosed from a remedy by virtue of the fact that the challenge is not to the legislation per se ?   What guidance can this court provide to the trial courts in adjudicating such applications?

2.         Did the charge of uttering a threat to cause bodily harm under section 264.1(1) under the Criminal Code of Canada violate either the Applicant’s right to free speech or her rights under section 15 of the Charter ?

2a.       With respect to the subject offence under the Code, how does an innocent meaning to alleged words spoken impact on a police officer’s formulation of reasonable and probable grounds ?

2b.       With respect to the subject offence under the Code, how does the absence of any reference to bodily harm impact on a police officer formulation of reasonable and probable grounds ?

3.         In the context of a civil action seeking redress for malicious prosecution, negligent investigation and breach of Charter rights flowing from a charge of uttering a threat to cause bodily harm under the Code – where as here – what was actually said is in dispute not only by the Applicant but on account of other statements or recordings made by the complainant – is it correct law for the trial judge to limit the jury to what the police officer wrote in his memo book ?

4.         Is our current system of costs to the successful party unsuitable for litigation involving claims by citizens against state actors who allegedly violate their fundamental rights ?

4b.       What role ought evidence of impecuniosity play in the adjudication of such costs ?
                                                Dated at Toronto, Ontario this 25th  day of October, 2009
            ERNEST J. GUISTE.                                                                

            ERNEST J. GUISTE                                                  
            Trial & Appeal Lawyer                                                                      
            700 Bay Street, Suite 606 (Box 130)                                              
            Toronto, Ontario                                                                                    
            M5G 1Z6                                                                          
            Ernest J. Guiste          
(416) 364-8908
            (416) 364-0973 fax                                                                          
                                                            Counsel for the Applicant

                        Barristers & Solicitors
                        40 King Street West
                        Toronto, Ontario
                        M5H 3Y4

                        Doug Smith and Rebecca Bush
                        (416) 367-6015
                        (416) 361-2725

                        Solicitors for the Police Respondents

AND TO:        The Registrar of this Court

NOTICE TO THE RESPONDENT(S): A respondent may serve and file a memorandum in reply to this application for leave within 20 clear days after service of the application.  If no reply is filed in that time, the Registrar will submit this application for leave to the Court for consideration pursuant to section 43 of the Supreme Court Act.

*Ernest J. Guiste frequently litigates employment cases where alleged criminal conduct forms the basis for the dismissal.

Wednesday, December 20, 2017

The Investigation Transcripts and Hryciuk Error Not Before the Divisional Court

Excerpt from JP's Appellate 
Counsel's Factum:

3.   While that proceeding was underway, staff in the Whitby courthouse called Presenting Counsel and alleged that similar incidents had occurred, prior to and in the same time frame, while the Applicant was sitting in their court.  Presenting Counsel sent those allegations to the JPRC, and this letter was treated by the JPRC as a new "written complaint".  That "complaint" was investigated by a Complaints Committee, resulting in five volumes of investigation transcripts, which the Panel treated as an "investigators' report."

Excerpt from the 
Hearing Panel's  Decision
on Jurisdiction Motion:

66.   .....The transcripts from the witness interviews conducted in 2012 during the investigation were filed as part of the Record by His Worship.

67.   We further conclude that the Complaints Committee had the authority to consider the new allegations in those transcripts within its mandate under s.11(7) of the Act and pursuant to the ruling in Sazant, (supra), as an extension of the complaint filed by Mr. Hunt.

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.

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 was informed of the new allegations during his first hearing.

91.   When the Complaints Committee completed its investigations and consideration, it invited Justice of the Peace Massiah to respond.  Having been given an opportunity to respond, Justice of the Peace Massiah did so.

Excerpt from JP's Bias Factum:
Erroneous Instruction on 
Hryciuk by Presenting Counsel

23.       At paragraph 24 of their March 13th, 2014 submissions Presenting Counsel 
made the following erroneous legal submission to the Hearing Panel regarding the 
legal holding in Hryciuk  v.  Ontario 31 O.R. (3d) 1 (C.A.):

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 that as a result of its 
investigation that there were allegations of judicial misconduct 
which had a basis in fact which, if believed, could result 
in a finding of judicial misconduct; the particulars of the 
allegations against the respondent which be be the subject of 
the hearing were sout 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 hearing the evidence in relation to those allegations.  
If His Worship seeks to argue that the complaints process should be 
different (eg his response should be shown to witnesses; or a complaints 
committee should not order a public hearing in circumstances where the 
allegations have a basis in fact, which, if believed, could result in a 
finding of judicial misconduct), then he can pursue his remedy if and when 
he chooses to apply for judicial review of any disposition made by the Hearing Panel.”

JP's Appellate Counsel at ONCA:

"The Divisional Court Decision is inconsistent with decisions of this Court and the CJC
in upholding findings of misconduct and the moving party's removal that were based
on allegations dismissed by the Complaints Committee and at least seven general 
allegations that were never considered or pre-screened by the 
Complaints Committee."

62.   The Divisional Court's ruling undermines this Court's decision 
in Hryciuk and the governing statute by permitting judicial discipline 
bodies to employ broadly drafted Notices of Hearing containing 
particulars that have never been considered by the Complaints Committee.

13.   Paragraphs 17, 61 and 62 of the moving party's factum cite at lease seven
broad allegations that were introduced by Presenting Counsel in the notice of
hearing for the first time after the investigation by the Complaints, and on 
which the 2012 Panel made findings of judicial misconduct.

Commentary and Analysis:

   It is unquestionable that the investigation transcripts are relevant evidence 
in support of some of the JP's strongest legal arguments in support of his 
contention that he was wrongly removed from office.  

   They include the following:  1.  Presenting Counsel's Notice 
of Hearing contained allegations which were not part of any complaint and were 
never investigated by the complaints committee contrary to Hryciuk  v.  Ontario 
and the constitutional principle of judicial independence and in particular the 
security of tenure.  Appellate counsel's submissions on Hryciuk at ONCA appear 
to have been wrongly placed and should have been made before the Divisional Court 
for them to have any value to the JP.   JPRC counsel raised no objection to 
what would clearly have been a new ground of appeal not advanced at Divisional

   Some may argue that the JP was dealt with fairly in spite of this and other 
serious irregularities in the proceedings before the Divisional Court.  Clearly, 
such arguments overlook the very serious role that the very appearance of 
fairness, impartiality and integrity play in our administration of justice.  
Yet others may argue for punishment, banishment and censorship of counsel 
for doing that which counsel in our system is sworn to do - defend.  

NOTE:  This piece is published here to draw attention to an issue of public
importance.  The removal of a judicial officer and the various issues raised
in this case are issues of public importance. If anything stated here is 
incorrect please bring it to my attention. 

Sunday, December 17, 2017

JP's Rule 59 Motion and Constitutional Question: An Example of When Finality Not In Public Interest

   By way of order dated October 4th, 2016 the Divisional Court upheld the removal from judicial office of His Worship Massiah finding that the liability and penalty decisions rendered by a Hearing Panel of the Justices of the Peace Review Council were reasonable.

   On or about September 20th, 2017 the former judicial officer filed a motion under Rule 59.06(1) and 59.06(2)(a) in the Divisional Court seeking to "amend", "set aside", "vary" or "suspend" the Divisional Court's order of October 4th,, 2016 upholding the findings of judicial misconduct and the recommendation to the Attorney General for his removal from judicial office and Order in Council 546/2015 dated April 29, 2015.

On December 4, 2017 the former judicial officer filed a Notice of Constitutional Question in the Divisional Court challenging the constitutionality of various sections of the Justices of the Peace Act and their Procedures Document.

   In his Notice of Motion the judicial officer cites the following statutory enactments as sources of jurisdiction for his motion: .6(1) and 10 of the Judicial Review Procedures Act and s.20(d) of the Statutory Power Procedures Act and s.52(1) of the Constitution Act, 1982, including the Constitutional Principle of Judicial Independence.

A Departure From Finality

   Rule 59 of the Rules of Civil Procedures is a clear statutory enactment which provides a litigant with the ability to re-open a case notwithstanding an appeal to an appellate court based on criteria stipulated in the rule and the jurisprudence under both the Rule and otherwise.

   In Mehedi  v.  2057161 Ontario Inc 2014 ONCA 604(Canli) Juriansz J.A. made it clear
that Rule 59 is available to a litigant even though an appeal was determined.  He wrote:

[20]   The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined.  An appeal merely concludes there is no reversible error at trial.  The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.

Rule 59


59.06(1)   An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

Setting Aside or Varying

59.06(2)  A party who seeks to,

(a)   have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b)  suspend the operation of the order...

may make a motion in the proceeding for the relief claimed.

The JP's Argument in Brief:

1.   He has a constitutional right to a fair and impartial hearing of his removal from judicial office which continued when the Divisional Court adjudicated his judicial review application and he was denied this right for the following reasons:

(a)   The Divisional Court's order was based on an admittedly deficient record of proceedings which prevented the court from inquiring into "the qualities that make the decisions reasonable and to inquire into the "existence of justification, transparency and intelligibility within the decision-making process and whether the decisions fall within a range of possible, acceptable outcomes which are defensible in law" as mandated by established and binding legal principles;

(b)   Presenting Counsel exceeded the jurisdiction granted by the JPRC Procedures Document in the execution of her public duty and deprived the Applicant a fair and impartial hearing of the complaint initiated by prior Appointed Presenting Counsel and continued to defend the acts and omissions in this court.

Erroneous Instruction
on Hryciuk by Presenting

(c)   Presenting Counsel provided an incorrect instruction to the Hearing Panel on the interpretation and application of the Human Rights Code, Hryciuk  v.  Ontario and the source of their jurisdiction being her Notice of Hearing as distinct from the complaint under s.11.1(10) of the Justices of the Peace Act - instructions which the Hearing Panel followed and improperly applied in finding that the Applicant committed judicial misconduct and that this misconduct required a recommendation for his removal from office.

Ineffective Assistance
and Divided Loyalty
of Appellate Counsel:

(d)   He was denied his constitutional right to a fair and impartial hearing of the review of the Justices of the Peace Review Council Hearing Panel's decisions on account of the divided loyalty and ineffective assistance of his appellate counsel on the judicial review on, among other grounds, his failure to raise bias, non-compliance with Hryciuk  v. Ontario, erroneous interpretation of the Human Rights Code only to raise Hryciuk  v. Ontario on a leave to appeal in the Ontario Court of Appeal when he failed to raise it at first instance and he failed to raise Presenting Counsel's erroneous instruction to the Hearing Panel on this point.

Commentary and Analysis:

   The proper functioning of the administration of justice requires that litigants must be able to have undivided loyalty from their lawyers.  Where a litigant's loyalty from his or her lawyer is anything but uncompromising it is difficult to argue that this litigant has had a fair and impartial hearing of any legal proceeding - especially one involving the removal of a judicial officer from office.

   In the Notice of Application for Judicial Review filed with the Divisional Court in this matter the judicial officer's appellate counsel clearly and indeed properly asserted that "The Decision, Penalty and Compensation Decision, and all Related Interlocutory Orders should be Quashed". He went further stating, The Order in Council Should be Quashed (bb) the Order in Council is predicated on the decisions in the interlocutory motions, the Decision and the Penalty and should accordingly be quashed as result of the errors of the Hearing Panel". In addition, appellate counsel asserted in the Notice of Application for Judicial Review the following evidence will be used at the hearing of the Application:  (a)  the record of proceedings before the Hearing Panel; (c)  The Investigation Transcripts dated June 2, 2012 to November 1, 2012."

   However, after the JPRC Hearing Panel referred the judicial officer's lead counsel and appellate counsel's referring lawyer to the Law Society of Upper Canada,  appellate counsel abandoned the Hearing Panel's errors on the interlocutory motions and at least according to an affidavit sworn by counsel for the JPRC on August 14th, 2017 entered into an agreement with them  not to file the Investigation Transcripts as part of the record of proceedings in the Divisional Court.  Appellate counsel and all of the parties before the Divisional Court proceeded to file their facta before the issue of the record of proceedings was ever properly resolved contrary to Divisional Court jurisprudence mandating the resolution of the record of proceedings  prior to the filing of facta. (see Sierra Club Canada   v.  Ontario 2011 ONSC 4086 (Div Crt))

   A former member of the original JPRC Hearing Panel who recused herself on account of the JP's concerns of bias used the JPRC Hearing Panel's decision removing him from office as a authority in support of her decision disbarring a lawyer while sitting on a panel of the The Law Society Tribunal where she and appellate counsel for the JP both sit. This was done while the JP's judicial review matter was pending adjudication by the Divisional Court.(see LSUC  v. John Kenneth Venn 2016 ONSLSTH 72 (Canli))  She failed to note in her decision that the judicial officer was seeking review of that decision in Divisional Court.


 NOTE:  This piece is written for the sole purpose of drawing attention to what the writer believes to be an issue of public importance, namely, the removal of a judicial officer from office combined with this issue of the duty of loyalty lawyer's owe their clients in these and indeed all legal proceedings. The writer is counsel to the JP on the Rule 59 motion because he believes him to be the victim of a miscarriage of justice and his duty as a lawyer requires him to vigorously defend his client's cause.

This post deals with a portion of the JP's motion.  The JP's full Notice of Motion and record can be found at the Divisional Court.  The other parties vigorously contest the JP's motion and Notice of Constitutional Question.  The JP's appellate counsel and counsel for the JPRC and the Attorney General for Ontario assert in their defence of the JP's motion that the JP consented to the acts and omissions of his lawyer, Presenting Counsel did not exceed the ambit of the statutory authority granted by the enabling legislation and Presenting Counsel is entitled to defend their acts and omissions in presenting the case in the appellate courts and therefore the court's decisions are final and binding.

Wednesday, December 13, 2017

Was JP Removal Constitutional ? Notice of Constitutional Question Filed in Divisional Court

 (Filed in Divisional Court – Dec.4th/17)
 Divisional Court File No. 316/15        

Applicant/Moving Party




1.         The Applicant, His Worship Massiah, as he was prior to his removal from judicial office, intends to question the constitutional validity of ss. 8(10), 10.2(1), (2), 11(16), 11.1(1), (2), 11.1(7), 11.1(10) and the Justices of the Peace Review Council Procedures Document authorizing Presenting Counsel to draft a Notice of Hearing and to prepare and present the case against a respondent, Justice of the Peace.  The question is to be argued on Tuesday, April 3rd, 2018 at 10 .A.M. as part of part of the Applicant’s Rule 59 Motion currently before the court or a date that is mutually convenient to the parties and the Court.

The following are the material facts giving rise to the constitutional question:

1.   There exists a conflict between the Justices of the Peace Act, R.S.O. 1990, sections 10.2(1),(2), 11(15), 11(19), 11.1(1), 11.1(10) and the JPRC Procedures Document authorizing Presenting Counsel to draft a Notice of Hearing with no oversight or review by the Complaints Committee which ordered the hearing unlike the case with Provincial Court judges therefore allowing the Applicant and indeed justices of the peace generally to be removed from office based on a Notice of Hearing which has no relationship to the complaint in writing stipulated by s.10.2(1) of the Act.

2.   This conflict between the Act and the Procedures Document provided Presenting Counsel retained by the JPRC with an unfettered discretion which violated the Applicant’s  judicial independence and security of tenure and indeed any justice of the peace subject to a complaint of judicial misconduct under the said statutory regime.

3.   The Applicant was removed from his judicial office not based on the upholding of a “complaint” in writing, as that term is used in the Act, but based on the hearing panel’s finding that allegations in Presenting Counsel’s Notice of Hearing was made out on a balance of probabilities.  Several allegations in the said Notice of Hearing were never part of what the hearing panel determined to be the “complaint” twenty months after the issuance of the Notice of Hearing.

3   The recommendation to remove the Applicant from judicial office was made by a hearing panel chaired by a per diem judge of the Ontario Court of Justice as that term is used in the Courts of Justice Act and composed of two judicial officers who were “temporary members” as defined by the Justices of the Peace Act. The enabling legislation and Procedures Document allows for only one “temporary member” on a hearing panel. The status of the two judicial officers were disclosed to the Applicant by the Registrar of the Justices of the Peace Review Council on or about March 8th, 2017.

4.  Pursuant to s.11.1(1) the chair of the Review Council established a hearing panel composed of the following individuals:
                                    1.         Chair, Justice D. Livingstone;
                                    2.         His Worship Cuthbertson; and
                                    3.         Ms. Margot Blight, Lawyer.

In addition to Justice Livingstone being a per diem judge as that term is used in the Courts of     Justice Act and thereby requiring the consent of the Attorney General to sit as a judge, the Review Council disclosed on March 8th, 2017 that Justice Livingstone and His Worship Cuthbertson were both appointed as “temporary members” of the Review Council and that documents evidencing those appointments are private and not disclosable to the Applicant or the public contrary to the Open Court Doctrine.  In this case, the fact that the two judicial officers sitting in judgment of him were “temporary members” and not “members” of the Review Council or a “member” and a “temporary member” as stipulated by the Act and Procedures Document was unknown to him until March 8th, 2017 – well after he was removed from judicial office and denied indemnification for the cost of defending his office.

5.   In a sworn affidavit dated dated August 14, 2017 counsel for the JPRC disclosed an “agreement” between himself and counsel acting for the Applicant on his judicial review application of the decisions of the JPRC hearing panel to depart from the Open Court Rule and not formally file relevant documents which ought to have been part of the tribunal’s record of proceedings on the judicial review application thereby depriving the Applicant to a fair and impartial hearing of his review of the recommendation for removal and non-compensation for legal costs by the JPRC hearing panel and the Order-in-Council removing him from judicial office and consequently violating his constitutional right to judicial independence and security of tenure.          

6.         The Applicant asserts in his Rule 59 motion filed in the Divisional Court that he was denied to right to effective assistance of counsel before the Divisional Court and consequently his right to fair and impartial review of the decisions of the JPRC hearing panel and the issues raised herein were not raised or adjudicated upon by the Divisional Court.

The following is the legal basis for the constitutional question:

1.         The position held by the Applicant as a Justice of the Peace is protected by the constitutional principle of Judicial Independence.

2.         The Applicant and indeed all judicial officers have a constitutional right to defend  complaints of judicial misconduct made against them and to have those complaints adjudicated in a fair and impartial hearing by an independent tribunal.  The Chair of the hearing panel being a per diem judge who required the consent of the Attorney General to preside combined with the fact that both judicial officers on the hearing panel were “temporary members” of the Review Council denied the Applicant of a fair and impartial hearing by an independent tribunal.

3.         The Constitutional Principle of Judicial Independence provides the Applicant with security of tenure – a fact that is reflected in s.11.2 of the Act but is rendered moot or illusory by the unfettered discretion granted Presenting Counsel in drafting the Notice of Hearing and then aggressively defending the JPRC decision on judicial review, and defining and filing the record of proceedings pursuant to s.10 of the Judicial Review Procedures Act.

4.         The financial component of judicial independence guarantees judicial officer like the Applicant of financial security and this financial security includes the right to indemnification by the Attorney General for Ontario for defending his office – especially where the attack on the office stems not from the public per se but from Presenting Counsel who under the JPRC Procedures Document and established jurisprudence are required to be impartial and independent.

5.         The Applicant was required to defend allegations in a Notice of Hearing prepared by counsel retained by the Review Council to present the case against him which Notice of Hearing raised allegations that he violated or acted contrary to the Human Rights Code and were not part of the complaint in writing filed with the Review Council against him.

6.         Justices of the Peace unlike Provincial Court Judges do not have the benefit of a compulsory payment clause like s.51.7(8) of the Courts of Justice Act thereby depriving them of one of the objective conditions or guarantees mandated by the financial security provision of the constitutional principle of judicial independence, access to counsel and indemnification for the cost of defending their office.

7.         Although s.9(6) of the Justices of the Peace Act and s.6(1), (2) and (3) of the Procedures Document clearly mandate respect for the Open Court Rule and expressly states the following:

                                    Recognizing the role that the complaints process has in
                                    maintaining and restoring public confidence, and that the
                                    legislative requirements for maintaining privacy no longer
                                    apply for formal hearings under s.11.1 of the Act, once
                                    presenting counsel files the Notice of Hearing as an exhibit
                                    in the initial set-date proceeding presided over by the hearing
                                    panel, the complaints process will become public, subject to
                                    any orders by the hearing panel.

             The JPRC failed to file a complete record of proceedings as required by their enabling legislation, the Judicial Review Procedures Act and the Statutory Powers Procedure Act thereby depriving the Applicant of fair and impartial hearing of the review of his removal from judicial office in a Superior Court thereby violating his constitutional right to judicial independence and security of tenure.
The following constitutional questions are raised:   

1.         Is the Justices of the Peace Act, R.S.O. 1990 ch J.4 ultra vires or inoperative as it infringes on the constitutional independence and security of tenure of justices of the peace in Ontario by allowing Presenting Counsel retained by the Justices of the Peace Review Council unfettered discretion to do the following:
                                    1.         Draft a Notice of Hearing subsequent to the investigation
                                                of a “complaint” by a complaints committee which bears
                                                no relation to or significantly exceeds the “complaint”
                                                with no oversight or review by the body which investigated
                                                the complaint and ordered the hearing;

                                    2.         Assert a prior record of discipline and misconduct on
                                                facts arising either before or contemporaneously with
                                                a prior disposition which was not appealed;

                                     3.         Advocate for the denial of on a recommendation
                                                that the Attorney General compensate the Applicant
                                                for the cost of defending his judicial office; and

                                    4.         Determine what documents form part of the record
                                                of proceedings in the Superior Court on a judicial review
                                                and take steps to exclude documents which the enabling
                                                legislation clearly designates as public documents contrary
                                                to the Open Court Rule.                                            
2.         Does a per diem judge of the Ontario Court of Justice possess the requisite degree of impartiality and independence from the Attorney General of Ontario to sit in judgment of other judicial officers ?

3.         Does a hearing panel composed under s.11.1(1) of the Justices of the Peace Act containing two judicial officers who are “temporary members” under the said Act and one of whom is a per diem judge possess the requisite degree of impartiality and independence from the Attorney General on Ontario to sit in judgment of other judicial officers ?

4.         Do the provisions in the Justices of the Peace Act stipulating the requirement of a “complaint in writing” and   the provisions in the Procedures Document authorizing Presenting Counsel to draft a Notice of Hearing without any review or input from the body which investigated the “complaint” and ordered the hearing into the said “complaint” violate the Applicant’s and indeed the right of all Justices of the Peace to judicial independence and security of tenure – particularly where judges on the same court have a statutory safeguard in their legislation and procedures preventing this occurrence ?

5.         Does the statutory regime, namely, the Justices of the Peace and Act and the corresponding Procedures Document grant Presenting Counsel jurisdiction to depart from the Open Court Rule ?

6.         Did this departure from the Open Court Rule – even assuming the consent of appellate counsel acting for the Applicant -  deprive the Applicant of a fair and impartial hearing of the review of the recommendation of the JPRC hearing panel and the Order-in-Council dated April 29, 2015 removing him from judicial office by a Superior Court as the constitutional principle of judicial independence and security of tenure entitle him and indeed all judicial officers similarly situated.

Remedy Sought:

1.         A declaration that there is an inconsistency between the in writing requirement in the Justices of the Peace Act the Procedures Document which inconsistency provides an unfettered and unjustifiable discretion to Presenting Counsel retained by the Justices of the Peace Review Council to draft a Notice of Hearing which bears no relation to the complaint or exceeds it and thereby infringing the constitutional independence and security of tenure of justices of the peace;

2.         A declaration that in departing from the Open Court Rule with respect to the filing of its record of proceedings in the Divisional Court – a rule which is clearly prescribed by the enabling legislation and common law the Justices of the Peace Review Council violated the Applicant’s constitutional right to judicial independence and the right to a fair and impartial review in a Superior Court of the said decisions.

3.         A declaration that the said provisions are unconstitutional and therefore of no force or effect under s.52(1) of the Constitution Act, 1982;

4.         A declaration that the Applicant’s removal from office is null and void; and

5.         A declaration that the Attorney General for Ontario is responsible to compensate him for the costs associated with defending him office.
 December 4th, 2017                                       E.J. GUISTE PROFESSIONAL CORPORATION
                                                                        Trial & Appellate Advocacy - 2 County Court Blvd.,                                                                         Suite 494, Brampton, ON, L6W 3W8
                                                                        Tel.(416) 364-8908 – Fax (416) 364-0973
                                                                        Co-counsel for the Applicant

TO:  Henein Hutchison LLP
235 King Street East, First Floor
Toronto, Ontatrio, M5A 1J9
(416) 368-5000
(416) 368-6640 Fax
Counsel for the Justices of the Peace Review Council

102-366 Adelaide Street West
Toronto, Ontario
M5V 1R9
(416) 583-5751
(416) 971-8001

Lawyers for Intervenors Raj Anand And Weir Foulds LLP


The Attorney General of Ontario (as required by section 109 of the Courts of Justice Act)

The Attorney General for Ontario
Constitutional Law Branch

4th floor

720 Bay Street

Toronto, Ontario M5G 2K1

fax: (416) 326-4015

The Attorney General of Canada (as required by section 109 of the Courts of Justice Act)

Suite 3400, Exchange Tower

Box 36, First Canadian Place

Toronto, Ontario M5X 1K6

fax: (416) 952-0298

(or Justice Building

Ottawa, Ontario K1A 0H8

fax: (613) 954-1920)

Crown Law Office- Civil
720 Bay Street, 8th Floor
Toronto, Ontario, M7A 2S9

(416) 314-2400
(416) 326-4181 fax

Sara Blake and Brent Kettles
Counsel for the A.G. Ontario and Lieuentant Governor