Monday, January 2, 2017

Re JPRC Referral of Counsel - Applicant's Factum on Bias Motion - Is Counsel Being Censored, Punished ?

Readers will be aware that the Justices of the Peace Review Council Hearing Panel which decided to recommend removal of a judicial officer from office and denied a recommendation for compensation for the cost of defending the allegations against him proceeded to make a very public referral of this writer to the regulating body of lawyers in Ontario.(see Fired JP Loses Bid to Have Taxpayers Pay Legal Fees - Lawyer's Conduct to Be Reviewed by Michel Mandel, Toronto Sun, June 17th, 2015 see also on Twitter, Deborah Livingstone@dresdengirrl - Retweet of "JP Fired Over Lecherous Behaviour Loses Bid to Have Taxpayers Pay $600,000 in Legal Fees - June 17, 2015 @ 6:02 p.m)   

The Hearing Panel stated clearly in its referral addendum and decision that the conduct which concerned them was not relevant and did not impact their decisions including the Compensation Decision - in which they refused to recommend that the Attorney General for Ontario compensate the subject judicial officer for the cost of his defence of the proceedings contrary to the constitutional tradition in Ontario and indeed in Canada generally for so doing. (Toronto Star - "Public Pays Millions for Legal Fees of Federal Judges Under Investigation - Jan.3rd,2015)

Did the Hearing Panel wish to insulate their refusal to recommend compensation for legal costs and the referral to the governing body from judicial scrutiny ?

Panel's Findings on Bills
of Costs and My Representation
In the Case Not Capable of 
Appellate Review:

The Hearing Panel made what I believe to be unfounded allegations that several motions which I initiated on behalf of the subject judicial officer were "without merit" and that my involvement was "limited to handling the preliminary motions" even though the transcripts of all twenty-three attendances in the case show that I was present.  Presenting Counsel had two and sometimes three lawyers present on hearing dates and JP Massiah had two.  

Although the Hearing Panel expressly stated on October 8th, 2014 that all motion materials and facta filed with them would be made part of the "record of proceedings" in the event that there are "any further proceedings involving our decisions" the motion records, facta and the extensive written submissions made by the parties including the Bills of Costs of both Mr. House and myself were not part of the "record of proceedings" before the Divisional Court.

"Cut and Paste" of
Presenting Counsel's
Written Submissions*: 

A reviewing court is therefore unable to judicially review the litany of conclusionary findings made by the hearing panel on the Compensation Decision even if it wanted to. (see R  v. Sheppard [2002] 1 S.C.R. 869   - Neinstein  v. LSUC  2010 ONCA 193 (Canlii)  A reviewing court could and should properly find on the basis of Sheppard (supra) and Neinstein (supra) that the reasons do not lend themselves to appellate review and quash the decision.  There is a real danger that it could also restate and rely upon what ever errors the lower court or tribunal made. That would be an error of law. 

What the hearing panel did in its compensation decision is merely "cut and paste" holus bolus Presenting Counsel's Reply Submissions on Disposition at paragraph 2 and their written submissions on Compensation at paragraph 2.  The following paragraph from their Compensation Decision is the introduction to this "cut and paste":

[24]   We reject Mr. Massiah's assertion that, in relation to numerous pre-hearing motions, his defence was "clearly well-grounded on recognized and viable procedural grounds."  We agree with and reiterate below examples included in Presenting Counsel's submissions which highlight a number of the frivoulous motions brought by Mr. Guiste on behalf of his client. 

(see Cojocaru  v. B.C. Women's Hospital [2013] 2 S.C.R. 357 where the court ruled that "If the incorporaation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision-making process was fundamentally unfair, in the sense that the judge did not put his or her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment an be set aside."  

Curiously, the Hearing Panel went on to find in its Compensation Decision that everything done by my co-counsel, Mr. Jeff House, who so happens to be a Caucasian man was fine. This was so even though Mr. House was involved in every motion initiated on behalf of the judicial officer except for the publication ban and bias motions. Mr. House was my co-counsel for 13 of the 23 months while the case proceeded.(May, 2014 to June, 2015)  From June 2013 to November 2013 I was co-counsel with another lawyer, Mr. Eugene Bhattacharya, who was not subject to a referral to the governing body of lawyers in Ontario. This lawyer was my co-counsel during the initiation of the jurisdiction and abuse of process motion and the publication ban motion.  Mr. Bhattacharya and his co-counsel, now Justice T. Carey, of the Superior Court of Justice were both paid for their work in defending the same judicial officer notwithstanding a finding of judicial misconduct against him. 

Overlap with Motion 
for Abuse of Process:

The Hearing Panel proceeded to summarily dismiss the Bias Motion proclaiming that it was their view that it is "completely without merit." In dismissing the motion the Hearing Panel clearly declined to consider the question put to them on the obvious fact that the allegations in the Notice of Hearing drafted by Presenting Counsel exceeded anything which could be found by them to constitute the complaint in writing.  This is what they wrote in their own words:

[56]   The Applicant has filed another motion that there was no valid complaint and that there has been an abuse of process ("Motion for Abuse of Process"). The Applicant has inserted some of the grounds raised in that motion in his factum on this motion. A decision from the Panel is pending on its jurisdiction to consider grounds raised in the Motion for Abuse of Process.  It would, therefore, be in appropriate for the Panel to proceed to adjudicate upon grounds raised in the Motion for Abuse of  Process as if that decision were not pending.

[57]   In conclusion, having considered the submissions of counsel, the Panel can find no basis, on any of the grounds asserted by the Applicant, to quash the Notice of Hearing or to recuse itself.

Here is a copy of the factum I filed with the JPRC on the bias motion in May, 2014.  This factum was not before the Divisional Court.  There is no doubt that it raises questions about the fairness of the process which my client was subjected to, including the fact that there was a "lack of commonality"* between the Notice of Hearing and anything that could be found by them to be the complaint in writing and the lack of independence and impartiality in the current office of Presenting Counsel provided for by the JPRC Procedures.  This I understand to be the job of the lawyer and manifestly in the public interest.

* The vast majority of the submissions in this case were made in writing.  None of the written submissions filed on behalf of the judicial officer are in the "record of proceedings". The only written submissions of the parties proper in the "record of proceedings" is Presenting Counsel's Reply Submission on Liability.

IN THE MATTER OF a complaint(s) respecting
Justice of the Peace in the
Central East Region


1.         The Applicant respectfully requests the Hearing Panel to rule on the following
points of law:

                          (i)         Does the current process of complaint-intake, investigation and
                                       adjudication of judicial misconduct complaints under
                                       the Justices of the Peace Act give rise to a reasonable
                                       apprehension of bias – generally – such that it violates the
                                       constitutional doctrine of judicial independence ?

                          (ii)        If not – Do the particular facts with respect to the
                                       intake, investigation and adjudication of this matter
                                       give rise to a reasonable apprehension of bias ?                     

                          (iii)       Did the Chair of the Review Council have jurisdiction
                                       to replace Ms. Blight from the Hearing Panel and  if
                                       so – does this remedy concerns of reasonable apprehension
                                       of bias ?

                           (iv)       Do the matters raised in the Notice of Motion and supporting
                                        affidavit establish a reasonable apprehension of bias by
                                        the Hearing Panel ?    

                           (v)        Did the Hearing Panel exceed its jurisdiction by
                                        retaining Independent Counsel ?

                            (vi)       If not – did the Hearing Panel display a reasonable
                                         apprehension of bias by virtue of their stated
                                         reason for doing so ?

Facts: Complaint Processing:

2.         The Applicant places reliance on the facts deposed to in his supporting affidavit 
on his jurisdiction and abuse of process motion as well as the facts in his initial motion 
record on that motion and the responding motion record of presenting counsel.

3.         The Justices of the Peace Review Council(Review Council) consists of 13 
individuals and the Chair is the Chief Justice of the Ontario Court of Justice, 
Annemarie E. Bonkalo. Two judges of the Ontario Court of Justice and the Chief 
Justice sit on the Review Counsel making for a total of three judges.

4.         Complaints of judicial misconduct against a justice of the peace go to the 
Review Council.

5.         Upon receipt of a complaint, the Review Council selects 3 members from 
among its members to comprise a complaints committee whose job it is to investigate 
the complaint. The committee must consist of a judge – who shall chair; a justice of 
the peace and a member who is neither a judge or a justice of the  peace.

6.         When its investigation is complete, the complaints committee is authorized 
to make any of the following decisions:
                                                1.         dismiss the complaint if it is frivolous, an abuse of 
                                                            process or outside the jurisdiction of the complaints 
                                                2.         invite the justice of the peace to attend before the 
                                                            complaints committee to receive advice concerning 
                                                            the issues in the complaint or sent the justice of the 
                                                            peace a letter of advice concerning the issues raised 
                                                            in the complaint, or both;
                                                3.         order that a formal hearing into the complaint be held by
                                                            a hearing panel; or
                                                4.         refer the complaint to the Chief Justice of the Ontario
                                                            Court of Justice.

7.         The complaints committee must report to the Review Council on its decision 
pursuant to s.11(18)

8.         S.11(19) expands on the complaints committee’s discretion to dismiss a complaint 
at anytime if it is of the opinion that the complaint is frivolous, an abuse of process or
outside the jurisdiction of the complaints committee.

9.         While the complaints committee requested a written response to the allegations 
from the Applicant, this response was not put to any of the witnesses, the Applicant was
not interviewed and the Applicant made no submissions to the complaints committee
on the question of whether the allegations were frivolous, an abuse of process or
outside the jurisdiction of the complaints committee.

10.       Although the Chief Justice had the Applicant attend gender based sensitivity 
training with Ms. Freedman and she prepared a report for the Chief Justice that report 
was not before the complaints committee for their consideration.

11.       The complains committee provided no reasons for its s.11(15) decision ordering
a hearing.                                

12.       The Applicant has been subjected to three separate sets of complaints.  
Accordingly, this would mean that 3 sets of complaints committee and 2 sets of 
Hearing Panels would have dealt with the Applicant to date.  Assuming that there is 
no overlap, this would involve 15 individuals but the Review Council has only 
13 members.  In light of the three sets of complaints committee and two hearing panels 
which the Applicant has experienced, there necessarily must have been some overlap 
among the judges.

13.       Although the Applicant has made reasonable requests for the identify of the
persons who sat on the three sets of complaints committees involving him that 
information has yet to be provided by the Review Council or Presenting Counsel.       

14.       It is known that the following non-judicial officer members have sat on either 
a Hearing Panel or a complaints committee involving the Applicant: Dr. M. Phillips, 
Ms. Margot Blight and Ms. Leonore Foster.

“Presenting Counsel”   

15.       “Presenting Counsel” is the name given to the lawyer retained by the Review
Council to prosecute the case before the Hearing Panel.  According to Presenting 
Counsel’s e mail dated May 15th, 2014:  “The Registrar, in her capacity as the 
Registrar and counsel, has the responsibility of retaining Presenting 
Counsel on behalf of the Review Council as a body.”

16.       It is Presenting Counsel who prepares the Notice of Hearing.

17.       It is clear on the face of the Notice of Hearing that the 14 counts alleged
go beyond the proper ambit of any complaint which could be said to have 
been received  by the Review Council.


18.       In a letter dated  January 14th, 2014 Presenting Counsel clearly and unequivocally
stated that the “complainants” in this case are the witnesses who are 
expected to testify about the alleged misconduct by His Worship’s 
conduct” in  response to a specific question as to who was the complainant in 
this matter.

19.       On April 9th, 2014 Presenting Counsel made the following submissions to the 
Hearing Panel on the writing requirement and who was the complainant:

                         “So our position in respect of s.10.2 is very simple. There was a
                          complaint, it was by a person and it was in writing, and a
                          complainant is the person who puts the complaint in writing
                          to the Justices of the Peace Review Council, in that case,
                          in this case that was Mr. Hunt.  The people who were late
                          interviewed are the witnesses”

20.       In their factum dated July 19th, 2013 Presenting Counsel made the following
submission to The Hearing Panel on the issue of non-compliance by the complaints 
committee with the requirements of s.10.2(3):

                                                “In any event, even if the Review Council finds that the there
                                                was not technical compliance with the  in-writing requirement
                                                or the direction contemplated under s.10.2(3), Presenting
                                                Counsel submits that any non-compliance is minor and should
                                                not cause result in the loss of jurisdiction.”

21.       In  written submissions to the Hearing Panel dated March 13th, 2014 Presenting
Counsel appears to take a different position:

                                                “While the Hearing Panel takes its jurisdiction from the
                                                Notice of Hearing and does not sit in judgement of the
                                                complaints committee, His Worship’s grievance appears
                                                to amount to an allegation that there was no complaint
                                                in writing received by the Council that meets the
                                                requirements of section 10.2 or the complaint was
                                                prohibited by that section; and that there was an
                                                abuse of process that has undermined the fairness
                                                of the proceedings before the Panel. This is something
                                                that the Hearing Panel has jurisdiction to determine.”

22.       At paragraph 21 of their March 13th,, 2014 submissions to the Hearing Panel
Presenting Counsel made the following submission:

                                                “A true jurisdictional defect in the chain of proceedings
                                                resulting in the hearing would arguable entitle the Panel
                                                to decline to conduct a hearing on the merits....So too
                                                in this case, the Hearing Panel, would arguable be
                                                entitled to find that a jurisdictional defect in the process
                                                leading to the hearing deprived it of jurisdiction or
                                                amounted to an abuse of process.  Section 23 of the
                                                Statutory Powers Procedures Act, which is made applicable
                                                to this hearing by virtue of s.111(4) of the Justices of the
                                                Peace Act, provides:

                                                            23(1)    A tribunal may make such orders or give
                                                            Such directions in proceedings before it as it considers
                                                            proper to prevent abuse of its processes.”
Error in legal submission
to Hearing Panel 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  (sic)be be the subject 
                                                of the hearing were set out in a Notice of Hearing; and the 
                                                complaints committee had jurisdiction to order those 
                                                allegations to a hearing – then the Hearing Panel can be 
                                                satisfied that it has the jurisdiction to proceed to hearing the 
                                                evidence in relation to those allegations.  If His Worship seeks 
                                                to aruge 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.”

24.       On April 9th, 2014 Presenting Counsel made the following submission of law to
the Hearing Panel on s.11.1(1):

                                                “So this is a mandatory provision.  The hearing is mandatory
                                                when a complaints committee makes that disposition, which
                                                it did in this case.  It does not contemplate any review of how
                                                the complaints committee came to that disposition or whether
                                                it was reasonable and fair in doing so.  It does not give the
                                                Hearing Panel any ability to second-guess the disposition
                                                that was made by the complaints committee.”

25.       Presenting Counsel went on to state the following on April 9th, 2014:

                                                “Now I want to say very clearly that in our view
                                                there is no merit to any of those allegations. There’s
                                                been no evidentiary basis put forward before you
                                                to substantiate any of them, and that the claim of
                                                unfairness and impropriety that have been made so
                                                far entirely are without any foundation.”

            Later at p.43 of the April 9th, 2014 transcript:

                                                “your jurisdiction is part and parcel of the issue you
                                                are being asked to adjudicate because you do not have
                                                jurisdiction to sit in appeal of the complaints committee’s

26.       Then at p. 45:
                                                “So to the extent that my friend is saying that something
                                                that happened here is making it impossible for His Worship
                                                to obtain a fair hearing, we have neither evidence of that,
                                                submissions on how that is possible, and we certainly
                                                have no proof in the form of an actual proceeding ongoing
                                                because we haven’t heard any of the witnesses yet.  Those
                                                are my submissions.”

27.       Then at p.131:

                                                “Let me make a more general comment about my friend’s
                                                submissions.  You have had a glimse of what is to come if
                                                this motion is not construed and adjudicated in a manner
                                                consistent with the limited jurisdiction of this panel...This
                                                will turn into a never-ending inquiry into the investigation
                                                in this matter, into the prior hearing, which is no part of
                                                your mandate, and into the investigation preceding the
                                                prior hearing, if appropriate constraints are not imposed.

Objection not headed:
28.                                           “Well no.  It is your determination but its proper for me to
                                                object and what I’m doing is raising an objection that what
                                                he’s telling you is a scare tactic and has nothing to do with
                                                Proper reply, that somehow you have to do as he suggests,
                                                otherwise all hell is going to break loose, is what I understand
                                                from his submission, and I think that is improper reply.  The
                                                purpose of reply is address specific points that I may have
                                                raised and to bring that up.”

            Justice Livingstone:    Thank you very much.

            Mr. Gourlay:               “...I want to make it very clear to the panel our concern, that
                                                extensive public expenses are being incurred in this hearing,
                                                that presenting counsel is under an obligation to be mindful
                                                Of that and to do our best to limit the hearing to its proper

Presenting Counsel point
published in Toronto Sun:

29.       Presenting Counsel’s submission about “extensive public expenses are being
incurred” and Massiah’s lawyer must be reigned in or “this will turn into a never-ending 
inquiry.” was captured by Toronto Sun reporter Michele Mandel and published 
on April 10th, 2014.
Impact on Panel:

30.       At p. 50 the Chair of the Hearing Panel states:

                                                “But, as I recall Mr. Gourlay’s submissions, it was that once
                                                the complaints committee makes its disposition and a hearing
                                                is ordered, then our jurisdiction simply is to conduct a hearing.
                                                We don go behind the order to have a hearing.  We are the

                                                “Isn’t that what the legislation says ?

31.       At p.73:

                                                “Can you show me where in the statute it gives this
                                                Hearing Panel the power to go where you’re asking
                                                us to go ?”

32.       At p. 74:                     

                                                “The problem is what I understand you are asking us to
                                                do is go to what the complaints committee did and
                                                investigate them basically, and as a result of that make
                                                a ruling.”

33.       At p.111:

                                                “So I am struggling with your argument, sir, that it was
                                                inherently incorrect that the complainants in these matters
                                                the witnesses that your are alluding to, may or may not
                                                have been the ones who actually initiated the complaint.
                                                I don’t see the requirement that they had to sir. Could
                                                you assist me please.”  

            At p.117:
                                                “But my point is you were arguing a narrow issue that
                                                none of the complainant submitted the complaints, they
                                                came from another person.  A fairly clear reading, a plain
                                                reading of 10.2 suggests they didn’t have to.”

                                                ....”Any person may make a complaint to the Review Council
                                                about the conduct of a justice of the peace.  Any person, sir,
                                                not the complainant.”

                                                ....”Well, sir, you are disgressing.  Would you address the issue
                                                I have asked, please.  Is there a section in the Act specifically
                                                says the complaint has to come from the complainant ?  You
                                                suggested to me there is other than 10.2 sub(1), which you and I
                                                may have different interpretation of that.”    

34.       Chair of the Hearing Panel orders a 9:30 a.m. start on next attendance
disregarding counsel for His Worship’s reasonable request for accommodation 
on account of his childcare obligations.


35.       Following the April 9th, 2014 the Hearing Panel decided to retain independent
counsel, Mr. Gover, and to change the start time to 10 a.m. from 9:30 a.m. in the 
absence of the Applicant and in fact without his knowledge.
36.       In written correspondence dated May 15th, 2014 to His Worship’s counsel
Presenting Counsel delineated the relationship between her office and the Review 
Council in the following words:

                                                “The Registrar, in her capacity as the Registrar and
                                                counsel, has the responsibility of retaining Presenting
                                                Counsel on behalf of the Review Council as a body.”

37.       The Applicant has request a copy of Presenting Counsel’s retainer agreement
with the Review Council but that has yet to be produced.

38.       At the April 9th, 2014 hearing either Presenting Counsel or the Registrar provided
counsel for His Worship with a copy of a document entitled “Justices of the Peace 
Review Council Procedures Document” – Revised January 24th, 2014.  This document 
contains a new Provision which reads:  “The Justices of the Peace Review 
Council has no jurisdiction to allow the withdrawal of a complaint.”

                                                            PART II - THE LAW:
Reasonable Apprehension
of Bias Test:

38.                                           “In the words of the Court of Appeal, that test is
                                                “what would an informed person, viewing the
                                                matter realistically and practically – and having
                                                thought the matter through – conclude. Would he
                                                think it more likely than not that Mr. Crowe, 
                                                whether consciously or unconsciously, would not 
                                                decide fairly.”

               Comm.For Justice   v.  Nat Energy Board [1978] 1 S.C.R. 370

39.       The duty of fairness applies to all administrative bodies.  
Administrative bodies that are primarily adjudicative in their functions will be 
expected to comply with the standard applicable to courts; there must be no 
reasonable apprehension of bias with regard to their decision. 

               Nfld. Telephone   v.  Nfld Public Utilities [1992] 1 S.C.R. 626

40.       A denial of a right to a fair hearing cannot be cured by the tribunal’s 
subsequent decision.  A decision of a tribunal which denied the parties of a fair 
hearing cannot be simply voidable and rendered valid as a result of the 
subsequent decision of the tribunal.  The damage created by the apprehension 
of bias can not be remedied.  The hearing, and any subsequent order resulting 
from it, must be void.

                                                As above

41.       The law pertaining to apprehension of bias in the context of a hearing 
panel where one member of the panel has been found or acknowledged 
to raise an issue of bias was addressed by the Divisional Court in Roberts  
v.  College of Nurses of Ontario 1999 Canlii 18725.  Mullan’s Administrative 
Law is quoted in the following words:

                            “A reasonable apprehension of bias in one member of a tribunal
                            is sufficient to disqualify the whole tribunal, even thought that
                            member merely sat at the hearing without taking an active
                            role in either it or subsequent deliberations.  Mere presence
                            is generally enough.”
Right to Retain
Independent Counsel:

42.       A clear reading of s.8(15) stipulates that only the Review Council can 
retain counsel for its complaints committees and hearing panels.

43.       Under the “Procedures Document” the role of legal counsel engaged 
under this Part shall not be to seek a particular order against a respondent, 
but to see that the complaint against the Justice of the peace is evaluated fairly 
and dispassionately to the end of achieving a just result.

                                                            JPRC PROCEDURES..

44.       It is a principle of fundamental justice and fairness that no one will judge his own cause.

                                                MacBain   v.  CHRC [1985] F.C.J. No. 907

45.       The enabling legislation and procedures raises a reasonable 
apprehension of bias by virtue of the following:

                       1.         Review Council receives complaints
                       2.         Review Council passes them off to its subset complaints 
                       3.         Complaints committee is supposed to investigate but 
                                   here it delegated to a hired third party
                       4.         Chief Justice had the applicant take a 9 hour
                                   Gender Sensitivity & Professional Boundaries
                                   course but did not disclose this to the complains
                       5.         Ms. Blight stepped down on account of concerns
                                    with a reasonable apprehension of bias;
                       6.         Chief Justice replaced her;
                       7.         Review Council retained Presenting Counsel;
                       8.         Review Council appears to amend its Procedures to
                                   suit itself and without fair notice;

46.       Alternatively, the multitude of issues raised in the NOA and the 
transcripts support a finding of a reasonable apprehension of bias in 
accordance with the established legal principles.                                  

           47.        The Applicant requesting an order quashing the Notice of Hearing on 
account of a loss of jurisdiction or reasonable apprehension of bias or in the 
alternative an order that the entire panel recuse itself.

                                                                        ALL OF WHICH IS RESPECTFULLY SUBMITTED.
May 16th, 2014

                                                                        E. J. Guiste, Co-counsel for the Applicant

NOTE: This piece is published to draw attention to an issue of public importance. A motion asserting a reasonable apprehension of bias in any legal proceeding is a very important and fundamental right in our system of law. This is especially the case in a judicial misconduct proceeding where at the outset a pattern and history of misconduct is improperly alleged in a Notice of Hearing. When a hearing panel takes the unusual step to make a public referral of misconduct against one of two of the subject judicial officers lawyers contrary to the referral policy of the governing body for lawyers in the province - the one of African-Canadian racial background and the one who initiated a motion raising a reasonable apprehension of bias - then questions of public importance arise.  Those issues are compounded when, as here, the "record of proceedings" filed on behalf of the tribunal with the reviewing court is deficient for what ever reason - even if inadvertent.

This JPRC referral raises discrete and serious questions opublic importance.  

Is Ernest J. Guiste being censored and punished for merely doing his job as a lawyer ?

Assume for the purpose of argument that I was involved in defending a man of murder.
The trial judge disregarded 16 legal authorities or more which I brought to his or her attention - including 3 from the Supreme Court of Canada and 2 from the Court of Appeal, denied my client of a right to reply to a significant point calling for a reply and stated to me after agreeing to entertain a motion I was bringing that it was a "pyrhic victory", ruled me in contempt for seeking leave to bring a motion for directions on behalf of my client, and then publicly referred me to the Society, could my treatment by the trial judge be reasonably divorced from my client's conviction by the trial judge in all of the circumstances ? I raise these questions not to suggest that I have the answer to them but simply to highlight the highly significant interests which are involved in issues of this nature. 

Regrettably, history show us that miscarriages of justice and wrongful convictions do not happen by accident.


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