Courts of
Justice Act
IN THE MATTER OF a Complaint(s)
respecting
JUSTICE OF THE PEACE Errol Massiah
Justice of the Peace in the
Central East Region
NOTICE OF CONSTITUTIONAL QUESTION
The Applicant intends to challenge the provisions of the
Justices of the Peace Act dealing the making of complaints of judicial
misconduct and the provisions of the JPRC Procedures Document dealing with the
preparation of a Notice of Hearing.
Further, the Applicant intends to question the constitutional validity
of the provisions in the Justices of the Peace Act and the Justice of the Peace
Review Council’s Procedures Document addressing compensation for the cost of defending
complaints.
The provisions of the
Justices of the Peace Act clearly call for a “complaint” and require that a
hearing panel “uphold or dismiss a “complaint”.
This express requirement in the Act is contradicted by the JPRC
Procedures Document which authorizes the JPRC to retain Presenting Counsel who
is given unfettered discretion to draft a Notice of Hearing. This unfettered discretion granted Presenting
Counsel under this statutory scheme violates the security of tenure of the
Applicant and indeed all justices of the peace. This unfettered discretion is
avoided in the complaint process dealing with judges of the Ontario Court of
Justice through section 7 of the Ontario Judicial Council Procedures Document
at p.22 thereby protecting their security of tenure.
The provisions dealing with compensating the Applicant, and
indeed all justices of the peace in Ontario,
for legal costs incurred in defending judicial misconduct complaints violates
the financial security component of judicial independence, unlawfully encroaches
on the right to counsel and the right to make full answer in defence of one’s
judicial office, has the potential to place lawyers in a conflict of interest
with their clients, has the potential to undermine the independence of the Bar
and make lawyer’s beholden to the Review Council or the executive branch and
violates s.7 of the Canadian Charter of Rights and Freedoms since the statutory
scheme contains no statutory language placing a legal obligation on the
Attorney General to indemnify justices of the peace even if a recommendation
for compensation is made by a hearing panel – statutory language which is found
in the Courts of Justice Act dealing with Provincial Court Judges.
The question is to be argued on Monday, March 6th,
2017 at 10 .A.M. or a date soon thereafter that is mutually convenient to
the parties, at a place to be designated by the Justices of the Peace
Review Council.
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.
2. This conflict
between the Act and the Procedures Document provides Presenting Counsel
retained by the JPRC with an unfettered discretion which can and did violate
J.P. Massiah’s security of tenure. The
Applicant was removed from his judicial office not based on an upholding of a
complaint in writing 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 – a question which was not before the hearing panel for
adjudication.
3 Both complaints committees and hearing panels
may recommend that a justice of the peace be compensated for the costs of
defending an investigation and or a hearing into their conduct under the
following sections of the Justices of the Peace Act, R.S.O. 1990 c. J.4 s.11(16) and (17) and 11.1(17) and (18).
4. Relying on past
practice and the Justices of the Peace Review Council’s pronouncement in their
Procedures Document of his right to counsel in order to defend allegations of
judicial misconduct initiated against him by former Presenting Counsel, Mr. Doug
Hunt, (The Hunt Allegations – Appendix A) and more serious allegations,
asserting violations of the Human Rights Code and a prior history of judicial
misconduct, raised in a Notice of
Hearing dated May 31st, 2013(The Henein Allegations – Appendix B), JP Massiah retained two lawyers, namely,
Ernest J. Guiste, an African-Canadian and Jeff House, a Euro-American-Canadian
to represent him.
5. The proceedings
before the hearing panel of the Justices of the Peace Review Council commenced
in May, 2013 and ended in June, 2015 and involved a total of twenty-three days
of hearings and extensive written submissions by both parties. The hearing
panel itself raised a jurisdictional question which it invited the parties to
make submissions on which ultimately resulted in the panel retaining
Independent Counsel and obtaining an opinion. (Independent Counsel opinion –
Appendix C)
6. After agreeing to
Mr. Guiste’s request that adjudication of the jurisdiction and abuse of process
motions be held in abeyance in order to decide them on a full evidentiary
record the Chair of the hearing panel stated to Mr. Guiste that this was a pyrrhic
victory. A pyrrhic victory is a victory
that inflicts such a devastating toll on the victor that it is tantamount to
defeat. (Excerpt of June transcript –
Appendix D)
7. The combined Bill
of Costs for JP Massiah’s defence of the allegations against him totaled
roughly $600,000 with roughly $500,000 for the services of Ernest J. Guiste and
roughly $100,000 for the services of Jeff House.(Appendix E collectively) Ernest J. Guiste was on the case from start
to finish and Jeff House joined him in May, 2014.
8. The hearing panel
recommended to the Attorney General of Ontario that JP Massiah be removed from
office and declined to make a recommendation for compensation of his costs
associated with defending the complaint and the allegations raised against him
in Presenting Counsel’s Notice of Hearing. (Compensation Decision – Appendix F)
9. The day following
release of the hearing panel’s Compensation Decision the Chair of the hearing
panel re-tweeted an article from the Toronto Sun proclaiming that tax-payers
would not have to pay JP Massiah’s legal fees and his lawyer has been referred
to the Law Society of Upper Canada. This act created the impression in the
minds of reasonable observers that the Chair of the Panel endorsed the Toronto
Sun article and Presenting Counsel’s submission that it is not whether counsel
should be compensated but rather whether the public, rather than the client, should
be required to “foot the bill”. (Tor Sun
Article and re-tweet from Deborah Livingstone @dresden girrl – Appendix G)
10. JP Massiah sought
judicial review of the hearing panel’s decisions on liability, penalty and
compensation and JP Massiah once again incurred substantial legal fees in doing
so. J.P. Massiah incurred legal fees of
$130,000 on the judicial review and leave to appeal motion. October 4th,
2016 the Divisional Court remitted that matter of compensation back to the original
JPRC panel and proceeded to order costs against him personally notwithstanding
his success on the compensation point. The Registrar of the JPRC has demanded
payment of those costs forthwith payable to “The Ministry of Finance”.
11. The Henein
Allegations asserted violations of the Human Rights Code of Ontario, including
the creation of a poisoned work environment and a prior history of judicial
misconduct even though this set of allegations pre-dated or were
contemporaneous to the first proceedings which Mr. Hunt was Presenting Counsel
on. The first notice which J.P. Massiah received of these allegations was in
the Notice of Hearing itself. These
allegations did not arise from Mr. Hunt’s complaint and as a result were not pre-screened
and investigated by the complaints committee which investigated Mr. Hunt’s
complaint.
12. JP Massiah earned
roughly $120,000 annually as a Justice of the Peace.
13. The JPA and its
Procedures Document fail to guarantee JP Massiah the financial security
component of the constitutional right of judicial independence and the right to
properly defend his office to the extent that what the JPA and it Procedures
Document provides is an illusory right without any statutory language for enforcement
as found in s.51.7 (8) of the Courts of Justice Act, R.S.O. 1990 c C.43. This lack of a statutory language for
enforcement improperly empowers the hearing panel with an unfettered discretion
to compensate or not compensate and even to interfere with the right of counsel
to defend without fear of both financial and professional punishment and absent
due process of law which is borne out by the Review Council’s pattern and
practice in dealing with this issue and was evident in the Applicant’s case
before Justice Vallencourt and here.
14. The problem with
the JPA and its Procedures Document on the issue of the Applicant’s and indeed
all justices of the peace compensation for defending judicial misconduct
proceedings under the JPA is that the legal proceedings initiated against JP
Massiah have yet to conclude and both Mr. House and Mr. Guiste are duty bound
by the best traditions of their profession not to abandon their client in the
circumstances in which he was placed and the existing statutory scheme provides
no enforcement mechanism that even if a recommendation for compensation were to
be made that the Attorney General would be under any legal obligation to
satisfy it. Counsel are being arbitrarily
compelled to forego their fees or risk professional discipline.
15. The provisions of
the JPA and its Procedures Document are therefore unconstitutional in that they
violate the financial security component of J.P Massiah and indeed all justices
of the peace in Ontario’s right to judicial independence, undermine and or
compromise their right to counsel by creating an apparent conflict of interest,
undermine and or compromise the independence of the bar by intentionally or
unintentionally making lawyers who defend justices of the peace in Ontario de
facto agents of the state subject to financial reward or financial and
professional penalty and punishment at a hearing panel’s unfettered discretion
without regard to due process of law.
16. Indeed, in a
prior proceeding involving J.P. Massiah before a JPRC hearing panel chaired by
Justice Vallencourt J.P. Massiah’s counsel were paid directly by a Government
of Ontario cheque even thought liability was clearly established against him.
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
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, filing the record of proceedings pursuant to s.10
of the Judicial Review Procedures Act and now acting on the rehearing of the
compensation issue remitted for re-hearing by the Divisional Court on or about
October 4th, 2016.
3. 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;
4. 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.
5. The extra
allegations advanced by Presenting Counsel’s Notice of Hearing received great
publicity in the press and made the task of the Applicant defending his office
significantly more onerous and arguably impaired the fairness of the entire
proceedings.
6. The hearing
panel itself sought the guidance of all counsel on determining and resolving
their own questions on jurisdiction raised in July, 2013 and only resolved in
July, 2014.
7. The hearing
panel refused to make a recommendation to the Attorney General to pay for the
cost of the Applicant to defend himself as requested by Presenting Counsel. The
Divisional Court overturned that decision finding that it was based on a false
premise that “it is only in exceptional circumstances that the public purse
should bear the legal costs of a judicial officer who has engaged in judicial
misconduct.
8. Both
the Hunt Report and the Notice of Hearing dated May 31st, 2013 stem
from office-holders created by the executive branch to independently advance
complaints brought pursuant to s.10.2 and fall within a category analogous to
those cited in paragraph 52 do the Divisional Court Decision dated October 4,
2016 in that they are clearly not complaints by citizens as all of the
witnesses confirmed at the hearing but more accurately complaints by the
government or the executive branch.
9. Hearing
Panels under the JPA may recommend compensation but neither the JPA or the
Procedures Document contain any statutory language requiring the Attorney
General to make payment on a recommendation.
10. Justices
of the Peace therefore 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.
The
following constitutional questions are raised:
1. Does the unfettered discretion granted
Presenting Counsel in the JPRC Procedures Document in drafting the Notice of
Hearing violate judicial security of tenure for the Applicant and indeed all
Justices of the Peace in Ontario ?
1a. Did
this unfettered discretion violate the Applicant’s right to security of tenure
in this case to the extent that paragraphs 1-6 and 14 were neither made to the
JPRC in writing nor were they investigated by a complaints committee ?
1b. Did
the unfettered discretion violate the Applicant’ security of tenure in this
case to the extent that all of the remaining paragraphs in the Notice of
Hearing arose from the investigation itself and not from a complaint in writing
to the JPRC and accordingly were not investigated by a complaints committee ?
2. Does the financial security guarantee of
the constitutional principle of judicial independence place a duty on the
Attorney General for Ontario to ensure that justices of the peace like the
Applicant have the right to reasonable access to counsel to defend judicial
misconduct proceedings: 1.
Generally; 2. Where complaints can be
characterized as complaints from the executive branch or its agents – such as
Presenting Counsel in the subject statutory forum as part of the sine qua non of the concept of
The Rule of Law and the constitutional principle of judicial independence?
3. Assuming such a duty exists, what are
the proper constitutional parameters to be placed on this duty ? For example, does this duty extend to the
costs associated with corresponding applications in the courts flowing from the
judicial misconduct proceedings – such as those ordered by the Divisional Court
in the judicial review proceedings ?
4. Of what legal significance is it that the
allegations in this case bare the following hallmarks and qualities:
1. The
allegations are not from members of the public per se
but stem from the office of two separate Presenting
Counsel;
2. The
allegations which are the subject of this application
pre-dated or were
contemporaneous to the allegations
dealt with by the first
Presenting Counsel;
3. The
allegations which the Applicant was compelled to
defend in the May 31st, 2013 Notice of
Hearing raised
issues of the Applicant’s conduct being unwelcome,
vexatious and
creating a poisoned work environment under
the Human Rights Code as
well as an allegation of a prior
record of discipline and a propensity
to commit the allegation
against him – none of which was part of the
complaint filed under
s.10.2 of the JPA;
4. The
allegations in the Notice of Hearing related to allegations
arising between 2007 and 2010 and were the subject of
a hearing
in 2014;
5. Particulars
1-6, 7(b), 7(c), 7(d), 7(e), 7(f), 8(a), 8(b), 8(c), 8(d),
10, and 14 were not made to the
Review Council pursuant to
s.10.2 of the JPA and were not screened and investigated
by a
Complaints Committee under s.11 of the JPA
6. The
Justices of the Peace Review Council Procedures Document
stipulates that the role of Presenting
Counsel is not to seek a
particular order, but rather to ensure the matter is
evaluated
fairly and dispassionately to the end of achieving a just result
and Presenting Counsel abandoned this role in favor of a full-
blown prosecution
of the Applicant based on propensity
evidence;
7. Although
Presenting Counsel undertook not to introduce
evidence of the finding of the First
Proceeding as similar
fact evidence this is exactly what was done. Presenting
Counsel further abandoned impartiality and stepped into
the role of prosecutor by
accusing the applicant of being
“untruthful” in his evidence and invited the panel
to use credibility to justify removal from office and it did.
8. The
hearing panel’s decision to deny indemnification and to
make a referral to the Law Society of Upper Canada was at
the
behest of Presenting Counsel and the hearing panel
exhibited no
independent analysis or judgement.
5. Does
the absence of statutory language in the JPA similar to s.51.7(8) of the Courts
of Justice Act, R.S.O c. C. 43 affirmatively requiring the Attorney General of
Ontario to compensate justices of the peace like the Applicant where a recommendation
for compensation is made violate the constitutional principle of judicial
independence and more particularly the financial security component and or s.7
of the Canadian Charter of Rights and Freedoms ?
6. Does the current statutory regime under
the JPA and the corresponding Procedures Document have the potential to
undermine a lawyer’s duty of loyalty to his client and or create a potential
conflict of interest and thereby violate s.7 of the Charter by making or
creating a financial incentive for lawyers to be agents of the Review Counsel
or the executive branch ?
7. Does the current statutory regime under
the JPA and the corresponding Procedures Document have the potential to impair
the independence of the bar by unduly circumscribing the lawyer’s obligations
to fearlessly defend their client without fear of financial or professional
punishment ?
February 16th, 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
Jeff
House, Barrister & Solicitor
31
Prince Arthur Ave., Toronto, ON., M5R 1B2
Tel.(416)707
6271 - Fax (416) 960-5456
Co-counsel
for the Applicant
TO
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The Justices of the Peace Review Counsel
Adelaide Street Postal Station, P.O. Box 914
Toronto, Ontario, M5C 2K3
Attention: Ms. M.
King, Registrar
HENEIN HUTCHISON LLP
Barristers-At-Law
235 King Street East, 3rd Floor
Toronto, Ontario, M5A 1J9
Attention: Ms. M.
Henein and Mr. M. Gourlay, Presenting Counsel
The Attorney General of Ontario (as required by section
109 of the Courts of Justice Act)
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The Attorney General for Ontario
Constitutional Law Branch
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4th floor
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720 Bay Street
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Toronto, Ontario M5G 2K1
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fax: (416) 326-4015
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The Attorney General of Canada (as required by section
109 of the Courts of Justice Act)
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Suite 3400, Exchange Tower
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Box 36, First Canadian Place
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Toronto, Ontario M5X 1K6
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fax: (416) 952-0298
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(or Justice Building
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Ottawa, Ontario K1A 0H8
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fax: (613) 954-1920)
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(Names and addresses of lawyers
Commentary and Analysis:
What distinguishes our system of law from lesser systems of law is The Rule of Law, Judicial Independence and the Independence of the Bar. The executive branch must act within the bounds of the law like everyone else. They can not denude justices of the peace in Ontario of constitutional rights such as security of tenure and financial security. There is no reason in law or good conscience why Provincial Court Judges can have legislation which does not subject them to the whims of a Notice of Hearing prepared by Presenting Counsel which bare no resemblance to the complaint which was filed with the Review Council and was not pre-screened and investigated by Complaints Committee and to add insult to injury - which Notice of Hearing is not reviewed by the Complaints Committee. There is no reason in law or good conscience why Provincial Court Judges have enforcement legislation in the Courts of Justice Act which gives a Hearing Panel's recommendation to pay compensation to a judge who defends judicial misconduct allegations but justices of the peace have no similar enforcement language in the Justices of the Peace Act. Plain and simply this is bad law. Ontario can do better.
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