The Canadian Bar Association is a national association representing 36,000 jurists, including lawyers, notaries, law teachers and students across Canada. The Association's primary objectives include improvements in the law and in the administration of justice.
This submission was prepared by a working group of CBA members with experience in administrative law, Canadian Judicial Council conduct procedures, and other professional disciplinary proceedings. It has been reviewed by the Legislation and law Reform Committee of the National Office and is approved as a public statement of the Canadian Bar Association.
5. The CBA recommends that an Inquiry Committee be precluded from considering a complaint that has not been investigated by the CJC.*
Even if given notice, the CBA believes that it would be unfair for an Inquiry Committee to consider a complaint that has not been investigated by the CJC. The complaint system is designed to funnel the complaint issues into a statement for the Inquiry Committee to hear. It would be unfair for an issue not narrowed in that process to then be identified as an issue during the hearing process. It would also seem unfair for the Inquiry Committee, sitting in adjudication of the issue, to decide what is in effect a pleading of the alleged misconduct.
14. The CBA recommends continuation of the current practice where judges have access to counsel paid for by the government at government rates, throughout the judicial discipline process.
Independence of the judiciary, which is protected in the public interest and not for the interests of judges themselves is furthered by the current practice of giving judges access to counsel paid by the government at standard government rates throughout the judicial discipline process. With the small number of complaints that have proceeded to the review panel and inquires stages, there is insufficient data to suggest that public funds are unnecessarily spent in these proceedings. The matters that have gone to judicial review raised important constitutional and administrative law questions, the answers to which added to the body of judicial conduct law in Canada for the benefit of the public, complainants and judges, well beyond the facts of the underlying complaints.
*The Ontario Court of Appeal made this pronouncement in the landmark case of
Hryciuk v. Ontario. As I understand it, Justice Hryciuk was never scheduled to sit as a judge of the Provincial Court following the Court of Appeal decision setting aside his removal - but was entitled to and did receive full salary and benefits until retirement. If I am incorrect on this point - I invite those with information to refute this to correct me. My commentary is to educate and not to punish.
These recommendation were made in September 2016. Massiah v. Justices of the Peace Review Council 2016 ONSC 6191 was released October 4th, 2016.
Application to Re Massiah 2015:
CBA Recommendation #5:
Initial Jurisdiction and Abuse
of Process Motion
As early as July 11th, 2013 I raised a proper jurisdictional objection to the May 31st, 2013 Notice of Hearing drafted and filed by Presenting Counsel pursuant to my duty as counsel representing J.P. Massiah. I wrote in my factum:
10. The NOH dated May 31st, 2013 included seven additional counts of alleged misconduct not raised in the Registrar's letter dated January 2nd, 2013.
11. Paragraph 14 in the NOH purports to rely upon a "history of judicial misconduct."
of Bias Motion
Later, in May 2014 I felt justified in asserting a reasonable apprehension of bias motion
with a twist. The twist was that the JPRC complaint investigation itself reasonably
appears to contain a built in bias against the subject justice of the peace. I raised the
following jurisdictional objections in my factum submitted on the bias motion:
1. The Applicant respectfully requests the Hearing Panel to rule on the following points of law:
(ii) Do the particular facts with respect to intake, investigation and adjudication of this matter give rise to a reasonable apprehension of bias ?
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.
Excerpt of Presenting
7. Maintaining public confidence in the judiciary is the overriding purpose of the judicial conduct regime. Public confidence would be undermined if efforts by the Applicant to derail the proceedings with meritless motions are not met with appropriate response. For these reasons, the motion should be dismissed without need for further evidence or argument.
Excerpts from the
Panel's Decision on
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. In fact, it is the Panel's view that this motion is completely without merit. It is therefore dismissed.
15(c) Mr. Massiah's conduct in advancing many pre-hearing motions which were without merit, frequently appeared to be a deliberate attempt to prolong the process. This caused public funds to be unnecessarily expended.
24(ii) The Applicant's counsel, Mr. Guiste, brought a motion for recusal of the Hearing Panel n account of a reasonable apprehension of bias. The motion was entirely baseless, and was justifiably characterized as "frivolous" in the Panel's decision. The Panel also observed that the Applicant's motion contained assertions that were "completely offensive", "egregious", and "atrocious", such as the absurd allegation that Presenting Counsel had somehow colluded with the Hearing Panel over the issue of retaining independent counsel: Decision on the Motion Alleging Bias (JPRC, May 29, 2014)
Excerpts from Presenting
Counsel's Reply Factum on
2(ii) His worship's counsel, Mr. Guiste, brought a motion for recusal of the Hearing Panel on account of a reasonable apprehension of bias. The motion was entirely baseless, and was justifiably characterized as "frivolous" in the Panel's decision. The Panel also observed that His Warship's(sic) motion contained assertions that were "completely offensive", "egregious", and "atrocious", such as the absurd allegation that Presenting Counsel had somehow colluded with the Hearing Panel over the issue retaining independent counsel. Decision on the Motion Alleging Bias, May 29, 2014.
Excerpts from Presenting
Counsel's Factum on
2(ii) The Applicant's counsel, Mr. Guiste, brought a motion for recusal of the Hearing Panel on account of a reasonable apprehension of bias. The motion was entirely baseless, and was justifiably characterized as "frivolous" in the Pane's decision. the Panel also observed that the Applicant's motion contained assertions that were "completely offensive" "egregious", and "atrocious", such as the absurd allegation that Presenting Counsel had somehow colluded with the Hearing Panel over the issue of retaining independent counsel: Decision on the Motion Alleging Bias, May 29, 2014.
CBA Recommendation #14
Excerpts from J.P. Massiah
Submissions on Compensation:
Additional questions of law
for Panel’s adjudication:
5. 1. Did the Respondent have a legal right to defend
those allegations raised in the Notice of Hearing
which he did not admit to in his written response
to the Complaints Committee notice letter to him ?
2. Assuming the Respondent has such a right, does
the refusal to indemnify him for the cost of
defending himself render such a right illusory,
deprive him of access to justice and denude the
proceedings of fairness and legal legitimacy ?
6. The Respondent respectfully submits that the answer to both questions is yes. The overriding rationale for this is founded in the fundamental tenets of our system of justice. Judicial officers are the guardian of the Constitution and the Rule of Law. They must never be seen to be influenced in any manner by the administration. We have a clear separation of those functions in our system. The ability of the Respondent to fully defend himself in such a system is critical to the legal legitimacy of the decision to remove him. He makes $122,000 per year. He could not properly defend himself were it not for all of the counsel who have defended him to date rising to the call of duty and providing him with a proper defence in reliance on the age old practice of the Attorney Generals indemnifying judicial officers for the cost of their defence.
Compensation Documents First Hearing – Tab 10
JUDICIAL INDEPENDENCE and INDEMNIFICATION FOR COSTS
7. It is settled law that a Justice of the Peace is a judicial officer entitled to the full rights of judicial independence. This reality is confirmed by s.20 of the Justices of the Peace Act which affords them the same immunity from liability as a judge of the Superior Court of Justice.
Ell v. Alberta 2003 S.C.C. 35 at para 24
Justices of the Peace Act, s.209
8. Accordingly, it is simply wrong in law to suggest that the general costs provisions in civil litigation and or the regulated provisions apply to justices of the peace with respect to their indemnification for costs incurred in defending themselves in judicial misconduct under the Justices of the Peace Act. One simply has to look at the multitude of cases where justices of the peace have consistently been indemnified for the costs associated with defending themselves – even where they are removed from office.
Re Blackburn 1994 (Hogan J.)
Re Romain 2002 (Otter J.)
Re Obakata 2003 (Mocha J.)
Re Sinai 2008 (Carr J.)
Re Quon 2007 (Di Filipis J.)
Re Kowarsky 2012 ( Hawke J.)
Re Massiah 2012 (Vailencourt J.)
Excerpt from Presenting
Counsel Factum on
3. In short, Presenting Counsel submits that no recommendation for compensation is appropriate in the circumstances of this case....As noted in Phillips, the question is not whether counsel should be compensated for their work. It is whether the public, rather than the client, should be required to foot the bill.
JPRC Procedures Document
Procedural Code for Hearings
Presentation of complaints:
3. Legal counsel engaged by the Review Counsel shall operate independently of the Review Council.
4. The duty 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.
About the author: Ernest J. Guiste is a trial and appeal lawyer who takes pride in championing the cause of individuals who have been wronged by state-actors such as employers, police and other governmental agencies. He is a strong believer in access to justice for all and especially low income or no income individuals. Coming from a Catholic African-Canadian upbringing fairness to all is his guiding principle in the practice of law. He has successfully used the Ontario's Human Rights Code to obtain reinstatement for a dismissed African-Canadian probationary police officer and to secure religious accommodation for a Catholic obstetrical nurse who was opposed to performing pregnancy terminations.