Friday, February 24, 2017

Why the Constitutionality of the Justices of the Peace Act Requires A Ruling

   Justices of the Peace in Ontario are denied two of the fundamental rights flowing from the constitutional principle of judicial independence - they are - 1. security of tenure and financial security.  In addition to this justices of the peace in Ontario are denied reasonable access to counsel to defend themselves against any form complaint of judicial misconduct leveled against them - including complaints which could be characterized as complaints from the state or agents of the state.

   To compound this there is no limitation period with respect to the bringing of judicial misconduct complaints against justices of the peace.(see Re Massiah 2015 - Decision on Jurisdiction and Alleged Abuses of Process)

Divisional Court

   In Massiah  v.  Justices of the Peace Review Council 2016 ONSC 6191 the Divisional Court allowed the portion of J.P. Massiah's judicial review application challenging the decision to deny him compensation for the cost of the defending the proceedings - Compensation Decision. The Divisional Court made the following relevant pronouncements in its ruling:

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

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

[50]   I do not accept that any such presumption exists nor do I find any cogent reasons why such a presumption should exist.  Rather, there are compelling reasons for the opposite approach.

[51]   First, and as noted above dismissal of a judicial officer is a matter of public importance.

[52]   ....the prospect of a complaint emanating from the Government is, nonetheless, a real one. This probability is of some significance given that one of the most important roles performed by a judicial officer is to stand between the state and the citizen, in terms of the application of government powers. This role is referenced in the earlier statement I quoted above from Re Therien.  Judicial officers are therefore exposed not only to the vagaries of complaints by citizens but also to those of government.

[53]   ....While there are screening mechanisms to ensure that only complaints that appear to have a requisite degree of validity, and that are related to judicial conduct rather than judicial decisions, are permitted to proceed beyond the stage of the initial complaint, the impact on the holder of a judicial office, where a hearing is called, is significant, as this case and others have amply demonstrated.

[54]   Fourthly, there is a serious risk that, if we hold a presumption that a judicial officer holder will not be compensated for their legal expenses, where a finding of misconduct is made, those persons will then face the judicial equivalent of th Gordian Knot.  On the one hand, the person can choose to defend themselves but with the knowledge that, if the adjudicator decides against them, they will not only lose their position but may effectively bankrupt themselves and their family in the process. That result arises from the reality that the legal expenses associated with responding to a complaint, and participating in such a hearing, are likely significant.  Few judicial office holders would be able self-fund those expenses.  On the other hand, that same person, in order to avoid those dire financial consequences, may simply decide that it is easier, and financially safer, to simply resign their office.  In doing so, though, they leave the allegations unanswered and consequently, in most persons' minds, admitted to.  If that is the knot that a judicial officer holder faces, it means that the mere fact of a complaint becomes, in and of itself, a threat to judicial independence, because it may lead to one of two undesirable results.  Either the judicial office holder, for reaasons other than the merits of a particular complaint, acquiesces in their removal from office or they may choose to avoid decisions that will subject them to criticism.

[56]   For these reasons, adjudicative bodies, dealing with complaints against judicial office holders, ought to start from the premise that it is always in the best interests of the administration of justice, to ensure that persons, who are subject to such complaints, have the benefit of counsel. Consequently, the costs of ensuring a fair, full and complete process, ought usually to be borne by the public purse, because it is the interests of the public, first and foremost, that are being advanced and maintained through the complaint process.  Again, this reflects the public interest nature of the process.

On Compensation
by Vallencourt Panel:

[58]   This case itself presents as an example of how different circumstances can give rise to different decisions on compensation.  The 2011 Panel recommended that the applicant be compensated for his legal expenses.  The 2012 Panel did not.  Those apparently conflicting results, though, simply reflect that there were crucial differences in the circumstances between the two proceedings.

Deficient Record of
Proceedings Filed
by JPRC:

    The Justices of the Peace Review Council's Record of Proceedings before the Divisional Court did not contain an 11 tab document entitled Respondent's Submissions on the Question of the Indemnification filed by J.P. Massiah on the compensation portion of the hearing.  This document contained the compensation documents from the 2011 Panel. These documents showed the following salient facts about the 2011 Panel's decision to compensate - which the Divisional Court was denied access to:

1.   There was no submission from Presenting Counsel for non-payment or in fact any submissions at all on right or quantum to compensation; and

2.   The Attorney General's office paid J.P. Massiah's lawyers directly rather than by a cheque payable to counsel in trust or payable directly to J.P. Massiah.

Justices of the Peace
Entitled to Judicial 

   The Supreme Court of Canada's decision in Ell  v. Alberta [2003] 1 S.C.R. 857 confirmed that principle of judicial independence applied to justices of the peace .   In Valente  v.  The Queen [1985] 2 S.C.R. 673 the Supreme Court of Canada set out the three essential conditions of judicial independence.  They are:  1.  security of tenure; 2. financial security; and 3. institutional independence.

Security of tenure:

   "The essentials of such security are that a judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard."  (Valente v. The Queen)

Financial security:

   "The essence of financial security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence." (as above)

Right to counsel and 
reasonable access to
counsel to defend

   If justices of the peace in Ontario are to have any meaningful right to security of tenure and financial security it would seem reasonable that they have a right to reasonable access to counsel in order to defend their office on judicial misconduct complaints.  This is especially the case where the complaint is one emanating from the Government as Nordheimer J. correctly noted in Massiah  v. Justices of the Peace Review Council 2016 ONSC 6191 at paragraph 52.

Hearing Panel
Compensation Decision:

[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 reiterated below examples included in Presenting Counsel's submissions which highlight a number of the frivolous motions brought by Mr. Guiste on behalf of his client:

- publication ban motion
- motion for disclosure and particulars
- motion asserting institutional and reasonable apprehension of bias
- motion for leave to entertain further submissions

Unjustifiable Inequity
Between OCJ Judges
and Justices of the Peace:


    "Presenting Counsel shall prepare the Notice of Hearing for the approval of the review panel that referred the complaint for a hearing."(Procedures Document - Procedural Code for Hearing paragraph 7 at page 22)

Justices of 
the Peace:

    "Presenting Counsel shall prepare the Notice of Hearing. (Procedures Document - Procedural Code for Hearings paragraph 7 at page 17)

Prima facie conflict
between s.10.2, 11(15), 
11.1(15) and Procedures
Document - paragraph

   The Justices of the Peace Act, R.S.O 1990 c. J.4 expressly stipulates the complaints must be in writing and that a hearing panel may dismiss or uphold the complaint.  In Re Massiah 2015, a panel chaired by now retired Justice Deborah Livingstone recommended the removal of J.P. Massiah from office not based on a complaint but based on particulars in a Notice of Hearing which not only exceeded the complaint and was not pre-screened and investigated by a complaints committee. The Notice of Hearing in Re Massiah 2015 was NOT reviewed by the complaints committee which supposedly order the complaint to a hearing. Needless to say, JP Massiah's first and only notice of the significant particulars in the Notice of Hearing was once it was served on him post issuance on May 31st, 2013.

Judges of Ontario Court
of Justice Right to
compensation for cost
of defending misconduct:

Courts of Justice Act:

s.51.7(8)   The Attorney General shall pay compensation to the judge in accordance with the recommendation.

Justices of the Peace Act:

   The Justices of the Peace Act contains no directive compelling the Attorney General to compensate justices of the peace where a recommendation is made.

No Limitation Period
on complaints ruled
Re Massiah 2015 panel:

   To compound these very serious flaws in the Justices of the Peace Act and its corresponding Procedures Document, a panel chaired by now retired former part-time judge of the Ontario Court of Justice, Deborah Livingstone, recently ruled in Re Massiah 2015 that there is no time limit on when a complaint of judicial misconduct can be brought against a sitting justice of the peace even though those allegations are founded on rights under the Human Rights Code of Ontario.

About the author:

Ernest J. Guiste is a Roman Catholic,  African-Canadian lawyer who champions the principles of fairness and access to justice for all persons in the community. Mr. Guiste believes that a judge, a justice of the peace and indeed all citizens must all have confidence that the administration of justice will treat them fairly without regard to irrelevant considerations and in accordance with the Rule of Law.  Mr.  Guiste is the author of "A Catholic Lawyer's Prayer" - a prayer he wrote and published as a direct result of the actions taken against him and anticipated to be taken against him by the Hearing Panel and others for his stance in defending a member of the judiciary fearlessly.

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