Leave to Bring Motion Seeking Re-Opening(March 6, 2017) Etc.: Re Massiah Re-Hearing

E mail dated March 6th, 2017 @ 8:41 AM - ejguiste@yahoo.com wrote:

Madam Registrar:

RE: Leave to Bring Motion

We hereby seek the panel's leave to bring the attached motion seeking a re-opening of the 2012 Panel's findings on liability and penalty pursuant to the Procedures Document
and established jurisprudence.

We as counsel see this motion as proper and necessary in light of the irregularities in the
filed "record of proceedings" and the narrowing of the issues at the Divisional Court -
effectively excluding the important consideration of the erroneous interpretation to the
Human Rights Code and to Hryciuk  v. Ontario.  The other salient issue is that it is clear
that the 2012 Panel did not answer the question it was authorized by the Act to answer
but instead answered a question put to it by Presenting Counsel and totally overlooked
our client's proper legal objections.

You should have four attachments;  1. containing the NOM and attachments and the
second containing the Amendment to the 2013 Annual Report and a TorStar article
where you and Mr. Hunt are quoted on the issues to be decided.  A third containing
a minor amendment adding para 1A to replace the first page of the NOM and
4. A copy of Chandler  v. Alta Assoc. of Architects.

We trust that this is satisfactory.

E.J. Guiste and J. House
Co-counsel for the Applicant.

Attachments
- Amended Notice of Motion 1A only
- reopening Chandler 1989 Canli 41
- Re-Opening Motion
- TorStar Tax Payers Billed for Guilty Justices Legal Bills Evidence


E mail dated March 6, 2017 @ 11:27 AM - Ernest Guiste wrote to King Marilyn, J. House, Marie Henein, Matthew Gourlay

RE: RE:OPENING FURTHER AUTHORITIES

Please forgive me but I believe it to be my duty in the proper discharge of my duty as
counsel to bring the following legal authorities to the hearing panel's attention:

1.  Canada Post Corp.  v.  CUPW 2008 Canli 32313 (Div Crt)

2.   Criminal Lawyers Assn.  v.  Ministry of Community Safety 2016 ONSC 6947 (Div Crt)

3.   CUPE   v.   Air Canada and Brial Keller 2014 ONSC 2552 (Div Crt)

As Jennings J. pointed out in Canada Post sura at para 21 we do not see it as being
a proper use of public resources, judicial time as well as the time of counsel in this
matter to run to the Court of Appeal or Divisional Court at this time.  The cost of
these proceedings has been brought home loud and clear to our client.  Our duty
as barristers in this case requires that we be mindful of the public purse but it must
 not trump our duty to advance fearlessly our client's case.  As it stands, we can not
 be accused of having cost the taxpayers any money.  We can only trust in God
that our services as barristers shall be recognized in time.

Sincerely,

E.J. Guiste and J. House
Co-counsel for H.W. Massiah


E mail dated March 6, 2017 @ 5:38 PM - Marilyn King to Ernest Guiste, 
Jeff House, Marie Henein, Matthew Gourlay

RE: Decision on Jurisdiction in Relation to Notice of Constitutional Question

Counsel,

In my capacity as the Registrar of the Justices of the Peace Review Council (JPRC),
I am sending you a decision, Decision on Jurisdiction in Relation to Notice of
Constitutional Question, issued by the Hearing Panel of the JPRC that is presiding
over the matter remitted to it by the Divisional Court in Massiah  v.  Justices of the
Peace Review Council, 2016 ONSC 6191.

Marilyn E. King


E mail dated March 6, 2017 @ 5:45 PM - King Marilyn to Ernest Guiste, 
Jeff House, Marie Henein, Matthew Gourlay

Re: Re-opening Further Authorities

Good afternoon, Counsel,

This e mail confirms receipt of the e mail from Mr. Guiste and that the case law was
brought to the attention of the Hearing Panel this morning.

Marilyn King
Registrar, Ontario Judicial Council
and Justices of the Peace Review Council

E mail dated March 6, 2017 @ 6:29 PM Ernest Guiste wrote:

Madam Registrar:

Receipt acknowledged with thanks.

Neither Presenting Council or our client referred to or got
any notice of Harle  v.  101090442 Saskatchewan Ltd. 2016 SK CA 66.

This decision is totally new to me as counsel.  I wish to say something
about this decision.  May I please have this opportunity ?  I am prepared
to keep my submission on it very brief - no more than a page or two.

Sincerely,

E.J. Guiste


E Mail dated March 8, 2017 @ 10:12 AM King, Marilyn wrote:

Mr. Guiste,

The 2013 Annual Report was not amended.  In addition to posting the Annual Report,
notice was posted of an inadvertent omission.  I do not recall the date when I became
aware of the omission but a staff member noticed it and brought it to my attention.

Documents send by the Chief Justice to the Justices of the Peace Review Council are not
public documents.

In relation to this hearing, as the Registrar, I can inform you that the Honourable Justice
Deborah Livingstone and His Worship Michael Cuthbertson were appointed as
temporary members of the JPRC effective May 28, 2013.

Yes, we have the copies of the Investigators Reports.

Marilyn E. King
Registrar


E mail dated March 8, 2017 @ 12:04 PM, Ernest Guiste wrote:

Madam Registrar:

Please find attached my client's motion raising his
concerns about a reasonable apprehension of bias
which is hereby served pursuant to the Procedures
Document.

I will address your recent info separately.

Sincerely,

E.J. Guiste


E mail dated March 10th, 2017 @ 5:33 PM, King Marilyn wrote:

Good afternoon, Mr. Guiste and Mr. House,

Please see the attached letter sent on behalf of the JPRC Hearing Panel.

Yours truly,

Marilyn E. King
Registrar

March 10, 2017

Mr. Jeffry A. House
Barrister and Solicitor
31 Prince Arthur Avenue
Toronto, Ontario L6W 3W8(sic)

Mr. Ernest J. Guiste
Professional Corporation
2 County Court Blvd., Suite 494
Brampton, Ontario M5R 1B2 (sic)

Dear Counsel:

RE:  Proper Filing of Motions

The Hearing Panel has been informed by the Registrar of the two motions sent by e mail
by Mr. Guiste.  The Panel has requested that if you seek to file motions for adjudication
by the Hearing Panel, please file them properly at the desk of the Office of the Justices
of the Peace Review Council.

Please file three hard copies, which includes one for each Panel member and one for our
records.

Please also serve Presenting Counsel.

Thank you.

Yours truly,

Marilyn E. King
Registrar

FOR: Hearing Panel of the Justices of the Peace Review Council
c. Ms. Marie Henein and Mr. Matthew Gourlay, Presenting Counsel


March 10th, 2017

Priority Post

JUSTICES OF THE PEACE REVIEW COUNCIL
1 Queen Street East, Suite 2310
Toronto, Ontario, M5C 2W5

Attention:  Ms. M. King, Registrar and Counsel

Dear Ms. King:

RE: MASSIAH - COMPENSATION - REHEARING - FILING OF MOTIONS -
RE-OPENING - BIAS - DISCLOSURE - CONFLICT OF INTEREST

Please find enclosed four copies of each of the motions served on you and
Presenting Counsel post Notice of Constitutional Question.  There are some
e mails which are germane to these motion which I have expressly asked you
to bring to the attention of the hearing panel.

I trust that this is satisfactory.

Yours very truly,

Ernest J. Gusite
cc. co-counsel, Mr. House, Presenting Counsel - Ms. Henein and Mr. Gourlay
Mr. Massiah via regular mail


Excerpts from Decision on Motions
Dated March 30th, 2017

7)   Mr. Massiah has presented no statute or case law relevant to circumstances
where there has been a judicial review and a denial of leave to appeal in support of
his argument to re-ligigate matters from the hearing or newly litigate matters related
to the complaints process beyond our re-consideration of the compensation issue.

23)   In summary, we provide the following rulings on the two Motions filed before us:

a)   Our jurisdiction is narrow and only as permitted by the Divisional court(sic) ruling
(see our decision of 6 March 2017).  As a result, we decline to further consider Motion 1;

b)   We will not allow re-litigation or new litigation of matters beyond our jurisdiction as
ordered by the Divisional Court (see our decision of 6 March 2017).  As a result, we
decline to further consider Motion 2;

c)   To avoid an abuse of process, Mr. Massiah is to file no more motions without leave
from this Hearing Panel.

d)   We will not consider the Notice of Motion of 6 March 2017 indicating an intention
to file a motion seeking remedies beyond our jurisdiction.

Dated March 30, 2017

Hearing Panel

Justice of the Peace Michael Cuthbertson*
Ms. Leonore Foster, Community Member

*The Registrar and Counsel for the JPRC, Ms. King advised on March 8th, 2017
that H.W. Cuthbertson was appointed a temporary member of the Review Council
effective May 28, 2013 by the Chief Justice of the Ontario Court of Justice
(at the time) The Chair of the Panel, the Honourable Justice Livingstone was also
 appointed a temporary member of the Review Council at the same time.
Disclosure of the letter or documents evidencing these appointments were sought
in one of the motions. The Hearing Panel denied this relevant disclosure by way
of its March 30th, 2017 decision.

**One of the grounds for re-opening is that the Hearing Panel was not properly
constituted because - 1. Justice Livingstone was a "part-time judge" who
required the consent of the Attorney General to sit and 2.  The Justices of the
Peace Act, s.8(10) allows the Chief Justice to appoint a judge or a justice of
the peace. It does not allow for the appointment of two temporary members
on a panel.

s.8(10) JPA

The Chief Justice of the Ontario Court of Justice may appoint a judge or a justice
of the peace who is not a member of the Review Council to be a temporary member
of a complaints committee or hearing panel in order to deal fully with a matter.

**The issue of the composition of the hearing panel was not one raised before the
appellate courts. Indeed, neither J.P. Massiah or his counsel or members of the
public would know who is or is not a "temporary member" but for the Registrar's
publication of this fact in the JPRC's Annual Report to the Attorney General.

***The Toronto Star has written at least three articles on this most unsatisfactory
and prejudicial practice. A justice of the peace subject to removal from office is
entitled to know the status of those who sit in judgment of him or her at the time
of the hearing and not after they are removed from office. J.P. Massiah and likely
other justices of the peace removed from office recently may well have been
removed by improperly constituted hearing panels. This is serious.

***Ontario is Keeping Secret Complains About JPs - June 16, 2014; Ontario Failing
to Release Reports of Complaints Against Judges - January 23, 2017; Report Sheds
Light on Secretive Discipline Process for Ontario Judges, JPs - February 11, 2017
"Annual reports about complaints against Ontario judges and justices of the peace
have been released two weeks after the Star highlighted that the Ministry of the
Attorney General was failing to release them in a timely fashion."


NOTE:  The above e mails and the cases referred to and attached were filed with the Hearing Panel in the Re-Hearing currently before a Hearing Panel of the JPRC.  This information is published here as a public service since the Hearing Panel has ruled against the conventional public hearing traditionally afforded in cases involving the removal of judicial officers in the free world. The removal of a judicial officer is a matter of public importance. The manner in which it is done is unquestionably a matter of public interest and importance and justice must be seen to be done. 

J.P. MASSIAH'S BIAS MOTION FILED WITH THE JPRC

E. J. GUISTE

PROFESSIONAL CORPORATON

TRIAL & APPELLATE ADVOCACY

2 COUNTY COURT BLVD., SUITE 494

BRAMPTON, ONTARIO, L6W 3W8

TEL.(416) 364-8908.  FAX (416) 364-0973

E-MAIL:    ejguiste@yahoo.com

                      

March 8th, 2017                                                 E MAIL                                              

                                               

JUSTICES OF THE PEACE REVIEW COUNCIL

1 Queen Street East, Suite 2310

Toronto, Ontario, M5C 2W5

Attention:  Ms. M. King, Registrar and Counsel

Dear Ms. King:

RE:      MASSIAH – COMPENSATION – REHEARING -  REASONABLE APPREHENSION OF BIAS MOTION PER PROCEDURES DOCUMENT

            The following are JP Massiah’s expression of grave concern with respect to the manner in which the Presenting Counsel and the remainder of the 2012 panel intend to proceed with the ordered re-hearing of our client’s compensation claim.  It is our position that the re-hearing ordered is so pervasively and fundamentally tainted by bias that our client’s right to a fair and impartial hearing is reasonably questionable unless steps are taken to cure it now.  Pursuant to the Procedures Document we bring the within motion for adjudication by the panel.

Presenting Counsel

Conflict:

            Presenting counsel was retained by the Registrar and Counsel for the Justices of the Peace Review Council to draft a Notice of Hearing and to present the case against our client to a hearing panel.  Very early on it(sic) the proceedings the Notice of Hearing drafted by Presenting Counsel was challenged as improperly raising issues which were not part of any complaint in writing and clearly were not investigated by the Complaints Committee which is said to have ordered a hearing – notwithstanding the fact that no order from the Complaints Committee has ever been produced. This objection took place before Mr. House was retained but was continued during his retainer.

            Presenting Counsel stepped outside of the amicus role which they are to play in these proceedings and embarked on a full-blown criminal-style prosecution of our client.  Presenting Counsel incorrectly instructed the hearing panel on the application of Hryciuk  v.  Ontario (ONCA) and the hearing panel went on to accept Presenting Counsel submission on what it is they were to adjudicate notwithstanding the fact that the Independent Counsel which the panel retained to advise them on the issue of their jurisdiction expressly told that it was a “complaint”. The hearing panel never addressed its mind to J.P. Massiah’s point that substantial parts of the Notice of Hearing did not come from a complaint in writing and were not investigated by the Complaints Committee.

On Judicial Review

Presenting Counsel

Again Retained:

            Once again Ms. King retained Presenting Counsel to represent the JPRC before the Divisional Court.  Presenting Counsel served and filed the “record of proceedings” for the JPRC.  The “record of proceedings” does not contain all of the material which the hearing panel, presenting counsel and us as counsel agreed would form the “record of proceedings.”  It fails to contain the parties motions records, facta/written submissions, legal authorities and the five volume of transcripts from the investigation which the hearing panel clearly acknowledged in its Decision on Jurisdiction and Alleged Abused of Process was filed by our client.

Issues Curtailed

At Divisional Court

And Court of Appeal:

            The effect of the deficient “record of proceedings” was to circumscribe the issues apparent for review.  The interpretation of the Human Rights Code of Ontario although a fundamental part of both the Notice of Hearing and Presenting Counsel’s written submissions inviting liability is totally absent from the appellate court proceedings.  Former panel member, Margot Blight’s recent use of the decision involving our client as a prescedent before a Law Society Tribunal panel which she chaired while our client’s matter was before the courts without acknowledging that it was under review compounds our concern on this point.  The second significant issue which is not fully addressed before the Divisional Court is the fact that paragraphs 1-7 and 14 of the NOH were not part of complaint and as such were never screened or investigated and our client got no notice of them until the issuance of the NOH on or about May 31^st, 2013.

Denial of Compensation

Jurisprudence Established

by current Presenting

Council:

            A review of the JPRC’s recent jurisprudence on the issue of compensation makes it clear that current Presenting Counsel is the advocate and founder of the said policy.  She has stated the new principle as, “it is not whether counsel should be compensated but rather whether the public, rather than the client, should be required to “foot the bill”. (see Foulds, Phillips, Chisvin and Tor Sun Article and re-tweet by Deborah Livingstone @ dresdengirrl)  Indeed, in the proceedings she once again stepped outside of the amicus role which other Presenting Counsel – to date – such as Mr. Doug Hunt has played on this issue and embarked on a full-blown prosecution of the issue of compensation totally inconsistent with the manner in which this issue has been handled by Mr. Hunt in our client’s first case and by other Presenting Counsel to date.

Current Presenting

Counsel’s Retainer

Discredits the Impartiality

Of the tribunal:

            Presenting counsel then not only defended the “client and not the public foot the bill”  argument at Divisional Court but also sought leave to appeal the adverse decision.  Presenting Counsel is now on the re-hearing with 2/3 of the panel which did exactly as requested by Presenting Counsel.

[65]      It is well established that a tribunal whose decision is challenged in judicial review proceedings should not appear to defend the merits of its decisions.  As stated by the Supreme Court in Northwestern  Utilities Ltd.   v. Edmonton (City) [1979] 1 S.C.R. 684 (SCC) at page 709:

“Such active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties.  The Board is given a clear opportunity to make its point in its reasons for its decision, and it abuses one’s notion of propriety to countenance its participation as a full-fledged litigant in this Court, in complete adversarial confrontation with one of the principals in the contest before the Board itself in the first instance.”    (quoted from Douglas   v.  AG CANADA 2013 FC 451)           

Fairness Compromised:

            Presenting counsel has suggested to the panel that the proceedings must be circumscribed even though a comprehensive reading of the Divisional Court’s reasons not only raises the point that the mere bringing of a complaint – especially by the government is an affront to judicial independence.   

Public Hearing

Now Denied:

            This portion of the hearing which was made public made public for the first time during our client’s case in May, 2015 has now been shielded from public scrutiny with the panel accepting Presenting Counsel’s request to depart from a public hearing.  While we have asked for an opportunity to call evidence, we have heard nothing on this request other than a frequent reminder that the panel has granted us 25 pages to make submissions by March 24^th.

2012 Panel’s Public

Interference with J.P.

Massiah’s Right to

Counsel:

            The 2012 panel made four fatal decisions which undermined the fairness and legality of the proceedings and which raise a reasonable apprehension of bias with respect to the re-hearing:

 1.         Restricting the right of one of Massiah’s counsel to address them without providing any opportunity to  be heard:  (Decision denying leave to make further submissions on jurisdiction);

 2.         Restricting the right of one of Massiah’s counsel to address them without any opportunity to be heard.(Decision on leave to adduce fresh evidence);

3.         Compensation Decision and Addendum with a referral to the Society of one of J.P. Massiah’s lawyers for conduct which included acts undertaken by both counsel raise a spectre of a racial animus since one counsel is African-Canadian and the one who was “well-received” is not. Indeed, a proper reading of the Compensation Decision leaves the impression that J.P. Massiah and his African-Canadian counsel are one and the same;

 4.         Outright ignored all legal authorities cited by J.P. Massiah on the compensation portion of the Hearing and the Chair re-tweeted an article written by Michel Mandel of the Sun praising the denial of the compensation decision and the referral of one of J.P. Massiah’s lawyers.

JPRC silent on Chair’s

Retirement at Divisional

Court:

            As counsel I exercised my right to bring complaints of judicial misconduct against the two judicial officers on the 2012 panel following the Compensation Decision.  The Chair of the panel later announced her “full retirement from the bench.”  This fact was known to the JPRC’s instructing counsel, Ms. King, who is also Registrar of both the Ontario Judicial Council and the Justices of the Peace Review Council – the gate-keeper of judicial misconduct complaints in Ontario yet was never disclosed to the Divisional Court.  The complaint against J.P. Cuthbertson is outstanding.  Among other wrongs, the complaint raises serious concerns about this judicial officer treating counsel in a manner in violation of the Human Rights Code. This puts J.P. Cuthbertson in a conflict.

Concern Over

Registrar’s Varied

Roles and Misuse

Of Confidential

Information:

            Ms. King is counsel to the Justices of the Peace Review Council.  She retained and instructs Presenting Counsel.  She is also Registrar of the Ontario Judicial Council. In both roles as Registrar she is the “gate-keeper” of judicial misconduct complaints.

            Is there any possible way to guarantee that confidential information is not wrongly used given the various hats which Ms. King wears in the process ?  Regrettably, we like the Divisional Court in a recent ruling on the issue of a disqualifying conflict of interest caused by a lawyer migrating from one firm to another take the view that compliance with the rules and guidelines may not be adequate in every case. How can it ever be o.k. for the person who receives and screens the complaints for both judicial councils be the same person who retains counsel to present not the complaint but draft a Notice of Hearing ? 

Conclusion:

            We (sic) grave concerns about the ability of our client to receive a fair and impartial hearing as directed by the court in this matter for the reasons given above. We look forward to Presenting Counsel’s submissions on this motion and the panel’s decision. 

            All of which is respectfully submitted.

                                   

Yours very truly,

 ERNEST J. GUISTE

Per

Ernest J. Guiste

Cc co-counsel, Mr. House, Presenting Counsel – Ms. Henein and Mr. Gourlay

Mr. Massiah via e mail 

NOTE:  This motion was filed with the Justices of the Peace Review Council Hearing Panel.

It is published here only because the tribunal has decided to deviate from the conventional public hearing format prescribed by the Act and Procedures Document. We believe that the removal of a judicial officer is a matter of public importance. The people of Ontario have a right to know and that justice must be seen to be done. Accordingly, this is a public service.

J.P. Massiah's Submissions on Re-Hearing on Compensation

                                                                                               

JUSTICES OF THE PEACE REVIEW COUNCIL

IN THE MATTER OF COMPLAINT(S)

REGARDING HIS WORSHIP ERROL MASSIAH

Justice of the Peace in the

Central East Region

  SUBMISSIONS ON RE-HEARING ON COMPENSATION

E.J. GUISTE

Professional Corporation

Trial & Appellate Advocacy

2 County Court Blvd., Suite 494

Brampton, Ontario

L6W 3W8

Ernest J. Guiste

(416) 364-8908

(416) 364-0973 fax

JEFFRY HOUSE

Barrister & Solicitor

31 Prince Arthur Avenue

Toronto, Ontario

M5R 1B2

(416) 707-6271

(416) 960-5456 fax

Co-counsel for HW Massiah

1.                                 A hearing shall be commenced by a Notice of Hearing

                                    in accordance with this Part.

                                                            Procedures Document s. 6(1)

2.                                 Presenting counsel shall prepare the Notice of Hearing

                                    (1)        The Notice of Hearing shall contain,

                                    (a)        particulars of the allegations against the Respondent.

                                                            Procedures Document s.7

Hearing Issues Defined

by Notice of Hearing

and not the Respondent

or counsel:

3.         The legal issues which were the subject of the within hearing arise directly from the Notice of Hearing(NOH) prepared by Presenting Counsel.  On its face, the NOH raises the following legal issues:

                                    1.         Respondent violated the Ontario Human Rights Code (The Code);

                                    2.         Respondent created a “poisoned work environment”;

                                    3.         Respondents comments were “unwelcomed and vexatious”;

                                    4.         Respondent leered and oogled defendants who appeared

                                                before him in legal proceedings; and

                                    5.         Respondent has a prior record of misconduct and has displayed

                                                a pattern of conduct.

4.         The Hunt Report which the Hearing Panel has found constituted the “complaint in writing” makes no mention of the Code or items 1, 2, 3, and 5 above.

5.                                 The Investigators’ Report is the document submitted to the

                                    Complaints Committee by the investigators, Mr. Lindsay and

                                    Mr. Davis, who were retained on behalf of the Complaints

                                    Committee pursuant to section 8(15) of the Act to asssit in its

                                    investigation.  This Report contained new allegations which

                                    became known to the Complaints Committee as a result of

                                    the witness interviews conducted by the investigators in 2012

                                    during the Committee’s investigation of the Hunt Report

                                    allegations.       

                                                            Decision of Jurisdiction and Abuse of Process

                                                            at para 11

6.         The evidentiary record before the Hearing Panel is crystal clear that the Hunt Report, Investigator’s Report, the Complaints Committee’s letter dated January 2^nd, 2013 and the testimony of the 13 witnesses called by the Presenting Counsel did not assert any violation of the Human Rights Code by the Respondent.

                                                                   Hunt Report

                                                Investigators’ Report (five volumes)

                                                Transcripts July 15, 16, 17 and 18^th, 2014

Presenting Counsel Improperly

Invoked Sexual Harassment

And Human Rights Code

As Misconduct Ground:

7.         The evidentiary record is crystal clear.  Presenting Counsel in hearing 1 submitted five will-says. None of them used the term sexual harassment, vexatious, unwelcome or poisoned work environment. The five volume investigation transcripts reveal that the terms vexatious, unwelcome, poisoned work environment and conduct in violation or inconsistent with the Human Rights Code is not raised by Mr. Hunt or any witness.

8.         Indeed, Presenting Counsel was crystal clear in their written submissions on Disposition that no evidence was called on paragraphs 1-6.  The Panel was provided no evidence on the very serious and highly prejudicial legal conclusions of vexatious, unwelcome sexual harassment which created a poisoned work environment - which improperly invoked allegations the Panel was invited by Presenting Counsel to make findings of judicial misconduct on.

NOH, Hunt Report and

Investigators’ Report

generated a bona fide

question on jurisdiction

and abuse of process:

9.         Accordingly, notwithstanding the Hearing Panel’s finding that the Hunt Report satisfied the in-writing requirement of the Act the fact that the Complaints Committee discovered new allegations during their investigation of it raised a serious enough legal question that AJPO took an interest in the issue and supported the Respondent and the Hearing Panel properly sought legal advice on the question.  Clearly, it can not reasonably be said that this was a run-of-the-mill case or that the Respondent was required to overlook this irregularity as a pre-condition to support his claim for indemnification from the Attorney General.  This is what PC’s position amounts to. 

Procedure for Adjudication

properly decided by Hearing

Panel and not Respondent:

10.       The hearing commenced on July 4^th, 2013.  The Respondent properly served and filed a Motion Record, factum and Book of Authorities in support of his motion.  Presenting Counsel responded in like fashion.  The factums filed by both parties reveal that they were open to the idea of commencing the hearing and allowing for the consideration of the jurisdiction and abuse of the process to be adjudicated at the end of the evidence proper or for allowance to call further evidence in support of the motions.

11.       Presenting Counsel noted in their written submissions that the Hearing Panel could well have decided the two issues it noted in their decision on the motions as stand-alone legal issues in 2013.  Clearly, it was within the purview of the Hearing Panel to do that.

Panel permits expanded

grounds:

12.       Indeed, after hearing submissions from the parties on the issue the Hearing Panel ordered a blended hearing in June, 2014 and specifically allowed grounds 1, 3, and 6(3) on the motions to be adjudicated on a full evidentiary record.  In addition, the Hearing Panel expanded the grounds at para 76 of their Reasons on the motions, including, among other grounds, (e) memories have faded due to delay.

Foulds Overruled:

13.       The Divisional Court was crystal clear that the initial compensation decision which relied on Re Foulds 2013 was based on a false premise.  As such, the Panel can take great confidence in relying on the following line of cases from the JPRC – all of which endorse the fundamental principle articulated by Justice Otter in Re Romain 2002 that “Costs in the proceeding are not contingent on success.”

                                                Re Blackburn 1994 (Hogan J.)

                                                Re Romain 2002 (Otter J.)

                                                Re Obakata 2003 (Mocha J.)

                                                Re Sinai 2008 (Carr J.)

                                                Re Quon 2012 (Di Filipis J.)

                                                Re Kowarsky 2012 ( Hawke J.)

                                                Re Massiah 2012 (Vailencourt J.)      

14.       If anything legally relevant can be gleaned from Foulds on the issue of compensation it is their citing of one legal authority, namely, Reilly   v.  Alberta, 1999 ABQB 252.  The following is a proper and relevant point of law for the Hearing Panel’s consideration:

"Where the conduct in question related to the judicial function...the state 

should defray the legal fees required for the judge to defend himself or 

herself in order to preserve the independence of the judiciary".

Oogling and leering count

related to judicial function:

    

15.       Contrary to PC’s submission, based on the authority of Reilly supra this is precisely the type of case in which compensation is proper.  This is an allegation which by its very nature has grave potential to interfere with judicial independence and invites a strong defence. 

            The Hearing Panel must recall the evidence of NN* who said that it was so suttle that members of the public would not notice it and that at the time there was no intention by anyone to move forward with a complaint and in fact she would never bring such a complaint because, “The only time I would consider coming forward to complain about a judicial officer that I’m regularly in front of, is if I can demonstrate objectively by transcripts or something, a pattern of conduct.  An isolated incident, I would never do quite frankly.”

(at p.141 – July 18, 2014)

Quebec Court of Appeal

and Superior Court have

addressed the issue squarely:

16.       Two sound decisions from the Quebec Court of Appeal and the Quebec Superior Court address the issue of indemnification of judicial officers by the Attorney General 

for the cost of defending themselves in judicial misconduct proceedings – as we have here.

17.       [34]      In Hamann, relying, inter alia, on the Supreme Court of Canada decision in Valente   v. The Queen et al [1985] 2 S.C.R. 673, the Quebec Court of Appeal ruled as follows at paragraphs 12-15 of its reasons:

[TRANSLATION] The appellant argues that the Minister of Justice’s refusal to bear the respondent’s counsel fees does not infringe the principle of judicial independence since it does not affect the three essential components of that concept, security of tenure and financial security of the judges and institutional and administrative autonomy.  The Court, like the trial judge, is of the contrary opinion.  The Supreme Court, in Valente  v.  The Queen, clearly states that the rule of security of tenure means:

            “that the 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.”

The court is of the opinion that the right to be heard necessarily includes the right to be assisted by counsel.  In the case at bar, it is obvious that dismissal is a possible ultimate punishment for the actions charged against the respondent who, moreover, like any other person, had the benefit of innocence at the time the complaints were laid. The principle of security of tenure is therefore directly at issue in this case, as is the concept of the respondent’s financial security, in his capacity as a judge, since the out-of-court fees he may incur would in all likelihood exceed his income as a part-time municipal judge, a situation that is peculiar to this case.

Incidentally, in this case the Court is also of the opinion that it woud be unreasonable, pursuant to these concepts, that a judge could be obligated to defend himself at his own expense against an unscreened complaint in the nature of the one made by the Club juridique.

[35]      In Fortin, Lemelin J of the Superior Court of Quebec, at paragraph 31-33 of his reasons, expressed full agreement with the Court of Appeal in Hamann:

[TRANSLATION]  Viewed from this standpoint, the once that should be adopted, in the Court’s opinion, the Court sees no valid reason to suppress or reduce the objective constitutional gurantees of Judge Fortin.  He continues to have the right to defend his office without having his judicial independence compromised.  If he had to bear the costs of his defence, there is a risk that he could not do so for financial reasons or that he would choose to resign.  His independence would then have been compromised by the Minister’s refusal to pay the fees of his counsel.

No one should be able easily or conveniently to obtain the dismissal or sanction of a judge.  That is the very essence of the security of tenure of the judge’s position.  For that reason, the judicial system must provide Judge Fortin with reasonable resources to defend his position, not so much in his own interest but in order to avoid infringement of the security of tenure of the position.

                                                Bourbonnais    v.  A.G. Canada 2006 FCA 62

                                                  (Fortin and Hamann as quoted from)

18.       The legal principles articulated by both the Quebec Court of Appeal and the Quebec Superior Court are supported by the Federal Court of Appeal in Bourbonnais in the following words:

                                    There can be no doubt, as the Quebec Court of Appeal and

                                    Superior Court found, that the principle of judicial independence

                                    requires, in the context of a judge’s dismissal proceeding, that

                                    the judge be entitled to the payment of his out-of-court fees he

                                    will have to incur in defending himself.

19.                               “The argument of public policy leads you from sound law,

                                    and is never argued but when all other points fail.

                                                Burrough J. , Richardson  v.  Mellish (18240

                                                2 Bing 252

20.       The following is a list the reasons why PC’s “who should foot the bill test” is neither helpful or persuasive and indeed destructive to judicial independence as we know it:

                        1.         The complaint process is indeed a term and condition of office

                                    in a free and democratic society;

                        2.         Theoretically, a sitting judge or justice of the peace could be

                                    the target of an allegation of leering or oogling at anytime from

                                    anyone appearing before them;

                        3.         Judicial independence is prima facie compromised if the subject

                                    judge or justice of the peace is circumscribed in the manner and

                                    extent of their defence of the complaint;

                        4.         Both the Respondent’s security of tenure and financial security as

                                    a judicial officer were at issue in these proceedings;

                        5.         The Applicant earns roughly $122,000 per year and based on the

                                    costs associated with the first hearing could not reasonably

                                    afford to defend his office without indemnification from the

                                    Attorney General.  He was in fact indemnified by the

                                    Attorney General as the records at tab 10 show.

                        6.         “No one should be able easily or conveniently to obtain the

                                    dismissal or sanction of a judge.  That is the very essence of

                                    the security of tenure of the judge’s position. For that reason,

                                    the judicial system must provide Judge Fortin with reasonable

                                    resources to defend his position, not so much in his own

                                    interest but in order to avoid an infringement of the security

                                    of tenure of the position”. (Fortin  v. Ministre de la justice)

                        7.         Re Foulds was in essence a guilty plea.

                        8.         Re Johnson was in essence a guilty plea.

                        9.         Re Chisvin was in essence a guilty plea.

                        10.       Re Phillips was not a guilty plea but involved a judicial officer who was                                         found after a hearing to have obstructed the investigation of a police

                                    officer in the course of a lawful investigation.

                        11.       Caution must be headed so as not to create the appearance

                                    or suggestion that defending allegations of misconduct is

                                    somehow inconsistent with the public interest and that

                                    administrative frugality trumps the Rule of Law and

                                    judicial independence and security of tenure.

21.       IT IS RESPECTFULLY SUBMITTED THAT for the Hearing Panel to accept Presenting Counsel’s submissions on indemnification for the Respondent in this case and in all of the circumstances of this case is for the Hearing Panel to disregard established legal principles in Canada and England recognizing the practice of the Attorney General (not the public)indemnifying judicial officers for the cost of their defence in judicial misconduct proceedings, to interfere with the Respondent’s right to counsel of his choice and plain and simply unfair and unprecedented.

Motions:

22.       The Respondent repeats and relies upon his prior statements on this point.  At the end of the day the time spent on the motion was minor in the context of the entire proceedings.

 23.      Lastly, because the JPA and Procedures contain no basis to compel the Attorney General to compensate justices of the peace like J.P. Massiah as does the Courts of Justice Act there is no useful purpose in making an order for an assessment as suggested by the Divisional Court.  At best, the Panel can resort back to the clear established practice of indemnification and the flaws in the legislation can be saved for another day.

March 24^th, 2017.

  

E.J. GUISTE  & J. House, Co-counsel for the Respondent

NOTE:  These submissions were served and filed with the Registrar and Counsel to the Justices of the Peace Review Council on March 24th, 2017 in accordance with her communications of the Panel's order.  They are being published here as a public service.  The JPRC Hearing Panel has elected to depart from the traditional oral hearing mandated by the Act and Procedures for an in-writing only adjudication of the re-hearing ordered by the Divisional Court over J.P. Massiah's objections.  As these are matters of public importance, the people of Ontario have a right to know. 

 * A publication ban prohibits the use of this person's name.