Sunday, March 26, 2017

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



Justice of the Peace in the
Central East Region


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

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
                                                            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 2nd, 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 18th, 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 4th, 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

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.


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 24th, 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.

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