Friday, April 7, 2017

Registrar's *Fresh Evidence on Statutory Compliance Points to Unfairness In JP Removal Case

Excerpts from Presenting Counsel's
Factum on Jurisdiction: (July 2013)

Justices of the Peace Review Council


The function of the Review Council are,

a.   to consider applications for the accommodation of needs, made necessary by disability;

b.   to establish complaints committees from among its members to review and
investigate complaints;

c.   to review and approve standards of conduct which may be established for justices of
the peace;

d.   to deal with continuing education plans for justices of the peace;

e.   to decide whether a justice of the peace may engage in other remunerative work.

Tab B - Justices of the Peace Review Council - Procedures Document

Complaints Committees - Notice of Decision 

Decision communicated

The Review Council shall communicate the decision of the complaints committee to
both the complainant and the subject justice of the peace.  If the Review Council
decides to dismiss the complaint or dispose of the complaint by providing advice to
the justice of the peace or if the complaint is referred to the Chief Justice, it will
provide brief reasons.

In accordance with the instruction of the complaints committee, the Registrar drafts the letter to the complainant advising him or her of the disposition of the complaint.  This draft letter is circulated for approval of the complaints committee.  After the draft letter to the complainant has been approved, it is prepared in final form and sent to the complainant in accordance with section 11(3).

The Justice of the Peace Review Council will provide a copy of the disposition letter to the justice of the peace who was the subject of the complaint in circumstances where he or she was advised of the complaint due to the fact that a complaints committee of the Review Council has sought a response from the justice of the peace to the complaint.

In circumstances where the complaint is dismissed and a response was not sought from the justice of the peace, the Review Council will provide a copy of the disposition letter to the justice of the peace complained of, subject to instructions from the justice of the peace to waive such notice.  The Review Council has distributed an instruction form to all justices of the peace to sign and complete, instructing the Review Council whether the individual justice of the peace wishes to be advised of complaints made against them which are dismissed.  The Review Council has also distributed an address form for all justices of the peace to sign and complete, instructing the Review Council of the address to which correspondence about complaint matters should be sent.

Application of S.P.P.A

The Statutory Powers Procedures Act applies to any hearing by the Review Council
with the exception of sections 4 and 28 of that Act.  Because of these exceptions, no
procedural requirement may be waived, even with the consent of the parties and/or the
hearing panel and strict compliance is required with respect to the content of forms,
notices and/or documents.

J.P.'s Objection on Failure to Report to Complainant(s)

28.   Should "the complaint" be referred to a complaints committee, the committee must
report to the complainant that it has received "the complaint."  It must also report to "the complainant" as to its disposition of the matter.  It is submitted that none of the 
witnesses testified they had received communication from the complaints 
committee that their "complaint" has been received, or as to the manner 
in which the complaints committee disposed of their "complaint", 
contrary to the requirements of the statute. 

Presenting Counsel's Factum on Liability (Reply at p.10)

21.   His Worship complains (Tab 1, para 28) that none of the "complainants" have been
notified as to the "disposition" of the complaint, pursuant to s.11(3) of the Act.  That, of
course, is because there has been no disposition as yet.  In any event, this is a measure
intended to benefit complainants and assist in storing public confidence; it has nothing
to do with procedural fairness for His Worship.

Excerpts from Presenting Counsel's 
Letter Dated January 14, 2014:

"With respect to you January 7th e mail, I have quoted below and have done my best to

"Please clarify for me as to who is the complainant or complainants in 
this case. Is it Presenting Counsel or the people he took will-says from ? "

"The "complainants" in this case are the people who are expected to 
testify about alleged misconduct by His Worship."

Excerpt of oral argument
on jurisdiction issue
April 9th, 2014:

JUSTICE CUTHBERTSON:  Sir, would you narrow that ?  My question was, where is the
section that says it must be the complainant ?  You said there was something here that
alludes to that.

MR. GUISTE:  "The complaints committee shall report in a timely manner 
to the complainant that it has received the complaint and it shall report in a
timely manner to the complainant on its disposition of the matter."

Sir, this didn't happen here.

Registrar's *Fresh Evidence

I, Marilyn E. King, of the City of Toronto, in the Province of Ontario, MAKE OATH AND SAY:

3.   One of my responsibilities as the Registrar is to communicate information on behalf
of the JPRC to a complainant about the disposition of his or her complaint.

4.  As Registrar, I communicated information to Mr. Douglas Hunt about the disposition
of his complaint.

5.   On July 4, 2013, I wrote a letter to Mr. Douglas Hunt to advise him that the
complaints committee had investigated and considered the complaint that he
transmitted to the Review Council about His Worship Errol Massiah.  I informed
him that the committee had ordered a formal hearing into his complaint pursuant to
section 11(15)(c) of the Act, and informed him of the criteria that are in the Council's
Procedures for ordering a hearing. He was provided with a copy of the Notice of
Hearing setting out the allegations that would be the subject of the Hearing Panel;
informed that His Worship had brought a motion to challenge the process and when
the motion would be heard; that Ms. Marie Henein was retained as Presenting Counsel;
and that he would be contacted if his attendance was required.  A copy of the letter to
Mr. Hunt is attached as Exhibit "A".

Sworn August 19, 2016

Marilyn E. King

Prejudice to the Justice of the Peace:

No evidence was led from Mr. Hunt by Presenting Counsel.  It could not be said that
it was for the Justice of the Peace to call Mr. Hunt in order to establish the intent of his
privileged letter to his instructing counsel.

It is clear that had the statutory requirements of the Act been satisfied
and communicated to the JP and his counsel at the outset and not after the findings of
liability and penalty the JP and his counsel could have confronted Mr. Hunt in order to
establish the intent behind his privileged letter to his instructing counsel and the
incongruence between his report and the Notice of Hearing.

Clearly, it stands to reason that Presenting Counsel would not have informed counsel
for the J.P. that the witnesses are the complainants if she had this letter.  More
significantly, the J.P. and his counsel would not have questioned each witness on their
intention to make a complaint and would have questioned Mr. Hunt instead.

It is interesting to note that in the JP's first proceeding Mr. Hunt called the complainant
to testify at the hearing. At this time investigations are being conducted to determine
whether the Registrar wrote a letter to the complainant in the first proceeding
acknowledging receipt of her complaint and another letter informing her of the
disposition. Her complaint became a judicial misconduct complaint only because it
was too untimely to be dealt with under the WDHP Procedure. Indeed, she testified
that the statements she took which ultimately ended up at the JPRC was for this
purpose.(see Transcript of September 29th, 2012 at p. 59)

While the Registrar has by way of what could be characterized as new evidence
tried to establish that she wrote a letter to Mr. Hunt informing him of the complaints
committee's disposition of the complaint, no letter acknowledging receipt of the
complaints by the complaints committee has been disclosed to date. Mr. Hunt
sent a letter to his instructing counsel submitting information.  The Registrar
wrote him back for clarification as to whether his report was a new complaint.
Mr. Hunt did not say that it was. He said information was brought to his attention
by the public and he is submitting it for her consideration.

*Is this really "fresh evidence" as that term is defined in our jurisprudence ?  Was any
reason provided for its very late disclosure ?  An order from the Divisional Court
permitting the admission of this evidence has not been located despite determined
efforts by a hired process-server to locate same in the court file. However, a letter
dated September 13, 2016 - two days before the Divisional Court hearing, by the JP's
appellate counsel before the Divisional Court states: "The applicant's position is that this
letter, written by and clearly available to the respondent JPRC prior to the hearing under
review, clearly does not satisfy legal requirements for the admission of fresh evidence.
Nevertheless, after assessing its significance, and in the interests of expedition, the
applicant does not oppose the filing of it. I would ask that paragraph 48 of the applicant's
factum be corrected to read as follows, to conform to what we now know":

48.   The Panel had no evidence before it that the Complaints Committee had reported
its disposition to Mr. Hunt or anyone else, despite the requirements of s.11(3) of the 
Act and page 5 of the JPRC's Procedures. The Panel rejected Presenting Counsel's
argument that there had been no "disposition" at that stage, but treated the notification
requirement as irrelevant and outside its jurisdiction.  After the commencement of this
judicial review application, the JPRC produced a letter from the Registrar to Mr. Hunt
dated July 4, 2013, notifying him of the Complaints Committee's disposition.

The September 13, 2016 letter written by the JP's appellate counsel before the
Divisional Court is not referenced by the court in its reasons dated October 4th 2016
and is not referenced in the Divisional Court order dated October 4th, 2016. The JPRC's
own factum before the Divisional Court dated June 2nd, 2016 was not amended and
made no reference to the letter or the Registrar's affidavit introducing it. It simply asserts
that no evidence was called to show whether there was a report to Mr. Hunt and no evidence
was called to show that he did not receive the information.

NOTE: This piece is written in order to draw attention to an issue of public importance.
The removal of a judicial officer from office is an issue of public importance in the free
world.  The manner in which it is carried out is vitally important in the free world. Too
many young men and women lost their lives in order for us to enjoy the fundamental
rights around these issues for debate on this issue to be censored.

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