Monday, April 24, 2017

Who was the "Complainant" in the Third JP Removal Case Under The Access to Justice Act Amendments

   One of the goals of the Access to Justice Act, 2005 was to expand the functions of the Justices of the Peace Review Council to improve the complaints process and make it more effective.  Since its coming into law in 2006 three justices of the peace have been removed from office and three have resigned their office prior to a disposition - representing a marked and substantial increase in the removal rates of justices of the peace in Ontario.  It would appear that more justices of the peace have been ordered removed from office or voluntarily resigned their office in the past ten years than ever before in Ontario.  This alarming rise in the removal of judicial officers is a matter of public importance.

   In Re Massiah (2015) a hearing panel chaired by part-time and since retired Justice Livingstone of the Ontario Court of Justice recommended removal from office to the Attorney General.  The hearing panel ruled after some 23 days of hearing that prior Presenting Counsel, Mr. Douglas Hunt, Q.C.'s report to his instructing counsel, the Registrar and Counsel to the Justices of the Peace Review Council was the complaint and that the Notice of Hearing dated May 31st, 2013 drafted by current Presenting Counsel, Ms. Marie Henein provided their jurisdiction to proceed with a hearing - thereby
exceeding their jurisdiction by ruling on matters raised in the Notice of Hearing for the
first time and which were not pre-screened or investigated by the Complaints Committee
as mandated by Hryciuk  v.  Ontario - totally disregarding my legal submissions made as early as July, 2013 on behalf of the subject judicial officer.

   In its recent decision (2016 ONSC 6191) on a judicial review application brought in the
case Justice Nordheimer of Ontario's Divisional Court wrote the following:

[42]   It bears repeating that the role of a judicial office holder is different than any other professional position.  It was described in Re Therien [2001] 2 S.C.R. 3 by Gontheir J., at para. 108:

The judicial function is absolutely unique.  Our society assigns important powers and responsibilities to the members of its judiciary.  Apart from the traditional role of an arbiter which settles disputes and adjudicates between between the rights of the parties, judges are also responsible for preserving the balance of constitutional powers between the two levels of government in our federal state.  Furthermore, following the enactment of the Canadian Charter, they have become one of the foremost defenders of individual freedoms and human rights and guardians of the values it embodies.

[52]   Second, where a Provincial Attorney General makes a complaint against a federally appointed judicial officer, a hearing is mandatory.  While the same provision does not apply in the cases of judges of the Ontario Court of Justice or of justices of the peace, the prospect of a complaint emanating from the Government is, nonetheless, a real one. This possibility is of some significance given that one of the most important roles performed by judicial officers is to stand between the state
and the citizen, in terms of application of government powers. This role is referenced in the earlier statement I quoted from Re Therien.  Judicial officers are therefore exposed not only to the vagaries of complaints by citizens but also to those of government.

Who is Douglas Hunt, Q.C. ?  (The "complainant")

- Former Assistant Deputy Attorney General for Ontario
- Former lead counsel to the two complainants at the Inquiry into the Conduct of Judge Hryciuk
- Presenting Counsel in Re Massiah 2012 when he sent his report to his instructing
counsel, Ms.  Marilyn King, who is also the Registrar of the Justices of the Peace Review Council
- Counsel of record for the Law Society of Upper Canada in 2007 ONLSHP 27 (Canli)
- Co-counsel with Mr. Michael J. Meridith* in  A Complaint Re Hon. Justice Douglas (2006)
- Law partner with Presenting Counsel, Marie Henein's spouse from 2005 - 2011**

Did Mr. Hunt intend to make a complaint about the conduct of my client ?

Exhibit 30A:

Dear Ms. King:

Re: Complaint Respecting His Worship Justice of the Peace Massiah
And Re:  Report dated November 1, 2011

Please find enclosed Report to the Justice of the Peace Review Council dated November 1, 20111.

Yours very truly,

Andrew D. Burns
cc. Douglas C. Hunt, Q.C

Exhibit 30B:

November 3, 2011

Dear Mr. Hunt:

RE: Justice of the Peace Review Council

This letter acknowledges receipt from your office of a Report, dated November 1, 2011
containing transcripts of new interviews relating to the conduct of His Worship Errol

I am writing to confirm whether the information has been forwarded for the Council's
consideration as a new complaint ?

Thank you.

Yours truly,

Marilyn E. King.

Exhibit 30C:

November 3, 2011

Dear Ms. King:

RE: Complaint Respecting His Worship Justice of the Peace Errol Massiah
And Re:  Report dated November 1, 2011

Thank-you for your letter of today's date seeking clarification concerning the Report
dated November 1, 2011.

During the public hearing into the conduct of Justice of the Peace Massiah, the Law
Times published an article dated October 10, 2011 entitled, "JP accused of sexually
harassing six court clerks - But Errol Massiah says female staff misinterpreted his
manner" (the "Law Times Article").

As a consequence of the publication of the Law Times Article, we, as a result of our
appearance as Presenting Counsel, received calls from a number of individuals who
work at the Courthouse located at 604 Rossland Road in Whitby.  Those individuals
provided information regarding their interactions with Justice of the Peace Massiah.

We do not believe that this information would be admissible at this stage in the present
hearing.  However, it has been brought to our attention by members of the public and
therefore we are submitting it to the Council for its consideration.

The Report contains the information that we received.

Yours very truly,

Douglas C. Hunt, Q.C.
cc. Andrew Burns

Presenting Counsel on 
Who is the Complainant:

1.   "The essence of the Applicant's complaint is not that it was not provided in writing
but rather that the complaint was forwarded in writing by Mr. Burns rather than each
of the five witnesses. There is no statutory limitation on how or by whom a written
complaint may be brought forward to the Review Council."
[Presenting Counsel Factum July 19, 2013 at p.4]

2.   In direct response to the following question: 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." (Presenting Counsel's letter dated January 14, 2014)

3.   "The material provided by Mr. Hunt to the Council unequivocally constitutes 
complaint in writing."
[Reply Written Submissions of Presenting Counsel on Liability - at p.3]

Hearing Panel on
Who is the Complainant:

[19]   With no evidence to the contrary, we find that, despite being a Presenting Counsel
in a hearing of the Review Council that was underway to consider particular allegations,
Mr. Hunt was acting in the role of "any person" pursuant to s.10.2(1) of the Act, when
he spoke with and had interviews conducted with the original five people from the
Whitby courthouse who contacted him with new information about His Worship's
conduct at that location. He then filed his report with the Review Council.

[22]   We also conclude that Mr. Hunt was the complainant.  Therefore, the complaint
was not anonymous.
[Decision on Jurisdiction and Alleged Abuses of Process, January 12, 2015]

[29]   There is no requirement in the statute nor in the Procedures that a complaint must
be signed to be valid.  Nonetheless, we note that Mr. Hunt, the complainant, signed the
letter of November 3, 2011 that was filed as Exhibit 30A.

[38]   As we have stated earlier, none of the witnesses was the complainant.
Whether they intended to make a complaint is irrelevant.

[40]  No evidence was led as to whether Mr. Hunt was advised by the Complaints
Committee of its disposition of the complaint.

* Mr. Meridith was retained by the Justices of the Peace Review Council to investigate the
complaint which Mr. Hunt was Presenting Counsel on involving H.W. Massiah.

** This fact recently came to light and is the subject of a fresh evidence motion before a JPRC
Hearing Panel

NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance. The removal of a judicial officer is an issue of public importance in Ontario and indeed throughout the free world.

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