Saturday, July 8, 2017

J.P. Foulds June, 2017 and Massiah 2015* Exposes Unconstitutionality and Attorney General Mis-step

   Re His Worship. Foulds 2013 is the Justices of the Peace Review Counsel's(JPRC) case in which that tribunal's policy of requiring justices of the peace in Ontario to "foot their own bill" was established.

   Both the JPRC's 2013 decision and the recent pronouncements in Re His Worship Foulds  June 21st, 2017 - where H.W. Foulds confirmed to the hearing panel seized with his current matter that he has been unable to retain counsel provides clear and compelling evidence that the Notice of Constitutional Question brought by J.P. Massiah in March, 2017 is sound and worthy of judicial consideration.

   J.P. Massiah's Notice of Constitutional Question asserts that the Justices of the Peace Act and its Procedures Document is unconstitutional because -

1.  Justices of the Peace in Ontario are denied security of tenure because Presenting Counsel is granted unfettered discretion to draft a Notice of Hearing which could exceed and potentially have no relationship to the "complaint in writing" which is the initiating jurisdictional document;

2.  The existing system of indemnification has the potential to interfere with a justices of the peace's right to counsel in that it compensates some judicial officers and not others in an arbitrary manner which creates an unfettered discretion whereby lawyers may be faced with potential discipline and non-payment for simply discharging their duties as lawyers - as were counsel E.J. Guiste and Jeff House. Mr. House was not referred to the Law Society for discipline.  Furthermore, the Attorney General is not compelled to pay on any recommendation under the Justices of the Peace Act as is the case with recommendations to compensate for the legal costs incurred by Ontario Court of Justice judges under the Courts of Justice Act.

   Readers will recall that His Worship Fould's hearing was adjourned on February 14, 2017 to June 20th, 2017 in order to allow him to retain counsel to defend the judicial misconduct allegations brought against him.

   It ought to be clear to our law and policy makers in Ontario that it is not enough that justices of the peace in Ontario have an illusory right to counsel to defend themselves in judicial misconduct proceedings through the "foot their own bill policy". The Rule of Law and the constitutional principle of Judicial Independence is meaningless if our justices of the peace can be subject to complaints of judicial misconduct and removal from office without actually being able to have counsel to defend their offices.  The "foot their own bill" policy may sell newspapers and resonate with some constituents in the community who are fixated on the goal of curbing runaway government spending at any cost but it is not by any means sound law.

The Toronto Star Calls
for Public Funding:

   Yesterday The Toronto Star published an editorial calling for the Ontario Government to fund families at inquests into police shootings. In a succinctly worded piece recognizing the significant public interest role played by counsel representing the victims of police shootings that paper advocated for the Ontario Government to provide public funding to enable these families to retain counsel to advocate this important perspective at inquests. In making this point The Toronto Star raised the following question: So why would the government appear to  be committed to funding a system that isn't designed to challenge the SIU or police officers ?

   Clearly, the same question can and should be raised with respect to the Justices of
the Peace Review Council's "foot-your-own bill" policy with respect to the Attorney
General providing funding to enable Justices of the Peace to defend their office at
judicial misconduct hearings.  This is not revolutionary rhetoric from E.J. Guiste.
Indeed, the United Nations policies call for proper funding of the administration of
justice for such matters.  Why would the government appear to be committed to
funding a system that isn't designed to allow justices of the peace in Ontario access
to counsel to defend allegations of judicial misconduct ?

   The question is even stronger in the specific case of J.P. Massiah.
Why would the Attorney General pay counsel for J.P. Massiah in his
first hearing directly and then not pay counsel in his current proceeding after a
hotly contested hearing which saw the Association of Justices of the Peace of Ontario,
The Toronto Star and The Sun granted intervener status ?

Divisional Court Found
Foulds 2013 Based on 
Flawed Premise:
(Massiah 2015*)

[49]   In my view, the 2012 Panel started from a flawed premised, 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 costsof a judicial officer who has 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).

Attorney General Silent ?:

   The more pressing question is why are the legal costs of some J.Ps covered by the Attorney General and not others ?  Why were J.P. Massiah's legal costs paid to his lawyers directly by the Attorney General following his first proceeding but not in the second ?  Why did the Attorney General or Government of Ontario fund the prosecution of two judicial misconduct proceedings on J.P. Massiah when the second was based on similar facts which pre-dated the first disposition, clearly exceeded what was found to be the complaint and disregarded established legal principles involving among others Hryciuk  v. Ontario and the Human Rights Code jurisprudence from the Court of Appeal for Ontario and the Divisional Court ?

Not a Single
Public Complaint:

   This is troubling especially when one considers that not a single member of the public has filed any complaint against J.P. Massiah. The first complaint came from the Director of Court Operations at the Ministry of the Attorney General and was copied to the Deputy Attorney General - now counsel to Henein Hutchison LLP and the second complaint came from Mr. Doug Hunt, Q.C. - Presenting Counsel in J.P. Massiah's first hearing and according to fresh evidence recently put before the Ontario Court of Appeal* - a former Assistant Attorney General for Ontario and a law partner with current Presenting Counsel's spouse in and around the time of his complaint to the JPRC.

Attorney General at ONCA:
(Massiah v. JPRC)

[35]   The Attorney General submits that the statutory purpose of the Justices of the Peace Act is best achieved , not through the application of presumptions for or against compensation for legal costs incurred to respond to discipline proceedings, but through an objective and principled weighing of factors relevant to public confidence in the administration of justice.  Foulds  provides this set of factors and it was reasonable for the 2012 Hearing Panel to consider and apply it.

Ministry of the Attorney
General Act, R.S.O. :

s.5   The Attorney General,

(a)   is the Law Officer of the Executive Council;

(b)   shall see that the administration of public affairs is in accordance with the law;

(c)   shall superintend all matters concerned with the administration of justice in Ontario;

(g)   shall advise the heads of the ministries and agencies of Government upon all matters of law connected with such ministries and agencies;

(h)   shall superintend all matters connected with judicial offices;

Blacks Law Dictionary:

   To have charge and direction of; to direct the course and oversee the details; to regulate with authority; to manage; to oversee with the power of direction; to take care with authority.

About the author:

E.J. Guiste is a Catholic lawyer of African-Canadian descent in Toronto, Ontario.
He authored "A Catholic Lawyer's Prayer" as a result of his struggles in 
defending J.P. Massiah. He is a strong advocate for the Rule of Law and the
fundamental principle of Judicial Independence - without which Ontario is no
better than the "Banana Republics" that we have become so proud of sending
foreign aid to.

Mr. Guiste is once again counsel to J.P. Massiah in proceedings before the Ontario
Court of Appeal seeking to set aside the JPRC Hearing Panel's findings of liability
and penalty on among other grounds that the "record of proceedings" filed with the
appellate courts was deficient and prevented appellate consideration of the issues
of jurisdiction and abuse of process raised as well as the constitutionality of the
Justices of the Peace Act generally as was well as its application in the case.

A motion filed with the Court of Appeal for Ontario on June 30th, 2017 asks that 
court to determine whether the JPRC's counsel are in a conflict of interest.
Evidence in support of the motion shows they drafted the subject Notice of Hearing
, presented the case before the Hearing Panel, and failed to call Mr. Hunt,
the complainant at the subject hearing - in circumstances where fresh evidence reveals
that current Presenting Counsel's spouse was a law partner in Mr. Hunt's law firm -
thereby depriving J.P. Massiah of confronting the complainant on his intention to
complain about his conduct only to vigorously defend their actions in the 
appellate courts in a tone and manner inconsistent with the Court of 
Appeal for Ontario's ruling in Ontario (Children's Lawyer)  v.  Ontario 
(Information and Privacy Commissioner) 75 O.R. (3d) 309 [2005] O.J. No. 
1426 (ONCA).

Mr. Guiste believes that the issues in this case are issues of public importance and that
transparency and full disclosure is in the public interest and part of his duty as a lawyer
in a free and democratic society. This publication is made in the good faith belief that
justice must be seen to be done.

NOTE:  The issues raised in this publication are issues raised in a motion filed by E.J.
Guiste on behalf of J.P. Massiah in Ontario Court File No. M47083 on June 30th, 2017.
These issues are awaiting disposition and have yet to be judicially pronounced upon.