The Investigation Transcripts and Hryciuk Error Not Before the Divisional Court

Excerpt from JP's Appellate 
Counsel's Factum:

3.   While that proceeding was underway, staff in the Whitby courthouse called Presenting Counsel and alleged that similar incidents had occurred, prior to and in the same time frame, while the Applicant was sitting in their court.  Presenting Counsel sent those allegations to the JPRC, and this letter was treated by the JPRC as a new "written complaint".  That "complaint" was investigated by a Complaints Committee, resulting in five volumes of investigation transcripts, which the Panel treated as an "investigators' report."


Excerpt from the 
Hearing Panel's  Decision
on Jurisdiction Motion:

66.   .....The transcripts from the witness interviews conducted in 2012 during the investigation were filed as part of the Record by His Worship.

67.   We further conclude that the Complaints Committee had the authority to consider the new allegations in those transcripts within its mandate under s.11(7) of the Act and pursuant to the ruling in Sazant, (supra), as an extension of the complaint filed by Mr. Hunt.

88.   The law on the process which is to be followed when new allegations arise during a hearing on judicial misconduct is well settled.  The Ontario Court of Appeal determined the law in 1996 in a case involving Judge Hryciuk of the provincial criminal court.

89.   Section 11 of the Act mirrors the legal framework of the Courts of Justice Act which was determined to be mandatory in Hryciuk.  It is this section which governed the actions of Mr. Hunt and the Justices of the Peace Review Council when it received the Hunt Report in November 2011.  As determined above, it received those allegations as a new complaint and established a Complaints Committee to consider them.  His Worship was informed of the new allegations during his first hearing.

91.   When the Complaints Committee completed its investigations and consideration, it invited Justice of the Peace Massiah to respond.  Having been given an opportunity to respond, Justice of the Peace Massiah did so.

Excerpt from JP's Bias Factum:
Erroneous Instruction on 
Hryciuk by Presenting Counsel

23.       At paragraph 24 of their March 13^th, 2014 submissions Presenting Counsel 

made the following erroneous legal submission to the Hearing Panel regarding the 

legal holding in Hryciuk  v.  Ontario 31 O.R. (3d) 1 (C.A.):

“The case demonstrates the propriety of the Hearing Panel 

(or in that case the inquiry judge)  considering whether the 

Screening process contemplated in the legislative framework

 has been satisfied.  If the statutory scheme was complied with 

- i.e. a person made a written  complaint to the Council; the 

complaint was investigated by a complaints committee; the

complaints committee determined that as a result of its 

investigation that there were allegations of judicial misconduct 

which had a basis in fact which, if believed, could result 

in a finding of judicial misconduct; the particulars of the 

allegations against the respondent which be be the subject of 

the hearing were sout out in a Notice of Hearing; and the complaints

committee had jurisdiction to order those allegations to a hearing – 

then the Hearing Panel can be satisfied that it has the jurisdiction 

to proceed to hearing the evidence in relation to those allegations.  

If His Worship seeks to argue that the complaints process should be 

different (eg his response should be shown to witnesses; or a complaints 

committee should not order a public hearing in circumstances where the 

allegations have a basis in fact, which, if believed, could result in a 

finding of judicial misconduct), then he can pursue his remedy if and when 

he chooses to apply for judicial review of any disposition made by the Hearing Panel.”

JP's Appellate Counsel at ONCA:

"The Divisional Court Decision is inconsistent with decisions of this Court and the CJC

in upholding findings of misconduct and the moving party's removal that were based

on allegations dismissed by the Complaints Committee and at least seven general 

allegations that were never considered or pre-screened by the 

Complaints Committee."

62.   The Divisional Court's ruling undermines this Court's decision 

in Hryciuk and the governing statute by permitting judicial discipline 

bodies to employ broadly drafted Notices of Hearing containing 

particulars that have never been considered by the Complaints Committee.

13.   Paragraphs 17, 61 and 62 of the moving party's factum cite at lease seven

broad allegations that were introduced by Presenting Counsel in the notice of

hearing for the first time after the investigation by the Complaints, and on 

which the 2012 Panel made findings of judicial misconduct.

Commentary and Analysis:

   It is unquestionable that the investigation transcripts are relevant evidence 

in support of some of the JP's strongest legal arguments in support of his 

contention that he was wrongly removed from office.  

   They include the following:  1.  Presenting Counsel's Notice 

of Hearing contained allegations which were not part of any complaint and were 

never investigated by the complaints committee contrary to Hryciuk  v.  Ontario 

and the constitutional principle of judicial independence and in particular the 

security of tenure.  Appellate counsel's submissions on Hryciuk at ONCA appear 

to have been wrongly placed and should have been made before the Divisional Court 

for them to have any value to the JP.   JPRC counsel raised no objection to 

what would clearly have been a new ground of appeal not advanced at Divisional

Court.  

   Some may argue that the JP was dealt with fairly in spite of this and other 

serious irregularities in the proceedings before the Divisional Court.  Clearly, 

such arguments overlook the very serious role that the very appearance of 

fairness, impartiality and integrity play in our administration of justice.  

Yet others may argue for punishment, banishment and censorship of counsel 

for doing that which counsel in our system is sworn to do - defend.  

NOTE:  This piece is published here to draw attention to an issue of public

importance.  The removal of a judicial officer and the various issues raised

in this case are issues of public importance. If anything stated here is 

incorrect please bring it to my attention.