Wednesday, December 13, 2017

Was JP Removal Constitutional ? Notice of Constitutional Question Filed in Divisional Court

 (Filed in Divisional Court – Dec.4th/17)
 Divisional Court File No. 316/15        
 ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT

ERROL MASSIAH
Applicant/Moving Party

-and-


THE JUSTICES OF THE PEACE REVIEW COUNCIL and THE LIEUTENANT GOVERNOR BY AND WITH THE ADVICE AND CONCURRENCE OF THE EXECUTIVE COUNCIL OF THE LEGISLATIVE ASSEMBLY FOR THE PROVINCE OF ONTARIO and THE ATTORNEY GENERAL FOR ONTARIO
Respondents


NOTICE OF CONSTITUTIONAL QUESTION

1.         The Applicant, His Worship Massiah, as he was prior to his removal from judicial office, intends to question the constitutional validity of ss. 8(10), 10.2(1), (2), 11(16), 11.1(1), (2), 11.1(7), 11.1(10) and the Justices of the Peace Review Council Procedures Document authorizing Presenting Counsel to draft a Notice of Hearing and to prepare and present the case against a respondent, Justice of the Peace.  The question is to be argued on Tuesday, April 3rd, 2018 at 10 .A.M. as part of part of the Applicant’s Rule 59 Motion currently before the court or a date that is mutually convenient to the parties and the Court.

The following are the material facts giving rise to the constitutional question:

1.   There exists a conflict between the Justices of the Peace Act, R.S.O. 1990, sections 10.2(1),(2), 11(15), 11(19), 11.1(1), 11.1(10) and the JPRC Procedures Document authorizing Presenting Counsel to draft a Notice of Hearing with no oversight or review by the Complaints Committee which ordered the hearing unlike the case with Provincial Court judges therefore allowing the Applicant and indeed justices of the peace generally to be removed from office based on a Notice of Hearing which has no relationship to the complaint in writing stipulated by s.10.2(1) of the Act.

2.   This conflict between the Act and the Procedures Document provided Presenting Counsel retained by the JPRC with an unfettered discretion which violated the Applicant’s  judicial independence and security of tenure and indeed any justice of the peace subject to a complaint of judicial misconduct under the said statutory regime.

3.   The Applicant was removed from his judicial office not based on the upholding of a “complaint” in writing, as that term is used in the Act, but based on the hearing panel’s finding that allegations in Presenting Counsel’s Notice of Hearing was made out on a balance of probabilities.  Several allegations in the said Notice of Hearing were never part of what the hearing panel determined to be the “complaint” twenty months after the issuance of the Notice of Hearing.

3   The recommendation to remove the Applicant from judicial office was made by a hearing panel chaired by a per diem judge of the Ontario Court of Justice as that term is used in the Courts of Justice Act and composed of two judicial officers who were “temporary members” as defined by the Justices of the Peace Act. The enabling legislation and Procedures Document allows for only one “temporary member” on a hearing panel. The status of the two judicial officers were disclosed to the Applicant by the Registrar of the Justices of the Peace Review Council on or about March 8th, 2017.

4.  Pursuant to s.11.1(1) the chair of the Review Council established a hearing panel composed of the following individuals:
                                    1.         Chair, Justice D. Livingstone;
                                    2.         His Worship Cuthbertson; and
                                    3.         Ms. Margot Blight, Lawyer.

In addition to Justice Livingstone being a per diem judge as that term is used in the Courts of     Justice Act and thereby requiring the consent of the Attorney General to sit as a judge, the Review Council disclosed on March 8th, 2017 that Justice Livingstone and His Worship Cuthbertson were both appointed as “temporary members” of the Review Council and that documents evidencing those appointments are private and not disclosable to the Applicant or the public contrary to the Open Court Doctrine.  In this case, the fact that the two judicial officers sitting in judgment of him were “temporary members” and not “members” of the Review Council or a “member” and a “temporary member” as stipulated by the Act and Procedures Document was unknown to him until March 8th, 2017 – well after he was removed from judicial office and denied indemnification for the cost of defending his office.

5.   In a sworn affidavit dated dated August 14, 2017 counsel for the JPRC disclosed an “agreement” between himself and counsel acting for the Applicant on his judicial review application of the decisions of the JPRC hearing panel to depart from the Open Court Rule and not formally file relevant documents which ought to have been part of the tribunal’s record of proceedings on the judicial review application thereby depriving the Applicant to a fair and impartial hearing of his review of the recommendation for removal and non-compensation for legal costs by the JPRC hearing panel and the Order-in-Council removing him from judicial office and consequently violating his constitutional right to judicial independence and security of tenure.          

6.         The Applicant asserts in his Rule 59 motion filed in the Divisional Court that he was denied to right to effective assistance of counsel before the Divisional Court and consequently his right to fair and impartial review of the decisions of the JPRC hearing panel and the issues raised herein were not raised or adjudicated upon by the Divisional Court.

The following is the legal basis for the constitutional question:

1.         The position held by the Applicant as a Justice of the Peace is protected by the constitutional principle of Judicial Independence.

2.         The Applicant and indeed all judicial officers have a constitutional right to defend  complaints of judicial misconduct made against them and to have those complaints adjudicated in a fair and impartial hearing by an independent tribunal.  The Chair of the hearing panel being a per diem judge who required the consent of the Attorney General to preside combined with the fact that both judicial officers on the hearing panel were “temporary members” of the Review Council denied the Applicant of a fair and impartial hearing by an independent tribunal.

3.         The Constitutional Principle of Judicial Independence provides the Applicant with security of tenure – a fact that is reflected in s.11.2 of the Act but is rendered moot or illusory by the unfettered discretion granted Presenting Counsel in drafting the Notice of Hearing and then aggressively defending the JPRC decision on judicial review, and defining and filing the record of proceedings pursuant to s.10 of the Judicial Review Procedures Act.

4.         The financial component of judicial independence guarantees judicial officer like the Applicant of financial security and this financial security includes the right to indemnification by the Attorney General for Ontario for defending his office – especially where the attack on the office stems not from the public per se but from Presenting Counsel who under the JPRC Procedures Document and established jurisprudence are required to be impartial and independent.

5.         The Applicant was required to defend allegations in a Notice of Hearing prepared by counsel retained by the Review Council to present the case against him which Notice of Hearing raised allegations that he violated or acted contrary to the Human Rights Code and were not part of the complaint in writing filed with the Review Council against him.

6.         Justices of the Peace unlike Provincial Court Judges do not have the benefit of a compulsory payment clause like s.51.7(8) of the Courts of Justice Act thereby depriving them of one of the objective conditions or guarantees mandated by the financial security provision of the constitutional principle of judicial independence, access to counsel and indemnification for the cost of defending their office.

7.         Although s.9(6) of the Justices of the Peace Act and s.6(1), (2) and (3) of the Procedures Document clearly mandate respect for the Open Court Rule and expressly states the following:

                                    Recognizing the role that the complaints process has in
                                    maintaining and restoring public confidence, and that the
                                    legislative requirements for maintaining privacy no longer
                                    apply for formal hearings under s.11.1 of the Act, once
                                    presenting counsel files the Notice of Hearing as an exhibit
                                    in the initial set-date proceeding presided over by the hearing
                                    panel, the complaints process will become public, subject to
                                    any orders by the hearing panel.

             The JPRC failed to file a complete record of proceedings as required by their enabling legislation, the Judicial Review Procedures Act and the Statutory Powers Procedure Act thereby depriving the Applicant of fair and impartial hearing of the review of his removal from judicial office in a Superior Court thereby violating his constitutional right to judicial independence and security of tenure.
                       
The following constitutional questions are raised:   

1.         Is the Justices of the Peace Act, R.S.O. 1990 ch J.4 ultra vires or inoperative as it infringes on the constitutional independence and security of tenure of justices of the peace in Ontario by allowing Presenting Counsel retained by the Justices of the Peace Review Council unfettered discretion to do the following:
                                    1.         Draft a Notice of Hearing subsequent to the investigation
                                                of a “complaint” by a complaints committee which bears
                                                no relation to or significantly exceeds the “complaint”
                                                with no oversight or review by the body which investigated
                                                the complaint and ordered the hearing;

                                    2.         Assert a prior record of discipline and misconduct on
                                                facts arising either before or contemporaneously with
                                                a prior disposition which was not appealed;

                                     3.         Advocate for the denial of on a recommendation
                                                that the Attorney General compensate the Applicant
                                                for the cost of defending his judicial office; and

                                    4.         Determine what documents form part of the record
                                                of proceedings in the Superior Court on a judicial review
                                                and take steps to exclude documents which the enabling
                                                legislation clearly designates as public documents contrary
                                                to the Open Court Rule.                                            
                       
2.         Does a per diem judge of the Ontario Court of Justice possess the requisite degree of impartiality and independence from the Attorney General of Ontario to sit in judgment of other judicial officers ?

3.         Does a hearing panel composed under s.11.1(1) of the Justices of the Peace Act containing two judicial officers who are “temporary members” under the said Act and one of whom is a per diem judge possess the requisite degree of impartiality and independence from the Attorney General on Ontario to sit in judgment of other judicial officers ?

4.         Do the provisions in the Justices of the Peace Act stipulating the requirement of a “complaint in writing” and   the provisions in the Procedures Document authorizing Presenting Counsel to draft a Notice of Hearing without any review or input from the body which investigated the “complaint” and ordered the hearing into the said “complaint” violate the Applicant’s and indeed the right of all Justices of the Peace to judicial independence and security of tenure – particularly where judges on the same court have a statutory safeguard in their legislation and procedures preventing this occurrence ?

5.         Does the statutory regime, namely, the Justices of the Peace and Act and the corresponding Procedures Document grant Presenting Counsel jurisdiction to depart from the Open Court Rule ?

6.         Did this departure from the Open Court Rule – even assuming the consent of appellate counsel acting for the Applicant -  deprive the Applicant of a fair and impartial hearing of the review of the recommendation of the JPRC hearing panel and the Order-in-Council dated April 29, 2015 removing him from judicial office by a Superior Court as the constitutional principle of judicial independence and security of tenure entitle him and indeed all judicial officers similarly situated.

Remedy Sought:

1.         A declaration that there is an inconsistency between the in writing requirement in the Justices of the Peace Act the Procedures Document which inconsistency provides an unfettered and unjustifiable discretion to Presenting Counsel retained by the Justices of the Peace Review Council to draft a Notice of Hearing which bears no relation to the complaint or exceeds it and thereby infringing the constitutional independence and security of tenure of justices of the peace;

2.         A declaration that in departing from the Open Court Rule with respect to the filing of its record of proceedings in the Divisional Court – a rule which is clearly prescribed by the enabling legislation and common law the Justices of the Peace Review Council violated the Applicant’s constitutional right to judicial independence and the right to a fair and impartial review in a Superior Court of the said decisions.

3.         A declaration that the said provisions are unconstitutional and therefore of no force or effect under s.52(1) of the Constitution Act, 1982;

4.         A declaration that the Applicant’s removal from office is null and void; and

5.         A declaration that the Attorney General for Ontario is responsible to compensate him for the costs associated with defending him office.
           
 December 4th, 2017                                       E.J. GUISTE PROFESSIONAL CORPORATION
                                                                        Trial & Appellate Advocacy - 2 County Court Blvd.,                                                                         Suite 494, Brampton, ON, L6W 3W8
                                                                        Tel.(416) 364-8908 – Fax (416) 364-0973
                                                                        Co-counsel for the Applicant

TO:  Henein Hutchison LLP
235 King Street East, First Floor
Toronto, Ontatrio, M5A 1J9
(416) 368-5000
(416) 368-6640 Fax
Counsel for the Justices of the Peace Review Council

AND TO: 
DEWART GLEASON LLP
Layers
102-366 Adelaide Street West
Toronto, Ontario
M5V 1R9
(416) 583-5751
(416) 971-8001

Lawyers for Intervenors Raj Anand And Weir Foulds LLP


TO



The Attorney General of Ontario (as required by section 109 of the Courts of Justice Act)

The Attorney General for Ontario
Constitutional Law Branch

4th floor

720 Bay Street

Toronto, Ontario M5G 2K1

fax: (416) 326-4015



The Attorney General of Canada (as required by section 109 of the Courts of Justice Act)

Suite 3400, Exchange Tower

Box 36, First Canadian Place

Toronto, Ontario M5X 1K6

fax: (416) 952-0298



(or Justice Building

Ottawa, Ontario K1A 0H8

fax: (613) 954-1920)


MINISTRY OF THE ATTORNEY GENERAL
Crown Law Office- Civil
720 Bay Street, 8th Floor
Toronto, Ontario, M7A 2S9

(416) 314-2400
(416) 326-4181 fax

Sara Blake and Brent Kettles
Counsel for the A.G. Ontario and Lieuentant Governor


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