(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
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4th floor
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720 Bay Street
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Toronto, Ontario M5G 2K1
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fax: (416) 326-4015
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The Attorney General of Canada (as required by section
109 of the Courts of Justice Act)
|
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Suite 3400, Exchange Tower
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Box 36, First Canadian Place
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Toronto, Ontario M5X 1K6
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fax: (416) 952-0298
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(or Justice Building
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Ottawa, Ontario K1A 0H8
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fax: (613) 954-1920)
|
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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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