Saturday, February 10, 2018

Prof. Wooley, Ms. Marie Henein and the late Mr. Edward Greenspan Address Civility Regulation by Regulator

Regulators  Selective 
in Enforcement:

"If you look at the civility cases, you do not see lawyers from government, you do not see lawyers from large commercial law firms, you do not see lawyers from the more frankly powerful aspects of the profession."    (Prof. Allice Wooley (Law Times Dec.17th, 2012))

Trial Judge and Adjudicators
in the Best Position to Censure:

"The Law Society may have the legal jurisdiction to initiate disciplinary proceedings against a counsel for alleged uncivil conduct in the face of the court.  But it should never exercise that jurisdiction where, as in this case, the trial judge was in the best position to censure the alleged misconduct but declined to do so.  The Law Society does not enhances its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors.  And such prosecutions will have a chilling effect on advocates."  (The late Mr. E. Greenspan and L.David Roebuck - The Horrible Crime of Incivility - Globe & Mail - August 2, 2011)

Conduct which Puts the Profession
and Legal System in Disrepute and 
Conduct which Impacts Trial Fairness 
Warrants Regulator Attention:

"There have been incidents of incivility that warrant attention.  This is the behaviour at the extreme end of the scale - the lawyer throwing a cup of coffee at another lawyer, the lawyer swearing in court, the lawyer who is drunk at a client meeting.  Really bad behaviour.  Not merely a question of tone, a persistently unfounded legal argument or the odd intemperate comment...Only when bad conduct, rudeness and acrimony distracts from the real focus of the justice system, interferes with its proper functioning and undermines participation in and use of the justice system does it become a problem warranting the regulator's attention."  (Marie Henein - 5 Big ideas - get a grip on civility - Precedent - October 12, 2012)

About the author:

E.J. Guiste is a Catholic, African-Canadian lawyer who practices criminal and civil litigation - both trial and appeal - at all levels of court, including the Supreme Court of Canada.  Mr. Guiste was lead counsel to former Justice of the Peace Massiah in his judicial misconduct hearing before a Hearing Panel of the Justices of the Peace Review Council.  Mr. Guiste's arguments that his client was denied a fair hearing on account of a reasonable apprehension of bias emanating from the office of Presenting Counsel, the Registrar and Counsel of the JPRC, Ms. Marilyn King and the Hearing Panel were improperly adjudicated by the Hearing Panel and summarily dismissed with a finding that he and Mr. Massiah delayed the hearing with frivolous motions. Notwithstanding the fact that Mr. Guiste had a co-counsel at all times - he was singled out by the Hearing Panel for referral to the regulator.**

Just prior to embarking on the hearing, the Chair of the Hearing Panel, now fully retired Justice Livingstone made the following comments to Mr. Guiste and his judicial officer, client:

1.   After receiving his submissions on an objection - "Thanks for the speech Mr. Guiste we have heard the speech."  After Mr. Guiste objected to this stereotypical commentary from her it was asserted wrongly in an Addendum to the Compensation Decision, which denied a recommendation that Mr. Massiah be indemnified for the costs of his defence, that Mr. Guiste accused the panel of being racist towards him and his client, His Worship Massiah. (see April 9th, 2014 and May 28, 2014 transcript)  In fact, what Mr. Guiste said on April 9th, 2014 was the following:

"Whether you intended it Madame Justice, I don't know and I take your word that you didn't intend it that  way, but that's not the test.  The test is, what a reasonable person fully informed going to come to a conclusion on."

[23]   Mr. Guiste now alleges that the use of the word "speech", by way of a sarcastic comment to him, would cause a reasonable observer to believe that the Chair of the Hearing Panel was biased - demonstrating a disrespect to both His Worship and his counsel and their racial heritage, stereotyping Mr. Gusite as a black man on a soap box. The Hearing Panel finds such an assertion completely offensive.  (Hearing Panel's Bias Decision)

2.   After reluctantly agreeing to proceed with the two main motions brought on behalf of Mr. Massiah as a blended hearing - namely jurisdiction and abuse of process stating: "It was a Pyrhric Victory Mr. Guiste".

Pyrhric Victory:  A Pyrrhic Victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat.  Someone who wins a Pyrrhic Victory has been victorious in some way, though the heavy toll negates a true sense of achievement or profit. (Wikipedia)

Etymology:  Pyrrhic Victory is named after king Pyrrhus of Epirus, whose army suffered irreplacable casualties in defeating the Romans at the Battle of Heraclear in 280 BC and the Battle of Asculum in 279 BC, during the Pyrrhic War.(Wikipedia)

3.   The Hearing Panel concluded that the use of the the word "soul brother" in reference to His Worship Massiah by a witness was not a racialized term "but reminiscent of a style of speaking which the phrase "soul brother" connotes."

4.   At paragraph 163 of their Decision on Liability - "His testimony, and his demeanor while testifying, painted a picture of a man who is arrogant and who perceived himself to be appealing to women."

5.   The Hearing Panel failed to consider every single case - 16 in total referred to it by His Worship Massiah's counsel on the Compensation application without reasons for so doing.

6.   The Hearing Panel denied H.W. Massiah a recommendation for compensation for his legal costs due to alleged delay and what they concluded to be frivolous motions even though every motion brought on his behalf would appear to have been brought with their leave as is required by 14(4) of the JPRC Procedures Document and the delay was occasioned by two factors other than his defence.

   The first is the recusal of the Law Society of Upper Canada, nominee on the panel, Ms. Margot Blight.  Ms. Blight sat on the Hearing Panel from June, 2013 to November 19th, 2013 - some five days of hearing until it dawned on her that she had sat on a Complaints Committee which investigated the JPRC's Registrar and Counsel's own complaint alleging purjury against H.W. Massiah during his first hearing.

   The second is the Panel's own questions on its jurisdiction which went unresolved until July 7th, 2014 - a week before the commencement of the hearing.   

NOTE: This post is published here to draw attention to some issues of public importance. The first is that it is in the public interest for lawyers to raise objections to bias and unfairness in the proceedings against their clients regardless of who the perpetrators are. The fact that a perpetrator is respected and has a stellar reputation does not immunize them from erring in that regard.  Secondly, a lawyer who fails to raise bias and unfairness in a legal proceeding which adversely impacts his client does a disservice to both his or her client and the administration of justice.  Lastly any decision made against an individual - including a judicial officer of African-Canadian racial background under these circumstances, is not only suspect but devoid of natural justice and fairness and the recognized hallmarks of legality.  It can never be in the public interest or the interests of justice for a lawyer to consciously decide not to raise bias where bias is in abundance because "I was very concerned that the argument would be ill-received by the court, and that it could have negative consequences for the application."(Appellate Counsel's sworn affidavit at paragraph 97)

**Mr. Guiste wrote "A Catholic Lawyer's Prayer" sensing at the time the Hearing Panel's contempt and bias for his client's right to a fair and impartial hearing and their disdain for him in advocating on his behalf.  It is a must read for all advocates who believe in The Rule of Law and the right and duty of counsel to defend their clients FEARLESSLY.

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