Cogent and Compelling Evidence JP Massiah Wrongly Removed:Re JP Obokata 2003 and Fresh Evidence

   The argument that JP Massiah was removed from judicial office for irrelevant considerations and that he was subject to differential treatment is not a fanciful or frivolous argument but one borne out by JPRC precedence, the Human Rights Code of Ontario and The Rule of Law.

Re HW G. Leornard Obokata:

   In Re HW Obokata 2003 Justice Mocha of the Ontario Court of Justice found that this justice of the peace committed judicial misconduct by committing a sexual assault on a fellow justice of the peace. The following is her reasoning on the preliminary question which must be answered on the inquiry into whether or not judicial misconduct has been committed by a judicial officer:

FINDING OF MISCONDUCT

  "The first question is whether the incident amounts to misconduct within the meaning of section 12(1) of the Justices of the Peace Act.  Justice of the Peace Obokata's behaviour on May 2, 2002 constituted a sexual assault contrary to the Criminal Code.  Justice of the Peace Obokata intentionally applied force to Justice of the Peace X without her consent in circumstances of a sexual nature such that the sexual integrity of Justice of the Peace X was violated.  The force need not cause physical injury.  The purpose of the touching need not be for sexual gratification.  Any reasonable person would perceive the sexual context of the touchings by Justice of the Peace Obokata.

   Having committed a sexual assault, Justice of the Peace Obokata clearly misconducted himself within the meaning of section 12 of the Justices of the Peace Act".

THE COMPLAINT

   ...."Without any invitation or consent from Justice of the Peace X and without any warning, Justice of the Peace Obokata deliberately reached over and grabbed one of Justice of the Peace X's breasts and twisted his hand.  Justice of the Peace Obokata recalls grabbing her breast between his thumb and forefinger and pinching her breast. Justice of the Peace X loudly proclaimed, "Lenny !  I cant't believe you did that !"  Justice of the Peace Obokata then repeated the action."

GROUNDS FOR REMOVAL

   "The next question is whether the misconduct on the part of Justice of the Peace Obokata is incompatible with the execution of the duties of his office and has caused him to be disabled or incapacitated from the due execution of his office. Criminal conduct does not automatically warrant removal from office.  Justice of the Peace Obokata would have to be rendered unfit or incapable of proper and effective action as a justice of the peace as a result of the misconduct.

....As a result of the misconduct by Justice of the Peace Obokata, I find that public confidence in his ability to continue in office has been eroded by not lost.  I am hopeful that this confidence can be restored with some guidance and a great deal of effort on the part of Justice of the Peace Obokata. I have further concluded that a lack of tolerance for this type of behaviour can be demonstrated in this case through recommendations short of removal from office."

The Findings Against
H.W. Massiah:

[207]   However, we find that His Worship acted in a manner inconsistent with the Human Rights Code.

[32]   His Worship Massiah's testimony was that he did not at any time during the relevant time frame between May 30, 2007 and August 23, 2010 engage in any inappropriate conduct or make any comments towards any female in or around the Whitby courthouse which were unwanted, or unwelcome or which poisoned the work environment.


H.W. Massiah's
Written Submissions

Comments Welcomed

(18)   His Worship Massiah testified that he had no knowledge from his interactions with the court stafff that his comments were offensive, vexatious or unwelcomed.  He stated repeatedly in his testimony that he felt "well received" and had he received any hint of displeasure he would cease and adjust his conduct accordingly. (Testimony of HW Massiah at p.22-24, 41)


Justice Vallencourt's
Findings in First Hearing:

1.  The allegations in question took place between 2008 and 2010;*

2.  H.W. Massiah was not aware that his conduct was improper;

3.  No one brought it to H.W. Massiah's attention that his conduct was of concern;

4.  This was H.W. Massiah's first offence;

5.  H.W. Massiah had learned his lesson and would not re-offend.


Appellate Counsel on Judicial
Review's Fresh Evidence:

  In his sworn affidavit of January 3rd, 2018 appellate counsel for JP Massiah before the Divisional Court deposed that he did not advance the arguments involving the Code which JP Massiah advanced before the JPRC Hearing Panel and he delineated "the problems with advancing the failed human rights arguments" in Exhibit F to the said affidavit.

  Appellate counsel's opinion letter fails to address the Hearing Panel's interpretation and application of the concepts of "vexatious", "unwelcome" and "poisoned work environment".  His opinion deals with the limitation argument advanced asserting that human rights complaints ought to be brought in a timely manner and that individuals were required to pursue remedies through their union etc.

   H.W. Massiah deposed in his supporting affidavit on his pending Rule 59 motion and on cross-examination on the said affidavit that his appellate counsel failed to discharge their duty of candour to him and to enable him to make an informed decision on the matters they now assert he agreed to.


*The supposedly new allegations predated the Vallencourt Disposition.

NOTE: This piece is published here to draw attention to an issue of public importance. Our law must apply equally to all Ontarians without regard to race or any other irrelevant consideration.  Members of the public look to lawyers to advise them in areas in which they need guidance. When these members of the public become clients of their lawyers it is incumbent on the lawyer to provide the client with sufficient information in order that they may make an informed decision on their advice. It can not be sufficient that they blindly agree.

Eight Key Facts TorStar Did Not Reveal in their Publication on the JP Massiah Case Today

1.   The Toronto Star appears to have been in receipt of the JPRC Decision prior to JP Massiah or his lawyer;

2.   $130,000 of the $770,000 fee in the Bill of Costs was for Massiah's appellate counsel who refused to raise bias and excesses of jurisdiction on the part of Presenting Counsel which he acknowledged adversely impacted the fairness of the hearing because he was concerned that "it may be ill-received by the Court".  This is now referred to as "Groia Chill" among litigation lawyers.

3.   JP Massiah's appellate counsel also failed to raise bias arising from The Law Society of Upper Canada nominee, who voluntarily recused herself from the Hearing Panel on account of JP Massiah's concerns about a reasonable apprehension of bias, tainting the balance of the panel since she sat with them from June - November, 19th, 2013 - some six hearing days.

4.   JP Massiah's appellate counsel refused to follow JP Massiah's instruction to challenge the composition of the Hearing Panel having two temporary members when the enabling legislation allows only one.  This lawyer's refusal was based on his erroneous understanding that he could not raise it for the first time on judicial review - believing that it was not raised below when in fact it could not have been raised earlier because only he was privy to the information on the status of the members of the Review Council.  This information is not available to the public of JPs subject to discipline until the JPRC's Annual Report is tabled in the Legislature by the Attorney General. The Toronto Star has written extensively on this failing by the Attorney General.(see Ontario is Keeping Secret Complaints About JPs - TorStar June 16, 2104; Ontario Failing to Release Reports of Complaints Against Judges - Torstar January 23, 2017)

5.   E.J. Guiste was JP Massiah's lead counsel and represented him throughout the proceedings.  Mr. Guiste had Mr. House conduct the evidence portion of the hearing on account of the Hearing Panel's blatant exhibition of bias and racial intolerance towards JP Massiah and himself which is well documented in the portions of the record of proceedings which were not filed with the Divisional Court and is the driving force behind the motion to set aside the Divisional Court order upholding the liability and penalty decisions;

6.   The Divisional Court ordered that the compensation re-hearing be conducted by the 2012 Panel. All of the parties before the Divisional Court were fully aware that the chair of that panel retired and therefore the 2012 Hearing Panel no longer existed but they failed to inform the Divisional Court;

7.   E.J. Guiste has argued consistently that the JPRC Hearing Panel lacked jurisdiction to conduct a hearing for several reasons and that was the purpose of the preliminary motions.  Had the bias and or jurisdiction and abuse of process motions been properly adjudicated there would not have been a hearing period;

8.   The JPRC Hearing Panel failed to answer the question which they were authorized by the Justices of the Peace Act to adjudicate, namely, to uphold or dismiss the "complaint" even though high profile lawyer, Mr. Brian Gover advised them on this point.


NOTE:  I continue to defend JP Massiah because I believe him to be the victim of a miscarriage of justice and that I am duty-bound as a lawyer to do so.   

Why The Fight Against JP Massiah's Removal from the Bench is a Just One

   On April 3rd, 2018 a panel of the Divisional Court is scheduled  to hear JP Massiah's Rule 59 Motion and Constitutional Question seeking to set aside an earlier Divisional Court order of October 4th, 2016 upholding a Justices of the Peace Review Council Hearing Panel decisions finding him liable of judicial misconduct and recommending his removal from office.

   It will be close to eleven years now since the alleged occurrences and close to four years since the hearing commenced on July 7th, 2014.  Clearly, not a prescription for fair and timely adjudication by any standard.  This point is amplified when one considers that a 2012 Hearing Panel chaired by highly respected Ontario Court of Justice, Judge Vallencourt made specific findings of fact that - 1. he was not aware that his conduct was improper; 2. no one had brought it to his attention that his conduct was of concern; 3.  this was his first offence and 4. he had learned his lesson and he would not re-offend.

   The legal and moral soundness of JP Massiah's Rule 59 motion is made irrefutably clear by the following passage in the Divisional Court's Reasons in support of their order upholding his removal:

[37]   ....While the factual findings made by the 2011 Panel are binding on the 2012 Panel, (for example, that the applicant engaged in specific instances of misconduct), the disposition has no such effect.

   All Ontarians who are interested in a fair and just society where The Rule of Law applies to all regardless of race or other irrelevant considerations will find JP Massiah's fight just and worthy of their support.  Arbitrariness and injustice to JP Massiah is a threat to justice for all Ontarians. It is as simple as that.  Who among us will be next ?

   I, for one, have been unwavering in my belief that JP Massiah is the victim of a miscarriage of justice.  I will continue to fearlessly defend him as a lawyer because it is my duty to do so.  Here is why I hold this belief even though the Divisional Court dismissed his application for judicial review by way of order dated October 4th, 2016:


1.  By decision dated March 12th, 2012 a Justices of the Peace Review Council Hearing Panel found JP Massiah liable of judicial misconduct and ordered a 10 day suspension and a reprimand.  In addition JP Massiah completed the following remedial actions: 1. Gender-Boundary sensitivity training; Human Rights training and writing letters of apology to all affected persons.

2.    Before that legitimate legal proceeding was even over some staff at the Durham Region Provincial Offences Court where JP Massiah also heard cases decided among themselves that the Disposition handed down by Justice Vallencourt was a "slap on the wrist" and that they would seek to increase it through a second complaint.

3.   The problem with their plan was that their second set of complaints were not new.  They either pre-dated or were contemporaneous to the first set.

4.    The first Disposition was not appealed by the Justices of the Peace Review Council. Nevertheless they retained high profile counsel to act as Presenting Counsel. Presenting Counsel's job is to draft a Notice of Hearing and present the complaint fairly and dispassionately.

5.   Presenting Counsel's first legal error was to draft a Notice of Hearing which had no relationship at all to the complaint. The Notice of Hearing included allegations which were not part of the complaint at all, including an allegation that JP Massiah acted contrary to the Human Rights Code by acting in a "vexatious", "unwelcomed" manner and by creating a "poisoned work environment".

6.  Presenting Counsel's second legal error was to incorporate the first Disposition into her Notice of Hearing in paragraph 14. This paragraph actually stated  "your history of judicial misconduct of a similar nature at a different courthouse.....demonstrates a pattern of inappropriate conduct toward women in the justice system."  To her credit, Presenting Counsel candidly acknowledged when questioned by per diem Justice Livingstone, the Chair of the Hearing Panel, "In my submission, that really was designed to address potential disposition." (see July 29th, 2014 transcript at p.110)

7.   Presenting Counsel's admission that paragraph 14 of the Notice of Hearing was intended for "potential disposition" did not cure the serious legal error flowing from this aspect of the Notice of Hearing.  In addition to the first Disposition JP Massiah was made to defend and found liable of numerous allegations that were not part of any complaint in writing to the Review Council and consequently not pre-screened by a Complaints Committee as mandated by our Court of Appeal in Hryciuk  v.  Ontario.

8.   A consistent theme advanced by JP Massiah throughout the proceedings was the glaring issue of a a lack of fairness and bias from the Hearing Panel as between himself and Presenting Counsel.

9.  Every legal argument advanced on behalf JP Massiah was rejected by the Hearing Panel chaired by per diem judge Livingstone.

10.   Although the Hearing Panel retained Independent Counsel, Mr. Brian Gover, to advise them on a jurisdictional question they raised in June, 2013 and which legal question they did not resolve until July 7th, 2014 - days before the commencement of the hearing, the Hearing Panel actually disregarded the opinion provided them by Mr. Gover, i.e. that it is a complaint which they are to adjudicate, and they went on the adjudicate Presenting Counsel's Notice of Hearing instead.

11.   On the judicial review which culminated in the upholding of the liability and penalty decisions, the JPRC failed to file numerous relevant documents which they had agreed at the hearing formed part of the record "for any proceedings which may follow" the Hearing Panel's order.

12.   By letter dated March 15, 2017, roughly four months after the Divisional Court order was formally entered by the Court, the JPRC wrote:

"Further, in an email received from Mr. Guiste on March 13, 2017, he requested confirmation of a number of items in relation to the earlier stage of the hearing. This letter confirms that we have retained the record."

13.   JP Massiah's written submissions on jurisdiction where this legal objection was raised was not part of the record before the Divisional Court.

14.  The statutory regime under which JP Massiah was removed, the Justices of the Peace Act, has a three-stage process. First,  a complaint in writing to the Review Council, triggers an investigation by
a Complaints Committee.  Second, the Complaints Committee investigates the written complaint and then reports to the Review Council under s.11(18) which reads, "The complaints committee shall report to the Review Council on its decision and, except where it orders a formal hearing, it shall not identify the complainant or the justice of the peace who is the subject of the complaint in the report.

15.   Disturbingly, the parties to the hearing before the Hearing Panel did not know who the complainant was until the Hearing Panel's decision on Jurisdiction and Alleged Abuses of Process rendered on January 12th, 2015.

16.   Further, although the Hearing Panel clearly relied upon the five volume investigation transcripts from the Complaints Committee in concluding that they acted within jurisdiction in considering the "new allegations in those transcripts within its mandate under s.11(7) of the Act" those transcripts were not part of the record before the Divisional Court when it determined that the Hearing Panel's decision on liability and penalty were reasonable.

17.   In responding to JP Massiah's Rule 59 motion to have the Divisional Court order set aside, his appellate counsel in the proceedings before the Divisional Court revealed the following in his affidavit sworn January 3rd, 2018:

1.  He did not raise bias involving the Law Society of Upper Canada nominee tainting the remainder of the Hearing Panel before the Divisional Court because he believed that it was not raised below. He was clearly in error on this point and the Hearing Panel's decision on bias confirms this.

2.  He did not raise the question of the jurisdiction of the Chief Justice to replace the Law Society of Upper Canada nominee for the same reason as above.

3.  He revealed in his affidavit sworn January 3rd, 2018 that he did not raise the question of whether the Hearing Panel was improperly constituted because it contained two temporary members of the Review Council because he understood it was not raised before the Hearing Panel and he could not raise it for the first time on judicial review. He was again in error on this point because the information on the status of the temporary members was not available until the first disclosure to him in an e mail dated December 4th, 2015.

4.  He revealed in his affidavit sworn January 3rd, 2018 that he did not raise the Hearing Panel's error in the interpretation and application of the Human Rights Code for reasons cited in a written opinion he provided JP Massiah.  That opinion is silent on the question of the interpretation and application of the Code principles of "vexatious", "unwelcome" and "poisoned work environment". The opinion focused on there being no limitation for the bringing of a complaint under the Justices of the Peace Act and that the persons subject to the conduct need not complain about it.

5.  He revealed in his affidavit sworn January 3rd, 2018 that he did not raise Hryciuk  v. Ontario as a bar to the Hearing Panel's jurisdiction because the facts of the case were distinguishable from Hryciuk.  However, he raised it on leave to appeal to the Ontario Court of Appeal.

6.   After preparing a memorandum on or about November 8th, 2015 for JP Massiah's review delineating numerous excesses of Presenting Counsel in the discharge of her duties as Presenting Counsel, including that she "acted as prosecutor and tainted the proceedings", "presenting counsel abandoned impartiality" and "although presenting counsel claimed that she did not intend to introduce evidence of the findings in the First Proceeding as similar fact evidence, this is exactly what was done....In by-passing a similar fact evidence application, evidence of the findings of the First Proceeding was introduced in such a manner that the applicant was denied the opportunity to mount  a defence to the similar fact evidence." - he deposed in his January 3rd, 2018 that he advised JP Massiah that raising these issues about Presenting Counsel would not be well received by the court and JP Massiah agreed with his advice.

7.   JP Massiah maintains that his appellate counsel failed to discharge his duty of candour to him and to put him in a position where he would have been fully informed and capable of making an informed decision on his advice he asserts he agreed to.


   The point being advanced on behalf of JP Massiah in support of his Rule 59 motion is simple. He was denied natural justice and fairness throughout the JPRC proceedings, complaint, investigation and the hearing. Presenting Counsel exceeded her jurisdiction in both the Notice of Hearing she drafted and in the tone and manner in which presented the case against him. The inconsistency between the Justices of the Peace Act and their Procedures Document which allowed Presenting Counsel to draft a Notice of Hearing without any overview by the Complaints Committee which supposedly ordered the hearing and without any order from them delineating exactly what it is that they ordered to a hearing makes his removal from office unconstitutional since it prima facie deprives him of the two fundamental benefits of judicial independence, security of tenure and the absence of an obligation to pay clause in the Justices of the Peace Act with respect to a hearing panel's recommendation for compensation of costs in defending the complaint - as is found in the Courts of Justice Act for judges of the Ontario Court of Justice deprived JP Massiah of financial security and places the cost of his defence on the backs of JP Massiah's lawyers at first instance. This is wrong. This has the potential of making lawyers beholden to the Attorney General in order to secure their fee.  This is serious and very wrong by any legal or moral standard.

   The JPRC and JP Massiah's appellate counsel before the Divisional Court assert that JP Massiah is simply a vexatious litigant and he agreed to all of this.  The Attorney General for Ontario relies on Res Judicata and asserts that JP Massiah was properly removed and if he wasn't it is Not in the public interest to correct this now.

Hearing:  April 3rd, 2018 @ 10 A.M. - Divisional Court - Osgoode Hall - Toronto, Ontario
(TTC - Osgood Hall stop) - across from the Sheraton Centre

NOTE: This piece is published here to draw attention to an issue of public importance.  For the first time in Ontario's history a judicial officer removed from office is seeking to set aside the decision upholding his removal employing the Constitution Act, 1982, including the Constitutional Principle of Judicial Independence and Rule 59 of the Rules of Civil Procedure.  For the first time in Ontario's history and likely Canada's too - a judicial officer was removed from office with a finding that he acted in a manner inconsistent with the Human Rights Code while at the same time being denied the defences under the said Code afforded all other Ontarians.  E.J. Guiste is counsel for JP Massiah on the Rule 59 motion.

If anything stated her is incorrect.  Kindly bring it to the writer's attention and it will be reviewed and if in error gladly corrected.  This is a public education exercise and not an exercise of placing blame on anyone.  History has shown that asserting blame only invites denial and a scorched earth response attacking the credibility of the victim.  Remember that women had no credibility until recently.  Black men had no credibility as well.  In this case JP Massiah is the victim in my view.

Did Standing and "Bootstrapping" by Justices of the Peace Review Council Taint Divisional Court Hearing ?

   In Ontario  v.  Ontario Power Generation [2015] 3 S.C.R. 147 the Supreme Court of Canada addressed the question of when it is appropriate for an administrative tribunal, like the Justices of the Peace Review Council, to participate in the defence of its own decision on appeal or judicial review.  In this decision the court seems to depart from the more rigid position it took in Northwestern Utilities Ltd.  v.  City of Edmonton [1979] 1 S.C.R. 684 prohibiting such participation primarily on account of concerns with the tribunal's impartiality.

   In Ontario  v.  Ontario Power Generation supra the Supreme Court ruled that a discretionary approach provides the best means of ensuring that the key principles of finality and impartiality are respected without sacrificing the ability of the reviewing court to hear useful and important information and analysis.  The court reasoned that on account of their expertise tribunals may be well positioned to assist the reviewing court. In addition, the court pointed out that in circumstances where there is no other party to defend the decision the tribunal may be in a position to help the reviewing court.

   The Supreme Court of Canada ruled that the following factors are relevant in a reviewing court like the Divisional Court exercising its discretion on the tribunal's standing to defend its decision:

1.  statutory provisions addressing the structure, processes and role of the particular tribunal;

2.  the mandate of the tribunal - is the tribunal adjudicative in nature or policy-making,
     regulatory or investigative ?

3.  does the tribunal acts on behalf of the public interest ?

   The Supreme Court of Canada clearly held that in exercising its discretion on this point a reviewing court, like the Divisional Court in Massiah  v. Justices of the Peace Review Council is required to balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality.

"Bootstrapping"

   The Supreme Court of Canada addressed the critical issue of bootstrapping as well. The court pointed out that the issue of bootstrapping is closely related to the question of when it is proper for a tribunal, like the Justices of the Peace Review Council, to act as a party on a judicial review or appeal of its decision.  The standing issue the court pointed out deals with the types of argument a tribunal may make and the bootstrapping issue concerns the content of these arguments.

   According to the Supreme Court of Canada a tribunal engages in bootstrapping where it seeks to supplement what would otherwise be a deficient decision with new arguments on appeal.  The court was clear that a tribunal may not defend its decision on a ground it did not rely on in the decision under review.  Finality the court said, "dictates that once a tribunal has decided the issues before it and provided reasons for its decision, absent a power to vary its decision or rehear the matter, it cannot use judicial review as a chance to amend, vary, qualify or supplement its reasons."  The court went to express strong concern that permitting bootstrapping "may undermine the importance of reasoned, well-written original decisions."

Analysis and application to
Massiah  v.  JPRC:

Role of Presenting Counsel

   The JPRC Procedures circumscribed the role of Presenting Counsel.  Under this statutory regime Preesenting Counsel is retained by the Review Counsel to do the following:

- draft the Notice of Hearing and - "see that the complaint against the justice of the
peace is evaluated fairly and dispassionately to the end of achieving a just result". 
Presenting Counsel "shall operate independently of the Review Council."

   In Re Massiah the key argument is that the Notice of Hearing drafted by Presenting Counsel exceeds the complaint and therefore it destroys the key constitutional rights of judicial independence, namely, financial security and security of tenure. It is also inconsistent with binding legal authority from the Ontario Court of Appeal, namely, Hrycicuk  v. Ontario.  This point is eloquently stated in JP Massiah's factum in support of his Rule 59 motion in the following words:

2.   ....paragraph 14 of current Presenting Counsel's Notice of Hearing which asserted a "history of judicial misconduct of a similar nature at a different courthouse" thereby subjecting the Applicant to liability for not only the complaint filed against him by prior Presenting Counsel, Doug Hunt, but for the "actual 2012" Panel's disposition as well, thereby irreparably tainting the liability portion of the hearing since the Hearing Panel would have no jurisdiction to find liability on it - a point which was properly argued at first instance before the 2013 JPRC Hearing Panel and arguably properly conceded by Presenting Counsel but the the Applicant's appellate counsel before the Divisional Court failed to raise.

Presenting Counsel's
Admission - July 29th/14:

"In my submission, that really was designed to address potential disposition.

   Another key argument advanced by JP Massiah is that the JPRC Hearing Panel failed to follow various mandatory statutory provisions in their enabling statute which deprived them of jurisdiction to conduct a hearing into the complaint. The following is an excerpt from JP Massiah's written submissions on jurisdiction filed at the initial hearing (but not included in the record of proceedings before the Divisional Court):

[28]  Should "the complaint" be referred to a complaints committee, the committee must report to the complainant that it has received "the complaint".  It must also report to "the complainant" as to its disposition of the matter.  It is submitted that none of the witnesses testified that they had received communication from the complaints committee that their "complaint" had been received or as to the manner in which the complaints committee disposed of their "complaint", contrary to the requirements of the statute. 

JPRC Decision on Jurisdiciton
and Alleged Abuses of Process

Was the Complainant Advised by the Complaints Committee of the Dispositon of the Complaint ?

Positions of the Parties

34.   His Worship Massiah submitted s.11(7) of the Act requires that "a complaint in writing" must be made by a 'complainant" will will be informed that the complaint has been received and how the Complaints Committee disposed of the complaint.

35.  Presenting Counsel took the position that the complainant need not be informed of the disposition until the end of the hearing in front of this Panel.

Analysis

36.   We disagree with the position of Presenting Counsel.  Both the Act and Procedures are clear - it is the duty of the Complaints Committee to report its disposition to the complainant.

37.   In the Applicant's submissions, His Worship stated, 'The evidence will show that this did not happen in this particular case."  During testimony by the witnesses who provided specific evidence as to allegations concerning the conduct of Justice of the Peace Massiah, each was asked if they received any response from the Review Council (or Complaints Committee).  The answer was consistently in the negative.

38.   As we have stated earlier, none of the witnesses was the complainant.  Whether they intended to make a complaint is irrelevant.  It was Mr. Hunt who considered the information contained in the Will States of the initial witnesses to be a basis for a complaint.  He submitted the information to the Review Council.  As noted above, the complainant was Mr. Hunt.

39.  No evidence was led as to whether Mr. Hunt was advised by the Complaints Committee of its disposition of the complaint.

40.   In any event, we do not see the relevance in this proceeding as to whether this was done or not...


Rule 59 Motion

Non-Compliance with
Mandatory Statutory
Requirements:

Presenting Counsel
Conflict of Interest

10.   On April 14th, 2017 the Applicant learned that current Presenting Counsel's spouse was a law partner of the complainant, former Presenting Counsel, Mr. Doug Hunt, in and around the material time of Mr. Hunt acting as Presenting Counsel before Justice Vallencourt and the date of his report to his instructing counsel, Ms. Marilyn King, Registrar and Counsel to the JPRC thereby tainting the objective requirement of fairness in the proceedings contrary to law.

12(b)   Current Presenting Counsel told the Applicant that the "complainants" in his case were the witnesses who would be(sic) come to testify in a letter dated January 14th, 2014, which letter was part of the Applicant Motion Record on his motion asserting a reasonable apprehension of bias.  Accordingly, the Applicant cross-examined witnesses on this information to his detriment - the Hearing Panel ruling that their intention was not relevant as Mr. Hunt was the complainant.


12(c)   After the findings of liability, disposition and compensation, the Registrar and Presenting Counsel's instructing counsel, Ms. King, prepared an affidavit sworn August 19th, 2016 in which she deposed that she - as distinct from the Complaints Committee, complied with one of the two mandatory requirement of notice to complainants, namely that the "complaint" was proceeding to a hearing and that his evidence may be required although this evidence was never properly made part of the "record of proceedings" before this Honourable Court, resulted in an amendment to the Applicant's factum.

JP Massiah's Appellate
Counsel at Divisional
Court Purports to Consent
to "Fresh Evidence" of
JPRC Registrar:

   On the eve of the hearing before the Divisional Court - that is September 13th, 2016 - the hearing taking place on September 14th, and 15th, 2016 counsel acting for JP Massiah wrote to the Registrar of the Divisional Court in the following words:

"I am writing on behalf of the applicant with respect to the respondent JPRC's motion to admit a letter dated July 4, 2013, produced by the JPRC following receipt of the applicant's factum, as fresh evidence on this application for judicial review.

The applicant's position is that this letter, written by and clearly available to the respondent JPRC prior to the hearing under review, clearly does not satisfy legal requirements for the admission of fresh evidence.  Nevertheless, after assessing its significance, and in the interests of expedition, the applicant does not oppose the filing of the letter.

I would ask that paragraph 48 of the applicant's factum be corrected to read as follows, to conform to what we now know:

48.   The Panel had no evidence before it that the Complaints Committee had reported its disposition to Mr. Hunt or anyone else, despite the requirements of s.11(3) of the Act and page 5 of the JPRC Procedures.  The Panel rejected Presenting Counsel's argument that there had been no "disposition" at that stage, but treated the notification requirement as irrelevant and outside its jurisdiction. After th commencement of this judicial review application, the JPRC produced a letter from the Registrar of the JPRC to Mr Hunt dated July 4, 2013, notifying him of the Complaints Committee's disposition.

I have enclosed a replacement page 15 of the factum, which I will ask the Court's leave to substitute".


Divisional Court 
Order of Oct.4th/16:

   ON READING the Applicant's Application Record, the Applicant's Factum, the Respondents' Facta, and the Record of the 2102 Panel, and on hearing oral submissions from counsel for the Applicant and from counsel for the Respondents:

1.  THIS COURT ORDERS that the application for judicial review is allowed only to the extent that the decision dated June 16, 2015 is set aside, adn the issue of compensation is remitted back to the 2012 Panel for a fresh determination.

2.  THIS COURT FURTHER ORDERS that the application for judicial review in all other respects dismissed.

3.   THIS COURT FURTHER ORDERS that the Applicant shall pay costs fixed at $10,000 inclusive of all disbursements and HST to the Respondent, the Justices of the Peace Review Council, and that no such costs shall be payable to the Lieutenant Governor for the Province of Ontario or the Attorney General of Ontario.

Entered: November 15, 2016


OBSERVATIONS:

   An order of the court is required for the admission of fresh evidence on an application for judicial review.  The Divisional Court's order of October 4th, 2016 is the only order in the court file. That order does not grant leave for the admission of any fresh evidence.  The Divisional Court's Reasons similarly does not address any fresh evidence application.

   Although the JPRC's decision on Jurisdiction and Alleged Abuses makes clear that - "Presenting Counsel took the position that the complainant need not be informed of the disposition until the end of the hearing in front of this Panel" - and the 2012 Panel went on to conclude, "In any event, we do not see the relevance in this proceeding as to whether this was done or not" - Presenting Counsel, argued a brand new theory in its factum in this court.

Bootstrapping ?

   At paragraph 56 of its factum before the Divisional Court - the JPRC, and in reality Presenting Counsel, argued that "when a litigant asserts that a failure to follow a statutory requirement rendered the proceedings a nullity, there should be evidence that the requirement was not fulfilled".

   Presenting Counsel also served the parties with a "Fresh Evidence Motion" seeking to admit both the five volume investigation transcripts and the Registrar's letter dated July 4, 2013 to Mr. Hunt.


The Problem

   A review of the Divisional Court record conducted on behalf of JP Massiah did not reveal any order by the Divisional Court granting leave to admit any fresh evidence.  Although the JPRC - Presenting Counsel for all intents and purposes(Henein Huthcison LLP), served their Fresh Evidence Motion material on the parties before the Divisional Court those materials do not appear to have been filed with the Divisional Court and the Divisional Court did not adjudicate on them. However, a document in a sealed envelope with an affidavit of service attached tends to suggest that the said motion may well have been filed but for some reason remained in a sealed envelope and was not adjudicated upon.

   However, Counsel for JP Massiah acted on those materials and purported to consent to this and amend his factum.  Counsel for the Attorney General did not.

   Appellate Counsel for JP Massiah, not this writer, before the Divisional Court also agreed that the five volume investigations transcripts relied upon by the 2012 Panel in concluding at paragraph 67 of their Decision on Jurisdiction and Alleged Abuses of Process can be formally excluded from the tribunal's record of proceedings but on agreement be available in the court in case it is needed:

[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.

Position of the Respondents
of the Rule 59 Motion:

   JPRC - JP Massiah does not meet the test for new evidence under Rule 59.06.  The record it filed was not deficient.  JP Massiah agreed to everything his lawyer did.  JP Massiah is not telling the truth with respect to the failings of his lawyer. The alleged conflict involving the relationship between Presenting Counsel's spouse and Presenting Counsel is not JP Massiah's to raise.

Intervenor - Lawyers are not required to take direction from clients.  Lawyers alone possess skill and competence in the manner of advancing litigation and it for lawyers alone to decide how the litigation will be conducted.  Appellate counsel discharged their duty competently.  JP Massiah agreed with everything his lawyer did. JP Massiah is not a trustworthy witness.

Attorney General - JP Massiah does not meet the test for new evidence under Rule 59.06. Even if the Applicant should satisfy the court that there was some defect in the process it should deny a remedy in the public interest.  They take no position on the facts alleged by the Applicant as against his own counsel or JPRC counsel.


DIVISIONAL COURT HEARING - SCHEDULED FOR APRIL 3RD, 2018 @ 10 A.M.- OSGOOD HALL - TORONTO - SEATING IS LIMITED - FIRST COME FIRST SERVED

NOTE: This piece is published here to draw attention to an issue of public importance. The removal of a judicial officer in our system is an issue of public importance that is recognized throughout the common law world and beyond.  E.J. Guiste is counsel to JP Massiah on his upcoming motion.

"I would be remiss in my duty as a lawyer to JP Massiah if I allowed this removal, in all of the circumstances of this case, to go unchallenged.  To remain silent is to condone what I believe to be a miscarriage of justice."



   

R.I.P Althea Jarvis-Buntin - March 23rd, 1941 to March 4th, 2018

My aunt and God-Mother, Althea Jarvis-Buntin was born in Dominica in 1940.

Unwilling to be constrained by the absence of opportunity available to her in her homeland, Aunt Althea, whom I affectionately referred to as Nen, took active steps to free herself of the constraints imposed upon her and her siblings and embarked on her journey to Canada on the only ticket available to her at the time – the domestic ticket.

Nen – instilled in me the work ethic and life outlook which enabled her to arrive in her new home as a domestic and to leave and return to her homeland with her head up high – being fully satisfied that she had laid a solid foundation for the many others in the family who came after her.

Nen’s voice always beamed with pride when she recounted my answer when at the age of six or so she asked me what I wanted to be and I replied a lawyer.

Nen – instilled in me a thirst for learning.  Very early in my childhood she encouraged me to read.  I fondly remember compiling several issues of her Readers Digest magazines at a time for me to take home and read. I made it a point to read things that I was not particularly familiar with simply to expand my knowledge.  I took a keen interest in a portion of the magazine which featured stories about various organs or parts of the body – which typically had titles like Joe’s Liver etc.  I had read so many of those articles that I had at one point set my sights on becoming a surgeon.

Nen – ensured that my thirst for knowledge was not short-lived.  She was a gifted teacher and motivator.  I remember at one point taking a great dislike of taking a bath. She found a quick and easy remedy.  She bought me a beautiful sailboat complete with a sweet smelling soap to spruce up my bath time.  It worked. I enjoyed many a long bath with my new sail boat.  As I grew older and encountered new people, new ideas, new cuisine Nen somehow managed to rid me of my bad habits and narrow world views.  My habit of rejecting foods I was not familiar with ended.  I ultimately became a lover of most foods and if not giving it a taste and a very polite no thanks.

Nen took a special joy and pride in bringing happiness and comfort to others.  I saw this firsthand as a child growing up with her. She always made it point to get us two or three gifts. One was not enough.  She always knew what gifts to get us too. I later saw the demonstration of her love and warmth spirit when I had the opportunity to live with her and Uncle Ken when I graduated from McGill U and was in search of a new life in Ontario.  She enjoyed a large and varied circle of friends and she took great pride and interest in frequently entertaining. I recall meeting the late Dr. Liverpool – uncle Ken’s cousin and him taking me to a party at the late Edward Greenspan’s home. I recall meeting the noted author Austin Clarke at her home.

Nen was the mother I did not have.  When I started dating she took a keen interest in meeting with and talking to me about my girlfriends.  I remember her taking myself and a particular girlfriend for dinner in Montreal. She was classy, engaging and down-to-earth.  She possessed a keen ability to read people.  She carried herself with a sense of dignity and self confidence which allowed her to sit down and debate issues of the day with anyone, including one of my most argumentative colleagues, who now goes by the initials M.A.A.W.

Music has a way of colouring and making more vivid certain memories.  Nen loved to sing Linda Ronstadt’s Blue Bayou. I remember it like it was yesterday. I was spending Christmas holidays with her in Toronto. She and Uncle Ken lived in an apartment on Neptune Drive. That song was a huge hit at the time. It played frequently on the airwaves.

Then and many, many years after Nen would often belt out those lyrics –

I feel so bad I got a worried mind.

I’M so lonesome all the time

Since I left my baby behind on Blue Bayou

Saving nickels saving dimes

working till the sun don’t shine

Looking forward to happier times on Blue Bayou

I’m going back someday

Come what may

To Blue Bayou

Where the folks are fine

And the world is mine

On Blue Bayou

Where those fishing boats

With their sails afloat

If I could only see

That familiar sunrise

Through sleepy eyes

How happy I’d be… 

    Another one of her favorite songs was “The Lady in Red” by Chris De Burgh. She often sang this one with the utmost of passion.

I’ve never seen you looking so lovely as you did tonight,

I’ve never seen you shine so bright,

I’ve never seen so many men ask you if you wanted to dance,

They’re looking for a little romance, given half a chance,

And I have never seen that dress you’re wearing,

Or the highlights in your hair that catch your eyes,

I have been blind,

The lady in red is dancing with me, cheek to cheek.

There’s nobody here, its just you and me,

It’s where I want to be,

But I hardly know this beauty by my side,

I’ll never forget the way you look tonight;

I will always remember and cherish the great memories.  When I arrived in Canada from Dominica on the 8^th of January 1972 – Nen threw me a dashing birthday party for my 8^th birthday – (February 13^th) – complete with party hats and noisemakers.

I will always remember the taste and aroma of her Christmas fruit cake. Until very recently, Nen made it a point of sending me a Christmas cake every year.

Nen taught me to love and be loved. She taught me how to look for and appreciate what really matters in a person.

It aches me so that you had to endure such suffering before you left us.  However, after speaking to you just days prior to your passing I felt a sense of calm and comfort in knowing that you were at peace with yourself, your plight and your creator.  I took great comfort in the reason and dignity you displayed in our talk. You acknowledged that your plight was all part of life and that you had had a good life.

I can not thank you enough for what you have done for me and indeed the entire family.  You gave tirelessly and selflessly of yourself.  I am eternally indebted to you.  You are gone in the flesh but your spirit and my memories of you shall stay with me until I come to pass.

Rest in Peace my sweet Nen !   Rest in peace !

 March 22nd, 2018

Racial Bias and Jurisdictional Error Overlooked at JP's Divisional Court Hearing ?

Justices of the Peace
Review Council
Hearing Panel Chair:

[22]   At the  conclusion of Mr. Guiste's explanation, the Chair of the Hearing Panel states: "Thank you, Mr. Guiste, for that speech."  (Transcript April 9th, 2014 at p.153)

[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 disrespect to both His Worship and his counsel and their racial heritage, stereotyping Mr. Guiste as a black man on a soap box.  The Hearing Panel finds such an assertion completely offensive.  (Decision on the Motion Alleging Bias)

Justice Livingstone

"At the outset of my response to your speech, Mr. Guiste, I said the Panel knows what its here to do and that's to deal with the issue of jurisdiction.  Was there something unclear with that ?

MR. GUISTE:  ---Ms. Henein stood up and now its been clarified, so I think we're good now.

JUSTICE LIVINGSTONE:   I'm happy you feel that way, Thank you.

MR. GUISTE:   Again, how is one to interpret, "I'm happy you feel that way. Thank you" ?  In my respectful submission, with the greatest of respect to each and every Panel Member, it my submission that a fully informed member of the public looking at this would say there's a hing of sarcasm and disrespect in that: "I'm happy you feel that way. Thank you."

Scheduling Discussion
on April 9th, 2014:

   At the conclusion of the April 9th attendance the Hearing Panel indicated that it would reserved on its decision on whether or not it had jurisdiction to entertain His Worship's motion.  The Hearing Panel led by Justice Livingstone suggested the proceedings start at 9:30 a.m. on April 28th unless there was a strenuous objection.

   Mr. Guiste indicated that his child care obligations made it impossible for him to attend at 9:30 a.m.

JUSTICE LIVINGSTONE:  Well, we're going to try to start at 9:30, Mr. Guiste, and I'd ask you to try to make your best efforts to here for then and we'll see how we do on the first date of that order. Thank you.

MR. GUISTE:  Can I say this ?  I don't mind the panel ---I respect the panel making decisions, but when the panel expressly makes a decision in terms of a start time, when I clearly and unequivocally tell them about my parental obligations and you compel me to come at 9:30, in my respectful submission that's a little bit unfair.

JUSTICE LIVINGSTONE:  Thank you for that.  We'll see you at 9:30 on April 28th.


Retaining Independent
Counsel:  Pretext ?

   On April 28th, 2014 the hearing started at 10 a.m.  Mr. Massiah and his counsel were notified of this change in plans by the Hearing Panel by way of an e mail from the Registrar and Counsel to the Review Counsel, Mr. Marilyn King.

   Justice Livingstone's unwillingness to accommodate the writer's child care obligations by maintaining the routine 10 a.m. start time placed the Hearing Panel in a most compromising position.  Here was an African-Canadian man telling them that on account of his child-care obligations he could not make a 9:30 a.m. start and Justice Livingstone simply shut it down unjustifiably.

   In the absence of nothing more, the Hearing Panel's decision to retain Independent Counsel would seem quite reasonable to a reviewing court or reasonable people.  However, any reviewing court's ability to assess for reasonableness is hampered if the tribunal fails to provide it with the full record of proceedings and the parties proceed before the reviewing court as if the issue of bias was not persistently objected to.

   In this case the Hearing Panel's own stated reason as to why they sough Independent Counsel, Mr. Gover's advice combined with the fact that they failed to follow that advice is cogent evidence of what we human rights lawyers refer to as "pretext evidence".  On the objective evidence it is reasonable to conclude that their retaining of Independent Counsel was not for their stated reason but to extricate themselves from now fully retired Justice Livingstone's unwillingness to accommodate the child care obligations of counsel.

Pretext - Definitions

Black's Law Dictionary:  Ostensible reason or motive assigned or assume as a color or cover for the real reason or motive; false appearance, pretense.

Oxford Dictionary:  A reason given in justification of a course of action that is not the real reason.

Panel's Reason for
Retaining Counsel:

JUSTICE LIVINGSTONE:   And to be brief, the reason we have determined it is appropriate to engage independent counsel to provide us with a legal opinion is because of a point raised by you, Mr. Guiste, on April 9th, and I refer specifically to the transcript, so we are all cleaar, the transcript from Aril 9th, line 8, and I don't know if you wish to have that in front of you, but Mr. Guiste has stated in his submissions that:

"...this case provides a splendid opportunity for us to fix the Justices of the Peace Review Council.  There are some serious flaws in terms of procedural integrity of investigations and the like, and some good may come of this."

Our view is, as a result of that comment, it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had independent opinion in respect of the administrative law which applies in this hearing.

Independent Counsel
Opinion on their
Statutory Function:

"It also appears clear to us that there is jurisdiction in the Hearing Panel to consider questions of law specifically arising under s.10.2 of the JPA not only because of these general factors, but because the Hearing Panel's own governing provisions (s.11.1) repeatedly refers to the subject matter of the hearing as being "the complaint".  This is seen, for example, at ss. 11.1(9), (10) and (19).  Particularly with respect to s.11.1(10), the triggering event for the Hearing Panel's jurisdiction to impose specific dispositions is the Hearing Panel's view as to whether to uphold the "complaint".  It is therefore necessarily the case that the Hearing Panel must have the power to consider both the content of, and the legislative requirements applicable to, a "complaint" within the JPA, since ultimately it is a "complaint" which the Hearing Panel is adjudicating." (Exhibit 17 on Hearing and Exhibit H to Applicant's Affidavit sworn Nov. 22nd, 2017 on Rule 59 Motion before Divisional Court)


JPRC Hearing Panel
Rejects Opinion they
Sought out:

[73]   Therefore, the Notice of Hearing with its particulars, dated July 4, 2013 and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.  (Decision on Jurisdiction and Alleged Abuses of Process - January 12th, 2015)


[210]   Based on the evidence we find to be cogent and compelling, we accept that the allegations set out in Paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(e), 8(a), 8(c), 8(d), 9, 10, 11, 13, and 14 of the Notice of Hearing, have been made out on the balance of probabilities. (Reasons for Decision - January 12th, 2015)

Justices of the 
Peace Act:

11.1(10)

   After completing the hearing, the panel may dismiss the complaint, with or without a finding that it is unfounded or, if it upholds the complaint, it may,

.....(g)   recommend to the Attorney General that the justice of the peace be removed from office in accordance with section 11.2.


Failure to Answer
the Questions Authorized
by the JPA:

   The Hearing Panel actually failed to comply with the statutory provision by failing to answer the key question which they were authorized by the JPA to answer, namely, to uphold or dismiss the complaint. (see Chandler  v Alta. Assoc. of Architects [1989] 2 S.C.R. 848)


More Pretext Evidence:

1.   Initially Presenting Counsel said the complainant was one Mr. Burns. (Presenting Counsel's Factum on Jurisdiction Motion - June 2013)

2.  Later Presenting Counsel said in response to a direction question to identify the complainant that the complainants "are the people who are expected to testify about alleged misconduct by His Worship" (Evidence not before the Divisional Court in September, 2016 - Exhibit DD on Applicant's sworn affidavit dated November 22nd, 2017 on Rule 59 Motion)

3.  Still later, Presenting Counsel said that former Presenting Counsel, Mr. Hunt, was the complainant.

4.  Presenting Counsel did not call Mr. Hunt as a witness.

5.  In JP Massiah's first hearing, Mr. Hunt called the complainant, Director of Court Operations at the Ministry of the Attorney General as a witness and Mr. Massiah's lawyer, Mr. Bhattacharya was able to cross-examine the complainant.

6.   Fresh evidence on the JP's Rule 59 motion currently before the Divisional Court shows that the Law Society of Upper Canada's investigator was in touch with appellate counsel between the time appellate counsel was both preparing his Applicant's Record and his factum.  Appellate counsel denies any wrong-doing and maintains that the contact was merely to update the Law Society of Upper Canada on the proceedings. Readers must understand that the Registrar of the Justices of the Peace Review Council was the complainant on the complaint to The Law Society of Upper Canada. It would seem reasonable for them to contact the JPRC rather than risking the appearance of unfairness to JP Massiah and E.J. Guiste by contacting J.P. Massiah's counsel.  This point takes on greater significance when one factors in the fact that appellate counsel's firm acted for the subject of the Society's investigation in a case where costs were ordered against him.

7.   In Re H.W. Kowarsky that justice of the peace committed arguably much more serious wrong-doing but received a reprimand. In Re Obokata - a case which involved a clear sexual assault on a fellow female justice of the peace justice a non-removal disposition was ordered.  Why was J.P. Massiah treated so harshly ? 


NOTE:  This piece is written here to draw attention to an issue of public importance. Racial bias is alive and well in Ontario's administration of justice.  All Ontarians suffer when irrelevant considerations like racial and other forms of bias taint the reliability of our legal proceedings. I ask the question but I can not and will not state that the failure to raise racial bias and jurisdictional error (in terms of answering the wrong question) before the Divisional Court was conscious and deliberate.  Appellate counsel was a highly respected human rights lawyer.  He was also my mentor on the case before the JPRC Hearing Panel and my counsel of choice from as far back as my law school days.  What this case illustrates in my mind is the significant and profound impact which systemic racism and unconscious bias against African-Canadians can and does play in depriving a significant portion of Ontario's population of access to justice and fairness.  We can do better.  On all of the objective evidence it would appear that counsel who raise these serious issues in Ontario run the risk of being punished both financially and professionally. This begs the next question - are our policies and practices in the profession and generally in that regard censoring or adversely impacting the decision of counsel to raise these issues ?  If that is the case we may need more intervention from our regulator and the Attorney General of Ontario than a policy statement.