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.
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.
No comments:
Post a Comment