Friday, March 16, 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:


   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.


1 comment:

  1. Perhaps if I read your blog regularly, rather than sporadically, I would know more of the context of the circumstances you outline in this item. A little background info wold be illuminating and appreciated. Keep up the Good Fight