Race and Lawyer Regulation in Ontario: My Amended Notice of Motion

                                                          File No. 18H-047

LAW SOCIETY TRIBUNAL

HEARING DIVISION

BETWEEN:

The Law Society of Upper Canada

Respondent/Applicant

- and -

Ernest Guiste

Applicant/Respondent

AMENDED NOTICE OF MOTION

          TAKE NOTICE THAT the "licensee", Applicant/Respondent  will  bring the within motion for the Panel to adjudicate after hearing all of the evidence;

RELIEF SOUGHT:

1.      An Order striking the Notice of Application issued against the           Applicant/Respondent in its entirety or in part;

2.      Alternatively, should liability be established, an order staying the prosecution of the Applicant as an abuse of process in all of the circumstances of this case or awarding such other remedy as is just in all of the circumstances.               

3.      Such further and other relief as the Panel may see as just and not   contrary to the interests of justice and the public interest.

 The Grounds for the Application are:

Count 1

1.      When viewed in the context and circumstances in which the words in count 1 were stated the Applicant/Respondent is doing no more than asking the trial judge to discharge her judicial duty to be impartial as between the parties and this conduct can not constitute "professional misconduct" or "conduct unbecoming a licensee" pursuant to s.33 of The Law Society Act ;      

2.      The Applicant/Respondent has constitutionally expressive rights guaranteed by s. 2(b) of the Canadian Charter of Rights and    Freedoms which are violated by count 1;

3.      The Applicant/Respondent was exercising rights and duties to his   client enshrined in the United Nation's Basic Principles on the Role of  Lawyers art. 14, 15 and 16;

4.      In Dore  v.  Barreau du Quebec [2012] 1 S.C.R. 395 the Supreme Court of  Canada pronounced that "Proper respect for these expressive rights may involve bodies tolerating a degree of discordant criticism. The fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer's expressive rights under the Charter."

5.      As such, the Applicant/Respondent placed reasonable reliance on Dore  v.  Barreau du Quebec supra;

 6.      In addition, the Applicant/Respondent was discharging his duty to the court and administration of justice to restrain a prosecutor who was not only abusive to a witness but was disrespectful and abusive to the trial judge when she directed counsel for the parties to take a break   and resume the trial.  The prosecutor retorted, "Your Honour you can take this abuse from Mr. Guiste if you like but I am leaving." He left

causing an early conclusion to the trial and a change in prosecutor;

7.      When the Defendant's mother who was present in the court to observe the prosecutor's misconduct made a written complaint to the Respondent/Applicant they dismissed it under the guise of prosecutorial discretion thereby displaying a lack of impartiality as   between the Applicant/Respondent and the prosecutor;

8.      The Applicant/Respondent asked the Respondent/Applicant to provide the following disclosure and the Respondent has yet to provide a  response:

 1.      To review the wisdom of prosecuting the subject

           charge in light of the Supreme Court of Canada's

           pronouncements in Dore supra and Groia  v. 

           The Law Society of Upper Canada 2018 S.C.C. 27

           ; and

 2.      A list of the witnesses they intend to call to establish

          their case along with a summary of the material facts

          they have to offer.

                            

 8.      The inordinate delay between the words spoken and the hearing is now six years and counting.  None of this delay is the Applicant/Respondent's fault. The Applicant/Respondent and the administration of justice proper both suffer grave prejudice from this occurrence. It is not in the public interest to allow this prosecution to stand;

9.      Blencoe   v.  B.C. Human Rights Commission [2000] 2 S.C.R 307

Count 2

10.    see grounds 1-9 on count 1 and the additional grounds below.

11.    The learned trial judge heard all the words spoken and directed counsel for the parties to take a break and to continue the trial after the break. The Aplicant/Respondent properly apologized to the   prosecutor on the record on the last incident in order to protect the integrity of the process. The prosecutor brashly rejected the apology and abandoned the trial leaving the Ministry of the Attorney General to   provide a replacement prosecutor, who so happened to be African-Canadian. The trial proceeded without incident and the Applicant/Respondent was successful in beating all of the charges against his client;

Res Judicata

12.    The trial judge having heard and pronounced upon the words spoken, the Applicant/Respondent having apologized both on the record and subsequently in writing the issue is spent and it could not be in the public interest for the Respondent/Applicant to prosecute the Applicant/Respondent and close its eyes to the prosecutor's acts and omissions - since their mandate to regulate the profession is not   absolute. They must regulate in the public interest.

Count 3

13.    The Notice of Application fails to particularize the subject conduct and the Respondent/Applicant has yet to provide particulars;

14.    The trial judge cautioned the Applicant/Respondent anytime 

he  said something which he felt was inappropriate to the witness 

or Crown Counsel and the Applicant /Respondent 

properly apologized on the record each and every time in order to 

protect the integrity of the process;

15.    The trial judge and counsel for the parties thoroughly addressed and resolved the issue characterized as an "unfounded allegation of prosecutorial misconduct" at the trial to everyone's satisfaction;

16.    As the complaint letter dated June 28th, 2013 signed by Mr. Saltmarsh on the R  v. Street matter confirms complaints alleging professional misconduct from a Crown Attorney must come through the Ministry of the Attorney General. No complaint was made by that office.

17.    Groia   v.  Law Society of Upper Canada 2018 S.C.C. 27 at paragraph 157 and generally.

Count 4

18.    Expert opinion evidence on the standard of practice is necessary in order to establish an allegation of professional incompetence yet before any opinion was obtained the allegation of incompetence was published in the Toronto Star with a person who ultimately became a member of the referral body which sends 

complaints to hearing, namely, the Proceedings Authorization Committee(PAC) making strong statements of condemnation on the allegations which would ultimately be investigated and possibly go to a hearing;

19.    The Proceedings Authorization Committee then authorized the Respondent to proceed on count 4 with no evidence to support their authorization. That is without the opinion of a expert that the Applicant had failed to meet the standard of practice 

20.    The Respondent/Applicant obtained its expert report in January, 2019 from a law firm where three of the four partners, namely, the late Austin Cooper, Q.C., Mr. Mark West, now Justice West of the Ontario Court of Justice and Ms. Andrea Tuck-Jackson, now Justice Tuck- Jackson of the Ontario Court of Justice mentored and provided legal advice and strategy to the Applicant/Respondent on criminal matters over the years.

Count 5

21.    The Applicant/Respondent repeats and relies upon the grounds  delineated above on counts 1-3.  

22.    The process and procedures employed in the initiation of the 

subject complaints, their investigation and referral to hearing were 

carried out for an improper purpose or a purpose inconsistent with 

the Respondent's duty to the public, the member and the Court of 

Appeal's holding in R  v. Brown 64 O.R. (3d) 161(ONCA) and 

reveal a pattern and practice of a disproportionate response to his 

good faith advocacy for fairness and equality for his African-

Canadian clients etc.in R  v. Street; R  v. Ram and Justices of the 

Peace Review Council v  Massiah.

                   

The following documentary evidence will be relied upon:

1.      R  v. Street (judgement); R  v. Street (Charter);

2.      Ministry of the Attorney General June 28th, 2013 complaint letter;

3.      Applicant's Response to complaint letter in R  v. Street;

4.      Subpoena issued to Chief of Police - Durham Region Police;

5.      R  v.  Ram (Mistrial Decision);

6.      Toronto Star article re Mistrial decision etc.

7.      L.S.U.C . notice letter inviting response;

8.      Applicant's Responses

8.      Such further documentary evidence that counsel may seek to adduce and the Panel deem relevant.

            The Applicant may be served with documents related to this motion at his office pursuant to the Rules.

 May 25^th, 2019                                                                  

(Amended August 1st, 2019)

ERNEST J. GUISTE

E.J. GUISTE PROFESSIONAL CORP       

2 County Court Blvd., Suite 494

Brampton, Ontario

L6W 3W8

(416) 364-8908

E mail: ejguiste@yahoo.com

Self-Represented

GOLDBLATT PARTNERS LLP

20 Dundas Street West, Suite 1039

Toronto, Ontario

M5G 2C2

Mr. Daniel Iny LSO# 4853F

Tel.(416) 979-4247

E mail:  diny@goldblattpartners.com

Lawyers for the Responding party, Law Society of Upper Canada

AND TO:

The Law Society Tribunal

375 University Avenue, 4th Floor

Toronto, Ontario