Canadian Investment Banker, Amy Cooper's false-report to police in response to Mr. Cooper's effort to have her comply with the park law prohibiting unleashed dogs in the area of their interaction - implicitly calling on them to protect her "from an African-American man who is threatening her life and safety" is an all too common reaction that is a fixture in both American and Canadian society. One would instinctively think that Ontario's legal profession would be immune from this practice but it is not. Racial bigotry, intolerance and differential treatment abound in Ontario's legal profession to the detriment of Black lawyers who dare to fearlessly represent their Black clients as is their duty.
To illustrate my point I will review two judicial misconduct cases coming from Ontario recently - Smith v. Canadian Judicial Council 2020 FC 629 and Massiah v. Justices of the Peace Review Council. Smith supra involved a White Superior Court Judge. Justice Smith was represented by Mr. Brian Gover a White lawyer. Massiah involved a Black Justice of the Peace. Myself and three other lawyers, one Black, one South Asian and one White shared the task of representing His Worship Massiah.
In both cases the defence of the judicial officers involved statutory interpretation challenges to what is commonly referred to a "threshold jurisdiction issues" and the common law doctrine of abuse of process. In Smith surpa Justice Smith was alleged to have committed judicial misconduct by accepting an unpaid position as Interim-Dean at a law school although he got clear permission from both his Chief Justice and the Attorney General of Canada prior to accepting the position. Justice Smith's lawyer, Mr. Gover forcefully argued that his client was not in breach of the prohibition in s.55 of the Judges Act. That provision provides the following:
"No judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties."
Mr. Gover pointed out that steps had been taken in advance to ensure that Justice Smith's role was purely academic with no compensation and with safeguards to immunize him from any potential litigation and most importantly it received the blessing of the Attorney General of Canada - the person who would be responsible for removing him from office if the complaint against him had any merit and was upheld.
Mr. Gover went further and brilliantly asserted that the Canadian Judicial Council had abused its process in investigating Justice Smith in the circumstances of this case. His argument was simple and powerful. Mr. Gover argued that Justice Smith's conduct in this case would never have resulted in his removal form office because the Minister of Justice had already reached an opinion that his leave of absence to serve as Interim Dean (Academic) was in the public interest.
In Massiah supra The Justices of the Peace Review Council acted on a report filed with them by Presenting Counsel they had retained to prosecute a complaint from the Director of Court Operations at the Ministry of the Attorney General which resulted in among other things, His Worship Massiah(HW Massiah) having to undertake Gender Boundary Sensitivity Training. Presenting Counsel's report suggested that as a result of publicity from the on-going hearing six individuals from another court contacted Presenting Counsel that they too had encountered inappropriate gender-boundary interaction with His Worship at another court he presided at. The Gender Boundary issues involved interactions with staff like the following: 1. what he felt were positive comments about their appearance - "you look nice". "you look like you have lost weight" and 2. two clerks inadvertently entering his office and seeing him in his under shirt.
The first case against His Worship Massiah concluded on or about April 12th, 2012(The 2011 Panel). He received a 10 day suspension and the Chief Justice of the Ontario Court of Justice ordered him to take Gender Boundary Sensitivity Training in order to cure what the Hearing Panel concluded was necessary to restore public confidence in the judiciary. His Worship's lawyers before the 2011 Panel, now Mr. Justice Thomas Carey(a White lawyer) and high profile Brampton lawyer, Mr. Eugene Bhattacharya(a half White half South Asian lawyer) were paid directly by the Attorney General of Ontario for his defence.
The 2011 Panel made the following significant findings of fact in ordering their Disposition: 1. "We are confident that His Worship Massiah will not engage in this type of conduct in the future". 2. "We are of the view that Justice of the Peace Massiah's efforts are an important first step in addressing his "profound and fundamental problem" regarding the power imbalance that exists in a courthouse setting and the appropriate boundaries that must be recognized and respected regarding female court staff in the workplace". 3. "The Panel finds that Justice of the Peace Massiah has demonstrated his willingness to address the aforementioned concerns and is capable of rehabilitation". 4. "We accept Justice of the Peace Massiah's efforts as the beginning of an ongoing process and not the ending".
A mere two weeks following the 2011 Panel's Disposition the Justices of the Peace Review Council initiated what they maintain to this very day is a "new complaint" against HW Massiah. I say "new" because the complaint was not new at all. All of the "new" allegations actually pre-dated the events that were the subject of the 2011 Panel's Disposition and were of the same nature and quality - i.e. gender boundary issues.
Like Mr. Gover HW Massiah's defence team brought a preliminary motion challenging the jurisdiction of the 2012 Hearing Panel to entertain the complaint or find liability on account of a lack of a "complaint" as that term is used under the Justices of the Peace Act and by virtue of the fact that the proceedings constituted an abuse of process, for among other reasons, the Chief Justice of the Ontario Court of Justice was fully apprised of the concerns which the 2011 Panel found and she personally ordered HW Massiah to undertake Gender Boundary Sensitivity Training - which he did. One of the arguments advanced on HW Massiah's behalf was that if one has a deficit in understanding with respect to Gender Boundary issues between 2008 and 2010 it stands to reason that one would have that deficit in understanding between 2007 and 2010 and accordingly it was clearly not in the public interest to embark on what turned out to be a 23 day hearing.
Mr. Gover's argument on behalf of Justice Smith was well-received by the Federal Court of Canada. That court found that the Canadian Judicial Council had abused its process and the court's process by proceeding with the investigation and subsequent proceedings in all of the circumstances. (see Smith v. The Attorney General of Canada 2020 FC 629) Justice Smith was cleared of all wrong-doing. His lawyer was never criticized for "attacking the judicial discipline process and everyone involved". He appears to have been paid for his defence work without any adverse publicity. (see JP Looses Bid to Have Taxpayers Pay Legal Fees - Toronto Sun)
The outcome in the two cases are as stark as the difference between Black And White. HW Massiah was removed from office even though the Chief Justice of the Ontario Court of Justice was fully apprised of the issues found by the 2011 Panel and personally ordered him to take Gender Boundary Sensitivity Training to cure his deficit in the area and to restore public confidence and he did not re-offend. The "new complaint" involved allegations pre-dating the 2011 Panel's Disposition which the Chief Justice personally intervened in and augmented their Disposition.
HW Massiah was denied indemnification for the costs associated with his defence. Two lawyers, Jeffry House( A White lawyer) and myself (a Black lawyer) defended HW Massiah over the course of what ended up being roughly 23 days of hearing. Presenting Counsel, the lawyer retained by the Justices of the Peace Review Council to draft the Notice of Hearing which was the subject of a substantial portion of the jurisdictional and abuse of process motions made the following three submission to the 2012 Hearing Panel - the first two of which they accepted holus bolus and the third they "tip-toed" over likely for fear that underlying racial animus would be too evident:
1. "Fundamentally, the motions arguing lack of jurisdiction and abuse of process were an unmeritorious effort to extricated His Worship from proceedings, not a public interest matter in which the litigant could reasonably expect the public to help defray the costs of the litigation. "
2. "Maintaining public confidence in the judiciary is the overriding purpose of the judicial conduct regime. Public confidence would be undermined if efforts by the Applicant to derail the proceedings with meritless motions are not met with the appropriate response" and
3. "To be clear, Presenting Counsel recognizes that the hearing proper, as opposed to the pre-hearing motions, was conducted appropriately and efficiently by Mr. House(the White lawyer).
Conclusion and Commentary:
The unlawful killing of Black men, women and children in Ontario happens frequently and often without any redress for the Black victim and full exoneration for the subject officer. Black lawyers like myself who stand up and fearlessly defend their Black clients are punished financially and our professional reputations are often tarnished under the pretext of incivility and incompetence. According to Regulators and lawyers who defend the state interest it is somehow professional misconduct to assert as a legal submission that it appears on the evidence that the Crown or Presenting Counsel, as they refer to the lawyer prosecuting judicial discipline cases in Ontario, is treating my client in a discriminatory manner on account of their race. How dare you accuse us of being racist is the traditional response ?
The problem is this. All too many a White lawyer and adjudicator, just like Amy Cooper, knows all too well that once their conduct or the legal process is called into question by a Black lawyer they can "turn the table" and the legal process is there to punish the Black lawyer and "protect the integrity of the profession".
The Regulator has even intervened in circumstances where one of the parties, like the Ministry of the Attorney General, brings a complaint alleging that the Black lawyer disrespected the trial judge even though the trial judge fully exonerated the Black lawyer's client and made no complaints against his conduct. This actually happened to me. The judge took no issue with my advocacy. The prosecutor did. The Regulator is actually taking this to a public hearing even though the Supreme Court of Canada has recognized that a lawyer's criticism of a judge may be in the public interest.(see Dore v. Barreau du Quebec)
The challenge for the legal profession and Ontario moving forward is how are they going to deal with this very serious inequality in the profession. When Black lawyers who are specifically sought out by members of the public to advocate on their behalf are unfairly circumscribed in the discharge of their duty as lawyers this does not serve the public interest mandate of the regulator or the people of Ontario. History has shown us very clearly that the Attorney General takes the lead in implementing change in Ontario's legal profession and not the regulator. Women were denied the right to practice law by the regulator because they were not considered persons. Blacks were denied by the regulator as well. In both cases the Attorney General for Ontario had to intervene and bring about change. Have women and racial minorities in the legal profession lost a historical ally ?
About the author: E.J. Guiste is a Black Lawyer based in the Greater Toronto Area. A substantial amount of his work involves representing racial minorities and women in the areas of employment, human rights, criminal, professional discipline and police malpractice at all levels of court.
To illustrate my point I will review two judicial misconduct cases coming from Ontario recently - Smith v. Canadian Judicial Council 2020 FC 629 and Massiah v. Justices of the Peace Review Council. Smith supra involved a White Superior Court Judge. Justice Smith was represented by Mr. Brian Gover a White lawyer. Massiah involved a Black Justice of the Peace. Myself and three other lawyers, one Black, one South Asian and one White shared the task of representing His Worship Massiah.
In both cases the defence of the judicial officers involved statutory interpretation challenges to what is commonly referred to a "threshold jurisdiction issues" and the common law doctrine of abuse of process. In Smith surpa Justice Smith was alleged to have committed judicial misconduct by accepting an unpaid position as Interim-Dean at a law school although he got clear permission from both his Chief Justice and the Attorney General of Canada prior to accepting the position. Justice Smith's lawyer, Mr. Gover forcefully argued that his client was not in breach of the prohibition in s.55 of the Judges Act. That provision provides the following:
"No judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties."
Mr. Gover pointed out that steps had been taken in advance to ensure that Justice Smith's role was purely academic with no compensation and with safeguards to immunize him from any potential litigation and most importantly it received the blessing of the Attorney General of Canada - the person who would be responsible for removing him from office if the complaint against him had any merit and was upheld.
Mr. Gover went further and brilliantly asserted that the Canadian Judicial Council had abused its process in investigating Justice Smith in the circumstances of this case. His argument was simple and powerful. Mr. Gover argued that Justice Smith's conduct in this case would never have resulted in his removal form office because the Minister of Justice had already reached an opinion that his leave of absence to serve as Interim Dean (Academic) was in the public interest.
In Massiah supra The Justices of the Peace Review Council acted on a report filed with them by Presenting Counsel they had retained to prosecute a complaint from the Director of Court Operations at the Ministry of the Attorney General which resulted in among other things, His Worship Massiah(HW Massiah) having to undertake Gender Boundary Sensitivity Training. Presenting Counsel's report suggested that as a result of publicity from the on-going hearing six individuals from another court contacted Presenting Counsel that they too had encountered inappropriate gender-boundary interaction with His Worship at another court he presided at. The Gender Boundary issues involved interactions with staff like the following: 1. what he felt were positive comments about their appearance - "you look nice". "you look like you have lost weight" and 2. two clerks inadvertently entering his office and seeing him in his under shirt.
The first case against His Worship Massiah concluded on or about April 12th, 2012(The 2011 Panel). He received a 10 day suspension and the Chief Justice of the Ontario Court of Justice ordered him to take Gender Boundary Sensitivity Training in order to cure what the Hearing Panel concluded was necessary to restore public confidence in the judiciary. His Worship's lawyers before the 2011 Panel, now Mr. Justice Thomas Carey(a White lawyer) and high profile Brampton lawyer, Mr. Eugene Bhattacharya(a half White half South Asian lawyer) were paid directly by the Attorney General of Ontario for his defence.
The 2011 Panel made the following significant findings of fact in ordering their Disposition: 1. "We are confident that His Worship Massiah will not engage in this type of conduct in the future". 2. "We are of the view that Justice of the Peace Massiah's efforts are an important first step in addressing his "profound and fundamental problem" regarding the power imbalance that exists in a courthouse setting and the appropriate boundaries that must be recognized and respected regarding female court staff in the workplace". 3. "The Panel finds that Justice of the Peace Massiah has demonstrated his willingness to address the aforementioned concerns and is capable of rehabilitation". 4. "We accept Justice of the Peace Massiah's efforts as the beginning of an ongoing process and not the ending".
A mere two weeks following the 2011 Panel's Disposition the Justices of the Peace Review Council initiated what they maintain to this very day is a "new complaint" against HW Massiah. I say "new" because the complaint was not new at all. All of the "new" allegations actually pre-dated the events that were the subject of the 2011 Panel's Disposition and were of the same nature and quality - i.e. gender boundary issues.
Like Mr. Gover HW Massiah's defence team brought a preliminary motion challenging the jurisdiction of the 2012 Hearing Panel to entertain the complaint or find liability on account of a lack of a "complaint" as that term is used under the Justices of the Peace Act and by virtue of the fact that the proceedings constituted an abuse of process, for among other reasons, the Chief Justice of the Ontario Court of Justice was fully apprised of the concerns which the 2011 Panel found and she personally ordered HW Massiah to undertake Gender Boundary Sensitivity Training - which he did. One of the arguments advanced on HW Massiah's behalf was that if one has a deficit in understanding with respect to Gender Boundary issues between 2008 and 2010 it stands to reason that one would have that deficit in understanding between 2007 and 2010 and accordingly it was clearly not in the public interest to embark on what turned out to be a 23 day hearing.
Mr. Gover's argument on behalf of Justice Smith was well-received by the Federal Court of Canada. That court found that the Canadian Judicial Council had abused its process and the court's process by proceeding with the investigation and subsequent proceedings in all of the circumstances. (see Smith v. The Attorney General of Canada 2020 FC 629) Justice Smith was cleared of all wrong-doing. His lawyer was never criticized for "attacking the judicial discipline process and everyone involved". He appears to have been paid for his defence work without any adverse publicity. (see JP Looses Bid to Have Taxpayers Pay Legal Fees - Toronto Sun)
The outcome in the two cases are as stark as the difference between Black And White. HW Massiah was removed from office even though the Chief Justice of the Ontario Court of Justice was fully apprised of the issues found by the 2011 Panel and personally ordered him to take Gender Boundary Sensitivity Training to cure his deficit in the area and to restore public confidence and he did not re-offend. The "new complaint" involved allegations pre-dating the 2011 Panel's Disposition which the Chief Justice personally intervened in and augmented their Disposition.
HW Massiah was denied indemnification for the costs associated with his defence. Two lawyers, Jeffry House( A White lawyer) and myself (a Black lawyer) defended HW Massiah over the course of what ended up being roughly 23 days of hearing. Presenting Counsel, the lawyer retained by the Justices of the Peace Review Council to draft the Notice of Hearing which was the subject of a substantial portion of the jurisdictional and abuse of process motions made the following three submission to the 2012 Hearing Panel - the first two of which they accepted holus bolus and the third they "tip-toed" over likely for fear that underlying racial animus would be too evident:
1. "Fundamentally, the motions arguing lack of jurisdiction and abuse of process were an unmeritorious effort to extricated His Worship from proceedings, not a public interest matter in which the litigant could reasonably expect the public to help defray the costs of the litigation. "
2. "Maintaining public confidence in the judiciary is the overriding purpose of the judicial conduct regime. Public confidence would be undermined if efforts by the Applicant to derail the proceedings with meritless motions are not met with the appropriate response" and
3. "To be clear, Presenting Counsel recognizes that the hearing proper, as opposed to the pre-hearing motions, was conducted appropriately and efficiently by Mr. House(the White lawyer).
Conclusion and Commentary:
The unlawful killing of Black men, women and children in Ontario happens frequently and often without any redress for the Black victim and full exoneration for the subject officer. Black lawyers like myself who stand up and fearlessly defend their Black clients are punished financially and our professional reputations are often tarnished under the pretext of incivility and incompetence. According to Regulators and lawyers who defend the state interest it is somehow professional misconduct to assert as a legal submission that it appears on the evidence that the Crown or Presenting Counsel, as they refer to the lawyer prosecuting judicial discipline cases in Ontario, is treating my client in a discriminatory manner on account of their race. How dare you accuse us of being racist is the traditional response ?
The problem is this. All too many a White lawyer and adjudicator, just like Amy Cooper, knows all too well that once their conduct or the legal process is called into question by a Black lawyer they can "turn the table" and the legal process is there to punish the Black lawyer and "protect the integrity of the profession".
The Regulator has even intervened in circumstances where one of the parties, like the Ministry of the Attorney General, brings a complaint alleging that the Black lawyer disrespected the trial judge even though the trial judge fully exonerated the Black lawyer's client and made no complaints against his conduct. This actually happened to me. The judge took no issue with my advocacy. The prosecutor did. The Regulator is actually taking this to a public hearing even though the Supreme Court of Canada has recognized that a lawyer's criticism of a judge may be in the public interest.(see Dore v. Barreau du Quebec)
The challenge for the legal profession and Ontario moving forward is how are they going to deal with this very serious inequality in the profession. When Black lawyers who are specifically sought out by members of the public to advocate on their behalf are unfairly circumscribed in the discharge of their duty as lawyers this does not serve the public interest mandate of the regulator or the people of Ontario. History has shown us very clearly that the Attorney General takes the lead in implementing change in Ontario's legal profession and not the regulator. Women were denied the right to practice law by the regulator because they were not considered persons. Blacks were denied by the regulator as well. In both cases the Attorney General for Ontario had to intervene and bring about change. Have women and racial minorities in the legal profession lost a historical ally ?
About the author: E.J. Guiste is a Black Lawyer based in the Greater Toronto Area. A substantial amount of his work involves representing racial minorities and women in the areas of employment, human rights, criminal, professional discipline and police malpractice at all levels of court.
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