J.P. MASSIAH'S - WRITTEN SUBMISSIONS ON JURISDICTION MOTION

                                                                                                File No. 05-22-041/1PD2

JUSTICES OF THE PEACE REVIEW COUNCIL

IN THE MATTER OF COMPLAINT(S)

REGARDING HIS WORSHIP ERROL MASSIAH

Justice of the Peace in the

Central East Region

 SUBMISSIONS ON BEHALF OF

HIS WORSHIP MASSIAH

E.J. GUISTE

Professional Corporation

Trial & Appellate Advocacy

245 Yorkland Blvd., Suite 302

Toronto, Ontario

M2J 4W9

Ernest J. Guiste

(416) 364-8908

(416) 364-0973 fax

JEFFRY HOUSE

Barrister & Solicitor

31 Prince Arthur Avenue

Toronto, Ontario

M5R 1B2

(416) 707-6271

(416) 960-5456 fax

Co-counsel for HW Massiah

PRELIMINARY MOTIONS:

1.                   The Applicant  Justice of the Peace Massiah has made two preliminary objections which should, it is submitted, be decided prior to any determination on the merits of the case.

2.                   First, it is submitted that the Panel has no jurisdiction to hear the case; it is submitted that no “complaint” has been made as required by the Justice of the Peace Act as a foundation for jurisdiction. The Applicant’s argument on this point is found as Part One of these Written Submissions.

3.                   Second, and in the alternative, it is submitted that the Panel should exercise its jurisdiction under s. 23 (1) of the Statutory Procedures Act to prevent abuse of its processes and impose an appropriate remedy. Argument on this point is found in Part Two of these Written Submissions.

4.                   Should the Panel find no merit in either Part One or Part Two of this Memorandum,  Justice Massiah, Respondent on the merits, submits that the evidence at the hearing does not support an allegation of judicial misconduct, and this Panel should so find. Argument for this proposition is to be found at Part Three to this Memorandum.

PART ONE: JURISDICTION

5.                   The Panel  has permitted argument on the question of whether any of the complaints before it comply with the requirement set out in section 10.2(2) of the Justice of the Peace Act that a complaint be “in writing”.

Panel Decision on Grounds to be Argued on the

Motion Alleging Abuse of Process - June 19/04, Paragraph 8 and 18

A       Has there been a “complaint” made sufficient to provide a foundation for urisdiction for     a hearing under the Justices of the Peace Act ?

6.                   Neither the panel nor the Applicant know the date, nor the contents of the first telephone calls to Mr. Hunt, presenting counsel on the previous proceeding, which resulted from newspaper articles reporting on that earlier proceeding.

                                    Presenting Counsel Motion Record - June, 2013

                                    Report to the Justices of the Peace Review Council

                                    dated November 1, 2011 in prior proceedings

                         Affidavit of HW Errol Massiah sworn March 25th, 2014

7.                   The Report to the Justices of the Peace Council received by them on November 2nd, 2011 is proffered as the  “complaint in writing” required by the Act. That report presents summarized “will-state” statements, commonly prepared for witnesses in a proceeding. They do not identify either the maker or the transcriber as a complainant. They are not sworn, nor are they signed.  There is no indication on their face that they represent a complaint to the Review Council.

                 Presenting Counsel’s Motion Record dated  - Tab A

                              Report of Prior Presenting Counsel to JPRC and enclosures        

    

8.                   In a letter dated November 3rd, 2011, the Registrar, Ms. Marilyn King responded to Presenting Counsel’s delivery of his Report asking whether it should be treated as a new complaint. Mr. Hunt, hardly an unsophisticated party, it is submitted, replied that the Report constitutes  “the information we have received”  and is being forwarded to the Council “for its consideration.” He does not indicate that it is a “complaint” under the Act.

Applicant’s Motion Record (as above)

Registrar’s letter dated Nov.3, 2011 - Tab B

Presenting Counsel’s response dated Nov.3/11 - Tab A

9.                   In Mackin v. Judicial Council, the Court of Appeal for New Brunswick had occasion to consider the proper meaning of “complaint” in a proceeding involving the Judicial Council, a body analogous to the Justice of the Peace Review Council in the proceedings at bar., The court held that a body with oversight over the judiciary may investigate a “written complaint”, but not a written “report”. 

Mackin v. Judicial Council 1987 Canii 138 at page 2;

and page 15 (NBCA)

10.               The Complaints Committee determined, without any legal basis, it is submitted,  that it would treat the Hunt Report as a complaint under the Act. The Committee conducted a wide-ranging investigation in which “everybody in the office” at the Rossland Courthouse was called in to be interviewed by investigators.

                                    Testimony of Presenting Counsel witnesses - June 15 -18/2014

Complaints Committee Investigation

                                    Transcripts - Vol.1-5

11.               In a letter dated January 2, 2013, the Complaints Committee appears to dismiss four of the five allegations, which it treated as complaints, leaving only one allegation to go forward, namely, the “looking good” comment made by Ms. X .   

Applicant’s Motion Record (as above)

JPRC letter dated January 2, 2013 p.4-7

                                    Exhibit 11

12.               However, Ms. X was clear in her testimony that she made her telephone call to Mr. Hunt on the theory that she might be called as a witness in reply at the first hearing.

Hearing Transcript July 17, 2014

Testimony in chief of Ms. X 

page 36, lines 11-13;

cross-examination page 81

Evidence of insufficiency of “complaint”:

 13.               Nor did any of the other witnesses heard by the Committee affirmatively state that they had  intended to make a “complaint” under the Justices of the Peace Act. Some witnesses testified that they did not know what counsel was talking about in making a complaint, others said that they were simply told that everyone in the office was to be interviewed, and some simply stated that they had never made a complaint against Justice Massiah.

                        Hearing Transcript - July 15 - 18, 2014

                                    Testimony of B - July 16th (p.29-35)

Testimony of D - July 16th (p.180-82)

Testimony of Q - July 17th (p.133-34)

Testimony of P - July 18th at p. 137-43

Testimony of W - July 18th (received notice of investigation)

Testimony of M -  July 18th (p.90-93)

Presenting Counsel Report - Nov.1st, 2011

(see M interview - did not want to testify)

Testimony of V - July 17th (p.189)

Testimony of A - July 17th (p.144)

Testimony of F - July 16th p. 89, lines 8-10

14.               Y testified that she was “pissed off” when she read the Law Times article and was concerned that HW Massiah would “only get a slap on the writst”.  She testified that P encouraged her “to come forward” and provided her with Presenting Counsel’s phone number for her to contact their office.  P denied Ms. Y’s claim that she encouraged her to “come forward.” 

Testimony of Y - p.102, 104, 106, 107, 113

15.               Y clearly testified that she personally did not have any interactions with HW Massiah which were sexually inappropriate.  The first matters she raised in her will-say in the Hunt Report focussed on her daughter.  An incident allegedly involving the touching of her daughter was dismissed by the complaints committee on the basis of “no direct evidence.” Surprisingly, her mere mention of what turned out to be the F incident in the same will-say was pursued notwithstanding the serious irregularities with F’s evidence during the investigation.  During cross-examination at the hearing Ms. Y confirmed that she testified during the investigation to saying “His hands are, to me, looked like was on her shoulder” and she conceded that she did not in fact observe HW Massiah touching her shoulder. (see p. 135)  The other incidents referenced in her Hunt Report will-say involved hearsay involving a co-worker telling her of the W seminar incident and attending on HW and finding him shirtless.

Relevant and corroborating evidence

not secured and produced:

16.               Both M and P clearly conceded their failure to secure what would have been relevant and corroborating evidence in support of their allegations involving HW Massiah’s conduct in the courtroom.  P testified that she did not secure transcripts and the like because according to her knowledge there was no complaint going forward at the time and “there wasn’t intention by me, or any movement in our office that I was aware of, by management to take it any further.”.(see p.118)

                                    Testimony of M and P

17.               It is submitted that  the common sense meaning of the words “a complaint …must be in writing” as set out in s. 10.2(2) of the Justice of the Peace Act does not include the broader meaning “capable of being written down” or “capable of being reduced to writing”. Had the Legislature intended the broader meaning, it would have said so, it is submitted.

Justice of the Peace Act, s. 10.2(2)

18.               As is stated in Cote, The Interpretation of Statutes in Canada:

“Since the judge’s task is to interpret the statute, not create it, interpretations should not add to the terms of the law. Legislation is deemed to be well-drafted and express completely what the legislature wanted to say.”

P. Cote, The Interpretation of Statutes in Canada,

3rd ed. (Toronto: Carswell, 2000) p. 276

19.               It is further submitted that a contextual analysis of the statute yields the same answer as a literal reading: “a complaint must…be made in writing” does not include the purported complaints which are before this panel. The proper interpretative principle is set out in Driedger on Statutes:

“Today, there is only one principle or approach, namely, the words of an act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the act, the object of the act, and the intention of Parliament.”

Driedger, Construction of Statutes, 2nd ed. 1983

Re Rizzo & Rizzo Shoes Ltd. 1998 S. C. R. 27

Bell Express Vu LP v. Rex (2002) 2 S.C.R. 559

20.               Driedger indicates that the “grammatical and ordinary sense” of the word or phrase to be interpreted must not contradict the scheme and object of the enactment. Further, it must not be contrary to the intention of the legislative body which has passed the legislation.

21.               It is submitted that the scheme and object of The Justices of the Peace Act is to create and enable an oversight body for Justices of the Peace which is intended to play an important part in the administration of justice in Ontario, and which will be seen as independent and legitimate by the citizens of this province.

Ell v Alberta [2003] 1 SCR 857; 2003 SCC 35 at paragraphs 18-24

Criminal Code of Canada, s. 2, definition of “Justice”  includes Justice of the Peace.

22.               In order to meet this objective, the statute envisages the selection of persons of proven merit  and integrity, with appropriate skills and abilities, community awareness, and personal characteristics, able to administer the law within the terms of the jurisdiction of Justices of the Peace.

Justices of the Peace Act, s. 12(2)

23.               As well, the objects of the statute include the recognition that persons selected to serve as Justices of the Peace reflect the diversity of Ontario’s population.

Justices of the Peace Act, s. 12(6)

24.               The scheme of the statute also contemplates the removal of a Justice of the Peace who has become “incapacitated or disabled” from performing the duties of the office.

Justices of the Peace Act, s. 11.(2)(2)

25.               It is submitted that, in interpreting any provision of the Justices of the Peace Act, a high degree of procedural protection is implicit, given that a Justice of the Peace is a judicial officer whose office is included in the constitutional principle of the independence of the judiciary. As was stated by the Supreme Court in Ell, with reference to the office of Justice of the Peace:

“In light of these bases of judicial independence, impartiality in adjudication, preservation of our constitutional order, and public confidence in the administration of justice-it is clear the principle extends to the judicial office held by the Respondents”.

Ell v. Alberta 2003 SCC 35 at paragraph 24

26.               It is submitted that the importance of the judicial office requires a high degree of procedural protection, to insure that justices are not removable without full procedural rights:

“Judicial independence connotes not merely a state of mind or attitude in the  actual exercise of judicial functions, but a status or relationship to others, particularly in the Executive Branch, that rests on objective conditions or guarantees.”

            LeDain, J. in Valente v. The Queen [1985] 2
            S.C.R. 673 at 678;  see also Ell v. Alberta, supra, paragraph 18

27.               Accordingly, it is submitted that this high standard of procedural protection is part of the object and scheme of the Justices of the Peace Act. Under the Act, any person may make “a complaint” to the Review Council, but it must be “in writing”. The Complaints Committee shall investigate “the complaint”, and “dispose of it” as provided in s. 11 (15).

Justice of the Peace Act. supra

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.

Justices of the Peace Act, s. 11(3)

Hearing transcripts - July 15-18

29.               The legislation mandates that, upon receiving a complaint, the complaints committee is required to investigate it, and when its investigation is complete, shall either dismiss “the complaint” , counsel the justice concerning issues raised in “the complaint”, order a hearing into “the complaint”, or refer “the complaint” to the Chief Justice of Ontario. It is submitted that there is no statutory authority for identifying new complaints or broadening the scope of the inquiry beyond the original complaint.

Justices of the Peace Act, s. 11(15)

30.               In the case at bar, a hearing panel has been convened. The hearing panel has jurisdiction either to dismiss “the complaint” or uphold “the complaint”. It may make appropriate orders in consequence of its determination.

Justices of the Peace Act, s.11(3)

31.               It is therefore submitted that the scheme of the Act does not allow the complaints committee, or any other statutory entity of the Justice of the Peace Review Committee, to create complaints on its own motion, or to investigate anything other than “the complaint” made in writing. Had the legislature wished to create such a body, capable of inquiring broadly into the entirety of the activities of a Justice, on the basis of a single, not necessarily- related “complaint”, it would have said so clearly, it is submitted.

Justices of the Peace Act, supra.

32.               It is submitted that the “objective conditions and guarantees” held by the Supreme Court to be necessary elements of judicial tenure, do not extend to the phone calls reduced to writing, intended to be considered as reply evidence,  which brought Justice Massiah  before this Honourable Panel.

Valente   v.  R  (as above)

Evidence of Patricia Anne Best, supra.

33.               The Applicant submits that the intention of the legislature was that a potential complainant would sign a letter-like document, indicating that he or she believed the information therein to be true and worthy of further examination by those in authority. The requirement that a complaint be in writing was intended to provide a level of solemnity and clarity which a telephone conversation or summary thereof would not.   Such protection is set out explicitly in the Criminal Code for those accused of either summary and indictable offences, and, it is submitted, provides by analogy a level of required procedural fairness for a complaint against a sitting member of the judiciary. No proceeding under the Criminal Code has ever been legitimately initiated by telephone call reduced to writing, it is submitted. The “written complaint” requirement in the Justices of the Peace Act should not be watered down to remove this protection through interpretation, it is submitted.  Such change call for an amendment by the Legislature of Ontario.

Criminal Code ss. 504 and 789

R. v. Southwick, ex parte Gilbert Steel (1968)  2 CRNS 46

34.               This interpretation is also that of  the Justices of the Peace Review Council itself.    The JRPC website under the heading “Making a Complaint” states:

“If you have a complaint of misconduct about a provincial judge or justice of the peace, you must state your complaint in a signed letter.”

Exhibit - 10 Making a Complaint JPR Website

35.               Nor, it is submitted, do the transcripts of witness interviews undertaken by the Complaints Committee in 2012 constitute written complaints under the Act.  Each and every one of the individual certified transcripts includes as a cover page an Exhibit A. That exhibit is directed to “the witness being interviewed by investigative counsel” and explains to that witness that witnesses are potentially compellable in an eventual proceeding. The Exhibit letter does not state that the interview itself is to be considered a complaint. In fact, it states that the interview is in furtherance of “a complaint which has been received by the Review Committee”.

Complaints Committee Investigation

Transcripts - Vol. 1 - 5 Exhibit “A” to each witness    statement

36.               It is therefore submitted that the Notice of Hearing dated May 31, 2013 with an appended document purporting to give particulars to “the complaint” has no relationship to “the complaint in writing” required under the Justice of the Peace Act. Indeed, it is submitted that the Legislature has nowhere authorized the creation of a “Notice of Hearing”  with the effect of providing a foundation for the jurisdiction of a Panel constituted under the Act.

Notice of Hearing - Exhibits 1A, 1B 

Justices of the Peace Act, s. 11

37.               It is submitted that the Justices of the Peace Act does not authorize a general investigation of a sitting Justice; its investigation must be relevant to “the complaint” if any. While all queries relevant to “the complaint” are appropriate, the Review Council does not have independent investigatory powers, and is not permitted to broaden an investigation to seek out new complaints.

                                    HW Massiah’s Writtens Submissions

Fifth Annual Report 2011 JPRC at p.11, Tab B

                       

38.               It is submitted that other sections of the Act contribute to the conclusion proposed here that a “complaint in writing” under the Act was intended to be a formal step, not to be modified to  include statements reducible to writing.  For example, s. 9(4) of the Act requires that the Review Council provide “Province-wide free telephone access” in order to provide information to the public about itself and its role in the justice system. There is no reference to the proposal that complaints could be taken by telephone and reduced to writing by the Complaints  Committee, the  Review Committee, or by Presenting Counsel. It is submitted that, had this been the intention of the legislature, it would have so provided.

Justices of the Peace Act, s. 9(4)

39.               Further, 9(3) of the Act directs that, “where required”, members of the public are to be “assisted” in the “making” of the documents necessary for making complaints.  It is submitted that this subsection envisages documents made by members of the public. It does not provide authority for the Review Committee to take oral statements and reduce them to writing on its own authority, much less to constitute them as complaints. There is no evidence that any of the witnesses “required” assistance in the making of any document, it is submitted.

Justices of the Peace Act, s. 9(3)

40.               Pursuant to s. 9(1) of the Act , the Review Council is required to provide information in courthouses and elsewhere about its role in the justice system, and specially to include information about how to make a complaint. No doubt in response to this statutory duty, the Review Council website includes the following legal information:

“If you have a complaint of misconduct about a provincial judge or justice of the peace, you must state your complaint in a signed letter.  The letter of complaint should include the date, time and place of the court hearing, and as much detail as possible as to why you feel there was misconduct.”

Exhibit 11

Complaint in writing standard practice in other jurisdictions:

   

41.               The complaint in-writing requirement for complaints against judicial officers is a standard practice in virtually every jurisdiction in Canada and the U.S.A.  The following institutions all have this basic requirement: The Ontario Judicial Council, The Justices of the Peace Review Council, The Canadian Judicial Council, Provincial Court of British Columbia, New York State Commission on Judicial Conduct, Commission on Judicial Conduct(California) and Washington State Commission on Judicial Conduct.

Applicant’s Written Submissions - Tab A

(Complaint Process from each jurisdiction website)

42.               In Ontario College of Pharmacists   v.   Katzman the Court of Appeal for Ontario had opportunity to deal with the jurisdiction issue which is raised here in the context of an investigation and subsequent hearing under the enabling legislation regulating pharmacists. In that case the Complaints Committee was to investigate two complaints relating to dispensing errors involving two persons(Cole and Yellen).  In the course of the investigation of the two matters other allegations of misconduct were discovered and referred to the Discipline Committee (Hearing Panel).  Mr. Katzman was convicted and sought leave to appeal.  Leave to appeal was granted on the question of the jurisdiction of the Complaints Committee to refer allegations of professional misconduct to the Discipline Committee of the the Ontario College of Pharmacists.

43.               The Court of Appeal for Ontario unanimously ruled that the Complaints Committee in that case lacked jurisdiction to seek out and refer additional complaints to adjudication.  They stated the following:

            [37]      In summary, given the design of the Code, the jurisdiction given

to the Complaints Committee by s.26(2) paragraph 1 is to refer to

discipline a specified allegation which concerns, in some way, the

matter complained of.  Section 26(2) paragraph 1 does not give

the Complaints Committee jurisdiction to refer to discipline allegations

of other misconduct uncovered during the investigation of the

complaint.

[38]      In this case, there is no need to test the outer limits of what can

properly be referred under s.26(2) paragraph 1.  Here the alleged

dispensing errors involving other individuals, but not Ms. Cole or

Mr. Yellen, came to light during the investigation of the Yellen

complaint.  They do not concern the Cole and Yellen complaints

at all.  They were not themselves the subject of complaints to the

Complaints Committee.  Thus the could not be referred to discipline

by the Complaints Committee pursuant to s.26(2) paragraph 1.

[42]      In conclusion we find that the Complaints Committee did not have

            jurisdiction to refer to discipline allegations of dispensing errors having

            nothing to do with the Cole and Yellen complaints.  Hence those

            allegations were not properly placed before the Discipline Committee

            and the findings of misconduct based on them must be set aside.

44.               IT IS RESPECTFULLY SUBMITTED THAT the question of law raised by HW Massiah on the question of jurisdiction here is clearly governed and answered by the Court of Appeal’s decision in Katzman supra and accordingly the Hearing Panel lacks jurisdiction to entertain any of the allegations on the Notice of Hearing as a result of the evidentiary record before it.

Katzman  v.  Onatrio College of Pharmacists 2002 Canlii 16887  (Ont.C.A.)

                        Mackin  v.  Judicial Concil...1987 Canlii 138 (NB CA)

NB Institute of Chartered Accountants   v. Nicholson, 1993 Canlii    5404 (NB CA)

                                    In the matter of the Legal Profession Act 2011 LSBC 10

Standard of Proof, Credibility and Reliability:

45.       IT IS RESPECTFULLY SUBMITTED THAT the proper adjudication of this case is governed by the Supreme Court of Canada’s decision in F.H. McDougall, 2008 SCC 53 which confirmed that the “balance of probabilities standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent.”

46.       “Credibility” and “reliability” of evidence are distinct concepts which play a fundamental role in the proper adjudication of this case since HW Massiah testified in this case, provided a written response following the investigation and the testimony of the witnesses and their evidence is at odds on some points. 

47.       Credibility relates to the witness’s honesty and sincerity, while reliability encompasses the accuracy and fallibility of the evidence.

48.       The traditional test set out by the British Columbia Court of Appeal in Faryna  v. Chorney [1952] 2 D.L.R. 354 is applicable here:

 “Opportunities for knowledge, powers of observation,   

judgment and memory, ability to describe clearly what

he has seen and heard, as well as other factors, combine

to produce what is called credibility.

The credibility of interested witnesses, particularly in cases

of conflict of evidence cannot be gauged solely by the

test of whether the personal demeanor of the particular

witness carried conviction of the truth.  The test must

reasonably subject his story to an examination of its

consistency with the probabilities that surround the

currently existing conditions.  In short, the real test

of the truth of the story of the witness in such a case

must be its harmony with the preponderance of the

probabilities which a practical and informed person

would readily recognize as reasonable in that place

and in those conditions...Again, a witness may testify

to what he sincerely believes to be true, but he may

quite honestly mistaken.”

Lavoie   v.   Calaboie Peaks et al 2012 HRTO 1237

49.       The following factors assist in the assessment of reliability and credibility and the application of the “preponderance of the probabilities’ test:

-          the internal consistency or inconsistency of evidence

-          the witness’s ability and/or capacity to apprehend and recollect

-          the witness’s opportunity and/or inclination to tailor evidence

-          the witness’s opportunity and/or inclination to embellish evidence

-          the existence of corroborative and/or confirmatory evidence

-          the motives of the witnesses and/or their relationship with the parties

-          the failure to call or produce material evidence

50.       IT IS RESPECTFULLY SUBMITTED THAT the evidentiary record fails to support a finding that the provisions of s.10.2 of the Act was complied with.  Accordingly, these matters are not properly before the Hearing Panel and ought to be dismissed on this basis.

The case for Crown disclosure of police domestic violence investigation polices in Ontario

     In R  v. Stinchombe the Supreme Court of Canada recognized an affirmative duty on the Crown to disclose all relevant evidence in the hands of the Crown to a defendant in advance of the defendant having to make a decision on how he or she elects to proceed or to set a trial date.  This duty was expanded in R   v.  Mcneil to include production of police discipline records.  It is also recognized that items such as use of force reports with respect to the case at hand are relevant and ought to be produced to the defence.

     All police services in Ontario are mandated by statute to implement policies on how to investigate domestic violence occurrences.  Section 29 of Ontario Regulation 3/99 Adequacy and Effectiveness of Police Services requires all police services boards to have a policy on investigations into domestic violence occurrences.  In addition, section 12(1)(d) requires the Chief of Police to develop and maintain procedures on and processes for undertaking and managing investigations into domestic violence occurrences.

   The overall thrust of these policies clearly acknowledge and promote the need for a thorough investigation which seeks to ascertain who is the dominant aggressor before the laying of charges.  Not surprisingly, the one policy that I am familiar with, namely, the Toronto Police Service policy stipulates that all persons who were present and observed the occurrence are to be interviewed - including the suspect.  Clearly, that practice makes perfect sense particularly as it relates to third parties who witnessed the occurrence.  Such persons could confirm or refute the allegation.

   What is defence counsel to do when faced with a situation where the police may have failed to investigate an occurrence in accordance with their police services domestic violence policy ?  In such circumstances the first order of business is to seek production of the subject policy under the authority of R  v.  Stinchcome and R   v.  Mcneil.  The fact that the manner of the police investigation of these types of occurrences is statutorily mandated puts the disclosure of such polices on a similar footing to police misconduct records and use of force reports.  The danger of non-compliance by a police officer involved in investigating a domestic violence occurrence is best illustrated by an example.

     John and Linda have an incident at their home in which Linda alleges that John assaulted her.  Sally their 12 year old daughter was present and witnessed the entire incident.  Linda reports to the police two weeks after the incident and asks them not to interview her daughter. The police comply with Linda's request.  The police do not interview John regarding the incident.  The police then set out and arrest and charge John.  As part of John's release conditions he is removed from the family home and has minimal contact with his daughter Sally.  Some eight months later John is at trial seeking production of the domestic violence policy of the investigating police service.  The Crown has closed its case without calling Sally or the investigating police officers.

   It should be readily evident that production of the domestic violence policy is relevant and necessary in the above-noted scenario.  The failure of the police to comply with their own policy in the conduct of the investigation has the potential to impair trial fairness for John.  Clearly, John ought not to be required to call a witness at trial that he has no knowledge of what she will testify to at trial. John is supposed to have full disclosure of the case he has to meet prior to setting a trial date and is by virtue of the non-compliance with the policy deprived of this fundamental right and in my view a fair trial.

   I would be pleased to hear what other lawyers have to say about this issue.

Apprehension of Bias and the Lawyer's Duty to Assert it

     A lawyer representing a client has an affirmative duty to initiate a motion asserting an apprehension of bias against a court or tribunal hearing his or her client's case where the lawyer reasonably believes the circumstances justify such a motion and his or her client so instructs.  The jurisprudence on this issue stipulates that such a motion must be brought promptly.  Indeed, the failure to bring such a motion at first instance will foreclose the ability to raise this issue on appeal.  Regrettably, lawyers, judges and adjudicators are human beings and the very act of bringing such a motion has the potential to cause defensiveness in a judge or adjudicator and yes - a potential allegation of incivility to the governing body.

     In this post I wish to attempt to delineate the governing law on the issue of apprehension of bias and why a lawyer is duty bound to assert such a claim where he or she reasonably believes that there are facts and circumstances which justify the bringing of such a motion.  In addition, I wish to also delineate some of the circumstances which our courts have found to create a reasonable apprehension of bias. As with many other areas of law the circumstances giving rise to a reasonable apprehension of bias are infinite and turn on the overall facts and circumstances of the case.

Justice must be
seen to be done:

     Bias is the antithesis of the Rule of Law.  A trial or hearing which suffers from bias denudes itself of legality by virtue of denying the subject litigant a fair and impartial hearing. A denial of a right to a fair hearing cannot be cured by the tribunal's subsequent decision.  A decision of a tribunal which denied the parties of a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal.  The damage created by the apprehension of bias can not be remedied.  The hearing, and any subsequent order resulting from it, must be void. (see Nfld Telephone   v.  Nfld Public Utilities [1992] 1 S.C.R. 626.

A serious decision
by counsel:

     The decision to bring a motion alleging an apprehension of bias is one of the most serious decisions that a lawyer must make in the representation of any client and especially on behalf of a client who faces serious consequences from the subject legal proceedings.  While one act or comment on the part of a judge or adjudicator is capable of  establishing a reasonable apprehension of bias it is advisable to thoroughly evaluate the record of the proceedings to date and identify at least three items which could tend to support such an allegation.

     In seeking to identify the supporting evidence for an apprehension of bias claim it is recommended that one identify the key issues in the case and organize the evidence in the following categories:  1.  evidence of a closed mind on a material issue;  2.   evidence of an animus against the client;   3.   evidence of an animus against counsel; and 4.  evidence of a preference or bias towards one party in the litigation.  Before embarking on the application make sure to seek input from colleagues in order to asses the reasonableness of your concerns.  It is possible that others who are removed from the litigation may be able to provide a more objective basis of the claim than one who is engrossed it it.  Lastly avoid being "baited" into allegations of actual or personal bias by the judge or adjudicator.  That is not the point at all.

The Test for Reasonable
Apprehension of Bias:

     "The apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the required
information.  In the words of the Court of Appeal, that test is "what would an 
informed person, viewing the matter realistically and practically - and having thought the matter through - conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."  (see Committee for Justice and Liberty   v. National Energy Board [197] 1 S.C.R. 369)

Closed Mind:

     Evidence of a closed mind on a material issue in a trial or other legal proceeding by a judge or adjudicator is compelling evidence in support of an apprehension of bias. This ground places reliance on statements made by the judge or adjudicator typically within the proceedings.  Since judges and adjudicators are entitled to ask questions and make comments during a legal proceeding it is not every statement or intervention which will be found to constitute evidence of an apprehension of bias.

     In R  v.  Brown 2003 Canli 52142 (ON CA) the Court of Appeal for Ontario had opportunity to clarify the law in this area.  This was the case in which Dee Brown, then a member of the Toronto Raptors, was stopped and charged with an alcohol related offence.  His lawyer, Steven Skurka, brought a Charter application asserting an arbitrary stop motivated by racial profiling.  The trial judge made several comments tending to indicate his disapproval with the argument of racial profiling advanced on behalf of Mr. Brown and went on to convict Mr. Brown.  The conviction was set aside on a Summary Conviction appeal and in a subsequent appeal to the Court of Appeal by the Crown the Court of Appeal had the following to say:

[96]   "As a general proposition, it may be said that a trial judge has considerably more scope to intervene during the submissions segment of the trial than during the evidence segment.  The purpose of the intervening is to enable the judge to obtain the assistance of counsel on matters that are of concern to him or her in order to fully understand the case that is being submitted.  Judicial interventions for this purpose do not have to take any particular form and I do not rule out blunt statement of the judge's tentative conclusions, provided that their purpose is to afford counsel the opportunity to "bring the judge around."  I think that some of the trial judge's statements could be understood as serving this purpose.  Others, however, such as those expressing the trial judge's view that the allegations in the application were "serious, offensive, nasty or malicious," are somewhat like conversation-stoppers and serve mainly to indicate the judge's general antipathy to the application and not to elicit helpful responses." 

Sarcasism and cynicism
have no place in the process:

     R   v.  Moore 2004 Canli 4354 (ON SC) provides a splendid example of the application of the principle that justice must be seen to be done.  In that case the defendant was charged with "over 80" and ran a defence challenging the accuracy of the breathalyzer reading and called other evidence with a view to raising a reasonable doubt. The trial judge went on to reject the defendant's evidence and convicted him.  On appeal the trial judge's reasons for judgment were alleged to demonstrate a patent distaste both for those who defend cases of over 80 and for the law that the court is obligated to administer.    The trial judge went on the make the following statements in his reasons for judgement:

"Smarter minds than mine have determined that I am not allowed to use that in my assessment of his credibility, and so I do not."  - "Smarter minds that mine have determined that I am not allowed to use that in this case to determine whether he had more than 80 milligrams of alcohol per 100 milliliters of his blood." - "Smarter minds than mine have determined that there is no presumption of accuracy on those machines. Notwithstanding, thousands and thousands of people plead guilty because they register more than 80 on those machines but in cases where the evidence to the contrary is adduced, I must give the accused the benefit of the doubt if I have some doubt that the evidence to the contrary has raised a doubt about the guilt of the accused."

     In setting aside the conviction and ordering a new trial Langdon J. stated, "Mr. Daley did not suggest that the trial judge deliberately disregarded the law that bound him.  But the tone of passages quoted plainly suggests to a disinterested and informed observer that the trial judge approached the Carter defence, not with an open mind and impartial mind, but with cynicism and a degree of intolerance that, if it was not apparent as the trial proceeded, became apparent retrospectively as the decision was given in court."





       

   

   

   

Judicial Independence and the Practice of Indemnifying Judicial Officers for Defence Costs

     Did you know that the practice of indemnifying judicial officers for their legal costs in defending allegations of judicial misconduct is a common occurrence in all jurisdictions and at every level of court in Canada ?  A recent article in the Toronto Star entitled "Taxpayers billed for guilty justices' legal fees" takes issue with this long established custom suggesting that doctors and other professionals are not indemnified for their legal costs so this long established practice ought to stop. The piece goes on to demonstrate a gross lack of understanding of the principle of judicial independence by quoting a number of individuals including the following - "The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty."

     Equating judicial officers with "other professionals" and persons charged with criminal offences fails to appreciate the constitutional principle which underlies this long  established practice.  In our system there exists a divide between the judiciary and what is commonly referred to as government. A fundamental principle in our system is that judicial officers must be independent from the influence of government in order to properly discharge their judicial duties. Judicial officers must be granted security of tenure.  Justices of the Peace in Ontario are statutorily entitled to serve until age 70 and unless removed for cause following a public hearing.  Another component of judicial independence is financial security.  Judicial officers must be adequately compensated to ensure impartiality and independence.

     The practice of indemnification of legal costs for judicial officers is directly related to the financial security requirement and the principle that justice must be seen to be done.  The judicial misconduct adjudicative process is in place to protect the public interest in judicial independence and the rule of law.  The mere possibility that the "government" could theoretically bankrupt a sitting judicial officer through this process undermines judicial independence and the rule of law.  Judicial officers are not "other professionals" and criminal defendants.  Indemnification of the legal costs of judicial officers is in fact a reasonable restraint on the "government" which protects and preserves the cornerstone of our justice system - judicial independence and the rule of law.

NOTE:  This piece is written to draw attention to an issue of public importance.  Democracy and the rule of law work better with the free communication of ideas.  Tax payers in Ontario cover the bill for much less serious and fundamental rights as judicial independence. Virtually every police service collective agreement in Ontario has a legal indemnification clause entitling police officers indemnification for legal costs.  Taxpayers in Ontario pay substantially more for the defence of police officers than judicial officers.  It is not even close !

     

Why Jian Ghomeshi's Prosecution May be a Wrongful Conviction in the Making ?

     As the authorities investigate and deliberate on whether or not to charge Jian Gomeshi under the Criminal Code they ought to take a serious read of the Executive Summary and Recommendations of The Commission on Proceedings Involving Guy Paul Morin.  Readers will recall that Guy Paul Morin was charged with the murder of his next door neighbor, Christine Jessop.  He was tried not once but twice.  Mr. Morin was acquitted at his first trial in 1986.  A new trial was ordered by the Court of Appeal for Ontario(affirmed by the Supreme Court of Canada).  Mr. Morin was tried a second time and found guilty of first degree murder.  Mr. Morin appealed and on the basis of fresh evidence tendered by the Crown and defence he was acquitted of the charge on January 23rd, 1995.  DNA evidence established that Mr. Morin was not the donor of semen stains found on the deceased's body.  The authorities acknowledged that Mr. Morin was innocent, apologized and compensated him.

     As a result of Mr. Morin's wrongful conviction we in Ontario were the beneficiaries of the Hon. Fred Kaufman's insightful report to the Government of Ontario into, among other things, the conduct of the criminal investigation in Mr. Morin's case.  Two investigative flaws identified in the Morin Inquiry and other similar inquiries as significant contributors to wrongful convictions,  "Tunnel Vision" and "Noble Cause Corruption",  may likely present a challenge to the authorities in any prosecution of Mr. Ghomeshi.

     Tunnel Vision was defined by the Morin Iquiry as "the single minded overly  narrow focus on an investigation or prosecutorial theory as to unreasonably colour the evaluation of information received and one's conduct in response to the information."

     Noble Cause Corruption refers to the practice where police officers violate legal or ethical standards in pursuit of what they perceive to be the benefit of society at large.

Tunnel Vision:

     The Jian Ghomeshi allegations are a perfect case-study for the phenomenon of tunnel vision in a criminal investigation - dated complaints of sexual and violent crimes against women by a man who can be described as a public figure or celebrity in an era of political-correctness where there exists "mainstream guilt" for historical wrongs perpetrated against women under the colour of law.  The complainants all know the subject of the criminal investigation.  The subject of the investigation knows the complainants.  They key issue is one of  consent at the time of the alleged conduct  -except for acts which the complainant can not at law consent to(bodily harm for example).  The complainants allege a lack of consent.  Mr. Ghomeshi, as I understand it, has publicly asserted that he acted with consent.

Consent a state of mind:

     A key question for investigators in a case such as this is an explanation for the delay in advancing the criminal complaint.  Delay on its own will not always impair the credibility or reliability of a complaint but it must be carefully investigated.  The rationale for this can be found once one appreciates that consent is a state of mind at the time of the offence which unlike DNA evidence
is not fixed and is subject to change by the complainant either intentionally or unintentionally.

Objective and Subjective
Requirement:

     A complainant can objectively consent to an act thereby inviting an action only to then later
assert a lack of consent depending on their objective.  I raised this legal point in Webb   v.  Waterloo Region Police Services Board et al 2002 Canli 41983 (Ont. C.A.) - a case in which the defendant, a gay man, was cruising in an area known for consensual cruising activity between men encountered an undercover police officer who accepted an invitation to go into the woods with the plaintiff only to arrest and charge him for sexual assault when contact occurred. My use of the word objective above is not to imply that I have any knowledge that the complainants in the Ghomeshi case actually possess any improper objective as I do not know that.  I use it because in the Webb case I was successful in obtaining an admission from the officer that he concealed his identity from Mr. Webb and accepted his invitation to go into the woods knowing what goes on there because he was playing a role and Webb would not have committed the offence had he known.

     Publicity with respect to legal proceedings involving the alleged perpetrator may be a key element which may lead a complainant to effectively reevaluate their consent to a dated occurrence. What may have been consensual because the complainant accepted the conduct at the time can be subsequently deemed "inappropriate conduct" following widespread publicity of sexual misconduct or criminal allegations against the alleged perpetrator.  A complainant may reason that on receipt of the "new information" from the publicity they now feel naive and violated where they did not at the material time. The publicity may provide a new perspective for the complainant to evaluate the historical conduct which she may have consented to in the past and bring forward her "true opinion" on the question.

Nobel Cause Corruption:

     The current waive of political-correctness fueled by the the intense public coverage in this case make it susceptible to Noble Cause Corruption.  Political-correctness on the issues of sexual harassment and sexual assault by men against women has reached a point where,
if left unchecked, the issues of consent, credibility and reliability are secondary to the allegation itself.  The so called victim's narrative and the acceptance of this narrative holus bolus appears on the verge of creating a strict liability offence and dispensing with established legal principles like the presumption of innocence.  This is the climate in which these allegations are received.

     No one - especially the police, prosecutors and even the judiciary - want to be called
out as "condoning" the allegations and "impeding" the victim's right to "vindication".  Vindication under this regime of political-correctness is a finding of guilt.  Reports are already being attributed to at least one of the complainants on the "positive reception" she has received from the police.  Police for their part have already announced that they want to make available all of the resources available - such as counselling etc. to persons who come forward.  In light of these reports one wonders to what extent investigators may be reluctant to ask hard questions of the complainants.  What may often happen in such circumstances is the phenomenon where police adopt the "tell your story to the judge approach". In employing this approach police officers simply take the information at face value and leave the unanswered questions to either the prosecutor or the trial judge.

Challenge for investigators:

     Investigators tasked with investigating a case like Mr. Ghomeshi's must start with a recognition
of the nature and potential frailties associated with the legal concept of consent. Unless there is evidence of bodily harm consent would be a defence to the subject allegations.  Police must be objective, impartial and thorough in their investigations.  Police must not be afraid to ask the hard and perhaps embarrassing questions.  Police are not legally obligated to lay criminal charges at the whim or direction of anyone.  Police may lay a criminal charge where they have formulated reasonable grounds for believing that an offence has been committed.  Political-correctness and publicity ought to have no role in  the execution of this police function.  The forum for victims to seek vindication is the civil forum and not the criminal law forum.