More Evidence of Bias/Unfairness in JP Removal Case: No Juris Decision by OJC Re Panel Chair - Part 2

ONTARIO JUDICIAL COUNCIL

September 2, 2016

Mr. Ernest J. Guiste
Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario, L6W 3W8

Dear Mr. Guiste:

RE: Complaint about a judge

I am writing in relation to your complaint about the Honourable Justice Deborah Livingstone.

Her Honour has fully retired from the bench and is no longer a judge. As she is no longer a judge, the Ontario Judicial Council no longer has jurisdiction and cannot continue to review or investigate your complaint.

Thank you.

Yours very truly,

Marilyn E. King
Registrar


NOTE:  This decision is published here to draw attention to an issue of public importance. Complaints about judicial officers in our system are issues of public importance since it is the public whom judicial officers serve through The Rule of Law and the constitutional principle of Judicial Independence. The Chair of the Hearing Panel in the Re Massiah removal case resigned as a judge prior to the Divisional's Court's decision remitting the matter of the JP's compensation for his legal costs back to the original panel for adjudication.  Marilyn King is both the Registrar of the Ontario Judicial Council and the Justices of the Peace Review Council. Ms. King also retained Presenting Counsel to present the adjudication of the complaint against JP Massiah and was instructing JPRC counsel before the Divisional Court(to the very same law firm). The Divisional Court was not made aware that the original panel had now lost its chair and arguably could not entertain the rehearing with only two members pursuant to their enabling legislation.

Readers must understand that the fact that a judge retires in these circumstances is not
in and of itself evidence that they misconducted themselves. This writer makes no such
suggestion.  That is not the point. The point is - did the JPRC have a duty to inform the
Divisional Court of this development so as to save the parties involved time and
resources and to bring some semblance of fairness and decorum to a proceeding which
started in August 2010.  I believe it safe to say that the Divisional Court would not have
remitted the matter back to the "original panel" if they were informed that the
"original panel" no longer existed.

Growing Evidence of Bias/Unfairness in JP Removal Case: Unable to Decide Panel Rules - PART I

IN THE MATTER OF A HEARING UNDER SECTION 11.1 OF THE JUSTICES OF THE PEACE ACT, R.S.O. 1990, c. J.4, as amended

Concerning a Complaint about the Conduct of

Justice of the Peace Errol Massiah

Before:    Justice of the Peace Michael Cuthbertson

Ms. Leonore Foster, Community Member

   

Hearing Panel of the Justices of the Peace

Review Council

NO UNANIMOUS Decision REGARDING COMPENSATION

Counsel:

Ms. Marie Henein                                        Mr. Ernest J. Guiste

Mr. Matthew Gourlay                                   E. J. Guiste Professional Corporation

Henein Hutchison, LLP

Presenting Counsel                                    Counsel for Mr. Errol Massiah

NO UNANIMOUS DECISION REGARDING COMPENSATION

SUMMARY:    The Hearing Panel has not been able to reach a unanimous decision on the request by Mr. Massiah for a recommendation to the Attorney General under sections 11(17) and (18) of the Justices of the Peace Act that the Mr. Massiah should be compensated for legal costs incurred by him in connection with the hearing .

1)    Pursuant to the Divisional Court’s decision in Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191, the Hearing Panel’s decision in 2015 to not recommend to the Attorney General that Mr. Massiah be compensated for legal fees incurred by the hearing was set aside and submitted back to the Hearing Panel for its re-consideration.

2)    Unfortunately, the Chair of the Hearing Panel, the Honourable Deborah Livingstone had fully retired as a judge of the Ontario Court of Justice prior to the Divisional Court’s ruling.

3)    By virtue of s. 4.4(1) of the Statutory Powers Procedures Act (SPPA), the remaining two members of the Hearing Panel, Justice of the Peace Michael Cuthbertson and community member Ms. Leonore Foster, were tasked with determining the matter.

4)    We note that s 4.2(3) of the SPPA states:

The decision of a majority of the members of a panel, or their unanimous decision in the case of a two-member panel, is the tribunal’s decision.

5)    The Hearing Panel received submissions on the compensation issue from both parties earlier this year. After concluding decisions on motions brought by Mr. Massiah, we began deliberations on the request for a recommendation for the compensation of legal costs. We have worked diligently and cooperatively in attempting to come to a unanimous decision but regrettably have been unable to do so.

6)    As a result, we have considered options both in statute and case law on how to now proceed. There exist two options. The first option would require a joint position by both parties. That option is:

Option 1

Pursuant to s. 4.2.1(2) of the SPPA, the Chief Justice could appoint one person to replace the former Chair of the Hearing Panel, if both parties consent. Then the three member Panel could re-consider the issue of the recommendation of compensation of legal costs and make a determination.

7)    If the parties cannot jointly agree to proceed under Option 1 then, in our view, this Hearing Panel must act as follows:

            Option 2

Pursuant to the decision in Law Society of Upper Canada v Watson, 2015 ONLSTH 189 (see also Worker’s Compensation Appeals Tribunal Decision no. 969/941, 1996 CanLii 9786 (ON WSIAT)), we must advise the Chief Justice that we are deadlocked and request that, pursuant to s. 11.1(1) of the Justices of the Peace Act, she appoint a new three member Hearing Panel to replace us. That new Hearing Panel would then have the responsibility of re-considering the request for a recommendation for compensation of legal costs, in accordance with the Divisional Court’s ruling.

8)    We therefore request that both parties liaise on the issue. We request that each of the parties advise us in writing of its position on Option 1 no later than Friday, November 24, 2017.

Dated:                    October 25, 2017

Hearing Panel:    Justice of the Peace Michael Cuthbertson

Ms. Leonore Foster, Community Member

 NOTE:  This decision is published to draw attention to an issue of public importance. Judicial officers throughout the common law countries are traditionally indemnified for their costs in defending their office. Ontario has opted to depart from this well established tradition and adopted what Presenting Counsel referred to as the "foot their own bill" policy. In Ontario JPs adjudicate bail hearings where they are called upon to adjudicate whether one who stands accused should be deprived of their liberty. This work combined with the Supreme Court of Canada's pronouncement in Ell  v. Alberta assures them all of the rights and privileges of judicial independence.

Tips on Advancing a Battered Spouse Syndrome Defence

   Domestic violence is a very serious social and legal problem.  Every year too many individuals suffer serious bodily harm and often death as a result of domestic violence.  All too often victims do not have the financial resources to secure the quality of legal services they deserve.

   Individuals who are historical victims of serious emotional and physical abuse at the hands of their spouses are all too often placed in situations where they are criminalized when they stand up for themselves in self-defence. This should not happen if police services which are mandated in Ontario to investigate domestic violence occurrences in this province on the same level of priority as homicides adhered to the polices put in place to prevent this.

   If you have been retained to defend an individual who has been charged in circumstances where in the context of a domestic relationship they act to defend themselves here are a few tips which may help you in advancing what has come to be known as the "Battered Wife Syndrome Defence". For the sake of clarity and simplicity I will refer to the defence as "Battered Spouse Syndrome Defence".

Battered Spouse
Syndrome Defence:

   What is the Battered Spouse Syndrome Defence ?  This is a defence which was recognized by our Supreme Court of Canada in R   v.  Lavalee [1990] 1 S.C.R. 852.  In R v. Lavalee a battered spouse shot and killed her common law partner by shooting him in the back of the head as he left her room. The killing took place after one of many heated confrontations in which the deceased had taunted her with the threat that either she kill him or he would kill her. The crux of the appeal was the court giving its blessing to the use of expert psychiatric evidence to show that the battered spouse had a reasonable apprehension of death or grievous bodily harm and believed on reasonable grounds that she had no alternative by to shoot.

Secure Historical
Medical Records:

   If after interviewing your client you determine that there is an air of reality to the prospect that your client may have acted out of an act of what I will refer to as self-preservation you will want to start compiling historical evidence of the nature of the relationship and any injuries suffered by your client.


Secure Police
Service Domestic
Violence Policy:

   In Ontario every police is mandated by law to have a Domestic Violence Investigation Policy. This policy will define such terms as "victim" and "dominant aggressor" - among others.  Victim in the Toronto Police Service policy for example is not confined to the current victim of charges before the court.  Hence, if some years ago your client was the victim of an occurrence and those charges were withdrawn when he or she failed to show for trial - your client is arguably a "victim" under the TPS Domestic Violence Policy since it does not set time limitations to the definition of victim and it incorporates within it an obligation by officers to ascertain who is the "dominant aggressor" based on among other grounds, historical information.

   Good lawyers will know that it is not uncommon for police officers not to follow policies. The failure of the police to follow their very own policies in the investigation of these occurrences can have very significant consequences for the strength of the Crown case against your client. Police officers under these policies should follow-up and find out why a complainant witness did not show up for court. The typical reason is fear for life or limb. If you are armed with such an omission on the part of the investigating police service you are well on your way to building your case that the acts and omissions of the investigating police service put your client's safety in danger.

Consider Testifying
at Preliminary Inquiry:

   Although often frowned upon by defence lawyers, you may wish to consider putting your client on the stand at the preliminary inquiry stage.  Not all clients will be able to do this. However, if your client is strong and determined it can be helpful on three fronts. The first is that it is very theraputic for the client to communicate their suffering.  The second is that it provides a less hostile environment for exposure to the trial process. Lastly, it provides cogent evidence that the Crown and the police can use to consider whether there is a reasonable prospect of conviction or whether the continued prosecution is in the public interest.  Putting in medical records as exhibits at the preliminary inquiry should send a very clear message to any responsible police service or prosecutor.  Since the preliminary judge is not concerned with weighing evidence and assessing credibility your client will be committed to stand trial.  However, you will have built a good foundation for your expert witness.

Retain an
Expert Witness:

   After your preliminary inquiry you will now be ready to retain an expert witness to assess your client and to provide an opinion on the use of force in the circumstances.  Dr. Peter Jaffe of the University of Western Ontario in London, Ontario is one of the leading authorities on domestic violence.  He is very knowledgeable and highly respected in his field by lawyers and judges alike. He also accepts clients who are funded by Legal Aid Ontario.


About the author:

E.J. Guiste is a rights litigation lawyer based in the Toronto area. His work involves both criminal and civil litigation - trial and appeal - with particular emphasis on ensuring that all players in the administration of justice adhere to and respect The Rule of Law.  Feel free to call for a consultation meeting if you have been charged in circumstances where you may have been acting to preserve your life, the life of your child or avoid bodily harm or you require an opinion on a potential civil claim. 




 

"Access to Justice" Defined

     Let me start by first acknowledging that the term "access to justice" is  a political term and not a term of law.  Equality on the other hand is a term of law. In using the term political to describe the term "access to justice" I am not speaking of political science.  Political Science is a recognized course of study in the social sciences.  The political nature of the term means that it will have differing meanings for differing groups in the legal market based on things such as history, race, gender, sexual orientation and especially socio-economic status.

   
Divisible into Two
Major Categories:

     The term or goal of "access to justice" can be divided into two major categories. The first is what I will refer to as "economic access to justice". This category of "access to justice" concerns itself with the affordability of legal services to the public and for those who can not afford - affirmative intervention by the state to provide counsel.

     The second category of "access to justice" is rooted in the fundamental principles of The Rule of Law and Judicial Independence.  We could refer to this category as substantive "access to justice." It concerns itself with ensuring that all litigants in our courts have their grievances adjudicated fairly, impartially and dispassionately without regard to any irrelevant considerations including on the basis of the first category.

Critical Areas Calling 
for Access to Justice:  

     Critical areas of inequitable access to justice among litigants in Ontario include the following:  1. adjudication of claims involving sexual assault against women; 2. adjudication of claims by African-Canadians involving racial discrimination, racial profiling and judicial and professional misconduct; 3. adjudication of claims of ineffective assistance of counsel by criminal defendants; 4.  adjudication of claims against hospitals and medical doctors.


Commentary:

     Policy-makers who are serious about seeking to cure the lamentable problem of inequality in what has come to be termed "access to justice" in our justice system need to recognize and accept that there are indeed two major categories of "access to justice."  Focusing on one at the exclusion of the other is merely a "band-aid' solution and will serve to only aggravate the problem.

   

Access to Justice - What is it ? - Introduction

   The term "access to justice" is easily the most used or talked about terms among high court judges, regulators and governments in Canada.  We must begin to make legal services more accessible to all segments of the community is the prevailing sentiment. Hence, according to what I will refer to as the conventional wisdom among the three sources of input on this subject matter access to justice entails making legal services more affordable to the general public.  Of course the assumed fact in this policy choice is that this is the ONLY impediment denying what is now acknowledged to be significant and growing portions of the consumers of legal services a fair and impartial hearing of their legal clams and grievances.

   Therein lies the problem.  The current discourse on "access to justice" has failed to delineate and define what exactly is the problem we wish to solve when we employ the term "access to justice". In addition, the current discourse on the topic is entirely devoid of serious consideration of the issue from the perspective and interest of the consumers of legal services who are adversely impacted.

  In the next post I will dedicate some time to the question of what is "access to justice".

Copy of Letter to Jagmeet Singh M.P.P. Re Law Society Name Change

E.J. GUISTE

PROFESSIONAL CORPORATION

CRIMINAL TRIAL & APPELLATE ADVOCACY

2 COUNTY COURT BLVD., SUITE 494

BRAMPTON, ONTARIO, L6W 3W8

TEL.(416) 364-8908.  FAX (416)364-0973

E-MAIL ejguiste@yahoo.com

                 

June 22nd, 2016                                                      VIA: FAX (905) 799-9505

                                                                                                (416) 325-1790

Mr. J. Singh, M.P.P.                                                            

Dear Jagmeet:

                                                                                                

RE:              LAW SOCIETY OF UPPER CANADA – NAME CHANGE

            I think it is time that The Law Society of Upper Canada comes out of the 

days of Upper Canada and changes its name to reflect the fact that Upper 

Canada no longer exists and we are in the Province of Ontario.  Please see my 

attached post which explains why this needs to be done at this time.

            I trust that this is satisfactory.  Feel free to call me.

Yours very truly,

Ernest J. Guiste.

Encl.

Does The Majority Ruling in Groia v. L.S.U.C.(ONCA) Rely on a Flawed Premise ?

   In Groia   v.  The Law Society of Upper Canada the majority reasons dismissing his appeal contain what this writer believes to be a flawed legal premise which arguably impacted their analysis and outcome of the legal question before them.  That flawed legal premise is found in the first paragraph of the majority's reasons.

The Ruling:

[1]   For almost 220 years, the Law Society of Upper Canada has governed the legal profession in the public interest under statutory authority granted to it by the legislature of Ontario.

Commentary:

   The Law Society was created in 1797 to regulate the legal profession in the British colony of Upper Canada. Ontario was founded on July 1st, 1867.

The Ruling continued:

[1]   ....For close to a century, in the exercise of its statutory mandate, the Law Society has formed a body of rules governing the professional conduct and ethical obligations of lawyers, both inside and outside the courtroom.  Lawyers who fail to to meet the standards of practice established by these rules are subject to the Law Society's complaints and disciple processes.  In Ontario, as elsewhere in Canada, it is a privilege to practice law, not a right.

Commentary:

   The term "it is a privilege to practice law, not a right" is the flawed premise which permeates the majority's ruling - in this writer's opinion.  What does this term mean ?  The writer's asking of this question ought to alert readers to the inherent ambiguity and hence arbitrariness in the term. In this writer's opinion this term is one which is well grounded in our history as a nation and is arguably more of a political term than a legal principle.  The most obvious reference was when our federal government passed laws restricting immigration on what are today widely accepted as irrelevant and discriminatory grounds. Indeed, the very Law Society which is the subject of the appeal followed this sentiment in restricting access to African-Canadians and women based on this principle - namely - "it is a privilege to practice law, not a right."

   Accordingly, in this writer's opinion - the majority decision by the Court of Appeal for Ontario appears to have answered the wrong legal question.  The majority appears to have focused their attention on whether the governing body acted within its jurisdiction without properly considering that the court had in fact addressed the incivility and it was in fact spent. In this context the reference to "it is a privilege to practice law, not a right" makes perfect sense.  Justice Brown got it right when he wrote:

[255]   Our disagreement, therefore lies not in the continued importance of civility to the health of Ontario's legal system.  Our disagreement lies in how to determine when a barrister's in-court conduct amounts to professional misconduct because it is uncivil.

Mr. Groia Complied with
The Court's Directions:

   Indeed, a significant point raised by Justice Brown in his dissent is that the courts addressed the issue in the proceedings and Mr. Groia complied.  He wrote:

[249]   The senior courts to which the prosecutors complained were not silent about Mr. Groia's conduct.  Quite to the contrary.  In no uncertain terms they expressed their very strong displeasure. In the language of earlier times, they administered a public shaming to Mr. Groia. They told Mr. Groia to cut it out and smarten up.  He listened, and he did.  Phase two continued without incident. 


About the author:

E.J. Guiste is a trial and appeal law based in Toronto, Ontario.  He has an unwavering passion for equality and The Rule of Law.  He is the author of "A Catholic Lawyer's Prayer" - which can be found on this blog.  This prayer articulates the inherent fear and danger which lawyers dedicated to the proper defence of  their clients are exposed to as part of their duty as a lawyers.  Read it here !


NOTE:  This piece is written for the sole purpose of shedding light on an issue of public importance.  The views expressed here are the views of the writer on the subject and should by no means be interpreted as a form of disrespect to any institution or person involved in the issue.