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

                                                          File No. 18H-047

LAW SOCIETY TRIBUNAL

HEARING DIVISION

BETWEEN:

The Law Society of Upper Canada

Respondent/Applicant

- and -

Ernest Guiste

Applicant/Respondent

AMENDED NOTICE OF MOTION

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

RELIEF SOUGHT:

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

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

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

 The Grounds for the Application are:

Count 1

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

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

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

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

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

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

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

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

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

 1.      To review the wisdom of prosecuting the subject

           charge in light of the Supreme Court of Canada's

           pronouncements in Dore supra and Groia  v. 

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

           ; and

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

          their case along with a summary of the material facts

          they have to offer.

                            

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

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

Count 2

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

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

Res Judicata

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

Count 3

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

14.    The trial judge cautioned the Applicant/Respondent anytime 

he  said something which he felt was inappropriate to the witness 

or Crown Counsel and the Applicant /Respondent 

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

protect the integrity of the process;

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

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

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

Count 4

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

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

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

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

Count 5

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

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

subject complaints, their investigation and referral to hearing were 

carried out for an improper purpose or a purpose inconsistent with 

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

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

reveal a pattern and practice of a disproportionate response to his 

good faith advocacy for fairness and equality for his African-

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

Peace Review Council v  Massiah.

                   

The following documentary evidence will be relied upon:

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

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

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

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

5.      R  v.  Ram (Mistrial Decision);

6.      Toronto Star article re Mistrial decision etc.

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

8.      Applicant's Responses

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

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

 May 25^th, 2019                                                                  

(Amended August 1st, 2019)

ERNEST J. GUISTE

E.J. GUISTE PROFESSIONAL CORP       

2 County Court Blvd., Suite 494

Brampton, Ontario

L6W 3W8

(416) 364-8908

E mail: ejguiste@yahoo.com

Self-Represented

GOLDBLATT PARTNERS LLP

20 Dundas Street West, Suite 1039

Toronto, Ontario

M5G 2C2

Mr. Daniel Iny LSO# 4853F

Tel.(416) 979-4247

E mail:  diny@goldblattpartners.com

Lawyers for the Responding party, Law Society of Upper Canada

AND TO:

The Law Society Tribunal

375 University Avenue, 4th Floor

Toronto, Ontario

Racism in the Legal Profession: How Regulators and Ontario Maintain the Status Quo

   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.
 

   

Life-Time Driving Ban Violates Ontario Human Rights Code: Rehabilitated Alcoholic

Rehabilitated Alcoholics in Ontario are discriminated against on account of their
historical disability by being prevented from driving for life if they had four prior
convictions under the Criminal Code of Canada for alcohol-related infractions
pursuant to the Highway Traffic Act.  This has prompted Mr. Heron to bring a
complaint against the Attorney General for Ontario and the Minister of
Transportation asserting that this prohibition violates his right to free from
discrimination on account of disability.

Mr. Heron had the misfortune of being convicted of four impaired related
driving offences more than 13 years ago but although rehabilitated today is
banned for life from obtaining a driving license not only in Ontario but Canada
-wide.  Mr. Heron has some 20 plus working years left.

In this case Mr. Heron who operated heavy land-clearing equipment in a mine
-setting commanding top compensation was rendered unemployed and unemployable
once the mines required operators of such equipment to hold a valid driver's liscense -
even though the employee does not drive or operate such vehicles on a public road or
highway.

This is discrimination plain and simple.  The exclusion of Mr. Heron and other
similarly situated persons in Ontario is not only contrary to the Human Rights Code
but also the Canadian Charter of Rights and Freedoms.  Denying Mr. Heron and other
Ontario residents who once suffered from a recognized condition which they have been
cured of is simply not justifiable under the Ontario Human Rights Code or the Charter.


NOTE:  This piece is published as a matter of public interest.  If you or someone you
know is similarly situated to Mr. Heron I wish to learn about your experience with this
issue. I am counsel to Mr. Heron.  My name is E.J. Guiste - Tel.(416) 364-8908.

Wrongly Accused of Domestic Violence or Victimized ?

   As a lawyer who handles both the defence of criminal allegations arising from domestic violence occurrences and prosecutes civil actions for malicious prosecution and negligent investigation arising from these allegations it is clear to me that countless numbers of innocent, hard-working individuals in Ontario are all too often wrongly charged with domestic-related criminal offences.

   We have all met and heard of individuals who have found themselves charged and removed from their homes for nothing more than restraining or otherwise seeking to avoid the commission of an assault on their person. It is not a crime to do this. One is entitled in law to defend one's person. The question is whether the response is reasonable and proportionate in the circumstances.  Included in this category of cases are cases involving what has come to be referred to as the Battered Spouse Syndrome defence.  The Battered Wife Syndrome involves a situation where a historically battered spouse  retaliates in self-defence - possibly killing the other spouse.

   Domestic violence in Ontario is a very serious issue. Public policy in Ontario has seen fit to pass clear and mandatory standards regarding how police services in Ontario are to investigate these cases.  The problem is these polices are more often than not disregarded by police officers and others in the criminal justice system.  Crown counsel instinctively refuse to produce such policies as Stinchcombe disclosure often resulting in non-production of what is relevant evidence to the defendant's ability to make full answer in defence of the allegation against him or her.

 
About the author:  E.J. Guiste deals with both civil and criminal domestic violence cases. If you have been charged or are a victim of domestic violence and want to know your rights with respect to civil redress for the harm caused to you call me for a consultation. Tel.(416) 364-8908 - E mail: ejguiste@yahoo.com

In Flanders Fields - John McCrae

   In Flanders fields the poppies blow
Between the crosses, row on row, 
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn saw sunset glow, 
Loved and were loved, and now we lie, 
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

By Lt Col John McCrae

Huscroft J.A.'s dissent in Fleming Followed by SCC

   Poor Mr. Fleming, a Canadian man of European descent, decided to exercise his right of freedom of expression by waving a Canadian flag with a group called "Canadian Advocates for Charter Equality" in Caledonia where a group of Indigenous Canadians were occupying Crown-owned lands only to be forcefully arrested by OPP officers in order to avoid a breach of the peace.  Mr. Fleming had done no wrong known to law.  The police, supposedly acting on past experience and speculation, determined that Mr. Fleming's rights of expression should be denied in the name of preserving the public peace.

   Understandably, Mr. Fleming did not agree with this brand of justice and filed an action against the OPP officers and Her Majesty the Queen in Right of Ontario for unlawful arrest, excessive force(assault and battery) and violation of his rights Charter Rights. After carefully considering all of the evidence at trial the learned trial judge concluded that poor Mr. Fleming was unlawfully arrested and excessive force was used on him. She awarded Mr. Fleming $139,711.90 in damages plus costs.

    The police defendants appealed to the Ontario Court of Appeal.  Their argument that it was lawful for them to forcefully arrest poor Mr. Fleming even though he committed no offence in law and was merely exercising the most fundamental of legal rights in a democracy - the right of freedom of expression was well received by a majority of that court led by Nordheimer J.A.  Norheimer J.A. set aside the award of damages on the basis that the learned trial judge committed "overriding and palpable error"  and concluded that the police had the authority at common law to arrest poor Mr. Fleming.

Laskin C.J.Like Dissent:

   When it looked like the days when we once had powerful and well-reasoned dissent judgments from our appellate courts was all over along comes Mr. Justice of Appeal Huscroft.  Huscroft J.A.'s dissenting judgment takes us back to a time when another former academic named Bora Laskin penned dissents which often went on to make law thorough-out the Commonwealth.   Huscroft J.A., himself a former academic writes with a soundness, clarity and honesty that brings back memories of the dissenting judgments of the late Chief Justice Laskin. The dissent is noteworthy because Huscroft J.A. takes issue with the majority on very serious and fundamental points of law.  These points of law have the potential to impact the very substance of the fundamental rights which are often at stake when the rights of citizens and the state collide.  The points of law that Huscroft J.A. takes issue with Nordheimer J.A. on include the following: standard of review  and the role of the appellate court in reviewing findings of fact made by a trial judge - the lawfulness of the arrest and the right of political expression and when it can be denied.  The soundness of the decision is best demonstrated by quoting excerpts of it directly.

[76]   The primary issue raised by this appeal is whether the police were justified in arresting the respondent to avoid a possible breach of the peace.  My colleague Nordheimer J.A. concludes that they were.  With respect, I disagree.

[78]   My colleague defers to the police in their decision to arrest Mr. Fleming, rather than to the trial judge, whose decision came following an 11-day trial.  The trial judge found that Mr. Fleming's arrest was not justified in the circumstances.  In my view, there is no basis for this court to interfere in her decision.

[80]   The burden is on the appellants to demonstrated an error of fact or an error of mixed fact and law that is both palpable and overriding. It must be palpable, in the sense that the error is obvious or apparent without further inquiry or explanation.

(81)   In my view, none of the alleged errors identified by Nordheimer J.A. rises to this high standard.  As a result, it is not open to this court to substitute its view as to lawfulness of Mr. Fleming's arrest.

[89]   The trial judge found that the evidence was "clear" that the police intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag.  Not only did she accept Mr. Fleming's testimony that he left the shoulder because of the police vehicles, but she noted that Inspector Skinner conceded that the O.P.P. had pre-emptively decided to limit the rights of the Flag Rally participants and that, for him, public safety "[took ]priority over other rights such as the freedom of expression and the freedom to walk down the street."

   Huscroft J.A. spends a great deal of necessary time demonstrating how "My colleague characterizes things differently than the trial judge."...Mr. Fleming, he says, chose to leave the shoulder of Argyle Street for reasons that are unclear on the record....He then suggests that Mr. Fleming is the author of his own misfortune - that he might have avoided his problems by remaining at the side of Argyle Street."

[92]   With respect, it is not open to this court to recharacterize the evidence in this fashion and substitute its inferences for those made by the trial judge.  The trial judge made findings that were open to her on the evidence.  It cannot be said that they constitute palpable and overriding error.

[99]   ...Mr. Fleming was entitled to attend and participate in the Flag Rally regardless of its effect on the governments political goals at Caledonia or anywhere else, and, in particular, regardless of whether the Flag Rally was considered provocative by the government or the protesters.

[100]   Political expression will often be provocative, and so considered problematic, but there is no doubt that its protection is a core purpose of freedom of expression.

   Indeed, the key difference in the Huscroft J.A. dissenting reasons and that of the majority stems from the deference they accord to the findings of the trial judge. Huscroft J.A. accords her the deference called for in our law while the majority appears to go out of its way to interfere with her findings of fact.

[177]   I can see no basis to interfere with these findings or the trial judge's conclusion.  In my view, the deference my colleague accords to the operations decisions of the police is more properly due to the decision of the trial judge.

Supreme Court of Canada:

   "As there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others, the police in this case did not have lawful authority to arrest F.  The trial judge specifically found that F had not done anything unlawful before being arrested; there was no evidence before her that he had committed any offence in walking along the street, entering the occupied property or standing there with his Canadian flag. Nor was there evidence that he had himself been about to commit an indictable offence or a breach of the peace. The Province and the police have not sought to challenge that finding on appeal, nor have they cited or relied on any statutory power to arrest F.  They rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons - a power that does not exist.  In light of this conclusion, a new trial on the issue of excessive force is not necessary.  As the police were not authorized at common law to arrest F, no amount of force wold have been justified for the purpose of accomplishing that task." (Case Headnote - Fleming  v. Ontario 2019 SCC 45)


About the author:  E.J. Guiste is an lawyer of African-Canadian descent who represents individuals like Mr. Fleming in actions and appeals involving fundamental rights against police and other state actors.

Does Crown Counsel Get a Pass on "Civility" ?

Background:

   After repeated requests to the trial judge to restrain Crown Counsel's aggressive and abusive cross-examination of an African-Canadian female complainant on a domestic violence trial in which Crown Counsel elected not to call the alleged victim as his witness to prove an alleged assault on her but to call the person she said assaulted her instead, I made the following off-the-cuff and passionate request to the trial judge:

The Plea:

   "Your Honour, my friend's being very disrespectful to this witness, and I don't know if it's on account of her race, or what it is, but can you please caution him to (sic) finish her narrative ?  He keeps interrupting, and bellowing like he's some big, bad-ass dog or something."

"Bellow"**:  1. roar like a bull; 2. utter loudly and angrily (Concise Oxford Dictionary)
If someone bellows, they shout angrily in a loud, deep voice.(Collins English Dictionary)

Immediate Apology on 
the Record:

   Within less than a minute of those words being uttered a frank and fulsome apology
was communicated to Crown Counsel in order to preserve the integrity of the record
and proceedings.  Crown Counsel rejected the apology and asked the trial judge for an
adjournment in order for him to bring a complaint before the Law Society of Upper Canada.

Trial Judge Denied
Crown Request:

   The trial judge denied the Crown's request.  She stated:

THE COURT:  I think that I would like for us to take a 15 minute break, and then for us to return and continue the trial.

MR. RINALDI:  I can tell Your Honour I'm not in a position to do that.  I - I - I - sic and to make some inquiries, and I've had enough of this.  He called me names on the record and if...

MR. RINALDI: ...Your Honour wants to put up with that, that's your perogative.  I'll come back to set a new date, but I intend on speaking to the Law Society about the comments that have been put on the record about me. They were completely slanderous and inappropriate.

   Crown Counsel walked out on the trial judge.

Complaint to LSUC 
by Witness in Court:

   A member of the public who was in the courtroom and observed Crown Counsel's conduct made a formal written complaint to the Law Society of Upper Canada.  Her complaint raised the following regulatory issues:

1.  Crown Counsel was disrespectful to the trial judge by refusing to comply with her order;

2.  Crown Counsel was disrespectful to the witness - badgering her and raising his voice at her**; and

3.  The witness, a member of the public, stated, "I sat in stunned disbelief at the disrespect that the Crown showed to Justice Brewer by going against her order to take 15 minutes break."

Law Society of 
Upper Canada Response
to complaint:

    "After reviewing the information your provided, we have found that the concerns you raise are not something that the Law Society can deal with.  We can only act on complaints that provide information suggesting a lawyer had done something contrary to our Rules of Professional Conduct. As you aware, Mr. Rinaldi is a Crown Attorney.  As it appears your concerns about him relate to the exercise of his discretion within the context of his position as a representative of the Crown, you may address your concerns to:  The Ministry of the Attorney General, 720 Bay Street, Toronto, Ontario, M5G 2K1."

   On the other hand, the Law Society of Upper Canada has sent Crown Counsel's complaint against defence counsel, E.J. Guiste, to a formal hearing some six years after the fact and counting.  The Law Society of Upper Canada Notice of Hearing asserts that defence counsel was disrespectful to the trial judge and Crown Counsel - even though the trial judge never made any such complaint and went on to acquit defence counsel's client.

Case outcome:

   I was fully successful in defending my client. Yes - not guilty !  The learned trial judge found that my client did not assault his spouse her sister assaulted her causing injury to her eye.  More than five years later I am forced to defend myself against this Crown Attorney's complaint against me to the Law Society of Upper Canada - as they were known then.

How is this in the public interest ?

Is the late Eddie Greenspan Right ?

   One of Canada's best criminal lawyers had the following to say about the regulators tendency to prosecute defence lawyers but not prosecutors:  "The Law Society does not enhance its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors. And such prosecutions will have a chilling effect on advocates." (Edward Greenspan
and L. David Roebuck, "The Horrible Crime of Incivility - Globe and Mail - August 2, 2012)