Montreal Canadiens Respect Public Policy in Canada with Logan Mailloux Drafting

    The uproar and criticism expressed by some over the Montreal Canadiens drafting of Logan Mailloux is misguided, senseless and entirely inconsistent with Canada's public policy with respect to how we deal with young persons in our criminal justice system.  Canadian public policy on how we have chosen to deal with criminality involving young persons is very different from the U.S.A.  In Canada unlike the U.S. we have a federal statute in the Youth Criminal Justice Act which applies nationwide and clearly articulates the law on how young persons are dealt with in our criminal justice system.  That law takes clear notice of the lower culpability of young persons for criminal acts on account of their tender age and their inability to appreciate the consequences of the acts and the need for their rehabilitation.

  

     The following excerpts from the preamble of Canada's Youth Criminal Justice Act, S.C. 2002, c 1 and the key principles set out in the legislation articulate Canada's public policy on this issue :

                  "Whereas members of society share a responsibility to address the

                   developmental challenges and the needs of young persons and to guide 

                   them into adulthood ;

                    "Whereas communities, families, parents and others concerned with the 

                    development of young persons should, through multi-disciplinary 

                    approaches , take reasonable steps to prevent youth crime by 

                    addressing its underlying causes, to respond to the needs of young 

                    persons, and to provide guidance and support to those at risk of 

                    committing crimes;

3(1)    The following principles apply in this Act:

(a)    the youth criminal justice system is intended to protect the public by

(i)    holding young people accountable through measures that are proportionate to the

        seriousness of the offence and the degree of responsibility of the young person;

(ii)    promote the rehabilitation and reintegration of young persons who 

        have committed offences    

(b)    the criminal justice system for young persons must be separate from that 

        of adults, must be based on the principle of diminished moral 

        blameworthiness or culpability and must emphasize the following:

(i)    rehabilitation and reintegration, 

(ii)    fair and proportionate accountability that is consistent with the 

         greater dependency of young persons and their reduced level of 

         maturity.

Young Logan Mailloux broke the law in Sweden and was dealt with by that 

country's justice system. He was fined $2,100 for his breach of the law in Sweden.  

He has apologized to the harmed party and expressed public remorse for his conduct.  

The Montreal Canadiens have undertaken to provide "guidance and support" to Logan 

rather than take away his livelihood on account of an act, which while most clearly 

deserving of censure, begs for mercy, compassion and understanding.  Logan is in 

good hands with the Montreal Canadiens.  He has promised to earn our trust and 

respect.  We need to grant him that opportunity. None among us is 

without flaw.  No one can argue that it is not in the public interest to rehabilitate

Logan and make him a good man.

E.J.  Guiste is a trial & appeal lawyer based in the Greater Toronto Area.

    

 

           

 

Divisional Court Slams the Door on Anti-Black Racism Taint

   On July 31st, 2020 a Divisional Court Panel wasted little time in denying former Justice of the Peace Massiah an adjournment to allow him to argue that Anti-Black Racism tainted the decisions of the Justices of the Peace Review Council Hearing Panels which denied his claims for compensation to cover the legal costs associated with defending his judicial office. 

   In a tearful and passionate plea, former Justice of the Peace Massiah's lawyer, Osborne G. Barnwell begged the Panel to allow him a two week adjournment to permit him an opportunity to make submissions on how Anti-Black Racism, White Supremacy and Implicit Bias tainted the actions of Presenting Counsel and the Hearing Panel Decisions. 

   Counsel for the Attorney General of Ontario strenuously opposed the request for adjournment standing firmly behind Presenting Counsel - to whom they appear to have delegated full authority to defend the case even though the Notice of Application for Judicial Review asserts claims of excess of jurisdiction in their presentation of the case.  In other words, neither the Attorney General, who is charged with upholding the law in Ontario or the Divisional Court Panel took issue with Presenting Counsel defending their own actions and the Decisions of the Hearing Panels which they forcefully advocated for.

   Mr. Barnwell stated to the Divisional Court Panel that although the case is rife with uncensored discriminatory acts and omissions against both Mr. Massiah and his Black lawyer, E.J. Guiste, he was afraid to raise the issue in light of the JPRC Panel's very public referral of E.J. Guiste to the Law Society of Upper Canada for professional misconduct for, among other reasons, his raising questions about Anti-Black Racism in the case. 

   Mr. Barnwell carefully explained that the world-wide attention now placed on Anti-Black Racism provided him the strength and courage to fearlessly raise the issue as did Mr. Guiste.  Mr. Barnwell assured the court that he would act with haste in ensuring the matter resumed promptly for hearing

and would insist on the other parties having a full opportunity to respond.

   The Divisional Court Panel politely heard submissions from the parties - rose for deliberations and swiftly dismissed the request for adjournment and proceeded to hearing the application. The Panel reserved its decision but invited full submissions on costs from the parties.

Background:

    His Worship Massiah, who is Black, was removed from office by the Attorney General of Ontario on April 29, 2015.  The Hearing Panel which recommended his removal from office found that he acted in a manner inconsistent with the Human Rights Code and he created a "poisoned work environment".  This is so even though Mr. Massiah called three managers to testify in his defence who confirmed that his compliments to staff were "well-received" and they were unaware of him creating a "poisoned work environment".  In fact, one manager testified that if there was a "poisoned work environment" it was not created by Mr. Massiah. The manager went on to confirm that the staff are covered by both a collective agreement and a Discrimination and Harassment Policy and not a single employee complained to her about Mr. Massiah.  Mr. Massiah applied for a transfer to another court on his own initiative and this was granted by his Senior Justice.

   This is to be contrasted with the case of H.W. Kowarsky.  His Worship Kowarsky who is  White  received a reprimand and was transferred to another court following a finding of judicial misconduct where he stated in open court, "Madame Clerk I'd like my blow job now.". Mr. Kowarsky plead guilty and explained that he said, "Made Clerk I'd like my blow job now....the fan."  This matter which was presented by the very same Presenting Counsel proceeded by an Agreed Statement of Facts and a guilty plea.

   The Agreed Statement of Facts and the Notice of Hearing raised the following three discrete particulars of misconduct:

1.  January 29th, 2010 - The Madame Clerk, I'd like my blow job now comment;

2.  2008 event - The complainant attended JP Kowarsky's office prior to court and he hugged her and said, "Some people say hello by kissing on the lips". "Until January 29, 2010 it was Justice of the Peace Kowarsky's custom to greet female colleagues and clerks with whom he had not worked for a while with a hug. He no longer does so."

3.  March 2, 2010  - JP Kowarsky summoned the complainant to his office and admonished her in a loud voice for what he said was her inappropriate conduct in court the day before. The complainant was crying and shaking. She was upset and asked that she not be assigned to work in the same courtroom as JP Kowarsky ever again.

The Kowarsky Panel's Decision:

[15]   The complainant subsequently requested not to be assigned to the same courtroom as Justice of the Peace Kowarsky.

[31]    The Panel agrees with the submissions of Counsel that the facts of January 29, 2010 constitute judicial misconduct and the panel upholds the complaint.

[32]   Further, the Panel agrees with the submissions of Counsel that the facts involved in the other two dates particularized in the Notice of Hearing do not constitute judicial misconduct and the Panel dismisses those complaints.  The facts did not meet the test set out in paragraph 7 above.

[42]   The Panel's decision is to reprimand Justice of the Peace Kowarsky.

   JP Kowarsky was indemnified to the tune of $37,000 for the costs of his defence.

    Former Justice of the Peace Massiah received zero indemnification for his 23 day hearing. His Black lawyer was referred to the Law Society of Upper Canada for discipline.  His White lawyer was not. Presenting Counsel actually praised the work of the White lawyer and the Hearing Panels actually acknowledged this in their Decisions. JP Massiah's conduct is said to have violated the Ontario Human Rights Code.  No such allegation was made against JP Kowarasky in her Notice of Hearing against him.

   JP Kowarsky most clearly created a poisoned work environment for his complainant.  She actually demanded never to be assigned to work with him again.  Absolutely no one in the Massiah case made any such request. JP Kowarsky enjoyed the benefit of a publication ban to protect his name. JP Massiah did not.  The publication of the Notice of Hearing against JP Kowarsky was not published on the JPRC website.  JP Massiah's was published on the JPRC website, The Toronto Sun, The Toronto Star, The Globe and Mail and Law Times.

   Every single witness called by Presenting Counsel against JP Massiah testified to not having any intention to file a complaint against him. They were asked this because in response to a disclosure request Presenting Counsel answered that the complainants are the witnesses she would call to testify at the hearing. Some 19 months later in their Decision dated January 12th, 2015 the Hearing Panel ruled that former Presenting Counsel, Mr. Doug Hunt was the complainant. JP Massiah was denied the opportunity of confronting him. Not a single witness called by Presenting Counsel was able to testify with specificity about when the allegations took place. None.

   JP Kowarsky was so protected by White Privilege that the words he uttered to the complainant are not even mentioned in the JPRC decision.  Have a look for yourself.(see Kowarsky Decision on link below) The Agreed Statement of Facts which the very same Presenting Counsel put before the Hearing Panel stated that it was his practice up until January 29th, 2010 to hug staff he had not seen for awhile. JP Massiah hugged no one. He touched a clerk on a should and asked her how she was doing. This was the offence which Presenting Counsel passionately advocated made this a much more serious case than his first.  It must be that "soul brother" voice which sexualized this innocent encounter.  The witness who claims to have observed this is the very same witness who, behind JP Massiah's back, referred to him as a "soul brother" among her workmates.  This is what the Hearing Panel wrote on this point in the liability Decision at para 176:

176.   As Ms. II described, the words as well as the slow, breathy manner of 

          expressing them, were reminiscent of a style of speaking which the 

          phrase "soul brother" connotes.  Ms. BB described how His Worship 

          would slowly inhale and exhale, commenting as he was exhaling, in a 

           sensual way.   

Here is a definition of "soul brother" from a leading dictionary.https://www.merriam-webster.com/dictionary/soul%20brother

https://www.ontariocourts.ca/ocj/jprc/public-hearings-decisions/kowarsky/

   Readers and concerned citizens may also be interested to read what Madame Justice Cronk of the Ontario Court of Appeal had to say about the type of evidence necessary to establish a poisoned work environment in Johnson  v.  General Motors of Canada 2023 ONCA 502. (see paragraphs 66 and 67)

   

   

"He was like a "Soul Brother" on the Bench"

  This is the first post in what I hope to be a series of posts sharing with readers the toxic and dehumanizing Anti-Black Racism and Discrimination I experience in my work as a lawyer in Ontario, Canada regularly.
 
   Some years ago a Justice of the Peace facing judicial misconduct allegations was
referred to me by another judicial officer. He was referred to me because of my
knowledge in the Human Rights Code and constitutional law. That Justice of the Peace
is now Former Justice of the Peace Errol Massiah. He so happens to be Black.  He was
removed from office and denied the rights and privileges of fundamental laws in
Ontario available to everyone else and especially White Justices of the Peace.

   For example, he was penalized twice for the same offence. In March, 2012 a Hearing Panel of the Justices of the Peace Review Council(JPRC) suspended him for 10 days for judicial misconduct which involved failing to be sensitive to gender boundaries with staff. The Chief Justice of the Ontario Court of Justice further ordered him to take gender-boundary sensitivity training.  He was on the verge of completing the sensitivity training when additional allegations were brought forward.

   The problem with the additional allegation was they all pre-dated the March, 2012 disposition for which he received a 10 day suspension and the gender-boundary sensitivity training. It is difficult to understand how the JPRC and its Presenting Counsel could not see the abuse of process inherent in these facts.  Presenting Counsel's Notice of Hearing even had a count which asserted "your prior history of judicial misconduct of a similar nature at a different courthouse".

What did Former Justice of the Peace Massiah do ?

He said things like: "Looking good today B", "Girl, you're looking good today", "Oooh lady in red".
This is to be contrasted with what a White Justice of the Peace who was not removed from the Bench said to a court-clerk in open court in and around the same time. He actually stated: "Madame clerk I am ready for my blow-job now". The White JP said it was a joke. The White Justice of the Peace also made it a habit to hug and kiss court staff. The differential treatment is mind-boggling to say the least. It is fine for the White JP to ask for a blow-job in open court and hug and kiss court staff but a Black JP can not compliment court staff.  And if the Black JP's lawyer should take issue with this double-standard simply refer him to The Law Society of Upper Canada.

Did Anti-Black Racism play a role in Former Justice of the Peace Massiah's removal from judicial office ? 

   I believe it most certainly did.  I said so during the hearing and I maintain that position today.  The Hearing Panel referred me to The Law Society of Upper Canada.  The Chair of the Hearing Panel stated "Mr. Guiste made comments to suggest that this Panel was discriminating against Mr. Massiah and his counsel" and "the panel was offended at the suggestion that they are racist."

   However, I invite you to consider the cross-examination of a key witness in the case against Former Justice of the Peace Massiah. The Hearing Panel is said to have made an order banning publication of the names of witnesses. I will not name her. Her name is not relevant. She is being cross-examined by co-counsel, Mr. Jeff House. This witness and her workmates referred to Former Justice of the Peace Massiah as "Soul Brother" among themselves.

Q.  And you used to tell people that he was "like a soul brother on the bench", right ?

A.  Yes

Q.  Who did you say that to ?

A.   That was just sort of chatter before any of this, these proceedings happened. We would
discuss, my coworkers and some of the people about some of the things that were going on,
the way he was talking, his mannerisms, and that's just the term that I used.

Q.   So this was just generally among all your colleagues ?

A.   Yes.

Q.   Do you think that's a racialized term, by any chance ?

A.   No.

Q.   No ?  Soul brother.  So you would call me a "soul brother" ?

A.   Well, if you talked like that I would.

Q.   Well, maybe you can answer the question.  Isn't it something that's used for black people ?

A.   I don't consider it racist, no.

Q.   Isn't it a phrase that's used for black people ?

A.   That era, like the '70s, where I grew up, we used that term.

Q.   For black people, right ?

A.  Sure.

Here is a definition of the term "soul brother" from a leading dictionary.

https://www.merriam-webster.com/dictionary/soul%20brother

Lawyering While Black in Ontario: My Personal Experience

   Many readers will not believe this but it is appears to be "unlawful" for a lawyer to forcefully argue against what he perceives to be racially motivated bias or unfairness in legal proceedings against a Black client.  I use the term appears because from my perspective this makes no sense. However, over the past number of years I have received my share of "public shaming" "modern-day-lynching" for doing exactly that.

   It is no accident that the mainstream media is always an available and willing partner in this process.  The mainstream media is like a public relations partner, always available to print a story to assist the regulator or the wing of the government pushing for punishment or simply to promote their narrative.

   I have decided to share my experiences with my readers because the time is right.  The topics is out there.  The time for change is upon us all.

   I will set out my personal experience with this experience in a series of posts over the course of the summer.

About the author:  E.J. Guiste is a Rights Litigation Lawyer. His work involves human rights, employment law, professional regulation and criminal law - both trial and appeal. He has litigated cases at all levels of court. He has, through litigation impacted social change, in the following areas:
Waterloo Region Police no longer conduct clandestine sting operations to out gay men; obstetrical nurses at Markham Stouffville Hospital opposed to assisting in abortions on religions grounds must be accommodated and "changed circumstances" must be evaluated from a subjective viewpoint in the review of a claim for Convention Refugee Status.

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.