In late June 2013 I was retained to assist His Worship Massiah in judicial misconduct proceedings before the Justices of the Peace Review Council. On examination of the file and case history it was apparent to me that there was an issue of jurisdiction and abuse of process with the proceedings initiated against this judicial officer. In accordance with my duty as a lawyer I immediately brought a preliminary motion challenging the tribunal's jurisdiction on the basis of non-compliance with the express provisions of the enabling legislation which mandated a complaint in writing from a complainant and asserting an abuse of process on the basis of issue estoppel, res judicata and excessive delay which impacted and compromised the evidence.
This motion was brought in July, 2013. The Hearing Panel heard a motion for intervention by the Association of Justices of the Peace for Ontario and granted them status to make submissions on the issue of jurisdiction. The Association of Justices of the Peace of Ontario supported our position on jurisdiction. I have reproduced a copy of their written submissions to the Hearing Panel below.
The Hearing Panel hearing the case initiated their own motion raising a point of law to the parties on the question of whether they had jurisdiction to entertain the motion brought by His Worship Massiah. The Hearing Panel invited the parties to address this issue with legal submissions. In April, 2014 the Hearing Panel retained independent counsel to provide them with a legal opinion on the issues raised by His Worship's motion. On or about May 23rd, 2014 Mr. Brian Gover delivered his legal opinion to the Hearing Panel and counsel for the parties. I have published a copy of this opinion in an earlier post.
After receiving submissions from myself and Presenting Counsel on how the motions would be dealt with - whether as stand-alone preliminary motions or by way of a full hearing of all of the evidence the Hearing Panel ruled that they would proceed to hear the case in its entirety and adjudicate the motion on the whole of the evidence. The Hearing Panel heard evidence in July, 2014. The matter was adjourned for written submissions and ultimately for a ruling on December 2nd, 2014. On December 2nd, 2014 the proceedings were adjourned to March 23rd, 2015 for a ruling. Below is what the Association of Justices of the Peace of Ontario had to say on the motion I raised in July, 2013:
JUSTICES OF THE PEACE REVIEW COUNCIL
IN THE MATTER OF A COMPLAINT RESPECTING
JUSTICE OF THE PEACE ERROL MASSIAH
WRITTEN SUBMISSIONS OF THE
ASSOCIATION OF JUSTICES OF THE PEACE OF ONTARIO
Barristers & Solicitors
5255 Yonge Street, Suite 1100
Toronto ON M2N 6P4
James C. Morton (28580E)
Tel: 416-225-2777
Fax: 416-225-7112
Lawyers for the Association of Justices of the Peace
of Ontario
HENEIN, HUTCHISON LLP
202-445 King Street W.
Toronto. ON
M5V 1K4
Marie Henein
Tel: 416-368-5000
Fax: 416-368-6640
ERNEST GUISTE
302-245 Yorkland Blvd.
Toronto, ON M2J 4W9
Tel: 416-364-8908
Fax: 416-364-0973
JUSTICES OF THE PEACE REVIEW COUNCIL
IN THE MATTER OF A COMPLAINT RESPECTING
JUSTICE OF THE PEACE ERROL MASSIAH
WRITTEN SUBMISSIONS OF THE
ASSOCIATION OF JUSTICES OF THE PEACE OF ONTARIO
2. AJPO makes this submission without taking position with regard to the specific case before Review Council.
3. All proceedings under s. 111([sic] - 11(1) of the Justices of the Peace Act (the “Act”) are triggered by a complaint. A complaint must be written and anonymous complaints are not accepted.
Act, ss. 10.2; Procedure of Justices of the Peace Review Council,
commentary to s.10.2 (2)
4. Presenting Counsel is engaged by Review^ Council to assist the Review Council to deal with complaints.
Act, s. 8 (15)
5. The Presenting Counsel is a part of, and subject to, Review Council. Presenting Counsel’s
sole authority to act is its engagement pursuant to S. 8 o f the Act by Review Council. As such, it is
submitted, a complaint cannot come from Presenting Counsel - any such complaint would, in effect, be a complaint from Review Council.
6. More generally, Review Council’s role is not to investigate or police Justices of the Peace, but rather to consider complaints brought properly before it. Granting Review Council a policing role for Justices of the Peace would require a change in the mandate of Review Council and would, it is submitted, require a statutory amendment.
7. Accordingly, it is submitted that only written complaints from identified complainants made through the regular process are proper. Complaints generated by Presenting Counsel as engaged by Review Council arc not proper. In the instant case any possible complainants who came to the attention of former Presenting Counsel ought to have been told of their entitlement to make complaints and any such complaints, if made, should have been dealt with in the ordinary course.
8. AJPO's position with regard to jurisdiction relating to abuse of process is that this panel has authority to act. The Complaints Committee of Review Council acts without the input of the Justice investigated and accordingly a decision made is made without submissions from the Justice investigated. As such, the requirement of audi alteram partem or basic natural justice requires that the issue of abuse of process be open for the Justice to raise; otherwise this issue would be disposed of without input from the Justice. No person should be judged without a fair hearing in which that person is given the opportunity to respond to the claims against them.
9. As noted before, AJPO takes no position as to whether, in this case, an abuse of process has occurred.
ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 25th day of July, 2013.
IN THE MATTER OF A complaint(s) respecting Justice of the Peace Errol Massiah
Court File No. 22-041/11
WRITTEN SUBMISSIONS OF THE
ASSOCIATION OF JUSTICES OF THE PEACE OF
ONTARIO
STEINBERG MORTON HOPE & ISRAEL LLP
Barristers & Solicitors
5255 Yonge Street. Suite 1100
Toronto ON M2N 6P4
James C. Morton (28580H)
Tel: 416-225-2777
Fax: 416-225-7112
Lawyers for the Association o f Justices of the Peace of Ontario
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