One of the cornerstones of our system of justice is that a person who stands accused has a right to counsel and a right to defend themselves in a fair and impartial hearing. In my view, those rights are especially important in the context of allegations of judicial misconduct and particularly where those allegations are premised on the right of court employees to be free from sexual harassment in the workplace. The Court of Appeal for Ontario recognized the high level of scrutiny which trial judges must subject allegations of racial discrimination asserting a poisoned work environment. It is reasonable that sexual harassment would deserve equal scrutiny. The following is what Cronk J.A. said on this point:
[4] An allegation of discriminatory treatment in the workplace due to racism is a serious claim that implicates the reputational and employment interests of the claimant, as well as those of the alleged perpetrators. It can also affect the dignity, self-worth and health of both the alleged victim and those accused of racist conduct. An allegation of this type can reverberate for many years after the incident or incidents in question, with potentially long-term consequences for all concerned.
[5] No less serious are judicial
findings of racially-motivated conduct
in the workplace and a poisoned
work environment due to racism. Judicial consideration of an allegation of constructive
dismissal
based
on alleged racism
in the workplace
requires careful
scrutiny of and balanced attention to all the evidence relating to the allegation in order to determine whether
it is
more likely
than
not that the alleged racism occurred.
As I have stated elsewhere, my first observation and order of business on being called upon to assist Justice of the Peace Massiah was that the legality of the very complaints and the process to bringing the case to a hearing was in issue. Accordingly, I brought the appropriate motion in July, 2013 in accordance with my duty to him as a lawyer.
A lawyer retained to defend a judicial officer on allegations of judicial misconduct founded upon a violation of the rights of unionized court employees to be free from sexual harassment under the Ontario Human Rights Code's commits serious professional misconduct by failing to serve his client if he or she does not take steps to seek a publication ban - at least on an interim basis.
Accordingly, the record in the proceedings show that I brought a motion on behalf of His Worship Massiah seeking a publication ban "prohibiting publication of the allegations in the Notice of Hearing until the questions of their legality and the jurisdiction of the panel to entertain them is conclusively determined in law".
The Hearing Panel heard the motion in November, 2013. They reserved on their decision which they released on April 11th, 2014.
I have attached below a copy of the factum I prepared on behalf of His Worship Massiah and submitted to the Hearing Panel on the motion.
File No.: 05-22-041/11PD2
JUSTICES OF
THE PEACE REVIEW COUNCIL
IN THE
MATTER OF a complaint(s) respecting
JUSTICE OF
THE PEACE Errol Massiah
Justice of
the Peace in the
Central
East Region
Applicant
APPLICANT’S FACTUM
PART-
I
ARGUMENT IN BRIEF
1. This
Applicant seeks an order to cure the irresponsible, sensational, scandalous and
defamatory publication of the allegations in this
proceeding to date. The failure to cure
these
transgressions threatens to undermine the very integrity and
legitimacy of the adjudication
process itself.
PART II - THE FACTS:
2. During the course of
a public inquiry involving the Applicant which resulted in Reasons for
Disposition dated April 12th, 2012 Presenting Counsel
“received calls from a number of individuals
who work at the courthouse located at 604 Rossland Road Whitby
information regarding their interactions with Justice of the Peace
Massiah…. And therefore we are
transmitting it to the Council for its consideration.”
Applicant’s Motion Record – Report to the
JPRC – Mr. Hunt’s
Letter of November 3rd,
2011 – Tab 2 – Tab A
3. Presenting Counsel
failed to inform the individuals noted above about the role of the
JPRC and refer them there as mandated by s.10.2(3) of the Justice of the
Peace Act.
As above
4. “I am writing to
confirm whether the information has been forwarded for the Council’s
consideration as a new complaint ?” wrote the Registrar for the JPRC
in response to Presenting
Counsel’s correspondence.
As above- Registrar’s letter dated Nov.3/11
– Tab B
5. By letter dated
January 2nd, 2013 the Registrar wrote to the Applicant
particularizing the
Alleged complaints and requesting an answer from him.
As above – Registrar’s letter dated Jan.2nd/13
– Tab 3
6. On May 31st,
2013 the Registrar issued a 15 count Notice of Hearing (NOH) from the
JPRC. This NOH included seven additional counts of misconduct not raised
in the Registrar’s
letter dated January 2nd, 2013.
As above – Notice of Hearing – Tab 6
7. The Applicant has
filed a motion seeking a dismissal/stay of the allegations against him
on two grounds, namely, jurisdictional and abuse of process. The allegations not having been
brought in
the manner prescribed by the Justice of the Peace Act are not complaints
in accordance
with the legislation and consequently the JPRC has no jurisdiction to entertain
them. Secondly,
the manner of the investigation conducted on the allegations combined with the fact
that these
allegations mirror complaints for which the Applicant was already sanctioned and cover
the same
period of time make the Applicant’s continued prosecution and abuse of process.
Applicant’s Motion Record – Abuse of
Process
Legality of “complaints”
in question:
8. The question as to
whether or not the allegations in the NOH were brought in accordance
with law and are “complaints” as that term is used in s.10.2 of the Justice of the Peace Act is a live
issue to be adjudicated by the panel.
The publications to date:
8. Since the
commencement of these proceedings three media outlets have published stories
on the case against the Applicant.
All of them have published the allegations against the Applicant
as if they are fact without any disclaimer when in fact the panel has yet
to rule on them.
Oshawa
JP who sexually harassed staff faces new complaints
JP
facing fresh sexual harassment complaints
Justices
of the Pease appear before review council
PART
III - THE ISSUES & LAW:
8. THE ISSUES
1. Does the panel have the jurisdiction to
grant the relief sought by the Applicant ?
2. Do the unique circumstances of this
case warrant the panel’s exercise of their jurisdiction for the order sought by the Applicant ?
PART
III - THE LAW:
9.
“If
an order was made under subsection 9 and the panel dismisses
the
complaint with a finding that it was unfounded, the justice of the
peace
shall not be indentified in
the report without his or her consent
and
the panel shall order that information that relates to the complaint
and
might identify the justice of the peace shall never be made
public
without his or her consent.”
Justices of the Peace Act, s.11.1(21)
10. “A
publication ban should only be ordered when such an order
is
necessary to prevent a serious risk to the proper administration
of
justice, because reasonable alternative measures will not prevent
the
risk, and when the salutary effects of the publication ban outweigh
the
deleterious effects on the rights and interests of the parties and the
public,
including the effects on the right to free expression the right
of
the accused to a fair and public trial, and the efficacy of the
administration
of justice.”
R
v. MENTUCK [2001] 3 S.C.R. 442
11. IT IS RESPECTFULLY SUBMITTED THAT - where as here – the
legality of the
“complaints” and the jurisdiction
of this panel to entertain them is in issue it is not only wise
but in the public interest and
the interest of the administration of justice to curb the right to
publish to the extent necessary
to do justice. Justice can not be done
if the media is permitted
to publish “willy nilly”. To do otherwise would be contrary to the Rule
of Law, natural justice and
fairness.
PART IV - ORDER REQUESTED
12. The Applicant requests an order
prohibiting publication of the allegations in the NOH until the questions(sic) of their legality and the jurisdiction of the panel to entertain them is
conclusively determined in law.
ALL
OF WHICH IS RESPECTFULLY SUBMITTED.
August 29th, 2013
__________________________________
E.
J. Guiste, Co-counsel for the Applicant
SCHEDULE
A
LIST
OF AUTHORITIES
1. R v.
Mantuck [2001] 3 S.C.R. 442
2. The three
publications noted in the factum
SCHEDULE
B
1. Justices
of the Peace Act, 1990, Ch. J.4s –
s.10.2 – 11.1
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