IN THE MATTER OF A HEARING
UNDER SECTION 11.1 OF THE JUSTICES
OF THE PEACE ACT, R.S.O. 1990, c.
J.4, AS AMENDED
Concerning a Complaint about the Conduct of Justice of the Peace Errol Massiah
Before: The Honourable Justice Deborah K. Livingstone, Chair Justice of the Peace Michael Cuthbertson
Ms. Leonore Foster, Community Member
Hearing Panel of the Justices
of the Peace Review Council
DECISION ON THE REQUEST FOR A RECOMMENDATION
FOR COMPENSATION OF LEGAL COSTS
Counsel:
Ms. Marie Henein Mr.
Ernest J. Guiste
Mr. Matthew Gourlay E. J. Guiste
Professional Corporation
Henein Hutchison, LLP Mr. Jeffry A. House
Presenting Counsel Counsel for
Mr. Errol Massiah
Decision on the Request for a Recommendation for Compensation of Legal Costs
Background
1.
Following a public hearing
under section 11.1 of the Justices of the Peace Act, on April 28, 2015, this
Panel made a recommendation to the Attorney
General under subsection 11.1(10)(g) of the Act
that (then) Justice of the Peace Errol Massiah should be removed
from office. On April 29, 2015,
pursuant to section 11.2 of the Act,
by order of the Lieutenant Governor in Council, former Justice of the Peace
Massiah (Mr. Massiah) was removed
from office.
2.
The recommendation of this
Panel was the result of our conclusions,
following our consideration of the evidence presented during the hearing, that (then) Justice of the Peace
Errol Massiah had engaged in judicial
misconduct. Our decision including those findings was released on January
12, 2015.
3. Mr. Massiah has asked this
Panel to make a recommendation that he be fully indemnified for his legal costs.
4.
Pursuant to subsection 11.1 (17) of the Justices of the Peace Act, the Panel, which includes a member of the
public, “may recommend that the
justice of the peace be compensated for all or part of the cost of legal services incurred in connection with
the hearing”.
The amount of allowable costs is limited to “a rate for legal services that does not exceed the maximum rate normally paid by the
government of Ontario for similar
services.” (subsection 11.1(18), Justices
of the Peace Act).
5. Written submissions were
invited from the parties in relation to the issue of compensation. Those
submissions and the Statement of Accounts for
each of the two counsel for Mr. Massiah have been reviewed. The amount of compensation requested for legal services
provided by Mr. Guiste is $517,055.81 plus $5,175.94 for
disbursements. The amount of compensation requested for Mr. House is
$93,916.84 including disbursements
of $27.97.
Analysis and Conclusion
6.
The Panel concludes that it
will make no recommendation for
compensation for the reasons below; to do otherwise would be inappropriate
in the circumstances of this case.
7.
The Panel agrees with the approach
taken in recent
jurisprudence from both the Justices of the Peace Review Council
and the Ontario
Judicial Council in concluding that, where there has been a finding of judicial misconduct, a recommendation for
compensation does not automatically
follow, and it is only in exceptional circumstances that the public purse should bear the legal costs of a
judicial officer who has engaged in judicial
misconduct.
8. The Panel agrees with the
submission from Mr. Massiah that the decision
on compensation in Re Foulds (JPRC,
July 21, 2013), a decision of a Hearing Panel of the Review Council,
is not binding on us. However, the Hearing Panel in that case was
governed by and applied the same
legislative framework as we must here. That Panel made a recommendation for compensation in circumstances where the
justice of the peace admitted judicial misconduct in an Agreed Statement of Facts, provided letters of apology to the
parties involved, and had 14 years as a
justice of the peace with no history of findings of judicial misconduct.
9. The
circumstances in Re Foulds, differed
significantly from those before us. However,
the Panel in Re Foulds provided some “general guidance” on how the provisions regarding
compensation should be applied. We find this guidance to be helpful and
persuasive. That Panel stated as follows at
paras. 52-62:
[52] While addressing the issue of costs in the matter before
us, we aim to also provide some general guidelines.
[53] Certainly respondents to these hearings should be encouraged
to retain counsel.
[54] In this case, counsel assisted with the preparation of an Agreed Statement of Facts, a feat that
might not otherwise be accomplished
without the benefit of counsel.
That alone saved considerable public expenditure.
[55] The participation of counsel also insulates complainants and other witnesses from
cross-examination by the very
respondent about whom they complained, thereby
amplifying procedural fairness and the overall dignity of the process.
[56] Although judicial members
of a panel are screened
for any personal or professional connection to a respondent, the
addition of counsel for a respondent
avoids the unseemliness of a judicial officer
directly pleading his case to his peers.
[57] In instances where the alleged
misconduct is referred to a public hearing, and ultimately
dismissed, there is a very
compelling argument for the recovery of all costs (in accordance with subsections 11.1(17) and 11.1(18) of the Act) as the public’s confidence has not been undermined in the least.
[58] In cases where, pursuant to subsection 11.10(g), a recommendation to the Attorney General
is made that a justice of the peace be removed
from office, we doubt
whether costs should ever be recommended, except in the most unusual
of circumstances.
[59] When a panel recommends removal from office it means that nothing short of removal is ‘enough’ to restore the public’s confidence. That
very public would unlikely countenance
the awarding of costs for such extreme
misconduct.
[60] In other cases where there
is a finding of misconduct, there is a spectrum of cost
recommendations that might
arise, all subject
to the limitations
in subsections 11.1
(17) and 11.1 (18) of the Act.
[61] In cases where no misconduct is admitted, but where it is eventually
established by the Panel, then costs might still
be warranted but on a lower scale.
[62] Some factors that
might be weighed are these:
a)
the severity of the misconduct;
b)
the complexity of the hearing;
c)
the conduct of the justice of the peace in the
course of the hearing, including whether the justice of the peace prolonged or expedited the process;
d)
the nature of the disposition(s);
e)
whether public funds were lost as a result of the misconduct;
f)
whether there had been previous findings of misconduct
made against the justice of the peace;
and,
g)
whether the conduct
in question relates
to a judicial function or impacts judicial independence.
10.
The Panel in Re Foulds stated that the factors it delineated “would serve the
public interest by ensuring that its judicial officers are fairly and wholly represented, but not at the cost
of the administration of justice as a whole”. (Re Foulds, supra, at para. 64)
11.
The Hearing Panel in Re Phillips (JPRC, November 4, 2013),
which post- dated Re Foulds
and where there was a recommendation for removal
from office, declined to recommend compensation. The Panel stated, at paras.
8-11:
[8] At the outset, we note that we are not ruling on the competence of Justice of the Peace
Phillips’ counsel or whether he
should be compensated. He performed
admirably and with great skill in a difficult case. He should be compensated, and this should be done, as would normally be the case by his
client. She has both a moral and
legal obligation to him.
[9] Our task is narrower: should
we recommend to the Attorney General that compensation
be awarded to Justice of the Peace Phillips?
[10] All of the factors militate against such a recommendation. The misconduct was severe,
and we determined that the only way that public confidence in the administration of justice could be
restored was to recommend removal from office. Justice of the
Peace Phillips created this situation
by her misconduct; she was ultimately removed
from office because of her misconduct. We have considered the submission that due to
the illness of one of our Panel
members extraordinary circumstances exist.
Our review of the transcript reveals that the hearing was going to be adjourned in any event. On the return date, either a further witness would be
called and then submissions as to
whether judicial misconduct had
occurred would proceed; or, the witness would not be called and counsel would proceed directly to submissions. Under either scenario, an adjournment would have been needed to
permit counsel to prepare arguments
and case law prior to making their
submissions on the evidence.
[11] We are of the firm
view that the average reasonable
Canadian fully apprised of all the facts would be shocked if any compensation were awarded. The Panel’s decision is that no recommendation will
be made to the Attorney General for compensation.
12.
The Hearing Panel in Re Johnson (JPRC, August 19, 2014) also declined to recommend compensation, even
though the disposition was not a
recommendation for removal, but rather a seven-day suspension. The Panel stated at p. 10:
Given the gravity of the misconduct, and
in particular that the misconduct
occurred while in the performance of judicial duties with significant effect on
the administration of justice,
members of the public and the public purse,
we are of the view that this is not an appropriate case for a recommendation for costs.
In deciding not to award costs we emphasize that our
decision is not intended to be punitive. It is merely a reflection of the unique features of the matters before us, and the discretionary nature of any recommendation.
13.
Similarly, the Ontario Judicial
Council Hearing Panel
in Re Chisvin (OJC February 22, 2013), in the
exercise of its discretion pursuant to s. 51.7
(4) of the Courts of Justice Act,
declined to order compensation. In that case
Justice Chisvin admitted judicial misconduct, and the Panel determined a reprimand was the appropriate sanction.
The Panel stated at paras. 4-6:
[4] As we noted in
our reasons for
disposition, Justice Chisvin is to be commended for
facing up to the fact that his
conduct fell below the required standard. However, it remains that he did fall below that standard
and we did make a finding of misconduct.
[5] Taking into account all the circumstances
of this matter, it is our view that the public purse should
not be required to bear the cost of
his legal representation.
[6] Accordingly, the
request for compensation is dismissed.
14.
We find the reasoning on compensation of the Hearings
Panels in Re Phillips, Re Johnson and Re Chisvin to
be persuasive.
15.
In considering the factors from Re Foulds:
a) In
this case the misconduct was serious, such that a recommendation for removal was deemed the only disposition which
would restore public confidence in
the judiciary.
b) The
hearing was somewhat complex as there were a number of allegations
involving a number of different women in the justice system.
c) Mr. Massiah’s conduct in advancing many
pre-hearing motions, which were without
merit, frequently appeared
to be a deliberate attempt
to prolong the process. This
caused public resources to be unnecessarily
expended.
d) Mr. Massiah has argued that his case has raised
issues transcending the parties
and that are in the public interest,
and that, therefore, his legal costs should be paid by public funds. We disagree. There are no “most
unusual” circumstances in this case which could justify a departure from the general principle that no compensation for legal costs should
generally be recommended where the Panel has
concluded that the only disposition that would restore public confidence is removal from the bench.
We are also mindful
that the primary public
interest of the judicial disciplinary process is to preserve and restore public confidence in the judiciary and in
the administration of justice.
e) No public funds,
other than those expended on this unduly elongated
hearing process, appear to have been lost as a result of Mr. Massiah’s misconduct.
f) There
were prior findings of similar misconduct made against Mr. Massiah. The
circumstances whereby findings in this hearing
pre- dated the prior findings was a novel
situation before this Council, but the legal issues raised in that
regard were not significantly complex.
g) The misconduct that has been established has nothing to do with the
concept of judicial independence. The acts had little to do with Mr. Massiah’s exercise of his judicial function. Most incidents constituted conduct of a judicial officer
towards women in the courthouse. In some
instances, he displayed physical reactions towards female defendants while he was presiding
in the courtroom. His judicial
misconduct did not relate to
the exercise of judicial discretion or judicial decision- making. In such circumstances, there are no judicial independence related concerns
associated with the expectation that, like any other
person whose wrongful actions are the reason for a legal proceeding against him or her, this former
judicial officer should pay his own legal
fees.
16.
We acknowledge
Mr. Massiah’s submission that financial security is a component of judicial independence. However, we agree with the submission of Presenting Counsel
that a decision by this Panel against recommending compensation for his
legal costs does not violate the
principle of financial security that is a component of judicial independence.
17.
Presenting Counsel
submits, and we agree, that the essence
of judicial independence is
that a judicial officer cannot be removed from
office without cause and that the Executive of government cannot arbitrarily (emphasis added)
interfere with a judicial officer’s salary or
pension. Losing one’s livelihood as a judicial officer after cause has
been established by an independent judicial discipline body to remove him from office does not unjustifiably
interfere with judicial independence; similarly a decision by that independent judicial discipline body that the
former
judicial officer should pay for the legal costs he incurred because of his judicial misconduct does not
unjustifiably interfere with his financial
security. Put another way, requiring justices of the peace to pay their own legal bills in a judicial disciplinary
proceeding that has resulted in a finding
of judicial misconduct and a removal from office does not compromise the principle of judicial independence.
18.
Although
Mr. Massiah suggests that section 20 and subsection 11.1 (17)
of the Justices of the Peace Act provide the “statutory articulation of the constitutional
tradition” that the Attorney General is responsible for indemnifying judicial officers
for the cost of their legal defence
in judicial misconduct cases,
we disagree.
19.
In fact, the judicial
discipline process has been established to preserve and restore
the confidence of the public
in the judiciary. Compensating
someone for his legal costs, after he has been found to have engaged in misconduct so egregious that it warrants
termination of his tenure as a
judicial officer could hardly restore public confidence, particularly in these circumstances where Mr. Massiah has
been receiving full salary
throughout the proceedings even though he has not been assigned judicial duties since August
23, 2010. If in such circumstances the public
were expected to bear the expense of the legal costs resulting from such judicial misconduct, the objective of
the judicial discipline process,
restoring public confidence in the judiciary, would be undermined.
20.
We also
reject Mr. Massiah’s submission that the principle of “judicial immunity” has any application to this determination.
Section 20 of the Justices of the Peace Act relates to
immunity from civil liability for acts
carried out in the course
of their judicial
duties. It does not protect
Mr. Massiah from
accountability for his misconduct through the
discipline process within the same Act, nor does it create any “right” for him to be
compensated for his legal fees.
21.
Similarly, we reject that there is any “right”
to public funding
of his legal fees incurred by his judicial
misconduct established in the international conventions cited by Mr.
Massiah. Mr. Massiah was accorded his right
to procedural fairness and his right to retain counsel to represent him.
It does not flow from international conventions that a judicial officer who has engaged in judicial misconduct should
automatically have his legal costs
paid. On the issue of compensation, the cited international conventions are completely irrelevant in this proceeding.
22.
Mr. Massiah contends that he
did not prolong the proceedings; he alleges
that he made admissions early in the investigation process. In fact, there were no formal admissions made that dispensed with the need for any witnesses to be called. He also
submits that the proceedings could have
been streamlined if the Panel had ordered a pre-hearing conference pursuant to Rule 14 of the Procedures. As there was no convincing suggestion by Mr. Massiah
at any juncture of the proceedings that the
narrowing of issues or a possible settlement were realistic possibilities, the Panel declined to order a pre-hearing
conference. Presenting Counsel
indicated to the Panel that a pre-hearing conference would not resolve
issues. It was also evident
through the course
of the hearing that a pre-
hearing conference would not have benefitted the process. Mr. Massiah contested all of the allegations.
23.
Once the hearing of evidence commenced, the hearing was conducted
appropriately and effectively by Mr. Massiah’s co-counsel, Mr. House.
24.
We reject
Mr. Massiah’s assertion that, in relation to numerous pre- hearing motions, his defence was “clearly well-grounded on recognized and
viable procedural grounds”. We agree
with and reiterate below examples
included in Presenting Counsel’s submissions which highlight a number
of the frivolous motions brought
by Mr. Guiste on behalf of his client:
(i)
The Applicant’s counsel, Mr. Guiste,
brought a belated
motion for a publication ban which required an
adjournment of the hearing. It was
based on the Applicant’s dissatisfaction with certain media articles
which had already been published, and about which the Panel
had no ability to do anything. In the same motion, he sought both a publication ban and an order that the
media publish articles that were fair. In other words, the Applicant
sought relief that was factually and
legally impossible to grant.
This motion also involved a baseless
allegation that various agents of the Attorney General,
as well as Presenting Counsel,
were actively pursuing the
removal or reputational destruction of Mr. Massiah as a justice of the peace. The Panel noted that “Mr. Guiste’s
position that Presenting Counsel have
been or are engaged in an attempt to undermine the judicial independence of His
Worship illustrated a
misunderstanding of the role of Presenting Counsel.” This was only one
of the many allegations made over the course of this hearing against Presenting Counsel, the Panel, the Registrar, and even the court reporter. Decision on the Motion to
Ban Publication (JPRC, April
11, 2014).
(ii) The Applicant’s counsel, Mr. Guiste, brought a
motion for recusal of the Hearing Panel on account of a
reasonable apprehension of bias. The
motion was entirely baseless, and was justifiably characterized as “frivolous” in the Panel’s
decision. The Panel
also observed that the Applicant’s motion contained
assertions that were “completely
offensive”,
“egregious”, and “atrocious”, such as the absurd allegation that Presenting Counsel had somehow colluded with the Hearing Panel over the issue
of retaining independent counsel: Decision on the Motion Alleging Bias (JPRC, May
29, 2014).
(iii) Mr. Guiste expressed a concern that Mr. Gover’s
retainer as Independent Counsel to provide a legal opinion
would in some way
result in an unfair hearing.
He stated: “It’s my duty to say look, this fellow has too close of a relationship to Presenting Counsel
and to Mr. Hutchison and the Ministry of the Attorney General.” He indicated that it was a serious matter.
He conceded that he had not checked the case law to see if it would support his allegation. A date was scheduled for motion materials to be
filed. No motion was ever brought. Decision on Threshold Jurisdiction Question
(JPRC, June 6, 2014).
(iv) Following release of the Divisional Court’s decision dismissing the application for judicial review of the prior Hearing
Panel’s findings, the Applicant persisted in trying
to re-litigate (under the auspices
of the abuse of process
motion) a number of issues conclusively determined by the Divisional Court: Decision on Grounds to be Argued on the Motion
Alleging Abuse of Process (JPRC, June 19, 2014).
(v) Mr. Guiste served and filed at least three Notices
of Motion seeking disclosure and particulars, in
respect of material that was either
irrelevant or already in his possession. For instance, he complained that the witness contact
information he had been provided was
insufficient, but then acknowledged in submissions that he “had to date made no effort to speak with the
witnesses.” He also demanded witness
statement summaries even though he was already
in possession of verbatim
transcripts: Decision on the Motion for Disclosure and Particulars (JPRC,
June 12, 2014).
(vi) On November 10, 2014, after the Panel had taken
the matter under reserve, Mr. Guiste
filed a Motion for Directions re Evidence making
irrelevant and belated claims about evidence led before the Panel
months earlier. In dismissing the Motion, the Hearing Panel made an order
“to control and prevent any further abuse of this process” that Mr.
Guiste cease trying
to re-open the hearing and stop sending unsolicited correspondence to the
Panel: Decision on the Applicant’s Motion for Directions (JPRC,
November 18, 2014).
(vii) In this same period of time post-hearing, Mr. Guiste filed a Motion attempting to once again argue the
jurisdictional points raised by the
earlier motion, which remained under reserve. He also raised some new jurisdictional arguments, which
the Panel characterized as “frivolous
and meritless”.
The Panel went on to note
“that His Worship Massiah’s decisions to bring meritless
motions to try to reargue
his case while the Panel is deliberating on its decisions on the hearing could be perceived by the public
as consistent with a deliberate
attempt to delay the Panel
in reaching a final decision.” The return date originally scheduled for delivery
of the Panel’s decision had to be adjourned as a result of the time lost
dealing with the Applicant’s
improper attempts to reargue the case: Decision
on His Worship’s Motion for Leave to
Have the Hearing Panel Entertain Further
Submissions (JPRC, November 19, 2014).
25.
Mr. Massiah’s conduct of this proceeding is considered in the context
of the factors referred to in Re
Foulds, namely that in cases of serious misconduct, compensation should be the exception rather than the rule even when the defence was conducted
entirely appropriately.
26.
In our view, awarding
compensation for legal fees in a judicial disciplinary
process where the proceedings were conducted in the manner described above would be an affront to the public confidence in the judiciary
and in the administration of justice. His conduct of the case did
nothing to expedite the proceedings;
in fact, we have found it prolonged the hearing
unduly.
27.
Mr. Massiah committed serious
misconduct that required removal from the
bench to restore public confidence in the judiciary. This was not a case involving the most unusual of
circumstances that would support a
conclusion that there should be a recommendation for compensation after a finding of judicial misconduct and
a removal from office.
28.
In our view, therefore,
ordering compensation in this case is wholly
and completely inappropriate.
29.
We have
decided against making a recommendation for any compensation of Mr. Massiah’s legal
costs in this case. The application for
a recommendation for compensation of legal costs is dismissed.
30.
The conduct
of Mr. Massiah’s lawyer, Mr. Guiste, is not relevant
to this decision. We have set out concerns about Mr. Guiste’s
conduct in an Addendum.
Dated:June
16, 2015
Hearing Panel: The Honourable Deborah K. Livingstone, Chair
Justice of the Peace Michael Cuthbertson Ms. Leonore Foster, Community Member
Addendum
Conduct of Mr. Guiste
1.
In
our decision regarding Mr. Massiah’s request for a recommendation for compensation of his legal costs,
reference was made to the conduct of Mr. Massiah during the proceedings. That
conduct encompassed procedural steps
taken by Mr. Massiah, through one of his counsel, Mr. Guiste. While we
recognize that Mr. Guiste would
have been acting
on the instructions of Mr. Massiah,
nonetheless Mr. Guiste,
as a lawyer, must bear responsibility for the inefficient and unprofessional manner
in which he filed
submissions, continued to amend submissions, and contributed to delay
in the progress of the proceedings.
2.
During the hearing, on more
than one occasion, after the Panel had
reserved on its decision, Mr. Guiste took steps that interrupted the Panel
during its deliberations and raised matters that should properly have been raised during the hearing, if his
client sought to raise them.
3.
During the course of the
proceedings, in particular during the numerous
pre-hearing motions, this Panel was taken aback by a number of egregious
inflammatory comments that Mr. Guiste made to the Panel. His comments
contained inappropriate, baseless allegations and/or inferences about this Panel, Presenting Counsel and other
participants in the justice system. We attempted to focus him on the matters
for adjudication before the Panel and
to make him aware of the inappropriateness of
his comments so that he would cease from his persistent incivility.
4.
In the context of a public
hearing that was underway to preserve
confidence in the administration of justice, Mr. Guiste frequently made inappropriate comments that implied
impropriety and/or unprofessional
conduct on the part of the Panel, previous Presenting Counsel Hunt, Presenting Counsel Henein, the
Attorney General and others involved in the justice system, and then he added a
comment afterwards as if to suggest that it was not his intention to
make such accusations. His conduct during this hearing process
lacked courtesy, respect and decorum
and gave rise to a concern that his conduct and comments could bring the administration of justice and the
legal profession into disrepute.
5.
The transcripts in this
proceeding provide a more complete picture of
how Mr. Guiste conducted
himself during this process. Several
examples of inappropriate commentary are set out as follows:
(1) On November 4, 2013, the Panel confirmed the
next motion date that had been
previously agreed to and referred to the undertaking by His Worship’s co-counsel that if one could not attend, they would make arrangements for the other to
attend. Mr. Guiste said, “I guess in the
circumstances, I would have to ask you in accordance with the client’s wishes, that he be removed as
counsel.” The Panel sought to confirm
whether His Worship
had terminated his retainer with Mr. Bhattacharya. Mr. Guiste said, “Well, I
think that the presenting counsel and the Tribunal
would be exceeding their liberties, given that he has counsel. And I can
inform the panel, if they so wish, that,
yes, his retainer in these proceedings is no more, because it would
be incompatible with the discharge of his duty in light of the argument of inadequate representation.”
His Worship subsequently said, “On November 11, we are due to have
a meeting with co-counsel, Mr. Bhattacharya, at which point in time
that the Justices of the Peace Review Council, and to some extent this Panel will then be advised as to whether or not Mr. Bhattacharya
will be retained, or continue to be retained on the record. Notification will come at that time. We are currently in discussion regarding that process. As it stands right now, he is still
currently co-counsel.”
(2) On November 4, 2013, Mr. Guiste stated to this Panel, “What I am dealing with here, primarily, is the conduct
of the body who brought the complaint. And what I am
saying is, look, you cannot be a panel that acts in accordance with the law and
close your eyes to the reality that
those complaints were not properly brought in law. Otherwise, as the
police officers refer
to some of our other tribunals, they refer to them
as “kangaroo courts”. What is a kangaroo court? A kangaroo court is, I’ll submit to you, is one that simply is a lapdog
for the masters in terms of
what they wish to accomplish.”
(3)
On November 4, 2013, Mr. Guiste further stated
to this Panel:
MR. GUISTE: This is a Tribunal of Law, a
respected Tribunal. And I say to each and every one of you on this panel, that it is integral that you understand what I am saying....And the law from the Supreme Court of Canada is very helpful here. And I will agree that it’s binding
on you. But in saying that, I am also saying
to you that - - Ms. Blight, you don’t think that it’s
worthy of writing this?
MS. BLIGHT: The last note that I
wrote, sir, is “kangaroo court”.
MR.
GUISTE: All right. I said quite a bit after that, I noticed that you’ve just been sitting there.”
(4) On November 4, 2013, Mr. Guiste stated, “…you
have the Ministry of the Attorney General and you have the
Justices of the Peace Review Council…
there appears to be either intentionally or unintentionally,
objective of seeking to, ‘if we can’t get him out by legitimate means in accordance with law, then we will so taint his reputation so that he will
be unfit’.” He further explained his comments by stating: “Intentionally or unintentionally it appears to me that the Ministry
of the Attorney General and
the Attorney General for Ontario have
decided in their wisdom that, ‘If we cannot get rid of Justice of the Peace Massiah within the bounds of
the law – that is, with respect to legitimate complaints brought in accordance with the statute
–then we will seek to remove him from office by virtue of deleterious effects of the publications by virtue of
the nature of the allegations’.”
(5) On April 9, 2014, Mr. Guiste referred to the
complainant whose complaint was the
subject of the 2012 hearing that resulted in findings
of judicial misconduct by Mr. Massiah. Despite findings by that Hearing Panel in 2012, based on the evidence presented before it, Mr. Guiste stated to this
Panel that, “So for example, if Ms.
[redacted] decides that she doesn’t like His Worship and she decides, okay, well, what I’m going to do is I’m going to
round up five people and I’m going to
record their – whatever they have to say and
send it to the Justices of the Peace
Review Council, that calls into
question the integrity of the process.”
(6) Mr.
Guiste made comments to suggest that this Panel was discriminating against Mr. Massiah and his counsel during this process.
On April 9, 2014, Mr. Guiste said, “But the writing requirement is a very serious
one, and all I’m saying is you can’t suck and blow. You can’t
say on your website, this has to be in writing, signed
letter. You can’t say in your
annual report, and when this African Canadian
Justice of the Peace comes, oh the law is changed for you. It doesn’t look good. It’s not right.”
On May 28, 2014, after
the Chair of the Panel
said, “Thank you for that speech” to Mr. Guiste,
he responded, “To a man of African- Canadian descent, it strikes at
the – what is that word? A stereotype
of the black man on a soap box giving speeches on the street corner.”
As we remarked at that time, the Panel was offended at the suggestion that we are racist. Mr.
Guiste responded by saying, “I am
suggesting to you that the context in which that was said, “Thank you, Mr. Guiste, for that speech,” I’m a man of African-Canadian descent and I’m very
familiar with my history, and that when
individuals of European descent in power want to exert their power, it is
not uncommon to resort to that type of stereotyping.”
(7) On April 9, 2014, Mr. Guiste said,
“So because the Ministry of the
Attorney General and the Government of Ontario is paying Presenting
Counsel’s salary, because they want this rammed through and dealt with, done, guilty. That’s not why we’re here.”
(8) On April 9, 2014, Mr. Guiste showed
no respect for the complaints process, the Justices of the
Peace Review Council or the seriousness of the allegations facing Justice of the Peace Massiah
when he said: “In other words, does the Justices of the Peace Review Council
have to deal with any garbage that is sent to it? Or
does it have a duty to look at it intelligently and say, hmmm, all right well, why don’t you tell each of these individuals to write us a letter, signed letter and we will deal with it? That is for you to ponder and I think it makes an abundance of sense
that you just don’t have garbage in
and garbage out.”
(9) On April 9, 2014, Mr. Guiste diminished the
seriousness of the allegations
before the Hearing Panel when he said, “I’m not sure what Mr. Massiah did, but from what I know, he never raped anybody.”
(10) On April 9, 2014, Mr. Guiste stated in an
insulting, demeaning tone to the Panel Chair, “I think you are
fundamentally misunderstanding. I
would ask that you work a little harder and try to understand me. I’m going to speak very slowly.”
(11) The
Panel heard on April 28, 2014, that Mr. Guiste had contacted Mr. Gover
who was retained as independent counsel to give the Panel legal advice on particular questions of law. Mr. Guiste
telephoned Mr. Gover and asked him if he saw anything
wrong in accepting the retainer to advise the Panel.
Mr. Guiste also suggested that there was
a concern about the objective
propriety of Mr. Gover acting as independent counsel. Mr. Guiste indicated that it seemed to him “that too many of the players are too loosely aligned
to each other and I think a reasonable third member person in the public, looking
at this, being informed of all of the facts and circumstances, would say
wait a minute, that doesn’t look
very good.”
Later
in the proceeding, he stated that he had not yet looked at the case law to support his allegation and
“if at the end of the day it doesn’t pan out, I might withdraw
it.” No motion
was brought in that
regard.
(12) On May 28, 2014, Mr. Guiste suggested that there
had been inappropriate contact
between the Panel and Ms. Henein, Presenting
Counsel, and he stated, “…what
I’m suggesting to this Panel is the rules
are very clear that there ought not to be communication and decisions made in the absence of the subject
Justice of the Peace.
This was one made in his absence. Whether you and Ms. Henein, presenting counsel, had any communication or not I could never
know that. But I simply have to advocate as lawyer for Mr. Massiah that the law requires this appearance of
fairness and clarity …
So let me be
clear. I’m just an advocate. I don’t know who did what, what happened; I can’t know that, and that’s not relevant.
What’s relevant is the appearance, and that’s what
I’ve been saying
consistently. A decision was made on a fundamental point in his absence without any input … A reasonable
person, sir, looking at these circumstances, it is highly
suspect, and it is a violation of the enabling
procedures.”
Summary
6.
In our view, comments
such as those cited above,
were unprofessional and
inappropriate and exemplified conduct which did nothing to advance Mr. Massiah’s defence. We did not consider the inappropriate
conduct or comments of Mr. Guiste in deciding the issues in this hearing
or in our reasons on the request regarding
compensation. However, this judicial
disciplinary process plays an important role in preserving and restoring public
confidence in the administration of justice. Such conduct and comments from a lawyer
cannot be overlooked. This Panel directs
the Registrar to provide a copy of this Addendum to the Law Society of Upper Canada for its consideration.
Dated:
June 16, 2015
Hearing Panel: The Honourable Deborah K. Livingstone, Chair
Justice of the Peace Michael Cuthbertson Ms. Leonore Foster, Community Member
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