Justices of the Peace Review Council
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
DISPOSITION
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 His Worship Errol Massiah
Mr. James Morton,
Morton Karrass LLP
Mr. James Morton,
Morton Karrass LLP
Counsel for the Association of Justices of
the Peace of Ontario (Intervenor)
the Peace of Ontario (Intervenor)
PUBLICATION BAN:
On June 11, 2014, this Panel made an order that the names of all witnesses
who appear in any
of the facta or motion materials or
application records in this hearing shall not
be published, nor shall any information that might identify them be
published. Names of witnesses have been redacted.
DECISION ON DISPOSITION
1.
In our
decision, dated January 12, 2015, pursuant to section 11.1(10) of the Justices
of the Peace Act, R.S.O.
1990, c.J. 4, as amended (hereafter “the Act”),
this Hearing Panel found that the
evidence was sufficiently clear, convincing and cogent to establish on a balance
of probabilities that Justice of the Peace Errol Massiah
had engaged in judicial misconduct. We
found that the following 13 allegations referred to in the Notice of
Hearing, filed as Exhibit 1(b), were proven by the evidence presented before us:
1)
Between May 30, 2007 and August 23, 2010, he
engaged in a course of conduct, including comments and/or
conduct, towards female court staff,
prosecutors and defendants that was known, or ought reasonably
to have been known, to him to be unwelcome or unwanted. The conduct
resulted in a poisoned work environment that was not free of harassment.
2) He
acted in a manner inconsistent with the Human
Rights Code by failing to treat
others in the justice system with mutual respect and dignity.
3)
He displayed improper and/or offensive conduct
and made inappropriate, sexual and/or
offensive comments directed at females that made persons working in the justice system feel uncomfortable,
uneasy or embarrassed.
4)
His Worship ought to have known that such
behaviour, particularly given his position
as a judicial officer, could
cause offence, harm, discomfort
and/or undermine the dignity of female staff and prosecutors.
5)
The behaviour occurred in the workplace at the
courthouse or at a location or event
related to the workplace.
6)
His Worship’s
inappropriate and/or offensive conduct contributed to a poisoned work environment such that the comments and/or behaviour created a hostile or offensive
work environment for individuals or groups
and diminished individuals’ confidence in him as a judicial officer and their confidence in the administration of justice.
7)
His interaction with female staff
was inappropriate and included sexual, suggestive and/or inappropriate
comments and/or conduct. His conduct
included gender-related comments about an individual’s physical characteristics or mannerisms; and/or unwelcome physical contact;
and/or suggestive or offensive remarks or innuendoes about the female gender; and/or leering or
inappropriate staring, including:
(a)
Leering at and/or ogling at female court staff.
(b)
When he was introduced to “AA” in 2007, he slowly looked
her up and down causing her to feel uncomfortable and giving rise to a perception of an “undressing” look.
(c)
He said to
“BB”, “Looking good today, ‘BB’” while looking her up and down head to toe with his eyes, and he often looked her up and down head to toe.
(e) He said to “BB” in the back
hallway near the women’s washroom that he
liked two-tone blondes.
8)
He invited court staff into his chambers
when he was not fully dressed,
including:
(a)
On two
occasions between 2007 and August of 2010, he was in his chambers
changing his clothes with the door open when
“EE” came to his chambers to bring him paperwork. He told her to
enter the chambers
in circumstances when he was not fully dressed. In one instance he was
about to put his shirt on and in one instance his shirt was wide open. He
was either putting his shirt on or taking it off. He told her, “That’s okay”, “no, no, don’t worry, just stay” and said, “come on in”.
(c)
On another
occasion, he was in his chambers changing his
clothes with the door open. When “FF” was delivering documents to him, he was standing
in partial view of the door
with his shirt off.
(d)
In the hallway
behind the courtroom, he inappropriately removed
his robe when he was wearing an undershirt but no dress shirt, in the presence of a
female court staff person, “GG”.
9)
In late spring
or early summer of 2010, “HH”, a provincial prosecutor, was coming in from the parking garage to the courthouse. As she
was walking past His Worship who was sitting
outside he said, “Ms. “HH”,
looking goooood” in a manner that conveyed sexual
undertones. With his eyes
he also looked her up and down in a manner that conveyed sexual connotations.
This caused Ms. “HH”
to feel very uncomfortable and vulnerable.
10)
Between 2007
and 2008, when “HH”, the provincial prosecutor
previously referred to, was walking up the stairs
in the courthouse, he leaned
in toward her from behind
and with his mouth close to her ear, he said,
“Oooh, lady in red” in a manner that appeared to be deliberately flirtatious,
intimate and/or suggestive in an inappropriate way for a female in the workplace.
11)
He approached “BB” from behind
when she was seated at her desk, stood inappropriately close to her,
hovered over her, touched her
shoulders and in a sensual, sexual way said, “How are you doing today?” causing Ms. “BB” to feel very
uncomfortable and shaken.
13)
He demonstrated
inappropriate conduct towards female defendants in the courtroom. This included leering
at the female defendants looking them up and down in a sexual manner
when they were standing in the
courtroom, or walking up to or away from the front of the court,
and giving them “the once over”. Some prosecutors and some court staff felt that their confidence in him as a
judicial officer and that public confidence
in the administration of justice were negatively impacted by their observations of this conduct.
14)
In light of the nature of the
conduct set out above, the range of women who
were recipients of his conduct, and his history of judicial misconduct of a similar nature at a different courthouse,
his conduct demonstrated a pattern of inappropriate conduct toward women in the
justice system.
2.
We concluded that the act or
acts as set out in the above paragraphs individually and collectively constitute judicial misconduct that warrants a
disposition(s) under section 11.1(10) of the Justices of the Peace Act to preserve the integrity of the judiciary
and restore public confidence.
3.
We now consider the issue of what disposition or
dispositions are appropriate to restore
the public’s confidence in the judiciary and the administration of justice.
4.
Section 11.1 (10) of the Act provides that:
11.1(10) After completing the hearing, the panel…if it upholds
the complaint… may,
a)
warn the justice of the peace;
b)
reprimand the justice of the peace;
c)
order the justice of the peace to apologize to
the complainant or to any other person;
d)
order that the justice of the peace take
specified measures, such as receiving
education or treatment as a condition of continuing to sit as a justice of the peace;
e)
suspend the justice of the peace with pay, for
any period;
f)
suspend the justice
of the peace without pay, but with benefits,
for a period up to 30 days;
g)
recommend to the Attorney General that the
justice of the peace be removed from
office in accordance with section 11.2.
5.
Section 11.1
(11) of the Act provides that the
“panel may adopt any combination of the
dispositions” except that a recommendation to the Attorney
General that a justice of the
peace be removed cannot be combined with another sanction.
6.
Section 11.2(2)
of the Act provides that a justice of the peace may be removed from office only if a complaint about the
justice of the peace has been made to the Review
Council and following a hearing under s. 11.1, the Hearing Panel, recommends to the Attorney General that the justice of the peace be removed
on the ground that “he or
she has become incapacitated or disabled from the due execution of his or her office by
reason of, inter alia,
‘conduct that is incompatible with the due execution of his or her
office’ or the ‘failure to perform the duties of his or her office’.”
7.
In accordance
with the Procedures of the Review Council, Presenting Counsel’s role is not
to seek a particular order against a justice of the peace but to see that the
complaint against the justice of the peace is evaluated fairly and
dispassionately to the end of achieving a just result. In that capacity, Presenting Counsel impartially assists the Hearing Panel in its
consideration of the appropriate disposition(s).
8.
Public confidence in the justice system is at
the heart of a hearing into judicial
misconduct. Like the Hearing Panel in Re Barroilhet: Decision on Disposition (JPRC, October 15, 2009) at para. 9, we take guidance from
the principles established by the
Supreme Court of Canada in Ruffo v. Conseil
de la magistrature, [1995] 4 SCR 267 (SCC). At para. 68 in Ruffo, Justice Gonthier described the
role of a judicial disciplinary body comparable
to our Justices of the Peace Review Council established
under the Quebec Courts of Justice Act:
[68] The Comité’s role
in light of these statutory provisions was accurately
described by Parent J., at p. 2214:
[Translation] … the Comité is the body established for a purpose relating to the welfare of the
public, namely to ensure compliance with
the code of ethics that sets out the rules of conduct
for and duties of judges toward the public, the parties to a case and counsel. The Comité’s role is to inquire into a complaint
alleging that a judge has failed to comply with the code,
determine whether the complaint is justified
and, if so, recommend the appropriate sanction to the Conseil.
The Comité’s
mandate is thus to ensure compliance with judicial
ethics in order to preserve
the integrity of the judiciary. Its role is remedial and relates
to the judiciary rather than the
judge affected by a sanction. In this light, as far as the recommendations the Comité may make with respect to
sanctions are concerned, the fact
that there is only a power to reprimand and the lack of any definitive power of
removal become entirely comprehensible and clearly reflects the objectives underlying the Comité’s establishment: not to punish a part that
stands out by conduct that is deemed unacceptable but rather to preserve
the integrity of the whole.
Ruffo v. Conseil de la magistrature, [1995] 4 SCR 267 (SCC) at
para. 68
9.
Accordingly,
in assessing the conduct of justices of the peace, the role of a Hearing
Panel under section 11.1 of the Act is remedial and relates to the judiciary
in general rather than the
specific justice of the peace affected by a sanction. As such, the role of the Hearing
Panel in addressing judicial misconduct is not to punish a part, i.e., the
individual justice of the peace who stands out by conduct that is deemed unacceptable but, rather to preserve the
integrity of the whole, i.e., the entire judiciary itself.
10.
Both Presenting Counsel and Counsel for His
Worship agree that we should be guided
by the ethical expectations that are inherent in the judicial function and are well established in Canadian
jurisprudence. In Re Therrien, [2001]
2 SCR 3, at paras. 108- 111, Justice
Gonthier clarifies these duties in his comments
on the role of the judge
and the manner in which the public perceives that role:
[108] The judicial function is absolutely unique. Our society
assigns important powers and
responsibilities to the members of its judiciary. Apart from the traditional role of an arbiter which
settles disputes and adjudicates between the
rights of the parties, judges are also responsible for preserving the balance of constitutional
powers between the two levels of government in
our federal state.
Furthermore, following the enactment of the
Canadian Charter,
they have become one of the foremost defenders of individual freedoms
and human rights and guardians of
the values it embodies: Beauregard, supra,
at p. 70, and Reference re Remuneration of Judges of the Provincial Court, supra, at para. 123. Accordingly, from the point
of view of the individual who appears before them, judges are first and foremost the ones who state the law, grant the person rights or impose
obligations on him or her.
[109] If we then look beyond the jurist to whom we assign responsibility for resolving conflicts between parties, judges also play a
fundamental role in the eyes of the external
observer of the judicial system.
The judge is the pillar of our entire justice
system, and of the rights
and freedoms which
the system is designed
to promote and protect. Thus, to the public, judges not only swear by taking their oath to serve the ideals of Justice and Truth on which the rule of law in Canada and the foundations of our democracy
are built, but they are asked to embody them (Justice Jean
Beetz, Introduction of the first
speaker at
the conference marking the 10th anniversary
of the Canadian Institute for the
Administration of Justice, observations
collected in Melanges Jean Beetz (1995), at pp. 70-71).
[110] Accordingly, the personal qualities, conduct and image that a judge projects affect those of the
judicial system as a whole and, therefore, the
confidence that the public places in it. Maintaining confidence on the part of the public in its justice system ensures
its effectiveness and proper functioning. But
beyond that, public confidence promotes the general welfare and social peace by maintaining the rule of law. In a
paper written for its members, the Canadian
Judicial Council explains: Public confidence in and respect
for the judiciary
are essential to an
effective judicial system and, ultimately, to democracy founded on the rule
of law. Many factors, including unfair or uninformed criticism, or simple misunderstanding of the judicial
role, can adversely influence public confidence in and respect for the judiciary.
Another factor which is capable
of undermining the public respect
and confidence is any
conduct of judges, in and out of court, demonstrating a lack of integrity. Judges should, therefore, strive to conduct
themselves in a way that will sustain and contribute to
public respect and confidence in their
integrity, impartiality, and good judgment.
(Canadian Judicial Council, Ethical Principles for Judges (1998), p. 14)
[111] The public
will therefore demand
virtually irreproachable conduct
from anyone performing a judicial function.
It will at least demand that they give the appearance of that kind of conduct.
They must be and must give the appearance of being an example of
impartiality, independence and integrity.
What is demanded of them is something
far above what is demanded
of their fellow citizens …
11.
We agree with the comments
made by the Hearing Panel in Re Phillips:
Decision on Disposition (JPRC, 2013):
[21]
Central to our analysis is the concept of judicial integrity expressed in the Report
of the Canadian Judicial Council to the Minister of Justice Concerning the Honourable Paul Cosgrove, supra, where
the Council wrote: Public confidence in the judiciary is essential in maintaining the rule of law and preserving the
strength of our democratic
institutions. All judges have both a personal and collective duty to maintain this confidence by upholding the highest standards of conduct.
Report of the Canadian Judicial Council to the
Minister of Justice Concerning the
Honourable Paul Cosgrove of the Superior Court
of Justice of Ontario, supra., at para. 1
12.
We adopt
the approach described by the Hearing Panel in Re Baldwin (OJC, 2002) at page 6 when determining the appropriate disposition: It is only when the conduct complained of crosses this threshold
that the range of dispositions in s. 51.6 (11) is to be considered. Once it is determined that a
disposition under s. 51.6(11) is required, the Council should
first consider the least serious – a warning – and move sequentially to the most serious – a
recommendation for removal – and order only what is necessary to restore the public confidence in the judge and in
the administration of justice generally.
13.
We adopt also the reasoning of Justice Otter in the Romain Inquiry Report
that the same principles
applicable in judicial misconduct cases involving judges are applicable to justices of the peace: Given the critically important role of the justice of the peace at the gateway to
our judicial system, I am of the view that there is no reason that a justice of the peace should not be held to the same
high standard of conduct as all other
judicial officers.
The Honourable
Mr. Justice Russell J. Otter, Report of
the Judicial Inquiry Re: His Worship
Rick C. Romain (2003), at p. 21, aff’d Romain
v. Lieutenant Governor in Council (2005),
258 DLR (4th) 567 (Ont. Div. Ct.)
14.
Counsel for His
Worship, in his written submissions, argued, and we accept, that security of tenure for justices of the peace,
as for judges, is the first of the essential conditions of judicial
independence. Removal from the bench is the most serious disposition and must only be imposed in circumstances
where the judicial officer’s ability
to discharge the duties of office is irreparably compromised such that he or she is incapable of executing judicial office.
15.
In 2009, in relation to His Worship Jorge
Barroilhet, the Hearing Panel stated:
[26] In light of these findings, the Hearing Panel
must determine whether the conduct of
the justice of the peace in issue is so manifestly and totally contrary to the impartiality, integrity
and independence of the judiciary
that the confidence of individuals appearing before the justice of the
peace, or of the public in its justice system, would be undermined, rendering
the justice of the peace
incapable of performing the duties of his or her office.
Re
Barroilhet: Decision on Disposition (JPRC, October 15, 2009)
16.
In reviewing our findings of misconduct in this
case, Presenting Counsel has urged us
to consider the list of factors which the Hearing Panel in Re Chisvin (OJC, November
26, 2012 at para. 38) found to be helpful in its consideration of the appropriate disposition. We agree that these ten factors should guide
us. They are:
1)
Whether the misconduct is an isolated incident
or evidenced a pattern of misconduct;
2)
The nature, extent and frequency of occurrence
of the acts of misconduct;
3)
Whether the misconduct occurred in or out of
the courtroom;
4)
Whether the
misconduct occurred in the judge’s official capacity or in his private life;
5)
Whether the judge has acknowledged or recognized that the acts occurred;
6)
Whether the judge has evidenced
an effort to change or modify his conduct;
7)
The length of service on the bench;
8)
Whether there have been prior complaints about
this judge;
9)
The effect the misconduct has upon the integrity of and respect
for the judiciary; and;
10)
The extent to which the judge exploited
his position to satisfy his personal desires.
17.
We found there was a pattern of misconduct at the Whitby
courthouse by His Worship towards women in the workplace
which made them feel uncomfortable,
uneasy, embarrassed and offended. As we stated in our Reasons for Decision (JPRC,
January 12, 2015), this pattern
of inappropriate and offensive conduct
resulted in a poisoned work environment that was not
free of harassment. The comments and/or
behaviour of His Worship created a hostile or offensive work environment for individuals or groups and diminished
confidence in him as a judicial office. His conduct
also diminished their confidence in the administration of justice. The women
who were subjected to his misconduct included females who worked as staff, prosecutors, and litigants. When considered in addition to the findings
of misconduct by the previous Hearing Panel that heard evidence about his misconduct towards
female court staff at a different courthouse, the breadth of the overall
pattern of conduct
at both courthouses is
significant and stunning.
18.
The frequency
and extent of the misconduct was relentless, occurring as early as his initial introductions to staff when he first began appearing at the Whitby
courthouse. We accepted the
testimony of both males and females, who received or observed the inappropriate comments and conduct,
that women working in the courthouse felt
sexualized and uncomfortable as a result of His Worship’s
judicial misconduct. We were
satisfied on the balance of probabilities, that between May 30, 2007 and August 23, 2010, at the Whitby courthouse, His Worship engaged
in a course of conduct, which included both sexualized comments and conduct
towards female court staff, a female prosecutor, and female
defendants.
19.
Although His Worship Massiah
has been on the bench since 2007, as a result of the
sequence of events, he has been unassigned to work since August of 2010. The complaint about his misconduct at a different
location was ordered
to a hearing in 2010. During that hearing, new allegations came to light about his misconduct at the
second location, the Whitby courthouse, eventually resulting in the second
hearing over which we have presided. His length of active service on
the bench therefore is relatively brief, 2007 to 2010. The
findings of misconduct in this matter span the
entire period of His Worship Massiah’s
active tenure on the justice of the peace bench. We further
note that much of his first year would have been involved
with educational training
rather than presiding on his own.
20.
We found that the misconduct in
this case occurred both in and out of
the courtroom with females
who were cognizant of a differential power dynamic between
a judicial officer and a court
employee.
21.
As stated, this is the second
judicial discipline hearing
in relation to a second set of findings
of misconduct against His Worship Massiah. The findings establish that this is the second court location where
His Worship objectified and sexually harassed
women.,l
22.
Counsel for His
Worship argued that His Worship has acknowledged or recognized that the acts occurred in that he made no attempt to hide what he was doing, and at
the time, he thought that the sexualized comments were appropriate, and he was “kind of oblivious” to his conduct.
23.
Our findings,
based on the evidence presented
before us in this hearing,
reject the argument that His Worship
“fully understands now” what is and what is not inappropriate judicial conduct.
24.
We refer specifically to paras.
46, 162, 167 and 169 of our Reasons for Decision, dated January 12, 2015:
“His Worship’s evidence before us
clearly demonstrated that he still fails to appreciate or acknowledge that there is a court hierarchy and the implications that hierarchy has for those who work in the justice
system who interact
with him or appear before him in the courtroom.” (para. 46)
“In our
view, His Worship’s evidence was an attempt to minimize the obvious
sexualized manner in the workplace, which he portrayed as his “management style” in the workplace.” (para. 162)
“His Worship
Massiah’s efforts to minimize and deny the seriousness of his
conduct was apparent when he was giving evidence about Mr. Hunt’s disclosure to him of new allegations
being received.” (para. 167)
“When questioned
about the previous finding made by that Hearing Panel, His Worship’s evidence was equivocal at best. In one moment he testified that he “accepts” the prior findings, but also maintained they were “incorrect”. He appeared
unable or unwilling to acknowledge the distinction between appropriate and inappropriate conduct in the workplace.” (para. 169)
25.
The previous
Hearing Panel concluded, based on the information presented
at that time, the public nature
of the hearing would have brought home to His Worship any misunderstandings about
his position of authority in relation to the female
staff. That belief was proven
wrong by His Worship’s testimony before us. Despite His Worship’s exposure to and opportunity to learn from the findings,
reasons, and disposition from the previous hearing,
and despite the decision of the Divisional Court in Massiah v. Justices
of the Peace Review Council 2014 ONSC 3415 wherein his application for judicial review of the decisions made
in the first hearing was dismissed, there was
no forthright, unequivocal or convincing acknowledgement by His Worship
during this hearing of the
inappropriateness of his acts found to demonstrate misconduct or of the impact of his actions upon the women
subjected to that misconduct. Nor was there
convincing evidence that he felt remorse for those impacts.
26.
Even though
the findings in our hearing
pre-date the decisions
from the previous hearing, the findings of judicial
misconduct at that hearing are relevant on the issue of disposition here
in that misconduct of a similar nature has now been established in two different courthouses, involving
sexualized comments and conduct towards females
over whom His Worship had authority. The reasons and disposition from the first hearing are relevant as we consider
His Worship’s testimony before us, in a second public hearing and what
disposition(s) would restore the confidence in the judiciary of a reasonable member of the public. It is
our view that a reasonable informed member
of the public would be concerned by His Worship’s serious ongoing failure to understand or his unwillingness to respect the right of women in the workplace
in a courthouse to be free of
sexual harassment by a judicial officer. A reasonable person would conclude that His Worship’s professional experience and the judicial
training program Workplace
Harassment Prevention Workshop: Better Safe than Sorry attended by His Worship in the Fall of 2007 would have, or should
have, educated him, prior to
the time when he gave evidence before us. It should have eliminated any excuse for misunderstanding the impropriety of or the victimization caused
by his actions. It should have
reinforced the expectation of virtually irreproachable conduct required of a justice of the peace.
27.
Counsel for His Worship submitted that His
Worship has made an effort to change or modify
his conduct.
28.
His Worship was
ordered by the previous Hearing Panel to undergo specific education or counselling in gender
sensitivity and professional boundaries as deemed
appropriate by the Chief Justice.
We have reviewed the report, dated June 7, 2012,
contained at Tab 3 of Volume 1 of His Worship’s written
submissions on the Penalty
Phase, which outlines the counselling in which His Worship was engaged as the
Chief Justice directed. We have
reviewed, also, the documents contained at Tab 7 (from the same volume as noted above) which describes a one-to-one
Remedial Human Rights session in
which His Worship voluntarily participated on April 3, 2012. We acknowledge
that, in his testimony, His Worship expressed some regrets about his conduct, and claimed to have gained
insight about his conduct.
29.
Our findings
were, however, that from His Worship’s testimony before us, there was
cogent evidence that His Worship’s view of his conduct has not changed to any
degree, even after it was found by the previous Hearing Panel that similar
actions and comments constitute judicial misconduct. His Worship
continues to describe his comments to
the females at his workplace as “compliments” and as part of his “management style”. He denied touching
a female member of the administrative staff
but then equivocated that an inadvertent touching could have occurred because
of his stature and the close
proximity of the desks. He “reflected” that he was “very pumped” and therefore “greeted everyone in a very uplifting manner.”
30.
In considering the extent to which His Worship exploited his position to satisfy
his personal desires, we note that in our Reasons for Decision, we found that his
evidence “was an attempt to minimize the obvious sexualized manner in the
workplace” and His Worship, even when acknowledging some of the allegations of misconduct
“adjusted his testimony to minimize the inappropriateness of the conduct.”
31.
Most significant to our deliberation upon the
appropriate sanction is the effect the misconduct has on the integrity of and
respect for the judiciary.
32.
We heard, and accepted as
compelling, the evidence of two experienced prosecutors
who testified that His Worship’s conduct lessened the entire dignity
of the court and that their confidence in His Worship
Massiah and in the administration of justice was negatively impacted by his conduct
towards women in the courtroom.
33.
Public knowledge that a judicial officer has
been found to have engaged in judicial
misconduct, in the form of sexual harassment of females, at two separate courthouses cannot but have an adverse
effect on public confidence in and respect for not only His Worship, but also
for the judiciary as a whole.
34.
There have now been findings from two distinct
Hearing Panels that at least 11 women
have been subject to inappropriate sexual comments and conduct by His Worship. Other witnesses, found to be credible
and reliable, described observing inappropriate
conduct by His Worship towards others, including female court staff, a female prosecutor, and female defendants.
35.
Counsel for His
Worship argues that we should be guided by the previous Panel’s statement that they “are confident
that His Worship
Massiah will not engage in this
type of conduct in the future”. Therefore, we should conclude that even though we have found a sustained
pattern of inappropriate sexually-themed conduct over the
course of three years at the Whitby courthouse, despite the finding of similar misconduct at a different
courthouse, His Worship should be allowed, after a suspension, to return to the bench and to complete the
follow-up counselling ordered at the
first hearing. He submits that His Worship’s misconduct is “learned behaviour”, like “racism” and that it would be unfair to fault him for not learning as much as he would have wanted to, when he was unable
to complete the follow-up program. As the
misconduct found by us pre-dated, in time, the findings of misconduct made by
the first Hearing Panel, His
Worship’s position is that our disposition should be similar sanctions to those previously imposed.
36.
We are also mindful, however, that the mandate of this Panel is “not to punish a part
that stands out by conduct
that is deemed unacceptable but rather to preserve the integrity of the whole.” In our view,
we are entitled to take into account the findings and nature of His Worship’s misconduct in both courthouse
locations in considering whether a
specific disposition can restore confidence in this judicial officer, but also in determining
what disposition is sufficient to restore public confidence in the judiciary in general
and in the justice system as a whole.
37.
We rely on Mr. Justice Ivan Rand’s comment
regarding the test for removal of a judge
of the Supreme Court of Ontario:
Would the conduct, fairly determined in the light of all
circumstances, lead [fair-minded persons]
to attribute such a defect of moral character that the discharge of the duties of the office hereafter would be
suspect?; has it destroyed unquestioning confidence of
uprightness, of moral integrity, of
honesty in decision, the elements of public honour? If so, then unfitness has been
demonstrated.
The Honourable Mr. Justice
Ivan C. Rand, Inquiry re: The Honourable Mr. Justice
Leo A. Landreville (1966), p. 97
38.
The central issue in our determination here, as
all the relevant jurisprudence directs, is what is required to restore the public confidence.
39.
In all of the authorities provided by both Presenting Counsel
and Counsel for His Worship, there are, fortunately, very few
cases in which misconduct by judicial officers
has required discipline proceedings for conduct amounting to sexual harassment. The most recent and relevant is Re Kowarsky (JPRC, May 30, 2011). The sexually- inappropriate conduct in that case involved one comment, involving
eight words, made to one court
clerk, by a justice of the peace, while court was in session and they were both
at work in their specific
roles. The comment
was an ill-conceived attempt at humour.
40.
In describing the seriousness of the
misconduct, the Hearing Panel there stated at
paras. 35-36:
Firstly, conduct of this nature would not be tolerated from any other participant in the court process
particularly when, as here, court is in session.
In order to maintain the integrity of the judiciary a presiding judicial officer must conduct
himself/herself at least as well as everyone else before the Court. When,
as here, actions fall below this level there is an undermining of public confidence in the administration of justice.
Secondly, even though a courtroom clerk is not employed by the Court directly, as noted above, the
courtroom clerk acts under the direction of
the presiding justice of the peace
in the courtroom. In order to maintain
the integrity of the judiciary within this framework, the standard of conduct expected in this relationship could
reasonably be expected to be analogous
to that expected of someone
in a supervisory capacity in a more typical
working relationship. This conduct fell short of this expectation and as such it is
an additional source of the undermining of public confidence in the administration of justice.
41.
In Re
Kowarsky, the justice of the peace admitted that his conduct constituted judicial misconduct; he acknowledged that
his conduct was completely inappropriate,
unwelcome and wrong and that it upset the complainant. He made a full apology
to the complainant. A psychological
report provided to the Hearing Panel included
comments that showed the justice of the peace had reflected
upon his behaviour
and its impact on the complainant, that he was genuinely remorseful, and
had adjusted his behaviour such that
he was unlikely to make a similar mistake in the future. The Panel found that he had real concern for the harm
caused to the complainant.
42.
That Hearing Panel imposed a reprimand. It
stated, at paras. 40-43:
The Panel finds that actions already taken by Justice of the Peace Kowarsky make consideration of some of the
possible dispositions unnecessary. These
actions include having apologized to the complainant at the time and as part of the hearing process and having
taken appropriate counselling from Dr.
Haskell. Dr. Haskell’s opinion also confirms the lack of need for further
counselling. The Panel commends these actions as they assist in restoring public confidence.
Further, the panel acknowledges that Justice of the Peace Kowarsky has taken
a very significant
step in having
his assignment adjusted to accommodate the complainant. It is a measure that may not have been achievable in any other way. It is a
very positive act for the complainant. It is an act that exhibits integrity and should
assist in restoring public confidence.
The Panel’s
decision is to reprimand Justice of the Peace Kowarsky.
43.
Counsel for His Worship
made the Panel aware that Justice of the Peace Massiah
requested a transfer of his assignment to the Toronto Region and on July 10,
2012, his request was approved in writing. Counsel
submits that, we, like the Hearing Panel in Kowarsky, should consider this to be a very significant step of having his assignment changed to accommodate the women at the courthouse where the first findings of misconduct occurred
and we should conclude that this demonstrates a response by His Worship which “exhibits integrity
and should assist in restoring public confidence”.
44.
We disagree. The facts in Kowarsky are significantly different and distinguishable. In Kowarsky, there was one complainant and a single
comment at one specific court location, admitted to and acknowledged by His Worship
Kowarsky to be misconduct.
Here, there were numerous women subjected to His Worship
Massiah's misconduct,
including court staff, a prosecutor, and female defendants. There were numerous acts of
misconduct, none of which was admitted to or unequivocally acknowledged by His Worship.
The request to transfer and approval to do so came at a time before the second set of allegations had been ordered
to a hearing, before there were findings that His Worship engaged in
misconduct towards females at a second courthouse and before there were
findings that he is unable or unwilling to acknowledge the distinction between appropriate and
inappropriate conduct in the workplace. In our view, the request and approval in writing to transfer are of no
relevant significance in our
deliberations and do not assist in restoring public confidence in this case
45.
In the 1999 judicial inquiry
in relation to Justice of the Peace Leonard Blackburn, an agreed statement of fact set out that His Worship
had made inappropriate sexual remarks to a 16 year old student doing a high school
co-op placement at the courthouse and to a 21 year old woman who had attended his office in order to lay a private
Information.
46.
In describing the judicial standard of conduct
to be considered, Madam Justice Hogan,
who conducted the Inquiry, stated as follows:
However, justices of the peace are very important judicial officers. Among other duties, they make decisions
that affect a person’s
liberty such as bail,
they determine whether process will issue, they decide whether
or not to issue search
warrants, and they preside in court. In fact, for many people their only contact with a judicial
decision maker is with a justice of the peace.
It is the justices of the peace who preside
in court on matters such as
parking tags, speeding tickets, by-law infractions, and provincial offences. These are the day-to-day type of
“judicial” issues that confront most people.
It is therefore quite probable
that a great number of the public will form judgements of our justice system
based on their experiences with a justice of the peace. Justice
of the Peace Blackburn was a presiding justice of the peace which means that he carried out
the full range of duties that could be assigned to a justice of the peace,
including presiding in court.
The Honourable Madam Judge
Mary L. Hogan, Commissioner, Report of a
Judicial Inquiry Re: His Worship Leonard P. Blackburn (1999) p. 4
47.
In her recommendation that His Worship
Blackburn be removed from the bench,
Justice Hogan concluded, at pp. 6-7:
When justices of the peace accept their appointments they can’t help but appreciate that they are a part of
the justice system and the public will have
certain expectations of their behaviour while discharging their judicial duties.
Being mindful of the principles set out above regarding judicial
conduct, it is my opinion that Justice of the Peace Blackburn by his behaviour to the complainants in this Inquiry
has – and here I adopt the words of Madam
Justice MacFarland in the Hryciuk decision –
“displayed a lack of regard for the dignity and honour of his judicial
position. His conduct
must seriously diminish public
respect and confidence in him and thereby severely
impair his ability to function” as a justice of the peace.
I conclude that Justice of the Peace Blackburn’s misconduct is such that it does not serve
the best interests of the administration of justice in this
province that he continue as a justice of the peace. Of particular significance to me in coming to this
conclusion was the nature of the behaviour, the fact that it occurred
in the court of his judicial duties
and the age and circumstances
of the young women to whom his behaviour was directed. I take this view despite the fact that he apologized, admitted the allegations thereby sparing the
complainants from testifying and attended gender equity training. None of these factors
can excuse his behaviour, nor restore the necessary public respect and
confidence in him.
48.
The 2003 case of Justice of the Peace G.
Leonard Obokata involved sexual
misconduct in the form of unwanted touching rather than comments. While at a judicial conference in Toronto, His Worship went out to dinner with a number
of colleagues and consumed a large
amount of alcohol. On the walk from the restaurant back to the hotel with a female colleague, His
Worship reached over, grabbed one of her breasts
and twisted his hand. When the colleague loudly protested, Justice
of the Peace Obokata then repeated the action. On his account, he then
immediately apologized.
49.
Justice Cathy Mocha, sitting as a Commissioner
of the Inquiry, described the
seriousness of the admitted misconduct as follows:
There is no justification for Justice of the Peace Obokata’s misconduct. It was
serious, deliberate and it was repeated. Although there may have been some additional motivations for his actions
there is one that is clear. The intent of the misconduct, at least in
part, was to demean and show
disrespect toward Justice of the Peace X both personally and generally as a woman. Such misconduct would not have
occurred without some deficiency in
his ability to respect women. Consequently, this misconduct does not just potentially cast doubt on his judgment
concerning sexual assault cases, as
argued by his counsel, but on any matter before
him in which a woman is involved. It casts doubt on his respect
for the law. It casts doubt on his
morality. It casts doubt on his ability
to feel empathy. Impartiality, integrity and morality are all essential
elements of the administration of justice.
The Honourable Madam Justice
Cathy Mocha, Commissioner, Report of a Judicial Inquiry Re: His Worship G.
Leonard Obokata (2003), p. 5
50.
His Worship
Obokata’s disposition was a thirty-day suspension without pay and an order to complete a gender equity
program. His Worship’s immediate apology, his
conduct of the proceedings and his demonstration of appreciation of the impact
of his misconduct on the
administration of justice were highlighted by the Commissioner for imposing a sanction short of the most
serious disposition.
51.
There are many aspects
in the case before us which are distinguishable from the
precedents cited. Here, we have found His Worship’s misconduct to have been sustained and repetitive towards a
range of women all having different roles in
the justice system. He was the subject of findings of judicial misconduct at the earlier hearing and that hearing
provided him a remedial opportunity for him to learn and accept that his conduct was not
acceptable. Yet, he still fails to appreciate
or acknowledge that there is a court hierarchy and the implications that
hierarchy has on those who work in
the justice system. He continues to be unable or unwilling to acknowledge the distinction between
appropriate and inappropriate conduct in the
workplace and the impact that inappropriate conduct
and commentary has on both recipients and observers.
52.
Our findings of
His Worship’s misconduct, which significantly included unwanted touching as well as sexualized comments may have
related to events which pre-date the findings of the previous
Panel, but from His Worship’s testimony before us there
was no convincing demonstration of any understanding, appreciation or
assimilation of the insight one would expect,
and that public confidence requires,
in a judicial officer
whose duties would include presiding over bail hearings where the charges could involve sexual offences.
53.
We have considered the admissible portions of the
Psycho-Social Assessment from Ralph
Agard, Psychotherapist, dated February 16, 2015. Presenting Counsel submitted, and Mr. House, on His
Worship’s behalf, conceded that much of the report’s content was inadmissible
and therefore irrelevant. On the crucial issue
of whether His Worship now
appreciates the nature of his misconduct and is remorseful for it, we highlight Mr. Agard’s comments on page 14:
There is little doubt that Justice of the Peace Massiah is very remorseful.
During our sessions he was emotionally demonstrative of deep personal
thought processes when consideration was given to the fact that he might have unknowingly offended others. His strong family
values and his commitment to his
marriage, from a sociological perspective give credence to this observation. Documentation reviews
indicate that he wrote apology letters to all those who it was alleged
he had offended. He also did so to a particular individual in which there was no
finding of guilt. We have determined
from a behavioural perspective that this remorse
is genuine particularly at the probability that he might have
offended some of his workplace colleagues.
54.
Regrettably,
Mr. Agard’s opinion that His Worship “might have
unknowingly offended others”, or that
there is a “probability that he might have offended
some of his workplace colleagues” does
not acknowledge the evidence or our findings that “There is compelling evidence that proves a pattern of such
conduct by His Worship towards women
in the workplace which made them feel uncomfortable, uneasy, embarrassed and offended”. Two Hearing
Panels have found as fact that His Worship did engage in offensive
conduct. Apology letters were tendered only to the women who were subjected to his conduct
at the first location and only after
the Hearing Panel had made their findings of misconduct. In
this hearing, under cross-examination, His Worship said that he was “truly sorry for any inconvenience or awfulness that I may
have caused to any person”.
Those words must be considered in the context
of his overall evidence
and demeanour throughout this proceeding, and our findings
in that regard. No sincere,
credible or meaningful apology was extended to the persons subjected to a poisoned work environment resulting from
his misconduct at the Whitby
courthouse.
55.
Mr. Agard states further on page 14 of his assessment:
When consideration is given to his humble beginning and lived experiences, it is easy to accept his
assertion of regret. His regret rests in
what he believes to be a humiliating of his family and his community notwithstanding his sense of guilt or
innocence. Justice Massiah has completed an education
program regarding sexual harassment of his own volition. This may very well be viewed as a self-imposed sanction
or way of coping with his regret.
56.
We note Mr. Agard’s conclusion is that His
Worship’s regret rests not in relation to the
impacts suffered by the women who were subjected to that conduct
or the persons who observed his conduct at the Whitby courthouse, but on the humiliation of his
family and community “notwithstanding his sense of guilt or innocence”.
57.
Although it is completely irrelevant, in our view, we express concern
and discomfort with the observation made by Mr. Agard on page 15 of his assessment, wherein
he states that His Worship “is
a self-made individual whose immigrant and racialized
minority lived experiences developed in him a sense of justice,
forthrightness, and a dedication to service
to the broader community”. Race has nothing to do with this
case, despite the frequent and troubling suggestions by Mr. Guiste, His Worship’s co- counsel, that it did. (See our Decision on the Motion Alleging
Bias (JPRC, May 29, 2014), para. 23.)
58.
In addition,
we have reviewed
the letters of support contained
at Tabs 14 to 23 of Volume III of His Worship’s brief of
documents in relation to the Penalty Phase.
59.
We accept that His Worship has friends in the
community who find him to be a person
of integrity. However, we adopt the findings from the Canadian Judicial Council’s decision in Cosgrove on the relevance of such letters of support:
We are of the
view that the opinions of individuals, be they judicial colleagues or
otherwise, who do not have the benefit of
the evidentiary record and a complete
knowledge and appreciation of the issues before
Council, will generally be of little assistance in determining whether
public confidence has been undermined to such an extent as to render
a judge incapable of
discharging the duties of their office.
Report of the Canadian Judicial
Council to the Minister of Justice in the
Matter of the Honourable Mr Justice Paul Cosgrove (March 30, 2009), at para.
57
60.
The Hearing Panel in Re Barroilhet: Decision
on Disposition, supra, referred to and applied the test established by the Supreme
Court of Canada
to determine whether removal from office is the
appropriate disposition for judicial misconduct:
In light of these findings, the Hearing Panel must determine whether the conduct of the justice
of the peace in issue
is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary
that the confidence of individuals appearing before the justice of the
peace, or of the public in its justice system, would be undermined, rendering
the justice of the peace incapable of performing the
duties of his or her office.
61.
Presenting Counsel
referred us to the words
of Mr. Justice Sydney Robins from the Williams
Inquiry to assist us in determining whether His Worship Massiah’s conduct warrants the ultimate sanction of removal:
Every judge in his judicial and non-judicial activity has a
responsibility to preserve and
enhance public confidence in the administration of justice. He serves
as an exemplar of justice […] and confidence in our system of justice in
large measure depends
on him. When he engages
in misconduct, the magnitude of the misconduct may be measured
by the extent to which he
has impaired the confidence of the public
in himself as a judge and in the
administration of justice.
[…]
There must be allowance for forgivable error; human frailties and fallibilities must not be forgotten; none of us can attain
the ideal. To warrant removal misbehaviour should be more than indiscretion or error in judgment. There are no tests of misbehaviour
capable of exact definition. Nor are there
standards of judicial conduct which admit of quantitative measurement. Each case
must ultimately depend
on the nature of the conduct, all the facts surrounding it, its effect
on the judge’s ability to perform his official duties, and the extent to which it has
impaired public confidence in the judge and
in the administration of justice.
The Honourable Mr. Justice
Sydney L. Robins, Commission of Inquiry re: Provincial Judge Harry J. Williams (1978),
quoted in Hon. J. MacFarland, Report of Judicial Inquiry re: His Honour
Judge W.P. Hryciuk (1993), p. 55
62.
Contrary to the submissions made by counsel for
His Worship, the sexually
inappropriate misconduct of His Worship Massiah, a judicial officer, towards
women in the courthouse is not a case where there was indiscretion or error of judgment which should be considered to be an
allowable result of human frailty or fallibility.
63.
The evidence in
this hearing from people who work at the Whitby courthouse showed the corrosive impact that sexual
harassment by judicial officers can have on public
confidence. We accept the submission
from Presenting Counsel that the Washington
Supreme Court’s statement in the Deming case
is applicable here:
His conduct has degenerated the respect of the public for the judiciary. Applying the evidence to the
above factors we conclude that Judge Deming
has demonstrated a lack of those personal and professional qualities which are necessary to qualify one to
hold judicial office in the State of Washington.
The nature, extent and frequency of the acts of sexual harassment, all involving his judicial position, reflect
an unacceptable pattern of behavior.
This misconduct occurred
both in and out of the courtroom, often in public situations. He exploited his official judicial
position for which there can be no excuse. Nothing in
the record suggests that additional time
on the bench would result in an end to this inappropriate conduct.
In
re the Matter of Honourable Mark S. Deming, Judge, Pierce County
District Court No. 1, 108 Wash.2d 82, 736 P.2d 639 (Supreme Court of
Washington, 1987)
64.
When we
consider the extent and duration of His Worship Massiah’s misconduct, and his testimony, before us, which
demonstrated a complete lack of insight into the gravity of his misconduct even after a previous public hearing,
we conclude that the dispositions set out in paragraph 11.1(10)
(a) to (f) are not sufficient to restore public confidence in His Worship Massiah or
in the judiciary in this case.
65.
The sexual harassment of women in the courthouse by His Worship
Errol Massiah, who has
demonstrated through his testimony before us a refusal or inability to accept that sexually inappropriate conduct
by a justice of the peace towards
women in the workplace is not acceptable, is so
manifestly and profoundly destructive of the
judicial role and integrity
in the judiciary that public
confidence requires him to be removed
from office.
66.
His Worship Massiah has become incapacitated or
disabled from the due execution of
his office by reason of judicial misconduct incompatible with the due execution of his office.
We find that the only disposition which can restore
the public confidence in the integrity of the judiciary and in the
administration of justice is a recommendation to the Attorney
General that His Worship Errol Massiah be removed from office in accordance with
section 11.2 of the Justices of the Peace Act. Accordingly, we make that recommendation.
Date: April 28, 2015
Hearing Panel: The Honourable Deborah K. Livingstone, Chair
His Worship
Michael Cuthbertson
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