Panel's Addendum paragraph 5(6)
"Mr. Guiste made comments to suggest that this panel was discriminating against Mr. Massiah and his counsel during this process."
Excerpts of transcript of
April 9th, 2014 - pages 118 - 129:
JUSTICE OF THE PEACE CUTHBERTSON: Sir, would you narrow that ? My question was, where is the section that says it must be the complainant ? You said there was something here that alludes to that.
MR. GUISTE: "The complaints committee shall report in a timely manner to the complainant that it has received the complaint and it shall report in a timely manner to the complainant on its disposition of the matter."
Sir, this didn't happen here.
JUSTICE OF THE PEACE CUTHBERTSON:
Well, sir, you are digressing. Would you address the issue I have asked, please. Is there a section in the Act that specifically says the complaint has to come from the complainant ? You suggest to me there is other than 10.2 sub (1), which you and I may have different interpretations of that.
MR. GUISTE: Well, I am putting to you that a proper reading of the whole and the objective of the legislation, and then when it requires them to report in a timely manner to the complainant, and a requirement in writing, and furthermore - furthermore - I will invite you to look at the Justices of the Peace Review Council's own website and the language in there is very clear, a letter in writing.
So can this Council put information out on its website that is consistent with what I am saying when I'm representing this African-Canadian gentleman, Justice of he Peace, and then all of a sudden by whim, oh, it doesn't apply to you. That's the problem. That's the problem.
JUSTICE OF THE PEACE CUTHBERTSON: Thank you, sir.
MR. GUISTE: So, I place reliance on the Council's own public proclamation with respect to the interpretation and the jurisdiction issue. I didn't write their website. I didn't write their annual report. I am just a little African Canadian lawyer that advocates for justice for people and fairness. That's all I do.
JUSTICE OF THE PEACE CUTHBERTSON: Thank you, sir.
MS. FOSTER: I was going to bring up the same points that His Worship did, because it's very clear when one is on the Council that a complaint can come from anybody. You have said several times talking here about fairness to His Worship and that I appreciate and understand.
But you have never kind of indicated the fairness to people on the other side. If you deny a complaint being heard or if a complaint is being made by somebody or indicated to somebody else, and that is quashed, I would suggest to you that people would find the same indication of unfairness in a complaint not being heard as you have indicated against His Worship Massiah.
MR. GUISTE: Well, I don't think so. I think the process - - and if you visit the website, you will see that is is very clear that it contemplates a complainant writing their own complaint in writing, it says so, and I suspect that the rationale for this is when you have other people bringing complaints on behalf of others, how do you ensure for fairness ?
So for example, Manager X, if Manager X decides that she doesn't like His Worship and she decides okay, well, what I'm gong 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.
If an individual has a grievance against a judicial officer, believe me, they know how to and they will execute on their own. They do not need another party who is part of the governmental apparatus to assist them. And that's the problem here. Who is bringing these ? Presenting Counsel in another case.
MS. FOSTER: Your're saying that Mr. Hunt is part of the governmental apparatus ?
MR. GUISTE: He's part of the statutory process. He was presenting another case.
MS. FOSTER: And the complaints couldn't be part of that, that's clear.
MR. GUISTE: Which complaints ?
MS. FOSTER: The new complaints could not be part of it.
MR. GUISTE: No, no, they couldn't. But what he should have done - - what he should have done is say individuals, here is the Justices of the Peace Review Council, here is their address, here is their phone number, here is a contact, go over there, make your letter of complaint, send it to them and they'll deal with; if you can't write, you will let them know and they will accommodate you.
So Justice Cuthbertson, the issue of whether they can write or not, that's a non-issue. that's a non-issue. If they can't write, they will call the Justices of the Peace Review Council, they might be deaf, whatever, they will find - - they are obligated under the Human Rights Code, they can't discriminate against them, they have to accommodate them. So that's a non-issue.
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 websites, 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.
JUSTICE LIVINGSTONE: Thank you, Mr. Guiste. It is now five to 1:00. I think what we'll do is take a break now and then return. The panel had hoped to conclude the argument by 4:30 today. I'm not sure if that will restrict you, Mr. Gourlay or Ms. Henein, to any great degree. I am suggesting we return at - - 2:15 too little time for you ? Two ? Mr. Guiste, two o'clock ?
MR. GUISTE: Yes, that's fine with me.
JUSTICE LIVINGSTONE: All right. Se we shall recess until 2:00 p.m. Thank you very much.
LUNCHEON RECESS AT 12:58 - -
UPON RESUMING AT 2:04 - -
MR. GUISTE: Ms. Foster, are we ready ?
JUSTICE LIVINGSTONE: We are ready.
MR. GUISTE: I wanted to address an important question that you asked about the rights of complainants and do they have any rights of fairness in this process.
JUSTICE LIVINGSTON: You are not finished your argument, I gather, Mr. Guiste ?
MR. GUISTE: Well, she raised the question and I don't think I properly addressed it and I just wanted an opportunity to address it. If that's okay with everybody.
JUSTICE LIVINGSTONE: Yes.
MR. GUISTE: Yes. Ms. Foster, you indicated that what about the fairness interests of the complainants in this process and I think that's an important question. And you will recall that I passed this out, and what it demonstrattes is that calls were made to presenting counsel, "N", "E", "G", "D", "P" were the people. It went and was submitted to the JPRC. The complaints committee concluded "N" had no bais; "E" had no basis, "G" had no basis, "D" had no basis; the only one that they found had some basis was "P".
Thirty-three persons were interviewed. In the context of interviewing those 33 persons, information was gleaned by the investigators soliciting, what is it that you know that's appropriate, et cetera, et cetera - - inappropriate. And 14 counts were laid.
So at the end of the day the question that arises from that is, are these complainants ? They didn't make a letter of complaint to the Justices of thePeace Review Council, they were gleaned by virtue of an investigation that stemmed from this one issue with "P" where 33 people are investigated.
You will recall that I used a term "fishing epedition" and I used it in reference to that. It will be my submission that it's inappropriate for the investigators to seek out information, oh, what do you know about Justice Massiah ? Did he ever do this to you ? Did he ever do that ? And that's what happended here. So that's what I'm saying.
So it's not as if they are complainants that went to court and had a legitimate grievance with his conduct and wrote in a complaint letter. Those people I surely respect that they have an interest in the integrity of the process.
But these types of irregulariteis cast a dark shadow on the legitimacy of this process and I hope I have clarified.
MS. FOSTER: I appreciate your answer in regard to that. I appreciate your questions. I think I was asking a question in relation to your comments that if complaints were heard, that it was unfair or people would think it was unfair to His Worship;; the same - - I would suggest to you that the same applies if complaints are disregarded for whatever reason, people would feel that they weren't being investigated properly. So there would be a perception on the part of the public that there was an unfairnes to those people who perhaps had reason to complain.
MR. GUISTE: We must be very careful because we must not assume they are complainants. We must be mindful of how this came to be, and what I'm saying is if investigators go out and they say Mr. Gusite, what can you tell me Mr. Massiah has done that's inappropriate ? Has he ever done this to you ? Has he ever done that to you ?
MS. FOSTER: I understand what you're saying.
MR. GUISTE: Thats wrong. So that was my point. The other point I wanted to raise was the website. It says:
"How are complaints process ?"
No, actually, before that:
"Making a complaint."
I want it to be very clear, this is not my website.
"If you have a complaint of misconduct about a justice of the peace in Ontario, you must state your complaint in a signed letter. The letter of complaint should include the date, time and place of the court hearing and as much detail as possible about why you feel there was misconduct.. If your complaint involves and incident outside the courtroom, you will need to provide as much information as you can about what you feel was misconduct on the part of the justice of the peace."
And then:
"How are complaints processed ?
When the Justices of the Peace Review Council receives your letter of complaint, the Review Council will write to you to let you know your letter has been received. A three-member complaint committee of the Review Council will investigate your complaint and gather whatever information it deems necessary to complete its investigation; for example, copies of transcripts of a hearing. Each complaint committee is make up of a judge, a justice of the peace and a lawyer member of the Review Council. Every complaint is investigated by the Review Council."
Later on it indicates:
"Regardless of what decision is made about a complaint, the person who made the complaint and the justice of the peace about whom the complaint is made, will be advised in writing of the decision of the Review Council."
As I indicated earlier, those are two salient mandatory provisions, that the Complaints Committee has to acknowledge receipt of a complaint, to write the complainant; it didn't happen here. And they also have to inform them where it's going, is it going to a hearing , and so on and so forth.
In this case, as is illustrated from here, the matters on the notice of hearing were not from letters of complaints from individuals or anybody. They arrived as a result of the 33 people that were interviewed in the context of the investigation by investigators asking them, have you ever been the recipient of inappropriate conduct by Justice Massiah ? Tell us about it. And on and on and on. That's wrong. Thank you very much.
JUSTICE OF THE PEACE CUTHBERTSON: Actually, a question sir. The website that you just read from.
MR. GUISTE: Yes.
JUSTICE OF THE PEACE CUTHBERTSON: It would be helpful, I think, if that was printed and tendered as an exhibit.
MR. GUISTE: I will do that. I thought I had a copy with me, but what I will do is I'll make a copy and submit it, please. That's a good point.
JUSTICE OF THE PEACE CUTHBERTSON: With the agreement, of course, of presenting counsel.
MS. HENEIN: No difficulty with that.
Excerpt of transcript of
April 28th, 2014 at p.
4 - 5:
JUSTICE LIVINGSTONE: And to be brief, the reason we have determined it is appropriate to engage independent counsel to provide us with a legal opinion is because of a point raised by you, Mr. Guiste, on April 9th, and I refer specifically to the transcript, so we are all clear, the transcript from April 9th, line 8, and I don't know if you wish to have that in front of you, but Mr. Guiste has stated in his submissions that:
"....this case provides a splendid opportunity for us to fix the Justices of the Peace Review Council. There are some serious flaws in terms of the procedural integrity of investigations and the like, and some good may come of this."
Our view is, as a result of that comment, it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had independent opinion in respect of the administrative law which applies in this hearing.
NOTE: Care has been taken to ensure the accuracy of these excerpts. If there is any error kindly bring it to my attention and I undertake to correct same forthwith. Interested persons should refer to the actual transcripts from the Justices of the Peace Review Council.
"Mr. Guiste made comments to suggest that this panel was discriminating against Mr. Massiah and his counsel during this process."
Excerpts of transcript of
April 9th, 2014 - pages 118 - 129:
JUSTICE OF THE PEACE CUTHBERTSON: Sir, would you narrow that ? My question was, where is the section that says it must be the complainant ? You said there was something here that alludes to that.
MR. GUISTE: "The complaints committee shall report in a timely manner to the complainant that it has received the complaint and it shall report in a timely manner to the complainant on its disposition of the matter."
Sir, this didn't happen here.
JUSTICE OF THE PEACE CUTHBERTSON:
Well, sir, you are digressing. Would you address the issue I have asked, please. Is there a section in the Act that specifically says the complaint has to come from the complainant ? You suggest to me there is other than 10.2 sub (1), which you and I may have different interpretations of that.
MR. GUISTE: Well, I am putting to you that a proper reading of the whole and the objective of the legislation, and then when it requires them to report in a timely manner to the complainant, and a requirement in writing, and furthermore - furthermore - I will invite you to look at the Justices of the Peace Review Council's own website and the language in there is very clear, a letter in writing.
So can this Council put information out on its website that is consistent with what I am saying when I'm representing this African-Canadian gentleman, Justice of he Peace, and then all of a sudden by whim, oh, it doesn't apply to you. That's the problem. That's the problem.
JUSTICE OF THE PEACE CUTHBERTSON: Thank you, sir.
MR. GUISTE: So, I place reliance on the Council's own public proclamation with respect to the interpretation and the jurisdiction issue. I didn't write their website. I didn't write their annual report. I am just a little African Canadian lawyer that advocates for justice for people and fairness. That's all I do.
JUSTICE OF THE PEACE CUTHBERTSON: Thank you, sir.
MS. FOSTER: I was going to bring up the same points that His Worship did, because it's very clear when one is on the Council that a complaint can come from anybody. You have said several times talking here about fairness to His Worship and that I appreciate and understand.
But you have never kind of indicated the fairness to people on the other side. If you deny a complaint being heard or if a complaint is being made by somebody or indicated to somebody else, and that is quashed, I would suggest to you that people would find the same indication of unfairness in a complaint not being heard as you have indicated against His Worship Massiah.
MR. GUISTE: Well, I don't think so. I think the process - - and if you visit the website, you will see that is is very clear that it contemplates a complainant writing their own complaint in writing, it says so, and I suspect that the rationale for this is when you have other people bringing complaints on behalf of others, how do you ensure for fairness ?
So for example, Manager X, if Manager X decides that she doesn't like His Worship and she decides okay, well, what I'm gong 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.
If an individual has a grievance against a judicial officer, believe me, they know how to and they will execute on their own. They do not need another party who is part of the governmental apparatus to assist them. And that's the problem here. Who is bringing these ? Presenting Counsel in another case.
MS. FOSTER: Your're saying that Mr. Hunt is part of the governmental apparatus ?
MR. GUISTE: He's part of the statutory process. He was presenting another case.
MS. FOSTER: And the complaints couldn't be part of that, that's clear.
MR. GUISTE: Which complaints ?
MS. FOSTER: The new complaints could not be part of it.
MR. GUISTE: No, no, they couldn't. But what he should have done - - what he should have done is say individuals, here is the Justices of the Peace Review Council, here is their address, here is their phone number, here is a contact, go over there, make your letter of complaint, send it to them and they'll deal with; if you can't write, you will let them know and they will accommodate you.
So Justice Cuthbertson, the issue of whether they can write or not, that's a non-issue. that's a non-issue. If they can't write, they will call the Justices of the Peace Review Council, they might be deaf, whatever, they will find - - they are obligated under the Human Rights Code, they can't discriminate against them, they have to accommodate them. So that's a non-issue.
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 websites, 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.
JUSTICE LIVINGSTONE: Thank you, Mr. Guiste. It is now five to 1:00. I think what we'll do is take a break now and then return. The panel had hoped to conclude the argument by 4:30 today. I'm not sure if that will restrict you, Mr. Gourlay or Ms. Henein, to any great degree. I am suggesting we return at - - 2:15 too little time for you ? Two ? Mr. Guiste, two o'clock ?
MR. GUISTE: Yes, that's fine with me.
JUSTICE LIVINGSTONE: All right. Se we shall recess until 2:00 p.m. Thank you very much.
LUNCHEON RECESS AT 12:58 - -
UPON RESUMING AT 2:04 - -
MR. GUISTE: Ms. Foster, are we ready ?
JUSTICE LIVINGSTONE: We are ready.
MR. GUISTE: I wanted to address an important question that you asked about the rights of complainants and do they have any rights of fairness in this process.
JUSTICE LIVINGSTON: You are not finished your argument, I gather, Mr. Guiste ?
MR. GUISTE: Well, she raised the question and I don't think I properly addressed it and I just wanted an opportunity to address it. If that's okay with everybody.
JUSTICE LIVINGSTONE: Yes.
MR. GUISTE: Yes. Ms. Foster, you indicated that what about the fairness interests of the complainants in this process and I think that's an important question. And you will recall that I passed this out, and what it demonstrattes is that calls were made to presenting counsel, "N", "E", "G", "D", "P" were the people. It went and was submitted to the JPRC. The complaints committee concluded "N" had no bais; "E" had no basis, "G" had no basis, "D" had no basis; the only one that they found had some basis was "P".
Thirty-three persons were interviewed. In the context of interviewing those 33 persons, information was gleaned by the investigators soliciting, what is it that you know that's appropriate, et cetera, et cetera - - inappropriate. And 14 counts were laid.
So at the end of the day the question that arises from that is, are these complainants ? They didn't make a letter of complaint to the Justices of thePeace Review Council, they were gleaned by virtue of an investigation that stemmed from this one issue with "P" where 33 people are investigated.
You will recall that I used a term "fishing epedition" and I used it in reference to that. It will be my submission that it's inappropriate for the investigators to seek out information, oh, what do you know about Justice Massiah ? Did he ever do this to you ? Did he ever do that ? And that's what happended here. So that's what I'm saying.
So it's not as if they are complainants that went to court and had a legitimate grievance with his conduct and wrote in a complaint letter. Those people I surely respect that they have an interest in the integrity of the process.
But these types of irregulariteis cast a dark shadow on the legitimacy of this process and I hope I have clarified.
MS. FOSTER: I appreciate your answer in regard to that. I appreciate your questions. I think I was asking a question in relation to your comments that if complaints were heard, that it was unfair or people would think it was unfair to His Worship;; the same - - I would suggest to you that the same applies if complaints are disregarded for whatever reason, people would feel that they weren't being investigated properly. So there would be a perception on the part of the public that there was an unfairnes to those people who perhaps had reason to complain.
MR. GUISTE: We must be very careful because we must not assume they are complainants. We must be mindful of how this came to be, and what I'm saying is if investigators go out and they say Mr. Gusite, what can you tell me Mr. Massiah has done that's inappropriate ? Has he ever done this to you ? Has he ever done that to you ?
MS. FOSTER: I understand what you're saying.
MR. GUISTE: Thats wrong. So that was my point. The other point I wanted to raise was the website. It says:
"How are complaints process ?"
No, actually, before that:
"Making a complaint."
I want it to be very clear, this is not my website.
"If you have a complaint of misconduct about a justice of the peace in Ontario, you must state your complaint in a signed letter. The letter of complaint should include the date, time and place of the court hearing and as much detail as possible about why you feel there was misconduct.. If your complaint involves and incident outside the courtroom, you will need to provide as much information as you can about what you feel was misconduct on the part of the justice of the peace."
And then:
"How are complaints processed ?
When the Justices of the Peace Review Council receives your letter of complaint, the Review Council will write to you to let you know your letter has been received. A three-member complaint committee of the Review Council will investigate your complaint and gather whatever information it deems necessary to complete its investigation; for example, copies of transcripts of a hearing. Each complaint committee is make up of a judge, a justice of the peace and a lawyer member of the Review Council. Every complaint is investigated by the Review Council."
Later on it indicates:
"Regardless of what decision is made about a complaint, the person who made the complaint and the justice of the peace about whom the complaint is made, will be advised in writing of the decision of the Review Council."
As I indicated earlier, those are two salient mandatory provisions, that the Complaints Committee has to acknowledge receipt of a complaint, to write the complainant; it didn't happen here. And they also have to inform them where it's going, is it going to a hearing , and so on and so forth.
In this case, as is illustrated from here, the matters on the notice of hearing were not from letters of complaints from individuals or anybody. They arrived as a result of the 33 people that were interviewed in the context of the investigation by investigators asking them, have you ever been the recipient of inappropriate conduct by Justice Massiah ? Tell us about it. And on and on and on. That's wrong. Thank you very much.
JUSTICE OF THE PEACE CUTHBERTSON: Actually, a question sir. The website that you just read from.
MR. GUISTE: Yes.
JUSTICE OF THE PEACE CUTHBERTSON: It would be helpful, I think, if that was printed and tendered as an exhibit.
MR. GUISTE: I will do that. I thought I had a copy with me, but what I will do is I'll make a copy and submit it, please. That's a good point.
JUSTICE OF THE PEACE CUTHBERTSON: With the agreement, of course, of presenting counsel.
MS. HENEIN: No difficulty with that.
Excerpt of transcript of
April 28th, 2014 at p.
4 - 5:
JUSTICE LIVINGSTONE: And to be brief, the reason we have determined it is appropriate to engage independent counsel to provide us with a legal opinion is because of a point raised by you, Mr. Guiste, on April 9th, and I refer specifically to the transcript, so we are all clear, the transcript from April 9th, line 8, and I don't know if you wish to have that in front of you, but Mr. Guiste has stated in his submissions that:
"....this case provides a splendid opportunity for us to fix the Justices of the Peace Review Council. There are some serious flaws in terms of the procedural integrity of investigations and the like, and some good may come of this."
Our view is, as a result of that comment, it is clear that the entire procedure is of concern and, if so, we wanted to ensure that we had independent opinion in respect of the administrative law which applies in this hearing.
NOTE: Care has been taken to ensure the accuracy of these excerpts. If there is any error kindly bring it to my attention and I undertake to correct same forthwith. Interested persons should refer to the actual transcripts from the Justices of the Peace Review Council.
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