JUSTICES OF THE PEACE REVIEW COUNCIL
IN THE MATTER OF COMPLAINT(S)
REGARDING HIS WORSHIP ERROL MASSIAH
Justice of the Peace in the
Central East Region
SUBMISSIONS ON RE-HEARING ON COMPENSATION
E.J. GUISTE
Professional
Corporation
Trial & Appellate
Advocacy
2 County Court Blvd.,
Suite 494
Brampton, Ontario
L6W 3W8
Ernest J. Guiste
(416) 364-8908
(416) 364-0973 fax
JEFFRY HOUSE
Barrister &
Solicitor
31 Prince Arthur Avenue
Toronto, Ontario
M5R 1B2
(416) 707-6271
(416) 960-5456 fax
Co-counsel for HW Massiah
1. A
hearing shall be commenced by a Notice of Hearing
in
accordance with this Part.
Procedures Document s. 6(1)
2. Presenting
counsel shall prepare the Notice of Hearing
(1) The Notice of Hearing shall contain,
(a) particulars of the allegations against
the Respondent.
Procedures Document s.7
Hearing Issues Defined
by Notice of Hearing
and not the Respondent
or counsel:
3. The legal
issues which were the subject of the within hearing arise directly from the
Notice of Hearing(NOH) prepared by Presenting Counsel. On its face, the NOH raises the following
legal issues:
1. Respondent violated the Ontario Human
Rights Code (The Code);
2. Respondent created a “poisoned work
environment”;
3. Respondents comments were “unwelcomed
and vexatious”;
4. Respondent leered and oogled defendants
who appeared
before
him in legal proceedings; and
5. Respondent has a prior record of
misconduct and has displayed
a
pattern of conduct.
4. The Hunt
Report which the Hearing Panel has found constituted the “complaint in writing”
makes no mention of the Code or items 1, 2, 3, and 5 above.
5. The
Investigators’ Report is the document submitted to the
Complaints
Committee by the investigators, Mr. Lindsay and
Mr.
Davis, who were retained on behalf of the Complaints
Committee
pursuant to section 8(15) of the Act to asssit in its
investigation. This Report contained new allegations which
became
known to the Complaints Committee as a result of
the
witness interviews conducted by the investigators in 2012
during
the Committee’s investigation of the Hunt Report
allegations.
Decision of Jurisdiction and Abuse of
Process
at para 11
6. The
evidentiary record before the Hearing Panel is crystal clear that the Hunt
Report, Investigator’s Report, the Complaints Committee’s letter dated January
2nd, 2013 and the testimony of the 13 witnesses called by the
Presenting Counsel did not assert any violation of the Human Rights Code by the
Respondent.
Hunt Report
Investigators’
Report (five volumes)
Transcripts
July 15, 16, 17 and 18th, 2014
Presenting Counsel Improperly
Invoked Sexual Harassment
And Human Rights Code
As Misconduct Ground:
7. The
evidentiary record is crystal clear. Presenting
Counsel in hearing 1 submitted five will-says. None of them used the term
sexual harassment, vexatious, unwelcome or poisoned work environment. The five
volume investigation transcripts reveal that the terms vexatious, unwelcome,
poisoned work environment and conduct in violation or inconsistent with the
Human Rights Code is not raised by Mr. Hunt or any witness.
8. Indeed,
Presenting Counsel was crystal clear in their written submissions on
Disposition that no evidence was called on paragraphs 1-6. The Panel was provided no evidence on the
very serious and highly prejudicial legal conclusions of vexatious, unwelcome
sexual harassment which created a poisoned work environment - which improperly
invoked allegations the Panel was invited by Presenting Counsel to make
findings of judicial misconduct on.
NOH, Hunt Report and
Investigators’ Report
generated a bona fide
question on jurisdiction
and abuse of process:
9. Accordingly,
notwithstanding the Hearing Panel’s finding that the Hunt Report satisfied the
in-writing requirement of the Act the fact that the Complaints Committee
discovered new allegations during their investigation of it raised a serious
enough legal question that AJPO took an interest in the issue and supported the
Respondent and the Hearing Panel properly sought legal advice on the
question. Clearly, it can not reasonably
be said that this was a run-of-the-mill case or that the Respondent was
required to overlook this irregularity as a pre-condition to support his claim
for indemnification from the Attorney General.
This is what PC’s position amounts to.
Procedure for Adjudication
properly decided by Hearing
Panel and not Respondent:
10. The hearing
commenced on July 4th, 2013.
The Respondent properly served and filed a Motion Record, factum and
Book of Authorities in support of his motion.
Presenting Counsel responded in like fashion. The factums filed by both parties reveal that
they were open to the idea of commencing the hearing and allowing for the
consideration of the jurisdiction and abuse of the process to be adjudicated at
the end of the evidence proper or for allowance to call further evidence in
support of the motions.
11. Presenting
Counsel noted in their written submissions that the Hearing Panel could well
have decided the two issues it noted in their decision on the motions as
stand-alone legal issues in 2013.
Clearly, it was within the purview of the Hearing Panel to do that.
Panel permits expanded
grounds:
12. Indeed, after
hearing submissions from the parties on the issue the Hearing Panel ordered a
blended hearing in June, 2014 and specifically allowed grounds 1, 3, and 6(3)
on the motions to be adjudicated on a full evidentiary record. In addition, the Hearing Panel expanded the
grounds at para 76 of their Reasons on the motions, including, among other
grounds, (e) memories have faded due to
delay.
Foulds Overruled:
13. The Divisional
Court was crystal clear that the initial compensation decision which relied on
Re Foulds 2013 was based on a false premise.
As such, the Panel can take great confidence in relying on the following
line of cases from the JPRC – all of which endorse the fundamental principle
articulated by Justice Otter in Re Romain 2002 that “Costs in the proceeding
are not contingent on success.”
Re
Blackburn 1994 (Hogan J.)
Re
Romain 2002 (Otter J.)
Re
Obakata 2003 (Mocha J.)
Re
Sinai 2008 (Carr J.)
Re
Quon 2012 (Di Filipis J.)
Re
Kowarsky 2012 ( Hawke J.)
Re
Massiah 2012 (Vailencourt J.)
14. If anything
legally relevant can be gleaned from Foulds on the issue of compensation it is
their citing of one legal authority, namely, Reilly v.
Alberta, 1999 ABQB 252. The
following is a proper and relevant point of law for the Hearing Panel’s
consideration:
"Where the conduct in question related to
the judicial function...the
state
should defray the legal fees required for
the judge to defend himself or
herself in order to preserve
the independence of the judiciary".
Oogling and leering count
related to judicial function:
15. Contrary to
PC’s submission, based on the authority of Reilly supra this is precisely the
type of case in which compensation is proper.
This is an allegation which by its very nature has grave potential to
interfere with judicial independence and invites a strong defence.
The Hearing Panel must recall the
evidence of NN* who said that it was so suttle that members of
the public would not notice it and that at the time there was no intention by
anyone to move forward with a complaint and in fact she would never bring such
a complaint because, “The only time I would consider coming forward
to complain about a judicial officer that I’m regularly in front of, is if I
can demonstrate objectively by transcripts or something, a pattern of
conduct. An isolated incident, I would
never do quite frankly.”
(at
p.141 – July 18, 2014)
Quebec Court of Appeal
and Superior Court have
addressed the issue squarely:
16. Two sound
decisions from the Quebec Court of Appeal and the Quebec Superior Court address
the issue of indemnification of judicial officers by the Attorney General
for
the cost of defending themselves in judicial misconduct proceedings – as
we have here.
17. [34] In
Hamann, relying, inter alia, on the Supreme Court of Canada decision in
Valente v. The Queen et al [1985] 2
S.C.R. 673, the Quebec Court of Appeal ruled as follows at paragraphs 12-15 of
its reasons:
[TRANSLATION]
The appellant argues that the Minister of Justice’s refusal to bear the
respondent’s counsel fees does not infringe the principle of judicial
independence since it does not affect the three essential components of that
concept, security of tenure and financial security of the judges and
institutional and administrative autonomy.
The Court, like the trial judge, is of the contrary opinion. The Supreme Court, in Valente v. The
Queen, clearly states that the rule of security of tenure means:
“that the judge be removable only
for cause, and that cause be subject to
independent review and determination
by a process at which the judge
affected is afforded a full
opportunity to be heard.”
The
court is of the opinion that the right to be heard necessarily includes the
right to be assisted by counsel. In the
case at bar, it is obvious that dismissal is a possible ultimate punishment for
the actions charged against the respondent who, moreover, like any other
person, had the benefit of innocence at the time the complaints were laid. The
principle of security of tenure is therefore directly at issue in this case, as
is the concept of the respondent’s financial security, in his capacity as a
judge, since the out-of-court fees he may incur would in all likelihood exceed
his income as a part-time municipal judge, a situation that is peculiar to this
case.
Incidentally,
in this case the Court is also of the opinion that it woud be unreasonable,
pursuant to these concepts, that a judge could be obligated to defend himself
at his own expense against an unscreened complaint in the nature of the one
made by the Club juridique.
[35] In Fortin, Lemelin J of the Superior Court
of Quebec, at paragraph 31-33 of his reasons, expressed full agreement with the
Court of Appeal in Hamann:
[TRANSLATION] Viewed from this standpoint, the once that
should be adopted, in the Court’s opinion, the Court sees no valid reason to
suppress or reduce the objective constitutional gurantees of Judge Fortin. He continues to have the right to defend his
office without having his judicial independence compromised. If he had to bear the costs of his defence,
there is a risk that he could not do so for financial reasons or that he would
choose to resign. His independence would
then have been compromised by the Minister’s refusal to pay the fees of his
counsel.
No one
should be able easily or conveniently to obtain the dismissal or sanction of a
judge. That is the very essence of the
security of tenure of the judge’s position.
For that reason, the judicial system must provide Judge Fortin with
reasonable resources to defend his position, not so much in his own interest
but in order to avoid infringement of the security of tenure of the position.
Bourbonnais v.
A.G. Canada 2006 FCA 62
(Fortin and Hamann as quoted from)
18. The legal
principles articulated by both the Quebec Court of Appeal and the Quebec
Superior Court are supported by the Federal Court of Appeal in Bourbonnais in
the following words:
There can be
no doubt, as the Quebec Court of Appeal and
Superior
Court found, that the principle of judicial independence
requires, in
the context of a judge’s dismissal proceeding, that
the judge be
entitled to the payment of his out-of-court fees he
will have to
incur in defending himself.
19. “The argument of
public policy leads you from sound law,
and is never
argued but when all other points fail.
Burrough J. , Richardson v.
Mellish (18240
2
Bing 252
20. The following
is a list the reasons why PC’s “who should foot the bill test” is neither
helpful or persuasive and indeed destructive to judicial independence as we
know it:
1. The complaint process is indeed a term
and condition of office
in
a free and democratic society;
2. Theoretically, a sitting judge or
justice of the peace could be
the
target of an allegation of leering or oogling at anytime from
anyone
appearing before them;
3. Judicial independence is prima facie
compromised if the subject
judge
or justice of the peace is circumscribed in the manner and
extent
of their defence of the complaint;
4. Both the Respondent’s security of
tenure and financial security as
a
judicial officer were at issue in these proceedings;
5. The Applicant earns roughly $122,000
per year and based on the
costs
associated with the first hearing could not reasonably
afford
to defend his office without indemnification from the
Attorney
General. He was in fact indemnified by
the
Attorney
General as the records at tab 10 show.
6. “No one should be able easily or
conveniently to obtain the
dismissal
or sanction of a judge. That is the very
essence of
the
security of tenure of the judge’s position. For that reason,
the
judicial system must provide Judge Fortin with reasonable
resources
to defend his position, not so much in his own
interest
but in order to avoid an infringement of the security
of
tenure of the position”. (Fortin v.
Ministre de la justice)
7. Re Foulds was in essence a guilty plea.
8. Re Johnson was in essence a guilty
plea.
9. Re Chisvin was in essence a guilty
plea.
10. Re Phillips was not a guilty plea but
involved a judicial officer who was found after a hearing to have
obstructed the investigation of a police
officer
in the course of a lawful investigation.
11. Caution must be headed so as not to
create the appearance
or
suggestion that defending allegations of misconduct is
somehow
inconsistent with the public interest and that
administrative
frugality trumps the Rule of Law and
judicial
independence and security of tenure.
21. IT IS
RESPECTFULLY SUBMITTED THAT for the Hearing Panel to accept Presenting
Counsel’s submissions on indemnification for the Respondent in this case and in
all of the circumstances of this case is for the Hearing Panel to disregard
established legal principles in Canada and England recognizing the practice of
the Attorney General (not the public)indemnifying judicial officers for the
cost of their defence in judicial misconduct proceedings, to interfere with the
Respondent’s right to counsel of his choice and plain and simply unfair and
unprecedented.
Motions:
22. The Respondent
repeats and relies upon his prior statements on this point. At the end of the day the time spent on the
motion was minor in the context of the entire proceedings.
23. Lastly, because the JPA and
Procedures contain no basis to compel the Attorney General to compensate
justices of the peace like J.P. Massiah as does the Courts of Justice Act there
is no useful purpose in making an order for an assessment as suggested by the
Divisional Court. At best, the Panel can
resort back to the clear established practice of indemnification and the flaws
in the legislation can be saved for another day.
March 24th, 2017.
E.J. GUISTE & J.
House, Co-counsel for the Respondent
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