The following excerpt from the October 8th, 2014 transcript at page 126 in Re Massiah (2015) is classic irony and at the same time compelling evidence that now retired Justice Livingstone had a sound understanding of the following Human Rights Code terms "vexatious" , "unwelcome" and "poisoned work environment". However, at the urging of Presenting Counsel the Hearing Panel denied Former Justice of the Peace Massiah the benefit of the defence of consent or "being well-received" - a defence provided for by the Human Rights Code jurisprudence - while finding that he acted "contrary to the Human Rights Code".
The irony is that in her joking with co-counsel, Mr. House, the Chair of the Hearing
Panel, now retired Justice Livingstone, clearly displays a sound understanding of our
client's defence to the allegations against him, namely, that if his comments are
welcomed they can not be contrary to the Human Rights Code or constitute judicial
misconduct*. This is especially the case in light of the fact that a previous panel found
that similar interactions with staff which post-dated the acts in question did not
destroy public confidence. They found that Gender Boundary Sensitivity Training
would restore public confidence in Former Justice of the Peace Massiah. That
training was ongoing and there was in fact no re-offending - even Presenting
Counsel and the Hearing Panel acknowledged that. Why remove from office
in those circumstances ?
The Hearing Panel tersely disregarded these fundamental points of law. The Hearing
Panel recommended to the then Liberal Attorney General that JP Massiah be removed
from office and he was. The Hearing Panel also reported Former Justice of the Peace
Massiah's Black lawyer to the Law Society for discipline and declined to make a
recommendation that the Attorney General pay any of JP Massiah's legal costs.
His white lawyer, Mr. House was not reported to the regulator. Mr. Raj Anand,
a union and human rights lawyer, who mentored Mr. Guiste at the first hearing
proceedings acted on the subsequent judicial review and leave to appeal motion.
Mr. Anand felt that the Human Rights Code was not relevant and he did not raise
it in the subsequent appeals.
MR. HOUSE: But, your Honour, every time I say I'm going to be brief you thank me.
But I hope I'm not imposing on your time overmuch.
JUSTICE LIVINGSTONE: I hope I'm not being vexatious
MR. HOUSE: I wouldn't complain.
JUSTICE LIVINGSTONE: My comments obviously are welcome.
MR. HOUSE: Yes. I do know where to complain if things go off the rails.
Irony and Anti-Black Racism:
The irony in this interchange between Mr. House - J.P. Massiah's White lawyer and
the Chair of the Hearing Panel, now fully retired Justice Livingstone, is that J.P.
Massiah's defence to the allegations raised in paragraphs 1-6 of Presenting Counsel
# 2 's Notice of Hearing involving his conduct being "unwelcomed", "vexatious" and
the he created a "poisoned work environment"was that he was "well-received by
the staff" i.e. there was consent with the interactions and the first panel found as
a fact that he was unaware that his conduct was problematic between 2008 and 2010.
Clearly, this begs the question how could the Attorney General who
removed J.P. Massiah expect that his interactions with staff between 2007 and
2010 would be any different from the findings made by the first Hearing Panel
with respect to acts taking place between 2008 and 2010 ? The first Hearing Panel
found that public confidence in J.P. Massiah was not lost and could be
restored through Gender Boundary Sensitivity Training. How is this not a collateral
attack on the first disposition ? (see Collateral Attack - definition)
Mr. House was instructed to ask every single witness called by Presenting Counsel
whether they contacted either their management or the JPRC to file a complaint
against JP Massiah and they all testified that they had no such intention. None of
them were able to say with any specificity when the incidents took place.
Now Retired Justice Livingstone and the Hearing Panel concluded on January 12th,
2015 that former Presenting Counsel(#1), Mr. Doug Hunt - yes - the Presenting
Counsel on J.P. Massiah's first case was the complainant.
On its face Mr. Hunts "complaint" did not raise the issues of "unwelcome", "vexatious"
and conduct creating a "poisoned work environment". Where then did this new theory
of liability come from and when ?
Human Rights Claims Asserted
By Presenting Counsel #2:
After the Complaints Committee investigated Presenting Counsel #1's "complaint" and
"ordered a hearing" Presenting Counsel drafted a Notice of Hearing which the JPRC
issued on May 31st, 2013. This Notice of Hearing was never reviewed by the
Complaints Committee and thus the new issues(the Code issues) in them were never
investigated and pre-screened by them as required by Ontario law. (see Hryciuk v.
Ontario 1996 Canli 4013 (ONCA)
JPRC Procedures Changed:
The long drawn out litigation between J.P. Massiah and the Justices of the Peace
Review Council and the Attorney General for Ontario which began in 2011 and
regrettably continues to this very day arose as a direct result of a conflict between
the Justices of the Peace Act and the JPRC Procedures Document which allowed
Presenting Counsel # 2 to draft a Notice of Hearing which did not respect
Ontario law. Law in Ontario mandates that a judicial officer may only be removed
from office by through a complaint in writing which has been investigated and
pre-screened by a judicial council.
The issues inserted in the Notice of Hearing by Presenting Counsel #2 were never
pre-screened or investigated by the Complaints Committee. As such, they did not
order a hearing on them. They could not have.
Ironically, the JPRC amended their Procedures Document after J.P. Massiah's removal
from office. Believe it or not - this is how it now reads:
13.1 A hearing shall be commenced by a Notice of Hearing (Appendix B).
Presenting Counsel shall draft the Notice of Hearing for the approval
of the complaints committee that referred the complaint for hearing.
Ironically, the following is an excerpt of what the JPRC Hearing Panel complained
about when they referred J.P. Massiah's Black counsel, E.J. Guiste to the Law
Society of Upper Canada:
"On April 9th, 2014, Mr. Guiste said, "But the writing requirement is a very serious
one, and all I'm saying is you can't suck and blow. You can't say on your website,
this has to be in writing, signed letter. You can't say in your annual report, and
when this African-Canadian Justice of the Peace comes, oh the law changed for
you. It doesn't look good. It's not right." Have a look for yourself at the Panel's
Addendum at paragraph 6. (Addendum - follows Compensation Decision)
Reasons for Decision
on Bias Motion at p.10:
[22] At the conclusion of Mr. Guiste's explanation, the Chair of the Hearing Panel states:
"Thank you, Mr. Guiste, for that speech". (Transcript April 9, 2014, p.153)
[23] Mr. Guiste now alleges that the use of the word "speech", by way of sarcastic
comment to him, would cause a reasonable observer to believe that the Chair of the
Hearing Panel was biased - demonstrating disrespect to both His Worship and his
counsel and their racial heritage, stereotyping Mr. Guiste as a black man on a soap box.
The Hearing Panel finds such an assertion completely offensive.
Reasons for Decision
on Liability:
"Soul Brother"
[176] As Ms. II described, the words as well as the slow, breathy manner of expressing
them, were reminiscent of a style of speaking which the phrase "soul brother" connotes.
Parental Obligations:
(April 9th, 2014 Transcript)
JUSTICE LIVINGSTONE: .....so unless you have a strenuous objection, I am going
to order that our next date for commencement by Monday, the 28th of April at 9:30 a.m.
MR. GUISTE: I can't make 9:30 I was even a little late today. I came about 10 minutes.
I have to bring my daughter to school and by the time I get on the DVP and down here,
its a little after 10:00 or in and around 10:00
JUSTICE LIVINGSTONE: Well, we're going to try to start at 9:30, Mr. Guiste, and I'd
ask you to try and make your best efforts to get here for then and we'll see how we do
on the first date of that order. Thank you.
MR. GUISTE: Can I just say this ? I don't mind the panel -- I respect the panel
making decisions, but when the panel expressly makes a decision in terms
of start time, when I clearly and unequivocally tell them about my
parental obligations and you compel me to come at 9:30, in my
respectful submission that's a little bit unfair.
JUSTICE LIVINGSTONE: Thank you for that. We'll see you at 9:30 on April 28th.
"I am old-fashioned" (excerpt from July 15th, 2014 transcript)
JUSTICE LIVINGSTONE: Sorry, Mr. Guiste, you're hot, you want to take your jacket
off ?
MR. GUISTE: Yes, please.
JUSTICE LIVINGSTONE: I'm sorry. We're all in the same room, we're all hot, I don't
think it's appropriate. I'm old fashioned, Mr. Guiste, I've told you that for a year.
"Thank you Mr. Guiste
for that Speech"
(Transcript April 9th, 2014)
MR. GUISTE: .....You allowed him to say a complaint was received from
Mr. Hunt, an investigation was conducted, a decision was made, His Worship
knows why he is here, you should dismiss the motion and proceed to a hearing.
So when he does that, he is foreclosing my ability to respond on very
important points. These points, I would submit, had to be calculated to put in
his reply rather than in his opening so then I can't say anything. That's unfair.
That's what I was trying to tell you Madam Justice.
JUSTICE LIVINGSTONE: Thank you, Mr. Guiste, for that speech. I have
heard the speech.
*Of course, our main position was that Presenting Counsel, Mr. Doug Hunt was not
and could not be the complainant and Presenting Counsel, Ms. Henein could not
augment his complaint - assuming it to be one - by asserting Human Rights Code
allegations which were not first made to the Review Council and investigated by
a Complaints Committee pursuant to Hryciuk v. Ontario.
NOTE: This piece is published to draw attention to an issue of public importance.
[22] At the conclusion of Mr. Guiste's explanation, the Chair of the Hearing Panel states:
"Thank you, Mr. Guiste, for that speech". (Transcript April 9, 2014, p.153)
[23] Mr. Guiste now alleges that the use of the word "speech", by way of sarcastic
comment to him, would cause a reasonable observer to believe that the Chair of the
Hearing Panel was biased - demonstrating disrespect to both His Worship and his
counsel and their racial heritage, stereotyping Mr. Guiste as a black man on a soap box.
The Hearing Panel finds such an assertion completely offensive.
Reasons for Decision
on Liability:
"Soul Brother"
[176] As Ms. II described, the words as well as the slow, breathy manner of expressing
them, were reminiscent of a style of speaking which the phrase "soul brother" connotes.
Parental Obligations:
(April 9th, 2014 Transcript)
JUSTICE LIVINGSTONE: .....so unless you have a strenuous objection, I am going
to order that our next date for commencement by Monday, the 28th of April at 9:30 a.m.
MR. GUISTE: I can't make 9:30 I was even a little late today. I came about 10 minutes.
I have to bring my daughter to school and by the time I get on the DVP and down here,
its a little after 10:00 or in and around 10:00
JUSTICE LIVINGSTONE: Well, we're going to try to start at 9:30, Mr. Guiste, and I'd
ask you to try and make your best efforts to get here for then and we'll see how we do
on the first date of that order. Thank you.
MR. GUISTE: Can I just say this ? I don't mind the panel -- I respect the panel
making decisions, but when the panel expressly makes a decision in terms
of start time, when I clearly and unequivocally tell them about my
parental obligations and you compel me to come at 9:30, in my
respectful submission that's a little bit unfair.
JUSTICE LIVINGSTONE: Thank you for that. We'll see you at 9:30 on April 28th.
"I am old-fashioned" (excerpt from July 15th, 2014 transcript)
JUSTICE LIVINGSTONE: Sorry, Mr. Guiste, you're hot, you want to take your jacket
off ?
MR. GUISTE: Yes, please.
JUSTICE LIVINGSTONE: I'm sorry. We're all in the same room, we're all hot, I don't
think it's appropriate. I'm old fashioned, Mr. Guiste, I've told you that for a year.
"Thank you Mr. Guiste
for that Speech"
(Transcript April 9th, 2014)
MR. GUISTE: .....You allowed him to say a complaint was received from
Mr. Hunt, an investigation was conducted, a decision was made, His Worship
knows why he is here, you should dismiss the motion and proceed to a hearing.
So when he does that, he is foreclosing my ability to respond on very
important points. These points, I would submit, had to be calculated to put in
his reply rather than in his opening so then I can't say anything. That's unfair.
That's what I was trying to tell you Madam Justice.
JUSTICE LIVINGSTONE: Thank you, Mr. Guiste, for that speech. I have
heard the speech.
*Of course, our main position was that Presenting Counsel, Mr. Doug Hunt was not
and could not be the complainant and Presenting Counsel, Ms. Henein could not
augment his complaint - assuming it to be one - by asserting Human Rights Code
allegations which were not first made to the Review Council and investigated by
a Complaints Committee pursuant to Hryciuk v. Ontario.
NOTE: This piece is published to draw attention to an issue of public importance.
The removal of a judicial officer in Ontario and elsewhere in the free world is
an issue of public importance. The Ontario Human Rights Code is quasi-
constitutional legislation which ought to apply to everyone in Ontario equally.
Our Attorney General recently stated that he will not impose training on the
judiciary on account of his concerns for judicial independence. This piece is by
no means intended to be a criticism of the Divisional Court or Court of Appeal's
decisions as these issues were not raised there.
Both the Divisional Court and the Court of Appeal for Ontario jurisprudence is clear
that the terms vexatious, unwelcome and a poisoned work environment call for an
objective assessment of the alleged conduct. Denying Former Justice of the
Peace Massiah of the full privileges and benefits of Ontario law raises a serious
question of whether his race and the race of his lead counsel, Mr. Guiste played
a role in the proper adjudication of the case. How is one lawyer the object of a
complaint tied to the nature of the defence raised when his co-counsel is not ?
If effectively punishing JP Massiah's lawyer both financially and reputation-wise
is acceptable under Ontario law it clearly runs afoul of United Nations
clear policies on the role of lawyers and the prohibition against punishing lawyers for
discharging their duty to defend. Is it the case that in Ontario some lawyers may be
silenced while others have full right to defend ? JP Massiah's Black lawyer can not
be singled out in this way under a system that respects The Rule of Law and
denounces Anti-Black Racism. Or can he ?
NOTE: This piece originated from an earlier post which has been updated to reflect
the current discourse on the subject matter.
No comments:
Post a Comment