NOTICE OF NON-PUBLICATION ORDER: On June 11, 2014, the Hearing Panel of the Justices of the Peace Review Council 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names of all witnesses who appear in any of the facta or motion materials or application records in this hearing shall not be published, nor shall any information that might identify them be published.
Pursuant to section 11(15) of the Justices of the Peace Act, R.S.O. 1990, C. J.4, the Justices of the Peace Review Council is holding a formal hearing into a complaint about the conduct of Justice of the Peace Errol Massiah of the Ontario Court of Justice.
CURRENT STATUS: During the weeks of July 14th and July 28th, witnesses were called by Presenting Counsel and by Counsel for His Worship. The presentation of evidence has concluded.
Presenting Counsel and Counsel for His Worship filed written submissions on His Worship’s motion alleging abuse of process, and his motion arguing a lack of jurisdiction, and on the question of whether the evidence supports a finding(s) of judicial misconduct. On October 8, 2014, oral submissions by Presenting Counsel and Counsel for His Worship were completed before the Hearing Panel. The Panel reserved on its decisions and adjourned the hearing until Tuesday, December 2, 2014 at 10 a.m. It had been the Panel’s intention to render its decisions on that date. Despite their best efforts, the Panel will not be in a position to render decisions by then. The Panel’s deliberations were interrupted by two motions brought by His Worship which needed to be addressed by the Panel. Those motions have been addressed – and the decisions are on the website under the link for Public Hearings Decisions 2014. There is much material to be considered and there are several issues to be addressed. Additional time will be required to finish the decisions that are under reserve.
The hearing will be spoken to on Tuesday, December 2, 2014 at 10:00 a.m. and adjourned until March 2015. The Panel will strive to finish its decisions earlier, and if the decisions are ready earlier, they will be issued electronically. If the Panel is able to complete and issue the decisions before March, the Panel would indicate in its decisions whether it is necessary to proceed with the scheduled March date.
The Panel is mindful of the public expense associated with an adjournment. Thus, the matter will be convened at Neeson and Associates on Dec. 2nd as scheduled. All members of the Panel are from out of town. For this adjournment, one member of the Panel will attend in person and two will attend through teleconference. The Panel has advised counsel that similarly, Presenting Counsel and Counsel for His Worship may also choose to send only one representative from their respective offices to this appearance for a return date to be confirmed. The hearing will convene at Neeson & Associates, 141 Adelaide Street West, Suite 1108 – Room 7, Toronto, Ontario. 141 Adelaide Street is located at the south-west corner of Adelaide and York Streets in Toronto.
BACKGROUND ON THE PROCESS:
The decision to order a hearing was taken following the investigation of the complaint in accordance with the Review Council’s complaints process. A three-person complaints committee, consisting of a judge, a justice of the peace, and a community or lawyer member, investigated the complaint and ordered that a formal hearing be held.
Pursuant to section 11.1(1) of the Justices of the Peace Act, the Honourable Chief Justice Annemarie E. Bonkalo, Chair of the Review Council, established a hearing panel from the members of the Council, composed of a judge who shall chair the panel, a justice of the peace, and, a community member, to hear the matter. On February 20, 2014, one member of the Panel recused herself. The Chief Justice appointed a community member to the Panel to address the vacancy.
The Hearing Panel will consider the allegations summarized below:
Between May 30, 2007 and August 23, 2010, at a municipal courthouse His Worship engaged in a course of conduct, including inappropriate and/or offensive conduct and/or comments towards female court staff, prosecutors and defendants resulting in a poisoned work environment that was not free of harassment.
The Panel has been asked to determine whether His Worship’s acts individually and/or collectively constitute judicial misconduct and whether there is a pattern of inappropriate conduct toward women in the justice system.
Hearings of the Review Council are normally held in public and the dates and times of the hearings are posted on the Council’s website. After concluding its hearing of the matter, pursuant to section 11.1 of the Justices of the Peace Act, the hearing panel may dismiss the complaint, with or without a finding that it is unfounded, or if it upholds the complaint, it may decide upon any one of the following sanctions singly or in combination:
- warn the justice of the peace;
- reprimand the justice of the peace;
- order the justice of the peace to apologize to the complainant or to any other person;
- order the justice of the peace to take specified measures such as receiving education or treatment, as a condition of continuing to sit as a justice of the peace;
- suspend the justice of the peace with pay, for any period; or,
- suspend the justice of the peace without pay, but with benefits, for a period up to thirty days.
The Council may also make a recommendation to the Attorney General that the justice of the peace be removed from office. This sanction stands alone and cannot be combined with any other sanction. Under section 11.2(1) of the Justices of the Peace Act, a justice of the peace may be removed from office only by order of the Lieutenant Governor in Council.
HISTORY OF THIS HEARING:
After a motion by His Worship for a publication ban, the Hearing Panel issued a decision on April 11, 2014 in which the request for a publication ban was not granted.
His Worship brought a motion alleging bias and requesting that the Hearing Panel quash the Notice of Hearing and recuse itself from the hearing. The motion was argued over two days. The Hearing Panel delivered a decision dismissing the motion on May 29, 2014. The Panel found that there was no basis for any of the grounds.
On June 6, 2014, the Hearing Panel issued a decision on threshold jurisdiction questions arising from a motion brought by His Worship in which he argues that there is no valid complaint and that there has been an abuse of process. Pursuant to section 8(15), the Panel has engaged counsel, Mr. Brian Gover of Stockwoods LLP, to assist it on matters of law. Counsel for His Worship and Presenting Counsel provided written submissions on the legal opinion received from Mr. Gover.
On June 11, 2014, His Worship’s lawyer, Mr. Guiste, argued that the Hearing Panel should make an order for particulars and disclosure. The Panel issued its decision on June 12, 2014, deciding there was no need for such an order. He also argued that there should be a pre-hearing conference. The Panel decided that at this stage of the proceeding, with another motion from His Worship pending, alleging an abuse of process, the Hearing Panel sees no useful purpose for a pre-hearing conference and a further delay in progressing to the substantive portion of the hearing, which was ordered over a year ago.
On October 8, 2014, after receiving written submissions from counsel and the completion of oral submissions, the Hearing Panel reserved on its decisions on:
- His Worship’s motion alleging abuse of process
- his motion arguing a lack of jurisdiction, and
- whether the evidence supports a finding(s) of judicial misconduct.
In the interest of transparency in this public hearing, the following information is being provided related to communications from His Worship through his counsel, Mr. Guiste, following the last appearance on October 8, 2014 when the Panel reserved on its decisions.
On October 10, 2014, on behalf of His Worship Massiah, Mr. Guiste sent a letter to the Registrar for the Hearing Panel regarding his view that certain items should be made exhibits in the hearing. Mr. Guiste asked the Registrar to send a letter to the Hearing Panel. Presenting Counsel did not object to sending the letter to the Panel.
On October 10, 2014, on behalf of the Hearing Panel, the Registrar communicated the following response to the letter from the Hearing Panel to Counsel for His Worship:
Your letter, dated October 10, 2014, has been provided to the Hearing Panel. The response is below:
The Hearing Panel ruled on this issue on October 8, 2014.
We ruled that that the motion records are before the Panel. They were filed and are part of the official record of proceedings. They do not need to be filed as Exhibits in order for them to be available for us to review as we work on our decision.
Please assure Mr. Guiste that we have all of the items he has specifically referred to in his letter.
While the Panel was deliberating, His Worship, through Mr. Guiste, corresponded with the Hearing Panel outside of the public hearing room. In a letter, dated October 10, 2014, Mr. Guiste wrote to the Hearing Panel making further arguments as to why certain materials contained in the motion materials should be made exhibits. He also made arguments about the relevance of particular documents and about the credibility of witnesses. On October 30, 2014, Mr. Guiste sent three more letters to the Panel about typographical errors in His Worship’s submissions. On November 10, 2014, Mr. Guiste, on behalf of His Worship, filed an Applicant’s Motion for Directions re Evidence of (two witnesses whose names are redacted in the judgment). Presenting Counsel filed written submissions arguing that the motion was without merit. His Worship filed a reply. After considering the motion, on November 18, 2014, the Panel issued a decision that there is no further opportunity for His Worship Massiah and his counsel Mr. Guiste to make submissions or re-examine any witness in relation to this hearing. In accordance with section 23(1) of the Statutory Powers Procedures Act, in order to control and prevent any further abuse of this process, the Panel directed that Mr. Guiste is to cease sending emails, or correspondence or any further motions about the evidence or the law to the Panel.
On November 17, 2014, His Worship filed a Motion Seeking Leave to have the Hearing Panel entertain further submissions. On November 19, 2014, the Panel issued its decision on the motion, finding that there are no circumstances that warrant a decision to allow His Worship to reopen submissions and add to his arguments. The Panel affirmed the view expressed in its decision on the Applicant’s Motion for Directions re Evidence of (two witnesses whose names are redacted in this judgment).
Please note that the Justices of the Peace Review Council has a Protocol Regarding the Use of Electronic Communication Devices in the JPRC Hearing Proceedings.
Presenting Counsel: Ms. Marie Henein and Mr. Matthew Gourlay of Henein Hutchison LLP, 445 King Street West, Suite 202, Toronto, Ontario M5V 1K4. Telephone: 416-368-5000.
General Contact: Ms. Marilyn E. King, Registrar, Telephone: 416-327-5672.
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