Sunday, March 19, 2017

Miscarriage of Justice - Definition



In 1927 Viscount Dunedin wrote in Robins:

"....miscarriage of justice....means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all."

In Fanjoy  v.  R (1985)  Justice McIntyre of Canada's Supreme Court wrote:

"A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice.  It is not every error which will result in a miscarriage of justice, the very existence of the provisio to relieve against errors of law which do not cause a miscarriage of justice recognizes that fact."


Saturday, March 18, 2017

JPRC Panel Answered Wrong Question and Grounded Removal on Human Rights Code Contrary to Law

JUSTICES OF THE PEACE REVIEW COUNCIL


IN THE MATTER OF a complaint respecting

Justice of the Peace Errol Massiah


Justice of the Peace in the Central East Region



CLOSING WRITTEN SUBMISSIONS OF PRESENTING COUNSEL RE: JUDICIAL MISCONDUCT



Overview

1.                           Over the course of the seven days of testimony in this hearing, the Panel has heard evidence from a number of people employed at the Durham Region Provincial Offences Court who either experienced or witnessed inappropriate, sexually-based conduct by His Worship Massiah. Presenting Counsel submits that, taken as a whole, their evidence was credible, cogent, and compelling. His Worship’s testimony, in which he acknowledged some of the conduct and comments attributed to him but attempted to cover it with an exculpatory gloss, was, respectfully, unconvincing. His Worship either knew or ought to have known that his sexually-themed comments and conduct toward female court staff were inappropriate and unwelcome. That His Worship continues to try to justify clearly inappropriate conduct even after having been cited by a previous Hearing Panel for similar conduct and undergone educational counseling to ensure future compliance is deeply concerning.

2.                           Presenting Counsel submits that the evidence heard by the Panel amply justifies findings of judicial misconduct. His Worship’s actions amount to a pattern of conduct which has harmed public confidence in himself as a judicial officer and the administration of justice more broadly.

3.                           In what follows, we set out the applicable law on sexual harassment and judicial misconduct. We then proceed sequentially through the allegations set out in the Notice of Hearing, summarize the evidence led under each heading, and make submissions about what findings ought to result.

The Law of Sexual Harassment


4.                              Though the Hearing Panel is applying the Justices of the Peace Act and the associated principles of judicial conduct, some guidance can be had from the law of sexual harassment under the Ontario Human Rights Code, RSO 1990, c H.19 (the “Code”). His Worship was well familiar with these principles having worked for the Ontario Human Rights Commission in various capacities including as an investigator of sexual harassment complaints.

5.                              Section 7(2) of the Code prohibits sexual harassment in workplaces. It states:

Harassment because of sex in workplaces
(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee. R.S.O. 1990, c. H.19, s. 7 (2); 2012, c. 7, s. 6 (2).

6.                              “Harassment” is defined in s. 10 of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

7.                              A “poisoned work environment” can arise where unwelcome comments or conduct inappropriately sexualized the workplace. As the Ontario Human Rights Tribunal has stated:

The purpose of section 7(2) of the Code is to protect employees from sex harassment and this includes inappropriate sexualization of the workplace. Human rights jurisprudence has long accepted that the “emotional and psychological circumstances in the workplace” which underlie the work atmosphere constitute part of the terms and conditions of employment: see Dhillon v. F. W. Woolworth Co. (1982), 3 C.H.R.R. D/743 (Ont. Bd. Inq.) at para. 6691 and Moffatt v. Kinark Child & Family Services (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inq.) (“Moffatt”). It is well-settled law that the prohibition against discrimination in section 5(1) affords employees the right to be free from a poisoned work environment in relation to Code-protected grounds. If sexually charged comments and conduct contaminate the work environment, then such circumstances can constitute a discriminatory term or condition of employment contrary to both section 5(1) and 7(2) of
the Code: see Cugliari v. Telefficiency Corporation, 2006 HRTO 7 (CanLII), 2006 HRTO 7 (CanLII) and Moffatt, supra.

Smith v. Menzies Chrysler, 2009 HRTO 1936, at para. 151

8.                              Sexual harassment is recognized by the courts as a form of discrimination on the basis of sex. In Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, Chief Justice Dickson wrote:

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job- related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

Perpetrators of sexual harassment and victims of the conduct may be either male or female. However, in the present sex stratified labour market, those with the power to harass sexually will predominantly be male and those facing the greatest risk of harassment will tend to be female.

9.                              This definition covers a broad range of conduct, from jokes and innuendo to actual physical touching. Citing Janzen, the Ontario Human Rights Tribunal has stated:

The Supreme Court’s interpretation of sexual harassment clearly contemplates a broad range of behaviours with respect to matters of sex, including, but not limited to, sexual gestures, sexual posturing and sexually-oriented practices, which negatively impact the work environment. As such, sexual harassment law provides protection from the imposition of sexually inappropriate overtones and undercurrents in the workplace.

Smith, supra, at para. 148

10.                          Employers have a positive duty to provide a workplace free of sexual harassment. In a recent case, the Divisional Court overturned an arbitrator’s decision reinstating a sexual harasser on two grounds: (1) another employee was able to get the employee in question to stop harassing by threatening him with violence, and (2) the complainant did not want him to lose his job. Writing for the Court, Sachs J. stated:


Both these considerations were irrelevant and represent a dangerous step backwards in the law surrounding the treatment of sexual misconduct in the workplace. It is not the responsibility of employees to protect themselves from being sexually harassed or assaulted by being strong or threatening violence. Employees are entitled to a workplace that is free from sexual harassment and employers have a responsibility to ensure that their employees are not exposed to this type of behaviour. The legislature has reinforced these obligations in Bill 168, which involved a series of amendments to the Occupational Health and Safety Act that deal with violence and harassment in the workplace.

Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011, 2013 ONSC 2725 (Div. Ct.), at para. 26

11.                          The JPRC has previously made findings of judicial misconduct where a justice of the peace made inappropriately sexualized comments to female court staff. In Re Kowarsky (JPRC 2011), the comment at issue was an attempt at humour which, because of its sexual content, was degrading to the recipient and

[10] On January 29, 2010, they were each working in their respective capacities in a courtroom. During the course of the proceedings Justice of the Peace Kowarsky got the complainant’s attention and made a sexually inappropriate comment to her. The comment was said at least once and was captured on the courtroom audio recording. The comment was not heard by the other courtroom clerk and, as far as can be known, it was not heard by any member of the public. It may have been made a second time.

[11] The sexually inappropriate comment, involving eight words, was very short. It is agreed, and the Panel finds that the comment was not intended to be hurtful.  The comment involved an ill-conceived attempt at humour on behalf of His Worship. It involved using a double entendre when making what otherwise would have been an innocent request. Unlike most double entendres, however, the risqué meaning was obvious and the innocent meaning, while available in the circumstances, was obscure. Further, the risqué meaning went beyond being indelicate. Given the circumstances, it was insulting and degrading.

12.                          Even though the comment was merely an “ill-conceived attempt at humour,” His Worship Kowarsky conceded, and the Hearing Panel agreed, that it constituted an act of judicial misconduct. Presenting Counsel respectfully submits that if this Panel finds that His Worship did in fact make the comments attributed to him, they too amount to judicial misconduct when considered as a whole, regardless of His Worship’s professed intent.


The Standards of Conduct for Justices of the Peace


13.                       The Principles of Judicial Office for Justices of the Peace have been established pursuant to s. 13(1) of the Justices of the Peace Act in order to provide guidance on the conduct expected of justices of the peace. For present purposes, the relevant principle is:

3.1 Justices of the peace should maintain their personal conduct at a level which will ensure the public’s trust and confidence.

14.                          As cases like Kowarsky recognize, sexual comments or conduct in the workplace can undermine public confidence and constitute judicial misconduct. Presenting Counsel submits that His Worship’s conduct, as detailed below, can reasonably be seen to have detracted from the public’s trust and confidence in him as a judicial officer.

The Test for Judicial Misconduct


15.                          Because of the unique role that judicial officers play in our constitutional democracy, the authority they enjoy, and the esteem in which they are held, judges and justices of the peace are expected to conduct themselves in exemplary fashion not just in court, but outside of it as well. As the Supreme Court stated in Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at paras. 110-11:

[T]he 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 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)

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.

16.                       In a series of cases, Hearing Panels of both the JPRC and OJC have refined the approach to determining judicial misconduct based on the principles in Therrien. These developments were synthesized by the Hearing Panel in Re Douglas (OJC, 2006) as follows:

[8] Based on Re: Baldwin and Re: Evans, the test for judicial misconduct combines two related concerns: (1) public confidence; and (2) the integrity, impartiality and independence of the judge or the administration of justice. The first concern requires that the Hearing Panel be mindful not only of the conduct in question, but also of the appearance of that conduct in the eyes of the public. As noted in Therrien, the public will at least demand that a judge give the appearance of integrity, impartiality and independence. Thus, maintenance of public confidence in the judge personally, and in the administration of justice generally, are central considerations in evaluating impugned conduct. In addition, the conduct must be such that it implicates the integrity, impartiality or independence of the judiciary or the administration of justice.

17.                       The same standard that applies to judges applies to justices of the peace. The Hearing Panel in Re Phillips (JPRC, 2013) had the following to say about the test for judicial misconduct as applied to justices of the peace:

[12]    Justices of the peace are judicial officers. All are members of the Ontario Court of Justice and perform significant judicial duties which impact on the people of Ontario. They preside in Provincial Offences Court judging cases involving alleged violations of Provincial Statutes such as: the Highway Traffic Act, the Liquor License Act, and the Environmental Protection Act. Justices of the peace conduct judicial interim release hearings and preside over criminal court assignment courts.

[13] The Justices of the Peace Review Council approved  the Principles of  Judicial Office of Justices of the Peace of the Ontario Court of Justice (the “Principles”) on December 7, 2007. The preamble to the Principles states that:

“The justices of the peace of the Ontario Court of Justice recognize their duty to establish, maintain, encourage and uphold high standards of personal conduct and professionalism so as to preserve the independence and integrity of their judicial office and to preserve the faith and trust 
that society places in the men and women who have agreed to accept the responsibilities of judicial office.”

Section 1.2 of the Principles states that “Justices of the peace have a duty to follow the law.”

Section 3.1 of the Principles provides that “Justices of the peace should maintain their personal conduct at a level which will ensure the public’s trust and confidence.”

[14] In the Report of a Judicial Inquiry Re: His Worship Benjamin Sinai, released March 7, 2008, the Commissioner made the following comments regarding the important role that justices of the peace occupy in relation to the  public perception of the judicial system:

“It is clear that justices of the peace are very important judicial officers. Although they are not required to have formal legal training before their appointment, their decisions regarding bail, the issuance of search warrants and Provincial Offence matters seriously impact the liberty and privacy of those who appear before them. Indeed, for the vast majority of society who have contact with the court system, their first and only contact would be to appear before a justice of the peace.”

[15] As Justice Hogan stated in the Commission of Inquiry into the conduct of His Worship Justice of the Peace Leonard Blackburn: “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 judgments of our justice system based on their experiences with a justice of the peace.”

18.                       In sum, justices of the peace are expected to conduct themselves with probity and integrity no less than judges. Manifestly, conduct that amounts to sexual harassment falls below the standard which the public is entitled to expect of justices of the peace.

Issue to be Adjudicated
under the Act:

   After completing the hearing,  the panel may dismiss the complaint, with or 
without a finding that it is unfounded or, if it upholds the complaint, it may...

Issue Independent Counsel
Identified for Adjudication:

   "It is therefore necessarily the case that the Hearing Panel must have the 
power to consider the content of, and the legislative requirement applicable to, 
a "complaint" within the meaning of the JPA, since ultimately it is a 
"complaint" which the Hearing Panel is adjudicating."  
(Ex. 17 - Opinion of Mr. Brian Gover, Independent Counsel)

Issue Decided by Panel:

[72]   ....Therefore, the Notice of Hearing with its particulars, dated July 4, 2013 
and filed as Exhibits 1A and 1B, provides our jurisdiction over this hearing.
(Decision on Jurisdiction and Alleged Abuses of Process)

[210]   Based on the evidence we find to be cogent and compelling, 
we accept that the allegations set out in Paragraphs 1, 2, 3, 4, 5, 6, 7(a), 
7(b), 7(c), 7(e), 8(a), 8(c), 8(d), 9, 10, 11, 13 and 14 of the Notice of Hearing,
 have been made out on the balance of probabilities.
(Reasons for Decision - Liability) 

The fundamental flaw in using 
the Human Rights Code to
Ground Liability Against
Judicial Officers:

   The Notice of Hearing expressly states that "The behaviour occurred in 
the workplace at the Courthouse or at a location or event related to the 
workplace."  Whose "workplace" is the Notice of Hearing referring to ?  
This question is important because if it the judicial officer's workplace 
then we have a situation where what could reasonably be construed as an 
agent of the executive branch unilaterally imposing or interfering with 
the terms and conditions of tenure of judicial officers. Indeed, the 
negotiation of salaries, pensions and other benefits involving justices 
of the peace is conducted through an independent body separate from 
the Attorney General.  How then can the Justices of the Peace Review 
Council unilaterally impose terms and conditions on justices of the peace 
?  Although highly relevant to what took place here, this point requires
no further elaboration because Presenting Counsel suggests in their 
written submissions that it is the staff workplace.  

   If it is the staff's workplace the flaw does not resolve itself.  
The harassment provisions in the Code apply to employment 
relationships.  The duty to provide a harassment-free workplace is on 
employers.  Justices of the peace and indeed all judicial officers are not 
in any employment relationship with court staff.  In order to get this 
piece of legislation to apply to justices of the peace the Human Rights 
Code would require amendment. All of the legal authorities relied 
upon by Presenting Counsel and indeed the hearing panel involved
employment relationships.

   However, let us assume for the purpose of argument that the 
Justices of the Peace Review Council or Presenting Counsel acting
on their behalf  could impose a duty on justices of the peace using 
the Human Rights Code Code to provide a harassment free workplace 
for court staff.  Upon whose shoulders does the obligation to 
implement a harassment policy touching on the interactions of justices
of the peace and court staff fall ?  What if there is no such policy ? 
Should not those Code allegations be investigated before the justice
of the peace is subject to a hearing for judicial misconduct ? The
Code based allegations in Re Massiah 2015 were not investigated 
by anyone.  Notice of them came though the Notice of Hearing
issued May 31st, 2013. It is clear that they were not part of any
written complaint to the JPRC.

   Could this new unilateral duty imposed on justices of the peace 
superceade the express statutory obligation of the court staff 
employers to provide a harassment free workplace for their 
employees ?  I submit not.  In Massiah 2012 and 2015 both court staff 
were unionized employees covered by collective agreements and 
anti-harassment policies.  In neither case was the right to grieve 
under the collective agreement used.  In Massiah 2012 an attempt was
made to proceed under the existing workplace harassment policy but 
the allegation were untimely and therefore the judicial misconduct 
provisions of the Justices of the Peace Review Council was used.

Collective Agreement
and Employer Harassment
Policy Entered in Evidence
on Consent:

   J.P. Massiah called three management witnesses in his defence to 
the Code allegations of unwelcome, vexatious conduct alleged to 
have created a poisoned work environment. None of them were aware 
of him creating a poisoned work environment and all of them testified to
him having a positive relationship with staff.  Both the applicable 
collective agreement and employer anti-harassment policy were entered 
as exhibits on the hearing at J.P. Massiah insistence and with Presenting 
Counsel's consent.  

Employer Investigation
Found No Evidence:

   The main staff manager testified that when she heard of the first 
proceedings  she conducted   her own investigation among her staff 
and found no evidence.  Another manager testified that J.P. Massiah 
has said to her that she lost weight and she looks good and she received 
this not as harassment but as a compliment. The main staff manager 
testified that the staff enjoyed a sense of comradery with J.P. Massiah 
and indeed were eager to work with him.

No Grievance
or Complaint:

   The employer confirmed and the parties agreed that no grievance was 
ever filed with respect to J.P. Massiah's conduct with court staff.

"I was well-received"

   J.P. Massiah testified that he was well-received - meaning he 
understood that  he enjoyed a good relationship with the staff and 
that no one brought home to him that his conduct was objectionable.   
This is a finding which the panel chaired by respected Ontario Court 
of Justice Judge Vallencourt made in the first proceeding.  This is
a critical legal point because the supposedly "new" allegations
brought up in the May 31st, 2013 Notice of Hearing were not 
"new" at all.  They either pre-dated or occurred at the same time 
as the matters adjudicated by the panel chaird by Justice 
Vallencourt.  A reasonable observer concerned about the public 
purse may well ask why the JPRC would decide to re-litigate 
this issue if there were other options than litigating.  A reasonable
observer concerned about fairness may well see the decision to
re-litigate in all of the circumstances as an abuse of process.  

Law on "unwelcome", 
"vexatious" and
"poisoned work environment"
Not Applied:

   Both Presenting Counsel and the hearing panel somehow overlooked 
the clear binding authorities in Ontario calling for an objective test to 
determine "unwelcome" and "poisoned work environment" - electing 
instead to place reliance on a power-point training session conducted by 
an OCJ judge at a training session for justices of the peace. 
( see Thamses Valley District School Board  v.  Elementary Teacher's 
Federation of Ontario 2011 ONSC 1021; Stadnyk  v.  Canada [2000] 
F.C.J. No. 1225 (Fed.C.A.); Crep it Up !  v.  Hamilton 2004 ONSC 6721
; General Motors Canada Ltd. v.  Johnson 2013 ONCA 502; 
Farias  v.  Chung 2005 HRTO 22 Canli) 


Analysis of Reference to the Code 
or Code Principles in the Proceedings:

Before the JPRC Panel
Panel's Reasons for Decision:     27
Panel's Decision on Jurisdiction and Alleged Abuses of Process:13
Decision on Disposition:  8
Total: 48 

Divisional Court/Court of Appeal
Applicant's Factums Divisional Court:  0
JPRC Factum Divisional Court: 0
Attorney General Factum Divisional Court:0
Divisional Court Decision:  0
Court of Appeal Decisions: 0
Total:0

Courts Not at Fault:

   The Divisional Court and the Court of Appeal for Ontario can not
 be faulted for coming to conclusions they did based on the "record of 
proceeding" before them.  Once an application for judicial review 
is served and filed the law places a duty on the subject tribunal to file 
the "record of proceedings" with the Divisional Court. Naturally, the 
facta filed by the parties will be based on this "record of proceedings".
 Of course, an applicant could hardly make this complaint if it were 
represented by the same counsel throughout the proceedings.

   Presenting Counsel's written submissions on liability - a copy of which
is posted above, was not in the "record of proceedings" although the parties 
and the Hearing Panel expressly acknowledged that it would be.

Supreme Court of Canada
Has Pronounced on this Issue:

   In Chandler  v.  Alta. Association of Architects [1989] the
Supreme Court of Canada held that a tribunal which makes a 
decision in the purported exercise of its power which  is a 
nullity, may thereafter enter upon a proper hearing and render 
a valid decision. Chief Justice Dickson and Wilson and Sopinka 
JJ stated:

"In this proceeding the Board conducted a valid hearing until it came
to dispose of the matter.  It then rendered a decision which is a 
nullity. It failed to consider disposition on a proper basis and should 
be entitled to do so. The Court of Appeal so held."

"On the continuation of the Board's original proceedings, however,
either party should be allowed to supplement the evidence and make 
further representations which are pertinent to disposition of the matter 
in accordance with the Act and Regulation. This will enable the appellants 
to address, frontally, the issue as to what recommendations, if any, the
Board ought to make." ( at p.863-64]

Other Flaws with
JPRC Decisions:

1.  The Chair of the Panel was a part-time Ontario Court of Justice Judge
who requires the consent of the Attorney General to sit as a judge and
therefore lacks the requisite independence under the Constitution;

2.  The Hearing Panel contained two temporary members both of
whom were judicial officers when the Procedures Document allows
for only one "to fill out a panel".