Law Times

Law Times • January 19, 2015 Page 3 www.lawtimesnews.com JP found guilty of misconduct toward court staff for second time By Peter Small For Law Times he Justices of the Peace Review Council has for the second time found an Ontario justice of the peace guilty of professional mis- conduct for ogling and making sugges- tive remarks to female court staff. Justice of the peace Errol Massiah's be- haviour resulted in a poisoned work en- vironment, a hearing panel of the Justices of the Peace Review Council found in a written decision released last week. "There is compelling evidence that proves a pattern of such conduct by His Worship towards women in the work- place which made them feel uncomfort- able, uneasy, embarrassed and offended," wrote the three-member panel. The panel rejected arguments that Massiah was subject to an abuse of pro- cess. His lawyers, Ernest Guiste and Jef- fry House, asserted that the council was splitting its case by trying the justice of the peace a second time for behaviour similar to and in some cases preceding that for which it had already disciplined him. "My client is understandably disap- pointed in the outcome," Guiste wrote in an e-mail, adding it would be inappropri- ate to comment further because the pro- ceedings are still ongoing. In 2012, a previous panel found Mas- siah guilty of sexually harassing female staff at an Oshawa, Ont., courthouse after six women made complaints. Massiah denied those allegations, telling the earlier panel that court staff might have misinterpreted his jovial manner. He alleged his accusers had a "group mindset." The panel suspended him for 10 days and directed him to take gender sensitivity and boundaries train- ing. While those hearings were underway, staff at the courthouse in nearby Whitby, Ont., became indignant after reading his remarks in an October 2011 article in Law Times. Several of them then com- plained about incidents at their court- house, which they said took place from May 30, 2007, when he became a justice of the peace, to Aug. 23, 2010. Massiah's lawyers argued that having a second hearing put judicial indepen- dence at risk with memories having faded due to delay. But the panel, consisting of Justice Deborah Livingstone, justice of the peace Michael Cuthbertson, and community member Leonore Foster, dismissed the arguments. "The law required separate hearings," they wrote. "Accepting his argument would prevent the review council from taking steps to consider whether there has been any judicial misconduct at the Whitby courthouse." The panel also rejected Massiah's claim that the complainants had the re- sponsibility to first make him or their employer aware of their concerns about his behaviour. Presenting counsel Marie Henein and Matthew Gourlay argued the fact that Massiah continued to justify his "clear- ly inappropriate conduct" despite the previous panel's findings and after hav- ing undergone educational counselling is "deeply concerning." Massiah, married and in his late 50s, denied making any inappropriate com- ments or leering. He said he intended to create "a friend- ly, engaging working environment with my clerks and all members of the staff." He said the courthouse culture was one of "a great sense of camaraderie." But the panel found there's a distinct hierarchy with judicial officers at the top and other staff below who are unwilling to complain about untoward behaviour. One court clerk testified: "We aren't a team. I need his permission to go pee." A seasoned prosecutor identified as H.H. said she and Massiah weren't on a level footing. "There is a very different power dynamic," she said. The identities of all of the witnesses are under a publication ban. The prosecutor alleged that in 2010, she was walking past him from the court- house parking lot when he said: "'Mrs. H.H., looking good.' He stretched out the, 'looking', he stretched out the 'good', and he raped me up and down with his eyes." She testified that she thought about turning on him. "And then I thought it would be, it would be suicide for my career." The panel found that on another occa- sion, Massiah leaned in toward the pros- ecutor and said "Lady in red" with f lirta- tious sexual overtones. A court clerk testified he told her, "Oh, I'm glad we're off the record so I can tell you how good you look today." Another clerk testified he "never missed the opportunity to look a female staff [member] up and down." Another female staff member de- scribed him as giving an "undressing look." The panel didn't buy his explanation that the perception that he was leering at female defendants in the courtroom resulted from him taking his glasses on and off. The panel said there was compelling evidence that he moved close behind B.B., a courthouse clerk, while she was working at her desk and without warning deliberately touched her shoulders with his hands. It rejected his explanation that if there was touching, it was inadvertent because of his stature and the tightness of the space. The panel found Massiah left the door to his chambers open when he was changing his clothes despite the fact that he had a washroom area where he could do so in privacy. A court clerk testified that when she went to deliver paperwork to Massiah, she knocked on an open door and he invited her to enter the office when he wasn't fully dressed. B.B. and several staff members avoid- ed his chambers when they believed he would be present or alone, the panel found. The hearing resumes March 23 for submissions on disposition. Penalties range from a warning to a recommenda- tion to the attorney general for removal from office. LT NEWS Untitled-1 1 2015-01-16 8:39 AM T

• Cover