An Ontario justice of the peace is facing a fresh set of sexual harassment allegations after five more female court staff members, including a provincial prosecutor and another justice of the peace, complained about inappropriate behaviour by the judicial officer.
Justice of the peace Errol Massiah was found guilty of professional misconduct in April 2012 after half a dozen court staff accused him of making sexually suggestive comments, eyeing staff members up and down, and, in one case, slapping someone’s buttocks.
While those proceedings were ongoing, five staff members at the Whitby, Ont., courthouse phoned the prosecuting counsel to lodge more sexual harassment complaints after reading media coverage about how Massiah said his “friendly” remarks were misunderstood by the women, according to the prosecution’s factum.
The new complaints are alleged to have occurred between May 2007 and August 2010.
In the first set of complaints
before the Justices of the Peace Review Council, Massiah was reprimanded and suspended for 10 days.
He was also ordered to write letters of apology to the parties involved and take training in “judicial education or counselling in gender sensitivity and professional boundaries.”
According to documents filed with the council, by the time the Whitby courthouse staff contacted prosecuting counsel Douglas Hunt, he felt it was too late to add the new complaints to the ongoing matter.
In the new notice of application issued in July, Massiah is accused of “leering and/or ogling at female staff,” giving an “undressing look,” and inviting them into his chamber without being fully dressed.
One of the complaints says that in the summer of 2010, H.H., a provincial prosecutor, “was coming in from the parking garage to the courthouse. As she was walking past you, you said, ‘Mrs. H, looking goooood’ in a manner that conveyed sexual undertones.
“With your eyes, you also looked her up and down in a manner that conveyed sexual connotations. This caused Ms. H to feel very uncomfortable and vulnerable.”
Another complaint accuses Massiah of changing his clothes in his chambers with his doors open.
According to the allegations, when one complainant, C.C., “was delivering documents to you, you told her to come in when you were not fully dressed. On at least one occasion, you were bare-chested.”
Massiah’s counsel, Ernest Guiste, tells Law Times his client denies the allegations. The justice of the peace is also moving to dismiss the complaints, arguing the way the Justices of the Peace Review Council received them constitutes an abuse of process.
The grievances should have reached the council in a letter and not through a recorded phone call with the prosecuting counsel, Guiste’s factum states. “It is respectfully submitted that the evidentiary record reveals that there were in fact no written complaints brought to the review council by anyone.
The alleged complaints were brought to the attention of the review council contrary to the manner prescribed by the Justices of the Peace Act.”
The Association of Justices of the Peace of Ontario, which has been granted intervener status, agrees that complaints must be written.
Since there has already been a disposition on a similar set of allegations, Massiah also argues it’s not appropriate to deal with the new complaints.
The complaints “in fact mirror the nature and quality of complaints which were addressed therein thereby calling into question the bona fides of this prosecution by the office of the attorney general for Ontario,” Massiah’s factum reads.
The presenting counsel in the case disagrees. “The applicant has failed to demonstrate any abuse of process. There is no legal principle that supports the theory that proceeding with complaints that predate the disposition of the applicant’s prior proceedings can constitute an abuse of process,” wrote Marie Henein.
“Moreover, the applicant was aware during the prior proceeding, that the allegations contained in the new complaint had emerged. He did not seek an adjournment or any other remedy at that time.”
The hearing has been postponed to November.
At that time, Massiah’s counsel will seek a publication ban. “I am seeking a publication ban to protect both the administration of justice and my client,” says Guiste. “In my view, the failure to follow the law and the nature of the allegations make them scandalous as that term is used in our pleadings jurisprudence.”
At the time of the earlier hearing, Massiah said he could only explain the complaints against him as a misinterpretation of his casual communication style with staff.
“At best, it’s a misinterpretation of my actions. They constructed this image of me and who I am and basically chose to continue to interact with me in this way,” Massiah told a hearing panel of the Justices of the Peace Review Council.
“My manner is to extend a greeting, be kind, and pleasant. I never will engage in touching without consent.”
For more, see "JP accused of sexually harassing six court clerks."