February 2019

Closed TLT hearing leaves big questions surrounding MLS handling of case

I did my best but I suppose I was not persuasive enough.

In my defense, I was a fool and acted as my own lawyer but the simple fact is I could not afford a lawyer to handle this matter. Here’s the background.

Closed legal proceedings are, in my view, an abhorrent abomination. They are an affront to fundamental principles governing democratic societies.

The courts have ruled closed proceedings are allowable in certain circumstances, but that doesn’t mean I have to like them.

Keep in mind that the sequence of events, and when I actually learned of decisions made by various parties, is important to understanding what this is all about. Around a year ago the City brought a case before the Toronto Licensing Tribunal involving a Vehicle for Hire licensee alleged to have committed some kind of, as yet unspecified, offense. I had, and still have, no specific knowledge of the alleged offense. All court records were sealed at the time by the Judge hearing the case so the defendant and the alleged victim can not be identified.

All I can do is speculate, guess, that the alleged offense involved a minor child, but this is not a certainty as we, the public, have been barred from knowing what went on.

A preliminary hearing date was set for the early summer of last year and here is where I made my first mistake. I did not attend this hearing, although I had been given a formal heads up by a City lawyer that the City “may” ask the TLT to hold the hearing In Camera, meaning in secret, with the public barred.

In my defense, I had another event scheduled for that day for which I had paid a substantial non-refundable fee and because I understood the plain English of the heads up about going in camera I figured it was at best a toss up whether the City would even ask for this rare move.

I found out much later that in Legalese, an arcane language used by lawyers, “may” really means “probably” or even “certainly.”

So the panel took the hearing into secret session, presumably dealt with preliminary matters and set a hearing date in November.

At the November hearing I promptly made a nuisance of myself when the room started to be cleared by standing and asking that the previous in camera order be set aside and that the hearing be held in public.

After some discussion, the panel decided the issue was serious enough to consider a Motion and hear arguments. I was told to present a motion, the City would reply and the issue would be heard on January 17.

I’d never written a formal Motion before and frankly didn’t know what went into a Motion or even what they look like. A legal agent acquaintance was good enough to send me copy of a Motion dealing with another case, so at least I’d have an idea how to do it, and then I was mainly left to my own devices.

In researching the existing law on Open Courts I found more than 4,000 cases cited on the CANLII legal reference web site. Nothing specifically dealt with the TLT that I could find. So I started citing cases that kept coming up in the court decisions posted, quoting passages I thought relevant.

I got the Motion into the TLT office by the deadline.

The City responded. There was more information about the case in the City response to my Motion. Then on the 17th we had the oral arguments.

In the City response, they noted that the charges were dealt with by the courts in 2008/2009. The City also noted the sexual assault charges were dropped. The driver plead Guilty to a common Assault charge. There was no indication about what punishment, if any, was meted out.

So the City presumably knows about an allegation of sexual assault from 10 years ago and does precisely nothing until 2018? Or someone tells Municipal Licensing and Standards about this ancient case, in defiance of the Judges’ orders sealing the records (as far as I know such a disclosure is a criminal offence). Who would know about this case and why would they bring it up now?

The sexual assault charge was dropped by the Crown. This could be for a number of reasons: a plea bargain, no witnesses, no reliable witnesses, no reasonable prospect for a conviction. Heck, it could well be a simple misunderstanding, easily cleared up. Would the Crown bargain away a sexual assault against a minor? Really?

Did the City do any independent investigation at all into the charges and why they were dealt with as they were by the court? The answer is a flat “no.” MLS just goes by the original witness allegations, police charges and public court records.

I made my arguments. The City made its arguments. The licensee’s legal counsel made his arguments (against me but for different reasons from the City’s). The panel decided to reserve its decision and a few days later I was informed that they decided to keep the hearing in camera. I lost.

MLS, I’ve been reliably told, takes the view that any verdict other than clear Not Guilty based on evidence presented at trial means a defendant can be hauled before the TLT and have his livelihood placed at jeopardy. Simply dropping of charges is somehow suspect in the view of MLS. I suppose they think non-convictions are meaningless.

The upshot is in my considered opinion something seriously stinks in the way MLS has handled this case. I would love to have the whole thing reviewed by an independent outside party. I did try to have justice done openly in this case.


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