Judging the judges

In almost two decades of practice, criminal lawyer Paul Slansky had never complained about a judge. But one day in July 2004, he resolved to change that. Ontario Superior Court Justice Robert Thompson had just ordered him confined to the courthouse in Owen Sound, Ont., while jurors deliberated on the fate of his client, Vytautas Baltrusaitis, who was charged with murder. Toronto-based Slansky, who was staying at a hotel just a couple of minutes’ walk from the courthouse, viewed the move as malicious and petty. “However this conduct was merely the straw that broke the camel’s back,” Slansky wrote in an affidavit following the trial he called “the most difficult of my career.”
Baltrusaitis was acquitted by the jury, but no thanks to Thompson, in Slansky’s opinion. “It was more than obvious, in my professional view as counsel for the accused, that Justice Thompson, through his actions, demeanour, and rulings, was making it clear that he was doing his best to ensure a conviction,” he wrote. Slansky and Thompson repeatedly clashed during the nine-month trial and the preceding pretrial motions. In his complaint to the Canadian Judicial Council, Slansky accused the judge of being biased, rude, abusive, and bullying.

Thompson denied the allegations, claiming that Slansky, “from time to time during the trial, was completely out of control,” and in a competing complaint to the Law Society of Upper Canada, he accused the lawyer of insulting the court, attempting to get himself cited for contempt, and trying to provoke a mistrial. Both complaints were dismissed, but Slansky wasn’t satisfied, and made an application at the Federal Court for judicial review of the CJC’s decision, criticizing its “anemic” and “flawed” investigation. The application also seeks a declaration that the CJC’s complaint mechanism is institutionally biased and unconstitutional because it involves judges judging the conduct of judges.

The nominations of two new Supreme Court of Canada justices put the process for selecting federally appointed judges in the spotlight last year, but far less attention has been paid to the other end of the scale, when the time comes to remove a judge from office. In fact, that time comes extremely rarely; just five superior court judges have been recommended for removal in the 145 years since Confederation, and all but one of those resigned to avoid the indignity of dismissal.

But the ultimate fate of Slansky’s complaint could change the way the CJC operates.

“It’s easier to get a constitutional amendment than to remove a judge,” says Rocco Galati, a Toronto lawyer representing Slansky in the judicial review. “Judges are human beings. They don’t descend from the sky or heaven, and some need to be removed. If the public knew the kinds of things some judges do, I think there would be more action taken. They make life hell not only for lawyers, but the people that have to come in front of them.”

The CJC’s 39 members are the chief justices, associate chief justices, and senior judges from provincial and federal superior courts across Canada. Johanna Laporte, the CJC’s director of communications and strategic issues, insists that judges are in the best position to assess the conduct of their peers, because of their shared experience and the need to protect their independence. “I think it’s an accepted principle of professional orders, and there’s plenty of others that do it that way,” she says.

But Galati says judges are in a unique position compared with other self-regulating professions, such as lawyers or doctors. “No profession truly regulates itself, because they never have the final say, the courts do. But the courts have the final word on themselves and that’s wrong. It’s just not independent,” he says.

Allan Hutchinson, a professor at Osgoode Hall Law School, says the CJC should look for a way to include lay participation in the complaints process. “They’re quite happy to laud over other professions and people the doctrine of natural justice, that nobody should be the judge in one’s own dispute. But they don’t seem too keen to apply that to themselves,” he says.

According to Hutchinson, judges would gain from opening up the process to outsiders and imposing a more rigorous discipline process. “We do treat them differently and it’s a mistake. It does a disservice to ourselves as a democracy, and in a way, to the judges themselves. It’s not doing them any favours to be seen as something of a secret elite beyond public control, and I think they would benefit if we started treating them like everyone else. Some judges are poor, and some are great,” he says. “This is a very powerful group, and they have to have some kind of accountability, and the history of judicial discipline wouldn’t fill one with confidence about their ability to assure their ranks are appropriately staffed.”

In April 2009, Paul Cosgrove resigned from the bench after the CJC recommended his removal for abusing his judicial powers during an Ontario murder trial that ended with Cosgrove staying the charge for a slew of supposed Charter violations. His misconduct was “pervasive in both scope and duration,” the CJC’s final report to the minister of justice said. The previous year, a CJC inquiry committee recommended removing Ontario Superior Court Justice Theodore Matlow from the bench. It said his conduct in opposing a development in his Toronto neighbourhood and later sitting on a three-judge Divisional Court panel that ruled against a controversial City of Toronto proposal for a streetcar right-of-way was “manifestly and totally contrary to the impartiality, integrity, and independence of the judiciary.” A majority of the full judicial council agreed that Matlow’s behaviour constituted misconduct, but overruled the removal recommendation.

Only two other cases have reached the inquiry stage in the last decade, both involving Quebec judges who were ultimately allowed to remain on the bench. Only eight inquiry committees have reported on the conduct of judges since the CJC was created in 1971.

Associate Chief Justice Lori Douglas of the Manitoba Court of Queen’s Bench will become the subject of a ninth after a review panel of five judges decided her salacious case could be serious enough to warrant removal. Her lawyer husband has already been sanctioned by the province’s law society for sending pornographic pictures of Douglas to a client and suggesting he have sex with her. Douglas, who at the time of the allegations was still practising, stepped aside from her her judicial duties in the summer of 2010 when King’s former client launched his complaint.

Karen Busby, a law professor at the University of Manitoba, says the intense public interest in the case has been a factor in the persistence of the Douglas matter. “I’m surprised it’s got that far because the facts are really straightforward, and in my view, she did nothing wrong. It should have been resolved at the initial complaints stage,” says Busby. “At the same time, there is huge interest in the case and if they hadn’t made the inquiry, then there could have been a cloud hanging over her, which would be very unfortunate. Perhaps the only way the air can be cleared is if the inquiry is carried out and the report is made public.”

Busby is also troubled by the length of time the case is taking to wind its way through the CJC process — the complaint against her was lodged in July 2010 — and compares Douglas’ fate with that of another Manitoba judge roundly criticized for his comments in the sentencing of a sex offender in February 2011. Court of Queen’s Bench Justice Robert Dewar came under fire for suggesting the victim of the sexual assault wore provocative clothing and labelling the accused a “clumsy Don Juan.” The CJC closed the case after expressing its concern to Dewar and receiving assurances about his future behaviour. “His comments went directly to his capacity as a judge. An apology and some training does the trick, and it’s all over in six months,” Busby says. “[Douglas is] in trouble because she participated in things that were not illegal in any way, and conduct that I don’t think is incompatible with her position as a judge.” 

At the provincial court level, where each jurisdiction has its own judicial council, misconduct findings are equally rare. The Ontario Judicial Council has held 10 hearings since 1995, but just three of those have resulted in misconduct findings. In 2007, Ontario Court Justice Marvin Zuker was officially warned after he admitted altering court transcripts to remove comments he made about Harry Kopyto, a disbarred lawyer whom he refused permission to represent a party in a child protection application.

In 2004, Justice Dianne Nicholas received a reprimand after admitting indiscreet comments inside and outside court about an accused and her family. The same year, Justice Kerry Evans was found guilty of misconduct related to inappropriate physical touching of female court staff, some of it sexual. He resigned before the council could impose a penalty.

Complaints were dismissed in the other seven cases, including one judge accused of using the offices and computers of colleagues to visit porn sites and leaving images visible on his computer. That hearing was held in private and the anonymous judge’s conduct was ruled “inappropriate,” but not labelled judicial misconduct.

In 2006, another OJC panel found Justice Norman Douglas had come close to the line for his conduct in impaired driving cases. After convicting a defendant in a drunk-driving case, Douglas was overturned by a Superior Court judge who said there was an appearance of bias. Douglas then went on to attack the appeal decision in subsequent rulings and offered to help the Crown in its own appeal of the Superior Court judge’s decision.

Saskatchewan has also suspended two judges in the last decade. Justice Donald Bird was reinstated in 2011 after criminal charges involving alleged assault and threats made in a domestic dispute were dismissed, while the other resigned before a hearing could be held.

In the U.K., the Office for Judicial Complaints, established in 2006 after a reform of the judicial complaint procedure, reports that five judges have been removed in the last three years, as well as a further eight resignations by judges under investigation. There have also been six reprimands issued in that time. The U.S. state of Pennsylvania, meanwhile, has seen 13 state judges removed from office in the last 10 years.

But Julian Porter, a bencher with the Law Society of Upper Canada and a former member of the Ontario Judicial Council’s complaints review panel, says the public should not be worried by the low number of cases in Canada. “It’s quite different than, say, parts of the U.S., where you have elected judges that sometimes do much more bizarre things,” he says. “I would think that if there were dishonest judges, someone in the system would be on them, and the other judges would start to do something. And if someone’s getting lazy, it’s certainly up to the chief justice to give them a kick.”

Hutchinson says the number may be artificially shrunk in Canada because judges are more inclined to take the traditional path of falling on their own sword in the face of a meritorious complaint or an informal expression of concern from superiors and colleagues. Again, he says the profession could benefit from a more transparent approach to discipline. “I don’t think for a second [there is] rampant impropriety among judges in Canada, but who would know,” he says.

Neil Skinner, executive legal counsel to Alberta’s provincial court, says he remembers a case where the secrecy of the process worked against the judge facing a complaint. “Once it goes to the council, it’s like a black box, which is a shame, because if the media could have read the stuff, they would have seen why there was no basis for the complaint, but we couldn’t even defend the guy if we wanted to,” he says. Even so, “I’m not sure if any of the judges want to be more transparent,” says Skinner.

In the Slansky case, matters have been held up because the CJC refused to hand over a report by University of Toronto law professor Martin Friedland, upon which Manitoba Chief Justice Richard Scott’s decision to dismiss was based, arguing the report was privileged. In April 2011, Federal Court prothonotary Martha Milczynski ordered the CJC to turn over a redacted copy of the report, although that decision was appealed by the CJC. “I am satisfied that there is a public interest in knowing how the CJC deals with complaints against judges to ensure the public has confidence in the integrity of the process and to also ensure that the application for judicial review can be conducted in a meaningful way,” Milczynski wrote.

“The process has to be transparent and it has to be effective. It doesn’t mean they have to find against the judge, but it can’t be this secretive. It’s nonsense,” says Galati.Laporte says the CJC is working on improving its public disclosures. She says from time to time it publicizes criticism of judges in cases where the judge’s behaviour falls short of misconduct, such as in the recent case of Manitoba’s Dewar. In his report, Alberta Chief Justice Neil Wittmann said Dewar showed a “lack of sensitivity towards victims of sexual assault” over comments in his sentencing of a sex offender that seemed to cast some blame on the victim.

But comments are only publicized in higher profile cases where the media has already shown an interest. The council’s annual report does not include descriptions of all resolved complaints. “Council wants to be transparent, and we’re working towards changing the way we communicate complaints on the web site,” says Laporte.

Porter says he understands why judicial councils are sparing with the amount of public sanctions they hand out to judges. “I’m quite struck by the fact that if you reprimand a judge, it certainly is something the judge can never get away from. It isn’t as if it ever goes away,” he says.

Karen Selick, the litigation director of the Canadian Constitution Foundation, says repeatedly poor judges shouldn’t be stuck with the stigma of reprimands or other findings against them. Instead, “we should fire them,” says Selick, who believes sanctions should not be reserved only for issues of misconduct, but also for issues of quality. “I don’t see why in this occupation you should be exempt form losing your job. There’s lots of people waiting to fill those jobs, and there’s no guarantee that the ones doing a bad job are going to do a better job than the ones who weren’t appointed,” she says.

In September 2011, Ontario Court Justice John Ritchie was barred from a drinking-and-driving case after a Superior Court justice found he appeared biased against the defendant. The Superior Court judge decided an informed and reasonable observer would conclude that Ritchie had prejudged his rejection of a Charter application. It was the second time in seven years that Ritchie received a serious rebuke on appeal, since in 2004, another superior court judge overturned his conviction in such a case because of the judge’s use of “boilerplate” reasons.

“This is the second time his honour has had to be reminded by an appeal court to approach trials fairly and of the overarching importance of justice being seen to be done and not only being done,” said Paul Burstein, president of the Criminal Lawyers’ Association at the time. “If anyone else shirked their employment responsibilities in such a fundamental way, they’d risk being terminated or suspended.”

If Selick had her way, that would change. “Judges who get things wrong, necessitating appeals that overturn their decisions, should perhaps face some consequences other than the shame of being reversed,” she says, adding she would like to see judicial feedback programs in use in U.S. states such as Arizona and Florida, adapted to give Canadian lawyers and litigants a chance to rate their judges. Consistently poor performers would then be removed from the bench.

Frank Addario, a former president of the CLA, says chief justices should have more powers to tackle the small minority of problem judges. “The court has an obligation to provide a certain level of service, and there’s no threat to judicial independence if the chief justice is empowered to prevent low-grade services being provided,” he says. “It can’t be the case that someone is immune from repeated correction by appellant courts.”

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