Monday, July 21, 2014

The Ontario Judicial Council a modern day Star Chamber!

"Judges protecting judges - where there's no publicity there's no justice"

Good Day Readers:

What's most troubling, to say the least, is the secrecy shrouding this case like the Star Chamber of 15th century England. Public money is used to fund and support the Ontario Judicial Council yet taxpayers are the last to find out if at all.

The other troublesome aspect is how the OJC seemingly plays fast and lose with Constitutional/Charter law. What is needed is a group of constitutional lawyers to challenge certain of The Council's policies in court. They'd probably win.

Sincerely,
Clare L. Pieuk
Toronto Judge upbraided for errors, still on the job

A complaint about a repeatedly chastised Toronto judge sparked a lengthy investigation into his conduct before the matter was dealt with in secret and the case closed.

By Rachel Mendleson/News Reporter
Saturday, July 19, 2014
Ontario Court Justice John Richie pictured outside Old City Hall last summer. (Vince Talotta/Toronto Star)

A complaint about a repeatedly chastised Toronto judge sparked a lengthy investigation into his conduct before the matter was dealt with in secret and the case closed.
The name of the judge involved might have been shielded from the public forever had it not been for a manila envelope delivered to the Star by an unknown source. The documents it contains provide a rare glimpse into how a judge who has been upbraided for legal errors, the appearance of bias and delivering “boilerplate” decisions avoided a formal disciplinary hearing and is still hearing cases at Old City Hall.
And Ontario law, at least according to the Ontario Judicial Council, prohibits us from sharing any of it with you.
What we can reveal was gleaned from court records, media reports, interviews with lawyers and a conversation with Justice John Ritchie, who confirmed that he was the subject of a complaint by the Criminal Lawyers’ Association two years ago.
Upon review, the Judicial Council, which probes complaints about Ontario’s 330 provincially appointed judges, did not question the substance of his decisions, Ritchie said. But, on the council’s recommendation, he took a refresher course on how to write good judgments.
“It was a good course,” he told the Star. “I liked it.”
Despite Ritchie’s candour, we are very limited in what we can report because the Judicial Council has made a general order sealing “any information or documents” relating to mediations that don’t result in a public hearing.
This order applies “whether the information or documents are in the possession of the Judicial Council, the Attorney General or any other person,” according to council registrar Marilyn King.
The council has only concluded six public hearings in the past decade, King said. It publishes summaries of complaints that don’t result in a public hearing in a report to the Attorney General each year but does not identify the judges involved or the complainant. (The council received 40 new complaints, on average, per year from 2007 to 2012.)
Toronto constitutional lawyer Rocco Galati said the blanket order shrouding the vast majority of investigations into complaints against judges is “an abuse and excess of power” and is an example of “judges protecting judges.”
Galati, who recently challenged several judicial appointments, said allowing secrecy in the courts carries serious consequences.
“In the darkness of secrecy, sinister interest and evil in every shape have full swing,” he said, quoting 18th-century British jurist and philosopher Jeremy Bentham. “Where there is no publicity there is no justice.”
Several legal experts said the confidentiality provision is so broad and sweeping that it could violate Canada’s Charter of Rights and Freedoms.
“The (charter) says we have freedom of expression, including freedom of the media,” said Ian Greene, an expert in judicial administration at York University. “Democracy is always a work in progress. If there’s unnecessary secrecy, that can provide a cover for unacceptable things to happen.”
Greene said this case “certainly shows” that the law “needs to be revisited.”
Toronto defence lawyer Andras Schreck, too, said the confidentiality permitted under the Ontario Courts of Justice Act could be “vulnerable to an attack on its constitutional validity.”
“On its face, it prevents the media from publishing proceedings respecting judicial conduct, which, although it may not result in a hearing, still reflect that there was a concern and steps were taken to address the concern,” Schreck said.
The provision is intended to enhance confidence in the courts by ensuring that the reputations of judges are not eroded by making public baseless and specious complaints, he said.
However, in cases in which a complaint results in remedial action, Schreck said, proceedings should be disclosed.
“I think the public would have probably more confidence in the administration of justice if it knew that serious complaints were taken seriously and that steps were taken to address the complaints,” he said.
Schreck, former vice-president of the Criminal Lawyers’ Association (CLA), stressed that his comments do not relate to any specific case. He would not comment on — or confirm the existence of — a complaint by his organization against Ritchie.
Toronto defence lawyer Anthony Moustacalis, who is president of the CLA, also declined to comment on the case, citing the order imposed by the Judicial Council.
“You and the Toronto Star are not allowed to have that material or to distribute or publicize it,” he said in an email. “I would therefore ask that you comply with the order and return the material to the judicial council and not publicize it.”
Ritchie, who was appointed by Mike Harris’s tough-on-crime government in 1999, earned $271,420.72 last year, according to public sector disclosure records. Over the years he has been repeatedly taken to task by Superior Court judges, whose sharp language has been widely quoted in the media.
In 2004, an appeal court reversed a drunk-driving conviction because the reasons Ritchie gave, according to Superior Court Justice Anne Molloy, were “so deficient as to amount to no reasons at all.”
As the Star reported at the time, Molloy reviewed another four of Ritchie’s cases and found he used included the same generic “boilerplate” reason for conviction: “I had ample opportunity to observe the demeanour of the witnesses and consider the inconsistencies and conflicts in their evidence,” he wrote.
In 2011, Ritchie was rebuked for his treatment of the defendant in rejecting an application under the Charter of Rights and Freedoms in another drunk-driving case. As the Law Times reported, Superior Court Justice Ian Nordheimer said Ritchie’s actions would leave an observer “with the distinct impression that that trial judge had predetermined the result of the … application, if not the likely outcome of the proceeding as a whole.”
Nordheimer overturned Ritchie’s ruling on the application and ordered that the case be heard by another judge.
The following year, the Globe and Mail reported that Ritchie had been admonished yet again by a Superior Court judge for convicting a mentally ill man who did not appear at trial, despite the fact that even the Crown had pointed out the man may have gone to the wrong courthouse.
As officers of the court, lawyers rarely speak out against judges. But criminal lawyers have, in media interviews, repeatedly stated their concerns about Ritchie’s decisions.
In 2012, Toronto defence lawyer Edward Royle said that he had put the word out that he would represent “indigent defendants” seeking to appeal a conviction by Ritchie on a pro bono basis, according to the Globe report.
Criminal lawyer James Lockyer told the Law Times in 2011 that Ritchie has “a reputation among the defence bar and beyond for being a judge you’d like to avoid if you can.”
Several criminal defence lawyers who spoke to the Star on condition of anonymity said that he is the draw they dread most.
“I personally have found Justice Ritchie to be a true gentleman and even a compassionate sentencer,” Toronto defence lawyer Reid Rusonik said in an email this week, “but by absolutely all accounts, he seems to struggle mightily with the application of the essential criminal law concept of proof beyond a reasonable doubt.”
Ritchie denied that the repeated chidings represent a concerning pattern.
“I’m a good judge,” he said. “When I make a decision, some people are going to agree with it and some people aren’t going to agree with it.”
He said he has applied the lessons from Superior Court judges.
“When we are appealed, and there are decisions that give us guidance and help, obviously we pay attention to them,” he said. “Of course I take it to heart, and of course I do something about it, as do all judges.”
Asked about the perception among defence lawyers that he has a tendency to convict, Ritchie said, “You’ll have to talk to them about that.”
“Some defence lawyers want to come in front of me, and some don’t. That applies to every judge,” he said. “I only convict somebody when the Crown proves the case beyond a reasonable doubt.”
Ritchie said the documents that detail the complaint against him were marked “private and confidential.” He said whoever shared them with the Star acted “contrary to the wishes of the Ontario Judicial Council and their legal opinion.”
The Judicial Council declined to comment on the case.
“It is the policy of the (council) … that it will not confirm or deny that a particular complaint has been made to it, unless the council has ordered a public hearing,” King, the registrar, said in an email.
The Ontario government created the council in 1995 to investigate complaints by members of the public against provincially appointed judges.
The council follows standards developed by the Chief Justice of the Court of Ontario, and is made up of six judges (including the chief justice), the treasurer of the Law Society of Upper Canada, another lawyer and four community members who are neither judges nor lawyers.
Complaints are investigated by a judge and a community member and then reviewed by a panel made up of two other judges, a lawyer and a different community member. The panel then decides whether a public hearing is warranted, King said.
Chief Justice Annemarie Bonkalo declined a request for an interview regarding Ritchie.
King told the Star that complaints that don’t result in a public hearing are confidential and directed the Star to the confidentiality provisions in the legislation, which stipulate that the council “may order” that information and documents relating to these proceedings remain secret.
The Star asked whether such an order had been made and requested a copy of the order. She replied that there is “a general order to reflect the legislative provisions and framework that governs the Council, not an order specific to a case,” which “reflects the practice of the Judicial Council since its inception.”
She did not share a copy of the order. Instead, she provided what she described as the “wording of the order.” It stipulates that, subject to an order of council, the materials “are confidential and shall not be disclosed or made public.”
“The provisions of the Courts of Justice Act recognize the need to balance constitutionally protected judicial independence with judicial accountability for conduct,” she said. “If the press believes that their Charter rights justify disclosure of the disposition of a complaint that would otherwise be confidential under the law … that would permit them to apply for an order from the Judicial Council of disclosure of that information.”
The Star intends to submit an application to have the materials unsealed.
Star editor Michael Cooke said, “Our judges, above all, need to be held accountable.”
“How can the public have confidence in our system of justice if the process by which judges are judged is secret?” he said.

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