Wednesday, November 28, 2007

Inquiry into Conduct of Judge Ted Matlow

Canada News Wire has an update on an ongoing inquiry into the conduct of Ontario Superior Court Justice Ted Matlow:

The Inquiry Committee into the conduct of Justice Theodore Matlow, of the Ontario Superior Court of Justice, has completed a pre-hearing conference in Toronto on 19 November 2007... The Inquiry Committee will conduct a full hearing into this matter beginning 8 January 2008.

A complete transcript of the pre-hearing is available on the Council's website, and is a fascinating read. The Inquiry is chaired by former Newfoundland Premier Clyde Wells, who now serves as that Province's Chief Justice.

Lawyers Weekly set out the background of this highly political matter in an April, 2007 article, Judge defends right to speak out in public :

An Ontario Superior Court judge who risks losing his job after fighting a proposed real estate development near his home contends that he and other judges have the constitutional right to speak out as citizens, and to associate with their fellow citizens in non-partisan activities, in order to defend their personal interests.

After Toronto city solicitor Anna Kinastowski filed a complaint against Justice Ted Matlow in January 2006, the Canadian Judicial Council demanded that the supernumerary judge account for his high-profile opposition, together with some of his neighbours, to the building of a condo and retail complex on his small residential street in Toronto’s Forest Hill Village, and to explain his consequent clashes with the City of Toronto’s legal department.

... A five-person inquiry committee, which likely won’t proceed before next fall, will be empowered to recommend Justice Matlow’s removal to the full Council if it concludes he is no longer fit for the Bench. If the inquiry finds against him, the 39-judge Council would then decide whether or not to recommend his removal to the federal Minister of Justice. Removal of a superior court judge, which has never occurred, requires the approval of both the Senate and House of Commons.

Such a drastic and disproportionate move would have an unwarranted chilling effect on judges’ participation in their communities, argues Justice Matlow’s counsel Paul Cavalluzzo of Toronto’s Cavalluzzo Hayes Shilton McIntyre & Cornish LLP.

“Contemporary values and mores suggest that judges are members of the broader community and should be entitled to participate in the local community,” he told The Lawyers Weekly. “I would venture to say that Justice Matlow’s neighbours, rather than feeling that the judiciary is brought into disrepute [by his actions], respected what he contributed as a fellow citizen and neighbour. He is a real person. He is not some kind of monk who after work goes into his house and stays there and doesn’t associate with anybody.”

In their written arguments opposing a formal inquiry, Cavalluzzo and co-counsel Fay Faraday stressed “this is not a capital case. This is rather a matter which explores the important question of the boundaries of acceptable free speech and association by judges in their capacity as private citizens. While the conduct at issue may warrant reprimand or counselling, it is not such as warrants Justice Matlow’s removal from judicial office.”

Yet the CJC panel, which unanimously recommended that an inquiry be struck, concluded his “actions may constitute judicial misconduct or failure in the due execution of his office, or may have placed him in a position incompatible with the due execution of that office.”

A litany of actions were impugned by the panel members: ...

“The panel finds that Justice Matlow participated in controversial political discussions, inappropriately used the privileged platform of judicial office, publicly offered legal advice and criticism, took a role in litigation that was likely to come before his court, communicated with the press in the course of advancing a specific point of view in a legal and political dispute against a party that was imminently to appear before him in litigation, and failed to ensure that his actions and the extent of his involvement in the dispute with that party were disclosed to his co-panelists [on Divisional Court] and to the parties,” said the panel.

Justice Matlow commented on the matter, in a interview by the Toronto Star in February,:

"The most important issue arising out of this is to what extent a judge, as a private citizen, is entitled to speak out and advance his or her own personal interests without being labelled political," Justice Ted Matlow of the Superior Court of Justice said in an interview yesterday.

..."I still stand by what I did and what I said," Matlow told the Toronto Star yesterday. "I believe I was entitled to do everything I did and I'm hopeful, that as the facts are revealed in the future, that this will become apparent to anyone."

I note this is not the first time Mr. Justice Matlow's public advocacy of a personal interest in a controversy has attracted criticism from a higher court.

- Garry J. Wise, Toronto

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