Should the Canadian Judicial Council be forced to take a judicial ethics course at the National Judicial Institute?

Good Day Readers:

Did the CJC's Senior Legal Counsel/Executive Director Norman Sabourin unwittingly identify the exact problem when he said:

"The council is determined to ensure that any allegation (emphasis CyberSmokeBlog's).of inappropriate conduct by judges is taken seriously and reviewed fulsomely, with sanctions to follow in appropriate cases. This is what took place in the Matlow matter."

See, all you have to do is make an "allegation" against a judge and The Council's machinery is unleashed upon the judge and in public too!

Mr. Sabourin shown here at the 200th birthday celebration of Sir John A. McDonald for the glitterati. He is Board President of (Disneyland over) The Rideau Club.

What's amusing is pictures posted on the internet of the event do not show anyone holding a drink. With all due respect, politess, and delicatess wasn't he a bit of a lush. He would'n have approved of no one imbibing.

Sincerely,
Clare L. Pieuk

Canadian Judicial Council under fire by federal judge

Retiring Superior Court Judge who was subject of public inquiry hits out at the Canadian Judicial Council's "terrible" multi million dollar investigative process.

By Olivia Carville/Staff Reporter
Thursday, February 12, 2015

Just months off retirement Superior Court Justice Fed Matlow says he is in a position to publicly criticize the Canadian Judicial Council's disciplinary processes. (Keith Beaty/Toronto Star)

A Superior Court judge has attacked the body that investigates complaints against federal judges in Canada, calling for an independent review into its “horrendous” disciplinary system.

“I wish that the role of the Canadian Judicial Council were re-examined carefully. My experience has made me lose faith in the integrity of the process,” Superior Court Justice Ted Matlow told the Star.

It is a rare move for a federal judge to hit out against the regulatory body, but after three decades on the bench, Matlow said he was retiring with no faith in the council.

In 2008, Matlow was the subject of a million-dollar public inquiry where the council backtracked on a recommendation to strip him of his job.

An initial five-member panel found Matlow’s involvement in a citizens’ battle against city hall was at odds with his role as a Superior Court judge and rendered him unfit for office.

But then a full public inquiry, made up of 21 chief justices and associate justices from across the country, overruled the decision. The full council found Matlow, 74, guilty of misconduct for using his judicial title for personal gain and “intemperate” language, but said this did not warrant his removal from the bench.

Matlow claims he was found guilty of “trivial” things and that his actions never amounted to judicial misconduct — he says the council overruling its own decision proves there are problems with its processes.

“I did not speak out earlier because I feared that I might be met with further consequences. I now have only 15 days to work and I no longer have reason to fear any retaliation,” he said.

Norman Sabourin, the council’s executive director, defended the council’s actions and said some of Matlow’s criticisms were “certainly surprising.”

“All council members who reviewed the matter came to a view that Justice Matlow engaged in behaviour unbecoming a member of the judiciary,” Sabourin said.

The council “is determined to ensure that any allegation of inappropriate conduct by judges is taken seriously and reviewed fulsomely, with sanctions to follow in appropriate cases. This is what took place in the Matlow matter,” Sabourin said.

Speaking publicly for the first time since the inquiry, Matlow said his 33-year judicial career was shadowed by the council’s “horrendous” public investigation into his involvement leading a crusade to stop a condo development in his Toronto neighbourhood.

“In my case, I think they did a terrible job. My case should not have consumed the time, effort and money that it did,” Matlow said.

“The whole thing was crazy.”

After reading a Star investigation highlighting the council’s secretive complaints process, Matlow said he felt obliged to go public with his own concerns before retiring.

“If a judge receives a bribe, robs a bank, or does terrible things, like insults litigants or sexist things, then I think that would legitimately lead to recommendation for removal,” Matlow said, but he questioned being stripped of office for challenging a neighbourhood development.

As a law student, Matlow was a driving force in the abolition of the death penalty. As a federal judge, he presided over some of the biggest fraud cases in the country and was praised in the media for going to extreme lengths to expose suspected police corruption in his courtroom. He has been the editor of a national law journal since 1977.

Matlow wants a full review of the council’s powers, ordinary people sitting on its inquiries, more transparency into its processes and said judges who are found guilty of misconduct should not automatically be entitled to have their legal fees paid by taxpayers — as is the case under current legislation.

Had his case been dealt with “intelligently and sensibly” it never would have proceeded, he said. “Even at worse, if I had used intemperate language, it did not justify getting me to go on a leave of absence for two years, while paying my $300,000 salary, and then spending millions of dollars to try and get me removed from the bench,” he said.

Matlow has estimated the full cost of his inquiry to be up to $4 million, but Sabourin disputed this and said he would be surprised if the cost exceeded $1 million.

At the end of the public inquiry into Matlow, several members of the council were of the view that he should still be removed from office, Sabourin said.

“The decision of the council was that no recommendation for removal should be made, on the basis that Justice Matlow belatedly acknowledged that his behaviour had been inappropriate,” Sabourin said.

Matlow got into trouble over his role in the early 2000s leading a community group that fought to stop a condominium complex being built on his dead-end street in Forest Hill. He lobbied politicians (including the attorney general) and tried to stir up media coverage against city hall, claiming the project was illegally authorized because it had grown in size and exceeded zoning bylaws.

Matlow continued to preside over legal cases involving the city during his fight. In 2005, when he ruled against the city in a high-profile but unrelated case, he was also privately continuing to push for media coverage of the condo battle. The city’s legal department filed a complaint to the judicial council claiming he was biased.

The council convened a panel, which reviewed the complaint and found that Matlow’s “inexcusable” misconduct rendered him unfit for office.

The panel said his activities, which included publicly suggesting city officials had been devious, stupid and dishonest, breached a judge’s ethical responsibilities and diminished public confidence in the impartiality of the justice system.

A full council inquiry was then called where the majority overruled the decision to strip Matlow of office. He was found guilty of misconduct for offering legal advice to the community group, for using intemperate language in the media, such as claiming city hall’s lawyer should not have passed law school, and for using the prestige of office to advance his private interests.

The council found Matlow’s “inappropriate and unacceptable actions” placed him in a position incompatible with the due execution of office, but it said the test for recommending his removal from the bench had not been met.

Matlow is one of only 11 judges to have faced a public inquiry in Canada — representing fewer than 0.5 per cent of all complaints lodged with the council.

He was ordered to comply with binding conditions, including apologizing to the city’s legal department, the attorney general and others, undergoing a judicial ethics course at the National Judicial Institute and seeking approval from the council before participating in any public debate in the future.

Matlow said he wrote the letters of apology, but he never knew what he was apologizing for. The ethics course he was ordered to attend was not available for more than two years after he returned to duty, which, Matlow said, defeated its purpose as a rehabilitation program.

“I acknowledge that I probably went overboard in some of the things that I said, but so what? That’s not judicial misconduct,” he said.

Despite everything that happened, Matlow said he still believes he had the right to fight against the condo development and that he could not have lived with himself if he had not.

“I never denied I did all of the things that were alleged. My defence was that I was entitled to do it,” he said. “I thought I had a legitimate right to say that the city was doing something wrong and just because I was a judge, it didn’t mean I should roll over and just let it happen.”

During the investigation, the council did not address the question of whether or not he was right in his fight against the city, Matlow said.

Ironically, the proposed condominium was never built. The parking lot on the corner of Thelma Ave. is still there.

Olivia Carville can be reached at ocarville@thestar.ca