Used to be it was only the police you had to worry about now it's also judges!

Toronto lawyer calls for action on concerns of bias by Justice John Richie

James Lockyer of the Association in  Defence of the Wrongly Convicted says there is 'legitimate concern" about whether innocent people are being convicted.

By Rachel Mendleson/News Reporter
Saturday, August 16, 2014

Lawyer James Lockyer says he has concerns "about whether people are being convicted of crimes they didn't commit" because a judge appears to be biased. (Lucas Oleniuk/Toronto Star)

The judiciary must do more to address the “legitimate concern” that a Toronto judge repeatedly upbraided for the appearance of bias and boilerplate decisions is convicting innocent people, says the founding director of the Association in Defence of the Wrongly Convicted.

Toronto lawyer James Lockyer is calling for action in response to the longstanding disquiet surrounding Justice John Ritchie’s court.

“We have a legitimate concern about whether people are being convicted of crimes they didn’t commit,” Lockyer said. “It is a problem that is being confronted on a regular basis in a number of jurisdictions in the U.S. by the innocence projects.”

As the Star reported last month, the Ontario Judicial Council investigated and disposed of a complaint against Ritchie in secret.

Ritchie declined a request for an interview for this story. Speaking to the Star in July, he confirmed he was the subject of a complaint by the Criminal Lawyers’ Association about two years ago and, as a result, attended a refresher course on how to write good judgments.

He said the judicial council, which was created by the province to probe complaints against judges, did not question the substance of his decisions. He also denied he has a propensity to convict.

“I only convict somebody when the Crown proves the case beyond a reasonable doubt,” he told the Star in July.

Although Lockyer has never appeared before Ritchie, he told the Star he has worried for years about the reputation Ritchie has among the city’s defence lawyers and Crown attorneys as being a judge who rarely acquits.

“When you have a judge that is, from what everyone says, virtually always convicting people who have trials before him, you have to start worrying,” Lockyer said. “You have to worry that innocent people are being convicted. If they are, and if the criminal justice system knows that through common sense, then it has to find a way of doing something about it.”

Toronto criminal lawyer Frank Addario said that because of the desire to protect judicial independence, there is no sufficient means to step in if a judge routinely commits legal errors.

“You worry when a judge has to be repeatedly schooled about the importance of basic concepts, but under our current rules there is no remedy available unless the judge discloses his or her incorrect thinking out loud,” he told the Star in an email. “Appeals are a partial but incomplete solution to this problem.”

Lockyer said he is particularly concerned about the implication of a pattern of reasons for conviction that Superior Court Justice Anne Molloy identified in 2004 in five of Ritchie’s decisions as “boilerplate.”

“The problem of writing judgments by rote is that you are potentially convicting by rote as well,” Lockyer said. “That’s the real issue.

“I am unable to say that Justice Ritchie may have convicted an innocent person, but I can say that, in light of what has been said, it is a legitimate concern and something that should be investigated.”

In the interview with the Star in July, Ritchie said he has learned 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.”

Ritchie took a more defensive approach to the issue when it was raised in his court in April 2010.

According to a transcript of the proceeding obtained by the Star earlier this month, the defence lawyer made an application for Ritchie to recuse himself from the drunk driving case, and referred to several of the scathing appellate court decisions, including Molloy’s 2004 assessment.

“I’m aware of no such judgments,” Ritchie said, according to the transcript, noting that 2004 was “a very long time ago.”

“I don’t remember the case. Maybe I did err. I say, so what. What’s that got to do with today?” Ritchie said. “Nothing.”

Ritchie promised “a fair trial,” and denied the application to have the case heard before another judge. The defendant was ultimately convicted.

Both Attorney General Madeleine Meilleur’s office and the office of Chief Justice Annemarie Bonkalo have declined multiple requests for an interview to discuss the concerns about Ritchie.

In response to questions for this story, Ontario Judicial Council registrar Marilyn King told the Star in an email that the council’s jurisdiction under provincial law “is to receive, investigate and render dispositions on complaints about the conduct of provincially-appointed judges.”

No one appears to keep statistics on the conviction rates of provincially appointed judges in Ontario. King said the council “does not maintain statistics on the decisions made by judges.” Neither does the Ministry of the Attorney General, according to spokesman Brendan Crawley. Bonkalo’s spokeswoman, Jane Warwick, said the court “does not release data about individual judges’ decisions.”

The lack of data is part of the problem, according to Lockyer.

“It’s impossible to establish empirical data on a particular judge’s decisions unless you sit in his or her courtroom day after day,” he said. “No one can afford that time.”

Correspondence relating to the Criminal Lawyers’ Association’s complaint to the judicial council against Ritchie was delivered to the Star in a manila envelope by an unknown source in July. According to the judicial council, Ontario law prohibits anyone from publishing any “information or documents” relating to the investigation of complaints that don’t result in a public hearing.

The Star has made an application to have the documents unsealed. In a brief letter, dated July 30, council registrar King said, “The request will be considered by the judicial council.”

It is not yet clear what the outcome of the Star’s request will be, exactly how a decision will be reached or whether that process will be public.

Meilleur has since defended the judicial council’s investigations process as “a very independent and fair system.”

However, both NDP Leader Andrea Horwath and interim Progressive Conservative Leader Jim Wilson have called on the province to lift the veil.

Several legal experts told the Star that legislation that apparently allows the judicial council to keep secret the vast majority of complaints against judges may violate Canada’s Charter of Rights and Freedoms.

Confidentiality provisions in the legislation state that the judicial council “may order” that information and documents relating to complaints against judges that don’t result in a public hearing remain secret.

King has previously told the Star 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.”

In another letter earlier this month, King said the council “will also be considering the (Star’s) request for a copy of the general order and information on the circumstances in which it was made” and will consider the requests “in a manner as timely as possible.”

Only six public hearings into complaints against provincially appointed judges have been concluded by the council in the past decade. In a report to the Attorney General each year, the council publishes summaries of complaints that don’t result in a public hearing. Those summaries don’t identify the judges involved or the complainant.

In circumstances where a judge’s overall fairness is called into question, Lockyer said recommending a refresher course is not a satisfactory outcome.

He said there should be a system of monitoring in place to assess “whether there is a pattern that could lead to miscarriages of justice.”

Those who are wrongfully convicted, even of minor offences, can be deprived of their liberty, livelihoods and reputations, he said.

“We should all be thinking about what to do in a situation like this, not necessarily in the context of Ritchie himself, but in the broader context,” Lockyer said. “Everyone seems to know what’s wrong, but no one can do anything about it.”