Ontario Judicial Council rebuffs a bid by the Toronto Star and Criminal Lawyers’ Association to make reviews of judges more transparent.
Complaints against Ontario’s provincially appointed judges will continue to be handled in secret, following a decision by the body that probes judicial misconduct.
The Ontario Judicial Council dismissed an application this week by the Toronto Star and the Criminal Lawyers’ Association (CLA) to make public “all documents and information” relating to a complaint filed by the CLA in 2012 against Ontario Court Justice John Ritchie.
Ritchie, who presides at Old City Hall in Toronto, had been chastised in the past by higher courts for legal errors, appearance of bias and recycling “boilerplate” statements in rulings. However, because the complaint to the judicial council did not lead to a public discipline hearing — a relatively rare occurrence — its contents and supporting documents were never released.
“In our view, it would not be appropriate to order disclosure of ‘all information and records relating to the complaint,’” the council said in a 62-page decision. “Such information would consist of documents considered by the council in private, arising from its confidential investigation of the judge.”
The Star intends to seek a judicial review of the decision in Divisional Court.
“It’s disappointing that the judicial council has not taken the opportunity to make its complaint process more transparent,” said Star lawyer Iris Fischer.
The council did find that the complaint letter about Ritchie could be made public. It also concluded that the disposition letter outlining what action was taken in Ritchie’s case could also be released, but only in one month in case Ritchie wants to seek review by a court.
“We are still reviewing the decision and considering our options,” said his lawyer, Peter Thorning.
The CLA complaint letter from former president Norman Boxall, dated Feb. 9, 2012, that can now be made public is brief. “The ground for the complaint is that Justice Ritchie fails to conduct proceedings in a judicial manner as is required of a judge of the Ontario Court,” says the letter. Boxall identifies five cases that “illustrate that His Honour either does not appreciate or fails to apply the basic principles required in his judicial position.”
The application was filed last year after a manila envelope containing documents detailing the complaint and outcome was delivered to a Star reporter by an unknown source, offering a rare glimpse into how Ontario’s 330 provincially appointed judges are themselves judged. A confidentiality order imposed by the judicial council prevented the documents from being made public.
Some details trickled out after Ritchie himself confirmed to the Starlast year that he had been the subject of a complaint by the CLA, and that while the judicial council did not question the substance of his decisions, it recommended he take a refresher course on how to write good judgments.
The year-long fight to unseal the secret documents was itself shrouded in secrecy. The Star, the CLA and Ritchie were not allowed to release their arguments, according to a directive from the council.
“The public will have a bit more information in this particular case, but other complaints about judges will continue to be handled in secret, without any public oversight,” said Fischer. “But for the anonymous delivery of documents to the Star in this case and the judge’s own confirmation, even the outcome of this complaint would have stayed secret.”
The nine-member panel of the judicial council — five of whom are judges, including Ontario Court Chief Justice Lise Maisonneuve — found that it had the discretion under legislation to keep the documents secret, and that doing so did not infringe on the Charter of Rights and Freedoms. It only agreed to release the letter detailing the outcome of the complaint against Ritchie because he had already largely confirmed its contents to the Star.
“We respect the decision of the council and will of course abide by it as we must, but it seems to me that this is a situation where a legislative solution may be possible, especially given the Ontario government’s mandate to increase transparency,” said current CLA president Anthony Moustacalis.
While a discipline hearing has quasi-judicial functions and should be held in public — just like a trial in a courtroom — the subcommittee that investigates a complaint and the review panel that decides in secret on ordering a hearing have administrative functions, and therefore those deliberations should remain private, the council found after analyzing legislation.
The council also found that confidentiality in the complaints process is important for safeguarding judicial independence and a key reason for secrecy provisions in the legislation, writing that disclosure of information “surrounding unsubstantiated complaints will undermine a judge’s authority in carrying out his or her judicial functions.”
The panel highlighted that the council is already required to submit an annual report to the Attorney General containing a summary of each complaint against a judge, the findings and disposition, which is made public. “This ensures a level of public accountability,” says the decision.
However, the names of the judge and complainant are kept secret.