While the Ontario Judicial Council has released limited details about a 2012 complaint against Ontario Court Justice John Ritchie, some lawyers remain concerned about the continued secrecy surrounding the case amid an ongoing grievance about how he treats the defence position in his rulings.
“In every situation I’ve been before him, he’s convicted — and that’s not to say in some circumstances the evidence wasn’t there — but what’s not right is not getting a fair shake,” says Toronto defence lawyer Sam Goldstein. “It erodes that confidence in justice we hear about so much. But I think any defence lawyer would say you can’t win in front of Justice Ritchie.”
Goldstein is among defence lawyers concerned about the outcome of the Criminal Lawyers' Association's complaint against Ritchie and the Oct. 14 decision from the judicial council dealing with disclosure of it. “The public has to be protected both from crime and from the state, and allowing Justice Ritchie to continue to do what he’s doing does neither,” he says.
Besides complaints from lawyers appearing before Ritchie over the years, appeal judges have also taken his rulings to task. They include Superior Court Justice Anne Molloy, who in 2003 found he had provided identical, “boilerplate” comments instead of indicating his reasons for finding some witnesses not believable.
The Oct. 14 decision from the judicial council stems from an early February 2012 grievance filed by the Criminal Lawyers’ Association against the judge that alleged he had failed to conduct proceedings in a judicial manner. After an investigation by a subcommittee of the Ontario Judicial Council, the complaint proceeded to the chief justice of the Ontario Court of Justice for review on the condition that the judge was willing to take part in educational courses.
In July 2014, the Toronto Star received information from an unidentified source about the complaint and the newspaper was able to confirm with Ritchie that a complaint against him had resolved without proceeding to a public hearing. The CLA, meanwhile, was only able to share a disposition letter with its membership, the judicial council explained in its recent ruling, “so that they would know that the judge took their concerns seriously and had taken steps to address them.” The specific details about the complaint were subject to a confidentiality order that covered “any information or documents relating to a mediation or a Council meeting or hearing that was not held in public.”
But after receiving the documentation, the Star joined the CLA’s request for full disclosure of the matter. In its ruling on Oct. 14, however, the judicial council ruled the confidentiality order was binding but found it would release a brief complaint letter that states that “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.”
Criminal defence lawyer Jacob Stilman says he has handled some impaired driving cases before Ritchie with “word-for-word” rulings where only the names of the accused or witnesses changed. He says that despite some lawyers’ perception of bias against the defence by the judge, his main concern is about keeping information from public scrutiny.
“My own view is that these things should be public record. It’s unfortunate the judicial council process was conducted away from public scrutiny,” says Stilman.
Trial and appellate lawyer John Rosen agrees the Ritchie matter is one that should be public just like a lawyer’s disciplinary case would be.
“You want to have a transparent system,” he says.
“I’m not taking sides one way or the other but I would have thought for the sake of transparency, the complaint and the investigation and the results would have to be made public in order to preserve the integrity of the judicial system. It’s very, very difficult to identify systemic bias even in a context of one particular judicial official because every case depends on its own and everyone has a right to appeal. But when you have a series of concerns raised that turn into complaints, then someone has to do a real investigation to determine what the problem is in general terms.”
Goldstein says he has seen unsuccessful cases before Ritchie overturned on appeal and feels his rulings failed to take into account the defence position. As a result, he’s particularly unhappy with what happened with the complaint against Ritchie. “I understand once a judge is elected there has to be discretion, there has to be an arm’s-length relationship between the politicians and the judiciary, but obviously this government has entered into that arena on other occasions when they want to sanction judges who don’t do things that they like but they’re not willing to sanction this judge,” he says. “It’s a travesty of justice.”
Defence lawyer Paul Burstein is also unhappy with what he says amounts to nothing more than a “hand slap” and suggests the remaining confidentiality around the complaint will continue to cause concern. In the meantime, he says Ritchie continues to decide the fate of people who come before him, something he calls “a tragedy that’s been going on for some time.”
“And it doesn’t matter how many appeal judgments criticize him. I think the sad part of the recent news is that the judicial council has shielded itself behind hyper-technical claims of confidentiality rather than promoting the open-court principle about something as serious as why a judge, who has been repeatedly rapped by appeal courts for being incapable of performing the essence of his job — keeping an open mind — why the judicial council saw fit to do nothing of substance. Surely, the public has the right to know,” says Burstein.
In a sampling of 19 appeal judgments of Ritchie’s rulings analyzed by Law Times, seven judges upheld his decisions while the rest ruled against. Those appeal rulings include comments such as Justice Michael Code’s 2012 ruling that stated: “At no point in the trial judge’s reasons did he make any reference to the mother’s apparently credible corroborating evidence. I cannot tell whether he considered it and it appears that he did not.”
Law Times also looked at 26 of Ritchie’s reported decisions pulled from Westlaw since 2000. Whether they were dealing with findings of guilt or innocence, appeals or motions, the rulings were almost wholly against the defendant with few exceptions. “There is nothing in the defence evidence that raises a reasonable doubt in my mind,” he wrote in a case dealing with theft, R. v. Johnson, in 2000.
For more, see "Judge slammed for appearance of bias" and "More disclosure needed ."