Toronto Superior Court Justice Ted Matlow is one step closer to being removed from the bench, but members of the Canadian Judicial Council last week gave him at least a glimmer of hope that his career isn’t over.
Matlow, 68, appeared before 21 members of the council - all chief justices or associate
chief justices of Canada’s superior courts - to make a final plea as to why his conduct in opposing a development in his community shouldn’t lead to his dismissal.
Matlow stood before the judges, many of whom apparently put vacations on hold to appear at the Sheraton Gateway Hotel at Pearson International Airport for the hearing, and delivered an impassioned speech.
“This is one of the saddest and most frightening days of my life,” said Matlow, who went on to apologize for any embarrassment he’s caused to the bench.
The supernumerary judge, who has been prohibited from hearing cases since April 2007, said his vocation has been the centre of his life. He said he’s committed evenings and weekends to the job, even when he became a supernumerary under the presumption of a less-intense workload.
Matlow said the months in which he has been barred from hearing cases “are among the most difficult of my life.”
In terms of his decision to deliver documents to a media outlet slamming the City of Toronto’s legal department the day before sitting on a case involving the city, Matlow said, “I believed I was acting as a good judge and a good citizen.”
He added that he made a personal judgment and found the issues on the case on which he was sitting were “completely different” from the issues surrounding the development near his home. Therefore, he said he found no reason to recuse himself from the case.
While Matlow previously apologized for his actions in delivering the documents, he went further last week, saying he’s sorry “without reservation” for any other errors he might have made.
“I wish I had acted differently,” he said.
Matlow assured the judges that, if given another chance, “I’ll never give you a reason to regret your decision.”
In his address to the council, Matlow’s lawyer Paul Cavalluzzo made several arguments attacking the findings of a five-member inquiry committee.
In May, the committee, led by Newfoundland Chief Justice Clyde Wells, submitted a report to the council finding Matlow’s conduct “so manifestly and totally contrary to the impartiality, integrity, and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, have been undermined, rendering the judge incapable of performing the duties of his judicial office.”
The report finds that the council should recommend that the federal justice minister draft a resolution asking Parliament to remove Matlow from the bench.
But Cavalluzzo, who has submitted an application for the Federal Court of Canada to review the committee’s findings, argued the committee failed to consider Matlow’s positive contributions to the law when compiling its report and that the punishment he faces - removal from office - is disproportionate to the allegations he faces. Cavalluzzo also argued, among other things, that the tide is turning in favour of judges taking a more active role in public engagement within their communities.
Cavalluzzo asked the council to defer its decision pending the Federal Court review.
In what might be taken as a small ray of hope for the Matlow camp, Alberta Chief Justice Catherine Fraser, who led the meeting, asked what type of alternate punishment Cavalluzzo would recommend if - “and it’s a big if,” she said - the council decided removal from the bench was too harsh.
Cavalluzzo suggested counselling or a formal apology might be adequate alternatives.
Matlow’s case is one of only eight such matters the CJC has dealt with. Only once before has the council made a formal recommendation to the minister of justice that a judge be removed from office. In 1996, it called for the ouster of Quebec Superior Court justice Jean Bienvenue, who resigned before the matter went before Parliament.
The CJC is also dealing with a matter involving Ontario Superior Court Justice Paul Cosgrove.
The complaint against Matlow was made in 2006 by City of Toronto solicitor Anna Kinastowski.
She disagreed with Matlow’s decision to sit in 2005 on a three-judge panel that unanimously ruled against a city proposal for a streetcar right-of-way on St. Clair Avenue, a matter known as the SOS case. Matlow’s decisions to hear five other matters involving the city also were questioned.
Kinastowski alleged that the 26-year veteran judge shouldn’t have sat on the SOS panel,
because he was involved with a community group called Friends of the Village, which had opposed a development project proposed by the City of Toronto and a developer in 1999, known as the Thelma Project. The development was planned for an area near Matlow’s home.
The inquiry committee report states that Matlow “failed in the due execution of the office of judge” for failing to remove himself from sitting on any cases involving the City of Toronto after he became part of Friends of the Village.
The committee also found Matlow guilty of misconduct for continuing his complaints against the city in October 2005 by delivering documents to a media outlet the day before becoming part of the panel that ruled on the SOS matter.
In testimony at the inquiry committee hearing, Matlow said he knew at the time that many other judges in the same position wouldn’t have sat on the SOS matter. But, he said, “every judge has to use his own discretion,” as they are not beholden to a specific set of ethical guidelines.
The inquiry committee, however, found Matlow failed to follow “generally accepted ethical standards for judges.”
Norman Sabourin, executive director and senior general counsel for the CJC, said after the hearing that it’s unclear when the council will release its written report on the Matlow case. The judges deliberated immediately following the hearing.