Justice Norman Douglas of Guelph, Ont., came "close to the line" but his e-mails to Crown attorneys and his public battle with an appeal court judge weren't enough to find him guilty of judicial misconduct, the Ontario Judicial Council ruled last week.
"No doubt Justice Douglas has learned a lesson from the events leading to this hearing, and from the hearing. From all accounts, it has been a hard lesson. There is nothing that he said or did that we are able to condone. However, considering all of the circumstances, we are not prepared to conclude that he engaged in judicial misconduct, although we are bound to say that his conduct was very close to the line. We have come to this conclusion because we believe that Justice Douglas is sincere in acknowledging his inappropriate conduct," wrote the four-member panel of justices Stephen Borins and Annemarie E. Bonkalo, lawyer Bruce Carr-Harris, and lay member Madeleine Aldridge.
The Criminal Lawyers Assocation filed a complaint against Douglas in February 2005 as a result of two Superior Court decisions that found the former prosecutor and long-time provincial court judge had a reasonable apprehension of bias in impaired driving proceedings.
It is only the second time the CLA has filed a formal complaint to the judicial council since its disciplinary process was revamped in 1994.
The rulings related to comments made by Douglas in "over 80" cases in which he questioned the decisions of higher courts and the defences put forward by criminal lawyers on behalf of their clients.
Superior Court Justice Kenneth Langdon said Douglas "showed a patent distaste both for those who defend cases of [impaired drivers] and for the law that the court is obliged to administer."
A few days before the deadline to appeal Langdon's ruling last August, Douglas sent a series of e-mails to senior officials at the Crown Law Office in Toronto.
Douglas asked in the e-mails if there would be an appeal of the Superior Court decision.
"If this case isn't appealed, I'm going to have to find a way around it or I'm going to be hit with recusal motions on every case — about 10 a week," wrote Douglas. In another e-mail, Douglas wrote "this is a great opportunity to have the Court of Appeal say something about how these cases are backlogging our courts."
John Pearson, the regional director of Crown operations in Hamilton, Ont., responded quickly and sent an e-mail that asked, "Do you want me to discreetly find out if an appeal is being contemplated?"
Communication with a judge about a specific case is contrary to the policies of the ministry, but in another e-mail, Pearson asked his colleagues if he should forward this information to the judge.
Two other Crown attorneys also sent brief e-mails to Douglas, informing him that a decision had already been made to appeal Langdon's ruling and that there should be no further contact with the Crown Law Office.
A few weeks later, in a lengthy ruling, Douglas criticized Lang-don's findings. This led Guelph lawyer Owen Haw to file a rare "writ of prohibition" motion in Superior Court, after Douglas refused to remove himself from an impaired driving proceeding.
Superior Court Justice David Corbett ruled in favour of the motion and found that Douglas had "descended into the fray" and was seen as a "protagonist" because of his personal views about the state of the law related to impaired driving offences.
The e-mails sent by Douglas were "completely inappropriate" and the judge had no business engaging in a "point-by-point analysis" of Langdon's ruling, said Corbett in his decision released Oct. 13, 2004.
The OJC panel noted that judges tend to be sensitive about having their decisions overturned by higher courts.
"Indeed, there may be nothing more disconcerting to a trial judge than to have his or her decision set aside by an appellate tribunal on the ground that he or she exhibited an apprehension of bias in deciding the case. But this is all part of a trial judge's job," noted the decision. "[Judges] are not to take issue in public with the decision of the appellate court, nor in their rulings or reasons for judgment in other cases. Nor should the judge contact the losing party to encourage it to appeal the decision, and to offer to assist in the appeal."
The ruling called Douglas' actions "major indiscretions" and said he "exhibited alarmingly poor judgment."
"He should not have communicated with the Crown Law Office to encourage it to appeal from Langdon J.'s decision in R. v. Moore and to offer to provide assistance in preparing appeal materials. He should not have used rulings and reasons for judgment in other cases as vehicles for criticizing Langdon J.'s decision in Moore and for justifying his views regarding the defence of 'over 80' charges. Nor should he have targeted the toxicologist, Dr. Ward, and placed a cloud over him and his testimony, by suggesting that he was, in effect, a gun for hire by the defence bar."
The panel concluded, however, since Douglas acknowledged his errors and admitted that he conducted himself inappropriately and in a way that he, as the only criminal law judge in Guelph, resulted in a loss of public confidence, that it wasn't prepared to find him guilty of misconduct.
Lastly, the panel recommended the attorney general pay Douglas' legal costs relating to his conduct hearing.