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When a judge refuses to recuse

|Written By Julius Melnitzer

Somehow the fact that Ontario Superior Court Justice David Marshall owns properties in the Haldimand Tract, which is part of the Caledonia land claims dispute, has got lost in the woodwork.

It won't be one of the issues that will be resolved when the Ontario Court of Appeal renders its decision on the most recent appeal from Marshall's rulings in the case.

But Marshall's interest wasn't lost on former Ontario Premier David Peterson, now chair of Toronto's Cassels Brock & Blackwell LLP. At the behest of Ontario Premier Dalton McGuinty, Peterson spent six weeks in May and June negotiating the removal of four road barricades erected by parties to the dispute.

Marshall's holdings, of which he has never made a secret, didn't help the negotiations.

"The natives didn't feel that the courts were dealing with them fairly," Peterson told Law Times. "Marshall's proprietary interests were a big political issue that sure as hell were repeatedly raised by aboriginal representatives.

"It made for a very weird process that was most unhelpful to building understanding."

As it turned out, Marshall's interests were raised only briefly by lawyers for Six Nations at various stages of the proceedings.

"When we got to the Court of Appeal, other things were occupying people's minds, because by that time everybody was pretty well agreed that Marshall did not have the power to put an end to negotiations," says Dennis Brown of the Crown Law Office, who represents the province.

It may well be that Six Nations' counsel concluded that a recusal request was not meritorious or made a tactical decision that the issue was no longer worth pursuing. But the outstanding question is whether the administration of justice can afford to leave questions as to judicial impartiality lingering in the public mind.

All the public knows, for the most part, are the bare facts that Marshall owns land in the disputed area. However, the public also knows that when asked to recuse himself, Marshall refused, stating that it would be difficult to find a local judge who didn't own land in the disputed tract.

Unfortunately, that argument is disingenuous. It is common practice for Ontario courts to assign judges who do not reside in a locality to a case where it appears that local judges may have a conflict of interest or where their appearance may create an apprehension of bias.

More unfortunately, perhaps, it turns out that recent resolutions of the issue of judicial impartiality - which constantly creates headlines in discussions of the judicial appointment process - have been equally unsatisfactory.

Perhaps the most distasteful affair of the lot is the involvement of Justice Theodore Matlow of the Ontario Superior Court on the Divisional Court panel that initially issued an order stopping construction on the St. Clair Avenue streetcar line in Toronto.

After the panel made its order but before it issued its reasons, the city brought a motion seeking Matlow's recusal and a new hearing before a reconstituted panel on the basis of Matlow's high-profile opposition to a joint venture between the city and a developer for the construction of a retail-condominium development just a few doors from the judge's residence in tony Forest Hill.

The public was treated to the unsavoury spectacle of Matlow writing a 20-page tome that amounted to a highly personal defence of his refusal to recuse himself. Coupled with Matlow's decision was a five-page judgment from his fellow panel members, justices Susan Greer and Ellen Macdonald, who - in a fine display of judicial footwork - lacked the gumption to say that Matlow ought to recuse himself and instead struck the entire panel because, "We conscientiously believe there is a perception of bias."

One expert on judicial ethics, who spoke on condition of anonymity, agreed with the majority's ruling.

"Although the dispute that was the subject of the bias allegation was not the same dispute before the court, there was clear evidence that Matlow had some animosity to the city," the expert said. "And a reading of his reasons makes it plain that he didn't have the objectivity to decide this dispute."

Subsequently, a new panel ruled in the city's favour.

"The end result was that the ratepayers snatched defeat from the jaws of victory," says Brian Gover of Stockwoods LLP, who represented the ratepayers on the recusal motion. "The city didn't seek costs, but just think on the impact of access to justice when this kind of thing happens to a ratepayers association. They promptly gave up the legal battle in favour of political initiatives."

The rules governing judicial impartiality are found in the Canadian Judicial Council's Ethical Principles for Judges, promulgated in 1998.

They require judges to refrain from participation in public discussions which in the mind of reasonable observers would undermine confidence in a judge's impartiality "with respect to issues that could come before the court" (emphasis added). The principles also preclude judges from taking part publicly in "controversial political discussions" except in matters relating to the administration of justice.

Where the issue of recusal arises, judges should disqualify themselves in any case where they believe that a "reasonable, fair minded, and informed person would have a reasoned suspicion of conflict between a judge's personal interest (or that of a judge's immediately family or close friends or associates) and a judge's duty" - unless the matter "is trifling or would not support a plausible argument in favour of disqualification."

According to Gover, these rules put a premium on the appearance of impartiality. Indeed, the principles are fraught with phrases such as "public perception," "reflect adversely," and "could give rise to the appearance."

The difficulty is that - as in the case of Marshall and Matlow - there is nothing to stop the unseemly public perception that emanates from recusal issues left to the vagaries of the adversarial system alone.

In the Caledonia piece, the parties decided not to press the issue and left it hanging. In the St. Clair case, the parties pushed it to the point where two judges of the Divisional Court, regardless of how they phrased it, believed that Matlow's continued participation was unsavoury, creating a spectacle that was hardly necessary.

The Ethical Principles for Judges are a fine piece of philosophy. But surely it's time for a procedure that preserves the appearance of justice regardless of the directly affected parties' interest in pursuing it.

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