A former North Bay, Ont., justice of the peace has failed in his bid for reinstatement two years after he was removed for asking a superior to make an investigation into his behaviour “go away.”
Benjamin Sinai had asked for a judicial review of the 2008 commissioner’s report that recommended his removal and the order in council that formally ousted him, which he called unreasonable in the circumstances.
Sinai became the subject of a Justices of the Peace Review Council investigation in 2006 following accusations that he pressured a traffic court defendant into a guilty plea.
In the meantime, he took a leave of absence to recover from stress and suggested to staff at the regional senior justice of the peace’s office that he would be able to render two outstanding judgments if they could make the investigation “go away.”
The move prompted a full-scale public commission of inquiry before Justice David Carr of the Ontario Court of Justice that sat in January 2008.
In March of that year, Carr released his report recommending Sinai’s removal from office. An order in council from the lieutenant governor of Ontario confirmed the recommendation six months later.
Sinai failed to call any character evidence at the original inquiry. In explaining that decision in an affidavit to support his application, he noted his lawyer approached the case like a criminal trial in which the burden of proof is on the Crown as well as his fear that he’d be unable to express himself properly because of his stress.
He submitted fresh evidence on those issues in his quest for judicial review.
“I take responsibility for my decisions not to call character evidence, not to call medical evidence, and not to testify myself,” he wrote in his affidavit.
“I did not appreciate at that time that, without my explanations and apologies with respect to the complaints against me, my side of the story would remain unappreciated by the commissioner. I now see the calling of evidence at my hearing as the road not taken, the one I wish I had taken.”
In his reasons for dismissing the application issued on Nov. 17, Justice David McCombs, writing for the three-judge Divisional Court panel, said the evidence of William Brownell, a fellow justice of the peace, and Cathy Smith, a friend and neighbour, attested to Sinai’s “fine character” and backed up his own expressions of regret and remorse.
Sinai also presented medical reports showing his health had improved. Sinai couldn’t be reached for comment by press time and his lawyer on the Divisional Court matter, Jill Presser, declined to speak about it.
Gavin MacKenzie, a partner at Heenan Blaikie LLP who represented the commission during its inquiry and in the review application, consented to the submission of the fresh evidence. He notes he tries to take a more neutral position when representing commissioners of public inquiry.
In fact, he believes Sinai could have achieved a different result if he had led the evidence at the time of the original commission.
“There are some types of misconduct where removal from office is the only serious option in order to maintain public confidence in the administration of justice, but I wouldn’t say this necessarily falls into this category,” MacKenzie tells Law Times.
“The commissioner thought the misconduct was sufficiently serious to justify his removal, but it may well be that if it had been introduced, the outcome could have been different.”
But McCombs wasn’t convinced the new evidence showed the original penalty was unreasonable, especially considering that Sinai had acknowledged all of the findings of misconduct.
“The applicant’s expressions of remorse and regret can fairly be viewed as belated in the extreme,” McCombs wrote. “The tardiness of his now-unqualified apology reveals a disturbing lack of insight and lack of appreciation of the impact of his misconduct on public confidence in the administration of justice.”
McCombs also rejected Sinai’s arguments that the commissioner had failed to consider any other disposition. He noted Carr had listed all of his available options in his decision while Sinai’s own lawyer never proposed any other specific sanction.
“The absence of a discussion as to why particular lesser sanctions were not adopted does not support the conclusion that the commissioner failed to consider alternative sanctions,” McCombs wrote.
McCombs also found Carr had taken Sinai’s serious health issues into account as well as their implications for mitigation but said he was justified in considering those same factors when determining whether he had become unable to execute the duties of his office.
Sinai’s troubles began on the morning of Sept. 5, 2005, when an uninformed defendant, Brian Lashbrook, appeared in his traffic court. At the time, he had been a justice of the peace for 24 years.
“Do you expect us to give you a whole education on what is to transpire?” Sinai asked Lashbrook, who replied that he had never been to court and had no idea about what he was supposed to do.
“In that case, I am just going to tell you suppose you plead guilty and we get rid of it this morning,” Sinai said.
As a result, Carr found Sinai had breached his duty to assist Lashbrook.
“Further, justice of the peace Sinai did not allow Mr. Lashbrook to comment on the facts, as alleged by the prosecution, and did not provide Mr. Lashbrook with sufficient information to properly deal with the matter of disposition,” Carr wrote in his report.
But he was even more concerned by what transpired later. After Sinai took his leave of absence, his regional senior justice of the peace, Jane Forth, wrote to him about whether he could complete two outstanding judgments, including one that had been reserved for more than a year.
Instead of speaking directly with Forth, Sinai pressed her assistant to “speak to her friend” and use her influence to make the council investigation “go away.”
Sinai never rendered his judgments, and one complicated case, R. v. North Bay Hospital, had to be rescheduled and heard before another judicial officer.