A Canadian Judicial Council inquiry committee has found Ontario Superior Court Justice Ted Matlow guilty of misconduct, and that there are grounds for his removal from judicial office.
“The inquiry committee concludes that Justice Matlow’s conduct is 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 65-page committee report, released last week, reads.
“Accordingly, the inquiry committee expresses the view that a recommendation for removal of Justice Matlow from office is warranted.”
Matlow, speaking through his assistant, tells Law Times that he has no comment on the report.
His lawyer, Paul Cavalluzzo of Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, says he will file a written response to the CJC regarding the report, and will appear before the council to comment on it. Matlow, a 68-year-old judge with 27 years of experience, has 30 days to file that response.
The council will make its recommendation to Minister of Justice Rob Nicholson on whether Matlow should be removed from office after hearing the judge’s response. A federal judge can only be removed from office through a joint resolution of Parliament.
Cavalluzzo says the inquiry committee in its report applied an “antiquated view” of a judge’s role in contemporary society.
“In this case, we had a judge who acted along with his neighbours, and at the end of the day it would seem to me that the neighbours and the public would have more respect for a judge for the kind of paricipation that Judge Matlow engaged in, rather than the opposite,” he says.
Cavalluzzo says the punishment Matlow faces is “totally not proportionate with the conduct alleged, even if there is room for criticism.”
Norman Sabourin, executive director and senior general counsel for the CJC, tells Law Times that there have been eight inquiry committees since the council was created in 1971. The council is currently dealing with two ongoing cases: the Matlow case and a matter involving Ontario Superior Court Justice Paul Cosgrove.
The council’s history suggests this isn’t the end of the line for Matlow. In 2003, the council disagreed with an inquiry committee’s finding that Quebec Superior Court Justice Jean-Guy Boilard had acted improperly. However, in that case the committee had not recommended the judge’s ouster. Both the Boilard and Matlow matters involve questions of judges’ recusing themselves from cases.
Sabourin says the CJC has only once recommended to the minister of justice that a judge be removed - a 1996 case involving Superior Court of Quebec Justice Jean Bienvenue, who resigned before he was officially removed from office.
The rare CJC inquiry committee hearing - conducted in January, with a subsequent sitting held in April, after the committee requested further evidence from court staff - came about after City of Toronto solicitor Anna Kinastowski filed a complaint in 2006.
The complaint was regarding 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 case known as the SOS case.
Kinastowski alleged that the veteran judge shouldn’t have sat on the 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.
At the January inquiry hearing, Matlow said he made an “error in judgment” in sitting on the SOS case, but not an error in law. He said he remained impartial during the case: “I had no views about the merits of it . . . I didn’t care at all what was going to happen,” he told the hearing.
The supernumerary judge who hasn’t been sitting on cases since April 2007 also told the hearing that he hoped to return to the bench in the future.
The inquiry committee consisting of chairman Chief Justice of Newfoundland and Labrador Clyde Wells, Chief Justice of the Superior Court of Quebec FranÃ§ois Rolland, Supreme Court of the Yukon Territory Senior Judge Ronald Veale, Saskatchewan Crown prosecutor Maria Lynn Freeland, and St. Catharines lawyer Douglas Hummell, made several findings regarding Matlow’s conduct.
It found that, by failing to remove himself from sitting on any cases involving the City of Toronto after becoming a leader of Friends of the Village, “Justice Matlow has failed in the due execution of the office of judge.”
The committee also found that because Matlow in October 2005 had renewed his allegations of the city misconduct even after the community group had ceased operations while at the same time hearing the SOS application, he “has placed himself in a position incompatible with the due execution of the office of judge and has been guilty of misconduct.”
The committee’s report goes on to say that Matlow’s expressions of regret were of “limited nature,” and failed to change their view of his actions.
The report states that Matlow failed to follow “generally accepted ethical standards for judges,” and suggested that it seemed he wouldn’t act differently in the future.
“Justice Matlow’s currently expressed views as to the propriety of his conduct at the time, and his current views as to conduct appropriate for a judge who becomes concerned about what he or she perceives as misconduct in public office, indicate little or no prospect that Justice Matlow would conduct himself differently in the future,” states the report.
At the inquiry, Matlow said he knew his decision to sit on the SOS case was something many other judges wouldn’t have done, but said, “Every judge has to use his own discretion,” as they are not subject to any specific code of ethics. He said the decision reflected his desire to “fulfill my own concept of a decent human being and judge.”
Matlow said he saw no similarities between the project he had opposed as part of Friends of the Village and the SOS case.
He added that he believed counsel for the city acting on the SOS case knew of his involvement with Friends of the Village, and would have expressed any concerns about his sitting on the case, but did not do so.
But Matlow admitted that he would have acted differently on the matter in some ways.
He told the hearing that he shouldn’t have given documents to the Globe and Mail regarding his criticism of the Thelma Project - which included criticism of city lawyers - a day before sitting on the panel that heard the SOS case.
Matlow said he renewed his opposition to the Thelma Project at that time because of the release of a report on the MFP computer-leasing scandal at the City of Toronto. He told the hearing that he was “struck by the similarity” between the Thelma Project and MFP.
Sabourin, speaking at press time, says the council has not received any response from Matlow or his lawyer regarding the report’s findings.
“The key decision, obviously, will be when the council deliberates the report and at that time will of course take into account any submissions Justice Matlow wishes to make, and any submission by the independent
counsel,” says Sabourin.