Judge slammed for appearance of bias

A Superior Court judge has barred an Ontario Court colleague from presiding over a man’s trial after concluding he appeared biased against the defendant.

The lawyer for Gregory Chue, who was on trial for driving over 80, was so alarmed by the manner in which Ontario Court Justice John Ritchie dismissed his client’s application under the Charter of Rights and Freedoms in the case that he took the rare step of applying to have the judge prohibited from continuing with the trial.

In an even rarer decision granting the prohibition, Superior Court Justice Ian Nordheimer quashed Ritchie’s decision on the Charter application and ordered the case to go back before another judge.

“Unfortunately, the actions of the trial judge, taken collectively, would, in my view, leave an informed and reasonable outside observer of the proceedings with the distinct impression that the trial judge had predetermined the result of the s. 11(b) application, if not the likely outcome of the proceeding as a whole,” wrote Nordheimer in his Sept. 19 decision.

Nordheimer said it was difficult to reach any other conclusion given that Ritchie had heard trial evidence before the pretrial motion over the objection of defence counsel; rejected any consideration of comparable decisions by fellow Ontario Court judges; and delivered his reasons immediately after the defence lawyer finished submissions without asking the Crown to clear up the judge’s own confusion over its position.

“It would be contrary to the principles of justice, and fundamentally unfair to the rights of an accused person, to insist that the trial proceed to its conclusion,” Nordheimer wrote.

It’s not the first time Ritchie has faced a rebuke by a Superior Court judge. Back in 2004, the court overturned a conviction by Ritchie for driving over 80 because his “boilerplate” reasons were “so deficient as to amount to no reasons at all.”

A review of five different cases showed Ritchie used virtually identical statements in his reasons with different names inserted.

In R. v. Punzo, Ritchie said he didn’t believe the testimony of the defendant and a friend who appeared on his behalf. After reviewing the evidence, Superior Court Justice Anne Molloy said she saw two possibilities.

“Either the trial judge misapprehended the evidence and based his adverse credibility findings on inconsistencies that did not exist, or he did not consider inconsistencies, but merely said that he did because this is part of the boilerplate he uses in every case. Either alternative is problematic,” Molloy wrote in the Feb. 9, 2004, decision.

“This is the second time his honour has had to be reminded by an appeal court to approach trials fairly and of the overarching importance of justice being seen to be done and not only being done,” says Paul Burstein, president of the Criminal Lawyers’ Association.

“I’d venture to say 99.9 per cent of trial judges never need to be told that even once in their trial career. He’s now been told twice. That’s appalling.”

Burstein says it’s imperative that judges listen in court with an open mind and that they appear that way.

“This is so fundamental to the job of a judge that they should never have to be reminded. It’s what judges get paid to do. If anyone else shirked their employment responsibilities in such a fundamental way, they’d risk being terminated or suspended.

The only one financially penalized by all this is the defendant for having to fight so hard to get what he was entitled to without any question at first instance.

“It’s refreshing and encouraging to see an appeal judge committed to that fundamental principle of justice being seen to be done and that he was willing to call Justice Ritchie on it.

All too often, an appeal judge would probably be prepared to presume good faith on the part of a trial judge, as they probably should. In this case, he was obviously convinced by the overwhelming evidence.”

Chue faced Ritchie on April 11, more than 14 months after he was charged. An earlier trial date in November 2010 fell through after the Crown was late in responding to a Charter application by Chue.

Chue’s lawyer, Jonathan Rosenthal, was ready to argue a pretrial s. 11(b) Charter motion for a stay of proceedings on the grounds of delay, but Ritchie instead asked to hear from civilian witnesses who were due to testify at the trial.

Rosenthal objected and provided a Court of Appeal authority that disallows trial evidence from being heard before pretrial motions. “Thank you. I am going to do it. That is the way we are going to proceed,” Ritchie told Rosenthal, according to a transcript of the proceeding.

In his decision, Nordheimer said he could accept that Ritchie was being mindful of the convenience of the civilian witnesses but said he had gone beyond his authority in doing so and that a reasonable observer might conclude that he had already decided to dismiss the application and wanted to avoid losing their evidence when the trial started.

After the evidence was heard, Rosenthal got into his submissions on the Charter application and began to cite Ontario Court of Justice decisions where judges had granted stays on the grounds of delay.

Ritchie interrupted to give Rosenthal a “little heads-up.”
“I do not really put much stock in provincial court decisions.

The decisions of my colleagues, of course, are not binding on anyone. They have extremely limited precedential value and they go all over the place,” said Ritchie, who explained that he preferred to focus on decisions from the Supreme Court of Canada and the Ontario Court of Appeal.

But Rosenthal persisted, arguing that decisions from Old City Hall in Toronto, where Ritchie sits, would be useful for establishing what sort of delay was reasonable in that particular jurisdiction.

Nordheimer said the refusal to consider his colleagues’ decisions created an appearance of a closed mind. He noted Ritchie had the option of limiting the number of cases referred to or sticking to decisions rooted in similar facts.

“It is a much different matter, however, to categorically reject the entire body of case law emanating out of the very court of which he is a member,” Nordheimer said.

According to the transcripts, Rosenthal at one stage commented that the judge wasn’t actually looking at the authorities he was referring to.

“If my submissions aren’t helpful to you, I won’t make them,” Rosenthal said, adding that it looked as though the judge was reading trial materials.
Ritchie, however, assured him that “I am listening to you.”

As soon as Rosenthal finished, Ritchie began to deliver his ruling that dismissed the Charter application. Rosenthal, who then asked Ritchie to recuse himself, said it was clear the judge had prejudged the application.

Ritchie refused, saying he had listened carefully and made notes as Rosenthal spoke. He also rejected accusations that he had a closed mind.

During a recess for lunch, Rosenthal filed the application for prohibition, but Ritchie insisted on continuing with the trial. Following an adjournment later that day with Chue still to be heard, the trial never progressed any further because Nordheimer ordered that the application should go forward first.

Nordheimer, who said he wouldn’t rule on whether Ritchie had prepared his reasons in advance, noted there’s nothing wrong with sketching them out as long as judges keep an open mind.

“I do not say that the trial judge here did not have that open mind in fact but, unfortunately, it was not evident in appearance,” Nordheimer said.

Burstein, who paid tribute to Rosenthal for the way he handled himself during the hearing, isn’t the only lawyer to express concerns with Ritchie.

James Lockyer, a Toronto criminal lawyer who has never appeared in front of Ritchie, said the judge “does have a reputation among the defence bar and beyond for being a judge you’d like to avoid if you can.

I think the various decisions that have come down really criticizing his judging perhaps only represent part of the iceberg.”

Ritchie couldn’t be reached for comment last week. An assistant said he was out of the country.

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