Last Thursday, the four-member panel chaired by Ontario Court of Appeal Justice Eileen Gillese, and composed of associate chief justice of the Ontario Court Annemarie Bonkalo, Ottawa lawyer Bruce Carr-Harris, and a member of the public heard submissions from Morten's counsel and lawyers for various media outlets opposing the presiding counsel's motion for a publication ban. Such a ban might have given the impression that there was one rule for judges and another rule for everyone else.
The panel agreed with lawyers for Morten and the media outlets that holding open hearings is in the public interest. The panel ruled presenting counsel for the OJC, Douglas C. Hunt's argument that public testimony from other judges at the Brampton courthouse would be harmful to the administration of justice was mostly speculative.
Full written reasons will be realeased this week.
The conduct of Morton, 61, is being investigated by the OJC following the filing of a complaint last October that alleged misconduct between April 2000 and May 2004. The complaint alleges Morten called into question the competence and work ethic of his fellow judges in the Brampton courthouse, that he was rude, insulting, and disrespectful towards court staff and fellow judges, and voiced disparaging and insulting opinions in court and in court operation correspondences.
Morten is also accused of specific misconduct at a 2002 criminal trial, where he allegedly repeatedly interrupted a defence lawyer, took over questioning of the accused and, when the defence objected, called security officers to the courtroom and threatened to place the lawyer in custody.
Hunt, of Hunt Partners LLP in Toronto, who brought the motion for a publication ban on the hearing, said there are exceptional circumstances in this case and that an in camera proceeding would be in the public's interest.
Because the hearing would involve testimony from sitting judges at the Brampton court, the administration of justice could be compromised if someone were to read about a judge who was trying his or her case.
"The interests of the media in reporting . . . is not a matter of extreme importance," he said at the hearing. "For the week or months of the hearing, citizens are going to have to appear before judges that have been the subject of ridicule and criticism" criticism that might be scandalous or even libellous, Hunt told the panel.
Hunt said some of the evidence put forth could suggest Morten carried on a course of conduct that involved outbursts of extreme anger, bordering on "bullying."
Counsel for Morten, Robert G. Schipper, said those claims paint a very one-sided picture and he will be presenting evidence and witnesses to the contrary, and wants to do that in a public forum. He said due to the nature of the allegations, all of the judges in Brampton already know what's going on.
"This matter has been going on for over two years . . . and the court still manages to function," he said.
This in stark contrast to the position of former justice Kerry Evans, who wanted his hearings into allegations made by six employees of the courthouse at Barrie, Ont., conducted in camera, before eventually beating the OJC to the punch by resigning in 2004.
Morten, who was named by the City of Brampton as citizen of the year in 2002, and his family have suffered enough embarrassment by initial media reports and he wants a chance to clear his name publicly, Schipper told the panel.
The allegations simply boil down to a difference of opinion in court administration, said Schipper. "He wants an opportunity to be vindicated publicly. Justice Morten is willing to stand up. He has nothing to hide and he's not ashamed of anything."
Schipper said the public has the right to know that there are differences of opinion on how the court should be run and that this won't interfere with the administration of justice, as judges are capable of doing their jobs in the middle of something like this.
"Business is still going to go on," he said.
Counsel for various media outlets, Paul Schabas and Peter Jacobsen, submitted that the OJC has no jurisdiction to issue a publication ban in any event, according to s. 51.6 of the Courts of Justice Act, except in circumstances surrounding allegations of sexual assault, which this case does not involve.
A publication ban in these circumstances could be viewed by the public as hypocritical, said Jacobsen.
"Our courts often require people to state in public unflattering remarks about other people," he said. "We see it in the criminal courts every day."
Basically it would set up a special regime for judges, giving the impression that "there's one rule for judges and one for the public."
"Is our administration of
justice so fragile that it can't function because of a hearing into allegations against Justice Morten?" asked Jacobsen.
Schabas agreed and said he was astonished by presenting counsel's motion, as he can see no basis in law or evidence to support a ban. He said because the decision of the panel could warn, suspend, or remove Morten from the bench, the public has a right to know.
"His ability has been called into question," said Schabas, "and the public has the right to know how and why the panel came to their decision."
Schabas said the evidence may or may not be inflammatory, but it is up to the panel to find out.
"It might be libellous, but for all we know it might be true," he said. "That's for the panel to decide. The administration is stronger than Hunt suggests.
"Justice is not a cloistered virtue," Schabas said, "it's about the workings of a court."
The hearings into Morten's fitness to remain on the bench begin in May.