Biased Judge Rebuked

A judge is obligated to be a neutral third party arbitrator to a dispute. Any bias or favoritism shown to either side undermines the right to a fair hearing and a motion for a judge to recuse themselves for demonstrating a “reasonable apprehension of bias” happens from time to time.

I’ve read decisions where lawyers have made that motion and I have made that motion myself. It can be an intimidating process.

It’s rare to hear one actually make the news, as in this case, and it is most interesting because it deals with the bias by the judge towards believing police BECAUSE they are police, as if they are more trustworthy and infallible.

We have countless example of police acting unlawfully in court and out of court these days and it is encouraging for a judge to be publicly rebuked for ignoring the reality that police are people too who also may lie, cheat, steal, kill and being a police office does not make them immune from those actions.

The closing paragraph is interesting to. Have you ever been in court and been subjected to “crossed the boundary of appropriate judicial comment” …., “misinformed about Canadian law, and “belittled and criticized” him without giving him a fair opportunity to express himself.’

Appeal court overturns verdict of Ottawa judge over apparent bias in favour of police
Published on: April 17, 2014Last Updated: May 20, 2014 4:09 AM EST

OTTAWA — An outspoken Ottawa judge who professed he had “huge respect” for police officers and was “troubled” by the possibility he might have to make a finding that one wasn’t telling the truth has had a decision overturned by Ontario’s Court of Appeal.

The appeal court found that Ontario Superior Court Justice John McMunagle created the appearance of either a real or perceived bias in favour of the police when he ruled against a woman named Louise Laver.

Laver had brought a civil application against her daughter’s former common-law husband, Ontario Provincial Police officer Jeffrey Swrjewski, seeking a finding that money she gave him and her daughter, who is also a police officer, to purchase a home was a loan and not a gift.

On Thursday, the Court of Appeal ordered a new trial on the issue after finding that McMunagle repeatedly expressed concern in the January 2012 ruling about making a finding that a police officer was being untruthful.

“I have to make a finding of credibility, and I don’t want to do that with police officers and with senior police officers, because I — as my recently deceased father said, ‘Your reputation is like your virginity, son. You lose it once’ — and I don’t want to make a decision on the record, available to the public, where I am forced to say one side is being truthful and one side is not,” said McMunagle.

“I wouldn’t be so concerned if they were federal civil servants,” he continued. “Frankly, I wouldn’t be concerned at all, but they are Ottawa police officers, who I have huge respect for, given that I was a defence lawyer for 23 years, and reputation is all they have. It’s all we have as lawyers, judges, everybody, so I’m just letting you know. I’m very troubled by what I may have to do.”

Laver’s lawyer later assured the judge that he wasn’t suggesting Swrjewski was a liar, which seemed to relieve McMunagle.

“Okay, thank goodness, because I’m going to have a real hard time making that kind of finding. I think, except being called a child molester, being called a liar is about the worst thing you can possibly be called,” said McMunagle, according to the appeal court ruling. “Okay, so I just — okay, that makes me feel much better, because I’m not comfortable using that word with professional people.”

That created a reasonable apprehension of bias, the appeal court found.

“In my view it is clear that a reasonable observer would conclude that it was more likely than not that, consciously or unconsciously, the application judge would not impartially decide whom to believe,” Justice Kathryn Feldman wrote on behalf of the panel of three Court of Appeal judges. “The application judge’s comments indicate his partiality to the evidence given by police officers. Even though he gave other reasons for deciding whose evidence he believed, those reasons are tainted by his comments.”

McMunagle went on to say he wasn’t going to make a finding “nailing anybody’s reputation here.” However, McMunagle later made a number of “adverse comments” about the credibility of Laver that were based on what the Court of Appeal found were misapprehensions of the evidence or the law.

That, too, raised the appearance of a reasonable apprehension of bias, Feldman wrote.

Laver’s lawyer, Christopher Spiteri, said his client was completed deflated after being subjected to McMunagle’s court.

Spiteri called it one of the low points of his career seeing Laver after the hearing.

“Her faith in the legal system has been restored,” said Spiteri.

A complaint has been made to the Canadian Judicial Council, Spiteri added.

The decision also raises questions as to whether McMunagle — who is currently on a leave of absence from his judicial duties — can ever sit on another criminal case given his difficulty making findings about the credibility of police officers.

Ottawa criminal lawyer and former defence counsel association president Mark Ertel said it also might open the possibility of new appeals on cases where a police officer’s credibility was an issue.

“The Supreme Court of Canada has made it clear time and time again that police officers can’t be treated any differently than any other witness or else the system breaks down,” said Ertel.

Current Defence Counsel Association of Ottawa president Stuart Konyer said he was “very troubled” by McMunagle’s remarks. Defence lawyers would have “very serious concerns” about impartiality if he was assigned to a criminal trial, Konyer said.

It is not the first time an appeal court has chastised McMunagle for inappropriate remarks.

In 2012, a divisional court found that McMunagle “effectively bullied” a husband into accepting his ex-wife’s position on child and spousal support while making inappropriate comments about the Iranian heritage of federal public servant and former university professor Majid Rastegar.

In that ruling, the divisional court found McMunagle “crossed the boundary of appropriate judicial comment” with his remarks about Iran and Sharia Law, misinformed Rastegar about Canadian law, and “belittled and criticized” him without giving him a fair opportunity to express himself.