Judge who questioned lawyer about pregnancy among recent judicial council complaints

Judge who questioned lawyer about pregnancy among recent judicial council complaints

A judge who questioned a lawyer in court about her pregnancy and a judge who was alleged to have “inappropriately touched” another judge are among the complaints closed by the Ontario Judicial Council that were not sent to a public discipline hearing, according to the council’s most recent annual report.

The report, which covers the period from April 1, 2016, to March 31, 2017, says the council received 110 complaints about provincially appointed judges during the reporting period, and also dealt with an additional 18 complaints from the previous period.

Twenty-eight of the complaints were closed, nineteen were carried forward, and the remaining 81 complaints dealt with Hamilton judge Bernd Zabel, who faced a public discipline hearing last year for wearing a “Make America Great Again” hat to court the day after the U.S. presidential election. He was suspended without pay for 30 days.

The annual report provides insight into how the council deals with the majority of the complaints it receives about provincial court judges, as only a select few ever make it to a public discipline hearing. The rest are handled behind closed doors by committees generally made up of judges and members of the public. Only a summary of each of those cases is published in the annual report, with no identifying information.

A few of those complaints result in written advice to the judge, or a meeting with the chief justice, while the bulk of the cases result in no action being taken at all. In some instances it’s because the case deals with matters outside the judicial council’s jurisdiction. For example, the council cannot deal with complaints about a particular decision rendered by a judge; it can only deal with complaints about his or her conduct.

In another case, a female lawyer alleged she was subjected to “pregnancy discrimination,” according to the annual report, alleging that in open court she was “made to discuss her pregnancy and state of mind at different points in her pregnancy. She alleged that the questioning by the judge was unnecessary and unfair and that his tone was flippant and callous.”

A review panel at the council, having listened to audio recordings of the court appearance, said it was “concerned by the tone and manner of the judge’s interactions with the lawyer.” In a response to the panel, the judge said he had reflected on the interaction and apologized.

“The panel noted that it was important to ensure that the judge was fully aware of the importance of judges being sensitive to and respectful of the personal circumstances of persons appearing before him, particularly pregnancy and gender,” according to the case summary in the report.

The report said the judge met with the chief justice and “showed remorse” for his comments. The file was closed.

Ontario Court judges, who earned a base salary of $ 291,241 in 2017, deal with the majority of adult and youth criminal charges, but not jury trials or certain serious crimes.

Over at the Justices of the Peace Review Council, 47 new complaints were received in 2016 and an additional 22 complaints were carried forward from previous years. The council managed to close 40 files by the end of 2016.

The majority of the complaints were dismissed either because they were outside the council’s jurisdiction, or a review panel found the allegations did not amount to judicial misconduct. Four complaints resulted in written advice to a justice of the peace, and two were referred to the chief justice.

The bulk of the complaints stemmed from provincial offences court, which the review council noted is the only court that most members of the public will ever face, as it deals with traffic and bylaw offences, among other things.

Several of the complaints that led to JPs getting written advice dealt with their tone and level of patience in court, as some had been accused of being brusque and cutting off self-represented defendants.

In one notable case, a JP questioned a woman, who was in court to deal with a speeding ticket, on her choice of clothing. The complaints committee said it was “concerned by the abrupt, inappropriate nature of His Worship’s conduct and comments towards the complainant.”

As soon as the woman said good afternoon, the JP responded: “Do you promise me that this is the last time you’re going to ever come to a court dressed like that?” according to an excerpt of a transcript included in the annual report.

The woman said she promised. The JP responded by saying that it wasn’t funny, and added, “You lose respect for the last bastion of justice. You don’t do that. If you have no justice you have nothing in any country.”

According to the complainant, she had arrived from work on her lunch break, wearing a sleeveless top, a skirt and dress shoes. She also said that before hearing her case, the JP dealt with a man wearing shorts and flip-flops but did not comment on the man’s attire.

There is in fact no dress code for court, except a prohibition on sunglasses and hats, unless needed for religious or medical reasons, the committee said. While the committee found the JP’s comments did not amount to judicial misconduct, it remained “concerned” that he “did not appear to understand why there was some merit to the complaint, nor why his course of conduct was not appropriate.”

The JP reflected on his conduct and met with the chief justice, the committee said.

“He regretted that the complainant left the courtroom feeling that she had not been heard,” the committee said. “His Worship now understands that there is no specific legal requirement for the dress code in the courtroom, and he must be mindful that he does not make remarks that could be seen to be discriminatory.”

The file was closed.

Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant

TORONTO STAR

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