A Toronto lawyer who clashed repeatedly with a judge during a murder trial wants to change the way judicial complaints are dealt with after the Canadian Judicial Council rejected his complaint.
Toronto criminal lawyer Paul Slansky filed his complaint against Ontario Superior Court Justice Robert Thompson almost seven years ago following the retrial of Vytautas Baltrusaitis on a murder charge dating back to 1994.
Baltrusaitis was acquitted at the retrial, but Slansky still complained to the CJC that his client hadn’t received a fair hearing. He alleged Thompson was abusive, rude, and bullying and that he had done his best to ensure a conviction.
Thompson denied those allegations and launched his own complaint against Slansky to the Law Society of Upper Canada about the lawyer’s conduct in the trial. Thompson said he had verged on finding Slansky in contempt for disruptive and disrespectful behaviour in court.
Neither of the competing complaints resulted in misconduct findings. Slansky, meanwhile, has now launched an application for judicial review of his complaint. He alleges the CJC investigation was “anemic” and that its whole process “of having judges judging judges’ misconduct is unconstitutional” and appears biased.
Rocco Galati, who represents Slansky in the judicial review application, says he’d like to see a more independent mechanism for dealing with complaints against judges. “I don’t think judges should hear these complaints. The whole system leaves a lot to be desired because it’s not just judges investigating judges.
Then if you’re dissatisfied, you have to go back to a court. What’s at stake here is public confidence in the administration of justice and the transparency in dealing with complaints against judges that appear to hold water.”
Slansky’s complaint was closed in March 2006 when CJC general counsel Norman Sabourin sent the lawyer a letter with Manitoba Chief Justice Richard Scott’s conclusion that Thompson had “clearly kept an open mind about the guilt of the accused” and ensured both sides were able to advance their positions in a fair and thorough manner.
Sabourin also wrote that Slansky had appeared to provoke the judge and behaved at times in a way that was “highly unwarranted.”
“While the conduct of the judge may at times have fallen short of the ideal, Chief Justice Scott has concluded, for the reasons outlined above, that his conduct does not constitute judicial misconduct,” Sabourin wrote.
That explanation wasn’t good enough, according to Galati. “They found the judge’s reactions were justified in reaction to Mr. Slansky,” he says. “I say no improper reaction is ever justified in reaction to anyone. The judicial council has to review the actions of the judge, not the actions of the lawyer.”
A recent decision by Federal Court prothonotary Martha Milczynski ordered the CJC to turn over its report on Slansky’s complaint against the objections of its lawyers who claimed it was subject to solicitor-client privilege and that its release could hamper future investigations.
Facts in the report by University of Toronto law professor Martin Friedland were key to Scott’s finding that Thompson’s actions didn’t constitute judicial misconduct. While Milczynski ruled that portions of the report had entered the realm of legal commentary, she said it could be released with those portions redacted.
“I am satisfied that there is a public interest in knowing how the CJC deals with complaints against judges to ensure the public has confidence in the integrity of the process and to also ensure that the application for judicial review can be conducted in a meaningful way,” she wrote in the April 19 judgment.
Slansky took on Baltrusaitis’ case in 2002. He won a retrial on appeal of the man’s 1996 conviction for the murder of his brother. The pretrial and trial took more than a year, culminating in Baltrusaitis’ acquittal by a jury in July 2004.
Both sides paint a picture of a trial characterized by testy exchanges and frequent applications for mistrial.
In an affidavit filed with the Federal Court dated May 31, 2006, Slansky said the trial was the most difficult one of his career, “primarily because of the bias and misconduct of Justice Thompson,” and had resulted in the end of his criminal defence practice after 15 years. Slansky became a Crown counsel prosecuting occupational health and safety matters following the trial but has since returned to criminal defence.
“Justice Thompson was frequently abusive, rude and bullying,” he alleged. “However, my primary concern was his repeated, unwarranted, and concerted efforts to frustrate my ability to make full answer and defence for my client. Justice Thompson appeared to expect me to back down and accept everything he did.
It was more than obvious, in my professional view as counsel for the accused, that Justice Thompson, through his actions, demeanour, and rulings, was making it clear that he was doing his best to ensure a conviction.”
According to Slansky’s complaint, Thompson yelled at him and the Crown attorney in the case, imposed arbitrary time limits on his submissions, and showed bias in his rulings on admissible evidence.
The final straw, according to Slansky, occurred when he was confined to the courthouse on the third day of jury deliberations despite staying at a hotel that was less than a three-minute walk away.
In his response to the allegations, filed the same day as his law society complaint, Thompson said Slansky’s claims were a “pre-emptive strike, in an attempt to forestall his having to face the consequences of his conduct during the trial.”
“The fact is that Mr. Slansky, from time to time during the trials, was completely out of control,” Thompson wrote, adding he believed the lawyer was deliberately trying to have himself cited for contempt so that he could force a mistrial.
Thompson also complained about exchanges in which he alleged Slansky had compared the court to a “son of a bitch” and described the trial as a “farce.”
In his affidavit, Slansky said the “son of a bitch” comment wasn’t aimed at the court and that the “farce” remark was justified in the context of his submissions.
The CJC has until May 9 to file Friedland’s redacted report with the court.
