In a settlement agreement that avoids a long, difficult, expensive, and potentially embarrassing hearing, Brampton Justice Marvin Morten is allowed to keep his job but will be assigned to another courthouse.
Although Morten was accused of being "rude, insulting, and
disrespectful toward his judicial colleagues" and "voicing disparaging
and insulting opinions in open court," the particulars of the two
complaints against Morten will now be left to rumours and conjecture.
Two complaints were brought forward to the Ontario Judicial Counsel in 2003 by senior justices Timothy Culver and Ian Cowan relating to alleged incidents occurring between April 2000 and May 2004.
The complaints alleged Morten was not a team player and had been "rude, insulting, and disrespectful" towards fellow judges, attacking their competence and work ethic. They also accused Morten of voicing disparaging and insulting opinions in court and in court operation correspondences, in addition to specific misconduct relating to a 2002 criminal trial.
A deal was reached between Morten and his counsel, Robert Schipper, and presenting counsel Douglas C. Hunt as well as the two complainants after a day of negotiations at facilitator Patrick LeSage's Toronto office at Gowlings LLP.
"At the end of it we signed a memorandum of settlement which, to everyone's credit, especially to the justices Culver and Cowan, we were able to work out a satisfactory and final resolution to this issue," says Schipper.
"And it left Justice Morten in what I think is an excellent position."
The settlement, which Chief Justice Brian Lennox signed off on and the OJC approved, will see Morten, 62, move out of the courthouse at 7755 Hurontario St. in Brampton to a yet-to-be-determined courthouse in Peel region. He will continue to work full-time and collect his full salary of $213,000, benefits, and pension until he retires at age 65, but he will no longer be allowed to use Brampton courthouse support staff after relocation.
"They will try to find him a new office in Peel, so at some point he's going to move his office out of the courthouse in Brampton. The government will relocate him to another office in a courthouse," says Schipper.
"He will be assigned as the chief justice requires his special skill and expertise and services," says Schipper. "It's not that he won't be sitting as a judge in Peel per se, he's not going to be a sitting judge on a daily basis, but he's still a member of the court, he's still active, he's still full-time, and will continue to be assigned as and when required and that could take the form of, for example, being used for a long trial or a long preliminary or he may be assigned to clear the backlog in a courthouse in one place or another.
"He may be put in Toronto, for example, to clear backlog, or he may be assigned on a periodic basis to sit in Orangeville ? wherever he's needed and for whatever purpose he's needed."
Schipper says the way he sees it, the settlement is beneficial for all parties involved, and for the administration of justice as a whole.
The hearing into the complaints was scheduled to start on May 8, after the OJC panel, headed by Ontario Court of Appeal Justice Eileen Gillese, quashed Hunt's motion for a publication ban in February.
One of the interveners at that motion hearing, Toronto lawyer Munyonzwe Hamalengwa, representing Pride News Magazine, says that if no settlement was reached and the hearing went forward, the judicial system's weaknesses were going to be exposed in public for the first time in Canadian history.
"Judges would have given evidence in open court and been cross-examined in open, like any other witness in a case of similar nature. The sweat under their judicial collars would have been visible for all to see," he says.
Hamalengwa also says the system in Brampton would have been put under a microscope and a public hearing into the goings-on at the courthouse would have been more beneficial for the administration of justice than the settlement.
"The system was going to be exposed by the hearing. I believe the system needed to protect itself firstly by applying for a ban on publication, and when that failed, the mutiny had to be quashed by any means necessary," he says.
"The system can't say that one of their own is not fit to be a judge and should be removed and then settle down and negotiate that this same judge is fit to continue as a judge, albeit at another location."
Schipper says this is the first time in the province that a judicial complaint has been resolved through this type of mediated negotiation.
"To this point in time it's unprecedented and in my view it's very beneficial to all concerned, not just the immediate parties but also to the administration of justice and I think was an excellent result," he says.
Hamalengwa says in his view Morten came out on top.
"Instead of gracefully bowing out of the combat, as almost all judges under similar threat have done in the past, he had vowed to fight to the bitter end," he says.
