What is the Measure of a Judge?

 Mark Twain said, “Action speaks louder than words but not nearly as often,” can such a simple yardstick be sufficient as a guide to judge Judges? Judges themselves would surely as a collective find it extremely impudent that anyone other than a judge would ever judge them. Yet in our modern society how can we allow such a small group of individuals to wield such absolute autocratic power? As J.J. McCullough of the Washington Post referred to Supreme Courts as an “institution of an arbitrary and unaccountable nine-member oligarchy.”

For so long our society has had an absolute trust and respect in our judiciary. Our democratic governments take such pride in the separation of state and bench in fact to such a degree that the judiciary is nothing more than an all powerful autocratic institution who are free of all consequence for their actions. Even our politicians can face senate or parliamentary hearings, legal action or in the very least they can be voted out of office. Can a judge be voted out and off the bench? The answer is no. There are those who will point to the Canadian Judicial Council where complaints relating to judges are directed for adjudication. Simply look at who comprises the Council and ask what has the Council done sine it was formed in 1971.

In 1998 the CJC published the Ethical Principles for Judges and in its Forward written by the Honourable Beverley McLachlin, then Chief Justice of Canada in this opening statement: “The ability of Canada's legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges.” This 60 page document is not a code of ethics for judges to follow and page 9 clarifies that where it states; “The Statements, Principles and Commentaries are advisory in nature. Their goals are to assist judges with the difficult ethical and professional issues which confront them and to assist members of the public to better understand the judicial role. They are not and shall not be used as a code or a list of prohibited behaviours. They do not set out standards defining judicial misconduct.”

With headings like Integrity, Diligence, Impartiality, Judicial Demeanour and Conflicts of Interest, none of these 60 pages are anything more than guidelines. Judges don't need to really bother with them and with the absolute independence we grant them, we get what we deserve according to the Honourable Beverley McLachlin, former Chief Justice of Canada.

The Canadian Judicial Council is where complaints relating to judges are steered to be heard. I was advised of this fact by the Minister for the Attorney General and the Supreme Court of Canada, should there be confidence in this advice? Since its inception in 1971 the CJC's record is far from anything that builds credibility of judges judging judges. The reality is, the CJC resembles a bad television sit-com with the head of the family being the Chief Justice of Canada aided by all the Chief Justices and Associate Chief Justices from the provinces. So this exclusive club which handles complaints of ethical misconduct such as improper demeaner, failure to properly disqualify when a judge has a conflict of interest, engaging in exparte communication and failure to execute their judicial duties, has said that misconduct should not guarantee the judge's removal, the gravity of the misconduct must be determined.

The CJC does not think that misconduct by a judge, the breach of trust committed warrants consequence, rather the discussion is on how bad the committed misconduct is! Yet the severity of the misconduct is judged by judges who themselves may have committed similar misconduct. Retired Supreme Court judge Rosalie Abella in an interview with CTV, May 2021 said, “The good faith in Canada's judges, with wisdom and the intelligence is extraordinary. I don't have a slight hesitation, their ability to deliver justice to the Canadian public.”

So we are back to the opening question, what is the measure of a judge? Dale Carnegie, the famous American motivator, went a little further than Mark Twain when he said, “Pay less attention to what men say, just watch what they do.”

To watch what judges do is not easy as most of their actions relate to matters they hear as members of the bench. Their words, well they are spread out in public whether through legal journals, interviews with mainstream media or depending on their position more widely spread public appearances. The first judge to face the well articulated yardstick of Mark Twain or Dale Carnegie is Justice David M. Paciocco.

Justice David M. Paciocco sits on the bench of the Court of Appeal for Ontario. This is the highest court in the province and the court of last resort, as trying to have the Supreme Court to listen to you is extremely difficult. Justice Paciocco has authoured several books on criminal law, he is a professor of law and in 2005 was nominated to receive an Honorary Doctorate from Laurentian University. He is a legal scholar, and is considered one of Canada's foremost experts on the law of evidence. Paciocco was elevated to the Court of Appeal for Ontario in 2017.

Prior to being appointed to the Court of Appeal for Ontario Justice Paciocco had to submit to a questionnaire which the Judicial Advisory Committee then provides the Minister for Justice with a list of “highly recommended” and “recommended” candidates. Parts of these questionnaires are made public and it is a chance to hear directly from Justice Paciocco. One would think that whatever Judge Paciocco said had to carry real meaning to him and was not said to simply impress the Committee.

The first quote from Justice Paciocco relates to what he sees as the role of judges in our Canadian constitutional democracy. “In our constitutional democracy the role of a judge is to decide cases by applying the law, and never based on personal or political beliefs. The reason is simple. Without commitment to the ideal that judges must decide cases based on the law, there is no law, only power. Indeed, requiring judges to follow the law diminishes the risk that power will be abused. It insulates against corruption and discrimination. On our conception of constitutional democracy it is this that gives legal decision their legitimacy.”

If this view of judges deciding cases by applying the rule of law is true at all times and for all judges, then surely we could claim to live in an oasis of equality with no discrimination. Sadly an alarming fact remains, judges face serious questions of bias and their decisions questioned, even overturned, but without consequence to the judge. Judges hold immense power affecting the lives of individuals and the fall of that gavel can be as dramatic as a large rock attached to an ankle of an individual dropped into the ocean.

Justice Paciocco claims to view the parties who have a legal interest in the litigation as people, he refers to them as “faces” not “cases” and says, “In a society that respects the integrity of persons, sheer human decency requires that those who will be affected by the use of power be spoken to, and not simply about. It requires that a judge who makes a decision to absolve someone, or to impose a burden on someone, will explain why this is being done.”

The judge isn't wrong in the fact that those people who need to face the courts for whatever reason do so with fear and worry. If one can afford a lawyer to manoeuvre the twists and turns of the corridors of justice then their pressure is somewhat relieved. Today, many have been forced to self-represent, to try and learn the court's procedures and administrative nightmare. True the Supreme Court of Canada endorsed a document called the Statement of Principles on Self-represented Litigants and Accused Persons, but the reality is that the discrimination self-represented litigants face in all fronts of the legal system have not diminished at all.

A final worthy reference to the judge's musings should possibly sound alarm bells in anyone who listens. On the issue of the rule of law Justice Paciocco said, “that the rule of law assumes that the law is known, when, in fact, there is often controversy about what the law is. This enables judges to manipulate precedents, or to choose a conclusion and then find a reason for it. At the very least, it is said, the law is malleable enough that judges, seeing things from their own perspective, will choose to believe the law is what they want it to be. For this reason, some are openly critical of the integrity and worth of the rule of law. The reality, however, is that any power can be abused, and any power can be used poorly.”

It is possible to write a whole thesis on such a statement by someone considered to be a legal scholar. At the same time these words by a judge beg the question whether such sentiment comes from experience or witness. Either way, any individual who believes that a judge has the right to command automatic respect or trust in his or her position as impartial and unbiased adjudicators has lost their standing.

Justice Paciocco's words raise a high level of confidence in the kind of judge he strives to be, but before comparing his actions in the real arena of court and his decisions there is value to review another judge of the Court of Appeal for Ontario. Justice Peter Lauwers was appointed to the Court of Appeal in December 2012 after serving as a judge on the Superior Court of Justice of Ontario since July 2008.

Justice Lauwers comes across as a thinker, he ponders on the Charter of Rights and its relevance in the rule of law, he seems to bathe in the psychology of judgeship and has even appeared to have some level of deference to the self-represented litigant. In a decision, Lauwers wrote for the Court of Appeal for Ontario cited as Grand River Conservation Authority v Ramdas, 2021ONCA 815, spending some eight paragraphs relaying his observations on self-represented litigants.

The numbers of self-represented in the courts are growing monthly and the reason is simple, lawyers have made it impossible for many to be able to afford them. Justice Lauwers acknowledges that the Supreme Court of Canada endorsed the Statement of Principles on Self-represented Litigants and Accused Persons in Pintea v Johns, 2017 SCC 23. He provides advice to apposing counsel on the treatment of self-represented opponents, even makes reference to Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants, Irvine: American College of Trial Lawyers, 2009.

Possibly one of the most important points Justice Lauwers raises is at paragraph 21 where he states that it is, “open to a judge to engage in active adjudication in order to obtain relevant evidence from a self-represented party who might not fully understand what is relevant and what is not.” He goes on to say that a judge is constrained by the principles of impartiality in how he or she helps make the judicial process accessible stopping short of becoming their advocate. Do the constraints of principles of impartiality prohibit a judge from going in the opposite side of being helpful to obstructive?, Justice Lauwers does not raise such a prospect.

Besides his apparent appreciation of the challenges that self-represented litigants face Lauwers has delivered speeches reflecting on Charter Values, and even making a call for Judicial Humility. In January 2018 Justice Lauwers delivered a speech at the Runnymede Society which he entitled 'A Call for Judicial Humility'. The Runnymede Society was founded by the Canadian Constitution Foundation in 2016 as a national student membership organisation dedicated to the ideas and ideals of constitutionalism, liberty and the rule of law.

In the opening to his speech Lauwers says; "If Dicey was suspicious of administrative tribunals, I am suspicious of judges, starting with myself. But so is the system of justice. Knowing from experience how seductive the size of power can be, the system of justice puts many constraints on judicial decision making." The 'Dicey' that Justice Lauwers pays homage to is Albert Venn Dicey (1835-1922), a British jurist and constitutional law theorist who wrote An Introduction to the Study of the Law of the Constitution (1885), and he fathered the belief that no one is above the law.

Lauwers goes on to say, “We are limited in what we can do by the issues in the case we hear, and by the evidence the parties adduce.” According to Justice Lauwers judges are “obliged to give reasons for our decisions that display the qualities of accountability, intelligibility, adequacy and transparency.” There is no mention of any consequences if the “many constraints on judicial decision making” are in fact breached by a judge. Are these “constraints” simply there as threats or are they real? Who do judges answer to?

The speech by Lauwers then evolves into discussion of human cognition and judging. According to Justice Lauwers there has been recent psychological research showing the need for constraints on judicial powers. He says that modern psychology now demonstrates that constraints are necessary, something “our ancestors” intuited from observation and experience. Yet what is the point of developing constraints when there is no one to enforce breaches and consequences?

Continuing, Justice Lauwers touches on a darker side of our system of justice, the psychology of judges. He says, “We understand that judges are imperfect human beings.” Is this to be taken as the beginning to an all encompassing excuse? Further Lauwers drops what any clear thinking individual would be alarmed over. “However, the evidence is that judges – like most adults – do not easily convert their emotional reactions into orderly, rational responses. When emotions take over, they distort deliberative reasoning, which can be transformed into motivated cognition or motivated reasoning. When that happens, instead of an impartial assessment of the evidence and the arguments, the decision maker looks for evidence and arguments that support the desired outcome in a way that is not impartial.”

How much human imperfection is society willing to accept in judges considering how much power is given to judges without any real oversight? There are no code of ethics for judges to follow and any complaints are handled by judges against judges. Judicial independence is constantly pushed to a point that a sitting government will not intervene when a judge breaks the law.

Towards the end of his speech Justice Lauwers says, “In our culture we do not understand judges to be Plato's 'golden-souled philosopher kings', disinterested and dispassionate. We understand that judges are imperfect human beings. The psychological research demonstrates that the broader the range of unbridled discretion open to a decision maker, the more likely it is that cognitive illusions, personal biases and attachments, will play a role in decisions. And that is just wrong.”

Dale Carnegie said to pay less attention to what men say and we have heard from both, Justice David Paciocco and Justice Peter Lauwers. Both Judges sit on the Court of Appeal for Ontario, the highest court of Ontario. It is time to examine what they actually do.

Both Justices sat on a Panel Motion at the Court of Appeal in December 2021. This Panel Motion was an appeal to overturn a decision made by a single judge who heard a motion at the COA. The grounds for the appeal were very serious ones, breach of the Courts Justice Act s. 132, breach of the Principles of Judicial Office, breach of Ethical Principles for Judges as published by the Canadian Judicial Council dealing with foundation principles of Impartiality and Conflict of Interest, and breach of the Charter of Rights. The panel comprised of Justice Peter Lauwers (president), Justice David Paciocco, and Justice Thorburn JJ.A.

What was before this panel of judges was very serious. Justice Michal Fairburn, Assistant Chief Justice of Ontario, had willfully and with intent breached the law. The material filed for the panel to consider was impossible to deny or argue, and the moving party for the motion were self-represented litigants.

Justice Paciocco has been quoted as saying that “parties must be spoken to as real people,” and Justice Lauwers in his decision at para 18, (Grand River ConservationAuthority v Ramdas 2021 ONCA 815) said “the court also has a duty to ensure that self-represented litigants receive a fair hearing.” He even refers to the court's obligations as outlined by the Canadian Judicial Council. This motion was only permitted to last 19 minutes. During that 19 minutes Justice Lauwers interrupted six (6) separate times with statements such as “what are we here for.” Every 3.16 minutes Justice Lauwers interrupted the attempts by a self-represented litigant to present his submission and evidence to the court. Is that to be considered a fair hearing by anyone's terms? Can anyone present a coherent complex legal argument with an interruption every 3.16 minutes?

Every appeal, every motion when filed has to have accompanying documents; a motion record, signed affidavit, factum, exhibits and a book of authorities as precedents cited. Each and every judge has to read all these materials before the hearing. So when Justice Lauwers said “what are we here for,” it was nothing more than an intentional insult. According to Justice Paciocco, as quoted earlier, in Canada “judges decide cases by applying the law, and never based on personal or political beliefs.” He also said that this insulates against corruption and discrimination giving legal decisions their legitimacy. Lauwers at his Runnymede Society speech said that “we (judges) are guardians of the Rule of Law and are also bound by it.”

The rule of law expects that a moving party to an appeal, whether self-represented or not be permitted to make his submissions and present his evidence. Principles of Judicial Conduct would not permit any judge to interrupt a submission being made 6 times in 19 minutes. What motivated Justice Lauwers and Justice Paciocco to show such disregard to the Rule of Law and Judicial Conduct? Justice Fairburn who was the centre and reason for the Panel Motion hearing in fact is the boss, as the Assistant Chief Justice of Ontario to both Lauwers and Paciocco, and for that matter Justice Thorburn JJ.A. Was that the motivation for their actions?

Paciocco said “any power can be abused,” and as a judge he has immense power. He not only abused that power he helped to decimate the Rule of Law and proved by his actions that his words are nothing but hypocrisy. At the Panel Hearing he interrupted the attempted presentation of submissions saying, in reference to Justice Fairburn, his boss, “it doesn't matter if she was wrong or right.” A judge who willfully and with premeditation breached the Courts of Justice Act was not an issue that Justice Paciocco saw was wrong.

Justice Lauwers ending his speech at the Runnymede Society said that we in our society understand that judges are not “Plato's golden-souled philosopher kings,” that we understand judges to be imperfect human beings. He added that personal biases and attachments will play a role in decisions finishing with “and this is just wrong.” Yet again Lauwers does not say what the Rule of Law and its so called constraints on judges actually does with a corrupt judge or his or her decision. The notion of resting on the fact that appeals at the COA had overturned decisions of lower courts, but what happens when the judges of the Court of Appeal commit corrupt acts? Before serious indignation on the uses of the word corrupt in reference to judges and the Court of Appeal erupts, remember that it simply means making something sound unsound. The Court of Appeal is the last port of call for 'justice' in the province, pointing your finger towards the Supreme Court is equivalent to buying a lotto ticket, unless your issue revolves around condoms (SCC 33 2022) or constitutional protection of sex offenders (SCC 38 2022).

Lauwers himself is a justice on the Court of Appeal of Ontario and at no time in his version of the sermon on the mount at Runnymede Society does he speak to the issue of how these constraints in actuality work. What can be the consequences that judges face if they breach the Rule of Law? Instead he finishes his speech saying; “We judges cannot do whatever we like. We are guardians of the Rule of Law and are also bound by it. The system of justice expects we judges to honour our oaths and do the right thing for the right reason, and in the right way, according to law. But we need the support of the Rule of Law, in all the mundane elements I have laid out earlier, to keep us on the right track, and off the wrong track of embedding our subjective moral commitments in law.”

This is when one realises that whether one takes Mark Twain or Dale Carnegie's observation the actions of an individual provide the real insight of the true nature of that individual. The self-aggrandising speeches are equal to a bald peacock strutting before your senses. If either Justice Lauwers or Justice Paciocco see this as somewhat harsh or unfair then maybe either Justice would like to comment on Court of Appeal file #M52839, Justice Thorburn would presumably remain silent as she did during the actual hearing.

From there a real strange event from the Court of Appeal for Ontario, reported by both Maclean's (Oops: The curious case of the wrong judge, by Jason Markusoff, August 16, 2019), and by the National Post (Ruling tossed after Ontario judge signed off on it without hearing the evidence, by J.Brean, August 16, 2019). It appeared that Justice Paciocco signed off on a 25 page ruling without hearing the actual case. The Court of Appeal in its usual mode of secrecy purged the file of many of the documents and provided no explanation as to how did Justice Paciocco sign a ruling with “I agree” when he did not hear the case.

Gore Vidal said, “On the throne of the world, any delusion can become fact.” These words thrown about by both Justices Lauwers and Paciocco show what may be considered humility or reverence to the Rule of Law and all those who need its protective embrace. Yet their actions proved something far more alarming. Judges sit on a throne that we give them, they do not take it by force or threat, and they sit there without consequence for their actions.

Lauwers and Paciocco are not the only examples of judicial corruption of the Rule of Law to suit their subjective delusions of their power. Justice Paul R. Sweeny, Regional Senior Judge for the Central South Region of the Superior Court in St. Catharines, is a senior judge in the Niagara Region. Justice Sweeny is fully aware of the Ethical Conduct for Judges as recommended by the Canadian Judicial Council, he knows of what constitutes issues of Conflict of Interest and Apprehension of Bias, and he is fully aware of the Principles endorsed by the Supreme Court on the treatment of self-represented litigants. Prior to becoming a judge Paul Sweeny held the position of President of the Ontario Bar Association. As president he was not an ordinary president, he was a publicly loud and vocal protector of lawyers and their reputations. In an interview with the Financial Post Paul Sweeny said, “I am not a shark, a scumbag, mouthpiece or liar. Me and 99 of my colleagues chained together at the bottom of the ocean is not a good start.” This statement gave a good indication as to who Paul Sweeny was and is.

Justice Paul Sweeny decided on February 13, 2020 that he was going to hear a motion, in fact 5 motions, to strike claims by two self-represented litigants. The leading claim was against a lawyer, Rachel Goerz, for malicious prosecution. Rachel Goerz was represented by a Toronto lawyer, Michael Kestenberg of Kestenberg Siegal Lipkus LLP. How could Justice Paul Sweeny decide to hear a motion to strike a claim of malicious prosecution against lawyer Rachel Goerz with his background? On this alone the questions of bias and conflict of interest were huge. In addition to questions of Apprehension of Bias, Justice Sweeny did not disclose to the self-represented litigants the fact of his background. Lawyer, Michael Kestenberg of Kestenberg Siegal Lipkus LLP also knew of Sweeny's background, he too did not disclose the facts. Full disclosure is a part of our Charter of Rights but it was not of interest to Justice Sweeny.

Still this was not enough. Justice Sweeny had a personal and business relationship with lawyer Michael Kestenberg who was representing lawyer Rachel Goerz. Both Justice Sweeny and lawyer Michael Kestenberg were directors on boards of Fanconi Canada at the same time. Sweeny was a past director of Fanconi Canada Inc. and Michael Kestenberg on the Board of Trustees. If ever there was a clear example of conflict of interest that had to be disclosed, this definitely was. Neither Justice Paul Sweeny nor Officer of the Court, Lawyer Michael Kestenberg disclosed any of the facts to the self-represented litigants. If either party wishes to argue this, a transcript of the whole motion is available. So there was no surprise as to Justice Sweeny's decision on Superior Court file Davidoff v Paderewski 2020 ONSC 1171. Is it possible to say that a judge of the Superior Court 'fixed' a court hearing? Simply look at the evidence and decide.

Motion before Justice P. Sweeny, Superior Court of Justice, February 13, 2020

So much for Justice Lauwers and his bloated hypocrisy that judges can't do what they want, that there are constraints on the power of judges. Can Justice Lauwers answer how was this possible if it is true that judges can't do what they want?

If this is not enough then there is Court of Appeal for Ontario file numbers C68308 (Davidoff v Paderewski 2021 ONCA 194) and file number M52712. File number C68308 was an appeal of the decision by Justice Sweeny The evidence provided to support the two major grounds for the appeal of Apprehension of Bias and Non-Disclosure was undeniable and absolutely conclusive. The appeal was heard by a panel consisting of Justice Michal Fairburn, (president), van Rensburg and Huscroft JJ.A. Justice Fairburn did all the talking and wrote the four sentence decision. Fairburn simply said the case was not proven and dismissed the appeal. No comment on the seriousness of the allegations or the hard evidence. Justice Fairburn threw a protective blanket over a fellow judge. Justices van Rensburg and Huscroft nodded in compliant silence and indifference to law. This is power, power of corruption. Later investigation revealed a personal connection between Justice Fairburn and Justice Sweeny similar to Sweeny's and Kestenberg's.

Court of Appeal file number M52712 was an astonishing breach of law by a judge that simply has been permitted to have happen. It was a motion to stay costs until a Leave to Appeal decision was made by the Supreme Court. Courts of Justice Act s. 132 prohibits a judge to hear a matter that the judge had previously heard and therefore has self-interest in its outcome. Justice Fairburn decided to hear the motion even though the Leave Application was related to an appeal decision she made. Fairburn with premeditation breached the Courts of Justice Act, principles of judicial conflict of interest, issues of apprehension of bias, Charter of Rights, even Human Rights. Justice Fairburn did not care.

At the start the question asked was whether one measures a judge by his or her own words or their actions, and after examination the answer stands loud and clear. Judges are given immense power over our lives and that power corrupts even the most well intentioned. Society must find a middle ground between judicial independence and the need to really constrain the abuse of power providing real and tangible consequences for identified abuses. Whether one listens to the sales pitch offered by Justice Paciocco in his submission to the Judicial Advisory Committee, or the bloated rhetoric of Justice Lauwers in his speech, it becomes clear how empty each sounds. Associate Chief Justice for Ontario, Justice Fairburn takes the abuse of power to a more frightening level with premeditated breach of court of law. One could possibly tip the hat and offer Kudos to Justice Sweeny, after all his words were mirrored in his actions. As President of the OBA (Ontario Bar Association) he stood for the protection of lawyers and their reputations, and as a judge he was willing to breach all principles and 'fix' a court hearing to that end.

A quote by Abhijit Naskar, author of The Art of Neuroscience in Everything may leave a seed to germinate in the judicial sphere, or it may not. “It is easy to fight power, when you have none, when you feel like the victim. The real battle begins when you start to have a taste of power. It takes an impossible character to stand by their principles till their last breath, as well as the convenience of power.”

Does such an “impossible character” as a judge exist?

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Part 1 - Self Represent, Self Destruct

Part 2 - Dark Face of Canada's Justice

Part 3 - Judicial Cloak of Protection

Part 4 - Supreme Court of Canada commits highest aberration of its own law

Part 6 - Are there consequences for a Judge's Breach of Law