Mayorgate: Are there consequences for a Judge’s Breach of Law?

This can be a disturbing question that awaits an answer. First of all it is obvious if a judge is caught standing over a dead body with knife in hand dripping blood, that that judge may be considered a suspect, but this question is not so obvious. This question asks whether judges get away with whatever they want to do, whatever their egos desire. Remember judges hold immense power over ordinary peoples’ lives.

Without a doubt it takes a special kind of person to want to be a judge after all a judge has such power over the lives of those who stand before him or her. It takes courage to take the position of guardian of the Rule of Law, that Rule is what binds our society as a whole. Yet are judges untouchable? Does our fever for that elusive and totally independent judiciary for the supposed sake of true democracy allow the birth of a miniature caste of individuals who have total impunity from all consequence?

Our society needs judges as we need police, human beings cannot live in utopia for real. We do not need corrupt judges nor do we need judges who have been corrupted by the power we give them.

Complete independence for the judiciary also equates to complete immunity from any legal action at all. Regardless of how corrupt the judge’s actions are, regardless of how many court rules the judge breaks, laws he or she breaches, or how wrong the decision made by the judge, that judge walks free and clear.

The Attorney General for Ontario Mr. Doug Downey, when approached with details of a judge’s corrupt actions raised the whole judicial independence. According to Mr. Downey whose Ministry oversees the laws of the province they cannot touch judges and he advised to take the complaint to the Canadian Judicial Council. In fact the Registrar from the Supreme Court of Canada gave the same advice on the same issue.

Everyone is afraid to touch any question of wrong doing by a judge, so what is the Canadian Judicial Council? Who are these courageous individuals who take on to examine complaints about judges? The answer to this question may be overly comforting or filled with promises of Utopian justice.

The Council has 44 members, under the chairmanship of the Chief Justice of the Supreme Court of Canada, the Right Honourable Richard Wagner. Federally nominated Chief Justices and Associate Chief Justices of Canadian superior courts make up the Council. It was established by an act of parliament in 1971 and its 50 years of existence has not provided any awe inspiring examples of actions or leadership by example. In 2021 it revised its Ethical Principles for Judges, first published 20 years earlier, but this is not to be taken as a code of conduct for judges as the Council states, it is a guide only. So it’s no better than a tourist guide one picks up with the decision being yours if you wish to follow the tracks advised therein.

A complaint filed with the CJC goes through a number of stages. First, the new complaint falls into the hands of the Executive Director of the Council. The Executive Director decides if it is to be forwarded to a member of the Judicial Conduct Committee. Now the Committee might seek additional information, seek the judge’s comments, or dismiss the matter. Stage Two, if the complaint is retained it is passed onto the Judicial Conduct Committee who may continue the complaint or dismiss it. Now if the Committee does not dismiss it then further investigation may be requested, corrective measures suggested or the complaint then forwarded to the Review Panel.

Stage Three, the Review Panel will decide whether the matter should be referred to an Inquiry Committee. At Stage Four, the Inquiry Committee will conduct its own proceedings and will produce an Inquiry Committee Report. Finally Stage Five, those eligible Council members will then think about the Inquiry Committee Report and what to do about it.

How much confidence is there in the CJC when their past record is far from reassuring. In the words of the CJC itself the complaint has to be considered on its severity not on the fact that a judge had breached any rules or ethics. Yet it is judges who are judging judges! The CJC outlines its five stage process but nowhere in that outline does it state how is the complainant kept informed through it all. Does a dismissal have a reasoning provided or does it simply say ‘you didn’t prove the case’?

A true test of the CJC and its rhetoric has been put in motion. The CJC has a new complaint filed before them, the allegations in the complaint are extremely serious and are fully supported with exhibits to prove the case. There is no denying any part of it, and there is no way for any Executive Director or Council member to diminish the severity of the breach of law committed by Justice Paul Sweeny of the Superior Court of St. Catharines.

Justice Paul Sweeny with full intent and purpose decided he would not disclose serious details of his past that greatly affected his ability to make an impartial and unbiased decision. This information about his past would be known to a lawyer but Justice Sweeny was hearing motions with two self-represented litigants defending their position. This was a premeditated and calculated decision. In addition to nondisclosure of his past professional position Justice Sweeny and Counsel Michael Kestenberg, a Toronto lawyer representing a lawyer, Rachel Goerz, had not disclosed their personal and professional association outside of the court stage. The allegation further extends to raise the question of collusion between Justice Sweeny and Counsel Michael Kestenberg. Justice Sweeny has the duty as the hearing judge to read all the filed material prior to the hearing which appraised him of the counsel he would be hearing, meaning a former associate, and the fact that the defending part were self-represented litigants.

This complaint brought to the Canadian Judicial Council reaches a level of obscenity of the level of breach of the Rule of Law committed by Justice Paul Sweeny. If the Council needs to determine the severity of a breach of judicial conduct then this complaint must require a full Inquiry Committee Report and recommendation for the removal of Justice Sweeny from the bench. Counsel Michael Kestenberg will be answering his own complaint filed with the Law Society of Upper Canada.

The full complaint with its exhibits is provided here to examine. Upon examination an alarming question begs to be answered. How could this happen here in a courtroom in Canada? We have Supreme Court endorsements of principles on the treatment of self-represented litigants, we have judges like Justice Peter Lauwers of the Court of Appeal for Ontario speak of the corruption of power judges face and the many so-called constraints placed on judges by the Rule of Law. Yet this happened in a courtroom in Canada and no one seems to care about it other than protect each other from consequence.

Now the Canadian Judicial Council has the full complaint placed before them. This complaint against Justice Sweeny deals with beach of the Rule of Law, breach of Court Law, breach of the Charter of Rights and Freedoms, and breach of Human Rights. All of this was intentional and premeditated by a Justice of the Court of Canada.

Question is, what will the Canadian Judicial Council do about it? The result and decision by the CJC will be published.