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JUDICIAL COUNCIL PROTECTS JUDGE McMURTRY

On July 17, 2006, REAL Women of Canada laid a complaint with the Canadian Judicial Council about the conduct of Ontario Chief Justice Roy McMurtry in the same-sex marriage case, which was handed down in June 2003. We stated in our complaint that his actions in the case gave rise to an apprehension of bias for a number of reasons, including the fact that Chief Justice McMurtry's daughter was a lesbian living in a homosexual union at the time the case was argued. (See REALity, "Complaint Laid Against Ontario Chief Justice McMurtry on Same-sex Marriage Decision," September October 2006, page 1.)

Mr. Justice Rosenblatt of the New York Court of Appeal recused (withdrew) himself from the same-sex marriage case before that court because of his daughter's lesbian orientation. The New York Court of Appeal rejected same-sex marriage in July, 2006.

Further, two weeks subsequent to the court's decision, Chief Justice McMurtry partied with two of the litigants and a photograph of the Chief Justice and the litigants together is widely available on the internet.

Not unexpectedly, almost five months to the day, December 19, 2006, the Canadian Judicial Council replied to our complaint, stating that the Chief Justice had done nothing improper in failing to disclose the fact of his daughter's sexual orientation and her lesbian relationship.

In its letter, the Council claimed:

… the sexual orientation of a judge's children, and indeed the fact that a judge's children are married or living in a common law relationship are not, in Chief Justice Scott's view, indicative of any bias on the part of a judge.

The Council, however, knew very well that the issue before the Court was whether same-sex unions should be recognized as legal, i.e., to acquire legal rights. That is, the case dealt specifically with the legal rights of same-sex unions - a matter which directly related to McMurtry's daughter's own personal relationship. The case dealt with the acquisition of new controversial rights and privileges, which directly applied to his daughter's situation.

The Council went on to quote former Supreme Court of Canada Judge Peter Cory:

… The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. …

… Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. …

The Council then concluded that there is no basis to support the view that Chief Justice McMurtry should have recused himself on the basis of the personal relationship of members of his family.

This conclusion, however, flies in the face of the very guidelines of the Canadian Judicial Council set out in its document, "Ethical Principles for Judges, 1998," Chapter 6, Impartiality:

Conflicts of Interest

  • Judges should disqualify themselves in any case in which they believe they will be unable to judge impartially.

  • Judges should disqualify themselves in any case in which they believe that a reasonable, fair minded and informed person would have a reasoned suspicion of conflict of interest between a judge's personal interest (or that of a judge's immediate family or close friends or associates) and a judge's duty.

  • The potential for conflict of interest arises when the personal interest of the judge (or of those close to him or her) conflicts with the judge's duty to adjudicate impartially. Judicial impartiality is concerned both with impartiality in fact and impartiality in the perception of a reasonable, fair minded and informed person.

  • … a judge … should disqualify him or herself if aware of any interest or relationship which, to a reasonable, fair minded and informed person would give rise to reasoned suspicion of lack of impartiality.

  • …a judge should disclose on the record anything which might support a plausible argument in favour of disqualification ….

It seems clear that the Judicial Council chose to ignore its own guidelines in order to protect Chief Justice McMurtry.

In regard to Chief Justice McMurtry partying with the same-sex litigants two weeks after the decision was handed down, the Council said:

… it is well established that Chief Justices have public and representative functions as well as judicial responsibilities. Attendance at such events is important to ensure ongoing exchanges between the judiciary and other members of the legal profession. If Chief Justice McMurtry was asked to have his photograph taken with Messrs Bourassa and Varnell, it might indeed have been viewed as mean-spirited or worse to have declined. …

If a judge had refused to be photographed with any other successful litigant in a case he had recently presided over, it would have been regarded as a reasonable and common sense decision. In the case of these litigants, however, according to the Council, such a refusal would have been "mean-spirited or worse." A ridiculous and shallow double standard.

It is noted that S.64 of the Judges Act provides that when a judge is the subject of a complaint or investigation he / she shall:

… be afforded an opportunity, in person or by counsel, of being heard at the hearing of cross-examining witnesses and of adducing evidence on his or her own behalf.

One can only suppose Chief Justice McMurtry did just that.

From the above, it seems clear that the purpose of the Canadian Judicial Council is not to protect the public from the judges, but rather to protect the judges from the public. It also serves to continue the myth that judges are above politics, impartial and objective. This is not necessarily the case.

Chief Justice McMurtry will reach mandatory retirement age in May 2007. It is expected that the liberal secular media and Bar associations will claim his retirement will be a loss to the legal system. His retirement will be no loss to justice in Canada.

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