SQLFusion - Fantino action inappropriate judge rules

Fantino action inappropriate, judge rules

The Daily Gleaner (Fredericton, N.B.)

Published Saturday November 29th, 2008

The Canadian Press

TORONTO - An attempt to force an adjudicator to step down was an inappropriate attempt by provincial police commissioner Julian Fantino to avoid cross-examination, a Divisional Court judge has ruled.

In her decision on Fantino's motion to delay disciplinary proceedings in which he was being grilled, Judge Janet Wilson dismissed his accusations the adjudicator was biased against him.

"It was inappropriate to bring a motion prior to completion of the cross-examination and re-examination of Commissioner Fantino," Wilson said in her judgment. "To grant a stay, even if the remedy were available to (Fantino), accomplishes nothing."

Fantino has been caught up in a messy Polices Services Act hearing against two senior officers he charged with misconduct and deceit. Their lawyers argue Fantino was being petty and vindictive - something he strongly denies - and are trying to have the charges thrown out as an abuse of process.

However, Fantino claimed the adjudicator - retired judge Leonard Montgomery - is biased against him, and demanded he step down.

Montgomery refused. In doing so, he was highly critical of Fantino's lawyer Brian Gover, who had warned he would take the matter to court if Montgomery stayed on.

Montgomery blasted Gover for conduct he said amounted to judicial intimidation.

Wilson appeared to side with Montgomery, saying he might have "expressed frustration and concern" but had not shown any bias.

"At times, conduct of counsel warrants criticism and censure. This appears to be such a case," Wilson wrote. "Perhaps the adjudicator overreacted. Perhaps he did not, and simply called a spade a spade."

Either way, she said, there was no reason for Montgomery to step down. She said it was common for issues to arise during proceedings that then resolve themselves once all the information is in.

Wilson also cited an Ontario Court of Appeal decision in another case that indicates Fantino had no legal grounds to even take the matter to court.

"It appears that bringing a motion to stay at this very unusual point in the abuse process during the cross-examination of Commissioner Fantino may be an attempt to circumvent the clear ruling and impact of the (Appeal Court) decision."

Wilson said she was confident that "cooler heads" would prevail and called for the abuse of process motion to be completed as soon as possible.

At that point, she said, the parties can decide what, if any, further action they want to take. Fantino's lawyer on the stay motion, Tom Curry, could not immediately be reached for comment Friday.

Lawyer Julian Falconer, who is acting on behalf of the two charged officers and was in the middle of cross-examining Fantino, was delighted with Wilson's ruling.

"The judge found it was inappropriate to interrupt his cross-examination and we're to get the hell on with this thing," Falconer said.

Judge reserves decision on staying police hearing

Toronto Star

Nov 24, 2008 08:11 PM

Betsy Powell

Courts Bureau

"It's a mess," said Superior Court Justice Janet Wilson, agreeing with the lawyers who spent this morning arguing over whether a controversial police disciplinary hearing should be halted.

Ontario Provincial Police Commissioner Julian Fantino is asking for a stay because he says the adjudicator he appointed to preside over a Police Services Act case is biased.

Wilson reserved her decision. But she indicated granting a stay might be "problematic" and she's "not sure that's in anyone's interest."

At the outset of today's hearing, Wilson declared "this is a horrible waste of public money if this is all for naught."

OPP Supt. Ken MacDonald and Insp. Alison Jevons, of the force's internal affairs department, are charged with neglect of duty in connection with their investigation into complaints against an officer involved in a domestic dispute.

Defence lawyer Julian Falconer has asked that the charges be thrown out and filed an abuse of process motion.

But the proceedings have been derailed amid charges of political interference and allegations that retired Justice Leonard Montgomery is biased against Fantino, who asked the judge to recuse himself. Montgomery refused.

Fantino was upset about comments made by Montgomery regarding his "professional conduct" after the commissioner appeared to change his testimony after a lunch break.

Today, lawyer Thomas Curry, retained by the OPP and Fantino to argue in favour of the stay motion, said Montgomery, without giving the prosecution or Fantino a chance to respond, had "impugned" the reputation of Toronto's former chief of police and lawyer Brian Gover, who is prosecuting the officers. Curry also cited testimony that he said showed Montgomery was unfairly critical of Gover.

The perception of Montgomery's bias is so "profound" there can be no choice but to suspend the proceedings until after a three-judge panel decides whether to recuse him, Curry said. That hearing is scheduled in January.

But Falconer said the request to stay the proceedings at this stage gives rise to "brutal optics" since Fantino is in the midst of being cross-examined.

"This looks really bad," Falconer said. There has been "months invested into this thing" that have been torturous for his clients so "it's up to us to finish this thing."

Falconer also raised Gover's statement during the hearing that, should the adjudicator not step aside, he had the support of the Attorney General's office to seek a judicial review.

Falconer read a letter from a ministry lawyer rejecting that assertion and called Gover's statement "extraordinary."

However, today Curry said he expected government lawyers will be at the hearing in January on the side of the prosecution.

Several times, Wilson remarked on the "hard-fought" and protracted nature of the legal wrangling as well as the "volumes and volumes" of written material that's been produced. In his closing submissions, Curry said it's a "mess of the adjudicator's making."

"It may be, counsels," Wilson responded.

Messy disciplinary battle involving Ontario's top cop and lawyer moves to court

Yahoo News

23 November 2008 5:33 pm

By Colin Perkel,

The Canadian Press

TORONTO - An increasingly messy disciplinary battle that has ensnared Ontario's brusque top cop and his highly regarded lawyer moves to the courts Monday amid recriminations of political interference, judicial intimidation and personal animosities.

Two senior officers charged with misconduct by Ontario Provincial Police Commissioner Julian Fantino are asking Divisional Court to ensure the long-running and vitriolic disciplinary hearing he initiated proceeds.

Fantino, who through his lawyer blasted the adjudicator for potential bias and tried unsuccessfully to force him to step aside, wants the Police Services Act hearing put on hold until the courts decide on the recusal motion.

For their part, the two officers argue Fantino is trying to avoid further grilling about his role in their police act charges by taking the adjudicator issue to court. "The applicant's timing in requesting that Justice (Leonard) Montgomery recuse himself gives rise to a reasonable perception that (Fantino) is attempting to interrupt his ongoing cross-examination," their court application states.

Lawyer Brian Gover, who was prosecuting the officers and acting for Fantino, raised eyebrows earlier this month when he said the provincial government supported the recusal request and would back a court challenge if Montgomery refused to step aside.

Amid questions about political interference in a quasi-legal hearing, attorney General Chris Bentley and his ministry immediately denied having made any such decision.

Gover, an experienced advocate and former Crown prosecutor, is standing by his contention the attorney general both wanted Montgomery gone and had decided it would back an appeal to the courts to force him to do so. His comments were made in good faith and on a "clear understanding" of the attorney general's position based on conversations with senior government lawyers, Gover said.

If that's true, Montgomery said, the "conflict-of-interest issues are endless."

During aggressive cross-examination in October, Fantino appeared to change his testimony, raising questions about whether he had been tipped during a lunch break to apparent discrepancies in his evidence.

"It's upsetting and it's something I'll have to deal with when I come to do my thing," Montgomery said when lawyer Julian Falconer raised the issue.

Gover called that an attack on Fantino's integrity, and described Montgomery's remarks as "inflammatory and highly prejudicial allegations" against the police commissioner.

If Montgomery didn't step down voluntarily, Gover said he would ask the courts to force him to do so.

In insisting he had no reason to recuse himself, Montgomery, a retired judge with 33 years on the bench, slammed Gover's comments as "shocking," "highly improper" and threatening.

"You have to really wonder why they were made," Montgomery said. "These comments considered in their totality amount to an attempt to pressure and to intimidate a judicial officer."

Supt. Ken MacDonald and Insp. Alison Jevons were senior members of the unit that investigates allegations of provincial police wrongdoing.

Fantino charged them with neglect of duty relating to their probe into a complaint about another officer caught up in a domestic dispute.

Falconer has argued - and Fantino has denied - the charges were a petty personal reprisal because the commissioner believed MacDonald had leaked information about the police force and also wanted to appease the police union.

Falconer has been trying to get Montgomery to throw out the charges as an abuse of process.

. Judge at OPP hearing claims 'intimidation'

The Toronto Star

November 11, 2008

Robyn Doolittle

Staff Reporter

ORILLIA–The judge presiding over a controversial OPP disciplinary hearing has accused the police prosecutor of attempting to "intimidate" and "pressure" him.

Justice Leonard Montgomery was last week asked to remove himself from the proceedings, amid allegations he appeared to be biased against OPP Commissioner Julian Fantino.

Prosecutor Brian Gover threatened that, should the adjudicator not step aside, he had the support of the Attorney General's office to seek a judicial review.

But, when contacted later, a spokesperson for the ministry denied any such support had been pledged.

Yesterday, the adjudicator flatly rejected the motion that he recuse himself.

“These comments have absolutely no relevance here (and) you have to really wonder why they were made,” began Montgomery. "I respectfully submit that these comments considered in their totality amounts to an attempt to pressure and to intimidate a judicial officer."

At the centre of the recusal motion are comments made by the adjudicator regarding Fantino’s “professional conduct,” after the commissioner appeared to change his testimony following the noon break last month. This, claimed Gover, had left a “stain” on Fantino’s reputation and amounted to a reasonable apprehension of bias on the part of the adjudicator.

Defence lawyer Julian Falconer said the motion was presented as a way to derail the proceedings and delay Fantino’s cross-examination.

Last Thursday, NDP leader Howard Hampton brought the matter up in the legislature, accusing the Attorney General’s office of interfering with the hearing proceedings.

“This sounds like even the Ministry of the Attorney General is interfering in this hearing,” charged Hampton. “How can a fair hearing happen under conditions like that?”

Gover has since temporarily recused himself from the proceedings.

The prosecution plans to appeal Montgomery’s ruling, while Fantino is scheduled to resume his cross-examination on Nov. 20.

What began as a misconduct hearing against two OPP officers has effectively put the OPP commissioner's credibility on trial. Fantino is accused of orchestrating a "political prosecution" against Insp. Alison Jevons and Supt. Ken MacDonald, both of whom are accused of bungling an internal investigation.

Falconer, has asked that the charges be thrown out and filed an abuse of process motion. It’s a case that, as Falconer put it yesterday, has grown “curiouser and curiouser” with each passing day.

Fantino was called to testify last month. Without attempting to conceal his irritation, Fantino called the accusations against him “hysterical nonsense.”

For more than three hours the two Julians duked it out over the commissioner’s conduct. At one point the adjudicator was forced to caution Fantino on making side comments.

But the real fireworks occurred after the lunch break, when it appeared Fantino had been tipped that some of his earlier comments didn’t gel with what the prosecution was expecting. After the recess, Fantino looked to reverse on an earlier statement.

Montgomery immediately told Fantino to leave the room.

"It's upsetting and it's something I'll have to deal with when I come to do my thing," said the adjudicator, directing Gover to move on to a new subject immediately. It is this incident that lies at the heart of the recusal motion.

In his submissions, Gover told the judge: “I can tell you quite frankly Mr. Adjudicator that in the event that you do not remove yourself I will be bringing an application for judicial review with the support of the Attorney General’s office.”

When pressed for details, Gover said he had had communications with Dennis Brown, regarding support.

Later that day, Brendan Crawley, ministry spokesperson told the Star: "the Ministry of the Attorney General has taken no position on the recusal of the adjudicator.

A request was made by Mr. Brian Gover... nothing further has taken place."

During last month’s cross examination, Fantino was also accused by Falconer of interfering with the case’s witnesses.

On Jan. 8 of this year, just days after learning one of the hearing’s witnesses — Chief Supt. Bill Grodzinski — had made secret and damaging notes about Fantino, the commissioner announced the officer would be transferred to North Bay.

The notes were of an incident nine months earlier, when Fantino asked Grodzinski: “Are you going to execute the disloyal one or do you want me to?" in reference to MacDonald.

The hearing also heard that the Ministry of Community Safety deputy minister Deborah Newman, who oversees the OPP, immediately phoned Fantino after learning of the proposed transfer. The hearing heard she was concerned it would “not look good to suddenly move;” that it would appear there was “something more sinister at play,” OPP Deputy Commissioner Chris Lewis testified earlier about his knowledge of the Newman call.

Falconer argued this was tantamount to interfering with witnesses, calling the relocation an “extraordinary coincidence in timing” done to intimidate others.

Fantino rebutted: “You are wrong. You are so wrong” and explained that the North Bay detachment needed a new chief, Grodzinski’s wife was from there and the officer had previously worked in the region.

In the end, Fantino testified, Grodzinski was not transferred because he learned the officer’s wife was sick

NDP alleges Liberal government interfering in OPP disciplinary hearing

Cornwall Seaway News

07 November 2008 Canadian Press

TORONTO - Attorney General Chris Bentley flatly denied opposition allegations Thursday that the Liberal government was interfering in an OPP disciplinary hearing involving Commissioner Julian Fantino and, in turn, accused the NDP of interfering in the case with their comments.

Brian Gover, Fantino's lawyer at the Police Services Act hearing for two senior OPP officers, said Wednesday that he had support from senior counsel in the Ministry of the Attorney General to have the adjudicator, Justice Leonard Montgomery, recuse himself from the case.

On Thursday, NDP Leader Howard Hampton told the legislature Gover's claims of support for his motion to get rid of the adjudicator sounded like inappropriate government interference in the OPP hearing.

"This sounds like the Ministry of the Attorney General is interfering in this hearing," charged Hampton. "All the justice is trying to do is hear the evidence, but it sounds as if counsel representing the Ministry of the Attorney General don't want him to hear the evidence. What is going on here?"

Bentley told Hampton he was off base, and chastised the NDP leader - himself a former attorney general - for making comments about an ongoing hearing.

"You're wrong. Period. You're wrong," Bentley said in the legislature. "They're trying to have a fair hearing on the basis of what is going on in the proceeding, and that fair hearing is not being assisted by the extracted commentary by (Hampton)."

Outside the legislature, Bentley dismissed suggestions his office was trying to interfere in the Police Services Act hearing. "Of course not, and I'm not going to take the invitation of the leader of the NDP and do it by commenting on the hearing that's going on," he said. "That's exactly what we're not going to do. We're not going to interfere with the hearing."

When pressed during Wednesday's hearing to support his claim that the Attorney General's office supported his motion to have Montgomery recuse himself, Gover responded by naming senior ministry lawyers with whom he said he had spoken about the issue.

Bentley wouldn't confirm nor deny those conversations with his staff had taken place, but insisted there had never been a decision made to support the motion to remove Montgomery from the OPP hearing.

"The ministry hasn't taken a position on an application that is still before the adjudicator," was all Bentley would say when asked about specific lawyers at his office that Gover named.

The controversy stems from Fantino's earlier testimony at the hearing for OPP Supt. Ken MacDonald and Insp. Alison Jevons, who are accused of neglect of duty and deceit relating to an investigation they conducted into a complaint about another OPP officer caught up in a domestic dispute.

At one point during the hearing on Oct. 17, Fantino appeared to change his testimony after a lunch break, raising questions about whether he had been tipped during the recess to apparent discrepancies in his evidence.

"It's upsetting and it's something I'll have to deal with when I come to do my thing," Montgomery said that day about Fantino's seemingly differing statements.

On Wednesday, Gover said Montgomery's remarks amounted to accusing Fantino of professional misconduct, something he claimed had left a "stain" on the commissioner's reputation, and moved that the justice recuse himself from the case.

Montgomery adjourned the hearing until Nov. 10