Judge in OPP hearing has 'profound' bias: lawyers

Fantino's team seeks to remove judge and suspend hearing

Shannon Kari, National Post Published: Tuesday, November 25, 2008

TORONTO - An Ontario Provincial Police disciplinary hearing should be suspended because of the "profound" bias of the judge against the prosecutor and Commissioner Julian Fantino, a Superior Court judge was told yesterday.

Justice Leonard Montgomery was appointed to preside over the disciplinary hearing of Superintendent Kenneth MacDonald and Inspector Alison Jevons.

But the head of the OPP wants to put a stop to the hearing while he seeks the removal of the judge.

Thomas Curry, a senior Bay Street litigator, was one of four lawyers in court yesterday acting on behalf of Mr. Fantino in either a personal capacity or as head of the OPP.

Superior Court Justice Janet Wilson was asked to put the disciplinary hearing on hold until a three-judge panel convenes on Jan. 8 to decide whether Judge Montgomery has shown bias.

The commissioner was ordered to testify in an abuse of process motion brought by Supt. MacDonald and Insp. Jevons. The professional standards branch officers have alleged they are victims of a political prosecution to appease the union.

Judge Montgomery was critical of the commissioner and suggested last month that the witness might have been improperly tipped off about evidence during a lunch break.

"His reputation had been impugned," said Mr. Curry, citing media reports about the hearing as support for the argument that the veteran judge was biased against Commissioner Fantino.

During the hearing, Mr. Gover indicated he had the support of the Ministry of the Attorney-General to seek the judge's removal if he did not step down.

"To say he had contacted the Attorney-General before any ruling had been made" was described as "extraordinary" by Judge Wilson.

Yesterday, Mr. Curry suggested this was a political response and that the province will join in future efforts to remove the judge. "Once this got into the legislature, it changed. We will see on Jan. 8, whether the Attorney-General is here," Mr. Curry said.

The lawyer representing the officers wants the disciplinary hearing to resume next month before Judge Montgomery. "The hearing is being stopped by the witness under cross-examination. These are brutal optics," said lawyer Julian Falconer, in reference to the timing of the legal move by Commissioner Fantino.

He suggested that Mr. Gover and Mr. Curry tried to "get in the face" of Judge Montgomery as an excuse to allege he is biased.

"You can't try to elicit comments from a judge and then complain about bias," Mr. Falconer said.

Judge Wilson was visibly frustrated with the amount of legal material filed and the length of arguments.

If the disciplinary hearing has to start again from the beginning, it would be "a horrible waste of taxpayers' money," she noted.

The judge reserved her ruling on whether or not the hearing will resume before Judge Montgomery.