The difficult un-appointment

OPP Commissioner seeks to remove judge from hearing he assigned him to

Shannon Kari, National Post Published: Monday, December 15, 2008

While it is unlikely that anyone in England knows about the case, it is the hypothetical transit rider in the south London neighbourhood of Clapham who will be invoked in a dispute involving one of the best-known police officers in Canada and a retired judge with a law and order reputation.

Ontario Provincial Police Commissioner Julian Fantino is seeking to remove Leonard Montgomery from presiding over the disciplinary hearing of two senior officers.

When three judges of the Ontario Divisional Court hear arguments on Jan. 8, they must decide if a "reasonable person," originally known in our legal system as "the man on the Clapham omnibus," would perceive that Mr. Montgomery has shown bias against the Commissioner.

It is the next step in a long-running legal battle, at significant public expense, that stems from a relatively minor internal OPP investigation in 2005. Along the way there have been claims of leaks, reprisals, political prosecutions and backroom deals, resulting in a hamper-full of OPP dirty laundry becoming public.

Ironically, it was Commissioner Fantino who appointed Mr. Montgomery to preside over the disciplinary hearing of former professional standards (internal affairs) officers Superintendent Ken MacDonald and Inspector Alison Jevons.

The retired judge, nicknamed "Long-Time Lenny" or "L. T." for short, because of the stiff sentences he imposed when he was on the bench in Orillia, was appointed after two previous adjudicators stepped down because of conflicts.

Commissioner Fantino was required to testify at the hearing after the officers filed an abuse of process motion, arguing their Police Act charges are politically motivated, to appease the OPP union and because of an alleged leak of information to a local city council.

Earlier in the hearing, a chief superintendent testified that Commissioner Fantino said in March, 2007, "are you going to execute the disloyal one or do you want me to," about Supt. MacDonald.

When this comment became public, the chief superintendent was notified he was being transferred to North Bay. The transfer was called off the next day after a senior provincial government official expressed concern.

The officers' claims about the reasons for the charges were "hysterical nonsense," said Commissioner Fantino during his testimony. The attempt to remove Mr. Montgomery as the adjudicator arose from comments he made during the cross-examination of the Commissioner by the officers' lawyer, Julian Falconer.

Mr. Montgomery implied that the Commissioner may have been improperly tipped over a lunch break and changed his testimony on a key point. "It is something I'll have to deal with when I come to do my thing," said the adjudicator, who expressed concern.

The comments were reported in the media and when the hearing resumed on Nov. 5, prosecutor Brian Gover asked Mr. Montgomery to step down as the adjudicator. Mr. Gover added that he had the support of the provincial Attorney-General.

Mr. Montgomery declined to step down and suggested the

threat to bring in the Ministry of the Attorney-General was "highly improper" conduct by Mr. Gover, a senior lawyer in the province who has acted in high-profile inquiries such as Walkerton and Air India.

The province responded publicly at the time by saying it had taken no position on the attempt to remove Mr. Montgomery (a spokesman told the National Post this past week the Ministry of the Attorney-General will not participate in the Jan. 8 Divisional Court hearing).

With the adjudicator refusing to step down, the Commissioner brought in Thomas Curry, a senior lawyer at a prominent Bay Street firm, to try to suspend the disciplinary hearing.

Superior Court Justice Janet Wilson refused to do so and she chastised Commissioner Fantino in a ruling released on Nov. 24. The judge questioned whether the commissioner had any legal right as the head of the OPP or as a witness in a hearing, to try to remove the adjudicator he appointed.

She found that Mr. Montgomery had not shown any bias and that it was "inappropriate" of Mr. Gover to ask the adjudicator to step down in the middle of the testimony of the commissioner.

The cross-examination of Commissioner Fantino was supposed to resume this week.

But he filed another appeal, this time before a panel of three-judges.

Mr. Curry argued that it was in the "public interest" and there would be a "denial of natural justice" if the commissioner was required to resume his testimony at this time. While the hearing had become a "side show," Mr. Curry suggested it was because of the conduct of Mr. Montgomery.

In a 2-1 decision, a panel of Superior Court judges agreed to suspend the OPP hearing, pending the outcome of the Divisional Court hearing next month to determine whether Mr. Montgomery should be removed as the adjudicator.

Superior Court Justices Douglas Cunningham and Douglas Gray agreed that the Commissioner was not legally entitled to seek a review of any final decision of Mr. Montgomery, but that he could have him removed mid-hearing if bias was shown.

Meanwhile, the professional limbo continues for Supt. MacDonald and Insp. Jevons as they wait for another court battle to determine what the "reasonable person" -- be it a Clapham transit rider or a patron in a Tim Hortons in Orillia -- thinks of the clash between "Big Julie" and "Long-Time Lenny."