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Robert
Baltovich |
Ontario Judges
Judge won't hear bias
complaints
By KIRK MAKIN, JUSTICE REPORTER,,
March 3, 2005
TORONTO -- An Ontario judge
refused to allow a parade of criminal lawyers to testify yesterday
about whether he is biased toward the Crown, saying that sort
of "rumour and mere gossip" could harm the judiciary.
Mr. Justice Eugene Ewaschuk
of the Superior Court of Ontario made the ruling at a bizarre
hearing to establish whether he habitually favoured the Crown
during his 22 years on the bench.
Defendant Richard Brewster
is asking Judge Ewaschuk to remove himself from a second-degree
murder trial, based on the fact that a reasonable person would
perceive an "apprehension" of general bias.
In his ruling, Judge Ewaschuk
said it is hardly surprising that many defence lawyers "abhor"
an experienced, no-nonsense judge who can see through courtroom
manoeuvres and keep them in line.
Judge Ewaschuk said it would
be a grave mistake if he were to allow lawyers to air their complaints
about judges, reducing the judicial process to "a popularity
contest" and causing the public to think judges can be intimidated
or influenced. "In effect, this motion has the far-reaching
effect of attempting to prohibit me from sitting in future on
all criminal matters," Judge Ewaschuk added.
Jovial and visibly engaged
on Tuesday -- the first day the motion was argued-- Judge Ewaschuk
was combative yesterday. He showed increasing flashes of anger
as defence counsel Edward Sapiano repeatedly attacked rulings
the Ontario Court of Appeal has found fault with.
"You're not going to find
any case that says I was basically unfair," Judge Ewaschuk
said.
"The Court of Appeal has
disclosed you are the brother of bias," Mr. Sapiano responded.
Judge Ewaschuk said that in
order to succeed with his motion, Mr. Sapiano will have to establish
that his entire career has betrayed a "pattern of systemic
bias" favouring the Crown.
He said it is not enough to
merely show that a judge has the odd case overturned. "Judges
are human," Judge Ewaschuk said. "Judges err. They
don't go out deliberately to make legal errors so they can be
reversed."
However, Mr. Sapiano insisted
that any judge with Judge Ewaschuk's obvious grasp of the law
could never innocently make the sort of mistakes he habitually
makes.
"I'd argue that you are
an extraordinarily intelligent individual, well versed in law,"
Mr. Sapiano said. "But you're still biased. . . . Given
your superior intellect, these errors are not real errors."
Mr. Sapiano read excerpts from
one appellate decision after another, attempting to explain why
it fit a pattern of a biased judge. Judge Ewaschuk interrupted
so frequently to explain the context of each case that the proceeding
resembled a free-wheeling debate.
"I tend to intervene,"
Judge Ewaschuk conceded at one point. "I correct lawyers.
I correct Crown as much as defence counsel. . . . The problem
is that I'm getting old and impatient with fumbling counsel."
"Let's get real,"
Judge Ewaschuk said during one exchange about an overturned decision.
"How am I being unreal?"
Mr. Sapiano shot back.
Judge Ewaschuk acknowledged
that in one specific trial, the appeal court had said he was
unfair to the accused. "It's one trial, that's all . . .
I want you to go onto the next case," the judge said. "I'm
not going to let you drag this out."
"When inadvertence happens
again and again and again and again, a pattern develops,"
Mr. Sapiano retorted.
© Copyright 2005 Bell
Globemedia Publishing Inc. All Rights Reserved.
Ontario judge, lawyer
trade recusal barbs
Defence attempts to remove
jurist, saying 'reputation for unfairness is well known'
By KIRK MAKIN, JUSTICE REPORTER,
March 2, 2005
A controversial judge smiled
broadly yesterday as his 22-year career on the bench was described
as a series of "train wrecks."
Mr. Justice Eugene Ewaschuk
of Ontario Superior Court appeared unperturbed as defence counsel
Edward Sapiano accused him of being so pro-Crown that Mr. Sapiano's
murder client, Richard Brewster, is destined to become another
of the judge's victims.
Mr. Sapiano, who is attempting
to have the judge recuse himself, told the court that assembling
a list of cases overturned on the basis of Judge Ewaschuk's alleged
unfairness was simple: "I just walked out the front door
and looked at the train wrecks."
Known among lawyers as Tex
because he shoots from the hip, Judge Ewaschuk told Mr. Sapiano
that he purposely did not read a defence brief because it was
"better for my blood pressure."
Nonetheless, he sparred with
Mr. Sapiano throughout the day, occasionally exchanging humorous
asides, snorting in derision or pointedly correcting Mr. Sapiano's
pronunciation of other judges' names.
The arguments in court yesterday
centred on whether a group of 10 defence lawyers will be allowed
to testify about a general feeling in the legal community that
Judge Ewaschuk favours the Crown.
But the judge openly questioned
whether a clutch of defence lawyers regurgitating hallway gossip
can possibly reflect how average citizens would feel about his
courtroom performance.
Judge Ewaschuk also noted that
lawyers are not representative of the average person, given that
opinion polls show them ranking in the "bottom one-third"
of all professions when it comes to public respect.
"Do you judge me on one
or two cases, or on 200 or 300 cases?" the judge asked.
"You could end up having a popularity contest, calling 10
defence counsel to say a judge is biased, and then the Crown
calls 10 witnesses to say he is not biased."
"Wrong!" Mr. Sapiano
exploded. "This isn't a popularity contest. . . . They would
be testifying that they have spoken to numerous people, that
among hundreds of lawyers your reputation for unfairness is well
known."
Crown counsel Sarah Welch,
in turn, argued that Mr. Sapiano is engaged in a blatant attempt
to "judge-shop," hoping to turf Judge Ewaschuk from
the case and obtain one he prefers.
"If this application were
successful, it would prohibit the trial judge from ever sitting
on criminal trials again," Ms. Welch added in a written
brief. "In essence, the applicant is attempting to change
the composition of the criminal bench."
Ms. Welch warned that if Mr.
Sapiano succeeds in removing Judge Ewaschuk, it would tarnish
the entire justice system and serve to intimidate other judges.
"The potential would be
for a parade of lawyers to come before the court and give their
two cents worth as to what they think your reputation is in courthouse
hallways," she told court.
But Mr. Sapiano said there
are much easier ways to get rid of a judge. "If I or my
client were here judge-shopping, it would be easier if I went
to the courthouse washroom and smashed my head against the marble
walls than to make this motion," he said.
"I would have waited until
you recovered," the judge shot back.
Feet propped up against his
desk top, Judge Ewaschuk also asserted that lawyers assess judges
based on how their own cases have fared. "I talk to certain
lawyers in the street who praise a certain judge who rules in
favour of them even though I don't think that judge is very bright."
He intends to rule today on
whether the lawyers can testify.
© Copyright 2005 Bell
Globemedia Publishing Inc. All Rights Reserved.
Judging the judges
When these two jurists are
assigned cases, the lawyers cringe. But both are having a bad
winter. One was raked over the coals by the Appeal Court and
the other is being asked to recuse himself from a case. KIRK
MAKIN reports
By KIRK MAKIN, February
26, 2005
Before a jury had even been
selected for the massive, $2-million Rosie
Rowbotham drug trial in 1984, it was obvious that the proceeding
was ill-fated.
Mr. Justice Eugene (Tex) Ewaschuk
had created a novel jury-selection procedure that favoured the
Crown -- one that a dozen defence lawyers in the case knew the
Court of Appeal would never approve. To make matters worse, he
had broken a fundamental legal rule by temporarily banishing
one of the defendants from the courtroom.
The case played out for a year
and, sure enough, the Appeal Court eventually ordered a retrial
based on Judge Ewaschuk's gaffes.
"There was a strong sense
from the moment he made that ruling that it was doomed,"
defence counsel Melvyn Green recalled. "A year of everybody's
time and effort was wasted. It was as if there was no trial.
It never happened."
It was just Tex Ewaschuk's
first big trial, and he was already on his way to being a courtroom
legend.
At roughly the same time, hundreds
of kilometres away in a Windsor courtroom, Mr. Justice John O'Driscoll
was presiding over a rare contempt-of-court hearing for criminal
lawyer Guy Cottrell.
Mr. Cottrell had run afoul
of Judge O'Driscoll by calling him "the captain of the Crown's
ship" -- a label that has stuck to this day wherever courthouse
tongues wag. The judge convicted the lawyer and fined him $2,000.
Judge Ewaschuk and Judge O'Driscoll
of the Ontario Superior Court have two things in common these
days. First, they rank as the undisputed bêtes noires of
the defence bar -- jurists whose in-court performance is perceived
as consistently favouring the Crown. Second, each judge has had
an unusually tough winter.
Judge O'Driscoll was raked
over the coals by the Ontario Court of Appeal in December for
giving unbalanced, prejudicial instructions to the jury in the
notorious Robert Baltovich murder case.
"Read as a whole, it unduly
promoted the case for the Crown and effectively ignored and denigrated
the case for the defence," the appellate judges said. They
said that his loading the dice in favour of the Crown was needless
and inexcusable, considering the cost of rerunning a major murder
trial.
However, the embarrassment
Judge Ewaschuk faces in a Toronto courtroom on Tuesday probably
dwarfs anything either judge has experienced in the past. Edward
Sapiano, a lawyer for accused murderer Richard Brewster, will
argue an extraordinary motion to have the judge recuse himself
from the trial .
Mr. Sapiano maintains that
Judge Ewaschuk has spent his career bolstering the prosecution
side of cases, giving rise to a perception of bias at the outset
of the Brewster trial.
In an accompanying affidavit,
Mr. Brewster says he fell into a depression upon learning that
he had drawn Judge Ewaschuk for his case.
Judge Ewaschuk is known far
and wide in the jail system by a rhyming nickname -- You is Fucked,
Mr. Brewster said. "With scary consistency and frequency,
he -- in his capacity as a judge -- has been described differently,
but always in the manner that describes him as an exceptionally
unfair judge.
"I not only gave up hope
of receiving a fair trial, but I knew right then that the learned
Justice Ewaschuk was going to do everything within his power,
and more, to convince the jury to convict me no matter how the
evidence comes out."
Mr. Sapiano, an outspoken leader
in the defence bar, alleges in a legal brief that Judge Ewaschuk's
favourite tactics include: innuendo, demeaning defence lawyers,
interfering in their cross-examinations, misrepresenting the
defence position, and repeatedly giving the Crown a leg up.
"When one is facing a
murder trial over which Judge Ewaschuk presides, that apprehension
becomes a powerful, reasonable and debilitating fear of an unfair
trial," he wrote.
Both judges declined requests
to be interviewed for this article.
While their partiality may
be arguable, nobody disputes the fact that they are intelligent
and learned in the law. Ontario Superior Court judges are appointed
by the federal government and must retire at 75.
Bluff, hearty and possessed
of a booming voice, Judge Ewaschuk, 64, is a one-time Crown attorney
and director of criminal law at the Saskatchewan Justice Department.
He lives up to his Tex nickname by shooting from the hip with
frequent interruptions and observations.
In a 2000 case that was overturned
on appeal, for instance, Judge Ewaschuk stereotyped a nation
by saying the Vietnamese "are notoriously hostile to giving
statements to police." He added later: "I'm sure in
Vietnam there's no oath, so it's foreign to them."
Judge O'Driscoll, 73, has an
entirely different style. Appointed in 1971, he has a measured,
intense manner and rarely interrupts. It is his legal rulings
and jury instructions that elicit the greatest howls from defence
counsel.
In the 2000 murder case of
R v Kwesi Humphrey, for instance, Judge O'Driscoll surprised
the defence by greatly curtailing the use the jury could make
of an exculpatory statement. The defence had already closed its
case without putting Mr. Humphrey in the witness box.
"The net effect of this
is that the appellant was deprived of the benefit of an instruction
that was available on the record and that may have resulted in
his acquittal," the Court of Appeal ruled, ordering a new
trial. "For that reason alone, the error was highly prejudicial
and not capable of being saved . . ."
According to Toronto lawyer
David Bayliss, Judges Ewaschuk and O'Driscoll stand out on an
Ontario Superior Court bench that is otherwise well thought of.
"Yet, with the possible
exception of the very highly respected Justice David Watt, they
preside over more murder trials than any other judges in Ontario,"
Mr. Bayliss said. "Given this perception -- and appellate
records which have cost the taxpayers dearly over the years for
retrials of rejected convictions -- it is difficult to understand
why they continue to be routinely assigned to preside over the
most serious cases."
Even prosecutors tend to feel
uncomfortable when their cases go before Judge Ewaschuk or Judge
O'Driscoll, said a veteran Crown counsel, who asked not be identified.
"Good Crowns get worried when a trial judge helps them too
much," he said. "You end up sitting on tenterhooks
for a year and a half over whether the case is going to blow
up in the Court of Appeal."
Asked where Judge O'Driscoll
and Judge Ewaschuk rank on a list of judges prosecutors would
rather avoid for this reason, he said: "They would probably
be tied for first and second."
The prosecutor remarked that
both judges belong to an old school where it was felt that once
a presiding judge had gained a feel for a defendant's guilt or
innocence, he could "drive" the case in the appropriate
direction.
Defence lawyer Scott Cowan
recalls Judge Ewaschuk driving a case, R v Michael Watson, in
this manner in 2003. Mr. Watson's car was stopped by police in
what Mr. Cowan argued was a clear instance of racial profiling.
The Court of Appeal ultimately
overturned two firearms convictions against Mr. Watson on the
ground that by constantly interjecting while two police witnesses
were being cross-examined, Judge Ewaschuk had tainted the entire
trial.
Of course, appellate courts
can frown on a judge's conduct without actually ordering a retrial.
This happened to Judge Ewaschuk last October, when the Court
of Appeal upheld guilty verdicts in a double slaying by David
Alexander Snow. However, it showed some sharp misgivings.
The court noted that Judge
Ewaschuk had spent many a break in the trial hanging out in the
hallways, chatting with jurors or loudly disparaging Mr. Snow's
lawyer in the vicinity of the courtroom. The court also expressed
concerns about the combative relationship that had evolved between
him and Mr. Snow's admittedly truculent defence lawyer.
Judge Ewaschuk's approach "could
only be described as insulting and demeaning," the appeal
judges said. However, they said his conduct had not crossed a
magic line into rendering the trial unfair.
Mr. Green said part of the
lesson countries such as England and Canada are learning from
wrongful convictions is that senior courts must fearlessly confront
every possible cause of miscarriages, including trial judges
who do not steer an impartial course.
"I think that judges are
increasingly independent, open-minded, careful, cautious, patient
and fair. . . . But if there is a risk of judicial bias, it ought
to be vetted."
Kirk Makin is The Globe
and Mail's justice reporter.
© Copyright 2005 Bell
Globemedia Publishing Inc. All Rights Reserved.
- Judge asked to step
down from trial
- He faces allegations
of creating perception of bias against defendants in his 20 years
on bench
Shannon Kari, CanWest News
Service, February 11, 2005
TORONTO -- A veteran Ontario
Superior Court judge has been asked to remove himself from a
murder trial, before it has even begun, in an extraordinary legal
motion that alleges he has created a perception he is biased
against defendants.
The "combined effect"
of "impugned conduct" by Justice Eugene Ewaschuk in
the more than 20 years he has been on the bench leaves a "reasonable
person" with an "apprehension of bias," documents
filed in Ontario Superior Court this week allege.
The allegations are made by
Edward Sapiano, a lawyer representing Richard Brewster, whose
second-degree murder trial is scheduled to begin in front of
Ewaschuk Monday. A standard publication ban prohibits the reporting
of any evidence in the Brewster proceedings before a jury has
been selected.
Ewaschuk, who was appointed
to the bench in 1983, has presided over a number of high-profile
criminal proceedings in his career, including the trial of the
parents of Randal Dooley, who were convicted of second-degree
murder in the beating death of the boy.
Another widely reported case
was the prosecution of Rohan Ranger, who was convicted in the
brutal 1995 murders of two Toronto sisters.
The Ontario Court of Appeal
has ordered a new trial for Ranger, which is scheduled to begin
this spring. The appeal court said that it was granting a new
trial, in part because of the "cumulative effect" of
legal errors by Ewaschuk, states Sapiano in a nearly 60-page
legal factum.
The court documents refer to
a number of other appeal court decisions, dating back to 1985,
that Sapiano claims are critical of the conduct or comments of
Ewaschuk during criminal trials.
A remark by Ewaschuk that allegedly
discounted a statement under oath by a Vietnamese person because
the oath is probably "foreign to them," was described
as "plainly unacceptable," by the Court of Appeal in
a ruling issued in 2000, the documents state.
An excerpt of a 1983 decision
written by Ewaschuk himself, that appears to criticize two lower
court judges for their "active participation" in court
proceedings, is included in the factum. Ewaschuk suggests that
"active participation" could "bespeak the taking
of sides" and create an "appearance of partiality,"
Sapiano claims.
The experienced trial judge
has ignored his own caution in that 1983 ruling, suggests Sapiano
in his written argument.
"Over the course of time,
the learned Justice Ewaschuk has allowed his enthusiasm for trials
to 'bespeak the taking of sides.' Cumulatively, his actions,
conduct, comments and courtroom dispositions have, with time,
now coalesced into a real and clear apprehension of bias from
the perspective of reasonable and informed people," writes
Sapiano.
The fact that Ewaschuk has
been overturned by the Court of Appeal because of legal error
is not sufficient to create the perception of bias, says Sapiano.
However, the lawyer writes that he has "been unable to locate
a single case where the learned Justice Ewaschuk committed an
error -- as determined by the Appellate Courts -- that inured
to the benefit of the accused."
The defence lawyer indicates
in the court documents that he would like to call witnesses to
testify about the judge's reputation in the community, when the
hearing begins Monday. The documents claim that inmates, guards
and lawyers regularly refer to the judge privately by the nickname
"Tex."
Since Ewaschuk has been "seized"
with the Brewster trial, he will preside over the hearing that
is seeking his removal from the case.
© The Vancouver Sun
2005
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
