Law Times

PAGE 2 NEWS may 9, 2011 • Law Times Toronto lawyer who clashed repeatedly with a judge during a murder trial wants to change the way judicial complaints are dealt with after the Canadian Judicial Council rejected his complaint. Toronto criminal lawyer Paul Slansky fi led his complaint against Ontario Superior Court Justice Robert Th ompson almost seven years ago following the re- trial of Vytautas Baltrusaitis on a murder charge dating back to 1994. Baltrusaitis was acquitted at the retrial, but Slansky still complained to the CJC that his client hadn't received a fair hear- ing. He alleged Th ompson was abusive, rude, and bullying and that he had done his best to en- sure a conviction. Th ompson denied those allegations and launched his own complaint against Slansky to the Law Society of Upper Canada about the lawyer's conduct in Lawyer challenges CJC's handling of judicial complaints A BY MICHAEL McKIERNAN Law Times the trial. Th ompson said he had verged on fi nding Slansky in con- tempt for disruptive and disre- spectful behaviour in court. Neither of the competing com- plaints resulted in misconduct fi ndings. Slansky, meanwhile, has now launched an application for judicial review of his complaint. He alleges the CJC investigation was "anemic" and that its whole process "of having judges judging judges' misconduct is unconstitu- tional" and appears biased. Rocco Galati, who represents Slansky in the judicial review ap- plication, says he'd like to see a more independent mechanism for dealing with complaints against judges. "I don't think judges should hear these com- plaints. Th e whole system leaves a lot to be desired because it's not just judges investigating judges. Th en if you're dissatisfi ed, you have to go back to a court. What's at stake here is public confi dence in the administration of justice and the transparency in dealing with complaints against judges that appear to hold water." Slansky's complaint was closed in March 2006 when CJC gener- al counsel Norman Sabourin sent the lawyer a letter with Mani- toba Chief Justice Richard Scott's conclusion that Th ompson had "clearly kept an open mind about the guilt of the accused" and ensured both sides were able to advance their positions in a fair and thorough manner. Sabourin also wrote that Slansky had ap- peared to provoke the judge and behaved at times in a way that was "highly unwarranted." "While the conduct of the judge may at times have fallen short of the ideal, Chief Justice Scott has concluded, for the rea- sons outlined above, that his con- duct does not constitute judicial misconduct," Sabourin wrote. Th at explanation wasn't good enough, according to Galati. "Th ey found the judge's reac- tions were justifi ed in reaction to Mr. Slansky," he says. "I say no improper reaction is ever justifi ed in reaction to anyone. Court Th e judicial council has to re- view the actions of the judge, not the actions of the lawyer." A recent decision by Federal prothonotary Martha Milczynski ordered the CJC to turn over its report on Slansky's complaint against the objections of its lawyers who claimed it was subject to solicitor-client privi- lege and that its release could hamper future investigations. Facts in the report by Uni- versity of Toronto law profes- sor Martin Friedland were key to Scott's fi nding that Th omp- son's actions didn't constitute judicial misconduct. While Milczynski ruled that portions of the report had entered the realm of legal commentary, she said it could be released with those portions redacted. "I am satisfi ed that there is a public interest in knowing how the CJC deals with complaints against judges to ensure the public has confi dence in the in- tegrity of the process and to also ensure that the application for judicial review can be conducted in a meaningful way," she wrote in the April 19 judgment. Slansky took on Baltrusaitis' case in 2002. He won a retrial on appeal of the man's 1996 conviction for the murder of his brother. Th e pretrial and trial took more than a year, culmi- nating in Baltrusaitis' acquittal by a jury in July 2004. Both sides paint a picture of a trial characterized by testy exchanges and frequent applica- tions for mistrial. In an affi davit fi led with the Federal Court dated May 31, 2006, Slansky said the trial was the most diffi cult one of his career, "primarily because of the bias and misconduct of Justice Th ompson," and had resulted in the end of his crim- inal defence practice after 15 years. Slansky became a Crown counsel prosecuting occupa- tional health and safety matters following the trial but has since returned to criminal defence. "Justice Th ompson was fre- ONTARIO LAWYER'S PHONE BOOK 2011 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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According to Slansky's com- plaint, Th ompson yelled at him and the Crown attorney in the case, imposed arbitrary time limits on his submissions, and showed bias in his rulings on ad- missible evidence. Th e fi nal straw, according to Slansky, occurred when he was confi ned to the courthouse on the third day of jury delibera- tions despite staying at a hotel that was less than a three-min- ute walk away. In his response to the allega- tions, fi led the same day as his law society complaint, Th omp- son said Slansky's claims were a "pre-emptive strike, in an at- tempt to forestall his having to face the consequences of his conduct during the trial." "Th e fact is that Mr. Slansky, from time to time during the tri- als, was completely out of con- trol," Th ompson wrote, adding he believed the lawyer was delib- erately trying to have himself cit- ed for contempt so that he could force a mistrial. Th ompson also complained about exchanges in which he al- leged Slansky had compared the court to a "son of a bitch" and de- scribed the trial as a "farce." In his affi davit, Slansky said the "son of a bitch" comment wasn't aimed at the court and that the "farce" remark was justifi ed in the context of his submissions. Th e CJC has until May 9 to fi le Friedland's redacted report with the court. www.lawtimesnews.com OLPB - 1-2 page 4X.indd 1 5/4/11 1:37:13 PM

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