Law Times

PAGE 4 NEWS November 29, 2010 • Law Times Court denies ousted JP's bid for reinstatement BY MICHAEL McKIERNAN Law Times statement two years after he was removed for asking a superior to make an investigation into his behaviour "go away." Benjamin Sinai had asked for a judicial review of the 2008 commissioner's report that rec- ommended his removal and the order in council that formally ousted him, which he called un- reasonable in the circumstances. Sinai became the subject of A a Justices of the Peace Review Council investigation in 2006 following accusations that he pressured a traffi c court defen- dant into a guilty plea. In the meantime, he took a leave of absence to recover from stress and suggested to staff at the regional senior justice of the peace's offi ce that he would be able to render two outstanding former North Bay, Ont., justice of the peace has failed in his bid for rein- judgments if they could make the investigation "go away." Th e move prompted a full- scale public commission of in- quiry before Justice David Carr of the Ontario Court of Justice that sat in January 2008. In March of that year, Carr released his report recommending Sinai's removal from offi ce. An order in council from the lieutenant governor of Ontario confi rmed the recom- mendation six months later. Sinai failed to call any char- acter evidence at the original inquiry. In explaining that deci- sion in an affi davit to support his application, he noted his lawyer approached the case like a crimi- nal trial in which the burden of proof is on the Crown as well as his fear that he'd be unable to express himself properly because of his stress. He submitted fresh evidence on those issues in his quest for judicial review. "I take responsibility for my decisions not to call character evidence, not to call medical evidence, and not to testify my- self," he wrote in his affi davit. "I did not appreciate at that time that, without my explanations and apologies with respect to the complaints against me, my side of the story would remain unap- preciated by the commissioner. I now see the calling of evidence at my hearing as the road not taken, the one I wish I had taken." In his reasons for dismissing the application issued on Nov. 17, Justice David McCombs, writing for the three-judge Di- visional Court panel, said the evidence of William Brownell, a fellow justice of the peace, and Cathy Smith, a friend and neigh- bour, attested to Sinai's "fi ne character" and backed up his own expressions of regret and re- morse. Sinai also presented med- ical reports showing his health had improved. Sinai couldn't be reached for comment by press time and his lawyer on the Divi- sional Court matter, Jill Presser, declined to speak about it. Gavin MacKenzie, a partner at Heenan Blaikie LLP who repre- sented the commission during its inquiry and in the review applica- tion, consented to the submission of the fresh evidence. He notes he tries to take a more neutral position when representing com- missioners of public inquiry. In fact, he believes Sinai could have achieved a diff erent result if he had led the evidence at the time of the original commission. "Th ere are some types of mis- conduct where removal from of- fi ce is the only serious option in order to maintain public confi - dence in the administration of justice, but I wouldn't say this necessarily falls into this catego- ry," MacKenzie tells Law Times. "Th e commissioner thought the misconduct was suffi ciently se- rious to justify his removal, but it may well be that if it had been introduced, the outcome could have been diff erent." 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Hardbound • 258 pp. • November 2010 • $95 P/C 1001010000 • ISBN 978-0-88804-515-7 the original penalty was unrea- sonable, especially considering that Sinai had acknowledged all of the fi ndings of misconduct. "Th e applicant's expressions of remorse and regret can fairly be viewed as belated in the ex- treme," McCombs wrote. "Th e tardiness of his now-unqualifi ed apology reveals a disturbing lack of insight and lack of ap- preciation of the impact of his misconduct on public confi - dence in the administration of justice." McCombs also rejected Si- nai's arguments that the com- missioner had failed to consider any other disposition. He noted Carr had listed all of his avail- able options in his decision while Sinai's own lawyer never proposed any other specifi c sanction. "Th e absence of a dis- cussion as to why particular less- er sanctions were not adopted does not support the conclusion that the commissioner failed to consider alternative sanctions," McCombs wrote. McCombs also found Carr had taken Sinai's serious health issues into account as well as their implications for mitiga- tion but said he was justifi ed in considering those same factors when determining whether he had become unable to execute the duties of his offi ce. Sinai's troubles began on the morning of Sept. 5, 2005, when an uninformed defendant, Bri- an Lashbrook, appeared in his traffi c court. At the time, he had been a justice of the peace for 24 years. "Do you expect us to give you a whole education on what is to transpire?" Sinai asked Lashbrook, who replied that he had never been to court and had no idea about what he was supposed to do. "In that case, I am just going to tell you suppose you plead guilty and we get rid of it this morning," Sinai said. As a result, Carr found Sinai had breached his duty to assist Lashbrook. "Further, justice of the canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1129 CA130 www.lawtimesnews.com peace Sinai did not allow Mr. Lashbrook to comment on the facts, as alleged by the pros- ecution, and did not provide Mr. Lashbrook with suffi cient information to properly deal with the matter of disposition," Carr wrote in his report. But he was even more con- cerned by what transpired later. After Sinai took his leave of absence, his regional senior justice of the peace, Jane Forth, wrote to him about whether he could complete two outstand- ing judgments, including one that had been reserved for more than a year. Instead of speak- ing directly with Forth, Sinai pressed her assistant to "speak to her friend" and use her in- fl uence to make the council investigation "go away." Sinai never rendered his judgments, and one compli- cated case, R. v. North Bay Hospital, had to be resched- uled and heard before another judicial offi cer. LT

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