[Response of the Canadian Judicial Council to a complaint filed regarding Justices Colin McKinnon and James Chadwick at the first Project Truth sex abuse trial of lawyer and Church canon lawyer Jacques Leduc. (This was the trial which was taken by a judge with a serious conflict of interest. It degenerated into the trial of former Constable Perry Dunlop and earned Leduc a stay.]
July 17, 2001
Ms. Sylvia MacEachern
Dear Ms. MacEachern:
Our File: 01-005
I write further to my letter of May 15, 2001 concerning your complaint against Mr. Justice C.D.A. McKinnon and Mr. Justice J.B. Chadwick of the [Ontario] Superior Court of Justice. I forwarded you complaint to the Honourable Richard J. Scott, Chairperson of the Judicial Conduct Committee of the Council and Chief Justice e of Manitoba. Chief Justice Scott sought comments from the two judges.
Having carefully reviewed the matter, including transcripts of the hearings, Chief Justice Scott has concluded that your allegations of misconduct have not been substantiated. Under the Judges Act, the Canadian Judicial Council has a limited mandate to investigate complaints against federally appointed judges for the purposes of determining whether there is any evidence of misconduct which might result in a recommendation by the Council to the Minister of Justice of Canada, after a formal investigation, that a judge be removed from office by Parliament for any of the reasons set out in ss.65(2) the Act. That subsection provides that a removal recommendation may be made where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of age or infirmity, having been guilty of misconduct, having failed in the due execution of the office of judge, or having been placed, by his conduct or otherwise, in a position incompatible with the due execution of the office of judge. In deciding that no investigation is warranted the Council, in specific circumstances where appropriate, may express disapproval of the conduct of a judge. The Council has no other powers.
In particular, with regard to your allegation of conflict of interest on the part of Mr. Justice McKinnon, Chief Justice Scott advises that any perception of conflict of interest was addressed and resolved by the decision of Mr. Justice McKinnon not to hear the application for a stay of the trial filed by the defence.
With regard to your suggestion that the alleged conflict of interest “stemmed from Mr. Justice McKinnon’s extensive prior involvement with the Cornwall Police Service and its
former Chief, Claude Shaver“, the record reveals that the charges against Jacques Leduc were brought by the O.P.P. and prosecuted through the Crown law office in Toronto. Mr. Justice McKinnon advised that he was assigned the case in the normal course of trial assignments and not as a conspiracy to acquit Mr. Leduc, and that he had no previous dealings with Jacques Leduc. He had no fears that he could preside over the Leduc trial with complete impartiality. Perry Dunlop had not been listed as a witness for the trial.
Your speculation that Mr. Justice McKinnon was “feigning ignorance” of his past involvement with Perry Dunlop is pure speculation. Mr. Justice McKinnon stated that he had quite simply forgotten his involvement with Perry Dunlop. It would appear that until the hearing of February 19, 2001 Mr. Justice McKinnon had not recalled his previous brief involvement as counsel to a third party. Mr. Justice McKinnon advised that he did not as a consequence find any basis for recusal, but that the fact that he had completely forgotten any involvement concerned him sufficiently that he felt he should determine the extent of any involvement with regard to Perry Dunlop. After verification, Mr.Justice McKinnon decided to have another judge hear the application for the stay. He then advised Senior Justice Cunningham of the necessity of having another judge preside because he believed that the appearance of impartiality might be compromised. After verification as to the availability of a judge, Senior Justice Cunningham informed Mr. Justice McKinnon that Mr. Justice Chadwick would hear the motion.
In this respect, Chief Justice Scott advises that, as soon as the judge became aware that he had been briefly involved seven years previously, as counsel to another party, with regard to Perry Dunlop, he properly declined to hear the motion for a stay, since Perry Dunlop was to be called as a witness for the application to stay by the defence.
Chief Justice Scott is of the opinion that, in the circumstances, a reasonable, fair-minded and informed person would conclude that any perceived conflict of interest arising had thus been properly dealt with by the judge. Chief Justice Scott is also of the opinion that no reasonable, fair-minded and informed person would see any alleged “predisposition to grant an application for stay” on the part of Mr. Justice McKinnon, since the application for stay was heard and determined by another judge, Mr. Justice Chadwick.
With regard to your allegation that the judge denied the victims their right to trial by jury, you must be aware, since you indicated that you attended every day of the trial, that the Crown consented to the request by the Defence for re-election of a trial without jury.
Mr. Justice McKinnon indicated in his comments that defence Counsel were at all times respectful and restrained in their cross-examination of the complainants. Chief Justice Scott advises that there is nothing unusual about vigorous cross-examination of witnesses in the course of defending a case in an adversarial system such as ours, the theory being that this will encourage and uncover the truth, especially in a criminal trial where the liberty of the accused is at stake and where the onus is on the Crown to prove its case beyond a reasonable doubt.
With regard to the hearing of the defence application for a stay, Mr. Justice Chadwick advised that he was assigned by Regional Senior Justice Cunningham to hear the stay in the Leduc trial. As the remainder of your allegations deal with the findings and decision of Mr. Justice Chadwick, Chief Justice Scott advises that the Council has no jurisdiction to deal with such matters. The Council is not a court.
It has no authority to review a judicial decision for the purpose of determining its correctness. Nor can the Council change a judgment or order a new trial. Such powers rest only with appellate courts, including, in certain circumstances, the Supreme Court of Canada.
Judges are required to make findings of fact and to apply the law as they understand it to the facts established by the evidence. Errors or alleged errors in judicial decisions, without more, do not amount to judicial misconduct, and they can be reviewed only by way of appeal. Furthermore, it is within the judge’s discretion as to the manner in which he conducts the proceedings, Allegations of a denial of natural justice, of bias, that the judge misapprehended or ignored evidence or erred in law or in fact, can only be examined by way of appeal. As you know the decision of Mr. Justice Chadwick was appealed and the matter is now before the Ontario Court of Appeal.
In the circumstances, as there is no basis for any further action by the Council pursuant to its mandate under the Judges Act, Chief Justice Scott has directed me to close the file with this reply.