Canadian Judge Faces Scrutiny by Federal Judicial Council

BarristerIt’s been a busy few years for Canada’s Judicial Council, the body that reviews complaints against federally appointed judges in Canada.

While all eyes and ears were focused on the lengthy and salacious Justice Lori Douglas Inquiry, which finally ended with the announcement of her voluntary retirement in November 2014, and the welcomed termination of the “dog and pony show” that the Inquiry became, other members of the Judicial Council have been anything but idle.

In 2012 Quebec’s Chief Justice brought forward a complaint to the Judicial Council with respect to Superior Court Justice Michel Girouard, a 2010 appointment to the Quebec bench. A separate Inquiry of another Quebec judge was commenced in 2014.

With far less media scrutiny than Lori Douglas endured, the allegations against Justice Girouard centre on informants who say the judge was a regular customer of a certain drug dealer in Val d’Or while he was a lawyer.

More startling yet are the allegations that he had gangsters install a marijuana grow operation in his basement and offered legal advice in exchange for cocaine, even when he became a judge!

Wiretap evidence played at the Inquiry revealed conversations between the judge and his alleged drug dealer where the pair discussed when he could pick up certain “videos” and whether there were any good “videos” available that week. Inquiry counsel, Marie Cossette, argued that “videos” was subterfuge for “cocaine”.

Perhaps even more damning is the existence of a surveillance video of the learned jurist recorded two weeks before his appointment to the bench, where he is seen purchasing cocaine at the back of a local video store, from the same drug dealer heard in the wiretaps.

The video, which has not yet been viewed by the Inquiry panel, is said to show a transaction between the judge and Yvon Lamontagne, the store owner, who sold drugs at the back of his store and is said to be a major player in the drug scene in Northern Quebec. The wiretaps and video were collected during a successful drug sting called “Crayfish”.

Judge Girouard denied all the allegations, explaining that Mr. Lamontagne was a client to whom he was giving advice on a tax matter. He said he often visited clients’ businesses to conduct meetings.

The issue before the Inquiry panel last week was the admissibility into evidence of the video. Lawyers for Judge Girouard argued the publication of photos of their client with drug dealers or pedophiles in the course of his law practice would be damaging to his reputation and hurtful to his family. They also suggested the surveillance was unlawful and a violation of his fundamental rights.

Ms. Cossette responded saying that Judge Girouard should have no expectation of privacy when he conducts a meeting in a store with the office door open and a clerk and customers just a few steps away.

While Judge Girouard’s lawyers complained that Ms. Cossette was reaching far beyond her role as independent counsel, a strategy reminiscent of the perpetual criticism of independent counsel(s) in the Lori Douglas Inquiry, Chief Justice of Manitoba, Richard Chartier, who is chairing the Inquiry panel, confirmed his view that Ms. Cossette’s conduct was “very honourable”.

It remains to be seen whether Judge Girouard’s alleged conduct will be similarly ascribed.

Lawdiva aka Georgialee Lang

Judicial Shaming of Convicted Judge Nixed by Court of Appeal

GEO#1As Elton John wrote: “Sorry seems to be the hardest word”, an adage that is certainly true for convicted Pennsylvania Supreme Court Justice Joan Orie Melvin, who was ordered to deliver a written apology to every judge in the State as part of her sentence for using state facilities and staff to run her judicial election campaign. The problem Ms. Melvin had with the order was that she was to write the apology on a photograph of herself in bracelets, also known as handcuffs.

Former Judge Orie Melvin and her two sisters were upwardly mobile stars in the Republican political firmament in Pennsylvania. Joan was initially appointed to the bench and thereafter ran several successful re-election campaigns. Joan’s sister Janine Orie worked with her, and sister Jane Orie was a Republican Senator for the State of Pennsylvania.

Unfortunately, both sisters were also charged and convicted of improper use of state services, facilities, and staff to advance Jane’s Senate campaign. Janine was also convicted in respect of Joan’s judicial campaign, while Jane was charged but acquitted.

It wasn’t bad enough that Judge Orie Melvin lost her judicial position and her pension, but she was also ordered to serve three-years of house arrest with electronic monitoring, followed by two-years probation and community service in a local soup kitchen three days a week, together with a substantial fine.

On appeal the requirement that the apology to her fellow judges be written on a photograph of her with handcuffs was eliminated, the court finding that its only purpose was to shame and humiliate her. Appeal Court Judge Christine Donohue wrote:

“The trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues.”

However, the first batch of letters she sent to over 600 Pennsylvania judges were not good enough according to sentencing Judge Lester Nauhaus. Her first letters included the phrase “As a matter of law I am guilty of these offences”. Judge Nauhaus was not impressed with her lack of humility and ordered a rewrite which he said he would vet before the letters were delivered. He also criticized Ms. Orie Melvin’s lawyer, Patrick Casey, for the feeble apology.

On her second attempt she wrote:

“As a former member of the Pennsylvania Judiciary, I realize that my conduct has impacted the public’s perception toward the judiciary and the difficulty it has imposed upon the discharge of your responsibilities as a judge…I accept responsibility for the crimes for which I have been convicted. I regret any harm my conduct has caused you.”

How sad that three accomplished women in the same family lacked the integrity to conduct themselves in accordance with the privilege of the offices they held.

Lawdiva aka Georgialee Lang

The Curse of the In-Person Litigant

GEO_edited-1I guess I’ve been lucky because I have never had to do a trial where the opposing party acted in person, “pro se”, as they call it in the United States.

Why lucky? Because some of the worst trial horror stories involve litigants acting for themselves while their spouse has to pay a lawyer hundreds of dollars an hour to respond to often marginally relevant or unreasonable litigation tactics.

A good example is the case of G.T. v A.T. 2014 NY Slip Op 24035 where Mr. T., a well-educated engineer, just short a few credits for his doctorate degree, turned what should have been a three-day trial into a 12-day debacle.

Judge H. Patrick Leis III of the New York Supreme Court described Mr. T.’s behaviour in the opening paragraph of his Reasons:

“This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney. The manner in which the defendant presented his minimal evidence, fueled by his own emotional agenda, lacked direction, reason and oftentimes was totally devoid of probative value.”

In many family law cases a case management judge is assigned to deal with all pretrial matters and preside over the trial. Such was the case in G.T. v. A.T., where Mr. T. and his wife brought their procedural issues to Judge Leis for resolution.

During this 18-month period Mr. T. expressed his satisfaction to the Court with the way these preliminary matters were handled.

Nothing Mr. T. said pretrial could have foretold the application he brought when the trial commenced.

With almost no notice to his wife’s lawyer, Mr. T. argued that Judge Leis should recuse (remove) himself as the trial judge because he had been “disrespectful of the parties’ culture and faith, repeatedly pressuring Mr. T. to retain counsel with coercion and threats”.

Mr. T.’s complaints of judicial threats were held to be without foundation, Judge Leis pointing out that he was in receipt of five letters from Mr. T., all glowing with praise of the judge’s pretrial rulings. Remarkably it was Mr. T. who was disrespectful, advising the judge that if he did not recuse himself he would report him to the Commission on Judicial Conduct.

But that was just Day 1. Mr. T. wasted additional court time with a rambling, unfocused, and mainly irrelevant opening statement, the gist of which was his desire to reconcile with his wife.

He then cross-examined his long-suffering wife for four days, ignoring the Court’s direction that he should ask questions of her, not deliver time-consuming, self-serving statements.

He also disregarded the Judge’s evidentiary rulings and even after admonishment carried on with lines of questioning that were beyond the scope of the trial. He refused to abandon his recusal argument and raised issues about orders pronounced by the court months before. Worst of all, he was rude and nasty, shouting aggressively at his wife and her lawyer.

Of course, the main victim of his flagrant abuse of the court system was his wife, who had to take an additional nine days of holiday from her workplace to complete what should have been a three-day trial, and was now subject to ever-increasing legal fees.

Interestingly, Mr. T. had quit his job shortly after the couple separated, a tactic that was futile, since Judge Leis imputed $120,000 income to him, despite his refusal to work.

Unfortunately, short of finding a belligerent litigant in contempt of court, all a judge can do is award costs. That’s just what Judge Leis did, saying:

“Simple justice dictates that the defendant who chooses to function from a position of anger and resentment, not be allowed to purposely drive up the plaintiff’s counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees. Therefore, in an exercise of this court’s discretion, the defendant is responsible for all of the plaintiff’s counsel fees for trial.”

You think Mr. T. is done with court proceedings? Think again…there’s always the appeal court.

Lawdiva aka Georgialee Lang

Judge’s Child Support Ruling Goes Viral

_DSC4179 - Version 2Life isn’t always fair, but Carnell Alexander expected that a judge in Michigan would right the wrong. As he described it:

“How can you start a case with a lie? The mom lied. The process server lied. Now I have to pay for it.”

In 1987 a young woman gave birth to a child. In order to get welfare funds from the government she was obliged to fill out a form indicating who the father of her child was. She named Carnell Alexander as her child’s father.

She then filed a court action alleging he was the father and sought child support.

A process server was hired to personally deliver the court documents to him, as was required by law.

A court hearing took place but Carnell Alexander wasn’t there. He was in jail serving time for a juvenile offence.

Later in the early 90’s Carnell was checked in a routine traffic stop and advised there was a warrant for his arrest. The police officer told him he was a “deadbeat dad”.

You can imagine his surprise…he had never received notice of the paternity hearing as he was behind bars at the time, and he swore he had no children.

He began searching for the woman who had named him as father so he could prove he was not, through DNA testing, but his efforts failed until 2013 when a paternity test was administered.

With his grade 8 education and no assets or income, he could not afford a lawyer, but each occasion he went to court he repeated the refrain that he was not the child’s father.

But the government wanted him to pay arrears of child support of $30,000, so he showed up in court on his own expecting that justice would prevail. Boy, was he wrong!

Judge Kathleen McCarthy said she was “outraged that Mr. Alexander for two and a half decades failed to take this matter seriously.”

She said that Mr. Alexander should have filed documents protesting paternity years ago and because he did not, he must pay the support.

Yes, even though he had no notice, was not the father, and the child’s biological father was in his life, he must pay.

Feeling helpless, Mr. Alexander went to Michigan radio station WXYZ who broadcast his story.

And yes, Judge McCarthy was outraged about that too saying:

“I am outraged at the media for the willful misrepresentations of the facts of this case. Casting this court in a negative light.”

Due to the media exposure Carnell Alexander now has a pro bono lawyer, Cherika Harris, who has vowed to continue the fight for him.

As for Judge McCarthy, it is not the radio station that has cast a negative light on her court. She did that all on her own.

Lawdiva aka Georgialee Lang

Court Takes Evidence of Parental Alienation Seriously

_DSC4851A Court in Belgium has ordered a 13-year old girl to check into a psychiatric facility so that experts can figure out why the young girl refuses to look at or speak to her father, after her parent’s high-conflict divorce.

Father’s lawyer said that both parents lashed out at each other during their tense separation and divorce, and ultimately, their daughter lived primarily with her mother and maternal grandparents.

But nobody can point to an incident that would cause a child, who otherwise had a loving relationship with her father, to turn against him. Even the mother’s lawyer agreed that he was a normal father, with no evidence of personality issues or sexual abuse.

Respected psychotherapist Lut Celie opined:

“The father and mother parted on bad terms during the divorce battle with each parent trying to blacken the other. This went so far as to affect the child whose character was not fully developed.”

The Court was told that during a four-year period father and daughter had over 100 visits and each and every time, she refused to interact with him.

During the girl’s first communion at church, she became upset that her father was present and made such a public scene, he was forced to leave the church.

Rather than suggesting that mother and grandparents try to persuade their daughter to engage in a normal father/daughter relationship, a judicial direction that is often futile, the judge removed the girl from her mother’s care and control and into treatment.

Mysteriously, the teenager refuses to explain her behaviour. Kudos to the judge for his determination to get to the bottom of her conduct.

Mom, of course, is furious with the judge’s decision, saying:

“My little girl is being taken from the warmth of her home and away from her school where she is happy and has many friends. This is so heartless… It’s just because her father is insisting. She’s 13 years old now and old enough to know her own mind.”

Sure sounds like parental alienation syndrome…and if it is…it’s despicable, but hopefully not too late.

Lawdiva aka Georgialee Lang

Witty Judge Pens Acerbic Judgment

GEO CASUALMr. Justice Joseph Quinn of the Ontario Superior Court well-deserves his international reputation as a clever intellect, a raconteur of immense talent, and a really funny scribe.

In one of his latest judgments, The Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Limited, et al., 2014 ONSC 583, his acerbic wit shines as he records his fond memories and legal findings of a 72-day trial, spread over three years, that dealt with the allegedly fraudulent sale and purchase of a hearing aid business in Niagara Falls, Ontario.

The star witness in the case was Stefan Fridriksson, an audiologist who purchased a hearing aid business from the corporate defendant. While his lawyer referred to him as “Dr.”, Quinn J. put an end to that designation upon learning that the title was prohibited by the College of Audiologists and Speech-Language Pathologists of Ontario.

Blessed with an orderly mind, Justice Quinn set out a Table of Contents with headings that include:

“Is There a Doctor in the House?

“Fridriksson plays Lieutenant Columbo with Inspector Clouseau results”

“All the Madness That’s In Your Head”

“….Nor Hell A Fury Like an Audiologist Scorned”

“Fridriksson The Fabricator”

While trial counsel usually turns to the back page of Reasons for Judgment to see the results of a trial, in this case, the Table of Contents gave it all away.

Yes, the trial got off to a shaky start, described by Justice Quinn in his first paragraph:

“Leave an untruthful man in the witness box long enough and he will reveal himself to the world. Here ends the lesson, but not the story.”

Unfortunately, the first witness was Dr., no make that Mr. Fridriksson who according to Quinn J. “sub-let the witness box for 26 days” with dire results:

“He entered the box as an articulate professional with impressive academic credentials, displaying what appeared to be a sound and comprehensive recollection of events. When he stepped down, after more than 14 days of withering cross-examination, he was noticeably dazed, his credibility was reduced to existential confetti and he even appeared to be physically shorter than when the trial began.”

Fridriksson turned out to have a less than credible curriculum vitae. Where he noted he was a professor he wasn’t, when he said he was an adjunct professor, he wasn’t that either. What was he? An unpaid lecturer!

But that was the least of his problems. The Court identified the often troublesome task of determining credibility:

“We have no special powers in that realm and, wherever possible, avoid reliance upon darts, dice and Ouija boards. However, rarely, has a witness generously offered up so many reasons to be disbelieved. Fridriksson was an evidentiary gift who kept on giving. He ignored rule number one
in the Litigants’ Credo: “Know thyself, because others soon
will.” Enough of this preamble. Come with me now on a visit to the phantasmagorical work of Fridriksson. Pack light.”

But the quips keep on coming, like an avalanche:

“For Fridriksson truth is like a spandex undergarment:he can stretch it to fit anything.”

“Readers must never forget. This is a key witness for a plaintiff alleging oral false misrepresentations.”

“I do not know who enjoyed this cross-examination more, me or (defendant’s counsel). The only thing missing was popcorn.”

“His testimony deserves a special descriptor, coined for the occasion: “incredibull.”

This judgment tickled me so much that I recommend you read all 326 pages…it’s a laugh a minute. Oh, yeah, Fridriksson was awarded $423.00 in damages.

One last zinger:

“Fridriksson has taken everyone on a hideously time-consuming and obscenely expensive journey down his private yellow brick road to the outskirts of the Emerald City where, it appears, he has a residence. It was not a worthwhile adventure,” the judge writes.

Lawdiva aka Georgialee Lang

Judge Sentences Family Lawyer to Jail and Hefty Fine for Alleged Sarcasm

DSC00507 (2)I guess he woke up on the wrong side of the bed….what else could explain the short-tempered reaction of Chief Judge A.J. “Buddy” Welch Jr. of Henry County Juvenile Court in Georgia to family law lawyer Ella A.S. Hughes?

In the midst of his decision to remove Ms. Hughes’ client’s children from their home and into the custody of the child protection authorities, the following exchange took place:

“Judge Welch (to Hughes): “That expression, ma’am, just cost you $100. You are removed from the court approved list.”

Hughes tries to speak up, but Welch tells her to stop.

Judge Welch: “Your sarcastic looks and your sarcastic attitude is unacceptable to this court. You are removed from the appointed list. You can reapply at some other time. You can stay on the cases that you presently have but if I ever see that action from you again I can assure you that appropriate actions will be taken. Do you understand that, ma’am?”

Hughes: “Yes, sir.”

Judge Welch: “You may not like my rulings but you can surely appeal them.”

Hughes: “If I may, Your Honor, the only thing I did was bow my head to write down what you were saying.”

Welch: “No, ma’am. You did not. Now you have tested the court’s patience. I find you in willful contempt of this court. You are fined $1,000 and you are given 10 days in jail. Take her into custody. I want the record to reflect that the attorney I just had to hold in contempt was not just bowing her head but she was giving sarcastic, unprofessional looks, body action that showed her disgust for the court’s ruling and disrespect for the court in its entirety.”

And off she went to jail…for a few minutes…paid her fine and headed to the courtroom where her next client awaited her.

The Georgia Appellate Court overturned the contempt finding made against Ms. Hughes…Just another day in the life of a trial lawyer.

Lawdiva aka Georgialee Lang