The Quality of Mercy and the Case of Justice Ted Matlow

Canadians are justifiably proud of the integrity of their judicial officers. The removal of a Federally appointed Superior Court judge for misconduct is exceedingly rare. There has been only one such instance in Canadian history, dating back to 1967. On December 3, 2008, the Canadian Judicial Council, by a vote of 17-4, decided not to follow the recommendation of an Inquiry Committee that Justice Ted Matlow be removed as a judge of the Ontario Superior Court of Justice. Under the elaborate procedures set out in the Judges Act, this decision is now before the Justice Minister for review. The recommendation of the Judicial Council should be swiftly confirmed and the longstanding cloud hanging over Justice Matlow finally lifted.

The basic facts of this unfortunate matter have been widely reported. Justice Matlow resides in the Forest Hill Village area in central Toronto. A joint venture by the City of Toronto for a condominium development in his neighbourhood was strongly opposed by Justice Matlow. In his private capacity, Justice Matlow organized residents and made representations to City officials taking issue with the plan. Unwisely, Justice Matlow also communicated with the media, notably Globe & Mail columnist John Barber, using his judicial letterhead and making intemperate remarks concerning members of City council and staff involved in the decision.

Justice Matlow continued to carry out his judicial duties throughout the dispute. He appeared regularly as a member of the Divisional Court, one of three judges charged with deciding appeals and judicial reviews of administrative tribunals. The City of Toronto was a frequent party before the Court. In five cases after the disputed personal issue arose in 2002, Justice Matlow was a member of the Court in which the City was involved as a party. The City was successful in every case but one.

In October 2005, a judicial review application came before the Divisional Court. The matter involved an application by a group of residents known as Save Our St. Clair protesting a City of Toronto project for the dedication of a streetcar right of way on St. Clair Ave. Justice Matlow was on the panel with two other judges. They had been hearing cases in Sudbury but finished early and were assigned to hear the application. In a decision dated October 11, 2005, the panel unanimously allowed the application and set aside the decision of the City to proceed with the project. The City did not raise any issue at the hearing with the presence of Justice Matlow on the panel. However, after the decision was announced, the City moved to set it aside on the ground of the alleged bias of Justice Matlow. In an extraordinary ruling, Justice Matlow declined to set aside the decision but his two co-panellists held that Justice Matlow should have disclosed his involvement in the private dispute, including communications he had with Mr. Barber just days before the hearing, and set aside the decision.

A complaint was made by the City to the Judicial Council. The first step in the process was an Inquiry before a panel of three judges and two senior lawyers. During his evidence before the Inquiry, Justice Matlow apologized for having exercised poor judgment in some of his remarks and contacts with the media. He provided letters of support from fellow judges and lawyers attesting to his character and conscientiousness. The Inquiry Committee considered this evidence to be irrelevant and recommended that Justice Matlow be removed from office.

A panel of twenty one judges was convened to consider the recommendation. In the thoughtful reasons of the majority, the important point is made that judges live amongst us in society and are entitled to express their opinions on matters of private concern. The use of a judicial office to promote these views was inappropriate. This was acknowledged by Justice Matlow.  The majority took issue with the proposition that the letters of reference were irrelevant. In my view, it is astonishing that such a conclusion could have been reached or that the removal of Justice Matlow for this conduct could have been recommended.

Proportionality in sentencing is at the heart of our justice system. To put it colloquially, the punishment must fit the crime. Every day, in Courts across the country, character references and letters of support are put before judges before a decision is made on an appropriate sentence. Evidence of this nature is also routinely considered in professional disciplinary matters, the rationale being that everyone can make a mistake and it is the character and background of the individual as a whole which must be considered in fashioning an appropriate sentence. This is no less true of judges.

Justice Matlow made errors of judgment which he acknowledged and for which he apologized. There was no misconduct of the kind which would warrant removal from office or punishment which was remotely close to that. What is most striking to me about this affair is that senior judges were prepared to deny the quality of mercy routinely bestowed upon others to Justice Matlow. This would not have been considered special treatment for one of their own. After a long ordeal, justice has finally prevailed.