Despite its celebration of the "open court" principle, our system of justice is being tarnished by too many games of hide-and-seek.
A few weeks back, we learned about a $1 million lawsuit against the federal government being brought by Kassim Mohamed, a former Toronto school bus driver who became the focus of a 2004 anti-terrorism investigation after he was seen videotaping the CN Tower. The details of the case are shrouded in secrecy, and the precise timing and location of the trial cannot be revealed.
And then there was a story from Windsor that prosecutors and defence lawyers have been conducting preliminary hearings in criminal cases behind closed doors.
I can understand the occasional need for secrecy in order to protect national security, and I'm not really alarmed by the moving of a preliminary hearing behind closed doors (considering that this kind of hearing is primarily a discovery process for the defence in preparing for an upcoming criminal trial). But I have little tolerance for secret hearings that reduce the pursuit of justice to a private party with a restricted guest list.
Too many legal professionals appear to have graduated from the Joseph Stalin School of Law.
Consider also the festering judicial soap opera in Brampton. Judge Marvin Morten, who was Brampton's 2002 Citizen of the Year, has been dragged before the Ontario Judicial Council for conduct incompatible with judicial office. Judge Morten's fellow judges and other court staff have complained that he is a bully who has questioned their work ethic and insulted many of them by calling them "jerks" and "whimpering whiners."
Last week, the counsel for the Judicial Council requested that a publication ban be imposed on the hearing, arguing that public exposure of the bitter in-fighting among the judges would impair the administration of justice. The lawyer asserted that it would be difficult for judges in the region to effectively discharge their duties if members of the public were to read about the unflattering comments Judge Morten has directed at many other judges.
The evidence to be presented may give the impression that noble judges are bickering children, but this is a feeble justification for shielding the courts from public scrutiny. Airbrushing the blemishes from the faces of our judges is not a legitimate use of a publication ban. Fortunately, the panel members hearing the complaint about Morten rejected the requests for a publication ban and a closed hearing. The soap-opera hearing is scheduled to commence for all to see in May.
It may be an embarrassment for the bench when judges publicly testify about battling over parking spaces and whether Morten laughed at another judge "in an uproarious manner" and then called him a "pathetic piece of work." But the Morten affair is not just about exposing judges as ordinary, neurotic people. The battle between Morten and his colleagues extends to the serious issue of mismanagement of judicial resources.
Morten has consistently complained about inefficiency and indolence in the Brampton court. For example, he alleges that one judge left court early, leaving accused people in custody, in order to take his children to an *NSYNC concert.
These are troubling accusations, since we know in 1990 the Supreme Court condemned the Brampton courts for trial delays longer than any other jurisdiction "north of the Rio Grande." This triggered the so-called "Askov crisis," which saw 50,000 charges in Ontario dismissed on the basis of unreasonable delay.
A concerted effort has been made in the last decade to reduce trial delay, including the building of a new courthouse in Brampton. But despite these efforts, the Auditor General of Ontario has warned of a second Askov crisis.
Lawyers have various explanations for the problem. Some complain that the police in Brampton lay charges for every minor occurrence. Some suggest prosecutors are too hard-nosed and refuse to plea bargain. Some blame the delays on Brampton's responsibility for prosecuting lengthy drug-smuggling cases that arise from Pearson Airport. And of course, there is the ever-available excuse that the courts are understaffed and underfunded.
The unfolding story of Judge Morten reminds us that judges bear some responsibility for Brampton's dismal record on court delay. The Judicial Council may find that Morten has bullied colleagues and poisoned the working environment. It's possible that the Council may reprimand the judge or even recommend his removal.
But will anyone care to investigate his claim that some judges are working hard while others are hardly working? At least with an open hearing, we have a better chance of getting answers.
Alan Young is a professor of law at Osgoode Hall. His column appears every other week.