Tuesday, January 13, 2009

Arbiter's reaction to lawyer no proof of bias against Fantino, court hears

TORONTO — An adjudicator had every reason to feel he was being threatened by an experienced lawyer acting for Ontario Provincial Police Commissioner Julian Fantino, and his reaction did not show he was biased, a court heard Thursday.

Lawyer Julian Falconer, who represents two officers charged by Fantino with professional misconduct, told Divisional Court the adjudicator's reaction to being told he would be appealed if he didn't step down was perfectly understandable.

"It is not in the least surprising," Falconer told the three-judge panel.

"It was an extraordinary submission to make to an adjudicator. It was unnecessary. It was offensive."

At issue is whether Leonard Montgomery is unfit to continue hearing the disciplinary case against the two senior officers, as Fantino contends.

At the disciplinary hearing in October, Fantino's lawyer Brian Gover asked Montgomery to step down and said he would take the matter to court if the retired justice did not do so.

Gover also insisted he had the full support of the province's attorney general - something the ministry immediately disavowed.

An angry Montgomery refused to step down.

Gover's comments, Montgomery said, amounted to a "highly improper" attempt to intimidate a judicial officer.

He also complained about apparent political interference and conflicts of interest related to the Ministry of the Attorney General's involvement.

In his submissions, Fantino's new lawyer Tom Curry told Divisional Court that Gover's comments were in response to pointed questions from the defence.

It was an "unjustifiable attack" for Montgomery to accuse Gover, who was only being "candid," of intimidation, Curry said.

At several points, Justice James Carnwath challenged Curry's assertion that Montgomery had shown bias rather than a normal reaction to Gover's announcement that he would go to court if not satisfied.

"This kind of statement leads to some pretty harsh responses from the bench," Carnwath noted.

"(Montgomery) was pretty constrained."

Curry insisted the adjudicator had, on several occasions, shown hostility to the prosecution.

He also complained Montgomery had unfairly called Fantino's credibility into question when the commissioner changed his testimony during the disciplinary hearing.

Among other things, Montgomery had said he was "upset" by what had happened.

Curry said the comments show the adjudicator had closed his mind to any "innocent explanation" for Fantino's change.

"It is crystal clear the adjudicator has gone beyond permissible criticism, commentary and rulings," Curry said.

Falconer said the recusal motion appeared designed to derail Fantino's cross-examination, and he urged the judges to let the disciplinary proceedings continue.

The labyrinthine disciplinary hearing involves two former members of the provincial police internal standards bureau.

They are accused under the Police Services Act in relation to an investigation they did into how officers responded to a domestic violence complaint involving an officer and his estranged wife more than four years ago.

But the case has ensnared Fantino, with the defence accusing him of petty vindictiveness and witness tampering.

The attorney general has also been forced to disavow Gover's assertion that it backed his request for Montgomery to recuse himself.

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