A debate on whether
judicial comments apply
in subsequent proceedings
■ R v. Ghorvei
SHANNON KARI
The weight a judicial finding
against a non-party should be
given in a subsequent disciplinary proceeding has been the
subject of high-profile debate
recently in Ontario, with widely
divergent views as to the correct
legal answer.
A media report uncovered
more than 100 examples in Canada where judges found that officers had lied in court testimony.
These findings were categorized
as no more than “comments” by a
Toronto police spokesman.
At the same time, in the so-called “civility” prosecution of
Joseph Groia, the Law Society of
Upper Canada is arguing that
comments by a Superior Court
judge and the Court of Appeal
about the conduct of the Toronto
securities lawyer, is “prima facie
proof” of his misconduct.
The jurisprudence, while limited in this area, appears to support
the observations of the Toronto
police, in assessing the weight of
these types of judicial findings.
David Tanovich, a criminal
law professor at the University
of Windsor, said the Toronto
Star series of articles about
police lying on the witness
stand, revealed a significant
problem within the justice system. “For a court to go as far as
to say, ‘I find you are lying,’ is
not just a comment. It is very
powerful,” he said.
However, its legal weight is
limited, in part because of a 1999
decision by the Ontario Court of
Appeal in R v. Ghorvei [1999]
O. J. No. 3241.
The ruling focused on whether
a police officer could be cross-examined on a judicial finding in
a previous case that he had lied
under oath. “In my view, it is not
proper to cross-examine a witness
on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in
and of itself, does not constitute
discreditable conduct,” Justice
Louise Charron wrote on behalf
of the court.
The decision in Ghorvei is still
good law, said Tanovich, co-
author of a legal text on evidence.
A finding that a witness was
untruthful is “nothing more than
an opinion. It cannot be used in
a disciplinary proceeding. It is
not admissible.”
The ruling “further shields
police misconduct,” added Tan-
ovich, who hopes the Court of
Appeal will have an opportunity to
reconsider its decision in Ghorvei.
A decision by the Ontario Court of
Appeal in 1999 is one of the few
cases where courts have ruled on
the use of a judicial finding against
a non-party in a subsequent
proceeding. Here is an excerpt
from the ruling written by Justice
Louise Charron (with Justices
Stephen Goudge and Karen Weiler
concurring) in R v. Ghorvei.
Groia
Tanovich
Curry
If a judge finds that an officer
lied on the stand, “it can’t be used
against him” in a police act matter, said Leo Kinahan, a lawyer in
Newmarket, Ont.
“If the judge is suggesting the
officer lied, it is a subjective opin-
ion,” added Kinahan, who fre-
quently acts for police. “It is
grounds to open up an [disciplin-
ary] investigation. It does not
reach the level of saying: ‘Well, we
just have to file the judgment.’ ”
In its prosecution of Groia,
however, that is the position the
Law Society is taking.
A Superior Court judge and
the Ontario Court of Appeal
turned down applications by the
Ontario Securities Commission to
remove the trial judge in the case
of former Bre-X executive John
Felderhof. In both instances, the
judges were critical of Groia’s
conduct in defending Felderhof.
“The judgments of the
Superior Court of Justice and the
Court of Appeal for Ontario constitute clear and unequivocal
findings binding on the Panel in
respect of certain of the issues
raised by Mr. Groia in the hearing,” said Law Society prosecutor
Tom Curry in final submissions
filed with the disciplinary panel
this spring. (The panel reserved
its decision.)
Groia responded that while the
rulings are admissible under the
Law Society’s Rules of Practice
and Procedure, they are only
proof against a party to the previous proceeding. “This is not the
case here, where Mr. Groia was
not a party,” wrote Earl Cherniak,
who is representing Groia.
Judicial findings against a non-party or third party, should trigger
some follow up action, said Lorne
Sossin, dean of Osgoode Hall Law
School in Toronto.
“Ignoring it and saying it has
no relevance, does not live up to
regulating in the public interest.
The issue is what can it be used
for? The most likely scenario is
that it becomes part of the record,
but not something binding on the
parties,” said Sossin, who has
written extensively on the legal
process in Canada.
In the case of alleged mis-
conduct by a lawyer, a judge
“has ways to communicate to
the Law Society,” Sossin said.
For other regulated professions,
he suggested there be some
form of reporting mechanism
when a court has made a find-
ing against a non-party that
may constitute misconduct.
I do not think it would be
useful to allow cross-examination of a witness on
what is, in essence, no more
than an opinion on the credibility
of unrelated testimony given by
this witness in the context of
another case.
The triers of fact who would
witness this cross-examination
would not be able to assess the
value of that opinion and the
effect, if any, on the witness’s
credibility without also being
provided with the factual
foundation for the opinion...
Sossin
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