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.

Ontario at bottom of class in openness

Provincial government the worst in disclosing records of interest, national audit shows

Jan 10, 2009 04:30 AM
Robert Cribb
STAFF REPORTER

A shroud of secrecy surrounding government-held records in Canada is keeping volumes of public-interest information – from municipal finance details to police use of Tasers – hidden from Canadians.

That's the conclusion of an annual audit of information laws in Canada designed to ensure public access to government records. The fourth annual national audit, conducted by the Canadian Newspaper Association, takes the pulse of government openness by filing formal requests for records ranging from public health spending to internal audits and briefing notes prepared for ministers.

"Every time we do this, it's like a mountain climber that gets a sense of just how steep the mountain is ... and how deeply ingrained the desire to keep information from the public is at some levels of government," said David Gollob, vice-president of policy and communications with the association which represents newspapers across Canada. "I think the public would be alarmed to see how closely the curtain of silence is drawn around basic information that should be available."

Based on the responses to 219 written requests for information, Ontario fared worst among provincial governments when it comes to openness with a grade of C- (shared with British Columbia) and fewer points for speed and completeness of disclosure than any other province. For the second straight year, Saskatchewan topped all other provinces on the openness scale with an A- result.

Toronto, meanwhile, was in the middle of the pack among Canadian cities with a score of C (along with Hamilton), while Ottawa was awarded a D+, Windsor a D and Thunder Bay a D-.

The Canadian Broadcasting Corporation, which first became subject to the federal Access to Information Act in 2007, was at the bottom with a D grade after taking a six-month time extension to respond to a request for the salary ranges of its top employees.

"After coming under the Act, we received an enormous volume of access to information request, orders of magnitude greater than other federal institutions," said CBC spokesperson Jeff Keay. "We immediately moved to ramp up our capacity to deal with the high volume we weren't expecting and we've been increasing our capacity to deal with it (the backlog)."

Robert Marleau, Canada's federal information commissioner, responded to the audit findings this week, saying the CBC, as a publicly funded media outlet, "should be the standard bearer of freedom of information and perform accordingly when it is the subject of requests."

In an email response to an interview request from the Star, Marleau called Canada's Access to Information Act an "outdated piece of legislation with a weak compliance model fashioned in the early 80s."

"This latest CNA audit demonstrates the need for national (freedom of information) standards and national performance incentives so that citizens can get the same answers and the same timely service whatever public bodies they seek information from in any jurisdiction," he said. "Federally, we are slipping backwards. ... (We) need more angry Canadians to write to their elected members and urge them to update and strengthen these laws."

Among the most conspicuous underperformers in the audit were police departments across the country asked for reports on their use of Taser devices. Each time an officer uses a Taser, they fill out a report documenting the circumstances, sometimes called a "use of force" report. The audit team asked police departments to provide copies of those reports as a way of determining how often officers deploy the conducted-energy devices and the outcome of those incidents.

Taser use by police has emerged as a controversial public safety issue. In 2007, Robert Dziekanski died in a Vancouver airport shortly after being jolted with a police Taser, attracting international attention and raising serious questions about safe use of the devices by police.

While some forces willingly provided the information without charge, others denied the records or demanded high fees to produce them. Winnipeg police imposed a $4,600 fee on the records. Montreal police wanted $662.50 and Ottawa's levy rang in at $125.40. Toronto police claimed a 30-day time extension which expired in late October. To date, no records have been released.

"These are officials using power on our behalf and, as a result, perhaps have the greatest onus on them to be transparent," said Gollob. "It's astonishing that there's no sense among some police forces that there's a duty to be transparent about when and how they use these weapons."

The City of Toronto failed to release any records in response to a request for details on payments it has made for goods and services, the audit reports.

In a letter to the audit team in October, city officials said the scope of the request was "too broad" and that "fulfilling it would unreasonably interfere with the daily operations of the institution."

"They just said, `Forget it, it's too much work so we're not going to do it,'" said Fred Vallance-Jones, a journalism professor at the University of King's College who managed the audit. "The City of Toronto has got some room for improvement."

Suzanne Craig, director of the city's corporate access and privacy office, which administers freedom of information requests for the city, said the records were not kept in a database that easily allowed access to the information.

"We have the information. Our frustration is that we can't get at it in that way. To tell requesters that we can't is not what we like to do. What's been identified here is a need to better manage our information. If it is not managed in a way that is accessible, then a person filing a request for something that seems straightforward is going to do a lot of waiting or paying."

The results of this year's audit resemble those of the previous three years with a patchwork of policies across the country and a majority of records being delayed, subject to high fees or withheld altogether.

"There's incredible inconsistency across Canada around access to these records," said Vallance-Jones. "One municipality would say, sure we can give you those records while others said no. It really seems to be a bit of a roll of the dice. If you live in one place, you have access, if you live in another part of the country, you don't."