Received by email:
Judicial Misconduct by Chief Justice Roy McMurtry
Ontario Court of Appeal
Ottawa, Ontario July 17, 2006
REAL Women of Canada today laid a complaint with the Canadian Judicial Council against Chief Justice Roy McMurtry of the Ontario Court of Appeal alleging judicial misconduct.
REAL Women of Canada asserts that the action of the Chief Justice in not recusing himself and in not disclosing his personal interest in the case Halpern and the Attorney General of Canada (Same-sex marriage), is judicial misconduct.
REAL Women of Canada has recently learned that Justice McMurtry’s son, Jim McMurtry, in his published letter in the Vannet B.C. newspaper chain, acknowledged that his sister, the daughter of Justice McMurtry, lives in a homosexual union. This gives rise to an apprehension of bias that Justice McMurtry had a personal and familial interest in the disposition of the Halpern case, which seriously impaired his objectivity and his ability to adjudicate the case. Justice McMurtry did not recuse himself from the case, nor did he disclose, on the record, the fact of his daughter’s homosexual relationship.
In consequence of this, additional apprehensions of bias arise against Justice McMurtry in the Halpern case:
Justice McMurtry chose and selected the judges who actually heard the case. The selection of judges sympathetic to same-sex marriage, and to his own personal views on the issue, are contrary to the judicial obligation to act objectively, impartially and with neutrality.
On June 26, 2003, two weeks after the decision, in apparent wanton disregard of judicial practice, ethics and behaviour, Justice McMurtry attended a public celebration inter alia of the Halpern decision. At this party, Justice McMurtry was photographed with his arms around a same-sex couple, Kevin Bourassa and Joe Varnell who were central to the Halpern case. This photograph is displayed on the internet. In January 2001, this same-sex couple, contrary to the law of marriage, entered into a form of marriage at the Metropolitan Community Church of Toronto (MCCT). The McMurtry court in the Halpern decision ordered the Ontario Registrar General to register the marriage certificate of this same-sex couple, Kevin Bourassa and Joe Varnell. This order of the court legalized and gave legal effect to their illegal marriage ceremony, which had no legal validity at the time it was performed. This action by the McMurtry court is conduct that undermines the fundamental obligation of judges to remain objective, neutral and disinterested in the outcome of a case.
All the above, taken together with the fact that the court ordered that the Halpern decision take effect immediately, reduced and even blocked the possibility of an appeal to the Supreme Court of Canada, an integral part of the judicial system. This judicial fiat also by-passed Parliament, the paramount institution in our system of government for decision making. This creates a reasoned suspicion of a lack of impartiality on the part of the Chief Justice.
The magnitude of the amounts awarded in costs by the Ontario Court of Appeal in the Halpern case is notable. Toronto lawyer, Martha McCarthy, counsel for the litigants challenging the traditional definition of marriage, was awarded $645,000. Toronto lawyer, Douglas Elliott, counsel for the Toronto homosexual church, the Metropolitan Community Church of Toronto (“MCCT”) was awarded $409,162 (Lawyers Weekly, November 19, 2004). The court made this award to the legal counsel for the MCCT, notwithstanding the fact the court had dismissed that church’s legal arguments.
In summary, Chief Justice McMurtry participated in the Halpern case contrary to the required ethical practices of behaviour for judges on many counts: his failure to place on record his personal and familial interest in the case and its outcome; his failure to recuse himself; his failure to respect the judicial process of appeal and review; his breach of accepted practices and behaviour of judges by publicly celebrating his own decision with those immediately affected by it, and his ignoring the role of Parliament.
All of these indicate a marked failure on the part of Justice McMurtry to fulfill the fundamental judicial obligations of office. Under these circumstances, a fair and reasonable person would reach the conclusion that Chief Justice McMurtry failed to conduct himself ethically, objectively, neutrally and with disinterest in the case.
This has resulted in a severe undermining of public confidence in the administration of justice in Canada.
-30-
Check out the Big Blue Wave Message Board
