Judicial Council ignores its own rules to protect chief justice McMurtry

By C. Gwendolyn Landolt
Jan 24, 2007

On July 17, 2006, lawyer Ms. C. Gwendolyn Landolt, laid a complaint with the Canadian Judicial Council about the conduct of Ontario Chief Justice Roy McMurtry in the same-sex marriage case, which was handed down in June 2003. She stated in the complaint that his actions in that case gave rise to an apprehension of bias for a number of reasons, including the fact that Chief Justice McMurtry’s daughter was a lesbian living in a homosexual union at the time the case was argued.

Mr. Justice Rosenblatt of the New York Court of Appeal recused (withdrew) himself from the same-sex marriage case before that court because of his daughter’s lesbian orientation. The New York Court of Appeal rejected same-sex marriage in July, 2006.

Further, two weeks subsequent to the court’s decision, the Chief Justice partied with two of the litigants and a photograph of the Chief Justice and the litigants together is widely available on the internet.

In the Judicial Council’s letter dated December 19, 2006, the Council claimed:

… the sexual orientation of a judge’s children, and indeed the fact that a judge’s children are married or living in a common law relationship are not, in Chief Justice Scott’s view, indicative of any bias on the part of a judge.

The Council, however, was well aware that the issue before the Court was whether same-sex unions should be legally recognized, i.e., whether they should be recognized and acquire legal rights. That is, the case dealt specifically with the legal rights of same-sex unions – a matter which directly related to Judge McMurtry’s daughter’s own personal relationship. In short, the central issue before the court was whether same-sex relationships could acquire rights and privileges heretofore denied them, and this directly applied to his daughter’s situation.

The Council, however, concluded that there is no basis to support the view that Chief Justice McMurtry should have recused himself on the basis of the personal relationship of members of his family.

This conclusion, however, flies directly in the face of the guidelines of the Canadian Judicial Council set out in its document, “Ethical Principles for Judges,” (1998), Chapter 6:

Conflicts of Interest

§ Judges should disqualify themselves in any case in which they believe they will be unable to judge impartially.

§ Judges should disqualify themselves in any case in which they believe that a reasonable, fair minded and informed person would have a reasoned suspicion of conflict of interest between a judge’s personal interest (or that of a judge’s immediate family or close friends or associates) and a judge’s duty.

§ The potential for conflict of interest arises when the personal interest of the judge (or of those close to him or her) conflicts with the judge’s duty to adjudicate impartially. Judicial impartiality is concerned both with impartiality in fact and impartiality in the perception of a reasonable, fair minded and informed person.

§ … a judge … should disqualify him or herself if aware of any interest or relationship which, to a reasonable, fair minded and informed person would give rise to reasoned suspicion of lack of impartiality.

§ …a judge should disclose on the record anything which might support a plausible argument in favour of disqualification ….

It seems clear that the Judicial Council chose to ignore its own guidelines in order to protect Chief Justice McMurtry.  In regard to Chief Justice McMurtry partying with the same-sex litigants two weeks after the decision was handed down, the Council said:

"… it is well established that Chief Justices have public and representative functions as well as judicial responsibilities. Attendance at such events is important to ensure ongoing exchanges between the judiciary and other members of the legal profession. If Chief Justice McMurtry was asked to have his photograph taken with Messrs Bourassa and Varnell, it might indeed have been viewed as mean-spirited or worse to have declined. …"

If a judge had refused to be photographed with any other successful litigant in a case he had recently presided over, it would have been regarded as a reasonable and common sense decision on his part. In the case of these particular litigants, according to the Council, such a refusal would have been “mean-spirited or worse”. A shallow double standard.

The decision of the Canadian Judicial Council on the complaint against Chief Justice McMurtry indicates that the purpose of the Canadian Judicial Council is not to protect the public from the judges, but rather to protect the judges from the public. It also maintains the myth that judges are above politics, impartial and objective. Such is not necessarily the case.


Chief Justice McMurtry who was a member of the panel of judges who recently decided the controversial 3-parent case, will reach mandatory retirement age in May of 2007.