The mudslinging behind judicial appointments- an inside look
The analogy is imperfect, but if this isn’t akin to the coverup being worse than the crime, it’s certainly an instance where the conspiracy is more interesting — and offensive — than the original sin.
In the result, the better story is not what Ontario Court Judge Harvey Brownstone said, but that it’s being used as part of a smear campaign against his candidacy for the soon-to-be-vacant chief justice’s job.
The current CJ, Annemarie Bonkalo, will step down in May.
The Ontario Court is the former provincial court, the largest and one of the busiest in Canada. The CJ and associate chief justices are appointed by the premier, though the announcement comes out of the attorney general’s office.
Those interested in the top job quietly let it be known that they are “willing to serve,” as the saying goes.
In this case, two candidates have emerged: Brownstone and Judge Lise Maisonneuve, who was elevated to associate chief judge in 2013 by then premier Dalton McGuinty.
Depending on your view, Brownstone and Maisonneuve are equally well-qualified, in that both are bilingual veteran judges, each with a diversity card to play.
Maisonneuve is a woman; Brownstone is the first openly gay judge in Canada.
But Brownstone — who has written a bestselling book about family law and hosted a TV talk show — is also an approachable innovator and might be seen a threat to some in the oft-stuffy courts.
Late last month, I got a call from an anonymous tipster who told me the there was unease on the bench about Brownstone, and nervousness that Premier Kathleen Wynne, who is openly gay herself, might give him the nod. Brownstone, this person suggested, didn’t have the necessary gravitas the chief justice requires.
What gravitas, I thought to myself? This is a rough-and-tumble court. But I was about to leave for Africa and told the caller this.
Shortly after I returned, the tipster called again, this time pitching a transcript illustrating Brownstone’s alleged unsuitability.
It arrived in the snail mail last week.
It’s the 28-page transcript of a proceeding before Brownstone on Jan. 19.
It was a plea: a young man named Fosheng Shi was pleading guilty to using an imitation firearm to rob a bank.
On June 18, 2013, Shi had entered a Bank of Montreal branch, produced a pellet gun and demanded $1,000 from a teller. She had only $160 in her till, whereupon Shi jumped the counter, persuading her to open a lockbox and give him $2,000.
The prosecutor was seeking 18 months in jail, with defence lawyer Patrick Sun asking that Shi get pre-trial credit for his 18 months of strict house arrest and receive a 90-day sentence.
Astonishingly, Shi’s parents — who divorced shortly after coming to Canada in 2003 — came up with the $2,000, which Shi handed over to a police officer to count in court.
“I’m sure the bank will be stunned,” Brownstone said. “I have never seen restitution paid in a bank robbery case.”
If this proceeding is typical, he’s remarkably frank.
Shi had an interpreter, and the judge was surprised when Sun said the family had been in Canada for 11 years.
“And he still needs an interpreter? Has he not learned how to speak and understand English, for 11 years?” he asked.
Sun explained that Shi had led “a very isolated life,” and had left school and home when he was 15 because he didn’t get along with his stepfather.
Later, the judge reproached Shi’s parents. “Trust me, neither of you are going to be nominated for parent of the year ... you better take a good look at what you have done to your son.”
Shi, who is 23 and had no criminal record, offered an apology.
Brownstone said that if his father hadn’t repaid the money, he’d send him to jail.
As he said, “you had the nerve and the boldness to jump up on to the counter and go into the bank. If you had the guts to do that, you should be locked up.”
Then Brownstone got to the bit which my anonymous caller thought was so problematic.
“So,” the judge told the young man, “you better watch it, because if you ever get into this kind of trouble again, you could end up in the penitentiary for life.
“Let me tell you something about the penitentiary. You would be very popular. You would make a lot of friends, or let me make it even more clear, they’d like you a lot. You might not like them much.
“Do you get what I’m trying to say, or do you want a demonstration?” Shi understood. “Watch it,” Brownstone said. “I am saying this to protect you. If you ever, ever end up in a penitentiary, you will never come out the same way you went in.”
The judge gave Shi 90 days, to be served on weekends, with an array of conditions — among them, because the young man had had a number of casino cards on him when he was arrested, a two-year ban on entering a casino.
“You go to a casino,” he warned, “you will be charged with breach of probation. By the way, don’t go dressed in drag — they catch you that way too.”
I’ve checked: The transcript is making the rounds in the court.
Brownstone wouldn’t comment on the appointment process, but remembered the case. “I stand behind what I said,” he told the Post. “It’s very important to convey to young people that the penitentiary isn’t a walk in the park.”
I can’t rouse myself to be offended by a single word he said that day; give me a plain-spoken human being over a robotic judge any day. But I’m sure troubled that someone is using the transcript to try to sink him.