In an unprecedented decision the Federal Court also ordered the Ontario Superior Court Justice to personally pay the legal costs of a man he sent to prison.
The Federal Court of Canada has refused a motion to release a judge as a party in a Judicial Review of a Canadian Judicial Council ‘CJC’ decision concerning his alleged misconduct.
At issue is a CJC decision about the actions of Ontario Superior Court Justice J. Bryan Shaughnessy after a civil case hearing where the judge sentenced Donald Best, an unrepresented litigant, to three months in prison for civil contempt of court.
Judge secretly created new warrant of committal in a backroom. Secretly increased prisoner’s sentence off the court record.
After court had finished on May 3, 2013 and the prisoner had been taken away to serve his three month sentence, Justice Shaughnessy went to a backroom and secretly created a new warrant of committal that increased the prisoner’s jail time by a month. Justice Shaughnessy did this off the court record, out of court, without telling the prisoner and without placing the new warrant of committal into the public court record.
The judge gave the only copy of the warrant to prison authorities and ordered that the prisoner was not to have knowledge of the creation of the court order.
Senior lawyers shocked by Justice Shaughnessy’s misconduct
Justice Shaughnessy’s misconduct shocked many members of Ontario’s legal profession. Several senior lawyers, including a retired Crown prosecutor, examined the evidence against the judge and made comments such as…
“In all my years of practicing law, this is the most disgusting thing I have ever seen a judge do.”
“Reprehensible misconduct by a judge that undermines the very foundations of justice.”
“Shaughnessy’s misconduct is worthy of his removal from the bench.”
When the Canadian Judicial Council summarily dismissed a complaint against Justice Shaughnessy without an investigation, the complainant Donald Best filed an Application for a Judicial Review of the CJC’s decision – and named Justice Shaughnessy as a party.
Justice Shaughnessy then filed a motion asking the court to:
- Release Justice Shaughnessy from being a named party to the Judicial Review.
- Strike the majority of Donald Best’s affidavit evidence filed in the Judicial Review.
- Strike parts of Best’s Application for a Judicial Review and modify the Judicial Review procedures.
- Order that Donald Best, the Applicant for the Judicial Review, pay Justice Shaughnessy’s legal costs in the motion.
Costs order against judge unprecedented in Canadian Legal History
The Federal Court of Canada denied every part of Justice Shaughnessy’s motion, and in an unprecedented decision in Canadian legal history, ordered that Justice Shaughnessy should personally pay $2,500 in legal costs to the complainant Donald Best: a man the judge had sent to prison.
Although this writer is open to correction, research to date indicates that this is the first time ever in Canadian, British and USA legal history where a judge has been ordered to personally pay the legal costs of anyone – let alone a person he sent to prison.
Justice Shaughnessy did not appeal the order of the court, which is now confirmed.
Nobody acting for the Public Interest
In a move that many legal professionals find surprising, the Ontario Ministry of the Attorney General is not acting for the people of Ontario and the public interest, but instead is the personal lawyer for Justice Shaughnessy. The Attorney General of Canada apparently represents the Canadian Judicial Council and sided with Justice Shaughnessy in the hearing of his denied motion.
As Toronto defense lawyer Paul Slansky is acting for Donald Best, it appears that the public interest is unrepresented in an important matter concerning serious misconduct by an Ontario Superior Court Justice.
The date for the Judicial Review of the CJC decision has not yet been set, but is expected to take place sometime in 2017.
Written by Donald Best
Court Documents in the Public Record
January 17, 2017 Federal Court of Canada Order and Reasons (PDF 250kb)
April 14, 2016 – Notice of Application (PDF 711kb) by Donald Best for a Judicial Review of CJC decision.
December 2, 2016 Memorandum of Fact and Law (PDF 436kb) – Paul Slansky for Donald Best
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