A judge who rules without reasons
It’s a pretty good gig: A salary of $ 308,600 a year; a job for life ( or until the mandatory retirement age of 75) and then a sweet pension; minimal accountability.
In fact, judges are answerable to the public — as invariably their assistants will explain whenever a judge is asked for comment by impertinent reporters — only through the reasons they issue for their decisions.
So what then explains Ontario Superior Court Judge Susanne R. Goodman and her curious pattern of failing to do that?
Goodman was this week slammed by the Ontario Court of Appeal for her astonishing conduct in a case called R v Sliwka.
Her failure to give written reasons, despite repeated pledges to do so, “has frustrated the proper administration of justice,” the appeal court said. It ordered a new trial for Stanislaw Sliwka, calling this “a terrible result for everyone involved in this proceeding.”
On March 11 last year, Goodman acquitted Sliwka of several serious assaults, physical and sexual, upon a complainant known only as A.C., despite the fact that evidence from police officers who answered a 911 call “offered significant support” for A.C.’s allegations and contradicted Sliwka’s version.
For the record, the allegations were awful: Sliwka was charged with three offences relating to an alleged attack on March 1, 2014, and five to his alleged assaults upon A.C. the year before.
In the March 1 attack, he allegedly beat her so badly with a mop stick that she was covered in blood, whereupon he allegedly put her in the tub to clean her up and then sexually assaulted her.
In brief oral reasons given from the bench, Goodman said she’d had “full opportunity to carefully consider the matter” and promised to deliver detailed written reasons three days later, “on March 14, 2016.”
All she said, by way of a window into her thinking, was that her acquittals shouldn’t be taken as an acceptance of Sliwka’s version of events, that A. C. indeed had been “assaulted and wounded” on or within a few days of March 1, that she had found the police officers honest and that she wasn’t satisfied beyond a reasonable doubt that Sliwka was guilty.
Sliwka’s explanation, by the by, was that a mysterious unknown intruder had broken into the apartment and attacked A.C.
Well, March 14 came and went with no written decision.
Crown prosecutors had started an appeal, and to “perfect” it — meaning, to make their case based on the judge having made a legal error — they needed her reasons.
Between April and September that year, the Crown “made repeated inquiries through the trial judge’s assistant.”
“Presumably acting on instructions from the trial judge, her assistant repeatedly advised the Crown that ‘ comprehensive reasons’ would be available on the date specified by the assistant.”
Each of those dates, the appeal court said, also came and went. “No reasons appeared.”
Finally, that September, the Crown wrote Goodman directly, advising her that the Crown would now argue that the appeal “should pro- ceed on the basis that no further reasons for judgment existed.”
Goodman didn’t deign to even respond to the Crown’s letter.
At the time the appeal was argued, on May 9 this year, there were still no reasons.
The court was especially troubled by Goodman’s failure to explain her acquittals on the March 1 charges. The evidence of the police officers was so important — it corroborated some of what A. C. had testified to and undercut Sliwka’s story of the intruder.
“The silence of the trial judge about these inconsistencies begs the question — given that the trial judge found the officers to be honest witnesses, what did she make of the flat- out contradictory evidence given by (Sliwka)?”
And t he court noted: “Nor is this the first time that this trial judge’s failure to provide reasons has required this court to order a new trial. It must be the last time.”
That was a reference to a 2011 case called R v Cunningham, where Goodman also failed to provide reasons for a critical Charter motion until more than two years after her decision.
Kamar Cunningham was one of two men stopped in their car on March 6, 2008. Cunningham allegedly had a loaded handgun tucked into his pants.
At trial, lawyers for the two argued that the police stop was arbitrary, that the police had lied, and that their misconduct was so serious the evidence about the guns had to be tossed.
Goodman acquitted the men on April 8, 2009, and said in open court, “The reasons for my ruling, as I said before, will be provided to you and that will be done by email this afternoon.”
No reasons materialized. An assistant in the Crown’s office contacted Goodman’s assistant in late July, and was told the reasons were coming in a matter of days.
Three more times that happened.
She finally produced the reasons May 4, 2011 — the very day the appeal was scheduled to be heard.
She offered no explanation for the two- year delay, this in a case where the accused had “important constitutional rights at stake,” two of the police officers “had their professional reputations on the line” and issues of real public concern — the proliferation of handguns on Toronto streets and the use of racial profiling by police — were at play.
The appeal court set aside the acquittal and ordered a new trial, noting that how it looked was that the late-in-the- game reasons didn’t reflect Goodman’s actual reasoning process, but “were i nstead an after- the- fact justification for the result.”
The Canadian Judicial Council’s executive director, Norman Sabourin, has “initiated a review” of Goodman’s conduct.
Perhaps that will remind the judge of her most minimal obligations to the public, not to mention the ordinary courtesy of answering letters from lawyers who appeared before her. It isn’t much that is asked of the judiciary.