Judge won’t recuse himself over ‘scowl’

Litigants, he rules, aren’t allowed to dispose of judges based on ‘specious partiality claims’

The stern look from up high on the bench was apparently a bit too much for one man.

Kersasp Shekhdar recently tried to have Ontario Court of Appeal Justice David Doherty — considered the top criminal law jurist on the court — recuse himself for, among other issues, his tone of voice and “scowling visage” while presiding over a previous case involving Shekhdar.

Doherty refused to step back from the matter, while writing rather detailed reasons about the importance of an impartial justice system and why judges should take any claim of bias — real or perceived — seriously.

“Litigants are not entitled to pick their judge.”

DAVID DOHERTY ONTARIO COURT OF APPEAL JUSTICE

“In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim,” Doherty wrote in his decision released this week.

“That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal de- mands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.”

Shekhdar, who represented himself, lives in Pakistan, according to the decision. He told the Star by email that he intends to ask a panel of three appeal court judges to review Doherty’s decision.

Doherty also denied Shekhdar’s motion for extra time to seek leave to appeal a decision from a lower court.

A request for comment from Doherty sent to the court was not returned.

“Different judges conduct them- selves differently in court; some of them are very reluctant to intervene, some ask a lot of questions, some have a very kind and soft manner and some are a little more aggressive,” said Howard Krongold, a lawyer who specializes in criminal appeals and who was not involved in the case.

“I think anybody who has ever appeared in front of Justice Doherty would know that he’s exceedingly fair-minded, and perhaps this litigant got the wrong impression because of what he perceived in the tone of his voice.”

Doherty sat on two previous appeal court panels that heard matters involving Shekhdar.

The man argued that in both instances, the panels’ reasons for dismissing his cases “are so lacking in substance and so clearly wrong in law as to be explainable only by ‘racism, corruption and/or criminal case fixing,’ ” Doherty wrote, quoting part of Shekhdar’s written submissions.

Shekhdar further alleged that Doherty’s tone of voice and “scowling visage” while delivering the reasons in the previous case demonstrated the appeal judge’s contempt for Shekhdar.

“He writes that he ‘suspects’ that my ‘contempt’ reflects my racism and disdain for anyone who is not a ‘white Canadian.’ Finally, the moving party (Shekhdar) asserts that I did not pay attention during the proceedings and fell asleep,” Doherty wrote.

He noted that Shekhdar has made allegations of misconduct against many judicial players in the past, including a number of other judges. Doherty found there was “no air of reality” to his accusations of bias.

“Judges are able in almost all instances to carry out their jobs impartially, and there are rare instances where a judge may create the appearance of bias, and in those cases it’s necessary for the judge to step away from the case,” said criminal defence lawyer Daniel Brown, who was not involved in the case.

“Simply showing a facial expression is not a basis to prove bias in any way, especially when there is no jury who could potentially be influenced by those facial expressions,” he said.

“In fact, in many cases, the facial expressions are helpful to guide a lawyer on the weaknesses in their own arguments, and what they need to do to persuade the judge of their position.”