TORONTO -- An Ontario judge refused to allow a parade of criminal lawyers to testify yesterday about whether he is biased toward the Crown, saying that sort of "rumour and mere gossip" could harm the judiciary.
Mr. Justice Eugene Ewaschuk of the Superior Court of Ontario made the ruling at a bizarre hearing to establish whether he habitually favoured the Crown during his 22 years on the bench.
Defendant Richard Brewster is asking Judge Ewaschuk to remove himself from a second-degree murder trial, based on the fact that a reasonable person would perceive an "apprehension" of general bias.
In his ruling, Judge Ewaschuk said it is hardly surprising that many defence lawyers "abhor" an experienced, no-nonsense judge who can see through courtroom manoeuvres and keep them in line.
Judge Ewaschuk said it would be a grave mistake if he were to allow lawyers to air their complaints about judges, reducing the judicial process to "a popularity contest" and causing the public to think judges can be intimidated or influenced. "In effect, this motion has the far-reaching effect of attempting to prohibit me from sitting in future on all criminal matters," Judge Ewaschuk added.
Jovial and visibly engaged on Tuesday -- the first day the motion was argued -- Judge Ewaschuk was combative yesterday. He showed increasing flashes of anger as defence counsel Edward Sapiano repeatedly attacked rulings the Ontario Court of Appeal has found fault with.
"You're not going to find any case that says I was basically unfair," Judge Ewaschuk said.
"The Court of Appeal has disclosed you are the brother of bias," Mr. Sapiano responded.
Judge Ewaschuk said that in order to succeed with his motion, Mr. Sapiano will have to establish that his entire career has betrayed a "pattern of systemic bias" favouring the Crown.
He said it is not enough to merely show that a judge has the odd case overturned. "Judges are human," Judge Ewaschuk said. "Judges err. They don't go out deliberately to make legal errors so they can be reversed."
Editorial: Judges don't err; they apply the presumption of innocence principle
However, Mr. Sapiano insisted that any judge with Judge Ewaschuk's obvious grasp of the law could never innocently make the sort of mistakes he habitually makes.
"I'd argue that you are an extraordinarily intelligent individual, well versed in law," Mr. Sapiano said. "But you're still biased. . . . Given your superior intellect, these errors are not real errors."
Mr. Sapiano read excerpts from one appellate decision after another, attempting to explain why it fit a pattern of a biased judge. Judge Ewaschuk interrupted so frequently to explain the context of each case that the proceeding resembled a free-wheeling debate.
"I tend to intervene," Judge Ewaschuk conceded at one point. "I correct lawyers. I correct Crown as much as defence counsel. . . . The problem is that I'm getting old and impatient with fumbling counsel."
"Let's get real," Judge Ewaschuk said during one exchange about an overturned decision.
"How am I being unreal?" Mr. Sapiano shot back.
Judge Ewaschuk acknowledged that in one specific trial, the appeal court had said he was unfair to the accused. "It's one trial, that's all . . . I want you to go onto the next case," the judge said. "I'm not going to let you drag this out."
"When inadvertence happens again and again and again and again, a pattern develops," Mr. Sapiano retorted.
A controversial judge smiled broadly yesterday as his 22-year career on the bench was described as a series of "train wrecks."
Mr. Justice Eugene Ewaschuk of Ontario Superior Court appeared unperturbed as defence counsel Edward Sapiano accused him of being so pro-Crown that Mr. Sapiano's murder client, Richard Brewster, is destined to become another of the judge's victims.
Mr. Sapiano, who is attempting to have the judge recuse himself, told the court that assembling a list of cases overturned on the basis of Judge Ewaschuk's alleged unfairness was simple: "I just walked out the front door and looked at the train wrecks."
Known among lawyers as Tex because he shoots from the hip, Judge Ewaschuk told Mr. Sapiano that he purposely did not read a defence brief because it was "better for my blood pressure."
Nonetheless, he sparred with Mr. Sapiano throughout the day, occasionally exchanging humorous asides, snorting in derision or pointedly correcting Mr. Sapiano's pronunciation of other judges' names.
The arguments in court yesterday centred on whether a group of 10 defence lawyers will be allowed to testify about a general feeling in the legal community that Judge Ewaschuk favours the Crown.
But the judge openly questioned whether a clutch of defence lawyers regurgitating hallway gossip can possibly reflect how average citizens would feel about his courtroom performance.
Judge Ewaschuk also noted that lawyers are not representative of the average person, given that opinion polls show them ranking in the "bottom one-third" of all professions when it comes to public respect.
"Do you judge me on one or two cases, or on 200 or 300 cases?" the judge asked. "You could end up having a popularity contest, calling 10 defence counsel to say a judge is biased, and then the Crown calls 10 witnesses to say he is not biased."
"Wrong!" Mr. Sapiano exploded. "This isn't a popularity contest. . . . They would be testifying that they have spoken to numerous people, that among hundreds of lawyers your reputation for unfairness is well known."
Crown counsel Sarah Welch, in turn, argued that Mr. Sapiano is engaged in a blatant attempt to "judge-shop," hoping to turf Judge Ewaschuk from the case and obtain one he prefers.
"If this application were successful, it would prohibit the trial judge from ever sitting on criminal trials again," Ms. Welch added in a written brief. "In essence, the applicant is attempting to change the composition of the criminal bench."
Ms. Welch warned that if Mr. Sapiano succeeds in removing Judge Ewaschuk, it would tarnish the entire justice system and serve to intimidate other judges.
"The potential would be for a parade of lawyers to come before the court and give their two cents worth as to what they think your reputation is in courthouse hallways," she told court.
But Mr. Sapiano said there are much easier ways to get rid of a judge. "If I or my client were here judge-shopping, it would be easier if I went to the courthouse washroom and smashed my head against the marble walls than to make this motion," he said.
"I would have waited until you recovered," the judge shot back.
Feet propped up against his desk top, Judge Ewaschuk also asserted that lawyers assess judges based on how their own cases have fared. "I talk to certain lawyers in the street who praise a certain judge who rules in favour of them even though I don't think that judge is very bright."
He intends to rule today on whether the lawyers can testify.
When these two jurists are assigned cases, the lawyers cringe. But both are having a bad winter. One was raked over the coals by the Appeal Court and the other is being asked to recuse himself from a case.
Before a jury had even been selected for the massive, $2M Rosie Rowbotham drug trial in 1984, it was obvious that the proceeding was ill-fated.
Mr. Justice Eugene (Tex) Ewaschuk had created a novel jury-selection procedure that favoured the Crown -- one that a dozen defence lawyers in the case knew the Court of Appeal would never approve. To make matters worse, he had broken a fundamental legal rule by temporarily banishing one of the defendants from the courtroom.
The case played out for a year and, sure enough, the Appeal Court eventually ordered a retrial based on Judge Ewaschuk's gaffes.
"There was a strong sense from the moment he made that ruling that it was doomed," defence counsel Melvyn Green recalled. "A year of everybody's time and effort was wasted. It was as if there was no trial. It never happened."
It was just Tex Ewaschuk's first big trial, and he was already on his way to being a courtroom legend.
At roughly the same time, hundreds of kilometres away in a Windsor courtroom, Mr. Justice John O'Driscoll was presiding over a rare contempt-of-court hearing for criminal lawyer Guy Cottrell.
Mr. Cottrell had run afoul of Judge O'Driscoll by calling him "the captain of the Crown's ship" -- a label that has stuck to this day wherever courthouse tongues wag. The judge convicted the lawyer and fined him $2,000.
Judge Ewaschuk and Judge O'Driscoll of the Ontario Superior Court have two things in common these days. First, they rank as the undisputed "bêtes noires" of the defence bar -- jurists whose in-court performance is perceived as consistently favouring the Crown. Second, each judge has had an unusually tough winter.
Judge O'Driscoll was raked over the coals by the Ontario Court of Appeal in December for giving unbalanced, prejudicial instructions to the jury in the notorious Robert Baltovich murder case.
"Read as a whole, it unduly promoted the case for the Crown and effectively ignored and denigrated the case for the defence," the appellate judges said.
They said that his loading the dice in favour of the Crown was needless and inexcusable, considering the cost of rerunning a major murder trial.
However, the embarrassment Judge Ewaschuk faces in a Toronto courtroom on Tuesday probably dwarfs anything either judge has experienced in the past. Edward Sapiano, a lawyer for accused murderer Richard Brewster, will argue an extraordinary motion to have the judge recuse himself from the trial .
Mr. Sapiano maintains that Judge Ewaschuk has spent his career bolstering the prosecution side of cases, giving rise to a perception of bias at the outset of the Brewster trial.
In an accompanying affidavit, Mr. Brewster says he fell into a depression upon learning that he had drawn Judge Ewaschuk for his case.
Judge Ewaschuk is known far and wide in the jail system by a rhyming nickname -- You is Fucked, Mr. Brewster said. "With scary consistency and frequency, he -- in his capacity as a judge -- has been described differently, but always in the manner that describes him as an exceptionally unfair judge.
"I not only gave up hope of receiving a fair trial, but I knew right then that the learned Justice Ewaschuk was going to do everything within his power, and more, to convince the jury to convict me no matter how the evidence comes out."
Mr. Sapiano, an outspoken leader in the defence bar, alleges in a legal brief that Judge Ewaschuk's favourite tactics include: innuendo, demeaning defence lawyers, interfering in their cross-examinations, misrepresenting the defence position, and repeatedly giving the Crown a leg up.
"When one is facing a murder trial over which Judge Ewaschuk presides, that apprehension becomes a powerful, reasonable and debilitating fear of an unfair trial," he wrote.
Both judges declined requests to be interviewed for this article.
“I'm sure in Vietnam there's no oath, so it's foreign to them
While their partiality may be arguable, nobody disputes the fact that they are intelligent and learned in the law. Ontario Superior Court judges are appointed by the federal government and must retire at 75.
Bluff, hearty and possessed of a booming voice, Judge Ewaschuk, 64, is a one-time Crown attorney and director of criminal law at the Saskatchewan Justice Department. He lives up to his Tex nickname by shooting from the hip with frequent interruptions and observations.
In a 2000 case that was overturned on appeal, for instance, Judge Ewaschuk stereotyped a nation by saying the Vietnamese "are notoriously hostile to giving statements to police." He added later: "I'm sure in Vietnam there's no oath, so it's foreign to them."
Judge O'Driscoll, 73, has an entirely different style. Appointed in 1971, he has a measured, intense manner and rarely interrupts. It is his legal rulings and jury instructions that elicit the greatest howls from defence counsel.
In the 2000 murder case of R v Kwesi Humphrey, for instance, Judge O'Driscoll surprised the defence by greatly curtailing the use the jury could make of an exculpatory statement. The defence had already closed its case without putting Mr. Humphrey in the witness box.
"The net effect of this is that the appellant was deprived of the benefit of an instruction that was available on the record and that may have resulted in his acquittal," the Court of Appeal ruled, ordering a new trial. "For that reason alone, the error was highly prejudicial and not capable of being saved . . ."
According to Toronto lawyer David Bayliss, Judges Ewaschuk and O'Driscoll stand out on an Ontario Superior Court bench that is otherwise well thought of.
"Yet, with the possible exception of the very highly respected Justice David Watt, they preside over more murder trials than any other judges in Ontario," Mr. Bayliss said. "Given this perception -- and appellate records which have cost the taxpayers dearly over the years for retrials of rejected convictions -- it is difficult to understand why they continue to be routinely assigned to preside over the most serious cases."
Even prosecutors tend to feel uncomfortable when their cases go before Judge Ewaschuk or Judge O'Driscoll, said a veteran Crown counsel, who asked not be identified. "Good Crowns get worried when a trial judge helps them too much," he said. "You end up sitting on tenterhooks for a year and a half over whether the case is going to blow up in the Court of Appeal."
Asked where Judge O'Driscoll and Judge Ewaschuk rank on a list of judges prosecutors would rather avoid for this reason, he said: "They would probably be tied for first and second."
The prosecutor remarked that both judges belong to an old school where it was felt that once a presiding judge had gained a feel for a defendant's guilt or innocence, he could "drive" the case in the appropriate direction.
Defence lawyer Scott Cowan recalls Judge Ewaschuk driving a case, R v Michael Watson, in this manner in 2003. Mr. Watson's car was stopped by police in what Mr. Cowan argued was a clear instance of racial profiling.
The Court of Appeal ultimately overturned two firearms convictions against Mr. Watson on the ground that by constantly interjecting while two police witnesses were being cross-examined, Judge Ewaschuk had tainted the entire trial.
Of course, appellate courts can frown on a judge's conduct without actually ordering a retrial. This happened to Judge Ewaschuk last October, when the Court of Appeal upheld guilty verdicts in a double slaying by David Alexander Snow. However, it showed some sharp misgivings.
The court noted that Judge Ewaschuk had spent many a break in the trial hanging out in the hallways, chatting with jurors or loudly disparaging Mr. Snow's lawyer in the vicinity of the courtroom. The court also expressed concerns about the combative relationship that had evolved between him and Mr. Snow's admittedly truculent defence lawyer.
Judge Ewaschuk's approach "could only be described as insulting and demeaning," the appeal judges said. However, they said his conduct had not crossed a magic line into rendering the trial unfair.
Mr. Green said part of the lesson countries such as England and Canada are learning from wrongful convictions is that senior courts must fearlessly confront every possible cause of miscarriages, including trial judges who do not steer an impartial course.
"I think that judges are increasingly independent, open-minded, careful, cautious, patient and fair. . . . But if there is a risk of judicial bias, it ought to be vetted."
TORONTO -- A veteran Ontario Superior Court judge has been asked to remove himself from a murder trial, before it has even begun, in an extraordinary legal motion that alleges he has created a perception he is biased against defendants.
The "combined effect" of "impugned conduct" by Justice Eugene Ewaschuk in the more than 20 years he has been on the bench leaves a "reasonable person" with an "apprehension of bias," documents filed in Ontario Superior Court this week allege.
The allegations are made by Edward Sapiano, a lawyer representing Richard Brewster, whose second-degree murder trial is scheduled to begin in front of Ewaschuk Monday. A standard publication ban prohibits the reporting of any evidence in the Brewster proceedings before a jury has been selected.
Ewaschuk, who was appointed to the bench in 1983, has presided over a number of high-profile criminal proceedings in his career, including the trial of the parents of Randal Dooley, who were convicted of second-degree murder in the beating death of the boy.
Another widely reported case was the prosecution of Rohan Ranger, who was convicted in the brutal 1995 murders of two Toronto sisters.
The Ontario Court of Appeal has ordered a new trial for Ranger, which is scheduled to begin this spring. The appeal court said that it was granting a new trial, in part because of the "cumulative effect" of legal errors by Ewaschuk, states Sapiano in a nearly 60-page legal factum.
The court documents refer to a number of other appeal court decisions, dating back to 1985, that Sapiano claims are critical of the conduct or comments of Ewaschuk during criminal trials.
A remark by Ewaschuk that allegedly discounted a statement under oath by a Vietnamese person because the oath is probably "foreign to them," was described as "plainly unacceptable," by the Court of Appeal in a ruling issued in 2000, the documents state.
An excerpt of a 1983 decision written by Ewaschuk himself, that appears to criticize two lower court judges for their "active participation" in court proceedings, is included in the factum. Ewaschuk suggests that "active participation" could "bespeak the taking of sides" and create an "appearance of partiality," Sapiano claims.
The experienced trial judge has ignored his own caution in that 1983 ruling, suggests Sapiano in his written argument.
"Over the course of time, the learned Justice Ewaschuk has allowed his enthusiasm for trials to 'bespeak the taking of sides.' Cumulatively, his actions, conduct, comments and courtroom dispositions have, with time, now coalesced into a real and clear apprehension of bias from the perspective of reasonable and informed people," writes Sapiano.
The fact that Ewaschuk has been overturned by the Court of Appeal because of legal error is not sufficient to create the perception of bias, says Sapiano. However, the lawyer writes that he has "been unable to locate a single case where the learned Justice Ewaschuk committed an error -- as determined by the Appellate Courts -- that inured to the benefit of the accused."
The defence lawyer indicates in the court documents that he would like to call witnesses to testify about the judge's reputation in the community, when the hearing begins Monday. The documents claim that inmates, guards and lawyers regularly refer to the judge privately by the nickname "Tex."
Since Ewaschuk has been "seized" with the Brewster trial, he will preside over the hearing that is seeking his removal from the case.