November 4th marked the 20th anniversary of the Court of Appeal for Ontario's ground-breaking decision in Hryciuk v. Ontario (Lieutenant Governor) 31 O.R. (3d) 1. This was the case in which Justice Hryciuk, then a Provincial Court Judge was removed from office following a hearing before Madame Justice MacFarland only to be overturned by the Court of Appeal. The case is both novel and highly relevant in terms of the principles of law which flowed from it. Those principles of law remain binding legal authority with respect to the removal from office of judicial officers and is consequently a matter of public importance. Accordingly, I wish to outline the very unique facts of the case and outline exactly what the Court of Appeal ruled.
The Initial Complaint:
Two complaints were ordered to a hearing against Justice Hryciuk. They were:
1. That His Honour Judge Walter P. Hryciuk, on Saturday, January 18, 1992, at Old City Hall, Toronto, did sexually assault Ms. Kelly Smith, An Assistant Crown Attorney for the Toronto Region.
2. That His Honour Judge Walter P. Hryciuk, in 1988, made remarks of a sexual nature to Ms Susan Lawson, an Assistant Crown Attorney, and drew her attention to a sexually graphic light switchplate in his judicial chambers.
The Parties:
On July 26, 1993 applications for standing were heard and granted to Judge Hryciuk, to Kelly Smith and to Susan Lawson.
Counsel for the Parties:
Richard D, McLean, Q.C. and Mark Elkin for Judge Hryciuk
Douglas C. Hunt, Q.C. and Jane Kelly for Kelly Smith and Susan Lawson
Dennis R. O'Connor, Q.C. and Freya Kristjanson - Commission Counsel
Duration of proceedings:
"In addition to the two motion days, July 26 and August 23, there were ten days; September 13-17, September 30 and October 4-7, during which time, witnesses were heard and one day, October 7, for final submissions and argument, a total of thirteen days in all. Some sixty-one witnesses gave evidence before he Commission."
How Justice MacFarland
Exceeded her jurisdiction:
"I am in total agreement with Mr. Justice Keith on this point. In my view, it is the duty of the Commission to hear any and all relevant matters pertaining to the issue before it; it would be wrong to limit the inquiry to a consideration of only the two matters heard by the Judicial Council.
It seems to me that one of the purposes of the public inquiry is to open up to the public process, which to that point in time, has remained private. It must be expected that members of the public who may think they had information relevant to the issue before the Commission, would come forward. It would not, I suggest, be a very satisfactory response, nor in the public interest, to tell such persons that they must first make their complaint to Judicial Council, and then to have, if that body considers it appropriate, a second inquiry. To say nothing of the perception that would be left with the public were such complaints ignored by this Commission and particularly so where one judge is in effect being asked to judge the conduct of a fellow judge.....This is a public inquiry and I feel duty bound to consider all evidence if it is relevant.
The Additional Complaints:
1. Judge Boivard: His Honour Judge Hryciuk grabbed the buttocks of a fellow female judge;
2. Judge Knazen: His Honour Judge Hryciuk stood up and thrust his pelvis toward the back of the same female judge as though simulating a sexual act, and made a comment about "X liking it from the back" or something similar;
3. Marilyn Bartlett: Judge Hryciuk grabbed her wrist and said, "How would you like to have dinner with me next Wednesday ?"
4. Marilyn Bartlett: On another occasion she overheard a comment that Judge Hryciuk made to the court reporter assigned to his courtroom, namely, "Well, how would you like to spare half an hour of your time with me at 4:30 this afternoon after court ?" "Ms. Bartlett said that the manner in which he made the comment was such that it had a sexual connotation." On yet another occasion Ms. Bartlett was in Judge Hryciuk's courtroom and she heard him say to a female duty counsel, Ms. Black, "How about your phone number ?" Ms. Bartlett thought the comment was inappropriate and it made her feel uncomfortable.
5. Dale Lumb: "Dale Lumb did not directly make any complaint against Judge Hryciuk. Her name was mentioned in the context of another witness, Lesley Baldwin. Ms. Baldwin had testified that when she was in the washroom at the Brampton court staff Christmas party several women had come to her to complain about Judge Hryciuk's conduct that evening. Ms. Lumb was one of the women mentioned by Ms. Baldwin....During a slow dance with Judge Hryciuk his hand slipped under her dress. Ms. Lumb asked Judge Hryciuk to move his hand and he did so. She claimed the incident had no effect on her and as she put it "whatever happened at the time was forgotten at the time."
6. Suzanne McKenzie: "She too, was at the Brampton court staff Christmas party in 1991. Ms. McKenzie like Ms. Lumb made no complaint directly about Judge Hryciuk, but her name was also mentioned by Ms. Baldwin as being one of the women who complained to her about Judge Hryciuk's conduct that evening. During a slow dance with Judge Hryciuk that evening his hand slid from her back to her lower back just above her buttocks. She said she not feel comfortable with where his hand was and she moved it up and said: "No, please don't at which point Judge Hryciuk stopped.
7. Kelly James: "Judge Hryciuk shook her hand, straightened up slightly and as she leaned to kiss him on the cheek he said to her "Give me a big Christmas hug" pulling her toward him. She fell into his chest and as she did so his left hand came around and grasped her buttock. He let go of her right hand which he had been shaking and brought her forward with such force that one of the fingers of his left hand slightly penetrated her vagina....Thereafter when she and Angie left the washroom to return to their table Judge Hryciuk called to her: "Not wearing any underwear tonight, are you Kell ?"
"The second incident described by Ms. James involving Judge Hryciuk on that same evening occurred while she was dancing with him later on in the evening. He asked her to dance by coming up behind her and simply taking her hand and pulling her to her feet as he did so. She did not even realize it was him until after she was already on her feet. As they began to dance she said Judge Hryciuk pressed her back with his hand and caused her breasts to rub against his chest. He then began to grind his penis against her pelvis; he had an erection and said to her "...that ain't a roll of quarters you're feeling there" and either "baby or "sweetheart" and later "....yeah, that ain't a roll of lifesavers you're feeling there."
Justice MacFarland's
Reasons for Recommending
Removal from Office:
"Certain of the complaints brought against Judge Hryciuk, if viewed alone, would not of themselves in my view warrant removal from office. For example the comment he made to Marilyn Bartlett and the comments he made to others in her presence would not in themselves warrant removal from office event though they are inappropriate and unprofessional. However, when such comments are viewed with the rest of his conduct of which complaint is here made we have a judge who has consistently made sexist and demeaning comments to women. He has continued to make such comments after taking a judicial education course on gender issues, he continued the conduct after a woman Crown Attorney spoke to him about his conduct, and even after the Judicial Council hearing had taken place and he was aware of the Smith and Lawson complaints he says he did not realize thee was anything wrong with his conduct until he took a further course in November, 1992 - after the Judicial Council hearing. For more serious of course is his conduct in relation to Ms. Smith and Ms. James which is tantamount to sexual assault.
Court of Appeal Ruling:
A unanimous panel of the Court of Appeal composed of Catzman, Weiler and Abella JJ.A allowed the appeal finding that Justice MacFarland exceeded her jurisdiction in hearing the additional complaints. The court expressly found that the Commissioner's jurisdiction with respect to removal was not a general mandate but one which flowed from the two specific complaints referred to her for hearing - namely the Kelly Smith and Susan Lawson complaints. The following passage by Justice of Appeal Abella captures the essence of the rationale underlying the decision to set aside the recommendation for removal:
"The three new complaints heard by the inquiry judge after Judge Hryciuk had concluded his defence were not first made to or investigated by, the Judicial Council. These complaints could not, therefore, be entertained by her. The language of the statute is unambiguous, and leaves no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council. Circumventing the statutory requirement that there be prior vetting by the Judicial Council defeats the whole purpose of the legislative scheme, and violates the mandatory nature of the two-stage process set out in s.46 of the Courts of Justice Act."
..."The inquiry judge based her recommendation on all the complaints she heard, including the ones she had no authority to hear. The evidence of those three complaints formed an integral part of her recommendation that Judge Hryciuk be removed. It is, therefore, impossible to say what her recommendation would have been if her finding had been based only on the two complaints she had jurisdiction to hear. Accordingly, there is no alternative but to allow the appeal, set aside the order of the Divisional Court, and quash the recommendation of the inquiry judge that Judge Hryciuk be removed from office."
Note: The full text of "Report of a judicial inquiry Re: His Honour Judge W.P. Hryciuk, a judge of the Ontario Court (Provincial Division)" is available online for those who wish to get an indepth understanding of this very significant and novel case.
The Initial Complaint:
Two complaints were ordered to a hearing against Justice Hryciuk. They were:
1. That His Honour Judge Walter P. Hryciuk, on Saturday, January 18, 1992, at Old City Hall, Toronto, did sexually assault Ms. Kelly Smith, An Assistant Crown Attorney for the Toronto Region.
2. That His Honour Judge Walter P. Hryciuk, in 1988, made remarks of a sexual nature to Ms Susan Lawson, an Assistant Crown Attorney, and drew her attention to a sexually graphic light switchplate in his judicial chambers.
The Parties:
On July 26, 1993 applications for standing were heard and granted to Judge Hryciuk, to Kelly Smith and to Susan Lawson.
Counsel for the Parties:
Richard D, McLean, Q.C. and Mark Elkin for Judge Hryciuk
Douglas C. Hunt, Q.C. and Jane Kelly for Kelly Smith and Susan Lawson
Dennis R. O'Connor, Q.C. and Freya Kristjanson - Commission Counsel
Duration of proceedings:
"In addition to the two motion days, July 26 and August 23, there were ten days; September 13-17, September 30 and October 4-7, during which time, witnesses were heard and one day, October 7, for final submissions and argument, a total of thirteen days in all. Some sixty-one witnesses gave evidence before he Commission."
How Justice MacFarland
Exceeded her jurisdiction:
"I am in total agreement with Mr. Justice Keith on this point. In my view, it is the duty of the Commission to hear any and all relevant matters pertaining to the issue before it; it would be wrong to limit the inquiry to a consideration of only the two matters heard by the Judicial Council.
It seems to me that one of the purposes of the public inquiry is to open up to the public process, which to that point in time, has remained private. It must be expected that members of the public who may think they had information relevant to the issue before the Commission, would come forward. It would not, I suggest, be a very satisfactory response, nor in the public interest, to tell such persons that they must first make their complaint to Judicial Council, and then to have, if that body considers it appropriate, a second inquiry. To say nothing of the perception that would be left with the public were such complaints ignored by this Commission and particularly so where one judge is in effect being asked to judge the conduct of a fellow judge.....This is a public inquiry and I feel duty bound to consider all evidence if it is relevant.
The Additional Complaints:
1. Judge Boivard: His Honour Judge Hryciuk grabbed the buttocks of a fellow female judge;
2. Judge Knazen: His Honour Judge Hryciuk stood up and thrust his pelvis toward the back of the same female judge as though simulating a sexual act, and made a comment about "X liking it from the back" or something similar;
3. Marilyn Bartlett: Judge Hryciuk grabbed her wrist and said, "How would you like to have dinner with me next Wednesday ?"
4. Marilyn Bartlett: On another occasion she overheard a comment that Judge Hryciuk made to the court reporter assigned to his courtroom, namely, "Well, how would you like to spare half an hour of your time with me at 4:30 this afternoon after court ?" "Ms. Bartlett said that the manner in which he made the comment was such that it had a sexual connotation." On yet another occasion Ms. Bartlett was in Judge Hryciuk's courtroom and she heard him say to a female duty counsel, Ms. Black, "How about your phone number ?" Ms. Bartlett thought the comment was inappropriate and it made her feel uncomfortable.
5. Dale Lumb: "Dale Lumb did not directly make any complaint against Judge Hryciuk. Her name was mentioned in the context of another witness, Lesley Baldwin. Ms. Baldwin had testified that when she was in the washroom at the Brampton court staff Christmas party several women had come to her to complain about Judge Hryciuk's conduct that evening. Ms. Lumb was one of the women mentioned by Ms. Baldwin....During a slow dance with Judge Hryciuk his hand slipped under her dress. Ms. Lumb asked Judge Hryciuk to move his hand and he did so. She claimed the incident had no effect on her and as she put it "whatever happened at the time was forgotten at the time."
6. Suzanne McKenzie: "She too, was at the Brampton court staff Christmas party in 1991. Ms. McKenzie like Ms. Lumb made no complaint directly about Judge Hryciuk, but her name was also mentioned by Ms. Baldwin as being one of the women who complained to her about Judge Hryciuk's conduct that evening. During a slow dance with Judge Hryciuk that evening his hand slid from her back to her lower back just above her buttocks. She said she not feel comfortable with where his hand was and she moved it up and said: "No, please don't at which point Judge Hryciuk stopped.
7. Kelly James: "Judge Hryciuk shook her hand, straightened up slightly and as she leaned to kiss him on the cheek he said to her "Give me a big Christmas hug" pulling her toward him. She fell into his chest and as she did so his left hand came around and grasped her buttock. He let go of her right hand which he had been shaking and brought her forward with such force that one of the fingers of his left hand slightly penetrated her vagina....Thereafter when she and Angie left the washroom to return to their table Judge Hryciuk called to her: "Not wearing any underwear tonight, are you Kell ?"
"The second incident described by Ms. James involving Judge Hryciuk on that same evening occurred while she was dancing with him later on in the evening. He asked her to dance by coming up behind her and simply taking her hand and pulling her to her feet as he did so. She did not even realize it was him until after she was already on her feet. As they began to dance she said Judge Hryciuk pressed her back with his hand and caused her breasts to rub against his chest. He then began to grind his penis against her pelvis; he had an erection and said to her "...that ain't a roll of quarters you're feeling there" and either "baby or "sweetheart" and later "....yeah, that ain't a roll of lifesavers you're feeling there."
Justice MacFarland's
Reasons for Recommending
Removal from Office:
"Certain of the complaints brought against Judge Hryciuk, if viewed alone, would not of themselves in my view warrant removal from office. For example the comment he made to Marilyn Bartlett and the comments he made to others in her presence would not in themselves warrant removal from office event though they are inappropriate and unprofessional. However, when such comments are viewed with the rest of his conduct of which complaint is here made we have a judge who has consistently made sexist and demeaning comments to women. He has continued to make such comments after taking a judicial education course on gender issues, he continued the conduct after a woman Crown Attorney spoke to him about his conduct, and even after the Judicial Council hearing had taken place and he was aware of the Smith and Lawson complaints he says he did not realize thee was anything wrong with his conduct until he took a further course in November, 1992 - after the Judicial Council hearing. For more serious of course is his conduct in relation to Ms. Smith and Ms. James which is tantamount to sexual assault.
Court of Appeal Ruling:
A unanimous panel of the Court of Appeal composed of Catzman, Weiler and Abella JJ.A allowed the appeal finding that Justice MacFarland exceeded her jurisdiction in hearing the additional complaints. The court expressly found that the Commissioner's jurisdiction with respect to removal was not a general mandate but one which flowed from the two specific complaints referred to her for hearing - namely the Kelly Smith and Susan Lawson complaints. The following passage by Justice of Appeal Abella captures the essence of the rationale underlying the decision to set aside the recommendation for removal:
"The three new complaints heard by the inquiry judge after Judge Hryciuk had concluded his defence were not first made to or investigated by, the Judicial Council. These complaints could not, therefore, be entertained by her. The language of the statute is unambiguous, and leaves no discretion to a judge conducting a s.50 inquiry to hear new complaints not previously screened by the Judicial Council. Circumventing the statutory requirement that there be prior vetting by the Judicial Council defeats the whole purpose of the legislative scheme, and violates the mandatory nature of the two-stage process set out in s.46 of the Courts of Justice Act."
..."The inquiry judge based her recommendation on all the complaints she heard, including the ones she had no authority to hear. The evidence of those three complaints formed an integral part of her recommendation that Judge Hryciuk be removed. It is, therefore, impossible to say what her recommendation would have been if her finding had been based only on the two complaints she had jurisdiction to hear. Accordingly, there is no alternative but to allow the appeal, set aside the order of the Divisional Court, and quash the recommendation of the inquiry judge that Judge Hryciuk be removed from office."
Note: The full text of "Report of a judicial inquiry Re: His Honour Judge W.P. Hryciuk, a judge of the Ontario Court (Provincial Division)" is available online for those who wish to get an indepth understanding of this very significant and novel case.
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