Judge Leonard Montgomery is overseeing a tribunal hearing in Orillia, Ont., on misconduct charges brought against OPP Supt. Ken MacDonald and Insp. Allison Jevons.

Here is a portion of Montgomery's Nov. 10 ruling on a motion brought by Brian Gover, counsel for OPP Commissioner Julian Fantino, based on notes taken by CBC reporter Dave Seglins.

Judge Leonard Montgomery: "What Commissioner Fantino wants the prosecutor to do is remove the adjudicator he's authorized. And to say this is a rather unique motion, from my point of view, is an understatement.

"I've heard from all counsel with respect to the timing of the application. I simply place on the record that if in fact a motion to recuse was to be made, you would think, I submit, in fairness to the subject officers, that the motion would have been brought after the completion of the cross-examination of Commissioner Fantino.

"It's of interest to note that on the 31st of October, 2008, at 4:30 p.m., I participated in a telephone conference with all counsel. At that point we confirmed November 5th for completing the cross-examination of the commissioner and we scheduled Nov. 10 as the day for hearing argument on the motion to stay.

"And we further set November 20th as a day for me to render my decision on a stay motion. All this scheduling was done with the agreement of counsel. No mention was made at that time by Mr. Gover of a pending motion for me to recuse myself. Everything, from my point of view, at that time was in place to finally have a decision on the stay motion. That was November 20th.

"I haven't placed everything on the record that we decided at that time. We decided times for addressing the adjudicator, both counsel.… We talked about submissions and things of that matter. But the gist of the matter is, as I have indicated…

"Then on October, I'm sorry … November 5th, a few hours before Mr. Falconer was to resume his cross-examination of the commissioner, it was brought to my attention this motion to recuse was on the docket.

"Now this application, I can say, is anchored in the evidence of Commissioner Fantino. But the transcript of this evidence was not presented to me until 11:30 on November 5th, 2008. And if I recall correctly, it was either Mr. Falconer … or at my own request that I got my hands on it.

"Mr. Gover attempted to explain to this tribunal why he did not bring this matter … or this motion to recuse … to the attention in the conference call of October 31st, 2008, at 4:30 p.m.

"Mr. Gover indicated … and I am not going to use exact words here. I have all these transcripts before me, and I'm not going to try to handle them.… But the gist of the matter is, and I have read the transcripts and I know what was said,… Mr. Gover indicated that at the time of this conference call he was (considering) bringing a motion to recuse, but he had not … at that time …felt in his mind that he was going to proceed with it or have the grounds to do so.

"So he sought some assistance, and he used the word 'communicated.' He communicated with counsel for the Ministry of the Attorney General and the counsel for the Ministry of Community Safety and Correctional Services. Mr. Gover indicates to this tribunal that after this consultation, it brought him to the conclusion on Monday morning November 3rd, 2008.… This is two days now before counsel for the subject officers was to complete cross-examination of the Commissioner.

"And at that time, he decided to bring this motion to remove the adjudicator with the support of the attorney general for judicial review.

"That's the way I understood it. I indicated initially that I was going to place a few comments on the record and I was going to try to measure my words. And I'm still trying to do that....

"I found Mr. Gover's comments to me, as an adjudicator, to be highly improper. These comments are particularly shocking since, at the time they were made, I had not yet made a decision … to voluntarily remove myself or not.

"And if Mr. Gover's comments that he had the support of the attorney general are correct, then it seems to me that he talked to me, that he talked to the people at the Attorney General's Department, … discussed the matter with them … felt that he had their support … and indicates to me he did.

"And in fact, if that is the case, it seems to follow … that nothing was heard from the subject officers or counsel with respect to the alleged support of the attorney general. It seems a long-standing principle of our jurisprudence — that before making a decision, you listen to both sides — went by the wayside.

"Today, I have had referred to me ... I guess it's the announcement from the Ministry of the Attorney General, dated Nov. 5, 2008, 2:56 p.m. Brendan Crawley, communications branch, Ministry of the Attorney General, Ontario.

(Montgomery reading statement): "The Ministry of the Attorney General, and I'm quoting, has taken no position on the recusal of the adjudicator. A request was made by Mr. Brian Gover, the prosecutor in this matter, to Crown Law Office – Civil, as to whether the ministry would bring a judicial review application for the purpose of having the adjudicator removed for reasons of bias … if the adjudicator refused to recuse himself. The Ministry of the Attorney General has received Mr. Gover's request. Nothing further has taken place. The attorney general, Mr. Bentley, is not involved with this matter in any way.(Montgomery finishes reading statement)

"So that is Nov. 5 at 2:56 p.m. And I have a letter to Mr. Falconer that was brought to my attention today. It's dated November 8th, 2008. I'm not going to read the whole letter … I have. I'm just going to read a couple of paragraphs. This is Mr. Gover writing to Mr. Falconer…

(Montgomery reading letter): "On November 5th, 2008, when pressed about the timing of the recusal motion, I advised the tribunal that there had been discussions with the counsel at the Attorney General's Ministry which had led the prosecution to the conclusion on the morning of November 3rd that the support of the attorney general could be anticipated in the event of any further proceedings in relation to this motion. When I advised the tribunal about those discussions, it was my clear understanding….

"We have since learned that the Ministry of the Attorney General has declined at this time to lend the prosecution its support on an application for judicial review should one become necessary. My submissions of November 5th were made in good faith. They were rooted in my clear understanding…. (Montgomery finishes reading letter)

"The comments to this tribunal by Mr. Gover … have absolutely, as far as I'm concerned, no relevancy on this motion. And you have to wonder: Why were they made? I've been a judge for 33 years, and therefore my association with the attorney general's office had been very limited. But I can say this: that over all these years, I've always found the ministry to be fair and honourable, and to my knowledge, not even a hint of any interference with a judicial officer.

"It's of interest to note that a few lawyers ... associated with these two ministries ... — the Attorney General or the Ministry of Community Safety — gave evidence before this tribunal on the abuse motion to stay. Other lawyers from the same ministry appeared before this tribunal as counsel for witnesses who gave evidence on the abuse motion.

"If Mr. Gover's original position of support is correct, then the conflict of interest issues are endless. Mr. Gover even placed on the record names of a few lawyers [CBC reporter notes: Dennis W. Brown, senior counsel, Crown Law Office – Civil, Ministry of the Attorney General; Anne McChesney, legal services director, Ministry of Community Safety and Correctional Services] who expressed support for judicial review. If this is in fact the case, it has political overtones; this is … as close to political interference as you can get.

"I also found it … highly improper when Mr. Gover clearly expressed on the record a comment to this effect: 'I can tell you quite frankly, Mr. Adjudicator, that in the event that you do not remove yourself, I will be bringing an application for judicial review with the support of the attorney general.'

"Now, that's the same as saying to a criminal court judge, 'Your honour, I want to make it clear that unless you find my client not guilty, I will be appealing your decision to the court of appeal.'

"In my many years on the bench I have, I admit on rare occasions, had comments of that kind put to me by lawyers who are inexperienced in court matters. But never by counsel of Mr. Gover's experience in our courts.

"These comments have absolutely no relevancy on this motion to recuse! And you have to really wonder … why they were made. Why were they made?

"I respectfully submit, sitting here as an adjudicator, trying to keep it in perspective, trying to determine what was going on in the adjudication or hearing room at the time. What am I as an adjudicator supposed to think? Or what is a judge supposed to think, if in fact a judge were sitting?

"I respectfully submit that these comments, considered in their totality, amount to an attempt to pressure and to intimidate a judicial officer. And that would be so whether you are sitting in a courtroom, whether you are before an adjudicator, or presiding over an administrative tribunal.

"Now, both Mr. Gover and I, and every lawyer sitting in this hearing room, knows that no such comment of this kind would ever be made to, for example, a court of appeal. The point I am trying to clumsily make is that the same rules as to what is proper or improper in the court of appeal should equally apply, whether a judge is sitting in a small-claims court, a justice of the peace court or as an adjudicator presiding in an administrative tribunal.

"On the surface, … and I don't say these comments lightly, … but as a judicial officer for so long, I think I would be remiss by not placing something on the record with respect to how all this unfolded.… And to me, I have given it a lot of thought, on the surface, the comments appear to be an attempt to interfere and undermine the independence of the adjudicator — who is a judicial officer — in exercising his discretion in a judicial matter. What other conclusion makes sense in these circumstances?… And I submit that thinking citizens in the community would agree with my assessment.

"Administrative tribunals … they're really a buffer, … like courts, … they're really a buffer between the citizen and the government preventing the arbitrary exercise of government power. The independence of the tribunal from legislative and executive arms of government is paramount.

"Comments made to me, as an adjudicator, by Mr. Gover, were wrong. Plainly and simply. You can dress up any words you want to try to explain why that would take place … but I know, ... and he knows, … and I use simple words: … They were wrong, plainly and simply,… and represented pressure ... which no adjudicator or judge should be subjected to. People need to be entirely confident that every judge or adjudicator does no more than apply the law impartially and objectively.

"There must not be the slightest reason to wonder whether the judge or adjudicator was influenced ... for example political support, or intervention …or that the threat that if my application is dismissed I will seek judicial review ...

"If there is even a hint that this has taken place, then the public's confidence in our judicial system would be unacceptably threatened. Constant watch is required.…

"My words and actions did not create a reasonable apprehension of bias ... that I have prejudged the credibility of Commissioner Fantino.… In the circumstances of this matter, there are no reasons with merit for me to recuse myself from continuing to hear these proceedings."