TORONTO - An attempt to force an adjudicator to step down was an inappropriate attempt by provincial police commissioner Julian Fantino to avoid cross-examination, a Divisional Court judge has ruled.
In her decision on Fantino's motion to delay disciplinary proceedings in which he was being grilled, Judge Janet Wilson dismissed his accusations the adjudicator was biased against him.
"It was inappropriate to bring a motion prior to completion of the cross-examination and re-examination of Commissioner Fantino," Wilson said in her judgment.
"To grant a stay, even if the remedy were available to (Fantino), accomplishes nothing."
Fantino has been caught up in a messy Polices Services Act hearing against two senior officers he charged with misconduct and deceit. Their lawyers argue Fantino was being petty and vindictive -- something he strongly denies -- and are trying to have the charges thrown out as an abuse of process.
However, Fantino claimed the adjudicator -- retired judge Leonard Montgomery -- is biased against him, and demanded he step down. Montgomery refused.
In doing so, he was highly critical of Fantino's lawyer Brian Gover, who had warned he would take the matter to court if Montgomery stayed on. Montgomery blasted Gover for conduct he said amounted to judicial intimidation.
Wilson appeared to side with Montgomery, saying he might have "expressed frustration and concern" but had not shown any bias.
"At times, conduct of counsel warrants criticism and censure. This appears to be such a case," Wilson wrote.
"Perhaps the adjudicator overreacted. Perhaps he did not, and simply called a spade a spade."
Either way, she said, there was no reason for Montgomery to step down. She said it was common for issues to arise during proceedings that then resolve themselves once all the information is in.
Wilson also cited an Ontario Court of Appeal decision in another case that indicates Fantino had no legal grounds to even take the matter to court.
"It appears that bringing a motion to stay at this very unusual point in the abuse process during the cross-examination of Commissioner Fantino may be an attempt to circumvent the clear ruling and impact of the (Appeal Court) decision."
Wilson said she was confident that "cooler heads" would prevail and called for the abuse of process motion to be completed as soon as possible.
At that point, she said, the parties can decide what, if any, further action they want to take.
Fantino's lawyer on the stay motion, Tom Curry, could not immediately be reached for comment Friday.
Lawyer Julian Falconer, who is acting on behalf of the two charged officers and was in the middle of cross-examining Fantino, was delighted with Wilson's ruling.
"The judge found it was inappropriate to interrupt his cross-examination and we're to get the hell on with this thing," Falconer said.
During the stay hearing earlier this month, Wilson expressed dismay at the legal wrangling that had threatened to derail the labyrinthine hearings against the two senior officers.
"This is a horrible waste of public money if this is all for naught."
