TORONTO - The fate of a stalled police disciplinary hearing involving Ontario's top cop was left Monday in the hands of a judge who must decide if the case should proceed or be subject to further legal wrangling.
Ontario Divisional Court heard both sides talk Monday of how far away from the disciplinary hearing itself the matter has come. Even the judge lamented the drawn-out process.
"This is terrible for everybody, this whole process back and forth," said Justice Janet Wilson, who reserved her decision.
"This is a horrible waste of public money if this is all for naught."
The protracted legal battle began when Ontario Provincial Police Commissioner Julian Fantino charged two officers, who are senior members of the unit that investigates allegations of provincial police wrongdoing, with neglect of duty.
Fantino has denied allegations that the charges were personally motivated because he believed one of the officers leaked information about the police force.
During an aggressive cross-examination in the disciplinary hearing last month, Fantino appeared to change his testimony after a lunch break.
The adjudicator, Justice Leonard Montgomery, said that was "disturbing" and "upsetting," which lawyers prosecuting the officers and acting for Fantino allege amounts to bias.
Fantino was not in the room when Montgomery made the comments, which the prosecution said was unfair.
"The commissioner was utterly unaware that his reputation had been impugned in this fashion," said Tom Curry.
Curry and the other prosecution lawyers want Montgomery to recuse himself and further want the Police Services Act hearing to be put on hold until the courts decide on the recusal motion.
Julian Falconer, the lawyer for the two officers charged, alleges that by bringing the recusal motion in the middle of Fantino's testimony, Fantino is directing the lawyers, trying to derail the proceedings and avoid further grilling about his role in the charges.
"He's not just the witness, we can't be naive about this," Falconer said, adding they should have waited until Fantino's cross-examination was done to bring any such motion.
The judge must now decide if the matter of Montgomery's recusal should go to judicial review and if the proceedings should be stayed until then.
Curry said if the hearing goes ahead with Montgomery as the adjudicator, then it will be "infected" with bias.
He said the case is quite "far afield" from its origins and must get back to the real matter.
"There has been a hijacking of this substantive issue," Curry said.
"This hearing on the substance has not moved a yard."
Falconer said his clients want the proceedings to keep moving and that he has been trying to do so, blaming Fantino's team for any delays.
"The prosecution's steps to date have routinely and repeatedly derailed the proceedings," he said.
The prosecution has changed hands after lawyer Brian Gover raised eyebrows earlier this month when he said the provincial government supported the recusal request and would back a court challenge if Montgomery refused to step aside.
Attorney General Chris Bentley and his ministry immediately denied having made any such decision.
Montgomery suggested Gover was trying to pressure and intimidate him, which the prosecution said was an outright attack on Gover and yet another example of Montgomery's bias.
"(Montgomery) has completely mischaracterized the nature of those submissions ... and impugned Mr. Gover in the process," Curry said Monday.
"There was nothing that constituted an attempt to pressure or intimidate him."
