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A much-admonished Ontario Court judge has been taken to task again – this time for convicting a mentally ill man after the Crown backed off the case.

Ontario Court Judge John Ritchie was upbraided on Friday by Ontario Superior Court Judge Michael Code for failing to give fair consideration to evidence that favoured the defendant, Nicholas Augustine, at Mr. Augustine's trial for failing to appear for a court proceeding.

Judge Code noted that even the Crown conceded that Mr. Augustine may well have simply gone to the wrong courthouse on the day of his trial. Nonetheless, Judge Ritchie had registered a conviction.

It was the latest reversal for a judge whose name strikes fear into the hearts of many Toronto defence counsellors. Defence lawyer Jonathan Rosenthal says that, rather than face a trial presided over by Judge Ritchie, he and other lawyers have advised clients to seek a plea bargain from the Crown because a conviction is a near certainty.

Those who appear before Judge Ritchie are frequently indigent or mentally unstable individuals charged with minor offences, said Carlos Rippell, Mr. Augustine's lawyer. 'Wrongful convictions in big cases get all the attention,"he said. "But miscarriages of justice in provincial court have a real effect on people's lives."

Another Toronto defence lawyer, Edward Royle, said he has notified other lawyers at his firm that he is willing to represent indigent defendants pro bono should they wish to appeal a conviction by Judge Ritchie.

Mr. Royle said it is exceedingly rare for a judge to convict someone after the Crown has thrown in the towel, yet he has encountered two such cases himself. "When you have decisions the Crown doesn't even try to uphold, I think you have to wonder what is going on,"he said.

Appellate judges who reverse Judge Ritchie's decisions tend to fault him either for giving short shrift to the defence or for issuing unacceptably sketchy reasons.

In 2003, Judge Sandra Chapnik criticized Judge Ritchie in the case of R v Sahota for not backing up his conclusion that the defence witnesses were liars. "It is not sufficient to use glib, pro forma platitudes and generalities – which is what appears to have occurred here,"she said.

In another 2003 ruling, R v Punzo, Superior Court Judge Anne Molloy examined several of Judge Ritchie's decisions and discovered a troubling formula. She said that he provided identical, "boilerplate"comments instead of indicating his reasons for finding some witnesses not believable.

"Either the trial judge misapprehended the evidence and based his credibility findings on inconsistencies that did not exist – or he did not consider inconsistencies but merely said that he did because this is part of the boilerplate he uses in every case,"Judge Molloy said. "Either alternative is problematic."

Last year, in R v Gregory Chue, Superior Court Judge Ian Nordheimer took Judge Ritchie to task for being "entirely unfair to the defence."He said that Judge Ritchie gave the appearance of someone who made up his mind about a key pre-trial motion before it had even been argued.

Mr. Rosenthal, Mr. Chue's lawyer, recalled the trial as a "surreal" experience in which Judge Ritchie displayed no interest in his evidence and legal arguments.

"I've been practising law for close to 25 years and done thousands of provincial court trials, but never in my career have I seen a defendant treated so thoroughly below the standard of fairness as Mr. Chue was by Justice Ritchie,"Mr. Rosenthal said in an interview.

Judge Nordheimer again chastised Judge Ritchie last year in R v Adams for refusing to adjourn a trial to enable a mentally ill woman to obtain a lawyer.

And in yet another 2001 ruling – R v E.S. – Superior Court Judge S.R. Goodman observed that Judge Ritchie had provided no cogent reasons for preferring Crown evidence over that of the defence at a sexual assault trial.

Judge Ritchie, an Ontario government lawyer before his appointment more than 10 years ago, did not respond to requests for an interview.

 

Criticisms of Ontario Court Judge John Ritchie by appellate judges:

"The reasons for judgment are brief, generic and conclusory. They fail to provide any explanation for the trial judge's outright rejection of the appellant and the defence witnesses."R v Sahota, 2003.

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"In each of these cases – just as in the case before me – the trial judge makes the general statement that he has had the opportunity to observe demeanour, but then fails to provide any information as to how, if at all, that has influenced his decision. … The reasons were so deficient as to preclude any meaningful appellate review."R v Punzo, 2004.

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"Unfortunately, the actions of the trial judge, taken collectively … would leave an informed and reasonable outside observer of the proceedings with the distinct impression that the trial judge had predetermined the result of the application – if not the likely outcome of the proceeding as a whole."R v Chue, 2011.

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"The trial judge's misapprehension of important evidence adds to the concern that the accused's evidence was not fully and fairly considered before findings of fact were made by the trial judge. … Where the record does not appear to disclose a case that is one-sided and black-and-white in its strength, the trial judge must do more than reject the defence evidence because it differs from that of the complainant."R v E.S. 2011.

- Kirk Makin