Bias complaint dismissed

By  Deborah Gyapong, Canadian Catholic News
  • February 11, 2007
OTTAWA - The Canadian Judicial Council has dismissed REAL Women of Canada’s allegations of judicial misconduct against Ontario Chief Justice Roy McMurtry, whose 2003 Halpern decision determined the traditional definition of marriage discriminated against same-sex couples.

Last July, REAL Women laid a complaint against McMurtry, arguing an "apprehension of bias" because his daughter was in a "homosexual union" while the Halpern case was heard. They also pointed to pictures posted on the Internet of the judge posing with the litigants at a legal event held during Pride Week 2003.

In a Dec. 19 letter, the council's executive director and general counsel Norman Sabourin replied on behalf of Manitoba Chief Justice Richard Scott, chair of the council's judicial conduct committee.

"Chief Justice Scott has concluded that none of your allegations support a finding of judicial misconduct," Sabourin wrote. He also wrote that, because the complaint involved a member of the council, an independent counsel, McGill law professor Patrick Healy, also reviewed the case and agreed with the decision.

Sabourin wrote that Scott did not "consider it necessary to inquire into the sexual orientation of Chief Justice McMurtry's daughter."

"The sexual orientation of a judge's children, and indeed the fact that a judge's children are married or living in a common law relationship are not, in Chief Justice Scott's views, indicative of any bias on the part of a judge."

In a Jan. 24 news release, REAL Women responded: "Mr. Justice Rosenblatt of the New York Court of Appeal recused (withdrew) himself from the same-sex marriage case before that court because of his daughter's lesbian orientation. The New York Court of Appeal rejected same-sex marriage in July, 2006."

REAL Women also noted the council's conclusion contradicted its own guidelines from its document "Ethical Principles for Judges," which states that judges  "should disqualify themselves in any case in which they believe they will be unable to judge impartially."

McMurtry was one of a panel of judges that recently decided the controversial Three Parents case, where the biological parents and the mother's same-sex partner were deemed to all be parents to a child. He retires in May of this year.

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