Justice Arthur Gans in hot water - again

Feb 26, 2009 04:30 AM
Tracey Tyler
and Betsy Powell
staff reporters

He is smart, experienced and has fiercely loyal friends who speak fondly of his compassion and wit.

But if Justice Arthur "Artie" Gans has one flaw, it might just be his mouth, which has a habit of landing him in trouble.

This month, the Ontario Court of Appeal ordered a new trial for a man convicted of misleading advertising in connection with direct mail promotions because Gans's repeated interruptions and sarcastic comments from the bench undermined the appearance of fairness.

It was a costly legal error, given David Stucky's trial had taken about a year to complete.

But that was nothing compared with what Gans said to Eugjen Brace on March 2, 2007, after the 25-year-old had been convicted of driving dangerously through a Toronto neighbourhood in a stolen SUV and resisting arrest.

In allowing him to remain on bail until sentencing, Gans warned Brace that if he violated the conditions of his release, he would return to jail with severe consequences.

"If you transgress, I'm going to make sure that the next shower you take, there's going to be some big black guy right behind you. Do you understand me, young man?" Gans remarked.

Gans, 62, who was appointed a judge in 1997, soon realized his mistake. When the case returned to court five weeks later, the first thing he did was endeavour to make amends.

"The comment was not only inappropriate, but it was not befitting the office which I have the privilege to occupy and I want to take this opportunity to apologize unqualifiably to counsel, to the accused and to his family alike and to all who were present and might have been offended by those comments," he said.

Defence lawyer Nathan Gorham accepted the apology, telling the court that while some might have been offended by the remark, he wasn't among them and he knew the judge was simply telling Brace to behave.

"I perceive that some people might take it the wrong way and I didn't want it to be perceived in any shape or form as a disparagement of the administration of justice," Gans responded.

That Gans realized his error and promptly apologized is "a good sign" and "heartening," though his initial comments to Brace were "terribly inappropriate" and "shocking," said James Stribopoulos, a professor at Osgoode Hall Law School.

The comments conjured up a myth about the evil person or "bogeyman" in prisons being a "big black guy," Stribopoulos said, adding homosexual rape is another component of that mythology.

But the apology didn't end the matter. Ted Royle, a defence lawyer who had previously represented Brace, filed a complaint with the Canadian Judicial Council, which investigates complaints of inappropriate conduct by federally appointed judges.

The council refuses to shed light on the matter. It generally doesn't make complaints public unless the complainant chooses to or the complaint is referred to a public inquiry.

Tom Harrison, counsel to the chief justice of Ontario's Superior Court of Justice, where Gans presides, said Gans was "exonerated" by the judicial council, but could not elaborate. Gans will not be commenting, Harrison added.

A Toronto native, Gans, who has been married 36 years and has two sons, spent most of his career as a civil litigator after graduating with degrees in law, economics and business administration.

But as a judge he often presides in criminal court and was introduced to crime and justice as a young adult.

In 1978, his older brother, Frederick Gans, 40, a family law lawyer, was shot and killed in a courthouse at 145 Queen Street W. by a former client's husband, who was found not guilty by reason of insanity.

Five years ago, Gans alluded to the shooting while listening to victim-impact statements during a manslaughter trial.

"I hope the time that passes will perform the same miracle of memory for you as it does for me," he told the family.

Today, among lawyers, he has many fans.

"Some judges never let you know what they are thinking during a trial. Justice Gans does," said defence lawyer Gary Grill.

"His sense of humour has sometimes been misunderstood. In fact, it is a reflection of his fairness and empathy," he said.

"You won't find pomp and circumstance in his courtroom. But you will find an honest search for the truth."

That search became a little too honest for the Ontario Court of Appeal's liking in the Stucky case. In their Feb. 17 decision, Justices Karen Weiler and Eileen Gillese took Gans to task for, among other things, calling some of Stucky's testimony "malarky" and this exchange with an American defence witness:

Gans: "So you buy your fireworks and your AK-47s at the same store?"

The witness: "I hope not."

Gans: "That's the American way, isn't it?"

Last year, the court also criticized Gans for comments in a case involving a man known as T.M.C., who was accused of sexually assaulting his stepdaughter. The court ordered a new trial because of what it called Gans' "interlocutory" courtroom remarks and speculation in a written judgment suggesting the complainant's two older sisters might also have been abused by T.M.C.

It was an irrelevant issue but appeared to influence his verdict, the court said, calling part of Gans' ruling "highly problematic."




Commentary by the Ottawa Men's Centre

Gans is in trouble for using "colourful language", the problem with the complaint is that Justice Gans was using language that the accused understood, if Gans had just used reserved language, the message would not have got across.

Justice Ganns should be commended for his passionate and determined approach to keep yet another young man out of jail.

It is a tragedy that Justice Gans received this complaint. He made a mistake, a politically incorrect mistake in using politically incorrect language.

The problem is our Judiciary has its saints like Justice Gans and the less than saintly underbelly who sit poker faced , say nothing, and administer corrupt injustice that just happens to be politically correct. If you go to court in Ottawa, one such flagrant abuser of judicial power is the "worst judge" "the worst of the worst", Justice Alan Sheffield.