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opinion excoriating language of the CJC inquiry committee? Matlow had been leader of a community group opposed to a real estate development project (known as the Thelma project) near his Toronto home. He had lobbied politicians about the project, often identifying himself as a judge, given interviews to the news media, and repeatedly contacted John Barber, urban affairs columnist at The Globe and Mail, trying to get him to write a story about alleged skulduggery in the City of Toronto legal department. While doing all this, he used lan- guage that was, let us say, undiplomatic. Meanwhile, in 2005, Matlow sat on a three-judge Divisional Court panel that ruled against a controversial City of Toronto proposal for a streetcar right-of-way on Toronto's St. Clair Avenue (the "SOS" application). The City of Toronto so- yet be saved from "the professional death penalty." I think it's clear from the hundreds of pages of testimony Why would anyone want to defrock an apparently dedicated and respected 68-year-old supernumerary judge, bringing his professional life, already drawing to a close naturally, crashing down in ignominious ruins? licitor, Anna Kinastowski, complained bitterly about Matlow's behaviour in a January 2006 letter to the CJC. She argued that it was improper for a judge to have led opposition to the Thelma project and, in particular, to have made public allegations of municipal corruption and incompetence. She said Matlow shouldn't have sat on the con- temporaneous SOS application, particularly given his public statements about the city, and should have advised counsel and the other two judges on the SOS application panel of his role in opposing the Thelma project. The CJC inquiry committee report into the matter came after What on earth did Ted Matlow do to justify the excoriating language of the CJC inquiry committee? before the CJC inquiry committee that, by almost any objec- tive standard, Matlow acted unwisely. But it's also clear Matlow believed that, in opposing the Thelma project, he was only ex- ercising the normal rights of citizenship enjoyed by everybody, including judges, and, indeed, was being a good citizen rather than an indifferent one. As for sitting on the SOS application, well, he knew in his own mind that he was not biased against the City of Toronto, and he thought, mistakenly, that was enough. Bad judge- ment, yes, but a hanging of- fence? Perhaps an unambig- uous reprimand would be a more appropriate penalty. A lot of lawyers want to be judges (not everyone since the age of eight), but I suppose it is not an easy life. Many years ago, I was clerk to a Supreme Court of Canada justice. Every day I would see three or four of the judges going off to have lunch together at the old Rideau Club, walking (disconsolately, I imagined) down Welling- ton Street in Ottawa, old men leading a semi-monastic existence, or so it seemed. In those days, Supreme Court judges dined at a special reserved table at the Rideau Club. It was thought that the only people they could talk to safely were each other. Absolute discretion was the order of the day. Things have changed. The watershed event may have been five days of public hearings. It condemned Matlow's involve- ment in the opposition to the Thelma project, particularly his constant reference to being a judge, and what it called his "in- temperate language and inappropriate comments." Matlow's behaviour, said the report, was likely to lead to loss of confidence in his impartiality, particularly when it came to matters involv- ing the City of Toronto. He had a clear duty to disqualify himself from sitting as a judge in any case involving the city once he be- came involved in opposition to the Thelma project. His contact with John Barber was "totally inappropriate" and "inexcusable." He should be removed from office. (The complete report is at www.cjc-ccm.gc.ca/cmslib/general/CJC_20080528.pdf.) At the end of June, Matlow made an application to the Fed- eral Court to quash the inquiry committee's findings as "un- fair" and "incomplete." He has asked the CJC not to consider the inquiry committee's recommendations in the meantime. (At press time, no further actions had taken place.) Should the inquiry committee's report not be quashed by the Federal Court, the CJC may, in any event, not accept its recommenda- tion. Even then, a federal judge can only be removed by a joint resolution of Parliament — not an easy thing. Ted Matlow may justice John Sopinka's well-known 1989 speech to the Canadian Bar Association, entitled "Must a Judge be a Monk?" Sopinka's view was that judges couldn't comment on cases likely to come before the court and on issues of current political debate, but could comment, for example, on matters relating to the ad- ministration of justice. But he cautioned that the public "must have confidence that the judiciary is capable of setting aside personal political views when such views threaten to interfere with the impartiality of their decisions." Now judges often comment publicly on a variety of matters. A notable example is Chief Justice Beverley McLachlin's 2007 speech to Toronto's Empire Club, when she didn't mince words on sensitive issues such as access to justice. But there's a big difference between discussing access to jus- tice and complaining publicly and intemperately about a real estate development that would increase traffic on the street where you live. Matlow did not behave sensibly. He has already suffered for it; there may be more suffering to come. It is a sad finish to a decent career, and should please nobody. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com www. C ANADIAN Law ye rmag.com SEPTEMBER 2008 35