An Ontario judge will be probed for misconduct by his peers in the wake of allegations that he deleted a key remark from a court transcript.
The Ontario Judicial Council ordered a rare misconduct hearing after it completed a preliminary investigation into a complaint lodged against Mr. Justice Marvin Zuker of the Ontario Court of Justice.
The complainant is disbarred Toronto lawyer Harry Kopyto, who was prevented from acting as a legal agent in Judge Zuker's court last year on the basis that Mr. Kopyto has a reputation for being overly adversarial.
After being excluded from the July 29, 2005, proceeding, Mr. Kopyto ordered a transcript so that his client, Robin Mayer, could appeal the ruling.
He alleges that the crucial phrases underlying Judge Zuker's ruling were mysteriously missing.
"I had to pinch myself," Mr. Kopyto said in an interview. "Did I dream it? That was my grounds of appeal. How can she [Ms. Mayer]proceed with an appeal if the grounds aren't there?"
Mr. Kopyto said the case has important repercussions for the justice system. "He [Judge Zuker]is highly regarded among the judiciary," he said. "If he feels comfortable editing a transcript for content, what are the other judges getting away with? If Judge Zuker is doing it, then it's widespread."
In one of several highly unusual twists, the case brings together two old adversaries whose initial courtroom clash in 1985 resulted in a milestone judgment on freedom of speech.
In that case, Mr. Kopyto, who was already well known within the legal community for his left-leaning causes and his combative style, was suing the RCMP for alleged political dirty tricks on behalf of a client, Ross Dowson.
After accusing Judge Zuker in The Globe and Mail of perpetrating a mockery of justice and favouring police "as if they're stuck together with Krazy Glue," Mr. Kopyto was charged and convicted of contempt of court. However, the Ontario Court of Appeal later acquitted him, striking down the contempt provision he had been charged under, known as "scandalizing the court."
In subsequent years, Judge Zuker, a highly regarded specialist in family law, rose from being a small claims court judge to a mainstay of the family court branch. Mr. Kopyto, meanwhile, was disbarred for cheating legal aid.
Mr. Kopyto's current complaint arises from a case in which Ms. Mayer was battling the Jewish Family and Child Service, which was investigating her treatment of her children.
According to the transcript, Judge Zuker questioned Mr. Kopyto's understanding of family law and stated several times that the welfare of Ms. Mayer's children was at stake.
"The best interests of the children come first; not who's right or who's wrong," Judge Zuker told Ms. Mayer. "At the end of the day, I may make an order that you don't agree with, and then you'll say: 'Well, I should have had a lawyer represent me.' What is more important in our society than the future of our children?"
Mr. Kopyto's complaint to the judicial council alleges that by removing the reference to his overzealous tactics from the court transcript, Judge Zuker effectively deprived Ms. Mayer of her ability to appeal the ruling.
"I believe that such conduct amounts to clearly improper conduct and, in the instant case, resulted in a miscarriage of justice to my client in the appeal process," he said.
Ms. Mayer states in a document prepared for the appeal that she was "dismayed and appalled" when she discovered that the transcript had been altered.
She said that "my life and family are being subjected to a judicial process before a judge whose apparent conduct has raised serious issues about the administration of justice."
Mr. Kopyto said yesterday it is absurd for a judge to accuse a lawyer of being too adversarial. "That's a bunch of crap: Everything in court is adversarial," he said.
"Lawyers are terrified to lay complaints against a judge," Mr. Kopyto added. "The perceived wisdom is that you're cutting your throat, so you just don't do it. For every complaint that is laid, there are probably a few dozen that should have been."
Mr. Kopyto said that he had to fight hard in order to obtain a copy of the guidelines judges are given which set out the rules for editing transcripts; rules which specifically restrict changes to matters of accuracy and punctuation, and say that nothing of substance can be removed.
"This judge thinks he can get away with anything he wants to," Mr. Kopyto said. "He did it with Dowson in the 1980s, and he is doing it to my client now. . . . In a sense, he was the author of my misfortune then. Now, I may be the author of his misfortune."
Philip Epstein, the judge's lawyer, said he couldn't comment on the matter.