A complaint has been filed against a judge and a Windsor, Ont. Crown attorney for an “inappropriate social outing” that took place during an ongoing criminal trial they were both working on.
The aunts and primary caregivers of the accused in the case — Andrew Cowan — submitted the complaint, claiming Crown attorney Thomas Meehan and Ontario Superior Court Justice Kelly Gorman met for drinks the evening after the jury had rendered its guilty verdict. Cowan was convicted of second-degree murder.
Cowan, 45, was the driver in a car accident that resulted in the death of his friend, Edward Witt.
This took place before the trial was finished, as sentencing had not happened.
“In our view this ‘close relationship’ between the prosecutor and judge gives us just cause to see the system and trial as unfair,” said the complaint, which was sent to the Canadian Judicial Council, Law Society of Upper Canada and the Ministry of the Attorney General.
“This affects the proper functioning of the judicial system. Mr. Meehan admits to joking with Judge Gorman about the trial, but we did not see anything funny about the trial.”
The allegations arose after the student reported the incident to the Windsor Crown’s office. The articling student said that it was obvious that Meehan and Gorman were “long-time friends”, according to the complaint.
The student also noted that Gorman said on multiple occasions that she was worried the criminal defence lawyer in the case, Patrick Ducharme would walk into the bar and discover them together.
It became clear to the student that the judge was concerned about the appearance of such a meeting, especially considering Meehan had not even bothered to change out of some of his courtroom attire.
In an inquiry led by another judge, Meehan revealed that he and Gorman had refused to work on the same cases in the past.
Meehan also said it was the judge who had invited him to get drinks after the verdict, and that he and Gorman met later that night for dinner and a bottle of wine after everyone had gone their separate ways, according to the complaint.
When he learned about these “disconcerting” circumstances from the Crown’s office, Ducharme brought an unsuccessful motion asking that the judge declare a mistrial had happened.
Ducharme says he gave roughly two hours of submissions to Gorman explaining why this was necessary and asking the judge dozens of questions about the allegations.
Meanwhile, she sat “stoically” and did not answer the inquiries he posed directly to her.
Ducharme says these allegations are particularly troubling given the way Gorman handled the case.
He says she made a number of questionable decisions during the trial that were favourable to the prosecutor and that her bias in favour of Meehan reflected itself in her decision making.
“All of this comes down to a principle of law that is much bigger than the lawyers and the judges — it’s that justice must not only be done, but it must manifestly be seen to be done,” Ducharme says.
Meehan has been removed from the case and the Crown who provided submissions on Ducharme’s motion argued that rather than have Gorman declare a mistrial, it should be left to the Court of Appeal to determine.
Ducharme, however, says waiting for the Court of Appeal to consider the case would put the accused through additional expense, and could force him to spend time in custody while awaiting a hearing. Ducharme noted his client suffers from a catastrophic brain injury and jail time would be dangerous for him.
“If the public truly has a right to know that judges are impartial and are completely independent of the case, then [the judge] should fix this right now and not put him through the trouble, and she said no,” he says.
Ducharme says he is now referring the case to prominent appellate lawyer James Lockyer for an appeal.
The CJC, which is responsible for looking into complaints against judges, did not respond to multiple requests for comment. The office of the Chief Justice of the Ontario Superior court declined to comment about the complaint.
The Ministry of the Attorney General did not provide comment before deadline.