In the matter of a complaint respecting the Honourable Madam Justice Dianne Nicholas

BEFORE

The Honourable R. Roy McMurtry
Chief Justice of Ontario

The Honourable David Wake
Associate Chief Justice Ontario Court of Justice

Mr. Julian Porter, Q.C.

Mr. William James

COUNSEL

Mr. Douglas C. Hunt, Q.C. and Mr. Michael Meredith, Presenting Counsel

Mr. David Scott, Q.C. Counsel to Madam Justice Nicholas

REASONS FOR DECISION

The Ontario Judicial Council (the “Council”), pursuant to section 51.4 (18) and 51.6 of
the Courts of Justice Act, R.S.O. 1990, c.43, as amended, conducted a
hearing in relation to the Honourable Madam Justice Dianne Nicholas on June 29, 2004.

An agreed Statement of Facts was filed at the hearing which included a joint submission
with respect to the nature of the conduct acknowledged by Justice Nicholas and the
degree of its seriousness.

A brief of letters of support for Justice Nicholas was also filed.

The Agreed Facts

The facts are summarized as follows:

The complainant, Silvana Segreto appeared with her counsel, Ronald Guertin, before
Justice Nicholas in Ottawa on April 29, 2002 with respect to a welfare fraud allegation.

Ms. Segreto pleaded guilty to a charge of welfare fraud. The complainant’s counsel wished
to have the sentencing put over to permit him to present medical information regarding
physical and psychological injuries which Ms. Segreto sustained as a result of the
alleged alienation of her father’s estate by one of her brothers. Following this remark,
Justice Nicholas asked Ms. Segreto if her brother was Rick Segreto. Ms. Segreto replied
that he was.

Justice Nicholas indicated that she knew Rick Segreto, indicating “he used to be my
daughter’s soccer coach and I really didn’t like him so…”, and then, “he’s got a
criminal record”.

Justice Nicholas was concerned that Ms. Segreto and her counsel be apprised of the fact
that she had known Rick Segreto personally in the event that they wished the matter to
proceed before another judge.

Ms. Segreto’s counsel indicated it was “Okay”. Ms. Segreto indicated her family did not
speak with Rick Segreto. Justice Nicholas then replied “Are you sure because like I
don’t want – I’m not going to take it out on your client, but I’m just [sic] my policy
is if I know anybody, I say so”.

Ms. Segreto again indicated that her family did not speak with her brother and that he
had caused a lot of anguish for the family, was not included in her father’s will and
was alienated from the rest of the family.

Justice Nicholas replied that he was a “loser” and that he “basically left his wife and
two children for the mother of one of our team who was the manager”. She also stated
“…he actually took up with one of the mothers on the team. Not a big fan of that. I
pulled my daughter off the team. So, I’m just letting you know that if you want somebody
else to do this…” and then said “I don’t think it’s a problem, but I’m just letting you
know”.

Mr. Guertin requested and was granted time to confer with his client in the courtroom and
then advised Justice Nicholas that Ms. Segreto was comfortable.

Justice Nicholas referred again to the alienation of the estate, indicating “That’s why I
asked if he was the one who alienated the estate, because I wouldn’t put that past him”.

Justice Nicholas accepted Ms. Segreto’s guilty plea and put the matter over to July 24,
2002 for sentencing.

Shortly after the April 29, 2002 plea, but before the sentencing date of July 24, 2002
while the Segreto matter was still before her, Justice Nicholas spoke of the matter with
one Thomas Grumley when they met up, coincidentally on the street directly across from
the courthouse.

Justice Nicholas has known Mr. Grumley as a neighbour and involved with a number of
fellow soccer parents for approximately ten years. They lived within blocks of each
other and Mr. Grumley worked directly across from the courthouse at Place Bell Canada.

Although the case was still before her, Justice Nicholas advised Mr. Grumley that Ms.
Segreto had appeared before her and pled guilty to a welfare fraud charge. She told Mr.
Grumley that it was not very serious and that Ms. Segreto seemed nice.

Ms. Segreto later learned of this conversation from her niece, daughter of Rick Segreto.
According to Ms. Segreto, her niece had heard it from Mr. Grumley’s children, who in
turn had heard it from Mr. Grumley over dinner.

In her complaint, Ms. Segreto alleges that “Justice Nicholas passed on every imaginable
detail” of her case to Mr. Grumley. Mr. Grumley disagrees and has communicated directly
with the Judicial Council on this issue, indicating that Justice Nicholas only told him
that Rick Segreto’s sister appeared before her and that she was found guilty in a
welfare fraud case. Mr. Grumley states that the other assertions made by Ms. Segreto as
reported in the Ottawa Citizen are false.

Justice Nicholas acknowledges she should not have spoken to Mr. Grumley about the Segreto
case and that it was inappropriate. Justice Nicholas feels terrible about the effect
this may have had on Ms. Segreto and her family and that this embarrassed Ms. Segreto.

Shortly after Ms. Segreto’s complaint was made to the Ontario Judicial Council on August
19, 2002, the Ottawa Citizen reported on the complaint and published articles both in
print and electronically, setting out the details of the April 29th court proceeding,
the conversation with Thomas Grumley and Ms. Segreto’s reaction to it.

On the sentencing date of July 24th, counsel for Ms. Segreto moved for Justice Nicholas
to recuse herself on the basis of her conversation with Mr. Grumley. Justice Nicholas
immediately struck the guilty plea and suggested that the matter be transferred to the
guilty plea court that very day to be dealt with by another judge. Mr. Guertin wished to
consider his position.

After striking the plea, Justice Nicholas returned to Judges’ Chambers on the 6th floor
of the courthouse. She then felt that she should have apologized to Ms. Segreto and her
counsel and asked the receptionist to page Mr. Guertin to come up to her office so that
she could make an apology.

Mr. Guertin did not attend Judges’ Chambers. Justice Nicholas returned to the courtroom
shortly thereafter to deal with her trial matters. She asked her courtroom clerk,
Lucille Bordeleau to locate Mr. Guertin and his client and have them return to the
courtroom.

Ms. Bordeleau found Mr. Guertin and asked him that he attend in the courtroom. Counsel
has stated he was asked to attend in Chambers. On this point the evidence of Mr. Guertin
and Ms. Bordeleau varies. Ms. Bordeleau has stated that her intention was to bring Mr.
Guertin back to the courtroom where Justice Nicholas was waiting on the bench. Mr.
Guertin has indicated that he advised the courtroom clerk that he had sought legal
advice and considered it would be inappropriate for him to speak to Justice Nicholas on
the matter.

There is no suggestion that Justice Nicholas summoned counsel to her judicial chambers or
to the courtroom for any other purpose than to apologize.

Justice Nicholas indicated in her letter that she sincerely regretted the position in
which counsel and Ms. Segreto were placed and said the request for the recusal was
“completely appropriate”. Justice Nicholas had conferred with a senior judge of the
court on the content of the letter before sending it.

Issue of Misconduct

Justice Nicholas acknowledges that her statements in court on April 29, 2002, as
described above and her subsequent conversation with Mr. Grumley constitutes judicial
misconduct on her part.

Joint Submission

Justice Nicholas agrees and acknowledges that her conduct was inappropriate and
indiscreet and that her judicial misconduct is a serious matter. Her counsel and
presenting counsel agree and jointly submit that this judicial misconduct acknowledged
by Justice Nicholas “though serious, falls within the lower end of the scale of judicial
misconduct. Accordingly, it should attract a sanction, proportional to its gravity,
within the lower end of the scale of sanctions for judicial misconduct. Counsel submit
that a sanction in accordance with section 51.6(11)(a) through (d) is the appropriate
sanction in this case.”

The dispositions contained in section 51.6(11) are as follows:

(a) warn the judge;

(b) reprimand the judge;

(c) order the judge to apologize to the complainant or to any other person;

(d) order that the judge take specified measures, such as receiving education or
treatment, as a condition of continuing to sit as a judge;

(e) suspend the judge with pay, for any period;

(f) suspend the judge without pay, but with benefits, for a period of up to thirty days;
or

(g) recommend to the Attorney General that the judge be removed from office in accordance
with section 51.8.

Letters of Support

As noted earlier a brief of letters of support for Justice Nicholas was filed which
included letters from two sitting justices of the Superior Court of Justice, one former
justice of the Superior Court, one justice from the Ontario Court of Justice and four
senior criminal defence lawyers, one of whom being formerly a senior Crown Attorney.

The letters make the following observations about Justice Nicholas:

(a) she is a sound judge;

(b) she has a tendency to speak frankly in the courtroom which is related to her
motivation to “demystify the court process”;

(c) she has all the right instincts and is an extremely caring person;

(d) she takes on very difficult cases and is generally extremely hardworking;

(e) she is a person of high integrity;

(f) she generally demonstrates very good judgment and an excellent knowledge of the law.

Complainants View

The complainant agrees with the joint submission in its entirety.

Conclusion

We are satisfied that Justice Nicholas is mortified and embarrassed by her conduct as
submitted by her counsel. She was also motivated to admit her misconduct spontaneously
and expeditiously and made a sincere apology. She is clearly embarrassed by the media
reporting which has given the complaint to the Council wide coverage.

The panel is satisfied that Justice Nicholas has completely accepted the seriousness of
her misconduct and would appreciate that any repetition could attract a more serious
disposition.

We believe that it is in the best interests of the administration of justice that Justice
Nicholas continue to sit as a judge as she has done since the complaint was filed almost
two years ago.

Costs

There will be no recommendation as to the payment of costs pursuant to section 51.7(4) of
the Courts of Justice Act.

DATED at the City of Toronto, in the Province of Ontario, July 12th, 2004.

Chief Justice R. Roy McMurtry

Associate Chief Justice David Wake

Mr. Julian Porter, Q.C

Mr. William James