They are, however, "very close to the line," a four-member council panel said.
Nevertheless, the panel is recommending that Ontario's Attorney General compensate Justice Norman Douglas, Guelph's only full-time criminal court judge, for the legal expenses he incurred at an inquiry into his fitness to remain on the bench.
"No doubt Justice Douglas has learned a lesson from the events leading to this hearing, and from the hearing. From all accounts, it has been a hard lesson," said the panel, headed by Justice Stephen Borins of the Ontario Court of Appeal.
The inquiry was the culmination of a chain of events that began when Douglas issued reasons for judgment in R. v. Moore, an "over 80" impaired driving case. In the decision, he was critical of accused people who enter a defence to charges of "over 80" and of the law the court is obliged to follow.
Moore appealed, arguing a reasonable observer could legitimately fear that Douglas was biased. In July 2004, an appeal court judge agreed, saying Douglas showed a patent distste for those who exercise their right to defend such charges.
Nearly a month later, and just two days before the appeal period was set to expire, Douglas found out about Justice Kenneth Langdon's appeal ruling and emailed the Crown Law Office in an attempt to find out if the Crown was planning to appeal. Douglas said he was concerned he would be "stuck with the result," which would in turn lead to lawyers bringing motions asking him to recuse himself from impaired driving cases.
In at least two subsequent court decisions, he took issue with Langdon's findings, offering criticism and rebuttal.
Ontario's Criminal Lawyers Association filed a misconduct complaint with the judicial council, alleging Douglas had shown a partisan interest in the outcome of an appeal and had engaged in conduct that suggested he was putting his own integrity and reputation ahead of dispassionate adjudication in impaired driving cases.
The judicial council panel said today that it condones "nothing" Douglas said or did.
But because he has acknowledged his mistakes, panel members said they are confident he will not repeat his indiscretions.
"We believe that Justice Douglas is sincere," they said.
"Considering all the circumstances, we are not prepared to conclude that he engaged in judicial misconduct, although we are bound to say that his conduct was very close to the line."