Relying on Stolen Evidence

What does a regulator do when someone brings stolen information demonstrating serious misconduct on the part of a practitioner? Is it permissible or appropriate to use the information? The Ontario Judicial Council had to deal with this issue in the case of the Honourable Justice John Keast. An unnamed person surreptitiously copied text messages from Justice Keast’s phone and gave them to the local Children’s Aid Society (CAS). The texts revealed highly inappropriate comments by Justice Keast to an employee of the CAS making derogatory comments about other employees of the CAS and about the CAS itself. Justice Keast also attempted to obtain confidential information from his friend. At the time Justice Keast had a case before him involving the CAS and regularly dealt with other CAS cases. Justice Keast tried to exclude the texts from evidence because they were stolen.

The Council admitted the texts. Neither the Council nor the CAS had encouraged the individual to steal the information. And the individual who took them was acting in a private capacity thus making the Canadian Charter of Rights and Freedoms inapplicable. The Council said:

… in a hearing to determine whether judicial misconduct took place, it is virtually inconceivable that the administration of justice would be better served by excluding the evidence of the alleged misconduct, rather than admitting it.

Justice Keast thereupon admitted his misconduct. He was reprimanded, ordered to make certain apologies and was suspended without pay for thirty days.

The Council’s decision is available online: http://www.ontariocourts.ca/ocj/ojc/public-hearings-decisions/d2017/

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