Ontario Court of Justice

Date: 2019-09-11

Court File No.: Newmarket 4911 998 18 05453

Between:

Her Majesty the Queen

— AND —

James Morton

Before: Justice Howard Borenstein

Plea of Guilty taken on: April 26, 2019

Submissions on Sentence heard: July 24, 2019

Reasons for Sentence released on: September 11, 2019

Counsel:

• Mr. Robert Scott, for the Crown
• Mr. Stephen Bernstein, for the accused James Morton

BORENSTEIN, J.:

Facts

[1] James Morton is a lawyer who has plead guilty to bigamy and forgery.

[2] He has been married to Rhonda Shousterman for about thirty years. They met in law school. They practiced law. She became a Justice of the Peace. He was a successful lawyer who practiced law, taught, authored books and mentored other lawyers.

[3] Jennifer Packwood worked as Mr. Morton's paralegal for about ten years. They began a romantic relationship a few years before these offences were committed.

[4] In 2016, Mr. Morton moved his law practice from the GTA to Hamilton. He and Ms. Packwood leased a house together. The practice was located on the main floor. Ms. Packwood lived upstairs. There is contradictory information before me as to whether or not Mr. Morton also lived there full time. At the time of the guilty plea, the facts alleged and acknowledged were that he did live with Packwood in Hamilton. However, in Ms. Shousterman's victim impact statement, she writes that they were still married, and he was living with her in the GTA. To the police, Morton said he lived back and forth between those two places. During a trip to Montreal in March of 2017, Mr. Morton and Ms. Packwood became engaged. They were both still married but she was about to get divorced. He told her he was getting divorced as well. In July 2017, they moved from the leased house to a house in Hamilton they bought in both their names. Once again, the law practice was located on the main floor. Ms. Packwood lived upstairs. Again, there is contradictory information about whether Morton lived there.

[5] Their wedding was scheduled for October 22, 2017. A venue was chosen, and deposits paid.

[6] Ms. Packwood received her final divorce in September 2017. Mr. Morton created a phony Divorce Order dated September 25, 2017 and showed it to Ms. Packwood. He told her the divorce took effect 31 days after the Order was signed and therefore the October 22 wedding had to be rescheduled. He then put the Divorce Order away in desk drawer at the office.

[7] A new wedding date was booked for May 12, 2018 at a golf club in Hamilton. Wedding invitations were sent out. He was still married. They did not have a marriage licence. In order to get a marriage licence in Ontario following a divorce, a Divorce Order is required which is then submitted to the Court. The Court then issues a Certificate of Divorce. That Certificate of Divorce is then attached to an application for a new marriage licence. If everything is in order, a marriage licence is issued.

[8] As the May 12th wedding date approached, Ms. Packwood asked Morton several times whether he obtained the marriage licence. He kept saying he had not but would take care of it. Unbeknownst to Mr. Morton, Ms. Packwood decided to help. She retrieved the forged Divorce Order from the desk drawer believing it to be genuine. She gave it to their law student and asked him to go to the courthouse to obtain a Certificate of Divorce. The student took the Divorce Order to the courthouse to get the Certificate of Divorce. The clerk at the court realized there was something wrong with this Divorce Order. First, the file number on the Divorce Order did not exist. Second, the name of the Judge whose signature appeared on the Order was different from the name of the Judge that was typed on the Order. The clerk told the law student that they could not issue the Certificate of Divorce until they found the file. The clerk said they would look into the matter and would mail out the Certificate. The student returned to the office and told Ms. Packwood what happened. Ms. Packwood told Mr. Morton. Mr. Morton said he would take care of the matter. The court office conducted a thorough investigation and concluded the Divorce Order was fraudulent. They contacted the police on May 2, 2018, ten days before the May 12th wedding. The police spoke to the lawyer whose name appeared on the Divorce Order as representing Mr. Morton. He told them Mr. Morton was not his client. They spoke to the student who presented the Divorce Order to the clerk of the court. They spoke to Ms. Shousterman who told the officer she and Morton were still married. That same day, May 2nd, Mr. Morton went to Hamilton City Hall with a Certificate of Divorce he forged and applied for a Marriage Licence. In that Application for a marriage licence, he declared that he was divorced. He then received a marriage licence. Police examined the video from Hamilton City Hall and confirmed it was Morton who went to the counter and applied for the marriage licence.

[9] The police visited Ms. Shousterman on May 8th. She told them she had spoken to Morton about the Divorce Order and both she and Morton were confused about who or why anyone would create a fake Divorce Order. That same day, May 8th, police contacted Mr. Morton and told him they wanted to interview him. He said he could not meet them until May 19th. So, by May 8th, if not earlier, Morton knew the police were investigating this Divorce Order and wanted to speak to him.

[10] On May 11th, the law student sent the police a copy of Morton's wedding invitation which showed the wedding was to take place the following day. On May 12th, the wedding took place. The officiant thought he was performing a legal marriage. Morton and Packwood signed all the necessary paperwork to register their marriage. Photos were taken at the ceremony. On May 15th, the law student sent the police photographs of the ceremony showing Morton and Packwood dressed as bride and groom. He in a tuxedo, she in a white wedding gown. On May 23rd, Morton was interviewed by the police. He told them he was married to Ms. Shousterman and that he lived between his home with Ms. Shousterman and his office. He told the police there were problems in his marriage, but he was trying to work them out. He told them he never filed for a divorce. He admitted creating the fake Divorce Order but did not give it to anyone as it was not real. He said he never told Ms. Packwood he was divorced. The officer then presented Morton with the wedding invitation and photographs of the wedding. Morton ended the interview.

[11] Those were the facts. Mr. Morton has plead guilty to bigamy and creating a forged Divorce Order.

Background and Character

[12] Mr. Morton is 59 years old. He has no criminal record. He is a lawyer with over 30 years at the Bar. Defence counsel advises that Morton received the Treasurer's medal at Osgoode Hall law school for being the top student. He clerked for the Chief Justice of the Ontario Court of Appeal.

[13] At the sentencing hearing, there were supporters of Mr. Morton in the courtroom. Ms. Anita Szegeti, one such supporter, testified. She has known Morton since she was an articling student. She testified that were it were not for him, she would not be practicing law. She was going through a rough time when she articled and wanted to give up. Morton encouraged and helped her through, and now she has a practice where she represents people with significant mental health issues.

[14] I do not doubt that Mr. Morton has accomplished a lot in his career as a lawyer, which is now over, and has done a lot of positive things. Like all good lawyers, he mentored others. He was successful, and he has now lost it all. That is one consequence he will suffer regardless of what sentence I impose. He is suspended by the Law Society and likely will not be allowed to practice again. He said he has no desire to seek admission to the Bar again.

Psychological Assessment

[15] Dr. Mamak, a forensic psychologist, prepared a psychological assessment to try to provide some insight into what led Mr. Morton to commit these offences and to go through with this marriage. It was virtually certain he would be caught especially after he was contacted by the police days before the wedding. It is more than a little baffling why he would go though with the marriage knowing the outcome would be that he would be found out. Morton also attended psychotherapy sessions with Dr. Chaimowitz. Some of what he told both Chaimowitz and Mamak is inconsistent with what he told the police or the Court. However, overall, it seems that, at the time, Morton was depressed, anxious, emotionally exhausted and somewhat pre-occupied with feelings of worthlessness. Dr. Mamak believes Mr. Morton was suffering from "burnout, which she describes is not so benign or innocuous as some might think. Burnout, and here I quote from her report: "is often characterized by emotional exhaustion, depersonalisation and diminished professional efficacy. In addition, there is increasing evidence that burnout impacts not only psychological functioning but one's cognitive functioning, particularly executive functioning".

[16] So burnout might have been in the background or context, but it is a far cry from being a substantial contributing factor or explanation for these offences. Mr. Morton has not offered any explanation for having committed these offences.

Morton's Comments

[17] Morton spoke to the Court at the end of submissions. He expressed heartfelt, deep remorse. I took his comments as genuine. He has plead guilty publicly and did not minimize his conduct. I believe he is profoundly remorseful, not just for being caught, but, for the harm he has caused to both women as well as to the administration of justice, as a result of having committed these offences having had the privilege, trust and responsibilities of being a lawyer.

Positions of Parties

[18] The Crown submits that, despite not having a criminal record and his positive background, Mr. Morton should receive a six-month jail sentence which he can serve in the community; a conditional sentence.

[19] Defence submits Morton should receive a conditional discharge considering his lack of criminal record, his background and his guilty plea. He submits a criminal record is not necessary.

Aggravating and Mitigating Factors

[20] The main aggravating factors in this case are the dishonest manipulation of the court system to deceive Ms. Packwood and the impact of this conduct upon Ms. Shousterman and Ms. Packwood. By forging these Orders and getting married, this was no longer solely a private matter between two or three people.

[21] Both Ms. Packwood and Ms. Shousterman read out powerful victim impact statements. Both women were deceived and betrayed. The public notoriety of these offences has exacerbated the harm and humiliation. Ms. Packwood has been professionally and financially impacted. He was her employer. She writes that people think that she was a knowing, willing participant in this crime. She was a victim. When Ms. Packwood read out her victim impact statement in April, she was supportive of Morton. When the matter returned for further submissions in July, I was told she now wants a term that Morton have no contact with her.

[22] The deception and hurt caused to Ms. Shousterman are great. They met in law school and were married for thirty years. As she wrote: "On June 22, 2108, I learned that the husband I adored had been leading a double life and the he was facing criminal charges. My life as I knew it was gone. My hopes and dreams for the future were destroyed. Everything that we had discussed and planned was over".

[23] A particularly aggravating feature in this is that Mr. Morton, a lawyer, forged documents that he presented to the Court. Every day, courts rely on lawyers to honestly prepare and present documents that are relied and acted upon by trusting court staff, other counsel and judges. The integrity of counsel in presenting these documents is a cornerstone of our justice system, and Mr. Morton knew that.

[24] In R. v. Zaher (2017 ONSC 582), a 54-year-old immigration lawyer counselled undercover officers posing as refugee claimants to lie to secure refugee status. Justice Pomerance wrote:

Lawyers stand in privileged positions within society. They have a duty to their clients, but also to the courts and tribunals in which they appear. Those who work within the immigration system as lawyers are expected to maintain high ethical standards of honesty and integrity. When a lawyer breaches the trust reposed in him or her by clients or by the system, a denunciatory and deterrent sentence must be imposed.

[25] Zaher was sentenced to a year in jail, which was upheld by the Ontario Court of Appeal.

[26] Further, as Doherty, J.A. wrote for the Court of Appeal in Rosenfeld at para. 40:

[A]part from the specifics of the offences committed by the appellant, those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system.

[27] While Morton was not motivated by financial gain and was not engaged in the type of conduct Doherty, J. was dealing with in Rosenfeld, he was a lawyer forging court documents for the purpose of obtaining other court documents. Where a lawyer engages in this type of conduct, it is aggravating and enhances the need for a sentence that emphasizes denunciation and deterrence.

[28] By way of mitigation, I consider Mr. Morton's background. He is almost 60. He has worked and contributed much throughout his life. He has no criminal record. He has plead guilty acknowledging his conduct. This spared the complainants from a trial. He is genuinely remorseful. He has lost much which, as he himself said, he deserves. In light of these positive features, he, like everyone, deserves a sentence that is somewhat restrained and compassionate.

[29] In my view, the Crown's sentencing position is a restrained and compassionate one and one that properly balances all of these considerations. The Crown is seeking a conditional sentence. It is agreed that he is not a danger to the community and a conditional sentence is consistent with the principles of sentencing.

[30] The Supreme Court of Canada and the Court of Appeal have held that in some cases, an appropriately crafted conditional sentence may satisfy the principles of denunciation and deterrence – see R. v. Proulx, 2000 SCC 5, at paras. 102 and 107.

[31] A conditional discharge on the other hand is not consistent with the principles of sentencing given the aggravating features in this case. It does not give due weight to the aggravating circumstances I just mentioned. A sentence in jail, not in the community, was a real possible sentence in this case.

[32] In my view, a fit sentence is a six-month conditional sentence, together with an Order that he perform community service.

Sentence

[33] He will be subject to the mandatory terms of a conditional sentence. He will report today to a conditional sentence supervisor and thereafter as required.

[34] For the first two months of the conditional sentence, he will be confined to his home with the following exceptions:

1. He is allowed out once a week from noon to 5 pm to conduct any necessary errands he has. He is allowed out to satisfy the requirements of his conditional sentence, including community service. Finally, he will be allowed out to go directly to and from religious services, and medical emergencies for himself or his family.

2. For the next two months, his house arrest will be converted to a curfew from 9 pm to 6 am with the same exceptions.

3. For the last 2 months, he will be subject to an 11 pm to 6 am curfew with the same exceptions.

[35] You have contributed much through your teaching and writing, and still can contribute. That is why I am ordering you to perform 50 hours community service to the satisfaction of his conditional sentence supervisor.

Released: September 11, 2019

Signed: "Justice Borenstein"