After much back and forth, Manitoba Provincial Court judges are finally getting the pay hike they’ve been after.

Manitoba Provincial Court judges’ annual salaries will go up to $230,155. (Photo: AJ Batac)

Finance Minister Stan Struthers announced yesterday that an all-party legislative committee approved the Judicial Compensation Committee’s recommendation for a pay increase of 2.7 per cent, which brings the judges’ annual salaries to $230,155. Some judges will also receive a five-per-cent northern living allowance and access to the same life insurance plan available to all public servants.

The committee asked for the raise last July and based it on the annual percentage increase in average weekly earnings in Manitoba for the previous calendar year.

However, the committee didn’t grant all aspects of the committee’s request, including a recommendation for the province to pay interest on any retroactive salary increases and retroactive life insurance premium refunds, along with a professional allowance fund of $2,000 for each senior judge and $3,000 for an educational allowance.

While he admitted the pay increase was fair, Struthers said the province needs to keep in mind what ordinary Manitobans earn every year.

“The standing committee is of the view that judges, as a recognized third level of government, should not be treated differently than any other level of government,” he said in his motion.

Manitoba judges’ salaries are partially based on the earnings of judges in Saskatchewan, Nova Scotia, and New Brunswick. However, even with the increase, their salaries are lower than those of judges in larger provinces.

The judges have been seeking a pay hike for some time now. More than three years ago, the legislative committee rejected the compensation committee’s recommendation for a five-per-cent raise for 2009 and 2010, and instead made it 2.9 per cent.

The Canadian Association of Provincial Court Judges challenged that decision. Manitoba Court of Queen’s Bench Justice Jeffery Oliphant ruled in the judges’ favour and ordered the government to pay the salary differentials and the judges’ court costs. The provincial government appealed that decision to the Manitoba Court of Appeal where a ruling is still pending.

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In a move that some pundits are calling a step back from modernity, the Quebec judiciary has issued a ban as of April 15 on texting, tweeting, and all other forms of electronic communication from the courtroom during proceedings before the Court of Appeal of Quebec, the Superior Court of Quebec, and the Quebec Court.

As of April 15, tweeting, texting, and other electronic transmissions are banned from Quebec’s courtrooms.

“[All people are] prohibited from diffusing or communicating text messages, observations, information, notes, photographs, audio, or video recordings from inside a court room to the outside world,” reads the new directive.

In interviews with Quebec media, the associate chief justice of Quebec’s Superior Court acknowledged the growing popularity of texting and, in particular, tweeting live from courtrooms.

But Justice Robert Pidgeon said after considering the results of two court cases in 2012 in which journalists were permitted to use the devices in the courtroom, he and his fellow judges concluded that use of the devices runs afoul of the principles of the court system.

“We are aware that many people today communicate by text messaging,” Pidgeon told Quebec City’s Le Soleil newspaper in early April. “Our decision was based on issues of decorum (and) the maintenance of order.”

According to Pidgeon, journalists were permitted to send text messages and tweets using their cell phones and iPads in the courtroom last spring during the murder trial in Quebec City of former appea court judge Jacques Delisle, who was convicted of the premeditated murder of his wife (a decision now under appeal).

But he said it was upsetting that photos taken inside the courtroom appeared publicly — a clear contravention of courtroom rules.

“I didn’t like that,” said Pidgeon. “That sent us a signal.”

He added that similar incidents occurred in December when journalists in Montreal were allowed to send messages from inside the courtroom during the trial of special effects artist Rémy Couture, who was acquitted of charges of corrupting morals.

Though lawyers and journalists can continue to use electronic devices, including cell phones, to consult notes or documents inside the courtroom (in silence, of course), the new directive prohibits the transmission of any information about proceedings to the outside world.

“It will have to be respected,” said Pidgeon, adding that courtroom constables will be tasked with ensuring compliance with the new directive. Failure to do so, he warned, will result in unspecified sanctions by the presiding judge.

According to Pidgeon, only three courts in Canada — the Nova Scotia Court of Appeal, and both the Supreme Court and Provincial Court of British Columbia — allow journalists to transmit information from inside the courtroom during proceedings.

Both media outlets and journalists across Quebec decried the decision.

“[The Quebec judiciary] has missed an important rendez-vous,” said Brian Myles, president of the Fédération professionnelle des journalists du Québec. “I find it more of a shame for the judges and justice than for journalists. They’ve taken away a chance to be better understood by the public by restraining the use of social media.”

Lawyers at Investissement Québec have begun a five-day strike after failing to finalize a collective agreement with their employer.

The 11 lawyers working for Investissement Québec, the province’s investment arm, are unhappy with what they say is their employer’s about-face on an agreement in principle reached with its negotiators in December 2012. The lawyers are all members of the Association des juristes de l’Etat. According to association president Sébastien Rochette, Investissement Québec is demonstrating “amateurism” in collective bargaining.

The association is accusing Investissement Québec of having reneged on the deal agreed to in December on the basis that its senior management hadn’t authorized it. The association says the Investissement Québec lawyers are the only members of the organization representing Quebec public sector lawyers without a new collective agreement in place. The agreement in principle reached in December would cover the 2010-15 period.

Investissement Québec is a public body whose goal is to promote investment and employment around the province. Its activities include financial support and investment, such as last week’s announcement of $1 billion in loans for purchases of Bombardier Inc.’s C series aircraft assembled in Quebec.

The association represents more than 1,000 legal professionals working for various Quebec government bodies.

In a statement, Rochette noted he’s concerned with the “way the organization is managing an issue as simple as its labour relations with 12 of its employees.” The lawyers will be on the streets picketing until Friday this week in both Quebec City and Montreal.

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The Ontario Court of Appeal was correct in overturning a sexual assault guilty verdict this week that would have been “a dangerous conviction to uphold,” a Toronto criminal lawyer says.

‘The last thing the Court of Appeal wants is judges to apply general rules of credibility of witnesses,’ says Daniel Brown.

The appeal court ordered a new trial for a man accused of repeated sexual assaults against members of his family after finding the trial judge believed the complainants for the wrong reason.

A passage in Provincial Court Justice Alan Cooper’s ruling suggested that since the complainants are the accused’s nieces and great niece, their evidence is by default more credible than it would have been had they not been related to him.

Cooper’s faulty statement reads the complainants “had to testify about a family member, which in my view makes their allegations more credible than a complaint against a non-family member.”

The appeal court said this line of thought is “clearly improper.”

“The impugned passage expresses the view that, because of the difficulties in family relationships that sexual allegations often create, allegations of sexual misconduct made against a family member are inherently more credible than allegations of sexual misconduct made against a non-family member,” the Court of Appeal ruled.

“Such an approach is clearly improper and, standing alone, requires that we set aside the convictions and order a new trial.”

But the decision doesn’t mean the complainants’ family ties with the accused are irrelevant, says criminal lawyer Daniel Brown.

“In some cases you say, ‘Why would this person make up a lie that would essentially tear their family apart?’” he says. “The problem in this case is that the judge seemed to premise right from the start that in cases where complainants testify against their own family members, they’re automatically more credible.

“You have to look at the family context and the family dynamics in each particular case as opposed to having a general premise that complainants who testify against family members are automatically more credible in the same way police officers are more believable than other witnesses.”

The Crown had argued the trial judge was simply pointing at the lack of motive in the case and not setting a general principle. But the appeal court read the words differently.

“Although we agree that the passage must be read in context, we are unable to accept the Crown’s submission,” the court said.

Despite the problematic statement, the conviction would have had a better chance of standing had there been more corroborative evidence, says Brown.

“Sometimes judges make mistakes like that and it may not affect the outcome of the case. But this case was particularly unique because it wasn’t what we might call an overwhelming Crown case,” he adds.

“The last thing the Court of Appeal wants is judges to apply general rules of credibility of witnesses instead of looking at it in a particular case by case basis.”

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Osgoode Hall Law School students left Gowlings Hall Thursday afternoon with an array of insight into what the Conservatives have done wrong since coming to power.

Guest speaker and former interim Liberal Party leader Bob Rae discussed the imbalance of power in the current government and answered questions from students on everything from immigration, to abortion, to Idle No More.

Departing interim Liberal leader Bob Rae hit on many areas of the government and the rule of law at Osgoode yesterday. (Photo: Anastasia Moskvitina)

He said tensions are caused within attempts to “limit power, define power, share power, and protect the rights of the individual.”

Rae believes the Harper government is not on the right track to resolving these tensions.

“The Reform Party believes that Parliament should be sovereign and that should be the end of it. If Parliament decides that a horse is a donkey, a horse is a donkey and it doesn’t matter what anybody else thinks. And that’s very problematic from the point of view of the rule of law,” he said.

Rae reflected on his time in Sri Lanka, where he met a Japanese government official who inquired about the location of power in the government of Canada.

“He said power has to be in one place,” said Rae, replying, “If it’s only in one place you’ve got a problem because if power is only in one place it tends to be abused. And it’s this problem of abuse that I want to focus on.”

He believes Prime Minister Stephen Harper is central to the current imbalance of power in Canada.

“How do we control the power of the first minister who picks the cabinet, picks the representative of the Crown, picks judges, picks senators, and the only people that the prime minister doesn’t pick are the members of Parliament,” but he still has to approve every candidate?

Rae concluded, “I think that gives a huge amount of power to the leader of the party, a huge amount of power to Mr. Harper. The only effective way to deal with this is for the parties to essentially give up some power and secondly for the prime minister to give up some power.”

That said, Rae does not agree with assertions that Canada is becoming more conservative.

“I’d have to say the most dramatic change that’s taken place is our view about sexual identity,” he said, “In the 1980s the defence of people who were homosexual was based entirely on the rights to privacy. But now we’ve gone from [tolerance] and acceptance to celebration.” He added that our country remains liberal on issues surrounding marijuana, and that “when Prime Minister Chrétien didn’t send our troops to Iraq the support was huge. So, I don’t buy the view that we’ve suddenly become more conservative.”

Rae pointed out, “A lot of Mr. Harper’s dissenters are coming at him from the left as well as from the right,” especially on the issue of abortion. “He basically made a deal with the Canadian people saying ‘give me a majority and I promise you that I will not bring in the abortion debate again.’ So he feels a sense of personal obligation to make sure that he lives up to that. But there was nothing Harper could do about the recent backbench motion to create a committee to determine when life begins and “everybody knew what that was code for,” said Rae.

This led to a question about allegations of Harper silencing his caucus on issues such as abortion.

Rae said, “Does Mr. Harper have a problem within his own caucus? I think he does . . . you have dozens of members who are in favour of new criminal legislation in Canada to deal with the issue of abortion.” Rae said we should not be afraid to reopen the debate, but “a significant majority of Canadians do not believe that this is an area that is appropriate for the criminal law.”

Rae’s critcism wasn’t all for the Conservatives. The increased popularity of the NDP is not based on changes being made within the party, he noted.

“I think people made a big mistake if they read too much into what happened in that last election. I think the last election was particular to the last election. I think there was a deep wave of affection for Jack Layton,” said Rae.

“On the trade agenda,” he went on, “they’re still basically hostile to most motions of markets being more open and markets being freer. The rhetoric is still very much ‘corporations — bad guys; unions — good guys, and ‘what’s your problem?’ This is not a very satisfying recipe for being a potential government. It may be an effective way of being in opposition for a while, but I think even that has its limitations.”

He defended his liberal perspective on the economy, saying we should raise taxes instead of borrowing money.

“The orthodoxy of the Conservative party,” he said, “is that it’s more moral to borrow — this year $25 million — than it is to add a point or two to the GST. I have a real problem with that. I think that the issue of intergenerational equity also has to do with how much debt we’re transferring to future generations.”

Another hot topic of the question period was immigration and Canada’s role on the world stage. He said the Conservative’s reform to immigration law are “going to fail in court.”

He said, “we’ve been too laisez-faire” in dealing with immigrants. “We’ve allowed ourselves to believe that everyone will just make their way,” but at the same time, “we’ve all had experience with people who come to the country believing that something good’s going to happen and it didn’t happen.”

He raised the question of “is it first come, first served? Is it based on ‘we actually want to recruit some of these people and more of these skills than those skills?’ My sense is that we are as a country moving a bit more to the second rather than the first.” But that is also problematic.”  

Rae added, “This government does not like the United Nations. They don’t like it as an institution. They don’t even like it as an idea. I think if they could pull out of the UN they would.”

In terms of our own cultural diversity in Canada, Rae called the Idle No More movement “an expression of frustration,” but was quick to point out that aboriginal protesters need to determine “to what extent this new movement takes on a stronger, keener sense of what the objectives are beyond simply that of protest” because “protest movements eventually have to turn positive and have a series of practical objectives that are very focused and very achievable. Otherwise they tend to evaporate.”

In short Rae doesn’t agree the areas of law the Conservatives have focused on. He said they are too concerned with following popular opinion. For instance, Rae said the current version of the Criminal Code is probably three times the size of what it was when he was in law school.

“I think they only way we’re going to be able to deal with the mess that’s been made with the Criminal Code is to have some sort of a law reform commission on the whole Criminal Code.”

University of British Columbia president and vice chancellor Stephen Toope announced yesterday he will step down from his post at the end of the 2014 academic year to pursue his interests in international law.

Toope, who has an extensive legal background, said in a release that his decision to resign is “personal and relates to my desire to work over the next few years in a role more closely connected to my academic and professional interests in international law and international relations.”

Stephen Toope says his misses writing and being in the classroom.

When asked what that international law work will entail, Toope said he isn’t quite sure yet.

“I do not know what work comes next. I only know that I miss being able to write as much as I would like in my areas of international law, and I miss being in the classroom,” he told Legal Feeds.

Toope became president of UBC in March 2006 and began his second five-year term in July 2011. From 1994 to 1999, he was dean at the McGill University Faculty of Law, where he also obtained his common law and civil law degrees.

Considered an international law scholar, Toope continues to write in the areas of international human rights, dispute resolution, and international environmental law. In addition, in 2010 he co-authored a book on international legal theory titled, Legitimacy and Legality in International Law: An Interactional Account.

Toope also represented Western Europe and North America on the UN Working Group on Enforced or Involuntary Disappearances from 2002 to 2007.

Following public outcry over the $6-million payout in the BC Rail case, Toope was asked to conduct an investigation into the B.C. government’s handling of the case. His 2011 report said it was highly unusual for the government to pay the massive legal bills of former political aides Dave Basi and Bob Virk after they pleaded guilty to breach of trust. He also made several recommendations to help prevent similar payouts from happening in the future.

“As president, I have not been able to do the kind of work that I have done in the past, including chairing the UN working group and advising government,” said Toope. “I may look for more opportunities in those fields, but not until after I finish as president in 2014.”

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