A rec hockey player in Ottawa has been granted a new trial after a judge was found to have erroneously applied speculative reasoning to her decision that convicted him of blindsiding another player.
|A rec hockey player in Ottawa has been granted a new trial after the judge was found to have erred in convicted him of blindsiding another player. (Photo: Shutterstock)|
At the centre of the determination of guilt at trial was whether an on-ice collision involving MacIsaac and another player was an unavoidable accident or a deliberate blindside hit.
On Monday, the Ontario Court of Appeal in R. v. MacIsaac allowed the appeal and ordered a new trial, saying MacIsaac did not have a fair trial because the judge “engaged in impermissible speculative reasoning in reaching her verdict.”
On March 15, 2012, MacIsaac’s team the Tiger-Cats was playing in a senior no-contact men’s hockey league in Ottawa against the Pirates. During the last 47 seconds of the game, with the Pirates up by two goals, MacIsaac collided with Pirate Drew Casterton.
Casterton was knocked to the ice on his back and suffered lacerations to his face, a concussion, and the loos of two front teeth. MacIsaac was charged with one count of aggravated assault.
The court heard from 11 witnesses as well as a referee and various members of both teams. The Crown held that MacIsaac deliberately delivered a blindside hit to the left side of Casterton’s head.
The goalie on the Pirate’s team testified he saw MacIsaac leap off the ice, raise his arms, and hit Casterton in his shoulder and head area. He said MacIsaac’s arms hit Casterton’s head and that his facemask may have hit Casterton’s face.
The defence’s position was that the incident was an accidental, unavoidable, face-to-face collision.
At trial, Ontario Court Justice Diane Lahaie said most the witnesses showed “a clear bias depending on which of the two hockey teams he belonged to.”
She found the referee, was the sole “completely neutral” witness and that his evidence was credible and reliable. While his account of MacIsaac’s and Casterton’s positions on the ice — with the pair heading towards the puck behind the net — differed from that of the other witnesses, she accepted the entirety of his evidence aside from his testimony regarding a tripping incident earlier on the same play.
Lahaie also accepted all of Casterton’s testimony. The injuries to the left side of his face were consistent with his testimony about where he was looking and supported the conclusion that this was not a “face to face ‘head on’ collision.”
Lahaie rejected the evidence of one of MacIsaac’s teammates. She was “not prepared to find beyond a reasonable doubt” that the teammate had been on the ice at the time of the incident because it was “not logical” for three Tiger-Cats defencemen to be on the ice with the team down by two points and with so little time left in the game.
“Mr. MacIsaac intended to deliver a blindside hit to Mr. Casterton’s head and knew of the risks associated with head shots. He delivered it anyway as his frustration and desire for revenge took over,” she said.
She rejected MacIsaac’s claims that he left his usual position as a defenceman in an effort to steal the puck from Casterton and score a goal, that Casterton made an unpredictable turn rendering a collision unavoidable, and that MacIsaac did not have sufficient control over his speed to avoid hitting Casterton.
On the issue of consent, Lahaie found the hit amounted to a marked departure from the conduct expected in a no-contact hockey league that “consent to such conduct cannot be given.” As for mens rea, she held that MacIsaac foresaw the risk that his actions would cause serious bodily harm, but nonetheless chose to take that risk.
In a case where the circumstances are not proven or the inferences are not reasonable, or both, the factual inference drawn would be described as “speculative” or “unsupported” and if material to the outcome would not withstand appeal, says Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP.
“The criminal standard was being applied in this case. Perhaps an inference that is more of a stretch might be accepted in a civil context but you couldn’t do it in a criminal context where you might be putting someone in jail,” says Virc.
MacIsaac’s lawyers said Lahaie misapplied the law of consent and failed to consider whether MacIsaac had an honest but mistaken belief in consent.
He thought players in the league consented to any type of bodily contact that was foreseeable in a game, including deliberate blindside checks. The fact defence counsel did not raise the issue did not relieve the trial judge of her obligation to turn her mind to the defence and whether it was applicable in the circumstances.
The appeal court considered whether the trial judge engaged in impermissible speculation and, did she reverse the onus of proof? It also considered whether Lahaie erred in failing to consider the defence of “honest but mistaken belief in consent?”
Writing for the Court of Appeal, Justice C. William Hourigan wrote: “I agree with the submission of the appellant that the trial judge engaged in impermissible speculative reasoning in rejecting the evidence of the defence witnesses. This impaired the appellant’s right to a fair trial. On this basis, I would order a new trial. It is unnecessary, therefore, to consider the other issues raised by the appellant.”
It won’t be just Marc Rosenberg’s brilliance that his former colleague, former chief justice of Ontario Warren Winkler, will remember. It will also be his smile.
|Marc Rosenberg passed away Aug. 27 after a battle with brain cancer.|
“You know, I was interrupting his work, but it never mattered. It was a big smile, and he’d turn around and the conversation would start like it had never ended from the last time you saw him.”
Winkler is one of many members of the Canadian bar and bench mourning this week. Rosenberg, a former judge of the Court of Appeal for Ontario and one of the country’s foremost experts in criminal law, died on Thursday after a battle with brain cancer. To many of those who worked with him, Rosenberg was not just a colleague but a dear friend.
“He was just one of those people who had an impact on many, many people in different areas, and he wasn’t one dimensional by any stretch of the imagination,” says Winkler. “People he came in contact with, he made a mark on them. He just had that way about him, because he was a person with a huge amount of depth but he also wasn’t reclusive — he was a warm person.”
Born in 1950 to Ethel and Morris Rosenberg, he was called to the bar in 1976 after graduating from Osgoode Hall Law School. He practised criminal law at Greenspan Rosenberg and Buhr for nearly two decades until 1995, then served as a Court of Appeal judge for almost two decades more, retiring earlier this year. He also served as assistant attorney general for the ministry’s Public Law and Policy and Civil Law divisions.
Rosenberg’s accomplishments were many. He was a director of the Criminal Lawyers’ Association from 1987 to 1991, and was a non-bencher member of the Law Society of Upper Canada’s legal education committee. He served as editor of Martin’s Annual Criminal Code and wrote many articles on criminal law and the Canadian Charter of Rights and Freedoms.
"Justice Rosenberg had a decades-long association with Canada Law Book, and later with Carswell, as author/contributor to numerous prominent publications, including the highly-regarded Martin’s Annual Criminal Code and Martin’s Ontario Criminal Practice. It was both a pleasure and a privilege to work with him. He will be missed," said Rachel Francis, the vice president, legal and regulatory, at Carswell.
Rosenberg served as consultant on a number of influential commissions, including the Law Reform Commission on Electronic Surveillance and on the Powers of the Attorney General, the Donald Marshall Inquiry, and the Government of Ontario’s Justice Review Project, according to a biographical note on the Court of Appeal web site. He also taught at Osgoode, and around the world as a judicial associate with the National Judicial Institute.
Winkler’s friendship with Rosenberg began, he says, soon after he himself became a judge.
“He was one of what I call my ‘have-coffee-with people,’ because I would go in in the morning early, he would go in in the morning early, and we would either go out for a coffee or we’d sit in his office and have a coffee and just talk about general things,” he says.
Rosenberg’s many achievements, says Winkler, stemmed not only from his widely recognized brilliance but also his work ethic.
“He was a tireless worker, and a perfectionist,” says Winkler. “So everything that he did reflected that.
“From my point of view as the chief, if I needed anything done at all by way of extra things, for him to help with, he was always a volunteer. . . I could go to him and he’d take on any sort of task or job no matter how busy he was, and you didn’t have to worry about it — he’d get it done.”
Rosenberg was also a passionate teacher.
“Whenever he wasn’t sitting and doing his judicial work, every other spare moment he spent teaching both across Canada and internationally to both lawyers and other judges. And he did that through the judicial council or through anybody who asked him, frankly.
“I always used to kid him about his air miles . . . because he was always on an airplane going somewhere, to the Orient or Europe or the U.S. to teach, because he was so good at it and so popular.
“He was in great demand, and he would be all over the world, appearing at conferences and teaching other judges and they loved him. Everybody loved him because he was a very good teacher, he was very clear and he simplified everything down so that everybody could understand it,” Winkler says.
Rosenberg was predeceased by his wife Martha, whose death a few years ago dealt him “a huge blow,” says Winkler. He is survived, according to the Court of Appeal web site, by his partner Priscilla Platt and two children, Debra and Daniel.
“I call him a dear colleague but also a dear personal friend,” Winkler says. “And I say I’m going to miss him immensely.”
Toronto criminal lawyer Brian Greenspan, brother of Rosenberg’s late partner in private practice, says he was very well described in the funeral notice written by his family.
“They said he was a man of great integrity, intelligence, and judgement, and of unfailing humility and grace,” says Greenspan. “Knowing Marc as I did for over 40 years, I think he would have smiled and told them ‘well done,’ because I think that probably most aptly describes who he was, the type of person he was, and the type of lawyer and judge he was.
“It’s a great loss to the community and a great loss to the law.”
The notice is viewable on the web site of Benjamin’s Park Memorial Chapel, site of Rosenberg’s funeral this afternoon.
Anthony Moustacalis, current president of the Criminal Lawyers’ Association, knew Rosenberg when we worked in private practice alongside Eddie Greenspan.
“He was at the time, I would say, the leading criminal appeal lawyer in Canada,” Moustacalis says.
As a legal scholar, Moustacalis says, Rosenberg “had the uncanny ability to synthesize contradictory legal cases and explain how they all fit together, which was always quite remarkable.”
As a judge, he recalls, Rosenberg “was always someone who on and off the bench was very soft-spoken, but a very incisive thinking person,” whose decisions were referred to by “all other courts in Canada, at all levels.”
Among his most influential decisions, Moustacalis says, was in R. v. Priest, 1996, in which Rosenberg argued against custody for a young first-time offender.
In a prepared statement, Ontario Attorney General Madeleine Meilleur said: “I was greatly saddened today to learn of the death of the Honourable Marc Rosenberg, a respected and influential figure in the Canadian legal community. . . . Today my thoughts and prayers are with Justice Rosenberg’s family, many colleagues and friends. I join with them in mourning his loss. He will be missed.”
CALGARY — Supreme Court Chief Justice Beverley McLachlin says she has no concerns about newly appointed Justice Russell Brown’s past political writings before his appointment to the bench.
|'I welcome a robust debate about the role of the court and how we do our job,' said Chief Justice Beverley McLachlin this morning at the CBA meeting. (Photo: Glenn Kauth)|
McLachlin pointed to Brown’s previous role as a legal academic and said it’s common for people to express their opinions before their appointment to the bench.
“He comes to the court with a rich background as a practitioner and law professor,” McLachlin said in her remarks to the CBA council as its annual conference gets underway.
At the press conference, McLachlin also addressed recent commentary that the top court often acts as a type of unofficial opposition to the federal Conservative government.
“I leave the labels to other people,” she said, suggesting the court’s role is to answer the questions put to it in accordance with the law.
“I welcome a robust debate about the role of the court and how we do our job,” she added.
But asked whether she accepts the label as an unofficial opposition, McLachlin was categorical.
“Of course not,” she said. “I’m a not a politician. I’m a judge.”
In her remarks to the council this morning, McLachlin said the top court had had a “productive year.” Citing its busy caseload, she noted some of the key cases it had dealt with, including the Carter v. Canada (Attorney General) matter that dealt with assisted suicide.
She also touted improvements at the Canadian Judicial Council, including providing more detailed information to complaints about the review of the matter; streamlining the conduct review process; and inviting laypeople to participate on review panels that decide whether to refer a complaint to an inquiry committee.
Besides McLachlin’s remarks, the CBA council began considerating a number of resolutions. Several of them dealt with aboriginal matters, including a call to boost the independence of the Specific Claims Tribunal following recent changes by the federal government.
Another key concern arose in a motion dealing with increased difficulty in access to counsel by inmates due to restricted visiting hours, limited phone time, and an inability by lawyers to see clients once they arrive at institutions.
“The conditions really are getting worse and worse,” said Michael Jerch, chairman of the CBA’s national aboriginal law section.
Another issue dealt with lawyers’ concerns about the overuse of and lack of law around solitary confinement in prisons.
“Generally speaking, it’s in a very vague type of realm,” said Bibhas Vaze, a Vancouver lawyer who moved a resolution calling for the CBA to urge governments to pass legislation and policies to restrict and regulate the use of solitary confinement.
The CBA council continues today with additional resolutions around matters such as doctor-assisted suicide and remarks from Janet Fuhrer, the association’s incoming president.
In what many are calling a controversial and conservative choice, Prime Minister Stephen Harper has appointed Alberta judge Russell Brown to the Supreme Court of Canada, replacing Justice Marshall Rothstein.
|Justice Russell Brown at his swearing in at the Court of Queen's Bench of Alberta in February 2013.|
“I’m a fan,” says Craig Jones, professor of law at Thompson Rivers University in Kamloops, B.C. “I think it’s a great long-term appointment.”
Brown, a former associate dean at the Faculty of Law at the University of Alberta, was a guest lecturer at TRU in February. Jones and Brown share an academic interest in what Jones calls “the very sticky field of causation in tort law.”
Associate professor Margaret Hall of the Faculty of Law at Thompson Rivers University called Brown “a truly outstanding scholar.”
“I have known Russell Brown since young and carefree undergraduate days at UBC. To my delight, we both grew up to become torts professors and became re-acquainted with each other in that professional and intellectual capacity,” she says.
While there’s some criticism that Brown has been a judge for just 2.5 years, others note he’s not the first to have an expedited path to the SCC.
Chief Justice Beverly McLachlin was appointed at the age of 45 (Brown is 50), and both with experience from private practice and academia, says Eugene Meehan of Supreme Advocacy LLP in Ottawa and a former executive legal officer at the SCC.
“With the court’s current workload mainly criminal, he will adjust, but his academic experience of critically analyzing and writing about the law will serve him well,” says Meehan.
He adds Brown’s time as an associate dean will help him in terms of “building relationships and putting out fires.”
University of Alberta law school professor Peter Sankoff says Brown’s varied background will benefit the SCC.
“Anytime someone makes a rapid rise to the Supreme Court there’s always controversy and it’s not unprecedented,” says Sankoff. “Sometimes having someone who has done a lot of different things and then moves to the judicial ranks in a short time can bring different perspectives to the bench.”
Sankoff, a professor and author of criminal law, wouldn’t comment on whether Brown has “conservative” leanings, saying rather he sees him as “a guy with an open mind.”
“I’ve read a lot of his decisions on the bench and I’m reluctant to peg him as an ideologue of one sort or another,” he says. “What surprised me was how rigorous and well thought out a lot of his criminal law decisions [are]. It doesn’t’ mean I agreed with every one of them but at the end of the day I couldn’t deny they were well thought out.
“He is a hard working guy. I think he has a strong will and strong thought about things but I know he’s open.”
Brown was appointed to the Court of Appeal in Edmonton last year after just 13 months on the Court of Queen’s Bench. He also serves as a judge of the Court of Appeal for the Northwest Territories and a judge of the Court of Appeal of Nunavut. He previously served on the Court of Queen’s Bench of Alberta.
Before being appointed to the bench, Brown served as an associate professor and associate dean at the University of Alberta Faculty of Law. He was also associate counsel with Miller Thomson LLP in Edmonton and practised at Carfra & Lawton LLP and Davis & Co. (now DLA Piper LLP) in Vancouver.
Brown’s appointment has also raised eyebrows in part due to his connection as an adviser in 2012 to the Justice Centre for Constitutional Freedoms, a conservative legal group.
“He was a very well regarded lawyer and he is an excellent teacher,” says Jones. “What makes him a great judge is he is an extremely down to earth, pragmatic, very human guy and he brings that, notwithstanding people’s concerns about this or that connection to the JCCF.”
Sankoff says judicial labels get thrown around a lot and there are different types of conservatives. His view is Brown has a “healthy respect for judicial precedent” which he says is the traditional view of a conservative.
“He has a healthy respect for the rule of law and precedent and that’s a welcome trait to add to the Supreme Court. That is what conservative used to mean. That can be both good and bad.”
Jones predicts Brown will be “leading some advances in less spectacular but very important areas of the law” such as tort law.
“While it [tort law] hasn’t been neglected, the approach of the Supreme Court of Canada has been tentative and inconsistent. I think he has a very strong understanding of the sort of ebbs and flows of the tort jurisprudence and a way of harmonizing it into a concept that serves social objectives and maintain some intellectual integrity,” he says.
“He has a really good way of boiling things down to common ideas and looking through threads of cases for some sort of conceptual integrity and often nails it.”
Labach replaces Justice Y.G. Wilkinson, who became a supernumerary judge on May 16. Labach, who was appointed to the Provincial Court in 2009, was formerly a lawyer with McDougall Gauley.
Even new to the Saskatchewan Court of Queen’s Bench is Gary Meschishnick, who was a lawyer with Wallace Meschishnick Clackson Zawada LPC in Saskatoon. Meschishnick is replacing Justice F.J. Kovach, who is now a supernumerary judge.
Meschishnick, who is from Humboldt, Sask., had been a partner with Wallace Meschishnick Clackson Zawada LPC since 1996. He practised primarily in the areas of corporate commercial litigation, debtor-creditor law, and insolvency and restructuring law, as well as mediation and arbitration.
In Nova Scotia, legal aid lawyer Robert Gregan has joined the bench of the Supreme Court of Nova Scotia. He is taking the place of Justice C. MacLellan, who became a supernumerary judge on June 19.
Gregan practised criminal law, family law, and administrative law at Nova Scotia Legal Aid in Amherst since 1991.
Evn though all the newly appointed judges in Saskatchewan and Nova Scotia are male, the government’s press releases said they reflect its awareness of the need for a more equal gender representation on the judiciary.
“Appointments to the country’s Superior Courts not only reflect the rich and diverse social fabric of our country, but also take into consideration the merit and legal excellence of each individual jurist,” the government said.
“Through these appointments, the Government of Canada has demonstrated an awareness of the need to bring greater gender balance to the bench, to help ensure that the judiciary is more representative of Canadian society.”
|Newly appointed Ontario appeal court Justice Bradley Miller has some controversial views on same-sex marriage.|
Miller, a former law professor at Western University, has been vocal about what he perceives as an attack on those who reject same-sex marriage in Canada.
Last year, while he was still a law professor, he wrote to the Law Society of Upper Canada in support of Trinity Western University’s bid for accreditation.
“If LSUC determines that the acceptance of a particular form of marriage is in fact a pre-condition to participation in public life, we must consider what consequences there will be for those existing member of LSUC who cannot, in good conscience, affirm that conception,” Miller wrote.
“Is LSUC prepared to impose statements of belief on its membership? The condemnation of TWU’s code of conduct would end, logically, in the code of belief to be imposed on the LSUC membership,” he added.
The LSUC voted not to accredit TWU due to its community covenant that effectively bans sexual intimacy between same sex couples. The university is challenging that decision at the Divisional Court.
Miller has written in other places saying the rejection of same-sex marriage has been likened to bigotry, which he said harms freedom of expression.
“The formal effect of the judicial decisions (and subsequent legislation) establishing same-sex civil marriage in Canada was simply that persons of the same-sex could now have the government recognize their relationships as marriages. But the legal and cultural effect was much broader,” he wrote in a 2012 essay.
“What transpired was the adoption of a new orthodoxy: that same-sex relationships are, in every way, the equivalent of traditional marriage, and that same-sex marriage must therefore be treated identically to traditional marriage in law and public life.”
Although Miller has spoken out in this area, Toronto appellate lawyer Allan Rouben says there’s nothing to suggest the appointment was ideologically motivated.
“The assumption appears to be that the appointment is ideologically motivated,” Rouben says. “There are a whole range of factors that go into the judicial appointment process. He had an impressive academic career and there’s nothing to say that isn’t the predominant factor in the first place,” he adds.
In Quebec, Superior Court Justice Jacques Fournier, who has been the court’s associate chief justice has been appointed its chief justice.
Fournier, who became associate chief justice in 2013, is replacing Justice François Rolland. He was appointed as puisne judge of the Court of Appeal of Quebec in 2011 and judge of the Superior Court of Quebec in 2002. Fournier was also an instructor at Université du Québec à Montréal and the Université de Montréal.
Justice Eva Petras becomes the new associate chief justice, effective June 30. She was first appointed to the Superior Court of Quebec in 2006.
Before becoming a judge, Petras practised family law and litigation at Eva Petras law firm. Prior to launching her own firm, she practised at MacKenzie Gervais from 1981 to 1986 and Lapointe Rosenstein from 1986 to 1990. She has also been a lecturer in family law at McGill University’s Faculty of Law.
Earlier in the month, New Brunswick Justice Raymond French, a judge of the Court of Queen’s Bench was appointed to the province’s court of appeal, He replaces Justice B. R. Bell, who was appointed to the Federal Court.
French was first appointed to the Court of Queen’s Bench in 2007. Before his appointment, he was a lawyer with Patterson Palmer in Saint John.
Replacing French on the Court of Queen’s Bench Trial Division is Richard Petrie. Prior to his appointment, Petrie worked as a lawyer with Stewart McKelvey in Fredericton.
On Monday, the inquiry committee formed in late 2013 to investigate the conduct of Justice Déziel submitted its 59-page report to the Canadian Judicial Council.
The allegations date back to the 1997 municipal election campaign in Blainville, Que., when Déziel was a lawyer and organizer for the sitting mayor. Charbonneau Commission witness Gilles Cloutier alleged Déziel gave him $30,000 with instructions to find people to pose as donors to the campaign, converting the money into contributions of $750 each.
Cloutier, who worked for an engineering firm, made the allegations in 2013 during testimony at the provincial inquiry into widespread municipal corruption in Quebec.
Déziel denied the allegations but said he acted as an intermediary in transferring the money to an engineering firm.
The committee, chaired by New Brunswick Chief Justice Ernest J. Drapeau, outlined how they answered the question of whether Déziel’s conduct was “so manifestly and profoundly destructive to the concept of impartiality, integrity and independence that public confidence would be so undermined as to render the judge incapable of remaining in office.”
In a statement, a spokesman for the CJC said:
Having considered the matter fully including that the infractions were non-criminal and sanctioned by a fine of $100, the time elapsed since their commission, and numerous other mitigating factors including Justice Déziel’s irreproachable career as a judge, his apology and the unequivocal support expressed by the judge’s chief justice and associate chief justice, the Inquiry Committee concluded that Justice Déziel’s conduct was not so serious as to warrant removal.”
The report states: “In the present matter, the Independent Counsel is convinced that there is no risk of reoffending and that Justice Déziel’s sincere apologies are sufficient to reassure the public in this regard.”
The committee also noted that some of the events put forward in the allegations were found to be “incompatible with the facts and the credibility of certain witnesses in doubt.”
Therefore the inquiry committee found a recommendation for removal was not warranted. The report and its recommendation that Déziel be returned to his position will soon be considered by the CJC.
The CJC will report its conclusions and submit the record of the inquiry to the federal minister of Justice.
Déziel was appointed in November 2003 to the Superior Court to preside in Laval. He could not be reached for comment.
A Vancouver family lawyer with Jenkins Marzban Logan LLP, Grace Choi has been appointed a judge of the Supreme Court of British Columbia, Family Division, to replace Justice R. Crawford, who elected supernumerary status in August of 2014.
The Dalhousie graduate was admitted to the B.C. bar in 1993 and in Ontario in 1996. She became an accredited family law mediator in 2013 and was appointed Queen’s Counsel in 2014.
Federal Court Justice Denis Gascon, who also sat on the Competition Tribunal, has been named chairman of the Competition Tribunal to replace Justice D.J. Rennie, who in turn has been appointed to the Federal Court of Appeal. Gascon was appointed to the Federal Court on Feb, 26, 2015. Prior to that, he joined Ogilvy Renault (now Norton Rose Fulbright Canada) in 1989, where he became a partner in 1997.
Recently retired Canadian Forces legal adviser Patrick K. Gleeson, has been appointed to the Federal Court to fill a new position created by Bill C-11.
After being admitted to the bar of New Brunswick in 1994, he joined the Office of the Assistant Judge Advocate General in Halifax as a legal adviser and worked in different directorates until 2000. He became the JAG’s Director of Legal Services, where from 2005 he served as the senior legal adviser.
Cilian Sheahan, of Poole Althouse in Corner Brook, N.L., has been appointed as a judge of the Newfoundland and Labrador’s Supreme Court, Trial and Family Division to replace Justice R.A. Fowler who will move to supernumerary status this month.
He was called to the N.L. in 2000 and appointed Queen’s Counsel in 2013. Sheahan’s areas of practice were corporate and commercial law, municipal, labour and employment law and corporate estate planning. In 2004, he joined the Canadian Forces as a legal officer.
Following the resignation of Justice V.A. Schuler, Justice Andrew M. Mahar of the Nunavut Court of Justice in Iqaluit, will become a judge of the Supreme Court of the Northwest Territories.
Mahar is called to the bars in Ontario, Nunavut, and the Northwest Territories. Clinic Director of the Kitikmeot Law Centre of the Northwest Territories Legal Aid Clinic. He has mostly practised as a sole practitioner but was also Clinic Director of the Kitikmeot Law Centre of the Northwest Territories Legal Aid Clinic in Cambridge Bay.
Sylvia Corthorn, a lawyer with Kelly Santini LLP/SRL in Ottawa, will replace Justice L.D. Ratushny of the Ontario Superior Court of Justice. Ratushny has been elected to supernumerary status, which had come in effect in June last year.
Corthorn was called to the bar in 1984 and has mainly practised in the areas of personal injury law, medical and dental malpractice, insurance defence litigation, and commercial and estate litigation.
Superior Court of Quebec Justice Charles Ouellet moves from the districts of Saint-François and Bedford, with residence in Cowansville, to the districts of Saint-François and Bedford, with residence in Sherbrooke. Ouellet will replace Justice Y. Tardif who has elected supernumerary status effective June 1. He was originally appointed to the Superior Court of Quebec in 2011.
Also in Quebec, Serge Gaudet, a lawyer with Langlois Kronström Desjardins in Montréal will replace Justice J. Lanctôt as puisne judge of the Superior Court of Quebec. Justice Lanctot has elected supernumerary status.
Gaudet was called to the bar in 1987. His main areas of practice were civil and commercial litigation.
A lawyer with Bouchard Page Tremblay in Quebec, Simon Hebert is appointed to Superior Court of Quebec to replace a by Justice M. Fortin, who has resigned.
Mostly a class action counsel, Heber was called to the bar in 1989. He has also been an officer with the Canadian Armed Forces since 1983
Chantal Tremblay, who is a lawyer with McCarthy Tétrault LLP in Montreal, also joins the Superior Court, taking over for Justice A. Denis.
Called to the bar in 1995, Tremblay is a former Quebec managing partner at McCarthys. Her main areas of practice were commercial litigation, class actions, professional liability, insurance law, environmental law, medical liability and disciplinary law.
Finally, Alexandre Bouchar a lawyer with the Director of Criminal and Penal Prosecutions has also been appointed to the Superior Court. He will be replacing Justice C. Champagne, who elected to supernumerary status.
Bouchar was called to the bar in 1996. He joined the Director of Criminal and Penal Prosecutions in 2010, and was previously a sole practitioner from 1995 to 2010.
Saskatchewan provincial court Judge Jeffery D. Kalmakoff in Regina has elevated to the court of Queen’s Bench of Saskatchewan. Justice D.P Ball of Regina has elected supernumerary status on May 9, 2014.
Prior to his appointment Saskatchewan Court of Justice in 2009, Kalmakoff was a Crown prosecutor with the Public Prosecutions Division of the Saskatchewan Ministry and Attorney General in Regina between 1996 and 2009. He was called to the bar in 1994.
Don R. Sommerfeldt, a counsel with Dentons Canada LLP in Edmonton, is the newest appointed judge of the Tax Court of Canada to replace a resignation by Justice G. Sheridan.
He was called in Alberta in 1978 and to the bar of New York in 2004. Sommerfeldt has been with Dentons Canada LLP (formerly Fraser Milner Casgrain LLP) since 2000 practising taxation, estate planning, and pensions.
A lawyer with McInnes Cooper in Halifax, Henry A. Visser, is also appointed to the Tax Court to replace Justice D. Cambell who elected supernumerary status as of this year, June 19., will take over.
Visser mainly practised tax law, corporate law, commercial law, labour law, and employment law. He was admitted to the bar of Nova Scotia in 1995 and to P.E.I. in 1998
|Judicial officers need policies and procedures around the use of social media, says a report. (Photo: Twin Design / Shutterstock.com)|
This time, a working group of nearly 20 participants, from a wide cross-section of justice participants examined the implications of judicial officers —- judges and tribunal members — using social media.
Ontario Superior Court Justice Frances Kiteley says there is a need for more discussion about the use of social media and the implication, both within the judiciary and for members of administrative tribunals.
“The world we are judging in, is overwhelmingly one in which everyone is using social media,” says Kiteley, co-chairwoman of the court technology organization. “It is not like we are in a silo, all by ourselves.”
A survey on social media was distributed and nearly 700 judicial officers in Canada responded. About half of the responses came from judges at the superior or provincial court level. More than half of those who replied are based in Ontario or Quebec. No one from the Yukon responded.
Nearly half of the judicial officers who completed the survey said they visit or contribute to social media sites, such as Facebook, Twitter, or blogs, “in a personal or professional capacity, to some small extent,” says the discussion paper.
That figure is less than the general population. A Forum Research survey from January of this year showed 18.5 million Canadians are on Facebook and 47 per cent of survey respondents use Facebook more than once each day. Less than one-in-four judicial officers reported using the social network at least once a month, according to the CCCT data.
The main reason for visiting or contributing to social media was to follow or send messages to contacts. Nearly 20 per cent of the CCCT survey respondents said they used social media to share “online multimedia content” that is personal.
The discussion paper also highlights examples where the use of social media in a professional or personal setting, has caused issues for judicial officers.
A Quebec judge declined to recuse herself from a multi-defendant drug trial after defence lawyers pointed out that many of her “friends” on her Facebook page were Crown attorneys. A provincial court judge in Ontario retired and apologized before a disciplinary hearing that stemmed from comments she made on Facebook about two other judges.
And recently, a criminal conviction was overturned on appeal, because a provincial court judge in Ontario independently used Google street view to test the credibility of the accused.
When acting in the capacity of a judicial officer in a trial or a tribunal hearing, the same ethical principles apply, regardless of whether information is found in a book or on social media, says Kiteley. It is less clear what “the line” is, when it is the use of social media in one’s personal life.
“Part of what the report is about, is to spur discussion on where the line might be,” she adds.
In a profession where “reputation is everything” it is important for judicial officers to be fully informed about the potential impact of social media use, says Lisa Taylor, a member of the working group.
Even sharing family information and photos on sites such as Facebook, should be done carefully, says Taylor, a lawyer and journalism professor at Ryerson University in Toronto. She also urges more discussion among judges and tribunal members about social media, with the aim of developing basic policies and education in this area.
“Your digital profile is so easily accessible,” says Taylor.
As well, it is very difficult to remove information, once it has been posted. “The Internet never forgets,” she warns.
|The Yukon decision clarifies the test for judicial bias.|
The Supreme Court’s decision cites several disparaging remarks directed at Yukon counsel and includes a laundry list of incidents that clearly breached the threshold for reasonable apprehension of bias.
At one point, the judge said he would allow counsel for the government to bring forward new arguments relating to confidentiality of a witness — only to blindside the Crown the next day with an unfavourable ruling that halted discussion.
Perhaps more troubling, the trial judge questioned Yukon counsel’s request to submit evidence from a witness who had suffered a stroke. The judge accused counsel of trying to delay the trial and warned counsel they could be ordered to pay costs personally if they brought the application.
Yet another example of bias occurred after the trial judge’s ruling (in favour of the school board), when Yukon counsel were denied their request to challenge costs claimed by the board — including punitive damages and solicitor-client bills retroactive to 2002.
“All of these incidents, taken together and viewed in their context, would lead a reasonable and informed person to see the trial judge’s conduct as giving rise to a reasonable apprehension of bias,” the decision states.
Receiving the brunt of the trial judge’s “disparaging remarks” was Max Faille, the partner in public law at Gowling Lafleur Henderson LLP who represented the Yukon government before the SCC.
Faille says the court was in no position to pronounce on many of the language-rights issues that are core to the case, given the tainted nature of the trial. He calls the Supreme Court’s decision a “vindication” of the way his team and client comported themselves in court.
“I’ll confess that it was a very difficult trial,” says Faille. “As advocates, we come to have certain expectations when it comes to trial procedure and the law of evidence and conduct of the judiciary. . . . Certainly we felt in the courtroom it was quite palpable that we were not being heard on behalf of our client. And that was quite trying during a lengthy trial.”
Despite agreeing with the appeal court’s finding of bias, the decision — written by Justice Rosalie Abella on behalf of a unanimous court — dismisses the lower court’s reasons, which had placed significant weight on the trial judge’s position as a governor of the Fondation franco-albertaine, a philanthropic organization.
While the appeal court found that the trial judge’s connection to the group indicates a world view aligned with the francophone school board, Abella makes clear that group affiliation cannot, on its own, be used to infer bias:
“Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise. Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.”
The SCC decision focuses mainly on questions around judicial bias, while upholding the lower court’s determination that a new trial should be held where the majority of the language-rights issues will be dealt with.
Update 3:30pm: Comments from Max Faille added.
Subscribe to Legal Feeds
- Jennifer Brown
- Glenn Kauth
- Tali Folkins
- David Dias
- Yamri Taddese
- Gail J. Cohen
- Karen Lorimer