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The committee cites a number of factors that led to the wholesale resignation including the fact ongoing delays and associated costs over debates about the process itself were not in the public interest.
“In the normal course, by now the committee would have concluded its hearings, prepared its report, and forwarded it to the Canadian Judicial Council for consideration. As matters have transpired, more than two years have now gone by and the hearings have not been completed,” the committee said in its reasons last week.
Currently, the Federal Court is scheduled to hear a challenge from Douglas later this month about a number of issues relating to the process of the inquiry. Some questions remain about whether these proceedings will go ahead as planned.
The committee noted costs in this Federal Court case have been exacerbated by interlocutory court proceedings and they “will continue to rise and will no doubt be significant.” It had tried to resume hearings but Douglas was granted a stay until the final determination of her judicial review application.
As well, it noted that in the Federal Court proceedings, there are huge conflicts for the federal attorney general meaning “there is no voice in defence of the process and an inquiry committee’s role in it. Thus, this fundamental part of the process is silenced and paralyzed.”
In the face of so many challenges, the committee felt it had only one way forward.
“In light of recent events, it has become apparent that this committee as presently constituted will not be in a position to complete its inquiry and submit its report to the council for a very extended period of time. Even further delays and costs are unavoidable. In these circumstances, the committee has determined that it must consider whether the public interest would be better served by resigning to permit a new inquiry committee to be appointed.”
In a 10-page explanation signed by Alberta Chief Justice Catherine Fraser, Newfoundland and Labrador Chief Justice Derek Green, P.E.I. Supreme Court Chief Justice Jacqueline Matheson, Barry Adams, and Marie-Claude Landry, the committee lamented the various judicial reviews Douglas has pursued and how those proceedings have interrupted their inquiry.
“If this process is to work as Parliament intended, it is imperative that there be no ability to interrupt an inquiry with litigation in another court that spawns its own further litigation and takes the process ever further away from theobject of the inquiry,” they wrote. “This is not in the public interest.”
“In due course, another inquiry committee may be appointed in respect of Associate Chief Justice Douglas,” said the CJC in a statement.
|Chris Schafer hopes the Supreme Court will deal with the issue of terms limits for judges indirectly as part of the Senate debate.|
“We thought it would be a good time to launch the campaign because the question of term limits is being decided by the Supreme Court of Canada itself,” says Chris Schafer, the foundation’s executive director.
Schafer practised constitutional and regulatory law at Gowling Lafleur Henderson LLP before joining the foundation in 2010.
The campaign is largely driven by the concern that Supreme Court of Canada judges remain in their posts long after the prime minister who chose them has left office.
“This is just another extension of the [prime minister’s office’s] power. That’s a concern for democracy,” says Schafer.
It may be unrealistic to expect prime ministers to eradicate their own power to appoint judges, but fixing the length of time their appointees can serve would help to limit a government’s influence, he argues.
The idea of fixed terms for Supreme Court judges isn’t new. Writing in Canadian Lawyer last year, lawyer and author Philip Slayton proposed 18-year terms staggered every two years.
“By now, pretty much everyone has cottoned on to the fact that the Supreme Court of Canada is becoming the ‘Harper Court,’” he wrote.
The “most ideological prime minister in a long time” had already appointed four of the nine judges sitting at that time, he added.
The Canadian Constitution Foundation believes 12-year terms staggered every two years would be the best option.
This is because in other democratic countries with fixed terms for constitutional judges, such as France, Italy, Spain, Portugal, and Germany, appointees generally stay in post for between six and 12 years.
Terms at the lower end of that range may mean judges are overly focused on finding work after they leave the court, says Schafer.
The foundation’s proposals apply only to newly appointed judges. They wouldn’t affect sitting judges.
It’s not clear exactly how the change could be made. One theory is that, because the Supreme Court Act lies outside of the Constitution, Parliament could simply amend the legislation. However, there’s no consensus on this.
Schafer hopes the court will deal with the issue indirectly as part of the Senate debate.
It could also come up in its deliberations on the appointment of judges related to Justice Marc Nadon’s controversial nomination in October.
Schafer thinks there’s sufficient support for the change on both sides of the political divide.
“There are a number of Conservatives who would support this because they [feel], rightly or wrongly, that the Supreme Court in the past has been used by principally Liberal prime ministers to appoint loyal judges who create law and don’t interpret law,” he says.
“Now Harper has been in power for so long, there are people, on the centre and left politically, worried that Harper is stocking the court with people who are in favour of mandatory minimums and other things.”
As a charity, the foundation isn’t actively lobbying the government but wants to provide education and information in order to spark a debate.
It has launched a web site, termlimits.ca, where people can read more about the campaign and endorse it if they like.
The council has taken the relatively unusual step of referring the case of Quebec Superior Court Justice Michel Girouard to a panel of three judges.
It follows a nine-month investigation, announced in January at the request of Quebec Superior Court Chief Justice François Rolland. The allegations stem from a police bust of a drug trafficking ring in Quebec’s rugged Abitibi region.
The complaint was considered by Court Martial Appeal Court of Canada Chief Justice Edmond Blanchard, vice chairman of the council’s Judicial Conduct Committee.
In a statement released yesterday afternoon, the council said: “After considering all the available information, including the judge’s response to the allegations, Chief Justice Blanchard has decided that this matter warrants further consideration.”
Judges cannot be suspended without a joint act of Parliament, but no cases have been assigned to Girouard since the investigation was launched.
The review panel will be chaired by Chief Justice of New Brunswick Ernest Drapeau, working alongside Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal and Nova Scotia Supreme Court Justice Arthur LeBlanc.
Of the approximately 180 complaints about the conduct of judges received by the CJC each year, only two or three are normally taken to the review stage, says communications director Johanna Laporte.
She adds: “It has taken some time to get to this. It’s a complex matter and one that has to be dealt with with some sensitivity.”
Since January, the complaint has been reviewed and comments have been sought from Girouard, who has also needed time to retain a lawyer and make his own inquiries, says LaPorte.
The review panel can decide for itself how long it needs to review the allegations, but Laporte says there is “an understanding and expectation” that it will move forward without too much delay.
“It’s never an ideal situation when a judge isn’t hearing cases because it creates a backlog,” she says, adding: “The Quebec court is essentially short of a judge.”
The review panel could decide to close the complaint, require Girouard to take remedial action such as counselling or coaching, or it could ask for a public inquiry to be launched.
Girouard became a superior court judge in September, 2010. He was previously a partner with Girouard Adam et Associates in Val-D’Or, Que., where his main areas of practice were business, banking and insurance law, and family law.
The alleged incident happened before he joined the bench, according to a Canadian Judicial Council statement issued in January.
A Quebec provincial court judge in Girouard’s region of Rouyn-Noranda, Justice Marc Grimard, was removed from cases at the same time as Girouard and investigated by the Court of Quebec. Both men were accused by a police informant inside the drug ring as regular customers for cocaine.
The Court of Quebec was unavailable for comment. The Conseil de la Magistrature du Quebec, which oversees the conduct of Quebec provincial court judges, said it would not comment on whether Grimard was still under investigation, or the nature of any complaint.
A Surêté du Québec spokeswoman said she could not comment on whether Grimard or Girouard faced criminal investigations because actions carried out as part of Operation Écrevisse are currently before the courts.
Operation Écrevisse began in 2010 and has led to dozens of arrests, including Hells Angels members, as part of an investigation into a drug trafficking ring.
|Justice Minister Peter MacKay is sending a reference directly to the Supreme Court regarding Justice Marc Nadon’s appoinment. (Photo: Chris Wattie/Reuters)|
In light of a court challenge to Justice Marc Nadon’s appointment to the country’s top court, Justice Minister Peter MacKay announced today the government is also sending a reference directly to the Supreme Court to “clarify certain eligibility criteria of Supreme Court Justices.” The Barreau du Quebec had asked the prime minister to take this step to speed up resolution of the appoinment controversy.
“Our government will defend the eligibility of longstanding members of the bar in all provinces and territories to sit on the highest court in Canada,” said MacKay in press release clarifying events earlier in the day in the House. “Longstanding members of the Quebec bar should be, and are under the law, treated the same as lawyers in other provinces and territories in Canada.”
The court challenge launched Oct. 8 by lawyer Rocco Galati argues that Federal Court of Appeal judges are not eligible for appointment to the three seats reserved for judges from the province of Quebec. The province of Quebec has also said it would be challening Nadon’s appointment.
As part of today’s budget bill, “the government introduced declaratory provisions to the Supreme Court Act clarifying — without making changes to the existing law — that individuals with at least 10 years with Quebec bar at any time during their career, are eligible to sit on the Supreme Court of Canada as a Quebec member.”
“That’s simply changing the composition of the Supreme Court through the back door,” Rocco Galatai told the Postmedia news service in response to the proposed changes. “By clarifying it, they’re admitting that it didn’t read that way before and if it didn’t read that way before, they are de facto changing the composition of the Supreme Court.”
Prior to Nadon’s appointment, the government got a legal opinion from former SCC justice Ian Binnie, opined that someone who has been an advocate of the Quebec bar for at least 10 years at any time during their career is qualified to be appointed to the top court bench. His view was supported by both Louise Charron, another former SCC judge and and constitutional law expert Peter Hogg.
While he was officially sworn in Oct. 7, Nadon has chosen not to “participate for the time being in matters before the Supreme Court of Canada.”
|The constitutionality of Justice Marc Nadon’s appointment should have been decided by the top court, says the challenge. (Photo: Chris Wattie/Reuters)|
Nadon was officially sworn in as a judge of the Supreme Court in a private ceremony at the top court yesterday.
The notice of the challenge, filed with the Federal Court yesterday, names Prime Minister Stephen Harper, who nominated Nadon for the job, as one of the respondents.
When properly interpreted, s. 5 and 6 of the Supreme Court Act allows only for the appointment of Court of Appeal and Superior Court judges, or a lawyer who has been a member of the bar for at least 10 years, the notice reads.
“Conforming to constitutional requirements is always an issue, abiding by the law is always an issue,” Galati says.
Prior to Nadon’s nomination, Harper sought former Supreme Court justice Ian Binnie’s opinion on the matter. Binnie said, “There is nothing in the Supreme Court of Canada Act” that would prevent the appointment.
But Galati says it wasn’t up to Binnie to make that decision.
“We feel that the issue should not have been the subject of an opinion of a retired judge, but should have gone to the eight judges of Supreme Court on a reference if they had any doubt about it. There’s a lot to doubt here in terms of the ability to appoint Federal Court judges as Quebec judges,” he says.
In his written opinion to the prime minister, Binnie said other federal court judges, including justices Frank Iacobucci and Marshall Rothstein, have been appointed to the Supreme Court without controversy.
“That’s never an answer,” says Galati. “The fact of the matter is this has never been raised.
“The difference here is that the other federal judges were not from Quebec,” he adds. [Nadon] is the first one from Quebec. There are different provisions that apply.”
Binnie had also said although a Federal Court judge doesn’t fulfill one of the requirements for appointment to the top court — being a judge of either a Court of Appeal or a Superior Court — he meets the other criteria, which is having been a member of the bar for more than 10 years.
“In the English version the words ‘is or has been’ refer grammatically to both judges and advocates,” Binnie said. “If an individual has ‘at least ten years standing at the bar of a province’ he or she ‘is or has been’ such a member, and despite a lapse of time while serving the Federal Court, the s. 5 requirement is met.”
For Galati, Nadon is either a judge or a lawyer, and judges of the Federal Court cannot be appointed to the Supreme Court. Binnie’s reasoning is also “besides the point,” he says.
“There’s a lot of reasons the provision is there. One of the reasons with respect to the accommodation of Quebec is that you don’t want people being absent that long from Quebec and then purporting to be Quebec judges.
“[Nadon] has been a Federal Court judge for 20 years. The section doesn’t allow his appointment.”
Galati is also seeking an interim order to stay Nadon’s appointment.
Justice Minister Peter MacKay's spokesperson Paloma Aguilar told Legal Feeds: "Justice Nadon is qualified and we are certain he will serve the court with distinction. Constitutional experts agree that the Supreme Court Act allows for a sitting Federal Court judge to be appointed to the Supreme Court of Canada — this includes the opinion of former Supreme Court Justice Ian Binnie.”
Update 1:45 pm: comments from Justice minister
Update: 3:40 pm: Press release from the Supreme Court of Canada: "Mr. Justice Marc Nadon has decided, in light of the challenge to his appointment pending before the Federal Court, not to participate for the time being in matters before the Supreme Court of Canada."
Update Oct. 12: The Barreau du Quebec has asked Prime Minister Stephen Harper to refer Galati's challenge directly the the Supreme Court of Canada because it considers Nadon's temporary removal will adversely affect the rights and principles for a sound administration of justice, particularly in light of some of the major cases the court is hearing this session. "I have asked Prime Minister Stephen Harper to refer this matter directly to the Supreme Court of Canada, as allowed under the Supreme Court Act, instead of following the usual judicial process, which could be longer," explained Johanne Brodeur, Ad. E., battonier of the Barreau du Québec.
The Barreau du Québec
|Justice Richard Chartier|
Scott’s retirement set off a number of changes within Manitoba’s judiciary. Replacing Chartier is Court of Queen’s Bench Associate Chief Justice William Burnett. He became a judge in 2009 following a stint as partner at Thompson Dorfman Sweatman LLP in Winnipeg.
Moving into Burnett’s role is Justice Shane Perlmutter. Currently a judge of the Court of Queen’s Bench, he becomes associate chief justice as Burnett moves to the Court of Appeal. Prior to becoming a judge in 2011, he also worked at Thompson Dorfman Sweatman and at Fillmore Riley before that. His main areas of practice were civil litigation and administrative law.
The final Manitoba appointment is Justice Herbert Rempel of the Court of Queen’s Bench family division. He replaces Justice Diana Cameron, who left the Court of Queen’s Bench for the appeal court on Nov. 2, 2012. Rempel had been with the court’s family division since late 2011 following a career as a lawyer in adoption matters, corporate commercial law, wills and estates, and civil litigation.
Besides the Manitoba appointments, the federal government also named a new Quebec Superior Court judge on Friday. Justice Karen Kear-Jodoin, a lawyer since 1984 who mainly practised family law, replaces Justice Marie-Christine Laberge following her resignation in January.
A complicated formula links the JPs’ salaries to that of provincial court judges, which are in turn set by the government based on the recommendations of an independent tribunal. But in his Feb. 1 judgment, Nova Scotia Supreme Court Justice Gerald Moir concluded that was too much distance to guarantee judicial independence for the JPs.
“The Provincial Court Judges’ Remuneration Tribunal has no authority to, and does not, make recommendations on justices’ remuneration. Their process may be independent, objective, and effective as regards the judges. However, it is not ‘representative’ as regards the justices because they are not involved, it does not ‘objectively consider . . . submissions’ about the justices’ remuneration because it has no authority to do so, and its work is not ‘effective’ as regards the justices’ remuneration because there is no consultative report on that subject,” wrote Moir. “In short, the lynchpin is missing. Consequently, the independence of the justices is not assured. Therefore, the regulation setting remuneration for Nova Scotia’s presiding justices of the peace is unconstitutional.”
All of Nova Scotia’s presiding JPs work on a part-time basis, and make around $50 per hour when presiding in person, as well as approximately $16 per hour for time spent on call. The hourly rates are linked to 50 per cent of a provincial court judge’s annual salary by a complex calculation that Moir said he “cannot understand.” Provincial court judges are currently paid $157,000 annually.
The provincial government attempted to block the application by arguing judges are unable to sue the government, since justices of the peace act on behalf of the Crown when they exercise judicial functions.
“The Crown cannot sue itself. The present proceeding is an attempt to do just that,” said justice department lawyer Alex Cameron during arguments.
But Moir disagreed, noting that “none of the authorities say that a judge is precluded from suing the government.”
The province also challenged the standing of the Nova Scotia Presiding Justices of the Peace Association to bring the application on behalf of its members, but Moir agreed to grant the group public interest standing to bring the application.
The judge has suspended his declaration of unconstitutionality for 12 months to give the government a chance to decide about its next steps.
In Principato v. Principato, Justice Robbie Gordon was ruling on costs in a case involving acrimonious matrimonial proceedings between Leanne Principato and David Joseph Principato. On April 26, 2012, David brought a motion for various heads of relief, but another judge, Justice Francine Van Melle, determined there wasn’t sufficient urgency to hear the matter before a case conference and reserved the issue of costs. Gordon then heard motions by both parties with respect to custody, access, a proposed assessment, and child support after the case conference failed to produce an agreement. In his decision last week, he considered submissions on costs.
But in doing so, he diverged into the issue of proportionality in family litigation, which he said has grown in importance as concerns over the affordability of legal services mount.
“Notwithstanding the litigation between them is essentially in its infancy, that is, it has progressed through only a case conference and the initial motions described above, the parties have incurred collective costs in excess of $92,000,” wrote Gordon, who noted the parties “are of very limited means” and that the proceeds from the sale of the matrimonial home amount to less than $100,000.
“Those costs have been incurred to deal with issues which I accept are important to the parties, but which are not particularly complex. When I consider proportionality in the context of the means of the parties, I must seriously question whether the motions brought forward in this case required the filing of lengthy facta, casebooks, and affidavits of the length and detail contained in these motion materials. The manner in which this relief has been sought is completely out of proportion to the litigants’ resources.”
While Gordon didn’t specifically fault either Leanne’s counsel, Shawn Campbell, or David’s representative, Aaron Franks, for the high costs, he reiterated the need for counsel to engage in a proportionality analysis.
“Moreover, I would suggest they have a professional obligation to conduct litigation in a manner which reflects the means of the client and the issues which present,” he wrote. “I accept that some clients will wish to proceed in a manner that does not reflect this concept of proportionality. Perhaps that is what happened in this case. When that happens, counsel will have to reflect upon whether they wish to act for a client who will not follow their advice.”
With respect to the Principatos, Gordon ordered David to pay costs of $4,000 in relation to the April 26 motion. When it came to a set of other motions returnable on Oct. 4, 2012, he ordered that each party should bear its own costs given the divided success.
After days of media reports that two judges were the object of an ongoing investigation by the Surêté du Québec, the Court of Quebec issued a terse four-paragraph statement on Jan. 7 saying it is now looking into the conduct of one of the two magistrates — Rouyn-Noranda provincial court Judge Marc Grimard.
“The allegations that have been brought [against Grimard] are being taken very seriously by the court’s management,” reads the missive on the Quebec Court’s website. “For the time being, no new files will be assigned to Judge Grimard.”
The Canadian Judicial Council issued an equally short and taciturn statement the following day. It said it will be reviewing the conduct of the other judge named in the case — the Quebec Superior Court Justice Michel Girouard, who also sits in the Abitibi-Rouyn-Noranda-Témiscamingue region.
“The review concerns his conduct prior to his appointment to the Bench and includes an allegation that the judge would have participated in a transaction to purchase an illicit substance from a police informant,” reads the CJC statement.
“This is only an allegation: no facts have been established in this matter.”
Like his provincial court colleague, the CJC says no new cases will be assigned to Girouard during the review.
It says the federally-appointed judge will also have “a full opportunity to representations about the allegations.”
The allegations stem from a police bust of a drug trafficking ring in Quebec’s rugged Abitibi region, which forms much of the province’s northwest border with Ontario.
The bust was made in 2010, the same year Girouard was named to the bench for the region. Grimard has been with Quebec Court since 2004.
Both men were accused by a police informant inside the drug ring as regular customers for cocaine.
Several dozen people were arrested, including members of the Hells Angels. Firearms, drugs, a plane, a helicopter and nearly $1 million in cash were also seized.
The news is a bleak start to 2013 for the Quebec judiciary, which has had its fair share of bad press in recent years.
In 2011, for example, Quebec was rife with allegations of influence peddling over the nomination of judges.
And in June, retired Quebec Court Judge Jacques Delisle became the first Canadian judge to both stand trial and be found guilty of first-degree murder in the shooting death of his handicapped wife.
|Justice Peter Lauwers has been elevated to the Ontario Court of Appeal|
In Ontario, St. Catharines lawyer David Edwards joins the bench in Brampton, Ont. A lawyer with Lancaster Brooks & Welch in St. Catharines since 1979, Edwards is a certified specialist in corporate and commercial law. He replaces Justice Bonnie Wein, who became a supernumerary judge Nov. 1.
Also joining the Superior Court bench in Ontario is Michael Varpio, a lawyer with the Ministry of the Attorney General in Sault Ste. Marie. An assistant Crown attorney who has also been an adjunct professor of law at Algoma University College since 2010, Varpio replaces Justice Gregory Ellies, who has transferred to North Bay, Ont.
Crown lawyer Hélène Di Salvo of Montreal has been named to the Superior Court of Quebec. A Crown since 1990, Di Salvo replaces Justice Claudette Picard, who became a supernumerary judge Sept. 23.
Finally, the Federal Court has two new judges: Yvan Roy, a federal lawyer who replaces Justice Michel Beaudry, and Cecily Strickland, a lawyer with Stewart McKelvey in St. John’s, N.L., who replaces Justice Michael Kelen. Beaudry became a supernumerary judge Jan. 25 while Kelen resigned from the bench on June 14.
Besides lawyers joining the bench, the government also elevated Ontario Superior Court Justice Peter Lauwers to the Ontario Court of Appeal. He replaces Justice Robert Armstrong, who became a supernumerary judge Sept. 1. Lauwers has been a judge since 2008 following a career in private practice that included a stint at Miller Thomson LLP.
In addition to the federal appointments, two provinces appointed new judges last week. In Manitoba, Margaret Wiebe joins the provincial court of Manitoba. And in Ontario, Matthew Graham will sit in Woodstock, Ont., as a judge of the Ontario Court of Justice.
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Gail J. Cohen