|Tracey Clements has been appointed to be a judge of the Supreme Court of Prince Edward Island.|
Clements received her law degree from the University of New Brunswick and has been with Stewart McKelvey since she started articling there in 1993.
Called to the bar in 1995, she has since developed a general litigation practice, focusing on insurance, labour, employment and human rights law. She became a partner at the firm in 2009.
“I believe that for all of its shortcomings and deficiencies, Canada truly has one of the best, if not the best, judicial systems in the world,” Clements said in her judicial application.
“My “role” or “contribution” to that system has simply been to act as a practicing lawyer — to uphold the values that our system demands.”
Clements has served in a number of leadership roles inside of her firm as well as in a number of organizations. She has sat on a number of different committees at the Law Society of PEI and is the chairwoman of the insurance section of the Canadian Bar Association’s PEI branch.
“I am incredibly proud of our province and our country. I am also incredibly proud of our judicial system — in this province and likewise in this country,” she said in her application.
“But I also think that if we are honest with ourselves, we would acknowledge that increased diversity and increased perspective make for a stronger judicial system and, in turn, a stronger province and country.”
Clements’ appointment is the first of what is hoped will be many coming down the pipeline now that the federal government has reconvened some of the 17 Judicial Advisory Committees that process applications.
The federal government has come under fire to fill judicial appointments as the R. v. Jordan Supreme Court of Canada decision has led to an increasing number of serious charges being stayed because of court delays.
This prompted Attorney General Jody Wilson-Raybould to appoint 39 judges in October before her ministry rolled out changes to the application process to promote a more diverse bench.
The federal government still has more than 60 judicial vacancies to fill nationwide, but more appointments are expected soon now that some of the JACs were reconvened in January.
Wilson-Raybould announced Clements appointment at a hearing of the Senate Standing Committee on Legal and Constitutional Affairs convened to discuss court delays.
She heralded changes to the appointments process as more transparent and said it will lead to a move diverse bench.
“The newly reconstituted Judicial Advisory Committees are unprecedented for their diversity while women make up 70 per cent of all committee members,” she said in her remarks.
“Judicial appointments are clearly being reviewed and appointments will follow imminently.”
Clements will replace Justice Wayne Cheverie, who elected supernumerary status effective last September.
|Justice Robin Camp has resigned as a member of the Federal Court of Canada.|
“I would like to express my sincere apology to everyone who was hurt by my comments during the Wagar trial. I thank everyone who was generous and kind to me and my family in the last 15 months, particularly my legal team. I will not be answering any media inquiries today. If you have questions I ask you to direct them to my lawyer, Frank Addario.”
He signed the statement Robin Camp.
Camp is the judge who asked a sexual assault complainant in a trial why she couldn't "keep her knees together." Transcripts from a 2014 trial showed he called the complainant "the accused" several times and told her "pain and sex sometimes go together."
The CJC recommendation, dated March 8, follows a public inquiry conducted under the Judges Act.
“From the time they are considered for appointment to the Bench, and every day thereafter, superior court judges in Canada are expected to be knowledgeable jurists,” reads the report’s introduction.
“They are also expected to demonstrate a number of personal attributes including knowledge of social issues, an awareness of changes in social values, humility, fairness, empathy, tolerance, consideration and respect for others.”
The council found Camp failed to meet these high standards and “seriously undermined” public confidence in the judiciary.
“We applaud the CJC majority report to the minister that properly confirms that the question here was not whether the judge was apologetic, but rather whether the conduct under review is of such a nature that a reasonable person would lose confidence in the judiciary,” says Kim Stanton, legal director at the Women’s Legal Education and Action Fund, which was an intervener in the case.
“Here, the CJC determined that Justice Camp’s disrespectful treatment of the complainant was so antithetical to the values of the judicial system that his removal was the only manner in which to maintain public confidence in the system.”
Four of the 23 members who deliberated disagreed with the decision. In the reasons for voting against the recommendation for removal the dissenting members argued Camp’s request to appear before the council should have been honoured and that, while his comments do amount to judicial misconduct as the majority found, they wanted a sanction short of removal.
The dissenters noted in their reasons that “the full record of proceedings before the Inquiry Committee quite clearly leads to the inference that the Judge's words reflected an unconscious bias, which is remediable, and do not reflect animus or antipathy toward the complainant, women, or the law. The record demonstrates that the Judge was fully apologetic and apologized promptly, sincerely and appropriately.”
The majority disagreed, however, and in their recommendation said:
In our view, the statements made by Justice Camp during the trial and in his decision, the values implicit in those statements and the way in which he conducted himself are so antithetical to the contemporary values of our judicial system with respect to the manner in which complainants in sexual assault case should be treated that, in our view, confidence in the system cannot be maintained unless the system disassociates itself from the image which the Judge, by his statements and approach, represents in the mind of a reasonable member of the public. In this case, that can only be accomplished by his removal from the system which, if he were not removed, he would continue to represent.
“In this instance, the Judge’s misconduct was evidenced over a continued period during the trial,” the report states.
“Some of the Judge’s most egregious comments were repeated in his reasons for decision, issued much later. The reasonable person’s confidence in the Judge’s ability to discharge the duties of office is seriously undermined.”
The recommendation was reached following the unanimous decision the inquiry committee tasked with reviewing Camp’s conduct arrived at on Nov. 29, as Legal Feeds previously reported.
In the inquiry committee’s report Camp’s misconduct in R. v. Wagar, a 2014 sexual assault case in which Camp acquitted the accused but not before making questionable comments to the 19-year-old complainant.
The committee concluded “that Justice Camp’s conduct in the Wagar Trial was so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the Judge incapable of executing the judicial office. Accordingly, the Inquiry Committee expresses the unanimous view that a recommendation by Council for Justice Camp’s removal is warranted.”
A judge may be removed from office only through a joint resolution of Parliament. Because Camp has resigned, it will no longer have to vote on his removal.
|Justice Frank Newbould|
According to a statement from Newbould’s lawyer Brian Gover of Stockwoods LLP, the Indigenous Bar Association filed a complaint with the CJC related to a proposed land claim settlement that was discussed in 2014 at a public meeting called by the Mayor of Sauble Beach.
The land claim was to part of Sauble Beach. At the meeting, comments about the proposed settlement were requested. Newbould’s family has a cottage in the area and has owned it for nearly 100 years. He spoke briefly at the meeting.
He also wrote a letter to the town council in his “personal capacity” about the issue. Feedback had been invited before the council was to formally consider the proposal.
Newbould was notified by the CJC of seven complaints that followed, questioning whether a judge who owns property that may be affected is entitled to comment on such issues.
The complaints were dismissed by the CJC including one from the Indigenous Bar Association in January 2015 on the basis that “no further measures need to be taken by the Council pursuant to its mandate under the Judges Act.”
“The Chairperson of the CJC’s Judicial Conduct Committee expressly found that it was not in the public interest to request additional information from the complainant, or to seek Justice Newbould’s comments and those of his chief justice. Nor did the Chairperson consider it to be in the public interest to refer the matter to a Review Panel,” according to the statement from Gover.
In June 2015, the IBA requested the CJC reconsider its decision.
“It has been the position of Justice Newbould that after the complaints were dismissed, the CJC has no jurisdiction to reconsider a closed complaint. However, yesterday, February 13, 2017, the CJC notified Justice Newbould of its Review Panel’s view that this power does exist and of its decision to constitute an Inquiry Committee. This was done despite the fact that Justice Newbould had previously notified the Minister of Justice of his retirement, effective June 1 of this year, for unrelated personal reasons.
“The situation raises an issue involving perception,” the statement says. “It is one for which Justice Newbould apologized in 2014 due to the perception caused by the fact he is a judge. Throughout the entirety of his distinguished judicial career, Justice Newbould has carried out his duties effectively and without bias.”
Newbould, team lead of the Commercial Court List in Toronto, is perhaps best known for overseeing the lengthy cross-border Nortel trial.
The decision to go ahead with the inquiry was made by a Judicial Conduct Review Panel of five members, which, in accordance with Council’s 2015 procedures, brought in additional transparency and public participation to the process. The panel was comprised of three members of Council, one puisne judge and one layperson.
Members of the panel reviewed allegations relating to the judge’s participation in the debate on the proposed settlement to a boundary dispute that was the subject of a land claim involving a First Nation in Ontario.
The CJC has confirmed the issue is related to a claim in Sauble Beach involving the Saugeen First Nation.
After review of the matter, the panel agreed that, if proven, the allegations surrounding the intervention of Newbould in the context of a court case could be so serious that they may warrant the judge’s removal from office.
Nuri Frame of Pape Salter Teillet LLP, a firm that represents the Saugeen First Nation, told Legal Feeds his client did not file the complaint against Newbould despite its “deep concern about his conduct” and that his involvement had “impaired its interest and impaired the ability of all parties to arrive at a successful resolution to the issue outside of trial.”
“It is my understanding that Justice Newbould participated in a community meeting in the fall of 2014 and that Justice Newbould subsequently wrote one and perhaps more than one letter to the municipal council up there with respect to Saugeen First Nation claim regarding Sauble Beach, which is obviously a litigation going back to the middle of the nineteenth century with respect to the improper delineation of where Saugeen’s reserve ends and the failure to recognize the entirety of Saugeen’s reserve pursuant to their treaty of 1854,” says Frame.
In its statement, the CJC noted that “it is important to note that all allegations regarding the judge have not been proven. The Inquiry Committee will have the responsibility of establishing the facts about this case and of presenting a report to the Council.”
In accordance with the CJC’s Inquiries and Investigations By-laws, the inquiry committee will be comprised of an uneven number of members, the majority of which will be council members. The Minister of Justice will be invited to designate one or more members of the Bar.
A well-recognized Canadian judge has another accolade on her list of accomplishments — the fact she’s now been named the global jurist of the year by Northwestern University.
|Justice Rosalie Silberman Abella will speak about international law when receiving an award in Chicago later this month.|
Previous recipients include Gloria Patricia Porras Escobar of the Guatemalan Constitutional Court, Justice Shireen Avis Fisher of the Special Court for Sierra Leone, and Acting Chief Justice Dikgang Moseneke of South Africa’s Constitutional Court.
“Justice Abella has long been recognized internationally as one of Canada’s foremost jurists,” said Adam Dodek, a law professor at University of Ottawa. “This award confirms that long and widely-held view.”
The award is on behalf of the Northwestern Pritzker School of Law’s Center for International Human Rights.
“Justice Abella’s extraordinary personal story and her outstanding professional achievements really make her a compelling figure, someone who is well-worthy of this honour and someone who we are very excited to welcome to Northwestern Law School to have the chance for our students and faculty to interact with her, and hear from her,” says Juliet Sorensen, the centre’s Harry R. Horrow Professor of International Law, who was part of the four-person selection committee who chose Abella for the award. Sorenson says Abella was nominated for the honour.
Abella —who graduated from University of Toronto with a bachelor of arts and a law degree — will speak on January 25 at Northwestern about whether international law has kept up with the world.
“Abella is a pioneer in many ways. She is the first Jewish woman and the youngest person ever appointed as a judge in Canada,” said the news release from Northwestern announcing the award. “She also is the first Jewish woman appointed to the country’s Supreme Court.
Born in a displaced persons’ camp in Stuttgart, Germany, in 1946, Justice Abella is the daughter of two Holocaust survivors.”
A biography on the Supreme Court of Canada’s website notes Abella was appointed to the Ontario Family Court in 1976, and the Ontario Court of Appeal in 1992. She joined the Supreme Court in 2004.
“She was the sole Commissioner of the 1984 federal Royal Commission on Equality in Employment, creating the term and concept of ‘employment equity,’” says the biography. “The theories of ‘equality’ and ‘discrimination’ she developed in her Report were adopted by the Supreme Court of Canada in its first decision dealing with equality rights under the Canadian Charter of Rights and Freedoms in 1989.”
Eugene Meehan, a lawyer at Supreme Advocacy in Ottawa, said Abella is well-known for various decisions, including the recent SCC decision in Daniels v. Canada (Indian Affairs and Northern Development), where Meehan said Abella “wrote the unanimous judgment of the Court that government is to constitutionally recognize the rights of Métis and non-status Indians.”
“Justice Abella is now the second most senior judge on the court,” said Meehan. “Though some try to peg her as being of this or that school of thought, on this or that issue, the reality is she’s a chameleon that’s able to muster majorities among different groups of allies – yet still feel strongly enough on issues of importance to her to write the lone wolf dissent.”
A judge in Alberta who was criticized by its Court of Appeal two years ago for interpreting submission as consent in a sexual assault case is retiring in January after 10 years on the bench.
A notice issued by the federal Privy Council office Dec. 9 states that Alberta Court of Queen’s Bench Justice Kirk Sisson has “elected early retirement with an immediate annuity” under the provisions of the federal Judges Act. The resignation takes effect Jan. 3 and the judge will receive an annuity of $142,392 each year for the rest of his life.
Sisson, 65, was eligible to continue sitting as a Court of Queen’s Bench until he is 75. He was a lawyer in Red Deer when he was appointed in the fall of 2006 by then-Prime Minister Stephen Harper. The current salary for federally appointed judges is $308,200.
Sissons could not be reached for comment. The executive legal officer to the chief justice of the Court of Queen’s Bench in Alberta says it is not known why Sisson is stepping down. “The Court is unaware of Mr. Justice Sisson’s reasons for choosing to retire,” says Michelle Somers.
The sexual assault case where the Alberta Court of Appeal quashed an acquittal and substituted a conviction is R v. Adepoju. Since that appellate decision in March 2014, Sisson has been overturned in three other cases.
The appellate court, in a 2-1 decision, overturned an impaired driving causing death conviction earlier this year after finding that Sisson breached a requirement to provide procedural fairness. Last fall, the Court of Appeal concluded that he made a number of legal errors in denying an application for increased spousal support following a material change in circumstances. A first-degree murder conviction in a trial presided over by Sisson, without a jury, was overturned by the Court of Appeal in 2014. The court stated that “it cannot follow the pathway to conviction of the trial judge in this case” and the reasons did not withstand appellate scrutiny.
In the Adepoju trial, the complainant testified that she knew the accused and, while at her home, he began to kiss the woman. She told him that she did not want to engage in any sexual activity. Instead, he continued to use force, grabbed the woman and pulled her pants and underwear off. The court heard that after trying to resist his advances for 15 or 20 minutes, she felt he was not going to take no for an answer so she gave in to “get it over with.” On that basis, Sisson found that the Crown had failed to prove the absence of consent, the Court of Appeal noted in its decision.
Text messages were exhibits at the trial. “I had to force you, you didn’t want it,” was one of the messages sent by the accused.
The Court of Appeal, in overturning Sisson and entering a conviction, cited the Supreme Court of Canada’s decision in 1999 in R v. Ewanchuk, rejecting the concept of “implied consent” as a defence in an assault or sexual assault trial.
“In his analysis, the trial judge considered only the sexual intercourse that took place after these protests. This is an error. Sexual assault is not confined to intercourse,” stated the Court of Appeal panel of Justices Marina Paperny, Peter Martin and Brian O’Ferrall.
“The Criminal Code makes clear that acquiescence or submission is not consent. As stated in Ewanchuk, to be legally effective, consent must be freely given,” the Court of Appeal wrote. “The trial judge erred in defining sexual assault to include only sexual intercourse and in failing to consider all of the previous acts as assaultive and sexual in nature,” the court added.
The decision of the Court of Appeal received some local media coverage in 2014 when it was issued. It was highlighted again in an article in September of this year in The Globe and Mail. That article was about the Canadian Judicial Council hearing into the conduct of Federal Court of Canada Justice Robin Camp, as well as reviews ordered of two provincial court judges in Alberta as a result of findings in sexual assault cases. A Canadian Judicial Council panel concluded last month that Camp was unfit to serve on the bench as a result of his conduct and comments in a sexual assault trial in 2014 when he was a provincial court judge in Alberta.
In a decision released yesterday, the Ontario Court of Appeal has overturned a conviction based on a juror’s conduct, which was ruled to have created a reasonable apprehension of bias.
Derek Welsman, jury foreman in R. v. Dowholis and producer of the since cancelled Dean Blundell show, appeared on the radio show and “made derogatory comments about sexual activity between men,” the decision reads.
|Mark Halfyard says he wouldn’t be surprised if the case goes further because 'there’s such a disagreement between the majority and the dissent.'|
“It is unusual just because factually you don’t often have a situation where the comments made by a juror are essentially on the record and can be used as evidence in court to suggest they at least displayed the apprehension of bias,” says Mark Halfyard, criminal lawyer at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP.
“It’s just a matter of happenstance because he just happened to be affiliated with this radio show and, therefore, word of the communications got back to the lawyers and they were able to file that material as fresh evidence on the appeal.”
Joshua Dowholis, an HIV-positive man convicted of sexual assault in 2014, will get a new trial due to Welsman’s conduct.
“I have concluded that the conduct of the juror created a reasonable apprehension of bias such that a new trial should be ordered,” said the judgment.
Jill Presser, principal at Presser Barristers and counsel for Dowholis, said in a press release that “the court is saying that homophobia is just as unacceptable as racism in the justice system and that’s a huge step forward. The court has elevated homophobia to the no-no list in the justice system and that is really significant.”
In the two-to-one decision, dissenting Justice David Doherty argued that the radio show was known to make fun of everything and aimed to be provocative, so comments made in that context can’t be seen as a reflection of the juror’s true beliefs. Although he noted that the remarks were “inappropriate and potentially hurtful,” he goes on to write that “sometimes a joke, even a joke that is offensive, is nothing more than a joke.
“The distinction between comments that are only intended to entertain and comments that provide real insight into the speaker’s beliefs can be difficult to discern,” wrote Doherty.
“I feel my position will be misunderstood, that I do not mean to assert that humour predicated on stereotyping or ridiculing identifiable groups is harmless or acceptable,” he wrote, but that is not the concern of the appeal court. A conviction cannot be quashed based on finding a juror offensive, he wrote. That can only happen when the court is “satisfied that the comments demonstrate a reasonable apprehension of bias giving rise to a miscarriage of justice,” a hurdle he did not feel the juror’s comments cleared.
Halfyard calls the disparity a difference of opinion between the judges when it comes to the type of venue in which the comments were made.
“When you’re assessing apprehension of bias, you have to look at the context under which the comments are made,” he says. “If they’re said in a hateful way where you’d actually expect the person to express bias as opposed to jest — I think there’s a real grey area there.”
Doherty did agree that a new trial was needed but on the basis of error in instructions to the jury by the trial judge.
In a detailed decision, Justice Mary Lou Benotto disagreed with Doherty and found that “the reasonable observer would expect that a person who comes before the courts would be treated with dignity and respect and not be publicly ridiculed by the person judging him. I conclude that a reasonable person, knowing all the facts, would apprehend that consciously or unconsciously it was more likely than not that this juror would not decide fairly.”
Benotto writes that Doherty’s reference to racial bias in another court of appeal case, R. v. Parks, at para. 59 applies equally to bias against homosexuals.
“The likelihood that a bias against gay men would affect the juror’s decision-making process is greater given his willingness to publicly disregard instructions, engage in homophobic rhetoric, and mock the court process,” she writes in the majority decision. “The issue is not whether the juror meant what he said. Nor is it whether he was in fact unfair. The issue is the impression that his conduct created.”
In the release, Presser agreed the focus shouldn't be on “whether this particular juror actually was homophobic or what the entertainment value is for the radio broadcast" but on upholding the integrity of and appearance of fairness in the justice system.
Halfyard says he wouldn’t be surprised if the case goes further because “there’s such a disagreement between the majority and the dissent.”
In response to Justice Canada’s request for input on how federally appointed judges should be disciplined — and how their legal fees should be paid — the Canadian Judicial Council released a position paper on Wednesday outlining its recommendations for reform under the Judges Act.
|Torys LLP lawyer Molly Reynolds says in the Lori Douglas proceeding that particular inquiry committee felt this [process] was entirely inquisitorial, not adversarial. Now, to see the CJC presenting the process as adversarial is surprising.|
The CJC’s three key recommendations are:
• to formalize Council’s authority to impose sanctions and remedial measures against a judge;
• that the lawyer appointed under the authority of the designated member of the Judicial Conduct Committee to lead the process be tasked with presenting all the evidence against the judge rather than deciding how to proceed in the “public interest”;
• to minimize expensive and cumbersome requests for judicial review, that the decision of a Judicial Discipline Committee be final, subject only to a right of appeal to an Appeal Tribunal of Council, after the process is concluded.
“There were a number of important points we wanted to make for the Justice minister,” says Johanna Laporte, director of communications and registry services for the CJC. “The key one is in the area of sanctions, and penalties . . . Some conduct matters might not be so serious as to require outright removal, but might warrant a letter of concern, remedial training or maybe even a suspension.”
The second recommendation is the move toward an adversarial rather than inquisitorial disciplinary process, Laporte says. A judge who is undergoing a disciplinary process has a lawyer who is defending her or him, and “to balance it out, Council would have a lawyer to present the case against the judge. Previously the Council had a lawyer presenting the public interest. Now, it’s clear: you’ve got a lawyer for the judge, and a lawyer against the judge who are [now] on an even playing field.”
The third key recommendation is “one we feel will appeal to most Canadians because of the money and time spent arguing” a disciplinary case, Laporte notes, which is that the decision of the Judicial Discipline Committee be final, subject only to a right of appeal. Judges would have an opportunity to make an appeal to the CJC Appeal Tribunal, and “after that process is exhausted, there would also be the opportunity for the judge to go to the Supreme Court, with leave.”
Alison Gray, of Bennett Jones LLP in Calgary, was a co-counsel for the Women’s Legal, Education and Action Fund when it intervened before the CJC in the disciplinary procedure against Federal Court Justice Robin Camp, who made insensitive comments about a sexual assault victim in 2014 when he was a provincial court judge in Alberta (he has since apologized for his remarks). The CJC’s proposal for reform “really addresses the concern regarding the remedies available to [the Council],” says Gray, in expanding the options from recommending removal only.
“They’re hamstrung [currently] in making other [remedial] recommendations,” such as for education, she notes; and the public is left with the impression that judges are “untouchable” in that they can only be removed but not disciplined or educated otherwise.
“So, to increase the CJC’s ability to provide sanctions is positive. . . . I think we need more consideration of the processes set out in the three levels [of judicial disciplinary process], to protect judges but also to let the public have some insight into judicial complaints, so that it continues to be open and transparent. But I think at least we’re going in the right direction.”
Molly Reynolds, of Torys LLP in Toronto, was a counsel for former Manitoba associate chief justice Lori Douglas in her disciplinary process before the CJC between 2010 and 2014.
It can be easy to forget that it is a “human process” that judges go through before the Judicial Inquiry Committee, Reynolds says; in the Douglas proceeding, “that particular inquiry committee felt this [process] was entirely inquisitorial, not adversarial. Now, to see the CJC presenting the process as adversarial,” in which the CJC’s independent counsel is tasked with presenting evidence against the judge rather than proceeding simply in the public interest, “is surprising. Clarity one way or another would be useful.”
Reynolds also expressed concern over the lack of specificity in grounds for removal in the Judges Act, which provides that a judge may be deemed unfit to remain in office “by his or her conduct or otherwise.”
“Those grounds for removal were at issue in the Douglas case,” says Reynolds. The imprecise wording of “or otherwise” takes away from the sound, correct purpose of the Act, she suggests; “we should be looking at whether a judge has displayed good behaviour. . . . It’s important to examine what the scope of possible grounds for removal means, and what they can include.”
A B.C. Supreme Court judge has ordered the provincial government to scrap its three-year pay hike program for B.C. provincial court judges.
In the latest in a series of legal disputes over salaries, the court was asked to assess the remuneration and associated benefits for judges of the Provincial Court of British Columbia for the third time in four years.
In Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), the government proposed raises of 1 per cent, 1 per cent and then 1.5 per cent over the three-year period of 2014-17, which was less than what the Judicial Compensation Commission, an independent body that oversees judges’ remuneration, had recommended. The JCC proposed raises of 2.9 per cent, 1.5 per cent and 2 per cent over the same three years.
In his ruling, Justice Christopher Grauer said the government’s counter-proposed, lower increases “failed to meet the test of rationality in concluding that the JCC’s recommendations were unfair and unreasonable.”
Grauer did not, however, go so far as to accept the association’s request he implement the JCC’s proposed rates.
“It is not for me to set salaries. It is not for me to assess competing priorities for public funds. That . . . is the government’s responsibility, for which it is answerable to the electorate,” he said, adding, “the process is key.”
Under the Judicial Compensation Act, the JCC is tasked with reviewing provincial court judges’ salaries every three years.
As Legal Feeds reported in March 2015, the recommendations from the 2010 JCC report were implemented after the B.C. Court of Appeal ruled that provincial court judges are entitled to raises based on the consumer price index. In the fall of 2015, the dispute was settled for good after the Supreme Court of Canada refused to hear the provincial government’s case for overturning the appeal court ruling.
At that time, the current disagreements over the JCC’s more recent recommendations for 2013 increases had already begun.
The Law Society of British Columbia has submitted a report to federal Justice Minister Jody Wilson-Raybould outlining a series of recommended principles for the appointment of justices to the Supreme Court of Canada.
|Law Society of B.C. bencher Craig Ferris says there should be greater transparency into how SCC judges are appointed.|
The report entitled “Principles for the Appointment of Justices to the Supreme Court of Canada” was released yesterday and written by a subcommittee of the Rule of Law and Lawyer Independence Advisory Committee including Craig Ferris, a partner at Lawson Lundell LLP, Jeff Campbell, a partner at Peck and Company, and Jon Festinger of Festinger Law & Strategy LLP.
The report was approved by benchers at their July 8 meeting and sets out four principles the law society views as essential to the process of appointing justices to the Supreme Court: transparency; judicial independence; merit and diversity; and public participation.
“When you look at the issues that really affect the everyday life of Canadians, such as right to die, and the people making those decisions, we really should have some transparency into how they came to be in that position to make those decisions for us,” says LSBC bencher Ferris, who chaired the committee.
In the past, under former Liberal minister of justice and attorney general Irwin Cotler, there was an appointment process that involved a parliamentary hearing and nominees appeared in person at the hearing, says Ferris. But the hearing process was abandoned for the two most recent appointments to the SCC.
Cotler himself has also recently called for changes to the selection process.
Under the principle of merit and diversity, the report appears to try and get at past criticisms that appointments were politically motivated.
“The primary criterion for appointments to the Court should be merit. In order to maintain confidence in the institution of the Court, the appointment process should avoid any appearance of partiality or partisanship. Politicizing the appointment process threatens the legitimacy of the Court and the principle of judicial independence.”
Ferris says there should be a greater examination of the process to establish some precedent so governments can be held accountable to following a set process.
In March, it was announced that Justice Thomas Cromwell will resign from the Supreme Court of Canada effective Sept. 1. The current government has stated its intention to review and renew the process for judicial appointments to the courts.
In the past, the Federation of Law Societies has provided input on the issue. In 2004, the Federation sent a submission to the federal government recommending principles for the appointment process. In 2008, the Federation wrote to the minister of justice with recommendations.
“That’s one of the reasons we decided to take up the torch about the issue again,” says Ferris. “We thought the Cromwell resignation meant that this was going to move rather quickly and we thought if we want to get into the discussion and be part of the debate we need to act quicker rather than later as opposed to force it on to the federation’s agenda, which can take some time.”
In a statement, the BCLC stated: “The Supreme Court of Canada is a vital component of Canada’s constitutional democracy. It plays a key role in maintaining the rule of law and is a cornerstone of the legal fabric of Canada. Accordingly, the process by which Supreme Court Justices are appointed directly impacts the public interest.”
The current process by which candidates are evaluated and selected is largely unknown. For a number of recent appointments to the court, the appointment process changed from one appointment to the next.
The law society’s position is that incorporating the four principles identified will enhance public confidence in the court.
“I do think there is an opportunity with the new federal government — they’ve talked about reviewing the process of appointing judges generally and that should include the Supreme Court of Canada judges, and I’m hoping that this acts to spur on that debate and we get to be part of that discussion,” says Ferris.
New judicial appointments will mean fresh faces on the bench in Quebec, Alberta, British Columbia, and Ontario, as well as on the Federal Court of Appeal.
|Freya Kristjanson will join the Ontario Superior Court of Justice in Toronto as a judge.|
On Friday, the Trudeau government announced its first judicial appointments since taking office last fall. There are 15 appointments, including six in Alberta, five in Ontario, two in British Columbia, one in Quebec, and one in the Federal Court of Appeal. Of the 15, 10 are women and five are men.
In Alberta, Sheilah L. Martin — formerly a judge with the Alberta Court of the Queen’s Bench in Calgary — has been elevated to Alberta Court of Appeal in Calgary. She replaces Justice C. O’Brien, who retired in 2014.
Martin, who holds degrees from McGill University and the University of Alberta and a doctorate from the University of Toronto, has been on the bench since 2005. She spent 16 years as a professor and dean of the faculty of law at the University of Calgary and has spent four years with Code Hunter LLP in Calgary, from 2001 to 2005, and three with Evans Martin and Wilson (formerly known as Wolch Wilson and Dewitt), from 1996 to 1999.
Martin made headlines recently for her decision to grant approval to an ALS survivor for physician-assisted suicide, while the government was still working on its new law in the area.
Shelia J. Greckol has been elevated to the Alberta Court of Appeal in Edmonton from the Court of Queen’s Bench. She fills the spot vacated by Justice Russell S. Brown, who was appointed to the Supreme Court in 2015. Greckol will also be serving as a judge of the Court of Appeal for the Northwest Territories and the Court of Appeal of Nunavut.
Greckol, who was called to the bar of Alberta in 1976, has served on the Court of Queen’s Bench since 2001. Before that, she was a partner with Chivers Greckol & Kanee from 1986 to 2001, and an associate and a partner with Wright Chivers & Co.
Filling Greckol’s spot at the Court of Queen’s Bench in Edmonton is John T. Henderson. Henderson was called to the Alberta bar in 1980, and then spent 19 years with Fraser Milner Casgrain LLP (now Dentons Canada LLP). Since 2009, he has been a judge with the Provincial Court in Edmonton.
Douglas R. Mah, who was secretary and general counsel with the Alberta Workers’ Compensation Board in Edmonton, has been appointed to the Court of Queen’s Bench. The spot has belonged to Justice D.R. Thomas, who elected supernumerary status in 2015.
Since 1988, Mah has been counsel with Worker’s Compensation, and before that was an associate with Milner & Steer in Edmonton. He was called to the bar in 1982.
Another new face at the Court of Queen’s Bench in Calgary is Gillian D. Marriott. Marriott is the former executive director of Pro Bono Law Alberta, from 2009 to 2013, and has been counsel with Widdowson Kachur Ostwald Menzies LLP in Calgary since 2013. Marriott replaces Justice Martin, who was elevated to the Alberta Court of Appeal.
She also is a former associate, then partner, with Dunphy Best Blocksom LLP. She also has experience with the Alberta Law Reform Institute and the Health Law Institute
Rounding out the Alberta appointments is Avril B. Inglis, a prosecutor with Alberta Justice in Edmonton, who will be joining the Court of Queen’s Bench in Edmonton.
Inglis was called to the bar in Manitoba in 2000 and in Alberta in 2003. She was a Crown prosecutor in both provinces from 2000 to 2014. In 2014, she became project counsel with Alberta Justice and Solicitor General, in Edmonton. Inglis replaces Justice F.L. Schutz, who was also elevated to the Alberta Court of Appeal.
New appointments in Ontario will mean new faces in Ottawa, London, Toronto, Oshawa, and Brampton.
In London, Justice Jonathon C. George has been elevated from the Ontario Court of Justice and will join the Superior Court bench. George was admitted to the bar in 2001, and is a graduate of the University of Western Ontario. George replaces Justice B.M. Miller, who has been with the Ontario Court of Appeal since 2015.
Since 2012, George was a provincial court judge in London and previously served as the legal counsel for the Kettle & Stony Point Chief and council, in Kettle Point First Nation, as well as being an associate with Robbins Henderson & Davis in Sarnia.
Longtime Superior Court Master Calum U. MacLeod now joins the Superior Court bench in Ottawa. MacLeod is a graduate of Queen’s University, and has been a case management master since 1998. He was also previously an associate with Zwicker Evans & Lewis, in Barrie, Ont., and a mediator and arbitrator with MacLeod Dispute Resolution in Barrie, among other experience. He was admitted to the Bar of Ontario in 1983.
MacLeod replaces Justice H. Levenson Polowin, who died in May.
In Toronto, Freya Kristjanson is also joining the Ontario Superior Court of Justice. Kristjanson has been a partner with Wardle Daley Bernstein Bieber LPP since 2015 and a partner with Cavaluzzo Shilton McIntyre & Cornish LLP in Toronto from 2009 to 2014. She also has experience as counsel and then partner with Borden Ladner Gervais LLP in Toronto from 1989 to 2008. She was admitted to the Ontario bar in 1989.
Kristjanson will replace Justice G. Mew, who is now in Kingston, after being transferred there to replace Justice Scott in 2015.
Toronto lawyer Sharon Lavine will be joining the Ontario Superior Court of Justice in Oshawa, to fill the role vacated after Justice M.L. Lack elected supernumerary status earlier this year.
Lavine has served as the alternate chair of the Ontario Review Board since 2004, as well as an associate and then partner with Greenspan Humphrey Lavine in Toronto since 1993, when she was admitted to the bar in Ontario.
Lastly for Ontario, Lucy K. McSweeney will be joining the Ontario Superior Court in Brampton.
Since 2010, McSweeney served as the Children’s Lawyer for Ontario, with the Ministry of the Attorney General. Her prior experience was as litigation counsel with the Ministry of the Attorney General, including as deputy legal director of the strategic planning unit and of the Crown Law Office – Civil. McSweeney replaces Justice D.L. Edwards, who was transferred in March.
On the West Coast, Margeurite H. Church has been elevated to the Supreme Court of British Columbia in Prince George. Church has been a judge of the Provincial Court of British Columbia in Williams Lake since 2011.
She has prior experience with Cundari Seibel LLP in Kamloops and Rogers & Hyslop in Kamloops. She also was a senior research associate with Department of Asian Legal Studies at the University of British Columbia and an associate with Rudd Watts & Stone in Auckland. She is called to the bar in both British Columbia and New Zealand. Church is taking the spot formerly filled by Justice J.W. Williams, who was transferred to Vancouver in 2014.
Maria Morellato, a partner with Mandell Pinder LLP in Vancouver, joins the Supreme Court of B.C. in Vancouver.
Morellato has been with Mandell Pinder since 2009, and was an associate and partner with Blake Cassels and Graydon LLP from 1989 to 2008. She also has experience with the Industrail Relations Council and as an associate with Alexander Holburn Beaudin & Lang. Justice L.A. Fenton — who previously had the spot — was elevated to the Court of Appeal in 2015.
In Quebec, Éric Downs, who was a judge with the Court of Québec in Montréal, will now be serving on the Superior Court of Québec in Montréal. Downs has been on the bench since 2012. His predecessor in the position — Justice M. Delorme — resigned in 2015.
Downs was previously a partner with Downs Lepage from 2008 to 2012. From 1991 to 2008, he was counsel and then partner with Hebert Bourque et Downs, and a prosecutor with Justice Quebec for four years, from 1987 to 1991.
Judith M. Woods, a judge with the Tax Court of Canada, has been elevated to the Federal Court of Appeal. Woods has been with the Tax Court since 2003. Justice C.M. Ryer had resigned in May from the court.
She was previously a partner with McCarthy Tétrault LLP from 1978 to 2003. She also served as a lawyer with Dow Chemical Canada, and was admitted to the bar in 1976.
The appointments are all effective immediately.
The federal government had come under fire in recent months for judicial vacancies that critics said were clogging the courts.
“We know that our country is stronger, and our judicial system more effective, when our judges reflect Canada’s diversity. As promised, we have filled the urgent judicial vacancies by drawing on a list of recommended candidates who are of the highest caliber and who are as diverse as Canada,” said Jody Wilson-Raybould, federal Justice Minister and Attorney General of Canada.
In a statement, Canadian Bar Association president Janet Fuhrer said, “We are delighted that the government has started to fill the vacancies on the courts. The unfilled vacancies have created some delays and other problems for Canadians seeking justice.
“While we all wish for vacancies to be filled expeditiously, we understand that revamping the process will take time and appreciate the Government’s efforts to do things right. We are in communication with government officials and the Minister’s office and fully expect an ongoing dialogue on how best to fill vacancies and appoint a judiciary that is reflective of Canadian society.”
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