Legal Feeds Blog
Ottawa has allocated $4.4 million over two years to fund six extra federally-appointed judges, in Quebec and Alberta.
But this is too little to prevent acute delays in the Alberta justice system and does nothing to help Ontario’s clogged courts, according to sources.
Yesterday’s federal budget says: “In recognition of an increased workload, Economic Action Plan 2014 proposes to create two new positions on the Alberta Court of Queen’s Bench and four new positions on the Quebec Superior Court.
“Increases in the number of complicated, high-profile criminal and civil cases have caused significant delays in conducting hearings, at times up to 18 months, at the Superior Court level in these provinces.”
The six judicial posts will “reduce these delays to ensure that cases are heard in a timely manner and that serious charges are not being dropped because of hearing delays,” the document says.
But an informed Alberta source says the announcement is too little, too late. Speaking anonymously, the source said: “It in no way even addresses — nor will we be able to provide — the services that public needs. Delay and its consequences will become epidemic.”
Alberta’s Court of Queen’s Bench asked for an additional four judges in 2008, but due to the province’s population increase, now estimates another 14 are needed,
Legal Feeds understands the court has submitted a series of formal business cases to ministers setting out the need for more judges — specifically a supplementary note in June 2012 and, most recently, a letter in late January 2014.
These have highlighted Alberta’s low ratio of superior court level judges, relative to its population, compared with other provinces.
Legal Feeds has analyzed latest figures published by Statistics Canada and the Office of the Commissioner for Judicial Affairs Canada, to see how the provinces compare (see chart above).
Taking into account the proposed appointments, Ontario actually has the lowest number of full time superior court judges for its population, followed by Alberta, then Quebec.
This is also true when supernumerary judges are taken into account.
Criminal lawyer Norman Boxall, a partner at Bayne Sellar Boxall, would welcome more judges for Ontario’s Superior Court.
“The Superior Court in Ontario is very busy and we are seeing increasing delays here in Ottawa,” he says. “An increased complement and prompt refilling of positions that become vacant could only help.”
However, this is only part of the solution, says Jody Berkes, lawyer at Toronto-based criminal law firm Berkes Newton-Smith.
“Certainly having more judges will increase the number of cases that the system can handle,” he says, adding: “However, simply appointing more judges is only half the equation.
“To truly increase access to justice, one must also fund legal aid to ensure that the litigants who appear before these judges can be represented by lawyers.”
The federal and provincial governments need to act together on this, he feels.
In an e-mailed statement, a spokeswoman for Justice Minister Peter MacKay said: “Our government is providing significant resources to respond to increased caseloads in the provinces of Alberta and Quebec.”
The government made more than 600 judicial appointments since 2006, including more than 50 since last summer, she said.
“We will continue working with our provincial counterparts to ensure they have the resources they need to administer the justice system more efficiently and effectively,” she added.
The spokeswoman also highlighted a tweet sent yesterday by Alberta’s Attorney General Jonathan Denis, which said: “Very happy to see two new judges for Alberta in (the Finance Minister’s) budget. Great news for a growing province!”
She did not mention Denis’ tweet sent earlier that day, which said: “Fingers crossed for 4 new Queen’s Bench judicial positions for Alberta in the federal budget today.”
Jan. 13 — Quebec — Dionne v. Commission scolaire des Patriotes
Labour law: Marilyne Dionne was a casual substitute teacher working for the respondent school board. Dionne was informed by the Commission de la santé et de la sécurité du travail that she qualified for a maternity program. The school board challenged this decision before the Commission des lésions professionnelles, which found Dionne was not an employee, and her contracts lasted only as long as the assignments. The Supreme Court will review whether the Quebec Court of Appeal erred in upholding the CLP’s decision, and whether Dionne was a victim of discrimination.
Read the Quebec Court of Appeal’s decision
Jan. 14 — Federal Court — Canadian National Railway Co. v. Attorney General of Canada
Transportation law: A confidential contract between CN Rail and Peace River Coal stated that freight rates would be subject to a particular fuel charge. When CN began implementing a new surcharge, Peace River Coal applied to the Canadian Transportation Agency for an order establishing reasonable surcharges under the Canada Transportation Act. CN won a dismissal in the Federal Court on grounds the act had no jurisdiction over confidential contracts. The Federal Court of Appeal overturned that decision. There is a sealing order in this case.
Read the Federal Court of Appeal’s decision
Related news articles:
Shippers have right to dispute tariffs and penalties, Canadian Manufacturing
Jan. 15 — Canada — Nadon reference
The prime minister has referred several questions to the SCC regarding the Supreme Court appointment of Federal Court of Appeal Justice Marc Nadon. Constitutional lawyer Rocco Galati is challenging the appointment based on a strict interpretation of the Supreme Court Act, which does not specifically allow for Supreme Court appointments from the Federal Court. The Parti Quebecois also opposes Nadon as a Quebec representative appointment because he has not lived in the province for years.
Read Rocco Galati’s notice of application (via Legal Feeds)
Related news articles:
The Nadon hearings: 10 key issues in the Supreme Court showdown, The Globe & Mail
Jan. 16 — Ontario — W.E.B. v. R.
Criminal law: The appellant, a convicted sex offender, alleges his trial counsel was incompetent. He argues counsel misrepresented her professional experience in defending such cases, and — despite his instructions — she failed to subpoena witnesses, enter specific material into evidence, and ask specific questions of Crown witnesses. He also argues his counsel refused to permit him to testify. The Ontario Court of Appeal dismissed the applicant’s appeal. The Supreme Court will review whether there was a miscarriage of justice. A publication ban is in place.
Read the Ontario Court of Appeal’s decision
Jan. 17 — Alberta — Davis v. R.
Charter of Rights and Freedoms: Percy Walter Davis was convicted of possessing a weapon for a dangerous purpose and assaulting a police officer. During the incident, Davis charged the officer with a butcher’s knife before walking towards a shopping mall. The officer ordered Davis to drop the knife. Davis failed to comply, and the officer shot him twice. In a majority decision, the Alberta Court of Appeal ruled that, while the trial judge erred in considerations regarding excessive force, the case did not turn on these.
Read the Alberta Court of Appeal’s decision
Related news articles:
Man who attacked officer escapes jail, Edmonton Journal
Jan. 17 — British Columbia — James v. Canada
Criminal law: Garry Howard James was acquitted of sexual assault. He and the complainant had consumed alcohol and smoked crack cocaine and were significantly intoxicated. Bruises were found on the thighs, arms, and legs of the complainant, but neither James nor the complainant remember the incident. James told police at the time the complainant had consented to sex. The B.C. Court of Appeal allowed the Crown’s appeal and ordered a new trial.
Read the British Columbia Court of Appeal’s decision
For more on the SCC’s winter session read Richard Cleroux’s The Hill column from this week’s Law Times: "SCC tasked with cleaning Harper’s messes in busy winter session."
Thanks to Professor Annalise Acorn of the University of Alberta, and Malcolm Mercer of McCarthy Tétrault LLP, for their assistance in compiling this list.
1. Conflicts of interest: the Supreme Court speaks
On July 5, 2013 the Supreme Court issued its judgment in Canadian National Railway v. McKercher LLP, in which it affirmed the “bright line rule” that “a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client – even if the two mandates are unrelated.” It also limited the rule so it only applies where the new representation is directly adverse to the immediate legal interests of the client and where it would not be “unreasonable for a client to expect that its law firm will not act against it in unrelated matters.” While the judgment has been subject to some criticism. it has also been acknowledged to be a significant step forward in clarifying the obligations of lawyers in relation to their current clients.
Other notable 2013 Supreme Court judgments that address lawyers’ ethics include Ontario v. Ontario Criminal Lawyers’ Association of Ontario which limited the role and compensation of amicus curiae appointed by the court and Wood v. Schaeffer, which indirectly considered the role of the lawyer in advising clients.
2. Regulatory innovation and change by the law societies
Canada’s law societies are on the move. Benchers of the Law Society of British Columbia have approved a merger with the Society of Notaries Public of B.C., to create a program for the creation of “certified paralegals” and, as well, to develop a regulatory framework to credential and regulate other legal service providers. The Nova Scotia Barristers’ Society is actively considering regulatory reforms, including a move to outcomes/risk-based regulation. The Law Society of Upper Canada appointed David Wright as its first tribunal chairman who, with two vice-chairpersons, will be actively involved in adjudicating disciplinary proceedings. This change was first approved in June 2012, but the appointment of Wright, a former chairman of the Human Rights Tribunal of Ontario, demonstrates the LSUC’s commitment to this new approach.
These developments reflect a remarkable shift in Canada’s regulatory landscape. While Canada’s legal profession remains self-regulating, and not all law societies have embarked on these sorts of developments, the changes show a sophistication and engagement on the part of regulators that is to be commended.
3. Integrated practice curriculum as a pathway to licensing
On Nov. 21, the LSUC approved law practice programs offered by Ryerson University (English) and the University of Ottawa (French) as alternatives to articling. It also approved Lakehead University’s integrated practice curriculum, in which students take approximately 10-20 extra credit hours across the course of their law degree, and complete practical and experiential education, as a replacement to articling after graduation. While the Lakehead program in and of itself does not reflect an enormous change in the credentialing of Canadian lawyers, if it is expanded to other law schools and jurisdictions, it could transform Canada into a more experience based version of American legal education. Except for the bar examinations, the totality of the preparation of legal education will be governed by the law schools. The significance of that sort of change is considerable.
4. Resignation of the inquiry committee of the CJC concerning Justice Lori Douglas
The Lori Douglas proceedings are not new, nor are extensive criticisms of their legitimacy and fairness. But the decision of the inquiry committee to resign en masse has reinforced the perception the proceedings have gone badly awry, and are undermining public confidence in the fair and effective regulation of the ethics of the judiciary.
5. Proposed TWU law school
In December, the Federation of Law Societies approved Trinity Western University’s proposed school of law program. The Federation did so despite some “concerns.” It nonetheless concluded the concerns could be addressed through the provision of “additional materials in future annual reports, including more detailed course outlines demonstrating exactly how the competencies will be met.” The federation’s approval of Trinity Western’s program is not the final word on this issue. Law societies that have not delegated their power to approve law degrees to the FLSC must determine for themselves whether the school’s program satisfies the credentialing requirements which they are empowered to impose by virtue of their constituting legislation, taking into account the distinct human rights laws that govern in each province. Clayton Ruby has indicated he will be seeking judicial review of the Federation’s decision. Opposition to the Trinity Western program remains significant. Regardless of how these events unfold, however, the federation’s decision is a significant first step towards the approval of a Canadian law school teaching through a religious perspective.
6. LSUC dismissal of disciplinary proceedings against Beth DeMerchant and Darren Sukonick.
The reasons issued by the LSUC for finding Beth DeMerchant and Darren Sukonick had not been in a conflict of interest when representing Hollinger International Inc. and Conrad Black during the sale of Hollinger’s newspaper businesses to CanWest, are not especially interesting as a matter of doctrinal law (the DeMerchant decision is here). Of greater interest is the arguably questionable decision by the law society to pursue the charges as long as it did and the question of whether the case indicates the problems law societies have in relation to the direct regulation of lawyers at large law firms. The decision may not legitimately have significance in the latter respect – if the charges were baseless then they ought not to have succeeded, regardless of the nature of the practice of the lawyer against whom they were made. But it may nonetheless reinforce the perception that lawyers at large law firms can resist professional discipline with an effectiveness that lawyers at smaller firms cannot.
7. LSUC appeals decision on Joe Groia and incivility
In lengthy reasons, the Law Society of Upper Canada appeal panel halved the sanction imposed on Joe Groia, eliminated the costs award against him (with a new costs award to be determined through a subsequent proceeding), and reversed many of the legal determinations made in the original panel. In particular, it rejected the position that a lawyer would be committing an abuse of process to the extent he sought to litigate the legitimacy of his conduct in the face of judicial criticism of that conduct in prior proceedings to which he was not a party and which involved different legal issues. The panel also narrowed the definition of incivility and emphasized that “the word ‘civility’ should not be used to discourage fearless advocacy manifested by passionate, brave and bold language.”
8. Litigation re the conduct of the minister of Justice and the deputy minister of Justice
Edgar Schmidt’s litigation was commenced at the end of 2012 but remains significant importance with respect to the question of the ethical duties of lawyers when advising clients. Schmidt alleges the minister of Justice and the deputy minister failed to satisfy their statutory obligations to examine proposed legislation to determine if it is “inconsistent with the purposes and provisions” of the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms, and to advise the House of Commons if it is so. Schmidt alleges the Department’s policy was only to direct the Minister to advise the House on the sufficiency of legislation where it had a less-than-five-per-cent chance of surviving a court challenge.
9. PMO and the Mike Duffy affair
The precise nature and legality of the conduct of Nigel Wright and Ben Perrin, lawyers working at the Prime Minister’s Office and dealing with the problem of Senator Mike Duffy and his expenses, remains unclear. However, the case does suggest the ethical challenges and risks for lawyers working in political settings, in which the legal and ethical implications of decisions can be obscured. This issue has been considered in the United States since Watergate, but this case may be the first time it has been publicly observable here.
10. The CBA Futures Initiative
The CBA Futures Initiative is addressing issues related to the ethics and regulation of the legal profession, education and training of lawyers, and innovation in business structures. While the insights and innovations of the process are uncertain at this time, the CBA seems committed to considering matters of regulatory innovation and change, particularly in relation to the adoption of alternative business structures. If the CBA can identify a path to ABS, this will significantly progress the regulatory innovation and change identified in No. 3, and will help Canada move towards keeping pace with regulatory developments in other jurisdictions such as Australia and England.
I would like to add Rob Ford, since it seems that no Canadian top ten list could be complete without him. But try as I might I could not see the legal ethics angle to his story.
This is an edited version of University of Calgary law professor Alice Woolley’s top 10 legal ethics post from Ablawg. Click here to read the full version.
|Vancouver’s George Macintosh has been appointed to the Supreme Court of B.C.|
On Dec. 18, Jamie K. Trimble, a lawyer with the firm Hughes Amys LLP in Hamilton, Ont. was appointed to the Superior Court bench in Milton to replace Justice C.W. Hourigan, who has been appointed to the Court of Appeal for Ontario.
Stephen T. Bale, a sole practitioner in Cobourg, Ont. is appointed to sit in Oshawa to replace Justice J. B. Shaughnessy, who goes supernumeray in January. Bale practised with various law firms in Toronto and with Stewart, Mitchell and Macklin in Cobourg from 1989 to 2001. He has been a sole practitioner ever since. His main area of practice was general litigation, including estates litigation, construction law, and corporate and commercial litigation. He was appointed a deputy judge of the Small Claims Court in 2007.
A number of other Ontario judicial annoucements were also made Dec. 18. Justice Geoffrey B. Morawetz was appointed regional senior judge of the Toronto Region to replace Justice Edward F. Then, who resigned from the position in November. Sudbury Justice Robbie D. Gordon, will become regional senior judge of the Northeast Region on Jan. 22, 2014, taking over from Justice Louise L. Gauthier, who will be giving up the position. Both Then and Gauthier will return to regular judicial duties.
Superior Court Justice George Czutrin has been appointed senior family judge of the Family Court to replace Justice R. John Harper, who resigned the position in November. Harper will move to Brantford to replace Justice H. Arrell, who has been transferred to Hamilton to replace Justice A. Whitten, who elected to become a supernumerary judge.
Jerome Tholl, counsel with the Saskatchewan Ministry of Justice and attorney general in Regina, was last Wednesday appointed to the Court of Queen’s Bench of Saskatchewan, family division. Admitted to the Saskatchewan bar in 2001, Tholl’s main areas of practice were criminal law, civil litigation, family law, and mediation.
In Quebec, four judicial appointments were announced last Wednesday. They included Superior Court of Quebec Justice Martin Vauclair who was appointed to the Court of Appeal of Quebec and Quebec Court Justice Michel Pinsonnault who was elevated to the Superior Court.
Éliane Perreault, a Crown attorney with the Director of Criminal and Penal Prosecutions of Quebec in Montreal, was appointed to the Superior Court. Perreault was admitted to the Barreau du Québec in 1986 and has focused on criminal law.
Manon Lavoie, a Crown with the Public Prosecution Service of Canada in Montréal, was also appointed to the Superior Court. Lavoie was admitted to the Barreau in 1991 and her main area of practice is criminal law.
On the east coast, Denise Boudreau, a lawyer with the Public Prosecution Service of Canada in Halifax, was appointed a judge of the Supreme Court of Nova Scotia. Boudreau was called to the bar of Nova Scotia in 1994, and in 2011 completed an LLM in criminal law and procedure from Osgoode Hall Law School.
Fredericton-based sole practitioner Thomas Christie has been appointed atothe Court of Queen’s Bench of New Brunswick in Saint John. Christie, who has practised in administrative law, labour law, employment law, and family law, served as Law Society of New Brunswick president from 2008 to 2009.
Darrell Stephenson, a lawyer with Stewart McKelvey in Saint John, was also appointed to the N.B. Court of Queen’s Bench. He was admitted to the Bar of New Brunswick in 1986 and his main area of practice was corporate and commercial law.
Four lawyers were appointed Supreme Court of British Columbia judges. They included George Macintosh, a lawyer with Farris Vaughan Wills & Murphy LLP in Vancouver whose main areas of practice were civil litigation, administrative law, constitutional law, and arbitration.
Nigel Kent, a lawyer with Clark Wilson LLP in Vancouver, was also appointed to the judiciary. His main area of practice was civil litigation including insurance law, corporate and commercial law, personal injury, and professional liability law.
He is joined by Jennifer Duncan, Crown counsel with the Ministry of Justice, criminal justice branch, in Vancouver. Duncan’s main area of practice was criminal law and, more recently, criminal appellate advocacy.
Another Ministry of Justice lawyer, Neena Sharma, was also appointed to the bench. She has particular experience in civil litigation with a focus on constitutional and administrative law, and labour relations.
Update Dec. 24: Add some Ontario appointments left off initially.
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.
Subscribe to Legal Feeds
Gail J. Cohen