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According to the Canadian Judicial Council, a panel of three judges will undertake a further review of the conduct of Superior Court Justice Michel Déziel after allegations against him surfaced at the inquiry this spring. Since then, Federal Court Justice and Court Martial Appeal Court of Canada Chief Justice Edmond Blanchard, vice chairman of the judicial conduct committee, has reviewed the allegations and “has decided that this matter would benefit from further consideration by a panel of three judges,” the Canadian Judicial Council announced on Friday.
The panel will include three judges, two of whom are members of the Canadian Judicial Council, who will look into the case and decide whether the federal body should close the file or take other measures.
“Council takes the review of complaints about a judge’s conduct seriously and treats every complaint in accordance with its complaints procedures,” the Canadian Judicial Council said.
The allegations date back to the 1997 municipal election campaign in Blainville, Que., when Déziel was a lawyer and organizer for the sitting mayor. Corruption inquiry witness Gilles Cloutier has alleged Déziel gave him $30,000 with instructions to find people to pose as donors to the campaign.
Déziel joined the Superior Court bench in November 2003. The allegations against him first arose at the commission of inquiry on the awarding and management of public contracts in the construction industry in May. The inquiry, chaired by fellow Superior Court Justice France Charbonneau, has been probing allegations of corruption and collusion in the awarding of government construction contracts, including any links to the financing of political parties, since 2011.
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.
|Heenan Blaikie LLP's Pierre Belllavance has joined the Quebec Superior Court bench.|
In Saskatchewan, the government has elevated Court of Queen’s Bench family law division Justice Jacelyn Ryan-Froslie to the appeal court. She replaces Justice G.A. Smith following her retirement last year.
In Ontario, the new Court of Appeal judges are justice Gladys Pardu and Mary Lou Benotto. Pardu replaces Justice Robert Sharpe, who moved to supernumerary status in June. She has been a judge since 1991. Benotto replaces Justice Robert Blair, who also became a supernumerary judge earlier this year. She has been on the bench since 1996.
And in Quebec, the government has named Superior Court Justice Claude Gagnon to the Court of Appeal. He replaces Justice F. Thibault, who became a supernumerary judge in April.
Other judges taking on new positions include Saskatchewan Provincial Court Justice Darin Chow. He joins the Court of Queen’s Bench family law division after Justice D.L. Wilson transferred to Saskatoon. The government has also named Prince Albert, Sask., lawyer Lyle Zuk to the Court of Queen’s Bench to replace Justice R.D. Maher. Maher became a supernumerary judge in August.
In Quebec, Heenan Blaikie LLP lawyer Pierre Bellavance becomes a Superior Court judge. He replaces Justice Y. Alain, who became a supernumerary judge last year. Bellavance had been a partner with Heenan Blaikie since 1998 who practised in a number of areas including civil litigation as well as real estate, construction, municipal, and administrative law.
In Alberta, the government has named four lawyers to the bench. Calgary Alberta Securities Commission lawyer Glenda Campbell joins the Court of Queen’s Bench. She replaces Justice C.S. Phillips, who became a supernumerary judge in July.
Also joining the Court of Queen’s Bench are Edmonton lawyers Dawn Pentelechuk and Frederica Schutz. Pentelechuk replaces Justice A.B. Moen, who became a supernumerary judge this fall, while Schutz fills the vacancy left by Justice L.D. Acton. Acton becomes a supernumerary judge on Dec. 1, and Schutz’ appointment is effective that day.
Finally, the government has named Corina Dario, a lawyer with Smart Technologies ULC in Calgary, to replace Court of Queen’s Bench Justice S.M. Bensler. Bensler became supernumerary judge in August.
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.
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.
|It took Justice David Brown 75 hours to write this ruling.|
“For the first time since my appointment to the bench, I kept a docket of the time which I spent on writing a judgment,” he says. “I spent 75 hours writing these reasons.”
The current Superior Court scheduling protocols allot 35 weeks of sitting a year each judge. That is 175 day or 875 hours, notes Brown. He adds hearing the motion in this specific case took almost one per cent of his annual sitting time.
Each judge is also given nine weeks in one year to write judgments. If a judge writes for eight hours a day, that makes 360 hours of allotted judgment writing time, Brown writes.
“These reasons took 75 hours to write, or 21 per cent of my annual judgment writing time. Of course most judges use part of their vacation to write reserve judgments, but I will put that issue to one side,” he adds.
The court is now faced with complex summary judgment motions and much of factual review of these complex motions occurs after the hearing.
“Yet, at the same time that judges are asked to hear complex summary judgment motions, they also are called upon to hear and decide quickly numerous intervening urgent motions and applications,” he writes. And prioritizing urgent cases means a delay in adjudication of less urgent but complex matters.
“Is over seven months an acceptable turn-around time for a 1.5 day summary judgment motion? I do not think that it is, but in the present case it was not possible to do otherwise,” says the ruling.
Brown lists three faulty principles in the scheduling protocols that have to be reconsidered:
• Assigning judges the same amount of writing time regardless of the complexity of the issue before them.
• Assuming the volume of work judges must complete can be routinely completed within normal business hours.
• Generally meeting the statutory requirement to release decisions on motions within three months of the hearing.
A 2010 amendment of the internal scheduling protocol, in fact, asked judges to avoid chronic overtime work, notes Brown, who called on a re-configuration of the system.
“If we are to restore the health of Ontario’s ailing civil litigation system, as judges we must not only call on those who appear before us to change their litigation culture, we also must look at our own internal scheduling culture and change it to meet the realities of our times.”
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Gail J. Cohen