A committee looking into the conduct of Quebec Superior Court Justice Michel Girouard has recommended he be removed from the bench.
The Canadian Judicial Council released the committee’s report this morning of public hearings held in May. The three-person committee gathered relevant information and heard from a number of witnesses, including Girouard. It included chairman Richard Chartier, chief justice of Manitoba, Chief Justice of the Federal Court Paul Crampton and lawyer Ronald LeBlanc of LeBlanc Maillet in Moncton, N.B.
The allegations of a convicted drug dealer turned police agent and a confidential police informant were at the heart of the hearings into Girouard’s conduct of Quebec.
The judge was alleged to have purchased and consumed illegal narcotics while he was a lawyer in northwestern Quebec, according to documents filed with the council.
Girouard was appointed to the Superior Court of Quebec on Sept. 30, 2010. He had been practising law in the Abitibi region of Quebec since 1985. In November 2012, Francois Rolland, then chief justice of the Quebec Superior Court wrote to the CJC to request a review of Girouard’s conduct in the wake of being notified of allegations against the judge by Quebec’s Director of Criminal and Penal Prosecutions.
“On the basis of the evidence introduced at the Inquiry, the committee could not conclude that the judge had participated in a transaction involving an illicit substance,” the CJC said in a press release. “The evidence presented to the committee was insufficient for it to draw any conclusions about the judge’s use or purchase of cocaine.”
However, the press release noted, the inquiry panel did find it disturbing that, in their final submissions, counsel for Girouard “suggested, in veiled terms, that police forces may have interfered in the case, as is to retaliate against Justice Girouard.”
While the inquiry panel didn’t find enough evidence on the drug allegations, Crampton and LeBlanc found Girourad’s testimony contained several contradictions, inconsistencies, and implausibilities.
They felt these raised questions about the judge’s credibility and integrity, and concluded Girourad was deliberately trying to mislead the committee.
“[W]e are of the opinion that the constellation of contradictions, inconsistencies and implausibilities in Justice Girouard’s testimony raises serious questions about his credibility,” Crampton and LeBlanc wrote in the report. “In our opinion, Justice Girouard deliberately attempted to mislead the Committee by concealing the truth.”
As a result, they recommended Girourard be removed because with “the integrity of a judge, there can be no half-measure: either the judge has integrity, or he does not. Through his lack of candour before the Committee, Justice Girouard raised some serious doubts about his integrity, which inevitably undermines public confidence.”
Chartier disagreed saying the inconsistencies weren’t sufficient to warrant Girourad’s removal.
“In my opinion, in order to conclude that Justice Girouard deliberately attempted to mislead the Committee or that he lied during a disciplinary process, there needs to be more evidence than simply the Committee’s credibility assessment of Justice Girouard.”
The CJC says it will now consider the inquiry committee’s report.
Girourard and independent counsel Marie Cossette will also be able to provide further written submissions.
The press release also notes because this matter was commenced before the coming into force of the July 2015 Bylaws, the previous bylaws apply.
After considering all the issues, the CJC will decide on whether to recommend to the minister of Justice whether Girouard should or shouldn’t be removed from the bench.
Since it was created in 1971, the CJC has only three times recommended a judge be removed from office. In reality, however, as the CJC’s web site points out, “Parliament has never had to face such a situation, but sometimes a judge will retire or resign before that step is taken.”
The full CJC inquiry panel report is available here.
As the Supreme Court of Canada prepares for its fall session, its newest judge, Justice Russell Brown, was officially welcomed in a ceremony held at the court in Ottawa this morning.
Brown was appointed in late July by Prime Minister Stephen Harper to replace retiring justice Marshall Rothstein, who left the bench on Aug. 31.
Brown was appointed to the Alberta Court of Appeal in Edmonton last year after just 13 months on the Court of Queen’s Bench. He also served as a judge of the Court of Appeal for the Northwest Territories and a judge of the Court of Appeal of Nunavut.
Before being appointed to the bench, Brown served as an associate professor and associate dean at the University of Alberta Faculty of Law. He was also associate counsel with Miller Thomson LLP in Edmonton and practised at Carfra & Lawton LLP and Davis & Co. (now DLA Piper LLP) in Vancouver.
CALGARY — Supreme Court Chief Justice Beverley McLachlin says she has no concerns about newly appointed Justice Russell Brown’s past political writings before his appointment to the bench.
|'I welcome a robust debate about the role of the court and how we do our job,' said Chief Justice Beverley McLachlin this morning at the CBA meeting. (Photo: Glenn Kauth)|
McLachlin pointed to Brown’s previous role as a legal academic and said it’s common for people to express their opinions before their appointment to the bench.
“He comes to the court with a rich background as a practitioner and law professor,” McLachlin said in her remarks to the CBA council as its annual conference gets underway.
At the press conference, McLachlin also addressed recent commentary that the top court often acts as a type of unofficial opposition to the federal Conservative government.
“I leave the labels to other people,” she said, suggesting the court’s role is to answer the questions put to it in accordance with the law.
“I welcome a robust debate about the role of the court and how we do our job,” she added.
But asked whether she accepts the label as an unofficial opposition, McLachlin was categorical.
“Of course not,” she said. “I’m a not a politician. I’m a judge.”
In her remarks to the council this morning, McLachlin said the top court had had a “productive year.” Citing its busy caseload, she noted some of the key cases it had dealt with, including the Carter v. Canada (Attorney General) matter that dealt with assisted suicide.
She also touted improvements at the Canadian Judicial Council, including providing more detailed information to complaints about the review of the matter; streamlining the conduct review process; and inviting laypeople to participate on review panels that decide whether to refer a complaint to an inquiry committee.
Besides McLachlin’s remarks, the CBA council began considerating a number of resolutions. Several of them dealt with aboriginal matters, including a call to boost the independence of the Specific Claims Tribunal following recent changes by the federal government.
Another key concern arose in a motion dealing with increased difficulty in access to counsel by inmates due to restricted visiting hours, limited phone time, and an inability by lawyers to see clients once they arrive at institutions.
“The conditions really are getting worse and worse,” said Michael Jerch, chairman of the CBA’s national aboriginal law section.
Another issue dealt with lawyers’ concerns about the overuse of and lack of law around solitary confinement in prisons.
“Generally speaking, it’s in a very vague type of realm,” said Bibhas Vaze, a Vancouver lawyer who moved a resolution calling for the CBA to urge governments to pass legislation and policies to restrict and regulate the use of solitary confinement.
The CBA council continues today with additional resolutions around matters such as doctor-assisted suicide and remarks from Janet Fuhrer, the association’s incoming president.
In what many are calling a controversial and conservative choice, Prime Minister Stephen Harper has appointed Alberta judge Russell Brown to the Supreme Court of Canada, replacing Justice Marshall Rothstein.
|Justice Russell Brown at his swearing in at the Court of Queen's Bench of Alberta in February 2013.|
“I’m a fan,” says Craig Jones, professor of law at Thompson Rivers University in Kamloops, B.C. “I think it’s a great long-term appointment.”
Brown, a former associate dean at the Faculty of Law at the University of Alberta, was a guest lecturer at TRU in February. Jones and Brown share an academic interest in what Jones calls “the very sticky field of causation in tort law.”
Associate professor Margaret Hall of the Faculty of Law at Thompson Rivers University called Brown “a truly outstanding scholar.”
“I have known Russell Brown since young and carefree undergraduate days at UBC. To my delight, we both grew up to become torts professors and became re-acquainted with each other in that professional and intellectual capacity,” she says.
While there’s some criticism that Brown has been a judge for just 2.5 years, others note he’s not the first to have an expedited path to the SCC.
Chief Justice Beverly McLachlin was appointed at the age of 45 (Brown is 50), and both with experience from private practice and academia, says Eugene Meehan of Supreme Advocacy LLP in Ottawa and a former executive legal officer at the SCC.
“With the court’s current workload mainly criminal, he will adjust, but his academic experience of critically analyzing and writing about the law will serve him well,” says Meehan.
He adds Brown’s time as an associate dean will help him in terms of “building relationships and putting out fires.”
University of Alberta law school professor Peter Sankoff says Brown’s varied background will benefit the SCC.
“Anytime someone makes a rapid rise to the Supreme Court there’s always controversy and it’s not unprecedented,” says Sankoff. “Sometimes having someone who has done a lot of different things and then moves to the judicial ranks in a short time can bring different perspectives to the bench.”
Sankoff, a professor and author of criminal law, wouldn’t comment on whether Brown has “conservative” leanings, saying rather he sees him as “a guy with an open mind.”
“I’ve read a lot of his decisions on the bench and I’m reluctant to peg him as an ideologue of one sort or another,” he says. “What surprised me was how rigorous and well thought out a lot of his criminal law decisions [are]. It doesn’t’ mean I agreed with every one of them but at the end of the day I couldn’t deny they were well thought out.
“He is a hard working guy. I think he has a strong will and strong thought about things but I know he’s open.”
Brown was appointed to the Court of Appeal in Edmonton last year after just 13 months on the Court of Queen’s Bench. He also serves as a judge of the Court of Appeal for the Northwest Territories and a judge of the Court of Appeal of Nunavut. He previously served on the Court of Queen’s Bench of Alberta.
Before being appointed to the bench, Brown served as an associate professor and associate dean at the University of Alberta Faculty of Law. He was also associate counsel with Miller Thomson LLP in Edmonton and practised at Carfra & Lawton LLP and Davis & Co. (now DLA Piper LLP) in Vancouver.
Brown’s appointment has also raised eyebrows in part due to his connection as an adviser in 2012 to the Justice Centre for Constitutional Freedoms, a conservative legal group.
“He was a very well regarded lawyer and he is an excellent teacher,” says Jones. “What makes him a great judge is he is an extremely down to earth, pragmatic, very human guy and he brings that, notwithstanding people’s concerns about this or that connection to the JCCF.”
Sankoff says judicial labels get thrown around a lot and there are different types of conservatives. His view is Brown has a “healthy respect for judicial precedent” which he says is the traditional view of a conservative.
“He has a healthy respect for the rule of law and precedent and that’s a welcome trait to add to the Supreme Court. That is what conservative used to mean. That can be both good and bad.”
Jones predicts Brown will be “leading some advances in less spectacular but very important areas of the law” such as tort law.
“While it [tort law] hasn’t been neglected, the approach of the Supreme Court of Canada has been tentative and inconsistent. I think he has a very strong understanding of the sort of ebbs and flows of the tort jurisprudence and a way of harmonizing it into a concept that serves social objectives and maintain some intellectual integrity,” he says.
“He has a really good way of boiling things down to common ideas and looking through threads of cases for some sort of conceptual integrity and often nails it.”
Labach replaces Justice Y.G. Wilkinson, who became a supernumerary judge on May 16. Labach, who was appointed to the Provincial Court in 2009, was formerly a lawyer with McDougall Gauley.
Even new to the Saskatchewan Court of Queen’s Bench is Gary Meschishnick, who was a lawyer with Wallace Meschishnick Clackson Zawada LPC in Saskatoon. Meschishnick is replacing Justice F.J. Kovach, who is now a supernumerary judge.
Meschishnick, who is from Humboldt, Sask., had been a partner with Wallace Meschishnick Clackson Zawada LPC since 1996. He practised primarily in the areas of corporate commercial litigation, debtor-creditor law, and insolvency and restructuring law, as well as mediation and arbitration.
In Nova Scotia, legal aid lawyer Robert Gregan has joined the bench of the Supreme Court of Nova Scotia. He is taking the place of Justice C. MacLellan, who became a supernumerary judge on June 19.
Gregan practised criminal law, family law, and administrative law at Nova Scotia Legal Aid in Amherst since 1991.
Evn though all the newly appointed judges in Saskatchewan and Nova Scotia are male, the government’s press releases said they reflect its awareness of the need for a more equal gender representation on the judiciary.
“Appointments to the country’s Superior Courts not only reflect the rich and diverse social fabric of our country, but also take into consideration the merit and legal excellence of each individual jurist,” the government said.
“Through these appointments, the Government of Canada has demonstrated an awareness of the need to bring greater gender balance to the bench, to help ensure that the judiciary is more representative of Canadian society.”
|Newly appointed Ontario appeal court Justice Bradley Miller has some controversial views on same-sex marriage.|
Miller, a former law professor at Western University, has been vocal about what he perceives as an attack on those who reject same-sex marriage in Canada.
Last year, while he was still a law professor, he wrote to the Law Society of Upper Canada in support of Trinity Western University’s bid for accreditation.
“If LSUC determines that the acceptance of a particular form of marriage is in fact a pre-condition to participation in public life, we must consider what consequences there will be for those existing member of LSUC who cannot, in good conscience, affirm that conception,” Miller wrote.
“Is LSUC prepared to impose statements of belief on its membership? The condemnation of TWU’s code of conduct would end, logically, in the code of belief to be imposed on the LSUC membership,” he added.
The LSUC voted not to accredit TWU due to its community covenant that effectively bans sexual intimacy between same sex couples. The university is challenging that decision at the Divisional Court.
Miller has written in other places saying the rejection of same-sex marriage has been likened to bigotry, which he said harms freedom of expression.
“The formal effect of the judicial decisions (and subsequent legislation) establishing same-sex civil marriage in Canada was simply that persons of the same-sex could now have the government recognize their relationships as marriages. But the legal and cultural effect was much broader,” he wrote in a 2012 essay.
“What transpired was the adoption of a new orthodoxy: that same-sex relationships are, in every way, the equivalent of traditional marriage, and that same-sex marriage must therefore be treated identically to traditional marriage in law and public life.”
Although Miller has spoken out in this area, Toronto appellate lawyer Allan Rouben says there’s nothing to suggest the appointment was ideologically motivated.
“The assumption appears to be that the appointment is ideologically motivated,” Rouben says. “There are a whole range of factors that go into the judicial appointment process. He had an impressive academic career and there’s nothing to say that isn’t the predominant factor in the first place,” he adds.
In Quebec, Superior Court Justice Jacques Fournier, who has been the court’s associate chief justice has been appointed its chief justice.
Fournier, who became associate chief justice in 2013, is replacing Justice François Rolland. He was appointed as puisne judge of the Court of Appeal of Quebec in 2011 and judge of the Superior Court of Quebec in 2002. Fournier was also an instructor at Université du Québec à Montréal and the Université de Montréal.
Justice Eva Petras becomes the new associate chief justice, effective June 30. She was first appointed to the Superior Court of Quebec in 2006.
Before becoming a judge, Petras practised family law and litigation at Eva Petras law firm. Prior to launching her own firm, she practised at MacKenzie Gervais from 1981 to 1986 and Lapointe Rosenstein from 1986 to 1990. She has also been a lecturer in family law at McGill University’s Faculty of Law.
Earlier in the month, New Brunswick Justice Raymond French, a judge of the Court of Queen’s Bench was appointed to the province’s court of appeal, He replaces Justice B. R. Bell, who was appointed to the Federal Court.
French was first appointed to the Court of Queen’s Bench in 2007. Before his appointment, he was a lawyer with Patterson Palmer in Saint John.
Replacing French on the Court of Queen’s Bench Trial Division is Richard Petrie. Prior to his appointment, Petrie worked as a lawyer with Stewart McKelvey in Fredericton.
On Monday, the inquiry committee formed in late 2013 to investigate the conduct of Justice Déziel submitted its 59-page report to the Canadian Judicial Council.
The allegations date back to the 1997 municipal election campaign in Blainville, Que., when Déziel was a lawyer and organizer for the sitting mayor. Charbonneau Commission witness Gilles Cloutier alleged Déziel gave him $30,000 with instructions to find people to pose as donors to the campaign, converting the money into contributions of $750 each.
Cloutier, who worked for an engineering firm, made the allegations in 2013 during testimony at the provincial inquiry into widespread municipal corruption in Quebec.
Déziel denied the allegations but said he acted as an intermediary in transferring the money to an engineering firm.
The committee, chaired by New Brunswick Chief Justice Ernest J. Drapeau, outlined how they answered the question of whether Déziel’s conduct was “so manifestly and profoundly destructive to the concept of impartiality, integrity and independence that public confidence would be so undermined as to render the judge incapable of remaining in office.”
In a statement, a spokesman for the CJC said:
Having considered the matter fully including that the infractions were non-criminal and sanctioned by a fine of $100, the time elapsed since their commission, and numerous other mitigating factors including Justice Déziel’s irreproachable career as a judge, his apology and the unequivocal support expressed by the judge’s chief justice and associate chief justice, the Inquiry Committee concluded that Justice Déziel’s conduct was not so serious as to warrant removal.”
The report states: “In the present matter, the Independent Counsel is convinced that there is no risk of reoffending and that Justice Déziel’s sincere apologies are sufficient to reassure the public in this regard.”
The committee also noted that some of the events put forward in the allegations were found to be “incompatible with the facts and the credibility of certain witnesses in doubt.”
Therefore the inquiry committee found a recommendation for removal was not warranted. The report and its recommendation that Déziel be returned to his position will soon be considered by the CJC.
The CJC will report its conclusions and submit the record of the inquiry to the federal minister of Justice.
Déziel was appointed in November 2003 to the Superior Court to preside in Laval. He could not be reached for comment.
A Vancouver family lawyer with Jenkins Marzban Logan LLP, Grace Choi has been appointed a judge of the Supreme Court of British Columbia, Family Division, to replace Justice R. Crawford, who elected supernumerary status in August of 2014.
The Dalhousie graduate was admitted to the B.C. bar in 1993 and in Ontario in 1996. She became an accredited family law mediator in 2013 and was appointed Queen’s Counsel in 2014.
Federal Court Justice Denis Gascon, who also sat on the Competition Tribunal, has been named chairman of the Competition Tribunal to replace Justice D.J. Rennie, who in turn has been appointed to the Federal Court of Appeal. Gascon was appointed to the Federal Court on Feb, 26, 2015. Prior to that, he joined Ogilvy Renault (now Norton Rose Fulbright Canada) in 1989, where he became a partner in 1997.
Recently retired Canadian Forces legal adviser Patrick K. Gleeson, has been appointed to the Federal Court to fill a new position created by Bill C-11.
After being admitted to the bar of New Brunswick in 1994, he joined the Office of the Assistant Judge Advocate General in Halifax as a legal adviser and worked in different directorates until 2000. He became the JAG’s Director of Legal Services, where from 2005 he served as the senior legal adviser.
Cilian Sheahan, of Poole Althouse in Corner Brook, N.L., has been appointed as a judge of the Newfoundland and Labrador’s Supreme Court, Trial and Family Division to replace Justice R.A. Fowler who will move to supernumerary status this month.
He was called to the N.L. in 2000 and appointed Queen’s Counsel in 2013. Sheahan’s areas of practice were corporate and commercial law, municipal, labour and employment law and corporate estate planning. In 2004, he joined the Canadian Forces as a legal officer.
Following the resignation of Justice V.A. Schuler, Justice Andrew M. Mahar of the Nunavut Court of Justice in Iqaluit, will become a judge of the Supreme Court of the Northwest Territories.
Mahar is called to the bars in Ontario, Nunavut, and the Northwest Territories. Clinic Director of the Kitikmeot Law Centre of the Northwest Territories Legal Aid Clinic. He has mostly practised as a sole practitioner but was also Clinic Director of the Kitikmeot Law Centre of the Northwest Territories Legal Aid Clinic in Cambridge Bay.
Sylvia Corthorn, a lawyer with Kelly Santini LLP/SRL in Ottawa, will replace Justice L.D. Ratushny of the Ontario Superior Court of Justice. Ratushny has been elected to supernumerary status, which had come in effect in June last year.
Corthorn was called to the bar in 1984 and has mainly practised in the areas of personal injury law, medical and dental malpractice, insurance defence litigation, and commercial and estate litigation.
Superior Court of Quebec Justice Charles Ouellet moves from the districts of Saint-François and Bedford, with residence in Cowansville, to the districts of Saint-François and Bedford, with residence in Sherbrooke. Ouellet will replace Justice Y. Tardif who has elected supernumerary status effective June 1. He was originally appointed to the Superior Court of Quebec in 2011.
Also in Quebec, Serge Gaudet, a lawyer with Langlois Kronström Desjardins in Montréal will replace Justice J. Lanctôt as puisne judge of the Superior Court of Quebec. Justice Lanctot has elected supernumerary status.
Gaudet was called to the bar in 1987. His main areas of practice were civil and commercial litigation.
A lawyer with Bouchard Page Tremblay in Quebec, Simon Hebert is appointed to Superior Court of Quebec to replace a by Justice M. Fortin, who has resigned.
Mostly a class action counsel, Heber was called to the bar in 1989. He has also been an officer with the Canadian Armed Forces since 1983
Chantal Tremblay, who is a lawyer with McCarthy Tétrault LLP in Montreal, also joins the Superior Court, taking over for Justice A. Denis.
Called to the bar in 1995, Tremblay is a former Quebec managing partner at McCarthys. Her main areas of practice were commercial litigation, class actions, professional liability, insurance law, environmental law, medical liability and disciplinary law.
Finally, Alexandre Bouchar a lawyer with the Director of Criminal and Penal Prosecutions has also been appointed to the Superior Court. He will be replacing Justice C. Champagne, who elected to supernumerary status.
Bouchar was called to the bar in 1996. He joined the Director of Criminal and Penal Prosecutions in 2010, and was previously a sole practitioner from 1995 to 2010.
Saskatchewan provincial court Judge Jeffery D. Kalmakoff in Regina has elevated to the court of Queen’s Bench of Saskatchewan. Justice D.P Ball of Regina has elected supernumerary status on May 9, 2014.
Prior to his appointment Saskatchewan Court of Justice in 2009, Kalmakoff was a Crown prosecutor with the Public Prosecutions Division of the Saskatchewan Ministry and Attorney General in Regina between 1996 and 2009. He was called to the bar in 1994.
Don R. Sommerfeldt, a counsel with Dentons Canada LLP in Edmonton, is the newest appointed judge of the Tax Court of Canada to replace a resignation by Justice G. Sheridan.
He was called in Alberta in 1978 and to the bar of New York in 2004. Sommerfeldt has been with Dentons Canada LLP (formerly Fraser Milner Casgrain LLP) since 2000 practising taxation, estate planning, and pensions.
A lawyer with McInnes Cooper in Halifax, Henry A. Visser, is also appointed to the Tax Court to replace Justice D. Cambell who elected supernumerary status as of this year, June 19., will take over.
Visser mainly practised tax law, corporate law, commercial law, labour law, and employment law. He was admitted to the bar of Nova Scotia in 1995 and to P.E.I. in 1998
|Judicial officers need policies and procedures around the use of social media, says a report. (Photo: Twin Design / Shutterstock.com)|
This time, a working group of nearly 20 participants, from a wide cross-section of justice participants examined the implications of judicial officers —- judges and tribunal members — using social media.
Ontario Superior Court Justice Frances Kiteley says there is a need for more discussion about the use of social media and the implication, both within the judiciary and for members of administrative tribunals.
“The world we are judging in, is overwhelmingly one in which everyone is using social media,” says Kiteley, co-chairwoman of the court technology organization. “It is not like we are in a silo, all by ourselves.”
A survey on social media was distributed and nearly 700 judicial officers in Canada responded. About half of the responses came from judges at the superior or provincial court level. More than half of those who replied are based in Ontario or Quebec. No one from the Yukon responded.
Nearly half of the judicial officers who completed the survey said they visit or contribute to social media sites, such as Facebook, Twitter, or blogs, “in a personal or professional capacity, to some small extent,” says the discussion paper.
That figure is less than the general population. A Forum Research survey from January of this year showed 18.5 million Canadians are on Facebook and 47 per cent of survey respondents use Facebook more than once each day. Less than one-in-four judicial officers reported using the social network at least once a month, according to the CCCT data.
The main reason for visiting or contributing to social media was to follow or send messages to contacts. Nearly 20 per cent of the CCCT survey respondents said they used social media to share “online multimedia content” that is personal.
The discussion paper also highlights examples where the use of social media in a professional or personal setting, has caused issues for judicial officers.
A Quebec judge declined to recuse herself from a multi-defendant drug trial after defence lawyers pointed out that many of her “friends” on her Facebook page were Crown attorneys. A provincial court judge in Ontario retired and apologized before a disciplinary hearing that stemmed from comments she made on Facebook about two other judges.
And recently, a criminal conviction was overturned on appeal, because a provincial court judge in Ontario independently used Google street view to test the credibility of the accused.
When acting in the capacity of a judicial officer in a trial or a tribunal hearing, the same ethical principles apply, regardless of whether information is found in a book or on social media, says Kiteley. It is less clear what “the line” is, when it is the use of social media in one’s personal life.
“Part of what the report is about, is to spur discussion on where the line might be,” she adds.
In a profession where “reputation is everything” it is important for judicial officers to be fully informed about the potential impact of social media use, says Lisa Taylor, a member of the working group.
Even sharing family information and photos on sites such as Facebook, should be done carefully, says Taylor, a lawyer and journalism professor at Ryerson University in Toronto. She also urges more discussion among judges and tribunal members about social media, with the aim of developing basic policies and education in this area.
“Your digital profile is so easily accessible,” says Taylor.
As well, it is very difficult to remove information, once it has been posted. “The Internet never forgets,” she warns.
|The Yukon decision clarifies the test for judicial bias.|
The Supreme Court’s decision cites several disparaging remarks directed at Yukon counsel and includes a laundry list of incidents that clearly breached the threshold for reasonable apprehension of bias.
At one point, the judge said he would allow counsel for the government to bring forward new arguments relating to confidentiality of a witness — only to blindside the Crown the next day with an unfavourable ruling that halted discussion.
Perhaps more troubling, the trial judge questioned Yukon counsel’s request to submit evidence from a witness who had suffered a stroke. The judge accused counsel of trying to delay the trial and warned counsel they could be ordered to pay costs personally if they brought the application.
Yet another example of bias occurred after the trial judge’s ruling (in favour of the school board), when Yukon counsel were denied their request to challenge costs claimed by the board — including punitive damages and solicitor-client bills retroactive to 2002.
“All of these incidents, taken together and viewed in their context, would lead a reasonable and informed person to see the trial judge’s conduct as giving rise to a reasonable apprehension of bias,” the decision states.
Receiving the brunt of the trial judge’s “disparaging remarks” was Max Faille, the partner in public law at Gowling Lafleur Henderson LLP who represented the Yukon government before the SCC.
Faille says the court was in no position to pronounce on many of the language-rights issues that are core to the case, given the tainted nature of the trial. He calls the Supreme Court’s decision a “vindication” of the way his team and client comported themselves in court.
“I’ll confess that it was a very difficult trial,” says Faille. “As advocates, we come to have certain expectations when it comes to trial procedure and the law of evidence and conduct of the judiciary. . . . Certainly we felt in the courtroom it was quite palpable that we were not being heard on behalf of our client. And that was quite trying during a lengthy trial.”
Despite agreeing with the appeal court’s finding of bias, the decision — written by Justice Rosalie Abella on behalf of a unanimous court — dismisses the lower court’s reasons, which had placed significant weight on the trial judge’s position as a governor of the Fondation franco-albertaine, a philanthropic organization.
While the appeal court found that the trial judge’s connection to the group indicates a world view aligned with the francophone school board, Abella makes clear that group affiliation cannot, on its own, be used to infer bias:
“Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise. Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.”
The SCC decision focuses mainly on questions around judicial bias, while upholding the lower court’s determination that a new trial should be held where the majority of the language-rights issues will be dealt with.
Update 3:30pm: Comments from Max Faille added.
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