A report from the Law Society of Ontario’s Human Rights Monitoring Group stoked debate among some prominent benchers this week regarding the law society’s role in politics.
At Thursday’s Convocation, the law society’s elected members voted on a submission from a subcommittee focused on human rights. The report, “Report to Convocation September 27, 2018: Equity and Indigenous Affairs Committee,” contained three proposed letters and public statements to be sent from the LSO to foreign lawyers’ associations and other officials. The first letter dealt with the arrest, sentencing and charges against lawyer Nasrin Sotoudeh in Iran; the second dealt with the detention of lawyer Haytham Mohamadeen in Egypt; and the third addressed the forced retirement of 26 Polish Supreme Court justices, including Chief Justice Malgorzata Gersdorf.
There was little debate that the LSO should intervene in the cases in Iran and Egypt, but the proposition of intervening in the Polish judiciary changes, presented by Bencher Teresa Donnelly, was the subject of debate and several motions at the meeting.
“Early on, when this came up a few years ago, I did say there was a hypocrisy — we don’t go to bat for Canadian lawyers,” Galati says. “The problem I have with making statements about the rule of law is that the rule of law is not the same in every country. The rule of law is not the same in Canada as it is in the United States and Europe. It’s a political issue . . . so what? They have independent judges, they have fair trials. They look different from ours. . . . We could be writing letters to the prime minister over similar, abhorrent practices in our own country on that same, general, broad level of the rule of law. Where does the law society get off passing judgment on a different legal system that admittedly is democratic?”
At issue in the report was a communication campaign by the Polish National Foundation, funded by state-owned corporations, which said judges were “the enemy” of the Polish people. Following the campaign, a “vast array of legal amendments” was put in place, merging the roles of prosecutor general and minister of justice and allowing the minister of justice to dismiss presidents of the courts, the report said. A new law also proposes moving the retirement age of judges to 60 for female judges and 65 for male judges, down from an age cap of 67 for both genders.
As a result, the LSO’s report said, the terms of all 15 members of the National Council of the Judiciary would end, and 40 per cent of judges overall would have to retire. The proposed statements from the LSO would cite several articles of the United Nations’ Basic Principles of the Independence of the Judiciary and would call on the Polish government to uphold the separation of powers.
The report on the Polish judges included citations from Amnesty International, Human Rights Watch, the findings of a United Nations special rapporteur and a statement from the Council of Bars and Law Societies of Europe, according to the report.
Galati, a constitutional lawyer and sole practitioner in Toronto, suggested the third letter be removed. Galati has acted on some high-profile cases about Canada’s judiciary, including his 2013 intervention into the appointment of federal Court of Appeal judge Marc Nadon, who was ultimately blocked from the Supreme Court. Galati is also widely credited with launching an inquiry that expanded the age cap of 75 to more of Canada’s federal judges.
“Let the European Court of Justice decide if that’s a breach of the rule of law,” Galati tells Legal Feeds.
“Our government does all sorts of things to our judiciary for political reasons,” Galati says. “They don’t appoint enough diverse judges, for instance. I see that as politically discriminatory. . . . We like [former U.S. president Barack] Obama, therefore, the rule of law under Obama was OK? We don’t like [U.S. president Donald] Trump, therefore, the rule of law under Trump isn’t OK? That’s where we are going.”
Bencher Raj Sharda, who practises at Sharda Law Office in Toronto and Brampton, Ont., seconded Galati’s suggestion to remove the letter from the report rather than approve the report as a whole. Bencher Janet Leiper, a former Toronto integrity commissioner, moved to amend Galati’s motion to send the report back to the committee for further research to be re-presented to Convocation.
Janis Criger, president of the Ontario Deputy Judges Association, was one of several who spoke in favour of the report at Convocation, noting the extensive research done by the Human Rights Monitoring Group and the importance of upholding the rule of law in the face of tyranny.
“The tension, I think, is between those who would take what was before Convocation based on the recommendation of the Human Rights Monitoring Group and the work that was done and those who were concerned, I think — the fact that this was a country within the European Union and subject to [its] own constitution within that commutative framework — should have the result that we should be less likely to intervene, Treasurer Malcolm Mercer told reporters. “I thought it was a good, healthy debate.”
Ultimately, the report was approved with all three letters in a close vote, 22 to 21. Sharda, who originally supported withdrawing the letter about the Polish judiciary and might have tied up the vote, abstained from the vote, citing in the roll call the confusing wording of the amended motion.
Although Galati ended up in the minority, with several benchers expressing confusion over the voting process, he tells Legal Feeds he does not think there should be a recount or other type of roll call.
Rather, he says, the law society should consider whether its initiatives come off as “arrogant” or “holier than thou.”
“Jailing an Iranian lawyer in the most infamous prison in the world is different from forcing the chief justice of Poland to retire 15 years earlier, don’t you think? Where is the human rights abuse in that? All of a sudden your tenure is a human rights issue?” Galati says. “The law society has no place doing this on this scale. The law society has a place sending letters saying, ‘Listen, you jailed a lawyer for doing his job and we’re concerned about that.’”
“Let’s apply these standards to ourselves first before we do it to others.”