Legal Feeds Blog
- B.C. benchers use recent retreat to build stronger ties with aboriginal community
The recent Law Society of British Columbia benchers’ retreat in Penticton was used to build stronger ties with the indigenous community and gain a broader awareness of the issues underlying the Truth and Reconciliation Commission’s call to action and its 94 recommendations.
|First Nations lawyer Ardith Walkem says the bencher retreat had a positive and ‘different feeling at the start.’|
There are, for example, a disproportionate number of aboriginal children now in government care in Canada and a disproportionate number of native men and women filling our jails. Not to mention the numbers of missing women and affected families because of domestic violence.
Bluntly speaking: Can the legal community bring them home?
LSBC president David Crossin acknowledges that the justice system fell far short of protecting an earlier generation of aboriginal men and women and the children forced into residential schools, many of whom now lie in unmarked or unknown graves.
“The justice system really fails the indigenous population, particularly as it relates to the residential school protocol that was put in place. The legacy of those schools is horrible,” says Crossin.
It is the legacy that the justice system now deals with. In the fall of 2015, the LSBC and its benchers adopted a position to embrace the TRC report recommendations.
“The LSBC felt it was one of the most important justice issues of our lifetime,” says Crossin.
The Penticton retreat was a forum for delving deeper into key issues such as indigenous children in custody, criminalization of aboriginal people and their incarceration, and domestic violence.
It also highlighted what many have already known about Canada’s justice system.
“The justice system does not fit with [native] culture and we have to address that. We can’t ignore it,” he says.
“This is not something that will take weeks or months but rather, years,” says Crossin, who is also a member of a Federation of Law Societies of Canada committee formed to address the call to action recommendations.
Crossin quotes TRC chairman Justice Murray Sinclair, who when speaking of the report, said: “We have described for you a mountain. We have shown you a path to the top. We call upon you to do the climbing.”
The Penticton forum did not focus on the socio-economic and political problems surrounding the aboriginal Canadians, which are complex, but more on how to climb the slope.
Crossin says: “It really relates to how the LSBC will lead the legal profession on this path and on this road to reconciliation.”
He says there needs to be more public dialogue on the issues.
“It is a challenge to appreciate how to best heal these relationships. It is our task and our desire to start that process. It starts with personal relationships. It starts by sitting there and looking people in the eye and speaking the truth to one another and going forward. I truly believe we must begin this and that it is a process. It is not going to happen overnight that we come to a collaborative plan with the aboriginal community going forward.”
Crossin adds: “We will be working with the Aboriginal community to formulate a specific concrete plan of action and going forward.”
While the Penticton forum drew in mainly aboriginal representatives from the legal community, Crossin says there is a need for feedback on a broader level.
“The justice system is not just the domain of the lawyers and judges,” he says. “Our mandate is to look after the public interest and that includes thousands within the Indigenous community.”
Ardith Walkem, a First Nations lawyer with Cedar & Sage Law Corp., says an important aspect of the forum was “the different feeling at the start” as those attending expressed a curiosity and openness to explore issues.
“There was a willing to discuss issues and ask the legal profession to respond to them,” she says, as the members looked both “inward as well as outward.”
“The TRC said the law in the past had played a role in the colonization of the Indigenous people,” says Walkem. That role should be examined in the context of how the law is formed and acted upon in society, not just by the law societies but by all Canadians.
Resolving the issues in the Indigenous community will require action on many different fronts, albeit social, political, or legal. “But it is important that the Indigenous people drive it,” she says, adding the Indigenous people want “nothing about us, without us.”
The retreat, which drew in benchers and guests from Nova Scotia, Manitoba, and representatives from other law societies, was more of a discovery process for individuals participating, says bencher Dan Smith, who commented as a First Nations member. Smith, who has worked for government, says they are slow to change.
“There are often systemic and attitudinal barriers that prevent change,” he says. “The system to date requires a change and initiating change within government is very difficult.”
Smith says there is a need for “recognition of being inclusive” in Canadian society. That need translates into native voices breaking through societal barriers and to “be included in the development of policy and regulation. . . .”
Walkem calls this inclusion challenge “one of the greatest human rights questions of our time.”
And, for the legal community, the questions may all simply render down to that - protecting human rights and freedoms, the underpinning of the legal community’s past failure to protect another generation of Indigenous people. That failure now looms as an opportunity to bring the current generation of aboriginal people home on their own terms and definition.
New judicial appointments will mean fresh faces on the bench in Quebec, Alberta, British Columbia, and Ontario, as well as on the Federal Court of Appeal.
|Freya Kristjanson will join the Ontario Superior Court of Justice in Toronto as a judge.|
On Friday, the Trudeau government announced its first judicial appointments since taking office last fall. There are 15 appointments, including six in Alberta, five in Ontario, two in British Columbia, one in Quebec, and one in the Federal Court of Appeal. Of the 15, 10 are women and five are men.
In Alberta, Sheilah L. Martin — formerly a judge with the Alberta Court of the Queen’s Bench in Calgary — has been elevated to Alberta Court of Appeal in Calgary. She replaces Justice C. O’Brien, who retired in 2014.
Martin, who holds degrees from McGill University and the University of Alberta and a doctorate from the University of Toronto, has been on the bench since 2005. She spent 16 years as a professor and dean of the faculty of law at the University of Calgary and has spent four years with Code Hunter LLP in Calgary, from 2001 to 2005, and three with Evans Martin and Wilson (formerly known as Wolch Wilson and Dewitt), from 1996 to 1999.
Martin made headlines recently for her decision to grant approval to an ALS survivor for physician-assisted suicide, while the government was still working on its new law in the area.
Shelia J. Greckol has been elevated to the Alberta Court of Appeal in Edmonton from the Court of Queen’s Bench. She fills the spot vacated by Justice Russell S. Brown, who was appointed to the Supreme Court in 2015. Greckol will also be serving as a judge of the Court of Appeal for the Northwest Territories and the Court of Appeal of Nunavut.
Greckol, who was called to the bar of Alberta in 1976, has served on the Court of Queen’s Bench since 2001. Before that, she was a partner with Chivers Greckol & Kanee from 1986 to 2001, and an associate and a partner with Wright Chivers & Co.
Filling Greckol’s spot at the Court of Queen’s Bench in Edmonton is John T. Henderson. Henderson was called to the Alberta bar in 1980, and then spent 19 years with Fraser Milner Casgrain LLP (now Dentons Canada LLP). Since 2009, he has been a judge with the Provincial Court in Edmonton.
Douglas R. Mah, who was secretary and general counsel with the Alberta Workers’ Compensation Board in Edmonton, has been appointed to the Court of Queen’s Bench. The spot has belonged to Justice D.R. Thomas, who elected supernumerary status in 2015.
Since 1988, Mah has been counsel with Worker’s Compensation, and before that was an associate with Milner & Steer in Edmonton. He was called to the bar in 1982.
Another new face at the Court of Queen’s Bench in Calgary is Gillian D. Marriott. Marriott is the former executive director of Pro Bono Law Alberta, from 2009 to 2013, and has been counsel with Widdowson Kachur Ostwald Menzies LLP in Calgary since 2013. Marriott replaces Justice Martin, who was elevated to the Alberta Court of Appeal.
She also is a former associate, then partner, with Dunphy Best Blocksom LLP. She also has experience with the Alberta Law Reform Institute and the Health Law Institute
Rounding out the Alberta appointments is Avril B. Inglis, a prosecutor with Alberta Justice in Edmonton, who will be joining the Court of Queen’s Bench in Edmonton.
Inglis was called to the bar in Manitoba in 2000 and in Alberta in 2003. She was a Crown prosecutor in both provinces from 2000 to 2014. In 2014, she became project counsel with Alberta Justice and Solicitor General, in Edmonton. Inglis replaces Justice F.L. Schutz, who was also elevated to the Alberta Court of Appeal.
New appointments in Ontario will mean new faces in Ottawa, London, Toronto, Oshawa, and Brampton.
In London, Justice Jonathon C. George has been elevated from the Ontario Court of Justice and will join the Superior Court bench. George was admitted to the bar in 2001, and is a graduate of the University of Western Ontario. George replaces Justice B.M. Miller, who has been with the Ontario Court of Appeal since 2015.
Since 2012, George was a provincial court judge in London and previously served as the legal counsel for the Kettle & Stony Point Chief and council, in Kettle Point First Nation, as well as being an associate with Robbins Henderson & Davis in Sarnia.
Longtime Superior Court Master Calum U. MacLeod now joins the Superior Court bench in Ottawa. MacLeod is a graduate of Queen’s University, and has been a case management master since 1998. He was also previously an associate with Zwicker Evans & Lewis, in Barrie, Ont., and was admitted to the Bar of New Zealand in 1988 and the bar of British Columbia 10 years later.
MacLeod replaces Justice H. Levenson Polowin, who died in May.
In Toronto, Freya Kristjanson is also joining the Ontario Superior Court of Justice. Kristjanson has been a partner with Wardle Daley Bernstein Bieber LPP since 2015 and a partner with Cavaluzzo Shilton McIntyre & Cornish LLP in Toronto from 2009 to 2014. She also has experience as counsel and then partner with Borden Ladner Gervais LLP in Toronto from 1989 to 2008. She was admitted to the Ontario bar in 1989.
Kristjanson will replace Justice G. Mew, who is now in Kingston, after being transferred there to replace Justice Scott in 2015.
Toronto lawyer Sharon Lavine will be joining the Ontario Superior Court of Justice in Oshawa, to fill the role vacated after Justice M.L. Lack elected supernumerary status earlier this year.
Lavine has served as the alternate chair of the Ontario Review Board since 2004, as well as an associate and then partner with Greenspan Humphrey Lavine in Toronto since 1993, when she was admitted to the bar in Ontario.
Lastly for Ontario, Lucy K. McSweeney will be joining the Ontario Superior Court in Brampton.
Since 2010, McSweeney served as the Children’s Lawyer for Ontario, with the Ministry of the Attorney General. Her prior experience was as litigation counsel with the Ministry of the Attorney General, including as deputy legal director of the strategic planning unit and of the Crown Law Office – Civil. McSweeney replaces Justice D.L. Edwards, who was transferred in March.
On the West Coast, Margeurite H. Church has been elevated to the Supreme Court of British Columbia in Prince George. Church has been a judge of the Provincial Court of British Columbia in Williams Lake since 2011.
She has prior experience with Cundari Seibel LLP in Kamloops and Rogers & Hyslop in Kamloops. She also was a senior research associate with Department of Asian Legal Studies at the University of British Columbia and an associate with Rudd Watts & Stone in Auckland. She is called to the bar in both British Columbia and New Zealand. Church is taking the spot formerly filled by Justice J.W. Williams, who was transferred to Vancouver in 2014.
Maria Morellato, a partner with Mandell Pinder LLP in Vancouver, joins the Supreme Court of B.C. in Vancouver.
Morellato has been with Mandell Pinder since 2009, and was an associate and partner with Blake Cassels and Graydon LLP from 1989 to 2008. She also has experience with the Industrail Relations Council and as an associate with Alexander Holburn Beaudin & Lang. Justice L.A. Fenton — who previously had the spot — was elevated to the Court of Appeal in 2015.
In Quebec, Éric Downs, who was a judge with the Court of Québec in Montréal, will now be serving on the Superior Court of Québec in Montréal. Downs has been on the bench since 2012. His predecessor in the position — Justice M. Delorme — resigned in 2015.
Downs was previously a partner with Downs Lepage from 2008 to 2012. From 1991 to 2008, he was counsel and then partner with Hebert Bourque et Downs, and a prosecutor with Justice Quebec for four years, from 1987 to 1991.
Judith M. Woods, a judge with the Tax Court of Canada, has been elevated to the Federal Court of Appeal. Woods has been with the Tax Court since 2003. Justice C.M. Ryer had resigned in May from the court.
She was previously a partner with McCarthy Tétrault LLP from 1978 to 2003. She also served as a lawyer with Dow Chemical Canada, and was admitted to the bar in 1976.
The appointments are all effective immediately.
The federal government had come under fire in recent months for judicial vacancies that critics said were clogging the courts.
“We know that our country is stronger, and our judicial system more effective, when our judges reflect Canada’s diversity. As promised, we have filled the urgent judicial vacancies by drawing on a list of recommended candidates who are of the highest caliber and who are as diverse as Canada,” said Jody Wilson-Raybould, federal Justice Minister and Attorney General of Canada.
In a statement, Canadian Bar Association president Janet Fuhrer said, “We are delighted that the government has started to fill the vacancies on the courts. The unfilled vacancies have created some delays and other problems for Canadians seeking justice.
“While we all wish for vacancies to be filled expeditiously, we understand that revamping the process will take time and appreciate the Government’s efforts to do things right. We are in communication with government officials and the Minister’s office and fully expect an ongoing dialogue on how best to fill vacancies and appoint a judiciary that is reflective of Canadian society.”
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Yellowknife lawyers say the impending closure of the city’s law library could have significant impacts on access to justice in the Northwest Territories.
|Bar members found out about the impending closure of the law library in an e-mail from the law society. (Photo: CambridgeBayWeather)|
“Costs are already quite significant in the north and access to lawyers is quite a challenge. People are already having difficulties finding lawyers in a lot of areas of practice,” she says. “This will not make that easier.”
Wawzonek says the closure would likely result in an increase in cost for clients, as lawyers will have to spend more on resources.
Bar members were first alerted to the fact the N.W.T Department of Justice had decided to close the library in an e-mail from the law society.
“I think [I was] shocked and disappointed no one was consulted. Members of the bar were not consulted because I would usually notice and participate in that kind of thing,” says Sandra MacKenzie, a litigation lawyer with Lawson Lundell LLP, who is fighting the closure.
“What’s going to happen to the collection? Where any alternatives considered and where are self-represented litigants going to go?”
The justice departmetn said the decision was made because costs have increased over the years while usage has steadily decreased. Last year, it cost the government $467,000 to run the facility, which only saw 984 visits and only had 385 books signed out, according to the government.
“That breaks down to a cost of almost $500 each time a user stepped in the door, and over $1,200 for every book checked out,” justice spokeswoman Marie-Eve Duperre told Legal Feeds in an e-mail.
However, lawyers say the usage numbers the government provided might not be accurate as not everyone signs the attendance book when they enter the library.
While outright closure could save the Department of Justice money, Wawzonek says the N.W.T. CBA branch would like to see an alternative solution achieved through consultations.
“Reduced use and being over budget that to me seems like a financial math problem and not one that is necessarily best solved by a blanket decision to close the law library,” says Wawzonek, who uses the library whenever she has a trial in Yellowknife.
“We’re still hopeful a solution that supports the bar and supports access to justice, while still being fiscally responsible can be found.”
The N.W.T. law society is currently canvassing its members for their opinions and expects most responses will express displeasure, says spokesman Bob Wilson.
“It is unclear whether the results of our informal survey will change any minds, as it appears that the government of the Northwest Territories’ Department of Justice has made its decision,” Wilson said.
Sole practitioners, small firms, and self-represented litigants are likely to be most affected, as they do not have the resources of a large firm, says MacKenzie. But ultimately any lawyers who use the library will be affected.
“We’re a small rural jurisdiction. So lawyers are already struggling to have access to the most timely and most thorough, up to date materials,” says Wawzonek.
“It’s more challenging. People are often sole practitioners or in small groups of practitioners. They’re not necessarily in the position to each individually be buying every tome that’s come out in a certain area of practice.”
The government says court services will offer an interlibrary service, allowing people to access books in Alberta law libraries, but Wawzonek worries whether such a system will be an acceptable resource for lawyers in Yellowknife.
“It does not meet the need for lawyers who need information quickly, immediately, whether it’s a quick reference on a trial mater they’re in the middle of or whether it’s something they’re working on that they need to do some in depth research on,” she says.
“This is the only resource for many lawyers in the territory.”
While bar members are hoping there might be some chance of reversing the decision, they may be too late as the N.W.T. legislature is set to vote on its budget in the next couple of weeks.
- Federal government retains exclusive control over radio-communications
The federal government — and only the federal government — may approve or reject the location of a cellphone antenna, regardless of health concerns or any other issues that may be within the purview of provincial or municipal governments.
|Patrice Gladu says his client thought it had a good chance of opening a new avenue to involve the municipalities that are on the front lines.|
The appeal stems from a construction delay. Rogers Communications had been granted approval to build a cellphone antenna at a particular location in Châteauguay, south of Montreal. Citizens mobilized against the project, leading the municipal government to issue a “notice of reserve” that would forestall any construction for two years.
The city conducted public consultations and offered an alternative location, but Rogers rejected that site as inadequate. Then, a few days before the reserve notice was set to expire, the city extended the delay for another two years — prompting Rogers to launch its action.
The city argued successfully on appeal that it had authority to block construction of the antenna, given the concerns of nearby residents that the land was being misused and that their health would be affected — issues that falls under municipal and provincial mandate.
Today, however, in a unanimous decision written by justices Richard Wagner and Suzanne Côté, the SCC has overturned the appeal court’s decision, taking a hard line on constitutional divisions of power.
As the decision states: “Even if this measure addressed health concerns raised by certain residents, the fact remains that it would constitute a usurpation of the federal power over radiocommunication. . . . A finding that the siting of radiocommunication infrastructure has a double aspect would imply that both the federal and provincial governments can legislate in this regard, which would contradict the precedent established by the Privy Council in In re Regulation and Control of Radio Communication in Canada . . .”
The court found that Rogers was bound by a federally imposed obligation to ensure adequate cellphone coverage in the area, and that allowing cities to reject the location of cellphone infrastructure would make it impossible for these companies to carry out their obligations.
David Watt, senior vice president of regulatory affairs at Rogers, says the ruling is a win for Canadians who expect good cellphone service and that it’s important to have a fair and transparent process to work with communities across the country.
In an e-mail to Legal Feeds, he says: “We appreciate today’s decision and will always respect the communities we invest and operate in, meeting and beating health and environmental standards because we work here, live here and raise our kids here too.”
For Patrice Gladu, the lawyer at Dunton Rainville who represented Châteauguay, the decision is a disappointing loss for his client.
“We thought that we had a good chance of opening a new avenue to involve the municipalities that are on the front lines in the decision-making for planning of the land,” he says, “but we clearly understand that the ruling today of the Supreme Court says that municipalities do not have any kind of say over determination of the site. It’s up to the company and minister of industry to decide where an antenna is going to be built.”
Gladu, however, notes that the court does cite the possibility of a compromise, noting that municipalities — while lacking the authority to reject a specific site — may use their powers to expropriate land as a way of offering an alternative. He says his client is now open to that possibility.
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Quebec Superior Court Justice Michel Girouard is not off the hook just yet despite the Canadian Judicial Council’s decision not to recommend his removal from the bench due lack of evidence that he purchased drugs while working as a lawyer.
In an unprecedented move, the federal and Quebec justice ministers have jointly asked the Canadian Judicial Council to open a new inquiry Girouard’s conduct. This time, Jody Wilson-Raybould and Stéphanie Vallée are asking that Girouard be investigated for his conduct before the committee that was tasked with investigating the drug allegations against him.
Despite finding there wasn’t enough evidence to prove Girouard purchased drugs while he was a lawyer, the inquiry committee recommended that the CJC remove him from the bench because the majority of the committee believed the judge lied to them during the inquiry.
In a press release yesterday, the ministers said:
Given the important purpose of the judicial discipline process, the critical role of integrity in ensuring public confidence in the judiciary, and the need to ensure fairness to Justice Girouard, the Ministers agree that the best course of action is to jointly request, pursuant to s. 63(1) of the Judges Act, that an inquiry be held into the findings of the majority of the Inquiry Committee that prompted it to recommend his removal."
Meanwhile, Quebec’s Superior Court announced Girouard will be relieved of his regular responsibilities and administrative duties as co-ordinating judge for the judicial districts of Rouyn-Noranda and Témiscamingue while the new inquiry is underway.
The CJC decided in April not to recommend Girouard’s removal because the credibility and integrity issue was separate from the reasons for the inquiry, which were the allegations of drug purchase.
Despite the majority of the committee’s assurance that Girouard was given chances to respond to the inconsistencies in his testimony, the CJC said he was not informed that “the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.”
“Because the judge was entitled to this kind of notice and did not get it, the Council does not know whether the majority’s concerns would have been resolved had it received an informed response to them from the judge,” said the CJC.
Ethics and professionalism lawyer Gavin MacKenzie says he’s never seen anything like this request being made by the ministers. But although “it’s a very unusual case,” MaKenzie says the ministers’ request is understandable.
“It’s not a case of double jeopardy,” he says. “The reaction of some seeing what has occurred is that the judge has been vindicated by the recommendation of the Canadian Judicial Council, but I can see the sense and the fairness of the ministers’ actions in requesting a new hearing in these circumstances.
“There’s a potentially legitimate concern that’s expressed in the majority reasons of the inquiry panel,” adds MacKenzie. “And it’s equally valid to draw the conclusion that the judge has not had a fair opportunity to respond to those allegations.”
Due to the passage of time, the inquiry committee could not prove allegations that Girouard purchased drugs from a drug trafficker in the ’80s and early ’90s. A drug trafficker, who later became a police informant, told authorities he sold Girouard a total of one kilogram of cocaine with an approximate value of between $90,000 and $100,000.
Another former drug dealer, Yvon Lamontagne, also told police Girouard was his client as early as 2010, and he’s sold cocaine to him just days before Girouard’s appointment to the Superior Court bench in September of that year.
At Lamontagne’s movie rental store, police found surveillance video that showed an exchange between Girouard and Lamontagne. While the duo’s interaction seemed “suspicious,” the inquiry committee was not convinced the video, which had no sound, is conclusive evidence of a drug transaction.
But in its November 2015 report to the CJC, the majority of the inquiry committee, including Federal Court Chief Justice Paul Crampton, expressed “deep and serious concerns” about Girouard’s credibility, and therefore integrity, throughout the process.
“In short, on the basis of all the evidence submitted to the Committee to date, and subject to our comments below about the possibility of bringing a further count, we cannot, with great regret, accept Justice Girouard’s version of the facts,” the majority of the inquiry committee wrote regarding what happened in the video between Girouard and Lamontagne.
“Although this implies nothing about the nature of the object that was exchanged, we wish to express our deep and serious concerns about Justice Girouard’s credibility during the inquiry and, consequently, about his integrity. In our opinion, Justice Girouard deliberately attempted to mislead the Committee by concealing the truth,” they said.
In recommending Girouard’s removal, the majority of the inquiry committee said his conduct fell below the standards expected from members of the judiciary.
“He did not set an example of integrity. Instead, he lacked integrity. By acting in this manner, he placed himself in a position incompatible with the due execution of the office of judge, which amounts to misconduct under paragraph 65(2)(d) of the Judges Act,” the two committee members said.
But the dissenting member of the committee, Justice Richard Chartier, said the inconsistencies in the judge’s statements didn’t rise to the level of concrete doubt about this credibility. He also found it would be inappropriate to recommend Girouard’s removal based on conduct that wasn’t the basis of the inquiry, a position the CJC, too, later accepted.
Update June 22: The Canadian Judicial Council announced on June 22 that at the request of the justice ministers it will convene an inquiry into the conduct of Justice Michel Girouard. In a press release, the CJC noted, the Judges Act requires that it proceed with an inquiry when requested by the Minister of Justice of Canada or by the attorney general of a province.
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