Scheduling protocols for judges have to take into consideration increasingly complex motions that consume more time than allotted, says Ontario Superior Court Justice David Brown.

It took Justice David Brown 75 hours to write this ruling.

In his ruling this week in Western Larch Ltd. v. Di Poce Management Ltd., “a shot-gun buy-out dispute,” Brown broke down the number of hours it took him to make the decision.

“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.”

The Supreme Court of Canada this morning upheld an anti-terrorism law enacted after the Sept. 11, 2001, attacks on the United States, ruling unanimously that those who choose to engage in terrorism must “pay a very heavy price.”

Convicted terrorist Momin Khawaja lost his appeal at the Supreme Court.

The law’s constitutionality was challenged by Mohammad Momin Khawaja, an Ottawa man convicted of terrorism for involvement with a British group that had plotted unsuccessfully to set off bombs in London. It was also challenged by two men accused of terrorism by the United States for trying to buy missiles or weapons technology for the Sri Lankan Tamil Tigers.

In R. v. Khawaja, the court rejected arguments that the law’s definition of terrorism was overly broad. It also upheld Khawaja’s life sentence and in Sriskandarajah v. United States of America confirmed the orders to extradite Suresh Sriskandarajah and Piratheepan Nadarajah to the United States.

Khawaja, the first to be convicted under the new anti-terrorism law, was sentenced in 2008 to 10-1/2 years in prison, and his sentence was then extended to life on appeal by the government.

The trial judge noted that Khawaja referred to Osama Bin Laden as “the most beloved person to me in the . . . whole world, after Allah,”, He was found to have participated in a terrorism training camp in Pakistan and to have designed a device dubbed the “hi fi digimonster” for detonating bombs.

“The appellant was a willing participant in a terrorist group,” Chief Justice Beverley McLachlin wrote in Friday’s 7-0 decision, adding he was “apparently remorseless.”

“He was committed to bringing death on all those opposed to his extremist ideology and took many steps to provide support to the group. The bomb detonators he attempted to build would have killed many civilians had his plans succeeded.”

In response to the ruling, Minister of Justice Rob Nicholson said: “I am pleased that, with today’s ruling, the Supreme Court of Canada has upheld the constitutionality of key anti-terrorism provisions in the Criminal Code and a life sentence for convicted terrorist Mohammad Momin Khawaja. By upholding this sentence, the court sent a strong message that terrorism will not be treated leniently in Canada."

The court also ruled that Canada can proceed to extradite the two men the U.S. has accused of involvement with the Tamil Tigers, which waged a bloody war for independence in Sri Lanka and is considered a terrorist organization by Washington and Ottawa.

Nadarajah is alleged to have tried to purchase surface-to-air missiles and AK-47 assault rifles for the Tamil Tigers from an undercover officer posing as a black-market arms dealer on Long Island, New York. Sriskandarajah, is alleged to have helped Tamil Tigers get electronic equipment, submarine and warship design software and communications equipment.

"I am also pleased that the court has recognized that the principles of procedural fairness were appropriately respected in the extradition cases of Mssrs. Sriskandarajah and Nadarajah and that their surrender for extradition was justified," said Nicholson.

The court disagreed that the federal law’s terrorism provisions had put a chilling effect on Canadians’ freedom of expression and was disproportionately broad.

McLachlin wrote that the law enacted 11 years ago next week, breached neither the Charter’s s. 2 guarantee of freedom of expression, nor its s. 7 guarantee of due process and fundamental justice.

“The purpose of the law does not infringe freedom of expression.  While the activities targeted by the Terrorism section of the Criminal Code are in a sense expressive activities, most of the conduct caught by the provisions concerns acts or threats of violence,” says the ruling. “Threats of violence, like acts of violence, are excluded from the scope of the s. 2(b) guarantee.  Moreover, the particular nature of the conduct enumerated in ss. 83.01(1)(b)(ii)(A), (B), (C) and (D) justifies treating counselling, conspiracy or being an accessory after the fact to that conduct as being intimately connected to violence — and to the danger to Canadian society that such violence represents.  As such, the conduct falls outside the protection of s. 2(b) of the Charter.”

Update 12:15 p.m.: Comments from Justice Minister Rob Nicholson added.

Canada

SCC ruling finds anti-terrorism laws are constitutional, The Globe and Mail

Tory lawyer fears Robocalls case could mean constant elections lawsuits, The National Post

Quebec's corruption probe sees mayor of St-Remi arrested for fraud, other charges, Calgary Herald


United States

Court rules California can reduce reimburdement rates for its state Medicaid program, Reuters

Longtime employee shoots himself dead inside Alabama courthouse, Reuters


International

British lawyer tells preliminary hearing Russian gov't was involved in spy's poisoning, Reuters

Serbia's richest man placed in detention pending his corruption trial, Reuters