In a decision released yesterday, the Ontario Court of Appeal has overturned a conviction based on a juror’s conduct, which was ruled to have created a reasonable apprehension of bias.
Derek Welsman, jury foreman in R. v. Dowholis and producer of the since cancelled Dean Blundell show, appeared on the radio show and “made derogatory comments about sexual activity between men,” the decision reads.
|Mark Halfyard says he wouldn’t be surprised if the case goes further because 'there’s such a disagreement between the majority and the dissent.'|
“It is unusual just because factually you don’t often have a situation where the comments made by a juror are essentially on the record and can be used as evidence in court to suggest they at least displayed the apprehension of bias,” says Mark Halfyard, criminal lawyer at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP.
“It’s just a matter of happenstance because he just happened to be affiliated with this radio show and, therefore, word of the communications got back to the lawyers and they were able to file that material as fresh evidence on the appeal.”
Joshua Dowholis, an HIV-positive man convicted of sexual assault in 2014, will get a new trial due to Welsman’s conduct.
“I have concluded that the conduct of the juror created a reasonable apprehension of bias such that a new trial should be ordered,” said the judgment.
Jill Presser, principal at Presser Barristers and counsel for Dowholis, said in a press release that “the court is saying that homophobia is just as unacceptable as racism in the justice system and that’s a huge step forward. The court has elevated homophobia to the no-no list in the justice system and that is really significant.”
In the two-to-one decision, dissenting Justice David Doherty argued that the radio show was known to make fun of everything and aimed to be provocative, so comments made in that context can’t be seen as a reflection of the juror’s true beliefs. Although he noted that the remarks were “inappropriate and potentially hurtful,” he goes on to write that “sometimes a joke, even a joke that is offensive, is nothing more than a joke.
“The distinction between comments that are only intended to entertain and comments that provide real insight into the speaker’s beliefs can be difficult to discern,” wrote Doherty.
“I feel my position will be misunderstood, that I do not mean to assert that humour predicated on stereotyping or ridiculing identifiable groups is harmless or acceptable,” he wrote, but that is not the concern of the appeal court. A conviction cannot be quashed based on finding a juror offensive, he wrote. That can only happen when the court is “satisfied that the comments demonstrate a reasonable apprehension of bias giving rise to a miscarriage of justice,” a hurdle he did not feel the juror’s comments cleared.
Halfyard calls the disparity a difference of opinion between the judges when it comes to the type of venue in which the comments were made.
“When you’re assessing apprehension of bias, you have to look at the context under which the comments are made,” he says. “If they’re said in a hateful way where you’d actually expect the person to express bias as opposed to jest — I think there’s a real grey area there.”
Doherty did agree that a new trial was needed but on the basis of error in instructions to the jury by the trial judge.
In a detailed decision, Justice Mary Lou Benotto disagreed with Doherty and found that “the reasonable observer would expect that a person who comes before the courts would be treated with dignity and respect and not be publicly ridiculed by the person judging him. I conclude that a reasonable person, knowing all the facts, would apprehend that consciously or unconsciously it was more likely than not that this juror would not decide fairly.”
Benotto writes that Doherty’s reference to racial bias in another court of appeal case, R. v. Parks, at para. 59 applies equally to bias against homosexuals.
“The likelihood that a bias against gay men would affect the juror’s decision-making process is greater given his willingness to publicly disregard instructions, engage in homophobic rhetoric, and mock the court process,” she writes in the majority decision. “The issue is not whether the juror meant what he said. Nor is it whether he was in fact unfair. The issue is the impression that his conduct created.”
In the release, Presser agreed the focus shouldn't be on “whether this particular juror actually was homophobic or what the entertainment value is for the radio broadcast" but on upholding the integrity of and appearance of fairness in the justice system.
Halfyard says he wouldn’t be surprised if the case goes further because “there’s such a disagreement between the majority and the dissent.”
In response to Justice Canada’s request for input on how federally appointed judges should be disciplined — and how their legal fees should be paid — the Canadian Judicial Council released a position paper on Wednesday outlining its recommendations for reform under the Judges Act.
|Torys LLP lawyer Molly Reynolds says in the Lori Douglas proceeding that particular inquiry committee felt this [process] was entirely inquisitorial, not adversarial. Now, to see the CJC presenting the process as adversarial is surprising.|
The CJC’s three key recommendations are:
• to formalize Council’s authority to impose sanctions and remedial measures against a judge;
• that the lawyer appointed under the authority of the designated member of the Judicial Conduct Committee to lead the process be tasked with presenting all the evidence against the judge rather than deciding how to proceed in the “public interest”;
• to minimize expensive and cumbersome requests for judicial review, that the decision of a Judicial Discipline Committee be final, subject only to a right of appeal to an Appeal Tribunal of Council, after the process is concluded.
“There were a number of important points we wanted to make for the Justice minister,” says Johanna Laporte, director of communications and registry services for the CJC. “The key one is in the area of sanctions, and penalties . . . Some conduct matters might not be so serious as to require outright removal, but might warrant a letter of concern, remedial training or maybe even a suspension.”
The second recommendation is the move toward an adversarial rather than inquisitorial disciplinary process, Laporte says. A judge who is undergoing a disciplinary process has a lawyer who is defending her or him, and “to balance it out, Council would have a lawyer to present the case against the judge. Previously the Council had a lawyer presenting the public interest. Now, it’s clear: you’ve got a lawyer for the judge, and a lawyer against the judge who are [now] on an even playing field.”
The third key recommendation is “one we feel will appeal to most Canadians because of the money and time spent arguing” a disciplinary case, Laporte notes, which is that the decision of the Judicial Discipline Committee be final, subject only to a right of appeal. Judges would have an opportunity to make an appeal to the CJC Appeal Tribunal, and “after that process is exhausted, there would also be the opportunity for the judge to go to the Supreme Court, with leave.”
Alison Gray, of Bennett Jones LLP in Calgary, was a co-counsel for the Women’s Legal, Education and Action Fund when it intervened before the CJC in the disciplinary procedure against Federal Court Justice Robin Camp, who made insensitive comments about a sexual assault victim in 2014 when he was a provincial court judge in Alberta (he has since apologized for his remarks). The CJC’s proposal for reform “really addresses the concern regarding the remedies available to [the Council],” says Gray, in expanding the options from recommending removal only.
“They’re hamstrung [currently] in making other [remedial] recommendations,” such as for education, she notes; and the public is left with the impression that judges are “untouchable” in that they can only be removed but not disciplined or educated otherwise.
“So, to increase the CJC’s ability to provide sanctions is positive. . . . I think we need more consideration of the processes set out in the three levels [of judicial disciplinary process], to protect judges but also to let the public have some insight into judicial complaints, so that it continues to be open and transparent. But I think at least we’re going in the right direction.”
Molly Reynolds, of Torys LLP in Toronto, was a counsel for former Manitoba associate chief justice Lori Douglas in her disciplinary process before the CJC between 2010 and 2014.
It can be easy to forget that it is a “human process” that judges go through before the Judicial Inquiry Committee, Reynolds says; in the Douglas proceeding, “that particular inquiry committee felt this [process] was entirely inquisitorial, not adversarial. Now, to see the CJC presenting the process as adversarial,” in which the CJC’s independent counsel is tasked with presenting evidence against the judge rather than proceeding simply in the public interest, “is surprising. Clarity one way or another would be useful.”
Reynolds also expressed concern over the lack of specificity in grounds for removal in the Judges Act, which provides that a judge may be deemed unfit to remain in office “by his or her conduct or otherwise.”
“Those grounds for removal were at issue in the Douglas case,” says Reynolds. The imprecise wording of “or otherwise” takes away from the sound, correct purpose of the Act, she suggests; “we should be looking at whether a judge has displayed good behaviour. . . . It’s important to examine what the scope of possible grounds for removal means, and what they can include.”
A B.C. Supreme Court judge has ordered the provincial government to scrap its three-year pay hike program for B.C. provincial court judges.
In the latest in a series of legal disputes over salaries, the court was asked to assess the remuneration and associated benefits for judges of the Provincial Court of British Columbia for the third time in four years.
In Provincial Court Judges’ Association of British Columbia v. British Columbia (Attorney General), the government proposed raises of 1 per cent, 1 per cent and then 1.5 per cent over the three-year period of 2014-17, which was less than what the Judicial Compensation Commission, an independent body that oversees judges’ remuneration, had recommended. The JCC proposed raises of 2.9 per cent, 1.5 per cent and 2 per cent over the same three years.
In his ruling, Justice Christopher Grauer said the government’s counter-proposed, lower increases “failed to meet the test of rationality in concluding that the JCC’s recommendations were unfair and unreasonable.”
Grauer did not, however, go so far as to accept the association’s request he implement the JCC’s proposed rates.
“It is not for me to set salaries. It is not for me to assess competing priorities for public funds. That . . . is the government’s responsibility, for which it is answerable to the electorate,” he said, adding, “the process is key.”
Under the Judicial Compensation Act, the JCC is tasked with reviewing provincial court judges’ salaries every three years.
As Legal Feeds reported in March 2015, the recommendations from the 2010 JCC report were implemented after the B.C. Court of Appeal ruled that provincial court judges are entitled to raises based on the consumer price index. In the fall of 2015, the dispute was settled for good after the Supreme Court of Canada refused to hear the provincial government’s case for overturning the appeal court ruling.
At that time, the current disagreements over the JCC’s more recent recommendations for 2013 increases had already begun.
The Law Society of British Columbia has submitted a report to federal Justice Minister Jody Wilson-Raybould outlining a series of recommended principles for the appointment of justices to the Supreme Court of Canada.
|Law Society of B.C. bencher Craig Ferris says there should be greater transparency into how SCC judges are appointed.|
The report entitled “Principles for the Appointment of Justices to the Supreme Court of Canada” was released yesterday and written by a subcommittee of the Rule of Law and Lawyer Independence Advisory Committee including Craig Ferris, a partner at Lawson Lundell LLP, Jeff Campbell, a partner at Peck and Company, and Jon Festinger of Festinger Law & Strategy LLP.
The report was approved by benchers at their July 8 meeting and sets out four principles the law society views as essential to the process of appointing justices to the Supreme Court: transparency; judicial independence; merit and diversity; and public participation.
“When you look at the issues that really affect the everyday life of Canadians, such as right to die, and the people making those decisions, we really should have some transparency into how they came to be in that position to make those decisions for us,” says LSBC bencher Ferris, who chaired the committee.
In the past, under former Liberal minister of justice and attorney general Irwin Cotler, there was an appointment process that involved a parliamentary hearing and nominees appeared in person at the hearing, says Ferris. But the hearing process was abandoned for the two most recent appointments to the SCC.
Cotler himself has also recently called for changes to the selection process.
Under the principle of merit and diversity, the report appears to try and get at past criticisms that appointments were politically motivated.
“The primary criterion for appointments to the Court should be merit. In order to maintain confidence in the institution of the Court, the appointment process should avoid any appearance of partiality or partisanship. Politicizing the appointment process threatens the legitimacy of the Court and the principle of judicial independence.”
Ferris says there should be a greater examination of the process to establish some precedent so governments can be held accountable to following a set process.
In March, it was announced that Justice Thomas Cromwell will resign from the Supreme Court of Canada effective Sept. 1. The current government has stated its intention to review and renew the process for judicial appointments to the courts.
In the past, the Federation of Law Societies has provided input on the issue. In 2004, the Federation sent a submission to the federal government recommending principles for the appointment process. In 2008, the Federation wrote to the minister of justice with recommendations.
“That’s one of the reasons we decided to take up the torch about the issue again,” says Ferris. “We thought the Cromwell resignation meant that this was going to move rather quickly and we thought if we want to get into the discussion and be part of the debate we need to act quicker rather than later as opposed to force it on to the federation’s agenda, which can take some time.”
In a statement, the BCLC stated: “The Supreme Court of Canada is a vital component of Canada’s constitutional democracy. It plays a key role in maintaining the rule of law and is a cornerstone of the legal fabric of Canada. Accordingly, the process by which Supreme Court Justices are appointed directly impacts the public interest.”
The current process by which candidates are evaluated and selected is largely unknown. For a number of recent appointments to the court, the appointment process changed from one appointment to the next.
The law society’s position is that incorporating the four principles identified will enhance public confidence in the court.
“I do think there is an opportunity with the new federal government — they’ve talked about reviewing the process of appointing judges generally and that should include the Supreme Court of Canada judges, and I’m hoping that this acts to spur on that debate and we get to be part of that discussion,” says Ferris.
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 a mediator and arbitrator with MacLeod Dispute Resolution in Barrie, among other experience. He was admitted to the Bar of Ontario in 1983.
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.”
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.
A judge has ruled against a Vancouver lawyer for alleging the judge did not review a file related to an immigration case. The lawyer, Lawrence Wong, was ordered to pay $1,000 by Federal Court Justice Richard Bell.
|An immigration lawyer tried to claim a judge hadn’t looked at his file before dismissing it because there were no markings on it.|
The associate said in a deposition that there was “no marking, sticky note, hand writing, bent corner, crease or any other discernible sign of them having been read,” and also said he saw no signature of a justice of the federal court.
“The original position of the applicant, denied at the oral hearing of this matter . . . is that I did not read the file. Of course, if I did not do so, such conduct would have constituted a serious violation of my oath of office,” said the ruling, in Liang v. Canada (Citizenship and Immigration).
At a hearing May 20, Wong allegedly backed away from saying the judge hadn’t read the file, and instead said it may have been put in the wrong place.
“Essentially, Mr. Wong contended that the case was so meritorious that any reasonable judge would have granted leave and Registry staff must have placed a ‘leave granted’ file in the ’leave dismissed’ pile. In essence, Mr. Wong contends either serious wrongdoing on the part of one of Her Majesty’s justices or serious negligence on the part of the Registry staff,” said the ruling.
Bell says the allegations were wrong on a number of counts, including the fact the allegations were founded on a notion that a judge would mark a publicly accessible file. He also said it “seems to presume a justice will make markings on court documents rather than in a bench book.”
The judge says in response to the allegations, he consulted the registry in Ottawa, and located his signature and date on the document in question, as well as his initials.
“In his written submission, which constitutes a public document, Mr. Wong, an officer of the Court, states that a review of the ‘court file, the physical file covers and the actual files show there is no written record of physical trace that will give the appearance that the file has been reviewed by a judge.’ This public statement made by an officer of the Court is inaccurate. The hand written signature of a judge, the hand written notation of the date and the identity of the Court constitute prima facie proof the file has been reviewed by a judge,” noted the ruling.
Bell called the allegations “an attack upon the integrity of the Court” that were “based upon speculation and innuendo and an inadequate verification at the Registry,” and ordered Wong to personally pay $1,000.
“Nothing was overlooked. Registry staff did not place the file in the ‘wrong pile.’ This motion for reconsideration is dismissed,” said the ruling.
Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP, says it was “kind-of a shocking thing for a lawyer to do” and she was “not surprised” costs were ordered against the lawyer personally.
“This was a very misguided approach to challenging a decision,” she says.
Robin Seligman, a senior immigration lawyer with Seligman Law PC, said this was “a fair decision by the court and registry.”
“It was frivolous and inappropriate for the lawyer to suggest that the judge had not read the file,” Robin Seligman told Legal Feeds.
Wong could not be reached for comment Tuesday.
One day after the Canadian Judicial Council issued its recommendation to not remove Justice Michel Girouard from the bench — despite a suspicious video of an alleged drug deal — a legal academic is pointing to a glaring lack of independence for judicial misconduct and a possible double standard.
|Allan Hutchinson suggests that the process for dealing with judicial misconduct is broken.|
Yesterday, in the case of Quebec Superior Court Justice Michel Girouard — who admitted to meeting regularly with a man later convicted of trafficking — the CJC rejected the majority opinion of its own inquiry committee to remove the judge from the bench.
“What is he doing dealing with these people anyway? Whether he bought the cocaine or not?” says Allan Hutchinson, the Osgoode Hall law professor and member of the Canadian Association for Legal Ethics.
“She did nothing illegal, but she ended up getting suspended and then retiring. So there's a bit of a double standard going on there. She ends up off the bench because this whole thing about the woman's sexual activity — well they don't deal well with that well, to put it mildly.”
The Girouard scandal, meanwhile, first surfaced in 2012, when as part of a drug-trafficking investigation, an informant told police he had sold Girouard nearly $100,000 of cocaine in the years leading up to his judicial nomination in September 2010, and that Girouard would sometimes exchange legal services for cocaine.
The investigation produced a closed-circuit video of one alleged transaction, in which Girouard is seen in the backroom of a video store with former client Yvon Lamontagne. The video has no sound, but Girouard is seen handing money to Lamontagne for what appears to be a small packet.
Both Girouard and Lamontagne (who was later convicted and sentenced to 10 years) deny that the transaction involved drugs. Lamontagne testified that he handed him a receipt for a debt repaid; Girouard testified that it was a document related to a tax settlement, and that he regularly met with Lamontagne to get new video releases.
An inquiry committee, comprising two chief justices and a Quebec barrister, was struck to investigate the allegations. The committee reviewed the police evidence and heard testimony from 13 witnesses, including Girouard’s cardiologist and law partner, both of whom stated that they observed no evidence that Girouard had ever exhibited evidence of drug abuse.
In November 2015, the majority of the committee found that, despite a lack of evidence on the balance of probabilities, Girouard should be removed from the bench because his implausible testimony suggested a deception.
The third panelist, Manitoba Chief Justice Richard Chartier, offered a dissenting opinion. He argued that any perceived ambiguities in Girourd’s testimony could be attributed to the passage of time.
Yesterday, the CJC sided with Chartier’s interpretation. In its final report, the council explained its decision to disregard arguments around implausibility, given that they were separate from allegations of drug trafficking and that Girouard had not been given the opportunity to respond to them:
“The Council takes this approach because the judge 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.
“Not only had a great deal of time (about 25 years) passed since the events, thereby weakening the quality of the evidence available, but there was also no evidence confirming the drug trafficker’s allegations. There was, however, evidence to the contrary in the Judge’s denial and the evidence of family, friends and professional colleague.”
Hutchinson, for his part, has no opinion on the evidence against Girouard or the implausibility of his testimony, but he suggests that the process for dealing with judicial misconduct is broken.
“The whole thing doesn’t look good,” he says. “Judges judging judges, right? I understand the need for independence and all that kind of stuff, but it’s not good enough. People will be suspicious that the judges are closing ranks, so they need a better process.”
The Barreau du Québec has added its voice to a growing chorus of legal groups calling for more public funding and radical reforms to help reduce what they say are ridiculously long court delays that are hindering access to and making a public mockery of the province’s court system, particularly in regards to criminal justice.
|Claudia Prémont notes delays and budget cuts are ‘bad news for the administration of justice’ in Quebec.|
She goes on to list a series of complaints, ranging from delays of up to three years for criminal trials to be heard in Montreal at the Superior Court level, and two years in Quebec Court.
The barreau said those delays, together with a recent $5-million cut in the budget of Quebec’s Directeur des poursuites criminelles et pénales office “spells bad news for the administration of justice.”
The Quebec bar is notably calling on the Liberal provincial government to provide the necessary resources (i.e. a big cheque) to Justice Minister Stéphanie Vallée that will permit her “to remedy this problematic.”
The barreau’s public sortie comes just days after the former head of the Superior Court of Quebec, Justice François Rolland, made headlines for slamming the trial delays in the province’s court system in a Senate hearing in Ottawa.
The former chief justice notably decried the fact that criminal cases by jury are currently being scheduled for 2019.
“Delays are bad for the accused, extremely bad for the victims, and extremely bad for Canadian society and the credibility of our judiciary,” Rolland told the committee, which is examining questions related to court delays and their effects on penal justice across the country.
According to Rolland, changes have to be made to make delays more reasonable like they were before 2009, the year Quebec started invoking mega trials to deal with biker gangs.
“If we don’t do anything we are going to hit a wall, and once that happens we can’t back up,” he said.
Rolland added that when he joined the bench in 2004, jury trials were always set within a year, usually seven to nine months.
“At the time I’m saying this,” he said, “you can’t get a [Superior Court of Quebec] date for a trial set in Montreal before 2017. For 2018, there are a few dates available, and they’re already booking dates in 2019. The situation is similar in Quebec City.”
In addition to the mega trials, he said the rising use of electronic communication of evidence, increased resources in police investigations, and even the increase in Crown attorney hirings have created a massive uptake in demand that the static numbers of judges and courtrooms can’t handle or accommodate.
A few weeks ago, another judge, Quebec Court Judge René De La Sablonnière, also made headlines for a pilot project he’s instigated that aims to reduce delays in criminal court cases.
Calling delays “the cancer of the judicial system,” De la Sablonnière pointed to a sexual touching case he threw out in March, nearly four years after charges were laid.
“These delays erode witnesses’ memories of events, unfairly prolong preventative detention of accuseds, and undermine the credibility and legitimacy of the institution,” the judge told Quebec City’s Le Soleil.
He gave the interview to publicize a pilot project that he and Crown prosecutor Sabin Ouellet have teamed up on.
The unique Quebec-first project aims to increase the number of negotiated settlements in cases by four per cent a year.
Currently, 93 per cent of the 6,600 criminal cases that are opened every year in Quebec are settled without a trial.
In roughly half of those cases, guilty pleas are entered after several delays.
The judge says he and Ouellet plan to steal a page from British Columbia’s approach, in which accused are offered the most lenient punishments possible in exchange for a guilty plea, and given 120 days to consider it.
Following news of the impending retirement of Supreme Court of Canada Justice Thomas Cromwell, former Liberal minister of justice and attorney general Irwin Cotler is calling for change in the way SCC justices are appointed.
|Irwin Cotler suggests a four-phase SCC justice appoinment process based on his experience as attorney general. (Photo: GMax Photography)|
“Regretfully, the judicial appointments process for the Supreme Court of Canada has been effectively dismantled,” says Cotler, the former MP for Mount Royal and attorney general from 2003 to 2006. Cotler was in Toronto for an event for the Pearson Centre for Progressive Policy last week.
“What we need to do . . . is to return to what I once enunciated as the four stages for a comprehensive, and representative and inclusive judicial appointments process for the Supreme Court of Canada, that will be anchored in merit, that will reflect our diversity, and will end up in having not only the best people appointed but achieving the best process for that purpose,” said Cotler.
Based on his experiences, Cotler recommends a first stage where a protocol would be established, spelling out the people the minister of justice would consult in her search for a new justice, and the personal and professional qualities the new justice would hold.
In stage two, a nine-person advisory group would look at the list, and report back on their top three picks. Depending on the region the retired justice hailed from, this group would include a representative of the corresponding law society, a representative from the Canadian Judicial Council, a representative of the Canadian Bar Association, and parliamentarians, as well as two “eminent” public citizens.
“They would engage in their own independent consultation process, and take that group of five to eight that they got, and winnow it down to three,” said Cotler. “They were also able to suggest somebody that might not have been part of the initial five to eight, if there were compelling reasons that a person was overlooked or should be considered.”
In the third stage, Cotler says the minister would “re-enter the consultative process” after receiving the short list and discuss the results.
In the fourth stage, a parliamentary hearing would take place to discuss the choice.
Cotler didn’t mince words, stating Prime Minister Justin Trudeau should take a look at making what’s old new again.
“I’m saying that [Trudeau] bring back the four-staged process, as I outlined it. I think each stage can be refined and improved, and that we have a process that is open, transparent, comprehensive, inclusive and accountable,” said Cotler. “The public is part of that transparency and accountability process.”
Cotler’s calls for change aren’t new. In 2014, he suggested the Conservative government then in power “adopt a more representative and inclusive approach similar to that which I employed as minister of justice, in consultation with Parliament
“That approach could include a more broadly representative and inclusive judicial advisory selection panel, where no political party has a majority (as the government now gives itself), parliamentarians as a whole are in the minority, and the provincial attorney general and provincial bar are represented, along with the Canadian Bar Association and the Canadian Judicial Conference; a protocol of consultation published by the minister of justice, setting out whom the minister intends to consult and with whom the advisory panel will meet; a public announcement by the minister of the criteria by which each candidate will be evaluated; and a final hearing at which the minister of justice – and not only the nominee – answers questions from parliamentarians, notably regarding how the nominee meets the established criteria,” he wrote then.
But with a new government, perhaps Cotler’s calls for change have newly empowered listeners. Last week’s event to honour Cotler was attended by Liberal supporters like Minister of Indigenous Affairs and Northern Development Carolyn Bennett, Minister of Natural Resources Jim Carr, and Minister of Environment and Climate Change Catherine McKenna. Ontario Attorney General Madeleine Meilleur was also in attendance.
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