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.
In the very first case he heard as judge of the Supreme Court Canada, Justice Thomas Cromwell dissented in his decision. Being “his own person” was the mark of Cromwell’s seven-year tenure on the bench of the country’s top court, lawyers say.
|Justice Thomas Cromwell was appointed to the Supreme Court in 2008 and publicly sworn in Feb. 16, 2009. (Photo: Chris Wattie/Reuters)|
“In his time at the court, his colleagues have always benefited from his wisdom, his rigour and his friendship,” said McLachlin. “Outside the court, Justice Cromwell’s tireless efforts to increase access to justice will continue to benefit Canadians long after his retirement from the bench. We will miss him greatly.”
Cromwell was appointed to the Supreme Court in December 2008. He had previously served as a judge of the Nova Scotia Court of Appeal and worked as executive legal officer to Supreme Court of Canada chief justice Antonio Lamer from 1992 to 1995.
“Being a judge is both a great privilege and an onerous responsibility. I will always be grateful for the opportunity that I have been given to serve Canada in this capacity,” Cromwell said. “As my time as a judge draws to a close, I believe more firmly than ever that an independent and effective judiciary is a cornerstone of democracy.”
A heavy-lifter on the Supreme Court’s bench, Cromwell decided landmark cases including Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, a public interest standing matter; Peracomo v. Telus, an international maritime law case; and Tercon v. B.C., a decision highly anticipated by the bar on exclusion clauses in contracts.
Cromwell is “so completely no-nonsense as a judge on the bench that he had a nose for baloney as finely tuned as any delicatessen owner,” says Supreme Court litigator Eugene Meehan, who adds the judge is also extremely hardworking.
“I know from credible sources that his enormous capacity for work – including weekends – both tired and awed his law clerks,” Meehan says.
As a judge, Cromwell was committed to the issue of access to justice. He chaired the Action Committee on Access to Justice in Civil and Family Matters, and penned a report titled Access to Civil & Family Justice: A Roadmap for Change in 2013.
“He was outreaching, if I could use that phrase. He was opening up an understanding of the court,” says prominent criminal lawyer Bill Trudell. “It’s a big loss, and he’s leaving earlier than we all would have hoped. But having said that, his legacy will be one of calm wisdom.
“And he’s a nice guy, too,” adds Trudell.
Cromwell’s pending departure Sept. 1 will leave a void in the court, and create the first opportunity for Prime Minister Justin Trudeau to appoint a judge to the top court. Some say this should also be an opportunity to change the appointment process, which has varied wildly during previous prime minister Stephen Harper’s tenure, reaching its controversial apex with the failed appointment of Marc Nadon to the top court.
Trudell says the new government should model its Supreme Court appointment process after its senator selection process. A committee comprised of representatives from across the country should be tasked with consulting with the bar to find the best candidates for the job, and pass on the list of qualified individuals to the prime minister, says Trudell.
He suggests doing away with the current parliamentary committee.
“I think the public would be really impressed and happy with that and I think it’s something that should be considered,” says Trudell.
Cromwell, who hails from Nova Scotia, would have to be replaced by another judge from the Atlantic provinces. To date, Newfoundland and Labrador has not been represented by a judge in the highest court. But whether the new appointee should come from that province should not be main determining factor, says Trudell.
“It’s time for someone from the Maritimes or from the East to replace Justice Cromwell, if that’s possible. I don’t think you should sort of say, ‘It’s Newfoundland’s time,’” as long as an “imminently qualified” judge is appointed from the eastern region, says Trudell.
A requirement that the appointee be bilingual should also not stop a qualified judge from sitting on the bench, says Trudell.
“You can always learn a language,” he says. “Let’s just say we decided it was time for a First Nations representative, and if that person is imminently qualified but didn’t speak French, I don’t think you [should] pass them over because they can learn it. The same thing with a woman.”
An appellate-level judge has voiced his frustration with the Supreme Court of Canada for failing to provide sufficient guidance for judicial review in administrative law.
|Justice David Stratas’ paper advocates for a simpler standard of review that moves away from rigid categories and labels|
In the paper, Stratas balances abstruse concepts in the esoteric, though critically important, world of administrative law, which governs the circumstances in which government and regulatory decisions may be appealed and how courts are to weigh those appeals.
Theoretically, administrative review relies on a conceptual framework created by the Supreme Court, but Stratas argues that the high court has failed to develop an approach that can be applied by lower courts consistently, preferring rather to deal with case-specific questions of public importance.
Even when the SCC does craft principles around review, Stratas writes, it does so in a way that only tweaks and rebalances the framework, rather than attempting to build a coherent model.
“Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan,” Stratas writes.
“Roughly forty years ago, the Supreme Court told us to categorize decisions as judicial, quasi-judicial or administrative. Then, largely comprised of different members, the Court told us to follow a ‘pragmatic and functional’ test. Then, with further changes in its composition, it added another category of review, reasonableness, to join patent unreasonableness and correctness. Then, with more turnover of judges, it told us to follow the principles and methodology in Dunsmuir.”
Stratas cites the SCC’s recent decision in Kanthasamy v. Canada (Citizenship and Immigration) (in which the court set aside the rejection of a humanitarian residency application) as a “baffling” case where the court flouted its own principle of “legislative supremacy” by ignoring Parliament’s expressly stated intent that the Federal Court of Appeal should have the final say in the matter.
Now Stratas, suspecting that the SCC is about to revisit the doctrine of judicial review, is making a plea for some kind of coherent approach:
“Why this article? I have to work with this jurisprudence every day. I may soon be faced with another reconstruction of this area of law. I have worked for clarity, consistency, unity, and simplicity in this crucial area of law for much of my life. . . . We must pay more attention now to the settlement of the doctrine in this area of law before it is too late.”
Paul Daly, a Montreal professor who writes the Administrative Law Matters blog, says Stratas’ frustration is widely held by appellate-level judges. Though the SCC has chosen to focus on answering questions of importance, rather than constructing a framework of principles, Daly calls this a “false dichotomy.”
“The Federal Court of Appeal, in particular, has done sterling work in demonstrating how you can give guidance on the one hand while doing it within a consistent and coherent framework on the other hand,” says Daly.
“So part of the frustration, I think, is that the Supreme Court has not made the same effort, and it very rarely, if ever, refers to what the courts of appeal have been doing. . . . There are a lot of cases where intelligent and very capable appellate judges are trying to navigate the tension between general principles of administrative law and general questions of importance to the legal community. . . . But those efforts are not being taken into account by the Supreme Court.”
Indeed, Stratas writes: “the Supreme Court has never cited, let alone considered, any of these cases. Not a single one. However, we in the Federal Court of Appeal should not feel snubbed. The work of every other appellate court in Canada also goes unmentioned and unconsidered. In this area of law — for reasons unknown — the Supreme Court considers only its own decisions.”
Stratas’ paper advocates for a simpler standard of review that moves away from rigid categories and labels such as “correctness.” He also seeks a reaffirmation of “legislative supremacy” and a greater focus on “intensity of review.”
Daly, however, demurs when asked whether there are any particular aspects to the current standard of administrative review that should be addressed, instead suggesting that the real problem is the leadership vacuum.
“Administrative law is a ball of wax, it all fits together,” he says. “It’s difficult to isolate particular problems. But one thing lacking is leadership and guidance from the Supreme Court on the overall framework, and how the various globs of the ball of wax fit together.”
The legal community is remembering the life and legacy of retired Noval Scotia chief justice Constance Glube, who passed away suddenly on Monday at the age of 84.
|Former N.S. chief justice Constance Glube passed away suddenly Feb. 15. (Photo: NSBS)|
Glube retired from the courts in 2004 after 48 years in the legal profession — 21 as a lawyer and another 27 as a judge. She remained a life member of the Nova Scotia Barristers’ Society and an active volunteer during her retirement.
Glube was one of just two women to graduate from the law school at Dalhousie University in 1955 and was a classmate of Purdy Crawford. The school has posted a memorial to Glube on its web site.
“Justice Glube was a feminist hero,” NSBS president Jill Perry said in a statement. “Not simply because of her long list of pioneering achievements but also because she was an unfailing source of support, encouragement, and mentorship for women in law.”
The NSBS called Glube “a trailblazer in Canada’s legal profession.” She was the first woman appointed to the Nova Scotia Supreme Court bench in 1977, and in 1992, became the first woman chief justice of a Canadian court. In 1998, she was appointed chief justice of Nova Scotia and of the Court of Appeal.
Camille Cameron, dean of the Schulich School of Law at Dalhousie, grew up in Nova Scotia and was a trial lawyer who appeared before Glube many times. But the first time she met her was when Glube spoke to Cameron’s undergraduate urban politics class in her role as the city manager of Halifax. She was, again, the first woman in Canada to hold such a position in any Canadian city.
“She cared about the people around her, she was unassuming, really smart, and you had a sense that she really cared about having a conversation with you and finding out something about you,” says Cameron.
The two women met again once Cameron became a litigator.
“It was a pleasure to appear before her — she was very businesslike, professional, and respectful; she was steady that way. It was all business but in a very professional way,” she says. “She contributed a lot to the profession and certainly when she became involved as a judge she became very involved in judicial education.”
Even in retirement, Glube continued her involvement in the legal community right up until last October when she attended her class reunion during Dalhousie’s alumni weekend.
|Former N.S. chief justice Constance Glube in 1983, when she received an honorary doctor of laws during celebrations of the centenary of Dalhousie's law school.|
Called to the bar 60 years ago, Glube practised at the Halifax law firm of Kitz Matheson and later as a partner in Fitzgerald and Glube. She joined the legal department at Halifax City Hall in 1969 and soon became Halifax’s city manager.
Premier Stephen McNeil offered condolences on behalf of government: “Constance Glube’s contributions to the law and to our province are profound. She maintained a lifelong commitment to gender, ethnic, and religious equality and opportunity.”
The many honours and accolades she received throughout her life included the Order of Nova Scotia and the Order of Canada, which recognized her “enduring contributions to the administration of justice for more than four decades . . . she continues to be a role model for women of all ages and professions.”
“She was a role model in all respects: she broke down barriers in our profession thus paving the way for many to follow, yet always found time to give back to her community,” says Lydia Bugden, chief executive officer and managing partner at Stewart McKelvey. “She will be remembered for her kindness and generosity of spirit.”
Glube was one of the first recipients of the Frances Fish Women Lawyers Achievement Award, presented to women who have achieved professional excellence and demonstrate a commitment to women’s equality in the legal profession. In 2009, the Canadian Bar Association’s Nova Scotia branch established the Constance R. Glube Spirit Award, to recognize achievement in law by Nova Scotian women lawyers.
Funeral services for Glube will be held tomorrow, Feb. 17, at 2 p.m. at Shaar Shalom Synagogue, 1981 Oxford St. in Halifax.
The Canadian Judicial Council has been forced by the Alberta Attorney General Kathleen Ganley to launch an inquiry into Federal Court Justice Robin Camp’s conduct during a 2014 sexual assault trial.
|Complainant Elaine Craig says Ganley’s actions are welcome in ensuring a more efficient investigative process of the judge.|
“I think her decision is a positive development because it will make the process more efficient,” says Elaine Craig, an assistant law professor at Dalhousie University and one of four law professors who filed the initial complaint to the CJC after reading Camp’s ruling in R. v. Wagar.
She says she was pleased to hear Ganley’s decision to step up the inquiry because of the potential harm to public perception of the judicial system.
“I think it’s warranted under the circumstances,” says Craig.
“The reality is sexual assault complainants continue to report a fear of the criminal justice process. Cases like R. v. Wagar, and the now well-known statements made by Camp in that proceeding, most certainly do not help to alleviate this problem.”
Craig and her peers filed a complaint with the Judicial Council against Camp for his comments during the 2014 Provincial Court of Alberta trial in which a 19-year-old woman accused a Calgary man of sexually assaulting her during a house party. Their complaint states Camp was contemptuous of sexual assault laws and rules of evidence, going as far as to ask the complainant “why couldn’t you just keep your knees together” and why she didn’t explain to the court better “why she allowed the sex to happen if she didn’t want it?”
Camp acquitted the accused following the trial, but that decision was overturned on appeal.
The appeal court ruled Camp’s comments gave rise to doubts about his understanding of the law governing sexual assault, the meaning of consent, and restrictions on evidence of a complainant’s sexual activity.
By the time the appeal ruling had been released last fall and the issues came to public light, Camp had been promoted to the Federal Court. He has since been barred from hearing any matters until the inquiry is complete and was ordered to take sensitivity training.
“As we wrote in the complaint, our review of the transcript in R. v. Wagar led us to the conclusion that this was conduct that would warrant removal,” says Craig. “It will be up to the inquiry panel to decide, based on all of the information, whether they agree.”
Camp issued an apology in November, following the announcement by the Federal Court he was to undergo the training, stating.
“I have come to recognize that things that I said and attitudes I displayed during the trial of this matter, and in my decision, caused deep and significant pain to many people. My sincere apology goes out, in the first place, to the young woman who was the complainant in the matter,” he said.
The CJC says federal Justice Minister Jody Wilson-Raybould has been invited to designate one or more lawyers to the committee that will otherwise be comprised of judges who are members of the council. The council says the committee’s composition will be made public once it is in place. The hearings will be public.
The B.C. government has appointed three new Provincial Court judges to start in early 2016.
During Jamieson’s 27 years in the legal profession, he has practised in all levels of B.C. courts. After graduating in law from the University of Manitoba, Jamieson earned a master’s degree from the University of British Columbia. His career has included research, teaching and private practice. Since 2002, Jamieson has been legal officer for the office of the chief judge for the B.C. provincial court.
Lee’s legal career encompasses 24 years of experience with criminal, family, and civil litigation, as well as real estate, personal injury, and builders’ lien litigation. After receiving his law degree from UBC, he worked with a number of small- to medium-sized law firms and, since 2001, has been a lawyer with the family maintenance enforcement program in both the Provincial Court and B.C. Supreme Court.
Seagram has practised criminal law in Vancouver, the Fraser Region, Penticton, and Nelson since his graduation from the University of Victoria Faculty of Law. In addition to his career as Crown counsel, he has worked in private practice and been a member of the Mental Health Review Board. An active volunteer in his community, Seagram has been involved as a coach, referee and fundraiser for youth hockey, soccer and gymnastics clubs.
The judges will be assigned to locations determined by the chief judge to meet the needs of the court. In 2015, 15 judges have been appointed to address recent retirements and vacancies. B.C. has about 150 provincial court judges who serve more than 80 court locations.
The first self-identified transgender judge has been appointed in Manitoba.
Kael McKenzie is Manitoba’s newest provincial court judge, officially appointed on Thursday. According to his former professors at the University of Manitoba where he studied law — the first transgender judge in Manitoba and possibly Canada — is unequivocally an excellent choice.
“I’m just one example of many of my colleagues and people who are attaining certain levels of notoriety that can show people we are just people,” McKenzie told the CBC. “We are just doing what everyone else does and we can achieve whatever we want to do with hard work and dedication.”
Reacting to the call, McKenzie told CBC: “I had to ask them to clarify: ‘What do you mean I’ve been appointed?’ It was surreal for me.”
“Of course he is thrilled,” says Lorna A. Turnbull, the dean and McKenzie’s former professor and research partner at University of Manitoba’s Robson Hall Faculty of Law. “He is really modest which is true and so he was surprised, the rest of us weren’t surprised. It is a perfect appointment.”
While McKenzie, a former Crown, took much of the spotlight, the province also appointed Margaret Wiebe as chief judge of the Provincial Court last week.
“Judge Wiebe’s experience in handling complex matters as a lawyer and most recently as a judge, have demonstrated her expertise and commitment to the principles of justice that we all share,” said attorney general Gord Mackintosh in the press release.
Manitoba is a leader when it comes to provincial court appointments “in the last 15 years, in terms of appointing a very diverse bench,” says Debra Parkes, associate dean at Robson Hall.
In 2003, Tim Preston was appointed to the provincial court of Manitoba, “and he is an ‘out’ gay man, and at that time there wasn’t very many gays or lesbians who are ‘out on the bench,’” she notes.
For Turnbull, the news of McKenzie’s appointment came during a bencher meeting at the Law Society of Manitoba where she sits as faculty bencher. She says applause broke out and reaction over the course of the day was, “unequivocally, across the board, everybody thinks this is a fantastic appointment.”
And is McKenzie the first self-identified transgender judge in the province?
“I think it is true. There may well be other transgendered judges that we don’t know, because sometimes people make a transition without [publicly speaking out] . . . and earlier in their career so it isn’t something that is known,” she notes.
“I am not aware of anybody who has been appointed . . . who is a transgender person,” says Parkes.
The Canadian Bar Association says it cannot verify whether McKenzie is the first transgender judge, because it does not keep records of judicial appointments. It does address needs and concerns of lesbian, gay, bisexual, transgendered and “two-spirited people” within the CBA according to its website, but that is done strictly on a volunteer basis.
McKenzie’s transition was a very public affair, because he transitioned following law school and during the beginning of his legal career says Turnbull.
After receiving his law degree from the University of Manitoba in 2006, McKenzie practised family, commercial and civil law with Chapman Goddard Kagan in Manitoba. He has been a Crown attorney in the province for five years. Previously, McKenzie served in the Canadian Forces and managed on-campus security services at a local university.
The way the Manitoba community accepted the gender change was particularly remarkable says Turnbull.
“It was simply a non-issue in this community when he made that transition,” his colleagues, the profession, politicians and the judges accepted it seamlessly. “We know you, you are one of us,” was the gist, she says.
Turnbull says he has a good range of experience and is someone “who understands the average person.”
The real story — she says — is about what a great judge he will make.
Parkes agrees. “The point is that Kael is very well qualified, [an] incredibly competent lawyer, bright, all of that, so you don’t want that to overshadow, or have people somehow think that . . . it wasn’t an appointment based on merit, of course it was.”
"I think the bench should be representative of Manitobans, and I think my legal qualifications are probably the biggest part of what has gotten me here today," McKenzie told the Winnipeg Free Press.
During his third year in law school — as president of the law student association — McKenzie was really able to position the students and faculty as “co-creators of the learning environment,” there had been a spell prior to that where the student government was really all about parties says Turnbull.
He worked with student groups making sure that the bursary and financial support system really was accessible. McKenzie was always “really thinking deeply about what a law school should be from a student point of view, but with that longer term perspective” she says.
Although not unanimous, the Canadian Judicial Council has reviewed the recommendations of its inquiry panel on Quebec Superior Court Justice Michel Déziel and recommends he remain on the bench.
In a release from the CJC Dec. 3, the CJC states it presented its report to the Minister of Justice with three of the 20-member council dissenting.
“This case was about Mr. Déziel’s participation, before he became a judge, in the unlawful financing of a municipal election. Council agreed with Justice Déziel that this past conduct was inappropriate,” the release states. “However, with three members dissenting, Council found that the judge’s past action, when considered against a number of factors, did not undermine public confidence in his abilities to discharge the duties of his judicial office.
“For this reason, Council’s recommendation to the Minister of Justice is that Justice Déziel not be removed from office,” the CJC states.
Eugene Meehan of Supreme Advocacy LLP in Ottawa called it “a classic case of trying to balance past bad conduct versus present good conduct.”
“Except this time it’s a judge in the crosshairs; Canada’s head judges say 17-3 it’s the latter, [that] present good conduct governs,” he says.
In its report to the justice minister, the majority of the council wrote:
“In our view, it is significant to note that a lawyer is bound by the same ethical principles as a judge, when it comes to the core attribute of integrity. There may be those that disagree and would suggest that judges are bound by an even higher standard than lawyers. The point is, that at the time of the impugned conduct Me Déziel was bound by a code of conduct and a statute which he violated.
“His violation was dishonest and contrary to law. However, perfection is aspirational and ideal, not a condition precedent to maintaining one’s license as a lawyer or to maintaining the office of a judge.”
The council, chaired by Alberta Court of Queen’s Bench Chief Justice Neil Wittmann, noted while Déziel’s actions were wrong, they “cannot be objectively characterized as being on the high end of the spectrum of misconduct.” And his actions were not criminal in nature with only minimal fines of about $100 under the Municipal Elections Act.
They added that he was not acting as a lawyer, nor did he use his lawyer’s office to facilitate a transfer of funds.
The dissenting ruling, written by Newfoundland & Labrador’s Chief Justice Derek Green with Chief Justice of the Court of Queen's Bench of New Brunswick David Smith and Federal Court Justice Richard Bell concurring, concludes that the Marshall test had been satisfied and that “a conclusion that Justice Déziel has become incapacitated or disabled from the due execution of the office of judge within the meaning of s. 65(2) of the Judges Act should be reached, and a recommendation for removal from the Bench should be allowed.”
Allegations against the judge 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.
In June, an independent inquiry committee created in 2013 to investigate the judge’s conduct submitted a report to the CJC, also recommending he not be removed based on his displayed remorse, their opinion he would not reoffend, and because 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.”
Meehan says despite the finding to keep the judge on the bench, he suspects “that for the rest of this judge’s career he’ll be under a certain juridical microscope wielded by the CJC.”
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