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.”
A committee looking into the conduct of Quebec Superior Court Justice Michel Girouard has recommended he be removed from the bench.
The Canadian Judicial Council released the committee’s report this morning of public hearings held in May. The three-person committee gathered relevant information and heard from a number of witnesses, including Girouard. It included chairman Richard Chartier, chief justice of Manitoba, Chief Justice of the Federal Court Paul Crampton and lawyer Ronald LeBlanc of LeBlanc Maillet in Moncton, N.B.
The allegations of a convicted drug dealer turned police agent and a confidential police informant were at the heart of the hearings into Girouard’s conduct of Quebec.
The judge was alleged to have purchased and consumed illegal narcotics while he was a lawyer in northwestern Quebec, according to documents filed with the council.
Girouard was appointed to the Superior Court of Quebec on Sept. 30, 2010. He had been practising law in the Abitibi region of Quebec since 1985. In November 2012, Francois Rolland, then chief justice of the Quebec Superior Court wrote to the CJC to request a review of Girouard’s conduct in the wake of being notified of allegations against the judge by Quebec’s Director of Criminal and Penal Prosecutions.
“On the basis of the evidence introduced at the Inquiry, the committee could not conclude that the judge had participated in a transaction involving an illicit substance,” the CJC said in a press release. “The evidence presented to the committee was insufficient for it to draw any conclusions about the judge’s use or purchase of cocaine.”
However, the press release noted, the inquiry panel did find it disturbing that, in their final submissions, counsel for Girouard “suggested, in veiled terms, that police forces may have interfered in the case, as is to retaliate against Justice Girouard.”
While the inquiry panel didn’t find enough evidence on the drug allegations, Crampton and LeBlanc found Girourad’s testimony contained several contradictions, inconsistencies, and implausibilities.
They felt these raised questions about the judge’s credibility and integrity, and concluded Girourad was deliberately trying to mislead the committee.
“[W]e are of the opinion that the constellation of contradictions, inconsistencies and implausibilities in Justice Girouard’s testimony raises serious questions about his credibility,” Crampton and LeBlanc wrote in the report. “In our opinion, Justice Girouard deliberately attempted to mislead the Committee by concealing the truth.”
As a result, they recommended Girourard be removed because with “the integrity of a judge, there can be no half-measure: either the judge has integrity, or he does not. Through his lack of candour before the Committee, Justice Girouard raised some serious doubts about his integrity, which inevitably undermines public confidence.”
Chartier disagreed saying the inconsistencies weren’t sufficient to warrant Girourad’s removal.
“In my opinion, in order to conclude that Justice Girouard deliberately attempted to mislead the Committee or that he lied during a disciplinary process, there needs to be more evidence than simply the Committee’s credibility assessment of Justice Girouard.”
The CJC says it will now consider the inquiry committee’s report.
Girourard and independent counsel Marie Cossette will also be able to provide further written submissions.
The press release also notes because this matter was commenced before the coming into force of the July 2015 Bylaws, the previous bylaws apply.
After considering all the issues, the CJC will decide on whether to recommend to the minister of Justice whether Girouard should or shouldn’t be removed from the bench.
Since it was created in 1971, the CJC has only three times recommended a judge be removed from office. In reality, however, as the CJC’s web site points out, “Parliament has never had to face such a situation, but sometimes a judge will retire or resign before that step is taken.”
The full CJC inquiry panel report is available here.
As the Supreme Court of Canada prepares for its fall session, its newest judge, Justice Russell Brown, was officially welcomed in a ceremony held at the court in Ottawa this morning.
Brown was appointed in late July by Prime Minister Stephen Harper to replace retiring justice Marshall Rothstein, who left the bench on Aug. 31.
Brown was appointed to the Alberta Court of Appeal in Edmonton last year after just 13 months on the Court of Queen’s Bench. He also served as a judge of the Court of Appeal for the Northwest Territories and a judge of the Court of Appeal of Nunavut.
Before being appointed to the bench, Brown served as an associate professor and associate dean at the University of Alberta Faculty of Law. He was also associate counsel with Miller Thomson LLP in Edmonton and practised at Carfra & Lawton LLP and Davis & Co. (now DLA Piper LLP) in Vancouver.
A rec hockey player in Ottawa has been granted a new trial after a judge was found to have erroneously applied speculative reasoning to her decision that convicted him of blindsiding another player.
|A rec hockey player in Ottawa has been granted a new trial after the judge was found to have erred in convicted him of blindsiding another player. (Photo: Shutterstock)|
At the centre of the determination of guilt at trial was whether an on-ice collision involving MacIsaac and another player was an unavoidable accident or a deliberate blindside hit.
On Monday, the Ontario Court of Appeal in R. v. MacIsaac allowed the appeal and ordered a new trial, saying MacIsaac did not have a fair trial because the judge “engaged in impermissible speculative reasoning in reaching her verdict.”
On March 15, 2012, MacIsaac’s team the Tiger-Cats was playing in a senior no-contact men’s hockey league in Ottawa against the Pirates. During the last 47 seconds of the game, with the Pirates up by two goals, MacIsaac collided with Pirate Drew Casterton.
Casterton was knocked to the ice on his back and suffered lacerations to his face, a concussion, and the loos of two front teeth. MacIsaac was charged with one count of aggravated assault.
The court heard from 11 witnesses as well as a referee and various members of both teams. The Crown held that MacIsaac deliberately delivered a blindside hit to the left side of Casterton’s head.
The goalie on the Pirate’s team testified he saw MacIsaac leap off the ice, raise his arms, and hit Casterton in his shoulder and head area. He said MacIsaac’s arms hit Casterton’s head and that his facemask may have hit Casterton’s face.
The defence’s position was that the incident was an accidental, unavoidable, face-to-face collision.
At trial, Ontario Court Justice Diane Lahaie said most the witnesses showed “a clear bias depending on which of the two hockey teams he belonged to.”
She found the referee, was the sole “completely neutral” witness and that his evidence was credible and reliable. While his account of MacIsaac’s and Casterton’s positions on the ice — with the pair heading towards the puck behind the net — differed from that of the other witnesses, she accepted the entirety of his evidence aside from his testimony regarding a tripping incident earlier on the same play.
Lahaie also accepted all of Casterton’s testimony. The injuries to the left side of his face were consistent with his testimony about where he was looking and supported the conclusion that this was not a “face to face ‘head on’ collision.”
Lahaie rejected the evidence of one of MacIsaac’s teammates. She was “not prepared to find beyond a reasonable doubt” that the teammate had been on the ice at the time of the incident because it was “not logical” for three Tiger-Cats defencemen to be on the ice with the team down by two points and with so little time left in the game.
“Mr. MacIsaac intended to deliver a blindside hit to Mr. Casterton’s head and knew of the risks associated with head shots. He delivered it anyway as his frustration and desire for revenge took over,” she said.
She rejected MacIsaac’s claims that he left his usual position as a defenceman in an effort to steal the puck from Casterton and score a goal, that Casterton made an unpredictable turn rendering a collision unavoidable, and that MacIsaac did not have sufficient control over his speed to avoid hitting Casterton.
On the issue of consent, Lahaie found the hit amounted to a marked departure from the conduct expected in a no-contact hockey league that “consent to such conduct cannot be given.” As for mens rea, she held that MacIsaac foresaw the risk that his actions would cause serious bodily harm, but nonetheless chose to take that risk.
In a case where the circumstances are not proven or the inferences are not reasonable, or both, the factual inference drawn would be described as “speculative” or “unsupported” and if material to the outcome would not withstand appeal, says Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP.
“The criminal standard was being applied in this case. Perhaps an inference that is more of a stretch might be accepted in a civil context but you couldn’t do it in a criminal context where you might be putting someone in jail,” says Virc.
MacIsaac’s lawyers said Lahaie misapplied the law of consent and failed to consider whether MacIsaac had an honest but mistaken belief in consent.
He thought players in the league consented to any type of bodily contact that was foreseeable in a game, including deliberate blindside checks. The fact defence counsel did not raise the issue did not relieve the trial judge of her obligation to turn her mind to the defence and whether it was applicable in the circumstances.
The appeal court considered whether the trial judge engaged in impermissible speculation and, did she reverse the onus of proof? It also considered whether Lahaie erred in failing to consider the defence of “honest but mistaken belief in consent?”
Writing for the Court of Appeal, Justice C. William Hourigan wrote: “I agree with the submission of the appellant that the trial judge engaged in impermissible speculative reasoning in rejecting the evidence of the defence witnesses. This impaired the appellant’s right to a fair trial. On this basis, I would order a new trial. It is unnecessary, therefore, to consider the other issues raised by the appellant.”
It won’t be just Marc Rosenberg’s brilliance that his former colleague, former chief justice of Ontario Warren Winkler, will remember. It will also be his smile.
|Marc Rosenberg passed away Aug. 27 after a battle with brain cancer.|
“You know, I was interrupting his work, but it never mattered. It was a big smile, and he’d turn around and the conversation would start like it had never ended from the last time you saw him.”
Winkler is one of many members of the Canadian bar and bench mourning this week. Rosenberg, a former judge of the Court of Appeal for Ontario and one of the country’s foremost experts in criminal law, died on Thursday after a battle with brain cancer. To many of those who worked with him, Rosenberg was not just a colleague but a dear friend.
“He was just one of those people who had an impact on many, many people in different areas, and he wasn’t one dimensional by any stretch of the imagination,” says Winkler. “People he came in contact with, he made a mark on them. He just had that way about him, because he was a person with a huge amount of depth but he also wasn’t reclusive — he was a warm person.”
Born in 1950 to Ethel and Morris Rosenberg, he was called to the bar in 1976 after graduating from Osgoode Hall Law School. He practised criminal law at Greenspan Rosenberg and Buhr for nearly two decades until 1995, then served as a Court of Appeal judge for almost two decades more, retiring earlier this year. He also served as assistant attorney general for the ministry’s Public Law and Policy and Civil Law divisions.
Rosenberg’s accomplishments were many. He was a director of the Criminal Lawyers’ Association from 1987 to 1991, and was a non-bencher member of the Law Society of Upper Canada’s legal education committee. He served as editor of Martin’s Annual Criminal Code and wrote many articles on criminal law and the Canadian Charter of Rights and Freedoms.
"Justice Rosenberg had a decades-long association with Canada Law Book, and later with Carswell, as author/contributor to numerous prominent publications, including the highly-regarded Martin’s Annual Criminal Code and Martin’s Ontario Criminal Practice. It was both a pleasure and a privilege to work with him. He will be missed," said Rachel Francis, the vice president, legal and regulatory, at Carswell.
Rosenberg served as consultant on a number of influential commissions, including the Law Reform Commission on Electronic Surveillance and on the Powers of the Attorney General, the Donald Marshall Inquiry, and the Government of Ontario’s Justice Review Project, according to a biographical note on the Court of Appeal web site. He also taught at Osgoode, and around the world as a judicial associate with the National Judicial Institute.
Winkler’s friendship with Rosenberg began, he says, soon after he himself became a judge.
“He was one of what I call my ‘have-coffee-with people,’ because I would go in in the morning early, he would go in in the morning early, and we would either go out for a coffee or we’d sit in his office and have a coffee and just talk about general things,” he says.
Rosenberg’s many achievements, says Winkler, stemmed not only from his widely recognized brilliance but also his work ethic.
“He was a tireless worker, and a perfectionist,” says Winkler. “So everything that he did reflected that.
“From my point of view as the chief, if I needed anything done at all by way of extra things, for him to help with, he was always a volunteer. . . I could go to him and he’d take on any sort of task or job no matter how busy he was, and you didn’t have to worry about it — he’d get it done.”
Rosenberg was also a passionate teacher.
“Whenever he wasn’t sitting and doing his judicial work, every other spare moment he spent teaching both across Canada and internationally to both lawyers and other judges. And he did that through the judicial council or through anybody who asked him, frankly.
“I always used to kid him about his air miles . . . because he was always on an airplane going somewhere, to the Orient or Europe or the U.S. to teach, because he was so good at it and so popular.
“He was in great demand, and he would be all over the world, appearing at conferences and teaching other judges and they loved him. Everybody loved him because he was a very good teacher, he was very clear and he simplified everything down so that everybody could understand it,” Winkler says.
Rosenberg was predeceased by his wife Martha, whose death a few years ago dealt him “a huge blow,” says Winkler. He is survived, according to the Court of Appeal web site, by his partner Priscilla Platt and two children, Debra and Daniel.
“I call him a dear colleague but also a dear personal friend,” Winkler says. “And I say I’m going to miss him immensely.”
Toronto criminal lawyer Brian Greenspan, brother of Rosenberg’s late partner in private practice, says he was very well described in the funeral notice written by his family.
“They said he was a man of great integrity, intelligence, and judgement, and of unfailing humility and grace,” says Greenspan. “Knowing Marc as I did for over 40 years, I think he would have smiled and told them ‘well done,’ because I think that probably most aptly describes who he was, the type of person he was, and the type of lawyer and judge he was.
“It’s a great loss to the community and a great loss to the law.”
The notice is viewable on the web site of Benjamin’s Park Memorial Chapel, site of Rosenberg’s funeral this afternoon.
Anthony Moustacalis, current president of the Criminal Lawyers’ Association, knew Rosenberg when we worked in private practice alongside Eddie Greenspan.
“He was at the time, I would say, the leading criminal appeal lawyer in Canada,” Moustacalis says.
As a legal scholar, Moustacalis says, Rosenberg “had the uncanny ability to synthesize contradictory legal cases and explain how they all fit together, which was always quite remarkable.”
As a judge, he recalls, Rosenberg “was always someone who on and off the bench was very soft-spoken, but a very incisive thinking person,” whose decisions were referred to by “all other courts in Canada, at all levels.”
Among his most influential decisions, Moustacalis says, was in R. v. Priest, 1996, in which Rosenberg argued against custody for a young first-time offender.
In a prepared statement, Ontario Attorney General Madeleine Meilleur said: “I was greatly saddened today to learn of the death of the Honourable Marc Rosenberg, a respected and influential figure in the Canadian legal community. . . . Today my thoughts and prayers are with Justice Rosenberg’s family, many colleagues and friends. I join with them in mourning his loss. He will be missed.”
CALGARY — Supreme Court Chief Justice Beverley McLachlin says she has no concerns about newly appointed Justice Russell Brown’s past political writings before his appointment to the bench.
|'I welcome a robust debate about the role of the court and how we do our job,' said Chief Justice Beverley McLachlin this morning at the CBA meeting. (Photo: Glenn Kauth)|
McLachlin pointed to Brown’s previous role as a legal academic and said it’s common for people to express their opinions before their appointment to the bench.
“He comes to the court with a rich background as a practitioner and law professor,” McLachlin said in her remarks to the CBA council as its annual conference gets underway.
At the press conference, McLachlin also addressed recent commentary that the top court often acts as a type of unofficial opposition to the federal Conservative government.
“I leave the labels to other people,” she said, suggesting the court’s role is to answer the questions put to it in accordance with the law.
“I welcome a robust debate about the role of the court and how we do our job,” she added.
But asked whether she accepts the label as an unofficial opposition, McLachlin was categorical.
“Of course not,” she said. “I’m a not a politician. I’m a judge.”
In her remarks to the council this morning, McLachlin said the top court had had a “productive year.” Citing its busy caseload, she noted some of the key cases it had dealt with, including the Carter v. Canada (Attorney General) matter that dealt with assisted suicide.
She also touted improvements at the Canadian Judicial Council, including providing more detailed information to complaints about the review of the matter; streamlining the conduct review process; and inviting laypeople to participate on review panels that decide whether to refer a complaint to an inquiry committee.
Besides McLachlin’s remarks, the CBA council began considerating a number of resolutions. Several of them dealt with aboriginal matters, including a call to boost the independence of the Specific Claims Tribunal following recent changes by the federal government.
Another key concern arose in a motion dealing with increased difficulty in access to counsel by inmates due to restricted visiting hours, limited phone time, and an inability by lawyers to see clients once they arrive at institutions.
“The conditions really are getting worse and worse,” said Michael Jerch, chairman of the CBA’s national aboriginal law section.
Another issue dealt with lawyers’ concerns about the overuse of and lack of law around solitary confinement in prisons.
“Generally speaking, it’s in a very vague type of realm,” said Bibhas Vaze, a Vancouver lawyer who moved a resolution calling for the CBA to urge governments to pass legislation and policies to restrict and regulate the use of solitary confinement.
The CBA council continues today with additional resolutions around matters such as doctor-assisted suicide and remarks from Janet Fuhrer, the association’s incoming president.
In what many are calling a controversial and conservative choice, Prime Minister Stephen Harper has appointed Alberta judge Russell Brown to the Supreme Court of Canada, replacing Justice Marshall Rothstein.
|Justice Russell Brown at his swearing in at the Court of Queen's Bench of Alberta in February 2013.|
“I’m a fan,” says Craig Jones, professor of law at Thompson Rivers University in Kamloops, B.C. “I think it’s a great long-term appointment.”
Brown, a former associate dean at the Faculty of Law at the University of Alberta, was a guest lecturer at TRU in February. Jones and Brown share an academic interest in what Jones calls “the very sticky field of causation in tort law.”
Associate professor Margaret Hall of the Faculty of Law at Thompson Rivers University called Brown “a truly outstanding scholar.”
“I have known Russell Brown since young and carefree undergraduate days at UBC. To my delight, we both grew up to become torts professors and became re-acquainted with each other in that professional and intellectual capacity,” she says.
While there’s some criticism that Brown has been a judge for just 2.5 years, others note he’s not the first to have an expedited path to the SCC.
Chief Justice Beverly McLachlin was appointed at the age of 45 (Brown is 50), and both with experience from private practice and academia, says Eugene Meehan of Supreme Advocacy LLP in Ottawa and a former executive legal officer at the SCC.
“With the court’s current workload mainly criminal, he will adjust, but his academic experience of critically analyzing and writing about the law will serve him well,” says Meehan.
He adds Brown’s time as an associate dean will help him in terms of “building relationships and putting out fires.”
University of Alberta law school professor Peter Sankoff says Brown’s varied background will benefit the SCC.
“Anytime someone makes a rapid rise to the Supreme Court there’s always controversy and it’s not unprecedented,” says Sankoff. “Sometimes having someone who has done a lot of different things and then moves to the judicial ranks in a short time can bring different perspectives to the bench.”
Sankoff, a professor and author of criminal law, wouldn’t comment on whether Brown has “conservative” leanings, saying rather he sees him as “a guy with an open mind.”
“I’ve read a lot of his decisions on the bench and I’m reluctant to peg him as an ideologue of one sort or another,” he says. “What surprised me was how rigorous and well thought out a lot of his criminal law decisions [are]. It doesn’t’ mean I agreed with every one of them but at the end of the day I couldn’t deny they were well thought out.
“He is a hard working guy. I think he has a strong will and strong thought about things but I know he’s open.”
Brown was appointed to the Court of Appeal in Edmonton last year after just 13 months on the Court of Queen’s Bench. He also serves as a judge of the Court of Appeal for the Northwest Territories and a judge of the Court of Appeal of Nunavut. He previously served on the Court of Queen’s Bench of Alberta.
Before being appointed to the bench, Brown served as an associate professor and associate dean at the University of Alberta Faculty of Law. He was also associate counsel with Miller Thomson LLP in Edmonton and practised at Carfra & Lawton LLP and Davis & Co. (now DLA Piper LLP) in Vancouver.
Brown’s appointment has also raised eyebrows in part due to his connection as an adviser in 2012 to the Justice Centre for Constitutional Freedoms, a conservative legal group.
“He was a very well regarded lawyer and he is an excellent teacher,” says Jones. “What makes him a great judge is he is an extremely down to earth, pragmatic, very human guy and he brings that, notwithstanding people’s concerns about this or that connection to the JCCF.”
Sankoff says judicial labels get thrown around a lot and there are different types of conservatives. His view is Brown has a “healthy respect for judicial precedent” which he says is the traditional view of a conservative.
“He has a healthy respect for the rule of law and precedent and that’s a welcome trait to add to the Supreme Court. That is what conservative used to mean. That can be both good and bad.”
Jones predicts Brown will be “leading some advances in less spectacular but very important areas of the law” such as tort law.
“While it [tort law] hasn’t been neglected, the approach of the Supreme Court of Canada has been tentative and inconsistent. I think he has a very strong understanding of the sort of ebbs and flows of the tort jurisprudence and a way of harmonizing it into a concept that serves social objectives and maintain some intellectual integrity,” he says.
“He has a really good way of boiling things down to common ideas and looking through threads of cases for some sort of conceptual integrity and often nails it.”
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