Category: Legal Issues

Justice Belobaba’s Decision in The City of Toronto et al v. Ontario

This is a brilliant decision which everyone must read.

I commend it to you. Check it out.  It can be found on the internet.

My comments will follow once I have finished the two further films I am seeing today at TIFF.

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The Fight against Doug Ford’s Attack on Toronto has Begun

On Monday, the Toronto City Council continued its debate on their response to Doug Ford’s changing the ward boundaries and cutting City Councillors from 47 to 25 in the midst of a municipal election campaign. The law which purports to authorize Ford’s actions was not yet introduced at Queen’s Park when the debate on what is an existential issue for the City of Toronto had already begun.

“Bill 5, The Better Local Government Act, 2018” (who says?) was introduced for first reading only on Monday afternoon. Tuesday, second reading was delayed by an Opposition amendment. It is now scheduled for second reading tomorrow, Thursday, August 2nd. The expectation is that the government will use every effort to push the law through as quickly as possible without any Committee hearings or any consultation.

I attended the City Council debate on Monday and was struck by how much time the hard core of councillors who supported Ford’s actions spent pontificating about the advantages of reducing their number to twenty-five. “Twenty-five reps works well for the province and the federal government;” they said, “it can work well for municipal government as well. It’s “a welcome move,” “taxpayers will be happy,” “a first step to ending the chaos at city hall,” “there is no need for any referendum; that occurred on June 7th,” “the province has all the power, we can do nothing about it, move on.”

Another group of councillors supported reducing the wards and the number of councillors but were very unhappy with the process and timing. They made it clear that their constituents did not like arbitrary change mid-way through an existing election.

The majority of councillors were adamant that this was an arbitrary interference with the fundamental governance of City Council without consultation and in the middle of a municipal election, according to the existing law and set for October 22nd. Reflecting a multi-year Ward Boundary Review undertaken by the City in recent years and conducted with significant public and professional consultation, the existing law provides for 47 wards and 47 councillors. These numbers provide approximate voter parity and reflect changing voter populations in different parts of the city. Numerous diverse candidates from communities not previously represented at Council have already registered as candidates “for the right reasons.” Now no one knows what is going on. And the City Clerk has made it clear that it will be very difficult, if not impossible, to accommodate the proposed changes in preparations for the current election.

Several councillors spoke about the unique governance structure of the City of Toronto, the multiplicity of community councils staffed by local councillors, committees, commissions, boards, and institutions which now require councillor participation and already have trouble finding a quorum. Others spoke about the work of city councillors where they must be responsive to personal, local concerns, development applications, the desires of multiple Business Improvement Areas, residential associations, community groups, the nitty-gritty of city life which puts more demands on local politicians than on federal and provincial representatives. If immigration is the primary preoccupation of M.P.s, provincial M.P.P.s are preoccupied with education and health care issues. Everything else falls to the municipalities.

Others noted that the actions of Doug Ford were directed only to the City of Toronto. If the number of municipal councillors is to be determined by using provincial and federal constituencies, many Ontario cities would be reduced to one councillor, or perhaps a councillor they would share with another town. Councillor Shan noted that Scarborough, with a population of over 600,000, now has six Councillors and would be reduced to three under the new rules. Markham, with a population of 350,000, has twelve. Already under the existing rules, Toronto has more constituents per councillor than any other city in the province; under the new rules, the numbers would double. So much for voter parity which is supposed to be a fundamental principle of the right to vote in Canada.

Many councillors were particularly articulate about the significance of Ford’s attack on the city and what must be done. See Gordon Perks on YouTube. He is absolutely right. If we value our municipal government, and the work that city councillors do on our behalf, we have to respond.

City Council has voted its opposition to the reduced numbers, and has requested the provincial government to conduct a binding referendum before proceeding with the legislation or, alternatively, to permit the City to put a question on the 2018 ballot. It has also requested the City Solicitor to consider the validity and constitutionality of any provincial legislation, including its potential violation of the rights of the citizens of Toronto to fair and effective representation, the practicality of conducting the election, the Clerk’s capacity to implement the changes, and any errors or flaws in the legislation and to report back to City Council at a special meeting… on Monday, August 20, 2018 with options for City Council’s consideration. (Passed 31:10)

Former mayor David Miller, lawyer David Butt in the Globe and Mail, and I have called for litigation to challenge what Ford is doing in court. There is jurisprudence which describes the nature of the “right to vote” under the Canadian Charter, but my lawyer son tells me that that the Charter “right to vote” does not apply to voting at the municipal level. Previous efforts to use the courts to stop the amalgamation of the City of Toronto were unsuccessful. This case, however, is unprecedented. How the province has proceeded, the lack of any consultation with those affected, and the timing of the change of the law (in the middle of a current election campaign) all distinguish this case from prior jurisprudence. If ever there were a fact situation that demonstrates the most arbitrary provincial action against a major city within its jurisdiction, this it it. It would make an excellent test case.

In the meantime, we have to follow Councillor Perks’ advice and make sure that the provincial government (including the alleged “adults in the back rooms”) know that what they are doing is beyond the pale. As Councillor McMahon said on Monday, “It is simply wrong.”

Tomorrow, those who want to show their opposition are invited to attend Queen’s Park and be present in the public gallery when the government seeks to go forward with second reading. There is also a rally scheduled for the lawn of the Legislature at 11:30. See you there.

 

 

 

 

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Drama on the Seawalk

Squawking gulls and cranky crows are a sure sign of trouble. Moving briskly west on the seawalk below my Vancouver cottage, I was focused on using my Nordic poles to pick up the pace of my early morning walk. The idea was to extend the stride of my step and the length of my arm pull to enhance the benefits of the walk. But the noise of the seagulls and the crows diverted all my good intentions and I stopped to see what was the matter.

Sure enough, at the water’s edge where the tide was retreating from the rocks coated with kelp and rich green algae, a bald-headed eagle was standing on the biggest stone around. Not as large as others I’ve seen, his shiny black feathers and snow-white head still stood as a beacon to the eyes. He stood there as if glaring at the hoards of smaller birds advancing towards him.

At least three large well-fed gulls and three more black crows took up positions around him, all squawking madly as if in a fit of frenzy. A couple of gulls approached, flapped their wings and swooped just above him. Then two cocky crows dive-bombed him from two different directions at the same time. They repeated these actions over and over. It all appeared as a well-choreographed attack, perhaps to protect the favoured feeding grounds of the smaller birds. Eventually, the eagle lifted his large wings and flew away across the bay and high in the sky, the crows and one seagull in hot pursuit.

It occurred to me that this may be an example of allied interspecies coöperation against a common enemy. I would have to ask a naturalist about that. As a friend and I had seen a similar incident about the same time yesterday morning, it probably is a daily ritual at a particularly rich feeding site on the shore. 

Still later on the seawall, I narrowly avoided being hit by a snail-shell dropped by a crow descending over the sidewalk onto the rocks. As there was a live snail inside, we threw the snail onto the seashore for the crow to recover. Alas he was two slow. Another crow which I had not seen must have been watching and waiting. Just as soon as the snail hit the sand, the second crow was on it for his breakfast.

Later on this same walk, I spied a tall heron fishing in a shallow pool between the rocks. He was standing silently and stately, moving slowly and stealthily in search of his food. A bevy of gulls and Canada geese grazed nearby, and a squadron of crows sat on a log watching over the scene. Obviously, these birds coexist peacefully. I guess only the bald-headed eagle is considered a threat.

Update on the litigation between CN Rail and the District of West Vancouver.

In February 2017, I published a post describing CN Rail’s efforts to have the public using the seawalk declared “trespassers.” Their aim is to monetize to the maximum whatever leasehold interest they can enforce against the District. Diane Powers, spokesperson for the District, advised me last week that the Canadian Transportation Agency held a two-day oral hearing in October 2017 on the District’s application for a declaration that it has a “right of way” on whatever the interest held by the railroad. The CTA agreed that they had jurisdiction to deal with the issue but adjourned their decision until the British Columbia Supreme Court ruled on the earlier lawsuit started by CN alleging that the public were “trespassers.”

Ms. Powers told me that it may take another three to five years for the matter to be concluded. In the meantime, the District has refreshed notices to the public indicating that so long as the litigation is ongoing, the District can only do maintenance on the seawalk that affects health and safety. They can change lightbulbs that affect lighting, remove trip hazards, and engage in any storm cleanup. “Cosmetic maintenance” is suspended for the duration. The gardens at 19th Street and 24th Street that mark the boundaries of the seawalk, and the narrow green areas at 21st and 22nd streets, are designated park areas at the foot of District streets. The District will still tend to them. Like most North Shore residents, I have a visceral personal interest in this dispute, and will monitor what happens.

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When is the Trudeau Government going to get rid of Mandatory Minimum Sentences?

I hate to pile on the Liberals when they are down, but a recent editorial in the Globe and Mail and a series of articles by justice writer Sean Fine have raised the outstanding issue of what the government is doing to cut the number of mandatory minimum sentences which are now clogging Canada’s criminal courts.

Historically, Canada had a very few mandatory minimums in the Criminal Code, primarily for serous offences upon which everyone would agree. By 2006, there were 40. By 2016, the number rose to 80 plus another 26 related to drugs under the Controlled Drugs and Substances Act.

Stephen Harper’s “tough on crime” agenda more than doubled the number of mandatory minimums, primarily to satisfy his political base. The Tories pursued this minimum sentence mania as a direct attack on the traditional discretion of judges to impose sentence in the criminal justice system. Historically, judges exercised their discretion based on the facts of the individual case and according to established principles of sentencing in the common law and in section 718 and related provisions of the Criminal Code. All criminal justice professionals, police, corrections and rehabilitative experts agreed that this traditional judicial discretion best serves the interests of victims, offenders, the criminal courts, and public safety. In the face of this expert advice, the Harperites did the opposite.

What has happened post-Harper is a trend which was widely predicted and should be addressed as quickly as possible. For lack of action by Parliament on the issue, Sean Fine reports that judges across the country and at all levels have been left to deal with the situation on an ad hoc basis, as best they can. The Supreme Court of Canada in 2015 struck down the three-year minimum for illegal gun possession in R. v. Nur, and a year later the one-year minimum for a second drug trafficking offence in R. v. Lloyd. They found that the statutory minimums were so excessive in the circumstances that they violated the offender’s 12 Charter rights against “cruel and unusual punishment.” Subsequently courts at all levels, including various Courts of Appeal who define the precedents applicable in their provinces, have made similar findings in cases before them.

The most recent is that of the B.C. Court of Appeal which struck down a six-month minimum jail sentence, and instead imposed a nine-month house arrest, for an Indigenous man who offered his niece $100 in exchange for a sex act. In that case, the Court emphasized its statutory and common law duty to consider the consequences of the sentence on Indigenous people. Now the Attorney General of B.C. is appealing the case to the Supreme Court of Canada arguing that the minimum jail sentence is necessary to protect Indigenous victims.

This case-by-case litigation in courts across the country is costly, counter-productive, and a colossal waste of time and money. A patchwork of contradictory decisions apply different penalties to different people in different provinces and territories. Crown attorneys for the provinces and the federal government waste thousands of dollars defending minimum sentences which did not before exist. Courts are clogged with cases which cannot be resolved because the constraints imposed by the minimum sentences impede plea negotiation. The existing uncertainty encourages unnecessary litigation at great expense to the public and taxpayers alike.

Rationalizing the minimum sentence regime in Canada’s Criminal Code and the Controlled Drugs and Substances Act is a no-brainer. The Prime Minister and his Minister of Justice would be wise to make it a priority.

There are many problems facing Canada’s criminal justice system: delay in the courts, the lack of juries representative of the people, a Criminal Code which reads like the Income Tax Act. All can not be addressed at once

The government has developed new procedures for appointing Supreme Court and Superior Court judges. It has filled many judicial vacancies. Money has been allocated to promote the training of police officers who investigate sexual assault cases so that the rate of cases determined to be “unfounded” declines. This is part of a move to promote “best practices” in Canada’s criminal courts.

If “best practices” is the name of the game, Parliament must deal with the excess of mandatory minimum sentences as soon as possible. The next election will come all too quickly. I would hate to see this promise relegated to the list of the “undone.”

 

 

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Current Legal Issues Worth Attention

1. Sean Fine’s gripping case study on unreasonable delay in the criminal courts: “I know the truth” in the Globe and Mail Focus section, Saturday October 21st.

In July 2016, the Supreme Court of Canada in R. v. Williamson threw out Kenneth Williamson’s convictions for buggery, indecent assault and gross indecency on Byron Ruttan because it had taken 35 months for the case to go to trial. Normally, victims of child sexual abuse are shielded by a court order banning publication of their identity. In August 2017, Mr. Ruttan requested that a judge lift the order so that he could tell his story. The judge agreed.

His story as conveyed to Sean Fine will break your heart. Mr. Ruttan, a fatherless child, was twelve years old at the time of the abuse. Mr. Williamson was his court-appointed big brother, a student at Queens University who later became a teacher. For decades, Mr. Ruttan lived with the effects of the abuse on himself and on his own family (including his children). In 2008, after telling his probation officer what had happened to him so many years before, Ruttan spoke with the police and charges were finally laid against his abuser.

To read why the case took so long to proceed through the courts is to weep. Although his abuser admitted some of the offences and a jury found him guilty of them all, the case is a classic example of how and why the courts repeatedly failed to provide the justice his situation required. I have never read a better rendition of the problem. The story is as searing as the photos taken by Fred Lum which accompany it.

2. Quebec’s Bill 62, forcing women with face coverings to show their faces to give and receive all government services.

By a vote of 66 to 51, the Quebec legislature on October l8th passed Bill 62, An Act to foster adherence to State religious neutrality and… to provide a framework for requests for accommodations on religious grounds… . Unprecedented in North America, the law extends to provincial and municipal services, to public transit, daycare, libraries, medical care, and more. Although popular in the rural areas of Quebec, the new law has aroused a storm of protest in Montreal (where the majority of face-covering women in Quebec live) and throughout the rest of Canada. The debate continues in the press and around dinner tables.

Toronto criminal lawyer David Butt wrote an opinion piece in the Globe and Mail on Friday, October 20th, entitled Quebec ban on face coverings is doomed in court.” His is likely the mainstream legal analysis on the issue, that the law is “a blatant violation of religious freedom guaranteed by the Charter of Rights,” an example of gender discrimination, and more. He explains that any limits which governments impose on such freedom must “be reasonable and carefully tailored to pursue legitimate social objectives” that alleviate some valid harm. Here, what evidence is there of any harm? And the law is vague and so potentially over-reaching that no one knows what it means or how it will be implemented.

So why, he asks, would the Quebec government pass a law which so obviously violates the Charter? Because it is politically useful to cater to majority public opinion, leaving it to the courts “to do the politically unpalatable, but necessary, work of striking down bad laws that violate… minority rights.” He concludes that such political calculation does not excuse the Quebec government which “is catering slavishly to the meanest urges of the voting mob” and encouraging “the infuriatingly persistent social tendency to tell women what their choices mean, and then impose that meaning on them.”

3. Bribery Charges under the Ontario Elections Act thrown out of court.

On October 24th, Judge Howard Borenstein, of the Ontario Court of Justice in Sudbury, acquitted Liberal operatives Patricia Sorbara and Gerry Lougheed of bribery charges under the Ontario Elections Act. He did so on a motion for a directed verdict, before the defence was even called to lead any evidence. As defence counsel Brian Greenspan told the press, “These are rare events. They occur when prosecutions ought not to have brought at the outset… when the law states very, very clearly that there was simply no evidence upon which any reasonable jury could possibly have convicted.” This is a definitive legal result which the opposition parties, who have made considerable political hay over the charges, would prefer to ignore.

Geoffrey Stevens, former managing editor of the Globe and Mail, compared the Sudbury prosecutions to that of Mike Duffy in a piece entitled, “A tale of two senseless and unnecessary political prosecutions,” which will appear tomorrow in the Waterloo Regional Record. I quote: “On the face of it, the two prosecutions… have nothing in common beyond the fact that both involved political figures and allegations of bribery.

Compensation and an Apology to Omar Khadr

I’ve been asked to comment on the current Omar Khadr controversy. I wrote about the Omar Khadr case in an earlier post which will give the essential background. (It can be found here.) Apparently over 70% of Canadians oppose the federal government’s compensation payment of $10.5 million to Khadr, yet over 40% do not know whether he was fairly treated or not. If they don’t know, how can they have an opinion on the wisdom, or not, of the compensation? The Trudeau government paid to Khadr the same amount the Conservative government under Stephen Harper in 2007 paid to Maher Arar, who had been tortured in Syria after being sent there by the United States on the basis of false information from Canada. I agree with the Globe and Mail that compensation in both cases was the right thing. In my view, with respect to Omar Khadr at least, the government got off lightly.

In 2010, the Supreme Court of Canada reviewed the actions of the Canadian government towards Khadr at Guantanamo Bay and found that the Canadian government had clearly breached his rights under Canadian law, the Charter, and various international treaties. The breaches were multiple, grievous, with continuing effects at the time of the Supreme Court decision and into the future. He was a Canadian citizen, born in Toronto, 15 years of age when in July 2002 he was found very seriously wounded and the only survivor of a firefight that destroyed an al-Qaeda compound during the war in Afghanistan. Under Canadian law, he was a young person at the time, yet he was incarcerated indefinitely, refused repatriation back to his native country (unlike British and Australians similarly situated), denied access to counsel, tortured and interrogated repeatedly, including by Canadian intelligence agents and diplomats who shared the fruits of those interviews with US authorities. The videotapes of those interviews by Canadian officials were before the Supreme Court of Canada. Although he later pleaded guilty to having thrown a grenade which killed an American military medic and wounded another soldier, his guilty plea was extorted from him after he had been imprisoned for eight years, tortured and offered a resolution as the only way to escape indefinite incarceration without trial in Guantanamo Bay. In Canadian law, his “confession” would not be admissible and, according to reports, there is little other evidence by which he could be found guilty of the offences alleged against him. When he finally was returned to Canada in 2012, he served further time in a maximum security federal penitentiary until he was moved to a provincial facility and, finally, in 2015, freed on bail.

The Supreme Court of Canada found that multiple breaches of Khadr’s rights violated “the most basic Canadian standards about the treatment of detained youth suspects.” There is no need for any further court action to establish those facts. Those are the facts which call for compensation and an apology. People who insist that the Liberal government has settled this case prematurely apparently do not appreciate that the issue has already been decided by the highest court in the country. Both the Liberal government in power at the time of the interrogations and the Conservatives who resisted later efforts to assert his rights and repatriate him back to Canada were responsible. In the circumstances, settlement is the prudent course of action.

I agree with the Globe and Mail that a civilized justice system does not torture people, even people who are fighting for the other side in a military conflict. “A legal justice system, one operating under the rule of law, does not coerce confessions with violence or threats,” does not single young people out for mistreatment, does not deny habeas corpus or access to a lawyer. The case is about “the rule of law” and the duty of the Canadian government to adhere to the rule of law in its interactions with all its citizens, including those abroad. We are all beneficiaries of the rule of law, never more so than when we find ourselves or our family or friends the focus of unproven allegations or alone, abroad, in trouble. The Canadian military fought for the rule of law in two World Wars, in Afghanistan and in various peacekeeping missions which continue today. Preserving the rule of law sometimes takes lives and sometimes takes treasure.

And I also agree with Colby Cash, writing in the National Post on July 6th:

“The intractable problem with Omar Khadr is simply his existence. The politicians who seem to crave (more of) his blood are… trying to punish the behaviour of his father, and to retroactively abnegate the slack application of dual-citizenship principles that allowed Khadr Sr. to become Canadian while leading a double life as an international terrorist. No one who has read Sophocles or the Old Testament can fail to recognize the mentality at work here. Omar Khadr is the manifestation of a curse upon the state. His personal activity and his ethical culpability are not really the point… It is the Khadr-frenzy crowd… who seem to own magic glasses that can see through time and penetrate the fog of war. They state confidently, as a fact, that Khadr was personally caught using violence against Canadian allies. This proposition seems untried by any forensic method we would expect to receive the benefit of, ourselves… Maybe you believe, to a moral certainty, that he threw the grenade… maybe you believe that Khadr deserves to be treated as if he had been a responsible, independent adult at the time. That is a fair amount of compounded confidence. But even granted all of that, don’t the legal traditions of Canada and the United States, whose courts have both condemned the regime under which he was tried and held, still require him to be given some credit for time served in an extra-national torture shop? Indeed, wouldn’t a non-legal idea of common justice require it? I am not a Christian, so I won’t invoke mercy. That concept does not seem necessary to the argument. But I do notice that no one seems very interested in adding it.”

 

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Three Ds to Reduce Delay in the Criminal Courts

Federal Minister of Justice Wilson-Raybould is meeting with her provincial counterparts next week to discuss delay in the criminal courts. I am a fully retired judge of the Ontario Court of Justice, appointed in the wake of a similar Supreme Court induced crisis on the same issue over twenty-five years ago (in the case of R. v. Askov). During my twenty-year career on the bench, I spent most of my volunteer time as a judge on the issue of delay. And still the problem remains. I have three systemic suggestions to throw into the discussion.

1. Download more “hybrid” criminal offences from the Superior Court to the provincial courts. During the 1990s, the federal government amended the Criminal Code to increase the maximum sentence possible for summary conviction on “hybrid” offences. These are offences where the crown has a choice to proceed by the more complex indictable route or by the simpler summary conviction procedure. Before, the highest sentence on summary conviction was six months in custody. When the amendment “supersized” the cap on sentence for these hybrid offences to a potential eighteen months in custody, crown attorneys assessed the facts of particular cases in light of the higher penalty and, if appropriate, often elected to go ahead by a summary trial in the provincial court. That meant that trials were held more quickly, and the accused had no right to a preliminary hearing. The result was that thousands of cases were downloaded from the Superior Court to the provincial courts, even high-profile criminal trials like those of Jian Ghomeshi and Mike Duffy. That downloading was successful. If the maximum sentence for summary conviction “hybrid” offences were raised again so that it could incorporate more aggravating facts, I suspect that many more cases would proceed in the lower courts.

2. Divert simple drinking and driving cases to an administrative enforcement procedure such as British Columbia implemented in 2010, which was upheld, with some changes, by the Supreme Court of Canada in 2015. When I sat in the Ontario Court of Justice in Brampton, post-Askov, drinking and driving offences made up 45% of our caseload. Even today, drinking and driving cases are the most hotly litigated of charges, and take months to process through the criminal courts. In British Columbia, the Automatic Roadside Prohibition (ARP) scheme provides that drivers who register a “fail” on a roadside breath test can have their licenses suspended immediately for up to 90 days, those who register a “warn” can have shorter suspensions of between three and 30 days, their cars can be impounded, a fine and mandatory remedial education imposed. Apparently, deaths caused by drinking and driving in B.C. have decreased since the administrative enforcement scheme was put in place, and criminal prosecutions of simple drinking and driving charges are down by about 85%. Where there are aggravating factors, a high roadside breath test reading, a prior record of administrative suspensions or criminal convictions, driving while disqualified, or any injury to persons or property, the criminal process should be invoked and sanctions increased. Apparently even MADD Canada is in favour of the B.C. model and has been lobbying the Ontario government to implement it. Now that driving while impaired by marijuana is being added to the Code, a rethink on how enforcement is to be made effective without swamping the criminal courts is imperative.

3. Give the Chief Justice of the provincial courts direct access to the Court of Appeal by enacting a power to “state a case.” Prior to the mid-1990s, Ontario judges had statutory authority to put a factual case to the Court of Appeal for an expedited decision on a legal issue. That power was taken away, a change which in my view has proven dysfunctional. New laws come first to lower trial court judges who have a duty to apply them to the fact situations before them. Sometimes those fact situations are clear and uncontested. The only issue is whether the fact situation involves a breach of the Charter, or some narrow legal issue which needs a definitive resolution by the highest court authority, as speedily as possible.

I had such a case in 2000. It was a simple police stop on the street, a conversation between two officers and a young man, a delay while the police did a computer check on his identity, and then an arrest on unrelated charges. When the charges came before me for trial, both counsel agreed on the facts and the only issue was whether or not the stop amounted to “a detention” which had Charter consequences. As a lower court decision, my written judgment, although published in the national criminal reports and argued repeatedly, had no value as a precedent within the hierarchical structure of our court system. But my case crystallized the issue as a systemic matter. With no power to state a case for an expedited definitive decision from the Ontario Court of Appeal, the issue of what constitutes a detention on the street churned around the lower courts until finally, nine years later, the Supreme Court of Canada decided the issue. Nine years is a long time. Too long.

That case had to do with detention on the streets. There were other issues: whether a new drinking and driving law had retrospective application to cases currently before the courts? whether the crown had a Charter duty to disclose repair records of Intoxilyzer machines? Both technical legal issues which, in my view, caused what I can only consider constipation in the lower courts. The enema of an expedited Court of Appeal decision was needed. 

The existing criminal appellate process in Canada proceeds in a non-systemic, random manner, totally dependent on whether the crown or a defendant has any interest in an appeal. For many pragmatic reasons, neither may want to appeal a particular case, and the issue churns on, wasting endless hours of redundant argument in the lower trial courts. This ad hoc, leisurely and languid appeal process contributes considerably to delay in the courts. If speedy justice is in the public interest, then the Chief Justice of the provincial court has a systemic interest in cutting through the verbiage and getting some authoritative direction on these types of issues on an expedited basis. For this reason, the Chief Justice should be able to “state a case” for a definitive decision from the Court of Appeal. The faster the provincial Courts of Appeal deal with the issues, the faster they will reach the Supreme Court of Canada if necessary, and the faster the lower courts will know how to deal with the trials before them. What’s the downside?

This post was also re-published on my other blog, Re-view From the Bench, on 20 April 2017.

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A Response to Sean Fine and the Supreme Court of Canada on “Justice Delays”

It was gratifying to read Sean Fine’s overview of how Canada’s criminal “Courts [are] shaken by search for solutions to delays” in Saturday’s Globe and Mail. In an intelligent and engaging analysis, he set out the essential message of last July’s Supreme Court of Canada 5:4 decision in R. v. Jordan: that criminal charges are to be tried within 18 months in provincial courts, and within 30 months in Superior Courts, and delays beyond those time periods shall be presumed to be unreasonable. He described the differences of opinion between the different Supreme Court justices, the reaction of the criminal justice system across the country to the new timelines, and the context of this particular decision over time. I commend his report to you.

This is not the first such crisis in the criminal courts. In R. v. Askov (1990), when the Supreme Court also defined what constituted “a reasonable time to trial,” the Ontario crown withdrew thousands of charges because of obvious delay, and thousands more came before the courts when accused persons made their own applications for a stay because of delay. In Ontario, I was one of 36 new judges, and at least two dozen new crown attorneys, appointed by the provincial government to help deal with the existing backlog in the criminal courts, and avoid the situation from recurring. Over 25 years later, Jordan is another SCC decision on the same subject, and another “kick in the pants” from the Supreme Court to all the courts across the country bound to apply their ruling. Equally if not more important, the Supreme Court decision is a clarion call to the federal government responsible for defining the criminal law and to the provincial governments charged with the administration of criminal justice. The Supremes are saying that delay in criminal courts must become a priority.

Sean Fine points out that the Supreme Court agreed on the facts of the particular case before them (that 49.5 months to trial on a charge of possession for the purpose of trafficking is unreasonable), but disagreed on almost everything else. In the fall-out from Jordan, all sorts of questions are being discussed. Some say there is a need to change “a culture of complacency” which exists in the court system; others deny that any complacency exists. Do away with preliminary hearings, implement a triage system, divert less important cases out of the system, require crown attorneys to lay charges and not the police, inject more resources into the system, speed up appointing judges; all are bandied about as obvious “solutions” to the problem.

Finding enduring solutions, however, requires appropriate empirical data about the different ways the system is actually working across each province and across the country. As Professor of Criminology Tony Doob noted in a recent Globe and Mail article with respect to preliminary hearings, such data is non-existent.

Throughout my 20 years on the Ontario Court of Justice, the 1990 Askov “kick in the pants” was a continuing incentive to reform within the Ontario criminal court system. The provincial government appointed more judges and crowns; the provincial bench became more diversified. In 1991, the Supremes mandated full disclosure of the crown’s case to the defence. For a variety of systemic reasons, making that aspiration real took more time and effort than would ever have been anticipated, and still sometimes falls short in particular cases. Thousands of charges were downloaded from the Superior Courts to the provincial courts, eliminating the possibility of a preliminary hearing and inherently ensuring a more speedy trial. This was done by the simple statutory expedient of “supersizing” the possible penalties available for “hybrid” charges (such as assault and sexual assault) where the crown can elect to proceed by summary conviction.

Numerous practices were attempted to reduce delay. We tried two tiers of courts: one in the morning and another in the afternoon; that didn’t work. Special plea courts with judges known to be lenient on sentencing were set up; that helped. Plea courts for early resolution of cases are now the norm. We implemented an intake cycle system where a single judge and crown took ownership of blocks of cases coming into the system with the expectation that they would be resolved or adjudicated within four months. That system was abandoned after several years without any formal outside evaluation. The administration monitored “time to trial” statistics and, routinely, assigned temporary judges to run “blitz courts” to clear local backlogs of cases in overworked or understaffed courts. “Shadow courts” were established with “shadow” dockets of cases which were fed into the trial courts offering help after their regularly assigned cases were completed. Experienced crowns were placed into intake courts to “take ownership” of cases, encourage early resolutions and ensure that multiple adjournments did not bog down the set date process.

Numerous task forces and commissions (both local and province-wide) were set up and recommendations made for changes in practices: early vetting of cases by experienced crowns, early resolution discussions, diversion of simple cases out of the system and to special programs, mandatory judicial pretrials to narrow the issues and encourage resolutions, rules requiring notice about witnesses and issues to be addressed on prelims, prelims moved out of courtrooms and witnesses examined on the record without a judge being present, special training and procedures for complex cases and for dealing with unrepresented accused, the use of trial coordinators to set dates outside of court, specialized crowns handling specialized courts with specialized procedures (e.g.: domestic courts, courts for children, drug courts, mental health courts, courts for Indigenous people), dealing with impaired driving administratively rather than through the courts.

There has been no shortage of problems identified nor recommendations made about how the system could be improved. The problem has been making reforms happen, and the systemic failure to evaluate the effects.

The criminal justice system, like the health care system, is a very complex institution with multiple ever-changing stakeholders, little routine outside evaluation, and, in my time, a woeful lack of institutional memory. The federal government defines the criminal law but it is not responsible for the administration of justice. Our constitution makes provinces responsible for the operation of the courts. The actions of one affect the other, and vice-versa. One obvious example: When the federal government cut its financial contribution to the Ontario Legal Aid Plan, the number of defendants able to obtain counsel through Legal Aid went down, and the number of accused persons representing themselves went up. Without counsel, there were fewer pre-trial resolutions and the time taken for trial, even for simple matters, increased. What else would one expect? Defence counsel are essential players in the system. Apart from the detriment to individual rights, cutting them back removed the grease that makes the legal system work.

Don’t get me started…. It’s a big issue. How the time limitations imposed by the Supreme Court of Canada will withstand the reality of fact situations coming before Canadian courts in the immediate future, only time will tell. Maybe, as in 1991, the jurisprudence will become nuanced. In my view, it is a very good thing that the Supreme Court has put on the pressure to make “speedy justice” a priority. We’re finally talking about delay, the real issue which has faced our courts for decades. Maybe this time, there will be a major rethink.

This post was also re-published on my other blog, Re-view From the Bench, on 14 March 2017.

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Preliminary Hearings: Prohibition or Reform of Practice?

The media has been full in recent weeks of proposals to do away with preliminary hearings (called prelims for short) and so, reduce delay in the criminal courts. The 5:4 Supreme Court of Canada decision in R. v. Jordan in July set presumptive deadlines of 18 months for trials to be concluded in provincial courts, and 30 months in Superior Courts. Several high-profile cases have occurred where judges applying the new guidelines have stayed very serious charges because the time taken to get to trial was so long. When accused persons are not tried on the merits of their charges, the public is understandably upset.

The Ontario Attorney General is apparently encouraging more “direct indictments” whereby the crown refers serious matters directly for trial in the Superior Court (without a prior prelim in the lower court) and making demands to do away with most prelims. Manitoba’s three Chief Justices and its Attorney-General are proposing to eliminate all prelims. Minister of Justice Wilson-Raybould is saying that “Preliminary inquiry reform is a divisive issue…” and that committees in both the House of Commons and the Senate are looking at the issue.

What is a preliminary hearing? The Criminal Code provides that any person charged with an indictable offence (typically a serious charge to which a more elaborate procedure applies) has a choice: 1) trial by judge alone in the provincial court, 2) trial by judge alone in the Superior Court, or 3) trial by judge and jury in the Superior Court. If the accused elects trial in the Superior Court, he or she may request that a prelim be held. This means that a judge of the provincial court will conduct a hearing to decide if the crown has enough evidence for the defendant to be committed to stand trial. The “test for committal” is low: whether there is any evidence upon which a reasonable jury properly instructed could convict the accused of the charge or charges before the court. The prelim judge cannot assess the credibility of witnesses, nor can he or she hear any application for any potential Charter breach.

The limited jurisdiction of the prelim judge does not mean that prelims cannot be useful. Although the defendant will have received full written disclosure of the crown’s case well in advance, there may be much relevant information that defence counsel (and crown counsel for that matter) will not have. Neither will know, for example, how the complainant will appear as a witness and how he or she will respond to cross-examination. Neither will know information from the arresting officer or other crown witnesses that the defence might use to support a later application for exclusion of evidence under the Charter or otherwise. A prelim provides a chance to examine and cross-examine witnesses on essential points and get their responses on the record. Should they later testify differently at trial, the inconsistencies would go to their credibility. After hearing the evidence on a prelim, some judges offer the parties an opportunity to resolve the matter there and then without the need for any further trial. Resolutions at this stage are not uncommon.

It was also my experience, sitting as a judge in various courts in and around Toronto, that the use of prelims as a delay tactic has almost entirely disappeared. In the 1980s and early 1990s, defendants routinely elected prelims and then consented to committal at the prelim “without hearing any evidence.” The practice clogged court dockets and was then a primary cause of delay. In the 1990s, the Criminal Code was amended to allow higher penalties for certain offences (e.g.: sexual assault) where the crown could choose to proceed by the simpler summary conviction procedure. Thereafter, thousands of cases were downloaded to the provincial courts for trial and the defendant had no right to a prelim. Still later, court rules were put in place requiring a judicial pretrial where anyone seeking a prelim had to show precisely what witnesses he or she needed to hear and what issues were in play. If committal on the very low test were not contested, the crown might not need to call any of its case. Where multiple defendants were joined together and there may be little evidence relevant to one or two, the only evidence heard at the prelim would be with respect to those defendants. The prelim weeded out many problematic charges and focused the issues, both measures that would save time and resources down the road in the Superior Court.

The most intelligent piece I have read yet is the article by criminology professor Anthony Doob in the Globe and Mail on February 27th entitled “Preliminary inquiries: a debate that needs better data.” His essential point is that practice on prelims varies widely across the country and that what little data exists (reported in 2005) shows that prelims are often used instead of trials, and involve very few court appearances. He says that it is not clear why prelims “are seen as the Achilles heel of the court system” with respect to delay. He concludes that “data such as those provided by Statistics Canada in 2005 are no longer available. For explicable but stunningly short-sighted reasons, Statistics Canada has made it almost impossible to get a good picture of the use of the preliminary inquiry in Canada… (so that we know) less now than we did in 2005. … Those… on all sides of the debate can all claim that they are correct. They can make their arguments without even being forced to resort to the use of alternative facts, since the alternative—real up-to-date facts—don’t exist.” Someone is finally calling for “evidence-based” policy development with respect to delay in the courts. It’s about time.

This post was also re-published on my other blog, Re-view From the Bench, on 14 March 2017.

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CN Rail versus District of West Vancouver: Another Corporate Cash Grab?

The front page headline in Thursday’s Vancouver Sun caught my attention: “CN fights West Vancouver Over Centennial Seawalk.” CN Rail is demanding $3.7 million dollars in annual rent from the district of West Vancouver for public use of the seawalk built on the CN right-of-way to celebrate Canada’s Centenary 50 years ago. Since the district has refused to pay such a sum, CN has terminated its lease on the property, and started a lawsuit against it in the B.C. Supreme Court.

CN wants a judge to declare that their termination is lawful, that the seawalk, gazebo, gardens and parking spots built by the district trespass on the railroad corridor and must be removed, and that the district (and presumably the public) must be restrained from further use of the right-of-way. Oh yes, they are also asking for damages for arrears of rent.

The district has responded by applying to the federal Canadian Transportation Agency which resolves public transportation disputes. The district says that nothing is owed to CN Rail at all because of the long public use of the right-of-way, the lack of any damage to CN’s property, and the district’s ongoing and expensive enhancement of the shoreline which provides added protection to CN’s tracks at no cost to the corporation. To settle the matter, the district has offered an annual rent of $12,500.00, indexed to future inflation. Apparently, that’s not good enough for CN Rail who want a rental value based on the very expensive real estate in the area.

My Vancouver rental “cottage” is very close to the seawalk and the gazebo in dispute. I have written about the seawalk in prior posts, and am one of the thousands of locals who use the seawalk every day. The 1.7 kilometre seawalk may be the single most popular attraction on the entire Vancouver North Shore. Tourists and residents from all over the Lower Mainland flock to the short walk along the seashore that links Dundarave Pier with John Lawson Park, Ambleside Park, and the Capilano River to the east. Beside the seawalk is a separate “dog run,” unique in the area, which allows dogs to pace their owners leash-free without interfering with other users of the seawalk, including many seniors with mobility issues.

I only have “the facts” as set out in the newspaper article, taken from documents filed by the district. Here’s the history. When the seawalk was built in the 1960s, the government-owned Pacific Great Eastern Railway also owned the right-of-way. The PGE became BC Rail, also owned by the government. In 2004, the B.C. government sold its railway operation to CN Rail but retained ownership of the right-of-way which it then leased on a long-term lease to CN.

I gather that the government-owned railway must have leased the right-of-way to the district when the seawalk was first built. The district paid an annual rent beginning at $25 and increasing to $300. BC Rail requested rent increases up to $9,523 in 1999, but the district paid nothing at all after 1994. BC Rail made no further demands for any payment after 1999. When CN Rail purchased the rail line in 2004, it would have taken its own lease subject to the pre-existing lease to the district. Apparently CN Rail made no demands for rental payment from the district until September 2015 when their officials met with the district “to regularize the lack of a written agreement, deal with compensation and risk allocation.”

Without the benefit of hundreds of hours of costly legal advice which, undoubtedly, CN Rail has available and which the district will have to incur on behalf of the taxpayers, the issue seems pretty straightforward to me.

Why is CN Rail doing this? It seems that CN Rail wants to play hardball with the district of West Vancouver like CP Rail did for fifteen years with the city of Vancouver over its abandoned Arbutus Corridor which runs for nine kilometres from False Creek to Marpole on the south side of the city. There, residents had used the right-of-way as a community trail and created community gardens which CP Rail then bulldozed as leverage to force the city into buying the property. CP initially said that the land was worth $400 million. The city ultimately paid CP $55 million to buy it. 

But the Arbutus Corridor situation is entirely different from the West Vancouver seawalk. There, CP Rail actually owned the land, no trains had run on the right-of-way for fifteen years, and no public money was spent to enhance the value and use of the right-of-way. Here, the right-of-way is still owned by the province. The railroad and the seawalk have co-existed for nearly fifty years. I have no idea how much the district of West Vancouver has spent on the seawalk, its protection and amenities but it must be a lot. The seawalk is stunning and the anti-erosion enhancements have been substantial.

Who is CN Rail? CN Rail is the largest railway in Canada, with 32,831 kilometres of track extending from coast to coast and even into the United States (both to the Gulf of Mexico and to Alaska). According to the internet, the largest individual shareholder of CN Rail in 2014 was Bill Gates. The latest internet CN Rail Ownership Summary shows that the largest institutional investors in CN Rail are the Royal Bank of Canada, Massachusetts Financial Services, the Wellington Management Group, the Bank of Montreal and TD Asset Management In. The President and C.E.O. of CN Rail is Luc Jobin. He joined CN Rail as a senior executive in 2009, responsible for, among other things, “strategic planning.”

Some strategy. The court and/or the Tribunal should throw the Greedy Grouts out of court, and impose all possible legal costs against CN Rail and in favour of the district. What’s CN going to do? Impound all the cars from the parking spots? Tear down the gazebo? Bulldoze the seawalk? Their position is ridiculous, if not shameful, and will only serve to waste scarce public resources better spent on something else. What kind of corporate citizenship is that?

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What Has the Trudeau Government Done, July-December 2016?

My single most popular post last year was my listing on July 5th of the Trudeau government’s accomplishments, to date. Six months later, it is useful to take up the catalogue again, with a little help from my stash of newspaper clippings, my increasingly informative e-news sources, and related webpages. Here is another list: what the government has done in the second half of its first year in office. I apologize in advance that this is more wordy than the previous one. Skip the details, if you like. Or print the post as a hard copy.

1. The government developed a transparent, predictable process for appointing Justices for the Supreme Court of Canada, and defined criteria for qualities of the judges they wanted. The criteria included “functional bilingualism” in both Canada’s official languages, and sensitivity to the diversity of Canada’s population. Although the Prime Minister retained the right to make the appointment, an independent Advisory Committee chaired by former Prime Minister Kim Campbell was struck to vet applications and make recommendations. The competition was opened to any lawyer in Canada who applied for the position. The existence of a pool of candidates who self-identify as potential Supremes is very useful. Future candidates are on notice about the qualifications expected for the job and the government will be able to make future appointments more expeditiously

2. In the face of widespread pressure to retain the customary regional allocation of Supreme Court judges, the government appointed Canada’s first Supreme Court of Canada justice from Newfoundland. Mr. Justice Malcolm Rowe is a white male from a rural fishing family who is more than “functionally bilingual” in French and who has a personal track record demonstrating his appreciation of Canada’s diversity. His appointment has been widely applauded.

3. On October 20th, the government appointed 25 new s.96 justices across the country. One to the Tax Court, three to the Superior Court of B.C., two to the Alberta Court of Appeal, five to the Alberta Court of Queen’s Bench, three to the Manitoba Queen’s Bench, three to the Superior Court of Nova Scotia, one to the Ontario Court of Appeal, five to the Ontario Superior Court and one to the Quebec Court of Appeal. These appointments do not expand the complement, nor even fill all existing vacancies, but they are a start. Biographical information about all new appointments is available on the Department of Justice website.

4. On November 23rd, they appointed 22 Deputy Judges for the Superior Courts of Yukon, the Northwest Territories and Nunavut. These part-time positions were appointed from existing jurists across the country.

5. The government defined a new transparent procedure for future s. 96 judicial appointments. Each province will have an Advisory Committee to solicit and vet applications. Committees will consist of representatives from the provincial Attorneys General, the major legal professional bodies, and three lay representatives. Anyone interested in serving as a lay member of these committees had to submit an application by mid-November. Clarifying the process and broadening the base of input into judicial recommendations will encourage the diversity that a responsible judiciary requires.

6. The process of building a new independent Senate was initiated. The government established an Independent Advisory Board for Senate Appointments consisting of a chair, two federal members and fourteen members representing the provinces. The role of the Advisory Board is to receive applications and provide recommendations on Senate appointments to the Prime Minister. The board is to advertise vacancies as they occur, and apply public, merit-based criteria “in order to identify Canadians who will make significant contribution to the work of Parliament.” On October 27th, the government announced nine individuals named to the Senate under the new procedure to fill vacancies in B.C., Manitoba, New Brunswick, Nova Scotia and Prince Edward Island. Their biographies are on the webpage of the Advisory Board.

7. The Terms of Reference of the Advisory Board require a report to the Prime Minister within three months of submitting names for appointments. On December 21st, the Advisory Board published its report on the first cycle of their permanent process from July to November 2016. The report indicates that 2,757 applications were received, 308 from B.C., 145 from Manitoba, 127 from New Brunswick, 174 from Nova Scotia, 1169 from Ontario, 768 from Quebec, and 66 from Prince Edward Island, 39.9 % female, 60.1% male, 67.9% English, 31.3% French, 21.08% unknown, self-identified diversity of 3.74% LGBTQ, 19.59% ethnic/cultural group, 13.57% Indigenous, 24.99% visible minority, and 9.03% people with disabilities. All of this information is also found on the website of the Board.

8. Canadians can now apply online “until 23:59 Eastern Time on January 25, 2017” for six Senate vacancies expected in 2017 in New Brunswick, Nova Scotia and Ontario. The assessment criteria, forms and templates, frequently asked questions, and guidance on how to create a profile and submit an application are all on the website of the Advisory Board, as above.

9. The initiatives above are described in great detail on government websites which are user-friendly and readily accessible. These are a welcome contrast to the opaque government websites under the previous regime, notable for their singular lack of accessible information. 

10. The government concluded and ratified the Canada Europe Free Trade Agreement. Minister of International Trade Chrystia Freeland is generally credited with having acquitted herself well in the last-minute negotiations.

11. In September, Prime Minister Trudeau and Minister of the Environment and Climate Change Catherine McKenna both met with officials in China to encourage more bilateral trade, address climate change initiatives, and deal with more specific issues between them. Canada renewed its commitment to support of the CCICED (an international advisory body established in 1992 to provide China’s State Council with research-based policy recommendations on environment and development issues). During Prime Minister Trudeau’s official visit to China (August 30 – September 6, 2016), the two countries agreed to address climate change through the Paris Agreement, and signed a statement of cooperation between Parks Canada and the National Development and Reform Commission of China regarding establishment, conservation, and management of protected areas.

12. In October, the government announced a pan-Canadian approach to pricing carbon pollution. Provinces and territories will have flexibility in deciding whether to implement the policy by a direct price on carbon pollution or by adopting a cap-and-trade system. Although the provinces will choose the specific nature of their own climate change policies, the federal government has set a national “floor price” on carbon that all provinces must levy by 2018. The price is to be $10 per tonne of carbon dioxide emissions in 2018, rising by $10 each year to $50 a tonne by 2022. The federal policy provides that all proceeds from carbon pricing will return to the provinces implementing the policy. See CBC news coverage of this initiative. 

13. In October, they announced plans for a “Canada Infrastructure and Development Bank” to be promoted with large international institutional investors in a conference featuring Trudeau and Moreau in November. See my previous post, “Private Money for Public Infrastructure?” 

14. In late November, the government approved twinning of the Kinder Morgan Trans Mountain pipeline from Edmonton to Burnaby. If constructed, the number of tankers carrying diluted bitumen travelling through Vancouver harbour, the Salish Sea and Juan de Fuca Strait will increase from approximately five to 34 a month. The project is almost universally opposed by local municipal governments, environmentalists and Indigenous groups. Trudeau said the government expects Kinder Morgan to “meet and exceed” the 157 conditions imposed by the National Energy Board in April. Earlier in the month, the federal government announced a $1.5 billion ocean protection plan to improve responses to tanker and fuel spills in coastal oceans.

15. The same day, Trudeau announced that the government is approving the new Enbridge Line 3 renewal to transport oil from a terminal near Hardisty, Alberta to Gretna, Manitoba, near the Canada-US border. There, it will continue through northern Minnesota to refineries in the USA. A 1,659-kilometre project worth $7.5 billion dollars, the renewal will double the volume of oil carried by the existing pipeline, funnelling nearly three million barrels a day of Alberta oil to the United States. The National Energy Board approved that project in April with 89 conditions affecting the Canadian section. The project will need further permit approvals from the state of Minnesota where there is considerable opposition to running a pipeline through environments important for their water supply.

16. At the same time, Trudeau announced that the federal government would not approve Enbridge’s Northern Gateway pipeline from Alberta’s oil sands to Kitimat in northern B.C for export via the northern coast of B.C. He also announced that the government will introduce a new law in 2017 to impose a moratorium on crude oil tankers along B.C.’s North Coast.

17. Opponents of this pipelines policy vow continued opposition to the government’s decision so that they may never be built. Environmentalists are also concerned that pipelines for fossil fuels undercut Canada’s commitment to climate change. Trudeau replied that the pipelines were in the national interest, support the Canadian economy and help the Alberta economy to access foreign markets. He also insisted that transporting oil by train (the current practice) is more hazardous to the environment and public safety than use of pipelines.

18. In December, Trudeau met with heads of the Assembly of First Nations, the Inuit Tapiriit Kanatami and the Manitoba Métis Federation. The Prime Minister committed to an annual meeting with the heads of the organizations, “to develop shared priorities and to monitor progress” on implementation of the recommendations of the Truth and Reconciliation Commission on residential schools. In addition, similar meetings with key cabinet ministers will take place at least twice a year. Indigenous leaders were pleased with, at least “a strategy and plan moving forward.” Senator Murray Sinclair, former head of the TRC, was pleased with the announcement. See Gloria Galloway’s article from the December 16, 2016 Globe and Mail.

19. In December, Canada contracted with Polaris Industries ($28 million) to deliver 78 of its Ultra Light Combat Vehicles (DAGOR), described as “dune buggies on steroids,” to Canada’s Special Operations Forces Command. The first 52 vehicles were purchased immediately for delivery in 2017, the remaining 26 will be delivered in early 2018. The vehicle will add a weapons turret for off-road operations and will be transported by a variety of military aircraft, including helicopters. The contract includes technical and logistics support for two years through Black’s Corners Motorsports (BCM), in Carleton Place, Ottawa. See David Pugliese’s recent article in the Ottawa Citizen.

20. In December, Science Minister Kirsty Duncan announced a ban on asbestos and asbestos-containing products by 2018. Canada’s last asbestos mines closed in 2011, but Canada has been slow to meet international anti-asbestos standards. The government announced that it will draft a new regulation under the Canadian Environmental Protection Act to ban “manufacture, use, import and export” of asbestos-containing products including building materials and brake pads. It will also introduce new federal workplace health and safety rules to “drastically” limit the risk of on-the-job asbestos exposure, expand the current list of asbestos-containing buildings owned or leased by the Canadian government, and work with the provinces to include a prohibition on use of asbestos in building codes, affecting new construction and renovations. Read Tavia Grant’s Globe and Mail article, where she reports that advocates have termed the ban “a win for public health,” but long overdue. Note that “under its proposed regulation, the mining and processing of asbestos tailings and residue in Quebec” will be excluded from the ban.

21. In December, the government received the Report of the Task Force on Cannabis Legalization and Regulation chaired by Anne McLellan. Even Chris Selley in the National Post (“The clock starts now for pot legalization retitled for web-posting) said it “is the picture of bold common sense: set a minimum age of 18 for purchase, leaves to the provinces to determine retail models preferably keeping weed separate from alcohol, enforce labelling standards for higher strains and potency, allow people to grow a few plants at home, get busy studying the implications for impaired driving.” To meet the problem of higher potency marijuana, there will be a higher tax on higher potency. As Selley noted, “this file remains an opportunity for the Liberals to expend some capital doing the right thing, coherently and backed by evidence, for the right reasons—freeing up justice system resources, liberating people from ridiculous and counter-productive threat of criminal sanction, putting gangsters out of business.” Anne McLellan indicated that the consultations of her Committee were comprehensive and intensive, open to hearing all interests. The age group 18-24 is the age cohort most using cannabis, which they now obtain from the illegal market. The CMA had recommended 25 years of age (after the developing brain is intact) as the minimum legal age. The government compromised, 18 or 19 years of age, like alcohol, as determined by the provinces, in the expectation that young people of that age can make an informed decision after considering the risks.

23. In December, Minister of Innovation, Science and Economic Development Navdeep Bains announced further details of a program called “Connect to Innovate,” a five-year program to invest $500 million in expanded broadband internet access in 300 remote and rural communities. Companies seeking funding under the initiative have until March 13, 2017 to make their applications.

24. The government prepared plans to respond to the election of Donald Trump as president of the United States. They publicly adopted an international stance in favour of trade, immigration and diversity. Paul Wells, in the Toronto Star December 16th, noted that Trudeau told reporters from the Guardian, Britain’s leading centre-left newspaper: “If we can show—as we are working very hard to demonstrate—that you can have engaged global perspectives and growth that works for everyone, then that diffuses a lot of the uncertainty, the anger, the populism that is surfacing in different parts of the world.” Pie in the sky? Or a real new role for Canada? It’s too early to tell, but at least the Trudeau government has staked out the Canadian alternative.

25. Patrick Gossage for CBC News on December 30th suggested that “the celebrity status of Trudeau and Sophie Grégoire-Trudeau in the United States” will be to their advantage in dealing with president-elect Trump. They are very popular there and, just as Reagan got along with Pierre Elliott Trudeau, Trump will likely get along with Justin. He also noted that their shared support of the Keystone XL pipeline in the USA will be “a gift” for Canada, and that Trump’s nominee for secretary of state, Exxon CEO Rex Tillerson, “knows Canada well, and Exxon has large holdings in Canadian oil retail, exploration and development.”

25. In December, Health Minister Jane Philpott and Public Safety Minister Ralph Goodale introduced Bill C-37, a new law and regulations amending the Controlled Drugs and Substances Act, the Customs Act and the Proceeds of Crime and Terrorist Financing Act. These changes will make it easier for safe injection sites to open and make it harder to smuggle fentanyl into the country. Empirical data based on the Vancouver Insite clinic shows that such facilities save lives, allow addicts to access appropriate services, and do not have any negative impact on criminality. The new law repeals entirely the 26 criteria the previous government had passed which made it next to impossible for additional sites across the country to adopt the elements of the Vancouver model. The new strategy also puts drug policy back under the Health ministry and away from the Department of Justice.

26. The government made numerous changes in Canada’s taxation laws, which I will leave aside for the moment, as they are undoubtedly complex and I would need to defer to my son who is the tax specialist in the family. I do note, however, that my favourite children’s toy shop and bookstore is advertising the new “Teacher and Early Childhood Educator School Supply Tax Benefit.” This tax change will provide a cash benefit of up to $150 for purchases of supplies and materials up to $1000 made by all certified teachers and educators for their classes. I am normally opposed to tax “expenditures” of this kind but, if they must exist, providing some compensation for teachers is a good thing. Apparently, “the list of allowable school supplies will draw on best practices in Prince Edward Island, which has already implemented a provincial school supply tax benefit.” There are many ways to craft cooperative federalism. Imitating best practices from other jurisdictions is one of them. According to the promotional material, this tax benefit “will apply for the 2016 tax year and subsequent taxation years, and will generate $60 million annually in tax savings for teachers and early childhood educators across the country.”

27. In August, Defence Minister Harjit Sajjan and a team of Ministers announced that the federal government would spend $450 million over three years on a peace and stabilization fund that will be used for renewal of Canadian participation in United Nations Peacekeeping Operations. The allocation will extend to 150 police officers, an increase to $47 million in the RCMP stabilization fund, and up to 600 Canadian troops, the provision of air transport, medical, engineering and training components. During the fall, consultations continued with the United Nations and NATO allies about where deployment(s) would occur. The countries reviewed by the Defence Minister include Mali, the Congo and the Central African Republic. In January, Global Affairs, the newly renamed Department of Foreign Affairs, has scheduled a day-long strategy session with government officials and experts to give flesh to this policy. Expect details of how the new deployment will be “branded” and where it will occur. See the article by Mike Blanchfield in National Observer.

28. In November, Defence Minister Harjit Sajjan announced that the government would purchase 18 Boeing Super Hornet fighter jets, in addition to holding a competition down the road for replacement of the C-18 fleet. The Super Hornet is considered to be a cheaper alternative to the F-35 stealth fighter jets selected by the Conservative government. Both types of jets are used by Canada’s allies. There is concern, however, that punting the decision about the F-35s down the road amounts to a “final decision” on the issue for the foreseeable future.

I don’t know about you, but I consider this list a pretty full agenda. Not bad at all for the second six months in office.

Understandably, there is disagreement over the specifics of particular policies. Partisans on all sides have strong positions. Whether for or against, I think that the government has done a great deal. Theirs may be a middle position, even a conservative position, but at least they have taken a position on many issues and are prepared to go forward. To say, as does Paul Wells in the Toronto Star in his December 16th article, “Global darling Trudeau fails to deliver at home,” that the Liberal government has done nothing is incorrect. “False news,” even.

“Failures” to date:

  1. The Special Committee of MPs studying Electoral Reform recommended that the government hold a referendum that pits the current First Past the Post system against a system of proportional representation, but apparently did not recommend a particular method of proportional representation. Notwithstanding this result, the Liberal members of the committee do not agree that a referendum should be held and the NDP and Green members issued a joint supplementary report which also questions the need for a referendum. Minister of Democratic Reform Maryam Monsef rebuked the committee for failing to recommend a specific type of proportional representation system. Among other things, she said they had “shirked their responsibility.” It is not surprising that she was later forced to apologize for her remarks. I have not read the reports, but clearly the government looks bad on this issue. They benefit from the FPTP system and have little incentive, except fulfilling an election promise, to change it. I agree that previous referenda about electoral reform have all failed. In my view, they failed because more resources were spent on the consultation process than on educating the public about the nature of the alternative proposal. When the electorate is confused, and comes out in low numbers, any referendum is useless. If a referendum were desired, it strikes me that ours should follow the Irish model. There, they have high voter turnout and have made significant constitutional changes. See my previous posts entitled “Lessons from the Irish Referendum for Canada” and “Revelling in the Results of the Irish Referendum.” If nothing else, maybe the Liberal government could pass legislation making it mandatory that people vote. That would be an excellent “electoral reform” to implement before the next election. Who would disagree with that? There are precedents in other parts of the world.

2. In late December, Finance Minister Bill Morneau began negotiations with the provinces and Territories about the new federal Canada Health Transfer (CHT). The current federal contribution of 6% is scheduled to end next year. He offered to raise the minimum annual increase the government had previously offered from 3% to 3.5%, add an extra $8 billion over ten years for home care and mental health, as well as $544 million over five years for prescription drug and “innovation” initiatives. Talks broke down and that offer is now off the table. Most provinces rejected the offer because provincial demands for the base CHT were considerably higher, and because the extra funds came with federal strings attached. Later in the week, Newfoundland and Labrador, New Brunswick and Nova Scotia broke ranks with the rest of the provinces and entered into bilateral agreements with the federal government. They accepted the federal offer of 3% plus the add-ons, with the proviso that should other provinces receive a higher base transfer, they too would get the higher rate. Moreau had said before the meeting that that if no deal could be reached, federal support would revert to an annual increase in health transfers of 3%, or nominal economic growth, and provide $3 billion for home care. This federal “take it or leave it” approach angered most provinces and, in my view, is a bluff. Expect further negotiations in January. I’m betting that all provinces will be on board eventually, and that some arrangement will be made so that “strings attached” will accommodate “the special nature of Quebec.”

3. The primary concern of the opposition parties and the media seems to be “access in exchange for political funding.” Trudeau may not be living up to his lofty standards, and certainly not the standards imposed by Ontario Premier Kathleen Wynne. But, as Tom Flanagan argued in the Globe and Mail on December 16th, what they are doing is no different from the same thing done by other parties. As Flanagan warns, and Andrew Coyne took up in the National Post this morning, if critics are not careful, the Liberals may well restore government financial subsidies to political parties based on the vote, first implemented by Prime Minister Chrétien and later terminated with relish by Harper. The Tories would hate that, although the NDP, Green Party, and Liberals would be delighted. Wouldn’t that be an interesting twist?

In my view, that the opposition (and the conservative media) is obsessed with this issue, in the face of all the other things the government has done August to December, speaks to their weakness. Preoccupied as they are with choosing new leaders, the Trudeau government can get on with its agenda.

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My Best “Good News” Story for 2016

It was the early afternoon of October 31st, and I was due to leave the house shortly to help the grandkids do Hallowe’en in Whitby. I thought to make a quick trip to the local bakery on College Street to pick up some of those Hallowe’en cookies I’d seen. Luckily for me, there was a parking spot close to the bakery. I reached into my purse, pulled out my wallet, and hopped out of the car to get my 15-minute parking receipt from the kiosk nearby. I was only gone a minute, returned to the car, put the receipt on the dashboard and locked the car. Minutes later, my goodies in hand, I returned to the car and drove up Clinton to return home. Suddenly, it occurred to me that my purse, with my iPhone in it, was missing. It had been sitting on the bucket seat beside me when I got my wallet. It wasn’t there now.

I drove around the block back to the bakery, found another parking spot, and enquired in the bakery whether I had left my purse behind. Apparently not. It was nowhere to be seen. How could that be? I’d just had it. I retreated to the car and returned home. Had I left my purse at home? Maybe I had. Forgetting what happened only a moment ago is not foreign to me these days. But no, the purse was nowhere in the house. Nor was the iPhone.

Quite uncharacteristically, I was relatively calm as I went upstairs to my home computer and switched on the “Find My iPhone” application in the settings. Miraculously, the setting was on. I activated the program and, sure enough, a local map appeared with a little green dot showing that my phone was at the bakery on College Street. With my resident nephew in tow, I returned to the bakery. This time, using a load voice, I insisted that the purse with my iPhone was somewhere nearby. I approached each of the patrons seated at tables at the bakery and asked if they had seen a black leather purse with an iPhone in it. This time, the saleslady made further enquiries of the rest of her staff downstairs and in the kitchen. No luck. No purse. No iPhone.

What to do? We returned home, refreshed the computer and saw that the green dot had moved one block west. Great. Someone had it and they were still nearby. We refreshed the application again. This time, the green dot was another block west. Refreshed again, and the green dot had moved further west, apparently across the street to the area of a well-known restaurant.

At that point, I called 911, reported a non-emergency and asked to be transferred to 14 Division. Another operator answered, another transfer, then another operator, and another transfer. Finally, someone listened to my lament that my purse and iPhone had been stolen. “But,” I added brightly, “we know where they are… at the corner at Beatrice and College.”

My interlocutor was not impressed. “Do you have a description of the person?” she asked. “No, of course not, I didn’t see who took it. I only know where it is.” “Well, ma’am. The police don’t get involved in these kinds of things. There is nothing we can do without a description. You can file a ‘theft from auto’ report and if we arrest someone who has your purse or iPhone in their possession, we will return it to you.” I took a deep breath. “Madam,” I said, “we know where the phone is and we are going to go and get it” “We don’t recommend that,” she replied. “You may not,” I said, “but I need to get my phone back.” She took my ‘theft from auto’ report and said an officer would call me back later.

My nephew suggested that he take his bike and his cellphone, that I stay at the computer, and that we track the little green dot. And so we did. He jumped on his bike and rode west on College. I called him and reported that the green dot was in the parkette at the corner of Claremont and College. He didn’t see anyone there. The dot remained there, so he looked around in the bushes to see if it had been thrown away, but found nothing. Then I remembered to refresh the computer. Now the green dot had moved a couple of blocks west and was turning north on Ossington Avenue.

My nephew biked to that corner and turned north. Across the street, he saw someone he considered a shady character leaning against the wall of a small take-out joint. If he had the phone, my nephew wasn’t keen to approach him. “Where is the green dot now?” he asked me over his cellphone. “It’s moving up the street,” I said. So my nephew turned his attention further up Ossington. There he saw a woman moving north towards the corner of Dewson Avenue where a police officer was directing traffic around a street repair project.

“The green dot turned west on Dewson,” I reported and my nephew replied, “I see her. It’s the woman, short, heavy-set, wearing a dark coat, walking on the sidewalk, carrying two plastic bags.” He rode his bicycle behind her and saw a black purse sticking out the top of one of the bags.

He returned to the police officer directing traffic at the corner. “That woman has a stolen purse and phone,” he reported to the officer. “How do you know?” he asked. “My aunt is at home tracking the phone on her computer program and she described exactly where it went.” The officer called for backup at the corner and, when it arrived, he asked my nephew to show him how he knew. “Where is she now?” my nephew asked me. “She has turned the corner of Dewson and the street beyond and is heading south,” I replied.

That was what the officer needed. He approached the woman, asked for her identification, and to see what was in her bags. The officer opened the black purse sticking out the top of one of the plastic bags, found the iPhone and directed my nephew to ask me what else was in the bag. “A couple of pens, maybe some kleenex” I reported. The officer confirmed the contents and returned the bag and the phone to my nephew. Within less than a half hour after I had missed it, we had my purse and, more importantly, the invaluable iPhone back in our possession.

When the officer asked the lady where she had found the purse, she said that she had heard a ruckus on College Street about a lost purse and a lost iPhone. She had seen it laying on the street and had picked it up with the intention of returning it to the police station. It’s true, 14 Division headquarters on Dovercourt Street is a couple blocks to the west and south. But turning north on Ossington was the wrong direction. The police officer ran a computer check of her identification, and found she had no criminal record. Both he and my nephew concluded she was not particularly swift. I had no desire for any further process against her. The police officer advised her that she should have just left the purse, or returned it to the bakery. He asked her if she knew how we had found her. She replied, “By the phone.” So, who said she was not so swift?

I was totally relieved that the computer program had worked, and we had recovered the phone. Had the setting not been “On,” my iPhone would have been lost forever.

The incident reminded me how often thefts are crimes of carelessness and opportunity. I don’t believe that I dropped my purse from the car seat onto the street. But I do know that for the short moment that it took me to get my parking receipt, I had left the purse on the front seat of my car, and my car was unlocked. I’m not so smart myself.

At 2:45, just as I was leaving the house, an officer from 14 Division phoned to follow up on the ‘theft from auto’ report I had filed. I was delighted to report that the phone and purse had been recovered, with the help of an officer on the street, and that he could close his file.

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Sean Fine and the Supreme Court of Canada

Sean Fine, the Justice writer for the Globe and Mail, is getting more and more space. Rightfully so. Apart from high-profile criminal cases or civil law suits which titillate the public imagination, intelligent writing on the legal system and how courts actually work is lamentably lacking in Canadian media. Sean Fine has been the outstanding exception. He is generally topical, reliable, and comprehensive. Following Sean Fine in the Globe in print, on their website often the day before, or on Twitter, is a good way to keep abreast of legal issues, particularly on the national scene. His recent writing illustrates the point.

Introducing the Judges of the Supreme Court of Canada

His Canada’s bench strength: Meet the judges, new and old, of the Supreme Court published earlier this month is a novel introduction to the Supremes. His readily digested summary of each Supreme Court Justice describes their age, family and legal background, education, who appointed them, their role on the court, a couple of their leading decisions, and their personal characteristics. It’s a good thumbnail sketch of the most important jurists in Canada whose decisions affect us all.

Profile of Justice Malcolm Rowe

On Saturday, Sean Fine wrote a very informative profile of Supreme Court of Canada nominee Malcolm Rowe, entitled Rowe driven to succeed.” Rowe’s parents were from fishing villages, and then moved to St. John’s to better educate their children. They endowed him with a vigorous work ethic and a rigorous intellect. Apparently, whatever he has pursued as a professional and as a sportsman, adept at kayaking, skiing and sailing, he has done with focused determination to do well. He has worked to perfect his French and has more than surpassed the basic requirement for functional bilingualism. His knowledge of his province, his people and the country is deep, sensitive and genuine.

Hearings on his Nomination

The new SCC-appointment process requires two hearings before the Prime Minister confirms the nomination. The first is for the government and the Chair of the Advisory Committee to explain to the Parliamentary Justice Committee how the process worked and why Justice Rowe was nominated. The second is for the nominee to “meet” Parliament and answer questions about his or her legal experience and philosophy.

On Tuesday, in his article Ottawa stands by nationwide Supreme Court process, Fine describes the first hearing. Advisory Committee Chair Kim Campbell reported that 31 candidates applied for the vacancy, slightly less than half were women, the committee interviewed ten, some were not functionally bilingual (a criterion imposed by the new procedure). Justice Minister Wilson-Raybould defended the government’s decision to conduct a nationwide search even though the vacancy came from the Maritimes. She indicated “the process requires some candidates on the shortlist to be from Atlantic Canada.” The aim of the government, she said, was to create a court which “reflects the faces and voices of Canada” and “the values of Canadians today.”

Fine’s report focuses on the controversy which arose after the new appointment process was made public in August. What is the nature of the diversity the court should reflect? The geographic diversity reflected by the tradition of having one judge from the Maritimes? Or the ethnic, racial and gender diversity which would include indigenous people and multicultural contemporary Canada? The Commons voted 270-0 “urging the government to respect the ‘custom’ of regional representation, and a lawyers’ group filed a court challenge to any attempt to go outside the region.”

My reading of the process in August did not pick up on any specific requirement that the shortlist include nominees from the region with the vacancy. It was clear, however, that the government intended the process to be evaluated and that it could well be changed. I suspect that the political furor since August has caused the Justice Minister to insert “the regional factor” on the fly. That’s not a bad thing.

In the result, it seems that Justice Rowe is, as the Minister said, “… an incredible jurist of the highest quality and the best candidate.” As for the nationwide process, I think it a very intelligent approach which will allow the feds to find future Supremes from across the country, and enable future candidates to perfect their language skills. Creating an open-ended pool will make future choices more expeditious.

Yesterday, Fine’s article Justice Rowe put to the test in nomination hearing describes the first-ever nomination hearing conducted under the new process. The hearing was held before 14 MPs and Senators, each given five minutes to ask questions of Justice Rowe, and 150 students at the University of Ottawa. A brilliant format. Efficient, respectful and, by including an audience of students, mindful of the future. (As an aside, I wonder if Trudeau as the Minister of Youth suggested the venue and the audience?) Sean Fine reports that Justice Rowe “staked out a liberal position on Charter issues, impressed a Quebec separatist with his spoken French and displayed his greatest passion on questions related to indigenous peoples and the law.” Justice Rowe may well be a white male, but he apparently exemplifies all that the government is looking for in a new Supreme.

On the Globe and Mail website, you will also find Sean Fine’s tweets of what Justice Rowe was asked, what he said, and Fine’s impressions of the hearing as it occurred. If you have a Twitter account, check out his tweets from the hearing of the Minister of Justice and Advisory Chair Kim Campbell the day before. A Twitter feed is effectively a live blog. Fine’s Twitter username is @SeanFineGlobe.

Where was the CBC on this? The only television coverage appears to have been provided by CPAC LIVE ONLINE at 11:15amET/8:15amPT, as part of its coverage of Parliamentary Committees. Who knew? If you search in the CPAC Digital Archives, you can find videos of both hearings. When the hearing for the next new Supreme occurs (in 2018, when Chief Justice Beverley McLachlin will retire), any chance we can have full CBC live television coverage with appropriate notice to all who are interested?

Parliament has no veto over the choice but, pursuant to the process, the Parliamentary Committee that questioned him will meet today to endorse his appointment, and he is expected to be sworn in next Monday.

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New Nominee to the Supreme Court of Canada

Prime Minister Trudeau announced yesterday that the Honourable Malcolm Rowe is his nominee for the existing vacancy on the Supreme Court of Canada. He’s not a woman, nor indigenous, but he is from Newfoundland and Labrador, the first Supreme Court of Canada appointment from that province. His nomination maintains Atlantic Canada’s representation on the country’s highest court, a demand from Parliament, and the bar which has risen since the new guidelines for appointments were announced in early August.

The Honourable Malcolm Rowe is 63 years of age and a veteran judge from Newfoundland and Labrador. A member of the provincial Law Society since 1978, he was appointed to the Trial Division of the provincial Supreme Court in 1999, and then to the Court of Appeal of Newfoundland and Labrador in 2001. He is bilingual in French to the extent required by the new guidelines and appears to bring to the court a remarkable breadth of legal and public law experience.

Among other things, he was a foreign service officer with External Affairs for four years, in private practice with Gowling & Henderson in Ottawa for twelve years, and Clerk of the Executive Council and Secretary to Cabinet of the Newfoundland Government, effectively head of the public service, for three years. He was a key player in several big issues affecting the province: fisheries agreements and maritime border disputes between France and Newfoundland during the 1980s, international conventions to define and enforce international law against overfishing on the high seas from 1986-1995, and a 1997 constitutional amendment doing away with denominational schools in favour of a public school system.

While on the bench, he volunteered for a full month each year for 14 years with Action Canada, a program funded by Heritage Canada and private donors to train up to 20 young Canadian “Fellows” annually in leadership skills and to expand their knowledge of the country. As a member of the Selection Committee, an advisor on the operation of government, law and public policy, and as a mentor to Fellows, he has come to know much about the particular perspectives of people from different geographic areas and social backgrounds. His responses describing his experience with Action Canada, his upbringing in Newfoundland, and his living elsewhere for 20 years are an eloquent testimony to his appreciation of the country he appears to know well. The son of parents from small fishing villages who obtained his legal education at Osgoode Hall Law School in Toronto, he is not from a disadvantaged group. It would seem, however, that he is predisposed to fulfill the government’s objective of securing a jurist who understands the diversity of the country and the different interests of its citizens.

To learn more about the nominee, check out his answers to the questionnaire he had to complete upon applying for the position. Those parts of the questionnaire which the new procedure requires be made public are on the webpage of the Office of the Commissioner for Federal Judicial Affairs Canada. The material includes his synopses of the decisions and written materials he considers the most significant of his career, including leading cases on the law of sentencing in criminal law. Even more interesting is what his responses show about his own understanding of the role of judges in different contexts and at different levels of our judicial system. His philosophy as a judge appears to reflect the activism of his career and the need for the law and legal institutions to evolve in response to changing conditions.

So did the Trudeau government blink? Preliminary news reports are that the Conservatives and NDP are taking credit for the government’s decision to appoint a Maritimer after a much ballyhooed nation-wide search. Whatever the motivation, the new procedure has set an important precedent. A pool of potential future nominees have now self-identified across the country. Professionals interested in a future appointment now know the criteria that will be applied and, like Malcolm Rowe, can take the steps necessary to make sure that they have the language skill required. Under the new procedure, prospective appointees must put their credentials, and their philosophical perspective, in writing for all the public to see. I have no doubt that anyone reading the materials submitted by Honourable Rowe will be satisfied that he brings significant stature and analytical maturity to his new role. I suspect that his nomination will be a popular decision, and that he will be well-received in his upcoming appearance before Parliament. With his background, work ethic and sense of humour, he will be a welcome addition to the Supreme Court bench.

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The New Supreme Court of Canada Appointment Process

Last week, Prime Minister Trudeau announced a new process for appointing justices to the Supreme Court of Canada. It will be used to choose a successor for Mr. Justice Cromwell, who retires on September 1st.

The Prime Minister was, and remains, responsible for these appointments. Previously, SCC appointments emerged from a shadowy process which was opaque, undefined, prone to rumours, and in the closet. The goal of the new process is to be open, transparent, accountable, and non-partisan.

The key elements of the new process are that:
1) any lawyer or judge who self-identifies as meeting the criteria may apply
2) an independent, non-partisan Advisory Board will vet applications and develop a non-binding short list of three to five nominees
3) the answers provided to parts of the application questionnaire could become public, and
4) within a month of the appointment of the new Judge, the Advisory Board will file a formal report, including statistics on the number of applicants and recommendations to improve the process.

The remaining steps are not new. The Minister of Justice will vet the nominees with Chief Justice McLachlin, provincial and territorial Attorneys General, relevant cabinet ministers, and opposition justice critics. After that consultation, the Prime Minister will choose a nominee. The nominee will appear before the relevant House and Senate committees for a joint Question and Answer session which, unlike before, will occur before the appointment is formally made.

Objections raised to the new procedure merit comment.

1) The end to geographic representation? In the past, new judges were generally appointed to make sure three were from Quebec, three from Ontario, and one from each of the Maritimes, the prairies, and B.C. That has now changed. Apart from the constitutional need for three Supremes from Quebec (because of the unique nature of Quebec civil law), it seems that future competitions for non-Quebec positions will be nation-wide. This is perhaps justified because the issues coming before the Supreme Court today are less federal-provincial inter-jurisdictional disputes than may have been the case in the past, and relate more to the Charter and other codified laws which have application across the country.

2) The Trudeau government has introduced two new criteria: a) that applicants be “functionally bilingual” and b) that they “represent the diverse nature of the country.” “Functionally bilingual” has been defined as the ability to understand written materials and oral argument without needing direct translation and, “ideally,” the ability to converse with counsel in the language they are using for argument. This is a lower level of bilingualism than “fluency,” and likely reflects the nature of the job where apparently one-third of appeals are conducted in French. In a country officially bilingual, it seems appropriate.

3) “Diversity” extends to gender, sexual orientation, minority representation, and the disabled, and is a widely accepted aspiration for our contemporary Canadian legal system. “Diversity” may well be a more useful criterion for a “representative” Supreme Court today than geography. Inviting any qualified candidate to apply will open up a pool of candidates who may be working below the radar and who, in the past, would never have been sufficiently well-connected to be considered. The Qualifications and Assessment Criteria are all laid out on the internet, including seven defining professional skills and experience, six relating to personal qualities, and three to “the institutional needs of the court.” This is an assurance that only the highest quality candidates will be nominated. The statistics to be made public will tell us the size of the current pool of candidates which will be very interesting, indeed.

4) The lack of MPs in the short-list process? The opposition justice critics will be included in the second stage vetting process, and MPs and senators may question the proposed nominee before final appointment. The new independent Advisory Board is an element of the appointment process adopted for the Ontario Court of Justice in 1989/1990. That Judicial Appointments Advisory Committee has no partisan input at the short-list stage, has been very successful in diversifying that bench, and is applauded worldwide by those interested in the issue. Professor Peter Russell, an expert on courts and judicial appointments, was the first chair of that Committee. He was quoted last week as saying that MPs “don’t have a lot to bring to the table” at that stage. For assessing the qualities required of a judge, he feels it is better to have direct input from the profession and the community.

The first Advisory Board is reassuring. Four members represent the Canadian Judicial Council, the Canadian Bar Association, the Federation of Canadian Law Societies, and the Canadian Council of Law Deans. These are best placed to assess the professional skills of the applicants. Three are “prominent Canadians” chosen by the Minister of Justice. Former Prime Minister Kim Campbell, the chair, ensures the non-partisan nature of the Board. Two others bring a distinctive community perspective, one a professional engineer experienced with community services in Montreal, the other the former Premier of the Northwest Territories and President of the Dene Nation.

I am confident that whoever emerges from this process will be a superb appointment to the Supreme Court. That the Advisory Board can recommend improvements in the process, if any, shows that it is not written in stone and could be modified in the future if necessary. I think the new process an exciting initiative which, in the long run, should achieve its objectives.

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