SCC Cherry-Picks Principles of Interpretation to Bounce Justice Nadon

GEO CASUALWhen it came time for Prime Minister Harper to fill the vacancy on the Supreme Court of Canada left open by the departure of Mr. Justice Fish (who I had the honour of appearing before on his last day sitting as a justice of the high court), the Liberals and the NDP joined forces with the Conservatives last October to welcome Mr. Justice Marc Nadon to the prestigious Ottawa bench.

In accordance with the Constitution he would sit as one of three judges representing the Province of Quebec, an appointment that was constitutionally vetted by two former Supreme Court of Canada judges and Canada’s leading constitutional scholar.

Unfortunately for Justice Nadon, on the day he was appointed, Toronto lawyer Rocco Galati, took the unprecedented step of applying to oust him, suggesting that as a Federal Court of Appeal judge and a former member of the Quebec bar for 20 years, he was not qualified for the appointment.

Apparently Mr. Galati and Justice Nadon shared some history together during the Omar Khadr terrorist trial, a decision that went against Mr. Kadhr.

In a 6-1 decision last Friday, the Supreme Court ruled that Justice Nadon’s appointment was “void ab initio” meaning it was invalid from the outset.

How did this happen and where do we go from here? Let me explain.

Sections 5 and 6 of the Supreme Court Act set out the terms for the appointment of Supreme Court justices.

Section 5 says that current and former judges of any Superior Court in Canada or current or former lawyers with ten years experience are eligible for appointment.

Section 6 reads: “At least 3 of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”

You will see that the language is problematic, as section 6 does not stipulate that Quebec lawyers or advocates must have ten years experience. As absurd as it seems, section 6 would permit a government to appoint a lawyer with only one year or less at the Quebec bar. As well, section 6 does not clearly identify whether former lawyers from Quebec are eligible as they are in every other Province in Canada.

What to do, what to do? The Supreme Court of Canada relying on principles of statutory interpretation agreed that for section 6 to make sense it had to be read together with section 5 and accordingly, they imported the requirement of ten years into section 6. So far, so good.

However, they declined to link the section 5 stipulation that the appointment of lawyers was not restricted to current lawyers, but also included lawyers who had previously practiced for ten years in Quebec.

Why would there be a difference depending on your Province of practice? The majority opined that it was not enough that Quebec was constitutionally entitled to three judges, while British Columbia and Alberta have to share one judge, but that Quebec’s legal traditions and social values required that appointees who are lawyers must be current members of the Quebec bar.

Query why section 5 must be read with section 6 when it comes to a lawyer’s time at the Quebec bar, but not read with section 6 with respect to former lawyers of the Quebec bar? A cynic, like me, would say that the learned Justices decided on the outcome and then interpreted the law to accommodate their views.

As a lone voice in the wilderness, dissenting judge, Mr. Justice Moldaver apparently agrees, pointing out that a lawyer can join the Quebec bar after paying the required dues and taking 30 hours of legal education over a two-year period, not an insurmountable task. Those who wish to qualify for the Quebec bar don’t even have to live in Quebec or practice law in Quebec, in fact, it appears that a day at the Quebec bar would guarantee eligibility for an appointment to the Supreme Court of Canada.

As for the vitriolic coming from Harper naysayers, their knives are flailing as they take their potshots. Some suggest that Mr. Justice Nadon was never qualified intellectually; that he was nothing more than a part-time (supernumerary) judge, as if that is a shameful position; that our highest Court has delivered a fatal blow to the Conservative government; and that a defiant Supreme Court has stopped Harper from “stacking” the court with Conservative hacks, an assertion that is not borne out by his previous five appointments.

Are we forgetting that the Liberals and NDP also supported Nadon’s appointment? I think so.

I predict that Justice Nadon’s “ride” is over, after all who would put themselves in a position to be drawn and quartered more than once?

Lawdiva aka Georgialee Lang

Facebook Friendship Turns Fatal

DSC00280With the explosion of internet dating and the old tried-and-true “I met him at a bar”, women have every reason to be cautious about who they hook up with. Certainly, if they are not, they are taking an enormous chance that their new boyfriend has a past that would scare even a female wrestler.

Sadly, domestic violence in dating relationships is rampant. Studies show that domestic/dating violence is experienced by 25% of women worldwide and is the leading cause of injury to women, far outpacing car accidents, muggings, and rapes combined.

While women are the predominant victims, 15% of intimate partner violence victims are men. Research also tells us that in 70-80% of domestic homicides, no matter which partner is killed, these tragic events were preceded by domestic violence in the relationship.

It took one such murder to galvanize lawmakers in England and Wales who recently enacted “Clare’s Law”.

Clare Wood, 36, was strangled and set on fire by her ex-boyfriend, George Appleton, at her home in Manchester in 2009. Clare, a single mom, met George on Facebook, completely unaware of his atrocious history of violence against women, including multiple harassments, threats, and the knifepoint kidnapping of a former girlfriend.

After her death, Clare’s father, Michael Brown, vigorously lobbied for new laws to assist women like his daughter, resulting in the enactment of the Domestic Violence Disclosure Scheme this month.

This new program provides information, upon request to the police, about a partner’s previous history of violence. A pilot project testing the new law saw 100 people in four police areas access potentially life-saving information.

It is hoped that this legislated “right to know” will help women make informed decisions about who they let in their lives.

Lawdiva aka Georgialee Lang

Update on Teen Who Sued Parents For Child Support

GEO#1Thankfully some common sense has been injected into the situation between New Jersey teen, Rachel Canning, and her parents, Sean and Elizabeth Canning. Rachel is the 18 year-old who didn’t like her parents’ house rules, moved in with a girlfriend, and ended up in a courtroom suing her parents, courtesy of her girlfriend’s father, a local Lincoln Park politician and….wait for it…!

Rachel obtained a court order on March 5, 2014 that denied her the child support she was seeking, but set up a court process for the matter to proceed to trial with a pretrial hearing on April 22, 2014. It was reported that her benefactor, lawyer John Inglesino, has already spent $13,000 on legal fees on her behalf.

Judge Peter Bogaard’s order also included the suggestions that the parties be encouraged to explore the option of family counselling…no kidding?

Rachel’s lawsuit turned her into an international media pariah, savaged in the court of public opinion, a situation that greatly distressed her parents, who changed counsel after the original hearing.

It cannot be a coincidence that the Canning’s new lawyer, Angelo Sarno, announced yesterday that Rachel had returned home, much to her family’s joy. Mr. Sarno said “(This case) should never have been brought to the court’s attention. It should never have been brought to the public”.

However, after Rachel returned home, her lawyer, Tanya Helfand, ran into court seeking emergency orders to seal the court file and have a guardian appointed for Rachel, telling the court that Rachel was “pressured” to return home by her parents and was waiving her complaint with no promise of financial consideration.

Judge Bogaard denied Ms. Helfand’s application.

So what you have now appears to be a classic legal conundrum. On one side, a lawyer who supports his clients to leave the legal arena before the damage is so devastating there is no possibility of reconciliation between Rachel, her parents and her two younger sisters; matched with a lawyer who apparently wants to continue and even escalate the litigation.

I still don’t understand lawyers who ignore the future ramifications of court actions involving families…one of the reasons why family law matters need to be steered away from court and into mediation or arbitration, if no compromise can be reached.

Not surprisingly, lawyer Inglesino has also been the subject of derision for interfering with Rachel and her parents in a highly personal matter.

It looks like there is only one lawyer in this piece who is wearing a “white hat”…

Lawdiva aka Georgialee Lang

Mass Murderer Receives Compensation for Jail Beating

GEO_edited-1It was a horrible day in Palatine, Illinois, a suburb of Chicago, in the winter of 1993 and it wasn’t just because of the weather. There was a robbery at the Brown’s Chicken franchise where the culprits escaped with a mere $2,000, leaving behind seven corpses and a piece of chicken with human saliva on it.

The case went cold for nine years until a woman told police that her boyfriend, Juan Luna, was involved. Sure enough, with DNA advances, the authorities were able to detect Mr. Luna’s DNA on a piece of frozen chicken and after a trial in 2007, he was convicted of seven murders, narrowly escaping the death penalty by a jury vote of 11-1.

Luna fingered his co-accused, James Degorski, who was also arrested for the murders and upon arriving at the Cook County Jail was severely beaten by jail guard and Cook County deputy, Thomas Wilson.

Mr. Degorski suffered serious facial fractures requiring the insertion of two metal plates in his face. He was also convicted and sentenced to life in prison with no possibility of parole in 2009.

Guard Wilson took a leave and two years later was fired by Cook County, but not before his acquittal for assault causing bodily harm on the basis of self-defence.

Nonetheless, Mr. Degorski sued Cook County and Mr. Wilson in a civil suit seeking damages and compensation for his injuries, a case that saw a jury award this week of almost half a million dollars in his favour.

The jury obviously didn’t believe that Thomas Wilson struck Mr. Degorski in self-defence and despite protestations by Wilson’s lawyer, were not told he had murdered seven people, two store owners, and five employees ages 16 to 46 years old. They were told, however, that he was a convicted murderer.

To say that the families of the victims are unhappy with Degorski’s windfall is an understatement. However, they can take some comfort in the knowledge that Mr. Wilson’s lawyer has agreed to represent each one of the victims’ families for free by filing wrongful death actions against Degorski seeking compensation.

As well, the law in Illinois provides that if an inmate has money, the State can take all funds, with the exception of $15,000, to pay for the prisoner’s expenses for room and board.

What seems like a dangerous precedent is simply the mechanics of the civil law which provides compensation for injured persons, even if they are mass murderers.

As for Brown’s, the store closed after the murders, and almost 100 more franchises in the Chicago area went under after the unspeakable events of January 1993.

Teen Who Doesn’t Like “House Rules” Sues Parents for Child Support

A New Jersey judge has shot down teenager Rachel Canning’s application that her parents pay her $654.00 a week in child support. (That’s over $2,600 a month!)

Depending upon who you believe, Rachel, age 18, says her parents kicked her out of their home in October 2013, two days before her 18th birthday. Her father, retired Lincoln Park Police Chief, Sean Canning, says his daughter, who is deeply loved, left on her own after deciding she didn’t like the “house rules”, which included being respectful, abiding by a curfew, and doing her share of household chores.

She now lives with relatives of her best friend and has been financially supported in her lawsuit by a local politician.

Rachel, an honour student who attends private Catholic School, Morris High, also sought her attorney’s fees and reimbursement for tuition owed by her since her parents stopped payments as of December 2013.

School authorities said they will continue her education despite non-payment.

Judge Peter Bogaard ruled that to make such an order would open the floodgates to disgruntled New Jersey teenagers and was “bad precedent”. He did, however, order the Canning’s to retain Rachel on their health insurance and to leave the college savings account intact.

Psychiatrist Dr. Keith Ablow, who was not involved in the case, opines on Fox News that our courts have no business interfering with parental decisions and that even dealing with health insurance and college savings usurps parental rights.

There will be a further hearing in April to determine her parents’ legal obligation to fund her college tuition.

Rachel took a drastic adult step in launching litigation against her family. I think she’s getting bad advice!

Lawdiva aka Georgialee Lang

Could It Happen in Your Family?

DSC00507 (2)Tomorrow at 5 pm I’ll be doing an interview with Jill Egizii who is the host of her own show on out of Springfield Illinois. Jill is a local politician and advocate for children with a special interest in parental alienation.

She’ll be discussing a story out of California involving pop radio icon Casey Kasem, now 81-years-old, who ruled the airwaves for decades as a music historian and deejay, best known for the popular show “American Top 40″ and its multiple spin-offs.

Mr. Kasem retired from radio and his impressive voice-over career in 2009 once he became debilitated by Parkinson’s disease. Recently, however, he has been back in the media spotlight as a result of a situation that is sadly, not uncommon.

Mr. Kasem’s three adult children, Mike, Julie and Kerrie, from his 7-year marriage to his first wife, Linda Meyers, have been refused contact with their father by his second wife, albeit of 33 years, whose relationship with his children was sour from the get-go in 1980.

Media reports indicate the children were very close to their father, who is of Lebanese heritage, and had regular contact with him until he became immobilized due to his illness and also lost his ability to speak.

Daughter Julie brought a conservatorship application in an attempt to become involved in his care, however, she dropped the court case after negotiating visiting time with her father’s wife, Jean Kasem.

The children’s desperate campaign to see their father has included “picketing” in front of the home he shares with Mrs. Kasem, all in an effort to gain access to him. But it is not only his children who are barred, but also close friends and long-time business associates, who participated in the protest outside his Holmby Hills estate in Los Angeles.

In December of last year, Mrs. Kasem consented to the children seeing their dad for twenty-minutes before being escorted out by a paid “bouncer”.

As a result of the profile of this family, one California legislator is proposing new law to protect disabled, elderly parents from “forced” estrangement, such as in this case.

Sadly, with the multiplicity of divorce and remarriage, there will be more cases like this and more elderly victims.

Kerrie Kasem will also be featured in this interview.

Lawdiva aka Georgialee Lang

Is Prostitution Just a Job?

GEO CASUALAs the Conservative government reviews their options to replace the law struck down by the Supreme Court of Canada governing prostitution-related activities, two polarized views of what Canada’s sex trade industry should look like have emerged.

One camp believes that now is the time to legalize prostitution and treat it as an occupation like any other, with labour and human rights protections, employment that generates revenue through taxation. Proponents of legalization say that prostitution is a victimless crime engaged in by consenting adults. For them, viewing prostitution through a moral lens is myopic. They say it is legitimate work, albeit in a potentially violent workplace, and that whatever ills accompany the sex trade are exacerbated by criminalization.

Others see prostitution as rampant gender inequality; the exploitation of girls and women that perpetuates the notion that sex trade workers are little more than merchandise; throw away victims of the male demand for sex. They posit that the recruitment of vulnerable young girls, trafficked as sex slaves, demands a solution that precludes blind acceptance and legitimization of the world’s oldest profession.

For them, the Nordic model provides an answer to the problem facing legislators who have one year to fix the law, or be left with no law at all. Originating in Sweden in 1999, and later adopted by Norway and Iceland, this model criminalizes buyers of sex, but decriminalizes the act of selling sex. An important part of Sweden’s law was the creation of “exit” programs for women who wished to leave the sex industry, together with comprehensive social services.

Other countries, such as South Korea, have endorsed a modified version of the model, while citizens of Ireland, France, Denmark and Latvia strongly support it.

But will criminalizing “johns” really curtail the demand for sexual services and lead to the diminution of prostitution in Canada? Sweden’s Ministry of Justice reports that street prostitution has been cut in half and the country is no longer a desirable destination for human trafficking. Surveys conducted in the United States and Scotland suggest that criminal punishment will deter buyers. In a survey of 113 men in Chicago, 83% agreed that jail time would deter them from buying sex and 75% said that stronger criminal penalties in general would curb their enthusiasm for prostitutes. Another survey in Scotland had similar responses.

As for me, I cannot imagine a Canada that would allow young girls (and boys) and women to be used and abused freely, with the government collecting their share of the profit through taxation. I also cannot picture any right-thinking parent promoting prostitution as viable employment for their daughters and sons.

What is certain is that the new law must be able to withstand a Charter of Rights challenge and make no mistake about it, there will undoubtedly be one.

Lawdiva aka Georgialee Lang