The Politicization of Canada’s Supreme Court

GEO CASUALWe should have known that the failed appointment of Mr. Justice Marc Nadon to Canada’s Supreme Court of Canada was just the beginning of the politicization of Canada’s Supreme Court.

It was surprising to many that Prime Minister Stephen Harper and Chief Justice Beverly McLachlin of the Supreme Court of Canada, sparred publicly, albeit gently, over allegations that the Chief Justice had improperly interfered with the executive branch of government’s appointment of Federal Court of Appeal Justice Nadon to Canada’s highest court.

Ultimately, the issue was thrown back to the high court when Toronto lawyer Rocco Galati successfully challenged Nadon’s appointment before Quebec’s Federal Court, a move that forced Mr. Harper to obtain the opinion of the judges who were now Justice Nadon’s colleagues in Ottawa.

The Court’s ruling against Justice Nadon’s appointment was seen as a “slap in the face” to Mr. Harper, and the liberal media took obvious delight in putting Harper “in his place”, amid nasty insults and demeaning comments directed at the beleaguered Nadon.

Justice Nadon slinked back to the Federal Court, more battered and bruised than when he departed.

But surely this was a one-off, not to be repeated? How I wish that were so. Mr. Harper’s recent appointment of Suzanne Cote is now being slammed by certain Canadian “law students, lawyers, and law professors”, a whopping 350 of them.

They are apparently upset that Madam Justice Cote was not vetted by a multi-party parliamentary committee prior to her appointment. They must have short memories, because when Mr. Harper introduced a vetting process for the first time in Canada in 2006, with the appointment of Mr. Justice Rothstein, many anti-Conservative lawyers and law professors criticized the Americanization of the appointment process.

Gallingly, the naysayers are now at work trashing Ms. Cote’s reputation, alleging misconduct in respect of two cases she handled as a lawyer.

In a class-action lawsuit brought by ill and addicted smokers against several multi-national tobacco companies, Ms. Cote acted for Imperial Tobacco commencing in 2010. The lawsuit began more than a decade before her involvement, nonetheless, they blame her for the delay and also claim an “abuse of process” in the multiplicity of allegedly frivolous applications and appeals.

It’s called “hard-fought” litigation folks and I expect the plaintiffs are giving as good as they get, with their own phalanx of high-priced lawyers.

Their second complaint is in a letter to the Canadian Judicial Council, where they suggest that Ms. Cote’s conduct as independent counsel for the Inquiry panel hearing the Judge Lori Douglas bondage scandal deserves censure. The case revolves around nude photos of Judge Douglas, taken by her husband and posted by him online.

Ms. Cote’s sin is that she argued that the photos must be entered as evidence in the Douglas Inquiry, a position opposed by Judge Douglas and called “callous and gratuitous” by Ms. Cote’s critics.

The panel admitted the photos and shortly thereafter, Ms. Douglas announced her upcoming resignation and the Inquiry adjourned. The complainants suggest that Ms. Cote’s conduct was demeaning and forced Judge Lori Douglas to resign.

The executive director of the Canadian Judicial Council properly belittled the complaint, spearheaded by second-year law student Esther Mendelsohn of Osgoode Hall Law School, saying:

“I hate to say something like this, it’s not my style, but a second-year law student saying one of the most esteemed lawyers in Canada didn’t do things the way she should have is something I reject
entirely.”

Given Ms. Mendelsohn’s intemperate remarks, she must be planning to skip any Supreme Court of Canada litigation in the future.

Lawdiva aka Georgialee Lang

Why I Support Canada’s Proposed New Law on Prostitution

BarristerOn Tuesday I will make submissions to the House of Commons Justice Committee on Canada’s new prostitution laws, which passed second reading several weeks ago, and will surely become the law of the land, perhaps with some amendments.

As many of you know, I was counsel for the Evangelical Fellowship of Canada in Attorney General v. Bedford and one of the few voices in the Supreme Court of Canada that urged that prostitution not be legalized.

Of course, we all know that the law criminalizing activities related to prostitution was deemed unconstitutional by the Supreme Court of Canada last December, thus opening the door for our federal government to create new law, taking into account the necessity for it to pass constitutional muster.

The new law does just that. It decriminalizes prostitution for the women and girls that trade in sexual services, but makes it illegal to purchase sex in Canada, thus targeting customers (johns) and those who seek to exploit (pimps) the mostly female, often aboriginal victims of the sex trade. It permits the selling of sexual services so long as it is not conducted in the vicinity of children 18 or under. It also forbids the advertisement of sexual services.

The basis of my objections to the legalization of prostitution is founded on one of Canada’s underlying principles, that respect for the human dignity of each person is foundational to our society, a dignity whose inherent value was confirmed by our highest court in the Rodriguez case (euthanasia) and finds expression in the 1949 United Nations Protocol on the trafficking of humans, a convention signed by Canada which provides:

“Prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of a person and endanger the welfare of the individual, the family and the community.”

The view that prostitution subordinates and victimizes women and girls is not particularly popular, but I have seen it first hand when I lived on Granville Street in the early 1970’s and in Vancouver’s west end in the 80’s. The image of a “happy hooker” is a Madison Avenue gimmick that has no basis in reality.

When my husband, Doug, ran the Vancouver Vice Squad, I saw again the squalor and exploitation of young, addicted woman, both tragic and poignant.

To those who say that legalization is the only answer, one only has to look at those countries who have based their social policy on sex work as a legitimate job with benefits paid and tax collected.

Perhaps the best example that the harms inherent in prostitution are not alleviated by legalization is the State of Victoria in Australia where prostitution was legalized in the 1990’s.

It was said that legalizing sex work would assist in eradicating the criminal element, guard against unregulated expansion, and combat violence against prostitutes.

How wrong they were…violence was not eliminated, street prostitution was not curtailed as they naively expected, working conditions were no safer than before, prostitution escalated and turning sex work into a legitimate business opportunity for women and girls did not dignify or professionalize prostitutes.

Instead there occurred massive expansion, particularly in the illegal sector with unlicensed brothels. Women were not empowered to become self- sufficient entrepreneurs, as they could not compete with the businessmen who took over the brothel business. Street prostitution was not eliminated as street workers had a host of social problems including addictions, mental illness, and an inability to be hired by legal brothels because of their lifestyles.

Canada’s new prostitution bill addresses many of the safety concerns identified by the Supreme Court of Canada, but more than that, the tenor of the law does not accede to the notion that prostitution is acceptable and legitimate in a free and democratic society.

In my view, prostitution not only harms the women and girls involved but also undermines the social fabric of Canada. It is too easy not to try to provide a way out for our mothers, sisters and aunts who are trapped in this degrading practice. It is a basic issue of human rights.

Lawdiva aka Georgialee Lang

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

Highest Court to Hear Mr. Big Case

BarristerThe Supreme Court of Canada is poised to hear arguments in R. v. Hart this week, a case involving Newfoundland father, Nelson Hart, who was convicted of first degree murder in the deaths of his twin three-year-old daughters, Krista and Karen, after they drowned in Gander Lake in 2002.

Mr. Hart successfully appealed his 2007 murder convictions and was granted a new trial by the Newfoundland and Labrador Court of Appeal on the basis that the sting operation which resulted in Mr. Hart’s confession to murder was unreasonably coercive given his particular circumstances.

The Appeal Court also found that the trial judge improperly refused to allow Mr. Hart to testify in a manner that would exclude the court gallery from viewing him while he gave his evidence. Hart’s lawyer at trial argued that his medical condition made it difficult for him to speak in front of groups of people.

The evidence at trial showed that Nelson Hart was a bullied, social misfit with a grade five education who suffered from frequent seizures due to epilepsy. His medical condition was so severe that social services provided him with a caregiver, who he later married and sired twin girls with.

On the fateful day his daughters drowned he was alone with them at Gander Lake. He told the police their drowning was accidental, but his behavior was suspicious. Instead of calling 911 on his cell phone, he left the lake to pick up his wife, Jennifer, to enlist her assistance. Of course, by the time he returned to the lake the children were dead. Hart, 33 years-old, was a non-swimmer, as was his wife.

He later changed his story, telling authorities he had a seizure, and didn’t know what had happened, but with no forensic evidence or eye witnesses the police could not arrest or charge him.

Out of desperation and their zeal to find justice for the young girls, the Royal Canadian Mounted Police launched a Mr. Big operation, inducing Hart to believe he could be a well-paid member of a sophisticated criminal organization. They wined and dined Mr. Hart for five months at various locations across Canada, and finally elicited a murder confession from him.

He was found guilty at trial and sentenced to 25 years in prison.

However, the Court of Appeal found that because of Mr. Hart’s unique circumstances, including his extreme poverty and absence of a social network, he embraced the undercover operators and their wives who provided him with the first real “family” he had ever experienced.

When Hart realized he needed to impress his new friends and would lose them and the extravagant benefits they provided him, he willing admitted to intentionally murdering his children, saying that he feared his kids would be taken away by social services as he had no way of supporting himself or his family.

Newfoundland Crown decided to appeal the decision rather than proceed to a new trial, hence the hearing in Ottawa this week.

Mr. Justice Green of the Court of Appeal wrote:

“Did Mr. Hart confess falsely — or truthfully? We will never know with any degree
of certainty or even assurance on the basis of the trial that occurred. In fact, without a truthful confession from Mr. Hart, we will not know whether a crime was committed at all.”

This is not the first time our highest court will consider the tactics involved in Mr. Big stings, but in the other cases there was corroborative evidence supportive of a Mr. Big confession, while in the Hart case, there is no evidence except Nelson Hart’s confession.

Lawdiva aka Georgialee Lang

A Tough Pill to Swallow: Indefinite Spousal Support is Here to Stay

IMG_0277While several jurisdictions in the US, including New Jersey, Maine, and Massachusetts, have made efforts to rein in life-time spousal support, I predict that Canadian law makers will not jump on the bandwagon anytime soon. In fact, I believe Canadian spouses (read “women”) will hold their place as the “most likely to succeed” financially post-separation, particularly in relation to their American sisters.

Yes, it’s true that it hasn’t always been this way. In the early 1980’s a majority of the Supreme Court of Canada in Messier v. Delage held strong to the philosophy that the obligation of support between ex-spouses “should not continue indefinitely when the marriage bond is dissolved,” and decried the notion that “one spouse could continue to be a drag on the other indefinitely; acquire a lifetime pension as a result of the marriage; or luxuriate in idleness at the expense of the other.”

The support noose got even tighter in 1987 after a trio of cases made their way up to Canada’s highest court. In Pelech v. Pelech, Caron v. Caron and Richardson v. Richardson the Court determined that spouses who had signed agreements dealing with spousal support could not easily shake loose of them.

The test to challenge an agreement that denied a spouse spousal support, or an attempt to increase or extend the time period for support required the applicant spouse to show there had been a radical change in circumstances causally linked to the marriage.

The first part of the legal requirement, establishing that a change was radical, was relatively easy. If a wife agreed to take no support and later became disabled or unemployable it was not difficult to characterize the change in her ability to work as radical.

More stringent, however, was the additional requirement that the radical change be attributable to the marriage. So, for example, if a wife signed a separation agreement that gave her no spousal support because she was fully self-supporting, and she later became disabled from an illness that did not manifest itself until after the divorce, her financial need could not be linked to her marriage. No link, no support.

For women who found themselves in this situation, their only hope was family support, welfare, or a second marriage.

Meanwhile, the federal government overhauled the Divorce Act 1968 and replaced it with a new Divorce Act in 1985. The new model for support called for an analysis of the economic advantages and disadvantages suffered by both spouses from the marriage or from the breakdown of the marriage. The stage was now set for a groundbreaking Supreme Court of Canada decision.

In 1992 the support pendulum swung hard in the opposite direction with a case that involved a spousal support payment of a mere $100.00 per month. In Moge v. Moge the Supreme Court of Canada introduced a new way of thinking about spousal support, with a support rationale that was based on compensation to a spouse, instead of just a consideration of “means and needs”.

In this ground breaking decision the Court directed judges to explore the economic consequences of divorce with a greater focus on women’s work at home as mothers and wives and the aftermath of staying at home, while their husbands worked.

The Court recognized that women in this position typically had no job skills, limited opportunities for education, and no pensions, savings, or health benefits.

Fast forward to 2006 when the federal government introduced Canada’s Spousal Support Advisory Guidelines, a further move to a more generous system of spousal support. The Guidelines provided a scheme to ensure that supported spouses received support that could be as high as 43% of their partner’s gross income. They also set a formula to determine how long support would be paid.

The upshot was that spouses who were married for 20 years or more typically received indefinite support that could be reviewed or varied if there was a material change in circumstances. Spouses in marriages under 20 years would receive support equivalent to the length of their marriage, also subject to variation if the supporting spouse could show a material change in circumstances.

While this analysis is a simplification of the Guidelines, there can be no doubt that the Spousal Support Guidelines benefitted women, and men were burdened with higher support payments, paid for a greater length of time.

In recent cases in British Columbia, men seeking to decrease their support have only been mildly successful, while most obtain no relief at all. Even men in their 60’s and 70’s who legitimately wish to retire, are often forced to keep working in order to pay support to their former wives. Yes, even if they have second wives and families.

In 2012 the Supreme Court of Canada reinforced their model of generosity in L.M.P.v. L.S. when they decided that spouses receiving support pursuant to an agreement were not necessarily bound by the terms of their agreement because recipient spouses may have been under intense emotional strain at the time they negotiated their agreements. In other words, even if the agreement called for the end of support, a court may well ignore the agreement.

As a result of this decision husbands in Canada can now wave good-bye to well-established principles of certainty and finality when they settle support issues.

Hearkening back to my original point, the Canadian trend in spousal support in no way resembles the burgeoning alimony reform sweeping through the United States. In fact, Canada continues to move in a direction that will eventually financially cripple husbands, particularly those that pay both child support and spousal support.

Yes, we need alimony reform, directed at spouses who are able to contribute to their own support, but choose not to, but we are unlikely to get it anytime soon.

Lawdiva aka Georgialee Lang

Judicial “Copying” Longstanding and Acceptable Says Highest Court

GEO CASUALTwo years ago the British Columbia Supreme Court heard a case about a young boy who had severe brain damage and cerebral palsy as a result of difficulties during his birth. His mother sought damages on his behalf and was awarded several million dollars. His doctors and the hospital, who were found to be at fault, appealed the decision.

As is usual, a three-member panel of British Columbia’s Court of Appeal listened to their arguments and handed down their Reasons. What turned this case from a tragedy for this family to a case worthy of the attention of the Supreme Court of Canada was that two of the appeal judges excoriated the trial judge, accusing him of plagiarism by including lengthy excerpts from one of the lawyers’ written closing arguments in his Reasons for Judgment.

As a result of their findings, they set aside the young boy’s damage award and ordered a new trial, a devastating result for a family who had already suffered so much.

Many in the legal profession were shocked that this usually scholarly, genteel group of jurists would publicly impugn a sitting judge, for indulging in a practice that was frankly, commonplace. In fact, as far back as British jurist Lord Blackstone, lawyers hoped their written closing submissions would find a place in the Court’s Reasons and ultimately, dictate the Court’s decision.

Last week the Supreme Court of Canada ruled that Mr. Justice Groves’ so-called plagiarism was nothing of the kind and his rebuke by the appeal judges was exposed for what it was: an inappropriate attack on an exemplary judge who did nothing wrong. (Cojocaru v. BC Women’s Hospital 2013 SCC 30)

Chief Justice McLachlin noted that “judicial copying” is a longstanding and accepted practice which should only be condemned if it so egregious that it displaces the presumption that judges fufill their duties with integrity and impartiality.

She gave short-shrift to the criticism that a judges’s Reasons must be an “original” product of the judge’s mind and mused that a lack of originality is “part and parcel” of the judicial process:

“Borrowed prose, attributed or not, does not establish that a judge has failed to come to grips with the issues to be decided.”

She also affirmed that to criticize a judge for utilizing excerpts from counsel’s written submissions is to fundamentally misunderstand the Court’s task and the time-honoured tradition of decision-writing.

She noted that unlike term papers, novels, essays and newspaper articles, a judge’s Reasons reflect a body of law and legal principles that have been arrived at based on precedents, which over the years when recited in successive decisions take on a “deja-vu” quality. The verbatim repetition of legal formulas is de rigueur, representing the “tried and true” rather than the novel.

For Mr. Justice Groves the exoneration must be bittersweet, as he spent two years under the shadow of plagiarism that never was.

Lawdiva aka Georgialee Lang

Trial Debacle Leads to Freedom for Nova Scotia Sex Offender

BarristerDespite what you hear or read, you can’t blame Ernest MacIntosh for today’s Supreme Court of Canada decision to quash his convictions for sex charges involving young boys in the 1970’s.

A successful Cape Breton businessman, MacIntosh was transferred by his employer to Singapore and then to India in 1994 where he remained until his extradition back to Canada in 2007 to face numerous counts of indecent assault and gross indecency charges stemming from allegations made by six young men in 1995.

When MacIntosh left Canada in 1994 there were no charges against him and he had no idea that charges may be laid. Over the years he travelled between India and Canada, renewing his Canadian passport from time to time as required by Canadian law.

He was not hiding from the law. Canadian authorities knew where he lived in New Delhi and had his phone number. Coincidentally, one of his neighbours was an RCMP officer who worked as a liaison in India.

MacIntosh finally became aware of two criminal charges in 1997 but was led to believe by Canada Passport authorities that the charges were not proceeding. He heard nothing more until nine years later, despite the fact that in 2001 fifteen more charges were brought against him and he renewed his passport in 2002. The Crown acknowledged their decision to extradite Mr. MacIntosh in 1997 but as you will read, did nothing about it for nine years.

In 2006 the Crown filed extradition proceedings in India, some 11 years after the first charges were laid and five years after the second group of charges were filed against him.

Mr. MacIntosh was brought back to Canada in June 2007 but did not receive complete mandatory disclosure from the Crown until eleven months later, an astonishing delay considering that the Crown had readied their cases years before.

He finally went to trial in July 2010 and was convicted on several of the charges. However, the Nova Scotia Court of Appeal overturned the convictions based on the 14 year delay of the Crown in proceeding against MacIntosh. But that wasn’t the only problem with the convictions.

The trial judge had so badly confused the evidence, even mixing up the witnesses and attributing evidence to one witness that was derived from another, that the Appeal Court determined that even absent the extraordinary delay, the judge’s errors would be cause for a new trial.

A key issue at the trial was centred on statements made by an alleged victim in 1995 and again in 2000 concerning details of the abuse he suffered, that simply could not be reconciled.

The trial judge acknowledged the discrepancies and based on the victim’s evidence and the testimony of another witness, determined that the assault did not take place at all. Yet despite this finding, the judge did not turn his attention to the issue of the victim’s overall credibility.

The finding that the alleged abuse did not occur as described, or at all, points to a flaw in the Crown’s preparation of their witness. In cases where a witness signs a comprehensive statement which he radically amends five years later, it is incumbent upon the Crown to test the evidence of the witness to ensure its reliability. Under cross-examination, this witness agreed that the event did not occur.

That the Supreme Court of Canada denied the Crown’s appeal in an oral judgment from the bench speaks to the Crown’s flimsy case. After all, an accused is not obliged to turn himself into the police or give a statement. It is the Crown’s job to bring an accused to trial.

Most notably, the Crown was unable to provide any rationale for their delay in prosecuting this case and cries for a public inquiry may well be revived now that our highest court has spoken.

Has an injustice occurred? Perhaps, but the fault lies with those paid to bring criminals to trial.