Supreme Court of Canada Refuses to Hear Lawyers Who Argue “Gonzo Logic”

GeorgiaLeeLang025While President Trump’s opponent are having a large-scale melt-down over his recent appointments, perhaps the most consequential of these appointments is his nomination of Justice  Neil Grosuch to replace the late Justice Scalia on the United States Supreme Court.

But lest you think that Canada’s judicial appointments lack the intensity and angst of our American friends, you need only refer back to Prime Minister Stephen Harper’s appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court of Canada in 2013.

You may also recall that Ontario lawyer, Rocco Galati, challenged Mr. Harper’s appointment by filing a lawsuit against Mr. Harper, the Governor-General, Justice Nadon, the Attorney-General, and the Minister of Justice, which undoubtedly prompted the government’s prompt action to have the Supreme Court of Canada issue a ruling on Justice Nadon’s eligibility for our highest court, this after he had already been appointed.

The argument against his appointment was that Mr. Justice Nadon, as a  Federal Court judge, was not qualified to represent Quebec on the Supreme Court of Canada, despite his long tenure as a lawyer in Quebec.

The eventual outcome confirmed Mr. Galati’s position that Judge Nadon was not eligible, a surprise to the Harper government who had contrary opinions from two retired Supreme Court of Canada justices and several constitutional experts.

Most of this has been long forgotten by Canadians, but Mr. Galati’s 2016 application to the Federal Court of Appeal to be paid $800.00 per hour by Canadian taxpayers for his legal work in bringing this challenge has brought this case back to media scrutiny, particularly in light of the Supreme Court of Canada’s decision this week to refuse to hear the case.

Mr. Galati claimed the sum of $51,706.00 and his co-counsel, Paul Slansky, wished to be paid $16,769.oo, again at a rate of $800.00 per hour.

Both counsel admitted that this is not the hourly rate they normally charge, but this amount reflects their years at the bar and their expertise, a proposition that was soundly rejected by the Federal Court of Appeal in their Reasons.

The Court found that Mr. Galati’s and Mr. Slansky’s request for full indemnity for their legal services, called “special costs” was unwarranted for a variety of sensible reasons. For starters, their litigation did not decide the outcome of the Nadon issue, as shortly after they filed their action, the Supreme Court of Canada stepped in, thus ousting their private action. They were not successful litigants.

As well, “special costs”are only awarded when the opposing litigant’s behaviour has been egregious, even outrageous. Short of that, a costs tariff comes into play, a tariff that is far from reimbursement for all legal costs. Additionally, Mr. Galati and his colleague were representing themselves and were actually in-person litigants, not entitled to costs.

The Federal Court also remarked that experienced counsel would know that if costs were to be awarded, the tariff rules would govern. But the court’s ire was raised in response to Mr. Galati’s argument that the constitution supported his request for special costs and that to deny his claim was to be evidence that the Federal Court was “in bed” with the federal government.  To this audacious statement the court replied:

“It is therefore unnecessary for me to deal with the argument as to constitutional entitlement as it does not arise on these facts. That said, it sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case.”

The Court found that Mr. Galati’s  allegation of collusion between the court and the government was “reminiscent of the Gonzo logic of the Vietnam War era, where entire villages were destroyed to save them from the enemy…this argument deserves to be condemned without reservation.”

Regrettably, it is cases like this that lower the reputation of lawyers to right-thinking members of the Canadian public. But “gonzo” aptly describes arguments that are “weird, eccentric and crazy”.

Lawdiva aka Georgialee Lang

 

 

 

 

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

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

Conrad Black Must Wait in Court Line Like Everyone Else

352c45a9a449851d47da3cd61856bca7Conrad Black’s battle to retain his Order of Canada designation will not be resolved quickly, much to his dismay.

Upon receiving notice that the Governor-General’s Advisory Council was reviewing his membership in the Order of Canada, Lord Black sought an opportunity to make oral submissions to the Council, a suggestion rebuffed by them. His attempt to obtain a court order from the Federal Court also failed when they ruled that the removal process only permitted written submissions.

Mr. Black filed an appeal to the Federal Court of Appeal and brought a motion asking the Appeal Court to expedite his appeal hearing, however, he ran into a roadblock when the Court refused to move his case to the front of the line.

The expression “justice for all” comes to mind, or in this case, the delay in Canada’s justice system is an annoyance that does not differentiate between rich or poor, high-profile case or minor nuisance, or expensive lawyer or legal aid.

What it does underscore, however, is the frustration of litigants who wait not months, but years, to access what is reputedly one of the world’s leading justice systems, and everyone is complaining.

Chief Justice Beverly McLachlin, who also happens to Chair the ten-member Advisory Council,in a recent speech at the Empire Club in Toronto, identified “delay” as one of the greatest challenges to our court system. She noted that murder trials that used to occupy five to seven days of court time, now take five to seven months and quoted statistics that an average trial in Vancouver in 1996 took 12.9 hours and only six years later, required an average of 25.7 hours to complete.

Mr. Black is waiting for a date in the Federal Court, a system that is bogged down by thousands of immigration cases and no wonder, when you consider cases like Parminder Singh Saini, a convicted hijacker who entered Canada using a false name and then tied up the Federal Court system for fifteen years in his attempts to avoid deportation.

Meanwhile, Ashley Smith, the young woman who died in prison custody and is now the subject of a coroner’s inquest in Toronto, filed a grievance with the Federal Court, who has jurisdiction over prisons and inmates, that was only opened two months after her death.

So now Conrad Black is at the back of the 12 to 18 month line-up that plagues not just the Federal Court but Provincial and Superior Courts across Canada.

Welcome to the world of single mothers waiting for child support hearings; wrongfully dismissed employees longing for recompense for lost wages; car accident victims who desperately wait for their damage awards and tens of thousands of others who still want to believe that Canada has the finest justice system in the world.

Lawdiva aka Georgialee Lang