The Mike Duffy Decision: Index to the Judgment

***** This is an unofficial index to the Decision and was not prepared by the Ontario Court of Justice or the legal publishers. Numbers refer to the paragraph numbers in the written decision of Mr. Justice Charles Vaillancourt available on the internet.

  1. Introduction and Fundamental principles:
    a) Presumption of innocence. 3-30.
    b) Principles re: Reasonable Doubt, Burden of Proof and Credibility. 9-11.
  2. Approaches taken by counsel: 12.
  3. Credibility issues relating to Senator Duffy. 15-69.
  4. General Background of Senator Duffy. 70-71.
  5. Appointment to the Senate. 72-75. Legality of his appointment not what trial about.
  6. The Senate as an Institution. 76. Reform of Senate not what trial about.
  7. Primary Residency Claim (Counts 1 and 2. 77-224.
    a) charges against Mr. Duffy. 77.
    b) crown’s position. 78-84.
    c) what do we know about “residency”? 85-94.
    d) what do we know about the property in Cavendish? 95-129.
    e) defence position. 130.
    f) Duffy’s connection to PEI. 131-135.
    g) Duffy’s reliance on representations of key authoritative officials intro. 136.
    h) Prime Minister Stephen Harper. 137-141.
    i) Senate officials. 142-144.
    j) Prime Minister’s Office. 145.
    k) Senator LeBreton, Senate Leader. 146.
    l) Primary Residence Declaration. 147.
    m) Application of Advice. 148-150.
    n) Senator Tkachuk. 151-152.
    o) Duffy’s Conclusion re: Primary Residency. 153.
    p) Duffy’s Efforts to upgrade PEI dwelling. 154-156.
    q) The Duffys’ Financial State. 157-168.
    r) Additional evidence negating any criminal mens rea. 169-182.
    s) No proof the Actus Reus. 183-211.
    t) The Constitution Act 1867. 184.
    u) SARS provisions. 185-187.
    v) The Declaration/designation form. 188.
    w) The 22nd Report of the Standing Committee on Internal Economy. 189.
    x) Mark Audcent. 190-192.
    y) Other Senate Guideline Documents. 193-195.
    z) Nicole Proulx. 196-197.
    aa) Paul Belisle. 198.
    bb) Speaker George Furey. 199-204.
    cc) Other statutory provisions relating to definition of residence. 205.
    dd) Income Tax Act. 206.
    ee) Significance of Definitions or Lack of Same. 207.
    ff) Subsequent change in policy and forms. 208-209.
    gg) No evidence of departure from conduct of other Senators. 210-211.
    hh) Justice Vaillancourt’s Conclusion. 212-224.
  8. Travel Expense Claims (Counts 3-20). 225-571.
    a) Crown’s Position. 225-268.
    b) Senate Administration Principles. 226-228.
    c) Use of pre-signed forms. 229-242.
    d) Proof that Duffy directly responsible for expense claims. 243-245.
    e) Crown’s overview of first eight travel claims (Counts 3-18). 246.
    f) Expenses re: non-Parliamentary partisan activities (Counts 3-6). 247-264.
    g) Introduction to Counts 7-18 re: personal business. 265-268.
    h) Defence overview re: Counts 3-18 and Counts 19-20. 269-272.
    i) The SARS Travel Provisions. 273-277.
    j) Additional Senate Instruments and Documents. 278-280.
    k) No Proof of mens rea. 281.
    l) No Evidence of Communication of New Travel Policy. 282
    m) The Senators’ Travel Policy. 283
    n) The 11th Report of the Internal Economy Committee. 284.
    o) Lack of Clear Policy. 285.
    p) Additional evidence of no criminal mens rea. 286.
    q) Pre-Signing of expense claims not proof of crime. 287—288.
    r) Evidence of Senate witnesses (Duffy, Audcent, Proulx, Furey, Belisle, Bourgeau, Pugliese, Vos/Mercer, Scharf) re: expense claims. 290-312.
    s) Individual Fact Situations
    i) Peterborough and Cambray, Ontario (Counts 3 and 4). 313-330.
    ii) Conclusion- dismissed. 326-330.
    iii) Western Canada trip (Counts 5 and 6). 331-356.
    iv) Conclusion – dismissed. 354-356.
    v) Saanich Fair (Counts 7 and 8) 357-397.
    vi) Conclusion – dismissed. 388-397.
    vii) Peterborough (Counts 9 and 10). 398-425.
    viii) Conclusion – dismissed. 419-425.
    ix) Cockrell House, (Counts 11 and 12). 426-454.
    x) Conclusion – dismissed. 451-454.
    xi) Vancouver Boat Club Meeting. (Counts 13 and 14) 455-487.
    xii) Conclusion – dismissed. 482-487.
    xiii) Trip PEI to Ottawa for Medical Appointment (Counts 15 and 16) 488-506.
    ——xiv) Conclusion – dismissed. 503-506.
    ——xv) Trip PEI to Ottawa for Speech (Counts 17 and 18). 507-530.
    ——xvi) Conclusion – dismissed. 503-505.
    ——xvi) Attendance at Funerals etc in PEI. (Counts 19 and 20) 531-571.
    xvii) Conclusion – dismissed. 568-571.
  9. Expense Claims Made for Personal Services (Counts 21-28). 572-888.
    a) Background of Maple Ridge Media, Ottawa ICF and Gerald Donohue. 573-594.
    b) Overview of Crown’s Position. 595-633.
    c) Chart of payments made by Maple Ridge Media and Ottawa ICF. 61.
    d) Overview of Defence Position re: all service contracts at issue. 634-636.
    e) Evidence of Sonia Makhlouf. 637.
    f) The Senate Administration Rules. 638.
    g) Other Senate Provisions. 639.
    h) 36th Report of Internal Economy Committee research allowance. 640.
    i) Evidence of Nicole Proulx. 641.
    j) Evidence of Gerald Donohue. 642-654.
    k) Evidence of Senator Duffy. 655 – 661.
    l) Individual Service Providers – all paid under “common practice” general services contract with Maple Ridge Media and Ottawa ICF rendered Senate-related services. 662-695.
    m) Monies Paid for “Illegitimate Expenses” (Counts 23-28). 696-888.
    i) Intern Ashley Cain ($500 honorarium). 696-704.
    ii) Make-Up Services to Jacqueline Lambert ($300 Makeup). 707-720.
    iii) Exercise Consultant Mike Croskery (+$10,000). 721-740.
    iv) Comments of Justice Vaillancourt on Exercise Consultant. 736-740.
    n) The Law. 741-836.
    i) Fraud. 742-758.
    ii) Breach of Trust. 759-823.
    iii) Wilful Blindness. 824-836.
    o) Distinguish criminal trial v. administrative or disciplinary hearing 838
    p) Media coverage. 839-840.
    q) Conclusion. 841-888.
    i) General recap. 841-850.
    ii) Counts 21 and 22 dismissed – all proper Senate expenses or used for Senate. 
    ——iii) Counts 23 and 24 dismissed – honest mistake, no criminal intent. 886.
    iv) Counts 25 and 26 dismissed – not criminal conduct. 887.
    v) Counts 27 and 28 dismissed – material change of relationship. 888.
  10. Charges Pertaining to $90,172.24 Payment from Nigel Wright (Counts 29-31). 889-1241.
    a) The Nature of the PMO. 890-892.
    b) Emails: the Facts Behind the Payment. 893-1028.
    c) “Peering Through the Looking Glass.” Justice Vaillancourt’s assessment of what he had learned from the emails about how the PMO operated. 1029-1039.
    d) “Examination of whether Senator Duffy’s conduct amounted to criminality or whether he was just another piece on the chessboard… ” 1040-1241.
    i) Crown’s general position: his solicitation and acceptance of funds elevated conduct to criminal offence. 1040-1054..
    ii) Crown re: bribery charge (Count 29). 1055-1085.
    iii) Defence position re: bribery charge (Count 29). 1086-1091.
    iv) Conclusion on Count 29. 1092-1115 – dismissed.
    v) “Bayne’s cross-examination provided many thought-provoking points… the evidence of Senator Duffy was most compelling..” 1095.
    vi) Do not accept that Duffy’s comments about not having the funds amounts to a demand for reimbursement of his living expenses. 1097.
    vii) “I find there is an overwhelming amount of evidence from the Crown witnesses, the emails and Senator Duffy that the (mistake-repay) “Scenario” theory put forward by the Defence was alive and well throughout this drama.” 1098.
    viii) “I have included the emails earlier in this judgment to highlight the unbelievable lengths that Mr. Wright and his crew went to in order to deal with the ‘Duffy Problem.’ Could Hollywood match such creativity?” 1099.
    ix) The beginning of the payment goes back to the “murky uncertainty” regarding Duffy’s primary residence and the claims resulting from that designation. Nigel Wright agreed that he “probably didn’t owe any money”(as Duffy insisted) but “the political fallout” made Senator Duffy “a major problem” that wouldn’t go away. 1101-1106.
    x) Duffy was not buying into the mistake-repay scenario, so “the PMO employed a two-pronged approach to deal with (him).” “The primary approach involved the use of a steady stream of threats and pressure being applied from all quarters… well documented throughout this judgment. The other approach involved using the ‘do the right thing’ message…. I find that had only one meaning. Senator Duffy was to do the politically right thing by admitting ‘his mistake’ and repaying back the accused living expenses…. “1106-1109.
    xi) “The PMO was also very active working behind the scenes to get all their ducks in a row….” 1110.
    xii) ” I find on all the evidence that Senator Duffy was forced into accepting Nigel Wright’s funds so that the government could rid itself of an embarrassing political fiasco that just was not going away.” 1111.
    xiii) “I find that Senator Duffy did not demonstrate a true acceptance of the funds and did not accept them voluntarily.” …(and) “that there was no corrupt acceptance of the funds by Senator Duffy….no elevated mental culpability or mens rea required….” 1112-1113.
    xiv) “I agree that this entire ‘Scenario’ was not for the benefit of Senator Duffy but rather, it was for the benefit of the government and then PMO. This was damage control at its finest.” – Count 29 dismissed. 1114-1115.
    e) Applicability of Officially Induced Error and a Judicial Stay in the circumstances of this case. 1116-1163.
    i) Agree that legal elements of “officially induced error” made out. Justice Vaillancourt would have stayed Ct. 29 if he had not dismissed it on its merits. 1117, 1161-1163.
    ii) Agree that “the state cannot now turn around and prosecute Senator Duffy to conviction for what senior Government of Canada officials assured him was “the right thing to do.” 1118.
    iii) Duffy’s evidence re: his reliance on the representations of the PMO and Senate leaders and his lawyer unchallenged in cross-examination. 1126.
    iv) Senator Duffy’s evidence re: “the Scenario” and the pressure put on him by the PMO to go ahead whether he wanted to or not. Includes his evidence that on February 13th, the Prime Minister told Senator Duffy “I know it’s unfair Duff. I know it seems unfair. I know you didn’t break the rules, but the rules are inexplicable to our base, and therefore you’re going to have to pay the money back. Nigel will make the arrangements.” All of this evidence was unchallenged in by the Crown in cross-examination. 1127.
    v) Evidence of Nigel Wright. 1128-1136.
    vi) Evidence of Chris Woodcock. 1137-1141.
    vii) Jurisprudence on Officially-Induced Error. 1142-1160.
    f) Fraud on the government (Count 30). 1164-1212.
    i) Nature of the charge. 1165-1166.
    ii) Crown’s argument. 1167-1176.
    iii) Defence submissions. 1177-1206.
    iv) Conclusions. 1207-1212. Finds that Duffy had the consent of the Prime Minister through the PMO and the Senate leadership to go along with the “Scenario.” 1208. Finds that Duffy did not receive a true advantage or benefit and that “the true recipients of any benefit (the disappearance of a political embarrassment) are Nigel Wright, the PMO, the Prime Minister and the Conservative Party of Canada. 1209. Finds no true acceptance of any benefit. 1210.
    v) Count 30 dismissed. In the alternative, would have stayed the charge.
    g) Breach of trust by a public officer. (Count 31)
    i) Nature of the charge. 1213-1214.
    ii) Crown submissions. 1215-1224.
    iii) Defence submissions. 1225-1234.
    iv) Conclusion: Do not view Duffy’s comments that he did not have the funds to repay a request or demand for funds. 1236. Do not find that Duffy was trying to avoid cooperating with third party auditors. 1237. His eligibility for appointment as senator is not before the court for good reason. “The Prime Minister of Canada appoints Senators. If there are issues regarding eligibility, those concerns are addressed by the Senate and not the courts.” 1238. “Mr. Neubauer stated that Senator Duffy’s actions were driven by deceit, manipulation and carried out in a clandestine manner representing a serious and marked (departure from the) standard expected of a person in Senator Duffy’s position of trust. I find that if one were to substitute then PMO, Nigel Wright and others for Senator Duffy in the aforementioned sentence that you would have a more accurate statement.” Adopts Mr Bayne’s approach. Count 31 dismissed. In the alternative would have stayed on the basis of officially induced error. 1239-1241.

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Carter v. Canada (Attorney General) #1: Judicial Restraint at its Best

The Supreme Court of Canada (hereafter SCC) decision in Carter v. Canada (Attorney General), released February 6th, is of vital importance. This decision has grabbed the headlines and stirred public discussion. About the pros and cons of assisted death. About the role of the SCC. About the relationship of the Court to legislators. These are big issues, now squarely on the agenda in the year ahead.

My focus is not assisted death in substance; reasonable people differ on that subject. My interest is in what the decision tells us about judicial restraint. Andrew Coyne, in the National Post (February 14th), under a headline proclaiming “The Death of Judicial Restraint,” cited Carter as an example of judges changing the law “only because they wanted to.” He lamented “the fading notion that the courts, in interpreting the law, should be bound by…something—the written text, the historical record, precedent, logical consistency. …[and]…with the legalization of ‘assisted death, (the court) has slipped free [from these constraints] altogether.” I emphatically disagree.

In my view, the decision of the SCC in Carter is a model appellate decision demonstrating that the legal process in Canada is alive and well, and that the SCC is doing its job superbly. In a totally focused judgment, the SCC only decided what they had to decide, to review the decisions of the trial judge and the BC Court of Appeal, in this particular case.

Repeatedly, they declined to decide what was not necessary for their immediate purpose. Their focus was on the evidence put in at trial and on the findings of fact of the trial judge. This included evidence of the effect of the existing law on the plaintiffs before the Court, and evidence of the plethora of contemporary experience on the issue, since the issue was last considered by the Supreme Court of Canada, itself, in 1993. All relevant to the precise Charter issue before the court. Their reasons are replete with references to the jurisprudence which shaped their decision.

In my view, faced with the unenviable job of dealing with a matter known to be highly contentious, they had the courage to make the decision required by law and, out of deference to Parliament, the wisdom to make it as narrow as possible.

In this post today and others to follow, I will discuss what the SCC actually said in Carter, and what it teaches us about the nature of Canada’s legal system. I am interested by the fact that their decision, although argued as recently as October 15th, 2014, was produced so soon. Also that it was a unanimous 9:0 decision, written not by one judge but by the Court as a whole, including eight out of nine judges appointed by Conservative governments. I think that the Court was able to render their judgment so quickly precisely because it is a very narrow decision characterized by extreme judicial restraint. The sad truth is that a commentator as smart and well-informed as Andrew Coyne cannot see “judicial restraint” when it is staring him in the face.

In this post, I will unpack the decision for those of you who are not legally trained (and for lawyers who may be intrigued by my argument). What were the issues before the court? Where did the case originate? What did the SCC actually decide? What supports my view that the SCC was extremely restrained in their approach to the case?

Blog posts are generally short, such that each of these topics could be a post unto itself. Because the topics are inter-related and essential information, however, I thought it best to keep the discussion together. The result? A post which is essentially a mini-essay. The easiest way to read it may be to print a hard copy.

History of the case

Carter began as a “test case” before Justice Lynn Smith of the British Columbia Supreme Court in the fall of 2011. The plaintiffs included Gloria Taylor, who had ALS, and Lee Carter, whose mother Kay Carter had suffered from advanced spinal stenosis and had travelled to Switzerland in 2010 to secure an assisted death legally.

They sought a judicial declaration that the absolute ban on assisted death in the Canadian Criminal Code was contrary to their Charter rights. The absolute ban is found in s. 14 and s. 241(b) of the Criminal Code. Section 14 says that “No person is entitled to consent to have death inflicted on him… .” Section 241(b) says that “Everyone who… aids or abets a person to commit suicide is… liable to jail for up to fourteen years.”

They argued that these provisions denied them the assistance of a physician should they want to end their own life and, by doing so, violated their rights under s. 7 and s. 15 (1) of the Canadian Charter of Rights and Freedoms.

Section 7 provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 15 (1) says that “ Every individual is equal… under the law and has the right to the equal protection and equal benefit of the law without discrimination… based on… physical disability.” Also relevant to a Charter challenge is section 1 of the Charter which “guarantees the rights… subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Canadians who assert in court that they have a right under the Charter have the burden (known as “onus”) of proving that some law or state action violates or violated their right or rights. If they are successful, the onus then shifts to the government to prove that any violation is “justified in a free and democratic society.”

Don’t worry if you do not understand the significance of the lingo used in the Charter. The Charter was enacted in 1982 and, over the succeeding 32 years, thousands of judges from the SCC to the Provincial Courts have grappled with the meaning of the Charter in individual cases before them. This body of law (known as “jurisprudence”) is sophisticated and constantly changing. In Carter, you will learn about the meaning of s. 1 and s. 7 of the Charter. You will also learn how courts approach a Charter analysis. Informed lay people do not need to know all the details. It is sufficient to understand what the heck is going on. I hope this post will help.

Getting back to the history of the case, the plaintiffs wanted a Declaration suspending the existing law until Parliament could pass a new one. In the interim, they sought a constitutional exemption from prosecution for Gloria Taylor and anyone who assisted her in dying.

The defendants were the Attorneys General of Canada and of British Columbia. They argued that Justice Smith was bound by the 1993 decision of the SCC, in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, which had upheld the same sections of the Criminal Code in a similar case. They said that the trial judge had no option but to dismiss the application.

In June 2012, Justice Smith released her 1416-paragraph decision: Carter v. Canada (Attorney General) 2012 BCSC 886. After an “exhaustive review” of all the evidence and after considering the legal arguments of counsel, she held that she could “distinguish” Rodriguez. That means that, on the new law argued before her and the facts proven in the evidence at trial, there was room for her to reconsider Rodriguez. She concluded that the absolute ban in the Criminal Code violated the s. 7 and s. 15 Charter rights of Gloria Taylor and those who might assist her, and that the plaintiffs should be granted the relief they sought. She later ordered special costs against Canada and British Columbia.

The Attorney General of Canada appealed to the British Columbia Court of Appeal. The majority of that court (2:1), in 2013, held that Justice Smith was wrong, that she was bound by Rodriguez, and set aside her orders [Carter v. Canada (Attorney General), 2013 BCCA 435 at para 352]. On January 18, 2014, the SCC granted leave to the plaintiffs to appeal that decision. The SCC properly agreed to hear their appeal as it clearly raised issues of national importance.

The Supreme Court Decision in a Nutshell
(paragraph numbers of SCC decision are in parentheses)

The SCC found s. 14 and s. 241(b) void, “insofar as they deprive a competent adult of such assistance where the person (1) clearly consents to the termination of life, and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” (paras 4, 147)

The Court found that the plaintiffs had met their onus of showing that the absolute ban on assisted death violated the s. 7 Charter rights of Gloria Taylor and people like her to “life, liberty and security of the person….” All three s. 7 interests as defined by the caselaw were affected.

(1) With respect to the right to life, the SCC noted the evidence that people in the position of Gloria Taylor had no option but to suffer “severe and intolerable suffering” until they died of natural causes or to take their own lives prematurely while they were still competent to do so. (para 1). This fact was not disputed by any of the parties before the Court. In these circumstances, the existing caselaw applied to the effect that “the right to life is engaged by the threat of death… where law or state action imposes death or an increased risk of death, directly or indirectly.” (paras 57-63)

(2) With respect to liberty and security of the person, the SCC agreed with the trial judge that “the law has long protected patient autonomy in medical decision-making” and “the right to make fundamental personal choices free from state interference.” (paras 64-68)

As to the meaning of “the principles of fundamental justice,” the SCC explains that laws impinge on “life, liberty and security of the person” all the time. When they do, however, the caselaw has recognized three “principles of fundamental justice” which are central: laws “must not be arbitrary, over broad, or have consequences that are grossly disproportionate to their object.” (paras 71-72)

To see whether the law meets these minimum standards, the court must identify the object of the law. In this case, what is the purpose of the absolute ban on assisted dying? (para 73). The SCC found that the majority in Rodriguez had “concluded that the object of the absolute ban was to protect vulnerable persons from being induced to commit suicide at a time of weakness.” (paras 74-82). The SCC found no legal reason to disagree now. The fatal flaw of the absolute ban was not that it was arbitrary, but that it was overly broad, because it swept into its ambit people like Gloria Taylor, who clearly were not “vulnerable.” (paras 85-88)

Turning to whether the breach was justified under Section 1 of the Charter, the only question was proportionality. (paras 94-101). The key issue? Whether the absolute ban “was the least drastic means of achieving the legislative objective?” The Court found no error in the trial judge’s conclusion that, on the evidence of current practices in Canada and in permissive jurisdictions elsewhere, “the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards.” (paras 102-121). Since the evidence did not show that the absolute ban was minimally impairing, the SCC agreed with the trial judge that the government had not met its onus of proving that s. 1 justified the breach.

To allow Parliament, Legislatures and professional colleges time to respond to their decision, the SCC suspended the effective date of its decision for one year. (paras 126, 128, 147)

The SCC held that nothing in their declaration of invalidity would compel physicians to provide assistance in dying and “the Charter rights of patients and physicians will need to be reconciled.” (para 132)

It upheld the order of the trial judge for special legal costs against Canada for the entire proceeding, and against British Columbia for 10% of the costs of the trial. (paras 133-146)

Examples of Judicial Restraint

The SCC is very clear that their decision only applies to the factual circumstances of the plaintiffs before the court. (para 127). The SCC refused to comment about other situations when other classes of people may seek assisted death. This was the narrowest basis upon which they could deal with the case before them.

The SCC rejected arguments from the plaintiffs seeking a more expansive definition of the existing caselaw. Three examples:

  1. They declined to alter the existing law that both the feds and the provinces have concurrent jurisdiction over the issue for different purposes. (paras 49-53).
  2. They upheld the existing legal definition of the s. 7 “right to life,” that it implies a threat of death, and refused to adopt a broader, qualitative approach to the “right to life.” (paras. 59-63).
  3. They refused to consider any principle of parity because such a principle was “not yet recognized in the jurisprudence.” (para 92)

They limited their discussion of the “liberty” interest only to those who seek assistance in dying, and did not consider those who might provide such help. (para 69)

In defining the object of the existing Criminal Code ban, they rejected federal government submissions’s to broaden the definition beyond that adopted by the majority decision in Rodriguez, that the object was “to protect vulnerable persons from being induced to commit suicide at a time of weakness.” It noted that “all the parties except Canada accept that formulation of the object.” (paras 73-78).

The SCC noted that the federal government at trial had conceded that the present law caught people outside the class of people intended to be protected by the objective of the law. (para 86). This basic finding of fact helped ground the decision that the law was overly broad.

The SCC refused to consider additional legal claims or doctrines that were “unnecessary.” Three examples:

1) Having found a “severe” violation of s. 7, that decision was sufficient to deal with the case. Unlike the trial judge, the SCC declined to deal with any alleged equality rights of the plaintiffs under section 15 of the Charter. (para 93)

2) Having found a “severe” violation of s. 7 because it was “overly broad,” the SCC refused to discuss “gross disproportionality” as an element of the s. 7 analysis, as it also was “unnecessary.” (para 90)

3) Having found that the existing absolute ban did not meet the basic Section 1 Charter requirement of “not minimally impairing,” the SCC declined to “weigh the impact of the law on the rights of the appellants against the beneficial effect of the law on society.” On the well-established caselaw (Oakes, 1986), this step in the analysis also was “not necessary.”

The SCC clearly recognized when the SCC should defer to Parliament and the Legislatures, and that the standard expected from the state was not “perfection” but only what is “reasonable.”  Where there is a “complex regulatory response,” a high degree of deference is owed to…Parliament.….” The contested sections of the Criminal Code were not such a response.

As it did in Canada (Attorney General) v. Bedford 2013 SCC 72 (the prostitution case), the SCC delayed the effective date of their decision for one year. Why? “… for Parliament and the provincial legislatures to respond, should they choose to do so, by enacting legislation consistent with the constitutional parameters set out in these reasons.” ( para 126).

The SCC followed their decision in Bedford (2013), that the trial judge did have legal authority to reconsider Rodriguez and that the SCC should defer to her findings of fact as “they were reasonable and open to her on the record.” (para 109). More on these issues in my next post.

You Decide

Who is right? With this, and the post to follow (shorter I promise), you can decide. Better still, read the judgment itself, reported on the Court website at Carter v. Canada (Attorney General), 2015 SCC 5. Do not be intimidated! The first few pages are the standard mechanics of any court decision: the parties, the date of the hearing, a short summary of the judgment called a headnote, the citations, and a list of counsel who appeared at the hearing of the appeal. The actual judgment of The Court starts with a Table of Contents and paragraphs numbered sequentially from paragraph 1-148. The Court writes very well, and you will be surprised at how accessible their judgment is to read. One of the duties of judges is to write reasons for their decisions, so that litigants and the public can understand why they came to the decision they did. You decide if The Court did its job.


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Judicial Appointments… Finally!

(This article is an edited version of one originally published December 17, 2014 by Marion Lane on The Effervescent Bubble.)

On December 16, 2014, the federal Department of Justice announced twenty-one new appointments to the upper courts of Ontario including two to the Court of Appeal, fifteen to the Superior Court, two transfers from the Superior Court to the Family Court Branch, and two transfers within the Superior Court resulting from the change of the Regional Senior in the North East Region. Eureka! The new appointments will be happy. The courts they will join will be even happier.

What is shocking about the announcement is how long the vacancies have existed. Brampton is one of the busiest jurisdictions in the province, with a heavy caseload (among other things) of drug prosecutions coming out of Lester Pearson Airport. Brampton is the court for Peel Region which was called “the worst jurisdiction north of the Rio Grande” in 1990 when, in a case arising out of Brampton (R. v. Askov), the Supreme Court of Canada defined what is “a trial within a reasonable time” in Canada. Thereafter, thousands of charges were withdrawn from the system because trials were unduly delayed. One would have thought the federal government would have been most anxious to avoid another Askov in Brampton.

Apparently not. Madam Justice Fairburn was appointed yesterday to replace Madam Justice van Rensburg, who was appointed to the Court of Appeal on October 1, 2013. Her position has been vacant for over 14 months. Justice Ivan Bloom was appointed yesterday to replace Justice Seppi who went supernumerary (retired to part-time) January 8, 2004, just over three weeks short of a year ago. Justice William LeMay was appointed yesterday to replace Madam Justice Snowie who went supernumerary May 25, 2014, just short of seven months ago.

How can it be that in Brampton of all places, the government has chosen to leave these positions vacant for such long periods of time? When the federal government decided to elevate a Brampton Superior Court judge to the Court of Appeal in October 2013, was there no one available to replace her at the time? Both Madam Justice Fairburn and Justice Bloom have been crowns in the system for a long time, Justice Bloom apparently an employee of the federal government’s own Public Prosecutions Service. Were neither of them available to fill the post over a year ago? How many cases have been delayed in the interval because “no judge was available” to conduct a trial? How many defendants, victims and other witnesses have endured prolonged stress and anxiety because their matters could not be scheduled for trial in a timely fashion?

Canada’s federal government has the power to define the criminal law and is happy to pass laws which add to the Criminal Code, ad infinitum. The feds also have the exclusive power to appoint judges to the Superior Courts and the Courts of Appeal. Appointing judges does not seem a priority. The vacancies left unfilled for so long speak for themselves.

On the assumption that the government is not asleep at the wheel, the rest of the list of new judges shows how delaying appointments has become the pattern of this federal government. The two Court of Appeal vacancies arose January 31, 2014, and March 5, 2014, eleven and ten months ago respectively. This is the most important court in Ontario; the highest court which defines the law for all the lower courts, and which, at full complement, has only twenty-two full-time judges.

Of the other newly appointed Superior Court judges, one replaces a judge who became Senior Family Judge on December 31, 2013, a year ago. Another replaces one who semi-retired January 8, 2014, nearly a year ago. Three replace judges who semi-retired in April, eight months ago; one replaces another who went supernumerary in May, seven months ago; another replaces a judge who went supernumerary in June, six months ago; and two replace judges who semi-retired in July, five months ago. The two transfers into the Family Court branch and the appointments to replace them are relatively recent (October and November), and one appointment is prospective, to replace a judge going supernumerary on January 16, 2015.

Judges who go supernumerary typically give ample notice of their intentions. Once semi-retired, they are scheduled into the calendar on a part-time basis, if their circumstances permit. Their part-time availability only partially fills the gaps. What is clear, however, is that the federal government exploits this supernumerary crutch to avoid the cost of providing full-time judicial services. Why have a full-time judge if a part-timer would suffice? “Law and order” and “the rights of victims” obviously do not extend to timely justice.

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Judicial Appointments Delayed, Justice Denied

(This article is an edited version of one originally published November 28, 2014 by Marion Lane on The Effervescent Bubble.)

Justice Louis LeBel of the Supreme Court of Canada (SCC) is 75 years of age and by law must step down from the Bench on Sunday. Yesterday, the federal government announced their choice of his successor: Suzanne Côté, partner and head of litigation at Osler, Hoskin and Harcourt in Montreal. With 34 years of experience in commercial and civil litigation and in public law, Côté has been hailed as one of the 25 best women lawyers in Canada. We don’t know her perspective on the role of judges, but her legal qualifications for the appointment are impeccable. That she becomes the fourth woman out of nine on the Bench is an added bonus.

That the government chose someone with no prior judicial experience is not cause for alarm. The legislation provides for appointing lawyers directly from the Bar and the practice is not unprecedented. Prime Minister Brian Mulroney appointed Toronto civil litigator John Sopinka to the SCC in May 1988. At that time, he had been in private practice for 28 years and had an outstanding reputation as a civil trial lawyer. Similarly, Prime Minister Jean Chrétien appointed Ian Binnie to the Supreme Court in January 1998, after 32 years as a civil litigator and with significant legal service for the government. Such lawyers bring to the highest Court in the land much-needed expertise in the practical day-to-day realities of civil and commercial litigation. Both Justice Sopinka and Justice Binnie made outstanding contributions to the Supreme Court.

What is disturbing is the “process” for appointing Justice Côté. No one disputes that an SCC appointment is within the purview of the Prime Minister and his Minister of Justice. Under Prime Minister Chrétien, however, a process was created by which an Advisory Committee of Members of Parliament, legal experts and others developed a shortlist of candidates suitable for appointment to the SCC. With this advice at hand, the government made its choice. In 2006, Prime Minister Harper himself made it a condition of selection that the proposed appointee appear before a nationally televised all-party committee of Members of Parliament and legal experts to answer questions about their legal experience and perspective. Justice Marshall Rothstein was the first appointee to take part in this public hearing. Later Justices Thomas Cromwell, Michael Moldaver, Andromache Karakatsanis and Richard Wagner did the same. The process was intended to increase openness and transparency, and to inform the public about the judges themselves and why they were appropriate for appointment.

In June 2014, Prime Minister Harper and Justice Minister Peter MacKay shut down that process. When the SCC rejected Justice Marc Nadon as ineligible for a Quebec position on the Supreme Court, Harper and MacKay had a snit. Although under a duty to uphold the law and not malign the courts, they engaged in an unprecedented attack on the Chief Justice of the SCC which was widely regarded in the legal profession and across the country as totally unseemly. They also refused to recall the Advisory Committee to help find and vet the new appointment. On their own, without parliamentary input, and without any Committee hearings, they appointed Justice Clément Gascon of the Quebec Court of Appeal to the vacant Quebec place on the Bench. He was sworn in on October 6th, after the Quebec position had been vacant for a year. Harper and MacKay have done the same thing again. Made another Quebec appointment at the last possible moment, with no parliamentary participation, nor any public knowledge about the new appointee. Respect for process, transparency and accountability are apparently no longer important. Secrecy is again the name of the game.

In the meantime, the federal government has dragged its feet on the timely appointment of new judges to all federal courts across the country. At present, there are 61 vacant federal judicial positions across Canada waiting to be filled. This includes 23 judges in the Ontario Superior Court, five judges in the Ontario Unified Family Court, three in the Ontario Court of Appeal, and five in the Federal Court of Appeal. The Chief Justice of Ontario is the highest-ranking judge in Ontario. After Chief Justice Warren Winkler stepped down in December 2013, the position remained vacant until the federal government finally appointed Chief Justice George R. Strathy on June 13, 2014, over five months later. Who needs a Chief Justice anyway?

It should be obvious that judges are essential for access to justice within a reasonable time. Delay is endemic in the courts. So why not make timely appointments? Maybe the government can’t find enough judges of their own ideological persuasion to fill the posts. Or maybe the non-payment of judicial salaries contributes to the much-vaunted federal budget surplus. Or maybe, since the Provinces are responsible for administering justice, the public does not notice that the federal government is not carrying its weight in the system. Whatever the reason, it seems that this “law and order” government does not value public access to courts and to the judiciary. A government that valued justice and respected the courts would want a Bench working to capacity with as little burn-out as possible.  That’s not happening, and it hasn’t for some time.

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Supreme Court Nullifies Harper Appointment: Why is this important?

(This article is an edited version of one originally published March 25, 2014 by Marion Lane on The Effervescent Bubble.)

Jeffrey Simpson in the Globe and Mail hit the nail on the head. He wrote: “The Harper government figured it would teach the Supreme Court justices a lesson by appointing Marc Nadon to their midst. Instead, the justices taught the Harper government a bunch of lessons. Among these lessons: Don’t play politics with the judiciary. Don’t play fast and loose with the law. Pick the best qualified, not the average. Understand the Constitution.” Chantel Hébert in the Toronto Star wrote: “This is one of those occasions when a bad day for the current government of Canada is a good day for federalism.” Christie Blatchford in the National Post, under the headline “Egregious meddling in what should be PM’s choice for top court,” fumed that “it is a disgraceful decision,” while her colleague John Ivison, in the same edition, wrote that “There’s no disguising the whole appointment process has been a cock-up… “

The Supreme Court decided 6:1 against the government; of whom three in the majority were appointees to the court by Prime Minister Harper.  As is customary when litigants disagree about the correct interpretation of legal provisions, they considered the wording of the statute, its history and its purpose. Then the majority released their decision as one voice, to emphasize its importance.  So what did the Supreme Court majority decide?

1) That Justice Nadon, the Harper government’s choice to fill one of three seats on the court reserved for Quebec judges, was not eligible for the position.
2) Having worked for the past 20 years in Ottawa, he was not a current member of the Quebec bar, nor of the high courts of Quebec, as required by s.6 of the Supreme Court of Canada Act.
3) That particular section, passed in 1875, and not changed since, “narrows the pool of eligible candidates” from the general requirements in s.5.
4) It does so for two basic reasons: a) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court and b) to enhance the confidence of Quebec in the Court.
5) The federal government’s unilateral amendment to the Supreme Court of Canada Act  declaring that former members of the Quebec bar or higher courts are eligible for appointment to the Supreme Court is beyond the powers of the federal government acting alone.
6) Changes to the Supreme Court and to its composition are subject to constitutional amending procedures requiring  the unanimous consent of Parliament and the provincial legislatures.

I agree with Chantal Hébert and the other pundits who applaud this decision as a great day for Canadian federalism. Quebec can have no complaint when their own position on the issue was so completely affirmed by the Supremes. Separatists will be frustrated; but they are never happy when the Canadian federation shows that it serves Quebec interests well. There are those across Canada who may ask: “Why does Quebec get distinctive treatment on this issue?” They do, because their codified civil law is different from the common law applicable to the rest of Canada and, when the country was first formed, the Fathers of Confederation agreed to preserve that law in Quebec. That bargain recognized the distinctive nature of the French Canadian legal culture. This is a foundation principle upon which Canada was created and evolved to the official bilingual state we enjoy today.

True conservatives, and everyone else, across Canada, should be equally pleased. The Supreme Court of Canada has confirmed its own status as one of the basic constitutional institutions of the nation, and insisted that its integrity must be respected. This is an essential precondition to protect the freedoms fundamental to our society. Those who complain that “the court has interfered with the supremacy of Parliament” do not seem to appreciate that it is a primary function of the court, and particularly the Supreme Court, to rule on the validity of state action. That’s what they do frequently. That’s what they were asked to do this time. That is their role. The Court is only doing their job. One of their jobs is to keep the government accountable. Accountable to the constitution which is the fundamental law of the land. You and I and everyone else who values the rule of law in this country should be thankful for that. No one is above the law, not even the Prime Minister and his majority in Parliament.

Everyone agrees that the process by which Justices are appointed to the Supreme Court of Canada needs updating. That is a subject for another day. Suffice it to say that, in the Nadon case, the federal government didn’t even follow the prevailing practice. Although Mr. Justice Fish gave six months notice of his retirement, the government waited until the very last minute to choose his successor. When they did, they ignored the pool of outstanding candidates obviously available and chose someone almost unknown, semi-retired, with limited legal jurisprudence to his credit, and whose only apparent claim was his obvious support for their own ideological perspective. With little time to know his record, his appearance before the Parliamentary Committee to review his appointment was perfunctory to say the least. The government knew, furthermore, that by choosing Justice Nadon, who was not a current member of the Quebec bar, or the Quebec higher courts, they were flirting with the s.6 statutory qualifications. When there was an immediate challenge to the appointment (from Toronto lawyer Rocco Galati, and then from the Quebec government itself), the government referred the matter directly to the Supreme Court for an expedited decision. The federal government also passed legislation to amend the Supreme Court Act asserting that their view of the provisions prevailed. Did Parliament think that, by passing such a law to apply retroactively, they could dictate how the Supreme Court must decide?

One can sympathize with the embarrassment this has caused Justice Nadon. The actions of the Harper government, however, were unprecedented. They called for a firm response. They got it… as Jeffrey Simpson said: a resounding “No.” Three cheers for the Supreme Court of Canada. Anyone who wants to read the Supreme Court decision for themselves can find it on the court webpage.

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