Every litigator’s nightmare. Appearing before a judge that is aware of their status relative to the parties, and uses it towards a particular result at the expense of the law, fairness, and in the end justice. All you can do is appeal, hope it’s all caught on the record.
Denise Lightning @Lightninglaw June 8, 2019 Retweeted David M Tanovich
How is this person still a judge? And where was the crown in this exchange? Local lawyers afraid to speak out. Any wonder Indigenous people sceptical of seeing justice when Judges flout their own SCC.
Windsor judge criticized as two court rulings tossed out by Doug Schmidt, June 7, 2019, Windsor Star
A Windsor judge has come under fire following decisions by higher courts that overturned two of her recent rulings.
But it’s the strong language used by the judges in those appeal rulings that is raising eyebrows within the local legal community.
In one case, Ontario Court Justice Micheline Rawlins was criticized by a local Superior Court judge for having made “a substantial number of significant errors in principle,” while in the other written decision she was chastised by a panel of Court of Appeal for Ontario justices for having “exceeded the bounds of what is permissible” in her comments and queries of the accused at a trial in her courtroom.
Both appeal decisions — released May 7 and 23 — have circulated widely and are generating discussion within the local community of criminal defence and prosecution lawyers.
As for the wording used in those decisions, “you rarely hear that,” said one veteran Windsor lawyer. That attorney, and a number of others contacted by the Star, declined to comment on the record, explaining they must still regularly appear before Justice Rawlins.
In the Court of Appeal decision, the three judges tossed out convictions for assault using a weapon and assault causing bodily harm against Abdirisaq Hussein Said. Last September, Rawlins found the defendant guilty of having attacked a Windsor pizza store owner and an employee at the business’s Wyandotte Street location. It took 10 stitches to close a gash to the employee’s face which the judge ruled was caused by Said stabbing him with a screwdriver.
Fatal to the appearance of justice
The appeal court judges determined that Rawlins had strayed so far into the territory of the prosecution — with “persistent challenging of the appellant” and her own cross-examination of the accused during his time on the witness stand — that it “created an overall impression that was fatal to the appearance of justice.” The defence’s argument was that Said was, in fact, defending himself after being chased and attacked by the pair.
The appeal judges were also critical of Rawlins’s “derision” and “belittling” of Said’s defence lawyer, Paul Esco, citing one of her questions to him during the trial: “(You) did do criminal law at law school, right?”
Contacted by the Star, Esco said he did not want to comment: “I’m working in these courts — I’m in a difficult position here.”
The other case saw Rawlins reject a joint sentencing submission by the defence and Crown. On appeal, Superior Court Justice Christopher Bondy ruled that any single one of a number of “errors in principle” by Rawlins would have led him to overturn the sentence Rawlins imposed.
Bondy wrote that Rawlins “clearly lacks insight” in sentencing principles meant to guide judges in handling cases involving Indigenous people before the Canadian courts. He also accused his fellow judge of using courtroom language that “discloses a profound lack of insight into the burdens faced by those in society with mental health issues which often underlie and include drug and alcohol addiction.”
Ronald Contreras had pleaded guilty and was convicted of breach of probation for attending a local Duty Free Store in April 2018 while prohibited from doing so by a court order. The Crown and defence lawyers presented a joint submission for a 10-day custodial sentence, less nine days in “enhanced” credit for pre-sentence custody.
Rawlins, however, added a 12-month probation order, including a condition related to alcohol and drugs. The defence, said Bondy, argued that condition “would only set the offender up for failure.” Rawlins disagreed but Bondy said she didn’t explain beyond: “I want substances gone.”
Bondy wrote that joint submissions “help resolve the vast majority of criminal cases in Canada” and that there is “an undeniably high threshold” for judges to depart from such submissions.
“It was a minor offence, for sure, but I don’t believe it’s a minor issue — that’s why we appealed,” said Bobby Russon, a Windsor lawyer acting for Contreras. “I appreciate Justice Bondy being so emphatic because it’s a clear area of the law.”
“She’s been slapped on the wrist — I hope it has some affect,” said another Windsor lawyer, who also would only speak on condition of anonymity. “She can be fair … but she can be extremely rude,” said yet another lawyer.
The Star attempted to contact Rawlins but was told the judge is currently on vacation. [Why hasn’t the judge been removed from the bench or assigned clerking duties for a year?]
Said had attempted to obtain a lawyer to launch an appeal of Rawlins’s finding of guilt and subsequent sentencing to 90 days in jail, but he couldn’t afford one.
He filed an appeal anyway, acting in person in Toronto, and was assisted by the Court of Appeal’s duty counsel. The Court of Appeal ruled in Said that “the trial judge’s interventions … rendered the trial unfair.” It set aside the convictions and ordered a new trial, at the same time, however, urging the Crown to take into account “the appellant has served his sentence.” Said served 60 days of his 90-day sentence. [Emphasis added]
Refer also to:
It is with an utter lack of surprise that I yet again fill the virtual pages of Double Aspect with thoughts on another of Justice Abella’s comments on the nature of judging. Both Leonid and I have continuously written about how Justice Abella frequently displays a judicial arrogance that is inconsistent with the role of a judge in a constitutional democracy, both descriptively and normatively. I hesitate to write yet again on the same subject.
But I am moved to do so by the utter lack of accuracy in Justice Abella’s recent speech at Fordham University, where she described a bastardized version of the Canadian approach to constitutional and statutory interpretation. Here are the comments in a release from Fordham:
“Our judges don’t draw lines over whether to follow a linguistic word approach or an intentionalist approach,” she said. “We just Look at how we think this provision should be interpreted in light of all the things you worry about: what did the Legislature mean, what do the words say, what was the purpose of the statute, all of that.”
Justice Abella discussed the importance of the Edwards v Canada case, more commonly known as the Persons Case, which concluded that women were eligible to sit in the Senate of Canada. In the 1929 decision, Lord Sankey stated that the British North America Act is “a living tree capable of growth and expansion within its natural limits.” Justice Abella spoke about this idea, the living tree doctrine, as a basic guiding principle.
“[The living tree doctrine] is constitutional but it’s also philosophically foundational,” she said. “It’s how we approach not only the constitution but also our statutes. What is the fair, appropriate, and just meaning of the phrase? We read it in the most reasonable way possible.”
I need not repeat yet again, from the constitutional perspective, why Justice Abella’s comments are wrong as a normative matter respecting the living tree. I want to concentrate on the seemingly more mundane matter of statutory interpretation, and Justice Abella’s statements that we apply a “living tree” methodology in that context. She is flat-out, embarrassingly wrong as a positive law matter; but as a normative matter, the view is dangerous.
On positive law grounds, it is completely untrue that courts in Canada apply a “living tree” approach to the interpretation of statutes as a matter of course. The Supreme Court has held, time and time again, that statutes should given the meaning they had at the time they were adopted. This was the definitive statement of Dickson J in Perka, at 264-265, citing authorities noting that “The words of a statute must be construed as they would have been the day after the statute was passed…” and “Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held.” Most recently, as co-blogger Leonid Sirota stated on Twitter, this was the approach adopted by the Supreme Court in R v DLW where the Court cited Perka, noting that while broad terms might be afforded a more flexible interpretation, the original meaning governed in that case. Justice Abella dissented. So, contrary to her belief, the general rule is that the original meaning of a statute applies.
This makes sense. No matter what one thinks the strengths of living constitutionalism are in the constitutional context, the argument loses force in the statutory world. At a formal level, constitutions are restrictions on the legislature, and one could argue that they are developed by the judicial branch through strong-form judicial review, in Canada. But statutes are clearly the product of the legislative branch (or their delegates). Judges have no warrant–at least since 1688–to legislate. At a functional level, it could be true that Constitutions are not easily amended, and so judges should develop their meaning to new facts. But that same argument is so clearly wrong in the statutory context, where statutes are passed and amended by legislatures all the time.
One might try to steel-man Justice Abella’s comments by relying on the comments in R v DLW and other general interpretive principles. It is true that “dynamic interpretation” is indeed a distinct method of interpretation, recognized in Canada: see Ruth Sullivan on the Construction of Statutes at 175 (2014). While it is true that the Court in R v DLW and other cases have noted that statutory terms can take on a “dynamic meaning,” this is far from the ordinary rule, generally only applicable in defined circumstances given defined statutory language: see Sullivan, at 177. And even if it was, the dynamic approach is not inconsistent with original meaning, and it does not support Justice Abella’s broad misunderstanding of textualism. One can speak of two types of original meaning:
Situations in which statutory terms should be statically applied to the same situations that were in their contemplation at the time of enactment.
Situations in which statutory terms are broad and must be applied to new facts as they arise.
Both of these situations are consistent with original meaning. In the first case, both meaning and application are largely frozen at the time of enactment. Sullivan says an interpretation of this sort is justified when “…new facts are functionally equivalent or analogous to facts that were within the ambit of the legislation when it first came into force” (Sullivan, at 179), for example. In the latter case, though, the legislature has spoken more broadly, and this is where a “dynamic” approach enters the fray. But this does not mean that the statute receives a new meaning according to some Abellian idea of an unbridled living tree: it just means that its contours are applied to new facts. We constrain the meaning–the scope of application– using text, context, and purpose. I always use the example of the Kyllo decision in the US, in which the Court endorsed the proposition that the 4th Amendment (protecting against searches and seizures) applied to infrared searches of the home. The scope of the 4th Amendment always protected the home, and it applied to the new facts of infrared searches.
The situation, then, is much more subtle and sophisticated than Justice Abella suggests, and the subtletly does not work in her favour.
Undeterred, she goes on to suggest that courts in Canada take an “anything goes” approach to statutory interpretation, seemingly rejecting textualism. This mistake is even more bizarre, considering the very recent decision in Telus v Wellman, which I wrote about here. Justice Abella, in her Fordham talk, suggests that courts do not draw lines between “textualism” and “intentionalism” in Canada. But she herself attempts to do so (wrongly) in her dissent, at para 107 of the decision:
The debate between those who are “textualists” and those who are “intentionalists” was resolved in Canada in 1998 when this Court decided that “there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. We do not just look at the words.
Not only that, but the majority in decision in Wellman comes down on the side of text over abstract, judicially defined purposes. Justice Abella was in dissent–she did not win the argument, for very good reasons. So, again, Justice Abella finds herself claiming that the law is something when it is not.
Two normative conclusions can be drawn about Justice Abella’s odd talk at Fordham, one about the merits of what she says the law is and one about the role of a judge in Canada. Take the latter first. It would be one thing if what Justice Abella said was an honest, innocent mistake. But I find it that hard to believe in these circumstances. Wellman just happened, and Justice Abella lost the argument she now claims she won. Why a judge in our democracy would say this—especially to an international audience—is unclear. We should expect better
The merits of the suggestion that courts in Canada apply a living tree approach to statutes are also lacking. First, as Craig Forcese said on Twitter, the suggestion would amount to a complete reversal of the ordinary structure of our Constitution. The judicial function is, to state what I thought was the obvious, completely separate from the legislative. Justice Abella seems to have much in common with the old English judge who told an unfortunate lawyer trying to give his best interpretation of the statute: “Do not gloss the statute, for we know better than you, we made it.” We’ve moved far beyond these days, and it is odd for a “progressive” judge like Justice Abella to suggest we go back in that direction. Parliamentary sovereignty should stand for something.
The suggestion that judges should make up statutory meaning as they go along would have positively corrosive effects in many areas of law. Criminal law is an obvious example, but administrative law is another. Judges, rather than Parliament, would be the master of agencies if they could expand or narrow the scope of delegated power exercised by these agencies depending on the judges’ particular worldview. Not only does this stand inconsistently with the Court’s own professed idea of deference, it is dangerous to subvert Parliament’s laws in service of a judge’s ideology.
And this, I suppose, is the point. While I believe that Justice Abella means well, she reveals an unfortunate arrogance that crops up in speech after speech. For one, she claims the law is her opinion when it is not. Then, she takes on the mantle of judging what a statute should mean, given her own impressions of what it requires. It takes someone with much self-confidence to do this. Whether or not we should have confidence in her is quite another matter altogether. A Supreme Court judgeship is not enough, in a democracy, to give its holder the mantle of deciding what laws should mean or which laws should apply. Someone who believes so is better suited to be a politician than a judge.
I didn’t realize that writing op-eds for the media was part of the judicial job description, but apparently it is. There was of course Brett Kavanaugh’s instantly-notorious op-ed in the Wall Street Journal. And, ten days ago, Justice Abella followed in now-Justice Kavanaugh’s footsteps, with an op-ed of her own, in the Globe and Mail. The op-ed is an adaptation from a speech given on the occasion of the 70th anniversary of the Supreme Court of Israel; but Justice Abella, presumably, thinks that it deserves a Canadian audience as well as an Israeli one.
Why that ought to be the case, I am not quite sure. Part of the op-ed is meaningless twaddle: we have, Justice Abella tells us, a “national justice context” that is “democratically vibrant and principled”. Part is rank hypocrisy: the Supreme Court’s “only mandate is to protect the rule of law”, says the person who has devoted many a talk to criticizing the very idea of the Rule of Law and arguing that it had to be replaced by something called the rule of justice. Part is rotten grammar: “human rights is [sic] essential to the health of the whole political spectrum” (emphasis removed). But all of it is a self-assured presentation of a role for the judiciary that has nothing to do with the Rule of Law, and this bears commenting on.
Justice Abella begins by proclaiming that the Canadian Charter of Rights and Freedoms sets out “a uniquely Canadian justice vision, a vision that took the status quo as the beginning of the conversation, not the answer”. One might be tempted to think that this is a reference to section 33 of the Charter (which, for all ts flaws, is indeed “uniquely Canadian”), or at least to some version of the “dialogue theory”, according to which courts and legislatures both participate in the elaboration of constitutional rights. But this would be a mistake. Justice Abella likes her judges “bold”, and her legislatures obedient. The “conversation” to which she refers only involves the members of the Supreme Court.
And while she begins by seemingly conceding that “[t]he Charter both represented and created shared and unifying national values”, Justice Abella then argues that it is the Supreme Court that has developed “a robust new justice consensus for Canada”. It is the Supreme Court that serves as “the final adjudicator of which contested values in a society should triumph”. (Wait… didn’t the Charter already represent and create shared values? How come these values are, after all, contested?) Fortunately, says Justice Abella, the Canadian public and its elected representatives have fallen into line and followed the Supreme Court’s moral leadership: “[c]riticisms and questions were of course raised, but usually with civility.” If Canada is committed to “pluralism and diversity”, rather than “obliteration of the identities that define us”, that’s because “[a]ll this came from the Supreme Court”, and its teachings were accepted by both “the public” and “the legislatures”.
Hence the empowerment of the Supreme Court, coupled with its independence, is all to the good. “[D]emocracy, Justice Abella insists, “is strengthened in direct proportion to the strength of rights protection and an independent judiciary”. Indeed, the very “humanity” of a country would be imperiled by attacks on judicial power. Hence Justice Abella’s plea in defence of the Supreme Court of Israel, delivered, she says, in her capacity not only “as a judge”, but also “as a citizen of the world”. (I assume Justice Abella has not been shy about criticizing the feebleness of the judiciary in countries like Russia and China, too, though I don’t think she has published op-eds about them. Perhaps she has even criticized the backward ways of the United Kingdom, Australia, and New Zealand, which haven’t seen it fit to remit the adjudication of contested values in their societies to the courts, though I can recall no op-eds on that subject either.)
I have no firm views about whether Canadian judges should go around the world lecturing other countries about how to organize their constitutional arrangements, whether in their capacities as citizens of the world or as public officials. (How many ordinary citizens of the world are, after all, invited to give pompous speeches, and allowed 1200 words of op-ed space in a national newspaper to bring them to hoi polloi?) I do, however, have some thoughts on the substance of Justice Abella’s views regarding the role of the Supreme Court in Canada’s constitutional structure. Co-blogger Mark Mancini has already presented his, but my take is somewhat different, so I hope the readers will forgive a measure of repetition.
Mark stresses the fact that, if the Supreme Court is to be the arbiter of national values, it is not at all clear why it should be staffed by judges—that is to say, by former lawyers, who are not trained for or especially good at this task. Why not economists and philosophers instead? Mark writes that if courts make abstract, political, and resource-intensive value judgments for the society on the whole…—if we have sold the legislature down the river—then they should at least be good at it.
And if the courts are not, after all, to be replaced by philosophical-economic colloquia, that’s probably because what we really want is for judges to stick to law.
I largely agree with this, but there is an additional move in Justice Abella’s argument that Mark does not address: the claim that adjudication by the independent Supreme Court is somehow democratic and that, indeed, democracy is strengthened the more powerful the court is. I think it is a crucial argument. After all, legislatures, which Mark doesn’t want to “sell down the river”, are also staffed by people who tend to have no particular expertise in either economics or philosophy, and who are subject to all manner of perverse incentives to boot. Why should they be making value judgments for society? The generally accepted (which isn’t necessarily to say correct) answer is, because they are democratic institutions. That’s why Justice Abella wants to claim the democratic mantle for the institution that she extols (as do others who make similar arguments).
How successful is the claim? In my view, not very successful at all. It starts from the premise that there is more to democracy than elections. Let us grant that. Still, there are important questions that need answering. What is this “more” that a polity ought to have, beyond periodic elections, to be counted as democratic? Jeremy Waldron would mention things like separation of powers, meaningful bicameralism, and “legislative due process”, rather than judicial review of legislation. Justice Abella doesn’t even consider these possibilities, and thus does not explain why they are not sufficient. She thus does little to justify judicial review of legislation at all, let alone the robust, value-defining version that she favours. Others would add federalism and federalism-based judicial review, but not necessarily the rights-enforcing variety. And even granting the insufficiency of structural devices to foster and protect genuine democracy, one can doubt whether it is this form of judicial review that we should favour. Aren’t more limited versions, along the lines of John Hart Ely’s “representation reinforcement” or the Carolene Products footnote 4‘s special protection for “discrete and insular minorities”) sufficient? Justice Abella has no answer to this objection either.
Instead, Justice Abella is content to assert that more judicial power is better, including for democracy. Surely, this isn’t necessarily so. Justice Abella herself, and most Canadian lawyers, would likely be horrified at the idea of judicial review enforcing property rights and freedom of contract against democratic majorities. They would insist, as Justice Holmes did in his dissent in Lochner v New York, 198 US 45 (1905), that “a constitution is not intended to embody a particular economic theory … It is made for people of fundamentally differing views”. (75-76) (The only exception to this, of course, concerns labour unions; fundamentally different views regarding their role in the economy have been read out of the Canadian constitution by the Supreme Court, led by Justice Abella.) On reflection, everyone—including Justice Abella—would agree that the protection of rights by an independent judiciary is not, in fact, always good. At the very least, it matters which rights are protected—and if it is the judiciary that effectively decides this, then it matters how it uses its power to do so.
This brings me to Justice Abella’s most remarkable claim—that it is indeed the Supreme Court that defines not just our constitutional rights, but Canadian values more generally. Mark characterizes this is “judicial supremacy”, but I prefer using this term to mean unyielding judicial control over constitutional meaning (the way Professor Waldron does here, for example). Justice Abella’s ambition is not so limited; she is not content to decide what our supreme law means [and break the law and defame ordinary canadians seeking justice for charter violations (how dare we be so arrogant)]; she wants to be the ultimate authority on what Canadians believe in [To force all Canadians to be pro Israel, no matter how horridly people are murdered, human rights violated and lands of others stolen?] . This is shocking stuff. In a free society, there can be no such authority, whether in the Supreme Court or elsewhere. In a free society, one cannot point to the constitution and say, Thatcher-style, “this is what we believe”. Citizens in a free society disagree, including about fundamental values. A constitution is only a judgment, albeit one reached by a super-majority—not, mind you, an actual consensus—about which of these values will be translated into legal constraints that will be imposed on the government until the constitution is amended. The courts’ job is to interpret these legal constraints, as they interpret other law; it is not to dictate “which contested values in a society should triumph”.
Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority. It is unfortunate that a person so utterly misguided holds an office with as much power and prestige as that of a Supreme Court judge. Still, as important as this office is, it is less significant than Justice Abella imagines. We remain free to reject the values the Supreme Court would have us subscribe to. When these values amount to uncritical polite deference to philosopher-kings in ermine-collared robes, we have very good reason to do so.
2018 11 30: Judging Canada’s Supreme Court Judge Rosalie Abella by Canada First Immigration Reform Committee
In the past month, PM Trudeau announced yet another government apology, this time to Canada’s Jews. According to Trudeau, Canada had sinned greatly in 1939 by denying entry to Canada to Jews fleeing Europe aboard the ship St. Louis. According to Trudeau, those Jews were forced to return to Europe and suffer WW2’s Holocaust.
Before issuing any other apologies, Trudeau should do some important research. The family of Rosalie Abella, one of the judges on Canada’s present Supreme Court, survived the Holocaust and migrated to Canada after World War 2. In the mid-1980’s, ironically, Rosalie Abella , in a campaign of arrogant and sloppy research, released an “Employment Equity” report which ignited a virtual Holocaust within Canada. That Holocaust has destroyed the job-hopes and entire lives of at least hundreds of thousands of Canadians. In fact, the number of victims may well exceed the 6 million figure of Jews killed in Europe. If Canadians are to hear another apology, it should be coming from Canada’s Supreme Court Judge Rosalie Abella and the herd of “Diversity-hiring” promoters she unleashed in Canada’s public and private sectors. If Trudeau is remotely interested in performing his duty to Canadian-born, he should be demanding an apology from Abella and her herd of boot-lickers and should be ending the so-called “Employment Equity” (really “Employment Inequity”) program she started. After that, how about some Canadian-style Nurenberg Trials to deal with Abella and all those who have carried out the alleged “solution”.
Dr. Martin Loney’s book, “The Pursuit of Division : Race, Gender and Preferential Hiring” documents in great detail the origins and results of Rosalie Abella’s work. In the following article, he summarizes the origins.
Immigration Watch Canada
Judging Supreme Court Justice Rosalie Abella By Dr. Martin Loney
Written in 2004, following Rosalie Abella’s appointment to Canada’s Supreme Court
The appointment of Rosalie Abella to the Supreme Court has precipitated much celebration among the progressive chattering classes. Globe and Mail correspondent, Michael Valpy, enthused that Abella would bring ‘an unassailable and much needed expertise and vision on equality law’ to the court.
Well, not quite “unassailable”. I have spent many years researching and writing on employment equity, the subject of Abella’s 1984 Royal Commission Report. What stands out is how much Abella’s work is driven by feminist ideology and how little it is concerned with evidence.
2018 02 08: Public dispute among New Brunswick judges is ‘extraordinary,’ professor says by Kevin Bissett, The Canadian Press in National Post
FREDERICTON — A New Brunswick law professor says a disagreement between judges that’s playing out in public is “extraordinary” and does little to promote public confidence in the administration of justice.
“This is an unprecedented situation,” said Nicole O’Byrne, of the University of New Brunswick.
Justice George Rideout of the Court of Queen’s Bench wrote a letter to Chief Justice David Smith in December accusing him of breaking the law and calling on him to resign.
At issue is a change made by the provincial government last year to the Judicature Act requiring the chief justice to get Attorney General Denis Landry’s approval before moving judges from one place of residence to another.
Smith has argued that clause is unconstitutional and interferes with the independence of the judiciary.
It became a flashpoint between the judges when Smith approved Justice Thomas Christie’s move from Saint John to Fredericton, even though the province had temporarily blocked the move.
In his letter, obtained by the CBC, Rideout says Smith is disregarding the law, and in doing so setting a bad example. [A common problem in Canada’s rogue legal system?]
But Christie has said he didn’t change his place of residence — he was already living in Fredericton and commuting to Saint John to hear cases.
The dispute has had other impacts. Christie recused himself from hearing a case last November in which the province was a litigant, expressing his concerns that government was interfering with the judiciary.
“I find that the minister’s current involvement in my reassignment places me in an actual conflict of interest position as he is purporting to exercise control over a decision that affects me at the same time I am seized with the present matter,” Christie wrote in his ruling recusing himself.
“Any judge must, at all times, be seen as being beyond any potential influence from any party to the litigation.” [But the law violations by judges that the public never sees or finds out about is fine?]
O’Byrne said the division of power between the legislative, judicial and executive branches of government has been a cornerstone of Westminster constitutional democracies since the 18th century.
She said the situation faced by Christie is the exact kind of thing that the separation of powers is meant to avoid.
“It was designed to prevent potential or real political interference with the independence of the judges to make decisions without being influenced by any kind of potential favour by executives of the legislative branch,” she said.
O’Byrne said she believes that, if Christie was already living in Fredericton, then Smith was following the letter of the law and did nothing wrong.
The Canadian Press posed a number of questions to Smith but did not get a reply.
The provincial government said in an email it continues to “review options in response to Chief Justice Smith’s decision to move a judge without Minister Landry’s consent.”
It added: “The government has no comment on communications between two judges.”
The debate spilled onto the floor of the legislature Tuesday, with Ted Flemming, a former attorney general in the previous Progressive Conservative government, scolding the governing Liberals by saying “I told you so.”
“Now we see what happens when politicians go where they shouldn’t, when they get involved with the judiciary when they shouldn’t. A regrettable situation has now entered the public domain and the responsibility lies solely with the premier,” Flemming said. [Does it seem they are only concerned about it being in the public domain? If it had remained secret, no problem with a judge breaking the law?]
“The changes allowing the Gallant government to interfere with the judicial branch of government was condemned almost universally by members of the bar, academic experts and most of the judiciary. I raised this issue in the house several times prior to its passing. I take no pleasure in saying this, but I warned you. I told you this would happen,” he said.
2004 08 30: Canadian Justice Review Board on Justice Rosalie Abella: Judging the new judge by Mike Sporer, Burnaby Now
The nomination of Ontario Court of Appeal Justice Rosalie Abella to the Supreme Court of Canada is not a surprise.
Nor will the content of her future decisions be any surprise. For while there is no reason to believe that Justice Abella will bring anything less than her very best efforts to her judicial decisions, she is arguably the most left-wing jurist ever appointed to the Supreme Court of Canada.
In the mid-1980’s she headed the Royal Commission on Equality in Employment. What became known as the Abella Royal Commission considered employment opportunities for women, the disabled, and visible minorities in Canada.
Her final report, though well intentioned, was fraught with methodological errors.
And while equality of opportunity and fairness are laudable goals, some wondered about the hiring practices of the Royal Commission itself. Thirty of the 35 commission employees were women. Of the 40 authors who were contracted by the commission to provide research papers and whose gender could be determined from the author’s name, one critic noted that 27 of the authors were women and only 13 were men.
Now it is not fair to take bald statistics and conclude discriminatory, anti-male, hiring practices on the part of the Royal Commission. There were dozens of possibilities other than discrimination that may account for the statistical anomaly. For example, it may be that female academics were more interested in the subject matter of the commission and disproportionately sought to participate by providing papers. It may be discrimination, but it may not be.
But the Abella Royal Commission did take bald statistics and found discrimination on the part of employers in Canada, without rigorous analysis and careful consideration of the dozens of possibilities other than discrimination that might have accounted for the statistical anomalies that existed.
Some of Justice Abella’s judicial decisions have given rise to comment. In 1997 she sat with two other appellate judges in a family law appeal in which the appellate court overturned a well-reasoned decision of the trial judge. The trial judge had dismissed the petition of a longtime girlfriend of a deceased married man. The girlfriend had sought compensation from the man’s estate. The appellate court instead awarded the girlfriend $300,000.00 from the man’s estate.
Ontario family law lawyer Karen Selick wrote: “Although virtually no evidence had been led to quantify the sacrifices [the girlfriend] claimed to have made in terms of time or dollars, the court plucked the figure of $300,000 out of the air and awarded it to Ms. Nowell.”
Selick continued: “One can only hope that the Supreme Court of Canada overturns this decision…”
The Supreme Court of Canada did not overturn it because the case never made it to the Supreme Court of Canada. But Justice Rosalie Abella has.
Mike Sporer was born and raised in Burnaby. He now practises law in New Westminster with the firm of Sporer, Mah and Company.