Law Times

Page 2 June 2, 2014 • Law Times www.lawtimesnews.com NEWS c ommittee is to choose a candi- date from a so-called "long list" created by the justice minister. "The long list is actually very, very short," says Dodek. Recently, The Globe and Mail revealed that the long list of candi- dates at the time of Nadon's nomi- nation included only six judges. "If this body is truly supposed to be a selection committee, then I think they should have more dis- cretion and shouldn't be bound by a very, very narrow list of can- didates that the minister of justice gives them," says Dodek. When it comes to improving the appointment process, Liberal MP Sean Casey disagrees about the need for more transparency. "In considering the appoint- ments of senior lawyers and jurists to the Supreme Court, including judges sitting on pro- vincial courts of appeal, some discretion is important. So I don't believe we necessarily need more transparency in the pro- cess. That could risk politicizing the Supreme Court as has hap- pened in the U.S.," he says. What's needed, he says, is "a prime minister who acts with integrity and makes responsible appointments. For that, we need a change of government." Casey says judicial appoint- ments have historically been uncontroversial. "Yet Stephen Harper has put his ideology and his contempt for the Charter over the integrity of our highest court. It's disgraceful," he adds. Harper has been facing ques- tions about how the govern- ment nominated Nadon to the top court in light of the Supreme Court's rejection of his appoint- ment. It found that as a Federal Court judge, he wasn't eligible to fill a spot reserved for a Quebec judge on the bench. The fallout from the case resulted in a pub- lic spat between Supreme Court Chief Justice Beverley McLachlin and Harper after he suggested she had inappropriately tried to lobby against Nadon's nomination. The issues around appointments have taken on even greater significance with news of the looming retire- ment of Justice Louis LeBel and reports last week that the federal officials would be consulting with the Quebec government on who to nominate to fill the current Quebec vacancy on the top court. As for McLachlin, Casey says the chief justice did "nothing wrong" in trying to warn the prime minister about what could happen if the government nomi- nated a Federal Court judge. "Stephen Harper should apolo- gize to the chief justice and then send a couple of his boys in short pants to law school," he adds. The controversy led to more questions about the consultation process that takes place during the selection of Supreme Court judg- es. It's an issue Dodek looked at in his review. "There are consulta- tions and then there are consul- tations. A consultation may be a pro forma affair wherein the person being consulted is asked for their suggestions and which are then politely filed away. Such appears to have been the case with the federal government's consultation with the attorney general of Quebec over the Na- don appointment." Dodek says he's especially "skeptical" about the legitimacy of consultations with the public. "First, members of the public are generally not familiar with Supreme Court nominees and the minister of justice is unlikely to get much substantive input that would actually be useful," he wrote in his report. "Second, it is not clear that the minister of justice does anything with the public input, let alone passes it along for consideration to the Supreme Court selection panel for its consideration or to the parliamentary committee. There is no public summary pro- vided of the public input. "It thus appears to me that the sole reason for the invita- tion to members of the pub- lic appears to be to enable the minister of justice to claim that members of the public participated in the process." To add to the problem, the very people who are on the selection committee also sit on the parlia- mentary body that will interview the chosen nominee, Dodek notes. The time gap between the nomination and the parliamen- tary hearing is often 48 hours, an interval he says doesn't allow for more than "a cursory review" of a judge's history. "The time that the government has given the committees of par- liamentarians to prepare for ques- tioning the nominee is simply inconsistent with their exercise of any serious accountability func- tion," he wrote in his review. LT CANADA LAW BOOK ® Key cases and regulatory guidance in environmental law to make your case The Prosecution and Defence of Environmental Offences Stanley D. Berger Sentencing Database prepared by Jonathan Myers and Stanley D. Berger Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 From the initial investigation through to trial and sentencing, The Prosecution and Defence of Environmental Offences provides you with the necessary materials to make your case. This resource draws on case law and directives from across the country, the U.S. and Europe and key regulatory guidance documents used at both the provincial and federal levels. Find current and complete guidance from reported and unreported cases on: ȕ Due diligence ȕ Sentencing ȕ Directors' and officers' liability ȕ Constitutional and Charter arguments ȕ Environmental audits ȕ Evidence and procedural issues ȕ Solicitor-client privilege claims ȕ Interviewing suspects The Prosecution and Defence of Environmental Offences also includes sentencing charts in electronic format which allow you to find cases, offences, fines and sentencing information, quickly and easily, through two custom search templates: words and phrases search and case law search. Order # L91106-65203 $353 2 volume looseleaf supplemented book + online sentencing charts 3-5 supplements per year Anticipated upkeep cost – $231 per supplement Supplements invoiced separately L91106 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00220YD-A45226 Carswell-45226_LT_June2_14.indd 1 14-05-27 1:18 PM conduct because they're rich and have good education. "The entire tone of the judgment relays the message that rich and educated people are to be held to a different standard of conduct than other people, such as people from a less aff luent neighbour- hood, almost [going] to say that 'I would have expected this from people living in Rexdale or Scarborough but I don't expect it from people living in Forest Hill.' "A lot of people might think that — and people are entitled to their opinion — but that shouldn't be part of a judicial deter- mination. I found that message to be disturbing. It's actually a class-based type reasoning." Had the same case come out of a troubled neighbourhood where the exchange between the parties had been "coarse rather than pet- ty," the judge would have had to grant relief, Akazaki suggests. For others, Morgan's ruling was the right response to a "first- world problem." "The court is no place for petty squabbles," says David Sterns, a litigator at Sotos LLP. While Sterns is generally not a fan of judges "strutting their stuff " in their rulings through colourful comments, "sometimes they are appropriate when a judge wants to make a point and that's what Justice Morgan was doing in this case," he says. "I don't necessarily think he was out to humiliate anybody but he probably felt it was necessary to send a message that court resources are scarce, courts are for serious matters, and people coming to court are choosing to air their disputes in a public forum and occasionally they can be given a rough ride." In Morland-Jones v. Taerk, the Morland-Joneses accused their neighbours, Audrey and Gary Taerk, of various faults, including staring at their property. "In what is perhaps the piece de resistance of the claim, the plain- tiffs allege that the defendants — again focusing primarily on Ms. Taerk — sometimes stand in their own driveway or elsewhere on their property and look at the plaintiffs' house," wrote Morgan. "One of the video exhibits shows Ms. Taerk doing just that, cast- ing her gaze from her own property across the street and resting her eyes on the plaintiffs' abode for a full 25 seconds. There is no deny- ing that Ms. Taerk is guilty as charged," Morgan wrote. The Morland-Joneses have 11 cameras at their house, two of which aim directly at the Taerks' home, according to the ruling. "For their part, the defendants have not been entirely inno- cent," wrote Morgan. "They appear to have learned that the plaintiffs — and espe- cially Ms. Morland-Jones — have certain sensitivities, and they seem to relish playing on those sensitivities. They realize, for ex- ample, that Ms. Morland-Jones does not enjoy having her house photographed, and so Ms. Taerk tends to take her cellphone out and point it at the plaintiffs' house precisely when Ms. Morland- Jones can see her doing it." Judges shouldn't have to discern "a kernel of legitimacy" in cases where, on the face of it, a claim is frivolous, says Sterns. But to Akazaki, granting injunctive relief, such as an order that draws ground rules for the parties, may have in fact prevented the case from proceeding to trial. Oftentimes, people learn to live with interlocutory injunctions and withdraw their case, he says. In this case, mocking the plaintiffs for bringing the case to court allowed the defendants to walk away with a sense of tri- umph, he adds. "It allows the alleged bully to hold something else against the plaintiffs, and that applies even if it's mutual bullying." LT Questions mount as new SCC vacancy set to open up Continued from page 1 Continued from page 1 Class an issue in ruling

• Cover