Law Times

February 28, 2011

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PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Heather Gardiner CaseLaw Editor . . . . . . Jennifer Wright Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. February 28, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter A former JP's extraordinary series of litigation has launched an extraordinary amount of litigation against Ontario public of- fi cials in the years since. On Feb. 15, Human Rights Tribunal A of Ontario member Pamela Chapman issued her decision in the latest chapter in the saga, Jogendra v. Human Rights Tri- bunal of Ontario. Th e case involves Regis Jogendra, the former justice of the peace, whom an earlier ruling noted was a "barrister and solicitor in another common law jurisdiction" and whose initial complaint centred on allegations of discrimination on the basis of ancestry, colour, ethnic origin, place of origin, and race due to the government's failure to assign him former justice of the peace who retired following a string of sexu- al assault allegations against him a full-time presiding appointment. By the time he launched the human rights complaint, he had already retired from his position in 2003. In the meantime, he had entered into an agreement with the Crown that would see it withdraw 10 counts of sexual assault against him as long as he appeared before the Justices of the Peace Review Council and admitted to the allegations. Th at was back in 2000. But before the parties could implement the agreement, he faced a further allega- tion of sexual assault in 2001. He was acquitted on that charge in 2003. Jogendra ended up fi ling his complaint about the promotion in 2007. He also al- leged discrimination stemming from the government's failure to indemnify him for legal costs in defending the criminal charges. On March 3, 2009, HRTO vice chairman David Muir dismissed Jogendra's complaint. On Jogendra's bid for indemnifi cation given his claim that the sexual assault allegations arose out of his duties as a justice of the peace, Muir wrote: "Th is is an astonishing position to take given the nature of the charges laid against him. His claim that these charges arose out of and within the course of his employment seems to fl ow from the fact that the victims of his actions were wom- en he met during the course of his work and the assaults took place at or near the courthouse. Th is is simply not what is contemplated by the notion of judicial immunity." Jogendra lost his case, in part because he waited too long to launch it, but that didn't stop the litigation. He took a Min- istry of the Attorney General employee to court for the decision refusing reimburse- ment of his legal expenses and lost. Now, Muir and the HRTO are facing allega- tions of discrimination stemming from the 2009 decision in the case noted above before the tribunal itself and Chapman. Referring to the doctrine of judicial im- munity, Chapman dismissed Jogendra's application, one she called an abuse of process, on Feb. 15. But the matter isn't necessarily over. As Chapman noted, a hearing is to take place this Friday to con- sider Jogendra's bid to have a "disinterested person" adjudicate the HRTO matter. It's all very extraordinary, and there are many other court and tribunal decisions in the case. Certainly, while Jogendra has every right to seek justice, he has clearly gone too far in launching endless litigation. — Glenn Kauth G Do Haldane and Hegel rule Canadian jurisprudence? That's eorg Friedrich Hegel was a diffi cult German philosopher who died in 1831. Richard Haldane was a diffi cult Scots lawyer who died in 1928. Frederick Vaughan is a Canadian political scientist who argues that much of Ca- nadian jurisprudence is a per- verse shadow of Hegelian ideas adapted into law by Haldane. Fireworks ensue in Vaughan's biography, Viscount Haldane: 'Th e Wicked Step-father of the Canadian Constitution,' pub- lished recently by the Osgoode Society. Haldane was not only a suc- cessful lawyer and judge as well as an infl uential British cabi- net minister and administrator but also as a very serious and respected student of Hegelian philosophy. He studied in Ger- many, published philosophical treatises during his public ca- reer, and adopted Hegel's view that there are few absolutes and that values change over time. Vaughan's contention is that Haldane adapted Hegel's idea to invent the principle that judges can freely reinter- pret what statutes actually say. Hegel inspired Haldane, Vaughan argues, to rewrite laws to match his own intu- ition of what the spirit of the times might prefer. Because Haldane sat on the judicial committee of the Privy Council when it was Canada's fi nal court of appeal, he wrote several de- cisions that interpreted the federal-provincial division of powers in Canada's Constitu- tion. Vaughan argues Haldane ignored both the text and the intent of the founders in these constitutional decisions and instead preferred to remake the Constitution according to his Hegelian notions of what the times required. Somehow, the times always favoured the provinces. Th ere are some problems here. Haldane's Privy Coun- cil predecessor Lord William Watson, a fellow Scot but not a Hegelian, held the presump- tion that judges had to con- sider the spirit of the Constitu- tion just as fi rmly. And the pos- sibly Hegelian dictum that the History By Christopher Moore Constitution must adapt like "a living tree" came not from Haldane but from his succes- sor Lord John Sankey, who was neither Scottish nor Hegelian. In any case, Vaughan quotes only the most extreme of prime minister Sir John A. Macdon- ald's centralizing comments when he seeks the founders' in- tent on these matters. He calls the British North America Act "Macdonald's constitution" and seems oblivious to the forc- es leaning towards provincial power that underpinned the political alliance that shaped Confederation in the 1860s. In arguing that English judges deformed a Canadian Constitution intended to centralize power in Ottawa, Vaughan continues an English- Canadian historical and legal theory that began in the 1930s. www.lawtimesnews.com But Vaughan doesn't think Hegel's baneful infl uence ended in 1928, when Hal- dane died, or even in 1950, when the Privy Council was dethroned. For it's not just Haldane's judgments from the 1920s that Vaughan indicts. He believes the Supreme Court's jurisprudence related to the Charter of Rights and Free- doms in recent decades contin- ues to stem from an enduring Haldane-Hegel tradition in Ca- nadian legal thought. Vaughan wraps up his biography with a full-throated denunciation of the modern Supreme Court. In recent decades, particu- larly since the Charter, the court has held that constitu- tional interpretation must con- sider the meaning of laws in light of changing conditions. Vaughan fi nds this to mean that Hegel's philosophy has re- turned to embolden Canadian judges once more to override the constitutional text and the founders' intent. But where Haldane's origi- nal Canadian critics, notably F.R. Scott and Eugene Forsey, regretted how he had hobbled the progressive policies they supported, it's exactly those types of views at the modern court that alarm Vaughan. He cites the court's deci- sion that the Charter protects gay rights. Vaughan interprets this as a Hegelian repudiation of the "argument from nature as well as the biblical founda- tions" that justify a permanent and unchanging "prohibition against homosexuality." It seems a stretch to blame Haldane and Hegel for every 20th-century judge who ever abandoned black-letter formal- ism and began rooting jurispru- dence in principles about the law and the Constitution. Vaughan's opinionated biography, howev- er, confi rms that anti-court and anti-judge views are very much part of the conservative spirit of these times. Christopher Moore's newest book is Th e British Columbia Court of Appeal: Th e First Hundred Years. His web site is www. christophermoore.ca.

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