Law Times

LAW TIMES / FEBRUARY 1, 2010 Cheque for Colvin's legal bills better not bounce P week. When you're the govern- ment and you get a relatively small $20,000 bill for legal fees, it's best to pay it right away and not quibble. That's especially so when the issue is about something you want swept under the table, such as the embarrassing matter of tor- ture allegations involving Afghan prisoners and what the Harper government knew about it back in 2006. Stalling can only make mat- ters worse and keep the issue in the public eye. Lawyers have this thing about getting paid for work they've done. They don't stop whining until they get their money. Until last week, the Harper government refused to pay all the legal bills for diplomat Richard Colvin, the star witness on the torture allegations before a Military Police Complaints Commission inquiry in Ottawa last October and a month later before a special parliamentary committee investigation. Colvin was our No. 2 man in Afghanistan who had whipped off dozens of e-mail warnings back in 2006 detailing his con- cerns to his superiors at Foreign Affairs and to other political and public service officials in Ottawa. The issue is what, if anything, they did about the allegations of torture. Under the Geneva Conventions signed by Canada in 1945, it's a war crime for gov- ernment officials to do nothing about the torture of prisoners. Colvin came back from his 17-month stint in Afghanistan to become our senior intelligence man in Washington. It doesn't get much higher than that in the security business. That's what made his testimony so damning before the two inquiries last fall. Colvin has a huge pile of e-mails he sent to senior officials three years ago. His backside is covered from top to bottom with paper. The trail leads right to the office of Defence Minister Peter MacKay, who was foreign affairs minister back then. Instead of going down the accountability route, the Harper government chose a shutdown strategy. First, it suspended the Military Police Complaints Commission inquiry by refusing to renew the mandate of former chairman Peter Tinsley. Then Harper put a stop to the parliamentary committee investi- gation by proroguing Parliament on New Year's Eve. Unfortunately for the government, that set off a storm of public protest. Finally, some genius at Foreign Affairs or perhaps at the Justice Department got the bright idea to hold back on paying the legal rime Minister Stephen Harper's government learned a hard lesson last The Hill By Richard Cleroux fees Colvin racked up during his testimony. As a public servant, he has the right to legal representa- tion of his own choosing when he testifies. He needed it, too. The Harper government went after him big time by attacking him personally. At the same time, another brilliant Harper government strategist decided last fall that Colvin shouldn't have his own lawyer. "A lawyer will be pro- vided to you," they said, as if he was a guy on welfare. That's despite the fact that by law, public servants have a right to their own lawyers when they testify before inquiries, par- liamentary committees, and the courts. When Brian Mulroney, a for- mer prime minister, appeared before the Oliphant inquiry, he had his own counsel. The gov- ernment, meanwhile, paid his $2-million legal bills without quibbling. So why was Colvin different? Why was he denied his own law- yer? Was it because he was saying things in the witness box that the Harper government didn't want to hear? Finally, even after the Harper government relented and allowed Colvin his own lawyer, why was it holding up the bills? The whole thing came to a head last week when Colvin's lawyer, Owen Rees, wrote a letter to the Military Police Complaints Commission in which he accused the Harper government of trying to punish Colvin through the squabble over paying his bills. It was a damning charge that the government was stiffing a senior public servant for his testimony. But lawyers take getting their money very seriously, especially when the regulations say they have a right to payment. Rees called it "repri- sal" by the Harper govern- ment against his client. In response, somebody at Justice likely asked, "Does this guy have a right to be paid?" The reply came back in the affirmative. Then someone probably asked, "How much is the bill for?" The answer came back that it was for just $20,000. Somebody else probably asked, "What are we waiting for to pay the damned bill?" That's how the cheque came to be in the mail. It had better not bounce. LT Richard Cleroux is a free- lance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. COMMENT PAGE 7 When judges never retired turn 90. If he stays in office 10 more months, he'll outlast Oliver Wendell Holmes Jr. to become the oldest judge ever to sit on that court. Life I tenure remains the rule in American courts. Stevens might yet be around for another 10 years. Despite the latest con- troversy over judicial retirements at the Federal Court, it's been a while since such elderly judges sat in Canada. Canadian judges used to remain "during good behaviour," but their life ten- ures came to an end at our Supreme Court in 1927 and at the provincial superior courts in 1961. A simple statutory amend- ment imposed retirement at 75 on judges at the top court, including justice John Iding- ton, who was already 86. His senility and absenteeism had helped provoked the change. It was more complicat- ed for provincial superior court judges. Their lifetime appointments had been writ- ten into the British North America Act of 1867. Can- ada, then unable to amend its own Constitution, had to ask the British Parliament to make the change. It did, and the deed was done within a year. Some of the judges affected by the new rule complained it was unconstitutional to end their life appointments retroactively. But judges didn't sue in those days, and the rule stuck. No Supreme Court of Canada judge seems to have sat past age 87, a record achieved by justice John Wellington Gwynne at the Letters to the Editor GOVERNMENT GOES TOO FAR WITH NEW RULES I am very happy to report that the provincial government has found it necessary to put itself in my files and guide me with respect to how I should conduct my clients' civil litigation. (See "New year ushers in changes to civil justice sys- tem," Law Times, Jan. 4, 2010.) I am further happy to report that Premier Dalton McGuinty will perhaps also want to come to my office, sit in my desk, and give me advice on how to move a lawsuit along because, in his opinion, I am taking too long. I am glad to report as well that, instead of helping us over the last four or five years, this government made amendments to the Rules of Civil Procedure that likely require 74 new steps in any proposed litigation. As practising lawyers, we are now faced with the prospect of judges coming into our files and telling us when to schedule discoveries; how long to take; what we are supposed to do when we get there; what kinds of documents we should be agreeing to exchange; and how fast we should get our medical reports to satisfy pretrial arrangements. At the end of the day, I am all for government regulation and I believe in a liberal democratic society. But this attorney general and his prede- cessors have, in my opinion, created a micro- managed court process that will in fact come to a grinding halt because of the incredibly large number of rules and the need to inject govern- mental authority into lawyers' practices. Lou Ferro Ferro & Co. Hamilton n April 2010, U.S. Supreme Court Justice John Paul Stevens will turn of the century. As chief justice of Canada, Lyman Duff got an exemption from the rules, allowing him to retire on his 79th birthday in 1944. He died at 90. Justice Emmett Hall died at 96 but, having lived in the manda- That's By Christopher Moore tory retirement era, he left the bench at 75. Today, longevity on the bench isn't about living longer; it's about getting appointed earlier. In about three years, Beverley McLach- lin will become the longest- serving chief justice in our history and she will still have six more years before manda- tory retirement looms. From the era before man- datory retirement, a less- than-exhaustive search turns up a few notably geriatric judges. The champion may be Sir William Mulock, who sat as chief justice of Ontario until 1936, when he was 92. More or less tied with him was his colleague, justice William Riddell, who died in office in 1945 also at 92. Right behind them is the wonderfully named Samp- son Salter Blowers. Blow- ers remained chief justice of Nova Scotia until 1833, when he was 91. He lived to 100. Blowers held on to his posi- tion partly because he feared, correctly, that the govern- ment wouldn't grant him a pension. Future judges didn't have that problem as pen- sions for federally appointed judges began in 1869. Lawyers used to have lurid stories of elderly judges History afflicted with hearing, bowel, bladder or memory problems who stayed on far too long. John Arnup, for example, recalled that when Mulock, Riddell, and other older men were sitting on the Ontar- io Court of Appeal in the 1930s, lawyers who had to face its panels of deaf, quarrelsome, and doddery judges called it "murder- ers' row." But in fact, mandatory retirement may not have affected judges' departures that much. In one provin- cial superior court, the aver- age age of departure through both deaths and retirements was around 73 before man- datory retirement. Then there are the deputy judges of the Federal Court, who were discovered last summer sitting until all ages allegedly in defiance of the Federal Courts Act and the Constitution. "If the Con- stitution Act doesn't apply to judges, I don't know who it applies to," said lawyer Rocco Galati at the time of his recent complaint against the jurisdiction of the deputy judges. That case failed last week when Federal Court Chief Justice ruled they don't actually hold office as judges of the court. The Federal Court depu- ties, who are eager to stay on, might draw inspiration from Julius Title. When he died of a heart attack in 2008, Title was officially a retired Cali- fornia state judge. Neverthe- less, until his death, he was still regularly filling vacancies in the courts. He was 93. LT Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm. His web site is www.christophermoore.ca. Allan Lutfy

• Cover
• Boycott Ends
• Judicial Retirement
• Focus On Family Law/Trusts and Estates