Law Times

PAGE 2 Unclear when council will release written report on Matlow Continued from page 1 another chance, "I'll never give you a reason to regret your decision." In his address to the council, Matlow's lawyer Paul Cavalluzzo made several arguments attacking the findings of a five-member inquiry committee. In May, the committee, led by Newfound- land Chief Justice Clyde Wells, submitted a re- port to the council finding Matlow's conduct "so manifestly and totally contrary to the im- partiality, integrity, and independence of the judiciary that the confidence of individuals ap- pearing before the judge, or of the public in its justice system, have been undermined, render- ing the judge incapable of performing the du- ties of his judicial office." The report finds that the council should recommend that the federal justice minister draft a resolution asking Parliament to remove Matlow from the bench. But Cavalluzzo, who has submitted an applica- tion for the Federal Court of Canada to review the committee's findings, argued the committee failed to consider Matlow's positive contributions to the law when compiling its report and that the punishment he faces — removal from office — is disproportion- ate to the allegations he faces. Cavalluzzo also ar- gued, among other things, that the tide is turning in favour of judges taking a more active role in public engagement within their communities. Cavalluzzo asked the council to defer its deci- sion pending the Federal Court review. In what might be taken as a small ray of hope for the Matlow camp, Alberta Chief Justice Catherine Fraser, who led the meeting, asked what type of alternate punishment Cavalluzzo would recommend if — "and it's a big if," she said — the council decided removal from the bench was too harsh. Cavalluzzo suggested counselling or a formal apology might be adequate alternatives. Matlow's case is one of only eight such matters the CJC has dealt with. Only once before has the council made a formal recommendation to the minister of justice that a judge be removed from office. In 1996, it called for the ouster of Quebec Superior Court justice Jean Bienvenue, who re- signed before the matter went before Parliament. The CJC is also dealing with a matter involving Ontario Superior Court Justice Paul Cosgrove. The complaint against Matlow was made in 2006 by City of Toronto solicitor Anna Kinas- towski. She disagreed with Matlow's decision to sit in 2005 on a three-judge panel that unanimously ruled against a city proposal for a streetcar right- of-way on St. Clair Avenue, a matter known as the SOS case. Matlow's decisions to hear five other matters involving the city also were questioned. Kinastowski alleged that the 26-year veter- an judge shouldn't have sat on the SOS panel, because he was involved with a community group called Friends of the Village, which had opposed a development project proposed by the City of Toronto and a developer in 1999, known as the Thelma Project. The development was planned for an area near Matlow's home. The inquiry committee report states that Mat- low "failed in the due execution of the office of judge" for failing to remove himself from sitting on any cases involving the City of Toronto after he became part of Friends of the Village. The committee also found Matlow guilty of miscon- duct for continuing his complaints against the city in October 2005 by delivering documents to a media outlet the day before becoming part of the panel that ruled on the SOS matter. In testimony at the inquiry committee hearing, Matlow said he knew at the time that many other judges in the same position wouldn't have sat on the SOS matter. But, he said, "every judge has to use his own discre- tion," as they are not beholden to a specific set of ethical guidelines. The inquiry committee, however, found Matlow failed to follow "generally accepted ethical standards for judges." Norman Sabourin, executive director and senior general counsel for the CJC, said after the hearing that it's unclear when the council will release its written report on the Matlow case. The judges deliberated immediately following the hearing. LT JULY 28/AUGUST 4, 2008 / LAW TIMES Next battle in the offing Continued from page 1 Mosley, a former senior counsel and assistant deputy minister with the federal Justice Department, wrote that if "Parliament intended to prevent the commissioner from verifying claims of privilege, it could have specifically excluded this power as it has done under several other acts." The Federal Court of Appeal tribunal ruled, however, the com- missioner's request for the employer's records was too broad to allow a statutory abrogation of solicitor-client privilege. As well, the ap- peal panel agreed the act's reference to equivalence with a superior court applied only to the commissioner's power to issue subpoenas and other orders that have the force of law for the purposes of the commissioner's investigations. Binnie agreed the commissioner is vested with "administrative func- tions of great importance" as an officer of Parliament but "she does not, for the purpose of reviewing solicitor-client confidences, occupy the same position of independence and authority as a court. "Express words are necessary to permit a regulator or other statu- tory official to 'pierce' the privilege," he wrote, arguing the uniquely crucial role privilege plays in the integrity of the justice system and later adding the commissioner does not even have the authority to order an employer or organization to provide information to com- plainants, who would have to turn to the courts in such a situation. Binnie also pointed out the commissioner could turn to the Federal Court for a judicial review of privilege claims. MacIntosh, with Mac Mac & Mac (MacIntosh MacDonnell & MacDonald) law offices in New Glasgow, N.S., says the decision was par- ticularly important because of a growing tendency by regulatory boards, agencies, and commissions across Canada to believe they have jurisdiction to compel disclosure of privileged documents and other information. "I believe it's an area that we as members of the bar have perhaps not been as vigilant as we should have been on this issue," he tells Law Times. "In our view the next step is that only the traditional constitu- tionally independent courts should be the guardians and adjudica- tors of privilege," he says. "There has to be reasonable grounds for peeking underneath the cloak." Mahmud Jamal, who argued an intervention for the Canadian Bar Association, agrees. He tells Law Times if Parliament amends PIPEDA to give the privacy commissioner explicit powers to access privileged information held by private-sector organizations — powers the commissioner already has for investigations of federal government actions, under the Privacy Act — it will likely lead to another battle in the Supreme Court. Jamal, a partner at Osler Hoskin & Harcourt LLP's Toronto office, says the 2002 Lavallee v. Canada decision firmly established solicitor- client privilege as a constitutional right under the Charter. "In principle, yes, a clear statutory right would deal with the court's concerns in this case, but it would in itself raise a new round of issues, which is the constitutionality of such a measure, which wasn't addressed at all in this case," he tells Law Times. Patricia Kosseim, the commissioner's in-house counsel for the Blood Tribe case, says the commission had already raised the pos- sibility of amending the act during a Commons review of privacy legislation to the Supreme Court ruling. "It is under consideration," she tells Law Times, adding the privacy commissioner, currently Jennifer Stoddart, has "many other avenues" to test the veracity and credibility of privilege claims. The avenues include the production of affidavits, and cross-examina- tion on the affidavits, as well as turning to the Federal Court for reviews. Interveners included privacy and information commissioners from British Columbia, Ontario, Alberta, and the New Brunswick ombudsman's office. LT Derry Millar W.A. Derry Millar, B.A., LL.B. Ontario Annual Practice Canada Law Book NO OTHER FIRM IN ONTARIO CAN MATCH THE BREADTH AND DEPTH OF OUR SERVICES. Canada Law Book is A Division of The Cartwright Group Ltd. www.lawtimesnews.com

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