Law Times

Page 6 NOVeMBeR 16, 2015 • LaW TIMeS www.lawtimesnews.com COMMENT Dithering JP should speed things up he courts are busy, but does it really to take a year to decide whether to accept a guilty plea over a traffic charge? That was the issue in this month's ruling in Regional Mu- nicipality of York v. Newhook, a case involving unrelated charges of speeding offences against five people. In September, the prosecution and defence made a joint submission for a resolution in which four of the defendants would plead guilty to an amended charge of disobey sign with a fine of $200. In the fifth case, the fine would be $85. In the case of defendant Adam Newhook, justice of the peace Adele Romagnoli accepted the guilty plea but reserved her decision on sentence until June 2016. With the remaining defendants, she put off deciding whether to accept the guilty pleas until August 2016. In the meantime, the case came back to court with the prosecution seeking an order for mandamus directing Romagnoli to speed things up. In considering the issue, Ontario Superior Court Justice Mark Ed- wards had little sympathy for the need for the delay. "Recognizing the volume of cases in the Provincial Offences Court and the stresses that go with presiding in the Provincial Offences Court there will always be occasions where a justice of the peace needs to reserve his or her decision on sentence. This was not one of those cases," he wrote. "There was no reason in law why Her Worship, Justice of the Peace Romagnoli, should reject the guilty plea that was being proposed by the prosecutor and the defence. Even if there was some legal basis in law for Why a more transparent judicial appointment process is so important he Supreme Court of Canada has an enviable record of pro- tecting human rights. Deci- sions concerning sexual ori- entation, religious freedom, aboriginal rights, prostitution, and the rights of women have illustrated an appropriate approach to human rights. But that wasn't always the case. The his- tory of the Supreme Court of Canada also includes decisions illustrating an abysmal approach to racism and gender discrimi- nation. Those decisions date from the first half of the 20th century, but studying them is instructive. They tell us that the makeup of the court matters and, as a corollary, that how we choose the members of the court makes a difference. The 1914 case of Quong-Wing v. The King dealt with the validity of provin- cial legislation that prohibited a business owned by "any Chinaman" to employ "any white woman." Quong-Wing, a natural- ized British subject, employed two white women as waitresses in his restaurant. The court had convicted and fined him for em- ploying the two women. The Supreme Court upheld the con- viction and the legislation with the chief j ustice stating: "The Chinaman is not de- prived of the right to employ others." The court ignored the ob- vious racism of the legislation and distinguished prior Privy Council decisions that it could have used to declare the legis- lation ultra vires as trespassing on the federal government's power over "naturalization and aliens." Only one member of the court dissented, comparing the legislation to "the product of the mode of thought that begot and maintained slavery." The 1940 case of Christie v. The York Corp. dealt with a black man, Fred Chris- tie, who was denied service at a bar in the Montreal Forum pursuant to a policy prohibiting service to "coloured people." Christie sued the bar and claimed dam- ages for pain, suffering, and humiliation. He was successful in achieving a judgment for $25. With the judgment reversed on appeal, the case came before the Supreme Court. It had to consider whether a policy per- mitting discrimination based on colour was "contrary to good morals and public order" and whether it was permitted in an establishment operating under a licence. The Supreme Court had no sympathy for Christie. The court upheld the reversal of the trial judg- ment and refused to provide any remedy for the blatant discrimination. Instead, the court appeared to criticize Christie for having "persisted in demanding beer after he had been so refused." Again, only one member of the court dissented. The third decision is the well-known Persons case. With women having won the right to vote and hold office, the question of whether they were eligible for appoint- ment to the Senate came before the Su- preme Court in the late 1920s. The precise question before the court was whether women were "qualified persons" under s. 24 of the British North America Act. Only "qualified persons" were eligible to become members of the Senate. Remarkably, the Supreme Court unan- imously ruled women weren't "qualified persons" and thus were ineligible for Sen- ate appointments. It based its reasoning on statutory interpretation and historical analysis. The decision proceeded to a success- ful appeal at the Privy Council. The Privy Council saw the exclusion of women from public office as a "relic of days more barba- rous than ours" and was able to use tradi- tional rules of statutory interpretation to reach the common-sense conclusion that women were indeed persons and thus qualified for Senate appointments. It's true that these decisions were, at least in part, products of their times. Yet not all judges agreed with them, a fact that illustrates that they were, at least in part, not the necessary products of their times. The Canadian Charter of rights and Freedoms has also provided the Supreme Court with the effective last word on sig- nificant issues of public policy, matters that were at one time the sole domain of elected officials. That's why the makeup of our highest court is too important to leave to the dis- cretion of a single person. That's why our new prime minister must reform the Su- preme Court appointment process to put in place an open system with public scru- tiny of nominees. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. 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As a result, he issued an order of mandamus requir- ing her to accept the guilty pleas within 30 days and render her decisions on sentence at the same time. If it takes more than a year to rule on a simple traffic charge, the courts truly are in trouble. It's more likely, however, that Romagnoli is simply taking too long. As Edwards noted, in fact, a num- ber of recent decisions have taken her to task for not giving effect to joint submissions. She may have legitimate concerns, but that's no justification for dithering on the issue and failing in her duty to deliver timely decisions and abide by the courts' expectations around joint submissions. LT T Social Justice Alan Shanoff T

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