Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Quebec should narrow protest bill on union participation raise legitimate questions about fundamental freedoms. Another area of concern are the reverse-onus provisions that require elected officials of student associations to prove they didn't incite people to break the law. The government, of course, had very good reason for sending a strong Q prompted lots of discussion around its constitutionality. Certainly, there are many aspects of Bill 78 that are troubling. The notice provisions for demonstrations and restrictions uebec's emergency law in response to student protests has statement with Bill 78. After months of protests and actions that have inconvenienced the public, trampled on the rights of non-demonstrating students, and included vandalism and violence, Premier Jean Charest was right to take action to restore order. But did he need to go as far as he did? Many Montrealers who have battled countless disruptions to their COMMENT May 28, 2012 • Law TiMes daily lives are behind Charest when it comes to putting a stop to the may- hem. Certainly, many people in this province — notably Torontonians — would never put up with a situation like that. And while critics have said the provisions requiring eight hours of notice and other information on demonstrations infringe the right to assembly, Quebec officials have pointed out that other jurisdictions have more stringent rules. Moreover, they insist they're not outlawing protests but instead are regulating them. But any response to the demonstrations should really focus on two key issues: ensuring the rights of non-protesting students to go to class and end- ing the violence, vandalism, and disruption to others. So while it' to regulate protests in the streets, it's not necessary to apply the notice rules s reasonable to all demonstrations, including those in public parks. There' s less disruption to the public in those cases and, as long as there's no violence or vandalism, it's a legiti- mate way for the students to voice their concerns about tuition-fee increases. Overall, then, while much of the law is reasonable, it is in fact too broad. There's no doubt that Charest trampling on the rights of others. But this is a coun- try that guarantees the right to peaceful protest, and that' is responding to the urgent need to send a message that the protesters themselves had gone too far in to ensure through both legislation and enforcement efforts. For the moment, the government has only fuelled the protests and prompted talk of constitu- tional challenges. Narrowing the bill to blunt the criticism would be a better way forward. — Glenn Kauth the proceedings, Bad Judgment, remains my favourite of all of his books with its combination of literary fl air and scholarly rigour. Th e mere threat of removal, how- ever, can lead to a resignation, as happened in 2008 in the case of justice Paul Cosgrove of the Ontario Superior Court. In the former British North Ameri- s account of can colonies and elsewhere in the em- pire, judges were generally appointed at pleasure. Th e guarantees of the Act of Settlement 1701 — good behaviour ap- pointments and removal only on a joint address to Parliament — didn't apply to the colonies. John McLaren' Dewigged, Bothered, & Bewildered: Brit- ish Colonial Judges on Trial, 1800-1900, provides a fascinating account of how the colonial offi ce exercised its disciplinary s recent book Law Times LT Masthead.indd 1 Section 99 of the Constitution Act states that superior court judges may only be re- moved on a joint address to the Senate and House of Commons. Fortunately, it has been invoked only once in the case of Jus- tice Leo Landreville of the Ontario High Court. He resigned in 1967 before the pro- cess was complete. Bill Kaplan' S quaring judicial independence with the need for accountabil- ity for judges who go seriously astray has never been easy. Removing judges has never been easy authority over judges who were appointed at pleasure. Th ere were two routes to removal. A colonial governor could suspend a judge for cause subject to review by the impe- rial authorities and appeal to the Privy Council. Alternatively, a colonial assembly might peti- tion the council directly. It then exercised an original jurisdic- tion to rule on the case. McLaren only briefl y exam- History That's expected that the avarice and imbecility of our [Upper Ca- nadian] government would be highly injurious, but it has far surpassed my fears," Th orpe reported disdainfully to the colonial offi ce. Th e only trouble was that Philip Girard ines those judges who got into trouble for incompetence or character defects. Rather, he' who became overly involved in colonial politics or "whose views on law and jus- tice became a political embarrassment." In those parts of the empire dependent on slave or indentured labour, for exam- ple, judges with any ethical sense could easily fall into this category. In the white settler colonies, other is- s interested in those governor. Th us, when Th orpe success- fully ran for a seat in the legislative as- sembly in 1807 (which wasn't forbidden at the time) and made clear his intention to act as de facto leader of the opposition, it didn't take long for the governor to re- move him with London' the pre-responsible govern- ment constitution didn't im- pose many restraints on the executive. When push came to shove, the judge was more likely to lose his job than the sues arose that oſt en centred on inap- propriate political activity. Th e cases of two early 19th-century Ontario judges, Robert Th orpe and John Willis, are illus- trative. Both had valid critiques to make of the local government but did so in an intemperate and self-aggrandizing way. "I formers who wished to expose the overly cosy relationship between the judiciary and executive. His concerns weren't un- founded, but it was his intransigence over the issue of what was a quorum in the Court of King' Willis also supported a group of re- s blessing. He was adamant that the court's statute s what the government should be making efforts sitting in certain matters. Th e latter posi- tion was at least arguable on the wording of the statute, and Willis' stance meant that many past decisions were possibly invalid. Th e governor couldn't tolerate the entire judicial system coming under a cloud and removed Willis in 1828. His appeal to the Privy Council was unsuccessful. But the fi rings of Th orpe and Willis weren't the end of their careers. Th orpe went to Sierra Leone and Willis to New South Wales, but both had the dubious distinction of being removed from offi ce a second time when they again ran afoul of the local governor. Th ey didn't get a third chance. Willis' case at least had one salutary re- sult. In 1834, the assembly passed an act providing for good behaviour appoint- ments in the future with a joint address procedure for removal and an ultimate appeal to the Privy Council. It was the di- rect ancestor of today' s s. 99. LT Philip Girard is a legal historian and professor at Dalhousie University' s Bench that sealed his fate. required a three-judge quorum, whereas a practice had developed of two judges Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. 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