Home Accessibility    Home    Branches    Join/Renew    CBA PracticeLink    Contact    Français       

CBA.org Home
About Advocacy Events Interest Areas
Membership Prof. Develop. Publications Public/Media Member Resources
 


The Canadian Bar Association

Vox Judicia – Canadian Judges’ Forum Newsletter

President’s Message
By D. Kevin Carroll, Q.C. L.S.M.
The CBA serves all members of the legal profession – including judges. Like lawyers, members of the judiciary can benefit from the opportunities provided by the CBA for interaction with other members of the profession and the community we serve.  

New to the Judges’ Forum
By the Hon. Lois R. Hoegg
Looking at the CBA from my judicial perspective, I see a professional organization devoted to members of the Canadian legal community – which includes judges. The CBA Judges’ Forum and the organization as a whole afford opportunities for judges to make contributions and receive personal and professional dividends in return.  

History and workings of the Tax Court of Canada
By the Hon. Robert J. Hogan and Nathalie Perron
This article provides a brief outline of the history of the Tax Court and its procedures, and an overview of the types of appeals heard by the Tax Court. 

The Court Martial Appeal Court
By the Hon. Chief Justice Blanchard
The Court Martial Appeal Court is a civilian court of overview which sits on appeal of decisions of military courts, known as Courts Martial.

Colleague in the spotlight
By LCol Jean-Guy Perron, CD, Military Judge
Keeping with our custom, we will be honoring a colleague during the reception on Sunday, August 15, 2010 at the CBA's annual Canadian Legal Conference in Niagara Falls.

Courthouse security: Not just a matter of self-interest
By the Hon. Michelle Fuerst
Judges are often reluctant to say much on the topic of courthouse security. We do not wish to seem alarmist. Nor do we wish, by voicing concern, to appear to have abandoned our position of impartiality.

“To Skype or Not To Skype”
By the Hon. L.M. Olah
In my quest for comfort, I have often wished that the electronic gadgets of judging were grandfathered as of the date of my appointment. I cling to my “old” gadgets. My comfort was shattered one day in the spring of 2009, when I was faced with a standard spousal support trial.

The Dublin Conference
By the Hon. Justice J. Gary Cohen
For those of you who could not attend the Canadian Legal Conference held in Dublin from August 15 to 18, 2009, let me tell you a little about what you missed.

Events of interest at the 2010 Canadian Legal Conference in Niagara

Call for Nominations
The Canadian Judges’ Forum is now accepting nominations for three positions on its Executive Committee for the 2010-2011 term: one Secretary-Treasurer and two Members-at-Large. For further details, please see the Call for Nominations.

Canadian Judges’ Forum
A list of the 2009-2010 Judges’ Forum Executive Committee

Canadian Forum on Court Technology
On September 22-23, 2010, seize the opportunity…be part of your future! Join the inaugural Forum on Court Technology presented by the Canadian Centre for Court Technology! The program features the Hon. Madam Justice Louise Charron, Supreme Court of Canada, Allan Seckel, Deputy Minister to the Premier of British Columbia, and legal futurist Richard Susskind. Full details are available on the Forum Website.

2010 CAPCJ Conference - Sept. 29 to Oct. 3 - Halifax, Nova Scotia (.pdf)
Please click on this link for more information: CAPCJ National Conference (.pdf) (page 4).

 

President’s Message

By D. Kevin Carroll, Q.C. L.S.M.

D. Kevin Carroll, Q.C. L.S.M.

D. Kevin Carroll, Q.C. L.S.M.

The CBA serves all members of the legal profession – including judges. Like lawyers, members of the judiciary can benefit from the opportunities provided by the CBA for interaction with other members of the profession and the community we serve. Judges also can take advantage of high quality professional development programs designed especially for them.

But there is another reason why the CBA matters to members of the judiciary: The association speaks for judges when they cannot speak for themselves.

The CBA has been a long-time defender of the importance of judicial independence. In fact, the association’s attention to the issue goes to our core objectives: to promote improvements in the administration of justice and maintain the high quality of the justice system.

Judicial independence is a cornerstone of Canada’s justice system, and an integral component of federalism, protecting one level of government from encroachment into its jurisdiction by another. And in order to foster the independence of the judiciary, the CBA has recognized that a fair process must be established to determine judicial compensation and benefits. We have been very active in helping to ensure that such a process is in place – and is working.

Our latest initiative – the judicial compensation resource centre – continues our important work as an independent voice on judicial compensation issues.

The CBA, through the Judicial Compensation and Benefits Committee, makes regular submissions to federal judicial compensation and benefits commissions, and urges the federal government to respond to commission recommendations in a timely and substantive manner. CBA branches do the same at the provincial and territorial level. But recent discussions between CBA and the Canadian Association of Provincial Court Judges revealed there is a need to have information about the judicial compensation review process available to everyone in one place.

Now, branches can go to the CBA website and find copies of submissions made by the CBA at the federal level to the Quadrennial Review Committees and branch submissions to provincial or territorial compensation review committees. There is information setting out the times when intervention might be required by the CBA at the provincial or national level; for example, ensuring that letters are written to make sure governments are conducting the review process or following up with government on implementation of reports after Compensation Review Committees make recommendations. 

Of course, the CBA does not represent the interests of either the government or the judiciary. We do not discuss quantum. The CBA’s main interest is to ensure that judicial compensation and benefits are structured and maintained, first to protect and promote judicial independence by ensuring there are appropriate financial safeguards for members of the judiciary, and second to strengthen the judiciary by providing adequate compensation in order to attract the best and most qualified candidates for appointment. The judicial compensation resource centre will assist us in that important role.

The CBA also partners with the judiciary on issues of concern to both the public and the profession. Representatives of the CBA, the Canadian Judicial Council and the Canadian Forum on Civil Justice launched the Action Committee on Access to Justice to bring together stakeholders on the issue of access to justice in civil and family matters. In January, Mr. Justice Thomas Cromwell of the Supreme Court of Canada was named chair of the working group, which has identified areas of interest and special projects to propose to the committee, including legal aid, increased support for self-represented litigants and the development of an official mandate and communications strategy for the committee.

Committee representatives have also been asked to help develop a "national vision" for civil and family justice in Canada and complete a questionnaire to refine priorities, which include improving public understanding, creating a multi-option justice system and reducing delay through litigation management.

I would like to take this opportunity to thank members of the judiciary for being part of this organization. We are there for you. Together, we can make a difference.

up arrowTOP

 

New to the Judges’ Forum

By the Hon. Lois R. Hoegg
Supreme Court of Newfoundland and Labrador - Trial Division (St. John's)

I am a long time and enthusiastic member of the Canadian Bar Association. As a lawyer I contributed to my profession and the larger community through the CBA and I feel that I was enriched both personally and professionally as a result of this involvement with the CBA. Upon becoming a judge three years ago I hoped that this symbiotic relationship could continue. It has.

Looking at the CBA from my judicial perspective, I see a professional organization devoted to members of the Canadian legal community – which includes judges. The CBA Judges’ Forum and the organization as a whole afford opportunities for judges to make contributions and receive personal and professional dividends in return. Let me explain.

My judicial colleagues and I all strive to do a good job for those we serve and to do the right thing by those we judge. I believe that my membership in the CBA helps me to do a better job, and in turn, benefits the constituency I serve.

The obvious case to be made for judges to hold CBA membership is that the CBA can and does speak for us when we cannot speak for ourselves. This organization regularly defends and promotes the importance of judicial independence in its submissions and dialogue with the legislative branch of government. It goes without saying that we should support the CBA. Both former CBA President Guy Joubert and the Hon. John Menzies of the Manitoba Court of Queen's Bench eloquently stated this position in the July 2009 issue of Vox Judicia

The CBA is able to continue to speak for judges as long as it is informed of the judicial perspective. One of the ways the CBA can stay informed is through judicial membership.

Another benefit of CBA membership is that it allows judges to stay connected to those we serve. The opportunities for interaction with lawyers, legal academics, other scholars and interest groups, of which I avail, keep me in touch with burgeoning legal issues, modern perspectives on the role of the courts and new developments in law. As a result, I feel a connection with the community in which I judge.

The CBA offers high quality professional development programs in various forms - from publications to online courses, topic-specific seminars and full-scale conferences. These educational opportunities are legion, and cover many areas of law over any given time period. Some programs are specifically designed for judges. At the Canadian Legal Conference held in Dublin, Ireland in August, 2009 there were several events tailored to judges’ interests. 

What a conference Dublin was! Aside from the Judges’ Forum Reception and Annual Business Meeting, and a tour of Dublin’s “Four Courts,” of special interest to us was the panel discussion at the Sunday morning council meeting Why Courts Should be Self-Administered – The Irish Experience. This was an excellent presentation on how the Irish courts became self-administering - as opposed to being administered by the Department of Justice, and how the Irish Courts Service works effectively for all stakeholders.

The Judges’ Forum CLE devoted its session to Counter-Terrorism and Human Rights, which was jointly sponsored with the International Commission of Jurists. By all accounts the discussion of human rights issues that have arisen from counter-terrorism measures in international and national law was well received.
I attended a parallel session presented by Richard Susskind on “The Future of Lawyers.” Mr. Susskind is a special adviser to the CBA and the author of The End of Lawyers. He captivated the audience with his presentation detailing how societal changes are affecting the practice of law and how clients are demanding a greater role in the determination of their legal issues and in how they are serviced. 

To be an effective judge, one cannot lose touch with what happens in both the legal profession and the wider community. I do not want to judge my fellow citizens from an antiquated or out-of-touch perspective. While I must maintain a necessary judicial distance from the fray of life, in the sense of remaining silent on matters of public policy and not engaging in behaviors which could bring disgrace to the judicial office, I don’t think it’s wise for judges to be so far removed from contemporary life that they do not relate to matters on which they pass judgment. Mr. Susskind’s futuristic presentation sure kept its listeners from getting stuck in time!

I am reminded of the “living tree” doctrine in constitutional law. I am so grateful to those Lords in the Imperial Privy Council in 1929 who were not so distant from the fray of modern life as to be blind to the fact that women are persons. Thankfully, those open-minded Lords were connected to progressive thinking of that day, which connection had escaped their Canadian counterparts. 

As a judge, I have participated as a panelist in two CBA educational sessions. The first was at the Canadian Legal Conference in Quebec City in 2008. The Right Honourable Anne MacLellan, former Minister of Justice and the member of the House of Commons, Ms. Valerie Beaudoin, in-house counsel at Bell Canada and I were panelists at a CLE session “A Women’s Place is in the House.” (My perspective was the “Courthouse”). We spoke about women making a difference in our respective “houses” and about the particular challenges our gender faces in legal environments. This is a subject near and dear to my heart, and to the extent that I have succeeded as a woman in law, I am ready and willing to share my experience with others at any time. My daughter Charlotte, a CBA student member, was in the audience that day. I am very proud of her, but my heart practically stops when I think of the grueling demands of law practice and years of hard work ahead of her! Perhaps something I had to say in Quebec City will help her in her future career, and if so, that would be a special gift to me from the CBA.

I also participated in a CBA Newfoundland and Labrador Branch CLE session in July, 2009 in St. John’s. I provided my perspective on legal and procedural issues in insurance and injury litigation. I was pleased to contribute to the session and participate in the lively discussion which ensued among CBA members present from the local bar. I came away much better informed than when I went!

I have the privilege of sitting on the Journalism Awards Committee of the Newfoundland and Labrador CBA Branch. In this regard I contribute in a modest way to my community by improving journalistic understanding and presentation of legal issues. In return, my understanding of journalistic treatment of legal issues is improved. Again, the relationship is mutually beneficial.

I am not suggesting that CBA membership is the only or even the preferred way for judges to stay connected to the communities they serve. I say only that it is one excellent way for judges to do so, primarily because it provides a comfortable and supportive forum for doing so. There are extra tools – like international opportunities - which the Judges’ Forum provides and which I am itching to use.

In summary, the CBA Judges’ Forum works for me! I suggest we encourage our non-member colleagues to give it a chance to work for them.

up arrowTOP

 

History and workings of the Tax Court of Canada

By the Hon. Robert J. Hogan, Tax Court of Canada, and Nathalie Perron, Law Clerk, Tax Court of Canada

A host of new and complex tax measures have been introduced over the last 60 years to finance the expansion of government services and the social safety net that Canadians take pride in. Today, Canadian tax law reflects economic and social policy concerns. In Carswell’s 2009 edition of the Practitioner’s Income Tax Act there are 1,538 pages of legislation dealing with these matters. Tax incentives such as lower tax rates applicable to active business income earned by Canadian-controlled private corporations, investment tax credits for certain types of expenditures and accelerated depreciation for capital expenditures are offered for economic activity favoured by government policy. Taxpayers’ eligibility to claim the benefit of these incentives is often at the heart of tax disputes heard by the Tax Court of Canada (“Tax Court”).

This article provides a brief outline of the history of the Tax Court and its procedures, and an overview of the types of appeals heard by the Tax Court.

History

The Tax Court has its roots in the Income Tax Appeal Board (“Board”). In 1946 this Board was created in an effort to simplify procedure in income tax appeals. Prior to that time appeals could only be brought before the Exchequer Court (predecessor to today’s Federal Court).

Following the creation of the Board, taxpayers had the option of proceeding by means of a simplified procedure before the Board or by way of the formal procedure before the Exchequer Court. This concurrent jurisdiction engendered notable anomalies. The decisions of the Board were not binding on the Exchequer Court, although statements previously made before the Board could be used in cross-examining witnesses before the Exchequer Court. Tax practitioners could present their case first before the Board as a tactical means of fully discovering the Crown’s case, with the knowledge that they could start over in the Exchequer Court if they were unhappy with the result obtained before the Board.

In 1967 the Royal Commission on Taxation (known as the Carter Commission) recommended that the Board be discontinued and a new superior court be established with exclusive original jurisdiction in all tax cases. The Commission recognized that a new court with judges specialized in the tax field was needed to hear ever more complex tax matters. This proposal was adopted in stages, first with the creation of the Tax Review Board in 1970 followed by its continuation as the Tax Court in 1983. However, for a long time the Tax Court still shared concurrent jurisdiction with the Federal Court — Trial Division.

Throughout this period the Canadian tax bar continued to lobby the government to award exclusive jurisdiction in tax matters to the Tax Court. Finally, in 1991, the Tax Court was granted exclusive jurisdiction over income tax appeals. In July 2003, the Tax Court was proclaimed a superior court of statutory jurisdiction. Today, the Court’s jurisdiction has been expanded to include appeals pursuant to the Air Travellers Security Charge Act, the Canada Pension Plan, the Cultural Property Export and Import Act, Part V.1 of the Customs Act, the Employment Insurance Act (“EIA”), the Excise Act, 2001, Part IX of the Excise Tax Act (“ETA”), the ITA, the Old Age Security Act, the Petroleum and Gas Revenue Tax Act and the Softwood Lumber Products Export Charge Act, 2006 when references or appeals to the Court are provided for in those Acts.
 
The Court has retained many of the features of its predecessor institutions. For example, the Court’s informal procedure may be compared to the procedure before the Tax Review Board, and the Court’s general procedure is similar to the procedure that existed at the Federal Court — Trial Division. In informal matters, taxpayers are more often than not self-represented. These taxpayers often find themselves at a considerable disadvantage when pitted alone against experienced tax counsel acting for the Crown. A presiding judge must therefore often adopt a judicial attitude similar to that of a judge hearing a small claims matter in a provincial court without counsel present. The judge must assist the taxpayer in ensuring that the evidence is brought forward in a coherent manner so as to ensure a fair trial. This practice is rarely challenged by the Crown, which is mindful of the importance of the taxpayer’s need to be heard when facing the government in a tax dispute.
 
Types of appeals heard by the Tax Court

The following is a brief list of examples of some of the types of appeals heard by the Tax Court.

Net worth assessments and other alternative methods of assessment

The Canada Revenue Agency (“CRA”) may use a host of audit methodologies to ascertain whether taxpayers have failed to report all of their income. The most common alternative method of assessment is known as a net worth assessment. This method is used when the CRA believes that a taxpayer’s accounting and tax records are unreliable. A net worth assessment starts with a calculation of the taxpayer’s net assets (assets minus liabilities) at the beginning of a period. The same calculation is carried out at the end of the period. The increase in net worth plus the estimated cost of living for the taxpayer and his family over the period minus the declared income of the taxpayer and his spouse is assumed to be the amount of undeclared income. Taxpayers bear the burden of establishing that they did not have the amount of undeclared income assessed by the CRA. Taxpayers can succeed against this type of assessment either by reconstructing their income — a difficult task if their records are incomplete or unreliable — or by establishing on a balance of probabilities that they received non-taxable income from sources such as gifts, legacies, lottery winnings or loans from family members.

General anti-avoidance rule

It is a well-recognized principle in tax law that a taxpayer may arrange his affairs in such a manner as to minimize the overall amount of tax payable in a year. While tax minimization is entirely legitimate, tax avoidance is not. The principal weapon in the government’s arsenal to combat complex tax avoidance schemes is the general anti-avoidance rule (“GAAR”) found in section 245 of the ITA. The GAAR will be invoked by the CRA if it believes that one of the main purposes of a transaction or series of transactions is to obtain a tax benefit and that such a result constitutes a misuse or abuse of the ITA. In very general terms, in dealing with a GAAR appeal, the Tax Court must analyze the business and investment purposes of the transaction to determine whether the tax result sought is consistent with the object, spirit and purpose of the rules relied on by the taxpayer in structuring the transaction.
 
Transfer pricing assessments

The acceleration of globalization over the last decade and the advent of tax competition among nation states have created a ripe environment for multinationals to use intra-group transfer pricing strategies to lower their overall tax bill. In 1998, Canada expanded the scope of its transfer pricing rules in order to combat the erosion of its tax base by aggressive transfer pricing strategies. Under these rules, a Canadian taxpayer’s income may be increased if the price it pays for goods and services supplied by related parties exceeds an arm’s length price or if the price that it charges for goods and services supplied to related parties is less than an arm’s length price. To decide a transfer pricing case, the presiding judge must sort through complex expert testimony centered on the determination of an arm’s length price for the transaction at issue.

Employment Insurance Act — employee vs. independent contractor

Benefits under the EIA are available to persons who have completed the required amount of hours of “insurable employment.” The Tax Court must examine the work relationship between parties to determine whether a person was engaged as an employee or as an independent contractor.

Goods and Services Tax

Input tax credits are credits that may be claimed by registrants under the ETA with respect to the GST that they are required to pay on taxable inputs used in the course of a commercial activity. In GST cases, the Tax Court is often called upon to determine whether the inputs of a registrant are taxable supplies used in the context of a commercial activity and whether the registrant has collected and remitted the right amount of GST over the relevant period.

Conclusion

The Tax Court has come a long way since 1983. Today, it has 22 judges, including the Chief Justice and the Associate Chief Justice, who sit throughout Canada hearing informal and more complex general tax appeals.

up arrowTOP

 

The Court Martial Appeal Court

By the Hon. Edmond P. Blanchard
Chief Justice of the Court Martial Appeal Court of Canada

The Hon. Edmond P. Blanchard

The Hon. Edmond P. Blanchard

The Court Martial Appeal Court is a civilian court of overview which sits on appeal of decisions of military courts, known as Courts Martial. The Courts Martial have power to try military personnel, and civilians accompanying such personnel abroad, for crimes and offences against the Code of Service Discipline. This Code includes offences specific to the military context and also encompasses those of the Criminal Code.

Traditionally, Courts Martial were conducted by military personnel and there was no right of appeal to any tribunal outside the military. It is only after the Second World War that Canada along with the U.K. and the United States took steps to provide some means of appeal from military courts to a civilian tribunal. In 1950, amendments to the National Defence Act (NDA)created the Court Martial Appeal Board, chaired by a judge of the Exchequer Court of Canada (the predecessor of the Federal Court and the Federal Court of Appeal). The Board heard appeals by service personnel against convictions or against the legality of a sentence.

In 1959, the Parliament replaced the Court Martial Appeal Board with the Court Martial Appeal Court, a superior court of record to be composed solely of superior court judges. In 1991, amendments to the NDA expanded the jurisdiction of the Court. The Court was given full powers to review the severity of sentences and to substitute sentences imposed by the Courts Martial. The amendments also gave the Crown, represented by the Minister of National Defence, the right to appeal both sentence and conviction, a right which it did not previously have.

Today, the function and status of the Court is comparable to a civilian court of criminal appellate jurisdiction. The Court has powers of disposition similar to those of any civilian appellate court: it can dismiss appeals, set aside convictions, order new trials, substitute a finding of guilty on another charge where the Courts Martial could have so found, or substitute for any sentence imposed by a Court Martial the sentence it considers legal or fit. The Court also hears appeals from Courts Martial on findings of fitness to stand trial, stays of proceedings, release pending trial, or release pending appeal.

The judges of the Court are appointed by the Governor in Council from trial and appellate judges of provincial superior courts, the Federal Court and the Federal Court of Appeal. Judges of the Court have extensive experience in criminal law and military law. The Governor in Council designates one of the judges of the Court Martial Appeal Court to be the Chief Justice. Appeals are heard by panels of three judges and the Chief Justice is responsible for designating the judges which will compose the panel for an appeal. It is customary for the Chief Justice to designate at least one judge from the region where the case is being heard. 

The Court may sit and hear appeals at any place. It is the Court’s policy to hear every appeal at a location most convenient to the individual party where suitable facilities are available. Appeals of the legality of a conviction or a sentence can be filed without leave. Leave is required when the appeal is against the severity of a sentence. Decisions of the Court may be appealed on questions of law to the Supreme Court of Canada with leave in cases of unanimous decisions or by right in cases of dissenting opinion. 

The Court Martial Appeal Court has an important role to play in ensuring that the system of military justice conforms to the underlying values articulated in the Canadian Charter of Rights and Freedoms, such as fairness and fundamental justice. Members of the Armed Forces are subject to military law and to a separate system of military tribunals, which exist alongside ordinary laws that apply to all citizens and civilian courts. The purpose of the separate system of military justice is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The effective and efficient enforcement of a strict disciplinary standard in the military, by separate tribunals, has long been recognized as being operationally essential to the military. Notwithstanding any justifications for a separate tribunal structure under military law, such a parallel system is itself subject to the Charter. In this respect, the Court Martial Appeal Court has, on various appeals, considered the compatibility of the NDA,with the rights and freedoms constitutionally guaranteed to all members of the Armed Forces by the Charter.

In 1998 in the case of R. v. Lauzon, the Court addressed the issue of independence of military judges.Judicial independence ensures that judges have complete freedom to try the cases before them and are able to make decisions free of any political pressure. 

It is the cornerstone of any effective judicial system, and the right to be tried by an independent tribunal is protected by the Charter. The Court in Lauzon held that the method of appointment of the Chief Military Judge, the method of reappointment and removal of military judges, as well as the fixing of salaries of military judges did not meet the standards of judicial independence required by the Charter. This decision led to relevant amendments being made to the NDA, so as to bring it into conformity with the Charter.

The Court Martial Appeal Court has also struck down provisions of the NDA which infringed the rights of an accused member of the Armed Forces to a fair trial. In 2008, in the case of R. v. Trépanier, the Court decided that the accused standing trial at a Court Martial should be allowed to choose whether the trial would be heard by a judge sitting alone or a judge with a panel of fact-triers. Prior to this case, the prosecution had the authority to elect the mode of trial for the accused. The Court found this to confer a tactical advantage to the prosecution and to violate the rights of the accused person to a fair trial, as guaranteed by the Charter.

Such decisions highlight the contributions made by the Court Martial Appeal Court to the military justice system. The Court, as a superior court of record, provides written reasons for its decisions, and its judgments are reported and easily accessible. For more information on the Court and to access its judgments, please visit www.cmac-cacm.ca.

up arrowTOP

 

Colleague in the spotlight

By LCol Jean-Guy Perron, CD, Military Judge
Office of the Chief Military Judge

The Hon. Harvey Brownstone

The Hon. Harvey Brownstone

Keeping with our custom, we will be honoring a colleague during the reception on Sunday, August 15, 2010 at the Canadian Bar Association annual Canadian Legal Conference in Niagara Falls. We traditionally point the spotlight at a colleague residing in the province hosting the annual conference. This year’s colleague in the spotlight is Harvey Brownstone.

In February 2009 Harvey’s first book, entitled “Tug of War: A Judge’s Verdict on Separation, Custody Battles and the Bitter Realities of Family Court,” was released. This is the first book written by a sitting family court judge that speaks directly to the public. His book spent at least 11 weeks on the national bestseller list, and is currently in its 3rd printing. All of Harvey’s royalties from the sale of the book are directed to the Children’s Wish Foundation of Canada.

Harvey has taken his public education campaign to an exciting new dimension. He has agreed to host his own TV talk show, called “Family Matters.” The show, which has begun airing on the Internet in late spring 2010, deals with a wide variety of issues regarding relationships, families, parenting, the justice system, and the well being of children.  

Harvey was appointed to the Ontario Court of Justice on March 13, 1995 and he has presided exclusively in family court since 2000. He was one of Canada’s first openly gay judges. Since marriage between same-sex partners became legal in Ontario on June 10, 2003, he was the first judge to make himself publicly available to conduct wedding ceremonies. He has officiated at over 1,000 weddings for same-sex from all over the world, and has been featured in People Magazine, CNN and every major news network in Canada.

Please come and join us at the reception on Sunday, August 15, 2010 in Niagara Falls when we celebrate, Harvey Brownstone, our colleague in the spotlight.

 

up arrowTOP

 

Courthouse security: Not just a matter of self-interest

By the Hon. Michelle Fuerst
Ontario Superior Court of Justice (Newmarket)

Judges are often reluctant to say much on the topic of courthouse security. We do not wish to seem alarmist. Nor do we wish, by voicing concern, to appear to have abandoned our position of impartiality. 

But, it is a reality that we no longer live in a world in which respect for the rule of law and the justice system that exists to uphold it is necessarily shared by everyone. Not everyone is of the view that their interests will be best served by a fair and public trial on the merits.  Some believe that disrupting the process through threats, intimidation, and a show of force is their best bet. In other instances, individuals who ordinarily are decent members of society cannot cope with the stress of litigation, and lose self-control in unpredictable ways. And then there are those who see the courts as a symbol of oppression, rather than as a cornerstone of freedom. 

Judicial concern about security at courthouses is sometimes dismissed as judicial self-interest. Nothing could be further from the truth. Of course judges want a safe workplace. But our concern extends beyond ourselves. We owe it to those who work in our courthouses and play a role in the administration of justice be it big or small, to those whom we require to attend at our courthouses including jurors and witnesses, and to those who come to our courthouses because that is where they must go to get justice, to feel and to be safe. Equally, it is critical to the maintenance of the rule of law that no-one should be intimidated from participating in the administration of justice, for example as a judge or a prosecutor, or from accessing it as a litigant, or from attending court in response to a summons as a juror or a witness, because of fear for their personal safety.

We need to focus on what it will take to make courthouses safe environments for those who work in and have resort to them. It is at least a moral responsibility that the judiciary shares with others involved in the administration of justice.

Proper security measures can be costly. But, courthouse security is an essential, not a frill. That fact needs to be emphasized to those responsible for building, maintaining, and retro-fitting the courthouses in which we work.

One of the challenges is to introduce security measures that do not unreasonably impinge on the apparent or actual accessibility of our courts, or on the public’s freedom of movement in and out of courthouses. And for the judiciary, an important challenge is to develop protocols that allow us to be made aware of security issues in and around our courtrooms, and to have some input into their resolution, in a way that compromises neither our impartiality nor its appearance.

In recognition of the importance of this topic to our members and colleagues, the Forum recently undertook an examination of issues related to courthouse security. The resulting Report includes a checklist of matters for judges to consider. It is a document that we hope will be of use to all judges. It is an example of the Forum’s commitment to bring together judges from across the country to address issues of common concern. 

Please visit the Judges Forum website where the Report will be posted shortly. (CBA member login required.)

up arrowTOP

 

"To Skype or Not To Skype"

By the Hon. L.M. Olah
Ontario Superior court of Justice - Family Division (Barrie)

In my quest for comfort, I have often wished that the electronic gadgets of judging were grandfathered as of the date of my appointment. I cling to my “old” gadgets – my nib tipped ink pen, my 64 M of RAM PC and my hand-held dictating machine.

My comfort was shattered one day when, in the Spring of 2009, I was faced with a standard spousal support trial in Newmarket, Ontario between a self-represented wife and a self-represented husband. Accepting my fate, I was then hit with a discomforting fact - a request by the computer software consultant husband to have his witness, resident in Levis, Quebec, examined via “Skype”.

“What is Skype,” I grumbled?

Skype is a software application that allows people to make telephone calls using their computers and a connection to the internet. By the use of Skype you actually see the person with whom you are chatting, on your computer screen.

After an explanation of the technology, and after consultation with the local and Regional Systems Co-ordinator, and satisfied that the Rules of the Family Court and the Civil Rules permitted such procedure, I determined that it would be appropriate to examine the Quebec witness via Skype.

All parties involved (court-reporter included) preliminarily tested the functioning of the Skype technology, before its application at the trial. 

The following is a description of the process orchestrated by the court and the Regional Systems Co-ordinator, Dwayne Rogers.

  1. The Systems Co-ordinator attended the courtroom with the court reporter, clerk/registrar, court services officer, judge and the self-represented parties present.
  2. The Systems Co-ordinator advised the husband that there was no available network connection.
  3. The husband provided a demonstration by connecting to the witness using the Skype software on his laptop. The MAC notebook was connected by a wireless Bluetooth connection to his personal iPhone. The network connection was provided by the iPhone connected to the Rogers 3G network.
  4. The witness was able to clearly hear anyone near the laptop and the video was only displayed on the laptop screen. If the laptop was moved and pointed towards the dais then the witness was able to hear the judge better.
  5. The wife agreed to the use of the technology in order for this witness to testify.
  6. The husband agreed to provide an external speaker to connect to the laptop to provide louder audio and to also bring a HDMI to RGB video cable.
  7. On behalf of Court Services, the regional court services officer committed to supply only a 40" LCD for the next day of trial.

On the next day, and prior to the continuation of the trial, the following occurred.

  1. The Systems Co-ordinator setup the 40" LCD located on the side wall of the courtroom where everyone could view the screen. It was connected to the husband’s laptop using his HDMI to RGB video cable. The husband then changed the setting on his laptop so that the display appeared on both screens.
  2. The husband’s external speaker was connected to his laptop to provide louder audio which the court reporter confirmed was acceptable. We did not need to move a microphone closer to the speaker.
  3. When another connection test was done, it was determined that the witness at the remote end could not hear the judge clearly enough.
  4. The Systems Co-ordinator asked the husband if there was a microphone input on the laptop, and, as there was not, the Systems Co-ordinator provided an external speaker and long audio cable which could be connected to the audio output on the court recording equipment and be positioned near the laptop. This provided the audio from all the courtroom microphones near the laptop microphone.
  5. The volume control on the speaker had to be carefully set to avoid feedback.

At trial, the remote witness appearance using Skype occurred as follows:

  1. The husband made the connection on his laptop to the remote witness and put the view into a full screen mode.
  2. On the large 40” LCD screen everyone could clearly see the witness who followed instructions on how to position his camera so that his upper body was shown. A small window in the lower left side of the screen displayed what the laptop camera at the court’s end was capturing.
  3. To swear in the witness, the courtroom clerk went to stand in front of the laptop at the counsel desk so that the witness could see her.
  4. The judge asked that the witness confirm that he was alone in a secure room.
  5. The witness provided testimony and was questioned by both parties who changed counsel desks when questioning in order to sit in front of the laptop camera.
  6. The remote witness could not see the judge but could hear her clearly. The witness could only see the party who was questioning him.
  7. The network connection on the iPhone was lost at one point and the connection had to be re-established, which took about 30 seconds.
  8. The entire testimony lasted approximately 30-40 minutes.
  9. Once completed the party disconnected the witness.
  10. A 10 minute recess was then taken when the Systems Co-ordinator removed the equipment supplied by Court Services.

As a trial judge, I was most concerned about my ability to discern the witness’s demeanour via Skype and was pleasantly surprised that the use of a 40 inch monitor was a most effective manner in which I could assess the demeanour and credibility of the witness. All of the participants, the wife, the husband, the witness, and the court staff were pleased with the efficient and effective manner in which the questioning occurred. 

This Luddite now advocates the use of Skype technology as a means by which to have a cost and time efficient examination of witnesses who are located distances from the locus of trial.

By way of caution, Ontario Judges should be aware that judges are discouraged from the use of Skype for personal use, using their government-issue laptop. However, in the aforementioned case, the technology was provided by the litigant.

To Skype!

up arrowTOP

 

The Dublin Conference

By the Hon. J. Gary Cohen
Provincial Court of British Columbia

The Hon. J. Gary Cohen

The Hon. J. Gary Cohen

For those of you who could not attend the Canadian Legal Conference held in Dublin from August 15 to 18, 2009, let me tell you a little about what you missed.

This conference was, from the CBA Judges' Forum's point of view, a huge success. It started with our Reception on Sunday August 16 in the Adam Room of the famous Shelbourne Hotel. This hotel has a very interesting history, especially during the times of the 'troubles'. You may learn more about this hotel at its website http://www.shelbourne-hotel.info/.

Our reception event was very well attended by Canadian Judges, CBA Executive Members and by a very respectable number of our Irish judicial colleagues as well.

The Judges' Forum was responsible for one continuing legal education course which was held during the morning of August 17. We engaged Professor William Schabas to be the course moderator and he chose the topic of 'Counter-Terrorism and Human Rights'. Also on the panel were Michelle Farrell, a doctoral researcher from the Irish Centre for Human Rights; Professor Colin Harvey, the director of the Human Rights Centre at Queens University, Belfast; and Phil Shiner, a lawyer with the Public Interest Lawyers group in Birmingham.

This course was one of the best attended of all the courses given during the entire Conference; with barely a seat available. A further testament to the level of interest generated by this course and the quality of its presenters is the fact that those who attended the first half of the course returned for the second half of the course after we took a health break. Two-and-a-half hours later there was still barely a chair to be had.

That course ended at noon and the judges then quickly relocated from the Conrad Hotel (where the course was given) to the Shelbourne Hotel for Judges' Forum annual business meeting. This meeting was well attended considering it was held out of country. We had 17 judges and one CBA representative at the meeting. The election of executive members of the Judges' Forum was held and other business conducted.

The Judges' Forum usually co-sponsors an educational program during Judges' Day along with the Canadian Association of Superior Court Judges however that event was not held in Dublin in 2009. We look forward to participating in that event as part of the 2010 Canadian Legal Conference, in Niagara.

The business meeting was the last formal event for the Judges' Forum however the judges in attendance in Dublin were welcomed at all of the other CBA events including the keynote address by former Irish President Mary Robinson, the remarks from the Minister of Justice, other legal courses given by such notables as futurist, Richard Suskind, or courses on Language and Minority Rights, Winning Advocacy and Legal Service Delivery in Complex Companies. We were also invited to the welcoming reception at Mansion House, an opening reception at the National Concert Hall, a performance of Riverdance, a dinner at Dublin Castle, the lunch at Trinity College and the visit to the home of Guinness among other events.

We are planning more great events including our "Colleague in the Spotlight," our annual business meeting and another great course for the CBA Canadian Legal Conference in Niagara in August 2010. We look forward to seeing you there.

up arrowTOP

 

Events of interest at the 2010 Canadian Legal Conference in Niagara

Sunday, August 15 (following Opening ceremonies & plenary)
Judges’ Forum Reception
4:30p.m.
Sheraton on the Falls Hotel - Fallsview Studio B

Monday, August 16
Judges’ Forum PD program
The changing Family and the Law
8:45 – 10:15a.m.
Sheraton on the Falls Hotel – Strategy Room 2

Speakers:
Suzanne H. Pringle, Suzanne H. Pringle, Avocats (Laval)
Raymond David, Raymond David psychologist (Montreal)
The Honourable R. James Williams, Supreme Court of Nova Scotia (Halifax)

Judges’ Forum Business Meeting
12:00-2:00p.m.
CrownePlazaElizabethRoom

Information on the Judges’ Day Conference can be found at the following link: http://www.cba.org/cba/niagara2010/main/judges.aspx

For further details on the Niagara CLC 2010, please visit http://www.cba.org/cba/niagara2010/main/

Registration information can be found at http://www.cba.org/cba/niagara2010/main/register.aspx
***The Early Bird registration deadline is June 30, 2010

We look forward to seeing you in August!

up arrowTOP

 

Call for nominations

The Canadian Judges’ Forum is now accepting nominations for three positions on its Executive Committee for the 2010-2011 term: one Secretary-Treasurer and two Members-at-Large. The term of office for each position is one year, beginning September 1, 2010. The Secretary-Treasurer will become Vice-Chair in the 2011-2012 term and Co-Chair in the 2012-2013 term.

The National Officers have nominated Hon. Frank P. Hoskins for the Secretary-Treasurer position (Provincial Court of Nova Scotia) and Lieutenant-Colonel Jean-Guy Perron, CD (Military Judge) for Member-at-Large.  Additional nominations will be accepted until August 6, 2010

The Executive Committee is responsible for the overall operation and direction of the Forum’s activities. The duties of the Secretary-Treasurer include preparing minutes of meetings and liaising with National Office staff concerning financial matters. The Members-at-Large assist the Executive in carrying out the Forum’s mandate.

The criteria for nomination include participation and interest in the Forum’s activities, gender and regional representation, and representation from different levels of court. Elections for the three positions will take place at the Judges’ Forum’s annual meeting, which takes place Monday, August 16, 2010 from 12:00 to 2:00 p.m. during the Canadian Legal Conference in Niagara. 

Nominations or information about nominations process should be forwarded to:

Edith S. Pérusse
Judges’ Forum Staff Liaison
500-865 Carling Avenue
Ottawa, Ontario K1S 5S8

Tel:  1-800-267-8860, ext. 179
Fax:  613-237-0185
E-mail: edithp@cba.org 

Nominations must be received in writing by August 6, 2010.

up arrowTOP

 

Canadian Judges’ Forum

A list of the 2009-2010 Judges’ Forum Executive Committee

1st Co-Chair/1er coprésident
John A. Menzies - Court of Queen's Bench of Manitoba
1104 Princess Ave
Brandon, MB
R7A 0P9
Tel (204) 726-6772
Fax (204) 726-6148
John.Menzies@gov.mb.ca

2nd Co-Chair/2e coprésidente
Michelle K. Fuerst - Superior Court of Justice
50 Eagle St W
Newmarket, ON
L3Y 6B1
Tel (905) 853-4810
Fax (905) 853-4824
Michelle.Fuerst@scj-csj.ca

Vice-Chair/Vice-président
J.G Cohen - Provincial Crt BC-Surrey
14340 57 Ave
Surrey, BC
V3X 1B2
Tel (604) 572-2300
Fax (604) 572-2301
gcohen@provincialcourt.bc.ca

Secrétaire-trésorière/Secretary-Treasurer
Sophie Bourque - Cour supérieure du Québec
Palais de Justice
1 rue Notre-Dame E, suite 12.2
Montréal, QC
H2Y 1B6
Tel (514) 393-2220
Fax (514) 864-6402
sbourque@judex.qc.ca

Président sortant/Past Chair
Claude C. Boulanger - Cour du Québec
300 boul Jean-Lesage, bureau R-244
Québec, QC
G1K 8K6
Tel (418) 649-3492
Fax (418) 643-8432
ccboulanger@judex.qc.ca

Member(s)-at-Large/Membre(s)
Frank P. Hoskins - Provincial Court of Nova Scotia
5250 Spring Garden Rd
Halifax, NS
B3J 1E7

Member(s)-at-Large/Membre(s)
J.J.G. Perron - Office of the Chief Military Judge
Department of National Defence
101 Colonel By Drive
Ottawa, ON
K1A 0K2
Tel (613) 994-7461

Staff Liaison/Personne ressource
Edith S. Pérusse - Canadian Bar Association/L'Association du Barreau canadien
500-865 Carling Ave
Ottawa, ON
K1S 5S8
Tel (613) 237-2925 x179
Fax (613) 237-0185
edithp@cba.org

up arrowTOP

 

JUNE 2010

Editors:
Lcol Jean-Guy Perron, CD, Military Judge
Hon. William Goodridge
E-Publications Editor:
Conrad McCallum
Production:
Kathryn Robichaud
Staff Liaison:

Edith S. Pérusse

Contributors:
D. Kevin Carroll, Q.C. L.S.M.
Hon. Lois R. Hoegg
Hon. Robert J. Hogan
Nathalie Perron
Hon. Edmond P. Blanchard
LCol Jean-Guy Perron, CD
Hon. Michelle Fuerst
Hon. L.M. Olah
Hon. J. Gary Cohen

Published by the Canadian Bar Association's Canadian
Judges' Forum
.

Don't miss a single update from the Forum – add judgesforum@cba.org to your address book.

The views expressed in the articles contained herein are solely the views of the authors, and do not necessarily represent the views of the Canadian Bar Association.

THE CANADIAN BAR ASSOCIATION:

500-865 Carling Avenue
Ottawa, ON K1S 5S8

Tel. : 613-237-2925
Toll-free: 1-800-237-0185
Fax.: 613-237-0185

E-mail: info@cba.org

© 2010 Canadian Bar Association. All rights reserved.

  Copyright © The Canadian Bar Association Privacy Policy    Terms of Use & Disclaimer