Wednesday, July 23, 2014

Ladies, why on earth would you want to become sleazy, greasy, smarmy, sneaky, creepy, self-serving, self-enriching, ethically challenged politicians?

Good Day Readers:

If you're going to run for political office best to open your closet to let all the skeletons out otherwise your opponents will. That's how politics is played.
Clare L. Pieuk
Crap, I'm ineligible for public office

Trish Kelly is young, female, openly sex positive. If she can't run, neither can I and so many others

By Jarrah Hodge
Monday, July 21, 2014
Writer Jarrah Hodge: They'd have too much on me.

Back in 2005 I ran in a provincial election. Since then I have occasionally been asked if I'm ever going to run again. Today I am announcing my intention not to run in a future election, because I have realized I may be ineligible for public office.

Here are some reasons why:
  • When I was in high school, I wrote and published erotic Law & Order: Special Victims Unit fanfiction online.
  • In my high school musical I played Rosie, a woman who, desperate to attract the attention of her fiancé, attempts to seduce an entire Shriners meeting.
  • I have over 14,600 tweets. There's gotta be something in there someone wouldn't like... maybe a positive review of a burlesque show or a criticism of Game of Thrones.
  • On my blog, I have written about many things, including vaginal mints, menstrual cups, tampons, sex ed, abortion and the HBO show Hung.
  • I'm pretty sure there's a video out there of me singing an innuendo-laden Britney Spears song at a karaoke night.
  • On Facebook, there are or have been pictures of me as follows:
2007: Me appearing to double-fist beers at a bowling night (in fact I am holding a beer for a friend)

2007: My friend at the same bowling night pretending bowling balls are giant boobs

2007: Me in front of a Pride float full of gyrating, nearly-naked men

2009: Me and my roommate dressed in fancy and debatably sexy outfits holding a fake party for our cats

2010: Me in an Improv Anywhere Freeze flashmob, pretending to hit another participant

2012: A cartoon version of me as Dr. Claw, the villain from Inspector Gadget

2013: Me doing "cat bearding"

"Wrecking Ball Rocco" rocks! Justice Mainville ..... "Doink!"

Federal Court of Appeal Justice Robert Mainville to ..... "Doink!" Quebec Court of Appeal 

Galati's challenge could rock appointment practices

Galati bid seeks to restrict Quebec candidates to current bar, quash Mainville promotion

By Cristin Schmitz
Friday, July 25 Issue
Universite de Montreal law professor Paul Daly sees the potential  for major ripple effects if Rocco Galati's challenge of Justice Robert Mainville's appointment to the Quebec Court of Appeal succeeds. (Wassim Njeim for The Lawyers Weekly)

Rocco Galati’s constitutional bid to quash the July 1 appointment of Federal Court of Appeal Justice Robert Mainville to the Quebec Court of Appeal could upset the whole federal judicial appointment apple cart if it succeeds, constitutional lawyers say.

The Toronto litigator and the Constitutional Rights Centre run by Paul Slansky have asked the Federal Court to declare that Federal Court of Appeal judges are ineligible for appointment to the Quebec Court of Appeal by virtue of s. 98 of the Constitution Act, 1867 (read together with s. 97) which stipulates that federally appointed Quebec judges “shall be selected from the Bar of that Province.”

Galati is using an argument parallel to that he used to persuade the Supreme Court to quash Federal Court of Appeal Justice Marc Nadon’s Supreme Court appointment last March.

He argues that since Justice Mainville isn’t currently a member of the Quebec bar, he can’t join the Quebec Court of Appeal. The Montreal aboriginal law expert spent 33 years at the Quebec bar before joining the Federal Court in 2009.

“I think Galati has a plausible claim — not maybe as strong as the one in the Nadon Reference — but certainly plausible,” said Université de Montréal law professor Paul Daly.

Galati’s attack is two-pronged: he seeks to declare invalid Justice Mainville’s Quebec Court of Appeal appointment based on s. 98 of the Constitution, and he wants the Federal Court to declare that Justice Mainville is ineligible to fill an upcoming Quebec vacancy on the Supreme Court of Canada in December.

If the court accepts that s. 98 refers only to current members of the bar, it could have major ripple effects on federal judicial appointments, Daly said.

Notably, judges of the Quebec provincial court — who historically are often “promoted” to their province’s trial and appellate superior courts — would likely become ineligible for those posts “even though they are very strong candidates for appointment,” Daly said. “I think it would be regrettable if they turned out to be collateral damage from this litigation.”

The fallout could extend further, contends a factum filed by the Canadian Association of Provincial Court Judges with the Supreme Court for the Nadon Reference last January.

On behalf of his clients, University of Ottawa civil law Dean Sébastien Grammond warned that if the courts were to accept the argument now being advanced in the Mainville case, “since Confederation, all appointments of superior court judges to courts of appeal would have been contrary to sections 97 and 98 of the Constitution Act, 1867.”

He noted that in 1867 and in 1875, the promotion of judges from one level of court to the other was well known. “It was certainly not the intention of the Fathers of Confederation to exclude sitting judges from the possibility of being promoted to a different court,” he said. “Thus when ss. 97 and 98 of theConstitution Act, 1867 require that judges ‘be selected from the Bar’ they do not set out a strict requirement of membership in the bar at the time of appointment, but rather require that the person appointed have been admitted to the bar some time before appointment to the bench. If it were otherwise, it would be constitutionally impermissible to appoint a superior court judge to the court of appeal, which is absurd.”

Grammond added: “Likewise, when s. 5 of the Supreme Court Act requires 10 years of bar membership, it means that a person appointed to the Supreme Court must have been called to the bar at least 10 years before being appointed. It does not require bar membership at the time of appointment.”

However, the Supreme Court ruled the opposite on the latter point in Reference re Supreme Court Act, ss. 5 and 6 [2014] S.C.J. No. 21 — the “Nadon Reference” — by interpreting ss. 5 and 6 of the Supreme Court Act as requiring that only current members of the Quebec bar or Quebec superior courts are eligible for a Quebec seat on the Supreme Court.

Galati argues in his June 15 notice of application that the Nadon Reference “is determinative of not just s. 6 of the Supreme Court Act, but also s. 98 of the Constitution Act, 1867 on the same issue.”

University of Ottawa law professor Carissima Mathen disagreed.

“I do not see an automatic mapping of the Nadon opinion here,” she said. “I think the interpretation of s. 98 of the Constitution Act, 1867 raises different issues than ss. 5 and 6 of the Supreme Court Act. The Supreme Court is a federal institution serving a bi-juridical nation, and created in the context of specific political historical realities. The confidence required of its Quebec judges seems distinctly different from the qualifications required for appointment to judicial office in the common law and civil law provinces. So…it seems to me that to the extent that past bar membership is OK for, say, Ontario, it probably is for Quebec too.”

However, Galati told The Lawyers Weekly “this issue was already resolved in the [Nadon] Reference. It’s the same wording in s. 98. Why this government cynically thinks it can simply again ignore the Constitution is beyond me.”

He said the upshot of s. 98 is that judges of the Federal Court of Appeal (and Federal Court and Tax Court) cannot be directly appointed to the superior courts of Quebec and would also be “hard-pressed” to be appointed to other provinces’ superior courts under s. 97 — which is similarly worded. If they wish to join those courts, “they can step down, write the bar exams and become members again,” Galati suggested.

Galati also does not accept that his s. 98 argument would bar elevations within the provincial superior courts. “There’s a difference between an appointment, and an elevation within the same court to the appellate level,” he said. “Your first appointment under s. 98 has to come from the bar. So if you were appointed to Quebec Superior Court from the Quebec bar, and then elevated to the [Quebec] Court of Appeal from the same court system, that’s fine. But you can’t have your first appointment straight to the Court of Appeal if you weren’t a member of the Quebec bar under s. 98. It’s clear wording.”

Whether Quebec provincial court judges are constitutionally eligible to be appointed to the Quebec superior courts is a more complex question, but arguably, “they can, because when they were appointed to the Quebec Court they had to be members of the bar so…if they’re elevated in what the Supreme Court of Canada calls our ‘unitary court system’ they are part of the same court system, under the Courts of Justice Act in Quebec,” Galati said.

In addition to his s. 98 challenge, Galati has accused the Harper government of appointing Justice Mainville to the Quebec Court of Appeal merely to make him eligible to replace Supreme Court Justice Louis LeBel of Quebec, who will retire November 30.

Daly said the nomination of Justice Mainville to the Supreme Court appears less plausible now given that his eligibility is unlikely to be determined before Justice LeBel retires, absent another expedited reference to the Supreme Court.

Mathen said she is “skeptical” about the s. 98 challenge to Justice Mainville’s Quebec Court of Appeal appointment, but “the rubber hits the road” if the prime minister appoints him to replace Justice LeBel.

“It seems to me that such an appointment could well be inconsistent with the spirit of the Nadon Reference and the constitutional status of the Supreme Court as regards Quebec,” she said.

“Given the circumstances, and particularly the possibility of a six-month ‘stop-over’ if Mainville replaces LeBel, I think there is potential for an argument based on the principle of judicial independence,” she added. “The Quebec Court of Appeal is owed respect by the executive branch. It seems clearly wrong to use it solely as a stopping point along the road to a goal completely disconnected from its needs and the executive function of appointment to it.”

Does Sam have a case of advanced Duffyism?

"Very well then. Are you sure your permanent residence is not a cabin on Prince Edward Island?"

Winnipeg mayor Sam Katz received tax credits after listing Arizona mansion as primary residence

By Katrina Clarke
Tuesday, July 22, 2014
A spokesman for the Maricopa Assessor's Office said Winnipeg mayor Sam Katz's Arizona property was reclassified after a state law dealing with rentals properties and tax credits changed in 2013. (Boris Minkevich/Winnipeg Free Press)

It’s hard to fault the wealthy mayor of Winnipeg for wanting to escape Canada’s bitterly cold winters and head south for rest and relaxation. But Sam Katz’s $1-million Scottsdale, Az., mansion is bringing him more grief than peace.

This week it emerged Mr. Katz’s Arizona home is listed as his primary residence, entitling him to over US$1,000 in tax credits, while his Winnipeg home is also listed as a primary residence.

According to Arizona’s Maricopa County Assessor’s Office, homeowners can declare only one property as the primary residence. The owners must live in the home for nine months of the year, though there are exceptions.

Mr. Katz’s spokeswoman said the title company responsible for managing transfer of ownership made the error.

“[Mr. Katz] was not aware of the error in status,” Carmen Barnett wrote in an email to the National Post, adding that he “appropriately declared Canadian status with the titles office.”

‘He has already spoken with the assessor’s office and corrected the information provided to them by the title company’

Ms. Barnett said Mr. Katz’s primary address of residency is in Winnipeg. She said he is not planning to move to the United States, and he is trying to resolve the mistake.

“He has already spoken with the assessor’s office and corrected the information provided to them by the title company,” she said.

This isn’t the first time the 14,500-square-foot Arizona property has caused the mayor grief. He purchased the home from the sister-in-law of Sandy Shindleman, CEO of real-estate firm Shindico, in 2012. Shindico has made successful bids on several development contracts with the City of Winnipeg and Mr. Shindleman owns shares in the Winnipeg Goldeyes baseball team, owned by Mr. Katz.

The purchase raised eyebrows but Mr. Katz said his relationship with Mr. Shindleman did not constitute a conflict of interest.


Mr. Katz, 62, a well-known businessman and a former entertainment promoter — he brought the Rolling Stones and Paul McCartney to Winnipeg — has served as mayor since 2004, easily winning re-election twice. In June, he announced he would not be seeking re-election this fall.

According to a statement of assets and interests, Mr. Katz currently lives in Winnipeg’s Tuxedo area, which Tourism Winnipeg describes as an upscale “oh la la” area with “sprawling mansions” and “lush greenery.”

Ms. Barnett said the mayor was not available for comment Tuesday. He was spending time with his family “at the lake.”

According to property information from the Maricopa County Assessor’s Office, Mr. Katz’s Arizona home was listed as a primary residence since 2013.

Robert Pizorno, spokesman for the Maricopa County Assessor’s Office, said Mr. Katz’s property was reclassified after a state law dealing with rentals properties and tax credits changed in 2013. Mr. Katz’s home was classified as owner occupied/primary residence because of information in the deed, he said.

“We don’t believe there was an error by any party, however, the owner has the legal obligation to correct the error once they receive notice,” he said.

‘In the two Taxation notices, the property was clearly shown as receiving a tax credit of $600 for each of the years in question’

The office sent four notices to Mr. Katz, including two indicating he was receiving US$600 primary residence tax credits, he said.

“In the two Notices of Valuation, the property was clearly identified as a Primary Residence. In the two Taxation notices, the property was clearly shown as receiving a tax credit of $600 for each of the years in question, for being a primary residence,” said Mr. Pizorno. “Each of these notices gave the owner the opportunity to correct the classification of the property.”

He said his office has reached out to Mr. Katz’s office to “expedite correcting this problem.”

Arnold Porter, an Arizona-based realtor and co-owner of Arizona for Canadians realty service, said he’s never heard of a title company mistakenly declaring a home a primary residency.

“It shouldn’t be something that the title company decides on their own,” Mr. Porter said.

Home ownership controversies have plagued other wealthy mayors in the past.“The buyer has to declare how they want to hold title. So the type of property that is, what their residency is [and] is this an investment property or personal use property.”

In 2010 The New York Times ran an investigative piece on then-New York mayor Michael Bloomberg and the time he spent at his luxurious Bermuda home while mayor. While New York mayors are known to spend seven days a week on the job, Mr. Bloomberg, a billionaire who owns at least 10 homes, travelled to the island at least twice a month, according to the article.

Tuesday, July 22, 2014

"Shelly Glover meet @gccaedits ..... @gccaedits meet Shelly Glover!"

Good Day Readers:

It's hilarious how federal politicians (and others) are scrambling these days to self-sanitize but are getting caught. You'd have thought Ms Glover, her staff or whomever would have known better - apparently not.

Wonder if she, her staff or whomever will have the presence of mind not to try to erase that Tupperware, love-in fundraiser or whatever it was held at the home of a member of her constituency riding last January which Liberal Ralph Goodale asked the federal Ethics Commission to investigate?

After contacting Ethics Commissioner Mary Dawson, CyberSmokeBlog received an acknowledgement reply saying it would have a a more detailed response in about three days. It's now starting to feel more like three weeks. Will "The Shelly" come clean in her next, now famous honkin, Mother of all Pablum-laced, puffery-laden taxpayer mail-outs? Stay tuned.

Clare L. Pieuk
Twitter account tracks anonymous Wiki edits from House of Commons addresses

House of Commons computers are being used to anonymously re-write Wikipedia articles, and a new Twitter account is exposing them.

Alex Boutilier/Staff Reporter
Wednesday, July 16, 2014
Political biographies on Wikipedia have been altered by House of Commons-connected IPs including the deletion of aspects of the Senate spending scandal from Pamela Wallin's biography. (Adrian Wyld/The Canadian Press)

OTTAWA—What do Pamela Wallin, a defunct CFL team, and the Communications Security Establishment of Canada have in common?
All have had their Wikipedia entries anonymously altered by people using government-associated Internet protocol addresses. And a new Twitter account is tracking those changes.
Government of Canada Edits (@gccaedits) is a Twitter bot that automatically tweets whenever a Wikipedia entry is edited anonymously from a House of Commons-associated IP address.
In just six days, the account has publicized changes to numerous entries, including biographical notes for MPs, the list of Canadian Forces special operations units, the page on the defunct Ottawa Renegades CFL team, and — fittingly enough — the entry for the Canadian Museum of History.
The site was inspired by similar initiatives in Britain and the United States, where Twitter bots have found anonymous changes to topics from the assassination of John F. Kennedy to Choco Taco ice cream snacks. The U.S. version, @congressedits, made the source code for the program public, spawning new accounts in Australia, Germany, South Africa, Ireland and other countries. Other accounts track changes from police and security agencies, including the RCMP.
Nick Ruest, a York University digital assets librarian, tailored the program to pick up changes from the House of Commons, the Department of National Defence, and Industry Canada.
“It’s a way to empower the citizenry to see what’s going on,” Ruest said on Thursday.
“There’s a lot of things that are good that can happen (with the edits), but there are a lot of things that are bad. It’s just transparency, and that’s the key thing for me.”
Ruest’s program monitors every time an edit is made to a Wikipedia article, filtering out the edits made by people who have logged in to the online encyclopedia. It then takes those edits and checks them against a list of IP addresses associated with the Canadian government. The program then automatically tweets the changes to almost 2,000 people.
Now that more people know about @gccaedits, Ruest says he hopes to add more government IP addresses to the code to pick up more changes.
Most of what the bot has captured have been minor changes to wording, like changing Peterborough MP Dean Del Mastro’s former occupation from “used car salesman” to “auto salesman.”
Perhaps prompted by the publicity of @gccaedits, that changed sparked a debate on the online encyclopedia around Del Mastro’s recent election overspending trial.
But subsequent investigation from the online news outlet VICE found that other political biographies had been altered by House of Commons-connected IPs — including the deletion of aspects of the Senate spending scandal from Wallin’s biography, and changes to Conservative deputy Senate leader Yonah Martin’s role in the suspension of Wallin, Mike Duffy and Patrick Brazeau.
Heritage Minister Shelly Glover’s office confirmed to VICE that they were behind the anonymous removal of parts of her bio concerning overspending during the 2011 election. Glover reached a compliance agreement with Elections Canada in November concerning the $2,267 in overspending, which was determined to be a mistake. (emphasis by CyberSmokeBlog)
But even the more banal changes inform Canadians of how history is written on the Internet, and by whom. Ruest anticipates that more and more free tools will be developed to help increase that kind of awareness.
“This goes along with open government and open data initiatives,” Ruest said. “All this data is out there and available, and it’s (about) grabbing it and doing something with it.”
With files from The Canadian Press

"Auntie Shelly" b-u-s-t-e-d!

Good Day Readers:

Don't you love the way federal politicians are quietly hurrying to sanitize themselves before the next election? Wonder if Ms Glover will include this little tidbit in her next honkin, mother of all taxpayer mail-outs? Nice try "The Shelly." B-u-s-t-e-d!

Whoever did this wasn't very bright. Didn't another federal politician within the last few days try this cheesy little trick only to get caught the same way?

What will Shelly Anne Glover do with her Manitoba Court of Queen's Bench divorce file?

Clare L. Pieuk
Glover staffers remove ugly details from Wikipedia

Elections Canada dispute cut from site

By Oliver Sachgau
Turesdy, July 22, 2014
Shelly Glover (Sean Kilpatrick/The Canadian Press)

 Staff of Canadian Heritage Minister Shelly Glover anonymously edited her Wikipedia page to remove controversial details about her run-ins with Elections Canada.

The information disappeared last week and involved a 2013 request by Elections Canada that the Saint Boniface Conservative MP be suspended because she filed inaccurate campaign spending reports. The missing sentences were quickly restored by Wikipedia editors.

Shelly Glover (Sean Kilpatrick/The Canadian Press)

Glover's office confirmed in a statement the attempt to change the Wikipedia article was made by a political staffer in her office.

"(The staff member) was made aware of inaccurate and improperly sourced information on Wikipedia, and removed it. All relevant information about the issue in question is available on the Elections Canada website," said the statement from Glover's office.

Her staff would not agree to make Glover available for an interview.

'This is not her own website. This is a public encyclopedia ... People go to it for information'

The edits appear to be part of a co-ordinated attempt to sanitize the Wikipedia entries of several government MPs. A popular Twitter account, @gccaedits, has been set up to track the changes, and spotted Glover's.

In most cases, the edits are reversed, sometimes within seconds, by some of the more than 130,000 active editors on the website. In the case of Glover's page, the change was reversed and the information restored within minutes.

The attempted edit was done by an IP address - a unique address that identifies a computer connected to the Internet - registered to the House of Commons.

The Wikipedia website shows the same IP address has edited numerous other Wikipedia pages, including those of sitting MPs. In some cases, sections that detail a members' previous controversies are completely deleted. In other cases, sections are added advertising an MP's accomplishments, in words that could be found in a promotional leaflet.

In Glover's case, the deleted section stated that the Speaker of the House of Commons received a request from Elections Canada in June 2013 for Glover's suspension. Every statement in the section was cited and supported, and the events it mentioned are a matter of public record. The 2013 complaint was eventually resolved without Glover being suspended.

The IP address in this case can be used by more than one person, the Wikipedia page for the address stated, as it refreshes with every reboot. The actual person doing the editing could be anyone on the Canadian parliamentary Internet system, the page stated. They could be in Ottawa, or in a federal MP's constituency office.

Changes to Wikipedia matter, because it is the only place many people go to for information, said University of Ottawa law Professor Penny Collenette.

The changes were also not made on a forum that Glover's office exclusively owns, Collenette said, which raises questions whether the changes were justified.

"To remove that, if it was her own website, sure. Why would she draw attention to that? But this is not her own website. This is a public encyclopedia ... people go to it for information," said Collenette.

With campaigning for the 2015 federal election slowly ramping up, Collenette said Wikipedia pages will become even more important, and changes to them equally powerful.

"MPs turn into candidates during an election, and (they could) decide they don't like what's there, so they'll edit it, or someone will do it for them," she said.

Though Collenette said she wasn't sure in this case whether the changes were justified, she does not agree with such edits being anonymous.

Winnipeg Centre NDP MP Pat Martin disapproved of Glover's office making the changes.

"Attempting to sanitize your own Wikipedia page by removing facts that are potentially embarrassing is not only cheesy, it's revisionist and dishonest ... it certainly shouldn't be done on the taxpayer's dime." Martin said by email.

The address that edited Glover's page has also edited the page for Conservative MP Colin Carrie in 2009, removing a section about a defamation charge against Carrie of which he was eventually acquitted. In March 2014, it edited the page of Conservative MP David Kesteren (Chatham-Kent-Essex), adding in statements such as, "He is very proud of the riding and works hard every day to keep Canada a strong and prosperous nation, not only for our generation but for those generations to come."

Republished from the Winnipeg Free Press print edition July 22, 2014 B2

"Forget about the quails you should shoot him in the dick!" ..... "I can shoot him in his scotus!"

Good Day Readers:

You have love how Supreme Court Justice Ruth Bader Ginsberg is portrayed. Ever wonder had this been produced in Canada which male colleagues Beverley McLachlin, Rosalie Siberman Abella or Madam Justice Andromache Karakatsanis would like to shoot in the dick?

Clare L. Pieuk

Monday, July 21, 2014

The Ontario Judicial Council a modern day Star Chamber!

"Judges protecting judges - where there's no publicity there's no justice"

Good Day Readers:

What's most troubling, to say the least, is the secrecy shrouding this case like the Star Chamber of 15th century England. Public money is used to fund and support the Ontario Judicial Council yet taxpayers are the last to find out if at all.

The other troublesome aspect is how the OJC seemingly plays fast and lose with Constitutional/Charter law. What is needed is a group of constitutional lawyers to challenge certain of The Council's policies in court. They'd probably win.

Clare L. Pieuk
Toronto Judge upbraided for errors, still on the job

A complaint about a repeatedly chastised Toronto judge sparked a lengthy investigation into his conduct before the matter was dealt with in secret and the case closed.

By Rachel Mendleson/News Reporter
Saturday, July 19, 2014
Ontario Court Justice John Richie pictured outside Old City Hall last summer. (Vince Talotta/Toronto Star)

A complaint about a repeatedly chastised Toronto judge sparked a lengthy investigation into his conduct before the matter was dealt with in secret and the case closed.
The name of the judge involved might have been shielded from the public forever had it not been for a manila envelope delivered to the Star by an unknown source. The documents it contains provide a rare glimpse into how a judge who has been upbraided for legal errors, the appearance of bias and delivering “boilerplate” decisions avoided a formal disciplinary hearing and is still hearing cases at Old City Hall.
And Ontario law, at least according to the Ontario Judicial Council, prohibits us from sharing any of it with you.
What we can reveal was gleaned from court records, media reports, interviews with lawyers and a conversation with Justice John Ritchie, who confirmed that he was the subject of a complaint by the Criminal Lawyers’ Association two years ago.
Upon review, the Judicial Council, which probes complaints about Ontario’s 330 provincially appointed judges, did not question the substance of his decisions, Ritchie said. But, on the council’s recommendation, he took a refresher course on how to write good judgments.
“It was a good course,” he told the Star. “I liked it.”
Despite Ritchie’s candour, we are very limited in what we can report because the Judicial Council has made a general order sealing “any information or documents” relating to mediations that don’t result in a public hearing.
This order applies “whether the information or documents are in the possession of the Judicial Council, the Attorney General or any other person,” according to council registrar Marilyn King.
The council has only concluded six public hearings in the past decade, King said. It publishes summaries of complaints that don’t result in a public hearing in a report to the Attorney General each year but does not identify the judges involved or the complainant. (The council received 40 new complaints, on average, per year from 2007 to 2012.)
Toronto constitutional lawyer Rocco Galati said the blanket order shrouding the vast majority of investigations into complaints against judges is “an abuse and excess of power” and is an example of “judges protecting judges.”
Galati, who recently challenged several judicial appointments, said allowing secrecy in the courts carries serious consequences.
“In the darkness of secrecy, sinister interest and evil in every shape have full swing,” he said, quoting 18th-century British jurist and philosopher Jeremy Bentham. “Where there is no publicity there is no justice.”
Several legal experts said the confidentiality provision is so broad and sweeping that it could violate Canada’s Charter of Rights and Freedoms.
“The (charter) says we have freedom of expression, including freedom of the media,” said Ian Greene, an expert in judicial administration at York University. “Democracy is always a work in progress. If there’s unnecessary secrecy, that can provide a cover for unacceptable things to happen.”
Greene said this case “certainly shows” that the law “needs to be revisited.”
Toronto defence lawyer Andras Schreck, too, said the confidentiality permitted under the Ontario Courts of Justice Act could be “vulnerable to an attack on its constitutional validity.”
“On its face, it prevents the media from publishing proceedings respecting judicial conduct, which, although it may not result in a hearing, still reflect that there was a concern and steps were taken to address the concern,” Schreck said.
The provision is intended to enhance confidence in the courts by ensuring that the reputations of judges are not eroded by making public baseless and specious complaints, he said.
However, in cases in which a complaint results in remedial action, Schreck said, proceedings should be disclosed.
“I think the public would have probably more confidence in the administration of justice if it knew that serious complaints were taken seriously and that steps were taken to address the complaints,” he said.
Schreck, former vice-president of the Criminal Lawyers’ Association (CLA), stressed that his comments do not relate to any specific case. He would not comment on — or confirm the existence of — a complaint by his organization against Ritchie.
Toronto defence lawyer Anthony Moustacalis, who is president of the CLA, also declined to comment on the case, citing the order imposed by the Judicial Council.
“You and the Toronto Star are not allowed to have that material or to distribute or publicize it,” he said in an email. “I would therefore ask that you comply with the order and return the material to the judicial council and not publicize it.”
Ritchie, who was appointed by Mike Harris’s tough-on-crime government in 1999, earned $271,420.72 last year, according to public sector disclosure records. Over the years he has been repeatedly taken to task by Superior Court judges, whose sharp language has been widely quoted in the media.
In 2004, an appeal court reversed a drunk-driving conviction because the reasons Ritchie gave, according to Superior Court Justice Anne Molloy, were “so deficient as to amount to no reasons at all.”
As the Star reported at the time, Molloy reviewed another four of Ritchie’s cases and found he used included the same generic “boilerplate” reason for conviction: “I had ample opportunity to observe the demeanour of the witnesses and consider the inconsistencies and conflicts in their evidence,” he wrote.
In 2011, Ritchie was rebuked for his treatment of the defendant in rejecting an application under the Charter of Rights and Freedoms in another drunk-driving case. As the Law Times reported, Superior Court Justice Ian Nordheimer said Ritchie’s actions would leave an observer “with the distinct impression that that trial judge had predetermined the result of the … application, if not the likely outcome of the proceeding as a whole.”
Nordheimer overturned Ritchie’s ruling on the application and ordered that the case be heard by another judge.
The following year, the Globe and Mail reported that Ritchie had been admonished yet again by a Superior Court judge for convicting a mentally ill man who did not appear at trial, despite the fact that even the Crown had pointed out the man may have gone to the wrong courthouse.
As officers of the court, lawyers rarely speak out against judges. But criminal lawyers have, in media interviews, repeatedly stated their concerns about Ritchie’s decisions.
In 2012, Toronto defence lawyer Edward Royle said that he had put the word out that he would represent “indigent defendants” seeking to appeal a conviction by Ritchie on a pro bono basis, according to the Globe report.
Criminal lawyer James Lockyer told the Law Times in 2011 that Ritchie has “a reputation among the defence bar and beyond for being a judge you’d like to avoid if you can.”
Several criminal defence lawyers who spoke to the Star on condition of anonymity said that he is the draw they dread most.
“I personally have found Justice Ritchie to be a true gentleman and even a compassionate sentencer,” Toronto defence lawyer Reid Rusonik said in an email this week, “but by absolutely all accounts, he seems to struggle mightily with the application of the essential criminal law concept of proof beyond a reasonable doubt.”
Ritchie denied that the repeated chidings represent a concerning pattern.
“I’m a good judge,” he said. “When I make a decision, some people are going to agree with it and some people aren’t going to agree with it.”
He said he has applied the lessons from Superior Court judges.
“When we are appealed, and there are decisions that give us guidance and help, obviously we pay attention to them,” he said. “Of course I take it to heart, and of course I do something about it, as do all judges.”
Asked about the perception among defence lawyers that he has a tendency to convict, Ritchie said, “You’ll have to talk to them about that.”
“Some defence lawyers want to come in front of me, and some don’t. That applies to every judge,” he said. “I only convict somebody when the Crown proves the case beyond a reasonable doubt.”
Ritchie said the documents that detail the complaint against him were marked “private and confidential.” He said whoever shared them with the Star acted “contrary to the wishes of the Ontario Judicial Council and their legal opinion.”
The Judicial Council declined to comment on the case.
“It is the policy of the (council) … that it will not confirm or deny that a particular complaint has been made to it, unless the council has ordered a public hearing,” King, the registrar, said in an email.
The Ontario government created the council in 1995 to investigate complaints by members of the public against provincially appointed judges.
The council follows standards developed by the Chief Justice of the Court of Ontario, and is made up of six judges (including the chief justice), the treasurer of the Law Society of Upper Canada, another lawyer and four community members who are neither judges nor lawyers.
Complaints are investigated by a judge and a community member and then reviewed by a panel made up of two other judges, a lawyer and a different community member. The panel then decides whether a public hearing is warranted, King said.
Chief Justice Annemarie Bonkalo declined a request for an interview regarding Ritchie.
King told the Star that complaints that don’t result in a public hearing are confidential and directed the Star to the confidentiality provisions in the legislation, which stipulate that the council “may order” that information and documents relating to these proceedings remain secret.
The Star asked whether such an order had been made and requested a copy of the order. She replied that there is “a general order to reflect the legislative provisions and framework that governs the Council, not an order specific to a case,” which “reflects the practice of the Judicial Council since its inception.”
She did not share a copy of the order. Instead, she provided what she described as the “wording of the order.” It stipulates that, subject to an order of council, the materials “are confidential and shall not be disclosed or made public.”
“The provisions of the Courts of Justice Act recognize the need to balance constitutionally protected judicial independence with judicial accountability for conduct,” she said. “If the press believes that their Charter rights justify disclosure of the disposition of a complaint that would otherwise be confidential under the law … that would permit them to apply for an order from the Judicial Council of disclosure of that information.”
The Star intends to submit an application to have the materials unsealed.
Star editor Michael Cooke said, “Our judges, above all, need to be held accountable.”
“How can the public have confidence in our system of justice if the process by which judges are judged is secret?” he said.

Saturday, July 19, 2014

To bribe or not to bribe? To sue or not to sue? Those are the questions .....

Good Day Readers:

You've got to wonder if the Harper government will move up the date of the next election: the Mike Duffy trial; "Hurrican Pam"; the Mac Harb and Patrick Brazeau trials and now a possible prosecution of Nigel Wright.
 CyberSmokeBlog's Chief Political Analyst advises, "There's a huge .... storm hurricane coming at the Conservatives!"

Thank you Mr. Lahey for your insightful analysis and weather report.

Clare L. Pieuk
Duff Conacher

Democracy group wants to lay private charges against Wright

By Stephen Maher
Monday, April 21, 2014

A watchdog group is considering laying a private prosecution against Nigel Wright for his secret $90,000 payment to Senator Mike Duffy.

Democracy Watch, a non-partisan advocacy group that pushes for greater accountability, says it will lay charges against Wright unless the RCMP and prosecutors do a better job of explaining why they have decided not to charge the Prime Minister’s former Chief of Staff.

“We don’t even know who the prosecutors that were involved are, the RCMP officials involved in the decision, let alone the reasons,” said Duff Conacher, founder of Democracy Watch.

Last Tuesday, the RCMP announced that “upon completion of the investigation, we have concluded that the evidence gathered does not support criminal charges against Mr. Wright.”

Conacher says the evidence presented in court documents by the RCMP makes that hard to understand.

“Given the clear evidence that Duffy was required to do specific things in return for the payment from Nigel Wright, and given that the laws have never or very rarely been ruled on by the courts, the RCMP or prosecutors must provide a detailed explanation or they will face ongoing questions about what they are covering up and whether they have properly enforced the law in the public interest,” he said.

In documents filed in order to force the production of documents, RCMP investigator Corporal Greg Horton alleged that Wright violated section 119 of the Criminal Code, which forbids anyone from “corruptly” giving or offering money to a parliamentarian “in respect of anything done or omitted or to be done or omitted by that person in their official capacity.”

Former Parliamentary Law Clerk Rob Walsh has said that since Wright was not seeking private benefit — like a federal contract or grant — the payment likely doesn’t qualify as “corrupt.”

Conacher, who is a faculty member at the University of Toronto Law School, disagrees with Walsh’s interpretation of “corrupt,” and says the law was designed to prevent even the offer of a payment.

“If you just offer to pay them, then you have violated 119, and thank God it’s written that way,” Conacher said. “Otherwise attempted bribery would be legal. And they could legally take the money and not do the action.”

Conacher has lined up a criminal lawyer to lay an information against Wright with a Justice of the Peace, using evidence from court documents filed by the RCMP. Theoretically, a Justice of the Peace could allow the prosecution to proceed, but in practice, the Provincial Attorney General’s Office has the right to block private prosecutions.

Conacher says he wants the opportunity to ask the RCMP and prosecutors to explain their decisions.

“Hopefully the Justice of the Peace will require them to provide an explanation,” he said. “That’s what we’re looking for.”

Conacher does not trust the independence of the RCMP, and says he believes the decision not to lay charges is a “coverup.”

The RCMP, which is expected to lay charges against Mike Duffy in the weeks ahead, said in an email Tuesday that it can’t explain its decision not to charge Wright.

“We are not in a position to comment on the matter,” said Corporal. Lucy Shorey. “Doing so may jeopardize our ongoing investigation. We can, however, confirm that many witnesses were interviewed and facts were thoroughly examined. Upon completion of the investigation, the evidence gathered did not support the laying of criminal charges against Mr. Wright.”

Wright’s lawyer, Peter Mantas, declined to comment on Tuesday, reiterating a statement from Wright last week, in which he stated his “intention was to secure the repayment of taxpayer funds,” and that he always believed his actions were lawful.

Duffy has also said that he believes his actions were legal, and blamed the Prime Minister’s Office for forcing him to pay back expense payments.