A slam dunk?

wpgcr (http://winnipeggazette.com/) has left a new comment on your post, "Did Ombudsman Manitoba appeal Justice Saull's ruling?"

I'm not a lawyer, but it irked me that that Saull's ruling and his comments appeared to me at least to violate/ignore at least one codified operating court principle (rule) established by Manitoba Courts - see http://web2.gov.mb.ca/laws/rules/qbr1e.php among others listed at http://www.manitobacourts.mb.ca/court_rules.html

This especially given the optics vis-a-vis political ties involved in Saull's appointment to the Bench, Toews involvment in the judicial system at both a Federal and Provincial level, as well as Tapper's involvement in the judicial system at a provincial level.

That isn't to suggest any illegality or impropriety took place, but simply that the matter required that it be deal with in an arm's length manner and that didn't happen.

Because of that, while and appeal of the decision of law would be welcome, it also requires a review of (for lack of a better term) the judicial playing field on which that decision was made.

I'm glad that Ms Scassa has made public comment on the subject because it indicates that such issues do not go unnoticed even if they ultimately may only end up being dealt with internally, and/or informally behind the walls of the judicial system.

Certainly I would like some form of public flogging for the trio if only for entertainment, but I would probably be satisfied with a simple public acknowledgment of the issues by either the government or judicial branch and assurances that it is either being reviewed or "handled" in some manner.

Dear Winnipeg Gazette:

Thank you very much for contacting CyberSmokeBlog.

Not to worry we're not a lawyer either, however, in matters such as this sometimes that can be an advantage because it's harder to be blinded by legalese.

This seemingly simple decision has a lot of moving parts and, we believe, potentially significant ramifications. To cite but one example, what if a similar or related situation arises in another jurisdiction? Case law being what it is now a politician can use Justice Saull's ruling as an authority.

The one issue that concerns us more than anything else is how such an important decision was over before anyone realized - a slam dunk one might say. Because of the inherent complexities we're in the midst of our research talking with officials from Ombudsman Manitoba, The Law Courts and the legal community seeking clarification of the situation. And yes, Dr. Scassa's comments/concerns are indeed very well-placed.

Was there an appeal?/Should there have been an appeal?

The starting point of necessity is an article by Winnipeg Free Press reporter Mia Rabson (Appeal sought of Toews getting name of file viewer - March 13, 2012) which stated:

Rarihokwats, who uses only one name and has acted as a consultant for Manitoba First Nations, said Saull's decision was wrong. Divorce files are public court records and as such, people should be able to view them without a public record of the viewing being made, Rarihokwats said."

The court's ruling sets a very dangerous precedent with wide application," he wrote in a letter to acting ombudsman Mel Holley on March 9.

Rarihokwats said he fears Saull's ruling will be used to allow people to find out who seeks other public information available, such as library books. He said by the same reasoning Saull used, the courts could compel people to register when they wish to attend a trial or court hearing in person.

He said he has no personal interest in the case other than as a citizen concerned about invasions of privacy.

As an aside, Winnipeg Member of Parliament Pat "Twitter" Martin has also publicly come out in support of the public's right to anonymously view court files.

By the way, the list of name(s) Mr. Toews's lawyer was given may have been incomplete. Members of the media, as well as, lawyers are not required to complete the simple application form (name, address, telephone number), show one piece of photo identification and pay the $5 fee prior to being given access to a file(s).

The other day we talked with a senior official with the Ombudsman's Office only to run into a stone wall. It cannot talk about a case that may be under investigation or the result leaving us but one alternative - visit The Law Courts to review files to see if there was an appeal which we will do. The response was a "tad" (And that's being very kind!) unusual to say the least. Who funds the Office? Probably taxpayers. Where's the accountability?

After finding out whether there was an appeal which we severely doubt otherwise the mainstream media would have been all over it like a cheap shirt, the next task will be to determine the legislation under which the Ombudsman operates. For example, is it empowered to challenge/appeal a Queen's Bench court order?

Please stay tuned we'll have more to say about that shortly.

Does the Saull decision potentially threaten the open court concept in Manitoba?

We say yes. One need not look any further than what's happening in Ontario bearing in mind what occurs there often shows up here six months to a year later.The Law Society of Upper Canada is vigorously opposing passage of proposed Bill 34 in its present form:

Bill 34 would compel everyone entering, or on court premises to identify themselves and answer questions - as well as submit to warrantless searches of their person - when requested to do so by court security. (Court ID proposal slammed - The Lawyers Weekly, Cristin Schmits April 20, 2012 Issue).

Has Justice Saull's ruling opened the door in the near future to court security being able to demand the name, address and telephone number of anyone entering a courtroom to attend a proceeding even thought they may only be an interested member of the public. We certainly hope not!

Sincerely,
Clare L. Pieuk