Wednesday, June 06, 2012

Why the Douglas Inquiry requires citizen oversight!

Good Day Readers:

At the initial pre-Inquiry hearing of the Douglas Inquiry held May 19, 2012 in Winnipeg, we were able to successfully argue that CyberSmokeBlog should be allowed to re-submit its April 12, 2012 application for intervener standing because all documentation required to prepare a full, complete and thorough written request had not yet been tendered.

In a May 9, 2012 letter from Counsel for Associate Chief Justice Douglas, Sheila Block and Molly Reynolds (Torys LLP, Toronto) to Inquiry Counsel George K. Macintosh, Q.C. regarding our April 12, 2012 application stated in part (page 1 paragraph 2):

"..... a request for intervenor status is premature as the scope of any hearing in not known ....."

The documentation in question is the Inquiry's Terms of Reference also referred to as The Notice of Allegations. From the May 19 meeting this was to be available May 25. That date was subsequently moved forward to May 29. At time of writing it is still unavailable.  

Mr. Guy J. Pratte Independent Counsel to the Douglas Inquiry

From Mr. Pratte's letter to Mr. Macintosh regarding our initial application (also dated May 9th of this year), in the context of The Lawyers Weekly article reproduced below it's interesting to note his comments at page 5:

"..... Mr. Pieuk does not allege a substantial and direct interest in this investigation. There is no suggestion that he may be adversely affected by the outcome of the investigation. He does not allege that he beings any "Clearly ascertainable interests or perspectives" essential to the Committee's mandate. There is nothing to distinguish his request from similar requests that might be made by any other media organization. Further, independent Counsel is mandated to perform his duties impartially and in accordance with the public interest: there is no need or justification for Mr. Pieuk to play a similar role ....."

We have emphasized the last sentence for your edification.

We rest our case ..... for now.

Clare L. Pieuk

Counsel rebut CJC criticisms
Disagreement over role of independent counsel in past probe of judges

By Cristin Schmitz
June 8, 2012 Issue
Two prominent Toronto litigators have angrily rejected criticism that, in their former roles as independent counsel to the Canadian Judicial Council, they might not have advocated forcefully enough for the removal of two federal judges accused of abusing their powers.

A CJC inquiry committee looking into sex-related misconduct allegations against Manitoba Queen’s Bench Associate Chief Justice Lori Douglas recently handed down a pre-hearing ruling outlining principles to guide independent counsel Guy Pratte in discharging his duties.

In doing so, the Douglas inquiry committee alluded to the work by other senior lawyers retained by the CJC several years ago in misconduct inquiries against two Ontario judges. The panel suggested that independent counsel in those hearings might not have fully and forcefully presented the arguments for removing the judges because they “may not have fully appreciated” that they were supposed to present the “strongest case possible” against the judges based on the evidence.

Those observations were not appreciated by the counsel involved — especially since none of the Douglas inquiry members was present at the earlier inquiries.

“I must say, I’m not amused — I completely reject the criticisms of independent counsel” in the ruling, Earl Cherniak of Toronto’s Lerners told The Lawyers Weekly.

Cherniak presented the misconduct allegations and evidence to a CJC inquiry that culminated in the resignation of Superior Court Justice Paul Cosgrove in 2009 for his conduct during a high-profile and grisly murder trial.

Douglas Hunt, the independent counsel at the earlier inquiry into the conduct of Superior Court Justice Ted Matlow, also said the Douglas inquiry was “quite wrong” to suggest that he might have failed to fully present the case against the judge.

He pointed out the Matlow inquiry itself “certainly didn’t appear to have any concern that the case for removal had not been fully presented, so I don’t know what [the Douglas inquiry ruling] is talking about,” Hunt said.

(The Matlow inquiry panel recommended that the judge be kicked off the bench for crusading against a real estate development near his home, but the CJC decided in 2008 that a stiff public reprimand would suffice.)

The Douglas inquiry said in its ruling that concern within the CJC that independent counsel might not have put forward the strongest possible submissions for the removal of Cosgrove and Justice Matlow sparked changes in 2010 to its policy on the role of independent counsel.

“There was a concern that independent counsel may not have fully appreciated that their role was to act as an advocate to present the case against the judge,” explained the Douglas inquiry, chaired by Alberta Chief Justice Catherine Fraser.

“As a result,” they said, “the judges who were the subject of these inquiries had strong representation [from the lawyers retained to defend them] but the case for removal may not have been fully presented.”

Cherniak said he was “surprised” by that suggestion. “It’s contrary to my view of what the duty of independent counsel is and…it completely mischaracterized what actually happened at the Cosgrove inquiry.”

He stressed that, in his view, independent counsel has “only the public interest as his or her duty” and “is in no sense a prosecutor or advocate whose brief is only to present a case against the judge.”

The CJC’s policy at the time Cherniak and Hunt performed their roles mandated that independent counsel should not act as prosecutors — a stipulation that the CJC dropped in 2010 out of concern that “it might have inhibited independent counsel from playing a stronger role,” the Douglas inquiry said.

Its remarks alluding to Cherniak (neither he nor Hunt were named in the ruling) are “misplaced and unfair,” Chris Paliare of Toronto’s Paliare Roland said.

“It’s unquestionable that Earl Cherniak knew, understood, and appreciated the role of independent counsel — he is one of Canada’s outstanding litigators,” stressed Paliare, who represented Cosgrove during the CJC’s discipline proceedings. “He read what the role was. He spoke to others who had engaged in that role. He performed as one would expect of independent counsel.”

However what the role of independent counsel is — and should be — has prompted considerable argument over the years.

The CJC’s bylaws state that independent counsel “shall present the case to the Inquiry Committee” impartially, “in accordance with the public interest.”

According to the Douglas inquiry, the CJC’s amended 2010 policy on independent counsel requires the lawyer to “forcefully” present “in a fair and impartial manner the strongest case possible in support of the allegations against the judge based on the gathering, marshalling and presentation of evidence and the related submissions.”

Hunt said the CJC was “wise” in 2010 to drop its direction that independent counsel may not act as a prosecutor.

“I think it makes it clearer that the independent counsel is acting in a truly independent way and can present the case the way it would normally be presented in any court, without the restriction of…the policy suggesting that there are certain ways that you can’t present it,” Hunt observed.

The Douglas inquiry hearing is scheduled to begin June 25.


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