Should there be a Public Inquiry of the Canadian Judicial Council?

Mr. Joe Average Taxpayer on his way to make a down payment for the cost of the Douglas Inquiry

Good Day Readers:

The Lawyers Weekly article has given raise to a number of issues. In no particular order:

(1) Former Independent Counsel Guy Pratte in correspondence posted on the Canadian Judicial Council's webpage was already raising questions about his role vis-a-vis the Inquiry Committee prior to his examination of witnesses. Had the situation not been clarified to his satisfaction should he have resigned then and there? Was what eventually happened completely predictable?

(2) Under examination of a key witness by Independent Counsel, if answers to important questions are continually vague - "I can't recall" or "I don't know" or "I can't remember" or "I have no recollection of that" or ..... what options are available to the Committee? Would the outcome have been different had it:

(a) Submitted a list of follow up questions for Mr. Pratte to ask?
(b) In the alternative, intervened to ask them directly?

(3) Prior to resigning, Guy Pratte filed an application with the Federal Court of Canada for a judicial review in which he asked Inquiry Counsel George Macintosh's cross examination of Thompson Dorfman Sweatman Senior Managing Partner Michael Sinclair and Jack King's testimony be struck from the record. Further, that Mr. Macintosh be barred from future questioning of witnesses. Key Issue. Will the new Independent Counsel pursue this application?

(4) Defence Counsel Sheila Block also has an application before the FCC for a judicial review requesting the Inquiry be quashed on the basis of a reasonable apprehension of bias. If the Federal Court decides to kick the can down the road, and assuming the new Independent Counsel does not re-introduce what amounts to a request to "expunge George Macintosh" will Ms Block then try?

(5) If the Defence Team and their client are not satisfied with the Inquiry's final decision will they challenge it in the Federal Court of Canada?

(6) Can a final decision of a CJC Public Inquiry be reviewed by The Supreme Court of Canada?

(7)  Given taxpayers will be required to pay the final cost of the Douglas Inquiry, should its budget be public knowledge beforehand? Is there a budget or is it an open ended blank cheque?

(8) Should an Inquiry with meaningful direct public participation be held to review and recommend more efficient methods of managing complaints against federally appointed judges?

Sincerely,
Clare L. Pieuk

Top lawyer resigns from Douglas case, questions swirl
By Christopher Guly
September 07 2012 issue

Ottawa lawyer Guy Pratte’s resignation on August 27 as independent counsel in the Canadian Judicial Council’s (CJC’s) inquiry into the conduct of Associate Chief Justice Lori Douglas could “significantly delay” an already unprecedented hearing, according to a lawyer familiar with public inquiries.

“I haven’t seen a situation where there’s a fight over evidence between counsel appointed by the council and panel members through their own counsel,” said Quebec City lawyer Simon Ruel, “and Pratte’s resignation just adds to this difficult situation.”

Ruel served as deputy chief counsel to former Supreme Court of Canada Justice Michel Bastarache’s 2011 inquiry into the appointment process of Quebec judges, and previously served as senior commission counsel to the public inquiry on sex abuse in Cornwall, Ont., and senior government counsel in the inquiry into the federal sponsorship scandal.

The CJC said little about Pratte’s departure beyond a terse two-paragraph statement it issued on August 27, which indicated that his successor would soon be appointed to ensure that the review of allegations against Justice Douglas of the Manitoba Court of Queen’s Bench (Family Division) can proceed “in a fair and expeditious manner, in keeping with the public interest.”

Justice Douglas, who has yet to testify, faces allegations — ​all of which she has denied — ​that include her failure to disclose in her 2004 application for the bench that graphic sexual photos of her had been posted on the internet.

Pratte, a litigation partner with Borden Ladner Gervais (BLG) in Ottawa whom the CJC appointed as independent counsel in September 2011, said he couldn’t talk about why he stepped down, and told The Lawyers Weekly it was up to the CJC to decide on whether or not to release his resignation letter.

Kirsten Crain, a partner in BLG’s Ottawa office who served with Pratte as co-counsel, is also no longer involved in the inquiry. “I go with him,” she said.

Norman Sabourin, the council’s executive director and senior general counsel, did not reply to an interview request, but told Postmedia the letter was a “private document.”

Earl Cherniak, who served as independent counsel during the CJC’s 2008-2009 inquiry into misconduct allegations against now-former Ontario Superior Court Justice Paul Cosgrove, said Pratte’s resignation was “certainly surprising,” but added that, “anybody who knows Guy would assume that he must have had a good reason and could not resign otherwise.”

Ruel, a civil litigator with Heenan Blaikie, believes Pratte’s resignation may have been prompted by “frustration” and the realization that his working relationship with the five-member inquiry committee was too difficult for him to continue.

“Mr. Pratte is a highly regarded counsel with a tremendous reputation in legal circles, and who has been touted to be a Supreme Court of Canada judge one day, so it’s not about his competence,” said Ruel, author of the 2010 book, The Law of Public Inquiries in Canada, which was cited by the Douglas inquiry committee.

“Mr. Pratte’s departure seems to be the result of a significant disagreement on the process and on how things should be done,” he explained, noting Pratte’s and the committee’s differing views over their respective roles in presenting the evidence against Justice Douglas.

“The Canadian Judicial Council needs to look at this case closely to examine its procedures,” said Ruel.

On Aug. 20, Pratte filed a judicial review application with the Federal Court seeking a declaration that only independent counsel — ​or lawyers for parties with standing — ​may present evidence at the committee’s hearing, which is tentatively scheduled to resume in the fall. He also asked the court to both “prohibit” the committee from instructing its counsel, George Macintosh, to question witnesses and depart from his advisory role, and order committee members to limit their own cross-examination of witnesses and not “enter the fray” to avoid “the risk of an appearance of bias.”

(Macintosh, who leads the litigation group at Farris Vaughan in Vancouver, declined to comment on Pratte’s resignation.)

The same day (August 20), Justice Douglas’s counsel filed a notice of application in Federal Court that seeks to set aside the CJC’s inquiry committee’s refusal to recuse itself on allegations of reasonable apprehension of bias and remit the complaints against the judge to the full 39-member judicial council.

Meanwhile, the committee — ​also on August 20 — ​issued its written reasons for dismissing the motion, in late July, by Justice Douglas’s lawyers (Sheila Block and Molly Reynolds of Torys in Toronto) to disqualify the five members on the basis that they appeared to have “prejudged” the case through questions Macintosh asked two witnesses — ​Winnipeg lawyer Jack King, Justice Douglas’s husband, and Michael Sinclair, former managing partner of her former law firm — ​about their evidence.

The inquiry committee ruled, in part, that it “has the right and duty to question witnesses directly or indirectly through its counsel should it determine that further questioning is appropriate or necessary for clarification, including amplification, of evidence.”

On a conciliatory note, the committee said in its written reasons that it “wishes to restate its support” for Pratte, “one of this country’s top counsel, [who] has performed in this difficult case in accordance with his reputation.” It added that it “wants to carry on its role with as much…co-operation as is possible with independent counsel.”

In light of Pratte’s resignation, that could now be interpreted as fair warning to his successor and possibly shed some light on what appears to have been a behind-the-scenes power struggle between the committee and independent counsel.

“It will be interesting to see whether or not the new independent counsel continues with the judicial review application that Guy started and that might give some clue as to what happened,” said Cherniak, a partner with Lerners in Toronto. “If counsel goes on with the judicial review, it tells you something. If that person abandons it, it tells you something else.”

Having already rejected the committee’s criticism that he didn’t present the “strongest case possible” during the Cosgrove inquiry as a mischaracterization of his role as independent counsel at the time, Cherniak worries that the latest setback with Pratte’s departure may not bode well for future judicial inquiries.

“It doesn’t seem like the system for regulating judges’ conduct is working very well,” he said, “and that’s very unfortunate.”