Monday, September 17, 2012

Why did "The Cat" scat?

Good Day Readers:

For Douglas Inquiry aficionados, Mr. Guy "The Cat" Pratte's resignation did not come as a total surprise. Earlier he'd alluded to the possibility after Inquiry Counsel George "The New Rocky" Macintosh had completed his cross-examination of Thompson Dorfman Sweatman Senior Managing Partner Michael Sinclair.

Guy Pratte is no stranger to public inquiries having already appeared as Counsel before several but the one which seemed to rankle him the most was that of his father Yves Pratte who as Air Canada's Chief Executive Officer was compelled to testify and eventually forced to resign.

The senior Pratte was subsequently appointed to the Supreme Court of Canada by then Prime Minister Pierre Trudeau. A well researched and documented account of "The Cat's" experience with inquiries can be found in an excellent article by Richard Cleroux  for The Canadian Lawyer magazine (Pratte-a-porter July 2008).

Fast forward to last week at the University of Manitoba Law Faculty's forum on the Douglas Inquiry at which time Co-Chair Professor Karen Busby made a passing reference to the possibility there could be a court challenge of the Canadian Judicial Council's decision not to publish Mr. Pratte's resignation letter. It seemed a tad unusual given the Council's propensity so far for publishing Inquiry related evidence to its website.

At the time we wondered who might challenge the CJC's ruling but reasoned it could be just about any public interest group and their uncle. Well, we may now have the answer. It's Rocco formerly "Rocky" Galati.
"The Predictor!"

Mr. Galati lost his title to George Macintosh who scored first round knockouts of the two witnesses he cross-examined thereby morphing into "The Predictor" for successfully predicting "The New Rocky's" questioning would trigger an appeal in The Federal Court of Canada.

Rocco Galati's forte is constitutional law which he has successfully used on several occasions at the Inquiry to literally stop opposing Counsel, including Inquiry Committee Members, in their tracks.

Sincerely,
Clare L. Pieuk  
Sparks fly over Douglas case resignation
By Cristin Schmitz
September 21, 2012 Issue

The abrupt resignation of the Canadian Judicial Council’s independent counsel could be challenged in Federal Court, says counsel for the complainant at the Douglas Inquiry.

Complainant Alex Chapman’s counsel, Rocco Galati of Toronto’s Galati Rodrigues, queried how independent counsel Guy Pratte could quit his duties to present evidence at the Canadian Judicial Council’s inquiry examining misconduct allegations against a Manitoba judge, without first obtaining permission to withdraw from the inquiry committee.

“No lawyer in any court can get off the record without a motion, and I may take steps to clarify that myself for my client in the Federal Court,” Galati told The Lawyers Weekly. “I doubt that independent counsel can simply resign on their own decision — ​​they need leave of the [inquiry] committee. If any independent counsel who takes a retainer can just resign, well then it makes a mockery of this process.”

The inquiry committee, chaired by Alberta Chief Justice Catherine Fraser, is deemed by the Judges Act to be a superior court.

The CJC announced August 27 that Pratte, of Ottawa’s Borden Ladner Gervais, had tendered his resignation to the council of 39 federal chief justices “effective immediately.” The counsel said it had accepted his resignation.

The disciplinary body for federally-appointed judges also pledged “as soon as possible” to appoint Pratte’s replacement at the ongoing inquiry into whether Manitoba Queen’s Bench (Family Division) Associate Chief Justice Lori Douglas is unfit for the bench.

Neither Pratte nor the CJC gave any explanation for the prominent litigator’s surprise departure — ​​an exit Galati described as “a bit of shocker.”

However, Pratte had locked horns with the inquiry committee over the nature and scope of his role, as independent counsel, in presenting the case against the judge. Just one week before he quit, he filed a judicial review application, asking the Federal Court to constrain the committee’s role in examining witnesses at the hearing.

Pratte declined to answer any questions, but CJC executive director Norman Sabourin noted that Pratte was appointed as independent counsel by the vice-chair of the CJC’s Judicial Conduct Committee — ​​not by the inquiry committee.

“The inquiry committee is not involved in this process,” Sabourin wrote in an e-mail. “Hence Mr. Pratte did not tender his resignation to the inquiry committee, but he did, of course, inform all counsel involved in this matter, including counsel to the inquiry committee, that he had resigned.”

Galati contends Pratte’s request to quit the proceedings should have gone before the inquiry committee.
 
“Of course I oppose [the resignation] because we don’t have any reason why he resigned,” Galati said. “No lawyer can simply walk away from a court proceeding, without the leave of the court. And those involved [in the proceeding] can oppose it, if there’s no good reason.”

He added if independent counsel can simply walk way when he or she feels like it, “in theory one of these [judicial misconduct] hearings may never end. What’s the guarantee that the next counsel doesn’t like something about the hearing, and says: ‘I resign too?’ Well, you can’t do that in a court proceeding.”

Galati argues the role of independent counsel is “inherently misguided.”

“How can you present both sides of a case [for and against a judge], in which the case hinges on the credibility of a complainant versus the judge?” he queried. He suggested judicial discipline should work along the lines of other professional discipline, with separate counsel to defend the judge, assist the tribunal, and present the case against the judge.

The CJC’s bylaws stipulate independent counsel “shall present the case to the inquiry committee” impartially, “in accordance with the public interest.”

“What’s that mean?” Galati asked. “No individual can represent the good, the bad, and the ugly, of both sides of a case.”

Simon Ruel of Heenan Blaikie in Quebec City, a commentator on public inquiries, noted judicial discipline cases typically don’t involve the serious credibility issues and vigorous cross-examination characterizing the Douglas case.

 “Once the proceedings are completed, it would be advisable for the CJC to examine what happened and assess whether changes are needed,” he said. Associate Chief Justice Douglas denies that she participated in her husband’s admitted sexual harassment of Chapman, and that she improperly failed to disclose on her 2004 application for the bench that her husband had posted graphic sexual photos of her on the Internet. She has asked the Federal Court to shut down the inquiry committee because it appears to be biased.

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