Tales from the Supreme Court of Canada crypt you'll never hear ..... maybe?

Former Justice William "RoadKill" Binnie

Dear CyberSmokeBlog:

When I sent William Binnie a copy of my e-mail submission to The Law Reform Commission of Western Australia I received a prompt reply of one work - "Thanks." Can't read anything into that. I doubt that former Supreme Court Justice Binnie or any of his cohorts are concerned about anything. But it must be apparent to everyone that what they've bequeathed to the generation of younger lawyers is a legacy that is a disaster.

Two of those younger lawyers are named at the bottom of the first page of Mr. Binnie's paper: James Wishart (http://www.fmc-law.com/Peiple/WishartJames.aspx?lang=en/michael-marin.html)

and

http://www.commonlaw.uottawa.ca/en/michael-marin.html

,as well as,

http://www.actioncanada.ca/en/fellows/20112012/2-fellows/#michaelmarin.

BTW, I probably shared with you that Jill Copeland the Supreme Court of Canada official who sent out that letter (warning former SCC interns not to discuss Justices they had worked for past or present), first came to my attention when she replied to a letter I had sent to Chief Justice Beverley McLachlin in 2008 before I filled out my first complaint with the Canadian Judicial Council. And Ms Copeland has since heard from me again because on leaving the Supreme Court she joined a labour law firm of strategic importance to me http://www.sgmlaw.com/en/lawyers/detail.cfm?lawyersid=60 in the labour law regime.

Chris J. Budgell
(Vancourver)

Dear Mr. Budgell:

Mr. Self-Rep

Thank you indeed for contacting CyberSmokeBlog.

Chris Budgell is a frequent contributor to this site and one of a couple extraordinary, quintessential self-reps CSB has encountered along the way. He can be reached at cjbudgell@gmail.com.

For over 10-years he's been challenging British Columbia's legal establishment winning an important victory in the province's Superior Court against its Labour Relations Board and now in the Federal Court of Canada where he has filed an application for a Judicial Review of two complaints he tendered with the Canadian Judicial Council. Essentially, Mr. Budgell will be arguing its summary dismissal by Executive Director and Senior General Counsel Norman Sabourin is not supported by The Council's bylaws.

Then there's self-rep Karyn Delichte a Winnipeger currently enrolled in a Doctoral program at a California University. Her file (Karyn Lynn Delichte versus Brandan Noel Rogers FD 04-01-73022) is almost 10-years in the making during which time no less than 11-Manitoba Queen's Bench Justices plus 5-Masters have "touched" it - it's a poster child for what's wrong with Family Division

Or what about Langley, British Columbia's Kari Simpson whose's defamation case went all the way to the Supreme Court. In his written decision then Justice Binnie referred to her as "road kill."

She has since gone on to found the highly successful web-based radio station, yes, RoadKill Radio, the site RoadKill Radio News, as well as, Drive For Justice a series of almost 30 videos in which she is single-handedly lobbying for a Parliamentiary Inquiry into the conduct of British Columbia Superior Court Justice Mary Marvyn Koenigsberg (alleged conflict of interest) for her actions by a lower court in hearing her defamation lawsuit.

When Alberta Queen's Bench Associate Chief Justice John Rooke in a ruling (Meade versus Meade) last year inferred all self-reps are Organized Pseudolegal Commercial Argument litigants (OPCS's) he showed a shocking ignorance of the situation for which he should be "benchslapped" by the Canadian Judicial Council. And Canadian taxpayers pay him how much to be so ill-informed?

When you read the Canadian Lawyer magazine article below just remember it was Jill Copeland now of Sack Goldblatt Mitchell LLP who tried to slam the door shut forever to the Supreme Court's crypt buried deep below the fortress-like building thus sealing the tales of Justice Roadkill. But then again this is the age of the internet right? Just ask those who appointed Lori Douglas as Associate Chief Justice, Manitoba Queen's Bench Family Division no less! 

But CyberSmokeBlog will not be deterred. Join us as we investigate the urban legend there's a secret passage way known to a select few leading from the Supreme Court Building directly to the Prime Minister's Office!

Sincerely,
Clare L. Pieuk

A supreme misstep

Written by Philip Slayton

Issue Date: August 2009

 The Supreme Court recently put a foot badly wrong. With one clumsy step, it raised doubts about its commitment to transparency and openness. To boot, it puzzled and annoyed — in some cases, even offended — many of the most knowledgeable and friendly observers of the court and its workings.

David Weiden is a professor of political science at Indiana University-Purdue University Indianapolis. In 2006, he published (with Artemus Ward) a book called Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court. Weiden, a serious scholar, then became interested in Canadian Supreme Court law clerks and was given a research grant by the Canadian government to study their “impact and influence.” He sent a survey to former clerks, hundreds of them.

Jill Copeland, the court’s executive legal officer, responded with an e-mail of her own to former clerks. It said participating in the Weiden survey would violate confidentiality obligations which “are not limited to information about cases, but also extend to internal processes of each justice’s chambers.” Presumably, Copeland’s e-mail was authorized by the chief justice, and, one speculates, may have followed discussion among all the justices. It is not known exactly what effect this intemperate e-mail has had on Weiden’s work, but I wouldn’t be surprised if it hasn’t crippled his study, or even brought it to an end.

Full disclosure: I was a law clerk to Justice Wilfred Judson in 1969-70, and received the Weiden survey and the Copeland e-mail. I completed and returned the survey.

There’s so much wrong about what was done here that it’s hard to know where to begin. For starters, to send such a peremptory and heavy-handed message to lawyers who were among the best and brightest of their generation, and who in many cases have gone on to distinguished legal careers, was insulting. Surely these former law clerks could be trusted to judge for themselves the nature and extent of their confidentiality obligations? If an e-mail had to be sent (and why would that be?), it could simply have alerted addressees to any concerns the court itself had about the Weiden survey, and expressed confidence in the ability of individual law clerks to deal appropriately with the issue.

Then, this incident makes the Supreme Court appear blind to the historical and legal importance of the law clerk experience, and in particular the way in which law professors who have been clerks use that experience in their teaching and writing. For example, Lorne Sossin, a respected law professor at the University of Toronto, who was clerk to chief justice Antonio Lamer from 1992 to 1993, published a law review article in 1996 called “The Sounds of Silence: Law Clerks, Policy Making and the Supreme Court of Canada.”

What about Justice Robert Sharpe, now a judge on the Ontario Court of Appeal, or Kent Roach, another University of Toronto law professor? Sharpe was executive legal officer at the court (the job now held by Copeland) from 1988 to 1990 when Brian Dickson was chief justice; Roach was law clerk to justice Bertha Wilson from 1988 to 1989. Sharpe and Roach co-authored a 2003 biography of Dickson, which describes much of what went on behind closed doors, and includes several pages describing the role of clerks.

Can anyone seriously maintain that Messrs. Sossin, Sharpe, and Roach, in the valuable work they have done, violated confidentiality obligations? Does the Supreme Court intend to ask the law society to investigate Sossin and Roach for ethical breaches, and will it complain to the Canadian Judicial Council about Justice Sharpe? I don’t think so. In that case, exactly what is Ms. Copeland’s e-mail all about?

In the United States, Supreme Court law clerks (and others insiders, including judges) have almost routinely shared at least some of their experiences. Bob Woodward and Scott Armstrong, who published their famous book The Brethren in 1979 (it’s still in print), interviewed about 170 clerks. Jeffrey Toobin, for The Nine: Inside the Secret World of the Supreme Court, published in 2007, spoke to about 75 of them. Weiden’s Sorcerers’ Apprentices was based in part on interviews and written surveys of 150 former clerks. For another recent American book about law clerks, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, author Todd Peppers, relied on “an endless number of former law clerks who took the time to talk repeatedly with me about their clerkship experience and complete my surveys.” These books and others like them have contributed to popular and scholarly understanding of the U.S. Supreme Court.

It’s hard to understand why the Supreme Court of Canada reacted the way it did in the Weiden affair. Everyone understands that some things must remain confidential; no one is advocating unrestrained tattling by those who were in the inner sanctum. But, to argue that because some things should not be known then nothing should be known, is to reason in a way that a first-year philosophy student would find embarrassing.

Perhaps the problem is that the court’s attitudes have not kept pace with its powers. Since the 1982 Charter of Rights and Freedoms, the Supreme Court has been a vital part of the government of Canada. It makes important policy decisions all the time, despite pro forma protestations to the contrary. Secrecy surrounding government institutions that determine policy is not a good companion of democracy. Openness is — or should be — part of the price you pay for power.

It’s not like the old days, when Supreme Court judges embraced and enjoyed a remoteness and mystique willingly tolerated by a respectful citizenry. Lack of openness didn’t really matter when any case involving more than $10,000 could be appealed as of right to the court (before the 1975 jurisdictional reforms) and most of the court’s work was settling individual disputes of little or no general significance. But now, particularly with decline in the power and reputation of parliament, the Supreme Court stands shoulder-to-shoulder with the executive as a major branch of government. We’re entitled to know as much about it as possible.