Friday, June 28, 2013

"Would you buy a used car or pizza from this man ..... well would you?"

Thursday, June 27, 2013

"Would you like a little snog Your Royal Highness? No, no, no, not a spot of tea silly man!"

Trailer Park Boys finally weigh in on Douglas Inquiry!

Ricky: "Julian, after reading this latest CyberSmokeBlog article I keep telling you that Douglas Inquiry it totally f....d!"

Julian: "Ricky, you need to lighten up and chill out ..... smoke a couple more joints and drink some beer! Stop worrying Chief Justice Beverley McLachlin keeps reassuring us we have one of the best judicial systems in the world!"

Bubbles: "This latest development sure sounds greasy I think I'll pound more beer into me! My little kitties are smarter than many of these lawyers and judges."

Good Day Readers:

As it is given to doing, CyberSmokeBlog decided to have a quick look at the Douglas Inquiry Federal Court of Canada file the other day to see what nefarious little deeds tone deaf lawyers and judges associated with the Inquiry are perpetuating upon taxpayers. To our its utter amazement this it what CSB found. Perhaps Julian, Ricky and Bubbles got it right after all!

Court Number: T-1567-12
Style of Cause: The Honourable Lori Douglas versus Attorney General of Canada
Nature: Application for Judicial Review
Proceeding Category: Section 18.1 Applications
Type of Action: Non-Action
(184 records found)

DocDate FiledOfficeRecorded Entry Summary
-2013-06-25OttawaLetter from Applicant dated 25-JUN-2013 re: "Please bring this letter to the attention of Prothonotary Tabib, the Case Management Judge for the above-noted application, on an urgent basis. As the Court is aware, the Canadian Judicial Council Inquiry Committee and Independent Counsel are appealing Prothonotary Tabib's rulings on their motions to intervene in this application. Both the Committee and Independent Counsel unilaterally made their appeals returnable July 3, the date of the special sitting of the Court to hear the Applicant's motion to stay the CJC proceedings pending resolution of the application. The Court registry hearings coordinator is now trying to determine whether all three motions (the stay and the two appeals) can be heard on the same day..." (received and scanned to CMJ prior to Directions dated 25-JUN-2013) received on 25-JUN-2013

Bearing in mind CyberSmokeBlog is not a Philadelphia lawyer, what the aforementionded court record seems to be saying is Federal Court of Canada Judge Tabib ruled that Counsel representing the Canadian Judicial Council, as well as, Independent Inquiry Counsel Suzanne "Push My Re-Set Button" Cote could not present anything at Lori Douglas' application hearing before the FCC in which she is trying to get the charges (i.e. allegations - four) against her dismissed. The CJC and "Re-Set's" appeal hearing has been set for July 3rd.

CJC Counsel and "Re-Set Button" subsequently announced they are appealing Judge Tabib's ruling. As you can see from the court record, both "Re-Set" and The Council are scrambling to figure out how best to handle the Judge's decision (section highlighted in yellow).

Perhaps Ricky said it best, "Julian this Inquiry it totally f....d!" to which CSB adds oy veh!

Clare L. Pieuk

Wednesday, June 26, 2013

Elementary My Dear Watson elementary!

Good Day Readers:

So what do you not understand voters? Shelly Glover was adamant but a few short weeks ago Elections Canada had it wrong and she would prevail in a lawsuit. So what suddenly changed to cause her 180 degree turnabout?

It's been rumoured for some time Stephen Harper will make a major change to his cabinet probably more true now than ever before given the senate scandal and a host of other major Tory screw ups. Is is possible Ms Glover covets a cabinet post so the Party hierarchy told her to get rid of the court challenge the fastest way possible - drop it.

Everyone knows, or at least should know, the legal system moves at a glacial pace. Her challenge would have probably gone one for several weeks if not months long past the date of the new cabinet appointments. How could a prime minister possibly appoint a new minister whose 2011 election campaign expenses were being challenged by Elections Canada with the possibility of a fine and/or jail sentence in the extreme? Expediency Dear Watson expediency!

It will be interesting to see what Shelly Glover has to say, if anything, about her election campaign expenses fiasco in those black and white taxpayer financed nauseating flyers she bombards her Saint Boniface riding with extollng her virtues and those of the Conservatives - you know the one's that don't get read and end up in the garbage or clutting the floor of your appartment lobby.

Clare L. Pieuk
Glover's about-face baffles MPs, former campaign worker
Manitoba Conservative MP faces possible legal consequences

By Leslie McLaren
Wednesday, June 26, 2013
Documents show that two staffers from Conservative MP Shelly Glover's office returned some of their campaign salaries after Elections Canada asked for changes that would have put ther campaign over its spending limit. (Sean Kilpatrick/Canadian Press)

Winnipeg Conservative MP Shelly Glover's about-face on what she paid two staffers during the 2011 federal election campaign mystifies a former Liberal official agent and infuriates another local MP.

As well, the fact that Glover's revisions have now put her over the allowable spending limit has other parties crying foul.
Reno Augellone, a former Liberal official says rules are very clear and the agency bends over backwards to help campaigns comply with those rules. (CBC)

Reno Augellone, who was the official agent for Winnipeg Liberals Reg Alcock and Anita Neville from 2000 to 2011, describes Glover's fight with Elections Canada as "silly," since he believes it's very clear what the rules are.

"The rules are clear cut," he said. "If there is any ambiguity, Elections Canada, by far, is a very good resource. They have proper auditors and advisors, you could always call."

Augellone said it is also clear that any existing advertising, once the writ is dropped, has to be counted as a campaign expense, just as if someone donates a table to the campaign. He said strict monitoring is part of the process.

"Everyone wants to run the expenses right to the limit that you are allowed because there's part of the rebate that you can claim for expenses," he said.

'This is an abuse of trust, or just an arrogance towards it.'—Reno Augellone"But you have to build in a buffer because you know there are expenses that will not be allowed."
Augellone said it doesn't make sense why Glover would claim one hourly rate for two staffers, then change it to a lower rate before reverting to the original claim.

"That just opens up a can of worms, I think, because no auditor's a fool," he said."They are going to look at names. They are going to match names to what they do. And you'll get questioned on it: 'Who's this person? What do they do?' You have to justify it."

Pat Rondeau, one of the staffers whose salary was changed, is listed on new documents Glover's office has filed with Elections Canada. Augellone said it's not out of the ordinary to see that she expensed a few items to the campaign, even if at one point Glover maintained she was only door-knocking at $10 an hour.

Augellone said Glover will likely face a fine at a minimum for spending over the allowable limit.

"This is an abuse of trust or just an arrogance towards it," he said.

Glover's story 'doesn't pass the smell test,' says MP

Other MPs say there is no reason Glover should be in the mess that she's in.

"It infuriates me, frankly," said Pat Martin, the NDP MP for Winnipeg Centre.

"We were told by our people that you overspend by a penny, you lose your seat and you're not allowed to run again for five years."

'You overspend by a penny, you lose your seat, and you're not allowed to run again for five years.'—NDP MP Pat Martin

Martin said he had to pay for every sign he had up when the writ was dropped.

"I had to account for the total amount it took to put them in, even though I did it 15 years ago, and [their] monthly rent," he said. "Otherwise, if my competitor wanted a comparable sign, that's what it would cost him. So that's only fair."

Martin said he was always warned not to get anywhere near his spending limits and, in fact, he only spent about half of what he was allowed.

Martin echoed Augellone's comment that Elections Canada bends over backwards to help campaigns get their numbers right.

"They pull out all the stops to help official agents make their books right," he said, adding that he doesn't understand how staffers' salaries can be revised after the fact.

"It's just not plausible you could balance the books by changing the hourly wage retroactively of people you hired."

Martin's concern is what happens next: "My fear is there will be no penalty, or it'll be so paltry that on a cost-benefit analysis, it's worth it," he said."If you're going to get a $2,000 fine for having overspent your budget by $3,000 and maybe winning the election because you spent more than your opponent … that just makes a mockery of the election spending limits."

Timmins-James Bay NDP MP Charlie Angus, who is the party's ethics critic, said Glover's changing her story on her staffers' salaries raises red flags.

"It's a disturbing development that when she blew past the limits on spending that they went back, and basically staff had to give up their wages in order to bring her back into compliance," he said.

Angus said he felt for the people who worked hard on her campaign and can't understand why they'd give that money back.

"That people would retroactively give up money that they earned … that's a head scratcher for me," he said.

Newfoundland and Labrador Liberal MP Scott Andrews, that party's critic for access to information, privacy and ethics, agreed.

"It doesn't pass the smell test," Andrews said.

"Campaign staff is something you set out at the onset of your campaign. You know exactly how much it cost and how much you're going to get for the duration of your campaign — six weeks. So trying to change things after the fact looks really bad and very suspicious."

Decision could take some time

Jean-Pierre Kingsley, Canada's former chief electoral officer, says it may take some time before there is a decision in a case like Glover's."This is like any investigation by a police force, for example," he explained.

"They don't come out with periodic statements saying, 'We found this proof of evidence, we didn't find this kind of evidence.' This is an ongoing investigation and you cannot reveal piecemeal the different conclusions that you reach at different stages; otherwise, you obviate the whole process."

'The whole purpose of having spending limits is to level the playing field …This is such a fundamental Canadian value in our electoral system '—Jean-Pierre Kingsley

Kingsley said, however, that there are three possible outcomes.

Elections Canada can refer the file to the commissioner of Canada Elections, an independent agency, and the commissioner could decide that no further action is needed or that there has been an infraction but it was not done intentionally.

That could lead to a "compliance agreement," in which the offender would agree that he or she broke the law. The signed document would be posted on Elections Canada's website.

The third possibility is if evidence is found that the rules were knowingly broken, charges would be levied and the case would go to court.

Glover declined to comment on her elections expenses. Her office told CBC News that she has no idea when she will find out what, if any, penalty she will face for having overspent her limit

Kingsley said the issue of campaign overspending is important.

"The whole purpose of having spending limits is to level the playing field," he said.

"This is such a fundamental Canadian value in our electoral system…. Obviously overspending by $100 is not the same as overspending by $2,000 or $3,000, and that is not the same as overspending by $10,000 or $15,000 or $20,000. It's a matter of degree, and it is up to the commissioner to decide just how serious this is in terms of the alternatives that he pursues."

The issue of whether Glover will be permitted to continue sitting in the House of Commons has also yet to be determined.

Andrews said allowing Glover and Selkirk-Interlake MP James Bezan, who is also in a dispute with Elections Canada, to continue sitting the House breaches the privilege of MPs who complied with the agency's rules.

Andrews said the question is expected to be addressed in the fall session of Parliament.

Document: Glover's election spending

The document below was recently filed with Elections Canada and outlines most of St. Boniface MP Shelly Glover's election expenses during the 2011 campaign.

This document was not available online. CBC News had to obtain it by going to Elections Canada's office in Ottawa earlier this week.

Tuesday, June 25, 2013

Time to press Suzanne Cote's "re-set" button?

Suzanne Cote Montreal BigLaw Osler

Good Day Readers:

A special thank you to Kari Simpson founder of the video website Drive For Justice and RoadKill Radio News for sending along the link to the Winnipeg Free Press editorial which appears below.
Like CyberSmokeBlog she too has been highly critical of the way the Canadian Judicial Council does business and with very good reason.

CSB believes the CJC operates as a kingdom unto itself spending taxpayer dollars like an army of drunken sailors while "purporting" to always operate in the public interest. But does it? Take, for example, "Re-Set Button" Cote. Presumably, she has complete transcrips of all witness testimony to date. Will the Inquiry Committee have the presence of mind to request "Re-Set Button" submit in advance a written list of all questions she believes were either not asked, asked improperly and/or answered inadequately before rendering its decision? Don't count on it!

Then there's Guy "The Cat" Pratte who along with helper Kirsten "The Pain" Crain ("If he goes I go .....") suddenly resigned probably because the former's nose was significantly out of joint when the Committee asked Inquiry Counsel "Gentleman" George Macintosh to re-examine a couple key witnesses. However, we may never know because "The Cat" refused to release a copy of his resignation letter to the media and The Council won't post it on its website which prompted Complainant Alex Chapman's Toronto lawyer Rocco ("Mr. Good Guy") Galati to file an application before the Federal Court of Canada for its release.

"The Cat" must be doing a slow burn over at Borden Ladner Gervais because what "Re-Set Button" is attempting to do suggests for whatever reason(s) she may not be satisfied with the original Independent Counsel's handy work.
"Mr. Good Guy"

If you read The Lawyers Weekly article referenced below "Mr. Good Guy" makes the most sense.

So as the Inquiry grinds on the Canadian Judicial Council remains oblivious to taxpayer cost. If nothing else it's providing good theatre albeit expensive theatre for the great unwashed masses.

Clare L. Pieuk
Douglas rewind abusive
Saturday, June 22, 2013
The protracted and expensive Canadian Judicial Council inquiry to determine whether Justice Lori Douglas remains on the bench is about to get more protracted and expensive, if its new independent legal counsel gets her way. Suzanne Cote, the Montreal lawyer hired by the council last September after its former independent counsel suddenly resigned, proposes to recall witnesses who have already testified before the inquiry so she can question them herself.

Cote's proposal is a colossal mistake. It would entail the inquiry panel rehearing the same witnesses and same or similar testimony already in evidence at the inquiry. It would jack up the costs of an inquiry that has already cost several million dollars without getting anywhere near a decision.

Cote did not name the witnesses she wishes to re-examine. However, those who've already testified include Winnipeg lawyer Jack King, who posted sexually explicit photos of his wife, Justice Douglas, on Internet websites and Alex Chapman, who accused the judge of participating in her husband's sexual harassment of him. Another possible witness who might have to re-testify is former Manitoba Court of Appeal judge Martin Freedman, who chaired the judicial appointments advisory committee that recommended Douglas's appointment.

It's legally unclear whether Cote has the authority to do this without the backing of the inquiry panel. Nor is it clear whether she will make a formal motion to recall witnesses who've already testified under oath. But, she has said she wants to recall witnesses "since I want to question them myself."

Nothing could be more counterproductive to the inquiry getting on with its job than a proposal to re-hear the evidence.

Not only is it duplicative of testimony already heard, but it would likely spawn more procedural wrangling that diverts the inquiry panel from its role determining -- or more precisely advising the Canadian Judicial Council -- whether Justice Douglas should be removed from the bench. Almost certainly it would trigger a host of legal objections from the principal parties -- King, Chapman and Justice Douglas -- and perhaps other witnesses who've already testified.

The Douglas inquiry has been plagued by multiple delays. It's also been in limbo nearly a year, pending various court applications.

Justice Douglas has a current application before the Federal Court to shut down the inquiry based on a "reasonable apprehension of bias" due to the inquiry panel's own lawyer's aggressive questioning of witnesses supportive of the judge. She has also filed a motion to stay the inquiry panel's proceedings until that application is heard.

The inquiry was to resume hearings in Winnipeg in late July. However, it's now unclear whether it will proceed in light of the judge's latest motion to suspend its activities.

But a demand to recall witnesses who've already testified amounts to starting the inquiry from scratch. An astonishingly benighted plan, that can only generate more delay, and greater cost to the taxpayer.

Republished from the Winnipeg Free Press print edition June 22, 2013 A16
Douglas Inquiry's new counsel wants do-over
By Cristin Schmitz
June 7, 2013 Issue

The beleaguered inquiry into a judicial sex scandal has taken an unusual new turn in what is shaping up to be a very long and expensive road.

Suzanne Côté, the replacement independent counsel hired by the Canadian Judicial Council last September to present the alleged misconduct case against Manitoba Judge Lori Douglas, says she wants to press the “re-set” button on the CJC’s stalled multimillion-dollar inquiry.

The inquiry committee chaired by Alberta Chief Justice Catherine Fraser adjourned last July when Justice Douglas’s counsel asked its members to recuse themselves for reasonable apprehension of bias.

“I have indicated that when the inquiry resumes, I will ask the witnesses who already testified to come back since I want to question them myself,” Côté told The Lawyers Weekly.

Côté, of Osler LLP in Montreal, declined to comment on whether she can effectively reboot the inquiry — without the tribunal’s leave — including re-investigating the case and re-examining witnesses who have testified under oath since the inquiry committee began its intermittent hearings in Winnipeg in May of last year.

Those witnesses included the judge’s husband, Winnipeg family law lawyer Jack King; complainant Alexander Chapman, who accuses the judge of participating in her husband’s sexual harassment of him; Thompson Dorfman Sweatman’s former managing partner Michael Sinclair; and former Manitoba Court of Appeal Justice Martin Freedman, who chaired the Manitoba judicial appointments advisory committee that cleared Associate Chief Justice (Family Division) Douglas for appointment to the federal bench, despite the bondage and other sexually explicit photographs of her that King says he circulated on the Internet without her knowledge or consent.

Asked for his comment on Côté’s proposal to start the inquiry from scratch, Chapman’s counsel Rocco Galati was incredulous. “Who is master of this house?” he queried. “Is it the inquiry committee or is it independent counsel? My client is opposed to this, and will be objecting to it.”

Galati argued that a do-over of the inquiry would not only waste taxpayer dollars, “the independent counsel neither has jurisdiction, nor does this make any sense. It’s like saying midway through the trial, the Crown is replaced and what? The trial judge is supposed to rehear all the evidence from scratch? No! This is ridiculous.”

At press time, inquiry watchers were also speculating whether Côté will opt to drop the sexual harassment allegation — the most serious of the four misconduct allegations facing the judge. Last July, the inquiry committee itself said it was prepared to hear counsel submissions “on whether there was a basis for proceeding further” with the sexual harassment allegation. It did so without hearing Justice Douglas’s evidence, who is not expected to testify until after the other witnesses.

Côté wouldn’t say where she is going with the sexual harassment allegation, but Galati argued she can’t choose to drop it. “Only the committee can narrow or expand the terms of the inquiry,” he insisted.

Meanwhile, the judge’s counsel, Sheila Block of Torys, has asked the Federal Court to stop the inquiry committee from resuming its hearing on July 29, pending the “full and final determination” of her Federal Court application last August to permanently shut down the tribunal.

Block contends that the inquiry committee revealed bias in having its counsel, George Macintosh, “aggressively” question witnesses supportive of the judge’s defence, while also demanding that the former independent counsel (Borden Ladner Gervais’ Guy Pratte and co-counsel Kirsten Crain, who mysteriously quit last August) tone down their questioning of Chapman, the judge’s accuser.

“The reasonable apprehension of bias in these proceedings contravenes the duty of fairness owed to Douglas ACJ as the respondent judge and renders it impossible to continue the Inquiry Committee hearing constituted by the CJC,” Block says in her stay motion filed in Federal Court last month. “Requiring Douglas ACJ to appear before the Inquiry Committee, in advance of a determination on the [reasonable apprehension of bias] application would cause irreparable harm to Douglas ACJ and to the administration of justice.”

University of Manitoba law professor Karen Busby told The Lawyers Weekly it wouldn’t serve the interests of justice for parallel processes to go on, with the inquiry committee resuming its hearing, even as the Federal Court reviews whether the committee (comprising three chief justices and two senior lawyers) showed apparent bias against the judge.

Bias applications “are rarely successful,” Busby acknowledged. But she noted that both the judge and Pratte complained to the Federal Court last August about the inquiry committee’s questioning of witnesses.

“So it’s not a frivolous case,” she observed. “And for that reason I think the process needs to be respected and this matter [of alleged apparent bias] should be determined before the main [CJC] inquiry hearing is reconvened.”

Busby predicted that if the inquiry does continue, the main issue will not be sexual harassment. “The most serious allegation against [the judge], in my view, is whether or not it’s incompatible with judicial office to have sex pictures irretrievably on the Internet,” she said. “Reasonable people will disagree on that.”

Busby, an expert on procedure, also questioned why the Federal Court judicial review proceedings are taking so long. One year after the review was launched, the parties are still bogged down in procedural issues. A preliminary motion to determine who should be the respondent for the judicial review took four months to decide.

“In my client’s view, to date, they’ve moved as fast as a corpse,” agreed Galati. “I think the delay is both with the parties and the court. I think this stay [application], and the entire application for judicial review, should be heard on an expedited basis.”

The inquiry committee itself is concerned about the delay. According to court documents filed by Block, Macintosh wrote counsel in April to inform them the inquiry will resume its hearings July 29, with further dates to be set in August, September, and October “given the continuing delay from the Federal Court process.”

Block’s stay motion is slated to be argued July 3, but the Federal Court has not set a date to argue the merits of Justice Douglas’s judicial review because it remains mired in procedural wrangling, involving many senior litigators, over issues such as who should properly defend the inquiry committee’s actions (the Federal Court ordered the Attorney General of Canada to do so in May, over the AG’s protests); who can intervene in the case; and whether the CJC can be forced to disclose why Pratte abruptly quit last August.

Meanwhile, the costs of the inquiry, which could face years of appeals both on procedure and on the merits, are mounting. Just the legal fees of various counsel from April 1, 2011 and March 31, 2012 exceeded $1 million, according to the judge’s court filing. “This amount represents expenses before the Committee’s hearing began in May 2012 for which at least 10 counsel the Committee and CJC staff had to travel to Winnipeg to attend,” Block writes.

The legal expenses for the 2012-2013 fiscal year promise to be even larger.

In the meantime, the judge has been collecting her salary (more than $315,000 annually), while being barred from doing her job since 2011.

In her response to the allegations before the CJC, the judge denies that: she participated in her husband’s admitted sexual harassment of Chapman; she deliberately changed a relevant entry in her diary and misled former independent counsel about it; the photos she and her husband say he posted on the Internet, without her knowledge or consent, so undermine her image as a judge that she can no longer do her job and should be removed from the bench.

Monday, June 24, 2013

Sunday, June 23, 2013

"No ____ Ms Blatchford!"

Good Day Readers:

In response to Ms Blatchford's article there are several points CyberSmokeBlog would like to offer:

(1) The Canadian Judicial Council is on the public record as saying prior to going to an expensive taxpayer  public inquiry that could be protracted, it meets with legal representative(s), presumably including the Justice whose conduct is under scrutiny, to ascertain whether a mutually satisfactory settlement can be achieved

Did this happen in Lori Douglas' case and if so what was the outcome? Taxpayers will likely never know unless, of course, an insider with specific knowledge at some point decides to go public with a kiss and tell book. Therefore, it can only be reasonably assumed the pre-Inquiry negotations ended in failure. In other words, Ms Douglas did have an option to avoid a full blown inquiry

(2) "Given that standard, what's happened to Justice Douglas is nothing less than disgraceful."

But is it? Manitoba Court of Queen's Bench Chief Justice Glenn Joyal has been less than candid with taxpayers on Ms  Douglas' financial status since she stopped hearing cases (Was it her decision or someone else's?). The public was told she had been reassigned to "administrative duties" which were never specified. Was she being compensated at her full salary of $319,900 plus medical plan, pension, as well as, other benefits .....?

"Waiting rooms of hell?" Hardly! "Firmly in limbo?" Who amongst us wouldn't like to be in the waiting rooms of hell firmly in limbo with the possibility of that kind of compensation?

Fast forward to the Inquiry last July when the now duly departed Independent Counsel Guy Pratte discussed the fourth allegation against Associate Chief Justice Douglas. According to testimony Mr. Pratte contacted her about what appeared to be an inconsistency in her personal diary several entries of which (some redacted) were subsequently posted on the CJC website.

Lead defence counsel Sheila Block quickly jumped to her feet at the time to criticize Mr. Pratte for contacting her at home while she was on sick leave. Apparently, somewhere in all this she transitioned from administrative duties to sick leave. Further, were there not at least three members of Lori Douglas' publicly financed legal team all from Torys in Toronto? What about Sarah Whitmore who has filed at least one affidavit to date plus a young gentleman with a laptop who sat at the defence table - perhaps an articling student?

(3) Yet to be heard in the Federal Court of Canada is another motion by Sheila Block to quash the Inquiry or, in other words, stop it dead in its tracks because of an apprehension of bias. According to University of Manitoba law professor Karen Busby who has been closely following the Inquiry the standard of proof for "apprehensions" is very high

As part of this application she is also seeking to bar Inquiry Counsel George Macintosh (Vancouver) from cross-examining any of the remaining witnesses. Remember how masterful his cross was especially of Jack King, as well as, Senior Managing Partner Michael Sinclair of Thompson Dorfman Sweatman who at the time was the firm's point man for damage control?

(4) Was Mr. Macintosh not able to elicit from Mr. King the fact that he had borrowed the $25,000 from his wife Lori Douglas to pay Alex Chapman and his lawyer Ian Histed? Did this not occur at a time when Ms Douglas was applying a second time for a judgeship? She ultimately successed on her third try

(5) And what about that personal diary entry dated July 5, 2005 alluding to the fact she'd written a large cheque although no amount or the reason were specified. When was the confidentiality agreement involving Mr. Chapman and his solicitor concluded?

(6) After receiving a retainer, why did Guy Pratte, "..... a most principled man ....." refuse to release to the media and ultimately taxpayers the reason(s) for his sudden departure? Why has The Council not published his resignation letter in its entirety on its website? Why has Rocco Galati counsel to Alex Chapman had to file a motion in the Federal Court of Canada to try to force publication of this document?

(7) "Yet here we are, almost three years later, with the inquiry slated to resume in September ....."  To the best of CyberSmokeBlog's knowledge there has been no official dates announced for resumption of the Inquiry. From where did this information come?

(8) "But it ignores the fact that judges are entitled to not just the same sort of justice given citizens but rather to the highest procedual fairness in the land because of the value that in our democaracy is placed on their independence - from politics, form government, from everything."   

Well, perhaps therein lies the problem. Like Senators it's virtually impossible to get rid of a lousy one.

Clare L. Pieuk


But please don't get too, too discouraged because of the time the Inquiry is taking Ms Blatchford. IF it  were to recommend to Parliament that Ms Douglas be removed from the Bench would this not be appealable in the Federal Court of Canada? Should the relief ACJ Douglas and her defence team were seeking still not be forthcoming then couldn't the Supreme Court of Canada be petitioned all at taxpayer expense?

Grind on Canadian Judicial Council grind on it's only taxpayer dollars!

Here's what you should be asking. Why hasn't a transcript of witness testimony thus far not been placed on the Canadian Judicial Council's webpage long before now?
Christie Blatchford: Manitoba judge's biased inquiry into nude photos grinds on

By Christie Blatchford
Friday, June 21, 2013
Lori Douglas and Jack King (Handout: John Woods/Winnipeg Free Press/Files)

I suppose there’s a measure of what in the modern world might be considered tit-for-tat equity in the magnificently messed up and ludicrously delayed proceedings involving Manitoba Associate Chief Justice Lori Douglas.

That view might go like this: As justice is painfully slow to arrive for ordinary folk in this country, it’s only fitting that it is also glacial to come for judges themselves.

But it ignores the fact that judges are entitled to not just the same sort of justice given citizens, but rather to the highest procedural fairness in the land because of the value that in our democracy is placed on their independence — from politics, from government, from everything.

In other words, it’s meant to be difficult to remove a judge from the bench, and it ought to be similarly difficult to dispatch one to the waiting rooms of hell.

Given that standard, what’s happened to Judge Douglas is nothing less than disgraceful.


Christie Blatchford: Inquiry into Manitoba judge’s sex scandal stuck in limbo — along with her career

Christie Blatchford: Manitoba judge’s accuser no sexual wallflower, but inquiry astonishingly refused to hear about it

Man at centre of Manitoba naked judge case was an online sex performer: lawyer

Christie Blatchford: Lawyer quits nude judge inquiry after disagreement over questions

You may recall that she first agreed to stop hearing cases and sitting in court in September of 2010, this in the wake of a CBC-led media firestorm over sexual pictures of her that were posted years earlier to a hard-core website by her husband, Jack King.
Complainant Alex Chapman outside court on June 26, 2012. (David Lipnowski for National Post)
Judge Douglas has always denied knowing what Mr. King was doing, while in the midst of a mental breakdown, with their bedroom pictures, and there is considerable evidence on the record from the stalled hearings to support what she says.

Yet here we are, almost three years later, with the inquiry slated to resume this September, the very impartiality of the inquiry panel impugned and still very much undecided, and Judge Douglas firmly in limbo.

As a reminder, it was in the summer of 2003 that a man named Alexander Chapman, a former client of Mr. King’s and a fellow suspicious and litigious by nature, had a lawyer send a demand letter for $100,000 to Mr. King’s firm.

Mr. Chapman claimed he’d been sexually harassed and, as a black man, humiliated by Mr. King. He had emails and pictures, from the website where Mr. King directed him, to prove it.

Mr. King eventually paid him $25,000 in exchange for his signature on a confidentiality agreement and a promise to destroy all the pictures.

Judge Douglas, who was then a lawyer at the same firm as her husband, was never alleged to have had any part of all this.

The story didn’t become public then, but it was well-known among the local bar, even by judges. But Judge Douglas, or lawyer Douglas as she was then, was widely seen as having been victimized by Mr. King. He was asked to resign from the firm, and did so, spending a year being treated for depression.

She stayed at the firm, and two years later was appointed a judge, four years after that being named as Associate Chief Justice.

In the late summer of 2010, Mr. Chapman re-surfaced, this time at the CBC and the Canadian Judicial Council, where he filed a complaint alleging the judge had been a part of it.

Two years after that, the inquiry committee, composed of three judges and two lawyers, began hearings in Winnipeg.

Judge Douglas faced four allegations of wrongdoing, chiefly that she participated in her husband’s sexual harassment of Mr. Chapman and that she’d failed to disclose this in her application for the bench.

(In fact, as testimony revealed, the chair of the appointments committee knew all about the mess and he said he told the others.)

Should the panel appeal, the costs — to the administration of justice and to the judge in exile — will only rise

The hearings fell apart about the end of July last year.

When it adjourned, Judge Douglas’s lawyers were alleging the panel was biased against her, and within weeks, no fewer than three parties had filed separate applications for judicial review in the Federal Court.

One of them, unusually, was from Guy Pratte, the so-called “independent counsel” to the committee and a most principled man.

He had been long at loggerheads with the panel over what his role ought to be and, really, over the fairness of the process to the judge.

A week later, Mr. Pratte abruptly resigned.

He has said nothing publicly since, but his distress is on the record.

In their application for judicial review, meantime, Judge Douglas’s lawyers, Sheila Block and Molly Reynolds, sought a finding that the panel’s conduct of the hearings “gives rise to a reasonable apprehension of bias” — in other words, that the hearing isn’t fair to the judge.

But when that process dragged on and the committee revealed this April that it was determined to resume the hearings (with a new “independent counsel,” who wants to start from scratch), the judge’s lawyers then applied to stop them — to stay the hearings, in other words, until the judicial review has been heard.

It seems pretty straightforward to this non-lawyer brain: The committee is alleged to be biased against Judge Douglas and the issue hasn’t been heard in court yet, so how can the same committee just press on with more hearings?

Then, surely showing it is rather invested in its view of its own purity, the committee applied for intervenor status in the stay application itself.

That, at least, was dispensed with this month by Madam Prothonotary Mireille Tabib (a prothonotary is a judicial official, akin to a judge), who denied the committee standing.

She ruled that since the panel’s “impartiality is directly at issue … if it is perceived to be defending its decisions or taking an adversarial position” toward the judge, the public may perceive it as, well, biased.

(To this, I would say, no s—, Sherlock.)

And the bill keeps growing. As Judge Douglas’s lawyers note in their filings, as of March 2012, before the hearings were held, the legal tab alone was $1,035,758.

Should the panel appeal the prothonotary’s ruling, the costs — actual, to the administration of justice and to the judge in exile — will only rise.

Postmedia News
Christie Blatchford was born in Quebec, studied journalism at Ryerson University and has written for all four Toronto-based newspapers. She has won a National Newspaper Award for column writing and in 2008 won the Governor-General’s Literary Award in non-fiction for her book Fifteen Days: Stories of Bravery, Friendship, Life and Death from Inside the New Canadian Army.

Thursday, June 20, 2013

But "Dr." Chartrand isn't a thief a thief by any other name?

"The people who have had it all this time are a bunch of thieves," Chartrand said, adding he knows who has had the bell for the last 22 years but cannot identify the person for fear of legal reprecussions.

Good Day Readers:

During last fall's University of Winnipeg convocation David Chartrand was awarded the prestigious Honorary Doctor of Laws Degree no less from the prestigous U of W. If as he claims he has known who has had the bell all these years isn't that an even more compelling reason for him to come forward with their name(s)?

For a long time the same name has informally cropped up time and time and time again. CyberSmokeBlog chose not to go public with that information because it was unable to secure verifiable third-party independent confirmation.

When Dr. Chartrand claims he cannot identify the person for fear of legal reprecussions to what is he referring:

(a) The person or persons responsible could be prosecuted?
(b) He is at risk for not providing the authorities with the information?

Either way his response is completely inappropriate and inadequate.

Is what you're seeing here a President of the Manitoba Metis Federation whose nose is severely out of joint because after 15 years of trying the Union Nationale Metisse Saint-Joseph du Manitoba succeeded where he failed miserably?

Clare L. Pieuk

Metis leader not clapping about bell
'Thief' is trying to profit from it

By Adam Wazny
Thursday June 20, 2013
President David Chartrand says he spent 15 years unsuccessfully negotiating to regain the Bell of Batoche. (Sean Kilpatrick/The Canadian Press Archives)

Years of mistrust surrounding the Bell of Batoche have left the mysterious piece of Canadian history tarnished, says the head of the Manitoba Metis Federation.

MMF president David Chartrand was less than impressed with the news the famous silver bell is about to be unveiled later this summer. It was stolen from the Métis settlement of Batoche, Sask., by Canadian troops following the final battle of the Northwest Rebellion in 1885 and lifted once again from a Royal Canadian Legion hall in Millbrook, Ont., in 1991, only to be out of sight for the next 22 years.
The Bell of Batoche was taken from Saskatchewan to Millbrook, Ontario in 1885, It was in Ontario until it was 'stolen' in October 1991. (Handout)

Union Nationale Métisse Saint-Joseph du Manitoba (UNMSJM) has scheduled a Friday press conference to reveal details of the bell. Details of the announcement remain scarce, but it's believed the organization has assumed informal custody of the artifact and it will be a part of a parish mass next month at Saint Antoine-de-Padoue, the Catholic church in Batoche from which it was stolen in 1885.

"We've got an announcement prepared as to the bell, what's going to happen to it and where it's going to go," said UNMSJM elder Guy Savoie, who added the group has been negotiating with the bell's keeper for a long time. "He's disposed to return the bell, and this is what the announcement is."

It stands to be an important moment for the Métis community: a piece of history taken at an important time in Canada's past, now returned to its place of origin. But for Chartrand, the bell represents little, due to his attempt to secure it after it mysteriously disappeared from the Millbrook legion.

'The people who have had it all this time are a bunch of thieves'

-- MMF president David Chartrand, who isn't celebrating the unveiling of the Bell of Batoche

"The people who have had it all this time are a bunch of thieves," Chartrand said, adding he knows who has held the bell for the last 22 years but cannot identify the person for fear of legal repercussions.

"It should have been handed over as soon as they had it. Any historic connection to the bell... they've robbed us of that, they've tarnished that. To me, the bell has really lost its lustre."

Chartrand said he was in talks with the bell's keeper for the last 15 years, trying to settle on a deal that would be fair for all parties involved. "They had no excuse not to part with it," he said, noting the legion, RCMP and representatives of the Manitoba and Saskatchewan governments were involved in the various stages of negotiations."

At one point, Chartrand reached an agreement for $17,000 with the bell's keeper. Whenever a deal was close, more money was demanded, he said.

"At one time, it was a true Robin Hood story: stolen from us, stolen back for the people," he said. "Years later, it's nothing but an attempt of someone trying to make a few bucks for being a thief. From my perspective, whoever has the bell... they can keep it."

Chartrand, who floated the idea that a duplicate bell could have been forged during the last two decades, wasn't sure how the UNMSJM brokered a deal to secure it.

While Chartrand may not feel a connection to the bell, there are some who do. Darren Prefontaine, an author and researcher with the Saskatoon-based Gabriel Dumont Institute, the education arm of the Métis nation in Saskatchewan, calls the return of the bell "a significant moment" for a community that was generally ostracized by the rest of the country.

"It became such a symbol of loss," he said. "It was not only taken from them, but the years following the battle were extremely difficult. (The 1885 battle) really hardened some negative positions in Anglo-Canada regarding the Métis community and First Nations people in general. Having the bell back won't erase what happened, but it will help move things forward."

Roland Bohr, an associate professor in the history department at the University of Winnipeg, suggests the return of the Bell of Batoche could be another bridge between Canada and the Métis community.

"We're all Canadians at this point, right? This is a part of Métis history, but it's also a part of Canadian history, too," he said.

"Events like this could be the start of more co-operative relations in the future."

With files from The Canadian Press

Republished from the Winnipeg Free Press print edition June 20, 2013 A4

Wednesday, June 19, 2013

One lawyer telling another to .... off. Love it!

How to write a great response to a cease and desist letter
By Staci Zaretsky
June 18, 2013
In case you don’t know by now, many lawyers — maybe even you — enjoy writing cease and desist letters in a foreign language called legalese. This exotic tongue often contains Latin phrases, SAT vocabulary words, and various here-and-there words (e.g., herein, heretofore, hereinafter, hereunder, thereof, thereto, therewith, thereunder, therefor, thereon, and therefrom).
A person unfamiliar with legalese may become frightened and run to another attorney for help in deciphering this mystical language of lawyerly legend. The lawyer who has been tasked with translating legalese to English may then become annoyed, and issue a scathingly funny letter in return.

For an example of how to write a great response to a cease and desist letter, keep reading…
Jake Freivald, a resident of West Orange, New Jersey who once ran for town council and lost, started, a rudimentary website that provides basic information about the town, like “places to talk [online]” and “places to get news.” It doesn’t look like a site that’s sponsored by West Orange in any way, shape, or form — unless the town hired middle schoolers to create its online presence.
That said, not long after he started the site, Freivald received a demand letter from Richard D. Trenk, the township attorney for West Orange (and an alum of my alma mater). Here is Trenk’s cease and desist letter (retyped online by Freivald, who added sics where necessary to indicate errors in the original):

Dear Mr. Freivald:
I am the Township Attorney for the Township of West Orange ("Township"). It has come to out attention that, on or about May 13, 2013, you registered and began to use the domain name "" (the "Info Domain"). The Township interprets this action as an effort by you to confuse and conflate the Township's official domain name nad Web site with the Info Domain that you maintain.

The use of the Township's name is unauthorized and is likely to cause confusion [sic], mistake or to deceive the public and may be a violation of the Township's federally protected rights. The Info Domain falsely creates the impression that the Township is associated or affiliated with the Info Domain. At the minimum, this action has been taken with constructive knowledge of the Township's name and Web site, and constitutes bat faith use of the Info Domain.

Accordingly, the Township that you cease and desist from use, ownership and maintenance of the Infor Domain. The Township further demands that, within ten (10) days, the Info Domain be withdrawn from the current registrar, and that you cease all current and future use of the Info Domain, or anything else confusingly similar thereto.

The Township reserves all rights and remedies.

Please be guided accordingly.

Very truly yours,
Richard D. Trenk, Township Attorney

We hope you didn't get "confused" by that. Freinvald's lawyer, Stephen B. Kaplitt - formerly of Weil Gotshal, Cadwalader, the US State Department, and Beacon Financial - wasn't and it looks like he was "guided accordingly" (Don't you hate that phrase?) when he penned this fantastic response (for a larger view click here):  

Tuesday, June 18, 2013

Functionally illiterate judges and lawyers!

Good Day Readers:

CyberSmokeBlog on its travels has encountered one veteran attorney who plays fast and lose with the apostrophe likely confusing it with one of Christ's 12 apostles. Or what about the solicitor who was in love with 30 line plus paragraphs failing to realize good business writing dictates 6-7 lines for a couple very simple reasons:

(1) The optics are much, much better for the reader
(2) More importantly, individuals absorb more if delivered in smaller bits and pieces

Does the problem lie with law faculties that fail to give aspiring lawyers a basic course in Writing 101?

It's been said if you can't explain a situation no matter how complex on one page in a way easily understood by everyone do you really understand the issue?

Clare L. Pieuk
Clarity in the courts: Justices to to writing school
Word by word judges are learning how to write decisions that even their neighbours can understand 

By Tracey Tyler/Legal Affairs Reporter
Friday, August 5, 2011
Justice Adele Kent of the Alberta Court of Queen's Bench in her home office. She sits in a writing chair owned by her father Parker Kent. (Larry MacDougal/for the Toronto Star)

Jim Raymond picks up his French-made Buffet clarinet, known for its rich, buttery sound. He moistens the reed and plays the sweetly familiar opening notes of “When the Saints Go Marching In.”
The former Alabama English professor is in a conference room deep in the Laurentians, demonstrating how the structure of music or writing is a big part of whether it grabs people.
Tamely follow the score and you could be uninspiring; stray into the madness of freestyle jazz and you risk losing your audience.
It’s an important lesson for the men and women around him, who are about to join the ranks of Canada’s most influential writers.

It’s an important lesson for the men and women around him, who are about to join the ranks of Canada’s most influential writers.

Their names don't appear on bestseller lists, but their words carry the greatest weight.

Not guilty.

I award custody to the children of their father.

Excluding gays and lestians from marriage violates their right to equality.

Raymond's pupils are newly appointed judges attending a seminar on writing judgments, one of several held in Canada each year. A week-long program for federal judges.

No one disputes they have fascinating raw material to work with.

"The law's dramatic," says Justice George Strathy of Ontario's Superior Court. "There are important stories, important issues and in many cases, big problems for ordinary people."

The trouble is, for the longest time, few could understand what judges were saying.

Around the world, the legal writing tradition hasn't been much to write home about.

Thirty years ago this summer, as a group of judges sat down for the first judgment-writing program in the country. Justice Brian Dickson of the Supreme Court of Canada delivered a bluntly worded evaluation of the problem. 

Judges decisions, he said, affect thousands and should be understood by all who read them. But the writing drives them away.
It’s dull, wordy, confusing.
Instead of English, the public gets Latin. Actus interveniens. Res non ipsa loquitur.
You wouldn’t think judges would have to learn how to write, what with their education and years as lawyers.
The difficulties, says Raymond, begin in law school, where their sense of story is extinguished by thickets of case law.
When they become judges, he says, they start replicating the bad writing they’ve absorbed.
“What is needed is clear, succinct, forceful writing,” Dickson encouraged them in 1981. “Rub away every muddy word.”
There were many reasons for improving.
Canada was entering a new era, with judges and their rulings taking centre stage.
The Charter of Rights and Freedoms would be signed into law the following spring, giving judges a prominent role in resolving major social and political issues — everything from abortion access to Quebec independence.
Expectations of government were changing, too, on both sides of the border. In the aftermath of Watergate, people wanted greater accountability from institutions, including courts.
And courts account to the public through their judgments; it’s how they speak.
To help them find their voice, they turned to Shakespearean scholars and Victorian literature experts. They’ve invited actors to educate them on body language — and how it can help or hinder them in the courtroom, including when they’re delivering their judgments orally.
The culture is shifting.
Instead of writing with only lawyers or appeal courts in mind, many judges now consider their most important readers to be the public — and the losing party.
Justice Jeremy Nightingale, who presides in Meadow Lake, Saskatchewan and northern fly-in communities, is an example of how far things have come.
He often gives copies of his decisions to his neighbour, a farmer, to make sure they’re readable.
“I want someone with little or no education to understand what I’m doing,” Nightingale said.
And that raises an unusual new controversy.
In a quest to hook their readers, can judges go too far? To some of their colleagues, a few judges are enjoying the writing process a bit too much, turning out prose worthy of a detective novel and crossing a line into bad taste.
All judges have their writing quirks and rituals.
“I usually have a cup of tea or coffee at hand,” said Chief Justice Beverley McLachlin, who often writes at her cottage.
Justice Fran Kiteley writes upstairs at home in her mustard-coloured study. “The only way I can think is at the keyboard,” she says.
Not so with Justice John Laskin of the Ontario Court of Appeal, who writes in longhand, often at a downtown Toronto Starbucks, fuelled by a tall cup of bold.
Streetcars clang by and there’s a parade of customers, but it’s a place where Laskin feels he can disappear.
“To write effectively, I have to feel that I am alone,” he says. “Although Starbucks is a public place, I feel that I am by myself there. I sit by myself; no one knows or interrupts me.”
Laskin has authored decisions on everything from journalists and their sources to Conrad Black’s battle to retain Canadian citizenship while sitting in the House of Lords. When he writes, he pictures the judgment being read by his well-informed neighbour, Mary Ellen.
Admired for his clear, elegant writing, Laskin often teaches the subject and co-chairs this week’s advanced judgment writing program in Toronto, sponsored by the National Judicial Institute and the Canadian Institute for the Administration of Justice.
It didn’t all come naturally, even though he grew up with a powerful writer as a father — Canada’s Chief Justice, Bora Laskin, who knocked off decisions in a basement office nicknamed “the dungeon,” emerging sometimes for a sardine-and-onion sandwich.
After following his father into the profession, Laskin spent more than 20 years on Bay Street and took pride in writing his own factums.
He became a judge in 1994 and brought one of his first decisions to a judgment writing course, a case about a Toronto lawyer found in contempt of court.
Legal writing professor Raymond liked how he drew readers in with a simple beginning, but told Laskin to cut the 28 page decision in half.
Laskin said it was impossible. Five days later, it had it down to 15 pages.
Judges don’t have editors, although Laskin has suggested hiring one at the Court of Appeal.
For now they rely on their law clerks, secretaries and skills they learn in judgment-writing programs, the oldest of which takes place in Montreal each June during the jazz festival.
Judges spend their days holed up in a conference room, where a glossy white board sticks to the wall like a giant post-it note.
Lisa Surridge, a Victorian literature expert and head of the University of Victoria’s English department, writes the letters WDWTW on the board with a marker.
Who Did What To Whom.
Surridge tells judges it’s their job to answer those questions in their introduction, which serves as a roadmap for readers.
A judgment needs organization.
For some, it’s an awakening. Judges often believe that dispensing with Latin and using plain English is the key to good writing, said Ed Berry, a retired University of Victoria Shakespeare scholar who now teaches judgment writing in Canada and abroad.
But it goes beyond that. Use subheadings to set up issues, judges are advised. Description makes things vivid, but don’t overwhelm with details. Instead of calling someone “the respondent” or “appellant,” try using their name.
The programs include lectures and workshops. Raymond tells judges their jobs are “like a secular priesthood,” and clear judgments honour their “sacred trust” with the public.
They also have a duty to provide clear and meaningful decisions.
The Supreme Court of Canada said so in 2002 after Colin Sheppard’s unfortunate brush with the justice system.
A Newfoundland carpenter with no record, Sheppard was charged with theft after his ex-girlfriend claimed he confessed to stealing two windows worth $429. The only evidence was her testimony. She went to police two days after they broke up and she vowed to “get him.”
Despite the weaknesses in the case, a trial judge convicted Sheppard in a one-line decision. “Having considered all the testimony in this case,” he said, “I find the defendant guilty as charged.”
In setting aside Sheppard’s conviction, the Supreme Court told judges boilerplate reasons aren’t good enough; They have to analyze evidence and explain why they’re accepting or rejecting it.
Since then, other social and cultural developments have elevated the importance of well-written decisions. One is the Internet. Judgments are often posted online almost immediately, without passing through a journalist’s filter.
Another development: the steady rise in the number of people representing themselves in court, without a lawyer to explain the ramifications of a ruling.
Surridge feels her writing know-how can make a difference to the country, corny as it sounds.
“I truly feel that. I do it partly as a kind of service to a fair and democratic society.”
Part of her work involves sitting down with judges and going through hard copies of their decisions, drawing attention to words that suggest bias. One judge described an accused man as an 88-year-old Status Indian charged with sexual assault.
“What’s being a Status Indian got to do with it?” Surridge questioned. “Why does it matter?”
“You know,” the judge replied. “It doesn’t.”
Justice delayed is justice denied may be a cliché, but if you’re stuck in jail or awaiting child support, you want a judge to rule quickly. Yet some linger past their best before date. Earlier this week, the Ontario Court of Appeal ordered a new trial in a gun case because Justice Susanne Goodman kept two accused men and the public waiting more than two years for her reasons for judgment, compromising the integrity of her decision.
The Canadian Judicial Council recommends judges take no longer than six months to issue a judgment. In a 2003 book for judges entitled The Most Important Thing is to Begin, Kiteley suggests if procrastination is chronic, they should look inward and ask why.
Did the lawyers do a poor job of explaining issues? Were you unwell during the trial and confused by arguments? Are you nervous about media coverage your decision might attract?
The symptoms are familiar to anyone who has put off a dreaded task: feeling ill when you think about it and doing anything but writing, such as shopping, playing computer games and watching TV, Kiteley said.
At the Ontario Court of Appeal, they keep tabs on procrastinators with a “reserve judgment list,” a sheet of paper listing unfinished rulings.
Judges with backlogs can be removed from cases, which has happened once.
Earlier this year, Justice David Watt released a decision that had been on hold seven months, a case about a natural gas explosion that killed seven at a west Toronto plaza.
Watt seemed to have worked hard on the writing, and that’s what set people talking.
His formerly fluid prose had given way to sentence fragments — staccato bursts that would feel at home in a Mickey Spillane crime novel.
“Explosions damage and destroy things,” he wrote.
“Sometimes, their victims are people. Like here. An explosion damaged and destroyed several buildings. Hurt some people too. And killed others. This explosion was preventable, if only. . .”
Many judges and lawyers didn’t like it, with some complaining privately he should be reported to the judicial council.
“So disrespectful to the litigants.”
“Seven people died.”
Watt’s sequel was a murder appeal known as R. v. Flores.
“They met in a bar in London,” he began. “Melvin Flores and Cindy MacDonald. Soon, they became lovers.”
“Early one morning in June 2006, Melvin Flores closed the book on his relationship with Cindy MacDonald. With a butcher knife embedded in Cindy’s back. Fifty-three blunt force injuries.”
Raymond, who knows Watt, wasn’t offended or surprised.
“David loves detective stories,” he said.
But many felt it was in poor taste because Watt appeared to be having fun writing about a tragedy.
It wasn’t the first example of colourful judicial writing. In fact, Watt was following in the path of none other than U.S. Chief Justice John Roberts in a dissenting 2008 opinion on police arrest powers.
“North Philly. May 4, 2001,” Roberts began. “Officer Sean Devlin, narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighbourhood? Tough as a three dollar steak.”
In Canada, Master Michael Funduk, a judicial officer with Alberta’s Court of Queen’s Bench, entrenched his reputation for entertaining judgments with a one-liner a 1989 ruling in a construction dispute. Funduk was explaining he had no authority to overturn an earlier decision by a judge, who was higher up the ladder.
“The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.”
Then there was Justice Joe Quinn. Before retiring from Superior Court in Hamilton last year, Quinn offered up these words about a couple locked in a volatile custody dispute.
“Paging Dr. Freud. Paging Dr. Freud,” he opened. “This is yet another case that reveals the ineffectiveness of family court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention.”
Some judges worry they should be exuding “gravitas” and won’t do that if they write engagingly, said Raymond.
That’s not true, he says, but mistakes can happen.
“Once it has that quality of, ‘Look Ma, I’m writing,’ then it’s crossing the line.”
“They just need to back down a bit.”
Just as their writing voice projects a certain tone, a judge’s speaking voice and mannerisms can shape public perceptions of the court system.
For Justice Joseph Bovard, it was his “resting face.”
The hardened expression he wore in court made him appear stern and slightly upset, Bovard discovered during an educational program about the physical dimensions of “judicial communication.”
The programs bring judges together with instructors such as Berry and veteran Canadian stage actress Kate Trotter, of Little Mosque on the Prairie. With their colleagues assessing their performance from the sidelines, judges write and deliver judgments verbally in fictitious cases.
Some involve highly charged scenarios such as the sentencing of a sex offender while outraged community members sit and watch.
“The courtroom is a very comfortable place for us,” says Justice Katherine McLeod of the Ontario Court of Justice in Brampton. “You sometimes forget that everybody is watching you. So it’s not a good idea to scratch your nose or roll your eyes.”
Bovard, who presides at old city hall, says the programs are valuable because judges normally get no feedback.
“It’s not a big kumbaya moment or anything,” he said. “But . . . in real life, nobody is going to tell you, ‘Judge Bovard, you mumble too much,’ or ‘Did you know you were looking around at the ceiling when counsel were talking?’”
Bovard has tried to look less foreboding and notices his court runs more smoothly.
“Before, if I got into a fight with some motorist on the way to work and been in a huff about it, I’d just throw my robes on and go into court.”
Now “before I go into court, I do a quick mental check. ‘Okay, How am I feeling? Did I get stuck in traffic today? Am I projecting a frustrated and angry mood?’
“If the answer is yes, then I kind of say, ‘Okay, Just relax. Go in. And be positive.’ ”
That new sense of awareness is starting to hit judges in other countries. Many now come to Canada to attend the programs or fly the experts there.
The message, it seems, is universal. There’s a narrative unfolding in the courtroom.
“The courses,” said Kiteley, “have really driven home to judges that we have a story to tell.”
Five Writers You (Probably) Didn’t Know
They doodle, consume lots of tea and surround themselves with sentimental objects. Judges change lives with the words they put to paper, but we know little about them or how they work. Here’s a rare peek behind the scenes:
  When Justice Adele Kent writes decisions she’s often sipping South African Kwazulu tea purchased online and sitting on the chair used by her father, Parker Kent, when he was associate editor of the Calgary Herald. A judge on Alberta’s Court of Queen’s Bench, Kent’s high-profile cases include the 2008 trial of Jeremy Steinke, convicted of killing his 12-year-old girlfriend’s parents and 8-year-old brother. Storytelling could be in her blood; Kent’s four siblings were journalists, including “scud stud” Arthur Kent and federal environment minister Peter Kent.
  Justice George Strathy of the Superior Court of Justice, considered one of the court’s finest writers, oversees class action cases in Toronto. He works in his courthouse office, beneath a portrait by Norval Morrisseau. His ruling on access to the cockpit voice recorder from the Air France plane that crashed at Pearson airport in 2005 captured the harrowing drama: “As the aircraft crossed the “threshold” of the runway, the rain intensified and there were numerous lightning strikes. The first officer wrestled with the controls to keep the massive Airbus on course . . . the CVR was like an electronic fly on the cockpit wall.”
  Justice Katherine McLeod of the Ontario Court of Justice in Brampton uses a desk that once belonged to her daughter and a chair discovered hanging from the ceiling of an antique shop and recovered for $35. Her cases run the gamut, from shady tax preparers to terrible industrial accidents. While some judges plunge into writing decisions as soon as a trial is over, McLeod often likes to think about them while walking her dog or cooking dinner. “Very often at the end of the day I’m beat and I don’t want to have anything more in my brain. I let it marinate.”
  “On a rainy autumn Saturday in 1994, five hunters of the Buffalo River Dene Nation boarded a DeHavilland single Otter which carried them, their canoe and their hopes for the fall moose hunt from Buffalo Narrows.” So began a ruling by Justice Jeremy Nightingale on hunting rights. All judgments begin with courtroom note-taking and Nightingale, a Saskatchewan provincial court judge, has devised his own shorthand; he doodles a crown for the prosecution and an upside down triangle for the defence. He writes surrounded by two pictures of his wife, Brenda, in Waterton Lakes National Park and paddling in the Rockies.
  Justice Gary Trotter writes on a glass desk in his Toronto waterfront condo, sometimes emails paragraphs to himself via BlackBerry and drinks coffee with artificial sweetener. In his former life as a Crown attorney and law professor, Trotter wrote books on bail and sentencing. He enjoys novelist John Irving’s wit. While some judges put their law clerks to work proofreading decisions, Trotter enlists his secretary, Cathy Lanni.
Manuscript Makeover
Judgment-writing programs encourage judges to adopt a more reader-friendly style. Here’s a “before and after” example from writing instructor Jim Raymond.
BEFORE: “This is the Applicant’s application for judicial review of the decision of the Minister of National Revenue pursuant to subsection 220 (3.1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended (the “Act”), denying the waiver of penalties and interest otherwise payable under the Act for the 1993 to 1996 taxation years, inclusive.”
AFTER: “John Robertson is a lawyer who ran into tax problems when he left his partnership in 1996. Mr. Robertson could have elected to defer his unbilled hours to his new law practice, but instead he reported them as taxable. He then failed to pay the tax due.”
The Secret Language of Judgments
Judges aspire to clear decisions, but sometimes being obtuse is more polite. Here are euphemisms that crop up regularly in court decisions:
“I would not give effect to this ground of appeal.” Translation: You are dead wrong.
“The defendant advances a number of arguments. I find it necessary to deal with only one.” Translation: The other arguments were really stupid.
“Despite Ms. Smith’s able argument . . . ” Translation: Ms. Smith is about to lose the case.