Sounds like a great parody

Sounds like a great parody for a Liberal attack ad.

They could even enlist Warren Kinsella to write the script, the same Liberal pitt bull who scared Canadians about an imminent homegrown neo-Nazi threat back in the nineties.

Too bad politics have devolved to painting your opponents as bogey men. Ideas used to be important.

I'm all for insulating court appointments from interference, but we have to remember the concerns about judicial activism that sparked this whole thing.

There is a strong body of opinion that hold that the "legal class" has become ideologically homogenous, and that this "déformation professionelle" is changing the nature of Canadian justice.

There are other ways.

British Columbia's system of judicial appointment is certainly superior to the federal model.

However, both pale in comparison with a different paradigm, used in many countries, where judges are chosen from professionals trained to be judges and not just lawyers.

The idea that a dozen years as a corporate gopher, an academic, or even legal a bureaucrat with the Ministry of the Attorney General is any kind of a qualification to make decisions in a court of law about people's lives is actually pretty funny.

errata

Last sentence should read: ...or even a legal bureaucrat with the Ministry of the Attorney General...

Democracy needs an independent judiciary

A while back, a Vancouver Sun columnist , I believe it was Jonathan Manthorpe, made a very " to the point comment" re: Democracies and (2) of their key components.

These Keys -to -Democracy are : (i) a Healthy economy and ( ii ) an Indepedendent Judiciary.

He used China as an example...it has a vibrant economy, but it does not have an independent judiciary, hence NOT a democracy.

When Campbell and Alcan's deal collapsed before the regulatory bodies, I personally was very glad. First, an independent body did its job. Second, to be blunt, I am surprised that Campbell and Alcan even bothered...they should have weighed the odds of success, now " egg on face " .

If one reviews Court Cases on -line, I myself see a fair bit of independence by the judiciary, and some , shall we say " ballsy - moves" were made by the juiciary which in my view does protect both society and the individual. In fact, often the determined "Little Guy" up against Big Brother often puts Gov't in a bad light...with Gov't as effectively judged as a dim -witted bully.

However, the crucial facet is eternal vigilance by the very citizens that make up the given democracy. Without that, governance inevitably morphs and evolves by default into the very non -Democracies we fear .

Confusion

Hearings before the Utilities Commission are not judicial hearings. The Alcan decision is now being appealed.

The Provincial Court is appointed through the procedure Rafe describes and approves of.

You need to learn a little more about how the system works.

Members of the Supreme and Appellate courts are not provincial appointees.

Your last paragraph is meaningless.

Rafe has it all wrong re.

Rafe has it all wrong re. judges. Please read Lorne Gunter's column to be set straight:

http://www.canada.com/nationalpost/columnists/story.html?id=e1facc12-5771-404c-b778-cbdecafd4c42

Red Herring:

Sorry Dude, the b-a-s-i-c-s are I-N-D-E-P-E-N-D-E-N-C-E of the given adjudication bodies ....whether they be Judicial or QUASI -Judicial...et al.

It's the independence both in - effect and formally employed when the rubber hits the Legal road that is I-M-P-O-R-T-A-N-T.

How they obtain the position should be a " moot- point " when the adjudication process formally commences and they are all hopefully reading from the SAME rule book.

Otherwise its simply " Marsupial " Court.

Regardless, you are implying that every Court -appointee 100% tows -the -line of those that appoint them ? I disagree.

Also, gee what a surpise, judicial appointments at a Federal level "may" tend to be(..."cue" Drrrummm Rrroollll.....)POLITICAL ??? ...egad!

The Federal LIEberals wrote the manual on that deck stacking . Given the way Canada has evolved politically , they will always be political appointments, , like everything else.

This poli- culture is likely so entrenched that the best a political leader can do is much like a leadership convention, choose a palatable middle of the road candidate. However, unlike politics, they still have to apply the Law and are subject to professional peer scrutiny in many ways as a " check and balance " to who actually appointed them and why ....and also as a means to keep the appointee honest as well .

When Trudeau-sky and Jeanie Croutonie made their appointments (noted above) in the midst of evolving situations,(Charter, Charlottetown, etc.) to create the self- serving subjective poli-lean..it sure didn't appear Non- cherry picked , did it ? The LIEberals could actually give the Americans some lessons in this BS.

However, when the judiciary are part of the mixing and pouring the various " new societal cements " such as the Charter etc. is when it gets interesting. After this type of poli- cement has hardened into law and policy etc., its usually too late...often it's jackhammer proof.

Then the other judges simply apply it, given they have a new legal foundation to work with.

PS Thus...Jury sez YOUR last sentence is USE-less

Lorne Gunter

I don't think Rafe was ever disagreeing that the Liberals used their power to appoint judges to address their own agenda. As to the legal profession in this country being left wing? That, like most everything Gunter writes, is horse feathers and he knows it.

Lorne Gunter's diatribe notwithstanding, it seems MR Harper is, by his own admission, just doing exactly the same sort of thing.

Rafe has it exactly right and quoting the National Post, is, as usual, nothing more than asking readers to have herring for lunch.

No thanks. Gunter, like Harper, isn't interested in impartiality or judicial independence; they both just want the right wing to have their innings with as little attention to it as possible. Just like David Emerson's defection, and Belinda Stronach's before his, the Liberals and the Conservatives are not really very different anyway. They're both primarily concerned with making sure the boys with the money continue to run the country in ways that work best for the top 5% of the society.

The rest of us, no problem, they only have to fool another 25%-30% of us every four years to keep the scam alive. Bring on some real electoral reform and this country will change overnight.

definition please

What are quote]societal cements

?

try that again

What are

?

Societal cements: Laws ,

Societal cements:

Laws , policies, regulations that didn't previously exist. ie the CHARTER and new CONSTITUTION didn't exist till the 1980's.

Don't recall a major mandate/demand by the public to have them .

Someone named "Pete" took it upon themselves while in power to create them and to do so also getting the key cementing ingredients deemed necessary.

You add to the societal cement mixer(Gov't) the usual components ie whatever it takes and is also highly reliant on an often apathetic/ignorant Public.

Next, go through the existing required steps...and once it is passed ie "hardens" and thus becomes permanent ..... Voila' !!!

Serves 30,000 000 + !!!

Didn't Shawiniganie Jeanie Croutonie once say " its tough to UNscramble an egg..." and he was only referring to the GST ?

So... recipe = get in power, stack the deck , if the agenda is that any/all major, law policy etc. needs to be passed, all the while knowing that UNdoing it later after the "cement" is set is literally impossible.

Hence , we now have " societal cement ", as opposed to societal "milk and eggs" or societal " bread" ie short shelf life/easily tossed out.

RE: "new" societal cement ...is self- explanatory in light of the aforementioned.

That's what I thought

You're still just spinning your tires.

I thought the market for nonsense was saturated.

Last time I'll try to read anything you produce

All Seeing ? Si ! :

Ulci:

T.G.I.M.

Hey dude.....Why stray from the norm....that means Hell would have frozen over...and then all the resident L$fties with permanent time -share down there would escape.

Congrats: You've again kept the status- quo ie natural balance with your Ulci modus - operandi.

Good on ya.

BTW : If you ever do have an original thought and something remotely approaching a rebuttal...that may also may also result in Beelzebubs' minions perma -parole.

PS Remember...time for more Ulci condescending-sky , ....and rally the posse'.

Careful now...thou art on thin ice. Oops ! Damnation !

Non-ratification is the key...

The FIBeral government has been flying by the seat of its pants on legal issues raised in the Canada Act and attached Charter ever sine the non-ratification of the Act by Quebec.

Essentially we are 'governed' at the PMO's whim (meaning whatever they think they can get away with they will do); and the total lack of accountability of the supreme court of the land is just continuing to support the modern version of the family compact. This is why any good or effective ideas from the west must first pass thru the unseen star-chamber in the east before being allowed into the discussion in the halls of power in Ottawa.

The sooner BC and Alberta realize that the BNA is the only law of the land that can still be used to rest anything on ~ the better. As the Confederation act, 1867 has supposedly been superceeded, yet not ratified by all participants, and this is seen as not a problem by?

Guess who?

Yup, the supreme court of canada.

Time to call a halt to the dance and leave with our instruments before they all get sold by the eastern band leader.

The Myth of Judicial Independence

However, both pale in comparison with a different paradigm, used in many countries, where judges are chosen from professionals trained to be judges and not just lawyers.

This would appear to be what we need. I am curious to know in which countries this is the practice, and also to understand the implications for the oft-cited principles of "independence" and "impartiality". Having dealt with about sixteen adjudicators, including six superior court judges, I have reached some very strong conclusions about the lack of independence and impartiality of adjudicators in the Canadian justice system.

The Canadian problem seems to be a cultural one that begins with the law schools. An LLB seems to be a ticket into a world of potentially unlimited power and influence. As a self-represented litigant whose legal adversaries are virtually all members of the legal profession, I think the famous quotation with which Rafe begins his article may serve me rather well in opening my next argument.

Some information on judicial education

Ukraine:
http://aj.court.gov.ua/eng/conception.php

Here’s some information from the National Judicial School of France:
http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/FrenchEducation.pdf

And something of more general European interest:
http://www.ejtn.net/www/en/html/index.htm

http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTLAWJUSTINST/0,,contentMDK:20756081~menuPK:2035840~pagePK:210058~piPK:210062~theSitePK:1974062,00.html

Scotland and England have much better systems of legal education than we have in Canada. The separation of functions into barrister and solicitor designations also tends to create a system wherein appointed judges are chosen from a much smaller and more select group of really qualified practitioners than is the case here, in my view.

Have a look sometime, and note how many provincial court judges come from the Attorney-General's ministry - many of whom have had minimal experience in litigation.

Even so, many Canadian judges are excellent and those who wish to do so can avail themselves of all kinds of opportunities for continuing judicial education.

Selection of judges for a matter

OK, this raises another interesting question for me. When I finally found my way to the Court of Appeal, like any naïve citizen I was expecting to be facing some very impressive intellects and people with unquestionable integrity. As it turned out the case had already been decided and submissions were unnecessary. I was appalled at the way the hearing was run as well as at the judgement (http://www.courts.gov.bc.ca/jdb-txt/ca/03/06/2003bcca0605.htm), which thoroughly and deliberately misrepresented the case.

I subsequently found a paper that had been presented by the spokesperson for the bench at a conference of the BC Council of Administrative Tribunals (www.bccat.net), which was relevant because the appeal was of a judicial review of an LRB decision that the Supreme Court had found in my favour. Had I known of that paper before the hearing and suspected what I would be facing I would have challenged that judge’s right to hear the case.

I have had occasion to speak with a few other self-represented litigants who believe that they have faced judges who were specifically selected for their cases because they would be willing to put political considerations before the law and the facts. At one time I thought that was rather far-fetched. Now I must give the notion some credence.

So the question is, what exactly is the process by which judges are chosen to hear each case? Is it consistent? Is it immune from abuse?

ChrisB

Now THAT, is a good question.

Maybe Rafe will pick up on it.

Here's the program they use

http://www.openroad.ca/work/scss

The Real Story on the Injustice Industry

Here is a superb article that explains the real nature and extent of the problem in the U.S. Is the situation in Canada much different?

This author says there is now a grassroots reform movement in the U.S.,
"JAIL for Judges", that has the potential to restore democracy.

http://bannedinamerica.blogspot.com/2006/01/grass-roots-us-resistance-to-bribed.html

Choice of judges

Having myself been faced with a judge who was clearly hostile to my position, plus a few other circumstantial manipulations, I too have little faith in a justice system which is so easily rigged by insiders.

Thus, I add my voice to ChrisB and G West's :

Go for it, Rafe.

ME 2, Chris B

Subject to Rafe's clarification, the answer to your question is, as I understand it, that assignment of cases is the responsibility of the chief judge or his/her designate (in the chief judge's absence) in each court division. Appellate courts may have a different ratio and sometimes such hearings take place before more than one justice; even so, the input of the chief judge would be critical.
I would think the chief judge also decides which cases he or she will handle personally.

Again, subject to clarification, the decision would be made (at least ostensibly) on the basis of particular expertise, knowledge, continuity and in keeping with scheduling considerations and courtroom availability as well as the anticipated length of the hearing process involved.

It is not, in any sense, a random exercise.

Again, subject to Rafe's clarification, I would expect that any justice who had a 'personal' connection with a particular case, the defendant and/or the plaintiff, would be expected to recuse him or herself at the outset.

Can't answer your more pointed queries: Other than to say that most human enterprises are not immune from abuse.

abuse of process

G West, this is not one of your better posts. Basically, all you've said is that the assignment for each case is entirely up to the whim of the Chief Justice, based on whatever criteria he or she chooses to consider. If that doesn't describe a random exercise, it certainly comes damned close. And it sounds much the same as the judicial appointment process that is the subject of so much heated (but in my view also unproductive) debate right now.

It would also tend to support the theory some self-represented litigants have that the parties they are facing may be able to influence the selection of judges.

If you accept abuse of process as an inevitable fact of life, good luck. I do not. To clarify something I said earlier, the judge who acted as spokesperson for the Court of Appeal bench that overturned my sole success had attended the BCCAT annual conference in 1999 and presented a paper entitled "Know Thyself: Some Thoughts About Impartiality of Administrative Decision-makers From an Interested Observer" (published in Volume 13 of the Canadian Journal of Administrative Law & Practice). Had I read it before the hearing and known what I do today about the true agenda and attitude of our judges, on the basis of the substance of this paper I would have called for her to remove herself from the bench.

As I have mentioned before, I knew that on the same day I was in court one of her Court of Appeal colleagues was scheduled to deliver another paper at the BCCAT conference, entitled "Surviving the Unrepresented Litigant". I didn't have the courage to raise that matter during the hearing. I now wish I had done so, and most certainly will the next time that court faces me. I subsequently asked that judge for a copy of his paper and he refused, saying it was not suitable for public consumption (despite the fact that such papers are routinely published in journals such as the one cited above). If anyone knows how we can get hold of it, let me know.

My view, based on everything I have personally experienced, and on the testimony of others, is that the majority of judges are thoroughly contemptuous of self-represented litigants, and furthermore that they are not reluctant to display that contempt in the courtroom.

The Juiceary

I can just see these poor over work ,under paid, bearers of justice, sitting around a table, in a dark room, dim light hanging overhead ,ties loosen, sweat beading down their frown brows , empty whiskey, scotch bottles laying about, a deck of card lays on the table, a whisky cracked voice speaks out, OK FELLAS, HIGH CARD GETS TO SEND BETTY KRAWCZYK UP THE CREEK.heh,heh,, yea, we’ll show her not to screw with us., Judge slim pipes up I see you let those drug dealers off the other day? Judge Pisser replies. Had to, those stupid cops never gave those poor dealers enough sugar for their coffee, total abuse of their rights far as I’m concerned.

Chris B

Not quite sure what you'd have me say. All I've given you is a description of how, given the knowledge I have at hand and after having consulted others on the subject, the system currently works.

I know, understand, and appreciate your frustration at how this system has worked in your particular circumstance. I'm not quite sure what else you'd expect me to say. I'm not a judge; I haven't sat in on the deliberations that happen in chambers when it comes to scheduling cases and assigning judges. I've just described how I understand the system works and ended my post with this:
"Can't answer your more pointed queries: Other than to say that most human enterprises are not immune from abuse."

You might want to recall how Mr Justice Berger got into a lot of trouble with the Canadian Judicial Council and actually resigned his appointment to the Supreme Court of British Columbia.

Berger had intervened in the constitutional debate in 1981 in a way that eventually led to the inclusion of aboriginal and treaty rights in the 1982 amendments to the Canadian Constitution.

The thoughts of the Canadian Judicial Council on these matters can be found here, if you're interested:
http://www.ccm-cjc.gc.ca/cmslib/general/CJC1996-1997_E.pdf

I'm sorry if you thought I wasn't sympathetic, I am. That's one of the reasons why I think we should take the education of our judges out of the hands of law schools and their appointment out of the hands of politicians. Given the warts on the system though, I don't think, in the main, it's the biggest problem we have to deal with right now.

Complaints about the judiciary

The section in the CJC report that covers complaints about judicial behavior extends from page 17 - 32 of the report cited above.

G West

My apologies. No slight intended.

I am aware of the CJC and it's complaint mechanism. Having exercised the right to make other complaints rather thoroughly, I would not anticipate achieving anything with the CJC procedure. (By the way this recent item - http://www.ccm-cjc.gc.ca/cmslib/general/Final-Statement-of-Principles-SRL.pdf - seems to be the CJC's response to an email I sent them in November.)

My Section 12 "complaint" (that's what it is called) was kicked around by ten close friends of the respondents at the Labour Board (I forced one of the LRB Vice Chairs to submit an affidavit in court about his specific relationship with one of the principles in my case - the HR person who had prosecuted the case against me in arbitration). My complaint to the BC Law Society about the union lawyer I held primarily responsible for the failure of that arbitration (which she refused to attend) was dismissed with some stupid comment about how I was not her client (meaning I was truly unrepresented).

It is well understood these days that complaining to the Law Society about lawyers, asking the police to police themselves or asking judges to judge themselves doesn't work. That's what Lord Hewart's famous line was all about.

When I was last in court I presented a great deal of evidence and argument about both abuse of process and obvious absence of impartiality at the LRB. This clearly angered the judge. It was fairly obvious that his reaction was due to the fact that the sad state of affairs at the LRB is duplicated in the courts.

That's not a politically correct thing for anyone to say - especially someone who, like me, is planning soon on returning to court. However, one of the lessons I've learned is about being assertive. Often the response of adjudicators to charges of bias is that the litigant didn't raise the issue at the earliest opportunity. Since I now know that bias is systemic in our so-called justice system, wherever I see evidence of it I am going to be raising it.

The folks on the bench won't like that. I won't make any friends. But I'm not looking for friends. I'm looking for justice ... and accountability.

And I wish you the very best of luck

There are so many things about the so called
'justice' system that deserve another label...

A Matter of Tradition

Ah, that’s what makes this all so amusing. The truth is you can’t make a sow’s ear out of a silk purse.

But there it was again today in The Province. They needed to fill a quarter page, so we have a stock picture of the Chief Justice beside “HARPER IS STACKING THE BENCHES”.

What? He’s moonlighting as a janitor in a Sunday school? No, Ms. McLachlin and her colleagues are allegedly distraught that the PM’s agenda is imperiling the great Canadian tradition of judicial independence. Probably just as well that few readers will even pause in their page turning.

A more real problem is that if you could collect every one of the media’s lamentations about this issue since the change of government you’d find nothing much of substance. Every conceivable aspect of the judicial appointments problem was dissected in a special edition of the Alberta Law Review (Volume 38B) back in 2000, when the Liberals were still in power. There are currently only two items from that ALR volume that are accessible online (without paying a fee) but they are well worth reading to get an appreciation of how thoroughly the topic was covered. Find the Foreword by Anne McLellan, followed by the Introduction by the Guest Editor, F.C. DeCoste, and note the disparity between their perspectives. The real gem is DeCoste’s full article, “Political Corruption, Judicial Selection and the Rule of Law” (with 169 valuable footnotes), that I intend to use in court.

http://www.albertalawreview.com/abstracts/VOLUME38.abs.chart.htm

A big part of the problem

A big part of the problem with lawyers (especially the academic ones that DeCoste talks about) and judges is that they are all very subject to flattery and to reading their own press releases.

Which is akin to drinking their own bathwater.

If we had more Tom Bergers on the bench we'd be in much better shape...but I know that's not likely to happen. There certainly is a democratic deficit in terms of appointments - and Harper's current efforts are no improvement. Even appointments with much shorter terms (say 5 years max) would be an improvement, as would complete transparency with respect to case assignments. In fact, drawing lots would probably be superior to the current method.

Would it be possible to imagine, for example, that Madame Justice Elizabeth Bennett would end up being on the bench for both the Glen Clark case AND the BC Rail Case if the choice had been made at random?

I must admit ...

I must admit to a rather limited knowledge of political issues. (Just to clarify a point, I don't own a television and have no idea what information I may be missing on that medium.) I recognize Tom Berger’s name but do not know his story.

I am curious about your last comment. My impression is that many people, including perhaps some who had no particular affection for Glen Clark, believe he was set up and / or railroaded in the case that seemed to conclude his political career. I don’t know enough to have an opinion on that. One circumstance that I do personally find most bizarre is that he then went to work for Jimmy Pattison. As an immigrant to B.C. who had been aware of this province’s reputation before coming here, my reaction to that was “only in B.C.”. Frankly I entertain the notion that the purpose was to find a safe place to stow a potentially loose cannon.

So this Justice Bennett was assigned his case and the B.C. Rail one? You are referring to the "Legislature Raid" case, which is still dragging on? Like me, I am sure very, very few British Columbians are paying any attention to this stuff. I think to a large degree that is because the press deliberately handles these matters in a manner that makes them indecipherable. Again, I have a vague impression that some of the more informed people believe the judiciary are somehow assisting in a perverse political agenda, but if that is so, how can these things drag on for years without the true facts coming out? Do we have absolutely no one here with any investigative skills? Or is everyone afraid of something?

All good questions - have a look at this:

http://bctrialofbasi-virk.blogspot.com/

Which is a good place to start...

And/or send me an email

CHris H

Hope you'll see this.
Tomorrow, on CBC 690/Almanac, they are going to have BC's chief judge of the Provincial Court on the radio to address the subject of judicial appointments etc.

I sometimes think the CBC gets its ideas from Tyee threads and comments. This is not the first time I've noticed the phenomenon.

And, if they do, it’d be nice if they acknowledged it.

Sorry

Should have been Chris B above.