Premier Smith also demands that there be no federal emissions cap. Alberta’s oil and gas industry must be allowed to emit freely. As for Planet Earth: “Burn, baby, burn!”

She hasn’t yet said if there will be an Alberta Oath of Allegiance in which citizens must deny the existence of global warming. But neither has she ruled it out.

The premier wants her own provincial pension plan and reckons that all of Canada should pay for it. When Alberta was booming and was the go-to place for Canadians wanting to make quick money, these “Albertans” overpaid into the federal pension system. Though a lot of those people are back in Newfoundland, Smith wants their pension payments to flow back into an Alberta Pension Plan. It should be mentioned that few pensionable Albertans want anything to do with Danielle’s Alberta Pension Plan.

Smith and her UCP cozy up to Trump despite the fact that our province could wind up being the next Puerto Rico.

But that’s beside my point. The point is that Smith and her UCP are, generally speaking, gung-ho and fearless. They cozy up to US president Donald Trump despite the fact that our province could wind up being the next Puerto Rico. As Monty Python said in a movie, they (that is, Trump and Co.) fart in Canada’s general direction.

So, fearless—except for one thing. Danielle Smith and her UCP are mortally afraid of being sued.

Back in 1976 Peter Lougheed’s government came up with a policy that slammed the door on future coal mining. When the UCP came into power in 2019, they felt much warmer toward coal. Across the border, on BC’s Elk River, a roaring coal operation was making good money for the BC government—and also making a lot of residual selenium that was killing fish in the rivers. That water shouldn’t be imbibed by humans lest, among other things, their hair falls out.

But none of this dissuaded the brave UCP government when the Australian coal companies came calling, wanting to start new operations along Alberta’s Eastern Slopes. The government founded a committee of investigation to look into new coal mines. Though the committee recommended against it, the UCP rescinded 1976’s Lougheed coal policy anyway. People living downstream from these possible new mines stood up and roared. It would take much more than a column to describe the many facets of that anti-coal resistance. But one example was Lethbridge city council voting nine to zero against coal development upstream of their water supply.

All Alberta’s government had to do at that stage was say no. But, very oddly, they did not. In fact, in all sorts of ways, they’ve said yes. This is where we get back to the subject of fear.

At the suggestion that the Alberta government might back out, Australian coal companies threatened lawsuits. A famous Aussie litigator was dispatched to Alberta. The Aussies also engaged a long-historied Alberta law firm to represent them. In these threatened lawsuits, some rather gaudy financial compensation numbers were floated.

The interesting thing here is that a lot of wise legal heads were saying, “Let the Aussies go ahead and sue.” The history of such suits is that there would indeed be compensation demanded and paid, but that it would be much smaller than the asked-for amounts.

But the UCP government, normally so brave, froze. Deer in the headlights, as we say. Another analogy might be that the government was like a loud braggart who, at the sight of a snake, curls on the ground and cries.

This contradiction sent me into research mode. My question was: is there such a thing as fear of lawsuits And by gosh, there is! Liticaphobia. There’s even a branch of psychiatry that deals with it. Psychotherapy. Hypnotherapy. Prescription drugs. I seriously think the premier and her affected cabinet ministers should seek help. Further into my research, I discovered that liticaphobia is not equally spread across the landscape. There are hotspots. The US as a whole is such a hotspot, globally speaking. And, within the US, the most affected region is the state of Florida.

This was my eureka! moment. Where has Alberta’s premier gone most often of late Florida!  My advice is obvious. Alberta’s politicians should cease going to Florida immediately. It is hoped that, if they follow my advice, they will soon be brave enough to face the Australian miners in court.

Fred Stenson’s many books include the novels Who By Fire, The Trade, Lightning and The Great Karoo.

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Khullar was born in 1964 in Fort Vermilion, a hamlet 660 km north of Edmonton. Her parents had immigrated to Canada from India and worked as teachers in a Mennonite colony in La Crête. When Khullar was in Grade 4, the family moved to Morinville. Khullar attended Old Scona Academic High School in Edmonton, then was an honour student at the University of Alberta and the University of Toronto. After law school, Khullar clerked at the Alberta Court of Queen’s Bench and at the Alberta Court of Appeal—a harbinger of her future justice roles.

In her remarks at her swearing in ceremony as the Chief Justice of the Nunavut Court of Appeal, held in Iqaluit, Khullar showed she’d done her homework by referring to the qulliq, an Inuit lamp that is usually tended by women and associated with their strength and warmth.

The Nunavut Court of Appeal meets three times a year in Iqaluit, while the Court of Appeal of NWT usually sits in Yellowknife. In Edmonton the Court of Appeal sits in the south tower of Sir Winston Churchill Square. In Calgary it sits in two locations, hearing criminal cases at the Calgary Courts Centre and the rest of the appeals—for now—in leased space in the TC Energy Tower. Long-time Calgarians might remember the brouhaha that ensued after asbestos and other contaminants were discovered in the old sandstone Court of Appeal building, empty since 2003. A decontaminated version of the heritage building will be incorporated into a new courthouse in Calgary at the same location. The project, announced by then-minister of justice Kaycee Madu in 2021, is still in the planning stage.

Chief justice Khullar does not sit on all the appeals of all the courts she oversees. But in 2023 she was one of the three NWT Court of Appeal justices who heard R. v. Avadluk, a case regarding an indeterminate sentence for a dangerous offender. Of the 101 Alberta Court of Appeal items posted in the first three months of 2024 on CanLII (the Canadian Legal Information Institute’s website), Khullar was on the court panel of at least 10, the range of which included: the province’s duty to negotiate (Métis Nation of Alberta Association v. Alberta), a murder conviction (R. v. Saddleback), suspended limitation periods during COVID-19 (StraightVac Services Ltd. v. Sunshine Oilsands Ltd.), a sentence imposed for child luring and making child pornography (R. v. Love), and a parenting order (Bitz v. Preuss).

One of Khullar’s tasks as chief justice is to implement the federal call for modernization of court operations, which includes allowing more people to appear in court remotely and greater use of technology in jury selection. Modernization will help her deal with another aspect of her job as well: the backlog of cases in the Alberta courts. The Advocates Society, in its 2023 call for action, found Canada-wide endemic delay in the delivery of civil and family justice. Its report states: “In Alberta it routinely takes more than nine months for an application longer than 20 minutes to be heard by a judge in Edmonton or Calgary; and two to three years for a trial longer than five days to be scheduled from the date the parties certify readiness.” In 2023 the chief justice of the Supreme Court of Canada, Richard Wagner, noted that Alberta had 22 criminal cases that had been delayed more than 30 months and were therefore at risk of being stayed (halted) under the unreasonable-delay limits set out in R. v. Jordan in 2016.

The current court backlog can’t be blamed solely on pandemic-related court closures, since the backlog existed before the closures. And while the pandemic exacerbated the problem, it also prompted small but ongoing improvements in efficiency, such as conducting more hearings virtually rather than in person.

One of the causes of delay is a perpetual shortage of judges. Chief justice Wagner, in his June 2023 update, chastised the Trudeau government for its slowness in filling judicial vacancies, while also acknowledging other factors such as a shortage in provincial funding and personnel. Justices of the superior courts in the province, i.e., the Court of Appeal and the Court of King’s Bench, are federal appointments. Recommendations for new justices to courts at this level come through provincial and territorial judicial advisory committees. Judges in the lower court in this province—formerly called the Provincial Court of Alberta but renamed in 2023 as the Alberta Court of Justice—are appointed by the provincial minister of justice.

Seven provinces have adopted unified family court systems which are a mix of superior and lower court jurisdictions, to create efficiencies and reduce delays, stress and costs in family matters. In 2018 the federal government offered Alberta enough funding to hire 17 judges for a unified family court, then withdrew that money—$50.2-million over five years—in Budget 2024. “Alberta has been allocated judicial seats which they have chosen not to create, resulting in 17 unused judicial seats intended for unified family courts,” the budget document reads. “By redistributing positions to courts in jurisdictions where they will be put to use, the federal government will ensure funding for Canada’s justice system does not go to waste, as some provinces have chosen to do.” Alberta justice minister Mickey Amery agrees that Alberta’s courts need more judges, but said the federal conditions for a unified family court “simply do not work here in Alberta.”

Another responsibility of the chief justice is to distribute the appeal work among the members of the court. The Alberta Court of Appeal can have up to 14 justices, plus the chief justice, plus supernumerary (retired, part-time) justices. Usually three justices sit at a time. Certain requests, such as permission for a third party to be a part of the proceedings—called leave to intervene—can be heard online by a single appeal judge. Rarely, for more complex legal issues or those of broader significance, five justices might be on the panel.

Efficiency and fairness, for the parties and the justices, are at stake in the distribution of work. Generally the public hears nothing about the process of choosing which justice will adjudicate which matter. The last publicized disruption in the appeal ranks occurred in 2017, when Catherine Fraser was the head of the court, and justice Ronald Berger (now retired) alleged in his “concluding observations” in R. v. Gashikanyi that some judges were chosen more often than others to sit on sentencing appeal panels, and that it followed that there was a lack of diversity of experience and opinions on the panels, which resulted in “a disproportionate opportunity afforded to certain judges to shape the jurisprudence of the Court.”

The other two justices on the Gashikanyi panel responded to Berger’s allegations by emphasizing the role of judicial integrity and impartiality, and by giving examples of situations where random assignment of justices on panels is not always practical, particularly when considering workloads and expertise.

Khullar’s expertise, as stated in her judicial application questionnaire, is in “constitutional law, human rights, labour, employment and other aspects of public law.” She articled at a large Edmonton firm, where she met and worked with Dale Gibson, a scholar and legal expert in many practice areas, including constitutional law and Aboriginal law. When Gibson left to start a boutique constitutional law firm, he asked Khullar to join him, and she accepted. In the preamble to a 2022 tribute she wrote for the Alberta Law Review, Khullar describes Gibson, who died in early 2022, as “my friend, mentor and former colleague.” In the article Khullar writes “the lessons I have learned from him inform my own understanding of what it means to be a principled advocate, lawyer and jurist.”

During her time in practice with Gibson, one of the files Khullar worked on was Vriend v. Alberta, a case that arose in the late 1990s when Delwin Vriend was fired from Edmonton’s King’s College (now The King’s University) for being gay. The case set a foundational precedent for 2SLGBTQIA+ rights, because the Supreme Court of Canada held that it is a breach of the Charter to discriminate on the basis of sexual orientation. The Vriend case is also known for the coming together of many community groups to intervene, including the Women’s Legal Education and Action Fund (LEAF), the Canadian Human Rights Commission, the Canadian Labour Congress the Canadian Bar Association and numerous others.

Dale Gibson and Associates, with Khullar as an associate, were the solicitors for the (pro-equality) intervener called the Alberta and Northwest Conference of the United Church of Canada. An article by Khullar, “Vriend: Remedial Issues for Unremedied Discrimination,” was cited by the Supreme Court in the decision. The lead counsel representing Vriend was Sheila Greckol (later a justice of the Alberta Court of Appeal) and cocounsel Douglas Stollery. At the time, Greckol was at Chivers Carpenter, and Khullar eventually joined that firm, became a partner, and then managing partner.

Chivers Carpenter defines itself as “union-side labour lawyers who restrict our practices to labour, employment, administrative and human rights law.” The current managing partner of the firm, Kristan McLeod, took over the role when Khullar was appointed to the bench. McLeod says Khullar is “smart,” “thoughtful,” “compassionate,” “organized,” “a very hard worker” and “generous in terms of identifying work opportunities for others.” When pushed for any possible downsides in Khullar’s character, McLeod says there are none, but then adds that Khullar doesn’t have much patience for judgmental people (which, of course, is actually a good quality, and McLeod readily points out the irony of a non-judgmental “judge.”)

While she was in private practice, Khullar worked on pro bono cases related to unions, women’s rights and the rights of persons with disabilities. She was cocounsel for LEAF in the Supreme Court of Canada case of R. v. Ewanchuk, which questioned the defence of “implied consent” and identified the lower court’s reliance on myths and stereotypes about women. Before she was appointed to the bench, Khullar worked (along with McLeod and others) on R. v. Barton, a case which ended up in the Supreme Court of Canada in 2019 and which dealt with whether consent to a specific sexual activity is consenting to any degree of force. In another pro bono case, McKay-Panos v. Air Canada, a case that lasted almost a decade, Khullar argued that obesity can be a disability for the purposes of flying.

Chief justices have the unenviable and perhaps impossible job of being irreproachable, objective decision-makers.

Khullar’s experience and areas of legal expertise may be heartening to Albertans concerned about the leadership and apparent goals of the current UCP government. But her background should not be interpreted as bias. Her job is to interpret and apply the law, not to make the law. Still, there is comfort in knowing that the arguments of all parties will be fully considered should cases involving recent eyebrow-raising, if not ire-raising, legislation work their way up the legal ladder to the Alberta Court of Appeal. Litigation contenders might include the Alberta Sovereignty within a United Canada Act, the Alberta Pension Protection Act, the Provincial Priorities Act, the Municipal Affairs Statutes Amendment Act, 2024, and the threatened legislation to restrict the rights of transgender and nonbinary children and youth. The province has at least 12 active legal challenges against the federal government. And Albertans can expect that if any decision of the Court of Appeal is unfavourable to the UCP government, the UCP will apply for leave to appeal to the Supreme Court of Canada (cost to taxpayers be damned).

Chief justice Khullar is clearly not in her job for magazine coverage or photo ops. She declined an interview for this article. Perhaps due to the workload or the tradition of judges remaining impersonal and communicating primarily through written judgments and legal reasoning, she seems to have gone particularly quiet media-wise after the initial news flurry about her appointment and swearing-in as chief justice.

We know some biographical facts, such as her legal education and professional experience. We know (from a short article published after her swearing-in) that she watches Jeopardy! And we know from the Judges Act that justices of the Alberta Court of Appeal are paid $338,800 each, and the chief justice is paid $371,400. According to Khullar’s 2016 judicial application questionnaire, she does not speak French, she is a mother and she is married. Lawyers I spoke with all reported along the same theme of “she has a big brain and an ability to work with people.”

Should we be curious or impressed (or concerned) that we don’t know more about the top justice in our province Certainly Khullar has good reason for staying off the media radar; the public chat of justices can backfire. Take the extreme case of US Supreme Court justice Clarence Thomas, who, in an attempt to appear as a “non-elite” member of society, said he preferred vacations in Walmart parking lots over beaches, only to have journalists reveal, and revel in, proof that for decades he had been taking luxury vacations involving superyachts and private jets. Short of such bald-faced lies, even simple true statements from a justice can be misinterpreted and used to suggest character flaws or judicial bias, especially in these politically polarized times.

Most Canadian justices adhere to a philosophy of restraint, of keeping their personal lives and personal views private. Part of this is to support a work–home balance and a semblance of a “normal” life. And part of it is to maintain the appearance of impartiality. As the familiar maxim goes, although usually not with respect to judges’ personal views and lives, not only must justice be done, it must be seen to be done. Or, as the Canadian Judicial Council put it: “After appointment, judges are not required to withdraw from the world. They may lead a normal life in the community, while retaining a sense of the dignity of judicial office and realizing that the public expects virtually irreproachable conduct from judges.” (Italics mine.)

Irreproachable conduct. That’s a tall order, well beyond any “reasonable person” test that might be applied in a court case. While most of us would not be embroiled in the kind of alleged “obnoxious behaviour” and physical altercation at a posh Arizona resort that led to the early retirement of Supreme Court of Canada justice Russell Brown in 2023, who among us has conducted every day of our lives irreproachably No wonder most justices shy away from public outreach—not to be confused with the more limited outreach to their legal community, which most justices seem more open to. Khullar’s first speaking appearances after she was sworn in as chief justice were at the annual historical dinners, in Calgary and Edmonton, hosted by the Legal Archives Society of Alberta. In March she attended the respective 2024 judges dinners put on by the Calgary and Edmonton bar associations.

And yet, the Chief Justice of the Supreme Court of Canada, Richard Wagner, ever since his appointment in late 2017, has promoted transparency in all Canadian courts, and encouraged leadership through outreach beyond the courts. In an era when trust in the Canadian judicial system is declining, and distrust of authority, experts and even accepted facts seems to be at an all-time high, speaking about the court’s role and conduct, when legally and ethically appropriate, might be a good way for senior justices to bolster confidence in our court system.

Chief justice Wagner has held several news conferences, framed as “updates” on the work of the Supreme Court. In his 2022 update he commented on the US Supreme Court’s reversal of Roe v. Wade, a case which resulted in the removal of the federal right to abortion. While Wagner didn’t give his personal views on abortion, he did speak about how the Canadian judicial system works differently and is non-polarizing. He used his own appointments—to the Supreme Court by the Harper government and to chief justice by the Trudeau government—as an example of non-partisanship. But he stressed, as he often does in his updates, that we must remain vigilant in keeping Canada’s judiciary independent.

In 2019 Wagner praised the transparency of (now retired) Supreme Court justice Clément Gascon, who publicly discussed his struggles with mental health. And in a 2023 news conference he addressed justice Russell Brown’s resignation from the Supreme Court and answered concerns about how the Brown issue might have affected the court’s decisions and process. (Of note, the vacancy created by justice Brown’s resignation was filled with the much-lauded appointment of Mary Moreau, a former chief justice of the Alberta Court of King’s Bench.) In the same 2023 news conference, which lasted an hour and included questions from journalists, Wagner acknowledged the important role of journalism and media in bringing issues to the court’s attention and in upholding democracy.

As much as journalists and the general public might welcome more-transparent justices, this leaves the people who take on this important role, particularly chief justices such as Khullar, with the unenviable and perhaps impossible job of being irreproachable, objective decision-makers and outspoken leaders. Small wonder that some prefer to adopt a closed-door policy.

The mandatory retirement age for federally appointed justices is 75. If chief justice Khullar remains in her current role until then—the year 2039—the public might not hear many of her out-of-court opinions. But once she retires she might decide to be more forthcoming, thus following in the tracks of a few other prominent Alberta-raised justices, most notably retired Supreme Court of Canada chief justice Beverley McLachlin, who, a few months before the end of her judicial term, granted this magazine a sit-down interview at her office in Ottawa (see “Canada’s Top Judge,” Sep 2016, in AV’s online archives). She later released her memoirs, Truth Be Told. Or retired Alberta Provincial Court judge John Reilly, who has published a trilogy of books about his judicial work in First Nations communities.

Until then, we’ll have to trust that chief justice Khullar channels some of the key traits she identified in her mentor Dale Gibson, including “courage, creativity… and foresight,” and that, with her help, the slow and rarefied Court of Appeal will continue to show up for beleaguered Albertans.

Barb Howard is the author of five books, including Happy Sands in the Brave and Brilliant series from University of Calgary Press.

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It’s impossible to say why the incident ended as it did—why, in the words of Edmonton Police Chief Dale McFee, “We are incredibly lucky that there are no reported injuries and no lives have been lost,” including those of a visiting class of Grade 1 students. It’s impossible to say why, 10 months after the fact, we’re not talking about downtown Edmonton as the site of a mass murder, or about how “Edmonton City Hall” has become synonymous with “Sandy Hook” and “Columbine” and “École Polytechnique,” or living with the knowledge that Edmonton mayor Amarjeet Sohi was the first Canadian politician in over 50 years to be assassinated. City police and the RCMP have released no details about why the incident ended so quickly. Gun users speculated online, based on watching security footage, that the shooter’s rifle jammed. “He’s using a higher capacity magazine, but for some reason… stops shooting at the third or fourth pull,” one man writes. “[This] indicates a malfunction. He fiddles with the handle but then drops the rifle.”

If we hadn’t been “incredibly lucky”—if the gun (perhaps) wasn’t a cheap SKS variant and hadn’t (probably) jammed, or if the shooter had brought a second gun—Alberta today would be different. We might be remembering front-page photos of blood streaked across the marble zigzags of Edmonton City Hall’s foyer, or mourning the murders of a dozen Edmontonians, or sickened at the thought that a class of schoolchildren witnessed everything. And almost immediately after the massacre we’d have become livid at our provincial government.

One of the first things most civilized people do after hearing about a mass shooting in their country is demand a ban on the type of gun used. This is what happened after mass shootings in Port Arthur, Australia (1996: 35 dead), and Dunblane, Scotland (1996: 17 dead, most of them kindergarten students), and Utøya, Norway (2011; 68 dead), and Christchurch, New Zealand (2019: 51 dead). The public in each case was strongly in favour of tougher restrictions, as were police, and support came from across the political spectrum. A wide array of guns—automatic, semi-automatic, “military-grade” and, in the UK, most handguns—were eventually banned. Close to a million guns were surrendered through buybacks. Norway already had some restrictions but added the Ruger Mini-14 model used to slaughter dozens of children at a summer camp to its list of prohibited weapons.

“We are incredibly lucky that there are no reported injuries and no lives have been lost.”

Canada is not so different. After the massacre at Montreal’s École Polytechnique in 1989, when a gunman murdered 14 women, our federal government reacted to the public’s horror by passing legislation that included mandatory registration and licensing for gun owners, a national registry, background checks, and verification processes and controls on ammunition sales. The legislation had support across party lines. It took years to create, however, and didn’t preclude Canadians from owning the semi-automatic rifles still associated today with mass shootings. (Canada in 1977 had banned fully automatic guns: those “with the capability of discharging projectiles in rapid succession during one pressure of the trigger.” Think machine guns or the Rambo movies.)

Canada has now banned “assault weapons” as well—or is trying to. Our federal government, borrowing from the US Department of Justice, defines these as “semi-automatic firearms with a large magazine of ammunition…designed and configured for rapid fire” (i.e., the trigger must be pulled repeatedly, but an experienced shooter can get off at least one shot per second). It announced its ban in the aftermath of our country’s worst mass shooting, April 18–19, 2020, when a 51-year-old man impersonating an RCMP officer and armed with two semi-automatic rifles roamed rural Nova Scotia from Portapique to Shubenacadie and murdered 22 people, including a pregnant healthcare aide and a 23-year-veteran RCMP constable.

For nearly 50 years advocacy groups and police in Canada have been calling for a ban. As far back as 1977 the Canadian Association of Chiefs of Police had argued “semi-automatic firearms are basically designed as an instrument of war” and have “no sporting use either in the cultural or the recreational sense.” And the federal Liberals had already promised more gun controls following the 2019 Danforth shooting in Toronto (two dead; 13 injured). Portapique jolted them into action. On April 20, 2020, then-public safety minister Bill Blair declared his government would prohibit “military style assault weapons.” “There have been far too many incidents of gun violence in our country,” he said, promising “measures… that significantly reduce those incidents and keep people safe.”

The public was behind him. According to an Ipsos poll that May, compiled after Portapique, 82 per cent of Canadians supported a ban, including 77 per cent of Albertans. A concurrent Angus Reid poll put support across the country at 78 per cent for “a complete ban on civilian possession of assault weapons.” That survey found 60 per cent of conservative voters supported a ban, as did 70 per cent of former gun owners and even 45 per cent of current gun owners. And Portapique didn’t much change public opinion. A year before that mass shooting, Angus Reid had found 75 per cent support among Canadians for an assault weapons ban.

On May 1, less than two weeks after the rampage in Nova Scotia, Blair announced a ban on “over 1,500 models and variants of assault-style firearms” as well as certain components and magazines. The list included the Ruger Mini-14 used at École Polytechnique, Utøya and Portapique, and the AR-15 used in hundreds of US shootings, including Sandy Hook and Columbine. These can no longer be legally used, imported or sold in Canada.

The restrictions came with a two-year amnesty (until 2022) and a promised buyback to be overseen by the RCMP in which owners would be compensated when surrendering their weapons. Gun control advocates celebrated. It looked like Canada was belatedly following the lead of countries that outlawed weapons used in mass killings. But four years later the ban is in limbo.

On the same day that Canada banned assault weapons, then-premier Jason Kenney issued a statement. “The Government of Alberta is concerned about all crime, including the illegal use of firearms,” he said. “[But] today’s order by Ottawa does little to target criminals. Instead, Ottawa is singling out law-abiding Canadians who purchased their property legally, have owned these items safely for years, and who have committed no crimes.” In the years since then, the UCP government has continued to oppose federal efforts to ban guns—which Kenney has called “legally purchased inanimate objects.”

Advocates on all sides of the debate have long argued about what constitutes an “assault weapon” or “military style.” Owners of these guns dismiss such terms as fear-mongering akin to referring to chef knives as “stabbing tools.” But no one disputes that these “inanimate objects” were first designed for soldiers to use to kill other soldiers (e.g., the AR-15 was mass produced for American troops in Vietnam). And ads in archived newspapers remind us that gun shops in Edmonton and Calgary were advertising the likes of AR-15s as “assault weapons” only a few decades ago. Gun advocates in Canada pivoted to calling them “sporting rifles” after École Polytechnique.

For nearly 50 years advocacy groups and police have called for an assault weapons ban.

The Alberta Chief Firearms Office (ACFO)—created by Kenney in June 2020, and which has taken on much of Alberta’s pro-gun advocacy work—responded to questions about the ban by saying “ ‘assault-style’ is not a type of firearms classification for the purposes of regulation under any federal or provincial legislation that governs firearms such as the Criminal Code or the Firearms Act.” This is true. So, in addition to banning 1,500 specific makes and models, the federal government is trying to restrict “assault-style” guns based on a certain level of muzzle energy (thus encompassing sniper rifles) and bore diameter (the threshold captures the most powerful shotguns).

Unlike Americans, Canadians have no enshrined right to keep and carry guns. This has been so since Canada’s founding, and the distinction has been upheld many times by our courts. In summer 2024 a group of UCP members from Medicine Hat, calling themselves the Black Hat Gang, asked premier Danielle Smith to add the right to keep and bear firearms to Alberta’s Bill of Rights. In October Smith said she’d introduce legislation to do just that. Canada’s Charter, however, is unclear.

Gun proponents’ strongest objection is that some guns Canada would ban are used by hunters, including Indigenous people. Even as the ACFO is advising Albertans about how to comply with a ban, it will “continue to stand up for Alberta’s law-abiding hunters.”

Canada’s list of 1,500 “assault weapons” was made by executive order. Four years later it isn’t finalized. Facing opposition from Alberta and other provinces, hunters, gun makers, gun collectors, property rights advocates, various MPs and the Assembly of First Nations, in March 2022 the federal government extended the amnesty until October 2023. In November 2023 it extended the amnesty again, until October 2025. It has withdrawn amendments to legislation that would have clarified which guns are banned and why. Today our politicians are still arguing over which guns are uniquely well suited to killing moose at a distance and which can too easily slaughter a crowd of civilians up close.

Guns seized by police at the Coutts border blockade in 2022, including a semi-automatic rifle modified to shoot 30 rounds in nine seconds.

The debate doesn’t fall neatly along partisan lines. Some NDP MPs call the list overkill. The federal NDP says Canada can’t impede “those who use long guns for hunting and farming, and can’t hinder the treaty rights of Indigenous peoples.” But former federal Conservative leader Erin O’Toole supported the ban. “I want to make my position on firearms perfectly clear,” he said during the 2021 election. “First, the ban on assault weapons will remain in place. Second, the present ban on a number of other firearms that were reclassified in 2020 will remain in place.” He called for “taking the politics out of” the discussion. The Trudeau government in May 2023 said it would re-establish an independent committee to review gun classification. Then-public safety minister Marco Mendicino said this would “take the misinformation out of these debates.”

The federal Conservatives, now under new leadership, might kill the ban. Pierre Poilievre calls the policy a failure, saying last spring about the prime minister: “He has spent 40 million tax dollars that could have secured our ports and our borders, and he has not taken in a single, solitary gun.” (He didn’t elaborate on who’s responsible for delaying the buyback.) At a rural Ontario rally last June, Poilievre, asked by a gun owner his intentions should he become PM, said “We [will] just reverse everything Trudeau has done.”

Regardless, the UCP government says it will prevent the RCMP in Alberta from taking part in an assault weapons buyback. If need be, it will replace the RCMP with a provincial force, and prevent local police from taking part by stopping them from making funding deals with Ottawa.

In the meantime, gun-control advocates are frustrated. “Instead of working on the law, we find ourselves fighting about details and disinformation and procedures,” said Heidi Rathjen, coordinator of PolySeSouvient, whose organization formed in response to the École Polytechnique massacre. Gun owners are in limbo. And some gun makers are proceeding as though the ban isn’t real. “While sales were no doubt initially dampened by the Liberal government’s [changes], the Black Creek Labs SRV2 Siberian semi-auto rifle is in production,” reported Calibre magazine in 2023. “Now, with the Liberals removing those amendments… presumably more shooters are emboldened to put their money down on one of these made-in-Canada rifles.”

Other complications include that no one can say how many guns might be affected by Canada’s ban. According to a 2018 federal report, “Because ‘assault weapon’ is not a legally defined term, providing a count of how many are held in Canada is not possible. However, there are about 100,000 legally owned non-handgun firearms—usually rifles and shotguns—registered to individuals. Some of these could have features consistent with what is described as an assault weapon.” ‘Features’ is a telling word. Guns can be made more powerful, or modified with aftermarket parts, potentially turning a legal gun into an illegal one. Even gun-control advocates acknowledge that an “assault weapon” is not so much a standalone, standardized item, like a baseball bat, but a collection of integrated parts, not all of which are easily controlled or banned. (Magazines and ammo are regulated separately.) Similarly we don’t know how many “assault weapons” are in Alberta. The ACFO says, “[We have] received estimates from the federal government that approximately 30,000 firearms in Alberta meet this criteria.”

A further twist is that the federal government hasn’t only banned “assault weapons.” On December 15, 2023, Bill C-21 received royal assent. The law toughens penalties for gun smuggling and trafficking, adds new offences for “ghost guns” (which lack serial numbers and are 3D-printed or made from parts) and creates new “red flag” laws and licence revocation provisions to address domestic violence or self-harm. Most notably the bill bans the sale, purchase, import or transfer (but not ownership) of handguns in Canada.

Shotguns and hunting rifles may have “historic and cultural importance.” AR-15s do not.

Even the UCP government can get behind tougher smuggling penalties or a crackdown on ghost guns. But a handgun freeze—whatever its merits or drawbacks—is another kettle of fish. Canadians seem to believe that handguns represent less of a threat to them or their kids than do the weapons used in Canada’s worst mass shootings. The people who responded to pollsters after Portapique declared overwhelming support for ridding the country of AR-15s. They didn’t feel quite the same way about pistols and revolvers. Ipsos and Angus Reid both found at least 10 per cent less support for a handgun ban than for an assault-weapons ban, with support falling to as low as 43 per cent in Alberta.

An ordinary Canadian, following the debate through headlines and soundbites, could easily conflate efforts to ban “assault weapons” with a push to eliminate other guns. Handguns are more commonly used in gang violence, domestic and intimate partner violence, suicides and accidental shootings. Compelling arguments can be made for banning them, but reducing mass shootings isn’t on top of the list. When the UCP says “Trudeau’s policies won’t stop gangs,” they’re talking about handguns.

For that matter, when the UCP evokes the “historic and cultural importance of firearms” to our province, they mean shotguns and bolt-action hunting rifles, not AR-15s or their equivalents. Indeed, while something like a quarter of Canadians own a gun (mostly traditional rifles and handguns), few have owned anything resembling an “assault weapon.” But everyone is a potential target for the man who would use an assault weapon for its original purpose.

The arguments opposing a ban on assault weapons are that the federal government’s “ridiculous firearms agenda”—in the words of Kenney—is an affront to law-abiding property owners, including hunters, and that we’ll waste a huge amount of money buying back 100,000 scary-looking but otherwise harmless inanimate objects. If the ban goes ahead, many hundreds of collectors in Alberta will be made to surrender treasured property, even guns that don’t work or haven’t been removed from a locked cabinet in years. Heirlooms handed down from parents will be caught in a gun-grabbing driftnet. Some collectors will choose to keep contraband, becoming criminals with the stroke of a pen, left to worry about when the RCMP will come to inspect their collection.

Many recreational shooters—those who don’t use handguns or smaller shotguns—will have to change their hobby. Some gun ranges will lose business. At Calgary’s Shooting Edge, for example, four of 16 ranges were dedicated to “centrefire rifles,” which include AR-15s and AK-47s (specifically, a Chinese-made descendant of Russia’s famous Kalashnikov). The Shooting Edge shut down in October, blaming the federal ban.

Many hunters will find that weapons they have used safely for years are now illegal to own. They’ll lose lawfully acquired property. They’ll be forced to surrender trusted tools in exchange for compensation they believe is unfair. Some of their new guns will be different—more expensive, harder to operate, less powerful.

Indigenous groups—who know a bit about government mass confiscations—haven’t been assuaged by promises that the final list of banned guns won’t impact subsistence hunting. Nunavut Tunngavik vice-president Paul Irngaut told Canadian senators in 2023 that Inuit hunters face unique dangers and can’t always access search and rescue services. “Semi-automatic rifles are effective and necessary as a humane method to quickly dispatch animals, and as defence against polar bears, grizzly bears and wolves,” he said. If the federal government gets its way, some Indigenous Canadians will be forced to trade higher-powered guns for traditional rifles and deterrents such as bear spray.

The argument for a ban on assault weapons, however, is more compelling: Canada could prevent a mass shooting.

Surveys show that many gun owners support an assault-weapons ban. Some even argue in online forums that a ban on AR-15s is neither a slight on law-abiding gun owners nor the start of a slippery slope toward outlawing hunting or sport shooting. Canadians—Indigenous and otherwise—will continue to hunt, albeit some with new guns and different precautions. Following their assault weapon bans, people in Australia, New Zealand, the UK and Norway continue to hunt, using guns. Shooting ranges will sound a bit different, but many will survive.

When most of Canada’s assault weapons have been carted away and destroyed, Canadians will not only feel safer, they will in fact be safer. The correlation between lower rates of gun ownership and less gun violence is backed by research. A 2000 study in the Journal of Trauma and Acute Care Surgery concluded: “Across [26] developed countries, where guns are more available, there are more homicides.” Other factors such as the effectiveness of mental health supports and gun-owner screening contribute. But the simple fact is that where there are more guns, there are more deaths from guns.

Australians appear to have less to fear from gun violence today following their 1996–1997 buyback, when over 650,000 guns were taken out of circulation (by a conservative government). From a 2006 article in the journal Injury Prevention: “In the 18 years before the gun law reforms there were 13 mass shootings in Australia, and none in the 10.5 years afterwards.”

The rate of gun crime has fallen in the UK since its government banned civilians from owning most guns, and the country’s homicide rate is the lowest in the OECD (and one-sixth of Canada’s rate).

“[One] thing to remember is that the people who are shot, injured or killed have rights too,” said Calgary-based surgeon, hunter, self-identified conservative voter, and assault-weapons-ban proponent John Kortbeek in a 2021 interview with Cold Steel: Canadian Journal of Surgery Podcast. “They didn’t ask to be shot, they didn’t ask to be killed, and they didn’t ask to be disabled. And that’s a pretty stiff price to pay for ready access to handguns and military style assault weapons.”

Shotguns and hunting rifles may have “historic and cultural importance.” AR-15s do not.

last January at Edmonton City Hall, premier Danielle Smith appeared onstage at events in Calgary and Edmonton with former Fox News pundit Tucker Carlson. Carlson owns guns, including an AR-15, and has likened gun control in the US to “class warfare.” As he told the NRA, “The Left hate that guns are tools and that millions of normal people own them. They hate that guns are also a metaphor for true individual freedom.” Neither Smith nor Carlson mentioned the previous day’s incident in Edmonton, nor did Smith’s government issue a statement.

That shooting is largely forgotten. In March the gunman was charged with two terrorism offences and nine other charges. In July he pleaded not guilty. City Hall was closed to the public for two months, then was reopened with metal detectors and other new security measures. Albertans moved on.

Edmonton mayor Amarjeet Sohi is now doubtless safer. But that city also has the Legislature. Alberta has other government buildings, and malls, nightclubs, country music festivals, political conventions, church gatherings. It has schools and daycares and children’s camps. Both my 10-year-old daughter’s public elementary school and my 5-year-old’s preschool in Calgary now do lockdown drills, where they bolt the doors, turn off the lights and take silent cover under desks and tables “in case the bad guys come” (my 5-year-old’s words).

A mass shooting leaves a permanent scar on society. “Certain dates are written into our country’s story as defining days,” Norway’s King Harald said on the 10th anniversary of Utøya. Then-prime minister Jacinda Ardern called the Christchurch massacre one of her country’s “darkest days.” “We are suffering,” said Colchester County, NS, mayor Christine Blair in spring 2024, four years after Portapique. “It’s huge here, and it has affected everyone.”

But the flipside is true too. Gun restrictions reinforce and shape cultural values and norms, in the same way other legislation has long-term effects (e.g., seat belt laws). If mass shootings can traumatize a society, reasonable gun restrictions can inspire a more peaceful one.

The Mass Casualty Commission that was struck following the 2020 massacre in Nova Scotia recom-mended in its exhaustive report a ban in Canada on “all semi-automatic rifles and shotguns that discharge centre-fire ammunition and that are designed to accept detachable magazines with capacities of more than five rounds.” It did so after concluding that mass shootings pose a “significant though rare” threat to Canadians.

But a mass shooting almost did happen in Alberta last January. It may have been prevented only by dumb luck. If a mass shooting does happen here, and three or seven or 22 people are killed, including schoolchildren, a horrified Albertan and Canadian public will immediately demand a ban on the assault weapons used in the massacre. And then we’ll find out that we already did ban these guns—or tried to, before opponents, including Alberta’s government, decided that the chance to prevent a mass shooting wasn’t worth the price.

Evan Osenton is the editor-in-chief of Alberta Views.

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The post We Could Prevent A Mass Shooting appeared first on Alberta Views.

Such careful choice of language helps preserve the traditional separation of powers in which the judicial, executive and legislative branches of government play different roles in upholding democracy and the rule of law. The debate about Danielle Smith’s proposed Alberta Sovereignty Act should remind us of the importance of the separation of powers. Provincial legislators make laws. They don’t rule on the validity of those laws or the laws adopted by the federal parliament. That is the role of the courts.

It is therefore troubling when we see instances of judges speaking like politicians—as happened with a reference case at Alberta’s Court of Appeal in May of last year.

A typical court case in Canada involves a concrete dispute between two or more parties. Federal and provincial governments, however, reserve the right to submit more-abstract questions to a court for its opinion. These are known as reference cases. In Canada, provincial governments pose reference questions to their own courts of appeal (with an automatic right of appeal to the Supreme Court of Canada); the federal government can pose reference questions directly to the Supreme Court. The latter happened, for example, with the Quebec Secession Reference (1998) and the Same-Sex Marriage Reference (2004). In some instances, several provinces pose the same or similar questions to their courts of appeal, with any differences being resolved by the Supreme Court. Such was the case recently with references by Saskatchewan, Ontario and Alberta relating to the validity of the federal carbon tax.

The reasons for resorting to a reference vary. Sometimes questions about a law that’s been passed by a legislature are best resolved before the law is brought into force. The Horgan government in BC, for example, sought the opinion of its Court of Appeal (and ultimately of the Supreme Court) on changes to BC’s environmental legislation that targeted the transport of incremental volumes of oil sands production  through the province. The Court of Appeal concluded (as did the Supreme Court) that the proposed legislation was unconstitutional. The courts’ decisions helped defuse a war of words between Alberta and BC and avert potentially more serious economic embargoes.

While a reference opinion isn’t binding in the same way that a conventional judicial decision is, a Supreme Court reference opinion provides an authoritative statement that lower courts will invariably follow.

Reference opinions in Canada typically encounter two objections. First, civil disputes between parties come before the courts in the context of a detailed factual matrix—that is, all of the relevant information and circumstances. This way, a court can tailor its response to a particular dispute, fully aware of a ruling’s implications. References, however, generally lack that detailed factual matrix. Some legal experts argue it’s simply better to wait for a real dispute to emerge, because it’s easier to assess the implications of a ruling in that context, and because a ruling might be premature without all of the relevant information and circumstances.

The second objection is that reference questions are always posed by the executive branch of government and thus frequently engage politically sensitive issues. A court then risks being dragged into the political fray, which can raise questions about judicial independence. While a court can decline to answer questions that seem political rather than legal, there’s always some risk to the traditional separation of powers.

That risk exists when the government uses its reference power in an overtly political manner; it’s compounded if the court itself adopts the language and imagery of politics in providing its opinion. And this—what I call the politicization risk—is exemplified by Alberta’s Court of Appeal reference opinion from last year.

The Alberta Court of Appeal provided that opinion in response to questions posed by Jason Kenney’s government about the validity of the federal Impact Assessment Act (IAA, also known as Bill C-69). The IAA is just the most recent rewrite of federal environmental laws that have been around in one form or another since the 1970s. Alberta’s UCP government—and indeed the Notley government before it—has consistently taken the view that this new iteration of impact assessment legislation represents considerable federal overreach. This is particularly so for what Alberta’s government views as projects entirely within the province’s boundaries, such as in situ oil sands. It was therefore hardly surprising that, shortly after the IAA was proclaimed in 2019, Kenney brought a reference to the Alberta Court of Appeal seeking to test what he termed “legislation that will have devastating impacts on Canadians.” He added that the IAA constituted “a flagrant violation of the exclusive constitutional jurisdiction of provinces and territories to control the development of their natural resources.”

The majority (4–1) of the Alberta Court of Appeal’s panel of judges ultimately sided with the premier. The court advised that the IAA was beyond the power of Parliament, on the basis that it would allow the federal government to make decisions on grounds that weren’t sufficiently connected to their law-making powers. The principal difference between the majority and the lone dissenting opinion of Justice Sheila Greckol is that the latter was prepared to assume that the broad discretionary powers of the IAA would be exercised by the federal cabinet in conformity with the division of powers prescribed by the constitution and the principles of federalism. The majority, however, seemed to assume the worst.

This difference will be resolved by the Supreme Court of Canada, just as that court ultimately resolved differences as to the validity of the federal carbon tax. In that instance Alberta’s Court of Appeal had found the legislation unconstitutional, following which the Supreme Court concluded (confirming the majority opinions of both the Ontario and the Saskatchewan courts of appeal) that the tax was in fact a valid exercise of Parliament’s power.

My unease, however, isn’t about the constitutional merits of the Impact Assessment Act. Rather, I’m concerned about how the IAA reference—in particular the majority’s response—exemplifies the politicization risk.

It’s hardly surprising that Premier Kenney and his ministers adopted highly charged terms in describing the IAA and the reference case. The UCP cabinet referred to Bill C-69 as the “No More Pipelines Law” and its passage as “a dark day for Alberta and Canada as a whole.” Furthermore, Bill C-69 was predicted to “scare away billions of dollars in capital investment and tens of thousands of jobs.” The “no more pipelines” epithet is particularly revealing, since it misleadingly dresses up Alberta’s economic grievances about allegedly limited pipeline capacity as a constitutional grievance. In fact, all parties involved in the IAA reference conceded that Bill C-69 would be completely valid as applied to interprovincial pipelines, since such pipelines clearly fall under federal jurisdiction. Any rightful objection to the IAA could therefore only be an objection to the merits of the legislation, not to its constitutionality.

But even if we might expect politicians to use charged language in describing Bill C-69, it was extraordinarily disappointing to see our Court of Appeal, led by then-Chief Justice Catherine A. Fraser, double down on the political rhetoric.

In the court’s majority opinion the IAA poses an “existential threat … to the division of powers guaranteed by our Constitution and thus to Canada itself.” The court suggested that the IAA placed “provincial governments in an economic chokehold controlled by the federal government.” The majority also found it necessary to remind the federal government that it doesn’t have “the constitutional right to appropriate the birthright and economic future of the citizens of a province.”

This is hardly the measured, sober and proportionate language that we expect of a court charged with providing an opinion on the constitutional validity of legislation. And none of this commentary was necessary to decide the case. In adopting the language of “existential threat,” the majority explicitly suggested that the IAA poses a hazard similar in magnitude to that of global climate change. It’s hard to imagine a more disproportionate analogy. As for the language of “chokehold,” this conjures up the spectre of (terminal) physical violence. And the mention of a province’s “birthright” suggests wholesale federal appropriation of provincial resources.

The subject of this reference, however, is not a federal resource tax or federal expropriation, but rather legislation designed to provide for a science-based assessment of the environmental, social, economic and health considerations of new projects. Yes, the information-collection and assessment procedures of the IAA support the federal government’s decision-making process with respect to such projects. But the majority on Alberta’s Court of Appeal panel could have provided their reasons and conclusions without using inflammatory language.

The Alberta Court of Appeal gave its opinion last May. The federal government shortly thereafter announced it would appeal the matter to the Supreme Court. In the meantime the government of Alberta welcomed other provinces’ interventions in the appeal. A press release from Kenney referred approvingly to the Court of Appeal’s “chokehold” and “birthright” language. I trust that at least some members of the bench cringe a little when they see how the Court of Appeal wittingly provided language to fuel a political—not judicial—discourse.

References can serve the useful purpose of clarifying the law. It was appropriate to refer the constitutionality of the federal carbon tax to the courts. After all, that case involved the novel application of Parliament’s power to make laws for the peace, order and good government of Canada. And while the validity of the IAA may have been better considered in the context of an actual case with a concrete set of facts, I don’t think it was inappropriate for the government of Alberta to seek a reference.

Politicians and judges alike, however, must exercise care in using this power. It’s probably too much to ask that politicians avoid political language when invoking a reference, but it would be far more appropriate if all communications about references were handled not by the Premier’s Office but by Alberta’s Justice Minister or Solicitor General, since they ought to be sensitive to the need to maintain the separation of powers. More importantly, judges must distance themselves from politicians’ inflammatory characterizations. In this case, the majority of Alberta’s Court of Appeal simply failed to do so.

References should be used to obtain legal opinions on questions of law; they shouldn’t be used to continue a political dialogue through the courts. The risk of doing so is the perception that the courts are being asked to take sides—or, worse still, that the court may actually be taking sides and joining in the political fray. This calls into question the independence of the judiciary and its separate function in our constitutional democracy.

One has only to look at developments south of the border to appreciate the risk. There, the appointment of Supreme Court judges is highly politicized, and the decisions of that court look more and more like the continuation of politics in a different forum. Hence the need in Alberta for renewed vigilance and prudence in maintaining both the perception and the reality of judicial independence.

Nigel Bankes is a professor emeritus of law at the University of Calgary.

The post When Judges Use Political Language appeared first on Alberta Views.

The U of C assistant professor of law says no

Our legal system is a reflection of who we are as a society. The values at the core of that system promote fairness and justice. These may be lofty terms, but they engage deep personal feelings in us. Our community sense of justice and fairness is a cornerstone of our democracy. These values anchor us and give our daily lives meaning. Without a fair and just legal system, our moral compass may be at risk. Mandatory minimum sentences run contrary to these core values, as their use does not promote justice. Rather, it leads to injustice.

Mandatory minimum sentences are counterintuitive. The basic principle of a just and fair sentence is that the punishment must fit the crime. This concept of proportionality—that the punishment reflect the gravity of the offence and the responsibility of the offender—is at risk when mandatory minimum penalties are used. Minimum sentences are fixed and immovable. They cannot respond to an offender who is less blameworthy or a crime which has mitigating circumstances.

Another solemn aspect of our legal system is judges who not only know the law but dispense it carefully, taking into account the nuances of the particular case. They hear witnesses, listen to lawyers’ submissions, read sentencing reports and can best determine the just outcome. Sentencing judges use all their craft to delicately balance all the various sentencing factors, including the public interest, to arrive at a fair sentence. Without the exercise of this discretion, sentencing devolves into a mathematical exercise. Mandatory minimums don’t allow for the personal factor. They don’t give the judge full rein of their abilities to impose a fit and just sentence. Rather, the mandatory imposition of a minimum sentence permits an unduly harsh sentence without a judge’s considered input.

Our cherished fundamental principle of justice, the presumption of innocence, is undermined by mandatory minimum sentences. Such sentences mar our legal system by creating an incentive for improper guilty pleas. Faced with an offence carrying a mandatory minimum punishment, an otherwise innocent person might agree to enter a plea of guilty to a lesser offence which does not carry such a harsh penalty. Better to take the known than run the risk of the unknown. Yet such an occurrence defeats the very purpose of justice.

Winston Churchill noted that “the mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.” Meaningful punishment can’t be imposed in a vacuum nor by a push of a button. What our justice system needs is not more contrived responses to pressing concerns. What it needs is sentencing that responds to the specific offence and the specific offender by applying the appropriate sentencing principles. What our system does not need is a mechanical application of justice without thought or logic. We need a touch of humanity in sentencing. That is the true test of our democratic ideals.

Lincoln Caylor
The partner at Bennett Jones LLP says yes

The separation of governmental powers into legislative, executive and judicial branches has safeguarded against state abuses more effectively than perhaps any other political doctrine. But a side effect is fractious boundary disputes. Among the most hotly contested such skirmishes in recent Canadian history is Parliament’s increased reliance on mandatory criminal sentencing tools (most notably, mandatory minimum sentences) and some judges’ inventive, bold and arbitrary manoeuvering to avoid applying them.

Parliament is authorized to enact sentencing laws, such as mandatory floors or ceilings. Historically it has left most day-to-day sentencing decisions to judges. In the 1990s, however, the Chrétien government spearheaded one of the largest-ever enactments of mandatory minimums. Then, starting in 2008, the Harper government toughened mandatory penalties on the books and imposed escalating minimums for some repeat offenders. The result was well-publicized inter-branch friction.

Courts can strike down any law that violates the Charter; s. 12 guarantees citizens the right “not to be subjected to any cruel and unusual treatment or punishment.” The courts have held that sentencing laws will violate that right if they’re “so excessive as to outrage standards of decency” or “grossly disproportionate to what would have been appropriate.” That nebulous language defines the fragile boundary between Parliament and the judiciary on sentencing law.

The rule of law requires that all laws be certain, accessible, intelligible, clear and predictable. A rule of law problem arises every time a judge ignores a law on the books without striking it down as unconstitutional, or distorts section 12 to carve out more judicial discretion. Judges are legally and ethically bound to apply Acts of Parliament and uphold the rule of law.

Mandatory minimums are merely Parliament’s answer to the question “What sentence is appropriate for the least morally culpable person whose behaviour satisfies an offence’s elements?” Parliament is neither omniscient nor infallible. It can, and has, imposed inappropriately severe sentences. That is not a frailty of mandatory minimums—judges regularly mete out inappropriately severe (or, more often, lax) sentences. If mandatory minimums remain within the constitution’s boundaries, they create a stable sentencing range in which judicial discretion can be exercised. Equally, judges must act within the proper scope of their powers. The will of Parliament, within its constitutional bounds, must be respected.

In R. v. Ferguson the Supreme Court stressed the importance of protecting the jurisdictional boundary between Parliament and the judiciary on sentencing laws. The rule of law must remain paramount. Neither Parliament nor judges should have absolute discretion on sentencing. Each branch must hold the other to account. Canadians cannot let political expediency or instrumentalist partiality erode the separation of powers.

Lisa Silver responds to Lincoln Caylor

Former Chief Justice of the Supreme Court of Canada Antonio Lamer remarked in the 1987 Vaillancourt decision that “the courts have the jurisdiction and, more important, the duty” to review legislation to ensure it is consistent with our principles of fundamental justice as enshrined in the Charter. In short, no one, not even our lawmakers, is above the law. As past experience has taught us, we need judicial oversight to ensure a safe, just and democratic society. Tyranny knows no boundaries, and our judges, through their exercise of judicial oversight, ensure every citizen can live their life free of unreasonable state intrusion.

Judges, as independent and impartial protectors of the law, fulfill an important function in Canadian society. Our legally trained decision-makers swear an oath to uphold and apply our laws, even if their decisions are unpopular. Law should not bend to public opinion or parliamentary favour. Law should not be taken lightly, nor should it be characterized as a turf war.

The real issue here is whether mandated minimum sentences have any place in our justice system. Sentencing is, as Chief Justice Lamer later described in 1996’s C.A.M. case, “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” Thus, sentencing requires a balancing of well-regarded legal principles which take into account the entire field of sentencing considerations involving the circumstances of the offence and the offender as well as objectives of sentencing such as denunciation, deterrence, rehabilitation and retribution. In this principled approach there is room for mandatory minimum penalties, but to be used sparingly and only for those crimes that society deems exceptionally egregious and blameworthy, such as murder.

A person convicted of murder receives an automatic life sentence. This sentence, however, is legally and constitutionally justified, as the punishment is proportionate to the high moral blameworthiness of a person who intentionally kills another. Additionally, the stigma attached to that crime is very high. There is no person more reviled than a murderer. The same cannot be said for a person who produces marijuana, yet, until a judge found it unconstitutional, that offence, in certain circumstances, attracted a mandated minimum sentence. Of course, Parliament, as it has the right to do, reconsidered the entire premise of our marijuana laws and revised them to better reflect societal mores and attitudes. Nevertheless, this very real mandatory sentencing scenario is a stark reminder of the chilling effect mandatory minimum penalties can have when attached to crimes that should not attract such a disproportionate response.

The sentencing judge applies a framework derived from s. 12 of the Charter, which considers whether the mandatory minimum sentence is grossly disproportionate to the offence. This test is clearly described in case law and easily applied. The consideration is whether such a sentence would be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable.” The judge considers reasonable hypotheticals or other factual scenarios, which may be subject to the mandated sentence. For instance, in the case of producing marijuana, the Elliott appeal court, in striking down a mandated minimum sentence of six months, considered the unfairness in imposing such a sentence for a 19-year-old university student with no criminal record who grows six marijuana plants in his basement apartment for use by him and his friends. In that factual scenario, the mandatory sentence cannot be tolerated in a right-minded society. Such a sentence properly fails as constitutionally invalid.

With no mandated minimum the sentencing judge is free to fashion a just and appropriate sentence based on long-held sentencing principles as enshrined in our Criminal Code and as constrained by common law. Even this discretionary sentence is subject to further judicial oversight by our appeal courts. Sentences must not only be proportionate but must be consistent with the range of sentences imposed for similar offences. In this way, discretion is bounded by the rule of law but not fabricated artificially from unsupportable and arbitrary lines drawn by our elected lawmakers. Mandatory minimum sentences, except for those most serious offences, are simply unnecessary.

Winston Churchill made an impassioned plea for offenders’ rights in the House of Commons when he was Home Secretary: “A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man—these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.”

Indeed, the mark of humanity is not the rigid application of unacceptable laws, but our fundamental and unwavering belief that every person has value and worth.

A judge should be free to fashion a just and appropriate sentence with no mandated minimum.

Lincoln Caylor responds to Lisa Silver

An impartial observer of the debate in Canada over mandatory sentencing tools may reasonably be perplexed by the absolute—and apparently irreconcilable—claims to the moral high ground made by both sides. Do restrictions imposed by Parliament on judicial discretion in sentencing create more certain and predictable sentencing ranges, fostering the rule of law—a fundamental postulate of our legal order Or do those restrictions run contrary to our legal order’s core values of justice and fairness by preventing judges from appropriately integrating mitigating circumstances into the sentencing equation?

Mandatory minimum sentences have been in the Criminal Code since its inception. Governments across the political spectrum have passed them, with one of the largest-ever enactments of mandatory minimums occurring under the Chrétien government. Yet the debate today has the appearance of two ships passing in the night. Parliament wrong—judges right. Parliament tough-on-crime—judges lenient. Conservatives versus Liberals. One must look beyond today’s politically interested false dialogue and consider with clear eyes whether there is something about mandatory sentencing tools that is intrinsically contrary to justice and fairness.

A mandatory sentencing tool is any Parliamentary rule affecting the exercise of decision-making discretion by sentencing judges. These tools restrict judicial discretion by defining the extreme ends of the range of possible sentences. A mandatory maximum sentence creates a ceiling—the most severe penalty the most morally culpable convicted wrongdoer can receive for committing an offence. A mandatory minimum sentence creates a floor—the least severe penalty the least culpable convict can receive. These tools do not preclude judicial discretion. They merely establish at the outset the continuum along which mitigating factors can move sentencing judges towards more or less severe penalties.

Parliament has the authority to pass sentencing laws, including by setting the poles defining the continuum of reasonable sentences for an offence. That continuum exists because there is a variety of ways to commit most offences, with varying degrees of gravity and responsibility attached to the underlying behaviour.

Parliament can get the poles wrong. Human institutions, like humans, are neither infallible nor omniscient. They can be biased or act in error. Judges are equally susceptible to these frailties, but their mistakes are naturally case-by-case, potentially producing a highly problematic gap between the law as it exists on the books and the law as it is applied by the courts (and, in particular, by the courts in different parts of the country). In contrast, Parliament speaks with a single voice, so even its mistakes may possess the accidental rule-of-law virtues of clarity, certainty and predictability.

Deciding the moral culpability of a hypothetical offender who has committed the least grave version of an offence with the lowest degree of personal responsibility, as must Parliament in passing a mandatory minimum sentence, is not a mathematical process. Reasonable people can disagree. Most Canadians may accept that anyone who has committed first-degree murder should receive a life sentence (now the maximum sentence available, as Parliament has limited judicial discretion by removing capital punishment from the range of available sentences), but we may quibble, for any number of philosophical or informational reasons, about how long that offender should be denied the right to apply for parole.

Parliament has been granted the constitutional authority to wade into this murky territory and, if it so chooses, to set stakes in the ground concerning where the sentencing analysis must begin and end. If Parliament sets a stake perceived by enough people to be unreasonable, new parliamentarians may be elected to correct the issue. But our courts are only empowered to strike down a sentencing law if it violates the Constitution.

Section 12 of the Charter recognizes an individual’s right to be free from “cruel and unusual punishment.” This nebulous but evocative phrase draws the constitutional line between Parliament and the courts on sentencing. It has been interpreted as requiring a sentencing law to be not merely disproportionate, but grossly disproportionate, before a court has jurisdiction to strike down the offending provision. This recognizes both Parliament’s authority to pass sentencing laws and the nuanced, multifaceted policy analysis Parliament must undertake in setting a range of fit sentences.

Mandatory sentencing tools can and should be scrutinized for gross disproportionality, but they should otherwise be respected. The existence of degrees of gravity and responsibility for particular offenders or offences does not render arbitrary any restriction on judicial discretion. Sentencing laws must be certain, accessible, intelligible, clear and predictable. Mandatory sentencing tools promote those criteria. Sentencing has to consider what punishment our society deems adequate for the criminal behaviour in question, along with the circumstances of the convicted wrongdoer.

A mandatory minimum must generate sentences well outside a reasonable range before the rule of law and Parliament can be displaced. Critics who reject mandatory sentencing tools due to their opposition to a particular mandatory minimum—or, often, to the government that passed it—are allowing political expediency or instrumentalist partiality to subvert a valuable sentencing tool in use in Canada since Confederation.

(Caylor acknowledges the assistance of Gannon Beaulne.)

The post Should there be mandatory minimum sentences? appeared first on Alberta Views.

Imagine receiving a jury summons in the mail. You dutifully report to the courthouse and wait patiently for the selection process to unfold. When your name is finally called, you stand before the judge, lawyers and defendant. One of lawyers utters “challenge,” and the judge immediately tells you to go home. Though you may have been told that this could happen, no one explains why you were dismissed. You are left to ponder the possible reasons: Was it because of my sex, race, age, demeanour or social class? You will never know, but chances are it was for at least one of those reasons.

If this process seems arbitrary, unfair and potentially discriminatory—it is. Thankfully the federal government has proposed eliminating these “peremptory challenges” from criminal trials. Under current law, the prosecution and defence have an equal number of these challenges (how many depends on the crime’s seriousness) and may use them as they see fit. They are not required to explain or justify their choices—hence the name “peremptory.”

Peremptory challenges are a relic of an age when the law cared little for diversity or representativeness. With few exceptions, jurors were white male owners of substantial landholdings. And until very recently, prospective jurors could not be questioned about and vetted for biases against racial minorities. In this milieu, peremptory challenges were viewed as a salve to defendants who could not otherwise exclude jurors who might appear to be hostile towards them.

Jury selection has changed greatly, however, in the 800 years since peremptory challenges were introduced. While we still have a big problem with the underrepresentation of Indigenous people in jury selection pools, we’ve eliminated most formal barriers to participation and buttressed the vetting of potential jurors for discriminatory bias.

Many criminal lawyers assert that peremptory challenges are still needed to ensure impartial juries. Some even claim they are widely used to promote diversity, for example by excluding white jurors in preference for Indigenous or African-Canadian ones. The evidence for this is sparse and anecdotal. For every account of challenges being used this way, a counterexample exists of a lawyer systematically challenging minorities, as in the Gerald Stanley trial, where the defence lawyer dismissed every Indigenous person presented for selection in a case involving the killing of an Indigenous youth by a white farmer.

The only rigorous, systematic evidence on peremptory challenges is from the US. The procedures used there are very similar to our own. And the near-universal consensus of researchers is that peremptory challenges lead to juries that are less diverse and more biased than juries selected without them.

The empirical record, in other words, confirms what our common sense already tells us: Giving lawyers an unchecked power to exclude jurors without justification produces less representative and impartial juries than procedures that rely exclusively on transparent, judicial determinations of juror suitability. It’s well past time to consign peremptory challenges to history’s dustbin.

Kelly Dawson, criminal lawyer and past president of the Criminal Trial Lawyers’ Association, says no.

In response to public outcry over the Gerald Stanley verdict, Canada’s government announced legislation to abolish peremptory challenges of jurors in criminal cases. If successful, this uninformed action will neither alleviate racial bias nor enhance overall trial fairness—quite the contrary.

The right of peremptory challenges has existed since the inception of our criminal jury system. It serves as a limited and quick means for Crown and defence lawyers alike to dismiss jurors who they suspect may be unsuitable. These suspicions might be based upon subtle visual cues such as frowning or smirking, or perhaps a juror expressed no interest in serving but was denied a hardship exemption. Peremptory challenges are allocated equally to both Crown and defence, with the overall number based on the seriousness of the charges (in the Stanley case, 12 each). After these challenges have been exhausted, the balance of required jurors are seated purely by random draw. Peremptory challenges are the only means to provide Crown and defence alike some small input into the jury’s composition. They serve to enhance the appearance of trial fairness, which in turn increases the likelihood that both the accused and the public will accept the verdict as just.

It remains an unacceptable reality that Indigenous people rarely serve as jurors in Canada. It is common to see an assembled “pool” of 100–200 potential jurors in which only two or three appear to be of Indigenous heritage. This reality is attributable to a provincially controlled process that effectively excludes many Indigenous people from potential jury duty.

Prospective jurors in Alberta are drawn from the province’s registries database. It includes only people who have had some form of official dealing with the provincial government, such as registering vehicles or purchasing property, and excludes a disproportionately large number of Indigenous persons. Alberta’s Jury Act also prohibits anyone with an unpardoned criminal conviction (regardless of age or seriousness of the offence) or an outstanding criminal allegation from serving as a juror. A disproportionately high number of Indigenous people become involved in our criminal justice system and are thus excluded from jury service. Many other barriers exist, including travel requirements, disillusionment with the Canadian legal system, and the nature of the jury questionnaire.

In 2001 New Zealand comprehensively reviewed their jury system, including the issue of underrepresentation of Indigenous Maori on juries. That country’s Law Reform Commission concluded that peremptory challenges were not a material cause for Maori underrepresentation. Factors such as Maori knowing individuals in the trial, a disproportionate rate of criminal records and a variety of practical obstacles (including the high cost of childcare) were all to blame.

Racial bias may well have been improperly dealt with in the Stanley case. But until the gross underrepresentation of Indigenous persons in our jury pools is addressed, abolishing peremptory challenges will not achieve anything—other than damage to our jury trial system and fleeting political cover for the federal government.

Steven Penney responds to Kelly Dawson.

Kelly Dawson and I agree on a critical point: the underrepresentation of Indigenous Canadians on criminal juries has little to do with peremptory challenges. Rather, it is mainly a consequence of their underrepresentation in the pool of jurors available for selection at court.

There are many reasons for this situation, including a disinclination to participate in what some consider an alien and hostile system; logistical and socioeconomic barriers (such as geographic remoteness and poverty); discriminatory eligibility rules (such as bans on jurors with criminal records); and inadequate efforts by provincial governments to ensure proportional representation in selection databases and summons delivery. Ameliorating this problem will require both substantial institutional reform and the ongoing commitment of justice system participants to heal the wounds inflicted on Indigenous communities by colonization, residential schools and ongoing discrimination.

Where Dawson and I part ways is in our assessment of whether eliminating peremptory challenges will make this unfortunate situation slightly better or slightly worse. Like many criminal lawyers, Dawson believes that peremptory challenges help keep people who are partial to one side or the other off the jury. The  jurors chosen will therefore be more likely to decide the case exclusively on the evidence and the law, rather than bias or enmity.

Unfortunately, little evidence supports this proposition. Lawyers typically know next to nothing about prospective jurors’ attitudes about the accused or the case. They are left to infer jurors’ mindsets from their appearance and demeanour, including (as Dawson observes) “subtle visual cues such as frowning or smirking.” Decades of social science research, however, has shown that people are not very good at predicting others’ states of mind from these kinds of cues.

To make matters worse, people also consistently overestimate their ability to discern others’ intentions. While lawyers may genuinely believe they are dismissing jurors likely to be hostile to their cause, in a high proportion of cases they will be wrong. Lawyers and judges often point out (correctly) that it is dangerous to assess witnesses’ credibility based on their body language and demeanour when testifying. The plausibility and consistency of their testimony, as well as its coherence with other evidence, is much more revealing of credibility than these nonverbal cues.

Peremptory challenges raise the odds of both wrongful acquittals and wrongful convictions.

Jury selection is no different: biased jurors are more likely to be exposed by questioning them about their beliefs than by inferring those beliefs from appearance and demeanour. Helpfully, the same proposed legislation (Bill C-75) that would eliminate peremptory challenges would also buttress the “challenge for cause” process used to question prospective jurors for partiality. Under this procedure, the defence and prosecution may ask the court to authorize the questioning of every prospective juror called for selection. If the lawyer for an Indigenous or other minority accused makes this request, the court will automatically permit questioning for racial bias. And as should have occurred in the Gerald Stanley trial, prosecutors may also seek to question jurors for racial bias when a white accused is charged with an offence against a non-white victim. Currently, the suitability of jurors questioned under this procedure is decided by other members of the jury pool. Under Bill C-75, this decision would be made by the trial judge, who is better placed to assess partiality in a fair, efficient and consistent manner.

The general finding that people are overconfident in assessing others’ mental states from nonverbal cues is buttressed by specific studies testing lawyers’ ability to choose favourable jurors. Lawyers using peremptory challenges in controlled experiments fared no better than chance in selecting jurors likely to vote for their side. Even worse, juries selected using peremptory challenges proved more extreme in their inclinations (tending to strongly favour either the prosecution or defence) than juries chosen without them. They were also less representative: jurors outside the socioeconomic mainstream were placed on substantially fewer juries than warranted by their prevalence in the general population. This belies the notion, repeatedly endorsed by the courts, that jurors are to be chosen from a “fair cross-section” of the whole community.

By making juries less demographically diverse and more ideologically extreme, peremptory challenges reduce the likelihood of a just verdict. This effect is magnified in more serious cases where each side is afforded a greater number of challenges. There is strong evidence, in other words, that peremptory challenges raise the odds of both wrongful acquittals and wrongful convictions.

As defence lawyers are acutely aware, discrimination in the criminal justice system is often facilitated by discretion. Decisions that can be made on subjective hunches with little or no justification are more likely to be biased than those that must be grounded on concrete information and objective standards. We shouldn’t be surprised that giving highly motivated adversaries an unfettered power to dismiss jurors without explanation results in juries that are less representative and less impartial than those chosen by random selection and (when necessary) open questioning.

Kelly Dawson responds to Steven Penney.

Steven Penney opines that peremptory juror challenges be consigned to “history’s dustbin” as a relic from an age which cared little for “diversity or representativeness.” While these may be desirable elements for a justice system, they must never trump the paramount purpose of a criminal trial—to ensure a fair trial for the accused. Peremptory jury challenges have for centuries helped to serve this purpose. The federal government has now opted, in its typical knee-jerk fashion, to abolish this valuable protection of an accused’s right to a fair trial based on public reaction to one unique case, instead of properly examining the major underlying systemic and societal issues that face our Indigenous population in the courtroom and beyond.

Ironically, it is Indigenous members of our society who disproportionately find themselves standing in a prisoner’s dock before a room full of white potential jurors, with few if any Indigenous people in sight. It is a common experience for defence lawyers in this situation to challenge as many non-Indigenous members of the jury pool as possible in the usually futile hope of securing even one Indigenous juror to “even the deck.” While professor Penney dismisses the evidence for such claims as “sparse and anecdotal,” there is not one defence lawyer I have known in over 30 years of practice who has not shared my experience of using peremptory challenges for this purpose.

Penney argues that addressing racial bias in the jury selection process can best be achieved with procedures that rely “exclusively on transparent, judicial determinations of juror suitability,” instead of giving lawyers an “unchecked power” to challenge. Firstly, the power is far from “unchecked,” as challenges are limited in number and equal to what the opposing lawyer is entitled to. Secondly, his argument ignores the recognized value of affording the accused (again, disproportionately Indigenous) some small belief that he has a say in picking the “impartial” jury that will determine his fate. Lastly, the large majority of jury selections do not involve contentious issues such as racial bias—peremptory challenges remain a quick and effective tool for such cases.

Penney speaks of the value of “rigorous, systematic” evidence. Unfortunately, the only evidence we have as to what really happened during the Stanley jury selection process are anecdotal media reports. According to these reports, of the approximately 200 (out of 700 summoned) people who appeared for jury duty, about half appeared to be Indigenous. Approximately half of this number were excused at their request due to financial hardship, connections to the parties involved or other like reasons. It was further reported that, within the Indigenous group remaining, many appeared to be visibly or even vocally antagonistic towards the accused. In such an emotionally charged setting it is perhaps understandable that the defence might conclude that racial tensions threatened the accused’s right to a fair trial, and that peremptory challenges were used as an expeditious way of reducing that risk. Would a formal “challenge for cause” application have been a more appropriate legal tool in such a case In a word, yes. Is this one rather unique case a reason to remove the availability of peremptory challenges for the many other cases where racial bias is not an issue No.

Challenges serve the paramount purpose of criminal trials: to ensure a fair trial for the accused.

The countries which have previously considered eliminating peremptory challenges over racial bias concerns (New Zealand, UK, some states in Australia) have all conducted extensive research and consultation before making any changes to their criminal justice procedures. Most countries concluded that peremptory challenges should be retained in some form, while recognizing the need for improved safeguards against racial bias. Our government, in its rush for a quick and politically expedient fix, has failed to do any of this hard work.

Many solutions could specifically address concerns about the discriminatory use of peremptory challenges. These include reducing the number of such challenges allowed. Granting a smaller number might still protect the right of the accused (or the prosecution) to veto individuals who appear clearly unsuitable for service, while reducing the risk of challenges being used to fundamentally alter the racial composition of a jury. Another promising suggestion is to adopt the US rule that prohibits peremptory challenges based on race alone. This rule provides a judge with the power to require an explanation for the removal of a potential juror if it is believed that the requested exclusion is discriminatory. An additional benefit of this rule has been an apparent reduction in lawyers challenging racially diverse jurors in the first place. Lastly, the federal government must consider easing existing rules that restrict lawyers from seeking a more robust “challenge for cause” process.

In the context of the Stanley case, the use of peremptory challenges became a visible and easy flashpoint for criticism. But there were several other significant concerns about discrimination in the case related to both the investigation and prosecution. The Stanley decision also came at a time when several high-profile cases were seen to have failed other Indigenous victims, such as Cindy Gladue and Tina Fontaine. Without commenting on the specific legal outcomes of those cases, the underlying thread is that our criminal justice system has lost, or probably never had, legitimacy in the eyes of our Indigenous communities. This is a much more difficult and uncomfortable issue, one which cannot be fixed by a simplistic amendment to the Criminal Code.

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The post Should Jury Selection Be Changed? appeared first on Alberta Views.

This past summer I volunteered with Elizabeth Fry Society, an organization that supports women and children, especially within the court system. (Elizabeth Fry was an 18th-century British Quaker who worked to reform prisons, particularly for women.) Every weekday morning, Elizabeth Fry assists duty counsel at courtrooms like 356. Duty counsel is a legal service available for all Albertans and, from my vantage, seems mainly to help the self-represented adjourn their cases until they can find a lawyer, usually either through Legal Aid or Student Legal Services, which both provide professional assistance to people who couldn’t otherwise afford it.

People on their first criminal charge are eligible for the alternative measures program, which allows, in exchange for a guilty plea, various options (e.g., community service, charitable donations, contemplative essay writing) to a criminal record. Some of the accused are eligible for mental health diversion or programs to address drug or alcohol addiction. Most people without lawyers don’t know that “the system” wants them legally represented and their underlying problems sorted out.

But at the courthouse, power is everywhere. The effect of power is seen in how the men show up for court with their pants dangling or flies undone. They have had to take off their belts to go through security downstairs, and they rushed, worried they’re going to be late for their “9 a.m.” appearance even though, really, they have all day. Too often the women appear in revealing clothes, transparent T-shirts, bright brassieres flashing through. They have neck tattoos and hand tattoos and face tattoos. Missing teeth. You don’t confuse the “self-reps” with lawyers.

Power is the security guard that follows the young Black man from the case management office on the main floor to the fourth-floor courtroom. When the young man comes to our desk, the guard tells him, loudly, to stop. The squeamishly white guard winks at my co-worker and me and says, “I need to keep an eye on this troublemaker.” We assign the “troublemaker” a chair at our desk, and the guard continues to stand watch, immediately behind us while we work, so close we can’t move our chairs back. He finally leaves once the youth goes in to see duty counsel.

When the kid re-emerges, he tells us that the guard bumped into him downstairs. He replied, he says, with a gay slur that he repeats so quietly I ask him to say it again. Of course, I think, that would make brittle stuff of the security guard’s ego.

Power is the all-in-black lawyer who comes to the duty counsel sign-in table and rustles through my pages to pull out my docket sheets, which list everyone appearing at the courtroom and their charges. These papers are available to anyone downstairs. Usually lawyers who need to consult my copy, kept in my file in front of me, ask before they start rooting through. Surprised, I look up at her and decide to ask if she would like to consult with duty counsel. She glares. “Um, no.”

Power is how the clients overshare, thinking that we are lawyers because we are nicely dressed and have file folders and listen. One man, Indigenous, shows up drunk and agitated, although previously I’d only seen him appear at courts sober and respectful. He still hasn’t found a lawyer. But he has his housing situation sorted, he insists, and he has started a new business. “It’s a rickshaw business. Or,” he pauses, “not actually a rickshaw. More of a couch on wheels.”

Those who work with the marginalized risk burnout. I don’t spend my life working with low-income criminal defendants, just a few hours a week, and the clients broadly don’t bother me. Even the man in his late 50s, movie-star suave with action hero sunglasses, who announces that he plans to plead not guilty. “So, you’d like to see duty counsel to enter a plea of not guilty?” my co-worker reiterates. I scan the man’s charges and they read like the wireframe for a Hollywood heist film: break and enter, possession stolen property, disqualified driving, dangerous driving, hit and run, impaired driving, refusal to stop for a peace officer, obstructing a peace officer.

“Well,” he announces in a conciliatory tone, “definitely some shit went down.”

Even the scruffy kid oozing pervy energy, who informs me that he’s seeking a publication ban on his sexual assault charges.

But this detail, the couch on wheels, glues itself to me. A couch is so heavy. How do you attach wheels to it How do you make it roll Who would ever want to ride on such a thing Wouldn’t walking be faster Later, I look at his charges, and they’re stupid—failure to appear in court, failure to show up for fingerprinting. That day, some passing lawyer takes pity on him and offers to ask for his adjournment for today. So he can find a lawyer. So he can sort his life out, find housing, get a job. So he can solve all his problems. Tomorrow.

—Jay Smith is an Edmonton-based writer and law student.

The post Courtroom 356 appeared first on Alberta Views.

Anyone reading about these outcomes might well be alarmed. How many more cases in Alberta are being stayed Why is this happening And is anything being done about it?

A Supreme Court Decision precipitated this. In the summer of 2016 lawyer Eric Gottardi represented his client Barrett Richard Jordan at the Supreme Court of Canada. Jordan had been convicted in 2008 of operating a dial-a-dope operation. Gottardi argued that the case had taken so long to move from the charge to the end-of-trial—49.5 months—that Jordan’s rights to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms had been violated. Given the historically uncertain parameters of “reasonable” (which even the Supreme Court described as “something of a dice roll”), and given that defence lawyers also had to show the accused to be adversely affected by the delay, Gottardi thought his case was hopeless. He carried on because he wanted to clarify the process and stop the micro-accounting that had become the norm in determining “unreasonable time.”

Much to the surprise of Gottardi and Jordan—and the Canadian legal community—not only did the Supreme Court decide in favour of Jordan, but a majority of the court also set out a framework (of their own creation, not part of Gottardi’s argument) for future decisions in section 11(b) applications. The framework is that if more than 18 months in provincial court has passed between a charge and the end-of-trial (or 30 months at a superior court), then the onus is on the Crown to show why the case should not be permanently stayed on the basis of unreasonable delay. The specifics read more like legislation than a standard judicial decision, but the majority of the court felt it needed to address the “culture of complacency towards delay” that permeated the justice system.

Thus was born the Jordan application—a request by defence counsel for a judicial stay when a case has exceeded the time limit set by the Supreme Court in the Jordan decision.

From October 25, 2016, to September 28, 2018, according to the Alberta Justice and Solicitor General website, 196 Jordan applications had been filed in Alberta courts. Of those, 17 were granted (of which three were being appealed by the Crown). These numbers do not include the hundreds of cases that never got to the formal application stage because they were dealt with earlier by the Crown—in many cases, proactively thrown out—using Alberta Justice’s protocol.

But even a single stay is significant when applied to a case involving a horrific crime. The basis of the Jordan decision, and section 11(b) of the Charter, is encapsulated in the simple phrase “justice delayed is justice denied.” It seems like an uncomplicated concept. But victims of crimes, and their families, do not feel they have received justice when a Jordan application succeeds. Understandably, they want the accused to be put on trial.

Stayed cases are disheartening for the police who laid the charges, for victims and their families—and even for the accused who
want their day in court.

Most of the accused also want their day in court. This may sound far-fetched—especially since many people view a judicial stay only as a jail-skipping deal for criminals. But that’s not the full picture. Barrett Richard Jordan, for instance, had served his sentence before the Supreme Court set aside his convictions and awarded a stay. The accused want to tell their side of the story. If you are ever charged with a crime you did not commit, you’ll appreciate your right to a trial, your right to a timely trial, and you’ll want an acquittal, not a judicial stay. A judicial stay, despite the legal presumption of innocence in court, carries a connotation of guilt outside of court.

What a judicial stay resulting from a Jordan application really signifies is a failure of the legal system to get individuals from charge to completion of trial in a timely manner.

This failure existed long before the Jordan case. James Pickard, president of the Alberta Crown Attorneys’ Association, says “Jordan just shone a light on a problem that was present for a long time.” Although not given as much publicity as Jordan, older, much-cited Supreme Court of Canada cases such as R. v. Askov (1990) and R. v. Morin (1992) dealt with similar issues, but the decisions left more discretion to judges regarding what constituted unreasonable delay. The journey from a charge to the end of trial is always going to take some time. Social media have no problem delivering lightning-fast verdicts (usually of the “guilty” variety). Social media generally don’t rely on facts, value the presumption of innocence, or understand the importance and constitutional right of due process. But as Jordan shows, the natural slowness of justice is different from a system that “has lost its way.”

R. v. Jordan has not only drawn the attention of the media. Alberta Provincial Court judge Sean Dunnigan says “Jordan is always on everyone’s radar—no one wants to offend those timelines.” For evidence of that, spend some time in courtroom 306 in Calgary or courtroom 356 in Edmonton—the sites of continuous unscheduled dispositions and of many adjournment applications—and you’ll now see pointed questions being asked by the judges, the Crown and defence counsel about when the “next step” in a case will be taken. This is a good thing.

The downside of the pressure to keep things moving in court is that the Crown has had to adopt a triage approach to its prosecutions. This means that those cases which clearly aren’t going to survive a Jordan application get proactively stayed by the Crown. It also means that minor cases are often thrown out to free up prosecutor time to deal with more serious cases.

The triage policy also means that reduced sentences are offered—more so than in previous years—to encourage guilty pleas to save time, and that more cases are diverted away from the criminal justice system, albeit to equally underfunded, under-resourced alternatives. The triage policy, and the stays, are disheartening for the police who laid the charges, for victims and their families, and even for accused who want their day in court. It’s also disappointing for the Crown prosecutors, whose job it is to support the police and victims of crime through prosecution.

Keeping an eye on Jordan timelines has helped to shake up the old attitude that delay is okay. But making everyone aware of delay doesn’t fix it. Some causes of court delay are beyond the control of prosecutors. For instance, Alberta’s population increased from about 3.5 million in January 2008 to 4.3 million in January 2018. The larger the population, the busier the courts. Another cause of court delay is the change in the type of cases going to trial. They are increasingly complex. In part, this is because many cases—not just Jordan applications—involve Charter arguments. Search and seizure cases, for instance, have a Charter component. As a nation, we are lucky to have the protection the Charter provides. But compared to other constitutional texts, it is relatively new and unexplored, so Charter cases can take extra time.

Along with an increasing number of Charter arguments, and partly because of Charter arguments, the Crown has increased disclosure requirements. Disclosure means that the Crown must show the defence the evidence they have to support the charge. In theory, this should speed up a case because everyone has the same information. But in some cases the disclosure documentation is overwhelming—to gather, to interpret, and then to track during disclosure. Related to the disclosure requirement is the fact that many cases are now more complicated because they involve electronic evidence, including relevant material stored on cell phones and computers.

Part of the solution to the time crunch would be for the government to appoint a sufficient number of Crown prosecutors. James Pickard describes his job as a Crown prosecutor over the past few years as a constant sprint. Prosecutors are always looking for efficiencies in order to reduce court time, but these are getting smaller and smaller. In 2017 the Alberta government announced it would appoint 50 new prosecutors. Pickard points out that 15 of those prosecutors are required to fill bail-hearing positions that the government created this year, so they won’t be of any help with the backlog. The other 35 appointments will fill existing vacancies. According to Pickard, even with these appointments, and several other recent staffing announcements, the Crown will be operating at a complement that still falls short.

Even a single stay is significant when applied to a case involving a horrific crime.

Another part of the solution would be for the federal government to appoint more judges to the Alberta Court of Queen’s Bench. Post-Jordan, in the spring of 2017, Ottawa did appoint four new justices to that court. But this is another ongoing area of perpetual shortage and corresponding delay. According to Federal Judicial Affairs, Alberta Court of Queen’s Bench had seven vacancies as of October 1, 2018. This is more vacancies for a court at that level than in any other province or territory in Canada except Ontario. The Alberta Court of Appeal also has four vacancies, which is more vacancies than at any other court of appeal in Canada. The Supreme Court in Jordan commented that “[g]overnment will also need to consider whether the criminal justice system (and any initiatives aimed at reducing court delay) is adequately resourced.”

Court delay isn’t entirely caused by underfunding and staffing shortages. Lawyers contribute to the problem when they take on too many cases. This results in court bookings further down the road (because the lawyer doesn’t have time to prepare in the short term) as well as “creative” applications to buy time. The nature of justice itself also contributes to the delay. Justice is a large and complicated business that is interwoven with provincial healthcare, social welfare and even the state of the oil industry and the employment rate—especially when those things aren’t working well. The sheer variety of people and charges and hearing types make a certain amount of bureaucracy-related delay unavoidable.

Defence counsel are sometimes vilified by the public for successful Jordan applications—as though by doing their job and representing their client’s rights under section 11(b) of the Charter they are cheating or manipulating the system. But under the Jordan framework, defence counsel can’t both cause a delay and win a Jordan application for that delay. In the calculation of the passage of time under Jordan, any amount of delay that can be attributed to the defence is subtracted from the total calculation. (The calculation still has much of the micro-accounting that Gottardi was hoping to get streamlined.)

Through Legal Aid Alberta, defence counsel provide many free services that directly or indirectly reduce pressure on the courts, thereby speeding up the court process. These include duty counsel, who provide brief advice to the accused on their first court appearance. Legal Aid Alberta reports that as of July 2018 it took only four days for a client to be paired with a Legal Aid lawyer, an improvement from 12 days earlier in the year. This time frame starts after the client has gotten through on the Legal Aid phone line, provided all the required information and met the eligibility requirements to receive Legal Aid. Service eligibility means that whatever the accused is charged with must come with a risk of jail time. Currently, financial eligibility for an individual means a net income of $1,638 in the last 30 days or $19,653 in the last year. But as Criminal Defence Lawyers Association (CDLA) president Ian Savage points out, someone working full time at minimum wage makes too much money to qualify for Legal Aid. And so, if you make more money than the Legal Aid cut-off but not so much that you can afford to pay a private-practice lawyer (a basic impaired driving defence ranges from $5,000 to $25,000), you end up representing yourself in court.

“Self reps” are one of the largest contributors to court delay. Kelly Dawson, past president of the Criminal Trial Lawyers’ Association of Alberta (CTLA), says a trial that would normally take half a day can take three days when accused represent themselves. Contrary to the usual stereotype that lawyers complicate everything, when it comes to court appearances, lawyers actually speed things up. When accused represent themselves in court, the prosecutor and judge end up providing tips and suggestions to help the case move forward. Besides putting prosecutors and judges in positions at odds with their job descriptions (the judge is supposed to be neutral; the Crown is building a case against the accused), this situation erases one of the major checks and balances of our judicial system—the defence lawyer. Visualize the iconic scales of justice at a steep tilt, with all the resources and everyone, except the accused, piled on one side.

Defence lawyers have long argued they do not have the ear of the government on the matter of Legal Aid funding. Defending alleged criminals is not nearly as attractive to the voting public as arresting people or putting criminals away. In April of 2018 two different associations of defence lawyers in Alberta wrote pointed open letters to Justice Minister Kathleen Ganley. The Calgary letter, written by Savage, argues that rather than fund Legal Aid, and thus provide legal representation for all in need, the government “prefers to feed and care for its more attractive and socially appealing bigger brothers and sisters: the police, the prosecution service and the jails.” Savage’s letter also carried with it a work-to-rule threat where, after arguing that defence lawyers have been propping up the entire justice system for years with unpaid work, he wrote “This time, the CDLA and other defence lawyers will not fix your problem. Today we will begin withdrawing our unpaid services and expect the government to pay the true cost of the justice system.”

The other letter, written by Dawson on behalf of the Edmonton-based CTLA, was less openly threatening than Savage’s but equally fact-filled and forceful. Dawson noted the “sad state of affairs relating to legal aid funding, and the resulting negative impact to the quality of justice in our province.” He acknowledged that the NDP government “inherited a legacy of total neglect of the legal aid system” and that there was a 25 per cent increase in funding between 2014 and 2016, but went on to explain that the increased demands for Legal Aid services during that time include a 67 per cent increase in adult criminal cases requiring Legal Aid.

If you are ever charged with a crime you did not commit, you’ll appreciate your right to a timely trial, and you’ll want an acquittal, not a judicial stay.

The fixes in Alberta have been slow and siloed. The government committed $89.3-million for Legal Aid in 2018 and says that since taking office it has increased Legal Aid funding by almost 40 per cent. In October the government announced an additional $14.8-million, bringing the 2018–19 operating grant to $104.1-million. This is a big improvement, although it falls short of Savage’s estimate of the cost to solve a $150-million crisis.

Also in October the governance agreement under which Legal Aid Alberta operates was renegotiated. Positive changes to come into effect in April 2019 include tying Legal Aid eligibility requirements to the Consumer Price Index and creating a reserve fund that will help buffer the unexpected spikes in demand that formed part of Dawson’s concerns.

There have been other improvements. Minister Ganley convened a post-Jordan Criminal Justice Summit in April 2017—including broad representation from individuals and organizations in the justice system—to address court delay. The Court of Queen’s Bench has extended its booking hours and will consider expediting cases. Alberta’s Provincial Court judges spearheaded development of the highly successful Case Management Office (CMO), which helps to reduce court appearances and streamline the process. Most first appearances at Provincial Court can now be done at the CMO desk, thus freeing up courtrooms and all of the resources associated with them.

Some of the most applauded changes in the Alberta courts process involve “diversions”—referrals—to specific courts and pathways that better serve the needs of some accused. These include Indigenous courts, drug treatment courts, domestic courts, Edmonton’s new Mental Health Court and Calgary’s mental health diversion service. These efforts are laudable, especially because, as the Provincial Court’s website points out, “The traditional adversarial process is not necess-arily the most appropriate for every process or for every population.” Diversions reduce the volume of cases in regular courts and thus accelerate proceedings generally, but they likely don’t change the speed of the process for the individual accused. In fact, sometimes precisely because of the need for diversion, diversions may take longer than regular court. And of course, diversions also require money and staff to operate.

The federal government too is introducing measures they say will reduce court delay. Bill C-75 contains a section to eliminate preliminary inquiries in most cases, and a section that would allow police to attend court by affidavit rather than in person. These provisions have received mostly negative reviews. Lawyer Eric Gottardi says one of his biggest regrets about the Jordan case is that it is now being used to justify getting rid of preliminary inquiries.

The overriding problem with the current approach to fixing court delay is that it is piecemeal. No one has a master plan. Everyone in the justice system—government, judiciary, defence, prosecution—may be doing their bit, but it is a bit. And while the bits might be holding the whole together for today, the situation is far from stable or sustainable. Or just.

Essay and fiction writer Barb Howard’s most recent book is the story collection Western Taxidermy (NeWest).

The post Justice For None appeared first on Alberta Views.

After a security check, anyone can enter this room and watch the Supreme Court of Canada at work. Nine chairs upholstered in red leather stand on a dais, against walnut panelling the colour of dark chocolate. Behind its traditional look, this is a modern courtroom, with display monitors, wireless Internet, laptops on the judges’ bench and a wheelchair-accessible lectern. At 9:30 a.m. the doors behind the dais open and the court attendant announces: “The court. La cour.” The courtroom stands while the judges—four women and five men—take their seats. A small woman who has enlivened her black gown with a striking lace collar makes an informal, smiling entrance and sits in the middle.

Chief Justice Beverley McLachlin introduces the lawyers to her fellow justices. They’re arguing a gnarly case involving the construction manager and owners of an Edmonton building, and an insurance company. The manager and owners claim their insurance contract covers the replacement of windows damaged during cleaning; the insurance company disagrees, citing a clause excluding coverage for “making good faulty workmanship.” The case seems to bring out the inner handyman in several of the justices: the hypothetical questions are full of plumber’s elbows and other tools. McLachlin listens keenly, at times amused at the back-and-forth between judges and lawyers, occasionally asking a question herself. She exchanges some sotto voce conversation with Justice Rosalie Abella, who sits to her right. At one point she stifles a yawn and smooths her silvery hair.

Like the building in which she has worked since 1989, Beverley McLachlin mixes elegant impressiveness with a sturdy practicality. Her judicial and leadership skills, her respect for the law and her sense of responsibility to Canadians are grounded in an unpretentious, even self-deprecating, common sense. She likes to laugh, and often at her own expense. Both the ideals and the pragmatism owe much to her upbringing near Pincher Creek, Alberta.

Some of her admirers consider her the only thing that stood between Prime Minister Harper and absolute power.

Except for the fact she is very much alive, the first female chief justice of a Commonwealth high court and the longest-serving chief justice in Canada would be an obvious choice when Canadians go looking for the image of a (dead) woman to put on their money. McLachlin is now in the home stretch of her career, framed by the work of two Trudeaus, père et fils. Although Pierre Trudeau had left office by the time she joined the Supreme Court, the Charter of Rights and Freedoms he championed has profoundly informed her time on the bench. Having weathered the resentment which Stephen Harper’s administration felt for the Supreme Court, she now faces a prime minister with a more conciliatory stance. It is Justin Trudeau who will see McLachlin out when she reaches the obligatory retirement age of 75 in 2018.

After hearing the lawyers’ arguments in the insurance case, the justices adjourn to their conference room for discussion. By 2:30 p.m., McLachlin, dressed in a navy suit with a pin-striped effect and a ruffled white blouse, is working in her office. She has a reputation for guardedness, and it’s true that she is cautious and well-rehearsed on subjects having to do with the court. But she can also be casual and spontaneous. Spotting me across the hall, before I’ve had a chance to introduce myself, she calls out, “You were in court this morning!” When I remark on the dryness of the window-washing case, she laughs delightedly. “There’s nothing like a good tax case or a good insurance case to bring joy to a judge’s heart!” Then, patiently, she explains how the court’s interpretation of a few standard clauses in insurance contracts will provide needed certainty to builders, owners and insurers across the country.

She shows me Robert McInnis’s painting “Pincher Creek,” hung where she can see it from her desk. A road unfurls through grasslands towards a tiny settlement, with foothills in the background. The road is a bit bigger now, she says, appraising the scene where the prairie meets the Rockies, but otherwise it’s the same.

Robert McInnis’s painting “Pincher Creek” hangs where McLachlin can see it from her Ottawa desk. (Jessica Deeks)

In some ways McLachlin’s mid-20th-century childhood sounds like a more distant time, even like an adventure in a Girl’s Own Annual volume. The first-born of Eleanora Kruschell and Ernest Gietz’s five children, Beverley grew up on her parents’ ranch at the headwaters of Mill Creek, about 30 km along the foothills from Waterton Lakes National Park. The Gietzes were of modest means and supplemented their income with paying guests. But the beauty of their ranch and the spectacular views looking west into a canyon on the eastern slopes of the Rockies gave their eldest a rare sense of privilege. She rode her own saddle horse, hiked the nearby hills and enjoyed the ranch animals. Her parents were devout Pentecostal Christians, with strong ethical views, and that too left its mark on their daughter.

Warren Winkler, a former chief justice of Ontario, also grew up in Pincher Creek. When I asked him if there was something in the local water that produced distinguished judges, he answered without hesitation, “It’s the wind. It’s the windiest place in the world, and it makes your mind work quicker.” I try out this dubious theory on McLachlin and she says, “Absolutely! I concur in that—and the wind makes you resilient. You learn to stand up against adversity.”

One of the adversities of the Gietz ranch was its isolation: too remote for school bus service. So Beverley boarded in town during the week while attending the local high school. Fifteen or so girls lived in a big house with three or four bedrooms, a roster of chores and a den mother named Mrs. Hegel who kept order and saw to the meals. The teenage Beverley was a mystery to her teachers, with a baffling combination of extraordinary reading ability and an equally high lack of attention. One teacher dismissed her reading retention rates—“a girl can’t do much with that”—and advised her to avoid jobs as a telephone operator or a waitress because of her attentional problems. She took that advice at least, enrolling at the University of Alberta in 1960.

By then, Pincher Creek had taught her a lot. A big family in a remote place provided abundant amounts of solitude and companionship: the former taught her self-reliance and the latter compromise and communication skills. “People amused and entertained themselves by talking,” she remembers, and often the talk was about the wide world outside Pincher Creek. Her public school education was similarly broad-ranging, including a memorable social studies teacher who led them in discussions of world affairs large and small. Pincher Creek itself, with fewer than 4,000 inhabitants, included First Nations people, the descendants of English remittance men, Hutterites, Mennonites, Catholics and other immigrants. “It would be hard to grow up in such a setting and think there’s only one right way to live or one religion or one way of doing things that’s exclusively correct or even greatly superior to other ways,” McLachlin says. “When you grow up in a small but very diverse community, it inculcates a certain breadth of acceptance.”

She had planned to study modern languages at university, but finding her 18-year-old brain “very muddled,” she switched to philosophy. “It helped me learn to order my ideas better,” she once told Susan Harada in an interview. “You have to be able to defend or analytically attack a position, and you have to be able to set out either process in clear terms that other people can understand.” When she finished her degree, she considered graduate school in philosophy. Pincher Creek had one lawyer, Garth Turcott (who in 1966 won the NDP’s first-ever seat in the Alberta legislature, in Pincher Creek-Crowsnest), but it never occurred to her to follow in his footsteps. It was her boyfriend Rory McLachlin, whom she would marry in 1967, who suggested that the law would let her apply her logical skills to real problems rather than academic ones. Plus he thought she’d be good at it. Intrigued, she wrote to the dean of law at the U of A for information about applying, and he responded, “You’re accepted.”

Her reaction was measured: “So I thought, I’ll try it. And I’ve been there ever since.”

Rory McLachlin was one of the first of a series of men who had an idea, or a place in law school, or a seat on a court for her. Sometimes, as Beverley McLachlin talks about a career she sees as a string of fortuitous, unlooked-for advancements (“I’ve always lived my life without any grand plan. There was no conception of being a lawyer, much less a justice, and at each stage I had no conception of what would come after”), you could almost see her as the Accidental Chief Justice. That would be a mistake.

During her first decade on the Supreme Court, McLachlin dissented from the majority in more than half the cases.

Once she took up the law, there was no stopping her. Graduating first in her law class (she also earned an M.A. in legal philosophy), she practised law in Alberta and BC and taught in the University of British Columbia’s law school. At 37, in 1981, she became a judge at the County Court of Vancouver. In 1988 Rory McLachlin died of throat cancer, leaving her with their 12-year-old son, Angus. That same year, she became the Chief Justice of the Supreme Court of BC. Brian Mulroney appointed her to the Supreme Court of Canada in 1989, only the third woman to sit on the Supreme Court. Jean Chrétien chose her as Chief Justice in 2000. Her rise was so swift that an officer of the Law Society of BC joked that she’d progressed through the court system “faster than it takes most litigation.”

McLachlin’s career, of course, is the Canadian Dream: a girl raised on an isolated ranch, without money or powerful friends, ascends to one of the country’s most exalted positions. She succeeds, according to Warren Winkler, because of her formidable intelligence and work ethic, the speed with which she absorbs and analyzes material, and something he calls natural leadership. He stresses the “natural” because he claims she couldn’t have learned it in Pincher Creek—“there was no one to lead there.” Whether it was the Supreme Court or the Canadian Judicial Council, on whose executive she and Winkler served, she seemed to know by instinct how to produce the desired effect from her colleagues. Comparing her to an orchestra conductor, Winkler remembers, “She had such a light touch and she’d have everyone going in the direction she wanted, and they would hardly be aware that they were going there. Yet they’d all have smiles and everyone would get to the destination, and there would be no static along the way.”

The only leg up McLachlin had was via the women’s movement. Speaking about the 1980s, and her rapid journey from Vancouver’s County Court to the Supreme Court, she says, “I think I got carried along in this huge crise de conscience—‘We have no women judges. What are we going to do about it?’ And there was one that looked not too bad so they pushed me up very quickly.”

The “one that looked not too bad” has been a judge for almost half her life. Thinking over McLachlin’s Supreme Court record, Mayo Moran, a former dean of the University of Toronto’s law school, says her decisions are “not easy to call.” Unlike judges who generally fall to the right or the left, she seems to decide each case on its own merits. She says she tries hard “not to be too strategic,” and just to listen. Some of her early judgments, such as her dissent in the 1990 Keegstra case (she found the hate-speech criminal offences unconstitutional) or the 1992 Zundel case (where the crime of spreading false news was struck down), seemed to characterize her as a libertarian. She enraged many feminists in the 1991 Seaboyer case, where the rape shield law was struck down. During her first decade on the Supreme Court, she dissented from the majority in more than half the cases. Sometimes the court eventually came to see things her way: she dissented from the majority who disallowed assisted suicide in Rodriguez (1993), and 22 years later, in the Carter case (2015), her view prevailed.

When she became Chief Justice, McLachlin surprised people by calling a press conference and announcing her priorities. The first was a greater transparency: the Supreme Court, she often says, belongs to Canadians and they deserve to know as much about it as possible. Her tenure has seen webcasts of court proceedings; greater media access, including lock-ups for journalists; and a heavy speaking schedule in which McLachlin tries to demystify the doings of the court.

The second priority was consensus. Her predecessor, Antonio Lamer, ran a contentious court with many split votes, and McLachlin was keenly conscious that more unanimous or nearly unanimous judgments would clarify the law. Unanimous decisions have risen sharply during her tenure. Her method is age-old and simple: “We get together, we conference, we talk, we send memos to each other. Dissents are an important part of our system, and if it truly is on an important point we welcome dissents—this is how the law grows and adapts—but we do have more consensus.”

Her third priority concerned the power given to the court by the 1982 Charter to strike down laws they considered unconstitutional. Saying that the courts did not seek to be “a surrogate Parliament,” she insisted on their responsibility to be courageous as well as prudent. During her tenure, Stephen Harper’s Conservative government chafed more and more at her court’s willingness to strike down legislation on mandatory minimum gun-crime sentences, assisted suicide and Senate reform, among other issues.

The government’s touchiness was expressed most dramatically over the appointment of Marc Nadon to the Supreme Court in 2013. A Quebec appointee to the court must be a sitting judge on the Quebec Court of Appeal or Superior Court or a current member of the Barreau du Québec. Nadon, however, was on the Federal Court of Appeal. During the consultation process, in July 2013, McLachlin advised the government of the problem with his eligibility. In September, Harper announced Nadon’s appointment, which the Supreme Court found unconstitutional in March 2014, by a vote of six to one. When the Prime Minister’s Office accused McLachlin of lobbying against Nadon’s appointment, the Supreme Court issued a rare press release, saying that McLachlin had followed normal procedure and “did not express any views on the merits of the issue.” The outrage at Harper’s knuckle-rapping extended to Switzerland, where the International Commission of Jurists declared that McLachlin deserved an apology from the prime minister. (None came.)

“That incident kind of took the country’s breath away,” Mayo Moran says, “because this is not how Canada’s institutions have operated. They have always operated with respect, and the incident with Harper was so highly aberrant. The legal community, which is never unanimous about anything, was very, very united behind her, because she was such an unlikely political hero. It was shocking to see Beverley McLachlin in that role! She’s a consensus builder, she’s not controversial, she is thoughtful, legal, incremental, not a radical.”

In retrospect it looks like a tempest in a teapot, a frustrated prime minister bursting into a hissy fit that says much more about him than about the chief justice. It’s not a moment McLachlin will discuss, other than to snort derisively when I mention that some of her admirers consider her the only thing that stood between Harper and absolute power. She never comments on political matters but it’s easy enough to imagine her response: The court neither supports nor opposes any one party. Before, during and after the Harper government, it did and does its job by ruling on the constitutionality of laws. Period.

“Longest-serving chief justice” would be an obvious choice for the image of a woman to put on our currency.

In recent years, McLachlin’s interest in the rights of Aboriginal people has become prominent, first with the unanimous 2014 Supreme Court decision in favour of the Tsilhqot’in Nation of BC. In what has been hailed as one of Canada’s most important Aboriginal rights decisions, the court recognized the Tsilhqot’in claim to the 1,750 km2 they had occupied for centuries. The following year, McLachlin gave a controversial speech at the Global Centre for Pluralism in which she described Canada’s behaviour toward Aboriginal people as “cultural genocide.”

The legal rights of Aboriginals, people with mental illness and the poor have stirred McLachlin. Philip Slayton, a former dean of law at the University of Western Ontario and the author of Mighty Judgment, a book about the Supreme Court, awards her full marks for “having spoken out eloquently and forcefully about problems of access in this country. It’s a big problem and one the legal profession seems to turn away from. We can’t use [the justice system] because we can’t afford it, and it’s a horrible blot on the Canadian legal system.”

McLachlin herself shrinks from thinking about her proudest achievement (“I hate these ‘What is the best or the most or the proudest’; I find them so difficult”) but admits that her speeches and work bringing like-minded people together to promote access is high on the list. “It’s a passion for me that every person of whatever background or means should have access to the Canadian justice system. It shouldn’t be for the wealthy or the elite or the government, it should be there for everyone.” But the mills of the judicial system grind slowly. McLachlin acknowledges more work is needed: “‘Achievement’ puts it too strongly; it’s a work in progress. But if I’ve been able to make [accessibility] more prominent or to serve as a catalyst, then I’m gratified.”

Other than diehard anti-Charter forces, it’s difficult to find people who’ll say McLachlin has been anything but an excellent chief justice. Some observers complained to Slayton that McLachlin is too cautious, that she seeks “consensus at the expense of principle,” but they insisted on anonymity. Slayton himself regrets that McLachlin hasn’t put her stamp on the court, although he admits that some would find this a good thing. Unlike the big, candid personalities on the US Supreme Court, he says, McLachlin is “like a professional judge, almost in the European style.”

n some ways McLachlin has led a narrow life—educated in Alberta, she’s never lived outside Canada for any appreciable period, and has worked at the same job for 36 years. But her early years taught her she could experience the world imaginatively, through reading, talk and art. She plays the piano, with Bach as a particular favourite. Her voracious reading began at the Pincher Creek Library and it continues. (She mentions The Great Karoo by Fred Stenson, also from Pincher Creek, as a novel she admires.) Her mother had always wanted to be a writer, but was never able to pursue it. “If you have a mother who expresses that dream with such longing and yearning,” McLachlin says, “it has an influence on you as her daughter to think, ‘I’d better not squander my chances.’” McLachlin herself has written two unpublished novels, one a detective story about a woman lawyer and one a historical novel set in Alberta.

At first she downplays her writing: “This is just a self-indulgent thing I’ve done at 2:00 a.m. when I can’t sleep. If I write something it’s just for myself and in my spare time.” As we talk about the similarities between the work of the novelist and the judge, and the importance of imagination in both, she warms to the topic. Just as the novelist has to inhabit the psyche of each of her characters, McLachlin the judge tries to put herself in the shoes of the accused as well as the police or the prosecution. “Sometimes they may not be very nice shoes and you may not feel very good in them, but you try to dissociate yourself from those strong emotions and put yourself in their position, as an actor would.”

We move from high art to the applied arts, and knitting, which she learned as a little girl. Although McLachlin doesn’t have the time to finish many projects these days, she finds knitting contemplative as well as creative. Just as she wanted more to hear about the novel I’m writing than talk about her own, she’d rather ask what I’m knitting than discuss her own projects. She’s charmed that Margrethe Vestager, the Danish politician currently serving as competition commissioner for the EU, knits toy elephants during high-level meetings in Brussels. And she’s taken with the idea that knitting is an apt metaphor “for what I hope to do in my job”—knitting the justices’ various opinions into a consensus, knitting the judicial and legislative sides of the government into a healthy whole, knitting Canadians together with their justice system. “It’s very zen,” she says thoughtfully and laughs. “I’ll have to take it up again.”

Once McLachlin steps down from the court in 2018, she hopes to travel more with her second husband, Frank McArdle, a lawyer she married in 1992. She wants to keep contributing to the legal landscape, and it would be nice to see those novels emerge from her drawer, as well as some finished pieces of knitting. But meanwhile—in keeping with her habit of not planning the future—she’s happy to have two more years of deliberation on the court in the service of a more just Canada.

Katherine Ashenburg is a lecturer, teacher and author of three non-fiction books and hundreds of articles. She lives in Toronto.

The post Canada’s Top Judge appeared first on Alberta Views.

The appointment by the justice minister of the day, Brian Evans, prompted an unflattering headline in the Calgary Herald: “New judge denies PC patronage brought job.” The Calgary lawyer, who had stepped down as party president two years earlier, argued “independent checks and balances” had ensured he was an appropriate choice. Cabinet selected him from a list of lawyers that had been vetted by the Alberta Law Society and the Alberta Judicial Council, he said. “You can’t just pick a guy off the street,” he told the Herald at the time.

The scandal was short-lived and nothing came of it, but Allard, now 87 and one of Alberta’s last non-lawyer judges, still remembers it as “blatant” patronage. “If [judges] are political patronage appointments, they are contaminated from the beginning,” he says. “That’s worse than being unelected and unaccountable.”

“If [judges] are political patronage appointments, they’re contaminated from the beginning. That’s worse than being unaccountable.” -retired Provincial Court Judge Herbert Allard

While allowing that Carruthers is “a very nice man” and a capable judge, Allard says he has a dim view of any governing party rewarding party officials by appointing them to the bench. Alberta’s appointment process has changed since 1996, but its critics contend the optics are as bad as ever, the government is still able to reward its friends, and the process may even be colouring the type of justice Albertans can expect.

Alberta’s first judges were called stipendiary magistrates and were essentially paid justices of the peace. One of the first and most famous was North-West Mounted Police assistant commissioner James Macleod, who founded Fort Macleod and Fort Calgary before being named to the North-West Territories Supreme Court. He captured and tried whisky traders and other outlaws. He presided over criminal and civil cases alike, travelling by horse-drawn buggy to conduct court in communities across southern Alberta.

Historically, judges for the lower courts established under s. 92(14) of the Constitution Act 1867 were chosen at the pleasure of the provincial justice minister or attorney general. But beginning in the late 1960s in Ontario, provinces began to establish judicial councils to screen appointments in a bid to ensure judges were competent and to remove the perception of political influence. Since 1975 Alberta’s Judicial Council (AJC), composed of representatives from the Alberta Provincial Court, Court of Queen’s Bench, Court of Appeal, the Law Society of Alberta and two members appointed by the justice minister, has screened all applicants for the provincial judiciary.

But in 1999 the province established a second committee, called the Provincial Court Nominating Committee (PCNC), which interviews applicants put forward by the AJC and recommends prospective candidates to the justice minister. According to University of Lethbridge professor Peter McCormick, Canadian provinces and many jurisdictions around the world have attempted to reduce government discretion in judicial appointments by creating nominating or screening committees such as the PCNC to recommend suitable candidates for the bench.

In this province, lawyers with at least 10 years of experience can apply for the bench; screening by the AJC includes vetting by the Law Society for complaints and violations. Approved candidates are interviewed by the PCNC, and if recommended they are put on the Provincial Court eligibility list, which at any given time has about 60–80 names. From that list, the justice minister selects names that he takes to cabinet for final approval.

“The convention is that [the minister] will not select a judge for appointment unless it’s from that list,” says Michael Niven, who was appointed chair of the PCNC five years ago by then-justice minister Alison Redford. While the process is not spelled out in law, both Niven and Justice Minister Jonathan Denis say they aren’t aware of any justice minister straying from that practice.

Over the past three years, through this process, the Progressive Conservative party has appointed 23 judges—10 in 2011, five in 2012 and eight in 2013. About 120 Provincial Court judges sit in four divisions: Criminal Court, Family Court, Youth Court and Civil Court.

The problem is, the screening process may be falsely reassuring. A large majority of the PCNC’s membership—eight of the 11 members, a mix of lawyers and laypeople—are appointed by the justice minister himself. The others are ex officio members representing the Provincial Court, Law Society and Canadian Bar Association–Alberta, whose representatives can vary based on who is available to attend meetings in a given month.

Many of the current nominating committee members have known connections to the Justice Minister’s party. Rob Dunseith was president of the provincial PCs during the Ralph Klein era. Dunseith has also supported the party financially, donating $11,800 to the campaigns of PC cabinet ministers David Hancock, Fred Horne and Heather Klimchuk, to the PC party and to the Edmonton-Riverview PC constituency association since 2004. Other members of the committee have also given financial support to the Conservatives, including the chairman, Michael Niven, who has donated $2,375 to former premier Alison Redford’s riding association in Calgary-Elbow since 2008. Suzanne Porteous, another Calgary lawyer who serves on the committee, also donated to Redford’s riding association. None of the eight PCNC members selected by Justice Minister Denis has a known connection to an opposition party. (Two positions were vacant at the time this story was written.)

Denis says the presence of Tories on the appointment committee does not indicate political influence on the part of his government. “What people do on their own time, I think, is their own business. There are some people on the list who have political connections, but there are a lot who don’t. It doesn’t form a factor in the [committee’s] selection.”

D’Arcy Depoe, past president of the Edmonton Criminal Trial Lawyers Association, says that while most judges on the provincial bench were appropriate choices, there’s “sometimes a perception and sometimes a reality” that connections to the PC party benefit anyone seeking a judicial appointment. Depoe stresses that not every Provincial Court judge appointed to the bench is a PC party supporter. “But many are,” he adds, “and if that’s an influencing factor it has the appearance of the government rewarding some of its friends… The justice system is supposed to be independent, and judges are supposed to be independent, and you want the best candidates to be appointed.”

Most Alberta lawyers are reluctant to speak out about the patronage question because they appear before judges every day. But Michelle Christopher, a lawyer and the executive director of student legal assistance at the University of Calgary, says that “for a long time, lawyers have said the Provincial Court appointment process in Alberta favours candidates with ties to the PC party.” Lawyers want merit-based judicial appointments, she says.

A retired chief justice of the Court of Queen’s Bench, Allan Wachowich, agrees that patronage is common in Alberta. “Some [judges] got there because they are just damn good lawyers, but that happens infrequently,” he says. “Generally speaking, these people have some connection some way or another, directly or indirectly, with the party or one of the politicians.”

Wachowich, who as a Queen’s Bench justice was appointed by the federal government, says he has seen candidates be approved by the AJC (on which he served) but be rejected by the PCNC “because the individual was not a member of the party in power.” Wachowich, who was on the bench for 36 years, says, “That to me was political interference. I objected to it. I still object to it.”

Some judges, however, back the justice minister’s view. A former deputy chief judge of the Provincial Court, Alan Lefever, who now serves as a supernumerary, or part-time, judge, contends there’s no need to overhaul the judicial selection process. “Most [appointees] do not have any apparent political connections. There are some who probably have had some active involvement with the government or with the PC party, but… they are good judges,” Lefever says.

Niven says he and members of the PCNC take their responsibilities seriously. “The appointment of a competent and independent judiciary is one of the tipping points of the administration of justice. You can have all the jails and all the courthouses and all the policemen and laws and rules and lawyers… but unless you have a competent and independent judiciary none of that matters,” Niven says. “Once the committee puts a name on the list and the minister appoints him, there’s no unappointing him [the AJC can only remove a judge in the event of misbehaviour or neglect of duty]. …So you don’t want to be making too many mistakes.”

He says it wouldn’t be appropriate to question candidates for judicial appointments about their political ties, but notes that some lawyers do volunteer information about their connections when asked about their work in the community. “I remember one fellow last year who had run as an NDP candidate,” Niven says. “He got through highly recommended by the committee.” His name is on the eligible candidate list, Niven adds.

Niven doesn’t believe the perception of political bias in the appointment of judges is a widely held view, and doesn’t believe his own donations to the PC party leave him open to criticism of bias. “Lawyers in general tend to be politically active, so the chances of a lawyer who is politically connected in some way to whatever party is probably higher than in the average population,” he says. “If you look at appointments over the last years, I don’t think you would see any particular flavour coming out there. …We see all sorts.”

If citizens are not reassured, they have little recourse. Party membership lists are not public, so Albertans have no way of knowing how many appointed judges are or have been members of the PC party. Party donations, however, have been a matter of public record since 2004. Elections Alberta records show that six of the 12 most recent appointments to the Alberta bench had donated to the PC party, PC constituency associations, PC candidates or PC leadership candidates, while none had donated to an opposition party. At least one of the appointees had donated to the PC party several times over the eight years preceding his selection.

Denis denies any specific political bias in his 2013 appointment to the bench of Nicholas D’Souza, a lawyer who donated $400 to his 2012 election campaign. “I do know him,” he says. “He did actually make a small donation in the last campaign. Just because someone may have political affiliation or express a willingness to work for one party or one candidate, I don’t think should disqualify them.”

Many judge appointees are PC-party supporters. “It has the appearance of government supporting its friends.” -D’Arcy Depoe, past president of the Edmonton Criminal Trial Lawyers Association

In Provinces where the governing party changes periodically, the influence of any one party is not as obvious, but critics contend that in a one-party province such as Alberta, where the Tories have ruled continuously for four decades, connections between the party and the bench are more prevalent and more concerning. And they say the issue goes deeper than patronage.

“Every judge I have ever known has been adamantly non-partisan, never donating [to parties] or attending political events,” said Liberal justice critic Laurie Blakeman, an MLA since 1997. “Still, they have to read between the lines of legislation to interpret and rule. If the PC government keeps writing bad legislation, then we have to trust in the courts and judges to rule in the best interests of Albertans, which may not be in line with conservative ideology. Or do [judges] lean more toward that conservative interpretation, and possibly not the best interests of Albertans?”

Blakeman points to the anti-labour Bill 46 as an example. She and other critics say the legislation was highly politicized, removing the long-standing right of civil service unions to go to binding arbitration to achieve a contract settlement. The law was recently challenged in Alberta courts. But most legislation does not undergo such scrutiny from provincial courts.

Meanwhile, it did not escape media attention that the Crown prosecutor named to Edmonton’s Criminal Court bench this January—Steven Bilodeau—had months previously pushed for the toughest sentence in Canada in 50 years.

The Edmonton-Centre MLA adds that Albertans face a “double whammy,” with judges being appointed by both the right-wing Redford and Harper governments. “I do worry about future decisions,” she says. “Would the Vriend decision [on gay rights] make it through the provincial courts, federal courts and up to the Supreme Court the same way in 2014 that it did in the late 1990s I doubt it.”

Aside from patronage and the potential for politically influenced judgments, some critics are concerned that most judges being appointed in Alberta are white males. And Shannon Prithipaul, president of the Criminal Trial Lawyers Association, has pointed out that very few Provincial Court judges are appointed from the ranks of criminal defence lawyers, whose job is to fight the government.

Retired Judge Allard would like to see Alberta adopt features of the selection process from the UK, where an independent panel appoints judges. Twelve of the 15 members of the Judicial Appointments Committee for England and Wales are selected through an open competition rather than chosen by government. The committee doesn’t just screen candidates for the bench but presents the government with a single name. It essentially chooses the judge.

Alberta’s PCNC chair sees no need for such a change. “I think we have a range of political views on the committee as far as the appointees are concerned,” Niven says. “So I don’t think having an independent committee to appoint the (nominating) committee would move things along all that much.” He says it would be another layer of bureaucracy.

Both the Canadian Bar Association and the Law Society declined to be interviewed for this story, deferring comment on the judicial appointment process to the PCNC chair. “The Canadian Bar Association–Alberta is satisfied that the Provincial Court nominating process works to ensure appointments to Alberta’s Provincial Court are based on merit,” president Marian De Souza, also a PCNC member, stated in an email. “[Our] position is that the nominating process does not need to be changed.”

Wildrose justice critic Shayne Saskiw would like to see the PCNC scrapped. “If there’s even a perception of undue political influence, we have to eliminate it completely,” he said. “In other jurisdictions, the process is completely independent of the minister of justice. Here in Alberta, his reach is all over that committee.”

Retired Chief Judge Wachowich is also convinced Niven’s committee is a big part of the problem. “Why the hell do they need a second committee?” he asks. “The first level is thorough. It is objective… Once you get to the second level of scrutiny, it undermines everything that’s decided at the first level.”

But even the Alberta Judicial Council has ties to the PCs. According to a CBC report last year, lay member Joan Hertz has served as president of the Edmonton-McClung PC constituency association and as secretary for the Alberta PC party. The other member appointed by the justice minister, Sandra Durrant, is married to Hunter Wight, executive director of Redford’s Calgary office.

University of Lethbridge professor Peter McCormick recommends a single, permanent, independent nominating committee with a sizable component of lay members to produce a ranked shortlist of judicial candidates—rather than a pool of names—to minimize the discretionary power of the minister. The committee should also post its criteria for appointments, cultivate a visible public presence and report publicly every year on its activities, he says. He also recommends that the committee advertise judicial vacancies and operate an independent public website.

Alberta Premier Dave Hancock says he proposed merging the AJC with the PCNC when he was justice minister in 2003, but that the idea was opposed by the courts and some lawyer groups, so it never proceeded beyond the discussion stage. “We looked at a number of different ways to streamline the court appointment process to have both the impact of the Judicial Council, which does the preliminary screening, and the Provincial Court Nominating Committee, which brings the community flavour into it,” Hancock said. “One of the concerns at the time was it was a dual process.”

But Hancock rejects the contention that the appointments of PC supporters to the PCNC make it susceptible to accusations of political bias. “The bottom line is we have one of the best processes in the country,” he says. “It’s not political. It’s a good, sound, citizens-based process.”

Hancock said when he served as justice minister he would meet with the chief judge to discuss the type of skills the bench required at the time and then select the candidate that best met the criteria. “That’s something the chief judge and I did together,” he says. “I didn’t go into the list and say ‘Who do I know that has door-knocked with me?’ That’s just ludicrous.”

If the Alberta government wants to satisfy its critics in the legal profession as well as regular citizens skeptical about the independence of the judicial appointment process, it has a long way to go. It might try to catch up to provinces such as Ontario, which provides significant information on its courts website, including biographies of members of the selection committee and frequently asked questions, and BC, which posts its Judicial Council’s annual report. Alberta has a four-line entry on the Department of Justice website and no information about the composition of its nominating committee or the criteria or procedure for appointments.

The lack of information is ironic, U of L’s McCormick says, since the nominating committee was ostensibly created to make Alberta’s appointment procedure more open and transparent. He suggests the process is “as open as a bank vault, as clear as an oil spill.” He allows that some other provinces are no better than Alberta at providing information about how their judges are appointed. “If the judicial appointment process for provincial court judges in Canada is coming out of the shadows in which it has historically been hidden, it is clear it has not come out very far,” he says.

Alberta’s chief judge of the Provincial Court, Terrence J. Matchett, appointed to the post a year ago, believes the system must be open-minded to changes. “I think it’s important the public know how the committee operates, what the criteria for appointments are, who the membership of the committee is,” he says, adding that the PCNC should also consider producing annual reports.
Matchett stresses it is “absolutely essential” to have quality judges on the bench. “I certainly believe it’s important that we have a rigorous and open and fair process for selecting judges to the court,” he says. “This committee, like every other public committee, has to be accountable and transparent, and I am concerned if lawyers are of the view that this is not a committee that takes its work seriously or that fairly assesses candidates.”

“In other jurisdictions the process is independent of the minister of justice. In Alberta, his reach is all over the nominating committee.” -Wildrose justice critic Shayne Sasiw

While critics say having two committees isn’t the most efficient way to select judges, Matchett, who sits on both committees, disagrees. He said committee members ask tough questions during the candidate interviews and do their homework when it comes to checking references. “I just find the dynamic of having that many non-legally trained people in the second interview different than the first committee… they’re a lot more focused on personal suitability in the second committee,” he says. “The first committee deals with whether or not we have a candidate who has excelled in their area of practice and whether this is someone who has the legal qualifications to do the job.”

“I welcome applications from all parts of the bar,” adds Matchett, “because I think ideally you want to have all of that represented in your court, the same way you want representation culturally or by gender.” He adds, “Our court wants to move in that direction. As chief judge, I very much welcome a broader application base.”

Justice Minister Jonathan Denis maintains the judicial appointment process is working well and there are no plans to alter it. He claims that no one—not lawyers, judges, the Bar Association or the Law Society—has asked him for changes. “I think we have a process that achieves the goal of providing cabinet with the most qualified applicants to the bench,” he says.

But former chief judge Wachowich isn’t optimistic the province would even acknowledge, let alone consider, reforms that could curtail the governing party’s ability to decide who gets appointed to the bench. “I really can’t see that happening,” he says. “They want that power. It’s part of politics. Politics is power. They want to be able to exercise that.”

Darcy Henton is an award-winning Edmonton-based political affairs writer who covers the Legislature for the Calgary Herald.

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