⚖️ Back in the saddle

Short-tenured judge gets his days in court. Plus the closing deadline missed by 35 minutes, BC’s new pet custody rules, appealing for a stronger Ontario climate response, and the tea on BC’s undercover DNA collection

A British judge went (law twitter) viral this week because of his heartfelt concluding remarks directed at the three-year-old child in an adoption case. Many judges don’t seem to tailor their words to the people most affected by their decisions — but this ruling hits the mark.

Message to [Child]

It is not uncommon in 2023 for judges to be told that when adopted children grow up they wish to read the judgment or transcript of the last major hearing before they are adopted. I am writing this message for you, in case you ever do read this.

I want to start by telling you that in many ways you are very lucky for two reasons. First, you have a birth family who dearly wanted to care for you, fought for you and to bring you up within their family. Secondly, your adoptive parents desperately wanted to care for you and wished for you to become their son; they withstood all the emotional turbulence that these proceedings bring to adoptive parents and were unwavering in their love for you and desire to give you the very best home they can.

I don't have a crystal ball; I can only make decisions about you based on the evidence I have available to me at the time I make it…

[2023] EWFC 239 (B) at paras 64-70

The full seven paragraphs are worth a read if you’re interested.

Thanks for all the feedback about Monday’s data on the Supreme Court of Canada’s decisions under reserve. An overwhelming majority liked seeing those numbers, so I’ll be bringing the segment back every couple of weeks or so.

— Dylan Gibbs

TODAY'S DOCKET

5 min read

  • Former judges in the courtroom

  • The closing deadline missed by 35 minutes

  • BC’s new pet custody rules

  • Appealing for a stronger Ontario climate response

  • The tea on BC’s undercover DNA collection

ETHICS

Short-tenured judge can return to legal practice

A judge's office, with judicial robes hanging and a pile of moving boxes on the floor

When can a former judge start appearing in court again? After receiving a green light from the Law Society of Ontario, the answer for Emile Carrington is “now”.

Carrington cut his judicial career short for personal reasons. Extremely short, in fact — his judicial work included only 12 sitting days and he’s now back working at the Windsor Crown Attorney’s Office. But even as arguably the shortest-serving judge in the history of the Superior Court of Justice, Carrington needed permission to return to the courtroom.

Prior authorization: In Ontario, certain former judges can’t appear in court as counsel without permission from the Law Society’s Hearing Tribunal, including judges who served on the Superior Court of Justice. Since Ontario adopted the rule in 2016, only two people have applied for permission. The first application was a request to appear for a specific matter, making Carrington the first to request an open-ended return to advocacy.

Exceptional case: Carrington’s unique circumstances carried the day. His practice is exclusively criminal. He heard only one criminal matter as a judge and didn’t write any reported decisions. He never sat in Windsor, where he’ll be working, and he’s agreed to wait at least three years before appearing in any of the locations where he did sit. He’s also a great role model and had the Law Society’s support.

Big picture: Canada doesn’t have consistent rules about former judges returning to court — many provinces simply require a three-year cooling-off period. A proposed reform would prohibit every former judge from even communicating with a court, absent exceptional circumstances (like Carrington’s). But no one has taken steps to implement that reform since the Federation of Law Societies of Canada circulated the proposal in 2017.

HEARSAY ROUNDUP

Canadiana

⌛️ Just a half hour late making the closing payment under a purchase and sale agreement? Too bad. A recent Ontario Court of Appeal decision confirmed that a “time is of the essence” clause means what it says — “[i]t would be an unwarranted intervention into the freedom of contract for a court to alter the [agreement] and its closing time [even by 35 minutes].”

🐶 BC’s Family Law Act no longer treats pets like property when spouses separate, adopting special rules to decide which pet parent gets custody if the former couple can’t agree. Before deciding ownership, the court will consider factors like each spouse’s relationship with the pet and their ability to provide future care. That sounds a bit like a recipe for extensive dog parenting trials… but hopefully it doesn’t play out that way.

🌎 Seven young Ontarians took their fight against Ontario’s climate change response to the Ontario Court of Appeal this week. They say Ontario’s emissions target is so underwhelming that it violates the Charter — an argument that didn’t pan out at the Superior Court of Justice. In the lower court, Justice Vermette agreed Ontario’s legislative response falls “severely short” of what’s required to combat global warming, but she concluded Ontario isn’t obligated to do any better. The Court of Appeal reserved its decision.

🫖 Police secretly collected DNA from Burnaby’s Kurdish community by posing as tea marketers. After finding ostensibly Kurdish DNA during a murder investigation, police asked male members of the community for voluntary samples. And when the voluntary approach didn’t turn up anything useful, police instead gave out free tea in numbered cups and swabbed the cups for results. The case? The same one that allegedly involved someone bringing a loaded handgun into a courthouse last month with intent to kill.

Beyond the border

🤐 Donald Trump’s second trial for defaming former advice columnist E. Jean Carroll started yesterday. A jury already found Trump guilty of sexually abusing and defaming Carroll, awarding $5 million in damages. This trial involves a different set of (similarly defamatory) statements. Trump is bound by the last jury’s liability finding, so this trial only deals with damages.

🛩️ A US judge blocked the proposed merger between airlines JetBlue and Spirit over competition concerns.

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