Dual allegiance

Good morning. Pierre Poilievre’s removal from the House of Commons this week was disappointing. Maybe he shouldn’t have called the Prime Minister a wacko. But the real problem is that he didn’t pick a more entertaining term from the codified list of unparliamentary language.

In the good ol’ days, MPs called each other bags of wind, talking twaddles, and dim-witted saboteurs. And those are insults I can get behind.

— Dylan Gibbs, with Alexandra Son

• Getting a fair shake in military court

• Holding 911 operators accountable

• Overhauling municipal government

• Clearing campus lawns

• And pre-judging cases with a hot mic

JUDICIAL INDEPENDENCE

SCC upholds military court structure

R. v. Edwards, 2024 SCC 15

According to the Supreme Court, Canada’s military court system can handle the truth. Armed forces members argued that the chain of command puts improper pressure on military judges. But the Court didn’t see it that way in its latest decision.

The concern: Military judges are still part of the military. That means they can be charged with military-specific service offences, like disobeying a commanding officer and drunkenness. And the prospect of getting charged for insubordination puts judges in a tough spot.

Well, at least according to them—three of Canada’s four military judges said they can’t act impartially if the executive branch of government has sweeping powers to discipline them.

Imperfect but good enough: Writing for the majority, Justice Kasirer said the military court system offers enough protection to ensure judicial independence and impartiality.

The only way to remove military judges from the bench is with a judicial inquiry run by other judges, which secures their tenure. That’s true even though dismissal from the military is one of the available punishments for a service offence—under Justice Kasirer’s interpretation of the National Defence Act, the military can’t use that punishment against judges.

And even though military judges are exposed to other punishments, that doesn’t remove their impartiality. There’s a theoretical risk of the executive interfering with judges through improper orders and trumped-up prosecutions—but theory isn’t enough. Interfering with a military judge’s work would be unlawful, so the judges have nothing to worry about.

In other words, the judges might feel like they lack impartiality, but they just aren’t being realistic or practical enough.

Justice Karakatsanis wasn’t convinced, siding with the appealing armed forces members in a solo dissent:

HEARSAY ROUNDUP

Canadiana

🪧 Quebec’s Superior Court refused to remove pro-Palestine groups from McGill’s lawn. Students asked for an injunction against the protests that have occupied the school’s campus since Saturday. But Justice Masse sided with the protestors, noting the importance of free expression and a lack of irreparable harm.

☎️ The BC Court of Appeal upheld a new duty of care for 911 operators. Concerned citizens called the RCMP twice about a broken traffic light at a busy highway intersection. The employees working the calls didn’t follow standard procedure, which led to a slow police response. And the slow response contributed to a fatal crash. The Court said the employees owed a duty of care to everyone driving through the intersection after learning about the hazard. Other cases have held that 911 operators owe a duty of care to specific callers, but this case extends that duty to the general public.

🔒 Pierre Poilievre promised tighter restrictions on bail and prison transfers if elected, implying that he would override the Charter to push the changes through. If that happens, it would be a first—no federal government has ever used the notwithstanding clause.

🧑‍⚖️ Justice Minister Arif Virani is still chipping away at judicial vacancies. He appointed seven new judges yesterday and elevated three others.

• In Ontario, Justices Darla Wilson, Lene Madsen, and Apple Newton-Smith are moving to the Court of Appeal. Carissima Mathen, Elizabeth McCarty, and Yvonne Fiamengo are joining the Superior Court of Justice.

• In Quebec, Catherine Dagenais is joining the Superior Court.

• Michael Battista and Catherine Moore are joining the Federal Court.

• And Sophie Matte is joining the Tax Court.

📖 It’s worth reading Ian Holloway’s reflections on his deanship at the University of Calgary and changes to the legal profession. Holloway’s term as dean wraps up on June 30—ending his streak as the longest-serving law dean in North America. Evaristus Oshionebo takes over as interim dean on July 1.

🙋 Starting in 2025, the Law Society of Ontario will require new sole practitioners to take a practice essentials course. The course has a $250 price tag but satisfies two years’ worth of CPD. Sole practitioners will also need a contingency plan that transfers their files to another lawyer if something unexpected stops them from practicing.

💪 ICYMI: The Alberta government is giving itself more power to intervene in municipal affairs. Under the province’s proposed legislation, the government can veto municipal bylaws and remove elected councillors. Alberta’s Municipal Affairs Minister suggested the changes are nothing to worry about—the province won’t get involved in municipal matters without “a darn good reason.”

WHAT NOT TO DO AS A JUDGE

→ Don’t keep your microphone on during court breaks. A Texas judge declared a mistrial last week after forgetting to shut off her livestream during a murder trial. The judge’s microphone captured her casually telling court staff that the defendant was guilty. The last comment captured by the mic was, “Oh, shoot, I'm still streaming.”

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