Judges gone wild

An avalanche of judicial impropriety. Plus the SCC's latest leave to appeal decision and the rest of your Canadian legal news.

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New York City is finally using trash bins instead of throwing garbage bags into the street. The news really put things into perspective for private practice lawyers. If you find billing clients difficult, just remember how much McKinsey charges:

— Dylan Gibbs

TODAY'S DOCKET

  • Judges behaving poorly

  • The latest cases headed to the Supreme Court of Canada

  • Saskatchewan’s carbon tax fight

  • Justice Jamal’s recusal

LEAVE TO APPEAL

Next stop SCC

Police approach truck parked in a residential driveway

The Supreme Court recently granted three leave to appeal applications. It’s a good mix—criminal law, civil law, and a private law insurance case. Here’s what you can expect from the Court’s next crop of cases.

R. v. Singer (2023 SKCA 123) is about impaired driving investigations on private property. Police responding to a call about a potentially impaired driver found Mr. Singer in his driveway—sleeping in a running truck that matched the vehicle they were looking for. Police approached, observed Mr. Singer’s impairment, and arrested him.

  • The trial judge didn’t see anything wrong with the police tactics. But the Court of Appeal said police can’t just waltz onto a private driveway to investigate the homeowner.

[There is an] implied licence to enter private property on legitimate business. It authorizes the person who has entered the property only to approach the door and knock. A person approaching the door to “case” the residence, whether by looking for useful information or by asking the occupant questions, is not there on legitimate business. They are a trespasser.

There is no principled basis to conclude [that police can enter a driveway to gather evidence that an occupant is impaired]. Why would an occupant of private property be presumed to have invited the police to enter the driveway for that purpose?

What’s SCC worthy? According to the Crown, the Saskatchewan Court of Appeal is out in left field on this one. The Crown says Singer effectively invites drivers to drink and drive, so long as they can make it home to a police-free zone before getting caught.

Ville de Sainte-Julie v. Investissements Laroda (2023 QCCA 1294) is about settlement agreements (transaction contracts in civil law). Sainte-Julie’s bylaws require developers to hand over 10% of their subdivision land for City parks. One developer accidentally transferred the City more than 10%. And the City couldn’t afford to pay the developer back.

  • The parties struck a settlement that let the developer bank the excess land as a credit for future subdivisions. But when the developer’s next Sainte-Julie project fell through, it sued the City for a cash payment instead.

  • The City argued the developer is stuck with the credit system. According to the Court of Appeal, though, the settlement wasn’t clear enough to release the City from its original obligation to repay the developer.

What’s SCC worthy? According to the City, the Supreme Court held that every settlement agreement releases the parties from their prior obligations, even if there’s another way to interpret the agreement. So the Court’s main task seems to be clarifying this paragraph from a prior decision:

[The settlement agreement] is a transaction within the meaning of art. 2631 C.C.Q. The transaction effected novation of [the parties’] respective prior obligations. Their rights and obligations were thereafter governed by the transaction.

Banque nationale de Paris v. 165836 Canada, 2004 SCC 37 at para 38

Emond v. Trillium Mutual Insurance (2023 ONCA 729) is about an insurance policy with guaranteed rebuilding cost coverage. Homeowners want to rebuild after a flood wiped them out. Their insurance covers the cost to rebuild using similar quality materials and current building techniques. But it limits additional costs caused by “any law regulating the zoning, demolition, repair, or construction of buildings.”

  • The home is in a conservation area. And the conservation authority’s new construction rules make an exact rebuild impossible. It’ll cost about $350,000 to comply with the rules—which the insurer refuses to pay.

  • The Court of Appeal sided with the insurer, saying that “any law” is an all-encompassing phrase that includes the conservation authority’s rules.

What’s SCC worthy? As the homeowners put it: what good is guaranteed replacement cost coverage if it isn’t guaranteed? They say the limit for additional costs effectively nullifies their coverage. At the very least, they say the policy should have made the limitation clearer.

  • Replacement cost policies are common across Canada, sharing much of the same language for coverage and exclusions. There’s a decent chance this case affects your insurance policy too.

[Based on the Court of Appeal’s decision, a] homeowner who purchased a 1920 home that is destroyed by an insured peril will not get guaranteed replacement but instead will have to finance each and every by-law, zoning and building code upgrade between 1920 and the date of reconstruction from their own funds.

HEARSAY ROUNDUP

Canadiana

Pump-jack mining crude oil with the sunset

🛢️ Carbon tax is back in court. It’s the showdown we’ve been waiting for since Saskatchewan Minister Dustin Duncan volunteered himself for carbon jail last fall. Saskatchewan has racked up a debt of more than $42 million to the CRA by withholding carbon tax payments. And the CRA wants to collect.

  • After the federal government threatened to garnish Saskatchewan’s bank accounts, the province applied for an emergency injunction. The Federal Court granted a temporary order earlier this week, which halts federal enforcement efforts until the Court can hear Saskatchewan’s application on its merits.

⛪️  Justice Jamal won’t consider Quebec’s secularism law. (But don’t call it a conflict). Quebec’s controversial Bill 21 is currently at the leave to appeal stage before the Supreme Court. Quebec and two groups supporting the law said Justice Jamal should recuse himself from the case, given his prior involvement with one of the groups trying to strike Bill 21 down.

  • Justice Jamal was a Canadian Civil Liberties Association director for 13 years—including when the CCLA launched the Bill 21 lawsuit and right up until his judicial appointment.

  • Justice Jamal initially said he wouldn’t step aside because he didn’t see any “actual or reasonably perceived conflict of interest”. But he changed his mind yesterday.

  • Justice Jamal still maintains that his prior involvement with the CCLA doesn’t make him appear impartial—he just doesn’t want to become a distraction.

🧑‍💻 Netflix, Disney+, and the rest of Big Streaming are challenging the CRTC’s new digital services tax. The CRTC’s directive requires payment from foreign streaming companies that generate more than $25 million in Canadian revenue. Groups affected by the rule applied for judicial review.

FIRM SPOTLIGHT 🔦

Former SCC Justice Russell Brown now works for Hunter Litigation Chambers.

THINGS NOT TO DO

As a judge, don’t take matters into your own hands. Trial judges have been doing far too much lately. Here are the lowlights.

  • An Ontario judge pushed defendants to plead guilty by telling defence counsel that their clients were “fucked” because juries don’t like “child killers”. After a few days without a guilty plea, the trial judge told the parties that his pre-trial rulings might move the needle.

In the middle of pre-trial motions into the admissibility of key pieces of evidence, the trial judge expressed his view that the appellants were “child killers” and should plead guilty to second degree murder. He expressed his views in chambers, using aggressive and inappropriate language.

This alone was enough to demonstrate a reasonable apprehension of bias. However, [the trial judge made things worse with his pre-trial motion comments]. He foreshadowed that his rulings might “produce results”... A reasonable and informed observer would interpret these words as suggesting that the rulings might be made [to encourage] guilty pleas, rather than being decided on the merits

R. v. Colley, 2024 ONCA 524 at paras 77-79
  • A Nova Scotia judge took a recusal motion personally, calling his own witnesses to prove he wasn’t biased. Even though things went sideways during sentencing—after a trial conviction—the Court of Appeal stayed the proceedings to distance the justice system from the trial judge’s conduct. It didn’t help that it was the judge’s second strike.

[T]he trial judge engaged in conduct so offensive to societal notions of fair play that to continue with the proceeding would be harmful to the integrity of the judicial system.

This is the second case in less than a year [involving this judge]. In both instances, the perception of bias arose as a result of the conduct of the trial judge. The end result was that public resources were wasted, great inconvenience to the parties resulted, and the integrity of the administration of justice was tarnished.

R. v. Nevin, 2024 NSCA 64 at paras 121-127
  • An Alberta judge acted as a conductor, looking for “shortcuts to shorten [a] trial”. The trial judge’s overly active participation in the case gave the impression that he didn’t have an open mind.

Throughout the trial, the trial judge appeared to assume he knew the evidence counsel intended to call and the arguments they intended to make. He appeared to assume portions of the evidence and argument would be of little or no worth. [T]here is a reasonable apprehension that on material issues the trial judge was not open to persuasion. Further, his repeated interventions disrupted the ability of both counsel to present their cases and may have impaired the ability of witnesses to tell their stories.

R. v. Favel, 2024 ABCA 243 at para 23
  • And, in case you missed it, a New Brunswick judge did his own investigation, phoning up police officers mid-trial to answer a few questions.

[T]o characterize the misconduct in the present case as a “poor decision” grossly understates its seriousness. Personally, I find it difficult to overstate the seriousness of this misconduct.

The trial judge’s breach of fundamental legal and ethical standards was stark and unequivocal. This incident transcended mere judicial error, representing a clear defiance of established legal and ethical guidelines. This lapse not only questions the judge’s understanding of procedural propriety but also highlights a serious disregard for the principles of fairness and impartiality that underpin the justice system.

Morrison v. R, 2024 NBCA 54 at paras 30-35

But hey, those cases are still nothing compared to what you see in the US:

Judge Kindred engaged in misconduct by creating a hostile work environment for his law clerks and by having an inappropriately sexualized relationship with one of his law clerks both during her clerkship and after she became an Assistant United States Attorney.

Judge Kindred appeared to have no filter… He discussed his past dating life, his romantic preferences, his sex life, the law clerks’ boyfriends and dating lives, his divorce, his interest in and communications with potential romantic or sexual partners, and his disparaging opinions of his colleagues.

Judge Kindred began his oral argument by stating that “I think my great sin here was the fact that during this period of time I treated my law clerks as friends rather than employees.”

Dylan Gibbs

That’s all for today. Govern yourself accordingly.

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