⚖️ Waiting patiently

To: Hearsay Readers

ON TODAY’S DOCKET

  • Is there any rush to fill the Supreme Court vacancy?

  • Legal battles continue over gender identity policies

  • Stay of proceedings for Montreal politician overturned on appeal

  • Manitoba’s new legal clinic for the arts

WEEK AHEAD

Supreme Court of Canada

The Court wrapped up October sittings last week and starts a new set of hearings on November 7. In the meantime, the Court is still missing a ninth member. Will the newest justice be appointed this week? If the wait continues, will the Court’s newest member have time to prepare for the November hearings? For answers, here’s a look at the last nine appointments to the Court:

  • Breathing room: A majority of recent appointees had several weeks to prepare for their first hearing after the Prime Minister confirmed their appointment. Clément Gascon was appointed in June 2014 and heard his first appeal four months later on October 6, 2014. The others who had lots of prep time are Justice Jamal (three months), Russell Brown (two months), Justice Côté (six weeks), and Justice Martin (six weeks).

  • Quick turnaround: The four remaining appointees had much less time to get up to speed. The award in this category goes to Justice Rowe, who heard his first appeal only four days after his appointment was confirmed. Runner-up ribbons go to: Justice Kasirer (nine days), Chief Justice Wagner (12 days), and Justice O’Bonsawin (13 days).

  • Sorry, can’t make it: Even on a time crunch, almost every appointee sat for the very first appeal the Supreme Court heard following their appointment (again, kudos to Justice Rowe). That said, there’s no guarantees — just ask Chief Justice Wagner. He was appointed October 5, 2012 but was not on the panel for a series of appeals heard October 10–16. His first appeal hearing was October 17.

Tick tock. There’s 15 days to go until the November hearings. Once selected, the new appointee has to participate in a hearing before Senate and House of Commons representatives. The Prime Minister can’t confirm the appointment until after the hearing. So, theoretically there’s still time to fill the Court’s vacant spot before the next batch of hearings, but each passing day that’s less likely to be the case. Maybe the Prime Minister just wants his new appointee to break Justice Rowe’s record?

Tired Over It GIF by Desus & Mero

Gif by desusandmeroonshowtime on Giphy

Parliament

The House of Commons is sitting this week. From the projected schedule, here’s the legislation we’re keeping an eye on:

  • Bill C-57 implements an updated free-trade agreement between Canada and Ukraine. It’s scheduled for second reading debate today.

  • Bill C-252 is the Child Health Protection Act, which amends the Food and Drugs Act to prohibit food marketing directed at young children. The third reading vote is scheduled for Wednesday. Here’s the proposed wording of the prohibition: “no person shall advertise prescribed foods that contain more than the prescribed level of sugars, saturated fat or sodium in a manner that is primarily directed at persons who are under 13 years of age.”

  • Bill C-280: amends the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act to create a superpriority for fresh fruit and vegetable suppliers.

HEARSAY ROUNDUP

Canadiana

🏳️‍🌈 The New Brunswick Teachers’ Federation is joining the fight against Policy 713 — a provincial education policy requiring schools to obtain parental consent before “formal use of preferred first name for transgender or non-binary students under the age of 16”. The Teachers’ Federation filed an internal policy grievance with the province and is also seeking to intervene in a lawsuit challenging the policy (brought by Canadian Civil Liberties Association).

🙌 The University of Manitoba launched a new legal clinic: the Manitoba Legal Clinic for the Arts. It offers free legal advice to artists and arts organizations on issues including contracts, intellectual property, and business structure.

🪪 Ontario is introducing legislation to prevent registered sex offenders from applying for a name change.

🧑‍⚖️ Justice Minister Arif Virani announced seven judicial appointments today. In Alberta, Justices Alice Woolley and Kevin Feth were elevated to the Court of Appeal. Ayla Akgungor, Jonathan Martin, Darren Reed, and Chidinma B. Thompson were appointed to the Court of King’s Bench. In Ontario, Laura B. Stewart was appointed to the Superior Court of Justice in Brampton.

Beyond the border

😤 The judge presiding over Donald Trump’s civil fraud trial fined Trump $5,000 for breaching his gag order. The judge ordered Trump to take down a social media post in which he made allegations about the judge’s law clerk. The post remained on Trump’s campaign website for 17 days after the order. The judge may still impose further sanctions against Trump for contempt of court, but he has deferred that decision.

CORRUPTION

QCCA orders new corruption trial for former Montreal politician

The Quebec Court of Appeal had bad news on Friday for Frank Zampino — a former Montreal politician charged with awarding contracts in exchange for financial contributions. Even though investigators mishandled wiretap evidence capturing conversations between Zampino and his lawyers (in breach of solicitor-client privilege), the police mistakes weren’t severe enough to justify staying the charges. So Zampino and a group of several co-accused are headed back for a new trial.

Background: Police investigating Zampino for the corruption-related offences received judicial authorization to implement a wiretap. The court order authorizing the wiretap created a mechanism to protect solicitor-client privilege. Under the order:

  • If police formed “reasonable grounds to believe that a lawyer [was] a party to a communication”, they needed to stop listening to the communication and send it to the authorizing judge for review.

  • The judge would review each communication involving a lawyer to determine whether the communication was covered by solicitor-client privilege.

The procedure didn’t go as planned. Some conversations involving lawyers slipped through the cracks. Investigators also misunderstood the order — at first, instead of sending every communication involving a lawyer to the judge, the investigators sent only what they thought was relevant. When a supervisor discovered this issue, she ordered the team to send every communication involving a lawyer to the judge. Even after that direction, several communications were inadvertently omitted. In total, 233 communications that should have been sent to the judge were never sent.

Zampino and his co-accused asked for a stay of proceedings given the breach of solicitor-client privilege. The trial judge granted the stay, criticizing both the police investigators and the terms of the order that authorized the wiretap in the first place. She said that it would not be possible to grant any other remedy, because the wiretap evidence could not be separated from the rest of the Crown’s case.

On appeal: The Court of Appeal was much more forgiving. Although the Court agreed police breached the Charter by failing to protect solicitor-client privilege, the Court said it was enough of a remedy to exclude the wiretap evidence at trial. A stay of proceedings would be overkill because:

  • The wiretap authorization was somewhat ambiguous, which lowered the amount of blame attributable to police

  • The police conduct was not deliberate

  • Most of the communications that police mishandled contained no substance — they involved a phone number belonging to a lawyer but were simply hang ups or dial tones

  • Many of the mishandled communications didn’t relate to Zampino or his co-accused — they involved lawyers, yes, but not the defendants

Here’s the meat of the conclusion, from the English translation posted on the Court’s website:

First, the obvious: there was bungling and probably negligence. One can certainly criticize the police for their lack of rigour in the management of communications whose importance requires no further elaboration. Because of their lack of rigour, they listened to or had the opportunity to listen to conversations between lawyers and their clients. Still, for the reasons given previously, there are no elements of bad faith or illegitimate or outright illegal purposes in this.

Decision report card:

◻️◻️◻️◻️🔥 Factual interest

◻️◻️◻️😃◻️ Legal interest

◻️◻️◻️◻️🏗 Friends in high places

QUOTE OF THE DAY

Justice E.M. Morgan, on lawyers making litigation harder than it should be:

Requiring this final series of unhelpful questions to be answered was neither an error of law nor a misuse of discretion. The system, and the Rules, allow for such things. That is an unfortunate aspect of civil litigation. Lawyers can have a go at each other, and at each other’s clients, in a discovery joust which is unlikely to improve on the course of justice or to even impact on an eventual trial judgment.

The questions are artificial constructs in the guise of truth seeking, and the responses will likely be equally artificial constructs in the guise of information giving. But the [questions will] be answered.