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Canada's chief justices given green light to help solve court delays

Chief Justice Glenn Joyal, shown in this 2012 file photo, said Thursday, "We have to be able to interact with those in power. If we can’t do that, all we are is an internal chambers debating society, where we come up with interesting ideas but no solution. We become nothing but a dream factory.”

Steve Lambert/THE CANADIAN PRESS

A judicial disciplinary body says Manitoba's chief justices acted appropriately when they collaborated with the provincial justice minister on a proposal to eliminate preliminary inquiries, and later met with the federal justice minister to discuss it.

The ruling by the Canadian Judicial Council gives the country's federally appointed chief justices the go-ahead to play a direct role in developing answers to justice-system delays and other issues facing the courts – even in proposing legislative changes that could alter major elements, such as the hearings that determine whether there is enough evidence to go to trial.

The unprecedented collaboration between the chief justices of three levels of court and Manitoba Justice Minister Heather Stefanson advocating a major experiment with the criminal-justice system was a direct response to a struggle in Canadian courts with the issue of delay. Last summer, the Supreme Court of Canada set strict new time limits for criminal trials, and said all players in the system needed to overcome a "culture of complacency."

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Heather Stefanson: The preliminary inquiry: A relic that needs reform

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Chief Justice Glenn Joyal of the province's Court of Queen's Bench made the proposal and the collaboration public in an interview with The Globe and Mail in February.

A lawyer then wrote an anonymous complaint to the Canadian Judicial Council, saying that the backroom collaboration and the "lobbying" of the federal minister were a "scandalous" foray into the political realm that made the chief judges appear to lose their independence and impartiality. That complaint became public on Thursday.

The self-described practising lawyer who filed it – insisting on anonymity over a fear of repercussions from judges – said there is a reason such collaboration is unprecedented: "It is because this sort of behind-the-scenes policy making involving a Minister of Justice and senior members of the judiciary gives rise to clear concerns about the judges' impartiality."

If the complaint had prevailed, Chief Justice Joyal says, it would have had a chilling effect on judges' participation in discussion about pivotal justice-system issues. "We have to be able to interact with those in power," he told The Globe and Mail on Thursday. "If we can't do that, all we are is an internal chambers debating society, where we come up with interesting ideas but no solution. We become nothing but a dream factory."

Nova Scotia Chief Justice Michael MacDonald, who chairs the Canadian Judicial Council's conduct committee, reviewed the complaint and said the judges' conduct was consistent with the council's guidelines on ethical principles and a separate document on judicial independence. "Chief Justice MacDonald is of the view that chief justices and judges play an important leadership role in enhancing access to justice for Canadians," the council's executive director, Norman Sabourin, said in a letter to the complainant.

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The council also asked Gavin MacKenzie, a former treasurer of the Law Society of Upper Canada, to review the complaint. He agreed with Chief Justice MacDonald's comments.

Lorne Sossin, the dean at York University's Osgoode Hall Law School in Toronto, called the decision an affirmation of judges' right to speak out on core areas they believe need improvement. "I see this as a good turning point for those judges who would say, 'Look, I'd love to share my views but I'm not sure it's appropriate.'" He said that, in recent memory, no similar complaint on judges speaking out has been the subject of a judicial council ruling.

Richard Chartier, chief justice of the Manitoba Court of Appeal, said chief justices need the capacity to speak to the public so they can address the system's problems. "We would become very quickly a neutered institution" if the complaint had been upheld, he told The Globe.

"When I go on holidays, my spouse always says, 'Tell them what you do.' I say, 'No, because I'm going to get an earful about how the system is broken.' She says, 'As a chief justice, you have to hear this and do something about this.'" He said he came around to her point of view. "The judicial branch has to lead – in collaboration with everyone, and that includes the legislative branch."

The chief justices had not informed criminal-defence lawyers about their work with Ms. Stefanson before The Globe article appeared in February; the Criminal Defence Lawyers Association of Manitoba was angered at being left out, and it opposed the elimination of preliminary inquiries. But the association's president, Jody Ostapiw, said in an interview on Thursday that while the "optics were not great – as lawyers we're taught the appearance of things [matters] – I don't think it rose to the level of backroom political lobbying." She said defence lawyers have since been working closely with the judiciary on solutions to delay.

The judicial council is a body of chief justices that has the power to send complaints on to a public hearing, which can lead to a recommendation for the dismissal of a judge. But in the case of the Manitoba judges, the council ruled the complaint had no merit.

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The judicial council's ruling covers only the federally appointed judges – Chief Justices Chartier and Joyal. Provincial Court Chief Judge Margaret Wiebe, who was involved in the policy discussions, was appointed by Manitoba.

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