Selection
Continued From Page 1
slots— MPs Bob Dechert, a lawyer
who represents the Ontario riding
of Mississauga-Erindale; Candice
Hoeppner (the panel’s only non-
lawyer), best known for strongly
opposing the long-gun registry,
who represents the Manitoba rid-
ing of Portage-Lisgar; and Brent
Rathgeber, a
lawyer who rep-
resents the
Alberta riding of
Edmonton-St.
Albert — “will
basically get
their way and
can override any
objections,” says
Mendes, who also serves as editor-
in-chief of The National Journal of
Constitutional Law.
He worries the Tories could play
to their party’s right-wing base and
choose like-minded socially conservative candidates from Ontario
for the high court.
Taking that approach would
move away from the relatively rare
non-partisan direction Prime Minister Stephen Harper appeared to
be following with his “good” and
“solid” appointments of Rothstein
and Cromwell to the SCC, says
Mendes, who would rather see a
judicial advisory committee—sim-
Mendes
ilar to the one that exists for
selecting federal judges, representing the bench, Bar, law enforcement community and the general
public—submit its assessment of
candidates to the Justice Minister.
However, Adam Dodek, an
associate professor in the common
law section of the University of
Ottawa’s Faculty of Law who will
lead a seminar this fall on the SCC,
century have not been undertaken
on the basis of ideology.
“I hope the Prime Minister will
follow his past practice and the
past practices of his predecessors.”
In a recent news release, Jus-
tice Minister Rob Nicholson indi-
cated that selection panel mem-
bers would consult with Supreme
Court Chief Justice Beverley
McLachlin, Ontario Chief Justice
Warren Winkler, Ontario Attor-
ney General Chris Bentley, the
Law Society of Upper Canada, the
Canadian Bar Association, “and,
at their discretion, other promin-
ent legal organizations.”
Dodek
“He worries the
Tories could play to
their party’s right-
wing base and
choose likeminded
socially conservative
candidates from
Ontario for the
high court.
The panel will provide an
“unranked” list of six candidates to
the Prime Minister and Nicholson,
who will then choose two nominees. Those candidates will appear
at a public hearing of an ad hoc
parliamentary committee, as Rothstein did five years ago. (Cromwell
was sworn in without undergoing
that process after Harper cited
time constraints.)
Cotler, who represents the Que-
bec riding of Mount Royal in the
House, says the goals of his advis-
ory panel model were to make the
selection process “more open,
transparent, comprehensive and
accountable.” He explains that as
part of that, the justice minister
would release a protocol naming
jurists, lawyers and others con-
sulted as well as the professional
and personal criteria—and eye for
diversity—used to evaluate pro-
spective candidates. Only a sum-
mary has been issued in the cur-
rent selection process, notes Cotler.
Judges could not agree on whether to consider untested affidavit evidence
Elephant
Continued From Page 1
“assumes that the citizen has no
right to challenge unlawful gov-
ernment conduct.”
Asserting that in cases where
the wrongdoer is the government
itself, she said it was “contrary to
the rule of law to suggest that cit-
izens are without a remedy. It is a
central role of the courts to assure
the legality of government action.”
In the order being appealed,
Associate Chief Justice J. D.
Rooke of the Alberta Court of
Queen’s Bench based his finding
of abuse of process on a conten-
tion that the appellants were try-
ing to act as private prosecutors
and hence saw no reason to
address the issue of standing “in
any detail.” Chief Justice Fraser
said that was putting the cart
before the horse, since the cham-
bers judge should have started by
determining the “central issue,”
whether the applicants should be
granted public interest standing.
“Of course, if there is no stand-
ing, it will almost invariably fol-
low that it is an abuse of process to
continue with the litigation. That
is why one can find numerous
cases where a lack of standing will
amount to an abuse of process or,
for that matter, no reasonable
cause of action. But a finding of
abuse of process cannot be used to
deny standing.”
She found the lower court’s rea-
sons “backwards and incomplete.
Backwards because the finding of
abuse of process was apparently
used to deny standing without the
reasons ever having first considered
whether public interest standing
ought to be granted. And incom-
plete because they wrongly equate
lack of standing to bring a private
action with abuse of process.”
Noting that the chambers
judge had also asserted that in
the absence of an interference
with private rights no individual
can bring an action to enforce
the law, the chief justice said that
was “at best an overstatement
and at worst, incorrect. Anyone
can swear an information on rea-
sonable and probable grounds
about an alleged criminal act.
This is expressly permitted under
the [Criminal] Code for both
indictable and summary convic-
tion offences.”
The chief justice found that the
chambers judge had also erred in
law by applying the wrong test for
abuse of process. She said the cor-
rect test for abuse of process was
whether it is plain and obvious that
allowing the appellants’ action to
continue would be contrary to the
interests of justice. “Applying that
test, whether the appellants can
pursue and secure a declaratory
judgment against the City based
on its alleged unlawful conduct in
its treatment of Lucy remains an
arguable issue. Seeking a declara-
tion that government action is
unlawful is arguably not the same
as prosecuting that government for
an offence based on that conduct.”
The judges could not even agree
on whether the court should accept
untested affidavit evidence from
the appellants, the majority hold-
ing that since that evidence had not
been rebutted or tested by cross-
examination, “it would be both
unfair and unsafe to draw conclu-
sions about Lucy’s care at this time.”
Disagreeing, the chief justice
wrote: “When dealing with
whether to strike pleadings based
on abuse of process, a court is
entitled to, indeed should, and
typically would, consider relevant
evidence. That is especially so
where, as here, abuse of process is
inextricably linked to the issue of
public interest standing.”
The evidence portrayed the
36-year-old Asian elephant as
alledgedly suffering from a litany
of painful medical conditions,
including arthritis, obesity, foot
infections, dental problems, bed
sores and chronic respiratory
issues which the veterinarians said
could be attributed to cold winters
and spending most of her time in
an inside enclosure with a con-
crete floor, plus the fact she has
lived alone for half her life.
Reasons: Reece v. Edmonton (City), [2011]
A.J. No. 876.
