The Saskatchewan Court of Appeal is allowing live streaming of an oral argument for the fourth time this week, in a case involving a challenge to Canada’s federal carbon tax. The event has reignited discussion about moving cameras into the trial courts. While this story’s headline suggests that the discussion is more developed than it actually is, it is nice to see increased recognition that courtroom cameras typically carry more benefits than risks.
- Take measures to decrease significant court delays;
- Eliminate peremptory challenges of jurors;
- Remove “zombie” parts of the criminal code that have been found unconstitutional; and
- Increase the maximum sentence for repeat domestic abusers.
We will continue to keep an eye on the bill’s progress, if any, in the coming months.
Quebec’s Judicial Council will proceed with an investigation of Judge Eliana Marengo, who is charged with refusing to hear a case after a litigant in her courtroom refused to remove her hijab. According to news reports:
In 2015, Marengo refused to hear a case involving Rania El-Alloul because the latter refused to remove her Islamic head scarf while in the courtroom.
El-Alloul was violating a Quebec law stipulating people must be “suitably dressed” in the courtroom, Marengo said at the time.
“In my opinion, you are not suitably dressed,” Marengo told El-Alloul, according to court documents. “Decorum is important. Hats and sunglasses, for example, are not allowed. And I don’t see why scarves on the head would be either.
“I will therefore not hear you if you are wearing a scarf on your head, just as I would not allow a person to appear before me wearing a hat or sunglasses on his or her head, or any other garment not suitable for a court proceeding.”
Incredibly, Judge Marengo’s defense for this behavior is judicial independence.
Dear Judge Marengo: Judicial independence is essential to assure that judges follow the law and provide an impartial forum for the resolution of disputes. It is not designed to justify or protect boorish behavior from the bench. To tie judicial independence to the mistreatment of litigants in your courtroom is to tarnish everything that concept stands for.
The Canadian government is funding a program to improve court administration and support services in several Caribbean countries. The program is being implemented under the aegis of the Caribbean Court of Justice. More here.
Beverly McLachlin retired from the Supreme Court of Canada this week, after 28 years on the court and 17 years as its chief. In her final press conference, Chief Justice McLachlin stressed the importance of shielding the judiciary from political interference. From the National Observer:
“We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence,” said McLachlin.
“If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.”
The Prime Minister’s statement on Chief Justice McLachlin’s retirement is here.
Now the evidence of that desecration is starting to gush out. Toronto’s Globe and Mail has published a story on Venezuelan judge Ralenis Tovar, who fled to Canada with her family in July and is now claiming refugee status there. Judge Tovar alleges that as a judge in Caracas, she was forced to sign arrest warrants for Maduro’s political enemies. She further claims that the Maduro government tapped her phones and even attempted to kidnap her daughter from school.
From the Globe and Mail interview:
On her way home from work on Feb. 12, 2014, Ms. Tovar received a series of phone calls from an unknown number. Assuming it was an inmate, she didn’t answer. Then the president of Venezuela’s Supreme Court phoned and told her to pick up the calls. She did and was told to head back to the office.
Ms. Tovar said the court was surrounded by the National Guard and military intelligence officers when she arrived. She was greeted by four public prosecutors, who guarded her office’s door as she sat down.
She was given a folder with three arrest warrants inside. She said she didn’t recognize the first two names, but was shocked when she read the name on the third warrant: Leopoldo Lopez.
“I felt petrified because internally I knew what was the purpose of that warrant, which was to silence a political leader who was an obstacle for President Maduro,” Ms. Tovar said.
Given that it was 2 a.m., Ms. Tovar asked the prosecutors if she could review the warrant the next day. She said they laughed sarcastically and told her that if she didn’t sign it, she would end up like Maria Lourdes Afiuni, a Venezuelan judge who was allegedly raped in prison in 2010.
Terrified, Ms. Rovar signed Mr. Lopez’s arrest warrant.
Judicial independence and political freedom go hand in hand. When one erodes, the other cannot be far behind.
The Ontario Judicial Council has issued its disciplinary opinion regarding Justice Bernd Zabel, the Hamilton-based trial judge who wore a red “MAKE AMERICA GREAT AGAIN” baseball hat into his courtroom on the day after the U.S. presidential election last November. The hat, of course, is associated with Donald Trump’s presidential campaign. It is uncontested that Judge Zabel wore the hat into his courtroom, stated “Just in celebration of a historic night in the United States,” and then removed the hat, placing it on the dais with the MAGA phrase visible to all in the courtroom. He presided over about ten matters before taking a recess, at which point he removed the hat from the courtroom. The hat did not return after the recess.
Unsurprisingly, Judge Zabel’s behavior spurred sharp reactions, including 81 formal complaints from a variety of public interest organizations, lawyers, and law professors. (I informally critiqued his actions on this blog as well; see link above.) Interestingly, however, none of the formal complaints came from any lawyers or parties before Judge Zabel that day. Indeed, lawyers in the courtroom that day, and those who have appeared before Judge Zabel in the past, defended his overall judgment and integrity even as they classified the events of that morning to be a professional mistake.
Judge Zabel, too, quickly realized his error. After the Globe and Mail ran a story about the incident two days later, the judge made a public apology in his courtroom. He explained that he was trying to make a humorous gesture, that in retrospect it was entirely inappropriate, and that he sincerely regretted the decision. Later, Judge Zabel sought out private lessons on judicial ethics from another member of the bench.
The judge’s contrition notwithstanding, the Hearing Panel of the Ontario Judicial Council on Monday suspended Judge Zabel for 30 days without pay. This was the most severe sanction they could issue, short of removing the judge from office. In my view, it was too harsh a sanction, supported by surprisingly slipshod reasoning. More below.