Inkless Wells

Paul Wells on all the latest out of Ottawa—along with the occasional post about jazz. Follow Paul on Twitter: @InklessPW
He also offers his thoughtful perspective of Stephen Harper’s last 10 years in his recent eBook, The Harper Decade.

Categories: Inkless Wells

Oliphant: Is this judo?

by Paul Wells on Thursday, June 12, 2008 4:03pm - 0 Comments

Remember Stockwell Day and Judge Silcoff? To say the least, the comparison to Judge Oliphant and the Mulroney inquiry is imprecise, but it may be worthwhile boning up on the background of that case. Here’s some more refresher.

Tags: Judge Oliphant, Judge Silcoff, Judicial bias, mulroney-schreiber, Stockwell Day

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Two Hats

So, Paul, is this your apology for the previous post?
(Neither you nor Kady have offered us a shed of proof that Mr Oliphant won’t inquire fairly.)
Paul Wells

Offhand, no. Chrétien didn’t appoint Judge Silcoff to lead an inquiry into Chrétien. A sitting judge handled a case on his docket. A non-trivial nuance, it seems to me. I’m open to other arguments, and expect the whole country will be hearing some over the next few days.
jad

But according to my liberal friends, judges are above partisan politics, at least when it comes to Liberal-appointed judges.

Let’s just get this whole damn circus over and done with and send Herr Schreiber back to his homeland.
Two Hats

Sure the cases are different, but let’s just look at the Mulroney/Shreiber case. Do you think a Cretien appointment would be a better choice to sit in judgement on Mulroney? You and Kady (I should cross-post my comments, but I’m too lazy) are effectively implying that judges are generally beholden & partial to the PMs that appoint them. that they are not, in fact, impartial judges. I have no doubt that some, in fact, are so tainted. But I’m not going to presume any particular one is, without some evidence.
For what it’s worth, I am eager to hear and very receptive to arguments that this inquiry is being set up as a whitewash — I don’t expect otherwise from Harper — so fire away!
Two Hats

Wow. I can’t beleive I misspelled Chretien.
Sorry.
Two Hats

And believe. DOH!
john g

Why is this any more a problem than a Liberal appointed judge? It’s not like Mulroney can take his judgeship away if he doesn’t like what he hears…

The Liberals have a vested interest in the outcome of this inquiry…why would we assume a Liberal-appointed judge (many of which, you’ll remember from Benoit Corbeil’s Adscam testimony, got their judgeship as a reward for doing good Liberal party work as lawyers) wouldn’t bring a partisan flavour to the proceedings?
Anon

There’s is only one person in Canada qualified to judge Mulroney. And that’s Lucien Bouchard.
john g

From the first article that Wells links to:

“OTTAWA -The Canadian Bar Association says Canadians shouldn’t reach hasty conclusions about the judiciary based on ill-considered attacks made on the spur of the moment. ”

Ironic that he links to this while reaching hasty conclusions about the judiciary.
Paul Wells

Well, it wouldn’t be the first time Maclean’s didn’t follow the CBA’s advice. To be precise, I linked to it AFTER reaching hasty conclusions about the judiciary.
Two Hats

Which is why I thought it might be a bit contritional. (? contrite? ie an expression of contrition. We’re making up words if we have to, here in the Inkless comments today)
Paul Wells

I believe the word is contrite, although, never having been contrite, I can’t be sure.
Mike G

I think the comment to Kady’s post, pointing out the fact that there really are only so many experienced judges, and most of them are Mulroney or Chretien appointees, is reasonable.

Judging Prime Ministers is not something our judicial system is designed to handle as the standard case, and it’s always going to be a bit weird. What would you think of Chretien being judged by the Supreme Court? He nominated 5 justices and promoted CJ McLachlin (who was originally a Mulroney nomination.)

At some point we have to accept the limited size of our judiciary. They are judges because we trust them to be judges and they have proved themselves worthy of the trust – not because they exist in a special vacuum-sealed chamber.

All that aside, I laughed at the bush-league tag in the previous post, and yeah, they probably should have used a brain cell or two and avoided this. But I trust our judiciary, and I am not going to start doubting Oliphant’s ability to remain impartial, this early in the game.
Paul Wells

Mike G makes a lot of sense. I have also received protestations of innocence from within the current government, I think I was premature, and in the spirit of mea culpas that is sweeping the Hill, will probably eat crow more fully tomorrow.
http://www.macleans.ca Kady O’Malley

I think the problem here, at least in terms of optics, is that this is a judge who is being asked to investigate the specific prime minister who appointed him – as an individual, not a government – which is different from, say, appointing a judge to head up a royal commission, or even a commission of inquiry, into the actions of a government.

Do I think that means he will inevitably be biased? No. Do I think it probably would have been wiser, all things considered, to appoint a lead commissioner who wasn’t appointed to the judiciary by the person he’s asked to investigate? Yeah, I do. That has nothing to do with the qualifications of Justice Oliphant, which may be excellent, and far more to do with the perception of impartiality.

As for the argument that there are very few judges currently on the roster, so to speak, as far as potential commissioners, I’d say that at minimum, it would be a good idea – again, for optics if nothing else – to appoint one who wasn’t appointed by the individual to be investigated. If that means straying outside the judiciary – at least those members not appointed at the federal level – so be it. (I think you could have appointed a non-judge – a Peter Desbarats, for instance – and assumed that he would bring on commission counsel who would ensure that any decisions he or she made were legally correct.)
Davey Boy

It seems to me that a few other judges were less than impressed with Justice Silcoff’s decision to authorize the search warrant:

from
Beaudoin c. Banque de développement du Canada
(http://www.canlii.org///fr/qc/qccs/doc/2004/2004canlii581/2004canlii581.html#_Toc63650743)

[595] Siégeant comme juge seul le 5 juin 2001, le juge André Brossard rend jugement sur la requête :

Même si prima facie aucune des allégations de l’affidavit au soutien de la demande d’un bref de saisie revendication et qu’aucune des allégations de la requête ne paraît justifier certaines des ordonnances que je qualifierais d’inusitées au niveau de l’assistance autorisée et de la destruction des biens saisis. Même si dans les circonstances je n’aurais eu aucune hésitation à accorder l’autorisation demandée force est de constater que le pourvoi s’il était autorisé n’aurait qu’un caractère purement théorique puisque la saisie a effectivement été cassée depuis pour insuffisance de l’affidavit.

Vu les dispositions de l’article 511 C.p.c. la requête est rejetée sans frais.

[596] La requête pour saisie avant jugement, la façon dont elle a été obtenue et la façon dont elle a été pratiquée sont une disgrâce et sont de nature à discréditer l’administration de la Justice notamment pour les motifs suivants :

a) l’affidavit à son soutien était non seulement insuffisant, mais inexact alors que l’affiante savait ou aurait dû savoir que les dossiers dont disposait M. Beaudoin étaient ceux qui lui avaient été expédiés par la Banque sous l’autorité de M. Schroder[78].

b) les procureurs et la Banque ont induit le tribunal en erreur en demandant la destruction de documents saisis contrairement aux règles les plus élémentaires du droit;

c) la conduite des procureurs lors de la saisie est indigne, contraire à l’éthique et contraire au droit;

d) la demande de saisie des bureaux du cabinet Irving, Mitchell était purement vexatoire et contraire à l’éthique entre procureurs.

[597] De fait, toute l’opération renforce chez l’observateur impartial l’impression de vendetta orchestrée par la BDC contre M. Beaudoin. Les médias et l’opposition parlementaire pourchassent le Premier ministre dans le dossier de l’Auberge Grand-Mère. C’est leur droit constitutionnel dans notre système juridique et parlementaire.

[598] Toute l’opération de saisie semble bien plus liée à des motifs politiques qu’à des motifs juridiques. La saisie est vexatoire, mesquine et illégale. La saisie chez le nouvel employeur de M. Beaudoin, nullement mêlé à l’affaire vise à briser M. Beaudoin bien plus qu’à retrouver des documents confidentiels.

[599] Toute cette saisie est liée au dossier politique de l’Auberge Grand-Mère et a peu ou pas à voir avec la protection de la vie privée d’un client de la BDC.

My favourite part, para 596(c)

the conduct of prosecutors during the arrest is unworthy, unethical and contrary to law;
Davey Boy

Oops…almost forgot.

That was Justice Andre Denis of the Quebec Superior Court writing.
Davey Boy

“[1690] The Court does not grant any credibility to this witness who was visibly nervous during his testimony, gave answers that were elusive if not downright false and was contradicted by other witnesses. He claimed not to recall in response to many questions.”

Justice Denis’s opinion of Mr. Jean Carle, a Bank VP of some notoriety.
Gentle Reader

And we wonder why it took so long to find a judge willing to take on this task. This is really silly.

Wells seems to have backed down. I hope Kady does likewise.

First, I suspect Oliphant accepted the appointment because he knows he’s clean.

Second, Mike G. is right that anyone you are going to pick is going to be a Chretien or Mulroney appointment, so on those grounds, there’s really no way to win.

Third, Kady’s creative-appointment idea is just not on in this case. Judges may not be magical oracles, but I think you are going to want a high-quality judge with a quarter-century of experience hearing and judging evidence when the task at hand is to sort out the testimony of two of the country’s most infamous liars.

Fourth, I would add that the suggestion that Oliphant is in the bag for the Prime Minister in office at the time of his appointment (without any evidence other than the fact of his appointment), represents a serious misunderstanding of the process, both formal and non-formal, by which people become judges. This is not the Senate. A) I don’t know how it was in 85, but today, the appointment recommendation is made to cabinet by the Minister of Justice from a list of candidates acceptable to the bar (although I will grant you that the Assoc. Chief Justice recommendation was likely made by the PM); B) Non-formally, the type of lawyers who become judges are not, as a rule, party hacks. They know the right people, they are well-respected, they are members of “the elite”. But they really don’t tend to be carrying water for anyone.

Finally, this is all on the basis that there is no other evidence for bias. If there is more, certainly, have at it. But as I said at the outset, I doubt Oliphant would have taken on this thankless task without considering the fact that the national media would be talking to every past acquaintence and getting dirt on all his previous work as a judge and lawyer.

Finally, finally: Wasn’t Gomery appointed to the Quebec Superior Court when Chretien was Justice Minister? Don’t ask me what that means. I suspect not much.

Finally, finally, finally, I should add that the more interesting appointment from Manitoba Queen’s Bench would have been Vic Toews.
ebt

Didn’t the Quebec Court of Appeal find that, in fact, Mr. Justice Silcoff’s actions had been grossly improper? Day’s suspicion were well founded.

Silcoff hadn’t just been appointed by Chretien, either. He had been Chretien’s lawyer for years, and if memory serves his campaign manager. No such connection between Mulroney and Oliphant. Indeed, no connection at all. Did they ever even meet?
Davey Boy

Didn’t the Quebec Court of Appeal find that, in fact, Mr. Justice Silcoff’s actions had been grossly improper? Day’s suspicion were well founded.

Actually, the Court of Appeal held that the affidavit supportng the search warrant was not sufficient to support a search. Not quite “grossly improper”, just wrong.
Davey Boy

Didn’t the Quebec Court of Appeal find that, in fact, Mr. Justice Silcoff’s actions had been grossly improper? Day’s suspicion were well founded.

Actually, the Court of Appeal held that the affidavit supportng the search warrant was not sufficient to support a search. Not “grossly improper”, just wrong.