0160
1 15th January, 1999
2
3 The Honorable Court of Queen's Bench
4 Mr. Justice McMahon of Alberta
5
6 A.D. Hunter, Esq., Q.C. ) For the Applicants
7 L.A. Taylor, Ms. )
8
9 R.C. Maybank, Esq. ) For the Respondent
10 C.L. Enns, Ms. )
11
12 L.M. Maskey, Mrs. Official Court Reporter
13 -----------------------------------------------------------
14 IAN GREENE, previously sworn, cross-examined by
15 Mr. Hunter
16 THE COURT: Professor Greene.
17 You understand you're still under oath, sir?
18 A I understand, yes.
19 THE COURT: Thank you.
20 Q MR. HUNTER: Thank you, My Lord.
21 Professor, I would like to reply to you on your
22 escape from Toronto. A heroic effort, according to
23 the news, and obvious evidence of your respect for
24 this proceeding and this court.
25 I propose first to address the applicants. And
26 you understand that the judicial decision making
27 work of each of the applicants involves criminal
0161
1 jurisdictions functions, including the conduct of
2 judicial interim release or bail hearings; the
3 confirmation or cancellation of police process; and
4 the issuance of search warrants and arrest
5 warrants.
6 A I do.
7 Q And would you agree with me that that would be
8 judicial work?
9 A I would say that's it's the work of a judicial
10 officer but I wouldn't agree that it's judicial
11 work, as you put it.
12 Q You wouldn't.
13 Would it be fair to say that a Justice of the
14 Peace doing that judicial work, would be a judicial
15 officer?
16 A It's fair to say they would a judicial officer, yes.
17 Q Thank you, sir.
18 Are you aware that the applicant Spencer has
19 been doing that work for almost 22 years?
20 A I was aware it was for a very long time, yes.
21 Q And 22 years would be a very long time?
22 A Yes.
23 Q And that the applicant Maguire has been doing that
24 work for 17 years?
25 A Once again, I was aware that it was for quite a long
26 time.
27 Q And the applicant Ell has been doing that work for
0162
1 11 years.
2 A Yes, I am aware that it was for some time.
3 Q Some time.
4 And you're aware that each of these individuals
5 are lay justices?
6 A I am aware of that, yes.
7 Q I want to read to you from the judgment of Mr.
8 Justice DeWeerdt, a passage respecting lay justices
9 and I want to ask you --
10 MR. MAYBANK: My Lord, I think it would be
11 appropriate to find out if the witness is familiar
12 with that or may be given an opportunity to review
13 it.
14 MR. HUNTER: I think it has -- I don't
15 understand what you're talking about. You must have
16 something in mind that I don't.
17 I want to read something to him and ask him if
18 agrees with it.
19 THE COURT: He needn't be familiar with it
20 for the proposition.
21 MR. MAYBANK: He may need some context, is my
22 concern.
23 THE COURT: Let's hear the question first.
24 MR. HUNTER: My Lord, if you have the list of
25 the authorities of the applicants and for the
26 assistance of my friend, as well, this is Tab --
27 THE COURT: 8.
0163
1 Q MR. HUNTER: 8, you're ahead of me as usual,
2 My Lord.
3 It is not long and not difficult. If you need
4 to see the text, sing out. But this is what I want
5 you to have in mind.
6 Lay justices -- I'm sorry, My Lord, page 387 of
7 the text, last paragraph.
8
9 Lay justices of the Peace may receive
10 guidance and information on legal principles
11 and on the law as it is applied and declared by
12 the higher courts. But the qualities for which
13 they are chosen and which are most essential to
14 the proper discharge of their duties, have
15 always been and remain today, a robust common
16 sense, a sense of fairness, a knowledge and
17 understanding of ordinary people in their own
18 communities, a keen awareness of the practical
19 realities of life, and a deep and abiding
20 commitment to do what is right by all persons
21 who come before them or whom their decisions
22 may touch.
23
24 Do you have any disagreement with anything I
25 have said with respect to that statement or -- with
26 respect to that statement?
27 A I need to know what case that was quoted from.
0164
1 Q Would you like to have the case in front of you?
2 A I would, yes.
3 Q All right, you may use my book. I will look over my
4 friend's shoulder.
5 You will see that the case is Walton v. Hebb,
6 Attorney General of Canada and Commissioner of
7 Northwest Territories, in the Supreme Court of the
8 Northwest Territories and the presiding justice is
9 DeWeerdt and the matter was heard on the 7th of
10 September, 1984, and judgment was rendered on the
11 11th of October, 1984, and the passage that I read
12 to you is at page 387. What more would you like to
13 know about the case?
14 A That's very helpful.
15 What struck me as you were reading that is
16 these are exactly the same qualities that judges
17 that I interviewed in provincial superior courts,
18 the provincial courts and all of the Canadian courts
19 of appeal, thought were the most important qualities
20 that any judge should possess.
21 Q So you would say you have no disagreement with what
22 I read to you?
23 A That these qualities are important, yes. They
24 certainly are qualities that are certainly
25 desirable.
26 If you are asking me are these the only
27 qualities that a Justice of the Peace or a judge
0165
1 should have, I would say, no.
2 Q Professor, with respect, you were not listening to
3 me. I read to you from this passage.
4 A Mm-hmm.
5 Q My question is, do you have any disagreement with
6 it?
7 A Page 387?
8 Q That is correct.
9 Starting at the bottom of the page, fourth
10 paragraph. The last paragraph on page 387 starts,
11 Lay justices of the Peace; do you see that? And I
12 have read over on the next page to the word
13 "touch".
14 A What this statement says on the third line of
15 paragraph that you have drawn my attention to, the
16 qualities for which they are chosen.
17 I would disagree with Justice DeWeerdt if he
18 thinks that these are the only qualities for which
19 they are chosen. Certainly those are among the
20 qualities to be considered and not to be
21 considered. I would disagree with him if he says
22 these are the only ones. He is not clear about
23 that. The language is not clear.
24 Q So you are not disagreeing that the qualities that
25 he speaks of do relate to lay Justices of the Peace
26 but you can think of additional qualities?
27 A That is correct.
0166
1 Q All right, I understand.
2 But nothing by way of addition takes away from
3 what he stated there?
4 A That's right.
5 Q All right.
6 Is it your evidence here that that statement is
7 relevant today?
8 A Absolutely.
9 Q Thank you.
10 As a result of the impuned section -- first of
11 all, you understand what that is?
12 A Yes, I do.
13 Q And a determination by the judicial counsel but not
14 by the Justice of the Peace review committee, thus
15 determined nation being that Justices of the Peace
16 must be members of the Bar of Alberta with five
17 years experience.
18 You understand the applicants upon proclamation
19 of the impuned section, will have been removed from
20 their office as Justice of the Peace and their
21 remuneration will be eliminated; do you understand
22 that?
23 A I am not certain. My understanding was that they
24 might retain the title, Justice of the Peace but
25 certainly they would have no J.P. duties and would
26 have no salaries as a J.P.
27 Q I am not aware of any evidence of that.
0167
1 Do you think there is some evidence I have not
2 heard of?
3 A That's what I gathered from reading the materials.
4 I would have to look at them all again.
5 MR. MAYBANK: My Lord, I believe my friend is
6 asking the witness to speculate on what might happen
7 in the future.
8 THE COURT: He is just asking for his
9 understanding.
10 MR. HUNTER: That's it. None of us can
11 really tell, can we Mr. Maybank? I don't profess to
12 be able to, nor do you, nor do I suppose anybody
13 does.
14 This will have occurred, according to your
15 understanding, notwithstanding Section 5.1 of the
16 Justice of the Peace Act, which constitutes the
17 Justice of the Peace review counsel?
18 A This is the Justice of the Peace Act of 1990, that
19 you are referring to?
20 Q This is the current statute, unamended by the
21 Justice of the Peace, Amendment Act, okay?
22 MR. MAYBANK: In fairness, perhaps the witness
23 could be provided with the section.
24 Q MR. HUNTER: Of course.
25 Do you have one of those, Volume 1? The clerk
26 will hand up to you the relevant statute, which is
27 the Justice of the Peace Act, chapter JS3, Tab 1, in
0168
1 the applicants' authorities?
2 A Right.
3 Q Have you seen that document before?
4 A Yes, I have skimmed over it, yes.
5 Q Skimmed over it?
6 A Yes, mm-hmm.
7 Q Well, in the context of doing your work and making
8 your report, I would have thought you would have
9 examined it carefully?
10 A I went to the sections that were relevant to this
11 cases and read them carefully.
12 Q Well, it's a short Act, isn't it Professor?
13 A It is, mm-hmm.
14 Q And you understand that Section 5.1(1) is one of the
15 sections you read?
16 A Yes, sir.
17 Q This is the guarantee of security of tenure section?
18 A Yes, so that dates from 1991, that was my question.
19 Q This is the Section 5.1(1), you understand to be the
20 statutory guarantee, or part of it, of a security of
21 tenure?
22 A That's right.
23 Q And you certainly read this?
24 A Yes, absolutely.
25 Q And the other aspects of that would be Section 5.2,
26 that is the guarantee of security of tenure?
27 A Yes.
0169
1 Q And you read that, as well?
2 A Yes, I did.
3 Q Good.
4 Now, my question was that the removal from
5 office and elimination of remuneration, both of
6 which are addressed in the impuned section, will
7 upon proclamation occur, notwithstanding the
8 existence of Section 5.1 of the Justice of the Peace
9 Act, correct?
10 A That is correct.
11 Q And you would agree with me that at the moment,
12 Section 5.1(1) and 5.2, expressly govern removal
13 from office of a Justice of the Peace?
14 A I would agree with you.
15 When I read that section, I puzzled over it
16 because I am not certain that that is the only way
17 that a J.P. can be removed. I don't think it's
18 exclusive.
19 Q Well, what other ways should the court have in mind
20 besides section --
21 A Well, I --
22 Q If you would just allow me to finish, Professor.
23 A I'm sorry.
24 Q What other sources should the court have in mind,
25 other than sections 5.1(1) and 5.2, insofar as the
26 removal of a Justice of the Peace of Alberta is
27 concerned?
0170
1 A Sections 5.1 and 5.2 are there to prevent arbitrary
2 interference with the security of tenure, so as to
3 prevent a violation of judicial independence that
4 would impinge on a J.P.'s decision making.
5 First of all, I don't think 5.1 and 5.2 prevent
6 a loss of a J.P.'s duty through a reorganization of
7 the system, which is something different.
8 Q It's a different issue.
9 A Nor do I think there is a constitutional requirement
10 that these sections can not be over written by new
11 legislation.
12 Q Well, that's your opinion generally in this case.
13 That reform trumps the removal process?
14 A That's right.
15 Q We will get to that.
16 But you will agree with me, that the only
17 process that you are aware of that would affect a
18 Justice of the Peace of Alberta with respect to lack
19 of competence, conduct or misbehaviour or neglect of
20 duty by Justices of the Peace or the inability of
21 Justice of the Peace to perform their duties is to
22 be found in section 5.1(1)?
23 A I wouldn't say that is the only. Once again,
24 reorganization is another method.
25 Q Let me read it to you. 5.1(2) states,
26
27 The Justice of the Peace review counsel shall,
0171
1 A, review complaints respecting the lack of
2 competence of, conduct or misbehaviour of, or
3 neglect of duty by Justices of the Peace or the
4 inability of Justice of the Peace to perform
5 their duties.
6
7 Have I read that accurately?
8 A You have.
9 Q And so far as those matters are concerned, those are
10 matters that must be reviewed by the Justice of the
11 Peace review counsel?
12 A They must be, yes.
13 Q That's the only process that you are aware of that
14 speaks to review of such conduct?
15 A That is the only process that exists with regard to
16 review of such conduct.
17 Q Thank you. Thank you, very much.
18 And it has not been used, to your knowledge,
19 with respect to any of the three applicants?
20 A It has not, no.
21 Q Now, is there something presumptive in your opinion
22 and your review of the matter, that a lay Justice of
23 the Peace is not competent to continue to hold the
24 office of Justice of the Peace?
25 A That's a matter that I would think a judicial -- a
26 judge or judicial officer ought to decide, rather
27 than me, in terms of what --
0172
1 Q You have no opinion based upon your experience that
2 you have told the court about, as to the -- that
3 enables you to answer that a Justice of the Peace,
4 who's a lay person, is by virtue of being a lay
5 person, simply not competent to hold the office of
6 Justice of the Peace?
7 A Well, once again, I would refer to my testimony last
8 Tuesday, which emphasized both in the Doob Report
9 from evidence of the J.P.'s themselves, and the
10 decision of the justice -- the judicial counsel in
11 Alberta that -- in the case of Alberta, that a legal
12 education is definitely required.
13 In the case of the Doob study, it is highly
14 desirable.
15 Q Well, sir, you will recall that the three applicants
16 have considerable experience as Justices of the
17 Peace?
18 A (NO VERBAL RESPONSE).
19 Q Nodding doesn't help here?
20 A Yes, I do recall that.
21 Q Now that experience, according to your view and
22 understanding of matters from your perspective and
23 your work you have done, counts for something?
24 A The experience counts for something but I must admit
25 I am highly dubious of the value of experience
26 alone. If you want me to elaborate, I could.
27 Q Well, let me ask you to elaborate in this way and
0173
1 answer the question I asked you a few moments ago.
2 Is a lay person, by virtue of being a lay
3 person, not competent to hold the office of Justice
4 of the Peace?
5 A Depends what duties they are performing.
6 Q Judicial duties as we have described them at the
7 outset here?
8 A Mm-hmm, and it also depends on their -- I suppose
9 their ability, to learn about the legal requirements
10 of their office.
11 The Doob Report, once again, is full of
12 examples of J.P. who have had many years of
13 experience yet when they finally took a training
14 course they said, now I understand what I should
15 have been doing right for the last 20 years and I
16 have been doing wrong all the time. I can refer you
17 to those sections if you want.
18 So I am highly dubious of experience alone.
19 Q All right, but we do agree with this.
20 That this lay Justice of the Peace who's
21 performing the judicial duties that the applicants
22 perform, and you agreed are judicial duties, are
23 they incompetent to continue doing that work simply
24 because they are lay people?
25 A If they don't have a legal education, it is
26 possible, yes, that they are incompetent.
27 Q That would be something that would be determinable
0174
1 in an inquiry?
2 A That's right.
3 Q Well --
4 A By inquiry, I meant inquiry for the entire system, I
5 suppose, rather than an individual inquiry. I don't
6 think it should be determined on an individual
7 basis.
8 Q Well, if there was some concern that a lay person as
9 the Justice of the Peace was not competent to be a
10 Justice of the Peace, you would recognize the
11 process in Section 5.1(2) as appropriate to deal
12 with that?
13 A If you look at the history in Canada, that is not
14 the case. There is a review counsel exactly the
15 same as this, established in Ontario in the 1970's.
16 There have been three major reorganizations of
17 the system since then where a good many people in
18 the system were not reappointed because they were
19 not considered qualified, and not a single one was
20 reviewed to the J.P. review counsel.
21 Q Professor --
22 A Nor did any of them take their case there.
23 Q Professor, we are talking about an Alberta statute.
24 We are talking about an Alberta Justice of the
25 Peace, okay?
26 A Right.
27 Q So let's try to confine ourselves to the statutory
0175
1 regime that effects an Alberta Justice of the Peace.
2 Would you agree with me, that if there was a
3 concern about the competence of a Justice of the
4 Peace to perform these judicial duties, simply
5 because he is a lay person, that that would be a
6 matter that could be reviewed under section 5.1(2)
7 of the Alberta statute?
8 A Once again, to say "yes" or "no" would be
9 misleading.
10 I would agree with you if you are talking about
11 one particular individual who's lack of competence
12 might be an issue. But if the issue is the
13 competence of lay J.P.'s as a whole, I think that is
14 a decision that ought to be made by a higher
15 authority, such as the judicial counsel that is
16 considering what qualifications are appropriate.
17 Q Well, a higher authority --
18 A And I think it might be wrong to look at an
19 individual case because that might result in
20 violation of independence.
21 Q You will agree with me, that the only authority set
22 out in the Justice of the Peace Act for a review
23 that could lead to removal, is section 5.1?
24 A That is the only authority set out in the Justice of
25 the Peace Act, yes.
26 Q Okay.
27 So when you speak of this judicial counsel,
0176
1 there is no reference to it in this statute?
2 A There is no reference to that because that comes
3 about in subsequent legislation that overrides this
4 legislation.
5 Q Are you saying that this judicial counsel has
6 statutory authority to deal with the competence of
7 an Alberta Justice of the Peace?
8 A I am saying that they have statutory authority to
9 determine the qualifications of Alberta Justices of
10 the Peace.
11 Q Well, that's a different matter, isn't it, than my
12 question?
13 A Could you repeat your question again, please.
14 Q I think I can.
15 If there is a concern about the competence of
16 an Alberta Justice of the Peace to do this judicial
17 work that we have spoken of, that is a matter that
18 must be addressed under Section 5.1 of the Justice
19 of the Peace Act?
20 A Yes, if there is a complaint, not just a concern.
21 Q Or a concern?
22 A Because the section says, review complaints. Not
23 concerns but complaints.
24 Q Well, if there is a concern of any consequence, you
25 would expect it to be qualified as a complaint?
26 A That's right.
27 Q Thank you.
0177
1 Now, you're not aware, are you, sir, of any
2 proof that any of the three applicants are
3 incompetent to continue to hold the office of
4 Justice of the Peace by virtue of being lay persons?
5 A I am not, no.
6 Q And there has certainly been no hearing respecting
7 that matter, to your knowledge?
8 MR. MAYBANK: My Lord, the witnesses report
9 deals specifically with changes to system.
10 It doesn't deal with these three applicants nor
11 their personal history and I think my friend is
12 going beyond the scope of the witness' report.
13 MR. HUNTER: Well, excuse me.
14 I act for three applicants. You put this
15 gentleman in the box to give expert opinion about
16 something that affects the three applicants. I am
17 entitled to pursue it with him.
18 THE COURT: He is here for
19 cross-examination, it's a fair question.
20 I think the question is still outstanding.
21 A I believe the question was, was I aware of any
22 complaints or proceedings against the applicants
23 with regard to their competence. And if that's the
24 question, I am not aware of any such proceedings.
25 Q MR. HUNTER: Actually, the question is a
26 little more specific than that.
27 Were you aware that there was any hearing
0178
1 respecting such complaints against any of the three
2 applicants?
3 A No, I am not aware of that but I must say, I wasn't
4 asked to investigate those matters either.
5 Q I am not asking what you were or weren't, I am
6 simply asking you what you know?
7 A Okay.
8 Q And do you have any awareness of any proceeding or
9 process involving the Justice of the Peace review
10 counsel with respect to the competence of any of the
11 three applicants to continue as Justices of the
12 Peace because they are lay people?
13 A I am sorry, could you repeat the first part of that
14 question again.
15 Q The court reporter, I am sure, will repeat all of
16 the question.
17 COURT REPORTER: (by reading)
18
19 Q Do you have any awareness of any proceeding
20 or process involving the Justice of the Peace
21 review counsel with respect to the competence
22 of any of the three applicants to continue as
23 Justices of the Peace because they are lay
24 people?
25
26 A If by proceeding you mean formal hearing, I would
27 imagine, because I am not aware of any formal
0179
1 hearing --
2 Q MR. HUNTER: Well, are you aware of any
3 proceeding with respect to that matter?
4 A In the investigations that I conducted, I was told
5 -- I don't know if this is acceptable evidence in
6 the court -- that the justice -- the judicial
7 counsel considered the matter of qualifications very
8 carefully.
9 Q But that's generally not --
10 A I wouldn't call that a proceeding.
11 Q No.
12 A I would call that their own investigation.
13 Q And that was not specific to the applicants, was it,
14 according to your understanding?
15 A According to my understanding, no, it was general.
16 Q Right.
17 Now, I am going to turn to the process of
18 removal and judicial independence concerns and the
19 constitutional and jurisprudential considerations
20 surrounding that issue. So I am moving to a new
21 subject.
22 A Okay.
23 Q And what we are going to do, Professor, we are going
24 to deal with Alberta?
25 A Right.
26 Q Okay, I just want that to be understood.
27 Now, I understand that you have had available
0180
1 to you the Klinck Report?
2 A That's correct.
3 Q And when did you first become aware of the existence
4 of the Klinck Report?
5 A I was a public servant in Alberta for several years
6 in the 1980's, and also for one year prior to that.
7 So because of that experience I became aware of
8 the Klinck Report. I heard about it when it was
9 being produced but I read it very carefully in
10 preparing my evidence last November.
11 Q When did you first read the Klinck Report?
12 A I first read the Klinck Report in, probably the end
13 of November 1998.
14 Q That then was your first awareness of the detail and
15 the text of the report, is that what the court
16 should understand?
17 A That's right.
18 MR. HUNTER: My Lord, this is Exhibit O, I
19 believe, to the Hawrelechko Affidavit.
20 THE COURT: Thank you.
21 MR. HUNTER: I am not sure if you could place
22 the original before the witness, Ma'am Clerk, but I
23 would be obliged if you would.
24 Sir, do you have that before you?
25 A Did you say it was Section OO?
26 Q MR. HUNTER: No, I didn't, I don't think, but
27 maybe I am wrong.
0181
1 MS. TAYLOR: Section O.
2 A O, okay. Yes, I have that before me.
3 Q MR. HUNTER: And you recognize that as the
4 document you first read in November of 1998?
5 A It is looks very similar, yes.
6 Q Do you want to take a moment and be satisfied of
7 that sir.
8 A Yes, that's it.
9 Q No doubt about it, is it, Professor?
10 A No.
11 Q And you will understand that this -- you will turn
12 to the next page where it says "foreword"?
13 A Yes.
14 Q You will understand that it was in April of 1986,
15 that the committee on Justices of the Peace in
16 Alberta, which I have called the Klinck Report --
17 A Yes.
18 Q Can we agree on that?
19 A Yes.
20 Q Was established by the Department of the Attorney
21 General and His Honour C.A. Kosowan, Chief Judge of
22 the Provincial Court of Alberta, following
23 discussions with the Honourable Neil Crawford,
24 Q.C.. And you are aware of what the mandate was,
25 Professor, and I will state it.
26 The mandate of the committee was to analyze
27 legal problems associated with the existing system
0182
1 of Justices of the Peace in Alberta and to
2 recommended solutions to such problems.
3 The committee was directed to prepare a report
4 of its findings for presentation to the Attorney
5 General and the Chief Judge of the provincial court?
6 A Yes.
7 Q And when you read this document some two months ago,
8 you understood that that was a mandate of the
9 committee?
10 A I did, yes.
11 Q And if you would turn to the executive summary.
12 Unfortunately these pages aren't numbered but it's
13 part 1, about the third page in; do you see that?
14 A Yes.
15 Q Now, I will just identify from paragraph 2, the
16 initial impetus for change to the Justice of the
17 Peace system came from the Irving Report?
18 A Yes.
19 Q Now, that's a report that, of course, you have been
20 familiar with for some time?
21 A I hadn't been familiar with the Irving Report until
22 last November.
23 Q There is no discrimination against Alberta material,
24 is there, Professor?
25 A The Klinck Report was more in the news than the
26 Irving Report.
27 Q And the third paragraph we find this,
0183
1
2 Developments in the case law on judicial
3 independence assisted the committee in its
4 deliberations.
5
6 And there is a reference to the case of Currie?
7 A Yes.
8 Q A case that you are well familiar with?
9 A Yes, I am.
10 Q And then carrying on the second page, third line,
11
12 In Valente v The Queen, the Supreme Court of
13 Canada established essential conditions of
14 judicial independence for purposes of Section
15 11(d) of the Canadian Charter of Rights and
16 Freedoms as being security of tenure, security
17 of remuneration and institutional independence
18 with respect to matters of administration
19 bearing directly on the exercise of the
20 judicial function.
21
22 Correct?
23 A That is correct.
24 Q And that's a case that you're well familiar with?
25 A Yes.
26 Q And you understand that those two cases were the
27 jurisprudential considerations of the Klinck
0184
1 committee?
2 A Yes.
3 Q Right.
4 In fact, in the next paragraph on page 2 it
5 states,
6
7 In light of the recommendation of the Irving
8 Committee and these two cases, the Justice of
9 the Peace committee was formed in April of
10 1986, to identify any legal problems associated
11 with the current Justice of the Peace system in
12 Alberta and recommend solutions to such
13 problems.
14
15 A Yes, sir.
16 Q And you know, after reading the report, that they
17 did identify legal problems?
18 A Yes.
19 Q And they did recommend solutions to those problems?
20 A Yes.
21 Q And many of those recommendations were followed and
22 are -- were incorporated into the 1991 statute, the
23 Justice of the Peace Act?
24 A Yes, some were followed and some weren't.
25 Q I think I said some of them?
26 A Yes.
27 Q And that statute, just to refresh your memory, is
0185
1 the one you just looked at?
2 A That's right.
3 Q Justice of the Peace Act, Tab 1, Volume 1 of the
4 applicants' authorities.
5 Just while we are on page 2 of the Klinck
6 Report, there is a reference to categories of
7 Justices of the Peace; do you see that?
8 A Yes.
9 Q And the first category is "hearing officers"?
10 A Yes.
11 Q You understood that that is a description that would
12 apply to the applicants?
13 A I understand that.
14 Q Thank you.
15 Then on page 3, if you will, the first main
16 paragraph,
17
18 Using the Currie and Valente cases as
19 guidelines for analysis, the committee
20 identified problems in the current system of
21 Justices of the Peace in Alberta with respect
22 to appointments, restrictions and the exercise
23 of functions, the exercise of disciplinary
24 functions by the department, the lack of tenure
25 for Justices of the Peace, method of
26 remuneration, training and practice directions
27 in certain aspects of administration, such as
0186
1 scheduling and assignment of duties.
2
3 You understood that?
4 A Yes.
5 Q And if you will turn to page 4. We have the
6 short-term recommendations identified?
7 A Yes.
8 Q Do you see that?
9 A Yes.
10 Q And you familiarized yourself with those?
11 A Yes.
12 Q And then on the fifth page, the long-term
13 recommendations; do you see those?
14 A Yes.
15 Q Now, at page -- and the long-term recommendations
16 are set out there, 8 to 12?
17 A Yes.
18 Q And I will come to those more fully later but you
19 would agree with me, that they included in Number 9
20 on page 6, that a Justice of the Peace review
21 counsel be established?
22 A Yes.
23 Q To consider the appointment, discipline, suspension
24 and revocation of appointments of Justices of the
25 Peace?
26 A Yes.
27 Q That recommendation was accepted and did form part
0187
1 of the Act?
2 A In 1991, yes.
3 Q Well, that's the only Act that it went into, that I
4 am aware of, is there another one?
5 A No.
6 Q Okay.
7 And recommendation 11 -- I am sorry, 10, that
8 Justices of the Peace be appointed to hold office to
9 age 70 and to be removable only for cause upon the
10 recommendation of the review counsel?
11 A Yes.
12 Q And you were aware of that?
13 A Yes.
14 Q And that was also reflected in the statute?
15 A Correct.
16 Q Thank you.
17 And then paragraph number 12, that is
18 recommendation number 12, that the long term
19 recommendations of the committee be enacted in
20 amendments to the Justice of the Peace Act. And
21 those two we have identified certainly were?
22 A That's right.
23 Q Thank you.
24 Now, if you would turn the page to 7 and I want
25 you to address paragraph 2.3. It is stated that,
26
27 In addition to the recommendations of the
0188
1 Irving Committee Report, recent judicial
2 interpretation of the Canadian Charter of
3 Rights and Freedoms, in particular Section 7
4 and 11(d), has emphasized the requirement that
5 judicial functions be exercised impartially and
6 independently.
7
8 Do you see that?
9 A Yes, I do.
10 Q And those cases are the ones that we have discussed,
11 Currie and Valente?
12 A Yes.
13 Q Now, I would ask you to turn to page 9 -- sorry,
14 page 8, paragraph 2.5.
15 The Klinck Report states,
16
17 The Valente case is a decision of the Supreme
18 Court of Canada on the issue of the
19 independence of a provincial court of Ontario.
20
21 Then they are saying,
22
23 Although the case is concerned with provincial
24 court judges rather than Justices of the Peace,
25 it is a clear statement by the Supreme Court of
26 the essential conditions for judicial
27 independence.
0189
1
2 And you were, upon reading this report in November
3 of 1998, made aware of that for the first time?
4 A Of the Valente case.
5 Q No, the statement,
6
7 Although the case is concerned with provincial
8 court judges rather than Justices of the Peace,
9 it is a clear statement by the Supreme Court of
10 the essential conditions for judicial
11 independence.
12
13 That's the first time that you were aware that the
14 Klinck Report stated that?
15 A Yes, that's right.
16 Q They also stated that,
17
18 The Supreme Court held that the test
19 independence for the purposes of Section 11(d)
20 of the Charter is whether the tribunal may be
21 reasonably perceived as independent.
22
23 Going on,
24
25 The perception must, however, be a perception
26 of whether the tribunal enjoys the essential
27 objective conditions or guarantees of judicial
0190
1 independence and not a perception of how it
2 will, in fact, act regardless of whether it
3 enjoys such conditions or guarantees.
4
5 You were aware of that statement attributed to the
6 Klinck Report for the first time in November of
7 1998?
8 A Yes, sir.
9 Q And further,
10
11 The standard of judicial independence under
12 Section 11(d) must necessarily be a standard
13 that reflects what is common to or at the heart
14 of the various approaches to the essential
15 conditions of judicial independence in Canada
16 and need not be a standard of uniform
17 provisions, such as the standard embodied in
18 Section 99 and 100 of the Constitution Act
19 1867, for judges of the superior courts.
20
21 The court then prescribed the three essential
22 conditions of judicial independence.
23 All of this was known to you, of course, before
24 you read the Klinck Report?
25 A Yes.
26 Q Then in paragraph 2.6 it states,
27
0191
1 The first condition of judicial independence is
2 that of security of tenure. The essential
3 feature of security of tenure is that a judge
4 be removable only for cause and that cause be
5 subject to independent review and determination
6 by a process by which the judge affected is
7 afforded a full opportunity to be heard.
8
9 Have I read that clearly enough?
10 A You have, yes.
11 Q Do you have any disagreement with that statement?
12 A I am concerned about the word only for cause. That
13 is referring to an individual removal. What it
14 seems to overlook is a possibility of a
15 reorganization of the court system or the J.P.
16 system, specifically.
17 So my fear is that the Klinck Commission did
18 not choose its words carefully enough in that
19 paragraph.
20 Q I see.
21 Otherwise, you take no exception to those
22 statements?
23 A That is correct, sir.
24 Q And the next sentence,
25
26 The essence of security of tenure is a tenure
27 whether until an age of retirement for a fixed
0192
1 term or for a special adjudicative task that is
2 secured against interference by the executive
3 or other appointing authority in a
4 discretionary or arbitrary manner.
5
6 Do you take any exception to that statement?
7 A No, I don't.
8 Q And then in paragraph 2.7, the second condition of
9 judicial independence for the purpose of Section
10 11(d) of the charter, is that of financial security,
11 meaning security of salary or other remuneration
12 and, where appropriate, security of pension.
13 Do you take any exception to that statement?
14 A No.
15 Q And then carrying on,
16
17 The essence of such security is that the right
18 to salary and pension should be established by
19 law and not be subject to arbitrary
20 interference by the executive in the manner
21 that could affect judicial independence.
22
23 Do you take any exception to that statement?
24 A No.
25 Q Now, you're aware that the recommendations with
26 respect to security of tenure were implemented in
27 the statute?
0193
1 A I am.
2 Q And you're aware that the recommendations with
3 respect to security of salary or other remuneration
4 were dealt with in a regulation?
5 A Yes.
6 Q Now, if I could turn to page 14. We now have some
7 pages -- actually, just start at 13 so you know
8 where this fits in.
9 This is a section that deals with
10 identification of problems with the current system;
11 do you see that?
12 A Yes.
13 Q So I want you to turn to 4.3 at page 14.
14 You will see that this refers to individuals,
15 including hearing officers, right?
16 A That is correct.
17 Q I will just read it,
18
19 As judicial clerks and hearing officers are
20 employees of the department, they are subject
21 to all departmental regulations and policies
22 which are administered by the department. The
23 ultimate sanctions of suspension and
24 termination of employment are in the hands of
25 the department.
26
27 Do you see that?
0194
1 A I do.
2 Q Now, this,
3
4 The committee notes the exercise of powers of
5 discipline by the department over employees who
6 are judicial officers, to run contrary to the
7 system of judicial supervision approved in the
8 Currie case.
9
10 Do you see that?
11 A I do.
12 Q Do you have any disagreement with that --
13 A No.
14 Q -- statement?
15 A No.
16 THE COURT: Dr. Greene, you have to be sure
17 that the question is finished before you answer, so
18 that the transcript looks a little better.
19 Q MR. HUNTER: Shall I state the question
20 again, Professor? I read to you the last sentence
21 in paragraph 4.3.
22
23 The committee notes the exercise of powers of
24 discipline by the department over employees who
25 are judicial officers, to run contrary to the
26 system of judicial supervision approved in the
27 Currie case.
0195
1
2 Do you take any exception to that statement?
3 A No.
4 Q Thank you.
5 Then in 4.4, Tenure,
6
7 No guarantee of tenure is provided to any
8 Justice of the Peace in Alberta.
9
10 It goes on to say,
11
12 By virtue of Section 19 of the Interpretation
13 Act, the appointment of the Justice of the
14 Peace is an appointment of pleasure.
15
16 Were you aware of those views in the Klinck
17 Report in your reading of the report in November of
18 1998?
19 A Yes.
20 Q Moving down to the last paragraph in that paragraph
21 4.4,
22
23 As Valente requires security of tenure, free
24 from arbitrary or discretionary interference by
25 the executive, the committee is of the view
26 that there must be a mechanism established
27 which would remove this potential of
0196
1 interference.
2
3 Do you have -- do you take any exception to that
4 statement?
5 A No.
6 Q And you know that the mechanism is the one that is
7 in Section 5.1 and 5.2 of the Act?
8 A Yes.
9 Q And similarly, with respect to 4.5 on page 15, the
10 problem of remuneration and the third sentence,
11
12 As Valente requires that a judicial officer
13 have security of remuneration free from
14 arbitrary and discretionary interference by the
15 executive, the committee views the employment
16 status of judicial clerks and hearing officers
17 and incidents of employment such as performance
18 appraisal and granting of merit pay, to be
19 problematic.
20
21 Do you take any exception to that statement?
22 A No.
23 Q And then on the issue of training, paragraph 4.6,
24 page 15, and turning to the next page in that
25 paragraph, second line,
26
27 Although the good faith of all involved is not
0197
1 questioned, the committee finds it problematic
2 that the executive branch in government is
3 responsible for the training of the judiciary,
4 particularly where it is a lay judiciary,
5 without an independently acquired legal
6 background.
7
8 Do you take any issue with that statement?
9 A No, I do not, sir.
10 Q And you understand that the subject of training was
11 dealt with by regulation?
12 A Yes.
13 Q Thank you.
14 Going to page 17, 5.1,
15
16 The fundamental objective of the committee is
17 to ensure that the administration of justice in
18 the province is appropriately and properly
19 conducted at the level of a Justice of the
20 Peace and the recommendations of the committee
21 are directed at ensuring their necessary
22 independence and impartiality.
23
24 Do you see that?
25 A I do.
26 Q You understood that was the fundamental objective?
27 A Yes, I did.
0198
1 Q And you understood that the recommendations in the
2 report were directed at ensuring necessary
3 independence and impartiality?
4 A Yes.
5 Q And is it your understanding that the they achieved
6 that objective?
7 A They did not achieve -- you mean in their -- do you
8 mean the report itself in terms of what they
9 recommended?
10 Q Yes, or did you come to have any view about that?
11 A I didn't ask myself that question until now.
12 Q Well then, that's fine, that's all I need to know.
13 MR. MAYBANK: My Lord, the question was posed
14 to the witness and he is prepared to answer the
15 question. Now he prefers it not be answered.
16 THE COURT: He answered what was put to
17 him. You will have an opportunity in reply to ask
18 him if you want to elaborate.
19 MR. HUNTER: Thank you, My Lord.
20 Now, if you would turn to page 26. This is the
21 paragraph dealing with long-term recommendations. I
22 would like to read you the second sentence,
23
24 The long-term recommendations proposed are
25 intended to formally establish the system of
26 judicial supervision of Justices of the Peace
27 and to enact in the legislation the essential
0199
1 features of judicial independence outlined in
2 the Valente case.
3
4 Do you see that?
5 A I do.
6 Q And have you considered before today whether the
7 legislation that did result, achieved those
8 objectives?
9 A No, I haven't.
10 Q Thank you.
11 I will take you to page 27. This is
12 recommendation Number 9 that we referred to
13 earlier. Do you remember that?
14 A Yes.
15 Q Let me take you into the discussion relative to that
16 recommendation, the bottom of the page, third last
17 sentence starts,
18
19 A Justice of the Peace could only be appointed
20 or removed from office upon the recommendation
21 of the review counsel. This recommendation
22 would create the type of review process for
23 appointments currently in use for appointments
24 to the provincial court bench. It would, as
25 well, establish an independent mechanism for
26 the discipline and removal of Justices of the
27 Peace in a manner consistent with the Valente
0200
1 case.
2
3 My question is this: Do you agree with the
4 statement that the recommendation would create the
5 type of review process spoken of in that second
6 sentence that I read to you?
7 A Yes, I do. With the qualification that this would
8 apply to a discipline procedures against an
9 individual J.P., and that would meet the requirement
10 of Valente, yes, sir.
11 Q And with respect to the last sentence I read you, do
12 you take any exception to that statement?
13 A If it's confined only to complaints or discipline
14 procedures against individual J.P.'s, I have -- I
15 don't take exception to it.
16 Q Well, if we need just to go back to the legislation,
17 it expressly deals with individuals, does it not?
18 A It does.
19 Q Such as the three applicants?
20 A That is correct.
21 Q Each of whom is an individual?
22 A That's right.
23 Q And then the next page, recommendation number 10,
24 you remember we spoke of that, and the discussion, a
25 Justice of the Peace could be removed from office --
26 and here's this "only" word again, Professor, which
27 I gather gives you some pause?
0201
1 A It gives me pause, yes.
2 Q
3 A Justice of the Peace could be removed from
4 office only where removal is recommended by the
5 review counsel following an investigation by
6 the counsel and a finding that the justice is
7 incapable of or unable to perform his duty by
8 reason of...
9
10 And then there's a number of examples, right?
11 A That's right.
12 Q So when you see the word "only", you say they were
13 wrong in using the word "only"?
14 A I am saying they probably didn't consider what would
15 be the impact of a reorganization of the J.P.
16 system.
17 Q Well, it is also equally open to say that they did
18 consider it and expressly didn't include it,
19 correct?
20 A I don't think it was in their mandate to think about
21 what would happen if their recommendations were
22 implemented into different order than what they
23 recommended and how that would effect -- they
24 weren't asked to consider that situation and what
25 were the implications.
26 Q You don't know, sir, whether they considered this
27 exception that you want to take, do you?
0202
1 A I don't -- let's put it this way. I don't see any
2 evidence at all here that they did consider it.
3 Q Or that they did not?
4 A Or that they didn't, that is correct.
5 Q Thank you, Professor.
6 And you will see on page 29, continuing the
7 discussion,
8
9 The committee notes that this recommendation
10 has the effect of granting tenure to Justices
11 of the peace.
12
13 Do you see that?
14 A I do.
15 Q Do you have any disagreement with that statement?
16 A No.
17 Q Thank you.
18 Then they say,
19
20 Although the Valente case suggests that other
21 means may be used to achieve security of
22 tenure, the model proposed by the committee is
23 a model which was expressly approved by the
24 Valente case.
25
26 Do you take any exception with that statement?
27 A No.
0203
1 Q Thank you.
2 You will see this under impact, a
3 recommendation number 10,
4
5 Although tenure is to be granted to Justice of
6 the Peace, effective operation of the review
7 counsel would preclude the retention of
8 incompetent or inefficient Justices of the
9 Peace.
10
11 Do you see that?
12 A I see that, sir.
13 Q Does that help you understand the use of the word
14 "only" in the preceding paragraph that we looked at
15 starting off with the discussion, a Justice of the
16 Peace can be removed from office only.
17 A It doesn't change my previously expressed opinions
18 because what this paragraph is referring to, it
19 would be a complaint of incompetence or inefficiency
20 with regard to a particular individual.
21 Q For instance, might be a lay Justice of the Peace
22 who's incompetent to continue doing his judicial
23 work as a Justice of the Peace, simply because he is
24 a lay person?
25 A No, it would have to refer to a particular -- not
26 simply because he is a lay person but there would
27 have to be an example of where his or her lack of
0204
1 understanding of legal processes or procedures in
2 law led to a decision that was incompetent, clearly
3 incompetent.
4 Q All right.
5 So, simply being a lay justice -- a lay person,
6 is not going to make him incompetent?
7 A From the perspective of individual complaints, no.
8 Q And removal of office?
9 A From the perspective of individual complaints, no.
10 Q And are you aware of how many lay Justices of the
11 Peace there are in Alberta?
12 A If you include all the fee J.P.'s and staff J.P.'s?
13 Q No, hearing officers.
14 A There are three hearing officers.
15 Q And those are the three applicants in this case?
16 A Mm-hmm.
17 Q You're answer is "yes"?
18 A Yes.
19 Q And you will see on page 29, recommendation number
20 11, and reference to hearing officers; do you see
21 that?
22 A Yes.
23 Q And the discussion,
24
25 Hearing officers would become full-time
26 salaried Justices of the peace.
27
0205
1 And you will see the next two sentences deal with
2 the benefit package and benefit plans, correct?
3 A The quote was, Hearing offices will become full-time
4 Justices of the Peace.
5 Q Right, and the next sentence deals with the general
6 benefit package?
7 A I am sorry.
8 Q It's the discussion section?
9 A I see.
10 Q I am sorry.
11 A I see.
12 Q Shall I go through that again?
13 A Yes, please.
14 Q Under discussion, Hearing officers would become
15 full-time salaried Justices of the Peace; do you see
16 that?
17 A Yes.
18 Q The next sentence deals with the general benefit
19 package, including salary and pension, and the
20 sentence following that deals with benefit plans.
21 The final sentence says this,
22
23 Provisions dealing with the appointment and
24 discipline of Justice of the Peace would be
25 excluded and dealt with by the Justice of the
26 Peace review counsel.
27
0206
1 You understand that?
2 A I do.
3 Q And you understand that that was carried forward --
4 that recommendation was carried forward into the
5 statute?
6 A Yes.
7 Q And then finally paragraph 12 -- 31, I am sorry.
8 Page 31, recommendation number 12. This is the
9 recommendation we spoke of earlier?
10 A Yes.
11 Q Please turn to the discussion part of this?
12 A Okay.
13 Q Second sentence,
14
15 Legislation, as well, would assist isn't
16 satisfying the Valente criteria that there must
17 be objective standards or measures to guarantee
18 judicial independence.
19
20 Do you take any exception to that statement?
21 A No.
22 Q Going forward,
23
24 In the course of legislating, the committee
25 recommends that provisions be included to
26 expressly authorize the prescription of duties
27 and certain categories of duties to the
0207
1 Justices of the Peace and that Justices of the
2 Peace be protected from civil liability for
3 acts or omissions done in the execution of duty
4 in the absence of malice and with reasonable
5 and probable cause.
6
7 Now, sir, do you know that the recommendations
8 with respect to protection from civil liability also
9 found their place in the statute?
10 A That's, my understanding.
11 Q And that was achieved by Section 6.2 of the Justice
12 of the Peace Act. If you'd like it before you, it's
13 Tab 1 of our authorities, Volume 1. Do you have
14 that? Page 4, 6.2?
15 A Yes.
16 Q Sections 5, 14 and 16 of the Provincial Court
17 Judge's Act apply to a Justice of the Peace in the
18 same manner as if the Justice of the Peace were a
19 province judge; do you see that?
20 A I do.
21 Q And you know Section 16 to be the immunity section
22 or do you not?
23 A 16 of the --
24 Q 6.2?
25 A Yes, that's right, I do know that.
26 Q Thank you.
27 Now, sir, on the matter of security of tenure.
0208
1 MR. HUNTER: My Lord, I see the hour here.
2 If we take -- if ten minutes is okay for you or
3 fifteen minutes, and we can be here back, I think I
4 can complete by 12:30.
5 THE COURT: All right, we'll take the
6 mid-morning break.
7 (ADJOURNMENT)
8 THE COURT: Mr. Hunter.
9 Q MR. HUNTER: Thank you, My Lord. I am going
10 to move to a whisper. Can you here me?
11 A I can.
12 Q All right, thank you.
13 Would you agree with me that Valente is a
14 landmark concerning the meaning of judicial
15 independence?
16 A Yes.
17 Q Would you agree with me that the provincial court
18 judge's case, or the Campbell case as we have been
19 calling it, is a landmark concerning the meaning of
20 judicial independence?
21 A Yes, as it applies to judges only, not to other
22 judicial officers.
23 Q My question was, do you consider it a landmark
24 concerning the meaning of judicial independence, yes
25 or no?
26 A And since judicial independence applies both to
27 judges and other judicial officers, my only truthful
0209
1 answer I can give is to say yes with regard to
2 judges.
3 Q Do you agree that the provincial court judges case
4 addressed concerns of security of tenure and
5 financial security?
6 A Yes, I would, for judges only.
7 Q It's a matter of construction as to whether it was
8 for judges only; would you agree?
9 A I have looked at that case carefully a number of
10 times and I can't find anything in it that would
11 refer to judicial officers, other than judges.
12 Q What do you mean by judges?
13 A Superior court judges and provincial court judges.
14 Q I see, that's how you read it?
15 A That's right.
16 Q You have no legal training?
17 A That is correct.
18 Q Thank you.
19 Now I want to put to you the following, and I
20 will ask you for your comment, whether you accept
21 this, not uncommonly a Supreme Court decision will
22 be more important for its obiter dicta, or words in
23 passing, than for the actual narrow holding of the
24 decision, the Beauregard decision may be such a
25 case.
26 Chief Justice Dixon, the writer of the majority
27 decision in Beauregard, claimed in obiter that
0210
1 judicial independence has two functions in the
2 Canadian context: To allow judges to decide
3 individual cases without improper interference and
4 to allow the courts to act as independent umpires
5 with regard to federalism and Charter of Rights
6 issues. He said that the second purpose of judicial
7 independence implies that the courts must be,
8 "completely independent from government". Do you
9 agree with that statement?
10 A Yes, I believe that's a statement that I wrote.
11 Q That is?
12 A So I agree with it.
13 Q And you agree with it's accuracy today?
14 A I do.
15 Q Thank you.
16 You also expressed the opinion, and I quote,
17
18 Even though Beauregard lost his case, this
19 obiter may be useful as a jumping off point for
20 future litigants who wish to see the scope of
21 judicial independence expanded through court
22 decisions.
23
24 You said that?
25 A Yes, if you read --
26 Q You said that?
27 A You must take it in the context of the entire
0211
1 article which expressed a fear that that might
2 happen, it wasn't --
3 Q Well, why don't we just enter that article and see
4 that analysis of Valente was taken from a chapter in
5 Law Politics and the Judicial Process in Canada,
6 Second Edition, F.L. Morton, 1992, correct? I will
7 just hand that up.
8 A That is correct.
9 Q I am sorry, I have only got -- you can read over my
10 shoulder.
11 The paper is identified in your C.V., isn't it?
12 A It is.
13 Q Yes, and you start this 5.7 at page 167,
14
15 Although judicial independence is accepted as
16 one of the most important principles in the
17 Canadian Constitution, its implication for
18 judges and those having dealings with it were
19 far from clear.
20
21 This is what this is about, correct?
22 A Yes.
23 Q And you refer to these three aspects of judicial
24 independence on page 168 in that first full
25 paragraph in the third sentence. You say, as noted
26 above judicial independence is one of the
27 cornerstones of the Canadian Constitution; do you
0212
1 see that?
2 A Yes, I see that.
3 Q Does that continue to be your view today?
4 A Yes, absolutely.
5 Q And then you could say first it is a convention
6 inherited from the United Kingdom Constitution
7 thanks to the preamble of the Constitution Act 1867;
8 do you see that?
9 A I do.
10 Q And you are aware that that was relied upon by the
11 court in the Provincial Court Judges Act case?
12 A I am.
13 Q Yes, and indeed, it -- do you have an understanding
14 that that was obiter?
15 A In the provincial court judges case?
16 Q Yes.
17 A Once -- the dividing line between the holding obiter
18 is always rather fuzzy. I would have to look at
19 that very carefully again to give you a clear
20 answer.
21 Q But you have some understanding of obiter at page
22 170, didn't you?
23 A Yes.
24 Q Where you made the statement that I read to you?
25 A That's right.
26 Q That you recognized as your own.
27 Are you saying that you have not come to a
0213
1 conclusion as to whether there is any obiter in the
2 provincial court judges case?
3 A I am certain there is obiter but I would have to do
4 the same kind of careful analysis that I did with
5 regard to Beauregard.
6 Q Which you haven't done?
7 A Which I haven't done.
8 Q Okay.
9 Now, the second of the three parts is page 169,
10 first full paragraph, starts off, second section 96,
11 99, and 100 of the Constitution Act 1867, are
12 usually considered to be safeguards of judicial
13 independence for the federally appointed judges in
14 provincial court; do you see that?
15 A I do.
16 Q And does that continue to be your opinion?
17 A Yes.
18 Q And you understand that that was relied upon in the
19 provincial court judges case?
20 A I do.
21 Q Yes, by Chief Justice Lemer?
22 A I do, yes.
23 Q Speaking for himself and five others?
24 A That is correct.
25 Q And further down the page in the next paragraph you
26 identify the third aspect, page 169,
27
0214
1 Section 11(d) of the Canada Charter of Rights
2 and Freedoms is the third and newest facet of
3 the cornerstone of judicial independence. It
4 guarantees that anyone charged with an offence
5 has a right to a, "fair and public hearing by
6 an independent and impartial tribunal".
7
8 Do you see that?
9 A I do.
10 Q And did you believe that at the time?
11 A I did.
12 Q Do you continue to believe that?
13 A I continue to believe that.
14 Q And you know and can confirm that the Supreme Court
15 of Canada and the Provincial Court Judges Act
16 applied that?
17 A Yes, I can.
18 Q All right.
19 A In the provincial court judges case.
20 Q Sorry, in the provincial court judges case.
21 My Lord we have been calling it Campbell. It
22 comes up as Wickam (phonetic), it comes up as -- how
23 would you like us to handle it?
24 THE COURT: We began calling it Campbell,
25 why don't we stay with Campbell.
26 Q MR. HUNTER: All right. When I speak of
27 Campbell, you will understand I am speaking of the
0215
1 provincial court judges case?
2 A I will.
3 MR. HUNTER: My Lord, just a moment, I have
4 misplaced my notes.
5 (DISCUSSION EXCLUDED AS PER REQUEST)
6 THE COURT: All right, we will adjourn to
7 2:00 p.m.
8 ---------------------------------------------------------
9 PROCEEDINGS ADJOURNED TO 2:00 P.M.
10 ---------------------------------------------------------
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