0216
1 15th January, 1999
2 2:00 P.M. Session
3 R. Ernst, CSR(A) Official Court Reporter
4 -------------------------------------------------------
5 THE COURT: Mr. Hunter?
6 MR. HUNTER: Thank you, My Lord.
7 CHARLES IAN GEORGE GREENE, previously sworn, cross-examined
8 by Mr. Hunter:
9 Q Professor, do you agree or disagree that the
10 constitution is the supreme law of Canada?
11 A There -- the constitution is divided into two parts.
12 There's the -- the written part, which is the supreme
13 law of Canada. It can be enforced by the courts. And
14 then there's the conventional part, which is enforced
15 through the political process. So the -- the written
16 part that is legally enforceable, I would agree to
17 that, yes.
18 Q That would at least include the Charter of Rights and
19 Freedoms?
20 A Absolutely.
21 Q Do you agree or disagree that the purpose of the
22 constitutional principle of judicial independence is to
23 protect an organ of the constitution which is charged
24 with the responsibility of protecting the constitution
25 and the fundamental values contained within it?
26 A I agree with that.
27 Q And do you agree or disagree that the need to avoid the
0217
1 possibility or even the appearance of political
2 interference is to ensure public confidence in the
3 administration of justice?
4 A I agree.
5 Q Thank you. And would you agree that the -- that that
6 public confidence in the administration of justice is
7 the requisite public interest from the Supreme Court of
8 Canada jurisprudential perspective when it comes to
9 judicial independence?
10 A I would agree, yes.
11 Q Do you agree or disagree that a Justice of the Peace in
12 Alberta who performs judicial functions, such as each
13 of the applicants here, can only be removed from office
14 by a process that respects and fulfills the
15 constitutional guarantee of judicial independence as
16 provided in the constitution and as interpreted and
17 determined by the courts?
18 A I would agree with that.
19 Q Are you critical of the role of the courts in
20 determining and defining the contours of the
21 constitutional guarantee of judicial independence?
22 A My article on the doctrine of judicial independence
23 developed by the Supreme Court of Canada was generally
24 complimentary to the decisions in Valente and
25 Beauregard, but I was a little concerned about the
26 Supreme Court expanding the meaning of judicial
27 independence too far with regard to institutional
0218
1 independence.
2 Q So are you or are you not critical of the role of the
3 courts in determining and defining the contours of the
4 constitutional guarantee of judicial independence?
5 A Yes. Answering that "yes" or "no" would be
6 misleading. I'm somewhat critical.
7 Q Thank you. And I put it to you, sir, that you, as a
8 political scientist, believe that the contours of
9 judicial independence ought to evolve more through the
10 democratic process rather than, as I think you have
11 stated it, by judicial fiat. Is that so?
12 A I see it as a dialogue between the elected branches of
13 government and the judiciary.
14 Q Do you agree or disagree that following the advent of
15 the Constitution Act of 1982, that it is fair to say
16 that Canada became a constitutional democracy and was
17 no longer a Parliamentary democracy?
18 A No, I would not agree with that.
19 Q You think it is not a constitutional democracy?
20 A I think it's a combination of the constitutional and
21 Parliamentary democracy.
22 Q But you do accept that the constitution is a supreme
23 law of Canada?
24 A Certainly.
25 Q Now, sir, let me take you to the work that you
26 identified in an earlier -- in answer to an earlier
27 question, and that is your article which is "The
0219
1 Doctrine of Judicial Independence Developed by the
2 Supreme Court of Canada" Spring 1988, "Osgoode Hall Law
3 Journal," and I know there should be one for the
4 witness and one for the -- will you hand one up, one to
5 the court and one to the witness, please, madam? Thank
6 you.
7 THE COURT: Mr. Hunter, we didn't mark the
8 other one, which bears a cover from a text, "Law,
9 Politics and the Judicial Process..." Did you want
10 that marked?
11 MR. HUNTER: My Lord, I think in fairness it
12 ought to be marked, unless my learned friend has a
13 problem with it.
14 MR. MAYBANK: No, I have no objection.
15 THE COURT: The next exhibit, Madam Clerk?
16 THE COURT CLERK: Exhibit 7, My Lord.
17 THE COURT: Exhibit 7 then will be the article
18 by the witness headed, "Are Canadian Judges Independent
19 Enough?"
20 MR. HUNTER: Thank you, My Lord.
21 EXHIBIT 7 - ARTICLE TITLED "ARE
22 CANADIAN JUDGES INDEPENDENT
23 ENOUGH?"
24 Q MR. HUNTER: Now, I appreciate that this article
25 was written over ten years ago, professor, but let me
26 take you through some of this, if I may, and then I
27 have some questions on it.
0220
1 At page 178 --
2 A Yes.
3 Q -- after referring to Valente and Beauregard, at the
4 bottom of the page, you say:
5
6 "On the other hand,..."
7
8 And you're speaking of judicial interpretation,
9
10 "...if judicial independence is interpreted too
11 broadly, then the judiciary will have the
12 opportunity to expand its power and its
13 privileges for reasons not related to liberal
14 democratic theory. Errors in either direction
15 may undermine the credibility of the courts as
16 fair and impartial arbiters of legal disputes."
17
18 Do you see that?
19 A I do, yes.
20 Q And that was your opinion then?
21 A It was.
22 Q And does that continue to be your opinion today?
23 A It continues to be my opinion today.
24 Q Is it a matter that you follow closely?
25 A As closely as time permits, yes.
26 Q And would you agree with me that the Campbell case was,
27 in your view of the world, a broad interpretation?
0221
1 A It -- it was certainly broad in the scope of judicial
2 independence, yes.
3 Q And that was a concern to you?
4 A In -- with regard to the -- the need for judicial
5 compensation commissions for judges, that -- that is
6 not a concern. I think that it's a very good
7 decision. I don't think it goes beyond judges, though.
8 Q A lot was said in Campbell about judicial
9 independence.
10 A It certainly was.
11 Q You would like to confine that to certain judges?
12 A Define the -- the holding?
13 Q Yes.
14 A The holding, I think, is designed to refer to superior
15 court judges and Provincial Court judges.
16 Q And you would like to confine it to those judges?
17 A I would confine the holding to those judges, yes.
18 Q And what about the reasons?
19 A The reasons, you mean, the holding --
20 Q Well --
21 A -- or did you mean the obiter?
22 Q -- what do you mean by "the holding"?
23 A Well, I mean the actual decision, the part of the
24 decision that is not obiter.
25 Q Well, what is -- I think we -- you're not really here
26 to tell us what the obiter was because you really
27 haven't had an opportunity to do that analysis.
0222
1 A That's right.
2 Q But, in any event, you're not speaking about the
3 finding where certain statutes were struck down, are
4 you, when you speak of holding?
5 A Yes.
6 Q So you agree with the result of legislation being
7 struck down for the reasons given by the court?
8 A I do.
9 Q Even though it was a broader interpretation that you
10 might --
11 A Yes.
12 Q -- than you might like?
13 A Well, no, it's not a broader interpretation that I
14 might like. The broader interpretations that I was
15 concerned about in this article dealt with the
16 institutional aspect of judicial independence, not the
17 security of tenure or financial security.
18 Q Well, professor, you're surely not suggesting to this
19 court that the judgment and reasons in Campbell did not
20 deal with the institutional independence of justice,
21 are you?
22 A They dealt primarily with financial security.
23 Q Well, now, sir, how closely have you read Campbell?
24 A I've read it very closely. The first 80 pages are a
25 broad discussion of the entire scope of judicial
26 independence, and, of course, they deal with all
27 aspects of independence, but the actual holding deals
0223
1 with financial security.
2 Q So you would agree with me that there was considerable
3 said by the court with regard to the institutional
4 independence of justice?
5 A I wouldn't say considerable. I would say a certain
6 amount.
7 Q But you say that it had nothing to do with the holding,
8 at least that's your understanding of it?
9 A I wouldn't say it had nothing to do. It was the
10 background to the holding.
11 Q Well, sir, I know that you're not a lawyer, and you
12 would probably accept that a legal opinion might come
13 to a different view than you.
14 A Certainly.
15 Q Fair enough. But as a political scientist, this is
16 your understanding?
17 A That is correct.
18 Q All right. And on page 179, in the first complete
19 sentence, you refer to the essay beginning with the
20 summaries of Valente and Beauregard, and you say in the
21 second sentence:
22
23 "The critique suggests that three aspects of
24 judicial independence have not received careful
25 enough attention from the Court."
26
27 And then you set them out.
0224
1 I submit to you, professor, that the court in
2 Campbell gave very careful consideration to those
3 matters. Do you disagree?
4 A It gave very careful consideration to the first two,
5 but when -- they didn't -- I mean, the third part, the
6 relationship between judicial independence and the
7 institutional role of the courts, the scope of that is
8 so potentially broad because it refers to every aspect
9 of judicial administration, and they -- the court
10 certainly considered that to some extent, but I
11 wouldn't say it was the last word or just a thorough
12 going analysis of all those -- of all the possible
13 issues. They were concerned about the issue of
14 financial security in this case.
15 Q Well, with respect, I would suggest they were concerned
16 with far more than that, but that's a difference
17 between us.
18 A Right.
19 Q So if I understand your answer correctly, you believe
20 that the court was careful enough with regard to the
21 relation between judicial independence and judicial
22 impartiality and the relation between judicial
23 independence and the mechanisms devised to attempt to
24 protect it, but not careful enough with respect to the
25 relation between judicial independence and the
26 institutional role of the courts; is that correct?
27 A No, I wouldn't agree with you there. What I said was
0225
1 that they gave very careful consideration to the first
2 two. I didn't say it wasn't careful enough. They gave
3 very careful consideration, and the third, I think they
4 -- that the court said as much as it needed to to
5 decide the issue.
6 Q So --
7 A I don't think it was not a careful analysis.
8 Q You're not saying it wasn't careful enough?
9 A No.
10 Q Oh, fine, I misunderstood you. I apologize.
11 And then at page 183, on the second line from the
12 top, and this is in relationship to Valente, correct?
13 A Right.
14 Q The second line:
15
16 "Through this decision, the Supreme Court has
17 successfully claimed the right to determine the
18 standards for the protection of judicial
19 independence, and at the same time no crisis of
20 legitimacy has been created concerning the
21 propriety of courts determining and then policing
22 the extent of their own independence. This is
23 because no statute was actually struck down."
24
25 Have I read that correctly?
26 A That's correct.
27 Q Now, we know that in Campbell the court did strike down
0226
1 legislation because it infringed upon the constitution,
2 correct?
3 A That's correct.
4 Q Was that a crisis of legitimacy?
5 A In fact, I think it has created a crisis of
6 legitimacy.
7 I was at a seminar at the University of Toronto
8 last year that Professor Peter Russell was at,
9 Professor Hogg, Professor Ziegel, and Professor Ziegel
10 was very, very critical of that decision. He felt that
11 the court had gone too far in protecting its own
12 domain. So I think from that perspective, it has
13 created a crisis of legitimacy.
14 Q So because Professor Ziegel, according to your hearing,
15 made that remark at a meeting of political scientists,
16 you'd say that's evidence of this crisis of legitimacy
17 of which you speak?
18 A With respect, there were about 100 people at that
19 meeting and almost all were lawyers or judges --
20 Q There was no paper --
21 A -- and many had the same concerns as Professor Ziegel.
22 Q Well, all right, but that's what you're relying on?
23 A Yes, he's very well respected.
24 Q Well, that may be true, but you're here, and it's --
25 you are going to have to answer my questions, not
26 Professor Ziegel, but I understand what you're saying.
27 If you'd turn to page 187, and if you'd go to the
0227
1 first full paragraph, the second sentence:
2
3 "In the Valente case, Mr. Justice Le Dain had
4 focused on the conditions for judicial
5 independence. In Beauregard, Chief Justice
6 Dickson's analysis shifted to another aspect of
7 judicial independence -- its purpose.
8 According to Chief Justice Dickson, judicial
9 independence has two purposes. The first is to
10 allow individual judges complete liberty to hear
11 and decide the cases that come before them.
12 '[N]o outsider -- be it government, pressure
13 group, individual or even another judge -- should
14 interfere in fact, or attempt to interfere, with
15 the way in which a judge conducts his or her case
16 and makes his or her decision.' Chief Justice
17 Dickson refers to this as the 'core' purpose of
18 judicial independence. This was the purpose
19 which was implied by Mr. Justice Le Dain
20 throughout his opinion in Valente."
21
22 And then:
23
24 "The second purpose of judicial independence
25 is to enable the courts to fulfill their
26 institutional role in Canada, that is, as an
27 independent branch of government whose duty it is
0228
1 to protect the constitution."
2
3 Now, with respect to the last paragraph that I've
4 just read to you, the second purpose, you recognize
5 that the court in Campbell confirmed that?
6 A Yes, he did.
7 Q That was something, however, that concerned you when
8 you wrote this article, this second purpose; am I not
9 right?
10 A Yes, you're correct.
11 Q And, in fact, I can derive that from the next page
12 where the quote is taken:
13
14 "The rationale for this two-pronged modern
15 understanding of judicial independence is
16 recognition that the courts are ... [the]
17 protector of the Constitution and the fundamental
18 values embodied in it - rule of law, fundamental
19 justice, equality, preservation of the democratic
20 process, to name perhaps the most important."
21
22 Right?
23 A That's correct.
24 Q And then you go on to say, and these are your words:
25
26 "Because courts in Canada have this
27 institutional role to play, judicial
0229
1 independence, according to Chief Justice Dickson,
2 is even more important in Canada than it is in
3 the United Kingdom. Chief Justice Dickson
4 posited that in order for Canadian judges to
5 perform the institutional role, the judiciary
6 must be 'completely separate in authority and
7 function from all other participants in the
8 justice system.'"
9
10 Do you see that?
11 A I do, yes.
12 Q And you would agree with me that the court in Campbell
13 fully subscribed to all of those statements, correct?
14 A Without being able to read the entire case again to
15 find out to what extent this was endorsed, I certainly
16 think that was the direction the court was going in.
17 Q Yes, and, indeed, the document will speak for itself.
18 I just wondered if you'd remembered that. You don't
19 have a clear memory, other than you think, yes, there
20 was endorsement, correct?
21 A There were some statements that appeared almost self
22 contradictory in Campbell --
23 Q I see.
24 A -- so that's my reservation.
25 Q All right. Then there's a footnote here of 31 which is
26 in respect of the -- in the quote from the judgment in
27 Beauregard, right?
0230
1 A That's right.
2 Q And that says, and these are your words, I take it:
3
4 "It is noteworthy that Chief Justice Dickson
5 fails to mention legislative supremacy in this
6 list of important constitutional values in the
7 United Kingdom. It would be difficult to
8 reconcile legislative supremacy with the position
9 that the courts ought to be separate in authority
10 from the other branches of government."
11
12 That's your critique, isn't it?
13 A That's right.
14 Q There is no written constitution in the United Kingdom,
15 is there?
16 A I'm hesitating because up until 1991 there was not;
17 however, some decisions of the House of Lords in the
18 1990s, I think, recognized the European Convention as
19 binding on the House of Lords, and that could be
20 considered now as part of a written constitution.
21 Q Well, if you are current on the matter, you will know
22 that that may occur this year, but it hasn't occurred
23 yet. So apart from the European constitution, there is
24 no written constitution --
25 A That's correct.
26 Q -- in the United Kingdom? So to say that the United
27 Kingdom is a Parliamentary democracy is pretty simple,
0231
1 isn't it?
2 A It is.
3 Q And it would be wrong to say it was a constitutional
4 democracy because there's no written constitution,
5 correct?
6 A As I say, since 1991 in some decisions of the House of
7 Lords, it's a gray area now. Before '91 it would be
8 absolutely clear.
9 Q Well, you mean when the Europeans said the British
10 could cane their students, and, therefore, the British
11 had to alter the domestic statute to prohibit it, is
12 that what you're thinking of?
13 A No, there -- I'm thinking about some decisions of the
14 European court --
15 Q All right. Well, I think I have your point.
16 A -- which the House of Lords said took precedence over
17 British statutes.
18 Q Right. That's hardly a written constitution, sir.
19 A It's a foot in the door.
20 Q Now, when you say "Chief Justice Dickson fails to
21 mention," is this a bit like your criticism of the
22 Klinck report where they failed to consider that the
23 legislation might constitutionally trump the Charter
24 when it comes to security of tenure?
25 A It is.
26 Q I see. You don't admit to the possibility that he
27 considered it and decided not to mention it as not
0232
1 being relevant to what he was saying?
2 A I just -- I don't know.
3 Q Of course not.
4 And then on page 189, you say in the first full
5 paragraph:
6
7 "The strategic effect of the Beauregard
8 decision was similar to that of Valente, in that
9 governmental action was defended, and no statute
10 was struck down."
11
12 That suggests to me that if the statute is struck down,
13 that's a problem for you, and if it isn't, it's not a
14 problem. Am I understanding this correctly?
15 A No, that isn't -- that isn't exactly what I was getting
16 at.
17 Q Well, what I sort of take from that, is that you have a
18 view that as judges are not elected, they are not
19 accountable, and they are not -- they have no
20 democratic legitimacy in striking down legislation. Am
21 I misunderstanding?
22 A That's certainly not my view.
23 Q Oh, okay, fine. Well, I'll come to it a little later.
24 I thought there was something there that suggested
25 that.
26 Halfway down this paragraph, you say, after
27 note 36:
0233
1
2 "Chief Justice Dickson moved far beyond the
3 narrow concept of institutional independence in
4 Valente."
5
6 Now, you're not saying that he was wrong to do that,
7 are you?
8 A I'm not saying that he was wrong, no.
9 Q The courts can do that?
10 A Certainly.
11 Q Okay. That as a political scientist, that's not a
12 problem for you?
13 A That the courts can do that?
14 Q Right.
15 A It's not a problem that the courts can do that, no.
16 Q Then you say:
17
18 "For the Chief Justice, the judiciary has a role
19 to play as protector of the constitution, and as
20 such, it must be 'completely separate in
21 authority and function' from the other two
22 branches of government in both the federal and
23 provincial domains."
24
25 And I do understand, at least I think I understand this
26 from you, that that's fine from a political scientist's
27 point of view?
0234
1 A Yes. My concern was that the courts might one day
2 declare that they have control over their own
3 budgets --
4 Q Ah.
5 A -- which isn't necessarily a solution to the problem of
6 judicial independence because it creates new problems.
7 Q Well, of course, it does, but change always presents
8 problems --
9 A That's right.
10 Q -- as well as opportunities.
11 A That's right.
12 Q And we're clear on this, are we not, that Campbell also
13 took the matter further?
14 A It certainly did.
15 Q Right. And, indeed, if you remember Campbell, much was
16 said by the Chief Justice about the unwritten
17 constitution.
18 A A great deal, yes.
19 Q And much was said about that as being a source of
20 judicial independence.
21 A That's true.
22 Q All right. And there were five other judges with them
23 on that?
24 A That's true.
25 Q There was one dissent on that?
26 A Yes.
27 Q And you've said, and I think you may have been
0235
1 prescient here, professor, and I'm quoting from the
2 second full paragraph:
3
4 "It is this broadening of the concept of the
5 collective independence of the judiciary in
6 obiter which may prove to be the most significant
7 aspect of the Beauregard decision in future
8 litigation."
9
10 And, indeed, would you say you were prescient as
11 represented by the decision of the court in Campbell?
12 A I was concerned more about the broadening of the
13 institutional aspects, but I suppose if you want to
14 give me that compliment, I'll accept it.
15 Q Right. And the institutional aspects were broadened in
16 Campbell, weren't they?
17 A I guess it depends on your definition of institutional
18 aspects. I had been thinking of them as referring to
19 matters like control over the budgets and staffing and
20 those kinds of administrative issues, but if you think
21 of a compensation commission as being institutional,
22 then you're correct.
23 Q I'm thinking of it in terms of three core
24 characteristics; security of tenure, financial security
25 and administrative independence, and two dimensions;
26 institutional, individual. That's what I'm thinking
27 of.
0236
1 A Yeah. No, in that sense, the institutional
2 independence wasn't broadened. That refers to what the
3 judges have control over in terms of court's
4 administration, and certainly it's -- the judges do not
5 have control over the judicial compensation
6 commissions. Their power is limited to saying that
7 they must exist, but it's the government that sets up
8 those commissions.
9 Q Well, again --
10 A So that isn't a broadening of institutional
11 independence.
12 Q Again, the devil's in the details. It's in the reasons
13 for judgment, which we can all read.
14 A That's right.
15 Q And at page 193, with respect to judicial impartiality
16 and independence, you say this, the first full
17 paragraph:
18
19 "A complete analysis of judicial impartiality
20 is beyond the scope of this paper. The point
21 which is being emphasized through this cursory
22 discussion of the relation between impartiality
23 and independence is that unless the connection
24 between these two concepts is clearly understood,
25 difficulties are likely to arise in determining
26 whether violations of judicial independence have
27 occurred."
0237
1
2 Have I read that correctly?
3 A You have.
4 Q And you would agree with me that Campbell expressly
5 addressed those issues?
6 A It did, yes.
7 Q And dealt with them?
8 A I wouldn't say it's the last word, but it certainly is
9 a contribution to the juris prudence.
10 Q And then on page 194, in the first full paragraph, you
11 say:
12
13 "The critical test for judicial independence
14 utilized in Valente and Beauregard is the
15 'reasonable person' test. The difficulty with
16 this test is that it could prove to be too
17 subjective to serve as a litmus test for judicial
18 independence. A more careful consideration of
19 the nature of impartiality and its connection
20 with independence may help to provide a clearer
21 guide as to whether judicial independence has
22 been violated than the 'reasonable person' test."
23
24 You know that Campbell expressly addressed that --
25 A I do, yes.
26 Q -- and took it further?
27 A Yes.
0238
1 Q And on page 195, you say this, and this relates to
2 Valente, at the top of the page:
3
4 "Mr. Justice Le Dain refers to these as three
5 'essential conditions' for judicial
6 independence. It is perhaps more useful to think
7 of these three factors as mechanisms developed by
8 our political system to protect judicial
9 independence, than as essential conditions."
10
11 Do you see that?
12 A I do.
13 Q What did the court in Campbell call them?
14 A Those three essential features?
15 Q Yes.
16 A Core aspects, I believe it was.
17 Q Core characteristics --
18 A Core characteristics.
19 Q -- is my memory.
20 A Hmm-umm.
21 Q Three core characteristics in two dimensions; one
22 individual, the other institutional?
23 A That's right.
24 Q So at page 197 when you address this matter again, at
25 the bottom of page, in the last paragraph, the second
26 sentence, after referring to essential conditions:
27
0239
1 "This recognition in itself tacitly supports the
2 position of this essay that the phrase,
3 'essential conditions,' too rigidly describes
4 the devices which have been invented to protect
5 and promote judicial independence."
6
7 Do you see that?
8 A Yes.
9 Q So where does the Campbell characterization fit in
10 there? Is that even more rigid?
11 A There are some parts of Campbell that I would say makes
12 it even more rigid, but, as I say, they're even in the
13 majority decision. There are some parts that seem to
14 contradict that.
15 Q Now, at page 198, you deal with the institutional role
16 of the courts, correct?
17 A That's correct.
18 Q And if you would turn to page 199, the second full
19 paragraph:
20
21 "The second difficulty with the institutional
22 argument is that it does not recognize that the
23 courts are necessarily part of government. They
24 constitute one of the three branches of
25 government -- the one responsible for the
26 adjudication of disputes arising out of law --
27 and in this sense they cannot be completely
0240
1 separate from the other two branches."
2
3 And this part here:
4
5 "What is important is that judges, in spite of
6 being part of government, ought to be in the most
7 advantageous position to be impartial as
8 circumstances will permit -- not that judges be
9 'completely separate' from the other two
10 branches."
11
12 Would you agree with me that Campbell also addressed
13 this?
14 A Yes, it did.
15 Q Thank you. Now, my point of going through this
16 analysis is that Campbell, it had a profound effect
17 upon the issues that you addressed in the doctrine of
18 judicial independence in 1988?
19 A Yes, it has.
20 Q Why don't you mention Campbell in your report to this
21 court, Exhibit 6?
22 A I wasn't requested to mention the jurisprudence.
23 That's really up to lawyers.
24 Q So --
25 A I was requested to analyze the -- whether the changes
26 that have been made to JP systems in various parts of
27 Canada are in the public interest.
0241
1 Q Ah, but let me --
2 A And more than that, Campbell clearly, from my
3 perspective, applies only to judges, whereas you can
4 read parts of Valente that apply to other judicial
5 officers. I didn't find the same in Campbell. I saw
6 that it was much more narrowly directed towards judges.
7 Q Well, sir, what am I to take from this answer? That
8 your remit was not to consider jurisprudence and,
9 therefore, you did not?
10 A My report did consider the changes in the light of
11 jurisprudence. It certainly -- none of my opinions
12 were designed to contradict any judicial decisions, but
13 from my perspective, the -- what is required in terms
14 of judicial independence for judicial officers who are
15 not judges has not changed as a result of Campbell.
16 Q Well, in order -- my question was this: Did I
17 understand your remit, which is what you were supposed
18 to do here, was not to take any jurisprudence into
19 account?
20 A It -- no, it was -- I was not requested to analyze the
21 jurisprudence, but I was requested to analyze whether
22 changes to JP systems were in the public interest in
23 the light of jurisprudence.
24 Q So you had to consider jurisprudence --
25 A Yes.
26 Q -- at least for that point of view?
27 A Yes.
0242
1 Q So you say you did consider Campbell in consideration
2 of the remit?
3 A Yes.
4 Q But you make no mention of it in your report?
5 A That's right, because I don't consider it relevant.
6 Q Well, in order -- none of it's relevant, in your view,
7 is that it?
8 A It's not relevant to the -- to the issues before the
9 court in this case.
10 Q Oh, indeed. I understand that really falls from your
11 definition of public interest, doesn't it?
12 A I wasn't looking at the judicial independence of
13 judges. I was looking at the judicial independence of
14 Justices of the Peace.
15 Q So you --
16 A That's not even referred to in the -- you won't find
17 the word "Justices of the Peace" in Campbell.
18 Q So that's how you said it had no relevance because it
19 didn't speak of Justices of the Peace?
20 A That's right.
21 Q Pretty simple, isn't it? No reference to Justice of
22 the Peace, it doesn't apply, is that it?
23 A Well, that wouldn't -- you know, I have read the
24 Campbell case a number of times, and it doesn't strike
25 me as being relevant to this particular case, except
26 possibly in terms of obiter and the broad discussion of
27 the meaning of judicial independence, but certainly
0243
1 with regard to judicial compensation commissions,
2 financial security, it was not relevant. This is a
3 case about security of tenure, not about financial
4 security.
5 Q Oh, really? Elimination of remuneration doesn't impede
6 or impair financial security?
7 A The -- my understanding is that the applicants have
8 been -- that regardless of the changes, their
9 remuneration will remain the same.
10 Q Oh, until age seventy?
11 A I'm not certain.
12 Q Oh, you don't know, do you? You're speculating, aren't
13 you?
14 A Speculating about whether it's sixty-five or seventy?
15 Q Speculating as to whether their remuneration was
16 eliminated or not.
17 A Whether it was eliminated, yeah.
18 Q Or would be under this --
19 A Okay. It was one type of remuneration was replaced by
20 another at the same rate.
21 Q Well, in any event, you say there's no relevance --
22 A Yeah, I know that's true that --
23 Q -- but you admit there's some relevance through the
24 obiter which you don't know much about?
25 A Yeah, there's no relevance in -- the holding applies
26 only to judges.
27 Q Okay. Would you look at page 14 of your report, which
0244
1 is Exhibit 6, please?
2 THE COURT: Did you wish to mark the Osgoode
3 Hall publication?
4 MR. HUNTER: Yes, My Lord, I'm sorry. Thank
5 you.
6 THE COURT: Exhibit 8.
7 EXHIBIT 8 - OSGOODE HALL LAW
8 JOURNAL
9 MR. HUNTER: I suppose before you put that down,
10 professor, you would agree with me that these matters
11 that we have spoken of at length are summarized quite
12 well at page 205 and 206?
13 A Just a moment, and I'll look at those pages.
14 Yeah, I think that pretty clearly summarizes the
15 article. The only thing that I wish I'd added is that
16 in Beauregard, Chief Justice Dickson clearly says that
17 the change to the judges' pensions is not a violation
18 of judicial independence because there's no attempt to
19 manipulate decision-making.
20 Q But -- and you do say this, sir, after referring to
21 calls from a number of sources, to implant the
22 principle of judicial independence more firmly in the
23 constitution that it now is through section 11(d) of
24 the Charter. You say it's questionable whether that
25 would serve any useful purpose, and then you say six
26 lines down, on page 206:
27
0245
1 "On the other hand, a firmer guarantee of
2 judicial independence in the constitution, if
3 interpreted unwisely by the courts, could do
4 considerable harm to the reputation of the courts
5 as constitutional philosophers."
6
7 Do you see that?
8 A I do.
9 Q And you don't suggest that Campbell is evidence of an
10 unwise interpretation, do you?
11 A I haven't made up my mind about that yet --
12 Q Ah, okay. Well, we'll wait --
13 A -- because, as I say, my expertise is -- and my
14 interest is more with the -- what I've called the
15 institutional aspects, and so --
16 Q Well, we'll wait, of course, for when you do, not here,
17 but at some point in time you probably will publish
18 something?
19 A I hope so.
20 Q Then you go on to say:
21
22 "Canadians might be advised to be cautious about
23 giving the courts too many openings to expand
24 their own empires through a case law definition
25 of a new constitutional reference to judicial
26 independence."
27
0246
1 And:
2
3 "Because judicial independence is such an
4 integral part of the liberal democratic
5 tradition, it would be fitting if the concept
6 continued to evolve more through the democratic
7 process than through judicial fiat."
8
9 Do you see that?
10 A I do.
11 Q And I had taken that comment obviously in error.
12 Earlier I put it to you that you would be concerned
13 about courts dragging down statutes because they're not
14 democratically accountable and do that through judicial
15 fiat, and you would have preferred that that would have
16 been done by legislatures. So I'm misunderstanding
17 you. What thought is --
18 A Well --
19 Q -- what is the idea you're conveying here?
20 A -- the idea here is that here we have an essential
21 feature of the constitution, judicial independence, and
22 in terms of deciding what judicial independence means,
23 my view has always been that it's the responsibility of
24 judges and elected legislators to think about how to
25 best protect judicial independence, and it shouldn't be
26 left up to just one branch of government, that is, the
27 judiciary. We're likely to come up with better
0247
1 solutions, more effective solutions, if more heads are
2 involved.
3 Q Well, in any event, sir, you would agree with me that
4 Campbell represents a case law definition?
5 A Oh, certainly.
6 Q And this is evolving through the courts, this whole
7 issue of judicial independence?
8 A Well, it's evolving through the courts, but if you look
9 at reforms to the JP system in Canada over the past few
10 decades where governments are trying to better protect
11 the independence of Justices of the Peace, I think you
12 see an example of where the legislative and executive
13 branches of government are also thinking seriously
14 about judicial independence and making reforms that
15 they think will better protect it.
16 Q Are they thinking about the supreme law of this
17 country?
18 A I would certainly hope so.
19 Q Well, so do I, and the question here, of course, is
20 whether they were respecting it --
21 A That's true.
22 Q -- and that's this challenge?
23 A That's true.
24 Q Now, going back then to page 14 of your report where
25 you define the public interest, and this is in November
26 of 1998, I guess. Is that the date? Yes, November the
27 30th. In the first full paragraph, the second
0248
1 sentence:
2
3 "I define 'the public interest' as a situation
4 that promotes or enhances the basic principles
5 and practices of democratic government,..."
6
7 And could I just pause there to say that would
8 represent the Justice of the Peace Act in 1991? That's
9 an illustration of democratic government doing its
10 work?
11 A Yes.
12 Q And I carry on:
13
14 "...and these include the rule of law, the
15 impartial application of the law, and adherence
16 to the principles of fundamental justice."
17
18 Do you see that?
19 A I do.
20 Q You make no reference to the Charter. Is that an
21 oversight?
22 A No. The Charter of Rights and Freedoms, I believe, is
23 something that expresses the basic principles of
24 democratic government, and in other works that I've
25 written, such as the book referred to in the footnote
26 at the end of that paragraph, I've explained that the
27 Charter of Rights certainly encompasses those basic
0249
1 principles --
2 Q Well --
3 A -- but the basic principles of democratic government
4 aren't simply in the Charter. They go far beyond the
5 Charter and the rest of the constitution.
6 Q Well, what about the Charter in terms of the
7 independence of the court? Is that not dealt with in
8 the Charter some way?
9 A Section 11(d) --
10 Q Correct.
11 A -- certainly refers to independence, but I think
12 judicial independence goes beyond the requirements of
13 11(d).
14 Q But shouldn't that Charter be part of the relevant
15 public interest, and why don't you say that in your
16 definition?
17 A I guess I feel it's so obvious for a report, a brief
18 report like this, it doesn't need to be said. In the
19 book that I referred to, I go into great detail.
20 Q But you intended the reader to understand that in that
21 definition of public interest, he or she should
22 recognize that you were including the Charter
23 section 11(d) --
24 A Yes.
25 Q -- correct? And section 52 of the Constitution Act of
26 1982 saying that the constitution was the supreme law
27 of Canada?
0250
1 A Yes.
2 Q So while it's not stated, it's implicit?
3 A It's implied, yes.
4 Q All right. Well, if that's so, how can you ignore an
5 analysis that deals with section 11(d), namely,
6 Campbell, in this report?
7 A I wasn't requested to do a legal jurisprudential
8 analysis for the purpose of this report. If I had
9 been, I would have gladly have done it.
10 Q Well, even -- well, just a minute. You're a political
11 scientist.
12 A I'm a political scientist. I'm not a lawyer.
13 Q How can you be blind to the most recent Supreme Court
14 decision dealing with section 11(d) which has to do
15 with judicial independence?
16 A I'm clearly not blind to that decision and to the other
17 leading decisions, but --
18 Q But you don't deal with it in your report, sir.
19 A No. Obviously, to write a report like that, I need
20 that kind of background, but it's my understanding in a
21 case like this, that you hire a political scientist to
22 deal with the policy and public administration issues,
23 and you hire lawyers to deal with the legal issues.
24 Q Well, I thought you were expressing some opinion as a
25 political scientist about legal independence. Am I
26 wrong?
27 A No, you're clearly right about that.
0251
1 Q And you failed to take into account the Campbell case
2 here, Charter section 11(d), correct?
3 A No, I've --
4 Q Did you just overlook it?
5 A I didn't overlook it, no. I --
6 Q I see.
7 A The only thing that I have going for me as a political
8 scientist is my reputation. If I had felt that the
9 actions in Alberta violated what was set down by the
10 Supreme Court of Canada in Campbell, I would have felt
11 obliged to say it.
12 Q Even though that wasn't part of your remit?
13 A Oh, absolutely.
14 Q So you did consider it?
15 A I probably wouldn't have accepted the assignment if
16 that had been the case.
17 Q Well, I don't know what the terms of engagement were,
18 but I think I'm coming to understand them.
19 So, really, when we come down to it, professor,
20 it's your opinion that legislative reform as reflected
21 in the Justice Statutes Amendment Act trumps the
22 constitutional guarantee of judicial independence to
23 the public in Alberta respecting the removal of the
24 applicants from office as reflected in section 5.1(1)
25 and section 5.2 of the Justices of the Peace Act,
26 correct?
27 A No, I don't agree with you.
0252
1 Q You do --
2 A I don't think that those -- the guarantees in those
3 statutes are -- let's put it this way. The -- if the
4 independence and impartiality of individual JPs was
5 tampered with in any way by government, then there
6 would be a constitutional protection against that, but
7 if there's a reorganization of the system, there's no
8 constitutional guarantee that prevents a reorganization
9 of the system, unless that reorganization is intended
10 to tamper with individual decision-making. I think
11 that this is made very clear in the Beauregard decision
12 by what Chief Justice Dickson said. What is at stake
13 when there's a reorganization is, is that intended to
14 affect decision-making? In this case, it was not, so
15 there's no violation of judicial independence. There's
16 no cost of constitutional guarantee that prevents that
17 reorganization, and within the limits of the written
18 constitution, we still have a system of legislative
19 supremacy where the legislature can correct past
20 mistakes or make improvements by supplanting previous
21 legislation with current legislation.
22 Q Now, sir, it would seem to follow that if the
23 legislature took it into its mind to abolish all of the
24 Provincial Court judges, they could do that?
25 A No, they could not.
26 Q If they took it in their mind to abolish half of them,
27 they could do that?
0253
1 A The administration of justice within the province, of
2 course, is under the jurisdiction of the province,
3 so --
4 Q Subject to the constitution?
5 A Subject to the constitution. So, yes, you -- I suppose
6 the province could replace the -- abolish the
7 Provincial Court and replace it with another court
8 called the Court of Alberta, for example, but the -- in
9 this case, I think, if you look at all the
10 jurisprudence, there would be a constitutional
11 guarantee to grandfather all the Provincial Court
12 judges --
13 Q Well, just a minute.
14 A -- otherwise, their independence would be interfered
15 with.
16 Q Just a minute.
17 A I don't think there's a similar guarantee with regard
18 to Justices of the Peace. I mean, there are thousands
19 and thousands of administrative tribunals across the
20 country and, surely, you're not -- or at least I would
21 not say that once those tribunals are set up, that
22 reforms can never be made.
23 Q Let's try to stick with the question here. You said
24 they couldn't abolish all the Provincial Court judges,
25 constitutionally?
26 A It would seem to me that they -- okay. I now disagree
27 with that statement. A clearer way of putting it is,
0254
1 as I put it subsequently, that they could replace the
2 Provincial Court with another court, but I would think
3 that they would certainly be required to grandfather
4 all of the current Provincial Court judges.
5 Q Why?
6 A Because the judges are officials, and by "judges" I
7 mean Provincial Court judges and superior court judges,
8 are officials whose responsibilities are so important,
9 their adjudicative responsibilities are so important,
10 that they can be guaranteed security of tenure until
11 retirement, and I think that's something that the
12 Campbell case makes clear, and this is why the Campbell
13 case doesn't extend beyond judges.
14 Q Well, you keep saying that, and that's your opinion.
15 A There is no evidence before the court about judicial
16 officers other than judges, and it's --
17 Q Now, let me just take you to the Campbell case for a
18 moment. You may have overlooked this in responding
19 about the ambit of the case. It's paragraph 100 and -
20 thank you - 160 of the book of authorities. Do you
21 have the book of authorities? I think you do. Tab 4?
22 A No.
23 Q No, just below your --
24 A Oh.
25 Q -- on your right hand of that book. That should be
26 tab 4?
27 A Oh, okay, hmm-umm.
0255
1 Q And that should be the Campbell case.
2 A Yes.
3 Q Turn to page 100, paragraph 160:
4
5 "The third question which arises from
6 Beauregard is the applicability of the
7 jurisprudence under s. 100 of the Constitution
8 Act, 1867, to the interpretation of s. 11(d) of
9 the Charter. Section 100, along with the rest of
10 the judicature provisions, guarantees the
11 independence of superior court judges. Section
12 11(d), by contrast, guarantees the independence
13 of a wide range of tribunals and courts,
14 including provincial courts..."
15
16 Now, how do you limit this judgment to judges?
17 A How do I --
18 Q Limit this case to judges?
19 A What they're doing is summarizing in this case what
20 Beauregard said.
21 Q With respect:
22
23 Section 11(d),..."
24
25 This is Chief Justice Lamer speaking:
26
27 "...by contrast,..."
0256
1
2 That's contrast to Beauregard,
3
4 "...guarantees the independence of a wide range
5 of tribunals and courts..."
6
7 You say that comes from Beauregard, professor?
8 A I'm just trying to find out what this is in contrast
9 to.
10 Q Contrast to what is said above relating to Beauregard.
11 A And I think it's in contrast to section 100.
12 Q Well, all right. That's how you read it --
13 A Hmm-umm.
14 Q -- professor. Is that what we're to understand?
15 A Yeah. Well, section 11(d) certainly, and all the
16 jurisprudence talks about the need for tribunals that
17 make decisions under 11(d) to be independent. It
18 doesn't -- it doesn't stop with judges. But on the
19 other hand --
20 Q Well, just a moment.
21 A -- they have said, if you -- if you look at Valente
22 very carefully, that the independence, the requirements
23 of independence of tribunals other than courts is
24 different, and you have to look at each individual case
25 and judge what's reasonable.
26 Q Professor, I'm looking at Campbell. I'm not looking at
27 Valente. I'm looking at page 100, and I'm looking at
0257
1 paragraph 160, and I see the word "tribunals." Do you
2 say that the Justice of the Peace is not a tribunal?
3 A No, I do not.
4 Q You don't say that, do you?
5 A No.
6 Q Thank you. And on the matter of inclusion and
7 exclusion, you don't reference the Klinck report
8 anywhere in your report, do you?
9 A No.
10 Q Now, that does deal with Justices of the Peace, doesn't
11 it?
12 A Yes.
13 Q You knew about it --
14 A Yes.
15 Q -- you'd read it, and you don't even mention it,
16 correct?
17 A That's correct.
18 Q Do you agree or disagree that any law that is
19 inconsistent with the provisions of the constitution
20 is, to the extent of the inconsistency, of no force or
21 effect?
22 A I agree.
23 Q Do you agree that the court is required to declare any
24 law that is so inconsistent and to the extent of such
25 inconsistency, to be of no force or effect?
26 A I agree with that, although at times the court has
27 given legislatures time to comply --
0258
1 Q Oh, quite so.
2 A -- so it remains in force for a certain period of time.
3 Q Yes, but they make the declaration and then suspend its
4 operation?
5 A Yes, that's right.
6 Q And two recent examples of that are the decision of the
7 Supreme Court of Canada in Schachter --
8 A Yes.
9 Q -- 1992 and the decision in 1998 of Vriend v. Alberta?
10 A Yes.
11 Q Just one final comment. You made a lot of reference to
12 Doob and the Doob document.
13 A Yes.
14 Q There was absolutely no involvement or interviews with
15 or consideration of Alberta Justices of the Peace, was
16 there?
17 A That's right.
18 MR. HUNTER: Thank you. That completes my
19 cross-examination.
20 THE COURT: Thank you, Mr. Hunter.
21 Mr. Maybank, any re-direct?
22 MR. MAYBANK: Yes, sir.
23 THE COURT: If you'll be lengthy, we can take
24 the break now or if you'll be brief, we'll finish.
25 MR. MAYBANK: I would think five to ten minutes,
26 sir.
27 THE COURT: Then why don't you carry on. We
0259
1 can release the witness.
2 MR. MAYBANK RE-EXAMINES THE WITNESS:
3 Q Professor Greene, do you have volume 1 of the list of
4 authorities of the applicants?
5 A Yes, I do.
6 Q Could I ask you to turn to tab 8, which is the decision
7 of Justice De Weerdt in Walton v. Hebb.
8 A Yes.
9 Q And particularly page 387. You heard my learned friend
10 read to you almost the entire paragraph that commences
11 at the bottom of page 387, with the exception of the
12 last sentence that appears at the top of page 308 -- or
13 388. To put those prior sentences into context, could
14 you read the last sentence of the paragraph?
15 A
16 "Matters which require detailed legal knowledge
17 or a consideration of competing legal principles
18 are generally best left to the professional
19 judiciary."
20
21 Q Do you agree or disagree with the last sentence?
22 A I strongly agree.
23 Q Why?
24 A Because making adjudicative decisions about complex
25 matters that might, for example, have constitutional
26 ramifications is extremely important, and if decisions
27 are made by persons who don't understand the important
0260
1 legal issues involved, not only could wrong decisions
2 be made, but there are many studies that show in the
3 lower echelons of the court system, it -- there are
4 many incentives for people not to appeal wrong
5 decisions, and so these wrong decisions will stick, and
6 the reputation of the entire system suffers, so I think
7 it's extremely important that where consideration of
8 competing legal principles are involved, that this is
9 best left to the professional judiciary.
10 Q Do you have a copy of Mr. Hawrelechko's affidavit with
11 you? I think it's in the large black binder that's to
12 your left. And could I refer you to the Klinck
13 report --
14 A Hmm-umm.
15 Q -- that's found at tab O, I believe.
16 Now, in reviewing the Klinck report in your
17 examination by my friend, Mr. Hunter, you stated that
18 there were certain problems identified and that some of
19 the recommendations were followed; is that correct?
20 A That's right.
21 Q And if I could ask you to turn to page 5 of the report,
22 and that has the last four items on the short term
23 recommendations made by the Klinck report?
24 A Yes.
25 Q The No. 4 reads:
26
27 "That Judicial Clerks cease to be appointed as
0261
1 Justices of the Peace, that their administrative
2 signing functions be clarified by legislative
3 amendment and that their judicial functions be
4 taken over by fee-for-services Justices."
5
6 Are you aware whether that recommendation was
7 implemented in the 1991 amendments?
8 A To the best of my knowledge, it was not.
9 Q And recommendation No. 5:
10
11 "That a mandatory roster system for
12 fee-for-service Justices be developed."
13
14 Are you aware of whether that was implemented in 1991?
15 A I'm not aware of whether that was implemented.
16 Q And on page 6, under the long term recommendations --
17 A Yes.
18 Q -- item No. 9 states:
19
20 "That a Justice of the Peace Review Council be
21 established to consider the appointment,
22 discipline, suspension and revocation of
23 appointments of Justices of the Peace."
24
25 Are you aware whether that recommendation was fully
26 implemented in 1991?
27 A It was only partly implemented. There is a Review
0262
1 Council set up with regard to discipline, but not with
2 regard to appointment.
3 Q If I could ask you to turn to page 13, it deals in a
4 little more detail with the appointment matter.
5 Under 4.1, it stated:
6
7 "Justices of the Peace are appointed by the
8 Lieutenant Governor in Council on the
9 recommendation of the Attorney General. Although
10 there are no legal problems associated with the
11 current appointment process, the Committee has
12 noted that a more rigorous process of selection
13 and the involvement of an independent committee,
14 such as the Judicial Committee appointed under
15 the Provincial Court Judges Act, in the
16 appointment process would be desirable."
17
18 Is it your understanding that that was implemented in
19 '91?
20 A No, it was not. That will not be implemented until the
21 reform is passed in 1998.
22 Q Now, if I can ask you to turn back to page 6.
23 Recommendation 11, again, one of the long term
24 recommendation states:
25
26 "That Hearing Officers become fulltime salaried
27 Justices of the Peace and that fee-for-service
0263
1 Justices be phased out in favour of part time
2 salaried Justices of the Peace."
3
4 Is it your understanding that fee-for-service justices
5 were phased out in favour of part-time salaried
6 Justices of the Peace in the 1991 amendments?
7 A No, they were not. This reform wasn't brought about
8 until the 1998 legislation.
9 Q And if I could ask you to turn to page 20 of the
10 report. In the discussion at the bottom of the page,
11 it's stated:
12
13 "As the caseload in Edmonton and Calgary is
14 sufficient to require the services of Justices of
15 the Peace on a full time basis, the Committee
16 recommends that the Hearing Officer system be
17 maintained in those cities. Due to the lower
18 case volume in Stony Plain and St. Albert, the
19 Committee recommends the replacement of Hearing
20 Officers in those centres by fee-for-service
21 Justices."
22
23 Are you aware of whether the hearing officers in
24 Stony Plain and St. Albert were replaced for
25 fee-for-service justices subsequent to this report?
26 A I believe that that is what happened, yes, sir.
27 Q And if I could ask you to turn to page 29,
0264
1 recommendation 11 that I believe you were directed to
2 earlier today was:
3
4 "That two categories of Justices of the Peace be
5 created, full time and part-time. Hearing
6 Officers would become full time Justices of the
7 Peace; fee-for-service Justices of the Peace
8 would be phased out and replaced with part-time
9 salaried Justices of the Peace."
10
11 And under "Discussion":
12
13 "Hearing Officers would become full time salaried
14 Justices of the Peace."
15
16 Are you aware of whether the hearing officers in
17 St. Albert and Stony Plain became full-time salaried
18 Justices of the Peace?
19 A I don't believe they did. I recall that there were
20 about, after these reforms, about a dozen hearing
21 officers, and through attrition, we've ended up just
22 with three today, but I can't recall what happened to
23 the ones in Prince Albert (sic) and Stony Plain.
24 Q Dr. Greene, were you able to find a section on
25 transition or grandfathering in the Klinck report
26 similar to the one that we saw in the Manitoba Law
27 Reform Commission Report?
0265
1 A I believe there was a section in Klinck on transition,
2 yes.
3 Q Would you see if you could find that, please?
4 THE COURT: Mr. Maybank --
5 MR. MAYBANK: Perhaps my question was a bit
6 vague, Dr. Greene.
7 THE COURT: -- if you know where it is, direct
8 him to it, and if the point is that it isn't there,
9 then help him along.
10 Q MR. MAYBANK: Yes. Dr. Greene, if you'll check
11 the index of the report, do you see a heading for
12 transitional provisions?
13 A No, I don't.
14 Q And to be more specific, was there provision for what
15 would happen to the hearing officers in Stony Plain and
16 St. Albert if it were to be replaced by fee-for-service
17 justices?
18 A I believe that they were to be --
19 MR. HUNTER: Was it in the report, is that the
20 question?
21 MR. MAYBANK: That's the question --
22 A Yes.
23 MR. MAYBANK: -- is it in the report?
24 MR. HUNTER: Surely we can tell him where it was
25 and ask him to confirm it.
26 Q MR. MAYBANK: Yes, and my point is I'm suggesting
27 that there was no provision for a transition.
0266
1 A Hmm-umm. I do remember that word one place in this
2 report, but it --
3 MR. HUNTER: You're not giving evidence, are
4 you?
5 Q MR. MAYBANK: No.
6 A I'm just trying to remember where there's a -- whether
7 there is a discussion of what would happen to the
8 hearing officers that would be replaced. I think that
9 is --
10 Q You're not aware that there is a discussion?
11 MR. HUNTER: If you're looking for phasing out,
12 it's on page 30.
13 A It's -- yeah, I'm just trying to keep separate in my
14 mind the -- what I read in Irving and Klinck and then
15 the current provisions. It's hard to keep them all
16 straight.
17 Q MR. MAYBANK: We have a lot of material before
18 you. Perhaps that question's unfair. I'll withdraw
19 that.
20 A If I could find my Klinck report where I've highlighted
21 all the important parts, I think it's in my suitcase
22 that's already at the airport.
23 MR. HUNTER: I wouldn't mind seeing that
24 document.
25 Q MR. MAYBANK: Now, Dr. Greene, I'd like to
26 provide you with a copy of section 11(d) of the
27 Charter.
0267
1 A Yes.
2 Q I know I have a copy at the back of my written argument
3 and provide you with a copy of that under tab A of the
4 written argument of the respondent.
5 You were asked by my learned friend about the
6 applicability of section 11(d) of the Charter to
7 various tribunals. Would you please read the wording
8 of section 11(d) of the Charter?
9 A Yes.
10
11 "Any person charged with an offence has the right
12 to be presumed innocent until proven guilty
13 according to law in a fair and public hearing by
14 an independent and impartial tribunal;..."
15
16 Q Is it your understanding that a person appearing before
17 a hearing officer or salaried nonsitting Justice of the
18 Peace in relation to an application for judicial
19 interim release, for instance, or bail, that they would
20 be having their guilt proven before that officer?
21 A Yes -- I'm sorry, interim release, did you say?
22 Q Yes, or a bail application --
23 A No, no.
24 Q -- are they having their guilt proven?
25 A No.
26 Q Yes. Would section 11(d) include your understanding
27 that section 11(d) would apply to that type of
0268
1 application?
2 THE COURT: Just one moment. Mr. Hunter?
3 MR. HUNTER: This is as a political scientist.
4 MR. MAYBANK: This is --
5 MR. HUNTER: You're not seeking legal opinions
6 here, and it might be a legal question.
7 MR. MAYBANK: Yes.
8 MR. HUNTER: If it is, are you seeking a legal
9 opinion or just a view of a passing political
10 scientist?
11 MR. MAYBANK: Well, I believe Mr. Hunter made the
12 representation that section 11(d) applied to his
13 clients and the applications before them. I wondered
14 what your understanding was.
15 THE COURT: Well, Dr. Greene, do you feel
16 competent to answer that question in respect of
17 section 11(d), from your perspective?
18 A With regard to interim release?
19 Q MR. MAYBANK: Yes.
20 A Yeah, there's no finding of guilt or innocence.
21 Q What about a search warrant? What about an application
22 by a police officer for a search warrant before a
23 nonsitting Justice of the Peace, is there any guilt
24 being proven in that application?
25 A No, not a question of guilt.
26 Q Is it your understanding that section 11(d) would apply
27 to that type of proceeding?
0269
1 A No, it wouldn't be section 11(d).
2 MR. MAYBANK: Thank you. Those are all my
3 questions.
4 THE COURT: Thank you, Dr. Greene. You're now
5 free to return to the sunny times of Toronto.
6 A Oh, thank you very much.
7 (WITNESS STANDS DOWN)
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9 EXCERPT OF PROCEEDINGS CONCLUDED
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0270
1 Certificate of Transcript
2 We, the undersigned, hereby certify that the foregoing
3 pages 1 to 270 are a true and faithful transcript of the
4 proceedings taken down by us in shorthand and transcribed
5 from our notes to the best of our skill and ability.
6 Dated at the City of Calgary, Province of Alberta, this
7 9th day of June, 1999.
8
9
10 _________________________________
D. Parent, CSR(A), RMR
11 Official Court Reporter
Pages 1 to 22 inclusive
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13 _________________________________
T. Miner, Mrs., CSR(A)
14 Official Court Reporter
Pages 23 to 95 inclusive
15
16 _________________________________
L. D. Stevenson, CSR(A)
17 Official Court Reporter
Pages 96 to 159 inclusive
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19 _________________________________
Lynne Maskey, Mrs.
20 Official Court Reporter
Pages 160 to 215 inclusive
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22 _________________________________
R. Ernst, CSR(A)
23 Official Court Reporter
Pages 216 to 270 inclusive
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27 CAT - 9th June, 1999