NEWSLETTER - September 2012 - The Lord Reading Law Society

NEWSLETTER – September 2012

Mara Greenstone, President
Allen Mendelsohn and Larry Markowitz, Editor(s)

President’s Message

Mara Greenstone

Dear Colleagues and Honourable Judges,

I hope that you have enjoyed the summer and that you are looking forward to participating in what promises to be an exciting and stimulating season at the Lord Reading Law Society. I very much look forward to continuing the success of my predecessor, Robin Schiller, and seek to continue the growth and popularity of the Society that occurred under her leadership.

Our annual Alan B. Gold Advocacy Lecture will be held on Tuesday September 11, 2012. On this occasion, we have the privilege of welcoming the Honourable François Rolland, Chief Justice of the Superior Court of Quebec, who will address us on the topic of “Judging in a Diverse Society”. We have submitted our request for CLE accreditation and we anticipate that we will receive confirmation shortly. You can download the dinner invitation here, or we encourage you to reserve and pay online here.

On the occasion of our second lecture, which will take place on Thursday October 18, 2012, we are thrilled to welcome Lord Alexander Rufus-Isaacs who is the great-grandson of Lord Reading, for what will certainly be an enriching evening. More information about the event will follow, but please mark the date in your calendars. We are also working on other exciting events for this year and will keep you informed as soon as the details are confirmed.

On another note, you should have received your invoice for annual membership in the Lord Reading Law Society. I encourage you to pay your membership dues as we count on them to help contribute to the health of the Society, and to support the continuing program of outstanding speakers the Society has established. You can download the membership form here, and we are pleased to announce you can now pay your membership online here.

I look forward to seeing all of you on September 11th.

Sincerely,

Mara Greenstone

President

What You Don’t Know about The Court of Appeal and Where it is Going

Larry Markowitz

On a warm June evening, the Lord Reading Law Society closed out its 2011-2012 season with an address by the Chief Justice of Quebec, the Honourable Nicole Duval Hesler, before a packed house that included some of the city’s top judges, lawyers and bar association officials, along with a former premier of Quebec.

Mr. Justice Allan Hilton introduced our guest speaker, pointing out that she faces a variety of challenges in moving the Court of Appeal forward, including the imminent retirement of several judges, the possible nomination of other members of her team to the Supreme Court of Canada and a heavy caseload, combined with the entering into force of a new Code of Civil Procedure.

Madam Justice Duval Hesler then took to the podium and shared with us her thoughts on a myriad of topics – beginning with a refresher course on the role of the Court of Appeal, accompanied by some practical advice to the litigators in the audience, and moving on to the “intimate details” of how judges arrive at a decision. She observed that it is becoming more and more challenging for judges to arrive at decisions, as society becomes more diverse and fact patterns become more globalized. She concluded her dynamic presentation by lamenting the lack of English translations of Quebec Court of Appeal judgments (thus diminishing their influence in the other provinces) and the lack of diversity in the composition of the Court (including a lack of Jewish judges).

The Role of the Court of Appeal
The appellate court exists to reverse judgments of the lower court only where it can be shown that there was a manifest error of law at first instance. Encouragingly, our speaker noted, such manifest errors are becoming rarer. The appeals court does not exist to rehear the facts of the case. By its mere existence, the Court of Appeal inherently ensures a sort of “quality control” on the lower courts, as judges at that level know their decisions risk being overturned.

Sometimes an appellant is disappointed when their appeal fails, but they should remember that, while our system guarantees them an “independent neutral competent judge who pays attention”, it by no means guarantees them success in court!

Some Practical Advice for the Litigators
Madam Justice Duval Hesler advised the litigators in the audience to avoid invoking the lower court judge’s lack of impartiality when pleading an appeal. Just because your client did not agree with the judge’s conclusion does not mean the judge wasn’t being neutral!

Madam Justice Duval Hesler advised the litigators in the audience to view a Court of Appeal hearing as a dialogue. Expect to be interrupted. Also, don’t expect to be able to predict the outcome of the case based on your exchanges with the judges. Be ready to discuss each issue separately, and on an equal standing, without regard to the level of importance of that issue in the Court’s final analysis.

Intimate Details – Behind the Scenes at the Court of Appeal
When a case is heard at the appeals court, the question of whether to assign three judges or five judges to the panel is determined in part by the potential effect the Court’s decision will have on future cases, as well as the importance of that decision to society at large. For instance, a (hypothetical) case relating to the reform of the Senate would more than likely be heard by a five-judge panel.

Once a case has been heard, draft decisions are circulated among the judges on the panel. Madam Justice Duval Hesler maintained that the judges are not influenced by their colleagues in arriving at their decisions.

With the enlargement of the role of the Courts that followed the 1982 adoption of the Canadian Charter of Rights and Freedoms, the courts have had to deliberate over important societal principles in cases such as the “Kirpan Decision” and the “Lola Case”. This challenge will only grow, as all sorts of novel issues arise in Quebec’s increasingly diverse society.

Challenges for the Future
The Quebec Court of Appeal is currently comprised of some 20 regular and four supernumerary judges. The supernumerary judges spend less time on the bench, but their presence provides the Court with a sense of continuity and the benefit of their years of experience. With the impending retirement of several senior judges (and the potential nomination of others to the Supreme Court), the Court has adopted an approach of “recruiting specialists to make generalists”. Thus, for example, if the Chief Justice were to feel that the Court needed a constitutional law specialist to deal with the many Charter cases before the Court, she would make such a request to those overseeing the nomination process.

She wants an improvement in the translation of the Court’s decisions into English. Ideally, all decisions would be translated and the English version released at the same time as the French version. At present, this is not the case and only hearings pleaded in English are sure to result in an English version of the decision. If translation into English were to become systematic, the Quebec Court of Appeal’s decisions would be more likely to influence decisions in the other provinces, as jurists in those jurisdictions would be more likely to read them. As our guest speaker pointed out, at the end of the day, all laws in Canada, other than those relating to civil matters, are national in scope, so it’s “a shame” that Quebec decisions are not known and do not have the level of influence that they should. In addition, while the Canadian judicial system is admired around the world, Quebec jurisprudence is under-represented in the internationally-known body of Canadian law, as a result of its being drafted mainly in French, rather than in the more universally-understood English language.

To the delight of the Lord Reading crowd, she also pointed out that there is a dearth of Jewish judges on the Court of Appeal and that this situation ought to be remedied.

With that comment, Madam Justice Duval Hesler concluded her captivating speech. She was thanked by her friend and colleague – and Lord Reading board member – Madam Justice Carole Cohen and the Society adjourned for the summer.