Military judge appointed to the Superior Court

[legalrec]

I can't believe this is the first time a military judge has transitioned into the Superior Court.  I think this is great news.  I heard he will be sitting in Milton (if anyone is interested).


Appointment of military judge to Superior Court a first

A 35-year-veteran of the Canadian military is among the latest round of judicial appointments in Ontario announced by the federal government.

The appointment of Col. Michael Gibson is believed to be the first time someone whose legal experience has been solely in the military justice system, has been named to a Superior Court-level position.

More than two decades ago, a lawyer who practised briefly in the private sector before a lengthy career as a military counsel and judge, was named to the Supreme Court in Prince Edward Island.

Gibson enrolled at the Royal Military College in 1980. He received a law degree from the University of Toronto and two masters degrees in England, while serving in the military. He was also legal counsel with the Judge Advocate General office, a deputy judge advocate and since 2013, has been serving as a military judge.

Gibson appeared a number of times before Parliamentary committees between 2011 and 2013 to explain proposed changes to the National Defence Act, including on one occasion, with then-defence minister Peter MacKay.

The military veteran told members of the standing committee on national defence in November 2011, that only individuals with military experience had the expertise to serve as military judges.

“The bottom line is that there are differences between the civilian justice system and the military justice system,” Gibson stated.

Gibson’s appointment is the second time in less than two months that MacKay has named someone with an unusual background to the bench in Ontario. Grant Huscroft, a constitutional law professor at Western University, was appointed directly to the Court of Appeal. Huscroft, who previously co-authored a text with Stephen Harper’s first chief of staff, is the first law professor in three decades to be named directly to the Court of Appeal.

A different legal background does not serve as a way to predict how someone will perform on the bench, suggests Adam Dodek, a professor at the University of Ottawa law school, who specializes in public law and legal ethics.

“There are examples of fabulous judges, both from amongst those who were superb litigators and from those who never stepped into a courtroom before they were appointed to the bench,” says Dodek, who believes that time spent as a military judge should be good preparation for the Superior Court.

“A lack of substantive experience in civil litigation should not be a concern at all. The Superior Court of Justice has some excellent judges who only practised criminal law prior to their appointment to the bench, for example,” Dodek states.

Gibson was one of four military judges, who presided over a total of about 60 court martial proceedings per year, according to documents filed in 2012 with a military judges compensation committee. His pay will rise from about $225,000 to just over $300,000 as a Superior Court judge.

Four other Ontario appointments were announced by MacKay on Feb. 6, including Kirk Munroe, to preside in Windsor. Munroe is the first criminal defence lawyer to be named to the Superior Court in Ontario, since MacKay was named justice minister in July 2013. There have been 10 former provincial or federal Crown attorneys appointed during that time.

About 83 per cent of new appointments to the bench in Ontario under MacKay’s tenure have been male lawyers.

A number of legal groups have criticized the lack of diversity in judicial appointments by the federal Conservatives and the naming of people with ties to the governing party.

In terms of allegations of patronage, that is nothing new, suggests Troy Riddell, a political science professor at the University of Guelph, who has conducted extensive research on judicial appointments in Canada.

“I am not sure there is any more [patronage] now,” than when the Liberals were in power federally, says Riddell. The one group traditionally excluded from federal judicial appointments has been NDP supporters, he observes.

“You are in trouble if you are not a part of the two big parties,” he states.

Whether the Conservatives have also looked more closely at the ideology of applicants, is an area that deserves more research, agrees Riddell. “That is a question worth asking.”

Source: http://www.lawtimesnews.com/201502164491/headline-news/appointment-of-military-judge-to-superior-court-a-first

 

[FJAG]

Mike will be a great asset for the Ontario Superior Court but unfortunately will be a loss for the military courts.

All the best in the new career.

:cheers:

 

[SeaKingTacco]

Can you explain how superior court fits into the full justice system?

 

[legalrec]

The Ontario Superior Court of Justice deals with Criminal, Family and Civil law matters.  While there is some appeal work done by the Divisional Court (a part of the Superior Court), the SCJ usually deals with matters at first instance. 

 

[dapaterson]

I can't believe this is the first time a military judge has transitioned into the Superior Court.  I think this is great news.  I heard he will be sitting in Milton (if anyone is interested).

Given that the existence of military judges in Canada is a relatively recent occurrence, and that there are about five on the bench at any one time, it's hardly a surprise that there have been no prior nominations to other benches.

 

[Tibbson]

The earliest reference I have found to actual military Judges here in Canada is 1954 although I'm sure they were there much before then. 

http://lawjournal.mcgill.ca/userfiles/other/8532089-pineau.pdf  and  http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1675&context=ohlj 

Hardly a relatively recent occurrence.

 

[FJAG]

Can you explain how superior court fits into the full justice system?

Small lecture:

The provinces administer justice within their territories (that means they run the courts and pay for them).

The Canadian Constitution Act 1867 provides for two types of courts within a province: 1) s92(14) courts are purely provincial courts with powers and judicial appointments created by the province itself and 2) s96 courts where the judges are appointed by the Federal government and the powers are considered "inherent" - these "inherent" powers are the ones which the British High Courts were exercising at the time of our confederation. Per Wikipedia: The "section 96 courts" are typically characterized as the "anchor" of the justice system around which the other courts must conform. As their jurisdiction is said to be "inherent", the courts have the authority to try all matters of law except where the jurisdiction has been taken away by another court." (an example of powers being taken away includes things like military law (courts martial), admiralty law (Federal Court) and now-a-days where powers of hearing or arbitration are given to specified administrative tribunals where the law prohibits appeals to court other than for judicial review)

Superior courts go under various names, for example: Manitoba Court of Queen's Bench, Superior Court of Ontario, Nova Scotia Supreme Court, etc. These are the courts where all the higher end trial work happens for criminal, civil, family or probate matters.

:cheers:

 

[dapaterson]

The earliest reference I have found to actual military Judges here in Canada is 1954 although I'm sure they were there much before then. 

http://lawjournal.mcgill.ca/userfiles/other/8532089-pineau.pdf  and  http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1675&context=ohlj 

Hardly a relatively recent occurrence.

Previously, judges were appointed on an ad hoc basis; a judge today, back to being a lawyer tomorrow.  As detailed in the second article you posted, we've only had about a generation of true military judges in Canada (since 1990); prior to that, their lack of security of tenure and the fact that they were subject to the same career actions as any other service members suggests a system that could be perceived to have lacked impartiality.

If we view judgeship as a profession, we've only had professional military judges since 1990.

 

[FJAG]

Previously, judges were appointed on an ad hoc basis; a judge today, back to being a lawyer tomorrow.  As detailed in the second article you posted, we've only had about a generation of true military judges in Canada (since 1990); prior to that, their lack of security of tenure and the fact that they were subject to the same career actions as any other service members suggests a system that could be perceived to have lacked impartiality.

If we view judgeship as a profession, we've only had professional military judges since 1990.

This comment is misleading and needs clarification.

The court martial system has been with us since confederation (and technically before that if you consider British military law). The "judges" in a court martial were serving officers who made up the panel and not lawyers. similarly in many cases the prosecutors and defending officers were not legally trained (more like assisting officers really). Judge Advocates General existed as far back as the Napoleonic Wars but provided legal advice to commanders and reviewed courts martial records to determine if the proceedings were legal and if they should be approved by the convening authorities. Canada's first "official" Judge Advocate General was appointed in 1911 but could not in any way be considered as a "trial" judge; just a supervisor of the military justice system.

In time it became necessary for there to be a legally trained "judge advocate" to be attached to each court martial to provide the President with legal advice. Unfortunately I do not have all my source material available so can't pinpoint the exact date but the 1950 version of the National Defence Act calls for this and also (I believe for the first time) established "Standing Courts Martial i.e. where there is a legal officer who acts as sole judge without a panel.

This system was confirmed as being a legally sound system by the Supreme Court of Canada in the case of R v McKay [1980] 2 SCR 370. Subsequent to the new Charter of Rights and Freedoms, the concept was again before the SCC in R v Genereux [1992] 1 SCR 259 and at this time the role of the judge advocate (because he rotated into the job for only a few years at the discretion of the JAG) was considered as not being sufficiently independent. The result was the legislative changes to the NDA in 1992 which created the Office of the Chief Military Judge (which is an L1 separate and apart from the JAG) and where all Military Judges are now posted.

The system post 1950 was not ad hoc but did evolve over time. For the most part, subsequent to 1950 there was always a small pool of senior legal officers (LCols, Cmdrs) who had previous, extensive experience as prosecutors or defending officers and who were given training on how to conduct courts martial and were designated as judge advocates and who would be appointed to specific trials by the JAG.

As to "perceived lack of impartiality" again note that this issue arose only in the post-Charter days. I would suggest it was more an issue of the law changing as to any shortcoming, perceived or otherwise, on the part of the officers who served as judge advocates.

:cheers:

 

[Lightguns]

Good for him, it is long past time the AJag get their due in our legal community. 

 

[quadrapiper]

As to "perceived lack of impartiality" again note that this issue arose only in the post-Charter days. I would suggest it was more an issue of the law changing as to any shortcoming, perceived or otherwise, on the part of the officers who served as judge advocates.

Was there a change in the perceived purpose or emphasis of the military justice system from one intended to meet Service needs (maintenance of discipline, adherence to regulations) in a predictable, just manner, to one with a greater focus on the charged member?

 

[FJAG]

Was there a change in the perceived purpose or emphasis of the military justice system from one intended to meet Service needs (maintenance of discipline, adherence to regulations) in a predictable, just manner, to one with a greater focus on the charged member?

None of the above.

The Charter of Rights was introduced in 1982 and s 11(d) contained the provision that a person charged with an offence ". . . be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

Immediately thereafter, numerous challenges were made to courts across the country and eventually one arising from the Ontario Provincial Court (Valente v R [1985] 2 SCR 673) reached the Supreme Court where it was held that in order for a judge to be consider independent and impartial he had to have  1) security of tenure, 2) financial security, and 3) institutional independence in administrative matters relevant to the functioning of the judge. In other words the judge should not be subject to arbitrary dismissal, arbitrary interference respecting his salary and free from outside interference as to which judge hears which case. (I'm greatly simplifying the legal arguments here)

Genereux was tried by a Disciplinary Court Martial and brought a challenge as to whether or not the judge advocate sitting on the case met the three Valente tests. The court held that he did not. The subsequent NDA amendments made the judges and their staff a seperate unit/L1 group (Office of the Chief Military Judge) independent of the JAG and the chain of command; required that the judges of the OCMJ be legal officers appointed until their retirement age of 60 and only subject to removal through an inquiry similar to that for civilian judges; established a pay grade determined by an independent body that sets their salaries; and placed the process of assigning a judge to a particular case under the authority of a Court Martial Administrator who works under the general supervision of the Chief Military Judge. The relevant NDA sections are 165.18 to 165.33.

In summary I think that there was no other motivating factor in making the changes other than to ensure that the legal officers who were appointed as judges fell fully within the requirements set out by the three Valente tests.

:cheers:

 

[Cloud Cover]

This is refreshing, but I'm worried for him. I am waiting for the first appeal from one of this judges rulings in a criminal case. "Harper has militarized the court system" etc. 

Personally and professionally speaking, I prefer judges that have well rounded and long practice careers, with 15-20 years of exemplary service prior to appointment.No political affiliations. A quiet community of sensible professionals that will slowly and methodically correct the twisted, conniving, dysfunctional system we are working under.

It really bothers me how much the legal trade has lowered the bar in so many mays. Law schools have become seeding grounds for Charter activists, law school professors in their 20's who never practiced a day, met a client, won or lost a case, filed a motion or even written a factum, affidavit or for that matter, probably couldn't even represent themselves in a small claims court.

We have an articling system that has imploded, truncated to the point of worthlessness ( I am constantly dealing with 2 and 3 year calls who are so inept I have to keep on agreeing to give them more time to rewrite their materials- and these are "lawyers" who are representing parties adverse in interest to my own clients.)  Yesterday I watched a plumber representing himself in family court and he was better prepared, more articulate and ready to go than the 400 dollar an hour head of a family law group he was up against. And more worryingly, he knew the law and the family law rules including case law better than his opponent. But, he lost his motion as soon as his 40 something ex wife started sobbing, and the motions judge clearly just wanted to get through his long docket. That poor guy is screwed, which angers me because he has a damned good case.

Judges who fall asleep at the bench, para legals living sandwich to sandwich showing up in court with tattered suits and worn out running shoes. Arrogant court clerks, snippy counter staff, high administrative costs, cozy unwritten business arrangements between firms and mediators, all of these things come to a head in the court process somewhere. Nobody is being taken to task for any of it.

A Law Society that is an extortion racket, with more committee's than the feminists, LGBT, racial equity,  and language police can fill. Bar associations that are even more radicalized.

And now we take a judge from a well organized, coherent, semi-efficient military justice system and put him into the thick of it. Hopefully he will be able to call in air strikes when needed.  Good luck sir!

 

[FJAG]

This is refreshing, but I'm worried for him. I am waiting for the first appeal from one of this judges rulings in a criminal case. "Harper has militarized the court system" etc. 

Personally and professionally speaking, I prefer judges that have well rounded and long practice careers, with 15-20 years of exemplary service prior to appointment.No political affiliations. A quiet community of sensible professionals that will slowly and methodically correct the twisted, conniving, dysfunctional system we are working under.

It really bothers me how much the legal trade has lowered the bar in so many mays. Law schools have become seeding grounds for Charter activists, law school professors in their 20's who never practiced a day, met a client, won or lost a case, filed a motion or even written a factum, affidavit or for that matter, probably couldn't even represent themselves in a small claims court.

We have an articling system that has imploded, truncated to the point of worthlessness ( I am constantly dealing with 2 and 3 year calls who are so inept I have to keep on agreeing to give them more time to rewrite their materials- and these are "lawyers" who are representing parties adverse in interest to my own clients.)  Yesterday I watched a plumber representing himself in family court and he was better prepared, more articulate and ready to go than the 400 dollar an hour head of a family law group he was up against. And more worryingly, he knew the law and the family law rules including case law better than his opponent. But, he lost his motion as soon as his 40 something ex wife started sobbing, and the motions judge clearly just wanted to get through his long docket. That poor guy is screwed, which angers me because he has a damned good case.

Judges who fall asleep at the bench, para legals living sandwich to sandwich showing up in court with tattered suits and worn out running shoes. Arrogant court clerks, snippy counter staff, high administrative costs, cozy unwritten business arrangements between firms and mediators, all of these things come to a head in the court process somewhere. Nobody is being taken to task for any of it.

A Law Society that is an extortion racket, with more committee's than the feminists, LGBT, racial equity,  and language police can fill. Bar associations that are even more radicalized.

And now we take a judge from a well organized, coherent, semi-efficient military justice system and put him into the thick of it. Hopefully he will be able to call in air strikes when needed.  Good luck sir!

I don't take exception to the examples of your first five paragraphs. I've seen all of that in my own career, but I do want to emphasize that in my view those occurrences are the exception rather than the rule. In my mind, for the most part, the majority of the practitioners in the system, from judges to staff to lawyers to the articling students are capable, decent, and generally well meaning folks. Unfortunately its all too often that the bad examples give us a bad taste of the entire system.

I do disagree with the proposition that Law Societies are an "extortion racket". Nothing could be further from the truth. Every Law Society is structured with the primary objective of protection of the public and their programs, committees etc are designed to fulfil that purpose. Bar associations on the other hand are designed and employed as advocacy groups for the lawyers--they are, by definition, the political arm of the lawyers they represent. Remember that in all provinces membership in, and thereby supervision by, a law society is mandatory while in most (but not all provinces) membership in a bar association is voluntary and many members choose not to join. The fact that one finds a disproportionate number of special interest advocates within the law society bencher community is entirely due to who volunteers to run for office. More often then not, the stable, mature, moderate practitioners choose not to run which leaves a larger pool of people with an axe to grind. This however is not unlike any system where people are elected to office--first you need to persuade good people to run.

I'm also not sure I entirely agree with your characterization of the military system as "well organized, coherent, semi-efficient" by which I presume you mean in comparison to the civilian system. While I generally am a defender of the CM system in these various threads, I also know where the warts are. Most military courts involve minor offences which would be handled expeditiously by civilian courts. Unfortunately where minor civilian cases take a few weeks or months to resolve CMs are bound up in a bureaucratic process that takes over a year and involves far too many players in it. The number of full-time and part-time people involved in judging, prosecuting and defending the 50 to 80 cases (not to mention the court support staff that the unit has to dedicate to a CM) far exceeds the number of offenders that get put through the system each year. IMHO, the CM system (including its pre-preferral stage) needs some serious pruning and streamlining to make the process and its costs proportionate to the seriousness of the offences it normally handles.

:cheers:

 

[dapaterson]

I'd argue the point that the Law Society exists to protect the public.  Like other such professional organizations, that may have been the original intent, but it has morphed into a mutual protection racket, where criminal offences are not reported, and where corrupt individuals are given the benefit of the doubt again and again.  The Toronto Star has an excellent piece at http://projects.thestar.com/broken-trust/ describing how lawyers time and again robbed trust accounts, with fewer than 1 in 5 facing criminal sanction.  As they so eloquently put it, "...the Law Society of Upper Canada does not, as a rule, report suspected criminal acts by its members to police, no matter how much money lawyers steal."

So as not to pick only on lawyers, how about doctors - also a self-regulating profession.  A doctor kills a patient by incompetently performing a bit of plastic surgery? Well, that's no reason to strip her license.  http://www.cpso.on.ca/public-register/doctor-details.aspx?view=4&id=%2067947

I am no great fan of professional self-regulation; it too easily devolves into self-protection.

 

[FJAG]

I'd argue the point that the Law Society exists to protect the public.  Like other such professional organizations, that may have been the original intent, but it has morphed into a mutual protection racket, where criminal offences are not reported, and where corrupt individuals are given the benefit of the doubt again and again.  The Toronto Star has an excellent piece at http://projects.thestar.com/broken-trust/ describing how lawyers time and again robbed trust accounts, with fewer than 1 in 5 facing criminal sanction.  As they so eloquently put it, "...the Law Society of Upper Canada does not, as a rule, report suspected criminal acts by its members to police, no matter how much money lawyers steal."

So as not to pick only on lawyers, how about doctors - also a self-regulating profession.  A doctor kills a patient by incompetently performing a bit of plastic surgery? Well, that's no reason to strip her license.  http://www.cpso.on.ca/public-register/doctor-details.aspx?view=4&id=%2067947

I am no great fan of professional self-regulation; it too easily devolves into self-protection.

Don't ever confuse professional sanctions such as restricting or removing a licence with criminal prosecutions. The Law Society deals with the professional practice complaints brought to it by clients or found in trust account audits.  The client who has been stolen from is absolutely free to (and many do) report the theft to the police for investigation and prosecution. The Law Society where I came from always briefed the complaining client that they had that course open to them over and above the professional standards complaint.

One final point: every law society runs an insurance program (paid for by the lawyers) whereby clients who suffer loss from a lawyer's negligence can make a claim. Moreover every law society runs a separate reimbursement program (again paid for by the lawyers - the name varies from province to province) whereby the clients who suffer loss from a lawyer who has stolen from them in the course of their practice as a lawyer can make a claim.

Name me one other profession that protects and repays the public from both the negligence of and the theft by their members.

That also demonstrates the biggest reason why the law societies want to discipline their members. The fact is that the members in general are responsible for paying for the negligence and dishonesty of their members. In a good province with a good claims history these fees and premiums run around $4,000 per year with greater. (I think, but don't know for sure, that the basic amount in Ontario this year is closer to $6,000 for each of their 44,000 members.)

By the way, since when do you take the Toronto Star as the authority on a subject? The poor quality of their reporting on the legal profession is second only to that on the military.

:cheers:

 

[dapaterson]

Don't ever confuse professional sanctions such as restricting or removing a licence with criminal prosecutions. The Law Society deals with the professional practice complaints brought to it by clients or found in trust account audits.  The client who has been stolen from is absolutely free to (and many do) report the theft to the police for investigation and prosecution. The Law Society where I came from always briefed the complaining client that they had that course open to them over and above the professional standards complaint.

So an officer of the court has no obligation to report a theft by another officer of the court?  Then again, with the Ontario bar currently prosecuting one of its members for being too vigorous in defending his client, I guess I am expecting too much...

One final point: every law society runs an insurance program (paid for by the lawyers) whereby clients who suffer loss from a lawyer's negligence can make a claim. Moreover every law society runs a separate reimbursement program (again paid for by the lawyers - the name varies from province to province) whereby the clients who suffer loss from a lawyer who has stolen from them in the course of their practice as a lawyer can make a claim.

Name me one other profession that protects and repays the public from both the negligence of and the theft by their members.

That also demonstrates the biggest reason why the law societies want to discipline their members. The fact is that the members in general are responsible for paying for the negligence and dishonesty of their members. In a good province with a good claims history these fees and premiums run around $4,000 per year with greater. (I think, but don't know for sure, that the basic amount in Ontario this year is closer to $6,000 for each of their 44,000 members.)

Perhaps if they reported the crooks in their midst to the police there would be a greater deterrent effect - and lowered fees and premiums.  And the Ontario bar will only reimburse $150K per person; with real estate prices in Toronto where they are, that's a pittance should a lawyer choose to dip into his trust account.

 

[Tibbson]

So an officer of the court has no obligation to report a theft by another officer of the court?  Then again, with the Ontario bar currently prosecuting one of its members for being too vigorous in defending his client, I guess I am expecting too much...

Perhaps if they reported the crooks in their midst to the police there would be a greater deterrent effect - and lowered fees and premiums.  And the Ontario bar will only reimburse $150K per person; with real estate prices in Toronto where they are, that's a pittance should a lawyer choose to dip into his trust account.

I once had an occasion to investigate a lawyer and the law actually seems to set the bar higher for such investigations given the fact that in the course of an investigation the police will most likely be in contact with confidential legal files that are protected under solicitor/client privilege.  It's like trying to investigate a reporter or a newspaper office.

In the case of the investigation I was involved with we were actually required to turn over the information we had to the provincial Law Society who has the authorities and mandate to govern the legal profession within the province.  That is not to say that the police can't do anything but it depends upon the nature of the investigation and if it involves the lawyer as an individual or acting within the scope of his/her profession. 

 

[dapaterson]

Yes - I recall a recent arrest of an allegedly drug-smuggling lawyer.  As with many other arrests, the individual was arrested at their place of work.  The Ontario Bar is outraged that a lawyer in robes was handcuffed and arrested in public. Because, in their view, lawyers are different and privileged.

Equal under the law does not, apparently, include lawyers.

 

[Tibbson]

I wouldn't say that was the case in the example you provided since the lawyer was obviously arrested and charged.  I don't view the law societies protests in that case as anything different then what a union may protest if one of their members was arrested.  Or perhaps a more pertinent example would be the protests from the Base Commander if the local civilian police came on to a base to take a service member out without liaising with the MPs or Base HQ first.