"Mere factual innocence is no reason not to carry out a death sentence properly reached." -- U.S. Supreme Court Justice Antonin Scalia -- Herrera v. Collins 506 US 390 1993
Injusticebusters.org Editorial: The quote from Justice Antonin Scalia above is about the most stupid thing ever said. Coming from a devout Catholic and the highest judge in the USA makes it that more stupid.
Philip Flynn (right) has been found not guilty of sexual assault and sexual exploitation of one of his former students. The former teacher broke down in tears as Justice Andy Mahar delivered his verdict in an Iqaluit courtroom.
In his decision, Justice Mahar said that while he found the complainant's testimony credible, he couldn't conclude, beyond a reasonable doubt, that the alleged incident was intentional or even occurred - though he did find the trip in question happened, contrary to Flynn's testimony.
"So in the end, that's my struggle. Can I find beyond beyond a reasonable doubt whether there was an intentional, sexual touching, on the basis of the complainant's testimony alone, about a two-second incident that occurred when he was half asleep?" Mahar said.
"While I am highly suspicious, while I find that Mr. Flynn's general lack of judgment in terms of his relationship with the complainant and the other boys in the community is causing me some concern, given that this is the only allegation in the 12-year relationship and it occurred over a very brief period of time, at a time where the complainant was hung over and half asleep, and it happened very briefly, [I have reasonable doubt and find the accused not guilty]."
CONSTITUTION ACT, 1982
11 d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunial;
OTTAWA - Judges will get 10.8% wage increases, plus indexing for three years, under recommendations accepted this week by the federal government.
Chief Justice Beverly McLachlin's annual salary would be $308,000, retroactive to April 1, under amendments to the Judges Act that Justice Minister Irwin Cotler is expected to table early in 2005.
Other justices of the Supreme Court of Canada would receive almost $286,000 annually.
Chief justices and associate chief justices of the Federal Court, the Tax Court of Canada, provincial appeal courts, superior and supreme courts and courts of Queen's Bench would receive $263,000.
Under recommendations made by the Judicial Compensation and Benefits Commission, northern senior judges would receive the same salaries as chief justices of the provincial superior court.
Supreme Court of Canada judges would also be permitted to retire after 10 years' service, regardless of their age.
Judges' raise offends realism -- StarPhoenix editorial, Jan 14, 2000
Saskatchewan's provincial court judges will be asking for a substantial pay hike this year, a demand that won't be welcomed by a cash-strapped government attempting to keep a lid on public-sector wage increases.
The three-person Provincial Court Commission will set the remuneration and benefits for the province's 47 provincial court judges for the period running from April 1, 2003 to March 31, 2006.
The commission, chaired by retired University of Saskatchewan professor Jack Vicq, is asking for submissions on the issue of judges' salaries and will hold public meetings in Saskatoon and Regina in October. It is scheduled to publish a final report with recommendations for the government by Dec. 31. The government is expected to announce how much the judges will be paid in January.
Gordon Kuski, a Regina lawyer representing the Saskatchewan Provincial Court Judges Association, declined comment when contacted Thursday. But sources say the judges once again will seek a significant boost in their base salary, which is now $143,000.
In 1999, their association demanded a $65,000 raise to achieve parity with federally appointed Court of Queen's Bench judges (a 57% increase).
Their argument was based on the concept of equal pay for work of equal value, or "a judge is a judge is a judge." The lawyer acting for the association at the time told the commission the disparity in pay between the two levels of judges was in conflict with the public interest.
The government argued the salaries shouldn't be measured against federal pay or the compensation paid in other provinces, but determined on what was appropriate for Saskatchewan.
The province urged the commission to consider Saskatchewan's ailing farm economy, the financial pressures facing the government and recent public-sector wage settlements.
In the end, the commission recommended a 27% wage increase, boosting the judges' salaries to $143,000 from $112,961.
The government reluctantly agreed to pay up. In 1998, the Supreme Court of Canada ruled provinces are obligated under the Constitution to set up independent bodies to review judges' salaries.
According to the provincial legislature, the judges must receive at least the national average, which is now $152,068, a provincial official said Thursday.
That means the judges will get at minimum a 6.3% wage hike, more than double the 3% salary increase most provincial employees have received this year. But they will likely want a much richer package.
Only provincial court judges in Newfoundland make less ($142,700) than those in Saskatchewan.
Judges in Alberta, Ontario, Yukon and the Northwest Territories make $170,000 or more. Queen's Bench and Appeal Court judges earn $210,200.
The chief justice of Saskatchewan, E.D. Bayda, is paid $230,400.
Larry Hubich, acting president of the Saskatchewan Federation of Labour (SFL), said he understands judges should be well compensated. However, he said the judges' association would be out of line if it again asks for salary parity with the Queen's Bench judges.
"If they are looking to almost double their salary within a period of under four years (from $112,961 to $210,200), that would seem to be exorbitant. I'd certainly be interested to hear what the chamber of commerce's take on it will be. They were apoplectic about an increase in the minimum wage of just 35 cents an hour."
University of Saskatchewan law Prof. Doug Schmeiser said the judges should not be considered civil servants. "In my view, they are another legitimate branch of government, like the legislative branch and the executive branch. To suggest that somehow the (wage) guidelines for civil servants apply to judges is wrong in principle."
In drawing up its recommendations, the commission should consider the compensation of prominent practising lawyers, the salaries of provincial court judges in other provinces and the salaries of superior court judges, said Schmeiser.
Saskatoon lawyer Ted Priel and Regina lawyer Brian Barrington-Foote are also on the commission along with Vicq. Priel is representing the judges' association while Barrington-Foote is the government appointee.
Add Alberta Justice James Foster of Court of Queen's Bench to the list of judges with no sense of judgment for his May 24, 2001 decision to force Dr. Schneeberger's ex-wife, whose daughter he had drugged and raped while married to her, to bring his two daughters to prison to visit him and to enable him to talk with them on the phone. Bad fathers should lose their rights to fathering privileges and bad judges should lose the privilege of sitting on the bench.
Why, you ask do we say Dr. Schneeberger was a bad father? HE RAPED THEIR SISTERS' SISTER! The Dr. Schneeberger case (another perversion horror story originating in Saskatchewan).
REGINA - Saskatchewan's chief justice has determined that one of his colleagues made a mistake when she locked the doors of a courtroom last year, and Justice Ed Bayda says it will not happen again.
Last January, appeal court judge Marjorie Gerwing ordered that the door to her courtroom be locked, and that no one should be allowed to hear what was going on inside.
Judge Gerwing was dealing with a routine request to appeal a minor legal dispute at the time. Normally, courts in the province are open to the public.
In a letter to CBC Radio, Chief Justice Bayda says it was wrong for Judge Gerwing to refuse entry to her court, but he points out that a speakerphone was being used in the case. At the time, he says, the court had no idea what practice judges should follow when a telephone is involved.
injusticebusters have this to say about appeal court judge Gerwing: This is not the first mistake Gerwing has made. We remember her trip to Saskatoon in May, 1994 to adjudicate Peter Klassen's right to appeal his conviction. The application was to waive the time limit so that Peter Klassen could present new evidence. The arguments were strong then and they are even stronger now. We think it is possible she did not even read the excellent submissions presented by Reg Parker. We base this on her court demeanor. She chatted amiably with the prosecutor before and after the hearing. They chatted about their summer plans, and more importantly to Gerwing, it would seem, her immediate plans for the week-end. Hearing this appeal seemed to be an annoying interruption to her hectic social schedule. We hold her in high contempt.
January 10, 2001: This is the page which must have got to Judge Paul Hrabinsky when he granted the interim publication ban on discovery materials to be released to the plaintiffs in the $10M lawsuit, QB 271 - 1994. In keeping with his personal style, he granted the order in secret, sometime between Christmas and New Years, awaiting the January 16 hearing when McKillop and Rossman, the lawyers representing Superintendent Dueck and his government co-defendents in the claim hope to get a permanent order shutting this story -- and us -- down. Hello?
Do they not realize that Fifth Estate told this story to millions across Canada Nov. 19, 2000 and on repeat showings on Newsworld? The sneakiness and stupidity of these people defies all reason. The main text on this page remains exactly as it has been for two years. Of course it is embarassing to these judges. That is the point. The story is already out there. The public has an interest.
The process, which was secret, gave legal secrecy to Dueck's lawyer: the actual order is not placed in the public file so the public has no way of discovering that such an order is even in place! The significance of Rossman's brief
QB No. 7 A.D. 1994, JCS : R v. John and Johanna Lucas.
The defendants were convicted of criminal defamation against Sgt. Brian Dueck February 13, 1995.
Attached to the guilty verdict was a note: "Not for publication or broadcast."
Sentencing was held over to April 12, 1995
Judgement No. 3 by Judge Hrabinsky was an 18 page diatribe against the Lucases and praising the virtues of Dueck, the cop who had manufactured the evidence in the Foster Parent case. A man's reputation is the most important thing he has, pontificated the judge as he went on to sentence John Lucas to two years less a day and Johanna Lucas to 22 months.
Judge Hrabinsky must have known he was being a bad boy -- or else he thought that Dueck was a child whose identity needed protection. He made the following special order which he called "Judgment No. 3" as part of the Lucas sentencing:
There shall be an order directing that the identity of any individuals alleged to have been involved in sexual misconduct and any information that could disclose the identity of such individuals, as well as anything which may be construed as defamatory material, shall not be published in any document or broadcast in any way.
inJusticebusters are puzzled by this. Is the judge rehearsing for his role in a police state where Dueck is in charge? (We would point out that four years later, Dueck has been promoted to Acting Superintendent). The sad fact is that the media respected this absurd order instead of exposing it. Apparently Judge Hrabinsky had been upset that John Lucas had called him a robed buffoon on a poster.
The Saskatchewan Appeal Court reduced the Lucas sentences, but showed themselves to be equally as thin-skinned and childish as Hrabinsky as they set about to tighten the rules of disclosure.
inJusticebusters is satisfied that the identity of Sgt. Brian Dueck, who was involved in extreme and perverse sexual misconduct in his investigation of the Ross children, is properly published at last! Star Phoenix June 19 feature
Albert Lavoie takes the prize for most erratic judge in the provincial court system. Sometimes he's in Regina, or somewhere else on the circuit. He was in Saskatoon to try T.S. who was tried as a young offender in 1994, in the first of the Martensville trials. Throughout the trial, Lavoie catered to the pre-adolescent boy witnesses who were lying through their teeth and clearly enjoying the attention. One of them testified that on one occasion, T.S. took him to the basement at gunpoint and made him suck on her breasts for twenty minutes.
Then they went upstairs and had lunch. On another occasion, according to this little perv-in-the making, T.S. took him at gunpoint and made him suck on her vagina for twenty minutes. Then they went upstairs and had lunch.
This same child claimed T.S.'s body was smooth while in fact it is roped with scars from many childhood surgeries. The judge at no time challenged the boy: instead he encouraged him and praised him for being so brave.
When Albert Lavoie announced his guilty verdict, he said he found the witness's testimony to be credible while he disbelieved T.S. who admitted she has occasionally experienced blackouts when she was suffering insulin shock from her diabetes. But he was not content to leave it at that! He said, in the same breath, that T.S. was probably a victim herself and that he found it odd that her father accompanied her to Court and sat with her every day of the lengthy trial!
This guilty verdict was overturned a year laterby the Saskatchewan Appeals Court, along with scathing comments on the judicial errors. Ever since this time, in an apparent effort to avoid more judicial error, Lavoie let guilty sex offenders walk and stopped listening to children, and then flipflopped back again.
The man does not seem to have any mind of his own and relies on what he thinks the public will approve to make his decisions.
injusticebusters assert that Judge Albert Lavoie knows nothing about the law and should be a janitor, not a judge.
Judge Lavoie's recent case was a junior hockey coach he sentenced to four months in jail for watching a seventeen year old hockey player masturbate. On another occasion, in Saskatoon in 1996, Lavoie acquitted a seventeen year old boy of sexual assault on an eleven year old girl he was babysitting, despite taped evidence the assault had taken place.
When Rob Klassen appeared before him on charges that he had defamed Sgt. Brian Dueck in 1995, Judge Lavoie suggested that injusticebusters Rick Klassen and Sheila Steele who faced the same charges in adult court must have coerced him to picket! (Charges did not stick on any of the three charged). The idea that a sixteen year old might independently picket about Sgt. Brian Dueck, particularly one whose parents had been arrested on charges Dueck had trumped-up, did not occur to Judge Lavoie.
In the fall of 1998, an injusticebuster was present in Lavoie's court in Saskatoon when a young woman appeared before him because she had failed to complete her community hours. Lavoie suggested that she could serve her hours on a leash which he would hold while he goes for his bicycle ride in the mornings.
Judge Lavoie's court is never boring. And there is no way of knowing whether he is serious or not when words fall out of his mouth. It would be like watching a Monty Python sketch, except his words have the power to seriously affect people's lives.
Judge R. G. Finley also wanders the circuit and might show up in your court. He is a drunk so you can count on getting lots of recesses when he presides. Finley also knows nothing about the law. His Court is occasionally entertaining but cannot be counted upon for the same entertainment value you will find in Lavoie's Court. Off the bench, he is more entertaining according to people he has partied with. Judge Finley will smoke pot and drink at night and the next morning convict and sentence drunks and potsmokers. He is a hypocrite.
Judge Finley presided at the preliminary hearing into the Foster Parent case. At the end of the hearing, Prosecutor Matthew Miazga told the Court that he had lost confidence in his child witnesses and that a stay of proceedings might be in order. Finlay told Miazga not to be so hasty, that he had heard enough and was ready to send the defendants to trial. Which he did. Now Miazga finds himself defending his actions in a ten million dollar lawsuit. He really should not have listened to Judge Finley!
See Judge Larry Kyle's judgment in the Walchuk case
Judge Wilfred Tucker did his time as a prosecutor before being sent to the bench in 1996. His M.O. as a prosecutor was to use tricks, to get convictions, and to deprive his defendants of full answer and defense. Judge Tucker does know the law and has used this knowledge to further his ambitions rather than to serve the cause of justice.
This judge was a prosecutor of John Lucas who was the second of five to be arrested for defaming Brian Dueck, then a sergeant and now a superintendent, and who was completely guilty of the allegations Lucas made. Because one of the signs Lucas carried ironically compared Dueck's actions in allowing Michael to rape his sisters to actually doing it himself (a fair comparison since aiders and abetters often receive the same sentence as actual perpetrators) there was an interpretive loophole through which the courts could convict him and Johanna Lucas. Lucas appealed all the way to the Supreme Court -- and lost. This unanimous decision is a dirty mark on the Supreme Court and has served as precedent for many more dirty marks on the entire justice system.
Tucker was called to the bench in the middle of the Lucas hearings. His dirty tricks as a prosecutor served him well -- it earned him a place among his peers in the Saskatchewan judiciary.
Judge Rosemary Weisgerber insisted that 17 year old Jonathan Poundmaker get a legal aid lawyer and overrode those in the courtroom who tried to speak up on Jonathan's behalf. She went so far as to make special arrangements with legal aid to contact him. Jonathan had been picked up on a Friday afternoon and held until Monday morning (causing him to miss school) and only then did he learn that he was charged with stealing a videotape valued at $20 from One-Stop Video. He was put on an undertaking with a severe curfew.
inJusticebusters helped him obtain disclosure, which included a tape from the store's security camera. The culprit was not Jonathan. Jonathan also learned that the tape had been returned to the store the following morning. He was clearly innocent and he wanted to defend himself, plead not guilty, present his evidence, have his name cleared and the curfew lifted. This incident took place in early spring and has not yet come to conclusion. In the meantime Jonathan did get charged with having broken the strict terms of his curfew by being out after nine o'clock. He now stands charged with the more serious crime of breach of an undertaking. (This means it will be much harder for him to obtain bail if he is ever picked up again on the whim of a police officer, as happened with the videotape.) If Judge Weisberger had butted out and listened to Jonathan Poundmaker, he would not be in this position.
The outcome of this case was that Jonathan Poundmaker was acquitted of the theft charge, pled guilty to breach of an undertaking (related to the original offense) and missed five days of school. He also got to spend the whole Easter weekend in the Saskatoon Police City cells, where young persons are NEVER supposed to be held. (spring-fall 1998). He dropped out of school and moved to North Battleford.
Meanwhile, Weisgerber shares with Marty Irwin the top Pimping for Lawyers award
Judge Betty Jane Hucaluk could have told the defendant that the new Drug and Substance Act gives provincial courts absolute jurisdiction over marijuana trafficking cases and accepted his plea. Instead she refused to accept Edmund Khayfets' plea until he talked to a lawyer, even though he said he wanted to represent himself. She repeatedly said she had absolute jurisdiction and seemed to relish the power associated with that term.
Khayfets -- punished by having his trial delayed for four months because a provincial court judge wouldn't talk to him until he got a lawyer! If he shows up for his trial in January representing himself, will they refuse to give him a trial? UPDATE: Khayfets went with a lawyer and took a plea bargain even though the Crown would have been hard-pressed to make its case. This is typical of Saskatchewan defence lawyers. This deal with the Crown assured convictions in the rest of the Flotilla cases.
Judge Ross Wimmer presided over the Martensville trial and Judge Marian Wedge judged the Foster Parent trial (preliminary hearing).
Appeal court justice Ellen Gunn worked for prosecutions before Quinney during the preparation of the manufactured case against the Klassens and Kvellos.
BATHURST, NB (CP) -- A New Brunswick judge who suggested people on the province's Acadian peninsula are dishonest will be investigated by the provincial judicial council.
In a courtroom last February, Judge Jocelyne Moreau-Berube said there were more dishonest people than honest ones on the Acadian peninsula.
She also wondered aloud whether she was surrounded by crooks in her neighborhood.
The comments angered groups such as the Acadian society and the provincial labour federation.
The judge apologized.
The judicial council has scheduled a hearing for next month. (posted Aug. 98)
Update: Judge loses job over anti-Acadian remark
MONCTON - A former New Brunswick judge is appealing her removal from the bench for making derogatory comments about Acadians.
At a sentencing hearing in a provincial court, Jocelyne Moreau-Berube said a poll in the Acadian peninsula would uncover more dishonest people than honest ones.
Moreau-Berube's lawyer says the New Brunswick Judicial Council erred in law when it disregarded a report from a three-member committee. The committee said she only deserved a reprimand.
SASKATOON (CP) - The Supreme Court of Canada should not be obliged to hear some cases, as a way of easing its growing workload and getting decisions out quicker, says the high court's chief justice.
"The fact is, a certain amount of our time is taken up with cases that are really not engaging our primary mandate at the Supreme Court of Canada," Beverley McLachlin said Sunday at the annual meeting of the Canadian Bar Association.
Last year there were 17 cases the Supreme Court was obligated to hear, plus the court heard 77 other cases which it felt raised issues of national importance.
Many of the "as of right cases" did not raise new issues and ended with the Supreme Court reiterating the provincial appeal court's ruling, McLachlin said.
"If I can speak frankly and personally, I feel that there should be no 'as of right' to tell you the truth," she said.
"The ones that are appropriate we would presumably be granting leave on anyway, and I would think that would be the best allocation of our resources."
In criminal cases, there is an automatic right of appeal when one judge in a provincial court of appeal dissents on a question of law. The Supreme Court must also hear "reference cases" which are referred by the federal government for its opinion on constitutional or other questions.
Changes to which cases the Supreme Court is obligated to hear would require an amendment to the Criminal Code. McLachlin said this would have to be done with the co-operation of the legal profession.
"Before anything would happen I would want to see a process initiated with the bar so that this could be discussed," she said.
McLachlin made the suggestions as a way of dealing with the growing workload of the high court.
Over the first six months of this year there has been an increase of 12.5% in the number of applications for hearings by the Supreme Court.
McLachlin highlighted the court's work to reduce the time spent dealing with the applications, noting the response time was down from 26 weeks to 19 weeks in the past year.
However the chief justice said the court's resources are finite and that by decreasing the time taken to deal with applications for leave to appeal, the court risks increasing the time it takes to issue judgments.
It currently takes the court on average about 7* months to return a written judgment after hearing oral arguments.
"We probably cannot decrease the time period for releasing judgments without increasing staff," she said.
"However increasing staff is not a simple matter . . . The court's physical resources, like its human resources, are stretched to capacity."
"We've put people in every nook and cranny and so on, but we're running out of nooks and crannies and sub-basements."
McLachlin took over as chief justice in January 2000 with the retirement of former chief justice Antonio Lamer.
The first woman to lead the court, McLachlin is known for decisions on equality and freedom-of-expression rights.
Her judicial career began with an appointment to the County Court of Vancouver in 1981. She was later appointed to the British Columbia Supreme Court and the Court of Appeal in B.C.
In 1998, she became chief justice of the Supreme Court of B.C. and less than a year later was appointed to the Supreme Court of Canada.
A small-town Alberta judge whose sharp criticism of Canadian native reserves made him a national figure and threatened his career on the bench has won a key ruling that will allow him to continue his role as judicial crusader. Judge John Reilly of the Alberta Provincial Court, who became nationally known after describing an Alberta reserve as a "banana republic," said he was "extremely happy" about the Alberta Court of Appeal decision, which says that the province's chief judge had no right to discipline him over a series of controversial rulings.
Family Court Judge Claire MacLellan, wife of Premier Russell MacLellan was a Cape Breton Children's Aid Society lawyer (working out of the Sydney office headed by Frank Sampson) before her judicial appointment.
MacLellan sat on the bench and ruled in favour of CAS' application to permanently apprehend Emma McCarthy in 1997. She also called former child protection worker Arlene MacIsaac into her office last winter in a nasty bit of judicial interference in a court proceeding.
During April, 1999, the Nova Scotia Judicial system was completely revamped and the Family Court was merged into the Supreme Court of Nova Scotia, with all Family Court judges "signed up". Part of this revamping included burying (shredding?) any family court documents which are more than two years old! The McCarthys already had copies of the audiotaped hearings,provided to them by fill-in staff while the regulars were at a conference in Halifax.
The McCarthys have in their hands all the documentation they need to show any reasonable judge that Emma's apprehension was illegal and that CAS has sought to cover the fact that Emma was sexually abused ONLY AFTER she came into its care. Repeated and regular sexual abuse by a 14 year old retarded boy occurred in the McInnis foster home, where Emma was placed from Nov. 21, 1997 through at least September 29, 1998. Mr. and Mrs. McCarthy became aware of this abuse and when they raised a complaint, they received a letter from CAS lawyers Khattar & Khattar restraining them from going anywhere near the McInnis property. When Emma was next moved, her whereabouts were concealed from the McCarthys! See full story.
The Judiciary, Cape Breton CAS and the Nova Scotia government are so bound together in this cover-up that inJusticebusters believes nothing fair can happen here without a full Judical Inquiry conducted by an honest judge outside Nova Scotia!
If you are merely a nurse, teacher, bureaucrat or some other working stiff in Saskatchewan, chances are that your paycheque barely will keep pace with inflation over the next three years.
You can argue all you want that Canadians doing the same work in other provinces are paid more, that your wages are lagging the national average for your occupation, that the wage gap means Saskatchewan won't be able to attract the best-qualified persons. It won't do you any good.
Your employer will point out that the going rate is what he or she is able to pay. If wages are higher elsewhere, you'll be reminded, all you have to do is get packing to avail yourself of the opportunity.
Besides, you'll be told, and rightly so, that cross-Canada wage comparisons are nearly meaningless unless the cost of living and other factors are taken into account. The wage you are paid reflects the value of your job in the Saskatchewan market, especially when it's paid for through tax dollars.
It's a lesson that everyone from nurses to teachers, from firefighters to police officers, from electrical workers to grader operators has learned over the years.
But in the rarefied world of judges - appointed from legal practice to the bench as much for their political leanings as their legal acumen - affordability and local conditions carry no weight.
Even though not one judge has quit in protest over having her wages established through direct negotiations with the government, the provinces are now constitutionally obliged to set up independent bodies to recommend judges' pay. Accordingly, a three-person body has recommended that Saskatchewan's judges, who make $112,961, should get a 27% pay hike to $143,000. While the government may decide the recommendation is out to lunch, it's still required to pay judges at least $140,963, the national average expected in April.
The judges, who received a 19.5% raise in June 1997, sought wage and benefit enhancements amounting to 61%. The commission felt a 27% hike was merited for judges because of their heavy workload and stress.
Of course, none of the rest of us in the regular world who put in long days, pay crippling taxes and learned to somehow deal with the cutbacks in recent years knows anything about heavy workloads or stress.
It's only in the real world - one that apparently doesn't include the judiciary - that such things as affordability and equity are considerations.