Canadian Lawyer

8 A p r I L 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m t he impact of political contribu- tions apparently made by a New- foundland and Labrador Supreme Court justice created a media furor, but the legal community believes the outcry is unwarranted. The controversy started when CBC News ran an item questioning more than $1,000 in political contributions Justice Robert Stack made to the Progressive Conservative party between 2005 and 2009. The news item coincided with Stack's appointment as chairman of the Newfoundland and Labrador Electoral Districts Boundaries Commission. As chairman, Stack will lead a multi-party team charged with eliminating eight seats from the House of Assembly and redraw- ing the province's electoral map. According to the CBC, which cited a local political science professor, there were concerns the political contributions could call into question Stack's impartial- ity as he oversees the rewriting of electoral boundaries in the province. The issue, Memorial University associate professor Kelly Blidook told reporters, is one of the perception of impartiality. The concern reflects a misunderstand- ing of how law firms operate, says Tom O'Reilly, a partner with Cox & Palmer in St. John's, Stack's former firm. "The issue did not involve a political contribution being made by a judge," he notes. "In his case, relatively small political contribu- tions were made by the firm in which he was a partner and a portion of that con- tribution was allocated to him, as it was to the other members of the firm, for which he was issued a tax receipt. This, I suggest, is neither unusual nor inappropriate." There appears to be widespread agreement, including from the Liberal Party's chief financial officer. Law firms, as professional partnerships, routinely divide firm contributions evenly among partners, unlike corporations, which would make a contribution in the com- pany name. In many cases, the contribu- tion may not be a direct contribution but reflect the purchase of tickets for a fundraising event. "This practice is, in my opinion, innocuous and should not raise any perception of impropriety or bias in the mind of any right-thinking person should a member of a contrib- uting law firm subsequently receive a judicial appointment," says O'Reilly. "On the contrary, it would seem to me to be most unreasonable that the making of a political contribution by a member of the bar should give rise to his or her disqualification for a subsequent judicial appointment." O'Reilly also stresses this situation is not the same as a contribution made by a sitting judge, a more significant and ser- ious issue. "Such activity might well give rise to a reasonable perception of bias and a concern that there might be a lack of objectivity on the part of judges in cases which might reasonably be expected to come before them," he says. "There should be seen to be a very bright line between government, which is the product of poli- tics, and the judiciary." — donalee Moulton donalee@quantumcommunications.ca \ At L A N t I C \ C E N t r A L \ p r A I r I E s \ W E s t rEgIoNAL WrAp-up At L A N t I C Judge's political contributions not about impartiality issuinG Ministerial direCtiVe 'diffiCult' N ova Scotia Justice Minister Lena Metlege Diab ended 2014 on an unprecedented note: she issued the province's first ministerial directive. The directive, intended to clarify the use of Rehtaeh Parsons' name under an existing publication ban, said that no breach of the ban identifying Parsons as the victim in a high-profile child pornogra- phy case by media or any other forum would be prosecuted unless her name is used in a derogatory way. The decision to issue the province's first ministerial directive was "difficult," Diab told Canadian Lawyer in an interview. "I was trying to balance the legal aspects with the human element." The intent of the publica- tion ban, she noted, was not to hinder public discourse. Unfortunately, concern about the ban was leading members of the public to conclude they could not discuss the issue at all without fear of legal reprisal. Diab initially turned to the media to dispel concerns and explain the ban, its purpose and its limitations. "But more," she said, "needed to be done." In deciding whether to issue a directive, Diab read the relevant legislation, listened to what the parents of the victim as well as academics and school principals had been saying on the matter. Weighing the pros and cons took longer than desired, in large part because there was no process, procedure, or expert to turn to within government. "Part of my thinking was how do I do what I need to do, where do I go for guidance," said Diab. Ultimately, she noted, the directive had to withstand legal scrutiny and effectively quell the public confu- sion. "It has to make sense from a legal perspective. It will be looked at. There are public safety issues. There are justice issues." Diab credits her legal experience —— more than 20 years practising law —— and her role as a parent with helping her balance the judicial and societal interests. "It took somebody with my background to see how you marry the two," she said. And she said the marriage was successful. "At the end of the [day], everybody seemed to be very pleased. Even legal experts gave their blessing." — dM

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