Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 7 7 T he New Brunswick government is moving ahead with legislation that will restrict the autonomy and authority of the chief justice of the Court of Queen's Bench. Amendments to The Judicature Act are currently receiving second reading in the legislative assembly. Under the proposed changes, expected to become law this spring, the chief justice must consult with and receive agreement from the affected judge and the minister of justice and public safety before reassigning a judge's place of resi- dence. In a release, Justice Minister Denis Landry said the law is "focused on good governance and improving the adminis- tration of justice in New Brunswick." However, a spokeswoman for the jus- tice department says the new legislation's goal is practical. "The purpose of the pro- posed amendment is to ensure appropri- ate communication takes place before a justice of the Court of Queen's Bench can be asked to relocate," Elaine Bell says. Neither justification sits well with many lawyers who are concerned about the direction and the message the amend- ments are sending. "A ministerial veto on moves could affect the judiciary's inde- pendence from the executive branch of government," says John Kleefeld, an asso- ciate professor of law at the University of Saskatchewan in Saskatoon. One significant concern with New Brunswick's proposed legislation is the issue of expertise. It is usually the chief justice and not the minister of justice who is best acquainted with caseloads, retire- ments, illnesses and other concerns of the court that factor in to relocating judges. Indeed, New Brunswick's Judicature Act stands apart from what is happening elsewhere in the country, notes Kleefeld. "It's perplexing because it goes against the trend across Canada, especially in Ontar- io, to increase the independence of court administration from the executive." The changes may also be unconstitu- tional, he notes. "The question is whether a tribunal may be reasonably perceived as independent, not whether it is in fact. Here, we're talking about institutional or administrative independence rather than adjudicative independence, though both are important constitutional imperatives." The Supreme Court of Canada con- sidered this question in Reference re Remuneration of Judges in 1997, where it held that the attorney general's power to "designate the place at which a judge shall have his residence" unconstitution ally infringed upon the administrative inde- pendence of the provincial court. — DONALEE MOULTON REGIONAL WRAP-UP AT L A N T I C \ 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 NB chief justice's power to move judges restricted RESEARCH FINDS LAWYERS CAN DO HARM IN SEXUAL ASSAULT CASES L awyers involved in sexual assault trials have ethical obligations to their cli- ents, the judicial system and the complainants. Often, that obligation is not met, says Dr. Elaine Craig, an associate professor at the Schulich School of Law in Halifax. "The research I have done indicates that while many lawyers do a good job, problematic practices such as the use of inadmissible prior sexual history evidence, reliance on stereotypes about sex and gender and unnecessarily aggressive cross-exam- inations of complainants remains a common problem," says Craig, who delivered the 26th Annual FB Wickwire Memorial Lecture at Dalhousie University. The issue is not moot, she adds. "Lawyers contribute to the harms experienced by some sexual assault complainants when they attempt to undermine or circumvent legal rules such as the rape shield provisions, or when they are disrespectful to sexual assault complainants, or when they, as Crowns, fail to object to questions that are rooted in rape mythology." There are four primary ethical duties for defence counsel involved in a sexual assault trial, and they are the same as in any other case. These comprise ensuring loyalty and resolute advocacy to clients; asking questions or pursuing a strategy only if there is a good-faith basis; avoiding discrimination; and taking care not to mislead the court. Crown attorneys have a duty to ensure a fair process for everyone involved. "In sexual assault trials, this would include a duty to prepare complainants and a duty to protect them from unfair, overly aggressive or discriminatory questions," notes Craig, author of the forthcoming book Sexual Assault Lawyering on Trial. In an article on the issue published in the Osgoode Hall Law Journal, Craig noted that, "[A]ll lawyers should agree that it is unethical to distort the truth-seeking pro- cess by invoking the baseless assumptions that women who did not fight back secretly wanted it, that women who fail to raise a hue and cry are lying, or that women become untrustworthy and indiscriminate in their sexual choices once they have lost their chastity." — DM

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