Canadian Lawyer

10 J U N E 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m \ 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 T he Federation of Law Societies of Canada is consid- ering a new rule that would prohibit retired judges from appearing before or communicating with any court or tribunal in Canada. A final decision on the proposed rule is expected in December. The model rule, should it be accepted, will not be binding but merely "a model" for law societies across the country. Despite the uncertainty, the debate over former judges appearing before the courts continues unabated. Among the main protagonists is University of Calgary law profes- sor Alice Woolley. Woolley is a vigilant and stern critic of Canada's judiciary. Last year, she and three other academics complained to the Canadian Judicial Council about what they saw as the "sex- ist and disrespectful treatment" of a complainant in a sexual assault trial by a Calgary judge, Robin Camp. Earlier this year, the CJC recommended Camp (who prior to the complaint had been elevated to the Federal Court) be dismissed. Camp avoided dismissal by resigning. Woolley observed at the time that it "was the right thing to do." Now Professor Woolley has turned her attention to Charles Huband, who for 28 years sat on the Manitoba Court of Appeal. He retired in 2007 and almost immediately joined the Winnipeg firm of Taylor McCaffrey LLP. After a "cooling-off " period, he began to litigate cases in front of all level of courts in Manitoba including the Court of Appeal. Last year, he appeared (unsuccessfully) before the Supreme Court (Green v. Law Society of Manitoba). To be clear, Huband has done nothing wrong and is playing well within the existing rules in Manitoba regarding retired justices. However, Woolley has pilloried his appearances before the Supreme Court and the Manitoba Court of Appeal. "It isn't personal," she says, "but it is a blazing gap in our rules, it's an embarrassment to the justice system." She says Huband's "involvement with the litigation process is inappropriate." Huband has heard the criticism before and rejects it. He says preventing former members of the judiciary from prac- tising law after retirement is "not a good idea. I think we are being overly cautious." Huband argues judges are independent and "they are not going to be influenced by who you are, or what your past connections have been." He argues that the public can, and does, trust the integrity of judges. "I'm sur- prised they're making a big deal out of this," says Huband. "I simply see no problem." Former Supreme Court Justice Jack Major now practises in Calgary as "a consultant" with Bennett Jones LLP. He sees nothing wrong with retired judges returning to practice "but ideally not to appear as counsel before any court." He thinks former judges should be able to take part in things such as arbitration, mediations and consultations, as he does at Ben- nett Jones, but he concludes that "it is a reasonable restraint that they not appear as counsel." Interestingly, Major also thinks that a former judge acting as counsel may not necessar- ily bring an insider advantage to their client. "In fact," he says, "the judge hearing the case would likely want to show com- plete neutrality and in doing so may . . . actually disadvantage [the former judge's] client." Huband is not the only judge to return to litigation, but he may be among the most prominent. At 85, he has no definite plans to retire. "I don't have a huge caseload," he says, but he is seeking leave to appeal a matter to the Supreme Court one last time. "If I get leave," he says, "I'm sure going to stick around to argue that case." — GEOFF ELLWAND Retired Manitoba justice criticized for practising law P R A I R I E S The defence should always make efforts "to keep the show moving along," says John Sheard, a Toronto-based lawyer who represents Albinowski. At the same time, if there is only one scheduling option offered or else a pro- ceeding is delayed for several months, it should not necessarily be attributed to the defence, says Sheard. "You can't just tick a box and say the rest of the delay is defence delay," he states. Leroy notes in his ruling that all of the parties were ready to proceed, but two of the defence counsel could not change their schedules to have the case tried ear- lier in 2016 when court time "opened up ad hoc exceptionally" for reasons unre- lated to any of the lawyers in the case. "Defence counsel are bound to the solicitor client paradigm. They do not have the option of compromising one client's interests for another," wrote Leroy. Donald Johnson, a Cornwall defence lawyer who represents the other accused in the Albinowski case, says that delay issues will continue in the region without addi- tional resources. "With more judges and more courtrooms, we can work some- thing out," he says. The Public Prosecution Service of Canada was given 30 days to decide whether to file an appeal of the ruling by Leroy, says spokeswoman Nathalie Houle. She also points to a specific section of Jordan where the Supreme Court stated that if the court and Crown are ready to proceed and the defence is not, then delay from that unavailability will be attributed to the defence. — SHANNON KARI Ontario decision helps define 'defence-caused delay' post-Jordan Continued from page 9

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