Rumpole and the Nose Puller

As CBC’s David Cochrane reported this evening Don Singleton had not one but three run-ins with the law for impaired driving in the 1980s over the course of three years. The first two never amounted to anything - one dismissed, the other dropped - but on the third one, Singleton blew one and a half times the legal limit and lost his license for six months. He also received a fine of $700. [corrected from two and a half times the limit in original]

The erstwhile provincial court judge took his name out of contention after inquiries turned up the impaired driving conviction.

Singleton claims he forgot about the conviction when he applied to be a judge last fall.

The court records for the three charges are available online, courtesy of cbc.ca/nl. Cochrane’s debrief can also be found there in ram audio file format.

The records turned up on Friday following an inquiry by a local reporter for records of any convictions against Singleton. The first search turned up nothing, apparently due to data entry errors - different birth date and address - in the database.

The inquiry prompted Chief Judge Reg Reid to search further. That second search turned up the conviction and two earlier charges. Interviewed by CBC’s Deanne Fleet, Reid said that, although he was the presiding judge in the 1990 conviction, there was nothing that made Singleton stand out at the time such that he remembered him.

Thus far, public comment is focusing on the need for a background check on all applicants for judicial appointments.

That ignores the fairly obvious question of why justice minister Tom Marshall plucked Singleton from a list of upwards of 30 applicants. Junior at the bar – barely past the minimum requirement for time in practice – Singleton didn’t seem to fit the same pattern as some of the appointees over the past decade.

Marshall also said he asked Reid to change the judicial committee's policy on background checks.

"I've asked him to review their policies and procedures and to implement a mandatory police search and provincial court search for every applicant," Marshall said.

While he’s at it, the justice minister should also change the policy for background checks on appointments to quasi-judicial panels as well. Singleton was appointed to the labour relations board in 2005 around the time of his conviction on the tax and import charges.

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Rumpole and …

Things overheard in the clerks’ room at Number 3 Iniquity Court:

1.  and The Old Boys Net, Redux.  Seems there was an omission from the biography that went with the notice that Karl Inder had taken silk.  The newly minted Queen’s Counsel (to be sworn next week) “began his professional career in St. John's where he practiced for five years before returning to his hometown of Grand Falls-Windsor in 1989.”  No mention though of what firm, which would be odd given that it was the Premier’s.

How many of the Premier’s friends, relatives and acquaintances have been appointed counsel to Her Majesty, learned in the law, since October 2003? The number must be getting embarrassing even if it does include, among others, most of the partners at his old chambers, his brother and the current minister of finance.

2. and the Embarrassment of Riches.  Mark Pike was doubly blessed in October 2008, being named Queen’s Counsel and then a few weeks later appointed as the the next in line to be chief provincial court judge.

He was sworn to the bench last week but, as word goes, the silks aren’t to be handed out until next week.

Whatever to do?  It would hardly be appropriate for a judge to take an oath to counsel Her Majesty as one learned in the law when Her Majesty has already removed one from the fray.  As a judge one is to decide cases, not argue them.

Ah, if only they’d handled the ceremonies in the same order as the news releases.

3.  and the First Time Ever.  The Queen’s Counsel appointments had a first time event in the history of the local legal community, namely the first time a husband and wife took silk at the same time.  Mark Pike is married to Pamela Goulding.

4.  and the Judge’s Elbow.  Or is it the judge’s ear?  Don’t be surprised if every time someone appears on a criminal matter before Assistant Chief Provincial Court Judge Mark Pike (one and the same as Pike QC) that defense counsel doesn’t raise the uncomfortable point that the prosecutor’s boss is the judge’s spouse.

Pamela Goulding QC is the Director of Public Prosecutions for the province.

Seems it’s the first time ever for that little problem to occur as well. Lesser issues have been raised and some not quite so interesting have gone to the Supreme Court of Canada no doubt.  Someone  - not a QC surely - might be bloody minded enough to push this one quite far.

5.  and the Blind Tasting.   Some rumblings of discontent this week with news that Don Singleton has been appointed to the provincial court bench.  The new Judge Singleton had a run-in with the law in 2005, in that he pleaded guilty to charges of evading taxes on tobacco and alcohol purchased from the Italian air force duty free shop in Goose Bay.

He received an absolute discharge.

Judge Singleton had only been at the bar – the legal one – for a decade prior to his appointment. He was a fisherman and went to law school under the TAGs program. At the time of the tax problem, he was handling federal government legal work in Labrador;  he very quickly lost the contract to prosecute drug and assorted regulatory offences.

Judge Singleton’s wife, it should be noted, sits on the executive of the Provincial Conservative Party.  Unreported publicly thus far, though, is the fact that this is not Judge Singleton’s first appointment since 2003.  In 2005, he was appointed as an alternate employer representative on the labour relations board.

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Rumpole and the Phantom Judges

Don Singleton never sat as a Provincial Court judge, not even for a single day.

But he has an e-mail address and an entry in the provincial government’s electronic telephone directory.

 

Absolutely astonishing, isn’t it?

James Igloliorte, the retired judge who sat on the Blame Canada commission almost a decade ago has an e-mail address and a telephone number.

Ring the number and you will get a telephone at the Child and Youth Advocate’s Office.

But wait:  it gets better.

David Peddle, a justice of the supreme court since December 2008, still has an entry on the provincial government’s directory giving an e-mail, telephone and facsimile address. 

His number gets you to his replacement, Mike Madden.

And if that all wasn’t bad enough, there are even a couple of judges listed in the directory who passed away within the past decade.  Your humble e-scribbler has screen caps of the entries for posterity but since there problem here is with the people maintaining the directory, there’s no need to reveal the names of the deceased individuals.

Given that the department responsible for the telephone directory just overhauled the whole site, it seems odd they didn’t manage to delete names of people who are retired or dead or both.

But what’s more, given all the controversy that surrounded Don Singleton’s appointment, plus the fact he resigned the appointment before he ever got to the job, how did the guy ever get a government e-mail address and a listing in the directory in the first place?

Not surprising of course.  After all, if you can expropriate a mill by mistake…

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Rumpole and the Minister’s Choice

For the record, here is the section of the Provincial Court Act, 1991 under which cabinet appointed Don Singleton to be a Provincial Court Judge.

Remember:  the Judicial Council didn’t make the appointment.  Tom Marshall – justice minister and attorney general – picked Don singleton from a list of applicants some of whom were highly recommended and others of whom, including Singleton were “recommended”.

Appointment of judges

5. (1) The Lieutenant-Governor in Council, on the recommendation of the minister, may appoint persons to be judges of the court.

(2) No person shall be appointed as a judge unless he or she

(a) has been a member in good standing of the bar of one or more of the provinces of Canada for a total of at least 10 years; and

(b) is at the time of the appointment a practising member in good standing of the Law Society of Newfoundland.

(3) No person may be recommended by the minister under subsection (1) without the recommendation of the judicial council under paragraph 18(a).

For comparison, here is the section from the old act, circa 1974 and amended in 1978 and 1988,  on appointment of judges:

Appointment of Provincial Court judges

6. (1) The Lieutenant-Governor in Council, upon the recommendation of the minister in consultation with the judicial council, may appoint, by Commission under the Great Seal, those persons that the Lieutenant-Governor in Council considers appropriate and necessary, to be judges of the Provincial Court of Newfoundland.

(2) A person appointed as a Provincial Court judge shall be a member in good standing of the Law Society of Newfoundland.

(3) A Provincial Court judge shall be paid, out of the Consolidated Revenue Fund of the province, a salary fixed by the Lieutenant-Governor in Council by regulations made under section 25.

(4) The terms of the appointment of Provincial Court judges shall be judicially noted.

(5) Where a new Provincial Court district is made under section 14 or where a Provincial Court judge dies, resigns or is removed from office leaving a Provincial Court district without an appointed Provincial Court judge, the Lieutenant-Governor in Council may appoint a new Provincial Court judge to that Provincial Court district.

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Rumpole and the Doddering Old Man

Don Singleton won’t be sitting on the provincial court any time soon.

He withdrew his application, declined the nomination -  whatever is the right word – after information turned up that not only did Singleton have a conviction for impaired driving on his record, he’d neglected to tell the panel that reviews applications for the judge jobs.

Driving while intoxicated is a criminal offence in Canada.

Turns out Provincial Court Chief Judge Reg Reid did a bit of checking and turned up the conviction.

Marshall has a the better part of a box of extra large farm fresh on his face for picking any old name off the list without considering the applicants any more deeply than that. 

Singleton may have passed the basic review of his application, but if the committee reviewing the applicants didn’t rank them – as one suspects they didn’t – the justice minister wound up making a major blunder.

That’s an important point to keep in mind as the spin machine busily tries to lay the blame for this one on the committee and on Reg. Certainly that’s the tone of the interview Tom Marshall did with CBC’s David Cochrane last night and the way Cochrane’s debrief is running as your humble e-scribbler writes this.

The fault here is with the minister responsible who could have seen – on the face of it – that a guy with a mere 10 years at the bar might not be your first pick for a plum job.

Reid – known to most as Reg, not “Milton” as CBC has been calling him – likely took it upon himself to double check Singleton’s background after the most unlikely of names wound up being named as a judge. After all, the existing bench is chock full of senior former barristers, including a bunch of former Crown prosecutors. A guy with a decade under his belt would hardly get a look in without some sort of extra juice, like say a partisan connection.

If you didn’t know this about the current benchers,  the crap about no sitting judges with criminal convictions might make it seem like it’s been a fluke thus far the system worked.  But the system has worked because everyone involved, including the justice minister, looked carefully at the applicants.

In this case, they evidently didn’t.

Well, at least Tom didn’t.

But in any event, good on Reg.

The Doddering Old Man turned out to be not so old and not so doddering after all.  Reg preserved the integrity of his bench.

Maybe They Who Must be Obeyed will take learn a lesson from this and take some advice from now on. They don’t know everything.

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Rumpole and the Minister’s Choice (Part Two)

Why exactly did Tom Marshall, justice minister, attorney general and experienced lawyer, select Don Singleton to be a provincial court judge?

Bear in mind he did so without knowing any of the information on drunk driving charges and the conviction in 1990.  With that issue to one side, Marshall did pick a fellow who met the bare minimum time at bar as laid out in the Provincial Court Act, 1991.  The release announcing the appointment is noticeable for its brevity and for the generality of the comments offered about the appointee.

For the sake of comparison here is a list of Provincial Court Judges appointed since 1998 showing the year of appointment and the date in which the appointee was called to the bar. The list was compiled from news releases  available on the provincial government website. [text continues after figure]

Judge	Year Appointed	Year called to bar	Years in practice at appt
Gloria Harding	1998	1979	19
Wayne Gorman	2000	1983	17
William English	2000	1976	24
Patrick Kennedy	2001	Not given	27
Colin Flynn	2001	Not given	18
Harold Porter	2001	1986*	15
Catherine Allen-Westby	2002	1986	16
Timothy Chalker	2002	1971	31
Lynn  Spracklin	2002	1970	32
Bruce Short	2003	1992	11
Michael Monaghan	2006	1970	36
John Joy	2006	1978	28
Jacqueline Jenkins	2008	1990	18
Donald Singleton	2008	1997	11

On the face of it, Singleton would have been one of the most junior in terms of years in practice appointed in the last decade. 

Of the two with less than 15 years practice, Short was appointed to Goose Bay.  A check of the releases will note a consistent issue with finding judges for Goose Bay.  There appears to have been a fairly consistent turn-over and a problem in finding judges to sit there.  While Singleton practices in Goose Bay, he was appointed to fill a seat in Grand Falls-Windsor.

Placentia – if memory does not fail your humble e-scribbler – has been without a Provincial Court Judge for a least couple of years.

The other shortie is Harold Porter, currently in Grand Bank.  Porter is trilingual and has argued cases successfully in the Supreme Court of Canada in both official languages. That may well have had some influence on the decision to appoint him given the need to have at least a couple of bilingual judges in the province.

The remaining appointments all involved people with at least 16 years at bar, but typically closer to or over 20 years.

There are three with more than 30 years service.

The short ones really stand out, don’t they?

Starred Update:  * An e-mail received on Tuesday proved some accurate information for this post. Judge Porter was called to the Bar of Newfoundland in 1986, not 1988 as earlier noted.  That increases his time at bar before becoming a judge from 13 years to 15 years.  As well, he served for a time as a prosecutor in Quebec.

Placentia has been without a full-time judge for six years when the incumbent retired.  No replacement has been appointed;  Placentia is now served by a judge who sits there once a month or so to handle the cases that arise there.

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Imagine if they were senate vacancies…

Seems that something is holding up the announcement of four appointments to the provincial court.  The clerks’ room at Number 3 Iniquity court was abuzz before Christmas with anticipation of an announcement ‘round about the first anniversary of l’affair Singleton.

Don Singleton’s appointment was announced on December 23, you may recall, and withdrawn in a storm of controversy on January 12.

Since then, there has been no sign of new appointments and the number of vacancies is four times larger.

Four empty seats on the provincial court doesn’t look very good, especially when a couple of them have been vacant for a year or more and after things got rather squirrely out in Gander in the middle of 2009.

So unless there is something akin the shenanigans last time that is causing some sort of massive last minute re-think of the whole announcement, maybe it is time for justice minister Felix Collins to take the list that showed up in the department some time ago,  tick off four names and get the release out there. 

After all, it’s already been checked over to see who’s been naughty and who’s been nice and the only ones left have passed the sooper dooper clearance checks supposedly imposed by Collin’s predecessor after said predecessor got caught out in the whole Singleton business.

After all, at some point, even the conventional media might notice that the provincial court is short a few judges and that the vacancies are getting older and older with each passing day.

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Rumpole and The Way through the Woods

Great howls came from the clerk’s room at Number 3 Iniquity Court this morning.

Over steaming mugs of Red Rose and a few cream crackers, the b’ys were having a laugh at the goings on over at the Provincial Court in Gander.

It is, for those who haven’t been following such things, the story of a court which has been one judge short since December 2008.  That’s when one of the two judges flew up to the Supreme Court leaving his benchmate, one Judge Short – Bruce, by name – to handle the unending tide of misbehaviour from Suburbia in the Woods and its environs. 

The matter should have been settled with a few appointments to the Christmas Honours List but something appears to have gone off the rails.

A lawyer in Gander, one Juan O’Quinn, turned up in a CBC News story on Friday bemoaning the problems with getting cases heard in a timely way under the circumstances.  The CBC story is still not correct on the whole picture since it links Don Singleton to the goings on.  That, as local Rumpole followers know, is a horse of an entirely other colour.

To return to the matter at bar, the clerks were quick to point out that O’Quinn is a former law partner of the health minister and the chairman of the Memorial University board of regents.  His talking publicly is not to be taken lightly especially when it is to complain about stuff not being done by cabinet appointment:

"If you have a situation where you want to get access to your children and your spouse is not permitting that and you need to get in front of a court, if the court is busy then obviously that's problematic," said defence lawyer Juan O'Quinn.

The problems in Gander are an old old story.  A year ago, the town council raised the issue with the local member of the House of Assembly for the district Gander is in.  As the Beacon put it in a story on the ongoing court problems:

The Town of Gander received a letter dated Feb. 17, 2009, from government services minister Kevin O'Brien, MHA for Gander. In it, the minister said the interview process for the provincial court judge position was underway and the it would be filled in the not too distant future.

O’Brien’s logic on the delay is  - characteristically - incomprehensible:

Minister O'Brien said he is not surprised the matter has taken this long, given the amount of interest in the position and the prominence of the provincial court.

In any event, the CBC story confirms what your humble e-scribbler had heard early, namely that Provincial Court Chief Judge Mark Pike sent a list of nominees along to the justice minister last November.  Normally that would be plenty of time to select as many qualified appointees as might be needed and to let the chosen few celebrate their good fortune over the holidays.

Not this year, as it turned out.

The clerks offered two versions of why not.

In the first version, the Chief Judge had been heard talking about appointing his team and setting things on the course he had chosen for the court.   The list went from Pike to justice minister Felix Collins who dutifully passed it along to He who Must be Obeyed.

He was not amused at all by the Chief Judge’s confusion over who actually makes the appointments and sent the list back to be re-worked.

In the second version, the list went up with only the list of people recommended by the judicial council to fill the vacancies.  There were no other names of those interviewed, as used to be the custom, broken down into categories of highly recommended, recommended (meaning they met the requirements set out in the Act but lacked some qualities the council sought) and not recommended.

There was not even a list of the type demanded for the mess that became l’affair Singleton, namely putting everyone into one of two categories:  Recommended -  which jumbled together in one undifferentiated mess the highly qualified and experienced as well as those who met barely met the minimums set down in law - and Not Recommended, which was all those who didn’t even meet the minimum requirements.

The November list apparently left off some names of individuals reputedly known to the political powers to have applied.

The list was sent back to be re-worked.

The two versions are not incompatible, it should be noted, and regardless of the precise reasons the end result is the same:  the bench in Gander as well as three other spots remain short of judges.

The cabinet is working its way through the woods and may eventually find someone to sit in Suburbia alongside Judge Short.

But in the meantime,  Bruce is on his own.

If Juan applied, he can cancel plans to lay up his shingle.

And there should be no question in any one’s mind about who appoints judges in Newfoundland and Labrador.

Well, at least that’s what the clerks said as they drained the last drop of Carnation from the tin and got back to their work, mugs full of a fresh brew.

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Rumpole and the Old, Old Story

The sorry tale of the Summer of Discontent in Gander turns out to be a much sorrier tale than first appeared.

At the end of a story entitled “One Judge Short” from last February (not online), The Beacon reported that then-provincial Court Chief Judge Reg Reid had “requested the minister fill the position [in Gander] as quickly as possible.” 

It seems that justice minister Tom Marshall could have used the same list of candidates from which he picked Don Singleton for a round of musical judicial chairs to also find a name to fill the vacancy in Gander.

When the Singleton appointment went sour, though, Marshall did nothing with either of the two vacancies.  Nor did he do anything with the list of candidates in front of him either – except flick it to one side - even though there were other names on it of people who not only met the bare minimums set out in the legislation but exceeded them. 

And that was six months ago.

In the meantime, not only are there still vacancies in Gander and St. John’s yet to be filled but two more have turned up.

Chief Judge Reg Reid retired in April.  That leaves newbie Judge Mark Pike in the role of assistant chief judge, a position that appears to have been created for him to fill but there is still a new vacancy in St. John’s.

On top of that, Judge Joe Woodrow – familiar to visitors to Courtroom Number Seven  - opted to retire in February and now sits on a per diem basis (as required).

There you have it:  three judges’ seats in St. John’s empty and one in Gander, all of which need to be filled.  Plus – and for some equally unfathomable reason – cabinet has not gotten around to appointing a replacement for Reid even though he’s been gone since April.  The chief judge’s job is a cabinet appointment, you see.

As a sign of how serious the problem is in Gander, consider that The Beacon reported last February the issue came up at a Gander town council meeting that month.

The chair of the town’s economic development committee wanted someone to have a chat with Hander member of the House of Assembly Kevin O’Brien.  The prospect of having cases directed to other towns caused some furrowed brows, it seems, since the people attending trials in Gander bring with them a certain benefit to the local innkeepers and restauranteurs. The slowdown in the courthouse meant a slowdown in the local economy.

Now this sort of dithering and delay is nothing new either for the justice department or the current administration as a whole.

Retired justice Bill Marshall (no relation) has been working on not one but two separate “reviews” one of which appears to have been underway since 2004.  Not a thing has come of either review and the government is also refusing to release any information about the status of either review.

Since 2003, a surprising number of senior public service positions have gone without a permanent appointment for periods of up to two years.  Some are appointed on an acting basis for extraordinarily long times and for no apparent reason. In other instances, legislation is passed but  not put into effect and in other instances, reports and promised policies have sat untended for two or three years.  It’s all part of the “missing in action” syndrome that befalls chunks of government these days.

Now part of the cause of all this might be that the appointments to the bench are supposed to be made  - ultimately - by the Lieutenant Governor-in-Council.  That’s legalese ease for cabinet.  And, if the practice with deputy ministers is any indication, “cabinet appointment” now means the picks are made by the Premier Himself and only the Premier.

And if he is pre-occupied with other things, no matter what those other things are, … well, that’s been pretty much the old, old story of this administration since Day One.

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Rumpole and the Valentine’s Treat

The long-delayed Provincial Court appointments miraculously appeared on Thursday. They take effect the day after St. Valentine’s Day.

Lois Skanes, from the Premier’s old chambers on Duckworth Street, is going straight from her office to a plum seat on the bench in St. John’s without having to do any time at all dispensing justice in the nethermost reaches of the land.

Mike Madden, a St. John’s federal prosecutor, is headed to Suburbia in the Woods to assist One Judge Short in his labours.

Jackie Brazil – most recently seen in public carrying crappy briefs from her masters in cabinet to Madame Justice Cameron – will be sitting in Harbour Grace.

"If you're not receiving your instructions from Mr. Thompson [a former clerk of the Executive Council], then can you tell me whether or not your instructions come from the attorney general, for example[?]" Cameron [asked] Brazil.

After a lengthy pause, Brazil said only that she represented the government.

No word  - yet - on what happened to the fellow who was in Harbour Grace until now, former director of public prosecutions Colin Flynn.

Readers of these scribbles will note that there is no appointment to the bench in Grand Falls-Windsor.  That would be the one where Don Singleton was supposed to go as part of a rather curious little appointment daisy chain that ultimately led to Singleton withdrawing from the whole process. This tends to confirm the belief the appointment of a judge in GFW wasn’t necessary in the first place.

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