29 September 2015

Rumpole and the Family Compact #nlpoli

Sixteen of the province’s 22 full-time provincial court judges are either already in or are on their way to St. Andrews, New Brunswick.

They are in for a surprise.

They’ve headed to New Brunswick for the annual meeting of provincial courts judges of Newfoundland and Labrador, called a few months ago by Chief Judge Mark Pike to coincide with the annual meeting of the Canadian Association of Provincial Court Judges.  As recently as 10 days ago, Pike was still finalising the agenda.

Surprise:  now Mark won’t be there.

Pike quit very suddenly and unexpectedly on Monday.  And just as quickly and just as surprisingly,  Attorney General Felix Collins announced Pike’s replacement.  It’s Pike’s wife, Pamela Goulding, a former head of the Crown prosecution service who is the third most junior judge on the provincial court bench.

The judges won’t be surprised by that appointment. 

It’s par for the course these days.

Pike and Goulding will be able to swap seats on the bench.  That’s highly convenient since there are no vacant seats in St. John’s.

Endless Controversy

Who sits where has been an issue with the court a few times during Pike’s tenure. Currently, there is a vacancy in Clarenville. [How convenient update below] The finance minister promised folks in his town a while ago that a judge was on the way.  No judge wants to go there.  The Conservatives haven;t appointed anyone new.  And so it is that Pike couldn’t find any way to help the minister meet his commitment.

On top of that, the Crown prosecution service has been in a lengthy pissing match with the judge from Grand Bank – Harold Porter – who sits in Clarenville on circus.  Porter started doing the circuit by teleconference after a series of episodes in which he went up to the lovely bit of Trinity Bay only to find the entire week’s docket had been postponed. Porter scolded the lawyers publicly.  So the Crowns tried to force Porter to come up to Clarenville to sit the cases in person.  They took Porter to court.  They lost.

That’s not the only controversy Pike has been part of.  For two years running, Pike failed to call an annual meeting of judges as required by the Provincial Court Act, 1991. The judges hired a lawyer in an effort to compel Pike to call a meeting.

Out of nowhere, an amendment bill appeared in the House of Assembly to hold the annual meeting at the call of the Chief Judge instead of annually as required under the Act. The bill quietly disappeared without ever being formally introduced for debate. The next year Pike held a conference call.

In 2012,  one of his judges filed a lawsuit against Pike and others.  The case stemmed from Pike’s gag order issued to the judge in Goose Bay over remarks he made in court about the inadequate level  of resources available for the provincial justice department officials  - like the Crown prosecutors - in Goose Bay.

As CBC reported,
English said he then received an email from Pike with the instruction, "Henceforth you are to refrain from any comment, from the bench or otherwise in public or private ... regarding the adequacy (or lack thereof) of judicial or court resources."
On the same day, Pike also said in a CBC Radio interview that the suspects should have remained in custody. "I can say from a resource point of view, it shouldn't have happened," Pike said.
In a further email, Pike wrote to English, "Your behaviour and actions regarding the release of the eight men (has been) referred to the Judicial Council" for potential disciplinary action.
No word on how that one came out.

Resources were still a problem in 2015, though.  Earlier this year, Pike came up with an idea that would supposedly streamline the court process.  The problem was that Pike’s idea ran the risk of delaying court appearances beyond the point already identified by the Supreme Court of Canada as being a trigger for stopping a prosecution altogether.

Then there was the problem in Gander.  Judge Short sat on the bench by himself in 2009 for so long that he warned against the risk that cases might be delayed beyond the limit set by the Supreme Court of Canada.  To be fair, that one started while Pike wasn’t the chief judge, but you can see a pattern shaping up.  Lots of controversy, much of it over resources.

Pike has been a provincial court judge since 2008 when former justice minister Jerome Kennedy appointed Pike to a job apparently created for him as associate chief judge..  Pike became chief judge in 2009.

Goulding became a provincial court judge in 2012.  Only a couple of judges are more junior to her.  There are plenty of former prosecutors – male and female -  on the bench with more seniority and more.

Questions about appointment process

It’s only fitting then that an appointment beset by controversy should end in an even bigger one.
Chief Judge is a cabinet appointment.  The latest cabinet could have made this appointment is last Thursday.  That means that the Attorney General had to know about the resignation sometime before that.  If that’s the case, he didn’t have much time to do a talent search before settling on Goulding.
That’s a really important thing. Collins didn’t announce Goulding as the temporary replacement.  She’s got the job for at least seven years. Either Felix didn’t do a search or he kept the search quiet for several months.  At least when Pike got the job, he’d been appointed to the newly created job of associate chief for a year beforehand.

In this case,  Felix Collins and his staff apparently carried on a secret search for the replacement.  They kept the whole thing secret and then appointed one of the most junior judges on the bench. Collins made much in the announcement of the fact Goulding is a woman and a former Crown prosecutor.  There are plenty of former prosecutors – male and female – on the provincial court bench all of whom have more experience than Goulding.  She’s experienced but there’s nothing in Goulding’s background to make her the automatic heir to anyone.

By putting Goulding in this job in this way,  Collins has made sure that a single family will retain control over the appointment of provincial court judges for another seven years.  As well, since Pike is staying on as a judge,  he and his wife will just swap seats.  There are no empty judicial seats in St. John’s.  As you know from other links in this post, apparent favouritism in appointments has been a sore spot with the province’s judges.

The Goulding appointment is just another example of just that kind of favouritism,. The fact that Felix pushed it out there at the same time as an announcement about transparency is a pretty sick little joke  but it looks more like an effort to sneak it by.  The fact that Pike had all the province’s judges headed for New Brunswick at the same time some deal about his own job was in the works looks even more suspicious.

No word on the meeting in St. Andrews, by the way.  If Pam didn’t hop a flight, then taxpayers will have forked out all that cash to send 16 judges to New Brunswick for a meeting of provincial court judges that never happened.

Regardless of whether or not she attended the meeting, Goulding’s appointment reeks.


How Convenient Update:  Seems that they did manage to find a judge for Clarenville after all.  Felix and Justice Minister Darin King appointed the deputy minister of justice to the job on September 18.

That little tidbit escaped the SRBP information vacuum bot.

It appears rather convenient a solution to a linger problem.

Excuses Excuses Update:  If asked,  the provincial cabinet talking point on Goulding might be that the Act doesn't allow for the appointment of a temporary chief.

True, but...

1.  Since Pike doesn't appear to have a serious problem, they could have left him in place until a proper process found a replacement.

2.  They could have made Pam the associate chief.  That way she could fill in for the chief while they found a replacement using a proper process.

The law allowed cabinet to do the right thing in this case.

They chose not to.