Rumpole and the Bleak House #nlpoli #cdnpoli

A scan of the docket for the Supreme Court of Newfoundland and Labrador, General Division reveals that the Provincial Court Judges are having another whack at the Government of Newfoundland and Labrador over their ongoing and unresolved pay dispute.

Those who suffered through the tale of tardy judges will note that this is a new application.  The judge who heard the other application in the same dispute has yet to deliver a decision some 18 months later.

The Provincial Court Judges are serious about this.  They have retained an army of lawyers all named Susan Dawes.

Most likely to appear for the Crown will be Rolf "Change the regs" Pritchard.  He's the ace Crown attorney who first came to public attention during the Cameron Inquiry and who was most recently seen arguing with Bern Coffey  - who appeared behalf of a Corner Brook ophthalmologist - about whether people should get cataract surgery in a private clinic and have the taxpayers cover the bill through MCP.

The government's solution to the cataract dispute was to change the hospital insurance regulations.  Undoubtedly,  officials in the health department cracked open the spare bottle of sodastream water in the health department last Friday to celebrate the loophole they'd closed that allowed a doctor to think they could do that one procedure in their office while everything had to be done in a hospital.

They celebrated too soon.  The wording of the new regulations allows doctors to do everything MCP covers outside a hospital, paid for by the Crown,  *except* for cataracts.

D'oh.

Don't be surprised if ophthalmologists do everything but cataracts in their clinics and bill MCP for it.

And stand by for the cardiologists and all the other cutters to see what they can do in their private clinics as John Haggie foots the bill for the whole lot.

Meanwhile,  the judges in Provincial Court will just have to wait for yet another decision on yet another application in their ongoing dispute.  Perhaps they'd have a faster result by praying that someone from Health gets a job as assistant deputy minister in Justice. That might be the only way they will get their problems resolved quickly.  The wheels of justice grind exceedingly slowly in Newfoundland and Labrador.

-srbp-

Rumpole and the Big Smoke #nlpoli

Here’s the official summary of a judge’s decision in a recent arson case:

Accused was charged with arson. The Crown failed to prove beyond a  reasonable doubt that the fire was deliberately set and, if it was, that it was the accused who did it. The accused was acquitted.

Failed to prove anyone deliberately set the fire in the first place, let alone that the accused did it.

That’s pretty much the definition of epic fail.

-srbp-

Rumpole and the Better Half #nlpoli

You likely won’t hear much mention of this provincial first but in the midst of the hoopla over Muskrat Falls on Wednesday, the justice minister announced a first for Provincial Court:  a husband and wife will sit as judges at the same time.

Former director of public prosecutions Pamela Goulding, Q.C. will sit in St. John’s. 

Her husband is Chief Judge Mark Pike.

The scuttlebutt in the clerk’s room at Number 3 Iniquity Court has it that Pike and Goulding also have the distinction of being the first married lawyers to take silk at the same time. 

Well, sort of. 

In 2008,  the list of new Queen’s Counsel appointments included Pike and Goulding.  A few days later came the announcement of Pike’s appointment to the bench.  As it turned out, Pike got to the bench before the ceremony to hand out the silk robes.  As a result, he never really got the chance to wear them.

Sometimes judges have to do a spell in the hinterland before getting the plum spots in Sin Jawns.  One of Goulding’s predecessors sat in Harbour Grace for the longest while waiting patiently until a spot opened up in town.

Included the announcement with Goulding was Laura Mennie, Q.C. who will sit in Stephenville.  Mennie took silk in June 2011.  At the time of her Q.C. appointment, Mennie was working for the child, youth and family services department in western Newfoundland and also completing the requirements for a master’s degree in family law at Osgoode Hall Law School.

- srbp -

Rumpole and the New Math

The voice rasped down the phone line even before the receiver hit my ear.

“On the Upper Path these days,” the familiar voice solemnly declared, “four plus four is five and a half.”

“What?” your humble e-scribbler asked, figuring this must be the latest bit of gossip on the illegal drug trade or prostitution in Sin Jawns.

“On Duckworth Street, stunned arse. You know where that is, do you?”

He repeated himself slowly and carefully as if his audience were deaf or feeble minded or both.

“Four and four is five and a half.”

“What in the name of God are you talking about?”

“I’ll make it easier for you.  Test your numeracy skills, then.  You’re always going on about that.”

A sip of coffee and a pause was enough of a reply in whatever game he was at today.

“What is two times four?” he said, sounding for all the world like a school boy who had discovered his first play on words.

Another slurp and more silence.  Experience teaches that it is best just to let him ramble when he is in one of these moods. He knows you are listening and just needs to act out the little drama.

“What is four plus four?”

“Eight” went the reply, with only a hint of boredom.

“See,” says the familiar voice, “that’s why you will never be a justice of the Supreme Court of Newfoundland and Labrador.  No matter how hard you try, no matter what political arse you kiss, no matter how proper you are or how many times you stand up for truth, justice and fair play, you cannot ever get to sit with those learned men and women of the highest court in this land.”

“You,” he said, pausing on each word, “do not know the New Math.”

The voice then summarised a recent decision from the Supreme Court’s Appeals Division of an appeal of the sentences in an armed robbery trial. 

A young fellow turned up last year appealing the sentence in a robbery case.  He’d pleaded guilty to two sets of offenses committed six days apart.

In the first robbery, the young fellow and another man went into a convenience store in town with handkerchiefs on their faces and knives in hand. They tried to rob a customer and when that didn’t work they made off with cigarettes and lottery tickets.

The young fellow who showed up in appeals court “pleaded guilty to robbery with respect to the theft of the cash, cigarettes and tickets (s. 343(d) of the Criminal Code), attempted robbery of the customer with intent to steal her purse (s. 463(a) of the Code), wearing a mask with intent to commit an indictable offence (s. 351(2) of the Code) and breach of an existing probation order (s. 733.1(1)(a) of the Code). He was sentenced as follows for these offences:

Robbery (Count No. 7) 4 years

Attempted robbery (Count No. 9) 3 years, concurrent

Wearing face mask (Count No. 8) 1 year, concurrent

Breach of probation (Count No. 10) 1 day, consecutive”

In the second incident, the same young fellow “demanded and received $115 in cash, as well as some cigarettes. He then fled the store. He pleaded guilty to one count each of robbery, wearing a face mask and breach of probation. For these offences he was sentenced as follows:

Robbery (Count No. 1) 3 years (less 141 days pre-trial custody), consecutive to the robbery sentence for the Hamilton robbery

Wearing Face mask (Count No. 2) 1 year, concurrent

Breach of Probation (Count No. 3) 1 day, consecutive”

The quotes are from the appeals court decision issued on January 12.  As the decision puts it, the “net effect of the sentencing was that the appellant was sentenced to a total term of imprisonment of seven years (less 141 days) plus two additional days (for the breaches of probation).”  There was a lifetime firearms prohibition and a DNA order but those two didn’t factor into the appeal.

The young man and his lawyer thought that the judge didn’t get the totals right when he sorted out consecutive and concurrent sentences for all the offences.

After a lengthy explanation, the appeals court noted that the trial judge had followed the law in pretty well everything except the notion of “totality”.  That is, he not only looked at the individual sentences for the individual crimes, he also had to look at the amount of time it all added up to.

At this point, it is just as well to let the Chief Justice’s words speak for themselves:

(vi)  A Fit Sentence

[95] No issue was taken with the one year sentences for wearing a face mask or the three years for the attempted robbery. I do not propose to say anything further about them.

[96] Counsel for the appellant did not dispute the proposition that sentences of four years and three years for the Hamilton and Blackmarsh Robberies, respectively, were fit. Counsel for the Crown, although stating that he had “no issue” with those sentences, submitted that four years for each would be more appropriate.

[97] I agree that, in the circumstances of this case, parity requires a four year sentence to be imposed for the Hamilton Robbery because that was the sentence meted out to Mr. Hutchings’ co-robber. The sentence for that robbery can also be considered as a benchmark for the other. There is little to differentiate between them except that a customer was also involved in the Hamilton Robbery and there were two robbers. Both were convenience stores, the modus operandi was the same, only a small amount of money or merchandise was taken and the events took place at night. Mr. Hutchings must bear more responsibility for the Blackmarsh Robbery because he acted alone. It was also his second robbery in a very short time. These factors countervail to some extent for the fact that the Hamilton Robbery involved both a customer and a store employee. Given the sentencing judge’s identification of the prevalence of armed robberies in the community and that there is a need to protect people working in or using convenience stores late at night, a fit sentence for the second robbery should be four years.

[98] While this sentence is somewhat higher than the levels of sentence imposed in other comparable cases in this jurisdiction (See R. v. Sheppard (1997) 147 Nfld. & P.E.I.R. 304 (Nfld.C.A.) (no criminal record; one robbery with mask; severe gambling problem; four years reduced to three on appeal); R. v. Butt (1986), 59 Nfld. & P.E.I.R. 89 (Nfld.C.A.) (armed robbery of gas bar; four years reduced to two years less a day because of psychiatric illness); R. v. Pardy (1994), 126 Nfld. & P.E.I.R. 218 (Nfld.SCTD) (one robbery of service station, masked; prior convictions; three years); R. v. Power (2006), 262 Nfld. & P.E.I.R. 30 (NLSCTD) (robbery of restaurant; psychiatric disorders; joint submission of three years accepted), it is nevertheless justified given the present community problems with this type of offence, and the concern for the safety of vulnerable workers, as identified by the sentencing judge.

[99] As far as the sentences for breach of probation are concerned, a sentence of one day, as imposed by the sentencing judge is inappropriate. Sentences can range between one month and sometimes less to upwards of six months. See Murphy (six months); Oxford (three months). In Oxford, the Court accepted statements in prior cases that sentences for non-compliance with probation orders could be one month or less even where there are prior convictions.

[100] In the current case, Mr. Hutchings has several convictions for failure to comply with court orders. In light of the requirements of specific and general deterrence, I am satisfied in the circumstances that sentences of two months for each offence are necessary to achieve respect for the observance of court orders.

[101] I have already indicated that I agree that the two robberies should be considered separate criminal adventures and that the sentences, other things being equal, should be served consecutively. The robbery and attempted robbery at the Hamilton convenience store were part of the same criminal adventure and the sentences are appropriately made concurrent with each other. It is also appropriate to make the sentences for having the face masked concurrent with the respective robbery sentences, as they were part of and arose out of the robbery events. Sentences for breaches of court orders are generally an exception to the normal rules respecting consecutive and concurrent sentences. They should normally be made consecutive. I see no reason to depart from that approach here.

[102] Accordingly, before considering totality, the overall sentence would be eight years for the two robberies plus four months for the two breaches of probation orders for a total of eight years, four months.

[103] It is now necessary to consider totality, the application of which is engaged because some sentences are consecutive to each other.

[104] The most serious offences here are the robberies. The normal level of sentence for armed robberies of convenience stores-gas bars by a young person, masked, late at night where the money or merchandise taken is relatively small could range from three to five years. When compared with the total sentence of eight years four months that would otherwise be indicated, this would be a factor calling for a reduction in the overall sentence.

[105] There were two offence events. While not a rash of robberies, neither was it a single isolated incident. The two events occurred within a short period of time. Although the gravity of these offences can be regarded as not as serious as, say, large scale robberies where violence is actually perpetrated, they are nevertheless of great concern. Weapons were involved, Mr. Hutchings was masked and the offences were carried out at night when the victims were more vulnerable. The total sentence must reflect these factors.

[106] Mr. Hutchings has a lengthy prior criminal record spanning from late 2006 to mid-2009, involving a total of 26 offences, eleven of which were convictions for failure to comply with a previous undertaking, recognizance or probation order. Of the remaining 15 offences, nine were committed as a young offender and two as an adult. The sentencing for these offences occurred in four clusters as a youth and once as an adult. The sentence for the adult offences was 30 days intermittent plus 2 years probation for 2 counts of theft under $5,000 and 2 counts of failure to comply with a prior court order. The most concerning sentence as a young offender involved a conviction for armed robbery in 2006, where Mr. Hutchings was sentenced to 9 ½ months involving a combination of secure and open custody plus an additional 159 days supervision order and 12 months probation. This is a significant sentence in the context of a young offender where the emphasis is on rehabilitation. With that exception, none of the other youth sentences involved any significant amount of custodial time. The sentence for the current offences will be Mr. Hutchings’ first substantial period of imprisonment as an adult. The committing of the current offences does indicate, however, as the sentencing judge noted, that Mr. Hutchings “has not gotten the message” from the sentences imposed for his prior offences. That said, even though the sheer number of prior offences is a matter of considerable concern, a sentence of eight years, four months is a substantial movement from a thirty day intermittent sentence which was the longest period of jail time he had previously received as an adult, or even from 9 ½ months, which was the longest period of custody he had previously received as a young offender.

[107] Mr. Hutchings’ young age has to be considered in relation to his prospects for rehabilitation. Notwithstanding the absence of a pre-sentence report, the fact of his age should be taken into account insofar as his behaviour may be at least partially attributable to immaturity. While eight years, four months might not be considered a “crushing” sentence, it certainly will take away from him a substantial portion of his twenties which are important to a young man who is still maturing and developing those things, like job prospects and relationships, that provide the base for a productive life. This factor also points toward modifying the total sentence.

[108] Mr. Hutchings suffers, as noted by the sentencing judge, from a drug problem, a circumstance that often fuels the type of behavior for which he was sentenced. Some of the cases cited previously (e.g. Sheppard, Butt, Power) recognize addictions, such as gambling and alcohol dependency, or emotional or psychiatric illness as factors that may mitigate the severity of a sentencing disposition.

[109] Other appellate decisions recognize that it may be appropriate to reduce an overall sentence when an offender is being sentenced for multiple robberies committed in close succession. (See Wozny).

[110] Taking all these factors into consideration, and noting that a number of them point toward a reduction in overall sentence, I am satisfied that a sentence of eight years, four months is unduly long or harsh when measured against the gravity of the offences and the offender’s degree of responsibility. While recognizing the serious nature of this type of offence and that a considerable term of imprisonment is nevertheless warranted, a more appropriate overall sentence that will still recognize the inherent gravity of the offences would be five years, six months.

[111] To achieve this result, I would impose sentences as follows:

For the Hamilton Robbery:

Robbery 4 years

Attempted robbery 3 years, concurrent

Wearing a mask 1 year, concurrent

Breach of probation 2 months, concurrent [changed, for totality, from consecutive to concurrent]

For the Blackmarsh Robbery:

Robbery 1 year, 6 months consecutive [reduced, for totality, from an otherwise appropriate sentence of 4 years] (less 141 days pre-trial custody),

Wearing a mask 1 year, concurrent

Breach of probation 2 months, concurrent [changed, for totality, from consecutive to concurrent]

Summary and Disposition

[112]I would vary the sentence imposed by the sentencing judge as follows: for Count No. 1 on the Information to one year, six months (less 141 days pre-trial custody); Count No. 2 to one year concurrent; Count No. 3 to two months concurrent; Count No. 7 to four years consecutive; Count No. 8 to one year concurrent; Count No. 9 to three years concurrent; and Count No. 10 to two months concurrent.

“And that,” the voice chuckled down the phone line, “is how four and four gets you five and a half.

Next time, I’ll tell you how seven times 13 is 28.”

- srbp -

Rumpole and the Black Letter

Local barrister Averill Baker is threatening to sue the Crown prosecutors for persecution based on their recent application to have her tossed off a case for being in a conflict of interest.

The nature of the conflict of interest is complicated.  There may be much the public doesn’t know from court documents that earlier were sealed.

Ms. AB once represented the victim in a break-in her late client was alleged to have conducted.  In the course of the break-in and attempted robbery is alleged to have shot one of his alleged co-conspirators.

A conflict of another sort apparently broke out in the court room when the lawyers and the accused got together to hear the judge’s decision on the conflict of interest.

The accused, Philip Pynn, kept trying to interject.  The judge ordered him to clam up and when he didn’t, reminded the young fellow he could have the Sherriff’s officers gag him.

Bit extreme, but not something judges are known to do for people who aren’t disrupting proceedings.

In any event, the judge told Ms. AB she had to stand aside.

Ms. AB found it all troubling.  As CBC reports,

"This is a sad day," Baker said.

"I have lost one of my most important clients, as I say, he's been with our firm since 2005, and we were the victims of an attack by the Crown," said Baker.

One might think so.

Think that way, that is, unless one was familiar – as Ms. AB ought to be – with the way the courts have ruled on the business of conflict of interest.

The court standard is laid down in the decision on an application in R v. Brissett.

The Crown applies for a disqualifying order, on account of alleged conflict of interest, removing the Defendant’s two solicitors of record from defending him on charges of the first degree murder of Demar Ranglin and the attempted murder of Joseph Cunningham.  No date has been scheduled for the trial.

To this point, Mr. Brissett has been represented by Mr. Stephen Bernstein and Mr. David McComb.  The prosecution submits that because Mr. McComb previously acted as counsel for Mr. Cunningham, his current counsel, both of whom practice in the same law firm, are in a conflict of interest position in purporting to defend Mr. Brissett in a trial where Mr. Cunningham is not only a principal Crown witness but also an alleged victim of one of the crimes charged.

As it turned out, the firm acted for the fellow so long ago that neither of the two partners could recall it.  But that’s as maybe, as far as the courts are concerned.

The court laid out the principles succinctly.

First,  there was the matter of the timing of the application.  The Crown must raise the conflict issue as soon as possible.  Incidentally, in the case with Ms. AB, they did so almost immediately after laying the charges against Pynn.

Second, was conflict and the duty of loyalty to the client.  That’s essentially the nub of the problem:  one cannot serve two interests simultaneously.

Third, there’s the duty to preserve client confidences.

Fourth, the duty of confidence continues – as the lawyers put it – after the retainer ends.

Fifth, the right to counsel of choice is not absolute. in other words, you don’t always get the lawyer you want, especially if he or she must be disqualified.

After going though the details of the case, the judgment posed a simple set of questions.

[75]…Would a fully informed reasonable observer seeing these circumstances of successive representation perceive any or all of the following:

(1) a realistic risk or possibility that confidential information secured by the law firm in its retainer by Cunningham would be used in the attempt to discredit Cunningham in Mr. Brissett’s trial?

(2) that Cunningham would likely hold the belief that a cross-examiner from the law firm which previously represented him was in a position to challenge aspects of his testimony based on knowledge originating in prior confidential communications made as a client of the firm?

(3) that Cunningham would be more likely to agree with leading questions and suggestions by a cross-examiner from the law firm that had represented him as a client for fear of disclosure of some confidential information divulged to the law firm when a client?

(4) that a lawyer from the firm which had Cunningham as a prior client might be less effective aggressively cross-examining Cunningham on behalf of Mr. Brissett on account of undue caution relating to the apparent use of confidential information previously obtained from the witness/prior client?

[76]     In my view, a reasonable member of the public would, on the record here, answer these questions affirmatively and, as a result, have significantly less confidence in the administration of criminal justice should counsel from the Robbins, Bernstein firm be permitted to cross-examine their prior client – the concept of undivided loyalty and public faith in the justice system would be significantly tarnished.

Even with what is in the public, it would seem that Ms. AB was in a pretty clear violation of the principles described in Brissett. The fellow she once represented would inevitably be called as a witness. 

Ms. AB would have to cross-examine him and – at that very point – she’d be caught with a conflict of interest, even if only in appearance.  If there was anything more involved that the public doesn’t know, the the conflict could well be more than just a matter of appearance.

Ms. AB can fulminate all she wants.  The black letter of the law would seem to be firmly against. That’s likely why, at an earlier hearing, she didn’t bother contesting the application. Initially she’d talked tough but in the end, she didn’t do anything.

If someone offers to bet on Ms. AB suing the Crown over the whole matter, then take the bet.

She’ll likely back off that one too.

Black letter, and all that.

- srbp -

Rumpole and Food for Thought

The Mighty Ceeb is at it again with another story that distorts the information they started with.

“Severe crime soaring in N.L.” screams the website headline. The second paragraph:

Statistics Canada reported that while reports of crime across the country are declining, Newfoundland and Labrador reported significant increases in crime. Violent crime in the province was up by 13 per cent in 2010, and up by 29 per cent in St. John's, the most significant increase in any Canadian city.

But wait.

Royal Newfoundland Constabulary chief Bob Johnson points out that two murders in the capital region compared to none the year before will skew the statistics if that’s all you count on.

Some might blame Stats Can.

Nice try, but take a look at the table and see the numbers.

Sure the province went up on the combined set of measures Statistics Canada calls an index. But the province is still below the national average.  The violent crime severity index at 70.2 is lower than larger provinces and less than half the numbers for Manitoba and Saskatchewan.

Here’s the original Stat Can table.  Click on it and you should get a larger version:

Stat Can issues regular news releases on crime statistics.  As such, anyone using the figures can make easy comparisons rather than just rely on the year over year change Statistics Canada used this time. you can find the crime severity index for Nl for 2007, for example:  61.8. 

At the end of a simple search and few comparisons and you can see Chief Johnson is pretty much spot on.  And in relative terms, the provincial score on these crime indices is below the national average and significantly better than in other parts of Canada.

Consider, too, that these figures don’t look at the rate of solved crimes.  That is, there’s no measurement here of how many of these crimes didn’t wind up with an arrest and/or conviction.   When miscreants can get away with their crime, odds are – one would suspect – that crime becomes attractive.

And if that doesn’t persuade, consider these words rom the police chief.  They are an accurate reflection of reality in the province’s booming capital city:

Johnston pointed out that in the case of the murders, the victims and the people charged knew each other. Apart from convenience store clerks, most citizens of St. John's — and Newfoundland and Labrador — are not likely to encounter serious or violent crimes close up.

"Even though the numbers are going up, violent crime in St. John's hasn't been spilling out into the streets where ordinary people, innocent bystanders, would be affected," said Johnston.

None of that is reflected in the CBC’s headline.

But then again, if it didn’t bleed, it wouldn’t lead.

If it bleeds, it leads?  Now where did you last hear that line used as a criticism of a media outlet?

Hmmm.

Food for thought.

- srbp -

Rumpole and the Cardinal Rule

St. John’s lawyer Averill Baker is pissed that the Crown prosecutor is trying to remove her from a case because she represented the victim in the savage beating her current client is accused of visiting on his head.

He’s facing a second degree murder charge for allegedly shooting his accomplice in a botched armed robbery.  The fellow is also facing an attempted murder charge for the beating of baker’s former client.

Lisa Stead sent Baker a letter. According to Baker, Stead wrote that she will ask a judge to remove Baker if she shows up in court representing the fellow accused of .

Seems the Crown tucked the fellow in in 2005 for possession of stolen goods and possession of marijuana for the purpose of trafficking.  Baker represented him at the time. 

What’s more, Stead advised Baker that she may be called as a witness in the case.

A couple of things stand out from the CBC account of this and Baker’s comments.

First, she says that she represented the victim in the current case  for “half a day” in 2005 and therefore knows nothing else about the fellow and his life.  While there may be no connection between the brief appearance in court and the conviction, the two things don’t look good together. 

Baker might have been better off walking from the current case given the fairly obvious conflict of interest.  Any cross examination of the victim in the current case would be fraught with problems.  On the face of it, one would be hard pressed to see how that would do her current client any good.

But second and perhaps more important than anything else, there’s the line at the end of the CBC story:

Baker said if the Crown comes up with other charges to attempt to make her be a witness, she will apply to Newfoundland and Labrador Supreme Court to rule on malicious prosecution.

This suggests that – contrary to her earlier assertion – Baker may know something of her former client’s business or his relationship with the fellow she now represents that she claims.  The charges mentioned here seem to be related to Baker, not her current or former client.

Let’s hope someone at CBC misunderstood.

Otherwise, the implication for Baker’s client is one thing.

The implication for Baker is another, and it is not good.

Not good at all.

In fact, the implications are so serious this might be a case where the lawyer needs to get some legal advice before saying another word.  There’s a reason why lawyers often advise their clients to first of all follow the cardinal rule:  shut the f*ck up.

- srbp -

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…

-srbp-

Rumpole and the Double Dippity-Do

Simple question.

But first, the background:  Retired Provincial Court judge John Rorke is pulling down $175 an hour for a 35 hour week as the acting child advocate in Newfoundland and Labrador.

That’s more than double what his predecessor made.

It’s also more than a sitting justice of the Supreme Court of Newfoundland and Labrador pockets annually.

Rorke is also the commissioner for the Royal Newfoundland Constabulary Public Complaints commission.

So here’s the simple question:

Has Rorke parked his judge’s pension?

It’s one thing to be pulling in some pin money as a complaints commissioner, essentially a part-time job. 

But collecting a gigantic salary as acting child advocate and  collecting a pension at the same time seems a bit extreme if it were to be happening.

After all, in Ontario, the issue is a hot one across Ontario where the Globe revealed that school boards spent $16.7 million last year using retired teachers to fill in rather than hire new teachers. It wasn’t so long ago that the same thing happened here.  In fact, if memory serves, there was even a treasury board directive that placed some pretty strict conditions on the practice of hiring people who were already collecting provincial government pensions.

After all, it isn’t like Rorke doesn’t have a pot to piss in.

 

-srbp-

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.

-srbp-

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.

-srbp-

Rumpole and the Christmas Honours List

Word coming from the clerks’ room at Iniquity Court has it that on Tuesday next the province’s justice minister will announce recipients of the cabinet’s appointments to the provincial court bench.

There are four slots open, as Bond Papers readers already know. Some of them have been vacant for a year.

Who will make the Honours List?

-srbp-

Rumpole and the Heavy Heart

Sir John Mortimer, creator of Horace Rumpole, passed away on Friday, aged 85.

-srbp-

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.

-srbp-