Alberta Courts: A Course in Coarse

September 17, 2016

by Jack Locke

I know judges are human. I’ve known that since 1989.

But the recent revelations making headlines, the Justice Denny Thomas obvious error in the Travis Vader murder case, and the Justice “why-didn’t-you-keep-your-knees-together” Robin Camp hearing at the Canadian Judicial Council, perhaps have a connection to my experience.

You see, I was a one case litigator. That should be more than enough for most people. I don’t recommend it.

I first entered court in 1989. My claim against the City of Calgary was a charter challenge to a municipal by-law. Now, I don’t claim to be a Perry Mason – Perry who? Okay, I’m showing my age. Perry Mason was a fictional television lawyer extraordinaire from 1957–63 and originally the lead character in a series of novels by Erle Stanley Gardner.

But I was just an ordinary Canadian miffed by a dumb law. So I went to court. The first thing that happened to me was my case was thrown out before trial. In a slick procedural manoeuvre, the City had the case dismissed because I was alleged not to have drafted the paperwork correctly. Of course that was horse shite.

The Alberta Court of Appeal agreed with me. But it took a year and a half of my time.

After two more years of procedural wrangling, a seven-day trial was finally held.

I knew right off the bat I was in trouble when trial judge R.A.F. Montgomery questioned my right to call certain witnesses. I felt he had obviously taken sides with the opposite side.

But the kicker came one afternoon when the learned judge began pronouncing my last name with two syllables. It was incredulous – something Perry Mason never had to deal with. Locke is pronounced “lock”, one syllable only. What prompted this new exaggerated pronunciation of my name I can only surmise. The only thing missing was a following hiccup.

The judge ruled against me on all three legal issues. Moreover, he then slapped me with costs to the maximum level. Now, in the case of public interest law, where a citizen challenges a controversial piece of legislation, it is not unusual for costs not to be levied. But under the intoxicating circumstances, when Justice Montgomery assessed costs of $35,000, I was somewhat expecting it.

To this day, there has not been a review of the decision, nor behaviour, of now dearly-departed judge Montgomery. The appellate story is another story, and a good one. But I am certain there is a plethora of delicious court stories from Alberta.

So, when I see the cases of Denny Thomas and Robin Camp, I am wholly not surprised in the least. What section of the Criminal Code did the eminent jurist cite? And what’s wrong with a misogynist comment by a judge?

There needs to be a major housecleaning. The Supreme Court of Canada’s Chief Justice talks about lack of access for ordinary Canadians to the courts. Well Beverley McLachlin, who would want to appear in court anyway? Not me.

* * * *

Jack Locke is a freelance writer/poet/editor living in Quebec.

LONG Live King Arthur of the M.U.H.C.

July 11, 2016

Every now and now, I get lassoed by a subject, tied up and loosened up to write a poem. This time my object was the late Arthur Porter, former CEO of the McGill University Hospital Centre, and former Chair of Canada’s Security Intelligence Review Committee. Here’s my latest villanelle, LONG Live King Arthur of the M.U.H.C.

LONG live King Arthur of the M.U.H.C.
He was the penultimate freelancer
For he who dies before trial leaves a legacy.

From Sierra Leone came a doctor only
To care for the dying, dying of cancer
LONG live King Arthur of the M.U.H.C.

He learned to negotiate positively
A small payoff requires an expancer
For he who dies before trial leaves a legacy.

He was portrayed as an Englishman portly
But in boardrooms he was known as a slender dancer
LONG live King Arthur of the M.U.H.C.

Accused of malfeasance malevolently
Defended by a brilliant necromancer
For he who dies before trial leaves a legacy.

To his grave he will carry secrets sanctimoniously
As hungry ants dig hopeless for an answer
LONG live King Arthur of the M.U.H.C.
For he who dies before trial leaves a legacy.

 

 

Marc Garneau, Enough Is Enough

June 19, 2016
Train_in_Tunnel

A VIA Rail train exits the Turcot Tunnel in Montreal(file photo.)

by Jack Locke

I have a hard time forgiving Marc Garneau.

If Google can produce a car that drives without a driver, why can’t Canadian train drivers see people before they are killed on the tracks?

On June 10, when Cienna MacPherson, 17, and Joana Hofer, 18, were killed by a train in Lantz, Nova Scotia, I cursed Marc Garneau. That Garneau’s department, Transport Canada, fails to take bold action to prevent further deaths is shameful. Garneau’s failure as Minister of Transport is cause for reflection, if not resignation.

But Marc Garneau is not likely to resign.

On March 29 of this year, according to a Transport Canada tweet, Minister Garneau “met with members of the rail industry and stakeholders to discuss #RailSafety.” Big Canadian National deal. They politely chatted about railway safety and still Canadians die.

What is the point of meeting with the rail industry when trains continue to mow down Canadians every month?

According to Transportation Safety Board of Canada(TSB) statistics (http://www.tsb.gc.ca/eng/stats/rail/2016/04/r2016-04-t2.asp), in the first 4 months of 2016, there were 13 fatalities caused by trains hitting people, which the TSB labels as “trespassing.”

This label is repugnant, as it impugns wrongdoing by the victims. That’s an easy way for the Government of Canada to turn a blind eye and avoid responsibility and avert the urgent need to investigate these deaths. It is unconscionable to blame the dead victims. This is wrong and it must stop.

I know people will say that innocent young men and women must take ownership for their actions. Well, so do railway companies.

And if I can be frank, I find it really obnoxious for the Transportation Safety Board to tweet, as they did on June 8, “We investigate an occurrence when it can advance transportation safety and reduce risks.” That is patently untrue.

When 3 Montreal-area young men were killed by a VIA Rail train on Oct. 31, 2010, the government of the day quietly ducked their responsibility. Since that time, not a single transport minister (Chuck Strahl, Denis Lebel, nor Lisa Raitt) dared to stand up for Canadians on this issue. They ducked and dodged—not unlike the late great boxer Muhammad Ali—and were able to deflect criticism thrown against them.

Although Dylan Ford, Mitchell Bracken-Guenet, and Ricardo Conesa were killed by a VIA Rail train nearly 6 years ago, their deaths provided a pivotal opportunity for government to act. Yet nothing. VIA Rail must answer for why their train engineer never blew the train horn nor hit the brakes until after hitting these boys. Marc Garneau, if you have that answer you must make it public. If you do not have that answer, you must, should, pursue an answer.

No Minister of Transport was held accountable for the loss of 47 lives in Lac Megantic. Nor do additional train-related deaths seem to phase our government.

As Green Party leader Elizabeth May stated in 2011, there needs to be a Royal Commission to look into railway safety. The recent deaths in Lantz demands answers. And yet, we will watch how the Government of Canada responds. A smiling minister will outline what Canada is doing to improve railway safety and then more deaths will occur. Enough is enough.

It has been more than 5 months since I sent my Member of Parliament, Marc Garneau, an email requesting an opportunity to meet to discuss railway safety. I was concerned about railroad trains killing Canadians. Yet, only an automated reply.

“I believe the failure of Transport Canada and the Transportation Safety Board to investigate pedestrian/train accidents—the leading cause of death by trains—is an oversight that needs addressing. It is unacceptable to say these incidents are not preventable,” I wrote in my January 4, 2016  communication seeking a meeting.

Canadians deserve better. Canadians deserve a country that protects its citizens from death and danger.

Marc Garneau, are you listening?

Imagine Merrick Garland on Canada’s Supreme Court

May 1, 2016

by Jack Locke

With the foofaraw surrounding the appointment of Merrick Garland to the US Supreme Court, why doesn’t President Barack Obama just trade him to Canada? Yes, trade him to Canada.

Trade in its simplest form can be explained as: I give you, you give me.

As any sports fan knows, trade need not be confined to economics, goods, or money. Trade can be inserted in the area of law courts, ipso facto. Why not?

At present, the United States Supreme Court is missing one member on the bench, following the recent death of Justice Antonin Scalia. Whereas, Canada’s Supreme Court will become one member short now that Justice Thomas Cromwell has announced his resignation at the youthful age of 63. Yes, Thomas Cromwell, but not the 16th century lawyer who served King Henry VII.

Why not make a trade? One judge for one judge.

I know many in-the-box Americans will be thinking: the two countries have radically different laws. Yes. But what do laws have to do with justice? Really.

If you’ve ever had the occasion to read a Supreme Court decision, either Canadian or American, with majority or dissenting opinions, you’d know that the judgements are about legal ideas, abstract concepts, and occasionally the written law. Sometimes the ideas are ancient, steeped in historical conflict, and sometimes they are modern or novel.

And if you have read any number of decisions, you would know that justices of the court often disagree on what is the law. And that causes rancor within the family, so to speak. That’s why I propose a high-court marriage, a blending of two courts that are situated only 565 miles apart.

How two different countries define justice is good to know when you want to prevent wars from starting. And perhaps this model of judicial integration could one day prevent wars.

Both Canada and the US have borrowed many elements of our systems of justice from the British. Both countries have also deviated from the British. Yet, there remain striking similarities. All three countries highest courts attempt to define right and wrong. And in defining right and wrong, sometimes the court gets it right, sometimes wrong.

That’s why it is refreshing to add an outside voice to the ho-hum deliberations so judges don’t become too complacent inside their monastic institutions.

As supreme courts have evolved over time they have gone from being strictly composed of old, white men, to including women and different minority groups. This provides greater diversity of opinions, attitudes and perspectives and raises the caliber of justice. And even if trading judges did not improve the caliber, it likely would not lower it.

Exchanging judges between countries, however scary that sounds, would add to each court’s grasp of justice and differing world views.

It’s somewhat like food and cooking. You add a pinch of spice to the spaghetti sauce and the flavor is enhanced, enriched, improved. Of course, some people like their food bland, traditional, and identical to the flavor made by their grandparents’ grandparents. Think of judge trading as accentuating the continental palate.

The world is progressing, speeding up, changing. We can either move forward or we can try to slam on the brakes of this run-away chuckwagon we call globalization. I don’t recommend standing in front of that chuckwagon.

Canada in years past used to employ London’s Judicial Committee of the Imperial Privy Council to adjudicate our final legal appeals. And despite receiving some superb decisions(e.g. the Persons decision, 1929), we tired of being dictated to by old, white men with accents wearing wigs. We made a conscious decision to move into the 20th century in the middle of that century.

Now, Canada and the US (and dare I even suggest Mexico) have a unique opportunity to move into the 21st century.

We can open up the hallowed halls of justice—those rich wood-panelled chambers choked by stuffy air—by breathing new life into the corpus judicia. We can, we should, we must. The benefits would far outweigh the negative, I am confident.

As President Barack Obama is being thwarted in his attempt to have Merrick Garland confirmed to sit on the US Supreme Court, why not put him on the next bus to Ottawa? We’ll gladly take him.

And we’ll send you our #1 draft choice just as soon as Prime Minister Justin Trudeau picks one. Unlike the US, Canada selects, appoints and places justices all in one throwing motion. No need for a confirmation hearing.

In case you’ve forgotten, this would be called trade and it could be initiated through the President proposing a treaty to get the ball rolling.

But there could be one obstacle: lawyers. As soon as they get hold of the process, they’ll drag it out, delay it interminably, find faults, contest its merits, advise against, claim unconstitutionality, apply for an injunction, and of course, claim damages and costs.

Then comes an appeal.

I guess trading Supreme Court justices is not the only change we need. I rest my case.

This Winter I Journeyed To Attawapiskat

April 12, 2016

[One more poem for #poetrymonth ]

Kozak and Fireman Attawapiskat

This winter I journeyed to Attawapiskat

After two days my friend wanted to leave

Insecurity fell on our heads like a hat.

Although welcomed by a friendly welcome mat

We never before had seen such an intricate weave

This winter I journeyed to Attawapiskat.

Prudent, we chose to rent a safer flat

It was broken into the preceding eve

Insecurity fell on our heads like a hat.

We talked slowly with Danny Metat-

awabin, his passionate voice easy to believe

This winter I journeyed to Attawapiskat.

Misfortune finds force when elders fall flat

The hurt deserve an overdue reprieve

Insecurity fell on our heads like a hat.

Our frozen fingers we were able to combat

Yet, understanding – we’ve yet to achieve

This winter I journeyed to Attawapiskat

Insecurity fell on our heads like a hat.

 

Jody Wilson-Raybould Stung

April 11, 2016

Jody Wilson_Raybould T400x400

A minister of justice so young /

Is prone by inexperience to be stung /

By pundits with glee /

Resembling killer bee /

Oh so quick to the backbench she can be brung. /

A Wump Named Mulcair

April 9, 2016

Thomas-Mulcair

There once was a wump named Mulcair
A leader with face full of hair
The election he lost
Caused a fury of frost
And of this he remains quite aware.

[for #poetrymonth]

Portraits from On The Ice Road

February 22, 2016
Kozak and Fireman Attawapiskat

In Attawapiskat, Ontario, photojournalist Nick Kozak(left) and Antoine Fireman walk on water, albeit frozen, on Feb 12, 2016. “I live in the bush, I didn’t have an education, only 6, only as far as I go,” says Fireman. But he has much knowledge neither Kozak nor I possess. Photo by Jack Locke.

I’m proud of my 16-day odyssey travelling, writing, and photographing the people and places along northern Ontario’s ice roads with photojournalist Nick Kozak. Beginning in Toronto, north to Attawapiskat, and then back we went.  The blog Portraits from On The Ice Road tells a healthy fraction of the story. There’ll be more to come.

On New Year’s Eve My Vision Grows Wider

January 1, 2016

 

On New Year’s Eve my vision grows wider/

I party at Patty’s, eat chicken and rice/

I don’t give a damn cause of the cider./

 

Our talking starts low but proceeds louder

The discussion is critical, yet nice

On New Year’s Eve my vision grows wider.

 

Dog Willy is a constant invader

Dear dog who wants to hump we don’t entice

I don’t give a damn cause of the cider.

 

Patty’s story about her weed eater

Is a metaphor for Jesus Christ

On New Year’s Eve my vision grows wider.

 

So many plants, hardly a single spider

I was only bitten once or twice

I don’t give a damn cause of the cider.

 

When a taxi refuses this rider

At this late hour grimy bus will suffice

On New Year’s Eve my vision grows wider

I don’t give a damn cause of the cider.

 

Journalism training in Fort Albany

December 11, 2015

As I wrap up my 7 months of teaching journalism on the Fort Albany First Nation near James Bay in northern Ontario, the following photos by Leo Metatawabin sum up the experience. As Leo takes photos, Mike Koostachin records a live radio broadcast with a handheld recorder, as the extraordinary X, Xavier Inishinapay, interviews Thomas Scott and Sage Friday at CKFA radio 90.1 FM in Fort Albany. The pics were printed in Wawatay News on p. 19.

Wawatay News Dec 2015 2