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Galati takes deputy judges ruling to appeal court

|Written By Robert Todd

A Toronto immigration lawyer is continuing his battle over the acceptable age of Federal Court deputy judges, many of whom mainly handle immigration cases.

‘It falls off the edge of a flat world,’ Rocco Galati says of the Federal Court ruling in Felipa.

Rocco Galati has filed an appeal to the Federal Court of Appeal in Felipa v. Canada (Citizenship and Immigration) in which he calls the ruling by Chief Justice Allan Lutfy “illogical” and “incoherent.”

“With all due respect to the chief justice’s reasons and analysis, with the greatest of respect, it falls off the edge of a flat world,” says Galati, who also calls the decision “results-driven” and posits that the deputy judges have been assigned primarily to immigration law matters due to the sheer volume of such cases before the Federal Court.

In his decision, Lutfy said mandatory retirement doesn’t apply to former judges who continue to work after turning 75.

“Simply put, deputy judges do not hold office as judges of the Federal Court and cannot, therefore, cease to hold an office to which they have not been appointed,” wrote the chief judge.

That runs counter to Galati’s contention that the court’s policy of allowing such judges to hear matters breaches his client Luis Felipa’s “constitutional rights to rule of law, constitutionalism, and federalism; embarrassingly invites and brings the administration of justice into disrepute by tainting and breaching the applicant’s right(s) to a fair and independent judiciary.”

The matter caused disarray for many immigration law matters when it first erupted in August 2009, with at least 11 Federal Court hearings set to go before deputy judges adjourned in one week alone. It began when Galati sent a letter to Lutfy complaining that deputy judge Louis Tannenbaum - 77 years old at the time - had no jurisdiction to hear Felipa’s case.

Galati noted that s. 8(2) of the Federal Courts Act, combined with the constitutional requirement under s. 99(2) of the Constitution Act, prevents a superior court judge from sitting beyond age 75. He asked to adjourn the case until another judge was available to hear it.

The federal Justice Department has embraced the decision, however, maintaining in an e-mail to Law Times that the age limit in the Federal Courts Act doesn’t apply to deputy judges because they don’t hold office.

“Deputy judges act as judges of the Federal Court and are assigned cases on an ad hoc basis at the request of the chief justice,” wrote department spokeswoman Carole Saindon. “The chief justice’s ability to appoint deputy judges helps to ensure the effective and efficient functioning of the court.”

Barry Strayer, who was appointed a judge of the Federal Court of Appeal and as chief justice of the Court Martial Appeal Court of Canada in 1994, was named a Federal Court deputy judge in 2005. Now retired, Strayer told Law Times last August why he believes it’s best to allow deputy judges to hear matters beyond age 75.

“Lawyers and their clients are well served by having good, experienced people available to get their cases dealt with rather than waiting for a long time because there’s a shortage of judges,” he said. “I think it’s a valid system, and I’m not aware of any problems with it, and nobody for years has ever questioned it. Now we have a spate of these cases in question.”

Regardless, Galati expects the case to eventually wind up on the doorstep of Canada’s top court.

“Both sides have indicated they’re taking it as high as the Supreme Court,” he says. “It’s a really serious issue of the rule of law, constitutionalism, and whether or not judges are above the law.”

He remains perplexed by the chief justice’s logic as expressed in the decision.

“It’s just impossible to fathom the reasoning,” says Galati. “Basically, the chief justice is saying that deputy court judges are not really judges as defined, which begs the question, then what are they doing there?”

He goes on to suggest that if the deputy judges aren’t judges as defined, the Immigration and Refugee Protection Act requires that “a judge of the Federal Court determine applications under [it].”

But Galati suggests Lutfy’s ruling “summarily dismisses that argument without telling me why.”

And while the case has clear relevance to immigration law matters, Galati says the underlying issues hit at the heart of the administration of justice.

“If the law and the Constitution don’t apply to judges, how can judges apply the law and Constitution?” he asks.

  • Kathleen Moore
    [6] Therefore, perhaps Mr. Galati and others would kindly stop using the Badinter-Copenhagen standards as so-called "constitutional" principles of Canada, and get back to real constitutional interpretation.

    Kathleen Moore
    The Official Legal Challenge
    To North American Union
  • Kathleen Moore
    [5] The said jurisdiction is moreover void, and always has been. It violates, inter alia, the express and restrictive wording of s. 101 of the BNA Act of 1867 and the exclusive powers of the s. 96 courts and of the Provinces at s. 92.

    The 1998 "secession" reference is void on that count, and if the jurisdiction itself were not void, its bogus "principles" to secede of 1998 are void as non-existent and contrary to the legislative purpose and express prohibitions of the WRITTEN Constitution, most notably the specific enumeration of provincial powers and the deliberate distribution of the general residual power to the federal level, out of the reach of the provincial legislatures.
  • Kathleen Moore
    [4] The Clarity Act is therefore a bill by lawyers "passed" into federal law to use the Badinter-Copenhagen standards to "regulate" the provincial exercise of NON-EXISTENT POWERS with a view to dismantling the Canadian federation in the North American "region" for annexation into an EU-style regional continental union. In other words, it is a "federal law" purporting to regulate a series of provincial and territorial parliamentary and constitutional COUP D'ETATS. The Clarity Act is void on that ground as well as on many others.

    In addition, the Supreme Court judges are not judges when they sit in the s. 53 Special Reference jurisdiction; they are a gang of 9 politically connected lawyers doing the bidding of the Executive. Their opinions can have NO LEGAL EFFECT, notwithstanding the monstrosity that occurred in the Manitoba Language Rights Reference.
  • Kathleen Moore
    [3] The Secession board in 1998 was perpetrating treason in pretending to contrive a "procedure" and a so-called "duty to negotiate" the termination of Canada, all derived from the "political criteria" used to force the disintegration of Yugoslavia and form the basis of an ad-hoc EU "regional" "rule" of exception to international law for the purpose of recognizing secession from federations in the EU space.

    The EU has recently applied this "exception" to enforce the recognition of Montenegro and thus, depending on your point of view, the EU either merely completed the dissolution of the former SFRY or else it disintegrated the "newer" Serbian-Montenegrin federation.
  • Kathleen Moore
    [2] It is moreover clear from these Debates that the Constitutional distribution of powers in Canada was deliberately designed to be the opposite to that of the American Union precisely to prevent all pretense by the Provinces to exercise of American-style "States' rights" as an argument for a "power" to secede.

    Not only is the general residual power in Confederation denied to the Provinces, and conferred upon the central government which has no power to delegate powers to a province, but the limited residual power at s. 92 is for LOCAL purposes only and cannot be used to affect any other province or the whole of Canada. Secession would affect the other Provinces and all of Canada and is therefore radically extraterritorial.

    More precisely, the Canadian Provinces have LOCAL powers only under s. 92, to prevent their "secession" from Canada, which would land all the dismantled provinces with annexation to the USA.
  • Kathleen Moore
    [1] It is an absurdity for Mr. Galati to use the s. 53 Board's unsubstantiated "principles", or any combination of them, from the 1998 Secession Reference, in lieu of proper constitutional interpretation.

    These so-called "constitutional principles" of Canada are not "principles" at all. They are the Badinter Standards of 1991 used to secure international state recognition for UDI's by the (now former) Yugoslav Republics. The Badinter Standards were then adopted by the EU Presidency in 1993 under the new name "Copenhagen Criteria for the Admission of Candidate States to the European Union"; which latter entity applies them as POLITICAL criteria, not legal criteria.

    The Badinter-Copenhagen standards are not part of the Constitutional "law" of Canada, and were emphatically not the "principles" contemplated by the Founders in the Debates on Confederation in 1865 which are judicial evidence.
  • Stephen Scott\'s argument

    Jeff White
    Mr. Scott apparently overlooks the fact that s. 8(2) of the Federal Court Act says, "A judge shall cease to hold office on attaining the age of seventy-five years."

    The same Act provides for the appointment of deputy judges from among the judges of the superior, county or district courts. A deputy judge who attains the age of 75 years is constitutionally ineligible to be a judge of a provincial sperior court, Under s. 99 of the BNA Act, and is thus ineligible to sit as a deputy judge of the Federal Court.

    It is an absurdity to suggest that those appointed as Federal Court judges must retire at 75 but that deputy judges can continue to hear cases without any age limit at all.
  • Mr. Galati\'s argument

    Stephen Scott
    On a plain and natural reading, section 99 (2) of the Act of 1867 is restricted in its scope by s. 96 which precedes it, and which concerns appointments to PROVINCIAL superior, district and county courts. Section 99(2) therefore applies only to the superior courts of the provinces (not to the Federal Court of Canada, not to the Federal Court of Appeal, and not to the Supreme Court of Canada). His argument should properly be confined to the other pertinent provisions. I might add that his tone, if you quote him accurately, seems rather strident.
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