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