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Kerfuffle erupts over age of deputy judges

|Written By Robert Todd

Constitutional controversy continues to swirl around the Federal Court of Canada after it was discovered that all but one of the court’s seven deputy judges have been sitting on cases despite being over the age of 75.

If the Constitution doesn’t apply to judges, who does it apply to? asks Rocco Galati.

At 75 mandatory retirement requirement should force superior court judges to retire.

The revelation caused disarray in the court. In Toronto two weeks ago, at least 11 hearings set to be heard by deputy judges were adjourned.

In Montreal, two of eight cases before deputy judges were in question following adjournment requests.

In three of those cases, counsel had announced intentions to proceed before a deputy judge despite the fact the judge was over age 75.

However, the status of those cases was in question also, as the Attorney General of Canada filed a letter requesting adjournments until a resolution to the jurisdictional question.

Toronto lawyer Rocco Galati set the controversy in motion with a letter in mid-August to Federal Court Chief Justice Allan Lutfy. In the letter, he said Deputy Justice Louis Tannenbaum, who is 77, has no jurisdiction to hear his client Luis Felipa’s case against the Ministry of Citizenship and Immigration.

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 requested the case be adjourned until a different judge, who is “statutorily and constitutionally vested with jurisdiction to preside,” is scheduled to take over.

In a July letter responding to similar questions from a Montreal case, the Federal Court’s chief administrator Raymond Guenette, outlined the court’s stance on the jurisdiction of six of its seven deputy judges, who are over 75 years old.

He said the Federal Court has relied on s. 10 of the Federal Courts Act to appoint deputy judges for over three decades.

He said the Federal Court is a statutory court constituted under s. 101 of the Constitution Act, and the appointment and tenure of its judges and deputy judges is governed by the Federal Courts Act, not by s. 96 and s. 99 of the Constitution Act.

The Federal Courts Act permits anyone serving or previously appointed as a superior court judge to act as a deputy judge of the Federal Court.

In 2008, the court’s deputy judges took on about five per cent of its overall workload - equivalent to the work of two full-time judges, according to the court.

The Justice Department declined a request for comment on the issue.

“Because these issues have arisen in the context of litigation that is currently before the courts, it would be inappropriate to comment,” the department said in a statement.

While preparing the case, Felipa v. Ministry of Citizenship and Immigration, Galati says he felt “disbelief” when he noticed Tannenbaum was over 75 while reading his biography on the court’s web site.

“You have to fully appreciate that, as lawyers, we’re not in the business or habit of asking judges for their ID,” he says. “I assumed that all the judges were under 75. I had no cause to think otherwise prior to this happening.”

The issue “starts, and is restricted to, and ends with the constitutional prohibition under s. 99(2) of the Constitution Act,” says Galati.

“If the Constitution doesn’t apply to judges, I don’t know who it applies to. For me, it’s a constitutional issue. I don’t care about the other issues. It’s not an issue of competence; it’s not an issue of the general philosophical notion of where and when we should set retirement age.

“The point is, the Constitution and Parliament has said it is 75, and unless there’s a Constitutional amendment to that, then it has to be respected like every other clear constitutional provision.”

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 deputy judge of the Federal Court in 2005. He has since retired, but says he heard two or three cases as a deputy judge beyond the age of 75.

Strayer suggests the questions about the legal age of the Federal Court judges are “very debatable,” and turn on “certain assumptions” made by Parliament.

“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,” says Strayer.

“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.”

Lutfy issued an order regarding the Felipa case in response to Galati’s letter. He set Aug. 31 as a deadline for the receipt of Felipa’s notice of motion on the jurisdictional question. He also called for any filing of a notice of constitutional question by Sept. 8.

The next hearing date in the Felipa case was set for Sept. 30, before Tannenbaum.

  • kerfuffle

    Please watch how long it takes to get this train back on the tracks. The train left the rails in August 2009, I believe. The people our society deems most knowledgeable about such matters, namely a courtful of sitting judges, are all close at hand and yet, has anyone knelt down to administer first aid? Has anyone taken a history or made a definitive diagnosis? Has anyone commenced anything resembling treatment? How long will a coterie of cases before the Federal Court of Canada lie paralysed on a gurney somewhere out in the middle of Wellington Street in Ottawa before our Federal Court takes these cases back into the courtroom for treatment? Will it be days? Weeks? Months? Or Years?
  • Competency

    The question raised by LLP is problematic in that there is no test for competency on a regular basis. A Judge (by his words or actions) has to PROVE himself to be incompetent before he is removed from the bench.
    a) Historically, how often has that happened?
    b) How many case are determined by a less than competent judge prior to his being declared incompetent?
    c) How many case are determined in error that is not reversible on appeal by a less than competent judge?
    d) Judges are presumed to be competent until they are recalled or retired.
    The Constitution should dictate the outcome of this argument. Sorry judges, but 75 is old enough - enjoy your well earned retirement.
    Lastly LLP, who else but a lawyer would check that one of our highest courts is following the Constitution of our country? Obviously, no one else identified this problem previously.
  • competency

    Nomad's comments are fair, but I think that if we have the ability to ensure lawyer's competencies then perhaps we can extend that to our judges? And if judges have a mandatory retirement age, then why not legal counsel? I see many in my area who die at the desk, almost literally and some are at less than their best. You would think that the public would hold them accountable but I can honestly say that, for the most part, they do not.

    In any case, I would think that we as lawyer's can be a watchdog of our judiciary as well as our constitution. Our law societies might be able to help out here.

    Frankly, my main point is that 75 as a mandatory retirement age seems arbitrary, no matter the field you are in and in this case, it is not clear that the constitution does govern the outcome. If wisdom comes with age then we may be discriminating against many of our more qualified judges.
  • how stupid is this

    Leave it to a lawyer to cause this much expense and controversy in order to stall a hearing for his client. What other reason does he have? His love of the Constitution? Perhaps. Maybe there needs to be a Charter argument that if the constitution does apply that it is discriminatory and not saved by section 1. Competency should be the issue, not age. For heaven's sake, what year are we living in???
  • Guest
    Here is a twist on the 75 retirement age.
  • Furfuffle

    Jacques Berthiaume
    I wouldn't vote to elect a 77 year old prime minister; Why should we have to plead before judges who are? The fact that some may be able to preside a trial, even at that age, does not justify the practise. It is the expression of a serious disregard to the citizens of this country and their right to justice. If the FC needs fresh jusges, they should be appointed - period.

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