Lawyer says judicial appointments process unfair

WINDSOR — Criminal lawyer Greg Goulin has gone publicwith his concerns about the province's Judicial Appointments AdvisoryCommittee. He charges that the way he was interviewed for a judicialappointment before the committee was "unfair" and that its process generallybodes ill for those seeking appointments to the bench and could even harm theadministration of justice.

Goulin said immediately following his interview in June that he had "grave concerns" about the line of questioning he was subjected to by one committee member. "I voiced them informally," he told a Windsor, Ont., press conference. "You're always concerned about destroying the process."

But when Attorney General Michael Bryant announced Sept. 22 that he had appointed local Crown attorney Lloyd Dean — who had been short-listed with Goulin for a position on the provincial bench — Goulin said, "now is the time to raise concerns." He fired off a letter to the attorney general as well as appointments committee chair Justice Timothy Culver, regional senior justice in Hamilton, claiming the interviewing process was "out-of-line."

Goulin emphasized he had no argument with Dean's appointment, and in fact said Dean would make "an excellent judge." But, he added, "it's the process of this particular committee that's called into question."

The committee, which was formally established in 1995 under the Courts of Justice Act, has 13 members, seven of whom are lay appointees. The other six are divided evenly between the bench and the bar.

Goulin specifically took exception to the questioning of lay committee member Gail Stiffler of Kingsville, Ont., near Windsor, charging she had a "conflict of interest." Goulin said this happened when Stiffler began questioning him about a high-profile case of his earlier this year and stating at the outset she was familiar with parties in the case.

Goulin said at this point the committee chair should have stopped proceedings and "shut [questioning] down immediately." But Stiffler was allowed to continue and "proceeded like a cross-examination," about his defence of client Kevin Stiers, convicted of first-degree murder in the stabbing death of Glen Ivancic.

Goulin said Stiffler then raised concerns about Goulin's questioning during a sentencing hearing of the definition of a victim for the purposes of who may file a victim impact statement. Goulin said she was repeating a popular misunderstanding, based on an erroneous newspaper report, of a point he had made during the hearing, which led to much criticism of him publicly, including editorially in The Windsor Star.

He said he had been blamed for criticizing victim impact statements of "family and friends." But in fact he questioned a changed Criminal Code section, which effectively included as victims "family of friends," suggesting it is too broad a category.

Goulin called Stiffler's questioning "inappropriate" and said she should have been limited to questioning about "the role of victims" generally instead of delving into a particular case. But he said the questioning has wider ramifications, not least of which may be bringing the administration of justice into disrepute.

For one thing, he said, the Stiers' verdict is under appeal, and in his letter to Bryant and Culver, he stated that the discussion of such cases is therefore "poor form for several very good and basic reasons."

Moreover, he said, Stiffler's questioning as to "why I did certain things" in his defence of Stiers interferes with solicitor-client privilege. Finally, he said her questioning could interfere with his client's right to a fair trial.

Goulin said he decided to go public on Oct. 3, after not getting a response from Bryant. He said he decided to launch the protest after consulting members of the bar across the province. He acknowledged his protest might be viewed as "sour grapes" because he did not win the appointment "and if people choose to interpret it that way, that's fine."

But he said he has been practising law almost 30 years, is one of only 87 provincial lawyers certified as a specialist in criminal law, and this year received the Law Society Medal. He has also been president of the Essex Law Association and a member of the Canadian Bar Association's national ethics and professional issues committee.

Goulin had a warning for others who may apply for a judicial appointment.

"There's a chill that goes out when this is done among the legal profession," he said, "a distinct chill that says, 'If you want to apply to become a judge, be very careful who you represent and how you represent them.'"

Stiffler, for her part, said she couldn't comment directly, but added, "There is nothing to criticize about the judicial process in Canada." She said the committee process is a "wonderful, fair process" of which Ontarians "should be proud."

Culver told Law Times he cannot respond to the criticisms because of Goulin's comments regarding the lack of due process for his client "and any motions that he would bring in that regard would of necessity involve the committee in the litigation process."

The committee's Policies and Process Article Four states that committee members "who have a conflict or a perceived conflict in the nature of a potential bias or prejudice in regard to a candidate must declare such conflict and refrain from taking part in the entire process for the vacancy for which the candidate has applied."

Toronto lawyer Bill Trudell, who served five years on the committee, defended its process as a "great balance" between public scrutiny and the old way of appointments made directly by the attorney general's office. He said the committee is "renowned worldwide for its apolitical nature and especially for [its] confidentiality."

He also suggested Goulin, who he respects, had the option of not answering questions put to him.

Committee counsel Paul Stern said confidentiality ensures, "full candour within an atmosphere of mutual courtesy and respect" and that candidates "may be asked wide-ranging questions and are invited to respond as they wish."

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