BenchPress--Vol 40-4.

• Author: Mitchell, Teresa

Gonzo Language!

The Federal Court of Appeal used some unusually strong language in a recent judgment about a claim for costs. The claim was made by the two lawyers who successfully challenged the appointment of Judge Marc Nadon to the Supreme Court of Canada. Together, the two lawyers asked for almost $70,000 in costs. The lead lawyer based his claim on an hourly rate of $800.00. The Federal Court awarded the two about $5,000 and they appealed that decision. The Federal Court of Appeal found the lawyer's claims to be excessive and misguided. The Appeal Court was particularly offended by a submission by the lawyers that because the judges are paid by the government, that they were not impartial. Justice Pelletier wrote:

"I do not understand how one could hope to protect the right to a fair and independent judiciary by accusing courts of colluding with the government if they don't give the applicant its solicitor-client costs....This is reminiscent of the gonzo logic of the Vietnam War in which entire villages had to be destroyed in order to save them from the enemy." In a separate comment, Justice Stratas wrote: "An officer of the court should never make such a submission."

Galati v. Harper 2016 FCA 39 (CanLII) http://www.canlii.org/en/ca/fca/doc/2016/2016fca39/2016fca39.html Representative Juries

The Court of Queen's Bench of Alberta has ruled that the provincial Jury Act may exclude people convicted or charged with criminal acts from serving on juries. The Act was challenged by an Aboriginal man when his lawyer drew the judge's attention to the fact that no one in the pool of potential jurors for his client's trial appeared to be Aboriginal. The accused argued that Aboriginal persons form a disproportionate percentage of the criminally accused relative to the general population, thereby violating his Charter right to a representative jury. However, Justice Brian Burrows of the Alberta Court of Queen's Bench ruled that the exclusion of accused and criminally convicted persons was reasonable and acceptable because "a person who has been convicted of a crime, or is currently charged with a crime, is prima facie likely not to be impartial as between the Crown and the accused in a criminal proceeding." The Court found that the exclusion does not become unreasonable even when its effect is to exclude a proportionally greater number of Aboriginal persons relative to persons of any other ethnic origin.

R. v Newborn 2016 ABQB 13 (CanLII)...