Judge asking court to rule in his favour

Ashley Fitzpatrick
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Claims province’s chief judge has attempted judicial gagging

A judge who spends his working days presiding over court cases in Labrador will be in St. John’s later this month seeking justice of his own, with a legal application aimed at the province’s chief judge.

Court documents obtained by The Telegram set out the case of judge William English, currently based in Happy Valley-Goose Bay.

In his application to the Supreme Court of Newfoundland and Labrador, filed on Aug. 28, 2012, the judge walks through a decision he made in provincial court in Happy Valley-Goose Bay a little more than a year earlier.

At that time, English ordered the release from custody of eight men being held on criminal charges, without a bail hearing or conditions on their movements, despite objections of the prosecutor.

According to the filing, the decision to forego the bail hearings was forced by a lack of available human and technical resources.

The order drew criticism, both publicly and internally, from Chief Judge Mark Pike, English claims.

As part of the fallout, according to the filing, “on 26 Aug. 2011, for no warranted or stated reason, the chief judge, by email ... ‘ordered’ [English] to ‘refrain from any comment from the bench or otherwise, in public or private, regarding the adequacy (or lack thereof) of judicial or court resources. This is the sole purview of the judicial and court administration.’”

In response, English is requesting the Supreme Court declare “the chief judge lacked, and lacks, statutory and inherent jurisdiction to make [the] directive; consequently, it is of no force or effect.”

English wants it stated the “directive” to remain silent infringes upon his independence as a judge, stands in the way of his living up to his responsibilities under the Provincial Court Act and attempts to deny him a fundamental freedom under the Canadian Charter of Rights and Freedoms.

Professional standing

English has stated he received an email from Pike Aug. 31, 2011, stating his “behaviour and actions” in court had been referred to the provincial judicial council — a professional review committee.

English has since sought to clarify what misstep Pike perceived in his 2011 decision, but to no avail.

The professional dispute has led English to write the minister of justice, seeking coverage under the province’s judicial indemnity policy.

The judge’s filing with the Supreme Court states that coverage was denied.  

On May 18, 2012, following the denial, English wrote again to Minister Felix Collins on the matter, but received no reply up to the point of his submitting statements to the Supreme Court.

According to his application, the judge wants to press both the minister and chief judge into appointing a retired Supreme Court justice to resolve the situation.

The root of the matter

The disagreement falls to the 2011 decision.

On Aug. 2, 2011, the eight men were in custody, having been arrested and charged with offences under the Criminal Code of Canada. They were due to appear before a judge for what is known as a “judicial interim release hearing” — more popularly known as a bail hearing.

The prosecutor was opposed to the release of any of the accused men prior to their trial date.

This meant each individual, or their lawyer, would have to show cause as to why they should be released. The judge would then make a decision on their release and any conditions to be applied.

At the time, there were no other judges available in Labrador to assist in the legal work. Since eight bail hearings is an unusually high number, this resulted in the start of a legal marathon.

According to English, even if a judge on the island had been available to assist him with the cases, only “one or two” prosecutors were available in Happy Valley-Goose Bay, only “one or two” defence lawyers were available and, if they could sign on, there was only one room at provincial court in Happy Valley-Goose Bay equipped to teleconference with other judges.

The filing also states only one translator was available to assist the eight accused men in understanding the charges against them and the legal proceedings. All of the accused were aboriginal, English’s filing notes state, although a first language is not specified.

“(The judge) was, when the accused first appeared before him for release hearings, responsible for substantial numbers of other criminal and quasi-criminal, and other, proceedings — some of them urgent proceedings — in addition to the release hearings for the accused,” it states.

Days passed with little progress. “Well at least if you work — if you sit longer and work harder I suppose if you went into the night (Aug. 5, 2011) and into tomorrow morning and Saturday and Sunday, we would get all of this done,” English said at the time, to the lawyers in front of him.

On Aug. 5, 2011, he heard arguments on the options for dealing with the situation. On Aug. 8, 2011 he ordered each of the men released on an undertaking with trial dates in hand.

His own application is set to be dealt with Sept. 26 at Supreme Court in St. John’s.

afitzpatrick@thetelegram.com

Organizations: Supreme Court, Canadian Charter

Geographic location: Happy Valley, Goose Bay, Newfoundland and Labrador Canada

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