Judging the judge, again

Also read: J. Leask: Questions of perspicacity and impartiality

B.C. Appeal Court overturns cocaine conspiracy acquittal…, Neal Hall, Vancouver Sun, Jan. 10, 2012:

“VANCOUVER — A three-judge panel of the B.C. Court of Appeal has overturned the acquittal of four men accused of a cocaine trafficking conspiracy and has ordered a new trial.

“The appeal panel found the trial judge made legal errors in ruling against the validity of a wiretap authorization…”

I don’t recommend Appeal Court judgments for recreational reading but source documents always reveal more than a reporter’s abstract. And, while Neal Hall relates something of the criminal cases involved, he ignores the written assault on Justice Peter Leask by three Appeal Court judges. I’ve extracted parts of the Reasons for Judgment of the Honourable Mr. Justice Hall dated January 10 and show those below. This is certainly not Leask’s first reversal in drug prosecutions.

For some time, observers have questioned Peter Leask’s suitability to preside in the Supreme Court of British Columbia. Sagacity is an issue that legal colleagues and media prefer not raise. Salacious behaviour in public would not escape comment but competence is more obscure. Many Canadians believe that judges lack accountability and Leask’s continued presence on the bench may offer proof. However, the country’s top judicial officer, Supreme Court Chief Justice Beverley McLachlan, says today’s judges are subject to sanctions:

“They are accountable to the Canadian public and there are numerous mechanisms in place that ensure their accountability, while respecting the need judicial independence.”

McLachlan admits people sense that judges have assumed that they were above scrutiny. She says that belief has lost currency and offers these mechanisms as proof of accountability:

  1. the sanction of removal;
  2. the built-in accountability of our open court processes;
  3. public and peer review; and
  4. the principle of deference developed as a protection against uncontrolled judicial power.

I won’t bother to argue that McLachlan’s self-serving statements are fatuous but that argument might be made by the fact that not one superior court judge has been removed from office. The Canadian Superior Courts Judges Association claims five have been recommended for removal since 1867 although the Toronto Star reports the Canadian Judicial Council has only twice recommended to the federal justice minister that a sitting judge be removed from office. In those cases, the judges resigned under pressure.

I invite readers to look at Justice Hall’s reasons for judgement on this crown appeal. These criticisms of trial judge Peter Leask speak for themselves.

[17] …that process may have contributed to what I see as some fundamental misapprehensions that the learned trial judge appears to have manifested…

[24] …any reliance by the trial judge on the Lee case was misplaced in view of its very different factual setting.

[31] …The Court found that the trial judge in that case had fundamentally misconceived his function on the review process. With respect, I consider that the trial judge in the present case fell into the same legal error.

[32] I must say it is not particularly apparent to me why it was thought necessary to enter upon a voir dire at all in regard to P83…

[34] The trial judge was critical of the investigators for not recording in detail their interview of Eakman on October 30, 2003. However, in para. 17 of the affidavit to obtain a wiretap authorization, the essence of what Eakman had to say about his knowledge of and dealings with Della Penna is set forth in considerable detail. I do not know if the judge was suggesting that a record of the interview ought to have been placed before the authorizing judge, but if so, such a suggestion seems to me to be out of accord with reality… The trial judge also appears to have felt it might have been relevant to know what was happening to Eakman during the period in 2002-03 when he was not in contact with Della Penna. It is not apparent to me that information about this period could have had any possible relevance to the authorizing judge…

[35] The above provides a specific example of the judge erroneously importing a trial-type of analysis into the review proceeding. The use of this inapt form of analysis further appears to have led to an unfortunate result. From his catalogue of supposed deficiencies in the information package placed before the authorizing judge, the trial judge seems to have garnered the belief that investigators either had something to hide or wished to hide something from the judge. However, given the dimensions of the investigation in furtherance of which the authorization was sought, the material placed before the authorizing judge did disclose quite a full picture of the relevant background.

[36] The trial judge also seemed to suggest that including in the affidavit material some of the history of the target, Della Penna, and the proposed RCMP operations plan was somehow unfair to Della Penna. He said:

[20] Clearly, the allegations of Della Penna’s alleged past criminal activity were highly prejudicial and entirely lacking in probative value. The proper course of action for the affiant would have been to expand his summary of the strategy of the investigation and not to have appended the Operations Plan. At a minimum, it is necessary for me to excise pages 3 to 5 of the Operations Plan.

[37] I should have thought that the inclusion of such information would be useful both in providing some indication to the authorizing judge that the affiant’s belief was credibly based and affording a view of what was proposed as an operating plan. I consider the criticisms of the judge on this subject not well founded and a further manifestation of the importation of a trial-type analysis into the review proceeding.

[39] The trial judge’s discussion of voice identification suffers from the same flaw in analysis that is present throughout his reasons for decision…

[40] …The trial judge’s reference to the case of Dynar and the law of conspiracy had little relevance to any issue properly arising for consideration on the review. Conspiracy was not the only listed criminal activity in contemplation.

[41] The trial judge’s discussion of the “jailhouse informant” cases is again of doubtful relevance and applicability in the context of the review proceeding in this case…

[48] The trial judge held that the telephone communication was intercepted in violation of the rights of the respondent Della Penna. In para. 35 of his reasons for decision he said, “I find that Mr. Della Penna’s s. 8 Charter rights were violated by the interception of this call. For that reason, I excise paragraph 18 of the affidavit”. In my respectful view, this aspect of the trial judge’s decision cannot be reconciled with the clear law enunciated by the Supreme Court of Canada in cases such as Hape, R. v. Terry, [1996] 2 S.C.R. 207, and Dynar, among others. I find that this aspect of the ruling discloses an error of law that vitiates the decision to exclude the impugned evidence, which should have been ruled admissible.

[51] …I consider that the reasons for decision of the trial judge demonstrate that he misapprehended the nature of the review process. Although he referred to relevant binding precedent, I do not consider that he correctly applied the legal principles arising therefrom. …

[53] I consider that it can fairly be said that the trial judge’s erroneous apprehension of matters pertaining to P83 doubtless carried through to the later analysis of matters pertaining to successive authorizations. Because of this, I consider it highly likely that, had the correct approach been adopted on review of the subsequent authorizations, many of the findings of the judge would have been quite different. Among other findings, I consider it likely that, if he had approached the review process in a manner consistent with Pires, the trial judge’s views on the credibility of witnesses might have been very different. I have pointed out how erroneous views on the scope of information required seems to have produced an unfortunate effect on the judge’s view of the credibility of the affiant on P83.

[55] It was suggested in argument, particularly by counsel for the respondent Della Penna, that this might be an appropriate case in which to refer the matter back to the trial judge for reconsideration. However, having carefully considered this submission, I do not find this course of action to be prudent in light of the many factual findings made by the judge. I think it much preferable to simply order a new trial, and I would so order.

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7 replies »

  1. Could we order a new trial … or a trial … for certain key individuals in the corrupt sale of BC Rail?

    If the current and still-the-same government continues to refuse all attempts to (a) hold a trial, or (b) launch a Public Inquiry into the semi-secret sale of a massive public asset like BC Rail, then why not a new trial … or a trial?



  2. Funny, I was thinking of Justice Anne MacKenzie too!

    Leask and his rulings make me wonder if he isn't installed to perpetuate the organised crime ring with a revolving door?

    Who appointed Leask?


  3. The Appeal Court's language is polite in the extreme but the words slap hard at the trial judge. This is not the first time that Leask has been taken to task for his judicial work involving drug dealers and HA bikers. Why doesn't Mulgrew, Hall or any Sun writer bring up this impolite subject?


  4. Pretty much any and all appeals decisions are very similar to this one. There is nothing in the random quotes that shows he was an awful trial judge. It is very normal for judges to make mistakes – that is what the appeals court is for. It is normal for the appeals court to make mistakes too – that is what the supreme court is for!

    You can't get mad at the judge for the prosecuting failing to prove beyond a reasonable doubt that the accused is guilty. The prosecutions job is to ensure there is no reasonable doubt, the defenses job is to inject that tiny bit of doubt. The defense won – they showed that there might have been some doubt as to what the accused knew about and what he didn't know about.


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