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Judicial Freelancing

  • December 22, 2016
  • Clayton Rice, Q.C.

Detective Moe Banga of the Edmonton Police Service was investigating complaints from individuals who said they received telephone calls from a scammer identifying himself as an employee of the Canada Revenue Agency, the Canadian Security Intelligence Service, or Citizenship and Immigration Canada. The investigation led to an application for a search warrant with an unexpected ricochet. But first, here’s how the scam worked.

The telephone calls had a theme. The complainants were told they had violated the law and had to pay fines or back taxes. They were instructed to purchase pre-paid PayPower Reload packs. Each pack had a ten digit number on the back. The number was obscured by a coating, that could be scratched off, to reveal the number to be used for electronically loading funds onto a PayPower prepaid Visa card. The Visa card could be purchased at retail outlets and activated by calling a 1-800 number. The Visa card could then be used for purchases, money transfers and automated teller withdrawals. Many of the complainants were vulnerable – new immigrants or people who lacked an understanding of how government agencies in Canada would normally request payments.

The police believed that Blackhawk Network, located in the United States, was the distributor of the PayPower Reload packs and Visa cards. The investigators contacted Blackhawk and were told that the PayPower Visa accounts, where the complainants’ money was deposited, were in Canada under the management of its Ontario agent All Trans Financial Services Credit Union Ltd.

Det. Banga applied for a search warrant to get information about the accounts. A Provincial Court judge rejected the application because Det. Banga should have applied for a production order. Det. Banga then made two separate applications for a production order which were also rejected. The judge concluded that most of the information should have been requested under s. 487.018 of the Criminal Code and not s. 487.014. A dispute thus arose regarding the construction of the two provisions.

The Attorney General of Alberta brought an ex parte application for certiorari and mandamus to quash the judge’s decision and compel issuance of a production order. On November 23, 2015, Justice D.C. Read of the Court of Queen’s Bench of Alberta granted the application in a ruling reported as Alberta (Attorney General) v Alberta (Provincial Court), 2015 ABQB 728 and directed that the judge issue a production order under s. 487.014. Justice Read summarized the substantive dispute this way, at para. 56:

“[T[he judge ruled that only account numbers and the deposit account histories or summaries were producible under s. 487.014. He held that the police would first have to obtain the account numbers into which proceeds were advanced. They must then use that information to seek a separate order under s. 487.018 for the name of the person whose account number is identified, the type of the account, the date upon which the account was opened or closed, the birthdate of the named person, their current address, and any previous address. It was his view that the request for the account holder’s telephone number(s), employment information and identification provided when the account was opened went beyond the list of financial data available under s. 487.018 and may be sought only under s. 487.014.”

Then, in an unusual twist, the Provincial Court judge appealed from the superior court ruling which brings me to the point here. On December 12, 2016, the Alberta Court of Appeal released the per curiam opinion of Chief Justice Catherine A. Fraser, and Justices Jack Watson and Sheila J. Greckol, reported as Alberta (Attorney General) v Alberta (Provincial Court), 2016 ABCA 396 holding that the Provincial Court judge did not have standing to appeal. The panel framed the question this way, at para. 7: “[T]he decisive question here is whether the judge can appeal to this court on his own behalf to debate the accuracy in law of his own decision or to challenge the accuracy in law of the decision of the superior court. He has purported to do both. This involved a jurisdictional issue, namely whether the judge has standing, whether private or public interest, to appeal the decision.”

The panel concluded that there was no lis that conferred standing in respect of the judge’s objection to the ex parte manner in which the production order request and the Crown’s application for prerogative relief proceeded. The refusal to grant the production order was properly subject to certiorari and mandamus and the Provincial Court judge lacked private interest standing. Nor did he satisfy the test for public interest standing.

1. General

The doctrine of standing is the test used to determine who is entitled to bring a case to court. It includes who can appeal a decision. Standing is grounded in either (a) a personal interest where one’s rights have been or are likely to be affected or (b) a public interest where the person who claims standing represents a larger class of individuals intent on raising a matter of public importance. (See: e.g., Canada v Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524 per Cromwell J., at para. 22)

2. Private Interest Standing

Counsel for the Provincial Court judge argued that the proceedings were more in the nature of civil than criminal. It was, however, indisputable that the judge had been asked to issue a production order under the Code and the panel gave this argument fairly short shrift, at paras. 22-3:

“The judge here was proceeding only under Part XV of the Code. He had no other jurisdiction to exercise, nor was any given to him by any other source. He was not a trial judge. He and his court do not have inherent jurisdiction as does a superior court judge under s. 96 of the Constitution Act, 1867. Provincial Court judges exercise purely statutory functions under the criminal law, such as the conduct of preliminary inquiries. Where the Provincial Court judge transcends the jurisdictional boundaries of such a function, the decision is subject to review by certiorari for lack of jurisdiction. But in such event, the application of certiorari and mandamus is still criminal, not civil, law.

The critical point is this. The decision that the judge purports to appeal relates entirely to a criminal matter. It has no implications for the judge in any personal capacity. A judge, imbued with the power to preside in court, makes decisions as a member of the judiciary, acting in an institutional role rather than a personal one. Indeed, that is the basis on which the judge has argued his standing to appeal the decision.”

3. Public Interest Standing

The courts in Canada consider three factors when public interest standing is asserted (a) whether a serious justiciable issue is raised (b) whether the party claiming standing has a genuine interest in it and (c) whether there is another reasonable and effective way to bring the issue before the court. (See: e.g., Downtown Eastside, per Cromwell J., at para. 37) The panel held that the judge failed to establish the basis for public interest standing, at paras. 52-7, that I will condense as follows:

“The judge holds no real stake or a genuine interest in this case within the meaning of the law of standing. As far as the application of the criminal law is concerned, an individual judge is an incumbent of a judicial office representing a court. It is the court which has been given jurisdiction by Parliament in this context. An individual judge is not a proprietor of either the law or jurisdiction.

The way chosen by the judge is neither reasonable nor effective to bring disputes before the courts about the legality of the orders in the decision, the correct interpretation of s. 487.014 of the Code [or] the application of the prerogative writs to the Provincial Court. The reality is this. The judge’s intervention here is on an interlocutory basis. But interlocutory criminal appeals have been considered undesirable for all of the 34 years of the Charter era as well as generations before. Further, the judge does not, and cannot, represent any of the parties potentially affected by the production order which the decision has directed the judge to issue.

Were the judge able to appeal the decision, he would be doing so in interlocutory proceedings with no actual parties involved and no complete record before the court. The latter is undesirable in its own right. It should be remembered that legal issues with policy dimensions can involve an enormous record. A full fact-finding context is appropriate to decide legal issues that are unsettled, complex or intertwined with facts. There are profound implications in the judge’s proposed arguments. None of the issues in dispute warrant either an interlocutory appeal or some sort of summary process without a record.

Further, the proposed appeal would serve no useful purpose. To start with, it is oblivious to the fact that the acquisition of evidence by the police may, in the end, lead to prosecution. In that event, the product of that investigation will be subject to Crown disclosure, and thus, the accused person against whom such evidence is offered will have the ability to challenge its admissibility at trial.”

3. Conclusion

Although the appeal was dismissed for want of standing, the panel went on to consider the policy reasons against judicial freelancing and observed, at para. 64, that the court “is not an open line radio program where anyone can dial in to express an opinion and try to convince the court the caller is correct, much less a judge intent on defending his or her own decision.” The potential for expansion of reasons of judgment, the risk of apprehension of bias, the doctrine of stare decisis and public confidence in the rule of law are sound policy arguments underpinning the result. The panel said this about the rule of law, at para. 70:

“The impartiality of judges is an essential feature of judicial independence and the rule of law. It is true that judges sometimes make law. But in doing so, judges have no personal stake in defending the judgments they render. Judicial independence (which exists to protect the public, not the judge) does not confer on judges a personal right of appeal in defence of decisions made. Judicial independence not only protects against hands trembling, it also protects against judicial hands pressing on the appeal scales. Giving judges the right to appeal decisions overruling them would undermine public confidence in judicial independence and ultimately the rule of law.”

It is hard to quibble with that.

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