Judges Too Old to Rule, Lawyers Say

By Jill Colvin and Jennifer Yang, The Globe and Mail

August 20, 2009

Canada

Legitimacy of six deputy judges questioned over act that requires retirement at age 75

The Federal Court system was thrown into disarray this week, after a group of lawyers called into question the legitimacy of all but one of its seven deputy judges, saying they are too old for the bench.

Nearly a dozen immigration hearings were adjourned as a result of the controversy that some lawyers say could call into question a number of the court's decisions.

Under the Constitution Act, all superior court judges must retire at 75. The act also permits the appointment of deputy judges. The Federal Courts Act, however, states that "any" sitting or retired superior, county or district court judge may be appointed as a deputy. The Federal Court has interpreted this to include judges past the mandatory retirement age.

Indeed, six of the seven are over the limit; two were appointed just days after their 75th birthdays.

The apparent constitutional contradiction has existed for more than 30 years. But it took a Toronto lawyer with a scrupulous eye for detail to spot that something was amiss.

Rocco Galati was preparing for a case when he noticed his presiding deputy judge - the Honourable Louis Tannenbaum - was born July 8, 1932, making him 77.

"I had no idea there were judges above the age of 75," he said incredulously.

Mr. Galati filed a letter with the court Sunday arguing that, because of his age, Judge Tannenbaum does not have the jurisdiction to rule. He also requested that two immigration cases he was scheduled to argue Tuesday be adjourned, which the court later granted.

William MacKay, 80, one of the deputy judges, said he wondered whether anyone would ever spot the contradiction.

"I speculated that somebody some day was going to raise the question," he said.

Mr. Galati's letter has sent a jolt through the legal community, with many lawyers wondering how they've overlooked the technicality for so long.

Other lawyers have also joined the fight, forcing the court to adjourn at least eleven other cases, including a judicial review for U.S. war resister Dean Walcott, whose been fighting to stay in Canada on humanitarian and compassionate grounds.

Toronto lawyer Jeffrey Goldman was supposed to argue a case Tuesday in front of Deputy Judge Orville Frenette, 82. Instead, he chose to have his case adjourned because he saw no point arguing before someone who "by the end of the day, might not be a judge."

He said Mr. Galati's case could have far-reaching ramifications, potentially calling into question all of the deputy judges' previous decisions.

University of Ottawa law professor Adam Dodek said the provision allowing for older deputy judges is murky.

Even if it holds up in law, he said, "It surely goes against ... the spirit, if not the letter, of the Constitution."

Deputy judges have all the powers of other federal judges but work on a part-time, per-case basis. Their role has increased dramatically in recent years, with seven deputies now serving, up from just one in 2005.

Toronto immigration lawyer Barbara Jackman said that on two occasions, she was worried the deputy hearing her case "was past his time."

"It's like driving," she said. "It's difficult for people to recognize when it's time to stop."

Yesterday, Chief Justice Allan Lutfy issued an order for the court to rule on the issue next month. Notably, he assigned Deputy Judge Tannenbaum to hear the case.

In the meantime, deputy judges will still preside over non-adjourned cases, according to a media contact to the court.

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