The headline from Blacklock’s Reporter, an Ottawa political newspaper, reads “Lametti Cited For Meddling: “Intolerable” Says Fed Judge.” After reading the Federal court decision, I call it an accurate assessment, albeit a  restrained one.

Justice Minister David Lametti’s time limits provision, as written in Bill C-17, An Act respecting additional COVID-19 measures, would allow the Justice Department to “unilaterally interfere” in legal proceedings. Not only is this a really bad idea, it’s also not legal.

The ruling against Minister Lametti comes in Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19) (CA), released on September 3, 2020, by Federal Court Chief Justice Marc Noël.

Lametti’s Justice Department interference “is incorrect in law and should not be followed,” Justice Marc Noel wrote.

At issue is Minister Lametti’s attempt to dictate the amount of time judges will be “permitted” to hear a case. This ministerial edict was included in Part 2 of Bill C-17, An Act respecting additional COVID-19 measures.

Part 2 enacts the Time Limits and Other Periods Act (COVID-19), which addresses the need for flexibility in relation to certain time limits and other periods that are established by or under Acts of Parliament and that are difficult or impossible to meet as a result of the exceptional circumstances produced by COVID-19. In particular, the enactment

Federal Court Chief Justice Marc Noël ruled, correctly I believe, that David Lametti’s directive causes far more problems than it purports to solve.

For example:

• What is the meaning of “under an Act of Parliament” in section 6?
• Does it extend to the time limits under the Rules or under judgments, orders and directions that have been made by the Court?
• Does it extend to the Practice Directions made by this Court and, specifically, the lifting of the suspensions of the time periods under Rules, orders and directions made in accordance with the Practice Direction dated June 11, 2020?
• Was Parliament’s purpose to interfere with the Federal Courts Rules passed under the explicit, special and separate procedure in section 46 of the Federal Courts Act?
• Was its purpose to invalidate and alter the time limits set in all judgments, orders, directions, Practice Directions and Registry actions such as lifting the suspensions of time and allowing certain proceedings to progress under earlier Practice Directions?

“These questions must be answered in the negative,” writes Chief Justice Noël. “Were it otherwise, confusion and potential harm—surely not desired by Parliament—would result.”

[19]  Beyond this, construing section 6 as allowing Parliament to unilaterally interfere with the management and governance of ongoing proceedings would invade a core judicial function—an especially intolerable invasion given the presence of the Attorney General’s Deputy as counsel and other parties related to the Government of Canada in the majority of proceedings before this Court…

[20]  Another important contextual consideration is that Court orders or directions, when made, are law until set aside. That rule is absolute: orders and directions have full legal effect unless they are specifically amended, ousted or invalidated by later specific court order or direction or by specific legislation (assuming such legislation is constitutional). Section 6 does not provide for a specific ouster, amendment or invalidation of court orders or orders in council that have already been made.

If allowed to stand, this section of Bill C-17 would ultimately benefit only the Department of Justice, a situation Chief Justice Noël found was repugnant to the concept of justice.

What are your thoughts? Please let me know in the comments section below.

Selected Excerpts from Federal Court Chief Justice Marc Noël’s Decision:

[1]  In a letter dated September 1, 2020, the Attorney General of Canada has communicated to this Court, through the Canadian Judicial Council, its position concerning the meaning and application of section 6 of the Time Limits and Other Periods Act (COVID-19), enacted by An Act Respecting Further COVID-19 Measures, S.C. 2020, c. 11, s. 11. As more fully explained below, this requires an immediate response as the Attorney General’s position contradicts the premise on which the Court has been managing ongoing matters since the beginning of the pandemic and creates intolerable uncertainty.

[…]

[7] This Court has the power to provide directions under Rule 54 in response to a party’s unilaterally asserted position: see, e.g., SNC-Lavalin Group Inc. v. Canada (Public Prosecution Service), 2019 FCA 108. This Court also has the jurisdiction to do so under its plenary power to regulate and address any threat to its practices and proceedings: Fabrikant v. The Queen, 2018 FCA 224 and cases cited therein.

[8] The issuance of a direction under Rule 54 and pursuant to the Court’s plenary power is required in this case. Many judgments, orders and directions of this Court have set time limits. The Attorney General’s position, if correct, would reverse them.

[…]

[10] The uncertainty and confusion created by the position taken by the Attorney General affects the core administration of matters that come before the Court and many of its decisions. In order to clarify the situation for the benefit of all parties, the issuance of a direction under Rule 54 and supporting reasons are required.

[11] The Court directs that the Attorney General’s position concerning the interpretation and effect of section 6, in so far as it extends to the time limits under the Rules and orders made thereunder, is incorrect in law and should not be followed. The Federal Courts Rules, S.O.R./98-106 and this Court’s Practice Directions, judgments, orders and directions remain in full force and effect.