Who is George J. Gaschler, Q.C.?
According to the Alberta Government website Mr. Gaschler, Q.C. is Calgary’s newly minted Provincial Court, Criminal Division gavel slinger, who will, after a brief stint of shadowing Judges, such as prolific jurist Judge Allan Fradsham, will be delivering his brand of justice to those responsible for the much publicized plague of crime on Calgary’s City streets. At the outset, let me be clear, this article is not saying that Mr. Gaschler, Q.C. will not be, as Justice Minister Alison Redford stated in her July 30th, 2008 news release, an “outstanding individual”[1], nor am I claiming that he will not be a fair minded, legally oriented judge, interested in ensuring that real justice is done on a quotidian basis. Rather, my difficulty is that aside from the rather brief resume highlighted on the Alberta Government’s Website, I know absolutely nothing about George J. Gaschler, Q.C.. More importantly, as a citizen interested in being informed on issues in criminal justice, I was never apprised that Mr. Gaschler, Q.C. was even on a short list of potential candidates. Not surprisingly, as a citizen, I was never given an opportunity to be educated on such important decisions by our Alberta Government, nor was I ever offered an opportunity to contribute to dialogue on important issues such as who will sit in judgment of citizens of this Province.
Now, perhaps some readers will think, “pray-tell, why does a virtual nobody such as David Chow need to know”? Well, it seems to me that in a so-called democracy the views of the citizenry are important; and in my view, springing important appointments, such as who will be a judge, on an unsuspecting populace is far from a democratic, fair or right minded process. So back to my original question: who is George J. Gaschler, Q.C.?
I decided to do a little research.
The Alberta Government Website advises that Mr. Gaschler, Q.C. spent much of his career practicing law in Fort Macleod, Alberta in the area of land expropriation, irrigation and civil litigation. He was also counsel for the Lethbridge Police Association, was an ad hoc prosecutor in Lethbridge and spent three years prosecuting by-law infractions for the City of Calgary. Interestingly, this is just about the only information available on Calgary’s newest judicial appointment. The same information is essentially posted on the City of Calgary Website[2], and is again plagiarized on a website titled “nationtalk.ca”[3]. Now, don’t let the title of the website fool you, for there was no talk about the judicial appointment on “Nationtalk”. In fact, the post on Nationtalk happened after the appointment already occurred. No debate. No discussion. No dialogue.
Despite the resume, a question remains: why George J. Gaschler, Q.C. as Provincial Court Judge?
In my view the answer is not really gleaned by merely reviewing Mr. Gaschler Q.C.’s resume. That he has many long of years of service, or that he is Queen’s Counsel or that he toiled as Appellate Counsel in the early to mid-1980’s in cases such as R. v. Hruby, [1980] A.J. No. 574 (Alta. C.A.) and R. v. Vermeer, [1985] A.J. No. 429 (Alta. C.A.) is of little assistance. . Like many possible candidates, there is little question that his long years of dedication to the Alberta Bar make him a solid candidate. In my mind, the genuine answer to the question, why George Gaschler, Q.C. for Provincial Court Judge comes not so much from his resume, but from his views and insight into issues of Constitutional law and criminal justice. For example, what is his view on the Canadian Charter of Rights and Freedoms? What does Mr. Gaschler, Q.C. think of the seemingly never-ending proliferation of media reports telling the citizenry that Alberta’s principled, hard working judges are gutless purveyors of a catch-and-release system of justice? Does newly minted Judge Gaschler, Q.C. understand the principles of bail? Does he appreciate the presumption of innocence? How would Mr. Gaschler, Q.C. handle everyday dilemmas in criminal justice, such as excluding evidence that will ultimately lead to the exoneration of the accused knowing full well that the individual is probably guilty? Unfortunately, no such information is readily forthcoming.
Though answers to such questions may appear patently obvious to those with an acute understanding of the criminal law, they are far from so. Indeed, it is not uncommon for participants in the criminal justice system to arrive at vastly different conclusions as to how to deal with similar issues in similar circumstances. Differences in opinion do not merely exist between Crown and Defence, but exist between individual members of the judiciary.
Doubtless, Judge’s are expected to uphold the law and the Constitution. They are expected to understand the rights of all citizens – and surely must appreciate the irony that the rights of all free citizens in Canada are protected through the prosecution of the ignoble deviant. Judges must be courageous – individuals with a high moral compass capable of astutely understanding and applying the principles underlying our criminal justice system. Ideally, judges ought not to be political – for in today’s social climate, politics and lobbying by special interests groups – which includes organizations such as the police, Crown, Government or even the newly formed CDLA – are pervasive. Therefore, the judicial appointment must not be political; rather, it ought to be a strictly merit based appointment, based upon a history of principled service, erudite practice and free of political patronage.
Back to the question, who is George J. Gaschler, Q.C.?
It strikes me that perhaps this isn’t even the right question? Perhaps I am advocating a judicial selection model too closely synonymous with the American system – a paradigm where members of the judiciary are elected rather than appointed. A rather astute lawyer reminded me that such a process may itself be dangerous, for if a judge is too closely tied to a particular political platform, then he or she may be incapable of deviating from that platform as circumstances arise on a case by case basis, thus politicizing the decision making process. Fair enough. So perhaps the better question is who appointed George J. Gaschler Q.C. and why?
Judicial independence is to be assiduously protected. However, according to the Alberta Government Website, judicial appointments are made by the Lieutenant Governor in Council with recommendation of the Provincial Court Nominating Committee. The 11 member Provincial Court Nominating Committee reviews candidates supplied by the Alberta Judicial Council and provides a list of appointees to the Minister of Justice. The Provincial Court Nominating Committee is comprised of two members from the Court of Queen’s Bench, two members specifically appointed by the Minister of Justice and a mixture of representatives from the Alberta Provincial Court, Law Society of Alberta, the Canadian Bar Association along with other undisclosed members of the legal profession and public.
Again, I decided to do a little research.
The Alberta Government Website tells me that the Provincial Court Nominating Committee “provides recommendations to the Minister of Justice on the appointment of individuals to the Provincial Court of Alberta. The committee members are appointed by the Minister of Justice”[4]?
Wait a minute, committee members are appointed by the Minister of Justice”?
The Minister of Justice – in this case, Ms. Alison Redford – is a politically appointed government official. According to the Alberta Justice Website, the provincial Minister of Justice is the senior law officer of the Crown”[5]. So, as I understand, the Minister of Justice selects members to sit on the Provincial Court of Alberta nominating committee. The Provincial Court Nominating Committee then returns a list of potential candidates to the Minister of Justice, who ultimately makes the judicial appointment? In layman’s terms, Alberta’s Minister of Justice reviews a list of candidates that he or she supplied to a committee that he or she selected and then makes a judicial appointment from that list. Forgive me for thinking the process is just a little incestuous.
So who are the members of the Provincial Court Nominating Committee? What relationship do they have with the Minister of Justice or other government officials? What relationship do they have with the batch of candidates returned for consideration to the Minister of Justice? What relationship do candidates have with the Minister of Justice or to the political party itself? What political contributions have been made by prospective candidates or committee members?
Though I am quite certain this information exists, somewhere, it is certainly not readily and easily accessible to members of the public. Various Alberta Government Websites essentially supply boiler plate information with little or no substance. I get the feeling that democracy exists in an informational vacuum, where citizens looking for easy answers to important questions such as why George J. Gaschler, Q.C. for Provincial Court Judge or who sits on the Provincial Court Nominating Committee will be met by a barricade of substance-less boiler plate designed to deflect answers to simple questions.
Perhaps the easiest way to assess a judicial appointment in this Province is to take a hard look at our Minister of Justice; in this case, Ms. Alison Redford? After all, the Minister of Justice appoints the nominating committee, who is responsible for recommending candidates to the Minister of Justice who is responsible for the judicial appointment.
Ms. Redford was recently highlighted in Rick Bell’s journalistic abomination, “No Hugs for Thugs”[6]. In the spirit of today’s news media, Mr. Bell – with the assistance of Ms. Redford – thoroughly lambasted criminal justice in Calgary, even going so far to say “[w]ho except out-of-touch judges, doesn’t know that catch and release only works for fish[7]”. A convenient comment considering that the “catch and release” metaphor was coined by Premier Ed Stelmach, who appointed Alison Redford as Minister of Justice on March 13th, 2008. In his book, Necessary Illusions, Noam Chomsky argued that “…the media serve the interests of the State and corporate power, which are closely interlinked, framing their reporting and analysis in a manner supportive of established privilege and limiting debate and discussion accordingly”[8]. This comment aptly applies to Mr. Bell’s article, as well as just about every other press release on justice in recent months. Calgary’s news media has been responsible for reporting a seemingly endless tirade of complaints on justice, including a series of one-sided dialogues by Calgary’s Chief of Police and his various minions. Perhaps not surprisingly, there has been almost a total absence of counter-dialogue from the other side of the debate. No comment from the defence bar, Alberta Civil Liberties Association, Association of the Wrongfully Convicted or anybody else who might conceivably balance perspective.
“No hugs for thugs” is essentially a full page love in with Justice Minister Alison Redford. Like so many Rick Bell articles, it is little more than a propaganda story designed to inspire irrational emotions from unsuspecting members of the public. Sadly, Justice Minister Alison Redford appeared more than ecstatic to participate in the propogandization of important issues.
What exactly did she say?
With a rather dismissive tone she said: “It’s fine to be presumed innocent until proven guilty, but a bail hearing is not like a trial and the reason we have bail is to ensure those people who are not likely to reoffend and will show up for their court date can, in some cases, continue to work”. Considering Ms. Redford’s purported civil rights background[9], it is just a little startling that she comes across as so dismissive of the presumption of innocence. “It’s fine to be presumed innocence until proven guilty…”? Adjectives like “fine” arguably communicate something closer to general annoyance than staunch support for a fundamental precept of Canada’s justice system. “[T]he reason we have bail is ensure those people who are not likely to reoffend and will show up for their court date can, in some cases, continue to work”? Odd, for I was not aware that contributing to Alberta’s economy was a necessary precondition for obtaining judicial interim release”?
Perhaps most frightening are Ms. Redford’s remarks on the Canadian Charter of Rights and Freedoms. “[W]e need to write vigorous legislation”, she says. “If people don’t like it they can challenge it. The fear of a Charter challenge should not stop us from passing legislation that makes sense”.
Aside from the fact that Parliament obviously should not be writing unconstitutional legislation, this remark ironically brings us full circle back to the initial question: Who is George J. Gaschler, Q.C.?
Judges are responsible for deciding Constitutional issues, and as such, are responsible for determining whether a particular piece of government legislation violates the Canadian Charter of Rights and Freedoms. The question is: if Judges have been nominated by an appointment process on the basis of a recommendation from a stacked judicial selection committee and ultimately appointed by government officials such as Alison Redford, what confidence can our civilization have that the judicial appointment will assiduously work to uphold important things such as Constitutional rights? Put another way, if a judicial appointment is a political henchmen (and I am not saying Mr. Gaschler Q.C. is in fact this person), arguably the government can write any number of unconstitutional laws with relative confidence that such laws will be upheld by its appointed representatives on the bench. Arguably, when Ms. Redford says, “if people don’t like it they challenge it”, she really means, go ahead challenge it, because our people will ensure you won’t succeed anyway. Judicial independence is a myth. Sadly, even if judges such as Mr. Gaschler Q.C. and others are not actually influenced by the incestuous politics underlying judicial appointments, the perception of political patronage nevertheless exists?
Who is George J. Gaschler, Q.C.? We really don’t know. Doubtless, however, we will soon find out.
[1] http://alberta.ca/home/NewsFrame.cfm?ReleaseID=/acn/200807/240947596F5B7-9F92-E368-2444C374CA7EF234.html
[2]http://content.calgary.ca/CCA/City+Hall/Business+Units/Law+Department/Legal+Staff+Profiles/Prosecutions+Research+and+Administration/George+Gaschler+QC.htm
[3] http://www.nationtalk.ca/modules/news/article.php?storyid=12035
[4] http://www.justice.gov.ab.ca/organization/default.aspx?id=896
[5] http://www.justsolgen.gov.ab.ca/organization/justice_system.aspx?id=3164
[6] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php
[7] http://calsun.canoe.ca/News/Columnists/Bell_Rick/2008/08/31/6621796-sun.php
[8] Chomsky, Noam, Necessary Illusions – Though Control in Democratic Societies. Anansi Press Ltd, Concord, Ontario: pg. 10.
[9] http://www.assembly.ab.ca/net/index.aspx?p=mla_bio&rnumber=08
Submitted by:
David G. Chow
Fagan & Chow
Barrister
