Sidney B. Linden

Sidney Bryan Linden[2] CM OOnt QC is a former Chief Judge of the Ontario Court of Justice and a judicial reformer and administrator in the province of Ontario, Canada.

The Honourable

Sidney B. Linden

CM OOnt QC
Chief Justice of the Ontario Court of Justice
In office
April 1990[1] – 1999
Personal details
Born
Sidney Bryan Linden

(1938-11-09) November 9, 1938
Toronto, Ontario
Spouse(s)Beverley Joy Linden
RelationsAllen Linden, Sandra Linden
ChildrenCary, Neil, Jonathan
ResidenceToronto, Ontario
Alma materUniversity of Toronto (University College & Faculty of Law)
Occupationlawyer, judge

Early career

Linden graduated with a Bachelor of Arts from University College in 1961 and a Bachelor of Laws (LLB) from the University of Toronto Faculty of Law in 1964.[1][3] He was called to the bar in 1966. Linden became well known as a lawyer specializing in criminal defence and civil liberties, a number of his cases receiving public notice.[4]

Linden was executive director and the first full-time general counsel (1966–67) for the fledgling Canadian Civil Liberties Association.[5] Under his direction, the association applied for a grant from The Ford Foundation to improve its financial position.[6]

He was an early member of the Criminal Lawyers' Association, serving as vice-president from 1975 to 1979. Linden worked on bail reform as co-director of the Amicus Foundation Toronto Bail Project (1967–68), which used interviews and a scoring system to assess the suitability of prisoners for personal bail or release on recognizance, thereby countering the tendency of then bail system to favour individuals with financial means.[7] He was also a contributing editor (justice) for Maclean's Magazine and a member of the founding editorial board of Canadian Lawyer, first published in October, 1977.[8]

Linden was a supporter and active participant in the Legal Aid Plan of the Law Society of Upper Canada and worked for the plan's reform. He was co-chair of the Sub-Committee to Study the Delivery of Legal Aid Services, formed April 1978, whose recommendations let to improvements in the plan's capacity and infrastructure.[9] During the plan's infancy, Linden was ejected from court by a judge for attempting to represent an accused as duty counsel.[10]

Career

Police Complaints Commissioner

A number of studies had been conducted on the subject of how to deal with public complaints about police conduct.[11] At the request of then Attorney-General Roy McMurtry, Linden conducted research on police complaints processes, including practices in other jurisdictions, and proposed a model that was adopted by the province.[12] He was subsequently appointed first Public Complaints Commissioner for Metropolitan Toronto and Chair of the Police Complaints Board (1981–85).[13] This was a pilot project, combining elements of both police and civilian oversight, and by 1990 the Board's mandate was expanded to all of Ontario.[14]

From 1985 to 1988, Linden was Executive Director of the Canadian Auto Workers (CAW – now UNIFOR) Legal Services Plan, which continues to operate.[15] This was the first plan of its kind in Canada, the result of negotiations over two years between CAW and the major auto manufacturers, and based on similar pre-paid legal service plans in the United States. Linden set up a head office and six branches, with 26 staff and 500 cooperating lawyers. Implementation problems included a dispute with the Law Society of Upper Canada (eventually resolved) over the cooperating lawyer model.[16]

Information and Privacy Commissioner of Ontario

In 1988, Linden was appointed the first Information and Privacy Commissioner of Ontario. As an Officer of the Legislature, Linden's appointment was recommended by an all-party committee. Ontario's model unified the access-to-information and privacy-protection roles in a single commissioner, unlike the federal model with dual commissioners, and gave the commissioner order-making authority. Linden established and ran the IPC until 1990, designing the inquiry process and pioneering the use of paper as opposed to in-person hearings.[17] Linden adopted a cautious approach in his decision-making, aware of precedents that would be set and of the need to withstand judicial scrutiny.[18] His more than 120 formative decisions continue to be cited in IPC jurisprudence.[19] Aside from hearing appeals, Linden issued recommendations on broader privacy and access issues, including employer disclosure of information about employees with AIDS, and the risk of document loss or improper disclosure from then-ubiquitous fax machines.[20]

Chief Judge of the Ontario Court of Justice

In 1990, Linden's tenure at the IPC was cut short when he was tapped by then Attorney-General Ian Scott to lead the reorganization of the provincial court system. The Provincial Court (Criminal Division) and the Provincial Court (Family Division) were unified as the Ontario Court (Provincial Division), subsequently renamed the Ontario Court of Justice, and Linden became its first Chief Judge. Linden's appointment was unusual since he was not a judge at the time of his appointment and had not practiced before the courts since 1979.[21] But Scott felt his achievements as a reformer and administrator eminently qualified him for the file.[22] Linden served as Chief Judge until 1999, his tenure involving many administrative and structural changes, rendered more urgent by the unprecedented Askov decision (almost contemporaneous with his appointment), which led to thousands of criminal cases being dismissed because of unreasonable delay.[23]

Linden advocated for administrative independence for the judiciary, a topic which had been studied by various task forces and Royal Commissions.[24] At the time, administration of the court was overseen by the Ministry of the Attorney-General. Linden's efforts in this direction led to negotiation of a memorandum of understanding between the court and the ministry, the first of its kind in Canada. The memorandum transferred financial and administrative authority from the ministry to the court by mutual agreement, ensuring the court's administrative independence and placing it on a more firm financial footing.[25] Linden also served on the board of the National Judicial Institute, an independent, not-for-profit judicial education institution, from 1995 to 1999.

In 1997, the Canadian Institute for the Administration of Justice presented Linden with its Justice Medal. This award is presented biennially "as a mark of distinction and exceptional achievement to a person who, in the opinion of a panel of independent judges, has shown distinctive leadership in the administration of justice in Canada".[26]

In 1999, Linden was appointed the first chair of the Board of Directors of the reconstituted Legal Aid Ontario (LAO), chosen for his administrative expertise and knowledge of legal aid issues.[27] Implementing recommendations of the McCamus Report of 1997, the first comprehensive analysis of Ontario's legal aid system since its inception, Linden led the transformation of LAO from a committee of the Law Society of Upper Canada into an independent, publicly funded non-profit corporation.[28]

At the conclusion of his term in 2004, the Association of Community Legal Clinics of Ontario presented Linden with the Steven Little Memorial Award for "extraordinary commitment to the community legal clinic system marked by leadership and dedication to helping others".[29] In 2005, LAO established the Sidney B. Linden Award "to honour exceptional individuals who have demonstrated a commitment to helping low-income people, and have given their time and expertise towards ensuring access to justice in Ontario".[30]

Commissioner for Ipperwash Inquiry
Main article: Ipperwash Inquiry

In 2004, Linden was appointed Commissioner for the Ipperwash Inquiry into the Ipperwash Crisis, established to investigate the shooting death of aboriginal protester Dudley George at Ipperwash Provincial Park in 1995.[31] Linden spent two years listening to 139 witnesses, 229 days of testimony and was presented with 23,000 documents. His four-volume Report of the Ipperwash Inquiry was 1,533 pages long. The report was well received by all parties, described by the Law Society of Upper Canada as "a landmark report on Aboriginal, police and government relations." [32] He was also commended for handling a delicate and potentially explosive inquiry with skill and diplomacy, affording due consideration to native culture and sensitivities.[33] Most of the report's 100 recommendations were carried out, including the return of Ipperwash Provincial Park to the first nations and the establishment of a provincial Ministry of Aboriginal Affairs.[34]

The government of Premier Dalton McGuinty maintained that it was following Linden's recommendations in dealing with the subsequent and more chaotic native occupation in Caledonia, Ontario, where police were accused of ignoring unlawful acts by natives and failing to protect residents from harassment and abuse.[35] However, Professor Andrew Sancton of the University of Western Ontario, in his review of police actions in Caledonia in light of the Ipperwash Report, notes that Linden's analysis of police-government relations "effectively repudiated the hands-off position taken by the McGuinty government concerning Caledonia", and that the government's invocation of the Ipperwash Report to defend its "hands-off" approach had no basis in the report itself.[36]

Conflict of Interest Commissioner for Ontario

From 2007 until 2019, Linden was Ontario's first and only full-time Conflict of Interest Commissioner. The office was established by the Public Service of Ontario Act, 2006, which updated the rules for human resource management and ethics oversight (including disclosure of wrongdoing) for the Ontario Public Service, and was a specialized arms-length executive agency exclusively concerned with public service ethics. However, in May, 2019, the office ceased to exist and its functions were transferred to the Office of the Integrity Commissioner, an independent officer of the legislature, in order to create a single ethics oversight body, a reform which Linden had long advocated.[37]

Honours

References
  1. "The Hon. Justice Sidney B. Linden". University College, The Founding College of the University of Toronto. University of Toronto. Retrieved 3 July 2016.
  2. "Linden, Sidney Bryan". Honours Recipients. Office of the Secretary to the Governor General. Retrieved 9 May 2016.
  3. "Alumnus Sidney B. Linden named to the Order of Canada | University of Toronto Faculty of Law". University of Toronto Faculty of Law. University of Toronto. Retrieved 3 July 2016.
  4. "Legal Eagles: It's Like Having God in Your Corner", Maclean's Magazine, June 1975, pp. 6-7. Brief biographies of 14 top lawyers in Canada. At 36 Linden was the second-youngest. Cases of note included R. v. Mikolasch, involving questionable police confiscation of obscene materials (Globe and Mail, December 16, 1967; Toronto Star, December 9, 1967), R. v. Kallhartt & Brooks, involving heavy fines for masseurs in an alleged bawdy house (Toronto Star, February 8, 1973; Globe and Mail, February 8, 1973), R. v. Nunes, involving deportation of a Portuguese immigrant with a falsely validated passport (Globe and Mail, October 27, 1967; Toronto Star, October 27, 1967), R. v. Buckler, where Linden asked the court to strike down the Criminal Code's indefinite preventative detention of habitual criminals provisions as contrary to the British North America Act and the Canadian Bill of Rights (Toronto Star, January 7, 1970), similarly R. v. Roestad which involved indefinite detention of a convicted pedophile (Toronto Star, February 3, 1971, February 12, 1971, February 15, 1971, February 26, 1971, and March 2, 1971), and similarly again R. v. Shand, where Linden argued (successfully, though reversed on appeal) that mandatory minimum sentences for drug possession were contrary to the Bill of Rights (Globe and Mail, January 17, 1976; Toronto Star, January 17, 1976; Maclean's Magazine, February 23, 1976). Linden's murder trials included R. vs. Tennant & Naccaratto, and R. vs. French & Urbanick.
  5. "A Milestone for Canadian Civil Liberties: The Battle Lines are Drawn". Toronto Daily Star. April 18, 1966. The association had been formed in 1965 from the pre-existing Association for Civil Liberties.
  6. "Joint Submission of the Canadian Civil Liberties Association and the Canadian Civil Liberties Education Trust to The Ford Foundation for Grant-in-Aid of an Ongoing Programme in the Field of Civil Liberties and for Special Assistance for "Due Process in Canadian Criminal Law: A Programme for Reform" (1967 unpublished).
  7. See "Amicus: Friends To The Friendless", The Ottawa Journal, April 6, 1968. Also Frank N. Willams, "The Toronto Bail Project", Osgoode Hall Law Journal, Vol. 6, No. 2 (December 1968), pp. 316-324. The project was inspired by a similar initiative of the Vera Foundation in New York, and by the work of Professor Martin Friedland of the University of Toronto.
  8. For Maclean's see for example March 22, 1976, "Because of Morgentaler, one law will change - and maybe two", p. 55.
  9. The Law Society of Upper Canada Legal Aid Plan, 1979 Annual Report, pp. 11-16. For the report, see Linden, S., and J. Douglas Ewart, "Background Paper for the Legal Aid Committee of the Law Society and the Attorney General: Implications of the Salaried Defender Concept for the Delivery of Criminal Legal Services in Ontario", October 5, 1978.
  10. The presiding judge was not familiar with, or amenable to, this recent innovation. "Judge orders legal aid lawyer removed from his courtroom", Toronto Star, July 17, 1969; "A bad day in court" (editorial), Toronto Star, July 18, 1969; "Wishart wants report on ouster", The Telegram, July 17, 1969; "Judge rapped on legal aid man's ouster", The Telegram, July 18, 1969; for Judge Bolsby in his own defence see "Duty Counsel in Magistrate's Court", The Criminal Law Quarterly, Vol. 11 (1968-69), pp. 354-371; for response of Legal Aid Program Committee of Law Society of Upper Canada see "The Functions of a Duty Counsel", The Criminal Law Quarterly, Vol. 12 (1969-70), pp. 124-131.
  11. McMurtry, R., Memoirs and Reflections, Osgoode Society for Canadian Legal History, 2013, p. 209; First Annual Report of the Office of the Public Complaints Commissioner and the Police Complaints Board, 1982, p. 1 & Appendix A.
  12. McMurtry, R., Memoirs and Reflections, Osgoode Society for Canadian Legal History, 2013, p. 210.
  13. McMurtry, R., Memoirs and Reflections, Osgoode Society for Canadian Legal History, 2013, p. 211.
  14. McMurtry, R., Memoirs and Reflections, Osgoode Society for Canadian Legal History, 2013, p. 211-12. Linden was thrown in "at the deep end", but "his intelligence and commitment produced excellent early reports." The statute, The Metropolitan Police Force Complaints Project Act, 1981, was delayed in a minority legislature and finally passed when the government of Bill Davis re-gained majority status. The model developed by McMurtry and Linden had been controversial in many quarters (see for example "Kid-gloves commissioner", Canadian Lawyer, September 1984). See also Hansard Official Report of Debates – Legislative Assembly of Ontario, Fourth Session, 32nd Parliament, Friday, June 22, 1984, statement by Hon. Mr. McMurtry, 2768 – 2770. "In my view", said McMurtry in part, "it is clear that this important project has been an outstanding success…Mr. Linden's office has demonstrated a remarkable achievement in this exceptionally difficult area." According to McMurtry, the model had been mentioned as an example by Lord Scarman in the British House of Lords after riots in Brixton, and was also being studied in the United States, Europe, Hong Kong, Bermuda, Jamaica, the Netherlands, Nigeria and Australia.
  15. "Police complaints chief leaving to run auto workers' benefit plan". Toronto Star. August 9, 1985.
  16. Drysdale, C., "The law according to Linden", Benefits Canada, July/August 1986, pp. 39-42. On the dispute with the Law Society, see "Law society, auto union reach pact", The Globe and Mail, December 3, 1985, "Making justice affordable", The Globe and Mail, December 6, 1985, and "A sensible solution to expensive justice", The Sunday Star, August 3, 1986. On the success of the plan see "Success of prepaid legal services could set a trend", The Globe and Mail, February 3, 1986, and "Auto workers hail revolutionary legal aid plan", Toronto Star, August 2, 1986.
  17. "Freedom of information underpins democracy", Linden, S., Law Times, August 19, 2002, p. 7.
  18. "Information is freed, but carefully", The Toronto Star, June 29, 1988. "As first indicators, the cases show Linden will judge by the law, and will not order information just for information's sake." See also Linden, S., "Access laws are vital to hold governments to account", Globe and Mail, July 22, 2002 (comment), for some of Linden's reflections on the office and its success.
  19. See IPC website, Decisions and Resolutions.
  20. "Don't collect AIDS data, watchdog advises firms", Globe and Mail, December 7, 1989; "Ontario urged to solve "junk fax" problem", Globe and Mail, June 1, 1989.
  21. "Linden eager to tackle judicial post", Globe and Mail, May 7, 1990. "There's a lot of lawyers who've been called to the bar since '79…and I know what they're probably saying 'Who is this Linden guy?"
  22. Hansard Official Report of Debates – Legislative Assembly of Ontario, Second Session, 34th Parliament, April 25, 1990, statement by Hon. Mr. Scott: "Throughout his career, the new Chief Judge has distinguished himself as an innovative reformer, a pragmatic administrator and a conscientious and principled adjudicator. These qualities will prove invaluable in his new role." And similarly Mr. Rae, Leader of the Opposition, "He is a man of great humour and great ability. We look forward to working with him in his new role on the unified court." For the extensive reforms mandated by statute, including eight new judicial regions each with a Court Management Committee, see Law Times, August 27 – September 2, 1990, "Seminars to Explain Court Changes to Lawyers", and "New Chief Judge Advises Lawyers Not to Worry". The new structure was set up by the Courts of Justice Act, 1984.
  23. See "Justice system seeks fast track: Worst of backlog over, courts aim for trials within reasonable time", The Toronto Star, April 25, 1991, for early efforts to address backlog through recent structural reforms. For more on reform of the court 1990–1999, and Linden's role in particular, see chapter 3, "One Court: A New Structure, A New Focus," and on Linden in particular "Sidney B. Linden: Institution Builder" in Ontario Court of Justice: A History (eBook), Ontario Court of Justice, 2015.
  24. "Self-Government and the Judiciary", address of Chief Judge Sidney B. Linden, Ontario Court of Justice (Provincial Division) to Ontario Judges Association (May 21, 1992), Law Society of Upper Canada Gazette, Volume XXVII, Number 1, March 1993, pp. 71-77.
  25. See Friedland, Martin L., A Place Apart: Judicial Independence and Accountability in Canada, A Report Prepared for the Canadian Judicial Council, May 1995, pp. 186-87. According to Friedland, the memorandum was a "recent very important development…It has…changed the way the ministry views the courts and cut down the former friction…The new relationship with the Attorney General's department, according to the Chief Judge, is working much better than expected." Also Brian W. Lennox, "Afterword: Judicial Independence in Canada – The Evolution Continues", address to Ethics in Judging Seminar, Ottawa, Ontario, October 20–22, 2010, extracted from Adam Dodek and Lorne Sossin, Judicial Independence in Context, 2010. "Chief Justice Linden was an experienced and respected administrator at the time of his appointment in 1990 and these qualities proved to be the genesis both for the original concept and for the development of the MOU. In fact, it is unlikely that the MOU would have been signed unless the Minister had had complete confidence in the Chief Justice's administrative abilities."
  26. See website Canadian Institute for the Administration of Justice – Recipients of Justice Medal.
  27. "Chief judge heads Legal Aid Ontario", Law Times, January 11, 1999. According to Attorney-General Charles Harnick, "Judge Linden has a long history of expertise in administration…He has the stature, the administrative experience and knows legal aid issues." In 1998, the Ontario government enacted the Legal Aid Services Act which established Legal Aid Ontario (LAO) as an independent but publicly funded non-profit corporation, to administer the province's legal aid program.
  28. In 1996, due to a funding crisis and the inability of the provincial government to continue supplying plan deficits, a review committee was established led by Osgoode Hall Law School professor John MacCamus. The report (A Blueprint for Publicly-Funded Legal Services) concluded that legal aid should no longer reside with the Law Society of Upper Canada. See Friedland, Martin L., My Life in Crime and Other Academic Adventures, The Osgoode Society for Canadian Legal History, 2007, pp. 116-117. Linden had "led the way in many areas involving the administration of justice" (117). When appointed, Linden said he was reading the report "every night" ("Legal Aid Ontario will be registered as a charity", Law Times, January 18, 1999.)
  29. "Congratulations to Order of Ontario honouree Sidney B. Linden | Legal Aid Ontario". legalaid.on.ca. Retrieved 2015-10-02.
  30. "The Sidney B. Linden Award | Legal Aid Ontario". www.legalaid.on.ca. Retrieved 2015-10-02.
  31. See "Long-awaited probe gearing up," Toronto Star, January 4, 2004, for some of the outstanding questions about the shooting still current at the time the inquiry was established. See also Ipperwash Crisis.
  32. "Who is Sidney Linden?" The Toronto Star, June 1, 2007 "all sides believed [the report] to be fair and reasonable." Law Society of Canada Biography of Sidney B. Linden.
  33. "Inquiry inspires hope", The Observer (Sarnia, Ontario), August 26, 2006, P. A4 (editorial): "Had it not been handled so skillfully, the inquiry could have made things worse…But when it all wrapped up, there was an almost congenial atmosphere…Justice Linden also deserves credit for the great respect he showed for native culture and traditions." Also "Ipperwash judge hopes inquiry heals rift", Toronto Star, December 29, 2004. Linden's approach included a forum on native knowledge, a native drum circle and other cultural outreach. An Ojibway elder conferred a sacred eagle feather on Linden to strengthen him in his deliberations ("Gift given to Ippewash judge", The Observer, March 9, 2006), and he was given the name Eagle Eyes at the closing ceremony, which included native participation ("Inquiry comes to a close", The Observer, August 25, 2006).
  34. See Ipperwash Inquiry Report (Government of Ontario webpage summary).
  35. For just one example of the government's invocation of the Ipperwash Report to defend its policy in Caledonia, see Hansard Official Report of Debates – Legislative Assembly of Ontario, Second Session, 39th Parliament, October 26, 2010: "The Linden inquiry was good advice: we're following it…" The view that Linden's report was overly sympathetic to native concerns and led to the two-tiered policing model used at Caledonia was put forward by news reporter Peter Worthington and Senator Robert Runciman, who was Solicitor-General at the time of the Ipperwash incident. See Worthington, Peter, "Caledonia Crisis of Facts", Toronto Sun, November 13, 2010, and "Inquiry into Caledonia settlement not needed", Toronto Sun, July 12, 2011; Robert Runciman, "Inquiry Needed into Caledonia Occupation", Toronto Sun, July 12, 2011.
  36. Sancton, A., "'Democratic Policing': Lessons from Ipperwash and Caledonia", Canadian Public Administration 55.2 (September 2012), pp. 365 ff. Linden rejected the extremes of "full police independence" and "governmental policing". The Caledonia occupation began as the Ipperwash inquiry was winding down and before the report had been issued. Sancton suggests that had the Linden model been implemented, there may have been less ground for the successful $20 million lawsuit against the Crown by Caledonia residents. Reporter Christie Blatchford, who has written extensively on the Caledonia occupation, concurs, noting that the democratic policing model recommended by Linden got "virtually no public attention", and that a vacuum of policy accountability persisted. See Blatchford, C., "Police operate in vacuum of accountability with aboriginal protesters," National Post, January 11, 2013. Of the Linden report, Blatchford says "A more intelligent and sympathetic view of aboriginal and Canadian history would be hard to find." On her documentation of the occupation and police inaction, see Helpless: Caledonia's Nightmare of Fear and Anarchy, and How the Law Failed All of Us, 2011.
  37. "Conflict of Interest Commissioner's Office to Merge into Integrity Commissioner's Portfolio", Queen's Park Briefing, November 20, 2018.
  38. "Linden, The Honourable Sidney B." Honours Recipients. Office of the Secretary to the Governor General.
  39. "Honorary LLD". The Law Society of Upper Canada. The Law Society of Upper Canada. Retrieved 9 May 2016.
  40. "2013 Winners". Alumni of Influence. University College. Retrieved 9 May 2016.
  41. "Order of Ontario Appointees by year of Appointment". Ministry of Citizenship, Immigration, and International Trade. Government of Ontario. Retrieved 9 May 2016.
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