A Calgary judge has issued a scathing criticism of his own court, calling into question the ethics of how judges are selected to hear Court of Appeal cases.

Sentence appeal panels, as they're known, are assembled by Alberta's Chief Justice.

The Alberta Court of Appeal's Justice Ronald Berger made his comments in a judgement released Wednesday, which ultimately rejected the Crown's request to increase the sentence for Pascal Moussa Gashikanyi, a 33-year-old man who had sex with a 14-year-old girl and was convicted of sexual interference.

Beyond upholding Gashikanyi's two-year sentence, Berger went on to suggest there is, at the very least, a perception that Alberta's Chief Justice assigns certain judges to panels in order to control outcomes. 

Berger questions 'fairness'

Bergers comments are connected to a decision issued last year by a five-member panel of court of appeal judges assembled by Chief Justice Catherine Fraser. 

Normally a panel consists of three judges, but Fraser would have known at the time that the sentence appeal of Omar Harjar would likely set a precedent for future sexual interference cases.

The majority decision established a starting point sentence of three years for major sexual interference convictions. For the last year, judges in lower courts have been largely bound by that decision.

Berger not only takes issue with sentencing starting points — a practice largely unique to Alberta — which take away the "wide latitude" and "broad discretion" afforded to judges by the Supreme Court of Canada, he calls into question the Chief Justice's "fairness" when assigning judges to sentence appeal panels.

Judges are like 'butchers, bakers, and candlestick makers'

He alleges the Alberta Court Appeal does not practice a protocol of randomly assigning judges to sentence appeal panels.

"An appellate court that utilizes discretionary non-random methods to assign (or to replace an assigned judge) leaves open the potential for manipulation," he wrote. 

Berger goes on to say if the same judges are sitting on the majority of sentence appeal panels, the opportunity to "shape the jurisprudence" of the court is taken away from the others.

"The risk is that diversity of opinion, so vital to the healthy development of the law, may be relegated to the occasional murmur," he wrote.

"Judges are no different than butchers, bakers, and candlestick makers. All are human beings with different backgrounds and life experiences, different views of the world, and different philosophies."

Berger often dissents

There are publicly accessible records, asserts Berger, which demonstrate the court's failure to adhere to a random judge assignment protocol and has "resulted in significant discrepancies in both the number of sentencing panels on which some judges of the Court sit."

Berger is often a dissenting voice in appeal decisions and is known in the legal community as one of the high court's mavericks.

Typically, court decisions are referred to by the accused's last name, but this case is the talk of the Calgary courthouse community and is being referred to as the "Berger decision."

Gashikanyi's sentence appeal was heard by a panel that included Berger, Justice Brian O'Ferrall and Justice Patricia Rowbotham. O'Ferrall agreed with Berger that the Crown's appeal should be dismissed, while Rowbotham dissented.

Other judges react to Berger's comments

Both O'Ferrall and Rowbotham commented on Berger's criticism of the panel assembly process.

O'Ferrall said assigning panels is one of the chief justice's "critical responsibilities."

He also noted judges may be assigned to certain panels based on workload and experience in certain areas of the law.
Rowbotham's defence of Fraser was more vigorous.

"The suggestion that judicial assignments may not be impartial or that any member of this court ... does not approach an appeal with an open mind is completely baseless," she wrote 

"I reject any such suggestion in the strongest possible terms."