Budget `on track` as negotiations with federal unions enter critical stage

Press Clippings for the period of January 5th to 12th 2015
Revue de presse pour la période du 5 au 12 janvier, 2015
Here are articles and opinion pieces that might be of interest to AJC members
Voici quelques articles et textes d’opinion qui pourraient intéresser les membres de l’AJJ
Budget ‘on track’ as negotiations with
federal unions enter critical stage
BILL CURRY, The Globe and Mail, January 11, 2015
Treasury Board President Tony Clement says negotiations with federal unions are
entering a “very critical” round as both sides prepare to meet against a backdrop of
falling oil prices, a looming election and Conservative promises of a balanced budget.
Ottawa’s labour negotiations are shaping up to be a key file to watch early in the new
year and the Minister says he’s pushing for a deal that is good for public servants and
Ottawa’s bottom line.
At an annual cost of nearly $40-billion, federal spending on personnel is a major expense.
Key meetings are scheduled for later this month related to dozens of collective bargaining
agreements that have already expired.
Prime Minister Stephen Harper and Finance Minister Joe Oliver have recently made
definitive promises that Ottawa’s budget will return to balance in 2015, but some
economists question how they can be so sure in light of the revenue hit that will result
from the recent steep drop in oil prices.
As president of the Treasury Board, Mr. Clement is in charge of the day-to-day spending
decisions that will ultimately impact whether the target is achieved.
“I think that we continue to be on track. The Prime Minister has made that clear as well
as the Finance Minister, but one doesn’t declare ‘mission accomplished’ until you
accomplish the mission,” Mr. Clement said.
“I’m in the midst of a very critical round of negotiations with the public-sector unions.
I’ve got 17 bargaining agents and 27 collective bargaining agreements that are up for
negotiation and that will help us set the right course – the fiscally accountable course for
the future,” he said.
Mr. Clement indicated that in spite of the changing economic landscape there is no need
to take additional spending restraint measures beyond those already announced.
As for labour negotiations, the relationship between the Conservative government and
federal unions is clearly strained. In 2012, the largest union – the Public Service Alliance
of Canada – distributed buttons to its members that said “Stephen Harper hates me.”
The normally more reserved union of white-collar public servants – the Professional
Institute of the Public Service of Canada – is making plans to run ads against the
government in the runup to the scheduled October federal election. The president of
PIPSC, Debi Daviau, has said the Conservatives are probably the “worst employer we’ve
had to deal with” since the union was formed in 1967.
Mr. Clement put forward a major change to sick leave in the public service as a central
government request, but unions have strongly rejected the idea as a “draconian” proposal
that would force staff to come to work when they are sick. The government originally
proposed replacing the current maximum of 15 paid sick days with a five-day maximum
before workers transition to a privately managed short-term disability arrangement. In
November, Mr. Clement offered to raise the maximum to six days, but that, too, was
rejected.
The size of the public service has shrunk from 282,980 full-time staff in 2010 to 257,138
in 2014. However, current levels are still above what they were in 2006 when there were
249,932 employees.
Unions say working conditions and addressing the consequences of spending cuts in
areas such as science are among their key demands.
Labour leaders are bracing for the possibility that a contract standoff could grow into an
election issue.
Mr. Clement insists that’s not the plan. In the interview, the Minister avoided heated
rhetoric and stressed the importance of finding a deal through negotiation. He also
declined to speculate on whether the government would legislate a settlement. The
Minister said he would defend the sick-leave proposal in an election if necessary, but that
would not be his preferred choice.
“I believe [the sick-leave proposal]’s better for the employees but also more accountable
for the taxpayers, so I’d be happy to have that conversation at the appropriate time,” he
said. “But I’d be happier still to have an agreement that is reached in full and fair
collective bargaining.”
----------------------------------------------------
In wake of Charlie Hebdo attacks,
secularist groups to seek end of Canada’s
blasphemy law
Shanifa Nasser, National Post, January 7, 2015
The heads of two Canadian organizations promoting secularism will ask the Department
of Justice to abolish a section of the criminal code that makes blasphemy illegal,
following Tuesday’s attacks on Charlie Hebdo.
Section 296 of the Criminal Code makes “blasphemous libel” punishable by up to two
years in jail in Canada.
No one been prosecuted under the law since 1935. As late as 1980, the law was used to
charge the Canadian distributor of Monty Python’s film Life of Brian; the charges were
later dropped.
Only last month, the heads of Humanist Canada and the Centre for Inquiry, a national
organization that promotes “skeptical, secular rational and humanistic inquiry,” met with
Ambassador Andrew Bennett, head of the federal government’s Office of Religious
Freedom, to note the law’s inconsistency with Canada’s policy of supporting religious
freedom abroad.
On Mr. Bennett’s advice, said Eric Adriaans, national executive director of the Centre for
Inquiry, the two organizations will lobby the Department of Justice to remove the law.
Mr. Bennett’s office did not respond to calls for comment.
“These murders cause us so much grief but also further convince us that no remnants of
these ancient attitudes can be allowed to continue,” Mr. Adriaans said.
The United Kingdom abolished its blasphemy law in 2008; the United States has never
had one at the federal level. The French region of Alsace-Moselle does have one, dating
back to its history as part of Germany, but it’s not easy to use. Last February, a group of
French Muslims actually tried to sue Charlie Hebdo itself for blasphemy under the Alsace
law, after it published a cover they’d found offensive. The suit failed because Alsace law
only protects Catholicism and not Islam.
Meanwhile, Canada’s law has expanded in application beyond Christianity, to religion in
general. The Canadian law was first used in 1892 and was originally intended to protect
Christianity from blasphemy. Case law since then has broadened its application.
Derek James-From, a lawyer for the Calgary-based Canadian Constitution Foundation
warns that while the law may be dormant, it is not dead. Britain’s blasphemy law, for
example, was considered “dead” until it resurfaced in 2007 when a pornographic
magazine was charged with the offence for publishing gay poetry about Jesus.
“It is an open question whether the Charter’s guarantee of freedom of expression will
offer any protection,” Mr. James-From wrote in a 2013 letter to Calgary-area MP and
Minister of State for Finance Kevin Sorenson. “This is a constitutional question that has
never been tested.”
“The conservative right gets bents out of shape about hate speech provisions because they
see it as an unconstitutional restriction of their freedom of expression. But that’s exactly
what people who are religious would say about the blasphemy prohibitions — that they
cannot say what they want without freedom of prosecution,” Mr. James-From said.
“There are certain parts of the world where apostasy will get your head removed,” added
Eric Thomas, President of Humanist Canada. “We don’t have that issue here but why
would we even have this on our books?”
----------------------------------------------
Europe’s media must unite and stand
against the assassin’s veto
TIMOTHY GARTON ASH, Special to The Globe and Mail, January 8, 2015
All the media of Europe should respond to the Islamist terrorist assassinations in Paris by
co-ordinated publication next week of selected cartoons from Charlie Hebdo, and a
commentary explaining why they are doing this. A week of solidarity, and of liberty. One
on which all Europeans, including Muslims, reaffirm the commitment to free speech
which alone enables us to combine diversity with freedom.
Otherwise, the assassin’s veto will have prevailed. For all the bold editorial statements,
sympathy cartoons and moving ‘Je suis Charlie’ demonstrations, most publications, left
alone to decide for themselves, will in future self-censor out of fear. And violent
extremists of other persuasions will learn this lesson: if you want to enforce your taboo,
go and get a gun.
We do not resolve our differences by violence. We do it by speech. Here is the
elementary principle that we, especially those of us who live by the word and image,
must unite to defend. You can be furious, rude, sarcastic, offensive – and offended back.
There are limits set by law, and you can try to change those laws through parliament. You
can demonstrate peacefully, also using civil disobedience. But only the democratic state
can legitimately use violence, which we then call force.
There are two sides to this sovereign coin of liberty. On a website dedicated to discussing
free speech, I have formulated the principle thus: ‘we neither make threats of violence
nor accept violent intimidation’. It is the second part which now requires this
extraordinary moment of European media solidarity.
I would suggest that the publication or broadcast over this week should include not only a
few of the Charlie Hebdo cartoons relating to Muhammad, but also one or two devoted to
other subjects, so everyone can see that this was a satirical magazine, offensive to many
different kinds of people. That’s what satire does. And a commentary should explain why
media who would not usually publish or broadcast such satirical cartoons are doing so
now. Readers and viewers should be warned in advance that the cartoons will be shown,
but the images themselves should not be pixelated or redacted.
Such an action will take a little time to prepare, but will be none the worse for that.
Indeed, otherwise the news cycle would move relentlessly on. It would be good if free
media around the world joined in the action, but this is above all a moment for Europeans
to stand up in solidarity for the freedom of expression which is central to our values and
way of life. It is also the freedom upon which most other freedoms depend.
Every newspaper, magazine, website, broadcaster blog or social media page will have its
own particular way of commenting, and so it should be, but my draft would go something
like this:
“Violence must never be allowed to curb free speech. That is why we, who would not
usually publish/broadcast such satirical cartoons, are doing it now, along with other
media across Europe. Only such solidarity will show the assassins and would-be
assassins that they cannot divide and rule, intimidating media into self-censorship. An
attack on one is an attack on all. In this sense, nous sommes tous Charlie.
All that the murderers will have achieved is that those cartoons of Muhammad are now
viewed by millions who would never otherwise have seen them. The assassins, not the
cartoonists, have brought this upon the image of the Prophet. For there is now an
overwhelming, legitimate public interest in knowing what was the ostensible cause of the
grotesque, terrorist butchering of the French cartoonists Charb, Cabu, Wolinski and
Tignous – whose names will now live through history – and of their colleagues and the
police.
This co-ordinated publication is not a gratuitous gesture. It is not anything against Islam.
On the contrary, it defends the very conditions in which Muslims in Europe, unlike
Christians or atheists in much of the Middle East, can freely express their own deepest
beliefs, and challenge those of others. At stake is the future of Europe, and that of liberty.
For our living together in freedom depends on this: that the assassin’s veto shall not
prevail.
Timothy Garton Ash is Professor of European Studies at Oxford University, where he
currently leads the freespeechdebate.com project, and a Senior Fellow at the Hoover
Institution, Stanford University. He is working on a book about free speech.
-----------------------------------
What really offended the Paris attackers?
Democracy
The Globe and Mail Editorial, January 7, 2015
Free speech wouldn’t be very useful if it meant saying things that everyone already
agreed with. Nor would it be much use if it were limited by the need to avoid giving
offence. Free speech is the fundamental democratic freedom because a society where
speech and thought are free is a society with a shot at governing itself by reason rather
than faith, settling disagreements through argument rather than violence. It is a society
where minds can be changed voluntarily and attitudes can evolve. A society without free
speech, in contrast, is one where your mind has already been made up for you.
Wednesday’s attack on the offices of the French magazine Charlie Hebdo, in Paris, was a
direct assault on democracy, and the idea of free speech at its heart. The men who carried
it out intended it to be understood as such. Their target was a publication that has, over
the years, offended many. That, after all, is its raison d’être.
Its stock in trade is political satire. It satirizes politicians, public figures and government
leaders, holding alleged missteps and misdeeds up to ridicule. It also frequently makes
jokes at the expense of each of the world’s great religions. As any viewer of The Daily
Show or the Colbert Report can attest, satire can be one of the most persuasive forms of
speech. After all, well-aimed mockery can eviscerate a hollow idea. When you laugh at a
joke, you may be acknowledging not just its humour, but its truth.
Modern Western society, a product of the Enlightenment, is built on the idea that while
we may each choose our private version of the sacred, in the public sphere, all things are
up for discussion and debate. The men who armed themselves with Kalashnikovs rather
than arguments, and attacked Charlie Hebdo’s cartoonists, writers and editors believe in a
rather different model of society: one whose rules cannot be challenged by human reason.
They have in mind a world where a long list of fundamental beliefs simply cannot be
discussed, on pain of death.
In response, people across the globe are invoking the phrase, “Je Suis Charlie” – I Am
Charlie. And in a sense, all of us are. Every society needs people like the satirists of
Charlie Hebdo.
No, not many people would want to spend their days endlessly mocking political and
religious figures, parsing their statements for hypocrisy, offending the powerful and the
power-hungry, and sometimes simply being offensive. Few of us would want to live in a
world in which everyone tried to be Charlie all of the time. But our civilization and all of
its freedoms are impossible unless some people sometimes choose to play the role of
Charlie, and unless they have the freedom to choose when, how and why they will do so.
It may be in print, on social media, in their place of worship or even just among their
friends, but without the possibility of challenging the status quo, democracy isn’t
possible.
The men who carried out Wednesday’s attack, it is worth remembering, are not
representative of the majority of the Muslim community. They are outliers, though they
hope through the persuasive power of terrorism to become mainstream. On video, they
can be heard shouting “Allahu Akbar,” but they are misusing the phrase. It is hard to
accept that anyone who declares that God is great could count human life, life made in
His image, so cheap.
The writer Salman Rushdie, who spent years in hiding as a result of a fatwa and a price
put on his head by similar radicals, yesterday said: “I stand with Charlie Hebdo, as we all
must, to defend the art of satire, which has always been a force for liberty and against
tyranny, dishonesty and stupidity. ‘Respect for religion’ has become a code phrase
meaning ‘fear of religion.’ Religions, like all other ideas, deserve criticism, satire, and,
yes, our fearless disrespect.”
To some, it may seem as if Mr. Rushdie is going too far. Democracy does not demand a
disrespect of religion; in fact the idea of civil liberties means that people’s private
religious choices must be respected and permitted. But the public sphere is another story.
A modern, rational, democratic society is impossible unless criticism of all sorts of ideas,
including religious ideas, is permitted. There is nothing more fundamental.
The most recent issue of Charlie Hebdo featured novelist Michel Houellebecq on the
cover. His latest novel, Submission, is a kind of dystopian satire about a future France
that has become a religious theocracy. In an interview published this week, Mr.
Houellebecq said that ideas “which reached their height in the Enlightenment, and led to
the French Revolution, are dying. All of this will be nothing but a footnote in human
history.” He described modern, secular society as “dead.”
His fears mirror the hopes of those who attacked Paris, France, democracy and modernity
on Wednesday. And they are both mistaken. The human desire for freedom is stronger
than that.
---------------------------------------
Longue vie à Charlie
André Pratte, Paul Journet, Ariane Krol et Pascale Breton, La Presse, le 7 janvier 2015
Ce n'est pas seulement Charlie Hebdo et ses artisans qui ont été sauvagement attaqués
hier à Paris. Tous les caricaturistes, tous les journalistes, tous les libres penseurs, tous les
démocrates sont visés. La cible, c'est notre droit fondamental, à nous citoyens, d'exprimer
notre opinion sur l'islam. Ce droit vaut que cette opinion soit modérément ou
farouchement critique, qu'elle se décline en mots ou en images.
Cette attaque vise à faire taire ceux qui osent critiquer l'islam. Dorénavant, certains seront
tentés de faire preuve de plus de réserve dans leurs propos. À l'inverse, l'attentat risque de
provoquer des réactions simplistes, notamment sur les réseaux sociaux. Si nous en
restions là, les terroristes auraient gagné. Heureusement, tout indique que ça ne sera pas
le cas.
Les caricaturistes et les satiristes jouent un rôle fondamental. Ils font rire, bien sûr. Mais
par le rire, ils nous amènent à réfléchir. Ils testent les limites de la liberté d'expression,
garantissant que celle-ci demeure la plus grande possible. Ils sont vigilants, alors que
beaucoup sont nonchalants. Ils sont courageux, ce dont ne peuvent se vanter les apôtres
de la tolérance à tout prix.
Envers et contre bien des gens, les artisans de Charlie Hebdo ont persisté, sachant
parfaitement à quels risques ils s'exposaient. «C'est peut-être un peu pompeux ce que je
vais dire, mais je préfère mourir debout que vivre à genoux», avait expliqué le directeur
de la publication, Stéphane Charbonnier (Charb), tué hier.
La stupeur et la colère face à la tuerie viennent aussi du fait que la petite équipe se battait
avec peu de moyens, des mots et des dessins, contre des religions établies, contre les
pouvoirs politiques, et contre les extrémistes. En tuant à coups de kalachnikov des gens
armés de crayons et de claviers, les terroristes ont une nouvelle fois fait la preuve de leur
lâcheté.
«Oui, mais». C'est ce qu'ont répété plusieurs critiques de Charlie Hebdo au cours des
dernières années. Certes, la liberté d'expression des satiristes doit être protégée, répétaiton unanimement. Mais, ajoutaient certains, il fallait éviter de «provoquer» les terroristes.
Ces bémols, qu'on a continué à entendre hier, sont infondés et dangereux.
Bien sûr qu'il y a un lien de cause à effet entre les caricatures et l'attentat. C'est une
évidence! Mais cela ne rend d'aucune manière la victime responsable. L'affirmer serait
prétendre que la violence intégriste constitue une réponse légitime à une critique de la
religion. Et donc qu'un satiriste ne serait pas une victime innocente.
La thèse de la provocation trahit une capitulation intellectuelle. Comme s'il existait un
droit à ne pas être insulté, une interdiction de blasphème. Souvent, nous avons défendu
ici la liberté des croyants d'exprimer leur foi sur la place publique, notamment en portant
un signe ou un vêtement distinctif. Or, dans une société démocratique, ce droit a une
contrepartie: la liberté d'exprimer son opinion sur les religions, d'en contester la véracité,
de dénoncer l'exploitation qui en est faite, et aussi de s'en moquer.
La liberté d'expression nous confronte quotidiennement à un dilemme: faut-il être plus
raisonnable que les fous en évitant de les «provoquer» ? Ou faut-il continuer, aller aussi
loin que possible, pour débusquer l'obscurantisme? Chaque personne tranchera ce
dilemme suivant sa conscience. Chaque média le règlera selon sa vocation propre.
Pour sa part, l'équipe éditoriale de La Presse continuera à défendre autant:
- la liberté des croyants d'exprimer publiquement leur foi;
ET
- la liberté des citoyens et des médias de critiquer, voire de ridiculiser les religions, y
compris l'islam.
Longue vie à Charlie Hebdo.
------------------------------------------------------
Tous blessés
Yves Boisvert, La Presse, le 7 janvier 2015
La plume est plus forte que les armes, disait une affiche tenue bravement devant le
consulat de France, dans le noir et le froid d'hier soir.
On s'accroche à ce qu'on peut. On cherche un sens devant le cadavre de 10 personnes qui
racontaient le monde et deux autres qui risquaient leur vie pour qu'ils puissent le faire. Le
faire comme ils le faisaient: avec une liberté iconoclaste, qui ne connaissait aucun tabou.
On cherche un sens, on s'encourage, on dit que leurs idées ne mourront pas avec eux.
Ce qui s'offre à nos yeux pourtant ce matin, c'est un absurde bain de sang. Ce qui est très
évident, en ce moment, c'est que deux, trois fous de Dieu bien organisés peuvent faire
taire pour de bon un journal. Un journal surveillé par la police depuis des années. Averti,
menacé, préparé.
On a beau dire, ce matin, c'est la fragilité de cette liberté qui est évidente. C'est la
blessure immense qu'on ne veut pas voir, à coup de slogans.
C'était simple, quand les intégristes islamiques saisissaient la justice française pour
dénoncer les «injures religieuses» de Charlie Hebdo. On dénonçait la manoeuvre, on
criait à la tentative de censure. Mais le combat s'inscrivait dans les règles bien balisées,
bien civilisées de l'État de droit. Il y aurait des arguments pour, des arguments contre,
beaucoup de brouhaha, et à la fin un jugement.
Un jugement qui disait, en 2009: «En France, société laïque et pluraliste, le respect de
toutes les croyances va de pair avec la liberté de critiquer les religions quelles qu'elles
soient et avec celle de représenter des sujets ou objets de vénération religieuse».
Magnifique victoire de principe. Vaut-elle plus qu'un bout de papier si, six ans plus tard,
des terroristes peuvent imposer leur «justice divine» à coups de mitrailleuse?
La plume plus forte que l'épée? À la longue, sans doute. À la fin, oui. Mais là, tout de
suite, cette horreur innommable nous montre une tragique bataille perdue. Une bataille
dans une guerre qui dure depuis un bout de temps déjà, et qui n'est pas près de finir. Une
guerre entre l'idée de liberté que se fait l'Occident et un obscurantisme qui n'est pas
soluble dans la démocratie.
Nous vaincrons? Oui, je le crois vraiment. Mais ce sera long...
Aujourd'hui, demain, on cherchera tous les moyens de vaincre. Il me semble qu'il faut
tout de même commencer par ce constat assez terrible de fragilité: hier, l'épée était plus
forte que la plume, la haine l'a emporté, la liberté a perdu, nous sommes tous blessés.
--------------------------------------------
«Je suis Charlie»
Pierre Jury, Éditorial, Le Droit, le 7 janvier 2015
Lorsqu'Ottawa a été le théâtre d'une attaque terroriste il y a deux mois, n'importe qui
pouvait reconnaître une certaine logique. Quiconque en veut au pouvoir en place
s'attaquera aux décideurs et aux représentants de l'ordre établi : politiciens, policiers,
soldats.
D'autres s'en prennent à des innocents. Attentats dans le métro à Londres, contre un train
en Espagne, sur les tours jumelles du World Trade Center à New York : dans chaque cas,
des terroristes ciblaient un endroit public densément fréquenté. À chaque fois, l'objectif
était de provoquer un maximum de pertes de vies humaines, de semer la terreur et la peur
dans la population. Et envoyer un message, celui que la cause qu'ils défendent méritent
d'être entendue.
Hier, à Paris, les adeptes de la terreur ont choisi une tout autre cible : un journal et ses
artisans. En Charlie Hebdo, ils n'ont pas opté pour le plus anodin, ou le plus populaire.
Cet hebdomadaire satirique a souvent fait parler de lui mais pas nécessairement pour
l'excellence des primeurs qu'il dévoilait, mais plutôt pour l'audace dont il faisait montre
depuis plus de 20 ans. En 2006, par exemple, le journal a repris les caricatures
blasphématoires du prophète Mahomet - originalement publiées dans le journal danois
Jyllands Posten. Et il en remet une couche, avec un Mahomet qui regrette « d'être aimé
par des cons », en parlant des terroristes qui trahissent l'Islam en son nom.
Depuis ce temps, la surveillance policière autour des bureaux de Charlie Hebdo était
constante.
Le journal a refait les manchettes lorsque sa rédaction a été incendiée en novembre 2011,
au lendemain d'une autre édition provocatrice, baptisée « Charia Hebdo ».
Puis rebelote hier, 7 janvier 2015, lorsque la fureur islamiste a allumé trois terroristes qui
ont abattu de sang-froid 10 des auteurs de Charlie Hebdo, et deux policiers. Parmi les
victimes, le directeur Charb, et trois illustrateurs connus, Tignous, Wolinski et Cabu.
Certains prétendent que Charlie Hebdo l'a cherché et qu'il récolte ce qu'il a semé. Cela est
terriblement réducteur et illustre l'incompréhension profonde que les non-Français
peuvent faire montre à propos de cet unique phénomène médiatique qu'est Charlie
Hebdo. Ce journal est sans parallèle avec ce qui se fait ailleurs, une réalité typiquement
française où le mot d'esprit tire ses racines dans un passé vieux de plusieurs siècles.
Au Canada, seul l'irrévérencieux périodique Frank pouvait piétiner de semblables platebandes. La presse populaire anglaise pouvait aussi se réclamer une certaine parenté.
Comme son prédécesseur « bête et méchant » Hara-Kiri, Charlie Hebdo fait de la
provocation un outil de la liberté de presse. Car il est facile de célébrer nos grandes
libertés civiles de la douceur enveloppante de nos foyers, dans le calme douillet de
bureaux asptisés. Non, au contraire, les libertés s'affirment, se défendent et se gagnent
dans la controverse et l'adversité, dans le doute et l'incertitude. Pour ceux qui croient que
Charlie Hebdo va trop loin, 50 000 Français estimaient suffisamment son travail pour se
le procurer chaque semaine.
Si Charlie Hebdo pouvait aller aussi loin, c'est aussi parce que cette audace ne ménageait
personne. Tous les intégrismes sont dans son collimateur. Les papes comme les imams,
les présidents comme les chefs d'entreprise, personne n'est à l'abri.
Il est d'ailleurs tout à l'honneur de la classe politique française qu'elle sorte pour dénoncer
l'attaque contre Charlie Hebdo, elle qui en était une cible constante. Mais certains
islamistes démontrent une totale incompréhension totale à accepter ces gifles, et trois
d'entre eux ont frappé avec une violence inouie.
Devant la force de cette attaque, il faut incarner la force des convictions de ces artisans de
la presse qui combattaient à leur manière loin devant le front des libertés individuelles et
collectives de nos démocraties occidentales. Ainsi, l'oeuvre des Charb, Cabu, Wolinski et
Tignous passera à l'histoire.
-----------------------------------------------------------------
Editorial: Courage, France
OTTAWA CITIZEN EDITORIAL, January 7, 2015
The murders of 12 people — including four of France’s most famous cartoonists — in
Paris Wednesday were not justified or righteous, and the terrorists who committed them
while believing otherwise have accomplished little more than to strengthen the resolve of
the segments of society that have rejected barbarism in favour of things like a free press,
freedom of expression and freedom of religion.
It was a cowardly attack on unarmed human beings who did nothing more than draw and
print a few caricatures — regardless of what you thought about the controversial images
— which is in and of itself so ridiculous it defies logical explanation. It was an attack on
the principles listed above, too. But despite the pseudo-religious undertones, it was an
attack on Muslims as well. It was an attack on those who’ve embraced Islam — a faith
that underpins some of humanity’s greatest scientific and social advances — as a way to
better their lives and the world, because with each absurd crime based on a perversion of
that great religion, more people turn a skeptical eye toward even those who practice it
peacefully. It’s wrong, it’s unfair and it’ll happen, regardless.
And it won’t go much further than that. Each attack on representations of the principles
that we — including many Muslims — hold dear, whether it be a media office in Paris or
a war memorial and parliament building here in Ottawa, is a reminder that liberty, once
achieved, can withstand a great many strikes. There will be no death by a thousand cuts,
which seems to be the only strategy groups like Al-Qaeda and ISIS have come up with.
Not even death by a hundred thousand cuts, or a million.
The most fearsome thing about Islamist extremists is that they don’t fear death, which
should be to their advantage. But the worldwide disgust and condemnation of the latest
attack, the alliance between France’s major broadcasters and publishers to keep the
Charlie Hebdo publication alive “pour préserver les principes d’indépendance et de
liberté de pensée et d’expression, garants de notre démocratie,” the thousands who
gathered in France’s streets Wednesday night to protest a gutless act … they all show that
there are many more people in this world who would face the threat of death, or even
death itself, before submitting to the dystopia championed by a relative handful of
murderous ideologues.
As Stéphane “Charb” Charbonnier, one of the editors gunned down in Paris, put it in a
widely circulated quote Wednesday: “It perhaps sounds a bit pompous, but I prefer to die
standing than living on my knees.”
Courage, France.
-----------------------------------------------
More anti-terror legislation coming, Harper
says
STEVEN CHASE AND DANIEL HOL, The Globe and Mail, January 8, 2015
Stephen Harper says his government plans to bring in new legislation shortly after the
Commons resumes sitting January 26 to give security agencies more powers to thwart
terrorist attacks.
He made the comments Thursday during a visit to Vancouver, one day after gunmen
murdered 12 at the the Paris offices of a satirical magazine that had published cartoons
making fun of the founder of Islam.
“We are looking at additional powers to make sure that our security agencies have the
range of tools available to them to identify potential terror threats and to ... [undertake]
detentions and arrests and other actions where necessary,” he said.
The Prime Minister said the Conservatives have been trying to ensure the planned
measures don’t go too far.
“We want to make sure that we get a balance – that we protect the rights of Canadians
and also the security of Canadians. We must protect both,” he said.
“I anticipate that we will be moving forward very early in the new sessions with
additional legislative proposals.”
The federal government tabled new legislation in late October to expand the powers of
CSIS, Canada’s spy agency, but it made clear those changes had been in the works before
the terror attacks on Canadian soldiers in October that left one dead and saw a gunman
breach the main hall of Parliament’s Centre Block before being killed by security guards.
The October legislation better safeguards the identities of intelligence informants in
Canada and authorize CSIS to eavesdrop in foreign countries. It contained the first legal
changes to the CSIS Act since the spy service was created in 1984.
------------------------------------------
Anti-terror bill to focus on preventive
arrests; possible border laws
DYLAN ROBERTSON, OTTAWA CITIZEN, JANUARY 11, 2015
The government plans to table an anti-terrorism bill as soon as late January that will
likely include preventive arrests to thwart suspected terrorist acts. The government has
also hinted at laws concerning border security, but not in specific detail.
Prime Minister Stephen Harper said last Thursday a new bill is coming soon, which
would likely contain “additional powers to make sure that our security agencies have the
range of tools available to them to identify potential terror threats and to take arrests and
other actions — detention and arrests and other actions — where necessary.”
Harper said to expect legislation soon after Parliament returns Jan. 26. “I anticipate that
we will be moving forward very early in the new session,” he said.
Since the Oct. 22 shooting, Public Safety Minister Steven Blaney has repeatedly said his
government was contemplating laws to allow preventive arrests.
In late October, RCMP Commissioner Bob Paulson told a Senate committee he’d like the
government to lower its threshold for getting a peace bond against individuals lowered to
“a reasonable suspicion.”
Peace bonds are court orders that restrict the movement of people not found guilty of an
offence but deemed a risk to others. They also mean stiffer sentences for someone if later
found guilty of a crime.
Upcoming legislation may also include border service provisions, though the government
has not confirmed this.
On a November visit to Paris, Blaney told French media his government would consider
emulating laws France has recently passed.
Those laws include a six-month travel ban, renewable up to two years, on citizens police
suspect want to join terror groups abroad. Another law allows France to ban European
Union citizens and their families when authorities feel they present a threat to the
country’s national security.
Meanwhile, MP Roxanne James, Blaney’s parliamentary secretary, suggested last Friday
on CBC’s Power and Politics that the legislation could also include border services
provision.
“We need to make sure that the security of our country — of our borders — is paramount
in this piece of legislation,” James said.
Blaney has said the government will not introduce exit controls, a procedure many
countries use where anyone leaving the country first has their passport inspected by
border agents.
The only legislation the government has introduced since the Oct. 20 and 22 attacks was
a bill to give Canada’s spy agency more powers in operations abroad and promising
informants confidentiality. That bill was drafted prior to the attacks and has been in the
works for over a year. It has reached Second Reading in the House of Commons and still
needs Senate approval.
Last week, Harper chose Richard Fadden as his new national security adviser. The former
head of the spy agency Canadian Security Intelligence Service (CSIS) will help Harper
co-ordinate security agencies and advise what legislation is needed.
NDP and Liberal MPs have repeatedly said any new legislation must come with
safeguards to ensure they don’t infringe on freedoms.
-------------------------------------------------
Is the victim surcharge the next Supreme
Court failure for Conservative crime
agenda?
ANDREW SEYMOUR, Ottawa Citizen, January 10, 2015
On a yellow slip of paper taped in the back of defence lawyer Karen Ann Reid’s day
planner is a list.
One side has the initials of Ottawa judges who don’t impose what’s known as the victim
surcharge; on the other side, the ones who do.
It’s Reid’s handy guide for submitting pleas for her poorest clients, ensuring she doesn’t
inadvertently put them in front of a judge who imposes the controversial fee which was
made mandatory by the Conservative government but swiftly rejected by some judges as
unconstitutional.
“There are some clients of ours who can afford to pay victim fine surcharges and others
who can’t,” says Reid, who isn’t alone in using the practice colloquially known in the
corridors of the courthouse as “judge shopping.”
“Where you have a client who is poor, who is marginalized, who is living an existence
on the streets, who is addicted, who perhaps is already wavering under a series of
previously imposed victim fine surcharges and can’t possibly climb out from under that
obligation through any legal means, are you going to then expose your client to even
more of a burden?” asks Reid. “Or are you going to strategize the plea so your client isn’t
under a legal obligation to have to come up with funds that the client will never be able to
amass?”
This is the state of justice at Ottawa’s Elgin Street courthouse, where the judiciary is
nearly evenly split over whether to impose the surcharge, which is designed to help fund
victim services while making offenders more accountable.
The situation is making a mess of criminal court cases, and with observers predicting that
final constitutional clarity won’t be had until the surcharge fight goes all the way to the
Supreme Court, it isn’t likely to be resolved anytime soon.
The fee is just the latest in a long line of Conservative tough-on-crime measures to be met
with contempt by judges. But unlike previous battles that simmered in the lower courts
before eventually being struck down by the Supreme Court, the mandatory surcharge led
to an instant and open rebellion by the judiciary from the very moment it was passed into
law on Oct. 24, 2013.
What makes the fight over the victim surcharge so interesting — and its ultimate
resolution so important — is that it actually involves two distinct battles taking place on
very different fronts. To begin with, there is a principled debate over how to balance the
rights of victims against the need for fairness towards impoverished criminals. But
overlaying this fight is a much more ideologically fraught political battle between the
traditional independence of the judiciary (turbocharged by the Charter of Rights) on the
one hand, and the conservative belief in the supremacy of Parliament and distrust of both
judges and the charter on the other.
As University of Waterloo political science professor and constitutional expert Emmett
MacFarlane sees it, in many ways the fight over the demands of justice is taking a back
seat to the more political tussle over judicial autonomy.
“This issue has placed tension between the government and courts in a unique way,” he
says.
“As much as this is about the question of fairness with respect to the victim surcharge
policy itself, I think this is also about judicial discretion. It kind of goes hand in hand
with other issues like mandatory minimum sentencing.”
***
When the surcharge first came into effect, some judges flatly refused to impose it; others
gave offenders decades to pay. Some resorted to issuing nominal fines that reduced the
surcharge to pennies. Still others found offenders in default of the surcharge immediately
after their guilty plea and sentenced them to concurrent jail time to sentences they were
already receiving.
But it wasn’t until Ontario Court Justice David Paciocco delivered a carefully crafted 31page decision declaring the surcharge unconstitutional that some judges felt they had the
legal ammunition they needed to stop imposing it altogether.
That decision split the judges into two camps: those who were persuaded by Paciocco’s
ruling that the surcharge violated the charter and should be of no force and effect, and
those who either disagree with his reasoning or don’t believe they are legally entitled to
follow it without hearing full constitutional arguments themselves.
Paciocco’s decision, and the rulings of the judges who have followed him, have set off a
flurry of appeals. The appeal of Paciocco’s ruling to the Ontario Superior Court won’t
happen until the middle of this year at the earliest. Crown prosecutors hope to put an end
to the widespread refusal to impose the surcharge based on Paciocco’s decision at another
appeal hearing next month.
Those decisions will likely be temporary, however. Prosecutors, defence lawyers and
legal observers are nearly unanimous in their belief the surcharge will end up in the
Ontario Court of Appeal and eventually the Supreme Court. Until then, the situation in
Ontario will remain murky.
“We’re at a place that is very confusing and it’s not great. Different judges have reached
different conclusions and it makes for a complete mess once people come to court,” said
Jonathan Rudin, program director at Aboriginal Legal Services in Toronto and an
opponent of the one-size-fits-all approach he attributes to the surcharge.
“There needs to be some guidance on this and there really isn’t.”
The surcharge amounts to either $100 or $200 per conviction, depending on the severity
of the offence, or an amount equal to 30 per cent of any fine imposed.
Rudin’s concern about the constitutionality of the law is centred on the removal of a
judge’s discretion to waive the surcharge when it would create undue hardship for an
offender.
The Conservative government took that away after complaints by victim groups that
judges routinely didn’t impose the surcharge, particularly when an offender was headed
to jail, without any serious inquiry about their ability to pay.
The Conservative mantra when it comes to the surcharge has remained consistent —
offenders need to be held accountable, and ensuring they help pay for the damage they
cause is the way to do that.
“When you have a mandatory fine like this, what it means is that poor people receive
harsher sentences than rich people,” says Jackie Esmonde, a lawyer with the Income
Security Advocacy Centre.
Esmonde says it creates a situation where two people can be convicted of exactly the
same crimes and receive the exact same surcharges, but the amount could represent
substantial income for one offender versus a few days’ income for a wealthier one.
That’s a violation of the charter, Esmonde argues.
Part of the trouble is that Ontario and two other provinces don’t offer a fine option
program through which offenders can do community service in lieu of paying the
surcharge. Ontario currently has no intention of creating one.
“The court needs to be able to take into account people’s financial circumstances. We
don’t think that people should have to choose between paying the rent, buying food to
feed their families or paying the surcharge,” she says.
In order for the surcharge to be unconstitutional, the charter says it has to be not just
disproportionate, but grossly so.
Gannon Beaulne, a litigation lawyer with Bennett Jones LLP who co-authored a paper for
the public policy think-tank the Macdonald-Laurier Institute defending mandatory
minimum sentences, says he doesn’t believe the surcharge meets that test.
“Can we really say with a straight face that, other than in really extreme, unusual
circumstances, that a $100 fine that, frankly, the Crown can do little or nothing to collect,
is grossly disproportionate to any criminal offence?” asks Beaulne. “If so, it’s hard to see
how there is any objective content to the test. It’s just untrammelled judicial discretion
masquerading as a reasonable side constraint on Parliament.”
Paciocco’s decision “is omitting the ‘gross’ from the gross disproportionality test,”
argues Beaulne.
“If a $100 fine that the Crown can’t collect is grossly disproportionate, then what isn’t?
What is the line?” asks Beaulne.
Beaulne said he hopes if the case reaches the Supreme Court, the judges will reject the
lower courts’ attempts to “thwart” Parliament’s intent with the victim surcharge
provisions.
Justice Minister Peter MacKay declined an interview request, but his office said in
emailed statement that the Department of Justice reviews proposed government
legislation for charter and other legal risks. They wouldn’t comment on what they
thought of Paciocco’s ruling while it remained before an appeal court.
“Our government firmly believes that these reforms are constitutionally sound,” his office
wrote.
They also vowed to continue fighting for the law, which they insist provides a sense of
responsibility for offenders and provinces with the money to fund services for victims.
Still, there is a growing sense that this fight will end like other notable failures for the
Conservative government’s law-and-order agenda.
“I suspect that if this works it way to the Supreme Court they will probably find it
arbitrary and at least the absolutist rule unconstitutional,” says MacFarlane.
“There is an element where reasonable people can reasonably disagree about this, but
there are other constitutional scholars who would emphatically argue this is
unconstitutional. I’m a little less sure,” MacFarlane says. “If I was putting money down,
I’m betting the government loses.”
MacFarlane says there are legitimate questions about whether a $100 fine for someone
who is deep in poverty is unreasonable, but reducing judicial discretion is not necessarily
a bad thing.
“We have historically provided in the Criminal Code sentencing guidelines and other
minimum mandatory sentences that have been upheld by the Supreme Court in the past,”
says MacFarlane. “Some of the judicial pushback, like outright defying this law without
assessing its constitutionality, I think has been just as problematic as some of the
government’s policies vis a vis the charter.”
MacFarlane says he believes one of the reasons for what’s happened is that Canada
doesn’t have any entrenched parliamentary mechanism for considering laws and their
compatibility with the Charter of Rights.
“We don’t have any permanent regular committee scrutiny, and my own research has
found that Parliamentarians don’t take the charter very seriously. There is not a lot of
debate,” he says.
MacFarlane says one potential solution would be to require the attorney general to
comment on the charter compatibility of any bill before it is passed into law.
“It might bring more serious scrutiny in Parliament to these issues and, with more serious
scrutiny, you might see laws amended before they are passed to make them a little more
constitutionally secure,” says MacFarlane.
MacKay insists that scrutiny is already happening.
In an open letter this week, MacKay defended the government’s record.
“Canadians can rest assured that we draft our legislation to ensure it is compliant with the
Canadian Constitution. And when we refer an issue to the Supreme Court or appeal a
lower court’s decision on validity, it is not about winning or losing but about seeking the
Court’s opinion, to ensure Canadians are well served by the law,” he wrote.
In the past year, the Supreme Court overturned Canada’s prostitution laws, rejected a
Conservative law that retroactively changed parole ineligibility and ruled against a law
that capped credit for time served in jail before sentencing. A Supreme Court ruling in
June 2013 that Internet service providers must stop routinely providing subscriber data to
police may have imperilled the constitutionality of government’s cyber-bullying and
digital privacy bills.
“To be fair to the government, sometimes there is a legitimate dispute about what the
Constitution says. Quite frankly, I don’t think the courts get it right all the time either, but
that doesn’t belie the fact that the government has this impressive loss record among the
highly visible cases,” says MacFarlane.
“With criminal justice, I am not sure if it is just both attractive to the base politically but
also a sincere ideological commitment. This plays extraordinarily well to the
Conservative base, and probably a lot of middle of the road Canadians who aren’t too
sympathetic about criminal defendants.”
MacKay makes no apologies for his government’s unwavering support of victims and
victims rights.
“Our government has been categorical: The justice system is going to be centred on the
protection of society and the redress of victims. Our government will transform the
justice system so that it is no longer centred on the welfare of criminals,” his office wrote
to the Citizen.
*****
The government’s desire to play to the Conservative base when it comes to criminals of
modest means, however, has served to put them in conflict with a much more powerful
group of opponents: judges who jealously protect their autonomy and discretion.
One of the judges who have taken issue with the mandatory victim surcharge, retired
Ontario Court Justice Peter Coulson, acknowledges that the removal of judicial discretion
caused resentment among some of his colleagues.
“I never heard people talking about politics over it. They talked simply in terms of taking
away discretion which ought not to be removed from judges,” says Coulson.
Coulson was among the first judges to take a stand against the measure by refusing to
impose it and didn’t hesitate taking a shot at the government as he did it.
“I’m told it is fully automatic, that these troublesome judges have been relieving against
it and not charging it, so the government likes to put a stop to that kind of thing by
troublesome judges who feel their independence,” Coulson said on Nov. 6, 2012 in open
court.
Coulson has since said he believed it was his duty to relieve against injustice and
hardship.
“I don’t see that as failing to obey the law. I felt that was always my duty, otherwise
don’t bother to appoint judges, just get a computer,” says Coulson.
“I personally disliked it when it was applied to a person to whom the word mandatory
would be meaningless. The poor son of a gun living on the street who is mentally
defective, may be off his meds, may be self medicating with street drugs, that has not and
never will have the ability to pay it,” adds Coulson.
“I always thought it was kind of a cruel joke on the public to represent that judges were
not imposing this mandatory surcharge and thus doing the victims of crime out of the
money.”
The legal battles — costly to taxpayers — are playing out against a backdrop where the
actual amount of victim surcharges collected from criminal defendants in Ontario is quite
small. Is the mandatory surcharge really about helping victims, or political expediency?
According to the Ontario Ministry of the Attorney General, the amount of criminal victim
surcharges collected during the 2013-14 fiscal year increased by about five per cent from
the previous year when the surcharge wasn’t mandatory. However, the $1,235,272
collected from criminal court surcharges still makes up less than three per cent of the
total amount of surcharge money collected in Ontario. The vast majority of the
$44,354,406 collected actually comes from provincial offences, such as traffic tickets,
and not criminal code offences.
But the battle over the surcharge has already resulted in several days’ long constitutional
challenges in Ottawa alone. One such hearing involving a deaf panhandler required two
days of court time and involved three sign language interpreters, three defence lawyers
and two federal prosecutors along with a judge and court staff.
“There is a crying need for victims services, there’s a crying need for criminal injury
compensation money, but you don’t fill that by asking people who can’t pay to pay,” says
Rudin.
Esmonde believes what has become apparent is that the Conservative government doesn’t
base policy on evidence.
“They are not interested in evidence. That’s how we end up with all these mandatory
minimums,” Esmonde says.
But if forcing an offender to pay a $100 surcharge truly outraged the standards of
decency, voters would turf the governing Conservatives out of office, Beaulne argues.
“They’ve been elected with a mandate to pass legislation like this,” Beaulne says of the
Conservative government.
“The Parliamentary process is political and they’ve selected a process that focuses on the
victims of crimes. I think one interpretation is the courts are focused on the accused
primarily, and tend to focus on the accused a little bit more and forget about the victims,”
he says.
-------------------------------------
Lawyer stands accused of offending the
delicate sensibilities of his own profession
Christie Blatchford, National Post Columnist, January 8, 2015
At this post-Charlie Hebdo moment when outliers, particularly sarcastic ones who delight
in giving offence or getting under the collective skin, are enjoying a rare public
appreciation, I would like to report upon the ongoing trials and tribulations of one Joe
Groia at the Ontario Divisional Court Thursday.
Mr. Grioa, a famous Canadian securities lawyer and the one who successfully defended
John Felderhof — the only person ever charged by the Ontario Securities Commission in
the Bre-X gold fraud — is one such outlier, a bull in the china shop that the practice of
law from time to time aspires to be.
And, as with the cartoonists slain it appears for their relentless mocking of fundamentalist
Islam and all that is dear to it (beheadings, rioting, Sharia law and the like), Mr. Groia
stands accused of, egad, being uncivil, insensitive, ironic and belittling of the decorum
much prized by the profession.
Frankly, I’ve always found it a fraudulent, if not outright flatulent, decorum — all that
mutual masturbation by lawyers praising one another in overheated terms (usually for
barely doing their jobs) and the relentless bootlicking directed towards the judge,
whoever it is and regardless of how skilled or not he or she may be.
In any case, Mr. Groia is in court seeking to overturn the finding by the Law Society of
Upper Canada, the governing body for lawyers and paralegals, that he is guilty of
professional misconduct for the way he behaved during Mr. Felderhof’s trial.
He was convicted by a hearing panel of the law society of six counts that on a simple
reading, are exactly the same.
(An appeals panel later dismissed some of the counts — that’s because they are the same!
— and reduced Mr. Groia’s penalty of two months’ suspension and a $247,000 costs
award, but the Law Society is now seeking to reinstate the terms of the original
whacking.)
Honest to Pete, I’m not making this up: Mr. Groia was charged with failing to treat the
court with respect and courtesy; failing to act in good faith by failing to conduct himself
in a fair and courteous manner; undermining the integrity of the profession by being
abusive or offensive in his communication with OSC prosecutors; communicating with
the prosecutors in an abusive or offensive way; failing to act with courtesy and good
faith; and failing to be courteous, civil and to act in good faith.
Seriously, doesn’t it all boil down to a single allegation of being a rude pain in the arse?
Saying it six times strikes me as akin to the way the police sometimes over-charge some
poor sap six ways to heaven with substantially the same criminal offence.
I can’t begin to tell you the number of trees felled in the prosecution of Mr. Groia, and,
cheeky bugger, his vigorous defence of himself.
What began in Ontario Court with Mr. Felderhof’s trial on charges of insider trading
ended up at various stages at the Superior Court, the Court of Appeal for Ontario and the
appeals panel of the law society. The pages of rulings would choke a horse.
But cut to the chase and there are a couple of pretty simple and important principles at
stake — core values, as Mr. Groia’s lawyer, Earl Cherniak, put it.
One is the public’s interest in an independent judiciary, fearless and free from meddling
and second-guessing by the law society.
Judge Peter Hryn was the trial judge. While he may have tired of Mr. Groia’s rhetoric and
verbal assaults upon the OSC prosecutors, he never said so, never criticized Mr. Groia,
despite regular imprecations from the prosecutor to do so.
It’s not just a question of who the heck is the Law Society of Upper Canada to take
umbrage at the way Mr. Groia does business if the trial judge didn’t. By finding that Mr.
Groia misconducted himself, the logical inference is that so did Judge Hryn. And that
treads upon judicial independence.
The second big value at stake is the public’s right to zealous advocacy by lawyers with
the full right to freedom of expression, the same right for which the Charlie Hebdo
cartoonists died.
This is theoretical only until you, the citizen, need a lawyer, as Mr. Felderhof did. He
needed a guy who was fully in his corner, who would do anything within the rules (and
the rules about civility are fuzzy) to save his butt, who would fight, and claw, and do his
very best to see he wasn’t convicted, and whose first and last loyalty was to him.
But how can defence lawyers be the zealous advocates they’re supposed to be if, as with
Mr. Groia, years after they have defended a client and without a complainant, the law
society can swan in, with its delicate sensibilities, and say, with the ill-earned wisdom of
hindsight, “Whoa fellow. You crossed the line there” and subject them to professional
discipline?
So those are the issues and what’s up for grabs in Courtroom 3 at Osgoode Hall this
week.
Alas, such are the acoustics of the courts in this province that even sitting in the second
row, I was unable to catch more than one word in five of the undoubtedly brilliant
submissions of Mr. Cherniak.
I would cheerfully acknowledge that perhaps my hearing is dulled by the combination of
advancing years and decades of listening to The Pretenders at full volume.
But I noticed in the crowded courtroom many young lawyers and students and others who
appeared to have similar difficulties. And there are no amplifying microphones at
Osgoode or most Ontario courtrooms.
Microphones — now those would be in the public interest too.
As for my position on Mr. Groia, I am with F.E. Smith, an English lawyer and the First
Earl of Birkenhead, who according to his son’s book about him, once had the following
exchange.
“Judge: ‘You are extremely offensive, young man.’
“Smith: ‘As a matter of fact, we both are, and the only difference between us is that I am
trying to be, and you can’t help it.’”
------------------------------------------------------
You thought your phone was private. You
were wrong.
By Michael Spratt, iPolitics, January 7, 2015
“As technology changes, our law must also evolve so that modern mobile devices do not
become the telescreens of George Orwell’s 1984.” This was the warning delivered in a
powerful dissenting judgement issued by three of Canada’s Supreme Court justices in the
case of R. v. Fearon.
The majority of the Court (only four judges, thanks to the Conservatives’ botched
appointment of Marc Nadon) disagreed. Instead, in a surprising decision, the Supreme
Court endorsed an expansion of the state’s power to put its hands in citizens’ pockets,
power up their smartphones and examine their digital fingerprints.
How did we get here? It all began with one fairly typical jewelry store robbery.
Two men, one armed with a handgun, robbed a jeweler as she unloaded her car. The men
fled the scene with the loot. Police were called and quickly zeroed in on Kevin Fearon as
a prime suspect. Fearon was arrested and searched. The police did not find any jewels or
guns — but they did find his phone.
The police also located what they suspected was the getaway car — but they didn’t
search it. For that they would have needed a warrant. Fearon’s phone, on the other hand,
was fair game. The phone was searched and found evidence — a picture of a gun and a
draft text message saying “We did it”.
The Supreme Court can’t be naive about the realities of the digital age. In the 2013 case
of R.v. Vu, the Court recognized that cellphones are fundamentally unlike any
conventional storage device — say, a briefcase. Cellphones are “fastidious record
keepers” which can store immense amounts of highly private information dating back
years.
In short, cellphones store more information than you think — information the police
might want.
How important is electronic privacy? Most recently, in R. v. Spencer (a case affirming
the privacy of Internet information), the Supreme Court held privacy to be “a prerequisite
to individual security, self-fulfilment and autonomy, as well as to the maintenance of a
thriving democratic society”.
A clear articulation of an important principle — and one that was promptly ignored by
the majority judges in R. v. Fearon.
So how did the long arm of the law end up groping through our digital data? Let’s go
back to first principles.
For any police search to be lawful, it must be authorized by a reasonable law. Absent a
warrant, there is no law that authorizes police to search cellphones — and any search
conducted without a warrant presumptively violates the Charter of Rights.
To overcome this obstacle, the police rely on the common law power of ‘search incident
to arrest’. This, they argue, provides them legal authority to search cellphones.
‘Common law’ means no judicial oversight. Not only do the police need no judge to sign
off on their search, they don’t even need to have reasonable and probable grounds before
they search.
In this respect, the ‘search incident to arrest’ is an extraordinary power. Which is why it
was supposed to be narrowly defined.
In the foundational case of Cloutier v. Langlois, the Supreme Court summarized the
allowable justifications for post-arrest searches:

It seems beyond question that the common law as recognized and developed in
Canada holds that the police have a power to search a lawfully arrested person
and to seize anything in his or her possession or immediate surroundings to
guarantee the safety of the police and the accused, prevent the prisoner’s escape
or provide evidence against him.
Cloutier speaks of searching a person to seize evidence — not searching, seizing, and
then searching some more. A search of highly private information on a phone is a step
too far — no different from using a key found in the pocket of a suspect to snoop through
his house.
Post-arrest searches had their origin in the need for police to gain control over evidence;
the new Supreme Court decision represents a reckless expansion of that power.
The Fearon case diminishes individual privacy — essential for a thriving democratic
society — in favour of investigative expediency. “Prompt follow-up of leads may be
necessary,” the majority judges argued. “The search of a cellphone may assist those
efforts.”
Which misses the point completely. Obviously, searching phones can serve valid law
enforcement objectives. So could warrantless searches of houses, or mass arrests, or
oppressive and threatening police questioning.
The real issue is whether police power should be expanded at the expense of individual
privacy merely to make the job of law enforcement easier.
The Supreme Court majority said yes — a clear departure from the very recent
jurisprudence that argues electronic privacy is too important to be sacrified.
So how does the Supreme Court majority square the privacy inherent in electronic
devices with their desire to expand police power? By asking the police to police
themselves. The judges suggest that only recent or draft emails can be searched — how
many, and how far back, they don’t say. Pictures, Facebook, Twitter, contacts, outgoing
calls … its all up to the cops.
So who polices the police? We’re expected to rely on police — in the heat of an ongoing
investigation — to resist the temptation to scroll down too far.
But don’t worry about it. The majority judges have instructed the police to make detailed
notes of what they have examined on a phone, and why.
Nothing new there; police have been on notice for decades that they must make complete
and accurate notes. But the officers in the Fearon case didn’t bother to do so.
In short, a majority of Supreme Court justices are just trusting enough to give the police
power to self-regulate in such searches — even though those same police have shown a
blatant disregard for their obligation to take notes.
Charter ignorance is sadly common in law enforcement circles. The Ottawa police don’t
even offer any formal continuing Charter education for officers.
So let’s sum up: Most Supreme Court justices recognize that cellphones store private and
intimate information. They acknowledge the need for special rules for searching
cellphones. But those new rules are just a reformulation — even an expansion — of the
current rules. And we’re expected to trust the police the police to violate a suspect’s
privacy only to the degree necessary, and no further.
Oh — and the police need to take detailed notes … which they’re already required to do
… but sometimes don’t.
This is what happens when the highest court in the land limits its defence of the
principles of privacy and individual freedom to lip service. Privacy should give way to
state intrusion only when absolutely necessary — in, for example, an urgent situation,
such as when the police know a gun is on the street and accomplices are on the loose.
Those happened to be the very facts in the Fearon case, and it’s the approach taken in the
United States (see: Riley v. California, 134 S. Ct. 2473).
But that same Supreme Court majority rejected the suggestion that police should be
allowed to search phones only in urgent cases, arguing that to do so would tie
investigators’ hands. Investigative expediency trumps privacy. Individual freedom is
sacrificed to the needs of the state.
And the state has a telescreen in every pocket.
Michael Spratt is a well-known criminal lawyer and partner at the Ottawa law firm
Abergel Goldstein & Partners. He has appeared in all levels of court and specializes in
complex litigation. Mr. Spratt is frequently called upon to give expert testimony at the
House of Commons Standing Committee on Justice and Human Rights and the Senate
Standing Committee on Legal and Constitutional Affairs. He is a past board member of
the Criminal Lawyers’ Association and is on the board of directors of the Defence
Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at
www.michaelspratt.com and on twitter at @mspratt
-----------------------------------------------
Calgary lawyer sanctioned for brandishing
axe, fist fight with rival barrister
JASON VAN RASSEL, CALGARY HERALD, January 7, 2015
Lawyers are trained to settle disputes in the courtroom, but bad blood between two
Calgary barristers escalated into a fist fight and one of them brandishing an axe in the
other’s office.
The Law Society of Alberta has issued a public reprimand to Surinder Randhawa for a
series of confrontations with lawyer Dalwinder Hayer that culminated on April 15, 2011,
when the pair brawled in the parking lot of a northeast strip mall that is home to their
neighbouring practices.
“We are supposed to be facilitators and consensus builders. We are not ruffians scrapping
in a parking lot and calling each other down in public,” wrote Doug Mah and Amal
Umar, members of a law society panel that presided over a disciplinary hearing for
Randhawa.
As stern as the reprimand is, Randhawa received a far more serious sanction — a 14month suspension — following a separate hearing that probed a complaint about
fraudulent real estate transactions handled by his office.
The suspension forbids Randhawa from practising law until January 2016. He did not
respond to a request for comment.
The law society, which governs the legal profession in Alberta, issued the sanctions
against Randhawa last fall but only recently made the hearing reports public.
In its first decision, made last October, the law society suspended Randhawa for three
violations of the profession’s rules: failing to supervise his support staff, failing to serve
his clients and failing to follow the law society’s accounting standards.
The complaint against Randhawa was brought by a man identified in hearing documents
as K.S., who discovered he was listed, without his knowledge, as the owner of two
Calgary homes. K.S. discovered the frauds when the issuing banks contacted him about
renewing the loans, first in 2007 and then in 2008.
K.S. contacted police and the law society. Police haven’t laid any charges, but the law
society noted a senior detective attended Randhawa’s hearing.
K.S. and another witness testified that their names and signatures were copied without
their knowledge from documents they provided to Randhawa’s office and used on reams
of real estate documents connected to two properties.
“The law society’s handwriting expert testified that, in his opinion, the purchasers’
signatures on the mortgage commitment were copied and pasted from other source
documents,” read an agreed statement of fact.
The law society made no findings about Randhawa’s involvement in any fraud, but said
he is ultimately responsible for what goes on in his law practice and for the conduct of his
employees. In this case, his wife Kuljit, a Calgary realtor who also worked as a legal
assistant in his office, was his sole employee at the time.
“Mr. Randhawa states that he did not know of and did not participate in an improper
purpose, if one was achieved, but acknowledges that his supervision of the above real
estate transactions and staff was inadequate,” the law society wrote.
The feud with Hayer earned Randhawa three citations for bringing discredit to the legal
profession. Although Randhawa’s lawyer referred to “a history of bad blood” between
the two men, it wasn’t clear about what precipitated an escalation into violence and
threats beginning in 2010.
“Apparently there were some past insults that were possibly culturally based. There was
some discussion about jealousies that may have created ill will. These things were
mentioned, but we heard no real evidence,” the law society wrote.
On May 22, 2010, Randhawa went into Hayer’s office holding a rock. He returned on
May 29 brandishing an axe. On both occasions, a man visiting Hayer’s office, identified
as K.G., was the apparent target of Randhawa’s behaviour.
“K.G. felt threatened by it,” the law society wrote.
The law society also cited Randhawa for directing a verbal tirade at Hayer that was
witnessed by several people at a legal conference in Halifax in May 2010.
The police responded to the fight between the two men in April 2011, but no charges
were laid.
“There is some suggestion that Mr. Hayer is equally to blame. It does take two to make a
fight, but we can’t deal with Mr. Hayer today. Maybe when eventually a decision is
written about this case … Mr. Hayer will take time to read the decision,” the law society
wrote.
-----------------------------------------
Calgary lawyer’s brawling, axe wielding
lead to reprimand
By Geoff Ellwand, Legal Feeds Blog, Canadian Lawyer, January 9, 2015
Two immigration lawyers with seperate offices just a door apart on the second floor of a
strip mall in northeast Calgary have had their disagreements. Perhaps that is not so
unusual for two direct competitors but remarkably the rivalry ended up in a fist fight in
the parking lot and the appearance of at least one of the lawyers before a Law Society of
Alberta disciplinary hearing.
Calgary police investigated the incident but no charges were laid.
The two brawling barristers are Surinder Randhawa and Dalwinder Hayer. Randhawa has
been a practising lawyer in Alberta since 1989 and Hayer since 1994. They have known
each other for 27 years and have occasionally done business. They both serve primarily
the Indo-Canadian community and focus on immigration and real estate.
Randhawa was publically reprimanded by the Law Society of Alberta for his bad
behaviour. The discipline committee included Douglas R. Mah and Amal Umar.
“Adults within a civilized society do not resort to fighting or abusive language to make
their point. Moreover as a Member of the legal profession, you're looked upon to set an
example, not just of honesty and integrity and competence but also professionalism,” said
the LSA report.
“You have been a Member of the Bar of two countries, and you no doubt appreciate that
all over the civilized world, ours is a profession of high standards and expectations. Your
daughter has chosen to follow in your footsteps as a lawyer, and you are right to be proud
of her; but I pose to you, I suppose, rhetorically, what kind of an example have you set
for her and how is she to learn from you as a role model?” said the reprimand.
The LSA’s report and reprimand was made in November but not made public until late
last month. It includes and agreed statement of guilt.
Hayer was not sanctioned by the committee’s report noted: “There is some suggestion
that Mr. Hayer is equally to blame. It does take two to make a fight, but we can't deal
with Mr. Hayer today.”
Neither lawyer returned calls from Legal Feeds, but at the law society hearing
Randhawa’s counsel cited some unspecified “bad blood” between the two and asserted
“Mr. Hayer may have insulted Mr. Randhawa and his family at one point.”
The law society also states that about a month after the April 2011 brawl Randhawa took
a rock, and, a week later, an axe into Hayer’s office “in an apparently threatening
manner.” It also found that in the fist fight Randhawa received some unspecified injury
and his eyeglasses were broken.
The fight may have been linked to an incident cited in the law society report which
occurred the year before at a law conference in Halifax. There, within the hearing of
others, the report said Randhawa used loud and abusive language toward Hayer.
This is not Randhawa’s first brush with the law society. He has had several run-ins and
has been suspended on several occasions,including for failing to follow the law society’s
accounting rules and failing to serve clients. He is currently serving a 14-month
suspension — on matters unrelated to the brawl — and was assessed an estimated
$80,000 in costs.
He was reprimanded in that case as well, with the Law Society of Alberta, calling his
behaviour “shameful” and stating he had “brought disgrace upon the LSA and the
community he served.”
------------------------------------------
The top Canadian legal stories to watch
in 2015
STEVEN SKURKA, Contribution to the Globe and Mail, January 5, 2015
Steven Skurka is a Toronto-based criminal lawyer
Trial of Toronto police officer: During a period in the United States when there is a
robust debate about police accountability in cases of lethal force, a Toronto police officer
will proceed to a jury trial on a charge of second-degree murder and attempted murder.
The officer, James Forcillo, is charged in relation to the fatal shooting of teenager Sammy
Yatim on an empty streetcar in the summer of 2013. A cellphone video captured the
scene of the shooting in which nine shots were fired and Mr. Yatim was ordered to drop a
knife. It is rare for a police officer to be charged with murder in the course of his duties
and highly unusual for any defendant to face charges of murder and attempted murder in
relation to the same person. The trial will likely focus on the training and appropriate
response of the police to the situation that confronted officer Forcillo at the time of the
shooting.
Assisted suicide: The Supreme Court of Canada will decide in the appeal of Carter v.
Canada if physician assisted suicide for the terminally ill is a constitutionally protected
right with safeguards in place to prevent its abuse. The Carter appeal will be a test of the
boundaries of the country's humane values. Can there be a valid justification to force an
adult who is in grievous pain and dying to continue to suffer rather than receive the
medical assistance being sought to hasten death? The court will likely follow the path of
a number of European countries and a couple of U.S. states and create a carefully
balanced model that introduces a limited right to assisted suicide.
Minimum sentencing: A critical feature of the Harper government’s law and order
policy has been the resort to mandatory minimum sentences that remove the sentencing
discretion of judges. In the appeal of R. v. Nur, the Supreme Court of Canada will decide
if a law requiring a three year minimum sentence for possessing a loaded prohibited
firearm is cruel and unusual punishment and should be struck down under the Charter of
Rights. In legal terms, the nation's highest court will examine if a three year sentence
could ever represent a grossly disproportionate sentence for a person charged with the
offence such as the “'otherwise law-abiding responsible gun owner”' cited by the Ontario
Court of Appeal in its decision in the case. The larger message of the court's decision will
be interpreted as its willingness to vitiate a core element of the Harper government's
criminal reform agenda.
Jian Ghomeshi: The former CBC radio host of Q, will appear in court for his
preliminary hearing on four charges of sexual assault and one charge of overcome
resistance by choking. The case has generated a blast of Internet and media coverage and
generated discussion about the adequacy of the country’s criminal justice system's
response to complaints of sexual violence as well as the erosion of the presumption of
innocence in high profile cases with emotionally charged allegations. The case will
finally land in a courtroom where the complainants will testify with a publication ban in
place and the process will properly begin of Mr. Ghomeshi being tried on the merits of
the case.
Mike Duffy: The most closely watched trial of 2015 will involve a case of alleged
political corruption that is anticipated to draw as witnesses officials of government at the
highest level of the country. The trial of Mike Duffy, the suspended Senator, will unfold
in an Ottawa courtroom before a Superior Court judge. Mr. Duffy is facing 31 charges of
fraud, breach of trust and bribery that include allegations relating to false residence and
travel expense claims he made as a Senator and a $90,000 payment Mr. Duffy received
from the Prime Minister’s then chief of staff to repay one of his questionable expense
claims during a swirling public controversy. Mr. Duffy's defence will likely highlight the
lack of clarity of Senate rules in claiming expenses and the dubious allegation that the
$90,000 payment was a bribe when he was the only person charged. The evidence
adduced at the Duffy trial may affect the 2015 federal election and possibly impact its
timing.
-------------------------------------------
Here's what the Supreme Court will
hear in its 2015 session
IAN MACLEOD, OTTAWA CITIZEN, JANUARY 6, 2015
A decades-old double homicide is the backdrop for the first appeal before the Supreme
Court in 2015. Following that, it will be a year of legal clashes and rulings on assisted
suicide, government anti-crime reforms, human smuggling and even pot brownies. Here’s
a look:
Extradition appeal
Next week, two Quebecers wanted by police in the United States for the 1988 slayings of
a New Hampshire lesbian couple will appeal to the high court to strike down federal
extradition orders.
Anthony Barnaby stood trial in the U.S. three times in 1989 and 1990 for the crime, but
each trial ended in a hung jury. Murder charges were eventually dropped.
Now U.S. prosecutors want another crack at him and his alleged accomplice, David
Caplin. The two men were working construction in New Hampshire at the time.
Prosecutors believe Barnaby stabbed the women to death because he disliked their
lesbian lifestyle.
Barnaby wants the Supreme Court to uphold a Quebec Court of Appeal ruling that a
fourth trial would be abusive in both Canada and the U.S.
The federal department of justice, which launched the high court appeal, counters that
striking down the extradition order would usurp the responsibility of a future U.S. trial
judge to ensure trial fairness, and would be antithetical to the principles of comity and
respect for other countries that have extradition agreements with Canada.
Child pornography
Also next week, two Alberta men will ask the court to overturn their child pornography
convictions based on a 2001 Supreme Court ruling that created a “private use exception”
to laws against making and possessing child porn.
In 2008, Donald Barabash, then 60, and Shane Rollison, then 42, invited two 14-year-old
runaway girls to stay at Barabash’s Edmonton home for a few weeks. While there, the
girls used drugs and willingly participated in the videotaping of various sexual acts,
including between themselves. (It was one month before Parliament raised the age of
consent to 16 from 14.)
The “private use” exemption protects the making and possession of child pornography if
three narrow grounds apply: the acts were ostensibly consensual; the recording was
ostensibly consensual; and the pornography was privately held. It covers, for example, a
teenaged couple’s private photographs of themselves engaged in lawful sexual activity.
The defence argued the private use exemption applied because the material did not depict
unlawful sex acts and was for private use. The prosecution argued the nature of the
situation was exploitive – and therefore unlawful – because of the age differences, sex
acts and use of drugs by the girls.
The trial judge ruled that the men had made child pornography, but accepted the defence
argument that the private use exemption applied. Barabash was also acquitted of
possessing child pornography.
The ruling was overturned by an appellate court, which found the girls were in an
exploitive situation, therefore removing the protection of the private use exemption.
Barabash and Rollison are appealing that decision and their resulting convictions.
Assisted suicide
The most-anticipated judgment for 2015 will be a potentially landmark ruling on
euthanasia and physician-assisted suicide, and whether criminal laws should apply to
physician-assisted death. It will mark the first time the top court has addressed the issue
since 1993, when it narrowly upheld a criminal ban in the case of Sue Rodriguez.
Proponents argue laws treating the act as tantamount to murder are a violation of personal
autonomy and infringe on section 7 of the Charter of Rights’ guarantee to “life, liberty
and security of the person.”
The latest challenge to the law was launched on behalf of two British Columbia women,
Katy Carter and Gloria Taylor, who have both since died. The B.C. Supreme Court struck
down the law in 2012. The B.C. Court of Appeal overturned the decision last year.
Suicide is not a crime in Canada. But the Conservative government has argued Criminal
Code provisions prohibiting anyone from assisting in suicide protect the sanctity of life
and the most vulnerable. The B.C. Civil Liberties Association is arguing the best
protection for all Canadians is regulation, not criminalization.
Mandatory minimum sentencing
Another anticipated judgment is on the federal government’s tough-on-crime mandatoryminimum sentences for gun crimes and whether that regime constitutes cruel and unusual
punishment.
Two Ontario men were separately convicted of firearms offences and received the
mandatory minimum sentences under a 2008 Conservative government stiffening of the
Criminal Code for gun crimes: a three-year mandatory minimum for first offences and a
five-year mandatory minimum for repeat offences.
Both men challenged the new penalties, saying they violated their section 12 Charter
rights to protection from “cruel and unusual punishments.” The Ontario Court of Appeal
agreed in 2013 and declared the law unconstitutional. (It also upheld a one-year
mandatory minimum for committing an offence using a firearm.)
The Crown appealed to the Supreme Court last year to overturn the Ontario ruling.
Human smuggling
In February, the court is to hear a related series of appeals from five denied refugee
claimants, all but one from Sri Lanka, who say they were ensnared in overly broad
interpretations of this country’s human smuggling laws.
Critics have complained that vague wording in the law too easily allows those being
smuggled to be lumped together with those who did the smuggling, and also unfairly
punishes smugglers who acted on humanitarian grounds rather than for financial gain.
The government says the law should remain broad to effectively deal with the major
threat of organized crime that human smuggling can represent. It falls to the Supreme
Court of Canada to sort it all out.
Pot rights
In March, the court is expected to rule on whether medical marijuana patients have a
constitutional right to cannabis oils, butters, teas and lotions.
A Crown appeal was launched in the fall following a decision of B.C.’s Court of Appeal
that found the Canada’s medical marijuana legislation was unconstitutional because it
restricts patients to possessing and smoking only the dried plant material.
The case began when Owen Smith, of Victoria, was charged in 2009 with possession for
the purpose of trafficking and unlawful possession of marijuana after police found more
than 200 pot cookies and cannabis-infused olive oil and grapeseed oil in an apartment
there. Smith is the former head baker for the Cannabis Buyers Club of Canada.
At Smith’s trial in 2012, his lawyer argued that the medical marijuana access regulations
were unconstitutional and arbitrary and did not further the government’s interest in
protecting public health and safety.
In the end, a judge found that criminalizing a patient’s choice of smoking or eating his or
her medication was an unwarranted infringement of security of the person rights
guaranteed by Section 7 of the Charter.
Smith was acquitted of the outstanding drug offences and the Crown appealed the trial
judge’s decision and lost.
----------------------------------------------------
MacKay mirrors rightward tilt of the
country
LAWRENCE MARTIN, Columnist for The Globe and Mail, January 6, 2015
Guns have been much in the news recently, but you don’t see much talk, such is the tilt of
the country, about the disappearance of the gun registry. The assault on Parliament might
have stirred some protest. Where did Michael Zehaf-Bibeau get the rifle? Was it
registered? The information might have been useful to the police. Then came the 25th
anniversary of the slaughter at Montreal’s École Polytechnique. Then the massacre over
the holidays in Edmonton. Through it all, hardly a whimper from gun control advocates
who were so outraged when the registry was killed.
Liberal Leader Justin Trudeau, realizing what a mess his party made of the registry,
doesn’t want it back.
The NDP’s Thomas Mulcair wants to bring in a new registry of some kind, though not
the Liberal-styled one. After all, police favour the tracking of firearms. And he wonders:
Is it really that much of a burden on gun owners? New Democrats, he said, “have
confidence in the ability of farmers and duck hunters to fill out a form.”
But Mr. Mulcair has been low-key on it. No shouting from the rooftops. He knows how
the Conservatives can turn the registry into a lethal political weapon.
The NDP leader might have better luck going after the Conservatives on other aspects of
their criminal justice package, such as the slammer-is-the-answer philosophy. Though
criminologists repudiate it as a throwback to the Dark Ages, Justice Minister Peter
MacKay is much in favour. As well, he likes hard anti-prostitution laws and a hard
approach to soft drugs. In the Defence portfolio he wanted to militarize to the hilt. In
Foreign Affairs he was a China-basher.
In the tilt of our society he has been a central player. He presided over the death of the
Progressive Conservative party, which was swallowed up by the more ideological
Canadian Alliance Party.
Though never a Red Tory, Mr. MacKay used to be viewed as a Brian Mulroney
conservative, someone who espoused the party’s moderate traditions from John A.
Macdonald through Robert Borden, John Diefenbaker, Mr. Mulroney, Jean Charest, etc.
He tried to get Bernard Lord, hardly a hardliner, to run against Mr. Harper for the
Conservative leadership.
But in government he became a clone, much like Rob Nicholson, another Mulroney Tory,
of Stephen Harper. He drank the Kool-Aid, as the saying goes, and although it is not easy
to do otherwise under a ruler so resolute, the extent of his allegiance has been striking.
In Nova Scotia, from where Mr. MacKay hails, Reform-type Conservatives are not a
populous breed. The party is currently faring miserably in the Maritimes and oddsmakers doubt whether he can hold onto his seat in Central Nova. His ideological casting
of himself in the vicinity of Jesse Helms hardly helps.
Moreover, if Mr. MacKay had any designs on a future leadership bid, a pitch to the
moderate side would have been in his interest given the right flank is covered off by
Western guys like Jason Kenney. Perhaps he realized there was hardly any moderate side
left.
His evolution is an example of the tenacious strength of the right’s grip. In the days of
past Tory leaders, those who control the party today would have been regarded as
reddish-necked fringe players. In the new Canada, they are entrenched.
There is still some bleating in Conservative circles about them not having made much
headway under Mr. Harper on social conservatism and about federal intrusions into the
economy.
But they should pause to consider the conservative gains. Gains on criminal justice, on
making taxation such a dirty word that progressives are terrified to utter it, on moving
Canada to a radical right foreign policy unheard of in the past, on relegating the
environment – Mr. Mulroney used to win green awards – to low priority, on shrinking
civil liberties, on union bashing, on guns.
Peter MacKay has been comfortable with it all. His trajectory mirrors that of his party
and much of the country.
-------------------------------------------
N.S. legal profession becoming more
diverse: study
By Shannon Kari, Legal Feeds Blog of Canadian Lawyer Magazine, January 7, 2015
The legal profession in Nova Scotia is steadily becoming more diverse, although a new
study shows the gains are more noticeable in the public sector than at private law firms.
Nearly 50 per cent of lawyers in the province called to the bar since 2000 are female.
Almost 15 per cent of calls during that period are identified as part of “equity-seeking
groups,” states the study commissioned by the Nova Scotia Barristers’ Society.
The survey is part of long-standing efforts by the organization to improve employment
equity in the legal profession in the province. It is the first time that it has commissioned
an analysis of the demographics of lawyers in Nova Scotia.
“Before, we did not have good data,” says NSBS president Tilly Pillay. “We have never
been able to have numbers and statistics. This is a good start,” she says.
The survey shows while there has been an increase in the number of female lawyers, as
well as those who identify as Acadian, African NS/Black, Mi’kmaq/Aboriginal, LGBT,
or as a person with a disability — the changes have been very gradual over the past two
decades.
As well, the current data indicates male lawyers are more likely to be a partner in a law
firm, while female colleagues are counsel for a government ministry of public sector
organization.
About one-quarter of the 1,404 male lawyers in the province are partners in a law firm,
compared to 12 per cent of the 854 female lawyers. Nearly 30 per cent of female counsel
are employed in the public sector.
One-in-five people within one of the equity-seeking groups is a partner in a law firm,
which is about the same percentage as those working in the public sector.
The study, conducted by R.A. Malatest & Associates Ltd., concludes there is an “overall
improvement in employment equity” within the province. While much of this
improvement is in the public sector, “there are indications that private firms are becoming
more accessible to members of designated groups,” the study concludes.
Increasing the diversity within certain sectors of the legal profession, “is never as quick
as we want,” says Pillay, who is also executive director of the legal services division at
the provincial Department of Justice.
However, the data compiled in the study is useful when “urging legal employers to have
this foremost in their minds,” says Pillay.
“I think it is getting traction that diversity is also good business for law firms,” she
suggests. If a firm better reflects the demographics of a community, “people in these
communities will turn to you for legal advice,”
Pillay is also optimistic the rate of change will accelerate.
“As people remain in the profession, they will also be mentors and role models. Things
will happen much more quickly than in the past 20 years,” she says.
------------------------------------------------
Restorative justice gets to the root of the
evil
DANNY GRAHAM , Contribution to the Halifax Chronicle-Herald, January 5, 2015
The first time I heard of restorative justice, I remember feeling troubled that anyone
would take it seriously. I was sitting in a classroom at Dalhousie law school listening to a
professor extol its benefits when it occurred to me that this was an example of the
impractical dreams I was told to ignore from “soft-touch” left-leaning law professors.
The professor’s praise of this approach jarred my rough and tumble, hockey-influenced,
view of the world. I believed the issue was straightforward: jerks and crooks should be
dealt with firmly, by someone with the spine to straighten them out with swift and tough
punishment.
What a difference real-world experience can make. For much of the past 30 years, I’ve
worked both with offenders on the frontlines and with justice departments in Canada and
overseas as a policymaker.
What I have learned is that our preoccupation with tough punishment is sacrificing
opportunities for safer societies, more satisfied victims and reformed offenders. In the
systems of police, courts and corrections, rates of reoffending remain stubbornly high;
victims’ needs are typically ignored; and the general public stays largely oblivious to the
causes of harm and crime.
This lack of public knowledge is partly because the mainstream justice system has
become a place to bury our social problems instead of opening them up to be addressed
— the way restorative justice does. The price of this public unawareness is mounting.
In our desire to have the despicable behaviour of the now-suspended Dalhousie dentistry
students taken seriously, our outrage seems to have triggered our public “let’s get tough”
reflex, instead of our “let’s get it right” reflex. This can be dangerous.
Moments like these test us. Nova Scotia has become an internationally recognized leader
in restorative justice over the past 15 years. Justice leaders from around the world have
come to our province to learn from our success; but as Nova Scotians, we remain unclear
about what it is.
First of all, restorative justice is not a panacea. It does not offer solutions for all people in
all situations. Moreover, it is more challenging in situations like the dentistry matter —
where there are ongoing relationships, and the harm alleged is of a sexual and violent
nature.
But, contrary to some media reports, it is far from an informal, soft or weak process. It is
a rigorous, internationally recognized approach, backed by extensive research and refined
training.
The variety of consequences and outcomes in restorative justice can be as wide-ranging
as it is in the mainstream system — resulting in accountability that is sometimes “lighter”
and sometimes “heavier” than the traditional justice system.
While the names of the parties are often not disclosed, the findings and outcomes can be
made public in the interests of justice.
When done well, the research points to those harmed being the biggest winners in a
restorative justice process — with victims consistently reporting higher satisfaction rates
than in the mainstream justice system. So, why would we want to remove this option
from these students? Why would we deny them an informed choice they believe would
better meet their needs?
The important point is that the focus for restorative justice participants — victims,
offenders, community members and their supporters — is on what is most effective for
them, instead of what is the right level of toughness.
Of particular relevance to this case is that it is far more possible through restorative
justice than in the mainstream system to identify and begin to address the systemic social
problems that brought about these deplorable actions in the first place.
Following on the heels of reports that celebrities we trusted acted violently toward
women, we have a unique opportunity to understand and tackle widespread misogyny
and sexualized violence more seriously and systematically. Let’s not sweep this messy
problem under the carpet by mistakenly believing that a simple tough response is going to
miraculously fix a complex social problem.
Life is layered with complexity. Lasting solutions aren’t found in simple answers. Even
traditionally “tough justice” states like California and Texas are gradually reversing their
simple punitive policies because they have cost so much and failed so badly.
And this is Nova Scotia, after all. If ever there was a culture that can navigate the
intricacies of these issues, Nova Scotia is it. At our best, we are a tolerant and balanced
people — not seduced by fancy new ideas or easy outs. We understand both the frailties
and shortcomings of human beings, and the power of community to hold each other
accountable.
We should rise to this challenge, take full responsibility for it and ensure another
generation of men and women don’t grow up in it.
Danny Graham, QC, has been recognized by the Nova Scotia government for helping to
found the provincial restorative justice program. He has also worked with the United
Nations to advance restorative justice internationally.
----------------------------------
How restorative justice re-connects
fairness to justice
EVA MARSZEWSKI, Contributed to The Globe and Mail, January 10, 2015
Eva Marszewski is an adjunct faculty member at Osgoode Hall Law School and is the
founder and executive director of Peacebuilders International (Canada), which promotes
restorative justice.
Dalhousie University President Richard Florizone has agreed to engage in a restorativejustice process in order to address the toxic, sexually threatening remarks made on a
private Facebook group by male dentistry students against their female dentistry student
colleagues. It has been alleged that the Facebook postings are but one example of
systemic misogyny at the university, that complaints have been systemically suppressed,
and that the University’s decision to use restorative justice is yet one more example of a
practise of sweeping “uncomfortable matters” under the rug instead of maintaining the
wellbeing of students as the University’s highest priority. Protesters want action. They
want the 13 male dentistry students expelled.
Either failing to understand the restorative justice initiative undertaken by Dalhousie, or
being unwilling to let Dalhousie first address the issue, even the Province of Ontario
dentist-licensing agency has jumped into the fray and wants the university to release the
names of each of the 13 dentistry students. The agency’s registrar has called for zero
tolerance of such behaviour.
With quiet determination Mr. Florizone announced that, instead, the University will take
its time to act with professional advice and determine the facts, to understand individual
levels of culpability, to meet with each of the victims as well as each of the students
involved. In the meantime, it has suspended each of the 13 students. They will be unable
to graduate while suspended.
While Mr. Florizone has expressed repugnance at the toxic Facebook postings, he has
insisted that any consequences would be based on “a just process…that supports the
rights of everyone involved.”
Restorative justice – or smart justice as some call this movement – when properly
applied, provides practical support for our belief in the presumption of innocence and a
renewed affirmation in a society which is governed by the rule of law. It has been tried
and tested for several decades: In the 1980s and ‘90s, the field of mediation was
developed to manage and de-escalate conflict. Then restorative justice developed as a
response to the challenges of managing culpability, supporting and rebuilding
relationships and protecting society.
When allegations of wrongdoing require action, there are several stages which must take
place regardless of whether they take place within a court, an arbitration or a restorative
justice process.
The first is to determine what process is appropriate to the individuals or problems at
hand. Where there are discreet issues impacting relationships – as in the case of conflict
among the members of a graduating class – a restorative justice process is ideal. In
circumstances as complex as the Dalhousie situation, the process will likely take place
within one or more of three vehicles: victim-offender mediation, conferencing and
circles.
The next step is to identify all necessary stakeholders. Each stakeholder’s situation must
be taken on its own merits to ensure fairness. The process facilitator will convene one or
more private sessions with each of the complainants and the alleged wrongdoers. Other
stakeholders (those who have a direct interest in the outcome – such as employer, teacher,
family or community member) will be called upon to participate at an appropriate time.
Alleged wrongdoers who are unwilling to participate honestly and who are unwilling to
take responsibility appropriate to their level of culpability will likely be diverted back to
the usual disciplinary process or legal system.
The ensuing restorative justice process will enable participants to produce a fair, balanced
and appropriate plan of action. The plan is submitted to the ultimate decision-makers – a
disciplinary committee, decision-making body and/or judge for implementation. As in the
rest of life, there are no guarantees.
One of the most important reasons that restorative justice has gained global recognition
and respect is that it gives a real voice and choice of process to victims of wrongdoing,
something that the justice system continues to be woefully incapable of providing. Those
who have been wronged can participate in person, through an agent or lawyer, by
providing their stories in written or even video form. Each of these options must be
carefully considered.
On a deeper level, restorative justice attempts to re-connect fairness to justice and in
doing so, it repairs relationships. As we all know, the justice system is ill-prepared to
repair relationships. We have all seen how many family relationships are broken in court.
Restorative justice both allows and requires wrongdoers to obtain a deeper appreciation
of their own actions and the negative consequences of those actions, whether intended or
otherwise.
Participating in a restorative-justice process is by far one of the hardest things that
wrongdoers have ever had to do. Why? Because the process requires them to be honest
with themselves and with those they have harmed. It requires them to be accountable
genuinely and meaningfully for their actions and to participate in the difficult process of
determining the appropriate consequences. Restorative justice processes also provide an
opportunity for other stakeholders and for the community to participate.
As both a litigator and arbitrator who has spent the first half of my career dealing with
relationship-based disputes (such as family and sexual harassment cases) in the justice
system – and now a standing practitioner in the fields of mediation and restorative justice,
I applaud the decision of Mr. Florizone to withstand the public pressure and proceed to
manage the Dalhousie Dentistry students’ situation with a restorative-justice approach.
-------------------------------------------
Colleagues offer their thoughts on
Greenspan’s magic
Hard work, personal qualities made for a ‘remarkable man’
Michael McKiernan, The Law Times, January 5, 2015
As a high school student, Michael Lacy could barely have imagined meeting his idol
Eddie Greenspan, let alone working with him one day.
“I know it sounds cliché, but he really was the reason I wanted to be a lawyer and
practise criminal law,” says Lacy of Greenspan, the legendary criminal defence lawyer
who died on Dec. 24 at the age of 70 on holiday in Phoenix, Ariz.
The dream eventually did come true for Lacy, a partner at Greenspan Partners LLP,
although it seemed for a long time that it might never happen for him. Despite crossing
paths repeatedly with Greenspan, Lacy failed to penetrate the larger-than-life public
persona projected by the veteran practitioner in his public and media appearances.
Nervousness got the better of Lacy after a law school talk given by Greenspan, while his
articling application to Greenspan’s firm ended at the first interview stage without
meeting the man himself. Years into his practice, Lacy rented an office in Greenspan’s
building, but it was still two years before the two spoke meaningfully.
“I was so intimidated but then I got the chance to work directly with him on a file. That’s
when I saw the brilliance of Eddie Greenspan in action,” says Lacy.
“He was an amazing strategist, his work ethic was unparalleled. . . . But what struck me
the most was how collaborative he was. He was generous with his time and was not only
willing to discuss legal issues and strategy with me, he actually wanted to hear what I had
to say.”
Todd White, who spent more than two decades as Greenspan’s law partner before starting
his own criminal defence firm, says he, too, had issues overcoming anxiety at first about
meeting one of the most renowned and revered criminal lawyers in the country.
“When I got to know him, I found not only a great lawyer but also a sweetheart of a man.
His public personality had nothing to do with his private personality. I found him a shy,
extremely funny, and very generous person,” says White.
According to White, Greenspan’s openness to fellow lawyers in need of advice made his
office a hive of activity.
He says Greenspan would never say no to a defence bar colleague with a legal or ethical
problem.
“Countless people would call to talk, and he would drop everything to help them figure it
out,” says White.
According to Niagara Falls, Ont., lawyer George Walker, Greenspan also placed the odd
phone call himself. He remembers hearing from his old friend, who also grew up in the
city at the same time as Walker, out of the blue while defending Karla Homolka.
“It wasn’t to give advice or anything about the case. Obviously, he had had a lot of
experience working on very high-profile cases and he just wanted to check I was doing
OK emotionally. He did that a number of times. He was very caring that way,” says
Walker.
The pair became close as young lawyers in Toronto. “Niagara Falls boys stick together,”
says Walker, who notes he has never seen a courtroom performer like Greenspan.
“He had this structured method of cross-examination, but if the Crown sprung something
on him during the course of the trial, he could develop an argument on his feet. More
often than not, those arguments were successful. It didn’t matter how long a trial was; he
had a steady pace and he never lost it. He wore Crowns down and he wore witnesses
down. You could see it in the courtroom.”
A young Edward Prutschi, now a partner with criminal law firm Adler Bytensky Prutschi
Shikhman, used to skip school to watch Greenspan work his magic in court.
“He was so calm and collected and had such a dominant personality without ever having
to raise his voice, display anger or even overt emotion,” says Prutschi.
“With a couple of casual questions, he could make the courtroom shrink so it felt like it
was just him and the witness there. It could be half an hour before they realized they’d
been painted into a corner where he wanted them, and by then it was too late to weasel
out because he’d laid the groundwork so perfectly.”
Earl Cherniak, a long-time friend of Greenspan, says one of his trademark crossexaminations provided a highlight of their working relationship. Cherniak was in Chicago
observing Conrad Black’s criminal trial in his role as Black’s lawyer in numerous civil
matters when the press baron’s former business partner and key prosecution witness
David Radler took the stand.
“Then I watched Eddie decimate Radler,” says Cherniak.
“By the time he was finished, if Radler told you what day of the week it was, you’d want
to check the calendar before you believed him.”
Cherniak says Greenspan’s recipe for success was relatively simple albeit difficult to
replicate.
“First, he had a brilliant mind and second, he worked harder than anyone. When Eddie
said that it would take him 50 hours to prepare for one hour of cross-examination, he was
not exaggerating. That’s what it takes, so that’s what you do. Add to that his personal
qualities, and you had a remarkable man.”
White says Greenspan in full flow in court could look like magic.
“It wasn’t really magic, it was hard work. I think his work ethic and preparation made
him the greatest cross-examiner. He poured over every transcript and looked at every
aspect of the case,” he says.
Still, he can’t help but acknowledge an element of the mystical in Greenspan’s work.
“He did have a wonderful sixth sense for knowing if someone was lying, exaggerating or
telling the truth,” says White.
Lacy says Greenspan’s death leaves a huge gap in both his professional and personal
lives as well as those of his many friends and family members.
“In the end, Eddie was so much more than that person I idolized as a young student and
wanted to be when I grew up. Knowing him surpassed all of my expectations. He was my
mentor, my partner, and a dear friend. And I will miss him greatly.”
-----------------------------------------------
The Top Ten Canadian Legal Ethics
Stories – 2014
By Alice Woolley, Professor at the Calgary Faculty of Law, ABlawg.ca, January 2, 2015
For the last two years I have written up the “top ten” Canadian legal ethics stories for the
prior year (2013 and 2012). This year I initially wondered whether it would be possible to
identify ten important legal ethics stories. It wasn’t. Moreover, it is fair to say that some
of these stories now justify the descriptor “saga,” making their third consecutive
appearance on the list.
It should be noted that the ordering of the list is neither rigorous nor based on a precise
calculation of each story’s importance. Nor is the “Top Ten” descriptor a claim I’d
aggressively defend. I’m not sure whether, in an objective sense, these are the top ten
stories and nor am I sure which ones are more interesting and significant than the others.
But since “Ten Canadian legal ethics stories listed in no particular order but that I, for my
own idiosyncratic reasons, think are interesting and significant” is not exactly catchy, I’m
sticking with “Top Ten.”
1. Trinity Western’s Approval Revoked
On December 11, 2014 the British Columbia Minister of Advanced Education revoked
the consent it had previously granted to Trinity Western University to open a law school.
It did so based on the “current uncertainty over the status of the regulatory body
approval” for the law school (CBC, December 11 2014). That uncertainty arose from the
decisions by the law societies in British Columbia, Ontario, New Brunswick and Nova
Scotia either not to approve the admission of graduates of Trinity Western or to do so
only conditionally. My overview of the regulatory history of Trinity Western’s proposal,
and the issues it raises, is here. Elaine Craig’s article from June 2014 on TWU is here.
SLAW blog posts on Trinity Western from 2014 can be found here, here, here, here and
here.
The Trinity Western law school proposal is one of the legal ethics sagas. It has raised
significant issues in legal ethics, particularly in relation to the effectiveness of the
Federation of Law Societies (whose approval process was in the end not treated as
binding or even given much weight); the scope of anti-discrimination and protection of
diversity with respect to admission to the profession; the role of the law societies in
determining that scope and protection (as opposed to, say, human rights commissions);
the process used by law societies to consider Trinity Western’s application; and, finally,
the role of law societies in regulating the content of legal education.
It is also a saga likely “to be continued” in the next few years: if Trinity Western
proceeds with its various applications for judicial review of its law school, and if it
succeeds in those applications, either procedurally or substantively, then this matter will
end up back before the Minister of Advanced Education and, perhaps, the law societies.
2. Settlement of the complaint against Lori Douglas
On November 24, 2014 the Canadian Judicial Council stayed its investigation into the
conduct of Associate Chief Justice Lori Douglas in consideration for her agreement to
retire effective May 2015. As noted in an article on CBC.ca, the investigation into ACJ
Douglas had been ongoing for four years and cost approximately $3 million. The
legitimacy of the investigation was – and continues to be – fiercely criticized. Most
recently critics focused on the CJC’s insistence on viewing the pictures of ACJ Douglas,
even though the basic content of those pictures was widely known (see, e.g., Blatchford,
Drummond #1, Drummond # 2, Open Letter).
The settlement agreement prevents the continuation of proceedings that seemed most
unlikely to reach any satisfactory and fair conclusion given the muddied issues they
raised – was the issue the failure to disclose the existence of the pictures on her written
application for appointment? Was it Douglas’s alteration of her personal diary once the
investigation commenced? Or was it the existence of the pictures themselves? A letter
written by Norman Sabourin in response to an Open Letter criticizing the CJC suggests
all of the above.
The agreement also means, however, that the significance of online sexual pictures to
future judicial applicants remains unclear. Do prospective judges need to disclose the
existence of pictures that are on the web? Do they need to disclose the existence of
pictures that may be put on the web at some future time? Does disclosure depend on the
likelihood that the pictures will end up on the web? What, ultimately, is the burden on an
applicant? From a policy perspective, given the increased prevalence of such pictures in a
digital age, what would the effect of compulsory disclosure of such pictures be on
applications by women to the bench relative to men over the longer term? These are
questions that merit further consideration and clarification.
3. The Canadian Bar Association Futures Report
In August 2014 the Canadian Bar Association published the report of its Legal Futures
Initiative, Transforming the Delivery of Legal Services in Canada. The result of extensive
consultation and research, the Report offered a considered assessment of issues and
challenges facing the legal profession, and made recommendations for changes to the
regulation and education of Canadian lawyers. The most controversial of those
recommendations are those supporting liberalization of the legal services market and that
lawyers be permitted to practice in “Alternative Business Structures”. Specifically, the
Report recommended that “Lawyers should be allowed to practise in business structures
that permit fee-sharing, multi-disciplinary practice, and ownership, management, and
investment by persons other than lawyers or other regulated legal professionals”
(Recommendation #1, p. 35). It also recommended regulatory changes to permit effective
rather than direct supervision of non-lawyers (Recommendation #4, p. 42), fee-sharing
with non-lawyers (Recommendation #5, p. 43) and compliance-based entity regulation
(Recommendation #8, p. 47).
The merits of the CBA’s proposals can be debated. The regulatory changes they propose
are, in some cases, themselves top ethics stories from the year, as discussed below. But of
independent significance is the fact that the CBA has been willing to engage in this
process, and to take positions that challenge the regulatory status quo. There is nothing
modest or timid about the CBA’s approach. When faced with a similar opportunity the
American Bar Association ducked, declining to consider any liberalization to the rules
preventing non-lawyer ownership (see James Moliterno’s criticism of the ABA 20/20
Commission, here but also some debate on Moliterno’s criticisms here). I am not an
impartial observer– I was a member of the CBA’s Professional Regulation Futures
Committee – but in my view the CBA is to be commended for its initiative and openness
to new ways of regulating the profession.
4. Alternative Business Structures
As noted, one of the key recommendations of the CBA was to permit alternative business
structures (ABS), law firms that are owned, at least in part, by non-lawyers. In September
the Law Society of Upper Canada released its Discussion Paper Alternative Business
Structures: The Future of Legal Services, seeking input from its membership about
whether, and to what extent, alternative business structures ought to be permitted.
The debate around ABS focuses on their risks and rewards, with opponents suggesting
that ABS pose significant risks to lawyers’ integrity and their provision of services to
clients, while creating few real benefits to access to justice (see, e.g., Ontario Trial
Lawyers Oppose ABS; Ken Chasse on ABS).
Proponents suggest that there is evidence to support ABS’s positive effect on access to
justice (Kowalski on ABS) and that, in any event, the risks posed by ABS to the legal
profession ought not to be overstated (Mercer #1 and Mercer #2). The questions now are
whether any law society will be willing to proceed with ABS, if so which one and if so
will others follow suit?
5. Jian Ghomeshi’s Statement of Claim
The serious criminal allegations against Jian Ghomeshi were one of the top news stories
in Canada in 2014. But the allegations also had a legal ethics dimension. Specifically,
was it ethical to file a statement of claim that was arguably meritless and that may have
been intended to suppress legal claims against Ghomeshi? This question was debated by
David Tanovich (arguing that filing such a claim is unethical) and me (arguing that, while
ethically problematic, it is not improper). Howard Levitt and I have also raised questions
about the sufficiency of the advice given by Ghomeshi in relation to filing the Statement
of Claim.
6. British Columbia Regulatory Task Forces
As noted, the CBA Futures Project recommended the adoption of compliance-based
entity regulation. In 2012, the British Columbia Legal Profession Act was amended to
give the Law Society of British Columbia the authority to regulate law firms. The Law
Society has struck a task force to “recommend a framework for the regulation of law
firms” (LSBC Task Force). Adam Dodek wrote a paper advocating law firm regulation in
2012 (here) and it is significant that the law societies are taking concrete steps in this
direction.
Of perhaps even greater note, however, is that in December 2014 British Columbia’s
Legal Services Regulatory Framework Task Force recommended that “the Benchers seek
an amendment to the Legal Profession Act to permit the Law Society to establish new
classes of legal service providers to engage in the practice of law, set the credentialing
requirements for such individuals, and regulate their legal practice.” The areas in which
such legal service providers would be permitted to practice include family law. A
loosening of the constraints on legal practice by non-lawyers may be the most significant
development in increasing access to justice, particularly in family law, where it is
estimated that 70% of participants are unrepresented (Julie MacFarlane, cited in Mercer
#2)
7. A2J
Access to justice continues to be a significant issue for Canadian lawyers and the public,
and for good reason. As John-Paul Boyd noted in a post on SLAW on December 5th:
“The present situation is, with the greatest respect, staggering. We have at hand a crisis
on a national scale, affecting a system that costs governments billions of dollars a year to
maintain, and yet we as a society are unwilling to allocate the few millions of dollars that
are necessary to tackle the problem as aggressively as it requires” (Boyd on A2J). Two
major reports on access to justice were published in 2013 (Action Committee on Access
to Justice in Civil and Family Matters Report and CBA Equal Justice Report) and, as
indicated by the BC task forces, the CBA Futures Report and the debate over ABS, legal
regulators and the legal profession are taking the access to justice problem seriously.
They are trying to remove barriers to the provision of legal services and to facilitate
access to lawyers and legal services. Until some material progress is made, however,
access to justice will properly remain a top legal ethics story in Canada.
8. The Boyle Recusal
On September 4 2014, Tax Court Justice Patrick Boyle wrote a 47 page decision recusing
himself from further participation in a matter in which he had previously issued a
decision that was now under appeal to the Federal Court of Appeal. He did so on the
basis of submissions made by the appellants and, in particular, what he felt were unfair
allegations that he had been “untruthful, dishonest and deceitful” in his judgment, and
what were “clear untruths” about him (see 2014 TCC 266 (para 4)). Some commentators
have suggested that the factum of the appellants was not particularly unusual or out of
order (Tax Judge Issues Rare Ruling in Own Defence) while others have suggested it was
“unusually aggressive” and contained “ad hominem” attacks (Judge Slams Counsel, then
Recuses Himself).
Whatever the ethics of counsel’s conduct, however, Boyle’s decision to engage with the
merits of the case in a recusal decision raises its own ethical problems. An article
reproduced on the Dalhousie Law school website quotes Professor Brent Cotter as saying
“this engagement by the judge raises questions about whether impartiality has been
preserved in this case” and quotes lawyer Gavin Mackenzie’s description of Boyle’s
reasons as “completely unnecessary” and his suggestion that certain aspects of Boyle’s
judgment “can raise a legitimate question about the civility of the judge in this case”
(Was Canadian Judge’s Recusal in McKesson Out of Bounds).
The effects of Boyle’s judgment is now before the Federal Court of Appeal, who recently
allowed taxpayer’s counsel to amend its grounds of appeal to include the question of
whether the reasons for recusal compromised “the appearance and reality of a fair process
in this case such that a new trial is necessary” (Notice of Motion). In his decision Justice
Stratas said “the recusal reasons, by responding to the appellant’s memorandum of fact
and law, depart from the norm. They are a new, material development in this appeal and
have become part of the real issues at stake.” (2014 FCA 290 at para 11; see in general:
FCA allows taxpayer motion).
9. The Collapse of Heenan Blaikie
On February 5, 2014 the national law firm, Heenan Blaikie, announced its dissolution.
Even though the firm’s economic foundations had been relatively solid, a diminution in
partner earnings early in the year led to a “run on the bank” with 30 partners leaving and
the firm dissolving soon after. In an article for Legal Ethics in June 2014 Adam Dodek
summarized the various explanations offered for the firm’s collapse: “the inability of a
mid-tier large firm to compete in the Canadian legal market; the failure of the partnership
model; a clash of cultures between the Toronto and Montreal offices; a failure in
succession planning, etc. In a bizarre turn, one commentator blamed law schools for
Heenan’s fall, apparently on the theory that the market cannot absorb the number of
Canadian legal graduates.” ((2014) 17 Legal Ethics 135 at 136). Heenan had also
allegedly had internal conflicts in relation to its international practice, and in particular its
involvement in transactions in Africa which may have undermined its stability (How
Heenan Blaikie’s stunning collapse started with a rogue African arms deal).
From the distance of a few months the broader significance of Heenan’s collapse seems
less clear; it may have been a product of broader challenges and issues in the legal
services market, but it may also simply reflect pathologies specific to Heenan at that time.
A determination of its broader significance perhaps awaits future events.
10. The LPP Path to Articling
2014 saw the first entrants into Ontario’s new alternate path to articling, the Law Practice
Program (LPP). The LPP has been praised as opening up the profession to law school
graduates who would otherwise be precluded from practice (see, e.g., The new faces of
law school). In 2013 Tom Conway, then Treasurer of the Law Society of Upper Canada
suggested that the LPP may be a better form of training than traditional articling, an
entirely plausible claim given the dearth of regulation of articling, and of evidence to
demonstrate the quality of education it provides (as discussed by Adam Dodek, here).
The LPP has also, however, been subject to criticisms in relation to the significant
increase in articling fees associated with the program, the unavailability of student loans
for participants and the fact that students are not paid for practicum placements (see e.g.,
Articling fees and access to justice and Reality bites for LPP students). Some critics, as
evidenced by the comments to the article on Articling fees and access to justice, also
complain that the LPP is enabling an unjustified expansion in the number of lawyers in
Ontario.
As a final note, on December 24, Canada lost a legal icon with the death of Eddie
Greenspan. For good and occasionally not so good reasons, Greenspan was an outsized
figure in the Canadian profession and in relation to issues of legal ethics. In the casebook
I co-edit and co-author he appears in a less positive light from time to time (as the
unsuccessful defendant in Stewart v. Canadian Broadcasting Corp, [1997] OJ No 2271
and as the author of a stinging and problematic 1999 National Post editorial directed at
Justice Claire L’Heureux-Dubé after her judgment in R v Ewanchuk, [1999] 1 SCR 330).
But Greenspan was also an ardent defender of Joe Groia in relation to the Law Society of
Upper Canada’s prosecution of Groia for incivility (The horrible crime of incivility) and
actively worked to improve the quality of the Canadian legal system, both for his own
clients and more generally, as evidenced by his last editorial, published posthumously
(Stephen Harpers’ scary crime bluster).
----------------------------------------------------
School sprinkler prank costs parents more
than $50,000
Mitch Kowalski, The National Post, January 9, 2015
A school prank has cost a set of British Columbia parents $48,000 plus legal costs as the
B. C. Supreme Court has ruled in favour of Nanaimo-Ladysmith School District No. 68
in connection with damages caused by 14 year-old, Carson Dean.
Apparently during a lunch break on January 17, 2012, Carson was dared to place a
padlock on a sprinkler head at Wellington Secondary School. The prank set off the
sprinkler system causing damage to the school.
According to the Vancouver Sun, Justice Shelley Fitzpatrick said, “I am sure that this is a
very unfortunate result for the Dean family and perhaps it will be for other families in the
future…If property of a board … is destroyed, damaged, lost or converted by the
intentional or negligent act of a student … that student and that student’s parents are
jointly and severally liable to the board … in respect of the act of that student.”
Carson’s parents had argued that since their son didn’t intend to set off the sprinklers,
they should not be liable. However, the court held that the student’s “intention” was not
relevant. Damage resulted from the student’s act and so the parents must be held liable.
This case is unique in that no other court had dealt with this issue.