Law Times

PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Heather Gardiner CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. June 6, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter In praise of second chances E very day in court, defence law- yers ask judges to take mercy on their clients given their ef- forts at redemption. Th ey talk of clients' return to work or school, references from people in the community, and support for and from their families, all in a bid to get a more favourable result for their side such as probation or a conditional or intermittent sentence. Besides denunciation and deter- rence, of course, the justice system also considers rehabilitation. It's good, then, to see the legal profession follow a principle espoused by so many law- yers in granting a licence to practise to Kathryn Smithen. As Law Times reported last week, Smithen has a dark past, including multiple criminal convictions and two declarations of bankruptcy. She also previously worked as an escort. But following a day of reckoning, Smithen went on to complete her law degree at Osgoode Hall Law School despite knowing her past would be a signifi cant hurdle at a Law Society of Upper Canada good character hear- ing. Last month, a panel consider- ing that issue granted her a licence to practise given "her commitment to her daughter, her eff orts to repay her debts, her desire to further her legal education without any assurance of an entitlement to practise, her refusal to blame others for her abundance of mistakes, her openness and hon- esty about her former dishonesty, and the overwhelming support from her friends, her doctors, and others in the legal profession." Certainly, there are arguments against the decision. In particular, she was in court last year seeking to quash a 1993 compensation order against her stemming from two convictions for fraud. She argued the court had denied the defence the right to be heard at the time of the compensation order. Last year, the Superior Court denied that application. In the same decision, the court con- sidered Smithen's eff orts to locate the victims set to receive the compensation. "Th e primary reason the applicant wants to satisfy the compensation order after all these years is so that she can apply for and obtain a pardon. . . . She is con- cerned that without a pardon, her career opportunities will be severely limited." It's arguable, then, that rather than demonstrating genuine remorse, Smithen was looking to cover her bas- es before the law society. Nevertheless, she deserves the benefi t of the doubt. It's a good thing when society gives people second chances. At the same time, by imposing conditions on her, including therapy, a two-year mentor- ing agreement with lawyer Leo Adler or some other practitioner in good standing, and restrictions on any trust accounts, the panel has made a good attempt to protect the public. Th e decision is an example of the profession upholding the notions of re- habilitation that it professes. Let's hope Smithen lives up to her promise. — Glenn Kauth spired by Philip Slayton's book Lawyers Gone Bad? It makes you wonder if Slay- R ton's new book, Mighty Judg- ment, will do to the Supreme Court of Canada's reputation what the previous one did to that of lawyers. No, there are no rodent judges here. Slayton came to bury the court but he has stayed to praise it, for the most part. Slayton, a former law profes- sor and big-fi rm lawyer, showed real skill as a legal journalist in those profi les of crooked law- yers. Along with lots of colour- ful sleaze, his book on crooked lawyers off ered insightful pro- fi les of unfortunate people who had gone off the rails as well as exposés of some truly malevo- lent types. But that book worked because disbarred lawyers would talk to Slayton about themselves. Th e current Supreme Court judges won't talk about themselves for the most part. Neither will their No rodents in Philip Slayton's treatise on SCC That's emember the 2008 Maclean's cover story, "Lawyers are rats," in- clerks. Slayton complains that Canadian court watchers don't get dirt from law clerks the way American reporters do but he hasn't got much from them either. As a result, the inside story of the top court remains largely unwritten. Slayton starts with a quick run through the court's history. He notes the end of appeals to Britain in 1950, the court's new power to con- trol its own docket in 1975, and above all, the Charter of Rights and Freedoms in 1982 as the three changes that gave the Supreme Court the power it wields today. Th en, to prove his subtitle on how the Supreme Court runs people's lives, he reviews a string of cases in which its judgments have determined what we can and can't do. Th ey cover issues from who people can have sex with to how the cops treat them on the street. But Slayton's style begins to trip him up as he runs through this long list of controversial cases. History By Christopher Moore He sneers at academic stud- ies of the courts as dull. But lively, when it comes to the analysis of Supreme Court's jurisprudence, means super- fi cial. When the judges over- turn a statute, Slayton asks if they're invading the domain of the politicians. When they don't, he speculates that they're wimping out or surrendering to special interests. But these are deep waters, and lawyers may fi nd Slayton is only skim- ming in his brief summations and quick verdicts. He's back on fi rmer ground profi ling the judges and explor- ing how they come to judg- ment. Have justices Ian Binnie and Rosalie Abella been the court's leaders after Chief Justice Beverley McLachlin? Slayton www.lawtimesnews.com makes the case, although he mostly relies on their public speeches and judgments as well as shreds of unattributed gossip. Even his back-of-the- pack nominations — justices Th omas Cromwell, Morris Fish, and Marie Deschamps — are pretty gentle, for he observes that Cromwell is new, Fish is improving, and Des- champs may be stronger than she seems. Finally, Slayton off ers his re- forms. Studying the court has changed him, he admits. Read- ing the cases, he "had to be im- pressed by the justices' honest and intelligent struggle." "I've come to favour an in- terventionist court," he declares, calling the top court "the real opposition to the government." But if it's going to run our lives, he concludes, it should be improved to do so bet- ter. New justices should face public hearings, despite their drawbacks, because open dis- cussion is good. Th ere should be a limit on their time at the court, maybe to 12 years. Th ey should be bilingual because the nature of the country requires that. (If judicial skills are the only valid criteria, he asks, how can we justify the regional bal- ance that prevails?) In addition, judges should be transparent about their fi nances and asso- ciations. Finally, they should speak in public more often as "judges of the Supreme Court of Canada have something to say to you," he writes. Finally, kudos to Slayton for borrowing the liveliest tweet- length description of the top court ever. When Dahlia Lith- wick, who covers the U.S. Su- preme Court, dropped in on Canada's top court, she was delighted with its "quirky out- liers, including women, people with French accents, and men with fantastic hair." Th e hair, Slayton speculates, belonged to Fish. Christopher Moore's newest book is Th e British Columbia Court of Appeal: Th e First Hundred Years. His web site is christophermoore.ca.

• Cover
• Return To Practice
• SCC Expose?
• Focus On Internet/E-Commerce Law