Law Times

February 22, 2010

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Law Times • February 22, 2010 Harper on crime: be thankful he's not running the world Harper plans to revive his crime agenda. A big chunk of the legislation A he introduced last year before he closed down Parliament in De- cember dealt with criminal law. There were 63 bills presented in the last session from Jan. 26 to Dec. 30, 2009. Twenty of them involved crime legislation. That's 31 per cent or one in every three pieces of legislation. Harper passed two of the 20 bills and prorogued the other 18. Nothing prevents him from starting all over again in March while accusing the Liberals of pre- venting the adoption of his crime agenda as he did when he pro- rogued Parliament a year earlier. The idea this spring will be to put more people in jail and keep them incarcerated for longer peri- ods of time in the belief that this will make other people safer. If they're in jail, they can't be com- mitting crimes. Criminal law is a big vote-getter, especially among older Canadians. They fear violence even though crime rates are dropping year after year. As they grow older, Canadi- ans feel increasingly vulnerable to attack, particularly from young people, despite the fact that sta- tistics show youth crime has also gone down. The Conservatives' political timing is good. Now is the time to focus on criminal law in the run-up to the next general elec- tion. Once a campaign has begun, it's too late for a political party to work on its law-and-order base. The Conservative focus will be on punishment, not prevention. The Conservatives say that pun- ishing crime more severely pre- vents others from committing of- fences. There is no research so far that supports this assertion. But the Conservative government is working on it. The Harper approach is based on a so-far unproven belief that people don't commit most crimes in the heat of passion but rather think about them ahead of time and therefore weigh the sever- ity of the sentence beforehand should authorities catch and con- vict them. But research shows that most criminals don't think they'll be caught and that if they are, a good lawyer may get them off. Jailing people for longer periods of time does make other people feel safer, but studies show it doesn't make inmates better people. There is no research that shows rehabilitation increases with the amount of time served. Instead, it depends on the quality of pro- grams in prisons, something the government has been cutting back on in order to save money for oth- er things. Four of Harper's bills proposed mandatory jail sentences for vari- ous criminal offences. Another bill would have made parole more dif- ficult. One of the laws that actually passed ended the double credit for time served awaiting trial. Several s soon as Parliament gets back to work next month, Prime Minister Stephen The Hill By Richard Cleroux other bills would have provided for longer prison terms. A particularly notable law tack- ling drug crimes would have al- lowed for up to seven years in jail for possessing five plants or more of marijuana. The thinking was that five plants is too much for one person to smoke and therefore that the accused must surely be a dealer deserving a hefty sentence. The Harper crime laws could have doubled the number of in- mates in federal prisons. There are 111,000 inmates serving time there at present. A federal inmate costs $108,244 a year to keep in jail. That's $296 a day — the cost of staying in a nice bed and breakfast year round with three meals a day. In all, the Conservatives spent $2.2 billion last year on correc- tions. That's enough to pay for a big chunk of the war in Afghani- stan. We'll find out March 4 how much Harper's war on crime will cost us this year. In 2009, the Conservatives brought in a bill to abolish the national gun registry despite pleas from various associations of police officers who used the system seven million times last year. There are about six million guns in Canada. Most of them are rifles and shotguns. So far, the Conser- vatives' continuing moratorium on registering guns hasn't led to a major increase in killings using unregistered guns, although gun sales have shot way up in hardware stores, gun shops, and mail-order houses. The Harper crime agenda is having a psychological effect on Canadians. Speaking to a luncheon meeting of the Empire Club in Toronto re- cently, noted Toronto lawyer Julian Falconer said the Conservatives' preoccupation with crime bills is giving Canadians the impression there is a serious and threatening rise in offences. "In reality, crime rates are de- creasing and have been decreasing for years," he said. But then Falconer is in the busi- ness of practising law, while the Conservatives are in the business of practising politics. If it takes scaring people into believing that only Harper can save them from all the wicked criminals out there, well that's politics. It could be worse if, for exam- ple, Harper was telling us all the offenders out there have weapons of mass destruction and that we therefore need to take a pre-emp- tive strike at them. Be thankful Harper is running Canada, not the world. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux @rogers.com. www.lawtimesnews.com COMMENT PAGE 7 Advice from a retired lawyer Is it time for you to pack in your practice? BY DONALD DESAULNIERS For Law Times T o all you aging lawyers out there, it may be time to seriously consider the option of retirement. Although conventional wisdom would stress that your individual financial situ- ation should be your primary concern, I would suggest that your ability as a lawyer is even more important. We all know lawyers who kept work- ing long past their prime and became somewhat of an em- barrassment to the profession before they finally retired or died. Unfortunately, no one comes right out and tells us when we are slipping, and it's rather difficult to judge ourselves fairly in that regard. After a number of years of doing the same type of law, it's natural to get sloppy or stale. It's not unheard of for older law- yers to show up for routine family or crim- inal matters slightly or obviously under the influence of alcohol. Even more common is the older lawyer who is just working on instinct and past experience and who ap- pears not to have any idea about the de- tails of the individual matter on trial that day. That's no way to properly serve a cli- ent. Older real estate lawyers who leave the entire file up to their staff are another com- mon example. Of course, there are certain aspects of all files that cry out for the expe- rienced lawyer's time and attention. Teranet and LawPRO would be ap- palled to realize the large number of ag- ing real estate lawyers who have not even learned how to start their computers let alone check and sign documents for com- pleteness. That task is passed along to staff in many cases, something that puts the fraud protections under the electronic reg- istration system into question. I took my own advice and retired last September at age 62. I was called to the bar in 1973. My personal reasons for retiring as a real estate lawyer boiled down to three major concerns: — I no longer enjoyed the job, mostly because I greatly disliked the new electron- ic registration system, which in my opin- ion didn't operate efficiently for rural titles, especially relating to rights-of-way and easements or for possessory title situations. The result was many title corrections, and I felt like a novice again instead of a sea- soned and knowledgeable lawyer. — The new electronic system also sud- denly meant that I was regularly dealing with out-of-town lawyers I didn't know. We Speaker's Corner were virtually forced to pay all the money to the seller's lawyer and accept that law- yer's undertaking to pay off and discharge the existing mortgage. This was a system that created huge problems 30 years ago when lawyers ran off with their trust funds, which prompted the Law Society of Upper Canada to begin insisting that we split the certified cheques. Recently, however, we were back to the old system, and I didn't want to end my career getting shafted by a crooked vendor's lawyer. I also felt the new system of mortgage payouts didn't ad- equately protect my purchaser clients. — The electronic registration system took away my self- image as a skilled real estate lawyer, and I started to doubt my ability to do top-qual- ity work for my clients. If you are in your late 50s or older, I recommend that you attempt to examine the quality of your current legal work. Pick 10 recently completed files randomly and carefully go over them to determine whether you handled each one to your personal satisfaction. If the answer is yes, congratulations. You still have the magic. If you discover things on some of those files that you wish you had done better or differently, then take some remedial action to improve your office system. A further option would be to get a trusted colleague to examine the same files after you have done so. Does the colleague think you handled each of those 10 mat- ters well? If you can't even be bothered to check some of your closed-out files, then you have likely lost whatever pride you once had in your career. If you hate coming into work most days, that, too, is a recipe for disaster. Also, be aware that it takes months to retire. There is a lot to do in preparation. By the way, so far I love retirement. To summarize, if the thrill is gone from your job, or if you could care less about im- proving the quality of your legal work, then it's probably time for you to pack it in. Once you retire, you should be able to look back on your career with pride. Like a professional athlete, it would be a shame to continue to work after your skills are gone. Being forced into retirement because of negligence claims or continuing to prac- tise law while knowing you're no longer putting your clients' interests first will ruin your retirement years. Don't practice with diminished skills. Donald Desaulniers is a retired lawyer from Belleville, Ont. LT

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