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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 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 Inc. 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. .... Kimberlee Pascoe February 8/15, 2010 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • 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 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter LSUC makes good move on transparency T he Law Society of Upper Can- ada made a good move in im- proving transparency recently. As reporter Tim Shufelt tells us in this week's Law Times, Convocation at its January meeting approved new standards for public disclosure of dis- ciplinary matters. As a result, it will release information about proceedings against a lawyer once it issues a notice of application or a referral. The move will end the current "don't ask, don't tell" policy in which the public gen- erally learns about upcoming matters once they're about to go to a hearing. The change is a positive development. As the law society has noted, the existing approach created confusion and sometimes needless controversy over its actions. Last year, for example, it faced criticism in a newspaper report over its presumed lack of action against lawyer Kevin Murphy's behaviour in a murder trial. But at the time the article came out, a hearing in- volving Murphy was set to go ahead last month. In the end, a panel punished him with a six-month suspension. The Globe and Mail subsequently published an update correcting the re- port as well as a letter to the editor from the law society clarifying the situation. But of course, the confusion was need- less, something the new policy will en- sure doesn't happen in the future. Lawyers facing allegations won't ap- preciate the added exposure they'll now receive. But the change is a good case of the LSUC making improvements in or- der to better deliver on its mandate of governing the profession in the public interest. That's particularly so given that it eliminates the current information gap in which proceedings against a law- yer may be ongoing for months while people using legal services have no idea that they're taking place unless they have the foresight to ask about them. The move, then, marks a welcome advance in the law society's bid to bolster the transparency of its disciplinary pro- cesses. However, on the whole notion of accountability and openness, the LSUC still has room for improvement. That's because, for example, it makes many of its key decisions during committee meet- ings, which aren't open to the public. Of course, those committees bring reports to Convocation, which people can attend, but by the time decisions get to that stage, there is relatively little public discussion of them. As a result, debates that the rest of us get to see are fairly limited. So, it's certainly good that the law society is making progress with the new disclosure standards in disciplin- ary proceedings. Let's hope it contin- ues in a similar vein on other matters. That way, lawyers and other interested people will have greater access to in- formation about one of the province's key professional regulators. — Glenn Kauth than convenient that Chief Justice Beverley McLachlin took on the top job on Jan. 7, 2000, in the first week of the first month of the first year of the decade. There have been times in I our court's history when other justices have overshadowed the chief in terms of their in- fluence or a group of judges formed a defining bloc. In the United States, it's common to hear commentators speak of the courts headed up by jus- tices William Rehnquist and John Roberts in terms of their most influential judges: Sandra Day O'Connor and Anthony Kennedy. That's not the case at Canada's top court. It clearly is McLachlin's court. McLachlin has undoubtedly put her stamp on the court, an institution she has brought into the 21st century in a num- ber of ways. While former chief justice Antonio Lamer brought the court to TV, McLachlin n looking back at the past decade at the Supreme Court of Canada, it's more Taking stock of the McLachlin decade Second brought it to your desktop through the webcasting of hearings since last year. When Lamer granted an interview to The Globe and Mail's Kirk Makin at the beginning of another decade, 1990, it was front- page news. Over the winter holiday, McLachlin gave in- terviews to several media out- lets and appeared on TVO's The Agenda. She set the tone when she was appointed by making the rounds with the TV networks. In doing so, she introduced Canadians to their chief justice and to the Supreme Court in a way that had never happened before. To use a favourite legal term, it was unprecedented. The 1990s was a decade of high-profile blockbuster cases at the court: R. v. Askov, McK- inney v. University of Guelph, R. v. Stinchcombe, Dagenais v. Canadian Broadcasting Corp., R. v. Mills, RJR-MacDonald Inc. v. Canada (Attorney General), and Delgamuukw v. British Co- lumbia. But in many of the big- Opinion By Adam Dodek gest cases during the 1990s, the court was sharply split on key issues, particularly on questions of equality. Under McLachlin, however, the sharp divisions that characterized the Lamer court have mostly disappeared as unanimity has increased. The McLachlin court has seen its share of significant cas- es. But so far, she has succeeded for the most part in shielding it from charges of judicial activ- ism. There is little talk these days of "dialogue," which was the constitutional buzzword of the 1990s. No case over the past de- cade has approached the con- stitutional and political drama of the Quebec secession refer- ence of 1998. The Supreme Court's decision in the same- sex marriage reference, for www.lawtimesnews.com example, was expected. Far greater drama looms on the horizon with the reference on the constitutionality of a national securities regula- tor. The biggest case of the last decade might have been a non-constitutional one — the BCE decision of 2008. McLachlin's tenure has aroused minimal controversy. Her leadership, in fact, has produced somewhat of a para- dox for the top court. While its public profile has increased, controversy over the court's de- cisions has decreased. In part, this may be due to increased public acceptance of the court's role under the Charter of Rights and Freedoms. But McLachlin has weighed in on public-pol- icy issues, on everything from access to justice to terrorism, in a manner that far exceeds any of her predecessors. It's somewhat ironic that the most controversial moment for the court had nothing to do with a particular judgment but with the participation of McLachlin herself in the awarding of the Order of Canada to Dr. Henry Morgentaler. The controversy led her to take the unusual step of publicly clarifying her role in the process. Perhaps in the next decade, she should work to quietly remove herself from the Order of Canada process to prevent the issue from flaring up again. There is one mystery that remains unsolved from the last decade. The court's output has dropped precipitously, leading many observers scratching their heads to explain why. No satis- factory answer has come from either McLachlin or from any of her colleagues. As a result, the workload of the court, as much as its actual decisions, will con- tinue to come under scrutiny over the next decade. LT Adam Dodek is a professor at the University of Ottawa Fac- ulty of Law. He can be reached at adodek@uottawa.ca. He has just co-edited a book on Lamer and is also co-editing a book on public law in the McLachlin court during its first decade.