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March 15, 2010

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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Intern .................. Matt Powell 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 .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . 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. march 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. s political commentators were putting it last week, the with- drawal of serious criminal charges against former federal Con- servative MP Rahim Jaffer was an is- sue that would certainly have the Tim Hortons crowd talking. Of course, a common refrain was that Jaffer got off lightly due to his po- litical connections, a claim bolstered by Justice Douglas Maund's now- famous comment to the ex-MP: "I'm sure you can recognize a break when you see one." Opposition politicians were clam- ouring for answers all week. In many cases, the comments were misguided, in particular those attacking the fed- eral government. Given that it was the province that led the prosecution, it was the Ontario Ministry of the Attorney Editorial Obiter Crown should explain actions in Jaffer case A General that people should be going to for answers. Provincial officials did eventually weigh in, with Attorney General Chris Bentley saying calls for a more complete explanation had merit. But even one of the most vocal critics, NDP MP Joe Comartin, ac- knowledged it was unlikely Jaffer got favourable treatment. It's the Liberals, of course, who run the province, so it's difficult to see how they'd interfere on behalf of a Tory such as Jaffer. The issue is tricky, however. On the one hand, while people are talking about treating everyone, including pol- iticians, equally, it's routine for Crown prosecutors to offer little explanation when they withdraw charges beyond the boilerplate and often unsatisfac- tory line about not having a reasonable prospect of conviction. That's exactly what the Crown said in Jaffer's case when it withdrew impaired driving and cocaine possession charges against him. So given the importance of equal treatment, shouldn't that convention apply to him as well? Already, the Toronto Star has quoted sources saying a police officer made an error during a strip search of Jaffer at the time of the Sept. 11 incident. But there's an important issue at stake here. The Ministry of the Attorney General says the presumption of innocence and fairness considerations limit how much prosecutors can say in these cases, re- gardless of who the accused person is. But at the same time, law professor Alan Young says that while the Crown has no obligation to justify its exercise of discretion in a case unless there's some evidence of a misdeed, there's nothing preventing it from doing so. That being said, the reality is that prosecutors know that the more they talk about their decisions, the greater the potential for trouble later on. But in many ways, the province is in a catch-22. By offering an explanation for how it treated Jaffer equally, it will have failed to do so in other ways. The case also demonstrates the competition between transparency in the justice system and maintaining the presumption of innocence. It's a deli- cate balance, but in this instance, there is one fact that pushes the issue in fa- vour of transparency: Maund's com- ments about a "break." As a result, the Crown should exercise its discretion to say why it dropped the criminal charg- es against Jaffer. — Glenn Kauth I n December 2009, the Su- preme Court of Canada en- dorsed the "responsible com- Great Canadian libel cases: 5 for the history books That's munication" defence in Grant v. Torstar Corp. Journalists and oth- ers can now defend themselves in libel actions by showing that the subject was a matter of public interest and they were diligent in their efforts to verify their allega- tions before publication. The decision was hailed in the press as a step forward for free speech and vigorous journalism, particularly since in 1995 the court had declared it wouldn't adopt the "actual malice" stan- dard that has applied to libel ac- tions in the United States. These days, many sensational libel cases never seem to get to court. Faced with a deep-pock- eted celebrity complainant and a law that seemed stacked against defendants, publishers frequent- ly seem to settle and apologize. But in the past, Canadian news- papers saw a few consequential trials for libel. 1835: Joseph Howe, editor and publisher of Halifax's leading paper, The Novasco- tian, faced a criminal libel charge for declaring — with evidence — that Halifax magistrates and police were pocketing a fortune in du- bious fines and exactions. Howe, defending himself, admitted everything but made such an eloquent defence of free speech and what we would call investigative journalism that the jury acquitted him en- tirely. "The press of Nova Sco- tia is free," Howe wrote in the aftermath as the political career of the future anti-confederate was launched. 1849: George Brown of the Globe also faced a criminal li- bel trial, this time for reporting criticism of lawyer John Prince's conduct as Crown prosecutor in some southwestern Ontario tri- als. "At that time, the law of li- bel in Canada was most unjust," wrote his biographer, Alexander Mackenzie, in 1882, a claim often echoed by journalists and writers in subsequent years. Brown emulated Howe, de- fending himself and rooting his defence in freedom of expression and the importance of holding public officials to account. But this time the prosecution won. The jury convicted Brown on two of three counts. Brown will- ingly paid the fine, for his defi- ance shored up the Globe's posi- tion as the voice of the Ontario reform movement. Soon Brown, like Howe, launched himself into politics and became a key player in Confederation. 1928: Lieutenant-general Arthur Currie, Canada's senior commander in the First World War, sued a small-town newspa- per, the Port Hope Evening Guide, after it alleged that his hunt for www.lawtimesnews.com History By Christopher Moore glory had caused Canadian sol- diers to die unnecessarily in the last few days of the conflict. Whether it was fair com- ment or not, Currie won at tri- al. But the jury gave him only $500 of his $50,000 claim. 1929: Vapaus, a Finnish- Canadian newspaper pub- lished in Sudbury, Ont., said disparaging things about King George V, and editor Arvo Vaara was hauled into court on charges of sedition as well as libel. Can you say mean things about the king? Not in 1929, you couldn't. Vaara got six months in jail and a $1,000 fine. But many believed the paper's real offence was its Communist party affiliation. 2007: It wasn't exactly a libel trial, but the Canadian Islamic Congress launched three com- plaints against Maclean's maga- zine before federal and provin- cial human rights commissions for allegedly subjecting Muslims to hatred and contempt. All the commissions eventually dis- missed the complaints. Meanwhile, Ottawa lawyer Richard Warman's many com- plaints to the Canadian Hu- man Rights Commission and the Canadian Radio-television and Telecommunications Com- mission have produced a good deal of jurisprudence on how Canadian law applies to online hate. Many of the subjects of his complaints have attacked him personally, and Warman has frequently and successfully sued them for libel. But Maclean's, the National Post, lawyer Ezra Levant, and others have sug- gested Warman and the human rights commissions are inhibit- ing free speech. The responsible journalism defence is unlikely to end li- bel actions in Canada. But it might yet lead to some inter- esting trials. LT Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm. His web site is www. christophermoore.ca.

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