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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 Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt .... Kimberlee Pascoe ©Law Times Inc. 2009 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. December 7, 2009 • 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 Revisiting the 'faith-based' debate I t's a phrase that at first blush ap- pears politically poisonous: "faith- based." Former provincial Tory leader John Tory could vouch for that sentiment, of course. His proposal for public funding for religious schools sank his chances of winning the 2007 election, an issue he'll certainly steer clear of as he gets ready to mount a likely bid to become Toronto's next mayor. But now, the idea has resurfaced within the justice system. In Manitoba, the province is in talks with a Christian organization to set up a faith-based pris- on unit in a planned new jail, CanWest News Service reported last week. It would mirror programs in other coun- tries, particularly the United States, where prisoners voluntarily enter into units providing a Christian perspective in a bid to reduce recidivism. The idea is that such values-based programming will help offenders re- form. It's a reasonable claim, one that research backs up to some extent. Cer- tainly, the idea of providing alternative types of rehabilitation in our already stretched prison system is a good thing. The organization advocating for the unit, Prison Fellowship Canada, says it would like to replicate the proposal at facilities across the country. But the idea raises a few concerns, especially given the ferocious controversy over the schools issue in Ontario. On its face, for example, it appears to chal- lenge the principle of keeping religion out of our public institutions. At the same time, it raises questions over eq- uity, particularly since in U.S. facilities that have implemented such program- ming, prisoners reportedly receive dif- ferent treatment than their counter- parts in other units. Similarly, other faith groups are like- ly to complain that they, too, should be able to introduce their own programs in jails. In addition, the proposal comes at a time when our prisons are already struggling to provide sufficient reha- bilitation programming to inmates, a challenge that will grow as the govern- ment's tough new crime laws put more people in the system for longer periods of time. So while new, and potential- ly better, services are welcome, they shouldn't detract from the need to help rehabilitate inmates who don't join the Christian unit. Besides the philosophical questions, then, the issue comes down largely to implementation. With the Manitoba proposal, it's positive that it involves only a unit and not an entire prison dedicated to Christian programming. But should the government there implement it, it should remain a pilot program until we see results. It should also make sure to address the equity concerns people are sure to raise. Overall, the idea is worth consider- ing. But as Canada likely gets set to see growth in its prison population, offi- cials should be mindful of their respon- sibilities for everyone in our jails. Any bid to improve programming through proposals such as the Christian unit shouldn't stand in isolation. We need to ensure prisons provide meaningful rehabilitation to all inmates. — Glenn Kauth Doctors get Cadillac representation while poor go without H ere's a quick question. Suppose we have a self-employed, suc- cessful physician charged with the sexual assault of a patient in one corner and an unem- ployed male on social assistance charged with the sexual assault of his ex-wife in another cor- ner. Which accused should en- joy the benefit of a gold-plated defence courtesy of taxpayers? You win if you selected the physician. That's right, the physician. The unemployed ac- cused will have the privilege of applying for legal aid and may enjoy the services of a lawyer paid less than $100 per hour with a cap on preparation time. The physician, however, is enti- tled to run off to the Canadian Medical Protective Association in order to retain senior coun- sel with virtually no limit to the hourly rates or the prepara- tion time incurred. Since the Ontario govern- ment subsidizes most of the pre- miums paid by physicians to the association, it's the taxpayer who therefore pays for the bulk of the physician's legal fees. Is that fair? Here's what former Ontario chief justice Charles Dubin said about the differential treatment in 1996: "Although it is in the public interest that any per- son charged with a criminal offence be properly represented, it seems difficult to justify pub- lic expenditures to place doc- tors on a different footing from other accused persons." What's happened since Du- bin made that statement 13 years ago? Not much. The as- sociation continues to receive large subsidies while the Ontar- io legal aid tariff has increased only 15 per cent since 1987. But seriously, the government cares about legal aid clients, the people who, according to Legal Aid Ontario, have "little or no money left" after paying for "basic necessities like food or housing." After all, in the last four years, the province has commissioned three different reports from distinguished experts: the Code- Social Justice By Alan Shanoff LeSage report, the Goudge report, and the Trebilcock report. That must have cost a lot of money. It's just a coincidence that little of significance has come about as a result of those reports, isn't it? Or, silly me, is it a matter of politics? Where are the votes in giving more money to the criminal defence bar? Where are the votes in providing bet- ter legal services to people on social welfare? But providing subsidies to the medical pro- tective association is good poli- tics. The government wouldn't want to provoke any disputes with doctors or teachers. That's bad politics, as previous gov- ernments have discovered. I'm not really begrudging the fact that physicians, many of whom are capable of paying www.lawtimesnews.com their own lawyers, can readily obtain the Cadillac of defenc- es via public subsidies. The real problem is a lack of fair- ness. Legal aid is a necessity for many people, as is health insurance. What's the point of giving everyone rights if only the well off can obtain adequate representation to ac- cess or defend those rights? In the meantime, we force LAO-funded lawyers to sub- sidize the system and expect them to perform to the best of their abilities when the fees paid are barely enough to cover overhead or achieve much more than a minimum wage. Even if these lawyers perform to the best of their ability, it's not a fair contest. As lawyers, we know better than most that our adver- sarial system can only operate fairly if both sides are somewhat evenly matched in resources. I suppose we should be grate- ful that the same Ontario gov- ernment that can afford to blow $1 billion on an electronic-health system that doesn't exist recently announced it's going to add $150 million to legal aid over a four-year period. Then again, this is the same government whose lottery and gaming cor- poration takes in billions a year with a lot of that money coming from — you guessed it — the most vulnerable people who can ill afford to gamble and who in some cases rely on legal aid. So while the number of lawyers willing to take legal aid cases shrinks each year and vast numbers of litigants appear in criminal and family courts without representation, it's re- assuring that the vulnerable wait for yet another report to come out and that our doctors have the very best legal services money can buy should they run afoul of any laws or negligently harm a patient. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail ad- dress is ashanoff@gmail.com.