Law Times

June 30, 2008

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A.NEUMAN ASSOCIATES INC. McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 Call 416.223.5991 Investigative & Forensic Accounting Specialists Proven Expertise ntitled-6 1 Ontario arguably most closed court system in country "hallmarks of a democratic society," stressed Superior Court Justice David Mc- Combs when he granted a media application to release a 2007 videotaped police inter- view with Paul Bernardo. "Unless the press has ac- cess to court information and exhibits, they are unable to provide the information to the public," he stated in the ruling issued on June 10. McCombs rejected a re- quest by the Crown that DVD copies be destroyed after broadcast and that the media be limited in its right to post the entire interview on its news web sites. The judge accepted argu- ments by media lawyer Iain MacKinnon that the internet is a legitimate format for news distribution and there should not be re- strictions on access of the interview, which was an exhibit in the retrial of Robert Baltovich, who was acquitted of the murder of Elizabeth Bain. While internet access and the fear the video could end up on sites such as YouTube are rela- tively new issues for judges to consider, Mc- Combs was simply applying long-standing open court principles set out by the Supreme Court for more than two decades. Open courts have been described as a "core val- ue" that is as central to the justice system as other fundamental principles such as the presumption of innocence. The Supreme Court decisions are far from ambiguous, yet with a few notable exceptions they do not appear to be applied on a consistent basis at the trial court level in Ontario. As well, the Ministry of the Attorney General has imposed numerous restrictions on access that 'Gut feelings' often trump open courts P BY SHANNON KARI For Law Times ublic access to court- rooms and court re- cords is one of the arguably have made Ontario the least open court system in the country. "It is difficult, if not im- possible to ascertain, why it has been and still is, a titanic struggle in this province, to ensure the open court principle is understood and adhered to," says Lorne Honickman, a lawyer at McCague Peacock Borlack McInnis & Lloyd LLP, who often acts for the media. "Gut feelings that it's just not right to make ex- hibits accessible continue to rule the day," notes Honickman. "That is why the release of the Bernardo video is so important. It provides a tiny step for- ward down the path to the eventual deconstruction of these myths," he says. "The experience with the Bernardo video shows that the sky does not fall simply because the media are able to inform the public about what happens in our courts," says MacKin- non of Chitiz Pathak LLP. "There may still be le- gitimate journalistic ethical issues about whether such a video should be broadcast, but on the facts of that case, it should not be a legal issue," he says. In less high-profile proceedings, it is com- mon for judges in Ontario to make a passing reference to Dagenais v. Canadian Broadcasting Bans Bastarache too 'anti-freedom,' say libertarians BY TIM NAUMETZ For Law Times OTTAWA — A conservative le- gal foundation that wants more "pro-freedom" decisions by the Supreme Court of Canada has compiled a critical look at outgo- ing Justice Michel Bastarache, say- ing he was on the wrong side of the fence too many times. And — as Bastarache's June 30 retirement date neared — specula- tion mounted that an appointment to replace him with a prominent judge on the Court of Appeal of Newfoundland and Labrador could give finally give women a majority on the country's highest court. Of 37 cases in which Bastarache participated, he was a "weak" sup- porter of fundamental freedoms and was on the "pro-freedom" side only 56 per cent of the time in non- unanimous decisions, says a report from a study by Chris Schafer, a director of the Canadian Constitu- tional Foundation, and foundation researcher James McLean. Despite the negative side, from the foundation's perspective, the study nonetheless found Basta- rache was a "strong supporter" of freedom in decisions involving economics and equality, taking the "pro-freedom" side more than 80 per cent of the time. The foundation has been contro- versial, under attack for challenging the ban on private medical care in Canada and also facing criticism for supporting a decision by the Harper government to cancel funding of court challenges by minorities. Schafer, once an assistant to for- TPLawTimes1CBlue fin 11/2/06 3:09 PM Page 3 mer Reform Party leader Preston Manning, admits in an interview the foundation would have backed Prime Minister Stephen Harper in his failed court challenge of campaign spending limits under the Canada Elections Act. Harper lost the 2000 case, Harper v. Canada, when he was president of the National Citi- zens Coalition and attempted to get third-party limits struck down as an unconstitutional abridgement of free speech under s. 2. "In that case, we would argue that they would have thrown out the law and allowed free speech to reign during elections," Schafer tells Law Times. Despite that position, Schafer denies the foundation is intent on influencing any government when it comes to making appointments to the Supreme Court. "Personally I would be happy, the foundation would be happy and would fulfill its goals, if every Supreme Court justice saw as his or her role to fulfill the constitu- tional obligations of safeguarding individual freedom, equality be- fore the law and economic free- dom," he tells Law Times. Schafer is a lawyer and registered lobbyist with Gowling Lafleur Hen- derson LLP in Ottawa. He was called to the bar in Ontario in 2006 and prior to that he worked with the conservative Fraser Institute in Vancouver, the Cato Institute in Washington, and for Manning as a political intern for a summer. Ezra Levant, another former back-roomer with the Reform Party in Ottawa who took on the Alberta Human Rights Commission after he published the infamous Danish car- toons lampooning the Islamic spiri- tual figure Mohammed, is a member of the foundation's advisory board. Schafer said the foundation, Women 1/8/08 3:28:10 PM Inside This Issue 3 Never Lie to Media 6 Friedland Enterprises 9 Focus On Municipal & Planning Law Quote of the week "Once lawyers go down that trail, of disabusing the system or the court, it is a very slippery slope for all of us. How can we ask the public to respect the rule of law if we as lawyers for a particular case decide to trash it?" Never Visit or call 1-800-410-1013 for more information Too bad it hasn't been paid for.

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