Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan 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. May 31, 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. against former attorney gener- al Michael Bryant predictably raised complaints about the fairness of Ontario's justice system. Cyclists, in particular, lamented that Bryant wouldn't face a trial for his role in the death of bike courier Darcy Allan Sheppard last summer. But pros- ecutor Richard Peck was meticulous in explaining why the case couldn't go forward. While being careful to em- phasize that Sheppard didn't deserve his fate, Peck noted the cyclist had act- ed aggressively by confronting Bryant in downtown Toronto as he returned from an anniversary dinner with his wife that August night. After watching Editorial Obiter Bryant case a high mark for justice system T he withdrawal of charges Sheppard throw his bag onto the hood or windshield and then latch onto the car, Bryant was justifiably fearful when he continued driving despite the risk to the cyclist's life. The case is a high mark for the justice system. In an unusual set of moves, the players involved were remarkably trans- parent about what took place. While it's arguable that Bryant suffered need- lessly by having police take him away in a cruiser and then charged, it's hard to imagine how things could have been different. The cycling community was already outraged over the incident it- self, and had Bryant not faced potential criminal sanction, the protests would have created a massive divide in Toronto. So by appointing an out-of-province prosecutor with a sterling reputation to move the case forward, the Ministry of the Attorney General handled the mat- ter deftly and freed itself of accusations of political interference. Peck, too, did everyone a favour by explaining his de- cisions in detail. As a result, the public fervour is relatively muted, with much of the discussion revolving around whether Bryant has a future in politics and whether it would have been wiser to allow the case to proceed to trial. Bryant now deserves to go back to private life without the stigma of criminal suspicion. As for the justice system itself, it's clear that the case, if not Bryant himself, received special treatment, which is the only way it could have been given the sensitivity surrounding his former role as head of the Ministry of the Attorney General. At the same time, the transparency shown in the matter was refreshing, something we can hope to see hap- pen in similarly sensitive cases in the future. On that score, the Bryant affair sits in stark contrast with that of for- mer federal MP Rahim Jaffer. In that case, prosecutors declined to exercise their discretion to explain why they withdrew drug charges against him. If Peck could do so with Bryant, they could have done the same in the Jaffer matter. — Glenn Kauth Family law resolution stokes debate But history shows proposals merely 'persuasive but not binding' E sleepy Law Society arly in May, it seemed some drama might ex- plode at the normally of Upper Canada annual general meeting. Some paralegals decided this was their time to push for broader authority to represent clients, particularly in family law matters. They drafted a mo- tion directing the law society to address the issue and gave notice they would move and second it at the May 5 meeting. The criminal and family law bars quickly mobilized in op- position. The press took note. Rival organizations of lawyers and paralegals were reportedly rallying their members to pack the meeting. Then the paralegals withdrew the motion, and everyone lost interest in the meeting again. Memo to both sides: read the fine print or read history. There's a reason why the annual meet- ing is generally such a quiet af- fair. The bar sorted this out back in the 1960s and 1970s. Annual general meetings of the law society were new then. The first took place in 1968, and the government made them obligatory under the Law Society Act of 1970. The first meetings turned into stormy confrontations. In part, it was the legacy of the '60s. There were radical law- yers' unions, progressive caucus- es, aggrieved legal aid lawyers, and other assertive factions. In those days, the law society ex- uded mystery and authority as the benchers still met in secret. The gulf between the conclave of establishment barristers and the rowdy mob of long-haired hippy street lawyers, as each saw the other, was vast. Civil- ity wasn't universal. Someone described Convocation as a "co- matose impotent dwarf." Against that backdrop, every annual general meeting became a battleground where the out- siders hoped to push through ever more radical resolutions. Most of their proposals have That's History By Christopher Moore long since become reality, but in the early '70s, motions to turn legal aid over to the gov- ernment or abolish the Queen's counsel designation still carried a whiff of revolution. It became a new treasurer's ordeal every spring to brave the young lions at the annual general meeting. Stuart Thom, normally a mild-mannered and politically rather progressive tax lawyer, con- sulted the police before the 1975 event. It might be necessary, he thought, to place some under- cover officers in the crowd. Yet after a few stormy years, the change agents among the lawyers lost interest in the an- nual meeting. The yearly events ceased to feature inconvenient resolutions. Attracting a quorum www.lawtimesnews.com became the biggest challenge. The change stemmed from a determination Convocation made in 1969, when bench- ers reluctantly confronted the resolutions from the first annual general meeting in 1968. They had to determine what force and authority the resolutions would have. Their conclusion was clear. "Resolutions of the annual general meeting are persuasive but not binding," the benchers declared in March 1969. They had a point. Bench- ers might be considered elitist, out of touch, and reactionary, but they had at least won their seats in an election open to every member of the bar. The quorum at the annual general meeting, by contrast, was whoever showed up. Groups that could success- fully pack a meeting couldn't therefore claim they actually rep- resented the bar in general. Henceforth, the bench- ers treated resolutions with as much interest as they chose to have. It wasn't Convocation that ended the Queen's coun- sel designation, and the gov- ernment didn't take over legal aid until the late 1990s. Once the bar saw how little force the resolutions had, there was no point in pushing them through year after year. Today, paralegals and fam- ily lawyers are both welcome at the annual general meeting, of course. But before they go to the mat over who can bring out the most partisans to support or defeat a controversial resolu- tion, they might refresh them- selves on the rules of the game. It doesn't really matter who wins and loses at the annual general meeting. If you want to make or stop change, it's the institutions that really have power that you need to get at. LT Christopher Moore's newest book is The British Columbia Court of Appeal: The First Hundred Years. His web site is www. christophermoore.ca.

• Cover
• Enforcement Powers
• Persuasive Resolutions
• Focus On Criminal Law