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November 21, 2011

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PAGE 6 COMMENT Law Times Group Publisher . . . . . . Karen Lorimer Editorial Director . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . .Kendyl Sebesta Staff Writer . . . . . . Michael McKiernan Copy Editor . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . . Lorraine Pang Art Director . . . . . . . . . Alicia Adamson Account Co-ordinator . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . Derek Welford Advertising Sales . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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 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. NOVEMBER 21, 2011 • LAW TIMES Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Eman Aboelsaud at: eman.aboelsaud@thomsonreuters.com or Tel: 416-609-5882 Ext. 2732 or Fax: 416-649-7870. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 416-649-9411 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 416-649-8875 kimberlee. pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Let's compromise on Occupy camps S hould governments be remov- ing Occupy protesters from their camps? Th at's been a key question as cities be- gan issuing orders to clear the various sites that have sprung up across Canada. Th e moves to clear the camps raise obvious constitutional questions. In a re- cent written debate between two Bennett Jones LLP lawyers, the pair argued the constitutional issues. On the one hand, partner Derek Bell said that while remov- ing the protesters could be an infringe- ment to provisions protecting freedom of expression and freedom of peaceful as- sembly under the Charter of Rights and Freedoms, those sections of the Consti- tution don't necessarily uphold the right to exercise those freedoms while staying in tents. "What meaning is conveyed by pitching tents, as opposed to merely stay- ing in the park in a sleeping bag or sitting on a bench?" Bell asked. But fi rm associate Ranjan Agarwal has a diff erent view. "Th e movement's expres- sion is not in the speeches the demon- strators make, the rallies they hold or the signs that wave, but in the fact that they are occupying public squares and parks," he wrote. "Th e overnight tents make it obvious that the public space has been oc- cupied, and conveys the meaning that the demonstrators will not relent until there is a 'democratic awakening.'" Both arguments are reasonable. Cer- tainly, Bell makes a good point that the tents aren't necessarily integral to the mes- sage protesters are expressing and that, even if they are, other concerns, such as public health and safety, likely provide for an argument for reasonable limits on the rights to expression and association. Agar- wal, meanwhile, has tapped into the sen- timent that there appears to be something diff erent about the Occupy protests. "Th e Occupy movement has clearly fostered a debate about income inequality and the global fi nancial crisis given the attention it has had by politicians, media, and aver- age citizens," he wrote. Agarwal made particularly strong ar- guments rejecting the notion that the concerns about the camps raised so far could provide a reasonable limits justi- fi cation for removing the protesters. In Victoria, for example, authorities raised the argument for taking down the camps in order to prepare for Christmas activi- ties. Agarwal was quick to shoot down that justifi cation given that "' Christmas is coming' isn't going to cut it in cities with multitudes of green space." Beyond the legal issues, which the Superior Court was to consider this weekend in relation to Toronto's bid to remove protesters based on the Trespass to Property Act, those dealing with the issue across Canada should be ready to compromise. Th e Occupy protesters have a legitimate message that they can link to the use of tents, and their actions don't represent a huge burden on the public, especially since they've been non-violent. But if there are legitimate health and safety concerns, the protesters should be willing to allow authorities into the parks to deal with them. If they do so, cities across Canada should let them stay and continue to have their say. — Glenn Kauth 1930s. A fairy-tale royal wedding. Welcome to 1981. Th e wedding was Charles', Canadians Situation not so different 30 years after patriation A wave of foreclosures. Ris- ing unemployment. Th e worst recession since the not William's, and interest rates were a stratospheric 20 per cent compared to zero per cent at present. Otherwise, were hurting 30 years ago in ways very similar to the present. It's unimaginable today that a con- stitutional change could distract a government from managing the economy. But 30 years ago this month, we witnessed the con- cluding chapter of the knockout battle we call patriation of the Ca- nadian Constitution. Anniversary journalism has predictably focused on confl icts between the key political and judicial players: Pierre Trudeau versus René Lévesque; Bill Davis and Richard Hatfi eld against the gang of eight premiers; the con- vention majority in the Supreme Court's patriation reference ver- sus the minority judges. We seldom ask how we got a revamped constitution with a shiny new bill of rights while the people of Canada stood on the sidelines. By way of comparison, Tunisia's elected constituent That's assembly, com- posed mostly of non-career politicians, starts meeting this week to draft that coun- try's new constitution. Voting and referendums are only one form of political par- ticipation. When parliamentary hearings on the proposed charter of rights took place, people inun- dated the committee with sub- missions. Opinion polls showed that Canadians, both inside and outside Quebec, were largely in favour of both patriation and a charter of rights. Th e women's and aboriginal rights components of the proposed package were im- proved as a result of civic activism following negotiations during the fi rst week of November. Still, politicians, spurred on by the Supreme Court decision of Sept. 28, 1981, made the deal itself. Trudeau didn't want it that way. He had opposed the involve- ment of the Supreme Court until the last possible moment. His ini- tial package in October 1980 had a provision for settling an impasse History By Philip Girard on a new constitutional amend- ing formula through a binding referendum. Canadians would choose between his proposal and one coming from the provinces. Even earlier, he had planned to involve the Canadian people in constitutional change. In 1978- 79, passage of a Canada referen- dum act had been a key priority of Trudeau's third term. It would have allowed the cabinet to call a non-binding referendum across Canada or in particular provinces on any question related to the Constitution. When time ran out on the 30th parliament in March 1979, the bill hadn't passed. Trudeau probably wasn't too worried be- cause he expected to win the elec- tion and pass the bill soon after. But the Liberals lost. By the time Trudeau won the next election in February 1980, www.lawtimesnews.com fi ghting the Quebec referen- dum took priority and there was no time to resurrect the bill. (Ironically, it was the Mul- roney government that fi nally passed it in 1992 in order to call the referendum on the Charlottetown Accord.) As a result, when the Supreme Court decided that Trudeau would breach a conven- tion requiring the consent of a substantial number of provinces by proceeding unilaterally to Britain, his government had little alternative but to negotiate. Years later, after seeing how the Parti Québécois exploited the exclusion of Quebec, Trudeau re- gretted his deal with the premiers. Had he held a referendum on the Constitution, he said, "Quebec wouldn't have been able to say it was 'left out,' because everybody [i.e., the premiers] would have been 'left out.' Canada would have got a better amending for- mula and a better charter." Maybe, but Canadians cer- tainly didn't clamour for one at the time. Editorialists reminded the public that Canada had held only two referendums, one in 1898 on temperance and another in 1942 on conscription. At the same time, the Quebec referen- dum was fresh in people's minds. Another one, then, was too divi- sive given our strong regional and ethnic tensions. It was better to let the politicians hammer some- thing out than have the country's deep cleavages laid bare. Canada didn't fi ght a revo- lution to get the state off our backs or, as in Tunisia, overturn a dictatorship. A commitment to responsible government in a parliamentary system rather than republican direct democracy is in our constitutional DNA. Th at fact was never more obvious than 30 years ago when our politicians brokered a new constitution and no one cheered. Canadians heaved a sigh of relief and told the politicians to get back to work fi xing the economy. Philip Girard is a legal historian currently teaching at Osgoode Hall Law School. Th is is his fi rst Th at's History column. He takes over from Christopher Moore, who penned his fi nal column for Law Times this fall.

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