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Law Times • march 22, 2010 Harper's plan for young criminals more jail time is back before the House of Commons again. It's his old youth-crime bill that never passed but has been tweaked a little to make it ac- ceptable in Quebec, where they don't like jailing youngsters. There's a new cabinet mem- ber to carry the ball: Natural Resources Minister Christian Paradis, who speaks French. Justice Minister Rob Nicholson doesn't. P The spin is less hypocritical. There is no longer a pretence that jailing young people is crime prevention. Now the gov- ernment says it plainly — it's time to make youth responsible for their actions. Bigger crimes equal longer time. Paradis even came up with a new label for the Conserva- tive crime agenda in a Radio- Canada interview last week: "la société juste." It's a familiar phrase we've heard from some- one else. They've got a new poster boy for the law in Sébastien Lacasse, a 19-year-old Quebecker who was murdered at a house party by a teenager later sentenced as an adult. The bill will be called "la Loi Sébastien" in his honour and likely play a big role in the next federal election. Harper also found an adult victim-hero to help out with his legislation. He's Pierre-Hugues Boisvenu, founder of the Mur- dered or Missing Persons' Fami- lies Association after his daugh- ter Julie was murdered in 2002. Boisvenu is well known and highly respected, a sort of Priscil- la de Villiers of Quebec. Harper appointed Boisvenu a Conser- vative senator last month, and he should play a big political role in the Harper youth-crime campaign in Quebec. Harper's crackdown reso- nates with Canada's aging boomer population worried about young criminals attack- ing them. But this time, there'll be no more adult-jail time for teenagers. Former justice minister Vic Toews' plan to jail 10-year-olds is long gone. Harper learned from that expe- rience. He's more careful now, more tactical, and less openly ideological. It was the Bloc Québécois that forced Harper to back down on his last try at jailing teenagers in adult prisons. They called it "feeding fresh meat to penitentiary pedophiles." There's one thing about the Bloquistes that makes them so different from the Liberals. The Bloquistes always give as good as they get from Uncle Steve. They have already announced they will fight Harper's legisla- tion all the way to the Supreme Court if they have to. But there is a big demand from Harper's Reform-Alli- ance base for a government crackdown on young people rime Minister Stephen Harper's attempt to pun- ish teenage criminals with The Hill By Richard Cleroux who commit serious crimes. It boils down to Harper weigh- ing losses in Quebec against the consequences from his base. If he plays it well, he can keep both. But he could lose both ways. Part of the legislation in- volves allowing the media to publish the names of teenagers convicted of serious crimes. The government makes no pretence that this plan to stigmatize young people as criminals will make it easier for them to get on with their lives after serving their sentences. The thinking behind it is to embarrass their parents when they see their children's names in the newspapers. The hope is that this fear of public sham- ing will lead parents to take a bigger role in their children's lives. As for young criminals, most of them couldn't care less if their names appear in the newspapers. In some cases, the notoriety, especially if it is gang- related, appeals to them. But it's different for the parents. It doesn't take a career in law to figure out this one is headed for the Supreme Court unless the government puts shaming into the Criminal Code as a proper punishment for judges to hand out. In the end, if Harper, Toews, and Nicholson get their way under the new legislation, a 16-year-old sentenced as an adult to a life sentence of 25 years in prison for first-degree murder will serve his first three years in a youth facility. Then at age 19, the youth graduates to an adult peniten- tiary to serve another 22 years before leaving jail at 41 years of age as a productive and up- standing member of society — all with help from the tooth fairy. Right now, convicts usu- ally get out of jail after a third or two-thirds of their sentence unless they have been com- pletely intolerable behind bars. The thinking is that as long as they've got something to work towards, such as getting out early, it could lead them to bet- ter behaviour. Harper, Toews, and Nichol- son, however, have a bill com- ing to ensure there will be no more fooling around with man- datory early parole. But that's another bit of legislation, and there's no guarantee it will pass through Parliament before the next election. LT Richard Cleroux is a freelance reporter and columnist on Par- liament Hill. His e-mail address is richardcleroux@rogers.com. I COMMENT PAGE 7 Is a dirt bike an automobile? Appeal court rules in plaintiff's favour over Florida crash BY LORETTA MERRITT For Law Times n December 2008, Christine Rougoor was in an accident in Florida. A paraplegic, she was driving an uninsured dirt bike. At the time of the crash, her family had seven vehicles insured with the Co-operators General Insur- ance Co., including two dirt bikes. The unin- sured dirt bike was virtually identical to another one insured under the policy. Rougoor applied to Co-operators for accident benefits, which the company denied. It took the position that she hadn't been injured in an accident because the dirt bike, which belonged to a friend, wasn't an automobile. The application pro- ceeded by way of an agreed statement of facts. Superior Court Justice J. Pat- rick Moore dismissed Rougoor's application and held that the friend's dirt bike wasn't an automo- bile because "the critical fact in this matter is that [the friend] did not live in Ontario." As such, he wasn't bound by the provisions in Ontario legis- lation to insure his dirt bike. The Court of Appeal, ruling in Rougoor v. Co-operators General Insurance Co., allowed the appeal and granted Rougoor a declaration that she is entitled to accident benefits. It held that the proper test for determining when a vehicle is an "automobile" is as follows: • Is the vehicle an automobile in ordinary par- lance? • If not, is the vehicle an automobile as defined in the policy? Editorial Correspondence GALATI GOES TOO FAR As an officer of the court, Rocco Galati would be better to advise his clients that they should appeal and tell the media that that is what he has done rath- er than publicly castigating the presiding judge (see "Galati takes deputy judges ruling to appeal court," Law Times, March 8) and thereby, to use his own language, bringing "the administration of justice into disrepute." Describing the reasons of the trial or hearing judge in intemperate language is unfair to the court as well as inconsistent with the traditions of the bar. David Scott, Borden Ladner Gervais LLP, Ottawa, Ont. JOB CREATION THROUGH CRIME LAWS? The Tory crime and drug agenda (see "Something old, something new in throne speech," Law Times, March 8) has three parts: to pander to myopic and media- addled punishment-fetishists who make up their voter base and who think jail is the best deterrent for any behaviour; to paint anyone who speaks sensibly about drugs as soft on crime; and to impose a U.S.-style for- profit prison industry onto Canadians. The government's previous legislation would have necessitated the building of no less than 12 brand- new billion-dollar prisons and have cost taxpay- ers upwards of $500 million per year to maintain. Maybe this is Prime Minister Stephen Harper's plan to reduce unemployment. Since tens of thousands of people under the age of 40 will be in jail, this will make the jobless numbers appear lower. There will certainly be jobs for guards and support staff as our prison population soars an estimated 70 per cent. This policy has been wildly successful in the United States. It has increased partisanship, filled the airwaves with balderdash, increased crime, and made a handful of rich Americans even wealthier. That's what the Tories want for Canada. Incidentally, in the Netherlands, where mari- juana is sold in "coffee shops," they are laying off www.lawtimesnews.com • If not, does the vehicle fall under the en- larged definition contained in s. 224(1) of the Insurance Act? The court found that the dirt bike was an au- Speaker's Corner tomobile under the second branch of the test due to the wording of the insurance policy. It said that the word "automobile," when used in the policy, must have a consistent meaning. According to s. 1(3) of the standard Ontario automobile policy, "automobile" is defined as follows: "In this policy, there is a difference between a described automobile and the automobile. When we refer to an automobile as described, we mean any automobile specifically shown on the certificate of automobile insurance." The policy then goes on to include both a "described automobile" and "other automobile driven by you" in the definition. The court held that because Rougoor's pol- icy covered a dirt bike, the definition of "other automobile" would also include a dirt bike. The court also held that because the policy provided coverage in Canada and the United States, the uninsured dirt bike in Florida was an automo- bile in accordance with the definition under the policy. The court didn't address whether the friend's dirt bike fell within the enlarged defi- nition under the Insurance Act. Doing so was unnecessary given its finding that the second stage of the test had been met. LT Loretta Merritt is a partner with Torkin Manes LLP who represented Rougoor in the case. She can be reached at lmerritt@torkinmanes.com. guards and closing jails because they don't have enough crime. Russell Barth, Federally licensed medical mari- juana user, Nepean, Ont. QUESTIONING OPP RECORD IN HIGH-PROFILE CASES Are you a lawyer, Glenn Kauth? The Ontario Pro- vincial Police have this extraordinary record of letting politicians off the hook. Witness the recent decision to walk away from laying charges in Toronto's MFP case. On the optimistic side, OPP rookies can and do screw up and before any strings are pulled, which is apparently what happened in Rahim Jaffer's case. So it's goodbye cocaine possession and impaired driving charges. Comment posted on lawtimesnews.com by The Bent- ley Unit about "Crown should explain actions in Jaffer case." SECRET SOCIETY I read the letters between Law Society of Upper Canada benchers Doug Lewis and Clayton Ruby. I am absolutely disappointed that the law society at Convocation meetings is a secretive and elitist cor- poration where people are blocked from their right to freedom of expression. We therefore are not a democratic nation. The citizens of this country have lost faith in this secretive profession along with the secretive and politically correct media. Comment posted on lawtimesnews.com by Violet about March 15 letters to the editor. ISN'T CHECKING EXPERTS A DUTY? George Callahan recently told the Toronto Sun that checking the qualifications of expert wit- nesses is an art that most lawyers aren't well- trained in. Whether or not it's an art, isn't it a duty? Whenever an allegedly dubious expert be- comes the topic of discussion, somebody pops up with the warning about an expert chill. But if it takes an expert chill to purge the civil litigation system of unqualified experts, wouldn't that be a good thing? Comment posted on lawtimesnews.com by Brian about "Lawyers targeted in row over expert witness."