Law Times

November 3, 2008

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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2008 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. Editorial Obiter "What am I going to do without my cellphone?" "I'm the queen of talking while driving." "I get some of my best work done while I'm on the DVP." — Random reactions to the driving with hand-held devices ban. So the Ontario government has final- ly caught up with three other provinces plus 50 countries around the world and introduced legislation to ban the use of hand-held devices to talk, e-mail, or text message whilst behind the wheel. That would also capture hand-held iP- ods or MP3 players, global positioning systems, and portable DVD and video game players in the regime that imposes fines up to $500. Interestingly, demerit points aren't involved. Why? that are used with headsets or an earpiece, a GPS on the dashboard or portable media The ban will not apply to cellphones November 3, 2008 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 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. 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: 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@, Kimberlee Pascoe at 905-713-4342 kpas-, or Kathy Liotta at 905-713- 4340 or Sandy Shutt at 905-713-4337 or Rose Noonan at 905-726-5444 Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Dialing back bad behaviour players plugged into the vehicle's sound system. (Does anyone else think it's scary that we need a law to stop some drivers from watching movies?) It's a ban that's long overdue, though there's definitely going to be some with- drawal symptoms on the part of the ad- dicted. Once this new law goes into effect, drivers without hands-free features will have to ignore the tempting siren call of the vi- brating cellphone in their laps. Lawyers are not immune; as a group you have lustily embraced the technology that keeps you tethered to your work. These could be some tough days ahead as we all wean from our bad habits. Twitchy fingers and flash sweats may prompt some to get fixes on highway shoulders — there could be a conga line down the side of the 404. Maybe we can use this as an opportunity to reconnect with our own thoughts; hear the music again; actually focus on the road. Naw, we can hear the stampede now to outfit ourselves with the latest Bluetooth technology like characters in Star Trek, and upgrade our BlackBerrys and cellphones to voice command dialing. There might even be a run on Velcro as the question of wheth- er taping the things to the dashboard is still a gray issue. When asked by a reporter if one could get around the rule by taping an iPod to the dash, Transportation Minister Jim Bradley said, "I would have to look at that one." You can bet he is, so forget it. Yes, and the ingenious can even get around the e-mailing ban with this new technology that we heard about called Voice on the Go which actually allows a driver to e-mail hands-free. The system complies with the ban yet allows drivers to listen to their e-mail and reply by voice. Contacts and calendar are also accessible this way. "There has been tremendous interest in Voice on the Go from countries and states where cellphone driving bans are already in place," said the company's CEO John McLeod in a press release. "With Voice on the Go, our users keep their hands on the wheel and eyes on the road. There is no need to hold or look at your phone to access con- tent. Users can simply put on their headset, start talking to the system, and go." We're confident that we'll come up with fixes that comply allowing us to still have our precious communications while giddy- upping down the road. The ban is a great idea whose time has come. In fact, the only question we have is, how is it better for us to wheel around squinting at MapQuest directions on rum- pled paper than a hand-held GPS? "You should have both hands on the wheel," Bradley instructs. cartoon above.) Ah, but what about our feet? (See — Gretchen Drummie governed by lawyers for centuries, but lately the Canadian Judicial Council seems keen to deliver the message that judges should also expect to be judged by their peers. After a couple of high-profile CJC hearings on Ontario judges recent- ly, Allan Hutchinson of Osgoode Hall Law School concluded the CJC "is finally taking its regulatory role seriously." The CJC is over 35 years old I s a new level of professional self-government emerging in Canada? Lawyers have been The judge who launched the Canadian Judicial Council That's turned out the law did not then specifically cover municipal of- ficials who accepted bundles of cash. The charge was dismissed. Landreville decided to stay on the bench. History now. Its origins can be traced to the scandal surrounding one spe- cific judge: Leo Landreville of the Ontario Supreme Court. Back then, too, there was debate about who could judge a judge. In 1956-57, Landreville, a law- yer and mayor of Sudbury, took a large gift from a gas pipeline com- pany dealing with the city. He was not found out until long after his appointment to the bench. On- tario cabinet ministers were fired over the matter, and Landreville's benefactor was convicted of per- jury for covering up the payment to him. But when Landreville faced a criminal charge in 1964, it As a judge, Landreville was not subject to law society dis- cipline, and in 1964 there were no sanctions for judges short of a joint address of Parliament for their removal. Landreville dis- missed all pleas and calls for his resignation, and he looked to be home free with the money. But the press demanded his head and the government wanted him out. Even the law society pub- licly deplored the continuance in office of an unethical judge. In 1966 the feds empowered By Christopher Moore affair, it was agreed that the discipline of judges should not depend on elected politicians. The Landreville mess produced the impetus for action, and the CJC was created in 1971, with all chief and associate justices in Canada forming the tribu- nal and all federally appointed judges being subject to it. In over 35 years, the CJC Throughout the Landreville a royal commission to inves- tigate the case, and commis- sioner Ivan Rand condemned Landreville unequivocally. Landreville remained obdu- rate, but Rand's report convinced a parliamentary committee he was unfit for the exercise of his judicial function. With a parliamentary resolution for his removal in prog- ress, Landreville finally resigned in June 1967. He died in 1996. has not had a case to match the Landreville sensation; it has never yet removed a senior judge. In fact, what ethical stan- dard judges should face has re- mained an open question. Landreville never saw anything wrong in his actions, and he re- jected anyone's right to judge his character or his ethical fitness. He has not been alone in that view. In 1996 William Kaplan wrote a ter- rific book about the Landreville "character assassination" and characterizes them as WASP prejudice against a francophone judge. Landreville, after all, had been convicted of no criminal offence. In effect, this is the same argu- ment sometimes made about dis- cipline for lawyers: if they are not found criminally responsible, no one should presume to hold them to a higher standard. It would seem the CJC has case called Bad Judgment. It's deeply researched, alert to the big picture and the telling details, and vigorously written. But Kaplan denies anyone was entitled to act on moral judgments about Landreville's fitness for the bench. He dis- misses such judgments as been rejecting that point of view. In the case of the complaint against Superior Court Justice Ted Matlow, accused of hearing cases on Toronto municipal policies even as he was active in political action against similar civic poli- cies, there was no suggestion of illegality. But the CJC committee that recommended his removal did not shrink from judgments such as "inexcusable," "totally in- appropriate," and "manifestly and totally contrary" to proper judicial behaviour. Judicial office, the CJC seems to be declaring, really is a matter of character, and the CJC can and will break judges' careers on moral and ethical judgments. Should judges alone judge judges? Today courts and govern- ments increasingly oversee pro- fessional disciplinary bodies, and skepticism about the whole con- cept of professional self-regulation has become commonplace. Even with the CJC asserting its own standards, the courts recently af- firmed the special authority of attorneys general to compel CJC investigations, and lawyers now sit with judges on CJC panels. (Full disclosure: in the acknowl- edgments to Bad Judgment, Wil- liam Kaplan thanked me for sug- gestions I made, but noted that, "We differ in our interpretations." Perhaps we still do.) LT Christopher Moore is the author of The Law Society of Upper Canada and Ontario's Lawyers (1997) and other works in legal history. www.

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