Law Times

Law Times • November 3, 2008 eral Chris Bentley. Nasty words. Accusations. Right out in the open. "It's your fault." "No, it's your fault." Using letters to fight. Calling the other guy soft on crime. Better than duelling with guns. Bentley is trying to show he's doing something about the Bailey Zaveda shooting. Michael Bryant would have done something. So Bentley demands tougher bail conditions and blames Nicholson because Criminal Code changes are a federal responsibility. Nichol- son shoots back that it was Con- servatives who came up with min- imum jail terms for gun crimes. No weak-kneed provincial Liberal is going to usurp him as Mr. On- tario Law and Order. But now that federal elections are o now they're fighting! Justice Minister Rob Nicholson against Ontario Attorney Gen- over, the law-and-order stuff will be waning. The Conservatives got most of their crime laws through Parlia- ment last spring with the help of the federal Liberals. Included was approval for: doubling sentences for gun- related crimes; • • raising the age of sexual consent • • • approving a massive prison build- crime convictions; making bail harder to get; the rest of his crime agenda. When Prime Minister Stephen Harper saw that, he quickly adjourned Parliament for the summer before they could approve his crime agenda and rob him of his best anti-Liberal rhetoric. Then came the fall and rather than reopening Parliament, he called an election and cranked up the old crime-scare machine once again. Crime is never the No. 1 issue for Canadians. The Liberals were ready to approve health, the environment are all more important, they tell pollsters. But there is a small group of Can- adians who are obsessed by crime — they are mostly older folks with a lot of time on their hands who faithfully watch the various CSI spin-offs on American television and feel most vulnerable to young criminals. For them, crime is the No. 1 ballot box issue. Crackdown, they shout. Get tough with them. Lock the cell and swallow the key. That's why the Stephen Harper The economy, Conservatives always make a big thing out of crime leading up to an election and all through the cam- paign. It's not a big vote, but it is a solid vote. And it can be gotten. The Conservatives know full well that crime rates have been going down steadily in Canada for the past 25 years. They can read Statistics Canada releases like anybody else. Lowest crime rate in 25 years in from 14 to 16; abolishing house arrest for violent ing program to lodge the extra convicts. knowing when to drop it S Success means The Hill By Richard Cleroux of Canada. And then again, most of the murders in Winnipeg are by people who know their victims, or are gang-related killings. Increasing the penalties for mur- der will not stop one extra person from being killed in a wanton, sense- less shooting in a nightclub entrance. All the studies prove that. A guy stepping out of a Toronto bar late at night who is high on drugs or alcohol doesn't think: 'Hmm, maybe I'd better not shoot up this place because I might hit some- body and the person might die, then I might get caught, and then I might get convicted, and then the penalty might be more severe than it was before the last election.' The Conservatives' crime agenda serves a useful purpose at election time. It helps elect Conservatives. And then it goes back up on the top shelf until the next election. You won't hear any more talk about jailing 14-year-olds until the writs are dropped again. It doesn't bother Harper if some of COMMENT considered next year when the Supreme Court of Canada hears the appeal by the National Post in the fight to quash a search warrant and an assistance order issued to compel the news- paper to produce a document and the envelope in which it was delivered for forensic testing. The testing is intended to identify the person who sent the document and then perhaps the source of the document. The document is said to be a forgery of a Business De- velopment Bank of Can- ada loan authorization for a hotel. This was no ordinary hotel however. This hotel was at the centre of the Shawinigate scandal that threatened to bring down then prime minister Jean Chrétien's government. Before Chrétien became leader of the Lib- D o Canadian journalists need the abil- ity to protect confidential sources from disclosure? This issue will be his new crime laws will be tossed out on legal challenges. That only helps him prove the real problem is soft- on-crime judges. Judge bashing is a big part of the Conservatives' crime agenda, during election campaigns and afterwards. Pollsters have been unable to gauge accurately the ballot box effect of crime legislation. spread out in every riding across the country. Polling them is near impossible. Focus groups have been of some help. It is mainly feedback from candidates on the hustings that have convinced Conserva- tive election organizers that well- thought-out crime scares really do work, especially at election time. But they have to be thought Couch potato crime busters are out. Jailing 14-year-olds for life wasn't exactly the brightest idea, although it did get some votes from people who feel evil teenagers should be tossed into adult jails. That's why Harper was going around saying that jail would teach the teenagers a lesson, and make them realize what they did. But you won't hear that stuff again. Nor will Harper talk about re- criminalizing abortion. That's the big one. Harper moved quickly last spring to take over a member's private bill — Bill C-484 — called the Un- born Victims of Crime Act — that would have treated killing a preg- nant woman as a double murder. From there it would have been 2006. Tell that to the fellow watch- ing a reality cop show on American television and worrying himself to death about Jane and Finch. Lots of murders in Toronto, every- body says. Actually the murder rate in Toronto in 2007 is below the na- tional average. The only reason there seems to be so many murders in To- ronto is because it's a big place, not a particularly violent place. Winnipeg, not Toronto, is the murder capital eral Party he owned an interest in a hotel and an adjacent golf course near Shawinigan, Que. After becoming Liberal leader but before be- coming prime minister, he sold his interest in the hotel. In 1993, after becoming prime minister, he sold his interest in the golf course but the purchaser defaulted and didn't pay, resulting in Chrétien selling his golf course interest a second time to another purchaser in 1999. In the meantime, in 1996 the hotel owner, Yvon Duhaime, a man with a crim- inal record, applied to the BDBC, a federal Crown Corporation, for a $2 million loan to expand the hotel. Chrétien, then prime min- ister, phoned and met BDBC president Fran- çois Beaudoin to discuss the loan. The BDBC turned down the loan as being too risky. In 1997, the BDBC later approved a small- er $615,000 loan after Chrétien, still prime minister, again spoke with Beaudoin. If Chré- tien had attempted to convince the BDBC to lend money to assist the hotel it could have been seen as a conflict of interest as benefiting Chrétien in respect of the adjacent golf course. But hadn't Chrétien sold the golf course? Well, he did but he hadn't been paid, and he had a right to re-sell his interest in the golf course which he did in 1999, so arguably there was an indirect benefit. Chrétien says he did noth- ing wrong in lobbying the BDBC and that he was only doing his job as a member of Par- liament for his riding. As he said, "[i]t's the usual operation. You call who you know." The difficulty for Chrétien is that he had repeat- edly denied having had any involvement with the loan which he claimed was routine until confronted with evidence to the contrary by National Post writer Andrew McIntosh. The BDBC loan authorization document, if genuine, would have established that Chré- tien had benefited from the loan. The docu- ment, however, was declared a forgery, hence the attempts to get the document and envelope for forensic testing with the goal of finding and charging the forger. Senior Justice Mary Lou Benotto of the Superior Court of Justice quashed the warrant Journalists don't need blanket shield law Social Justice By Alan Shanoff and assistance order on various grounds. Most importantly she concluded that the Wigmore criteria for privilege had been met on the "unique" facts of the case. There was a con- fidential relationship between the source and the reporter. The source was promised confi- dentiality. The document was not required for the defence of an accused but rather merely to further an investigation. Produc- tion of the document would impair freedom of expression and "min- imally, if at all, advance the investigation." The Ontario Court of Post editor to give the RCMP the document and envelope. While the OCA stated that in appropriate circumstances a claim of journal- ist-confidential source privilege might suc- ceed, in this case, the law enforcement inter- est in disclosure defeated any privilege claim. What was the law enforcement interest? Test- ing of the envelope might reveal a potential crime or "possible evidence of a crime." That's an extremely low threshold and I welcome the appeal to the SCC. Requiring the document and envelope Appeal saw it differently. They reversed Benotto and ordered the National PAGE 7 to be produced would serve no great public interest in light of Chrétien's prevarications involving the loan. There was no real risk that the forged document would have forced Chrétien from office. Forcing production of the document and envelope might make other potential sources less likely to pass on valuable information to journalists. I don't, however, believe that journalists need a blanket shield law. There is no need to create a new form of privilege or any blanket privilege for journalists. There is too much of a risk of abuse in having a blanket privilege and miscarriages of justice could result. I favour Benotto's approach of weighing the factors on a case-by-case basis to determine if production of a document or forced disclosure of a source would advance the interests of justice suffi- ciently so as to justify an impairment of free- dom of the press. Some of the factors the court should be looking at include: what efforts have been made to obtain the information from non-media sources; is the disclosure essential for the advancement of the interests of jus- tice; might there be a miscarriage of justice if the information is not disclosed. Further, the "privilege" should be limited so that it applies only to governmental activities or significant matters of public interest. Finally, perhaps if our access to information laws worked the way they were intended, journal- ists might not need to depend on those pesky brown paper envelopes sent by confidential or anonymous sources. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail. com. a short legal distance to making killing just one of them an act of murder, which is what's happened in 13 American states. Now it's on the top shelf. Gone. Goodbye. Successful government is not only knowing what to present as legisla- tion but knowing when to drop it, or when to raise it again. LT Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. www.lawtimesnews.com

• Cover
• Canaries In Coal Mine
• Judge Launched CJC
• Focus On Real Estate Law