Law Times

Page 6 January 14, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Sentencing circles for lawyers I f sentencing circles are fine for the criminal justice system, why shouldn't they be an option at Law Society of Upper Canada disciplinary hearings? In a recent case involving lawyer Terence John Robinson, an LSUC hearing panel had the task of deciding whether to allow a sentencing circle for him. Robinson, a member of the Wikwemikong First Nation, has been in hot water in relation to a 2009 conviction for aggravated assault. He subsequently admitted to conduct unbecoming a licensee but wants to return to his criminal law practice representing aboriginal clients. The panel then invited submissions on whether to hold a sentencing circle for him. In its recent ruling on the issue, the panel rejected that option in Robinson's case. The reasons cited included the fact the suggestion of a sentencing circle came from the panel and not Robinson; there was no evidence he ever lived on the reserve; and uncertainty over whether the community would participate in the process. But in doing so, the panel rejected arguments from the law society's counsel that sentencing circles are inappropriate in LSUC matters. Citing the hearing panel's duty to determine penalty, LSUC discipline counsel Deborah McPhadden argued the opinion of anyone else "is irrelevant." Bencher Carol Hartman, in written reasons on the issue, found otherwise. "Given that Convocation's primary objective is to protect the public and to maintain public confidence in the legal profession, the holding of a circle would engage the public in the penalty process and could play an important role in maintaining public confidence in the profession," Hartman wrote. Holding a circle, she added, in no way negates the panel's ability to determine the penalty. Hartman got the issue right. In emphasizing the law society's duties to the public, she rightly noted the potential for sentencing circles to help maintain confidence in the legal profession. In particular, they give victims and communities a greater voice in the process while maintaining the hearing panel's ultimate authority. That's not to say the panel should have allowed a sentencing circle in Robinson's case or that there aren't concerns or issues to work out should the law society eventually allow one to take place. But there's no reason to prohibit them outright. If the legal system in general promotes restorative justice, surely it should apply to the profession itself. — Glenn Kauth History shows Canada's liberal culture towards guns T he horrific school shooting in Newtown, Conn., has given a new impetus to gun control efforts in the United States. But it's uncertain whether advocates for new restrictions can make headway against a gun culture supported by expansive readings of the Second Amendment. In Canada, the state hasn't had to work around a constitutional right to bear arms, nor do we have a lobby group as powerful as the National Rifle Association. But Canada has its own gun culture, and political opposition to gun control measures can be just as effective as entrenched legal rights in causing the government to water down or abandon such measures. I learned this from a fascinating new work by Blake Brown, Arming and Disarming: A History of Gun Control in Canada. According to Brown, colonial and Canadian governments were mostly interested in arming the population and training people to use firearms up to about the First World War. Until the 1870s, they wanted to prepare citizens to repel a possible American invasion. Later, they wanted to ensure that Canadian soldiers would be capable of fighting effectively in imperial wars. There were exceptions to this trend, but restrictions on firearm use or ownership Law Times the ownership of handguns, were typically limited in time obliged those carrying pis— during elections or after the That's tols to apply annually for a rebellions of 1837-38, for exHistory certificate of exemption atample — or targeted particutesting to their good characlar groups such as Irish canal ter, and for the first time reworkers or aboriginals. quired gun sellers to record After Confederation, Otevery purchaser's name and tawa provided generous fiany identifying marks on the nancial aid to rifle shooting weapon. associations, a fact that led the After the First World War, New York Times to remark enconcerns about disloyal aliens, viously in 1872 that "Canada Philip Girard Bolsheviks, and social unrest has 45,000 trained marksmen during the Depression led to among its volunteer forces, while the United States has none." When more aggressive measures. In 1934, the the American NRA emerged in 1871, its federal government required all owners to founders looked to Canadians for assis- register their weapons with the RCMP, but tance. Canadians even drew up the plans this move aroused little controversy then and hasn't since. As Brown argues, most for the first NRA shooting range. Sir John A. Macdonald was ada- mainstream users possessed long guns, not mantly opposed to state regulation of pistols, and didn't see the registry in place at firearms even though many in his own the time as threatening. Gun control reached the public agenda party worried about the proliferation of cheap, easily concealable handguns. He again in the late 1960s when a renaissance believed the right to carry weapons was of interest in hunting collided with urban an important component of British lib- concerns about firearms of all kinds, not erty. As a result, serious regulation had to just pistols. By 1973, half of all firearm murders in Canada involved rifles, not await his death in 1891. The Criminal Code of 1892 insti- handguns. In 1975, three incidents at Ontuted the beginnings of modern forms tario schools, all involving rifles wielded by of control. It set an age limit of 16 on students, left four dead and many injured. 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 Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . Michael McKiernan Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . 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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 $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com Those events led the government to propose in 1976 that all gun owners obtain a licence with the support of two guarantors attesting to their suitability to own firearms. Despite broad public support and the Liberals' majority, the measures sparked ferocious opposition by a number of gun advocacy groups. The government backed down: only new gun owners would require a licence and it dropped the need for guarantors. There were virtually no civil society groups supporting gun control in the 1970s. That would change completely in the aftermath of the Montreal massacre of 1989. The Liberals, however, misspent this political capital when they set up the longgun registry with inadequate planning. That allowed opponents to reframe the issue as one of government waste rather than reducing gun violence. The issue, of course, lives on. So whatever your opinions on gun control, Brown's book is essential to an understanding of the current situation in Canada. LT Philip Girard is a legal historian and professor at Dalhousie University's Schulich School of Law. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is philip.girard@dal.ca. 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. 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