Law Times

Law Times • January 28, 2013 Page 7 COMMENT Politics behind punishment of whistleblowing Justice lawyer A strange case is making its way through the Federal Court these days. It's the case of Edgar Schmidt, a 60-year-old Justice Department lawyer. Schmidt says he and his Justice lawyer colleagues have been told for years not to point out possible Charter of Rights and Freedoms violations in legislation they have to review over before it goes on to Parliament. Schmidt says they're told not to point out contradictions, possible challenges or anything questionable of the sort, especially not to those opposition MPs. It's like not allowing fire inspectors to point out possible short circuits in the wiring. It would only frighten homeowners, so it's better to say nothing, the thinking goes. So what if it's your job to point out the flaws? The problem in Ottawa is that all sorts of faulty legislation gets sent down to Parliament, sometimes with obvious Charter problems that any law student would spot. In fact, the issues go beyond the Charter. Take, for instance, the mandatory minimum sentence laws Prime Minister Stephen Harper, Justice Minister Rob Nicholson, and Public Safety Minister Vic Toews love to shove through Parliament. My favourites are the mandatory jail Of course, Nicholson's Jussentences. One of them is for tice shop is supposed to do gun possession. Remember The Hill that and most of the lawyers the case of the guy who sat on there could do it if only they a sofa in his underwear playwere allowed to, according to ing with a gun in his cousin's Schmidt. So for blowing the apartment when the cops whistle, the government susburst in? They were looking pends Schmidt without pay for the cousin, but the accused instead of giving him an Order was hanging on to a forbidden of Canada. weapon he had no permit for. The minister doesn't want That was a big mistake. Richard Cleroux to know if legislation violates There's mandatory jail time for playing with a gun. The story went around or could breach the Charter. And you the world. It was as if the accused was going were wondering how Toews ever got that to rush out and rob a bank in his underwear. legislation into the House of Commons There are plenty more such stories, that gave police the power to go rooting such as the one about the guy the cops through everybody's Internet files withfound near six strange-looking potted out any evidence of wrongdoing or even plants his kid brother had in their moth- permission from a judge. So parliamentarians never get the ader's basement. Of course, you become a vance warnings they're supposed to get pusher if found with six of those strange plants. So welcome to Harperland. There and they all end up looking no smarter are dozens of mandatory minimum sen- than Toews. In the Justice Department, lawyers tencing laws like that. There's never a dull moment with Conservatives writing the looking over legislation are told to never tell laws and Justice Department lawyers not parliamentarians about the flaws they've found. MPs, in turn, never get the legal allowed to point out the Charter flaws. What we need is somebody who opinions they're required to have by law. The Schmidt case has revealed that knows the law to run the legislation against the Charter before it ever gets to even Nicholson was in the dark about Parliament and makes everybody look these things. The government, meanwhile, ends up fighting Charter challenges in the stupid. Lawyer learns hard lesson about representing himself BY SIMON SCHNEIDERMAN For Law Times W u SPEAKER'S CORNER e all know that when lawyers act for themselves, they often have fools for clients and poor representatives. Nonetheless, when the opportunity occurs, the temptation to represent oneself is great. I have done it and found, on the whole, the return was not equal to the investment. However, the first impulse when confronted by something that is challenging to us as individuals — a regulation that demands too much duty, a driving ticket issued unfairly, a landlord demanding too much in rent — we say to ourselves, "I am a trained professional. I will use my skills and apply them deftly and with precision to resist this inequity." We presume, after all, that we can do a better job ourselves. So, we don our armour, gird our loins, and head out. Meanwhile, we're probably investing too much time and adrenaline in making a mountain out of a molehill. Of course, we presume gratification will come when we win. But to win, you have to contest. Sooner or later, the moment may arrive when you are standing in court, ungowned because you cannot gown to represent yourself, and about to embark on your submissions. Without your gown, you feel more exposed than you are used to feeling in a courtroom when you arrive on behalf of a client. After all, their problems are not yours and there is room for dispassion. But here you stand. You look around the courtroom at your colleagues who are all gowned and wondering why you are there in civilian attire. Suddenly, you are not so sure you want them witnessing your exercise in civil liberty over an issue that appears, with unexpected force, particularly modest. But it is too late. Your gowned opponent is there and before you know it, so is the judge. You may have appeared on other occasions before this judge and acquitted yourself with skill and discretion, but now the judge is wondering, silently, why you're in court over this. And you think to yourself: the only reason I am probably here is because I can be, your honour. Of course, one of the other reasons you are there acting for yourself is the cost. Why hire someone to represent you when you can do it yourself for free? This requires closing your eyes to the hours of time spent in preparation and research that you have devoted to arrive at this point. It also requires ignoring the other alternative that is available to you, which is to simply surrender or settle the dispute. This is especially true of solicitor-client assessments. Collecting fees from clients is not always free of tension, but in this economy it may be particularly challenging. It's frustrating to face the prospect of not getting your full payment when the amount is modest and you provided good service. An assessment is an expeditious and efficient arena. But what if the self-represented client appeals the assessment? A judge must review the assessor's report if it's contested, so do you represent yourself? The temptation is certainly there. You haven't got your money, so why hire a lawyer and throw good money after a delinquent account? You could forget about it, but the idea rankles. You did the work and deserve your money. Nevertheless, representing yourself isn't necessarily wise. So I offer you some wisdom when it comes to self-representation. First, if you have room in your life to represent yourself in court, re-examine your life. Second, if you feel you are the only one who can properly represent you in court, re-examine your ego. If that task is too daunting, go back to the first piece of advice. Third, if the need to plead is beyond your control, please send me a self-addressed envelope and I will send you the inaugural pamphlet for Advocates Anonymous. LT Simon Schneiderman practises commercial, family, and negligence litigation at Simon Schneiderman Professional Corp. www.lawtimesnews.com courts — sometimes all the way to the Supreme Court — and that can be very expensive and take a lot of time. In the end, taxpayers always lose because they end up paying the legal bills, often on both sides of the courtroom. We're talking hundreds of thousands of dollars and years of work. It's all about politics. Harper, Nicholson, and his bunch don't care about Charter challenges. By the time their legislation gets to the Supreme Court, another election will have come and gone and, as long as they use the right scare tactics, they'll be back in power as they crank out more untested anti-crime legislation. The best scare tactic is still vowing to stop crime in the streets even though most offences occur in homes or stores and a lot of the time behind a desk by people in white shirts with clean ties. And if the courts toss a new piece of legislation, politicians can always say blame soft-oncrime judges. It's all about winning the next election. So why didn't Schmidt play the game like everybody else? He'd still have his job if he had done so. LT Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. u Editorial corrEspondEncE LOOK OUTSIDE BIG CITIES Recent graduates should also look outside major metropolitan areas. Lawyers in smaller centres often have difficulty finding juniors. The reality is that ever since law schools increased the number of students graduating, there has been a glut of young lawyers. In the old days, entrepreneurial young lawyers would open up their own practice in criminal, family, estates, and civil litigation. In my view, law schools should be teaching the basic skills required for a young lawyer to hang up their own shingle and practise law on their own or with a group. While this may not be the preferred choice of this young lawyer, it provided for a decent practice and there continues to be a need in these areas. Comment on lawtimesnews.com by Old Lawyer about "'Sheer desperation' prompts law grad's ad for job." GRAD HAS BAD ATTITUDE This new call sounds like one of the typical entitled law students that were all too common in law school. She sounds spoiled, whiny, entitled, and has the wrong attitude. Yes, the market is really terrible for new calls right now, especially those who want a position in corporate. I am sort of perplexed at why she would admit to the Law Times that she doesn't think the ad would work. Even if she believes it won't, after her helicopter mom spent money on the Ontario Reports, doesn't it make sense to put your best foot forward and say something like: "I put up the ad because I have tried absolutely everything to find a job to no avail. I'm doing this because I am willing to do anything to find a position." I don't feel sorry for this new call at all; she has the advantage that her mother is a lawyer. If I was unemployed and had that advantage, I'd set up as a sole practitioner and put up an ad somewhere soliciting for clients. No one wants to hire a whiner, even one that is in the top three per cent of the class. Comment on lawtimesnews.com by 1Generation2012Cal about "'Sheer desperation' prompts law grad's ad for job."

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