Law Times

LAW TIMES 6 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 25, 2019 www.lawtimesnews.com COMMENT B y now, if you're a regular reader of Law Times, you may have heard about the upcoming election for Law So- ciety of Ontario benchers to take place on April 30. The number of candidates running — now 145 people, af- ter Bencher Jack Braithwaite was elected as the only candidate nominated in the northeast elec- toral region — is the highest it's been since 1995. Law Times has launched a website focused exclusively on election issues, at bencherelec- tion.ca, that features nearly 40 self-authored candidate profiles (and growing) of paralegals and lawyers who want to be elected. We've also seen a huge re- sponse in the debate that's been taking place online through the hash tag we created, #BencherElection2019. In particular, since reporter Anita Balakrishnan reported on a slate of candidates that are all running on a joint platform of repealing the statement of prin- ciples, there has been a vocifer- ous discussion about how voters see the future of their profession and who they want representing them. In our coverage, we have intentionally committed to cov- ering a wide variety of issues, in- cluding a look this week at what some candidates would like to see scrutinized when it comes to annual fees they pay to the Law Society of Ontario. "If you look at the budget, the starting proposition is 'This is what we want, therefore, this is what it is going to cost," says E. Patrick Shea, a partner at Gowl- ing WLG in Toronto, who is running for bencher. "Maybe we can't do it all, though." As part of the piece, we've included figures about the fee changes over time, so voters and readers can determine their top issues as they select the next members of Convocation. We've also included informa- tion about the overall dropping rate of voter turnout in elections. Our goal in having a dedicated site is to share as much informa- tion as possible with readers. Whether it's online or in print (not all lawyers are on Twitter, as some have very crucially noted), we're working hard to follow up on issues of importance to our readers and the profession as a whole. LT ©2019 Thomson Reuters Canada Ltd. 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. 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Anita Balakrishnan Anita.Balakrishnan@thomsonreuters.com Copy Editor . . . . . . . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . . . . Laura Crawford Art Director . . . . . . . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . . Jacqueline D'Souza Electronic Production Specialist . . . . . . . Derek Welford Thomson Reuters Canada Ltd., One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON M1T 3V4 | Tel: 416- 298-5141 | Fax: 416-649-7870 | lawtimesnews.com LT.editor@thomsonreuters.com | @lawtimes BY K ADY O'MALLEY L et's just get this out of the way at the top, Law Times readers: I owe you an apology. While most of you are undoubtedly far too polite to point it out — publicly, at least — you would be well within your rights to wonder exactly why, in the wake of that mid-January ministerial lineup change that saw Jody Wilson-Raybould shuff led from justice to veterans affairs, I did not bring up the possibility that it was a deliberate demotion, let alone that, as is now being alleged by unnamed but presumably reliable sources, that she was being punished for refusing to kowtow to pressure to intervene in the criminal prosecution of Quebec-based engineer- ing giant SNC-Lavalin. It's fair to say the move did raise a few eyebrows as far as the optics of swapping out Canada's first Indigenous attorney general for a former McGill law professor turned first-time Liberal MP, particu- larly since it wasn't immediately appar- ent that there was any need for a change in command at justice, as the shuff le was ostensibly simply to fill the gap left by departing treasury board president Scott Brison. But the general consensus, at least at the time, was that Wilson-Raybould's on- the-job performance had been fine. Not outstanding, not phenomenal, just . . . fine, which is rarely enough to provide job security when a prime minister starts tweaking their lineup. In fact, while we're being painfully honest, relatively few of us in the precinct press corps — other than those with a particular focus on Quebec, of course — were aware that the SNC-Lavalin case was even still an active concern at the federal cabinet table, let alone one over which the internal debate was so politically charged that it could lead to claims of attempted political interference. As for SNC-Lavalin's ongoing cam- paign to get the director of public pros- ecutions to sign off on a deferred prosecu- tion agreement that could let the com- pany avoid a criminal trial, well, that, too, went largely unnoticed on Parliament Hill — as, for the most part, did the leg- islation setting up a deferred prosecution process itself, aside from some grumbling from opposition MPs at committee when it turned up in the middle of an already packed omnibus budget bill. Fear not, though: As the controversy sparked by the still unconfirmed allega- tions hits the two-week mark, we've all be- come experts on the subject. We can now offer up on-the-spot commentary on ev- erything from the pros and cons of DPAs to deal with corporate criminal responsibility to the ins and outs of cabinet confidential- ity, the parameters of solicitor- client privilege and the role of the attorney general within a functioning parliamentary de- mocracy on demand. We don't always get it right, of course. I can only imagine how qui- etly, utterly maddening it must be for those who actually do know something about any or all of the above: those in the legal profes- sion, the usual chorus of constitutional scholars, parliamentary process nerds and anyone else currently watching, aghast, as the story is framed, cropped and rotated to fit the prevailing political narrative du jour (or, in the current news cycle, du minute). So, after starting this column with an apology, there seems no more fitting way to end it than with another one, albeit pre-emptive: I wish I could reassure you that the swirl of increasingly wild-eyed accusations of political rot and inf luence at the highest levels of government will eventually coalesce into a more substan- tive debate over the checks and balances on cabinet and whether we need even more rigid protections to ensure unfet- tered prosecutorial independence, even — or especially — in cases where there's a significant public interest in the long run. Spoiler alert: It won't. As far as the current political firestorm goes, it will either peter out due to lack of fresh evidence or specific allegations or coast right into a full-blown public inqui- ry of Gomery-esque proportions. Will we ever find out whether Wilson- Raybould was, in fact, under pressure to act? Maybe; maybe not. More likely is that any eventual first- hand account of what happened that emerges will be sufficiently ambiguous to be open to interpretation. As for deferred prosecution agree- ments, while now permitted under the law, don't expect to see one any time soon. It's tough to imagine any attorney general willing to sign off on one — as is required — in the current climate. Finally, will it change the course of the next election? At the moment, it's impos- sible to predict, but that won't stop people — including those of us in the journalism business — from endeavouring to do so. We just can't help it, so please try not to hold it against us when we get it wrong. LT Kady O'Malley is a member of the parliamen- tary press gallery in Ottawa and writes about politics, procedure and process for iPolitics. She also appears regularly on CBC television and radio. Stories swirl around JWR kerfuffle Editorial Obiter Gabrielle Giroday Gabrielle.Giroday@thomsonreuters.com #BencherElection2019 The Hill Kady O'Malley u Letter to the editor Re: Lawyers' groups push government for Change. Feb 11 19 Any change that would cap costs awards for Simplified Procedure at $50,000 for fees and $25,000 for disburse- ments will undermine the ability of ordinary citizens to retain lawyers to bring cases to court. The reality is that cases under a fixed limit of $200,000 can be as complex and expensive to prepare as cases exceeding that limit. To arbitrarily set a cap on the costs that can be recovered from a wrongdoer will take lawyers out as advocates for ordinary citizens and enable well-funded corporations and insurance companies to undermine basic fairness and turn the adversary system into a system of procedural injustice. It will also give rise to more self-represented claimants who cannot possibly navigate the myriad sets of rules of court and regulations under the Insurance Act and similar leg- islation. Tom Connolly Partner, Connolly Obagi LLP Ottawa, Ont.

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