Law Times

Page 6 March 24, 2014 • Law TiMes www.lawtimesnews.com COMMENT Photocopying shouldn't be so hard ow hard can it be to photocopy documents? Apparently, it's hard work at some Crown offi ces. In the case of Elliott Gerstein, it means a fraud case involving al- most $8 million won't go ahead. Despite criminal charges dating back to December 2007, his case was still before the court this month. A er calculating the Crown and institutional delay at more than three years, Superior Court Justice Michael Quigley stayed the charges on March 13. A big roadblock in the case was providing disclosure of roughly 60 boxes of documentary material belonging to one of the complain- ants, Grover Realty. Well before a preliminary inquiry was to begin in 2009, defence lawyer Devin Bains inquired about the boxes. Police and Crown lawyers off ered various explanations for the lack of dis- closure, which wasn't complete until March 2010. At various points, they said the materials weren't disclosure and weren't relevant to the case against Gerstein. At other times, they blamed resource limita- tions, including the fact there was apparently only one clerk who could copy and scan the paper in the boxes. In addition, they sug- gested the defence would have to pay for the copying, a position they eventually relented on. So Gerstein may be innocent, but we'll never know for sure with- out the now-abandoned trial. In the meantime, the case sheds light on n the surface, bill 83, the pro- tection of public participa- tion act, seems like an emi- nently sensible idea. Tabled by Attorney General John Gerretsen, it would tackle strategic litigation against public participation, which are lawsuits brought against crit- ics, whistleblowers, and activists by their targeted entities seeking to shut them up. "Removing frivolous claims from our court system frees up, of course, valuable public resources and allows our judges to focus their time and attention on more serious matters," Gerretsen said in Septem- ber as he spoke to the bill in the legislature. Despite the support of more than 140 groups, including the Ontario Bar Asso- ciation, bill 83 has languished at second reading since its introduction last June. So what's the problem? Not everyone is happy. e Ontario Civil Liberties As- sociation says it "fails to eliminate legal mechanisms that unjustly suppress free expression" and argues there's no test to determine if the action is a SLAPP. Others think the bill goes too far by encouraging overzealous groups to lie without risk. Al Spacek, mayor of Kapuskasing, Ont., and president of the Federation of North- ern Ontario Municipalities, Dave Canfi eld, president of the Northwestern Ontario Municipal Association, and the mayors of 10 towns and cities wrote to Premier Kath- leen Wynne last week to argue "this legislation will create a cli- mate in which radical activist groups (usually environmen- tal non-government organi- zations (ENGOs)) can make false claims about a range of industries on which our com- munities depend, while enjoy- ing protection from any legal opposition." Further, the bill threatens to destroy the resource-dependent northern economy and discourage investment in the region. "It is perhaps well-intentioned legisla- tion which has far-reaching negative rami- fi cations to us in the north," says Spacek. " e ENGOs have a strategy of saying something that's a headline getter even if it's not true and then let the company defend it." For example, he says, Greenpeace has consistently made false claims about Reso- lute Forest Products, a company investing $50 million in an Atikokan, Ont., mill. "Since apologizing, Greenpeace has continued with further fabrications," he says. "Groups like Greenpeace cannot be allowed to attack businesses and com- munities recklessly with impunity and now the Ontario government is poised to give these groups free reign to expand their ir- responsible activity." Part of the issue is the northern divide and the lack of understanding in Toronto of how fragile the northern econ- omy is and how dependent it is on resources. "It's also about the ENGOs and northern com- munities," says Spacek. "We are frustrated because we're pretty good stewards of the environ- ment. We only harvest one-quarter of one per cent of the boreal forest yet there's so much fear mongering by the ENGOs." e environmental groups rarely con- sider the socio-economic impact of their opposition and positions, says Spacek, not- ing they get funding from outside interests to the detriment of working families who depend on the jobs. " ey talk about big business, but turn it around, they are the big business to us," he says. " ey have the deep pock- ets. e ENGOs and Greenpeace never talk about working families." Bill 83 would amend the Courts of Justice Act and the Statutory Powers Pro- cedure Act to create a fast-tracked, 60-day process for the dismissal of a proceeding "if it is shown that the proceeding arises from an expression made by the person that relates to a matter of public interest." e bill would also change the defi ni- tion of qualifi ed privilege under the Libel and Slander Act. at section allows "fair and accurate reports" from legislative bodies, inquiries, the courts, and any offi cial proceeding. e protection includes documents fi led at these bodies with the bill expanding it to cover "oral or written communication on a matter of public interest between two or more per- sons who have a direct interest in the matter" regardless who witnesses or reports on it. It's all fi ne if everyone is playing with the facts. Free speech is always paramount until you scream fi re in the proverbial crowded theatre. " e law should not protect a lie," says Spacek. " ere should be no freedom to make false accusations. We support MPPs working to amend the bill to clearly diff erentiate between these activities and those that do genuinely con- tribute to public participation." He's right, of course. Bill 83 needs an edge that cuts both ways to penalize those who seek to hide lies behind its protections. LT Ian Harvey has been a journalist for 35 years writing about a diverse range of is- sues including legal and political aff airs. His e- mail address is ianharvey@rogers.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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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Cases such as these show the continuing gaps in ensuring justice for fraud victims. In addition, the government has touted its progress in reducing disclosure delays in recent years. In fact, that was a key aspect of the Justice on Target project aimed at reducing unnecessary court appearances and speeding up criminal matters. Obviously, the gov- ernment has more work to do on that score. — Glenn Kauth H O Queen's Park Ian Harvey

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