Law Times

Law Times • November 17, 2014 Page 5 www.lawtimesnews.com NEWS Feds criticized as lawyers mark Magna Carta's 800th anniversary By eLizaBeTh Thompson For Law Times OTTAWA — Prime Minister Stephen Harper's government is f louting the rule of law by intro- ducing legislation that's constitu- tionally suspect, says former jus- tice minister Irwin Cotler. Speaking at a conference hosted by the University of Ot- tawa's public law group earlier this month to mark the 800th anniversary of the Magna Carta, Cotler said he made it a priority as justice minister to ensure that laws considered by Parliament complied with the Charter of Rights and Freedoms. The current government isn't doing that, he said. "The Conser- vative government has introduced a series of legislation which is con- stitutionally suspect," he said. "One of the most important of them is in the field of criminal justice — not unsurprising because a law-and- order agenda was germane to the Conservative government." Cotler gave the example of Bill C-10, the Conservative govern- ment's omnibus crime legislation tabled in June 2011. Cotler said the bill encompassed nine sepa- rate pieces of legislation, each of which deserved its own oversight and study by Parliament. On top of that, the government imposed time allocation in both the House of Commons and committee and summarily rejected Cotler's attempts at amendments, includ- ing ones it eventually had to in- troduce when the bill made it to the Senate. The result, said Cotler, is the bill is now under fire in the courts. "When you introduce consti- tutionally suspect legislation, the result of it is you invite constitu- tional challenges. And Bill C-10 is replete now with constitutional challenges — whether it be in re- gard to mandatory minimums, whether it be in regard to prison overcrowding, whether it be in regard to pre-trial . . . — a whole series because it's an omnibus bill, so there are a lot of constitution- ally suspect provisions. Cotler also called into question the way the Conservative govern- ment is handling the threat of ter- rorism. Protecting both national security and human rights isn't necessarily contradictory, he told the conference. Oversight is important, par- ticularly at the moment, he added. "Now we have a situation where the government is seek- ing more powers when I think we need more oversight. This is something that we are going to have to work out in the weeks ahead in this regard." Rob Walsh, former legal coun- sel to the House of Commons, said Canada has responsible government and the rule of law but suggested Conservative MPs aren't exercising their power to hold the government to account. "The problem we have today is that we don't have, in the ranks of the governing party, members who will hold the government to account outside caucus." Oversight and constraints on power are key elements of the rule of law, particularly in an unequal world, said Nathalie Des Rosiers, dean of the com- mon law section at the Univer- sity of Ottawa Faculty of Law. "Power corrupts, big power corrupts more, and therefore we should protect the exercise of power by imposing on it lots of restraints. You welcome re- straints, you cherish oversight. You want it, you want it badly." Ontario Court Justice David Paciocco said the rule of law dic- tates that judges have to examine not only legislation but also the Charter when handing out judg- ments and sentences. "We have a constitutional de- mocracy and the rule of law that binds judges entails not only the statutes that are passed by Parlia- ment but also the Charter which is the fundamental principle of law." However, he said there must also be room for judicial discretion. Legislators can only go so far and judges need leeway to adapt the law to individual cases. "Anybody who wants to take discretion from judges should step back and consider something that I frequently told my students when I was a teacher: It is that rules are dumb. They are designed in order to meet cases and we try to anticipate in advance what's going to happen and we pass them for a purpose but you're never going to design them so they don't apply in cases where they shouldn't." LT 7+(/$:)281'$7,212)217$5,2,63/($6('72$11281&( .,0%(5/<0855$<$67+(5(&,3,(17 2)7+(*87+5,($:$5' The Law Foundation of Ontario helps people to understand the law and use it to improve their lives. It provides grants for access to justice initiatives, awards fellowships, and supports the practice of public interest law and professional excellence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ntitled-1 1 2014-11-11 9:27 AM LEXPERT LEGAL EDUCATION SEMINARS FALL 2014 SCHEDULE 6TH ANNUAL ABORIGINAL LAW: CONSULTATION AND OTHER EMERGING ISSUES $BMHBSZȕ%FDFNCFS 5PSPOUPȕ%FDFNCFS 7TH ANNUAL ADVERTISING LAW: BEYOND THE CASL WALLS 5PSPOUPȕ%FDFNCFS CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS: WHEN IGNORANCE ISN'T BLISS 5PSPOUPȕ%FDFNCFS ANTI-BRIBERY AND CORRUPTION COMPLIANCE: COPING WITH THE ONSLAUGHT $BMHBSZȕ%FDFNCFS 5PSPOUPȕ%FDFNCFS INFORMATION PRIVACY AND DATA PROTECTION 5PSPOUPȕ/PWFNCFS 7BODPVWFSȕ%FDFNCFS $03103"5&(07&3/"/$&$03103"5& GOVERNANCE IN SPECIAL SITUATIONS 5PSPOUPȕ%FDFNCFS $BMHBSZȕ%FDFNCFS DEALING WITH THE LEASE: STATE OF THE UNION! TODAY'S TOP TEN LEASE ISSUES PLUS THE FRANCHISE TRIANGLE 5PSPOUPȕ/PWFNCFS REGISTER ONLINE www.lexpert.ca/cpdcentre WEBCAST OPTION AVAILABLE! For more information or to register, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca Untitled-3 1 2014-10-30 10:42 AM Errol Mendes, left, moderated a panel composed of Robert Walsh, Justice David Paciocco, Irwin Cotler, and Nathalie Des Rosiers. Photo: Elizabeth Thompson

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