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Law Times • January 31, 2011 of twisting the law M Harper's 5 years The any of our most re- cent prime ministers have been lawyers: Pierre Trudeau, John Turner, Brian Mulroney, Kim Camp- bell, and Jean Chrétien. Chrétien, of course, once said, "Don't ask me that. I am not a lawyer." But he meant he wasn't a constitutional lawyer, although the quote lives on. Prime Minister Stephen Harper, meanwhile, isn't a law- yer. He has been a politician all of his adult life. Before that, he was a gofer at Imperial Oil Ltd. in Calgary. That doesn't mean Harper doesn't care about the law. He cares as much, if not more, than most lawyers. Over at the Supreme Court of Canada, his name is on a factum in the case of Harper v. Canada (Attorney General). That's impressive. The matter stems from when he tried to get the Supreme Court to overturn laws that limit how much money third parties can spend on promot- ing political issues at election time. He lost his case but never lost interest in the courts. Now that he has been in power for five years this week, Harper's run-ins with the courts are coming back to haunt him, including the time in Sault Ste. Marie, Ont., last September when he took a run at the Su- preme Court judges and their use of the Charter of Rights and Freedoms to decide cases. One of the first things he dumped after he came to power was the Court Challenges Pro- gram. It gave federal money to gays, women, and minorities so they could challenge federal laws in the courts often using that blasted Charter. Now who needs a govern- ment giving lawyers money to fight its own laws? Then there was that law he passed setting fixed dates for elections. But when the first one came up, he ignored the law. It wasn't the right time. Who needs laws that don't work in your favour? In addition, there was that kind governor general who closed down Parliament when the opposition was about to turf him out of office. Thank good- ness we have British prorogation laws like that to save our skins in the nick of time. And why not a second closure later on? We also have the Universal Declaration of Human Rights, which celebrated its 60th anni- versary a couple of years back. Neither Harper nor a single cabinet minister showed up for the celebration even though jurists, judges, and lawyers from the lowest to the highest courts in the land were there. Supreme Court Justice Rosa- lie Abella delivered a beautiful address to a packed audience, but there wasn't a single Harper official there to hear it. When someone gives a speech like that Hill By Richard Cleroux in a hall but there isn't a single Harper official around to hear it, is it still a speech? Under Harper's rules, it's al- ways important to avoid realities. So what if all of the statistics show that crime is going down in Can- ada year after year? Keep talking about rising crime and making streets safer. If you say it often enough, people will believe you. And if Statistics Canada says otherwise, close down the long-form census. Who needs it? In your heart, you know the real numbers. Back to the so-called war on crime, which has taken up more time in the House of Commons than any other sin- gle topic. If nobody can find the crime, tell them, as Pub- lic Safety Minister Vic Toews did, that it's unreported crime. That's why nobody can see it. Shortly after, Justice Minister Rob Nicholson began repeating the line about unreported crime. Then everybody on the Harper team became scared stiff of all of the unreported crime in our society. Soon, we'll find ourselves at the height of seeming unreported in- sanity through crime laws that die on the order paper in the Com- mons every year only to watch the government reintroduce them later with another round of fanfare. Harper is sort of like Bill Murray in Groundhog Day. Sometimes, of course, Harper slips up, as he did two weeks go with Peter Mansbridge when he said "there are times when cap- ital punishment is appropriate." When would that be? In cases of murder or treason? Maybe for wanting to break up Canada? Mansbridge didn't push Harper to explain. Why bring up the topic unless you're trying to get the debate going and unless some back- bench Conservative MP is going to introduce a private member's bill at the first opportunity? Of course, there's always the second option: backing away from requesting the return of Canadians condemned to death in other countries and instead let- ting them do your capital work. How about abortion? Harper told Mansbridge most Canadians don't want to ban abortion. But there's no way Harper is going to give funds to help women in developing countries deal with unwanted pregnancies. Who says there aren't all sorts of wonderful ways around existing laws? LT Richard Cleroux is a freelance reporter and columnist on Par- liament Hill. His e-mail address is richardcleroux@rogers.com. O COMMENT Proposed SLAPP law worth passing BY DAVID STERNS & DIANNE SAXE For Law Times ne of the best and worst features of our civil justice system is that any- one can sue anyone else for anything at any time. Eventually, the courts will throw out the bad lawsuits, and the winner may collect some of its costs from the other side. But that's cold comfort for people forced to de- fend frivolous lawsuits. It's even less comfort- ing when a powerful plaintiff more intent on inflicting costs on the defendant than righting an actual wrong launch- es the lawsuit. If the government accepts the recommen- dations of a panel created by Ontario's attor- ney general, there may soon be limited relief for people targeted with a specific type of lawsuit known as strategic litigation against public participation, also called SLAPPs. Typically, corporations or powerful indi- viduals bring SLAPPs against volunteer orga- nizations and ordinary citizens who speak out on public policy issues. A typical example is a defamation suit against an individual who speaks out against a proposed development at a municipal council or zoning hearing. Another example is a suit against an environ- mental group for opposing a coal-fired gener- ating plant or oilsands mine or lobbying for restrictions on the cosmetic use of pesticides. In each case, the plaintiff's goal is to use the court system to intimidate or punish citizens for speaking out against its interests. Rarely do these types of cases get to trial. The point is to force the defendant to fight a costly suit or issue a coerced retraction. Most of the time, they accomplish their objectives with- out ever seeing the inside of a courtroom. The panel, chaired by University of Toronto Faculty of Law dean Mayo Moran, found a need for legal protection against such suits. It recognized that the mere threat of a SLAPP can stifle public debate and lessen participation in the democratic process. The civil justice system is currently ill-equipped to identify and weed out SLAPPs quickly. Yes, there are ways to stop a frivolous law- suit in its tracks by bringing a request to a judge. But as most lawyers know, it's rare that a court will dismiss a case before hearing the full evidence. Our system puts a high pre- mium on the plaintiff's right to have its day in court. Sophisticated plaintiffs know this. They also know the financial and emotional costs Editorial Correspondence QUESTIONING CBA'S VALUE I'm glad that I've saved about $5,000 by declin- ing CBA membership over the past 10-12 years. These people seldom show that they have even a tiny clue about the service they are to provide. Comment on lawtimesnews.com by Anders Bru- un about "CCCA board sacking 'shabby.'" CCCA TRIO HAS SUPPORT As one of the 23 former CCCA board members, I feel a need to counter any inference that the po- sitions reflected in the joint statement issued by Cheryl Foy, Leanne Andree, and Kari Horn were unrepresentative of the broader board. The real- ity was precisely the opposite. The overwhelming www.lawtimesnews.com Speaker's Corner that prolonged litigation can have on a de- fendant. For a large corporation, the costs of litigation are the price of doing business. For individuals or community groups, those financial and emotional costs can be crush- ing. Without assurances of payment, it can even be difficult to find a lawyer willing to take up their defence. All of that will hope- fully change if the government enacts the proposed law. The main feature of the panel's proposal is a quick and efficient procedure to have a SLAPP dismissed at an early stage. The defen- dant would have the initial onus to show that the litigation is targeting its public participation, which includes in- volvement in the legislative or policy-making process. Once it proves this, the onus shifts. The plaintiff must then show the claim has substantial merit and the defendant doesn't have a valid defence. This is a reversal of the usual test for the dismissal of an action. If the plaintiff can't satisfy the test, the court will toss the suit and force it to pay the defendant's full costs. Anti-SLAPP laws exist in a number of U.S. jurisdictions, even though American citizens already have constitutional protec- tion for freedom of speech from lawsuits by individuals and corporations. In Canada, though, the Charter of Rights and Freedoms protects citizens only from government in- trusions on freedom of speech, not from law- suits by individuals or corporations. If the government passes the proposed legislation, Ontario will join Quebec as the only Canadian provinces to have an anti- SLAPP law. The panel's recommendations strike a deli- cate balance between preserving a plaintiff's access to the courts and protecting citizens from the crushing costs of illegitimate law- suits. The proposed law will deter anyone considering using the legal process to silence legitimate public discourse. It will offer targets of SLAPPs an effective way to nip the matter in the bud. It will also encourage lawyers to represent worthy defendants who might oth- erwise be unable to pay legal fees. For these reasons, it's a law worth passing. LT David Sterns is a litigation lawyer in Toronto and chairman of the Ontario Bar Association's civil litigation section. Dianne Saxe is an en- vironmental lawyer in Toronto. They were both involved in the OBA's submissions to the attorney general's task force on the proposed legislation. majority of the board, including myself, was deep- ly frustrated with the CBA's seeming unwilling- ness to fund the CCCA at a level commensurate with the actual needs of the in-house community which we had volunteered our time to serve. Comment on lawtimesnews.com by Todd Whar- ton about "CCCA board sacking 'shabby.'" WHAT'S THE REAL STORY? The so-called update does not, to my satisfaction as a member of the CBA, tell the real story as to why there was a split between the boards of the CBA and the CCCA. Also, it does not give figures that will allow CBA members to know what the disparity in numbers was between the demands of the CCCA and what was offered by the CBA. Also, how much of the CBA funding was going to pay executive salaries of the CCCA? Comment on lawtimesnews.com by Carl Jonsson about "CCCA board sacking 'shabby.'" LT PAGE 7