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Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. July 25, 2011 • law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto ON • M1T 3V4 Tel: 905-841-6481 • Fax: 647-288-5418 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto ON, M1T 3V4 • 905-841-6481 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd., Toronto ON, M1T 3V4. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@thomsonreuters.com or Tel: 905-841-6480 Ext. 2732 or Fax: 905-841-6786. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto ON, M1T 3V4 or call Karen Lorimer at 647-288-8018 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 905-841-6480 Ext. 4052 kimberlee.pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Dangerous versus long-term offenders acts on children. In 2005, police picked up Byers, who T had no criminal record at the time, in a wooded area near a school. Th ey found him with a backpack containing child pornography and a rape kit consisting of condoms, duct tape, and electrical wire. Th ey also turned up writings that detailed a plan to kidnap and rape a passing child. In addition, police found further writings that outlined Byers' plan to rape and murder the 11-year-old child of a friend. He was also convicted of attempted murder in another incident in which he was discovered breaking into the friend's house the week before his arrest. he public can be thankful po- lice caught Matthew Byers be- fore he could commit heinous Th e case is an example of good police work. Given the evidence, it's likely he was about to commit horrible acts on a young child. But should the justice sys- tem, as noted on page 1 of Law Times, have locked Byers up indefi nitely? His lawyer, Daniel Brodsky, says the recent court ruling by Justice Guy Di- Tomaso is an example of severely prosecut- ing someone for what he calls a thought crime. Certainly, Byers never made good on all of his plans and, as Brodsky points out, there was no physical harm to any of the intended victims. But that's probably only because police stopped him. At the same time, DiTomaso notes in his de- tailed and thoughtful ruling the potential injury Byers would have caused if he had been able to carry out his plans. "Th e torture Mr. Byers planned for his victims was slow and deliberate: designed to maximize their suff ering and, at the same time, designed to maximize his own sexual gratifi cation," DiTomaso wrote. In DiTomaso's view, Byers satisfi ed the requirements for a dangerous of- fender designation, including a failure to control his sexual impulses, brutality, and a pattern of persistent aggressive behaviour. In doing so, DiTomaso con- cluded that Byers suff ered from incur- able disorders. But he also relied signifi - cantly on Byers' written plans when he said that "no better or compelling evi- dence of Mr. Byers' brutal and sadistic behaviour exists than his own writings," as two expert witnesses had testifi ed. Th e case is disturbing, and while Di- Tomaso certainly did his job in consider- ing the threat to public safety, it's worth questioning whether a long-term off end- er designation would have been more appropriate. Th at alternative would have allowed authorities to supervise him for up to 10 years after serving his sentence. Given that Byers never went on to commit his planned acts, that would have been a reasonable option that arguably would have allowed authorities to con- tinue to protect the public. Of course, part of what prompted DiTomaso to rule as he did was the evidence that there's no cure or readily successful treatment for the sexual disorders Byers suff ers from. Th at's unfortunate, as someone like Byers ideally wouldn't have to go to jail indefi nitely. But at least we have good police offi cers who in this case were able to prevent a serious crime from happening. — Glenn Kauth ou can say this for feder- alism: it's been great for lawyers. It's been good for historians, too, actually. Recently, a lot of lawyers have Y Constitutional history hints at securities debate That's kept busy arguing over whether Canada should have a national securities regulator and whether the Constitution allows one. Securities aren't actually men- tioned in the Constitution itself. Th e courts in Alberta and Que- bec have already said the Consti- tution forbids federal regulation in that area. On the other side of the issue, the federal government argues a national securities regu- lator is perfectly constitutional. Th e Supreme Court's decision on the question is pending. Trade and commerce is plain- ly federal, as are banking, cur- rency, interest, bills of exchange, and promissory notes. Th ese are all economic matters that sound rather similar to securities regula- tion. On the other hand, prop- erty and civil rights are plainly a provincial power. If securities trading is just an aspect of con- tract law, then it's probably a sub- ject for provincial regulation. It all comes down to how you read the clauses of the Con- stitution Act as drafted in the 1860s. Lawyers have been kept busy trying to persuade judges on how to do that almost since its initial drafting. In the 1870s, when William Parsons decided his insurance company had denied a claim he felt entitled to, the matter looked like grounds for a routine bit of commercial litigation. But while it was an Ontario law that gave him grounds to sue, Citizens In- surance Co. believed insurance was a federal matter. So did the federal minister of fi nance. Th e constitutional point made its way through all of the courts, which made nice work for the insurance company's law fi rm, the predecessor of McCa- rthy Tétrault LLP. But in the end, the courts found for Parsons and the province. Similarly, lumber barons Peter McLaren and Boyd Caldwell had a simple commercial dispute over control of log-driving streams. Th at was until Queen's Park and Ottawa began to fi ght over which level of government had the constitutional authority to History By Christopher Moore regulate commerce on rivers and streams. Much litigation fl owed from that one. In Canada's early years, the provinces won most of those con- stitutional battles with Ottawa. Up until the 1930s, when the courts forbade vigorous federal eff orts against the Depression on the grounds that those powers rested with the provincial govern- ments, the provinces and their le- gal counsel had a great run. All of those decisions perma- nently confi rmed Canada's fed- eral nature. Not only were the provinces declared to be sover- eign in matters that were under their jurisdiction, they also got authority over many fi elds that might have been federal had the court cases gone diff erently. Th at legal trend began to reverse itself later in the 20th century. Federal authority grew www.lawtimesnews.com massively during and after the Second World War, and the Supreme Court became less sympathetic to the provinces' claims. Among historians, the trend seems to have been almost the reverse. Th ere was a long tradi- tion of historians who were ap- palled by the courts' ideas about provincial sovereignty and power. Th ese historians, led by Donald Creighton but supported by po- litical scientist Eugene Forsey and legal scholar Frank Scott, believed that the architect of the Canadian Confederation was Sir John A. Macdonald, a determined and persistent centralist. Lately, even as the courts have seemed more convinced by Otta- wa's claims, some historians have been giving new attention to the provinces. Look closely at the making of the Canadian Consti- tution, they suggest. Macdonald's vision was centralist, for sure, but his view was blunted, hemmed in, and defeated during the con- stitutional negotiations. Th e only constitution the fathers of Con- federation could accept was a truly federal one. Macdonald, of course, wasn't the sole author of the Constitution. Th ere's a historical suggestion that the framers concluded that anything that was essential to defending and preserving strong regional cultures within Canada had to be local: education, char- ity, language, and even distinct legal systems. But as for anything essential to building up a strong national economic unit, they tended to want to put those mat- ters in federal hands. Does securi- ties regulation sound more like a federal kind of thing? Once again, Supreme Court judges must decide whether a particular fi eld is more like trade and commerce or like property and civil rights. Of course, the de- cision will shape legal and fi nan- cial history. But the judges will be taking part in a big historical debate, too. It's likely to be con- tinued by both lawyers and histo- rians for quite a while yet. Christopher Moore's newest book is The British Columbia Court of Appeal: The First Hundred Years. His web site is christopher- moore.ca.