Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 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. Law Times Inc. 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. Editorial Obiter Caution on G20 cannons courts. Last week, the Canadian Civil Lib- T erties Association, along with the Ca- nadian Labour Congress, said they're seeking a court injunction against the use of so-called sonic cannons dur- ing this week's event. The long-range acoustic devices, purchased by Toron- to police for the summit, can emit a sometimes-painful ear-piercing beam of sound at close range. As the can- nons haven't gone through the provin- cial regulatory process for approval as he G20 summit hasn't hap- pened yet, but already issues stemming from it have hit the a weapon, officials should hold off on using them, the CCLA maintains. When a similar issue arose in Vancouver last year ahead of the Olympic Games, police there said they would disable the device's alert function to reassure those concerned that they would use it only for com- munication purposes to deliver mes- sages to large crowds rather than as a weapon. Here in Toronto, officers say their goals are the same but nev- ertheless note they'll still have the option of using the tone-emitting feature in short bursts in order to let protesters know of an upcoming message, The Toronto Star reported last week. While there are obvious concerns around the possible scope of protests during the summit, that's the wrong move. The world will be watching events in both Toronto and Hunts- ville, Ont., closely next week, mean- ing one of the last things we need is to get a black eye for possibly hurt- ing protesters with an unapproved weapon. Of course, maintaining the balance between respecting free- dom of expression by allowing law- ful protest and protecting the public is a difficult task, but it's one police in this country have fulfilled before without sonic cannons. So let's stick to traditional meth- ods of good policing to prevent vio- lence by following the Vancouver ex- ample of disabling the alert function. Already, we've seen big international events held here, notably the 1997 APEC summit in British Columbia, turn into messy legal affairs afterwards due to aggressive police tactics. Given the controversy in this country over the introduction and increasing use of stun guns, it's wise in this case to de- fuse the issue ahead of the G20. — Glenn Kauth ruling on the relationship be- tween Parliament and the ex- ecutive, the parties finally have made a deal. The agreement consists of Judges should refuse to enter detainee morass A lmost six weeks after Commons Speaker Pe- ter Milliken's historic two key components. First, it calls for the creation of an ad hoc committee of MPs com- posed of one member from each party that would have access to all documents and determine which ones are rel- evant and necessary to hold the government to account. Second, such documents are to go before a panel of arbiters composed of three "eminent jurists." The panel will have great discretion in determining what information will be made public and in what form. The decisions of this panel are to be final and not subject to review. This may be a good solution to a political stalemate, but it is bad for the judiciary and ul- timately for Canadian democ- racy in the long term. The agreement reflects the unfortunate Canadian habit of enlisting judges to take on ex- ecutive or legislative tasks, such as in our national penchant for public inquiries, drafting judges for the Specific Claims Tribunal, and having the chief justice of the Supreme Court chair the advisory committee on the Order of Canada. In each of these cases, having a judge involved cloaks a non- judicial process in the shroud of judicial independence and im- partiality. In lay language, the judi- ciary is supposed to judge, not do contract work for the executive. In statutory lan- guage, s. 55 of the Judges Act mandates that judges "shall devote himself or herself exclu- sively" to their judicial duties. Of course, there's an escape clause. The next section allows judges to act as "commissioner, arbitrator, adjudicator, referee, conciliator or mediator on any commission or on any inquiry or other proceeding" if they are expressly authorized to do so by an act of Parliament or if they're appointed or author- ized by cabinet. Increasingly, members of the Canadian Judicial Council have become jittery about the circumstances under which Second Opinion By Adam Dodek federally appointed judges are taking on non-judicial tasks. In 1998, it promulgated a policy requiring the executive to consult with the chief judge of the court to which the re- quested judge belongs. While officials are largely adhering to this aspect of the policy, oth- ers are falling by the wayside, including those allowing the chief judge to consider the ap- propriateness of using a judge for the inquiry at hand. There's no public record of any chief judge telling the executive that the matter in question isn't one warranting the use of a judge from the court. Still, there likely have been such cases. The proposed use of "eminent jurists" is one in- stance in which any chief judge approached by the government should stand firm and not per- mit judges to become entan- gled in this morass. www.lawtimesnews.com There are three reasons why it's not appropriate for members of the judiciary to be involved in this agreement. First, the mandate involves the censoring of government documents. Fortunately, this isn't a skill set Canadian judges have much experience with. In the Arar inquiry, Jus- tice Dennis O'Connor clashed with the federal government over confidentiality related to national security and criticized its penchant for overusing this ground for exclusion. Here, we're going down a different and dangerous path of asking judges to take out their black markers and exclude or strike out portions of government documents. This doesn't bode well for public confidence in the judiciary. Second, while the agreement provides that the panel's deci- sion would be final, under Ca- nadian administrative law there is no such thing. There is always judicial review, and the existence of such a clause doesn't bar it. It will be an uncomfortable posi- tion for a single judge, likely of the Federal Court, to review the rulings of three "eminent .... Kimberlee Pascoe June 21, 2010 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. 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Please recycle this newspaper. jurists," possibly retired Su- preme Court justices. Finally, this is an obviously politicized dispute that could tarnish the judiciary's percep- tion as an impartial institution. The three "eminent jurists" are in a no-win situation and will be exposing themselves to po- litical attacks by those unhap- py with their rulings. Recent attacks on Justice Bruce Cohen in the B.C. salmon inquiry are only a hint of things to come. Simply put, the judiciary shouldn't bail out the executive and Parliament on this one. In Milliken's own words, there's "an unbroken record of some 140 years of collaboration and accommodation in cases of this kind" between the House and government. They should con- tinue in this spirit and need not and shouldn't bring the judicia- ry into this morass. At the same time, the judiciary shouldn't al- low itself to become a party to this important but highly po- liticized dispute. LT Adam Dodek is an associate professor at the University of Ot- tawa's faculty of law. He can be reached at adodek@uottawa.ca.

• Cover
• Charter Rights
• Dodging A Bullet
• Focus On Family Law