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. .... Kimberlee Pascoe June 28, 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. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Toronto should follow Sarnia's lead on group homes I n response to a human-rights com- plaint about zoning bylaws dealing with group homes for people with disabilities, the City of Sarnia has agreed to make changes. Earlier this year, the southwestern Ontario city made the move after the Dream Team, an organization of peo- ple living with mental-health issues, launched its challenge of the bylaw with the Human Rights Tribunal of Ontario. In Toronto, meanwhile, the city is pushing ahead with a new comprehensive zoning bylaw to harmonize land-use rules across the six former municipalities that includes allegedly discriminatory provi- sions (see Law Times, page 12). The pro- posed bylaw would leave existing restric- tions on group homes in place, which in Ontario's biggest city range from a man- datory separation between such facilities of 245 metres in the former city of Toron- to to 800 metres in suburban Etobicoke. The rules deal with homes for "a specific number of residents who by reason of their emotional, mental, social or physical condition or legal status require a group living arrangement for their well-being," according to the Dream Team's applica- tion to the HRTO. Kathy Laird, the executive director of the Human Rights Legal Support Cen- tre that's representing the Dream Team in its case against the City of Toronto and two other municipalities, says those provisions are discriminatory since they restrict options available to people with disabilities at a time of a housing shortage. "From an equality standpoint, any re- striction that is arbitrary can be found to be discriminatory," she notes, adding the current rules force supportive housing providers to spend scarce funds on legal fees in order to get facilities built. In Toronto's case, the proposed city- wide zoning bylaw aims largely to har- monize the language, rather than the substance of, its land-use rules. So there's a plausible argument that the restrictions on group homes merely reflect that goal and that substantial changes may come later. At the same time, the city notes the Dream Team application may be premature for the HRTO to consider given that the municipal council has yet to pass the new rules. In the mean- time, concerned citizens will still have opportunities to comment on the bylaw. While that's all true, it's still a fact that the proposed changes did alter the sub- stantive rules in a few cases, particularly those related to employment areas. As a result, it seems reasonable that officials could make changes to group-home pro- visions that are out of step with Ontar- io's equality protections. As Laird notes, research shows no evidence of negative impacts from homes for people with dis- abilities on their neighbours. So while city residents might be concerned about the wide-ranging types of group homes that removing the separation rules would permit, that's hardly a justification for al- lowing the provisions to stand. Toronto, then, should follow Sarnia's lead. — Glenn Kauth I n my last column, I argued that the proposal to use judges to help solve the Parliament trumps solicitor-client privilege Second impasse between Parliament and the government over the Afghan detainee affair is a bad idea. In this column, I write about the collision between parliamentary privilege and solicitor-client privilege and how the latter should give way to the former. The potential clash between Parliament and the government over detainee documents ended as a result of Speaker Peter Mil- liken's sage ruling on April 27 and the subsequent agreement by all parties, except the NDP, this month. Under the terms of that agreement, an ad hoc committee would view the documents and determine which were relevant and necessary to hold the gov- ernment to account. At the same time, a panel of arbiters com- posed of "eminent jurists" would rule on the likely disputes. In ad- dition, the agreement can exempt records, through solicitor-client privilege, from disclosure. This is problematic. To begin, my colleague Michel Drapeau, a former colonel in the Canadian Forces and an expert in military law, has said the government makes excessive use of solicitor-client privilege to prevent the release of documents under access-to- information legislation. Even, if it is not overused, solicitor-client privilege should yield to parliamentary privi- lege, especially in this case. The Supreme Court of Canada has clearly and forcefully held that parliamentary privilege falls un- der constitutional protection. While it has elevated solicitor- client privilege to such status in a number of cases, on a doc- trinal level it simply hasn't had the same level of constitutional recognition as parliamentary privilege, nor should it. Parliamentary privilege is one of the cornerstones of our Con- stitution and predates Confed- eration. It's absolutely vital to the functioning of our system of parliamentary democracy in Canada. At its core, parliamen- tary privilege is about protecting the essential functions of Parlia- ment to allow it to fulfil its roles Opinion By Adam Dodek as a house of debate and the organ of government charged with holding the executive to account. Solicitor-client privi- lege is an evidentiary concept that has garnered constitutional status over the past two decades. It may be important for the ad- ministration of justice but it's not on par with parliamentary privilege. More problematic for govern- ments is that when you scratch the surface of the rationale for solicitor-client privilege, it doesn't make a lot of sense when applied to government. The justification for solici- tor-client privilege in Canada is to ensure full and frank com- munication between client and lawyer. The fear is that in the absence of the privilege, a client would only tell a law- yer half of the story. These www.lawtimesnews.com justifications work best in the context of the individual client and individual lawyer. They work especially well in the criminal defence context but they don't work well in an organizational setting and not well at all when it comes to government. Solicitor-client privilege is certainly useful to government, but whether it should have its full protections the way that in- dividuals do is another matter. Consider a few points. Govern- ment lawyers frequently obsess over the important question of who their client is. If we can't figure out conceptually who the client is, how can we attach a privilege to such communica- tions? This problem is exacerbated because quite often there's a disjuncture between the per- son who communicates infor- mation regarding legal advice to a government lawyer and the government official much higher up who actually con- trols the privilege and makes decisions as to waiver. Concep- tually, solicitor-client privilege simply does not make much sense in government. Lastly, if solicitor-client privilege has protection under the Charter of Rights and Free- doms, how can governments benefit from it? The last time I looked, individuals had rights under the Charter, and govern- ments had responsibility for protecting them. Governments don't have rights to equality un- der s. 15 or the rights to life, lib- erty, and security of the person under s. 7, nor can they enjoy Charter protection for solici- tor-client privilege under some combination of s. 7, 8 or 10(b). The American experience in fighting terrorism has revealed that legal advice played an im- portant role in policy develop- ment. On the Afghan detainee file, Parliament should have full access to privileged documents in order to discharge its consti- tutional responsibility to hold government to account. LT Adam Dodek is an associate professor at the University of Ot- tawa Faculty of Law. He can be reached at adodek@uottawa.ca.

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• Doing The Math
• Focus On Municipal & Planning Law