Law Times

PAGE 6 COMMENT Law Times Group Publisher ..... Karen Lorimer Associate Publisher .... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editors ..... Helen Burnett Staff Writer ........Robert Todd Copy Editor ...........Matt LaForge CaseLaw Editor ..... Jennifer Wright Art Director .........Alicia Adamson Production Co-ordinator .. Mary Hatch Electronic Production Specialist ............Derek Welford Advertising Sales .. Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ........Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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 Section 43 does apply to teens He's not Cliff Huxtable. But this was not an assault either. And, while it's regrettable that the fa- ther in question had to endure being con- victed of a criminal offence arising from an incident with his fractious 15-year-old daughter, the greater good is that his case addresses how far a parent can go under the Criminal Code to discipline a teen. According to a story in the Globe and Mail, it started on a crisp November 2006 night in southeastern Ontario, when, de- spite being asked not to go out, the man's daughter slunk out of the family home to meet her boyfriend at a party. Said boyfriend was allegedly violent, involved with drugs and under a restrain- ing order to stay away from the daughter, said a recently released written judgment on the case. It was by far not the first time the rebellious teen flounced away to meet the boyfriend who at one point in letters counseled her to "kill the sluts when no- body is around," according to the judg- ment. And, drug paraphernalia had been found in her bedroom, it added. To say the family had a difficult history is putting it mildly. So, this time, upon finding she'd slipped out again, the father went looking for his troubled progeny. The man spied his daughter at a pay phone and when he told her to get in, she refused. He grabbed her by her shirt and put her in the truck. They went home, but once again she bolted — after kicking him in the groin — and went to the shin- dig. The parents did eventually get her home, after calling in police for help . . . And then, the dad was charged with four counts of assault and choking. His defence was that under s. 43 of the Criminal Code, a parent has the right to use reasonable force to correct their child's behaviour. But Ontario Court Justice Geoffrey Griffin convicted him of one assault charge, interpreting the 2004 Supreme Court decision Canadian Foun- dation for Children, Youth and the Law v. Canada to exclude the applicability of a s. 43 defence for assaults against teens. He concluded the father's actions didn't constitute correction or discipline and the daughter was not capable of benefiting from such correction. But, the conviction was overturned last month by Superior Court Justice Cheryl Robertson, who found that s. 43 does apply to teenagers. She said: "Forc- ing his child into a truck, no matter how delicately phrased, was a bad situation for both, but I do not find it crossed the line as a criminal act." The Supreme Court, she said, "did not hold, as the trial judge seems to have concluded, that any non-consensual application of force by a parent against a teenager is precluded in all circumstanc- es. To exclude all force against teenagers takes the comments of the court out of context. "The statute does not include an age restriction. Canadian Foundations did not prohibit the application of s. 43 in circumstances of restraint or control of an unruly teen . . . [Griffin] placed too narrow an interpretation on the mean- ing of correction and the child's ability to benefit from it. The purpose of the correction was to return her to a safe environment. In these extreme circum- stances, the appellant's use of force as corrective restraint was reasonable." Indeed, in certain circumstances, teens can benefit from correction. best. And, at least this time, father knew — Gretchen Drummie procedure. Were you nervous be- fore your cardioversion?" "Gwen," I replied, "anyone who tells you they weren't nervous before one is either lying or a fool. All medical operations and proce- dures have inherent risks. Never mind the statistics in your favour, nobody will be ecstatic if they're odd man out." I remembered the half-hour I spent during pre-admission talking with a doctor doing his fellowship in cardiology. Doc- tors doing fellowships will spend much more time answering your questions than a seasoned special- ist. I asked him at what stage in my irregular rhythm they would give my heart a jolt. He drew me an ECG-like tracing and pointed to a certain spot. "But why wouldn't you do it " here rather than there?" I asked, pointing elsewhere. "Because," he said, "at the spot you chose you would go into cardiac arrest." Mr. Gottlieb," said my cardi- ologist's secretary, "I would be afraid to have an operation or Is your practice catastrophe-proof? Bencher's "Oh boy," I replied, "who- ever presses the button on the cardioversion machine better choose the right moment." "Don't worry," he said, "the machine does all the work. After the button is pressed, the ma- chine itself monitors your heart and delivers the energy at the correct time." "I hope," I replied, "the ma- chine's program works better than the Norton Systemworks I just bought, or than XP Professional." Can you imagine having in one's obituary, "Died from a com- puter glitch?" I went robotically through the morning of the procedure and did not think about my law practice while I was on the gur- ney; my upper torso covered with sensors and large electrode pads on my back and chest. When an anaesthetic was administered by intravenous in the back of my right hand, I felt a harsh burning sensation, and when I looked at the clock on the wall I saw it was 8:55 a.m. Then an oxygen mask was pressed firmly on my face. Diary By Gary Lloyd Gottlieb The next thing I remember was returning to consciousness at 9:25. The preceding half-hour will forever be a complete and utter blank. I did think, however, about my law practice and life when I first learned I was not immortal and that a number of medical proce- dures loomed in the near future. I was ill prepared for an interrup- tion, temporary or permanent, in either my practice or my life. No lawyer is more vulnerable than a sole practitioner who man- ages to practice, albeit competent- ly and conscientiously, without any support staff. Planning for a catastrophe is not a priority item on your to-do list. It should be. When my medical issues arose, to put it charitably my affairs had not been adequately pre-arranged. www.lawtimesnews.com Nothing focuses you so clearly, however, as the possibility of im- pending doom. Think for a moment. If something happened to you to- morrow, would your executor and family know where every- thing is and what to do? What about your practice and your clients? Would you leave them in the lurch? A sole practice with no support staff is all too often a recipe for disaster when catastrophe strikes, whether in the guise of serious ill- ness or sudden death. In this event, there's a department of the law so- ciety whose efforts are invaluable but often unheralded. The work of Trustee Services involves almost exclusively sole practitioners. It is ironic that a sole practi- tioner, who has laboured hon- estly and well and managed to stay off the society's radar screen for many years, should be drawn, through lack of foresight, into its embrace when illness or death strikes. As for me, with weekly medical tests and appointments disrupt- APRIL 7, 2008 / 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 address- es. 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 Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • 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, 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. ing my life, I reduced even more my already restricted practice and began the preparations I should have made time for many years ago. That's why if you walk into my law chambers you will find numbered labels on the drawers of all my file cabinets and desks. I began in earnest a detailed memo- randum to be referred to in the event I am ever incapacitated or am where not even the law society can keep me in its clasp. Alas, my memorandum is still a work in progress. I am dumb- founded by how complex the life and affairs of a sole practitioner can be. On my web site, I trumpet the virtues of advance planning to prevent future problems and declare that it offers options that may not be available at a later date. That's advice many of us would do well to heed. LT Gary Lloyd Gottlieb, a Toronto lawyer, is a Law Society of Upper Canada bencher and a Toronto sole practitioner. His e-mail address is glgqc@interlog.com

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