Law Times

Law Times • December 14, 2009 Harper challenged as silence of the jurists ends For the past four years, the prime minister and his government have dumped on them, calling them biased, accusing them of "judicial activism," and describing them as Liberal hacks. Harper's MPs W have also accused judges of being soft on crime, pandering to criminals at the expense of victims, and not knowing much about sentencing. Perhaps Harper thought things would just go on as before and that no one in the judicial system would ever dare to stand up to him. But something different happened ear- lier this month. A Superior Court judge in Sudbury, Ont., Justice John Keast, defied Conservative marching orders and chose rehabil- itation over punitive sentencing for a couple of boys who had set fire to a local union building. In doing so, he said long sentences brutalize society, don't prevent crime, and waste taxpayers' money. Where did the judge get the cour- age to stand up to Harper and his Americanization of our penal sys- tem? Any number of judges could have made the same stand in the last four years. But it was Keast who did it. Kirk Makin of the Globe and Mail reported that Keast's stand fol- lowed a speech denouncing manda- tory minimum sentencing by On- tario Court of Appeal Justice Marc Rosenberg at the Criminal Lawyers' Association conference in Toronto. Maybe his words were an inspira- tion for Keast. By coincidence, it came at a time when the Conservatives are trying to push anti-marijuana legislation through the Senate that would force judges to impose mandatory minimum sentences for growing as little as five plants. Bill C-15 has been called a horticulturalist's nightmare. There are no judges in the Senate, but there is outspoken former broadcaster George Baker, a bulldog Liberal senator who has rallied opposition against the bill. "We should not take away the discretion from the judge and put it in the hands of the Crown prosecutor," Baker thundered with all the determination of Monty Python's Black Knight. Harper was expecting easy sail- ing through the Senate. After all, timid Liberal MPs in the Com- mons had given in and voted for it. Harper must have wondered, who is this guy Baker, anyway? Why doesn't he take his orders from Mi- chael Ignatieff? Again, the political planets sometimes have a way of lining up — Rosenberg, Keast, and now Baker. Where does it end? Will the bar associations stand up, too? What if more people start challenging Harper over his crimi- nal law agenda? Strangely, the revolt came as Con- servatives had been in the process of taking apart one of the country's top diplomats, Richard Colvin, because atch out, Harper. Judges have started fighting Stephen back. The Hill By Richard Cleroux he dared to write reports detailing concerns over the torture of prison- ers turned over by Canadian soldiers to Afghan police, which put De- fence Minister Peter MacKay in the position of denying the allegations. Now Colvin, in- stead of being the Taliban dupe who got his informa- tion from "people who throw acid in the faces of kids," turns out to have been a human rights hero as dozens of former Canadian ambassadors suddenly stood up for him last week. Who would have thought? What if somebody had stood up when MP Maurice Vellacott went after Supreme Court Chief Justice Beverley McLachlin by saying she thought she was God and had said so herself? It wasn't true, but all Vellacott had to do was apologize politely in the Commons while McLachlin was left swinging in the wind having to defend herself alone and trying to prove she had never said that. When Harper abolished the Law Reform Commission and then-justice minister Vic Toews bragged he had saved taxpayers $4.2 million a year by scrapping legal advice the government didn't need, who spoke out? Who spoke out against mean-spiritedness when Harper's ministers refused to recognize the work of former Su- preme Court justice Louise Arbour as United Nations human rights commissioner? How about when every single Conservative cabinet minister took a pass on anniversary celebrations for the Charter of Rights and Free- doms? Not one Supreme Court judge dared to point out the cabi- net's absence. The challenges could have be- gun a long time ago, on June 12, 2000, when Harper railed against biased judicial activism. "Serious flaws exist in the Charter of Rights and Freedoms, and there is no meaningful review or accountabil- ity mechanisms for Supreme Court justices," he said. Is that so? What about the Ca- nadian Judicial Council? Was ev- erybody asleep? Harper's latest tirade came at a closed-door speech to Conservative supporters in Sault Ste. Marie, Ont., on Sept 2. He spoke against judicial independence and made it clear that if he ever obtains a majority, he will stack the bench with judges who are not "left-wing ideologues." "I ask you for a moment to imagine how different things would be if the Liberals were still in power. . . . Imagine how many left-wing ideologues they would be putting in the courts. . . ." Nobody in the judicial com- munity spoke out. Why not? Was it the silence of the jurists? All of that may have changed this month. Time will tell. LT Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. L COMMENT I'm so sorry! New law takes sting out of apologizing BY MARGARET TRUESDALE For Law Times awyers are a cautious bunch, some- thing that's often interpreted by clients to mean that they're cold or unfeeling. One of the flashpoints of this miscom- munication has traditionally been the reluc- tance of lawyers to permit clients to offer an apology to a party who may have been injured or suffered damages due to their actions. In fact, they have long been leery of allowing a client to express any kind of sympathy or remorse to a person who has made or may make a claim even though it might clearly be the humane thing to do. Unfortunately, this reticence on the part of lawyers may have un- intentionally increased the likelihood that the client would end up facing a lawsuit by the injured party. Academic literature has dem- onstrated that many people really just want recognition of wrongdoing and an apology. Many surveys have shown that a good pro- portion of parties initiating civil litigation would have refrained from doing so if they had received a proper acknowledgement of remorse by the alleged wrongdoer. Fortunately, Ontario lawyers may now be able to assist their clients to do the hu- mane thing without jeopardizing their legal position. Ontario has recently passed leg- islation that ensures that an apology can- not be considered an admission of fault or liability and is not admissible in any civil proceeding initiated by the other party. An apology is broadly defined to include the following: "an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating con- trition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability." Legislation relating to apologies is very new in Canada, but a number of provinces now have apology acts. British Columbia was the first province to pass such a law that came into force on May 18, 2006. Mani- toba's legislation, meanwhile, took effect in February 2008. Ontario's Apology Act has been in force since April 23, 2009, after which Newfoundland and Labrador and Nova Scotia brought in their own rules. Saskatchewan dealt with the legal implica- tions of an apology by providing a section in its Evidence Act that has the same effect as the apology acts in the other provinces. This section took effect on May 17, 2007. When Ontario introduced its legislation, Editorial Correspondence UNEQUAL JUSTICE Let me get this straight. A woman allegedly posing as a lawyer and practising witchcraft remains in custody, but former Liberal attor- ney general Michael Bryant remains out on the street and practising law? Comment posted on lawtimesnews.com by Pete E. about "Bail denied for accused witch." CROWN ADVANTAGE TYPICAL Been around for a long time. Done lots of civil discoveries. Rules have always favoured well-funded defendants. This legislative pro- posal now just enhances the advantage that will be enjoyed by the Crown, which not www.lawtimesnews.com Speaker's Corner one of the stated aims was to reduce law- suits by allowing communication of genu- ine compassion, sorrow or regret. But so far, there doesn't appear to be any Canadian case law dealing with any of these apology acts. However, their purpose is clear given their acknowledgement that parties were afraid to express an apology for fear someone would take it as an admission of liability or guilt. As noted by a B.C. government discus- sion paper on apology legislation, the ben- efits of introducing it included: avoiding litigation by supporting the early and cost- effective resolution of disputes; encourag- ing natural, open, and direct dialogue be- tween people after injuries; and allowing people to engage in the moral and humane act of apologizing af- ter they have injured someone else while taking responsibility for their actions. The discussion paper went on to recognize that there may be some negative effects of offering an apology, such as the effect on public confidence if a person had admitted liability in an apology but was later found not liable in a civil action. As well, such laws could encourage insincere apologies. Still, despite the possible nega- tives, the four provinces mentioned have moved forward with apology legislation. Lawyers advising people who wish to of- fer an apology will have to weigh the benefits to their clients and the person receiving it given the possibility that their actions might be perceived as an admission of weakness by the recipient. However, there are ways of structuring an apology to minimize the risk that it will needlessly raise the likelihood that an injured party will initiate an action. The legislation covers expressions of regret or commiseration. As a result, there are cer- tainly options for wording them while avoid- ing any admission of legal fault. The research shows that a proper apolo- gy can actually make legal action less likely. It also serves the social benefit of helping both the client and the recipient to deal with the injury itself in a humane fashion. It may be good for lawyers as well given its potential to make clients less likely to think of them as cold and unfeeling. LT Margaret Truesdale is a member of the litiga- tion group at Ottawa law firm Perley-Rob- ertson Hill & McDougall LLP. She is also a research lawyer having worked at the Law Society of Upper Canada for more than 10 years and then operating her own private le- gal research service. For more information, please visit perlaw.ca. only has unlimited public funds to fight some (usually financially disadvantaged) people but also the power of the office. It's so typical of our "system" of "justice." Comment posted on lawtimesnews.com by Ber- nard Eastman about last week's story titled "Liti- gators alarmed at new rules on Crown liability." CONFLICT NOT OBVIOUS When a corporation is being sued, and its employees are being called as witnesses in relation to what occurred during the course of their duties, do those employees retain their own counsel as a matter of course or do the corporation's lawyers provide them with advice? The alleged conflict in this case is not as obvious to me as it appears to others. Comment posted on lawtimesnews.com by John MacNeil about last week's story titled "Lawyers in Colvin affair battle over alleged conflict." LT PAGE 7

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