Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan 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 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 Bad poet, just didn't know it hole Poet's" bad rhyme, isn't a crime. The Court of Appeal has rewritten P the Mississauga senior's conviction of uttering a death threat, finding that while the prose is "amateurish, foolish, and offensive," it's not threatening. Not a great review, but what's a court to do? Well, they can acquit An- tonio Batista, 76, who last summer was given a conditional discharge subject to a 12-month term of probation. Justice Susan Lang, writing for the court, said Batista got his dander up at his city councillor Pat Saito, and au- thored the poem in "frustration over Ms. Saito's responses, and delayed responses, to his communications with her office." It appears the straw for Batista was getting a property tax bill for taxes from a year when he didn't own the property. "Unhappy" that he couldn't reach oetic licence and freedom of ex- pression are alive and well in On- tario. In other words, the "Pot- Saito personally for a variety of reasons stated by her office, and having read in a newspaper that she had jokingly said potholes could serve the purpose of slowing traffic, Batista got out his pen, so to speak. Apparently it was the reference to potholes that gave him the idea for his poetry, said Lang, noting Batista had immigrated from Portugal and has some difficulty with English. Here's part of the poem: "We are go- ing to dig a pothole about six feet long and three feet wide and five feet deep to hide her body and God will take care of her soul, but we cannot forgive her for doing nothing." (It looked like bad haiku to our eye.) Then, the feisty, retired labourer scur- ried about his neighborhood posting his doggerel on newspaper and mail boxes. Justice James Keaney, the trial judge, found Batista crossed the line from permissible political comment to prohibited criminal conduct. But the appeal court said no, Keaney's decision has to go. "All citizens are entitled to freedom of expression in the political forum, in- cluding those whose language skills are limited," said the court. It comes down to what's reasonable: "In light of the entire context, no reasonable person, fully informed, could interpret [Batista's] poem as a threat that could be taken seriously," said the court. It added, "The reasonable person would be informed about all the circum- stances, including that the 'poem' was written by an elderly retired man who was not proficient in the English lan- guage and had the benefit of only three years of education. He or she would also know that [Batista] was frustrated by his perception that his councillor did not respond promptly or satisfactorily to his concerns, but that the author had never before given any indication that he would act on his concerns other than in the political context." The court further stated that, "The reasonable person would know that [Batista] did not send this poem to the councillor, but posted it publicly for the stated purpose of public discourse in a way that the author could be easily identified." The judgment went on to further find that, "The informed, reasonable person would also be cognizant of the right of ordinary citizens to criticize and ridicule their elected representatives. . . . "In my view, in the light of the en- tire context, no reasonable person, fully informed, could interpret [Batista's] poem as a threat that could be taken seriously." That sounds reasonable. And, it's poetry to our freedom of speech-loving ears. — Gretchen Drummie C Sexual assault history leads new Osgoode Society titles That's onstance Backhouse's new book Carnal Crimes: Sexu- al Assault Law in Canada, 1900-1975, is a tough read. Not for the way it is written: it has a vigorous narrative, vivid illustrations, and lots of new and powerful legal and historical in- sights. But, it is about gang rape, date rape, child rape, and racial rape. It's about abuse of minors, abuse of the handicapped, and abuse of employees. And, it's al- ways about abuse of power, abuse of the law, and abuse by lawyers. With her trademark com- bination of intense historical research, detailed legal analysis, and controlled passion, Back- house explores nine Canadian sexual assault cases from the first 75 years of the 20th century, in- cluding a gang rape in Quebec City in 1917, date rape in Hali- fax in the 1920s, the rape of a handicapped girl in Saskatch- ewan during World War II, a same-sex kiss as assault in the Northwest Territories in 1955, and the 1967 rape and murder of a First Nations woman in B.C.'s Cariboo country. Though . . . perhaps we must say "alleged rape." These are mostly cases where the per- petrators got away scot-free. In most of her chapters, Back- house's analysis focuses on the double standards, neglect of duty, sexism, and prejudice that con- stituted the modus operandi of judges, lawyers, juries, and expert witnesses in sexual assault trials. It's for that reason that Back- house begins with the 1907 case of Mary Ann Burton of Lon- don and the acquittal of Joseph Gray, the accused rapist. The case itself was hardly precedent setting, but Backhouse honours Burton's small "triumph" — just that the trial transcript shows her vigorously rejecting the in- sults and innuendo of defence counsel Edmund Meredith and the complacency of the prosecu- tion. "Don't you bully me!" Bur- ton said to Meredith, and to the History By Christopher Moore world: "Isn't it disgusting, that I have to stand for this?" This is a historical study, but Backhouse does not suggest such things no longer exist. In the quest to eradicate sexual assault, she concludes, the legal process as it stands today "has failed abjectly." Carnal Crimes is the fourth of Constance Backhouse's books to be published by the Osgoode Society for Canadian Legal His- tory. The books have won her a remarkable array of honours, and they do honour to the society too. This year, the society is also publishing three other books. Greg Taylor, an Australian law professor at Monash Uni- versity, offers a global perspec- tive on the history of property www.lawtimesnews.com law in The Law of the Land. This study of the Torrens land registry system explores how a process developed by Rob- ert Torrens, colonial governor of South Australia in 1858, became the standard for set- tling land titles in much of the world, including most of Canada's provinces. The third book is also an in- ternational collaboration. The Grand Experiment is by Hamar Foster and Benjamin Berger, who teach law at the University of Victoria in B.C., and A.R. Buck of Macquarie University in Australia. It is a collection of essays on a hugely ambitious topic, an attempt to measure the impact of British law upon the colonial societies around the world where it was implanted. Old imperial histories would have seen this process as an un- mitigated blessing. The authors here promise a rather more nu- anced view. Finally, the society offers the December 8, 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 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 or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. tenth volume of the Essays in Canadian Legal History that it has published since its begin- nings in 1981. This one honours Peter Oliver, editor-in-chief of the Osgoode Society from its foundation until his death in 2006, and includes a range of pieces by his legal and historical colleagues, as well as a memoir of Oliver by Roy McMurtry. The Osgoode Society, the most successful legal history so- ciety in the world, thrives on the interaction of lawyers and schol- ars. A large crowd of both re- cently launched these new titles at Osgoode Hall. If you were a member, as you should be, you might have been there. Find the Osgoode Society at www.osgoode society.ca. LT Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm, published by Douglas & McIntyre. His web site is www. christophermoore.ca.

• Cover
• Stays On Bench
• Second Opinion
• Focus On ADR/Mediation