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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... 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 . . . . . . . . . . . . . . . . . . . . . . .Kristi O'Connell Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 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 Things that make you go "hmmm" to do on a slow afternoon around the office. Give your young associates and students a pop quiz asking two ques- tions: Do you know who Rumpole is? Do you know who Paul Magder is . . . or at the very least what he did . . . or, that there was a time in the dark ages when we couldn't shop on Sunday around these parts? And prepare to lose brain cells. That is because we bet it will be just like what happened around the Law Times newsroom when the (not really) "old lady," ie Editrix, was spurred to in- quire of our esteemed legal writers if they knew the answers to the same questions. NONE of them had ever heard of H Rumpole of the Bailey, much less its creator John Mortimer. The blank looks remind- ed us of a deer's face just before it meets a windshield on a dark highway. To their credit, they did jump on their computers ere's something for you lawyers aged 40 and up — or perhaps the odd precocious 35-plus — and consult the Internet for the answer. As for Paul Magder, we were rewarded with one "vaguely" for our trouble. The rest, a resounding "nope." And a return to their trusty keyboards. Now, of course we're not suggesting they should have known, these fine, intelligent, talented young men aged 32 and below. But with the recent passing of Mortimer and justice Sydney Harris (the judge who decided the Paul Magder Furs case), it just made us ask the questions. And then, the surprising answers made us wonder how much what we of a certain age think should be obvious knowledge has gone by the way- side. Yes, ladies and gentlemen, some of us have jumped the shark. (A Happy Days reference that may go over the whipper- snappers' heads.) In Robert Todd's lovely story about Mortimer's death, he quotes dean Ian Holloway of the University of Western Ontario's Faculty of Law: "What Mor- timer did so well was cast the lawyer as human. Striving for a noble cause, as I believe we are as lawyers, but someone who's not without his foibles. He drank too much, smoked, had pet peeves, and biases, and so on." As Todd writes, Mor- timer cut to the core of the profession. Harris, meanwhile, at 91, was remem- bered as a defender of rights. He's the judge who in 1978 acquitted gay maga- zine Body Politic and three officers of Pink Triangle Press of charges of possession and distribution of obscene materials. In 1988 he sent NHLer Dino Ciccarelli to jail for an on-ice attack against Leaf Luke Richardson. And in the 1980s he dis- missed charges against Magder's fur shop for opening on Sundays when shopping on the Sabbath was not legal. Harris, it's been written, also was an ad- vocate for legislation to broaden civil liber- ties and human rights; pushed for Criminal Code changes against hate literature; op- posed capital punishment; and was against religious education in public schools. He was also a booster of civil rights south of the border and in 1963 met with Martin Luther King Jr. Harris died three days before President Barack Obama was inaugurated as the first black man to ascend to that height — the day after Martin Luther King Jr. Day. We wonder how many other fighters for freedom have fallen off the public con- sciousness. Sure shopping on Sunday isn't anywhere near the right to vote or having public medicine. But, given that we've just seen history unfolding in the U.S., it's a good time to think about the freedoms that didn't exist when you were born. These days we believe we're so edu- cated with this incredible access to infor- mation. But access isn't information; you have to have a frame of reference to seek it out. So, while the loss of people like Harris and Mortimer is sad, marking the passages makes the rest of us consider — at least for a few minutes in our busy days — those who did the things that have be- come the fabric of our lives. urprisingly, in 2008, most of the constitutional action occurred not inside the au- gust chambers of the Supreme Court of Canada but next door on Parliament Hill and down the street at Rideau Hall. The top constitutional story of 2008 was undoubtedly the "cri- sis." It had the potential to erupt into a constitutional crisis but the dramatic decision of Governor General Michaëlle Jean doused any constitutional fire, at least temporarily. Her decision to agree to the Prime Minister Stephen Harper's request to prorogue Par- liament until today, also led to the replacement of Stéphane Dion by Michael Ignatieff as leader of the Liberal party and of the official Opposition. It also likely deferred the dream of coalition govern- ment in Canada for the near fu- ture. S The crisis also had the effect of reminding lawyers and law profes- sors that there are many important aspects of the Constitution be- Last year's action at Rideau Hall Second yond the Charter of Rights and Freedoms. Since the enactment of the Charter, subjects like the Governor General, responsible government, confidence votes, and the workings of Parliament have largely been left to the po- litical scientists. The events of 2008 reminded us that these are important constitutional is- sues worthy of debate and analysis. Constitutional texts will be updat- ed to add "Harper-Jean (2008)" af- ter "King-Byng (1926)" and more law students might start learning about such things as prorogation, dissolution, and the reserve powers of the Governor General. Perhaps. 2008 may also be the year that "small-c" constitutional reform died on Parliament Hill. In Sep- tember, the prime minister uncer- emoniously brushed aside his own fixed election date legislation to seek an early dissolution of Parlia- ment for no compelling reason. In the context of another minor- ity government unlikely to survive a four-year term, the likelihood is Opinion By Adam Dodek that this legislation will again be further sidelined. The question for the future will be whether it is two strikes and out for the fixed election date legislation or wheth- er it will get a further chance to work sometime in the future. Next, the prime minister avoided and then abandoned the reforms to the Supreme Court appointment process that he had followed for Justice Rothstein in 2006 and that he instituted for the replacement of Justice Michel Bastarache last year. The prime minister bypassed the parliamen- tary committee in September prior to the election to nominate Justice Thomas Cromwell, promising at the time that the justice would ap- pear before a parliamentary com- www.lawtimesnews.com mittee before taking his seat on the high court. After the elec- tion and the prorogation of Par- liament in December, the prime minister had a change of heart and had Cromwell officially ap- pointed to the Supreme Court, to the obvious satisfaction of Chief Justice Beverley McLach- lin eager to get her court back up to its full complement. It remains to be seen whether the push to re- form the Supreme Court appoint- ments process will completely fall off the political radar. Finally, on this theme, the defi- nition of votes of confidence was significantly expanded in Parlia- ment in 2008. Stephen Harper's minority government spent the first half of the year trying to lose a vote of confidence and the last half of the year trying to avoid one. The Conservatives steamrolled over the Liberal non-opposition, leaving some to want to add an explana- tion mark and others a question mark after Peter Russell's well- timed 2008 book Two Cheers for January 26, 2009 • 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. 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At the Supreme Court, the McLachlin court completed its ninth year, marked by the sur- prise early retirement of Basta- rache in June, leaving his seat empty for the rest of the year. Last year, I described the 2007 term as a breakout year for the McLachlin court. In 2007, the court quietly but decisively abandoned several important and established precedents in constitutional cases and charted its own course: abandoning the common-law bar to recovery for ultra vires taxes (Kingstreet Invest- ments Ltd. v. New Brunswick); weakening the longstanding doctrine of interjurisdictional immunity (Canadian Western Bank v. Alberta); and repudiat- ing its earlier jurisprudence on the extraterritorial application of the Charter and severely re- stricting the circumstances in which the Charter will have ef- fect on foreign soil (R. v. Hape). See Past, page 7