Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt .... Kimberlee Pascoe ©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 Waiting for specifics as Copenhagen nears I n a speech early this year, a partner with a major Bay Street law firm took a shot at Canada's actions on climate change, telling the audience at an environmental conference that the government had a sorry record on the file. Recalling that media representa- tives were in the room, the lawyer im- mediately asked them not to publish the comments. They were, of course, surprising for a prominent business lawyer. What's disturbing, however, is that they remain equally true today. It was just over a year ago that U.S. voters elected Barack Obama president after a campaign in which he promised real action on climate change. That development sent rip- ples in Canada, where a previously laggard government began speaking of progress on the environmental file given the change of heart down south. Leaders announced plans for a clean energy dialogue that would ultimately result in a harmonized approach to greenhouse-gas emissions. The federal government has repeat- edly talked of the importance of mov- ing in step with the United States, especially since our economies are so integrated. To be fair, Environment Minister Jim Prentice has released draft guidelines for a market for offset cred- its that companies can buy against their own emissions. But that's not enough. Certainly, it's far from the cap-and- trade system the government says it's going to unveil in order to realize its plan to cut greenhouse gases by 20 per cent by 2020 over 2006 levels. In Ontario, we've arguably made more progress. Notably, the province has passed the Green Energy Act, legislation that aims to stimulate the development of alternative electricity sources as part of its bid to close its coal-fired electricity plants. Ontario has also signed onto the Western Climate Initiative, a regional agreement with several other states and provinces to set up a cap-and-trade system. On that file, the governments have made some headway. In July, for example, the WCI released its man- datory reporting rules, requirements that outline which companies have to track and reveal their emissions. Those rules are supposed to come into play in 2010 in order to launch the cap- and-trade program two years later, a rather tight timeline but one the prov- ince says it intends to meet. But on the federal level, while Pren- tice frequently talks about harmoniza- tion with the United States whenever he speaks, he also maintains that that principle doesn't mean Canada will merely follow our southern neighbour. In fact, the U.S. Congress already has two climate-change bills making their way through the system. Here, we have yet to see concrete legislation im- plementing planned emissions cuts. In making his comments, the se- nior Bay Street lawyer emphasized that businesses actually want to know what the regulations will be so they can start planning for them. Predict- ability, he noted, is key. So, it's not unreasonable to expect action soon. With the global-warming confer- ence in Copenhagen just a few weeks away, let's hope Prentice has some- thing concrete, and that will lead to real progress, to say. — Glenn Kauth art of what's interesting about William Kaplan's legal histories is that he's both a writer and a lawyer. Two of his books read like P Revisiting Canadian rights crusader Ivan Rand That's But Landreville was only defence briefs for public figures facing allegations of wrongdo- ing. As a writer-lawyer, Kaplan is sometimes a writer-judge, too, issuing bold verdicts and obiter dicta. Subjects whom he finds wanting are not just wrong; they are "dupes" or "idiots." Kaplan's new book is Ca- nadian Maverick: The Life and Times of Ivan C. Rand. Rand, a former Supreme Court justice, was the nem- esis of Leo Landreville, the Ontario judge who fell under suspicion for taking cash gifts in awkward circumstances. In Bad Judgment, his book defending Landreville, Ka- plan made Rand the villain, thereby setting up a certain tension between biographer and subject, one might say. a blip in the long career of New Brunswick-born Rand, who was also a lawyer, poli- tician, and influential royal commissioner. Kaplan fol- lows Rand through his career, alternately admiring and ap- palled. But the strongest part of the book may be his exami- nation of Rand at the Supreme Court. Kaplan's Rand was at once a seething mass of nasty personal bigotries and also the judge who brought justiciable rights into the purview of Canada's top courts. Nineteenth century Canadi- ans had believed the true guar- antors of their rights were feisty, independent legislatures ready and able to hold governments to account. But today, legislatures like that are hard to find. Cana- dians have learned to look not to politics but to the law and the Charter of Rights and Freedoms History By Christopher Moore to protect their rights. Kaplan shows that Rand made a vital contribution to a new way of looking at rights. Je- hovah's Witnesses oppressed by a Catholic government looked to the courts for redress, as did Japanese-Canadians oppressed by a racist government. But what was there about rights in Canadian constitu- tional law that was tradition- ally concerned with little more than federal-provincial squab- bles? It was Rand, Kaplan ar- gues, who created Canadian jurisprudence dealing with rights in Saumur v. City of Quebec, Roncarelli v. Duplessis, and other now classic cases. www.lawtimesnews.com It started with the old po- litical sense of rights. The Cana- dian Constitution required par- liamentary democracy, Rand found, something that couldn't work without freedom of speech and assembly. What was new was Rand's demonstration that lawyers could argue for these rights through an "implied bill of rights" and that the courts could enforce them. The Charter era is far re- moved from Rand's rights de- cisions of the 1950s. The shift from rights politics to rights law has been enormous. But Kaplan reminds lawyers and readers of the importance of that initial step. Where did Rand, a big rail- way lawyer before he went to the top court, get his ideas? Ka- plan argues the decisive factor was his years at Harvard Law School. Other Canadians went to Harvard without becom- ing crusaders, but rights were November 16, 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. 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. a part of law studies there at a time when the Canadian estab- lishment hardly cared. There's a good deal more in Kaplan's biography: the "Rand formula" for union-shop labour organization, Rand's foibles as a law school dean, and a recap of the Landreville wrangle. Not afraid of being a judge of his own cause, Kaplan sug- gests his legal biography stands out against the "uncritical" and "largely celebratory" books he says everyone else writes. Read it and see. LT William Kaplan's Canadian Maverick: The Life and Times of Ivan C. Rand was published in October 2009 by the Univer- sity of Toronto Press and the Os- goode Society for Canadian Le- gal History. Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm. His web site is www.christophermoore.ca.

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