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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times 2010 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 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 Making headway on court delays conference in Niagara Falls, Ont. During a session on family law, La- A val, Que., lawyer Suzanne Pringle spoke about some of the unique features of practising in our neighbouring prov- ince, including social changes that have made Quebec the "world champion" of common law relationships. One aspect she touched on was le- gal changes aimed at speeding up fam- ily law cases and making the justice system more affordable and accessible for the public, an issue Ontarians are also familiar with as Attorney General Chris Bentley makes his push for more efficient proceedings here. Key to the changes in Quebec is the n interesting perspective on fam- ily law in Quebec came out of the recent Canadian Bar Association so-called proportionality rule, which mandates a balance between the costs and time associated with family law proceed- ings and the importance of the issue at hand. At the same time, family law liti- gants have one year from the initiation of a file to have the case ready for trial. "If it's not ready, it just doesn't exist anymore," said Pringle, who called the timeline a "constant worry" for lawyers. Other provinces, of course, have made efforts to speed up family law matters. British Columbia, for example, introduced a proportionality principle to its family courts earlier this summer. For its part, Ontario has attempted to make its civil courts more efficient through its revamped Rules of Civil Pro- cedure. It has also introduced Justice on Target, a program that aims to reduce the number of appearances in the prov- ince's criminal courts. It's certainly hard to argue with the goals of such programs. Almost every- one is tired of the delays that plague the courts, so any attempt to deal with them should be a good thing. Neverthe- less, there's always the danger of unin- tended consequences. In Quebec, for example, reality can get in the way of meeting that one-year deadline. With globalization, proceed- ings may slow down due to litigants liv- ing in separate places. At the same time, Pringle said lawyers dealing with child custody issues face moral issues around the imperative to adhere to expected timelines. In addition, family law is par- ticularly prone to having emotions get in the way. While one spouse may have had a plan to separate long before tak- ing action, the person left behind may be completely blindsided by the events and therefore may not be ready to go to court right away. The result is a challenge for lawyers and the legal system as a whole. For law- yers, the challenge may be that they need to find some way to help litigants with those emotional issues before they can make real progress on the legal file. For the justice system in general, what's key is making sure that, beyond setting goals and timelines, the resources — includ- ing legal aid — are available so that pro- ceedings can move smoothly. It's only by taking a broader perspective that we can make a real dent in the delays people find so frustrating. — Glenn Kauth to fashioning s. 24 Charter of Rights and Freedoms remedies in the criminal law context and yet are stingy in providing them in civil law matters? While the July decision of W the Supreme Court of Canada in Vancouver (City) v. Ward has received praise for setting a prec- edent by allowing damages for a violation of one's Charter rights, I question the penny-pinching nature of the remedy. The events stem from 2002, when former prime minister Jean Chrétien was in Vancouver for a public ceremony. Police had received a tip that there was go- ing to be an attempt to throw a pie at him. Alan Cameron Ward is a Vancouver lawyer who's well known to police for represent- ing high-profile clients, political protesters, and people with com- plaints against authorities. Ward was seen running in the vicinity of the ceremony, and his clothing sort of matched the information provided in the tip, although he Courts stingy on Charter remedies in civil cases Social hy is it that the courts can be so gen- erous when it comes didn't really fit the description of the suspect. Authorities arrested Ward for breach of the peace, appar- ently for loudly protesting what he saw as an illegal detention, and took him by paddy wagon to a police lockup. When he requested an opportunity to contact a lawyer, police told him: "We can do this the hard way or the easy way, you're not help- ing things." They later took him into another room and told him to remove his clothes for a strip search. He refused to remove his underwear, and police didn't force the issue. He then went to a cramped cell. Police released him about 4 1/2 hours after the ini- tial arrest without laying charges. They found no pie, and Ward was never close enough to Chrétien to have ever presented a threat. While the initial detention and transport to the lockup may have been justified based on the tip and Ward's loud pro- tests, his continued detention and strip search were a viola- tion of his rights. What was the point of a strip search as conduct meets Justice By Alan Shanoff opposed to a pat-down? Police hadn't charged him with any- thing. He wasn't going into the general prison population. With this factual background, I expected a generous award of damages. Yet the Supreme Court, in focusing solely on the strip search, concluded the trial judge's $5,000 award was appropriate. In doing so, the top court warned lower courts that "large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant's needs and may be inappropriate or unjust from the public perspective." While the door remains open for punitive damages, it's clear that courts will be reluctant to grant them. Also, courts shouldn't award damages if they "would interfere with good governance . . . unless the state www.lawtimesnews.com a minimum threshold of gravity." Contrast a miserly $5,000 award with criminal cases in which people receive the ul- timate in remedies with their charges dismissed or stayed due to Charter violations. Two examples make this abundant- ly clear. Last year, in R. v. Har- rison, the top court acquitted an accused found with 35 kilograms of cocaine in his vehicle. The Charter violation was minor. Police stopped the accused while driving on a public highway. There was no violence or threat of it and no loss of dignity. The detention was brief. While the officer didn't possess the neces- sary grounds to stop the vehicle, his suspicions were reasonably aroused. The violation paled in comparison to what Ward suf- fered. Yet he received a nominal sum of money while Bradley Harrison received the ultimate criminal law award — an acquit- tal — after the court deemed the evidence to be inadmissible. Worse is the R. v. Tran ruling of the Ontario Court of Appeal September 7, 2010 • Law timeS Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $135.00 + HST per year in Canada (HST 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 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jclancy@clbmedia.ca or Tel: 905-713-4392 • 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. in June. Quang Hoang Tran participated in multiple home invasions, which included acts of intimidation, cruelty, and de- grading and humiliating sexual assaults. These weren't ordinary crimes; they were exercises in gra- tuitous violence. During attempts to obtain a statement, Tran was shoved and punched, resulting in a broken jaw. Yes, this was an egregious violation of his rights, but the remedy afforded, a stay of proceedings, was unduly gener- ous as Tran got his freedom and avoided a criminal record. If an award of damages is to be appropriate and just, it ought to be an amount sufficient to drive home the importance of the Charter rights in issue. An award of nominal damages makes a mockery of those rights and demeans their functional purpose. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.