Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ......... Robert Todd 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 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 Ruling signals need to focus on the bigger picture A Quebec court made legal histo- ry last week in handing down a life sentence to a man convicted of drunk driving for the 19th time. Calling Roger Walsh "incorrigible," Justice Michel Mercier ruled the stiff jail term was the appropriate remedy for a man convicted of killing Anee Khudaverdian last year while he was impaired behind the wheel. The case has naturally attracted con- siderable attention, with media reports highlighting the fact that Walsh left the crash scene after hitting Khudaverd- ian, a resident of Les Cèdres west of Montreal who used a wheelchair. Of particular note was the Crown's request to deem Walsh a dangerous offender, a move that would have allowed authori- ties to supervise him for 10 years after his release. Had Mercier accepted that position, the case would have marked an especially noteworthy precedent and a signal the courts are taking the issue of impaired driving more seriously af- ter years of criticism that Canada is too lenient on such crimes. On its face, Walsh's case appears an obvious target for such a stringent pun- ishment. By repeatedly drinking and driving in addition to racking up a long list of other criminal convictions, Walsh has shown a flagrant disregard for the law. As well, by killing someone, he rep- resents a clear danger to the public. Nevertheless, Mercier rejected the dangerous offender application. In- stead, he ruled the crime of impaired driving causing death doesn't fall with- in the serious personal injury offence definition that is part of the criteria for a dangerous offender designation. It's a punishment, judges have said, more properly reserved for the most heinous criminals such as serial sex offenders. The ruling potentially lightens Walsh's burden. While the Crown's position would have seen him serve 20 years in addition to a decade of supervi- sion, the life sentence means he will be eligible for parole after seven years. But even then, he would remain under su- pervision by corrections authorities. It's tempting, of course, to accede to emotional arguments about Walsh's dangerous character and obviously dif- ficult prospects for rehabilitation. But in light of recent attempts in Canada to expand the reach of the dangerous offender provision, Mercier made the right decision. Judges and politicians should think carefully about taking a law most properly targeted at keeping people like Paul Bernardo behind bars indefinitely and applying it to chronic impaired drivers. Walsh is certainly a difficult case, and while the courts should deal with him harshly, he is not a criminal on the scale of Bernardo. That being said, his sentence is a sig- nal that at least some judges are treat- ing cases like Walsh's more harshly. At the very least, the case is a reminder of Canada's spotty record on dealing with drunk drivers. Critics, for example, have criticized our legal system for low con- viction rates in impaired-driving cases. In response, the government in re- cent years has changed the rules to clamp down on the problem. Still, rather than start deeming drunk driv- ers dangerous offenders, what's key is a broader consideration of the effec- tiveness of ours laws. Handing down stronger sentences has merit, but jailing new categories of offenders indefinitely would miss the bigger picture. — Glenn Kauth I s the Supreme Court of Canada too liberal or too conservative? Do the rich always win or has the court been captured by radicals? Many people have opinions about these matters. But Don- ald Songer's new book, The Transformation of the Supreme Court of Canada: An Empirical Examination, has data. And his data provide a lot of informa- tion on a lot of questions about the court. Do establishment claimants Statistics shed light on Supreme Court's record That's plying statistical techniques to the study of American courts. "But we wanted to compare cross-nationally," he tells me. So, when he joined a team of scholars to start a 10-country comparison of top courts, he got Canada. "And I got interested." The book that resulted is really lose that often at the Su- preme Court? Have women judges shifted the jurisprudence? Has the Charter really changed things? Is Justice Ian Binnie re- ally conservative on economic matters and liberal on rights matters? (Yes, yes, yes, and yes.) Songer stresses he's not a lawyer, not a Canadian, and not even very engaged with most court watchers' concerns. He's a political scientist in South Carolina who started out ap- rooted in weighty statistical analysis. I counted 91 tables, figures, pie charts, logistic re- gressions, and other data with- in the 250-page book. But even if the statistics can be tough to read, the conclu- sions are often plain. Case 1: back in 2000, Ted Morton and Rainer Knopff de- clared that the Supreme Court had been captured by a "court party" of lefty social activists. Post-Charter, the court was re- writing the Constitution with- out democratic restraint from Parliament, they argued. Let's look at the data on that, Songer countered. It's hard to get leave to appeal. The provinces are challenged more than the federal govern- ment. Challenges are more to police procedures than to stat- utes. Challenges to statutes af- fect procedure more than sub- stance. The court's decisions tally up as only mildly liberal. As well, challenges under s. 7 (due process) and 15 (equality) tend not to be winners. Not a whole lot of support for a Su- preme Court coup. Case 2 involves an older ar- gument, taken up in Canada by law professor Michael Man- del, that proposes that as po- litical issues fall to the judiciary rather than democratic forums, the advantage goes to those www.lawtimesnews.com History By Christopher Moore best equipped to navigate the thickets of the law. Politically engaged courts favour the rich, the institutions, and the lawyered-up. Let's count who fights and who wins, Songer wrote. There are still lots of individ- ual litigants. "Haves" do well but not that well. There has been no growth over time in their success rate, and govern- ments do about as well post- Charter as before. Business corporations do well against governments, but when indi- viduals go up against compa- nies, it's the people who win most. "Unorganized individual litigants tend to win more of- ten in the Supreme Court of Canada than in many of the other national high courts." How do women change a top court? Well, the Supreme Court has more women than other top courts, so there is data. And yes, gender makes a difference. Songer calculates September 14, 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@clb- media.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. that where there is disagree- ment on the court these days, gender is a more predictable fault line than region, religion, or ideological label. On the whole, this outsider's statistical charts seem to give the Supreme Court a pretty good rating. It's a political court but not very politicized. It tends to come up moderate by most of Songer's yardsticks. It avoids the extremes. It is neither predomi- nantly liberal nor predominant- ly conservative. The justices are "a highly diverse group" and "more representative than most high courts." Do the data show this out- side observer was reasonably im- pressed with the Supreme Court, I asked him? "I think that's a fair assessment," he says. LT 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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