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 ous connections," we noticed that crea- tures, especially of the canine persuasion, have been in the news lately. First, there was the infamous "pit bull W with lipstick" comment made by Republi- can vice presidential nominee Sarah Palin. That was followed by the subsequent ref- erence by Barack Obama to some of the porcine family wearing lipstick, which of course had nothing to do with a certain fe- male candidate (or dogs actually), but got predictably blown out of proportion. Not to be left out, in this province the pit bull took centre stage last week. But, in this instance, there was no lipstick. Instead, it was dog owner Catherine Cochrane who challenged the pit bull ban in the Ontario Court of Appeal; her lawyer, Clayton Ruby, hile trying to come up with our latest installment of "ran- dom musings that have tenu- September 22, 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 Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • 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. Going to the dogs argued the interdict should be neutered. The law went into effect in October 2005, and in March 2007, Superior Court Justice Thea Herman upheld it, but did strike down portions. Ruby appealed say- ing the ban is unconstitutional because the definition of a pit bull is too broad. Meanwhile, the Crown cross-appealed. The law forbids the owning, breeding, or selling of pit bulls. Existing dogs were exempt, but had to be spayed or neutered, and muzzled and leashed in public. "They aren't dangerous. In Canada, pit bulls are way down the list of danger- ous dogs. They make wonderful family pets . . . You can't identify how danger- ous a dog may be to the public in advance and legislate it," Ruby said in the Toronto Sun, adding too many breeds are being painted with the same brush. "It's people who create dangerous dogs," Ruby said in the Toronto Star. But Crown lawyer Mike Doi said pit bulls can "attack unprovoked even when they are previously known to be friendly." The key is whether the term "pit bull" is defined too generally; right now it names Staffordshire bull terriers, Ameri- can Staffordshire terriers, American pit bull terriers, and includes any other dog with traits "substantially similar" to them. Ruby added in the Star there are 23 pure bred dogs that look like these, not in- cluding "all the half-breeds and mutts." And all this was going on while, across the Atlantic, a dog called Scooby was tes- tifying in a murder trial in Paris. It's said to be the first time in France, and perhaps the world. Trust the French to one up us while we have pit bulls on trial. Scooby was apparently with his owner when she was found hanging from the rafters of her flat. Police thought it was suicide, but the family cried murder. So, during a preliminary hearing, Scooby took to the witness box to see how he re- acted to a suspect. He "barked furiously." Theoretically, that's collaring a killer? The goal was to see if there's suffi- cient evidence to launch a full murder inquiry, and the judge has yet to render a decision. But he did give Scooby a ver- bal pat on the head for his "exemplary behaviour and invaluable assistance." Hey, maybe we could get alleged pit bulls to testify in their own defence about their DNA, and weed out the look-alikes from the real things. At the end of the day, it's the few ir- responsible pit bull owners that should be banned. And not the dogs . . . with or without lipstick. — Gretchen Drummie fairs. Prime ministers John Die- fenbaker and Brian Mulroney exercised notable leadership in the international fight against apart- heid, and Canadian governmental and civil society groups provided advice, training, and support dur- ing South Africa's democratic tran- sition in the 1990s. Additionally, our Charter provided an impor- tant model for South Africa's Bill of Rights and Canadian constitu- tional jurisprudence has been in- fluential at the South African Con- stitutional Court. Thus, Canadians should be interested and concerned about growing attacks on the inde- pendence of the judiciary there. But first a few words about the C South African judiciary. South Af- rica's Constitution created a new 11-member Constitutional Court perched atop the apartheid-era court structure. The original judg- es of that court were appointed by president Nelson Mandela under the 1994 interim constitution. Since the enactment of South Af- rica's final constitution in 1996, candidates for the Constitutional Court are nominated by a judicial Independence of judiciary under threat in South Africa Second anadian jurists have long been interested in South African constitutional af- services commission, which conducts interviews and creates a short list from which the pres- ident must select. The widely acclaimed process has produced judges of the highest caliber and integrity, many of whom were active in the fight against apart- heid and during South Africa's democratic transition. This is part of the neces- sary context for understanding recent attacks on the Constitu- tional Court which involve legal proceedings against African Na- tional Congress President Jacob Zuma, who is slated to be the ANC's presidential candidate in the June 2009 national elections and the likely successor to South African President Thabo Mbeki. Zuma is a populist former dep- uty president who was acquitted on rape charges in a sensational trial in 2006. He was fired by Mbeki when he was indicted on bribery charges over which there have been numerous pre-trial wranglings, the most recent of which went to the Constitutional Court, which dismissed Zuma's challenge in a 10-1 decision the first week of August, sending the case back to the trial court. Opinion By Adam Dodek The Constitutional Court quickly came under attack, being labeled "unregenerate counter- revolutionaries" by the secretary general of the ANC, a frequent term of derision for those who challenge the ANC government. The day after the court's deci- sion, Chief Justice Pius Langa gave a public lecture in which he rightly stated, "Comment and criticism must be informed and thought- ful, not reactionary and alarmist, because that would tend to un- dermine the rule of law . . . Such criticism also has the potential to weaken confidence in the judiciary; and without public confidence, the judicial system loses its legitimacy and cannot operate effectively." Such remarks did little to halt the rush of populist rhetoric against the judiciary. The deputy secretary of South Africa's largest union proclaimed, "We cannot have a judicial system that acts in www.lawtimesnews.com the manner in which our courts have acted . . . No amount of threat will intimate [us] from talking about the conduct of the judiciary. We are not going to be told that judges are angels. They take decisions under the influence of liquor." ANC leaders claimed that the judiciary was being "mobilized" against Zuma. Along these lines, the South African communist party — still an influential force in South African politics — accused the judiciary of "being collusive to a perpetual assassination of human rights and justice in the country," and of becoming a "cabal . . . subtly colluding with one another." The most explosive comments came from the president of the influential ANC Youth League, who vowed that its members were prepared to "take up arms and kill for Zuma." The ANC and its allies — la- bour unions and military-garbed veterans' associations promised to bring Pietermaritzburg to a halt when Zuma appeared in court on Aug. 4. However, the promised 100,000 failed to materialize, as only 1,000 to 3,000 supporters appeared alongside much of the ANC leadership at Zuma's court appearance. On Sept. 12, the trial judge threw out the charges against Zuma, deflating the cur- rent conflict with the judiciary. However, there is a growing fear that loyalty to the ANC transcends loyalty to the constitution. Having recently celebrated his 90th birth- day, an increasingly frail Mandela can no longer be counted upon to sprinkle his "Madiba magic" on South African politics. His legacy will be the institutions entrusted to South Africa's current and future leaders, and how the constitutional ethos takes root. As Learned Hand reminded us so eloquently over half a century ago, "[L]iberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no con- stitution, no law, no court can ever do much to help it." Recent chal- lenges to the independence of the judiciary are likely only precursors to future tests that South Africa's constitutional fabric will face in the coming years. LT Adam Dodek teaches at the Fac- ulty of Law at the University of Ot- tawa. He can be reached at Adam. Dodek@uOttawa.ca.

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