Law Times

Law Times • January 23, 2012 COMMENT PAGE 7 P rime Minister Stephen Harper is good for lawyers. He certainly keeps them busy and making good money. If it's not a defamation case, it's a criminal matter or a Supreme Court reference. We've never had so litigious a prime minister. God bless him. His lawyers have been fighting foreign gays and lesbians over marriage and divorce rights, a cabinet minister he fired, western grain farmers, and the Quebec government over the gun registry as well as the cost of new jail cells. It never ends. This past week, he had two good cases. First the government sent lawyer Sean Gaudet down to Toronto to tell a judge that two women married in Canada can't get a divorce here because they happen to live in Florida and England, where same-sex marriages aren't valid. Guess what? Their Canadian marriage licence isn't worth the paper it's on. The government's ridiculous logic went all around the world and Canadians looked like fools. Harper promised not to let it happen again by fixing the problem. In the meantime, there's more legal trouble after Environment Minister Peter Kent came back from South Africa in December and announced that Canada is pulling out of the Kyoto Accord. That makes Canada the first nation in the world to do so. If you can't meet your emission targets, you just take your ball glove and go home, the government appears to have concluded. It's perfectly legal under the accord. But then comes Daniel Turp, a former Bloc Québécois MP who teaches law at the University of Montreal and wants to show his students how to get things done. So he sues Harper for failing to consult Parliament before pulling out of Kyoto, a violation of the Kyoto Protocol Implementation Act. Turp is girding for a court battle. He gets The Hill The Elections Canada peo- ple balked. They called in the Mounties and the whole thing went to Federal Court. Through a settlement, the Richard Cleroux legal funding from ecologists and has hired noted Montreal constitutionalist Julius Grey. Watch for the outcome. Earlier this month, western grain farmers took a run at Harper in Federal Court for abol- ishing the monopoly of their beloved Canadian Wheat Board. That means more lawyers and a long, complicated, and expensive case. Harper loves a court fight, even though he usually loses. He lost against the postal union last year. That never bothered him a bit. Harper's Conservative party admit- ted guilt last year in an election scam going back to 2006. National Conservative head- quarters gave party riding associations a pile of money but took it back moments later supposedly to pay for advertising. In return, the ridings got a receipt good for a 60-per-cent refund from Elections Canada. party had to pay a $250,000 fine, but at least its key people, sena- tors Irving Gerstein and Doug Finley, avoided criminal charges. Who says Harper always loses? He was even losing back in 2000 when Harper, on a sab- batical with the National Citizens Coalition, went all the way to the Supreme Court to fight for the right of big corpora- tions to spend as much as they like at election time. The court disagreed, leaving third-party spending limits at $3,000 per riding. There would be no American-style political action committees for Canada as a result. But the wildest Harper court case is the rematch against his former cabinet minister, Helena Guergis. It's Harper's third defamation lawsuit in six years. Most politicians don't have that many in a lifetime. Harper dumped Guergis from cabi- net for reasons unknown. She's now suing for $3.5 million and hopes to prove that Harper was part of a conspiracy with his aides to smear her good name and destroy her political career after telling the RCMP she had done something criminal. There was a private detective who talked publicly about wild sex parties with drugs, hookers, and secret offshore bank accounts. The Mounties investigated but found nothing criminal. Harper couldn't bring himself to say he was sorry or take her back. Now he's facing the lawsuit. None of the allegations have been proven in court. Back in 2006, Harper faced another angry party member, Alan Riddell, who was shunted aside in the Ottawa South riding in favour of a star candidate. Riddell was told the party would pay his election expenses. Afterwards, Harper denied there had been any such arrangement. Riddell claimed Harper had called him a liar and sued. The parties settled in 2007. Sometimes it's Harper who sues. In fact, he became the first Canadian prime minister to sue an opposition party for defamation after claiming the Liberals had accused him of being dishonest and involved in criminal activity and covering up a bribe. The parties settled quietly in 2009 without any public apology. But at least the matter shut up those who had been calling Harper a criminal. Harper has spent millions in party and public money on lawyers representing him in case after case. There should be a special bar association award for his generosity to the profession. Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com BY SHANE O'HERLIHY For Law Times trivial public mischief offences that took place in downtown Vancouver on June 15, 2011. The provincial government clearly felt embarrassed by the I inundation of YouTube clips and Facebook pictures showing people having a raucous time jumping on cars, setting fires, and breaking the windows of banks with hockey sticks. In response, the province is now intending to use the very same sophomoric tactics used by the rioters themselves by sham- ing them with incessant video coverage of a rather trivial event. In this case, the event is a series of low-level criminal prosecutions levied against a group of young adults who are primarily guilty of nothing more than getting carried away with the moment. The government's decision to film their trials, then, is significant for Canada's justice system. The riot following Game 7 of the Stanley Cup finals was largely a bonfire-style multicultural celebration of the Vancouver Canucks' valiant playoff run that got out of con- trol mostly due to the easy availability of alcohol while attending corporate- and municipally sponsored events in the downtown core. Judges might take notice of the fact that the overwhelming majority of the participants who ran around committing misdeeds that day or otherwise watched the events from the sidelines while egging matters on were 20-something, good-natured young adults with no criminal records or gang affiliations. These youths were primarily hav- ing a grand old time and went about exuding their happiness and youthful angst with songs and chants while bashing vari- ous random items along their paths. So what's with the virtually unprecedented tactics by the B.C. establishment in seeking to spend tens of millions of dollars in order to sensationalize ongoing investigations and the alleged perpetrators' subsequent trials for public mischief and petty larceny? Why did the Vancouver police integrated riot investigation team spend hundreds of thou- sands of dollars enlisting young Vancouverites to rat out their friends by distributing pictures of alleged felons over the Internet and on the streets without once making specific reference to what those people are subject to being charged with in relation to the riots? The attorney general's office and investigative forces Prosecutors acting as demagogues in riot trials u SPEAKER'S CORNER t was chilling to hear that the criminal justice branch of the Ministry of the Attorney General of British Columbia intends to film the trials of more than 700 mainly first-time offenders for a rash of comparatively under its watch have been coming across as petty and vain by shaming these young souls while at the same time taking control of the media process with an iron grip. As a result, the attorney general's office and its supportive politicians are using grossly disproportionate means to turn these ongoing prosecutions of the rioters' alleged criminal conduct into potential show trials under the watchful and unflattering eye of the camera. Ironically, the police and the Crown prosecutors are perpetuating the very same vulgar and sensationalist culture that they have been purporting to condemn by arresting and prosecuting scores of people. The purpose of a criminal justice system in a just and rational society is to apply the law soberly and mete out justice proportionately. Unfortunately, the B.C. govern- ment's conduct is an example of the opposite taking place. Shortly after the riots, the masses began calling for heads to roll, and the Liberal government led by Premier Christy Clark took notice. During her throne speech on Oct. 3, 2011, she called for the prosecution of rioters of all shapes and hues to the fullest extent of the law. She also instructed all Crown prosecutors to request that every single riot- related trial be accessible for public consumption via televised broadcast and thereby sought to create a new Canadian court procedural custom through political fiat. In my estimation, every accused dragged to court by the authorities as a result of the Stanley Cup riot witch hunt should request a mistrial on account of the sensationalist and circus-like atmosphere created by the government in its bizarre zeal to collectively shame and bully a group of kids and young adults into feeling like they are the scourge of the earth. The Crown's ongoing request for media in-court broadcasting of the trials only adds fuel to the flames. As such, obtaining a fair trial in this environment appears to be close to impossible, whether filmed or not. The Supreme Court of Canada is our country's only court that has its proceedings regularly broadcasted for public con- sumption. The reasoning behind this is that the Supreme Court is very much an intellectual policy-making body where our country's top arbiters elucidate upon the foundations of our constitutional heritage and carefully craft our evolving notions of the common law through an appellate-level forum. However, filming the minutiae of criminal trials and other www.lawtimesnews.com matters of first instance represents a vulgarized pur- suit of the immutable truths of justice. A rationale offered by the B.C. government for this novel and precedent-setting approach to the filming of trials in this case centres on the purported despicable nature of the acts the rioters committed. However, that argu- ment from a precedential standpoint falls flat. After all, you can count on one hand the number of times in Canadian his- tory that there have been trials filmed live for the public's con- sumption that involved rapists, murderers or child molesters. Furthermore, it's almost exclusively a media outlet that makes a request to the court to film a trial, not one of the parties to the proceedings. It's troubling, then, that the government is telling us what constitutes the public interest and what does not and is thereby giving the B.C. attorney general's office's actions in this instance a distinctly Orwellian flavour, not to mention a prosecutorial edge in the ensuing proceedings. Crown prosecutors in British Columbia and throughout the country must decide whether each individual crimi- nal case is worth prosecuting in the public interest on its own specific merits. They are not subject to the whims of grandstanding politicians or the puritanical media, at least not in theory. Factors that militate against prosecution and allow prosecutors to use their discretion to withdraw charges include the minor nature of the offences, the magnitude of the harm created, the age of the offenders, and public confi- dence in the administration of justice. Prosecutors, therefore, have the discretion to withdraw charges just like the ones emanating from the Stanley Cup riot and still do have that option. It appears, however, that the attorney general's office has already made these decisions for them in advance. After all, why would Crown prosecutors use their discretion to withdraw the lion's share of the charges when the attorney general's office has already announced in advance that it's planning to organize a grand spectacle on television? Who are they to disappoint the salivating public's insatiable need to watch ordinary people's lives get ruined? There is no legitimate reason to make these alleged perpetrators of trivial offences the subject of the Crown's unprecedented wrath and planned disproportionate use of media broadcasting resources. As such, why should the government continue to spend millions of more dollars shaming these people? Haven't we shamed them enough? Shane O'Herlihy practises civil litigation and provincial offences law in Toronto. He can be reached at soherlihy@ rapleylaw.ca Harper is lawyers' best friend

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