Law Times

Law Times • January 30, 2012 COMMENT T PAGE 7 he federal government's ob- stinate obsession in ramming through its omnibus crime bill is going to have a profound impact on Ontario's courts, the practice of law, and the execution of justice. It's going to cost cash-strapped On- tario more than $1 billion, money it can ill aff ord as it tries to dig out of the hole it has spent itself into. Moreover, could the issue provoke an intergovernmental standoff ? Th e timing of all this couldn't be Ian Harvey worse. You have to be somewhat sym- pathetic to Premier Dalton McGuinty, who's about to receive an austerity blueprint from economist Don Drummond. Drummond spent the last year fi nding ways to slash spending. Th e magic fi gure of $2 billion in cuts seems to be fl oating around Queen's Park. With the avowed goal of preserving funding for hospitals and schools, the Liberals aren't just between a rock and hard place. Th e water is rising around them to boot. By now, most of us are familiar with the politi- cally driven agenda behind the omnibus crime bill. Th ere are changes to some nine diff erent pieces of legislation wrapped into it. Among the most controversial aspects, it would take discretion out of the hands of judges and set mandatory minimum sentences for youth off enc- es, drugs, and other crimes. Th is means an 18-year-old kid who passes his friend a joint could go to jail for two years regard- less of his record, character, and potential. Ontario Community Safety and Correctional Services Minister Madeleine Meilleur fi gures the ripple eff ect is going to mean more bodies incar- cerated in provincial jails. Th ey currently hold about 8,500 inmates and are nearly at capacity. Th e estimate is that the omnibus bill could add 1,500 more inmates to those jails in less than four years and thereby push them to go over capacity with the predictable result of unrest, violence, and demands for the construction of a new 1,000-bed facility at a capital cost of $900 million. Th at's in addition to the extra staff , police, prosecutors, courts, judges, and support workers needed to process those additional charges. With the stakes raised, there'll be more trials, appeals, Queen's Park constitutional arguments, strain on the system, overcrowded dockets, and delays. Everyone associated with the justice system, including police and prosecutors, has been sound- ing warnings about the changes. We know justice isn't a one-size-fi ts-all issue and that taking discretion out of the hands of the judiciary threatens the system. In its presentation to Parliament on the bill, the Canadian Bar Asso- ciation predicted major implications. "Th e government's criminal justice initiatives, those recently passed into law and those proposed in this omnibus bill, will result in an expansion of the practice of imprisonment that is unprecedent- ed in Canadian history." More than that, the net eff ect will be to negate any savings Drummond can fi nd even in the un- likely event that the government has the mettle to act on all of his recommendations. Both McGuinty and Quebec Premier Jean Charest have said they don't support the bill, can't aff ord to pay it, and won't cover the extra costs it imposes. Prime Minister Stephen Harper has respond- ed by warning the provinces they must do their constitutional duty. So now what? Will there be a court battle or will this be a war of passive resistance? Th ere's little historically for us to go on in terms of a constitutional impasse, says University of Western Ontario political science professor Rob- ert Young. But he notes provincial pushback could manifest itself in other ways. "Th e Crowns could decline to prosecute in cases of fewer than seven marijuana plants," he says. "Or the accused could rely on the wisdom of juries and there are examples of juries refusing to convict. Of course, it would be expensive to have more jury trials." In the end, the savings Drummond fi nds may LT all be for nothing. Ian Harvey has been a journalist for 34 years writ- ing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@ rogers.com. A CLEAR SOLUTION TO THE PENSION GAP Last summer, I was appointed as the employer nominee to a panel that mediated/arbitrated the dispute between Air Canada and the Canadian Auto Workers. The dispute centred around the pension arrangement that was to be pro- vided for new hires and was mainly an issue of defined-benefit versus defined-contribution plans. I wrote an addendum to the arbitration award bemoaning the fact that federal pension standards legislation does not accommodate target-benefit plans as that would have been a more sophisticated solution to the issue of retirement-income risk allocation and sustainability that was at the heart of that dispute and is the central issue in most pension-related discussions today. A target-benefit solution was an undertaking Air Canada offered up if and when federal legislation was able to accommodate it. In my view, target-benefit plans offer a sensible way forward that would be in the best interests of employees and employers to explore for many of the reasons articulated in Harry Arthurs' report if that option could be made available. It would also pre- serve the considerable macroeconomic benefits associ- ated with defined-benefit plans. In connection with an online comment on your recent editorial (see "Where is innovative action on pensions?" Law Times, Jan. 16), I don't think pensioner management of investment funds is an answer. Study after study has shown that pension plan and fund success is highly cor- related with two key attributes: expert and interested man- agement. While plan members are interested, they rarely have the relevant expertise. The same could be said of employers who are the administrators of their own plans. I Access to justice must play role in articling solutions desperately need articling students but are unable to pay for them. At the same time, hundreds of law stu- dents are eager to do public interest work but can't find it. What's the answer to this conundrum? Last month, the Law Society of Upper Canada H released a consultation report on the future of arti- cling that raises important questions for both the profession and the public. The most serious concern is that there are far fewer articling placements than law school graduates. The report presents a variety of options for consideration. The consultation Mark Sandler process is underway, and I look forward to hearing people's perspectives. But it's interesting that one option canvassed in the report is the creation of new articling positions with a possible focus on access to justice. The idea is that it's possible to address both access to justice and barriers to entering the profession. The Law Foundation of Ontario already funds two types of articling posi- tions that promote access to justice: public interest articling fellowships at organizations such as Amnesty International and the Canadian Civil Liberties Association and the connecting articling fellowships at community legal clin- ics serving rural areas and linguistic minorities. These positions enable non-profit organizations and community clinics to extend their reach and advance their mandates in ways that wouldn't be pos- sible otherwise. In addition, they support the strong desire by a number of law students to pursue public interest law. The law foundation has funded between six and 17 positions annu- ally since 2005. However, as the law society report noted, the law foundation doesn't have the financial resources to create the 200 positions that might close the gap between articling applicants and available jobs. The direct cost of funding 200 positions would undoubtedly be prohibitive. But the success of the program and the ever-increasing needs tell us that access to justice must figure prominently in any solution to the articling crisis. For example, one of the options suggested as an alternative to articling is a practical legal training course that students would pay to take. Could working at a non-profit public interest organization be a component of the course? Similarly, if law schools are involved in delivering the course, as the LSUC report suggests is a possibility, could they incorporate work to advance access to justice? Most law schools already deliver experiential learning that connects their students to those in need in their communities, so this idea builds on something that already exists. I urge all law students, members of the profession, and faculty to read the LSUC report carefully and participate in the consultation. The articling crisis is real, but as is often the case, is also a situation that may provide an opportunity to create an innovative solution to the puzzle with benefits for us all. LT Toronto criminal lawyer Mark Sandler chairs the board of trustees at the Law Foundation of Ontario. Th e Personal Health Information Protection u Letters TO THE EDITOR LETTERS.indd 1 think many employers would embrace joint governance or an expert intermediary with fiduciary obligations to all stakeholders if they could limit their overall risk exposure by moving to a target-benefit environment. Jointly gov- erned or expert-governed target benefits are precisely how many of our most successful public service plans are struc- tured, including, essentially, the Canada Pension Plan. Governance by independent expert fiduciaries with some employer and member representation is likely the best solution and is one that is within reach if only our pol- iticians would act. Most plans outside of North America are governed this way, including the Dutch plans that are among the largest and most successful in the world. We don't need to reinvent the wheel on this; we just need minor tinkering to adjust what is already out there. This part of addressing pension coverage and sus- tainability is not rocket science. Randy Bauslaugh, McCarthy Tétrault LLP, Toronto PRIVACY COMMISSIONER HAS SAY OVER FEES I am writing in response to the article "Lawyer slams costs for medical records" that appeared in the Jan. 9, 2012, edition of Law Times. www.lawtimesnews.com Act, which I oversee, prohibits the health sector from charging a fee that exceeds the prescribed amount or the amount of reasonable cost recov- ery when disclosing personal health information. As the government has not prescribed the amount of fees that the health sector may charge, in 2010, my offi ce issued Order HO-009 aſt er an 1/25/12 11:22 AM individual made a complaint regarding the fee charged by her physician to access 34 pages of medical records. My offi ce found that the fee of $125 exceeded the amount of reasonable cost recovery. We reduced the fee to $33.50. In arriving at that decision, my offi ce reviewed a number of fee schemes and concluded that a proposed regulation under the act published in the Ontario Gazette in 2006 — a regulation that was not subsequently adopted — pro- vided the best framework for determining reasonable cost recovery. While Order HO-009 relates to the fees that may be charged to individuals accessing their own records of per- sonal health information, it provides a framework that may also be applied to the fees charged in disclosing per- sonal health information to other persons. Th e provisions in the act related to the fees that may be charged for access are similar to the fees that may be charged when disclosing personal health information. Both prohibit charging fees "that exceed the prescribed amount or the amount of rea- sonable cost recovery, if no amount is prescribed." A person who believes that the provisions in the act have been or are about to be contravened may fi le a com- plaint with my offi ce. Ann Cavoukian Information and privacy commissioner, Toronto ere's an interesting puzzle for you. There's a shortage of articling positions in Ontario. At the same time, organizations that pro- vide access to justice in a myriad of ways Access to Justice Crime bill slaps Ontario with costs

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