Law Times

Law Times • November 7, 2011 We won't pay, provinces declare Q uebec and Ontario say they won't pay for Prime Min- ister Stephen Harper's new omnibus crime bill and the associ- ated prison costs. Legal experts fi gure the extra trials could run into the tens of millions of dollars and the added jail time into hundreds of millions of dollars in new costs. Premiers Jean Charest of Quebec and Dalton McGuinty of Ontario made it "very clear" last week that they have no intention of fi lling up their provincial jails at their own ex- pense just to please the federal leader. Charest sent his justice minister, Jean-Marc Fournier, to Ottawa to speak to a House of Commons com- mittee and tell them exactly how little he thought of the government's omnibus crime bill. Fournier criticized the legislation as being "illusory" and based on ide- ology. He said it was no solution to any of the country's crime problems. Particularly galling for Quebeck- ers, whose province has the best ju- venile crime prevention system in the world, are parts of the proposed laws that target young people and would jail them for longer periods of time. Fournier explained later to report- ers that putting young people in jail for lesser crimes and keeping them in contact with older and hardened criminals is a recipe for recidivism. Ironically, everything had been going great between the Charest and Harper governments until last week. Harper had come up with $2.2 billion for harmonization of the sales tax that was owing to Quebec for two decades. Harper also found $5 billion for a new bridge across the St. Lawrence River in the Montreal area. Still, it's true that Harper had also shut Quebec out of Canadian naval contracts and went on to bring in legislation to abolish the gun registry that's very popular in Quebec. Harper's decision to destroy all of the data in the registry was the fi nal straw. Quebec cops swear by the registry. Th ey use it about 1,000 times a day. Charest has ordered the Quebec provincial police force to protect ev- ery last bit of registry data they al- ready have and promised he'll go to the Supreme Court in a bid to save the rest. Harper's appointment of a uni- lingual anglophone judge to the Su- preme Court, a decision followed a week later by the announcement of a unilingual anglophone auditor gen- eral, made things worse. At least Harper didn't use his re- cently appointed director of com- munications to send the message. Th e person in that role, Angelo Per- sichilli, doesn't speak French. Harper's omnibus crime bill has come under severe criticism in Que- bec as people are beginning to fi nd out exactly how far it goes. One provision could mean that a teenager who steals a car has to do time. Th ere are no second chances in Harper's world. Many of Harper's mandatory sen- tences are for less than two years, so it's the provinces and not Harper's federal penitentiary system, that will The Hill By Richard Cleroux pay $67,580 a year to keep people in jail. Harper sees marijuana as a dan- gerous drug that's worthy of jail time. Most Quebeckers see it as a weed that harms no one except the user. Most of them tell pollsters they tried it in their youth or still use it. A lot of cops and some politicians do as well. One of Harper's new laws would make being caught with six or more marijuana plants in your mother's basement worthy of a charge of pos- session for the purpose of traffi ck- ing. At the same time, sharing it with friends is the same as selling it to strangers and therefore an off ence carrying a sentence of seven years. For Quebeckers, that's a strange way to deal with pot. Fournier didn't spare Harper at all. In Quebec, the emphasis is on crime prevention, not punishment, he said. Sending kids to jail makes them worse criminals, not better people. A Conservative MP, Brian Jean, replied that young people have to be put in jail "to scare them." Fournier treated the Conservative MPs as if they were all idiots. He told them that sooner or later, they'd have to realize the earth is round. "Th e solutions proposed in the C-10 legislation do not meet either the avowed objective of public secu- rity nor the real needs of penalizing delinquents or preventing crime and recidivism," Fournier said. For years, Quebec has done things diff erently to protect the public, said Fournier, who noted his province has chosen to focus on re-education, re- training, and reintegration of young people into society. Th e eff ort has paid off . According to Fournier, bill C-10 is like putting a bandage on an in- fected wound. In his view, Harper lacks studies, knowledge, and experi- ence to back up his legislation. Rather than imposing manda- tory jail sentences, Quebec prefers to leave it up to its Crown prosecutors to recommend appropriate penalties and to judges to decide. Fournier's comments came the same day McGuinty happened to be in town. Reporters rushed over to tell him what the Quebec politicians had been saying. McGuinty, rising to the occasion, said that if Harper is going to fi ll provincial jails with new in- mates, he's going to have to pay for it. In British Columbia, Premier Christy Clark is still trying to fi gure out where she stands on the issue. It's not easy for her. She has an election coming soon, and in British Colum- bia, the strangest issues have a habit of coming up and biting politicians when they least expect it. Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. T COMMENT Practical solutions to articling crisis BY DOUG FERGUSON For Law Times he lack of articling jobs for law graduates and major reforms in law school curriculum in the United States are creating a perfect storm that could cause major changes to Canadian legal education. At the annual conference of the As- sociation for Canadian Clinical Legal Education at Osgoode Hall Law School on Sept. 24, a pan- el told the crowd that articling in its present form is no longer sustainable. For example, Law Society of Upper Canada Bencher Tom Conway, chairman of the task force on articling, provided statistics showing that more than 12 per cent of law school graduates in 2011 couldn't fi nd an articling position. Th e cause of this high unemploy- ment rate is threefold. First, Ontario law schools have increased the number of law students. All of them, in fact , have boosted their numbers, particularly the University of Ottawa. Th e number of graduates will increase even further when the new law school at Lakehead University comes on stream. Second, more and more international law graduates are seeking accreditation in Canada. Th e University of Toronto has gone as far as creating a special pro- gram for international law graduates. Th ird, despite the best eff orts of the law society, law fi rms haven't increased the number of articling positions to keep up with the infl ux of new graduates. Th e law society's task force on ar- ticling has its work cut out for it as it explores its options. Th at's where eff orts at law school curriculum reform in the United States can have an impact in Canada. In 2007, the Carnegie Foundation for the Advancement of Teaching re- leased a study on legal education in North America. It found that while law schools do an admirable job of teaching legal theory, they're not paying enough attention to preparing students for the profession of law in ethics and practical skills. Th e Carnegie report recommended an integrated curriculum for law schools. Th e idea would involve teaching what it calls "the three apprenticeships" of cogni- tive learning, ethics, and practical skills throughout law school. In a recent speech to the Canadian Bar Association, Gov. Gen. David Johnston, a former law dean himself, endorsed the Carnegie report's ap- proach. U.S. law schools have taken up the Editorial Correspondence LET THEM TWEET Why no Twitter? Th e open court principle means that anyone who has the time or the interest could go. Many people do not have the time but the interest. Th ey want to read about it. It seems to me that the decision to ban Twitter is the same as banning publication. Th is may be the issue in the Kingston trial. www.lawtimesnews.com Speaker's Corner Carnegie report's recommendations with enthusiasm. For example, Har- vard University now off ers a problem- solving workshop during fi rst year. Th e Washington and Lee University School of Law has implemented perhaps the most radical reforms by making third year entirely experiential learning with strategies such as clinics, externships, and simulations. In Canada, the reaction to Carnegie has been silence. Only Osgoode has tak- en signifi cant steps towards imple- menting Carnegie through its an- nouncement that, starting in 2012, students must take an experiential learning course in order to graduate. I suggest that the articling conun- drum in Ontario has a potential solu- tion in the implementation of the Carn- egie report in our law schools. For example, the law society could agree that if law students took a certain number of credits in clinical or other courses that teach ethics or practical skills, they wouldn't need to article or could have a reduced articling period. Another option is for law schools to off er a capstone course like those off ered by the University of Minnesota, South- western Law School, and Duke Uni- versity School of Law. Th ese intensive courses integrate practical skills with doctrinal learning. A third option could be a simulation like the one run for Scottish law gradu- ates at the University of Glasgow. For a few months after graduation, law stu- dents take part in a virtual law fi rm in a fi ctitious town. Th ey go to an offi ce, open fi les, and carry out transactions or lawsuits on behalf of fi ctitious clients. All of these options involve imple- menting the Carnegie report in one form or another. I don't foresee the abolition of ar- ticling, at least not in the short term. But these options can be available as an alternative to the traditional articling period. Some students may even prefer them to articling. Th ere's no reason why law schools, with the participation of members of the private bar, can't teach the skills provided by articling. Doing so would create stronger links between the private bar and law schools. Th e law society and the law schools need to work together to fi nd a solution. Th e status quo is not an option. Doug Ferguson is a lawyer and director of the Community Legal Services Clinic at the University of Western Ontario Faculty of Law. My information is that there was initially a publication ban. Is the right of the accused diminished here? A bad report or a bad Twitter feed — one that would not explain that the case for the Crown is only the case for the Crown and that the defence will be able to answer later — how diff erent is that from a daily update in the local newspaper? Comment on lawtimesnews.com by Na- thalie Des Rosiers about "Court says no to live tweets at trial." PAGE 7

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