Law Times

PAGE 4 NDP hoping Harper will co-operate on crime bills BY TOM KORSKI For Law Times OTTAWA — Parliament faces a wave of crime bills following a Conserva- tive pledge to introduce far-reaching omnibus legislation in the fi rst 100 days of the new mandate. "I fear that omnibus justice bill," said Nova Scotia Liberal James Cow- an, Opposition leader in the Senate. "Th ese things are too complex. When you bundle amendments to a dozen statutes, there is bound to be un- intended consequences." Prime Minister Stephen Harper has vowed to quickly summon Parliament into session to enact "national prior- ities" like 12 crime bills that lapsed with the election call on March 26. "Th ere is a danger when you do too much, too quickly, all at once," Cowan tells Law Times. "We must give careful consideration to these bills." Justice Minister Rob Nicholson was unavailable for comment following the Conservatives' re-election but he ear- lier told reporters there was "more to be done" on public safety. "Our gov- ernment has made tackling crime and standing up for victims and law-abid- ing Canadians a priority," he said. Crime bills awaiting newly elected MPs include one authorizing the gov- ernment to detain "irregular" foreign- ers who arrive in Canada as a group; amendments to the Controlled Drugs and Substances Act providing for man- datory sentences for possession of as few as six marijuana plants; and the citizen's arrest and self-defence act that would grant people broader powers to detain a suspect without a warrant. Th e latter is a measure inspired by the case of David Chen, a Toronto storekeeper acquitted on Oct. 29 of assault and forcible confi nement after he captured and tied up a suspected shoplifter. "A lot of this legislation is reactive to headlines," says Cowan. "Th is is straw- man politics. Th e approach of the government on these issues is to create fears in the minds of Canadians and then say, 'Don't worry, we'll fi x it.'" Cowan adds, "I hope the govern- ment doesn't take its victory at the polls as a whitewash of its behaviour in the last Parliament." Election results saw Conserva- tives poll 5.8 million votes nationwide and claim a comfortable majority in the House of Commons. Th e election followed a March 11 citation against the government for con- tempt by opposition MPs who charged the Conservatives had failed to detail all costs of enforcing new crime bills. NDP justice critic Joe Comartin accuses the government of "photo- op legislation" with its law-and-order campaign. "Prime Minister Stephen Harper justifi ed his pleading for a majority by promising to be more co- operative," Comartin says. Major crime legislation passed into law in the dying days of the last Par- liament included Bill S-6, the Serious Time for the Most Serious Crime Act that eliminated a "faint hope" provi- sion allowing fi rst-degree murderers to seek parole before completing a 25-year sentence; Bill C-22, which requires that Internet service providers notify police of evidence of child pornography under threat of graduated fi nes; Bill C-21, the Standing Up for Victims of White Col- lar Crime Act that sets a minimum two-year sentence in cases of fraud over $1 million; and Bill C-48, the Pro- tecting Canadians by Ending Sentence Discounts for Multiple Murders Act that allows judges to impose consecu- tive parole ineligibility periods. "I'm hoping — it may be a faint hope — that we will have co-operation," says Comartin, who notes Harper's re-elec- tion comes with the power to appoint four new Supreme Court of Canada justices due to retire by 2015. "We welcome co-operation on issues like the Supreme Court appointments," says Comartin. "If we see Harper stack- ing the court with rigid right-wing judges, we're going to fi ght." Th e four top court judges facing mandatory retirement at age 75 dur- ing this term are justices Ian Binnie of Ontario, Louis LeBel and Morris Fish of Quebec, and Marshall Rothstein of Manitoba. NEWS may 9, 2011 • Law Times Call for electoral reform Continued from page 1 an increasingly truncated articling pe- riod and a bar admission process he feels is "nothing more than a correspondence course." He also thinks senior practitio- ners could have a role to play. "I know several lawyers in smaller communities who are unable to get out of practice because they can't fi nd any- body prepared to take over their practice on any basis," he says. "Th ere's a real re- sponsibility for us to match and marry young graduates and young lawyers to these senior practitioners who are try- ing to wind down because it's the public who is going to suff er if we aren't able to replace them." At 18, the number of women bench- ers elected tied 2007's record for their highest representation at Convocation. Th ree of them claimed the top spots overall. University of Ottawa law profes- sor Constance Backhouse fi nished high- est with 5,534 votes. Th at means she got a vote from more than 35 per cent of all of those who cast ballots. Pawlitza fol- lowed closely behind with 5,421 votes. Toronto litigator Linda Rothstein came third with 5,393 votes. At the other end of the spectrum, Nicholas Pustina won re-election with just 731 votes as he remains a northwest regional bencher. In each of the eight re- gions, the candidate with the most votes from his or her own region becomes a re- gional bencher. With 65 per cent of the 160 voters in the northwest region opt- ing for Pustina, he was elected despite an overall total that placed him 46th out of a total of 53 candidates from outside Toronto. Th e law society also managed to arrest a declining trend in voter turnout. Th e rate has been on the plunge since 1987, decreasing at every election until this year. Th e 1987 peak was 56 per cent, but by 2007 that had fallen to 34.5 per cent. In 2011, 15,592 lawyers cast ballots for a turnout of 37 per cent. Former treasurer Derry Millar put the rise in part down to a switch to electronic voting away from the old paper ballots and materials. Just 100 lawyers requested paper packages after Convocation made arrangements to accommodate those who preferred the old system. "I think that electronic voting made it a very simple and easy process to participate," Millar says. "It's the way of the future and it worked very well." He also believes the governance reforms, which limited bencher terms and created a host of new vacancies this time around, helped get lawyers interested in the vote. "Of course, we'd always like to see more people vote, but hopefully as changes in the governance process work through, that will help with increasing voter participation. We also had an ex- cellent group of candidates from all over the province, so that helped." But Goldblatt believes the electoral process may need some reform itself. Vot- ing was open for most of April when the campaign was already almost two months old. "It's a longer campaign than the fed- eral and provincial elections combined," says Goldblatt, a founding partner at Sack Goldblatt Mitchell LLP. "For people at small fi rms and single practitioners, it's a very diffi cult exercise and it's possible we're missing some very good people sim- ply because they haven't got the time or the money to enter into the campaign." Sole practitioner Monica Goyal was one candidate who used social media and technology eff ectively to raise her profi le, but it wasn't enough to win. She came in 29th in Toronto with just un- der 2,000 votes but was pleased with the result. Th at was enough to pass Ontario Bar Association president Lee Akazaki, who amassed 1,400 votes. "Considering everything, I'm rela- tively unknown compared to a lot of the people who were running," Goyal says. "Many of them have very impressive le- gal resumés." Despite the number of new benchers, she worries that the fact that few younger lawyers got elected may leave some issues off the table for the next four years. "It's a diff erent legal landscape for lawyers starting out now than it is even for people even 10 years out. It's diffi cult to get an articling position, and the job landscape is very diff erent. "I think there was a good discussion about some of these issues, and they can't ignore it. Hopefully, we can keep some of the momentum going and maybe start having some of the dialogue out- side, if not at, Convocation." For a full list of benchers, see lsuc.on.ca/ bencher_election. Union 'caught in the crosshairs' of B.C. ruling Continued from page 1 and their workers. "Th e court is screaming at leg- islatures to introduce an eff ective dispute-resolution procedure," Adams says. "Th ey don't want to get involved in the details of labour relations, but if it keeps coming back, they'll keep chip- ping away at it. Th ey're saying, 'We don't want to have to force you to do this, but you have a constitutional responsibility to ensure Canadian workers have a right to bargain collectively.'" Steven Barrett, a partner at Sack Goldblatt Mitchell LLP who represented the Canadian Labour Congress as an interven- er in the case, says the Supreme Court will have to deal with the right to strike eventually because in practice, without the threat of walking off the job, employers can resist workers' proposals. "When you look to Europe or to international law, when a court believes people have the right to come together to ad- vance their interests and engage in bargaining, that must neces- sarily include a right to strike be- cause without the right to strike or binding arbitration, collec- tive bargaining is really nothing more than collective begging." Th e majority decision called the union's action "premature" because it launched the consti- tutional claim without attempt- ing to use a tribunal established under the act to resolve disputes. Th e case came after mushroom workers at Rol-Land Farms Ltd. in Kingsville, Ont., approached the union to represent them in 2002 but failed to get their em- ployer to recognize it even after certifi cation by the Ontario La- bour Relations Board in 2003. Th ey went straight to the On- tario Superior Court to claim a breach of their Charter rights. "Until the regime established by the [2002 act] is tested, it can- not be known whether it inap- propriately disadvantages farm workers," McLachlin and LeBel wrote in the decision. John Craig, a partner at Heenan Blaikie LLP who rep- resented another intervener, the Ontario Federation of Agricul- ture, says the decision provides certainties to agricultural em- ployers. He urges unions and employers make use of the tribu- nal. "It should be developing the jurisprudence, hearing cases, and issuing decisions," he says. But Paul Cavalluzzo, who represented the union, says his www.lawtimesnews.com client isn't optimistic the provin- cial government will enforce the employer's duty to consider rep- resentations in good faith. "It's problematic because not only did the Ontario government not argue this, but they argued the exact opposite, that no such duty was imposed by the Charter." As a result, he says the farm workers are now turning their at- tention to a political rather than a legal solution by lobbying the government to change the act. "Unfortunately, they were really caught in the crosshairs of the attacks to B.C. Health Services," says Cavalluzzo, who took sol- ace in the majority's successful defence of the case. Supreme Court justices Louise Charron and Marshall Rothstein called for the case to be overturned. Th ey labelled it "unworkable" and argued the court had overstepped the mark in its interpretation of s. 2(d). "It protects the freedom of work- ers to come together, to form a bargaining position, and to pres- ent a common and united front to their employers," Rothstein wrote. "It does not protect a right to collective bargaining nor does it impose duties on others, such as the duty to bargain in good faith on employers." Craig says he was surprised to see B.C. Health Services come under such heavy criticism. "I think in the course of their de- cision, they signifi cantly nar- rowed the doctrine of collective bargaining under s. 2(d) to save it in the face of the attack from the Rothstein and Charron de- cision, which really takes a ham- mer to Health Services."

• Cover
• LawPRO Warning
• Final Remarks
• Focus On E-Discovery