Law Times

Law Times • July 27, 2015 Page 7 www.lawtimesnews.com Bill C-51 challenge has silver linings for Conservative election prospects he Conservative government is heading back to court, where it usually loses, as it faces yet an- other constitutional challenge over one of its laws. Earlier this year, thousands of people marched in the streets of 14 Canadian cit- ies against a new law that limits the right to free speech and privacy amid growing fears of terrorism. Last week, two organizations launched a challenge of Bill C-51 under the Charter of Rights and Freedoms. The two groups, the Canadian Civil Liberties Association and Canadian Journalists for Free Ex- pression, have filed a case in the Ontario Superior Court challenging five sections of the new law. They say they're willing to take their case all the way to the Supreme Court of Canada if they have to. And well they might. One of the lawyers representing the two groups, Paul Cavalluzzo, says "terrorism is a problem" but he argues that doesn't mean the fight against terrorism should put the rights of ordinary people who aren't terror- ists at risk. "It is important to challenge a govern- ment that has overstepped its authority," says Cavalluzzo. The groups say in their court application that the law gives the Canadian Security Intelligence Service powers that are "too broad, with wording which is too vague, and oversteps the Charter of Rights." It's particularly harsh in its application of a national no-f ly list and on refugees seeking asylum in Canada. The journal- ists say the wording of the law is so vague that those who publish any statements or positions taken by terrorists could go to jail for five years. Prime Minister Stephen Harper has repeatedly told Parliament the new law is necessary should Canada face more ter- rorist attacks. NDP Leader Thomas Mul- cair replied that the government must fight terrorism but not at the expense of civil liberties. His party voted against a law that passed with the Liberals voting in favour of it along with the Conservatives because Liberal Leader Justin Trudeau liked some, but not all, parts of the legislation. A major electoral factor was at play. If the Liberals had voted against the legislation, it would have given the Con- servatives an opening during the general election campaign to say that Trudeau was on the side of terrorists, which is what the Conservatives are saying right now about Mulcair and his New Democrats. Mulcair promises that if elected to a majority government, he'll repeal the new law and CSIS and the police will have to continue working under the cur- rent anti-terrorism laws that seem to have served Canada so well. Trudeau promises, if elected to a ma- jority government, to repeal some, but not all, parts of the law. The Harper government says it will change nothing. The law, as it is, will be to fight terrorism, although in the House of Commons, the government was unable to cite a single case of terrorism in Canada that the legislation would have prevented had it been in place during the past three decades. Forcing the adoption of his anti-terror- ism law through Parliament just prior to an election wasn't a dumb move by Harper. First of all, there are a great many Cana- dians who don't care a fig about the Char- ter of Rights, individual freedoms, privacy, and those sorts of things. What they want are tough police and a Canadian spy service with more power to do what it likes. And most of the people who care about values of freedom and liberty aren't looking to Harper to stand up for them. Going to the courts to face a challenge to a new law isn't a big deal for the Harper govern- ment. It has often gone to court and, whether it wins or loses, it's still the taxpayers who pay the cost. There are plenty of govern- ment lawyers to go around. Conservative MP Costas Menegakis said last week: "Let's take it to court and get some kind of opinion on it." The New Demo- crats fired back that it would have been better and less costly for the government just to ask for the legal opinion of a gov- ernment lawyer instead of going to court. There won't be a judgment, of course, be- fore the election, something that suits the Conservatives just fine. The case will give the Conservatives an opening to accuse the NDP of being on the side of terrorists during the elec- tion campaign. It will also give the Conservative party a golden opportunity to keep addressing the issue of how well it's fighting terror- ism in comparison with what the Liberals and NDP would do. Making Bill C-51 a big election issue is a lot better for the Harper government than spending its time on the hustings defending former Conservative senator Mike Duffy, former parliamentary secretary Dean Del Mastro, and the remaining cases of corrup- tion and fraud in Conservative ranks. The NDP has already begun to run slimy, negative TV ads about alleged cor- ruption in Conservative ranks. For the governing party, it's much better to talk about whether CSIS spies aren't go- ing far enough in the fight against terrorists than spending their days defending Harper against the various corruption allegations. That's how politics and the courts serve each other in Ottawa these days. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. COMMENT SCC raises bar for admitting expert evidence By dr. miChael CorBeTT For Law Times n White Burgess Langille Inman v. Abbott and Haliburton Co., the Supreme Court of Canada raised the bar for the admissibility of expert wit- ness evidence in a number of ways. First, it established a threshold for qualifying expert witnesses based on their awareness and willingness to perform a duty to the court. The duty conveyed by the top court to provide "fair, objective and non-partisan" evidence mirrors part of the acknowledgment of the expert's duty in Form 53 of the Ontario Courts of Jus- tice Act. The top court also adopted a threshold for the reliability of novel or contested science as well as sci- ence used for a novel purpose. In addition, it determined that the concern about the independence and impartiality of an expert wit- ness "goes to admissibility and not simply to weight." An assessment of the independence of a proposed expert witness may include scrutiny of retaining counsel through questioning of the proposed expert. The Supreme Court described independence in terms of "the product of the expert's independent judgment, uninf luenced by who has retained him or her." An assessment of the impartiality of expert wit- nesses would expectedly focus on the methodology used by them. Accordingly, there would tend to be less scrutiny of retaining counsel. In light of the ruling, effective communication be- tween counsel and the retained expert witness on the new thresholds would assist the efficiency of propos- ing expert evidence at trial. Forensic toxicologists generally have more experience with counsel than other forensic scientists as a result of interactions in the context of criminal cases. In foren- sic science, which applies the laws of science to those of people, a frequent source of expert witness evidence involves alcohol and drugs. Forensic toxicology is the specialized science of the adverse effects of chemicals on biological subjects for legal applications. Forensic toxicologists assist in civil cases in looking at the role of alcohol, drugs, and other chemicals when it comes to issues dealing with personal injury, death, employ- ment, family, and regulatory matters. Retaining counsel's initial contact with a potential expert witness should first assess that no conf lict of interest exists between the expert and any parties to the litigation. The practice of counsel in first contacting a potential expert witness is diverse and evolving. The days of simply calling up an expert witness with a potential retainer are rapidly waning. Such contact has reduced transparency. Issues of independence and impartiality may emerge in qualifying the proposed expert witness at trial. The best practice for retaining an expert witness involves a written retainer that includes general infor- mation for the expert to be compliant with the duties to the court. When counsel provide sufficient mate- rials and timeliness for reporting and confirm avail- able funding, they help optimize the key elements of retaining an expert witness. An alternative practice involves a written retainer with instructions for verbal reporting and the po- tential for further instructions to prepare a writ- ten report suitable for the court. Experts require sufficient materials for a reliable verbal report. Further statements about supplying materials and receiving verbal reports may give rise to issues related to the independence and impartiality of the expert witness at trial. Materials supplied by retaining counsel to the re- tained expert witness may also be an area for cross- ex- amination. In the event of incomplete, redacted or illeg- ible documents for review, did the expert seek remedies or inform counsel of any limitations of the report? In White Burgess, the top court recognized a practi- cal consideration that the independence of the expert "must be applied to realities of adversary litigation." This qualitatively differs from the notion of "the inde- pendent product of the expert uninf luenced as to form or content by the exigencies of litigation" in National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd ., a case often cited when it comes to the duties and responsibilities of an expert witness in a civil case. An initial assessment of the potential of an expert witness to provide the court with fair, objective, and non-partisan evidence can originate from a critical review of the expert's report. A suitable report can vi- ably assist counsel in mediation or subsequent trial proceedings. Overall, White Burgess has raised the bar for coun- sel and their proposed expert witnesses to better assist the court. LT Dr. Michael Corbett is a forensic toxicologist with a master of law degree from Osgoode Hall Law School. u SPEAKER'S CORNER I APATHY NOT THE ONLY FACTOR IN LOW VOTER TURNOUT With respect to your June 29 story, "A closer look at law society voting patterns," I would respectfully point out a fact that might have caused some of the decline in the vote during the Law Society of Upper Canada bencher election. In the 2015 election, the vote was almost solely electronic. Only those voters without an e-mail address would receive any ballot other than an electronic one. Unfortunately, the ballot e-mail came from Computershare and not from the law society itself. Add to that the fact that it was clearly a bulk e-mail and it is likely that many copies went to junk or spam folders rather than the inbox. In some firms, lawyers are not permitted access to their junk or spam folders. Those lawyers might never have seen the ballot at all. Although I believe your reporting was fair, it is possible that there are factors other than apathy at play in the low voter turnout for the 2015 bencher election. Janis Criger, Bencher, central south u Letter to the editor The Hill Richard Cleroux T

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