Law Times

Page 8 OctOber 5, 2015 • Law times www.lawtimesnews.com A litigator's wish list for the federal election Assisted suicide, relationship with judiciary among top concerns BY JUDY VAN RHIJN For Law Times nstead of the uphill grind of lobbying the current gov- ernment on legal reforms throughout its tenure, some lawyers believe a change of government offers the best op- portunity for the overthrow of unpopular legislation or at least a more receptive ear to talk to. Toronto human rights and constitutional lawyer Hugh Scher believes the federal elec- tion ref lects a set of clear alter- natives. "The choices available represent a significant set of op- tions for Canadians, including in the justice area," he says. While litigators focus on big- picture topics such as electoral reform, the role of the Senate, health care, and environmental protection, Scher notes the keen interest in the justice sphere as well. "The Conservatives' focus is on the impact of crime on vic- tims," he says. "The NDP is focused on pro- actively addressing harms, such as providing greater safety for victims. The Liberals want more equity . . . within the justice sys- tem. Each party brings its own priorities and agendas." Maia Bent, a partner at Ler- ners LLP in London, Ont., and president of the Ontario Trial Lawyers Association, has a list of post-election hopes. "First on my wish list is a public apology to the Supreme Court of Ca- nada and particularly Beverley McLachlin for publicly accusing her of professional misconduct. This is important not only as to her role in the Supreme Court but as deputy governor general and to correct any erosion in public confidence that may have resulted from it," she says. "This ties into ceasing the defence of unconstitutional legislation on which mil- lions of taxpayers' money has been spent. The government should either get better legal advice or listen to the advice they're getting regarding the constitutionality of the legis- lation they are proposing." Bent's next wish is in- creased diversity on the bench. "We are falling behind in the appointment of non-white and female judges. Peter MacKay says that no women applied, but there is no way to check that. Those applications are not tracked in any public way. There should be a tracking mechanism and the process should be more transparent." That last concern is at the top of the wish list of Anthony Moustacalis, president of the Criminal Lawyers' Association, and even ranks ahead of giv- ing discretion back to judges on mandatory minimum sen- tences. "I bet that surprises people, but if you don't have good judg- es, you've got nothing," he says. "We need an independent selection process for federal judges and a peer review pro- cess to eliminate incompetent judges. Judges can be removed for certain bad behaviour but not for incompetence. We want to maintain the highest judicial standards." He points out that his elec- tion dream of an independent process for judicial selection and removal costs no money but re- quires political will. When it comes to victims, Moustacalis calls for better funding of the justice system generally. "This includes prop- er federal funding of legal aid and direct funding of victims' compensation. We also need to simplify the Criminal Code and make it accessible and fair to the general population. Let's re- move the politics from criminal law. For example, the criminal- ization of marijuana and other drugs has to be changed to more of a social/medical problem and less of a legal problem." Moustacalis notes the NDP plans to have a commission of experts review potential reforms to criminal law while the Liber- als are promising to decriminal- ize marijuana. "The Conser- vatives have maintained their tough-on-crime agenda, which doesn't address proper fund- ing of victims' services, which you would think would fit with that." Scher's greatest concern is the government's response to the Su- preme Court of Canada decision in Carter v. Canada (Attorney General) that decriminalized phy- sician-assisted suicide. "I'm very concerned that there needs to be a strong and corrective response that provides a comprehensive, clear, and effective set of safe- guards that are equitable across the country — a level of national standards. They might include a requirement that someone be terminally ill in order to access assistance. There might be a re- quirement for judicial approval and oversight." He notes governments have convened panels to study the de- cision but that the federal panel is on hold pending the election. "It's very important that there be a strong federal response and presence," he says. Scher is also hoping for oversight requirements in rela- tion to new anti-terrorism laws. "We need to ensure judicial and parliamentary oversight, especially with warrants and acting on information relevant to anti-terrorism legislation. Any new powers need to be constrained by a multiparty committee overseeing intel- ligence and security." Scher notes some people are seeing the election as being about change. "The leaders appear committed to a regime of change. I am intrigued by [NDP Leader Tom] Mulcair's focus on im- proving and increasing shel- ters for victims of crime. I am encouraged that the truth and reconciliation recom- mendations will be revisited and implemented and that there will be a parliamentary committee on missing and killed aboriginal women to bring equity and redress to that terrible area." In Ottawa, it's not just the lawyers who have an interest in legal matters. A consortium of architectural institutes and soci- eties and private architects have launched a lawsuit that aims to stop the building of a memorial to victims of communism on the proposed site of the Federal Court. One of the plaintiffs, ar- chitect Barry Padolsky, says the lawsuit has brought an agree- ment to wait until after the elec- tion. "Representatives of the NDP and the Liberals have promised to reconsider the site if they are granted the power to do so. If the Conservative government is re-elected, I expect they will pursue trying to build the me- morial and we will reinvigorate the lawsuit." Like many, Moustacalis is looking forward to an interest- ing election. "With our system being first past the post rather than proportional representa- tion, one never knows where the chips will fall." LT 'The government should either get better legal advice or listen to the advice they're getting regarding the constitutionality of the legislation they are proposing,' says Maia Bent. FOCUS ON Litigation I LEGALFEEDS.CA A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY V O T E D BEST NEWS BLOG CLAWBIES 2014 Untitled-7 1 2015-09-16 4:03 PM

• Cover