The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/60399
Law TiMes • May 25, 2009 COMMENT Tory leadership race: let the games begin ormer prime minister Kim Camp- bell was soundly chastised in 1993 when she declared "an election is no time to be talking about serious issues." Whether she actually said that is still F open to some debate and it is generally ac- knowledged she meant that engaging in a wholesale review and argument over the na- tion's entire social poli- cies during the course of a six-week election campaign wouldn't be fruitful, more so given the media's tendency to trivialize, sensation- alize, and compress is- sues into sound bites. Well, she was right about that but it didn't help her at the polls and she is now a footnote in history. I thought about Campbell this week as the four candidates vying for the leader- ship of the Ontario Progressive Conserva- tive party jostled for position around the deadline for signing up members. This race isn't really about policies and debate of complex issues. This is about winning the party faithful to the cause with narrow hot-button issues and more pointedly bringing in new members faithful to the candidate. Those members vote Sunday, June 21, and again Thurs- day, June 25, across the province with the whole thing culminating June 26 and 27 at the Hilton Suites up at Warden Ave. and Hwy. 7 in Markham. The winner will be vested with the hopes and dreams of the Tories to take on Premier Dalton McGuinty and his Lib- erals in the next election and doubtlessly their silent prayers that whoever is anoint- ed doesn't pull a John Tory and scuttle the ship with an ill-advised policy declaration such as full funding for faith schools. Or, à la Kim, make it seem the elec- torate is unable to grasp complex issues (when in fact it's the media which is headline fixated.) They are an interesting bunch: Frank Klees (Newmarket-Aurora), 58, a staunch conservative first elected in 1995; Christine Elliott, 53, (Whitby-Oshawa) a lawyer first elected in a 2006 by-election called when her husband now Finance Minister Jim Flaherty vacated to become a cabinet min- ister in the Stephen Harper government; Tim Hudak, (Niagara West-Glanbrook), an economist and career politician first elected in 1995 at 27 years old; and Randy Hillier, 50, (Lanark-Frontenac-Lennox and Addington) a contrarian former proj- ect manager and electrician who is a rookie MPP but veteran rabble-rouser. Donning my media hat for a second and reducing them to headlines, I'd char- acterize Klees as the long-serving, elder statesman; Hudak as the brash young gun; Elliott as the politically connected networker; and Hillier as the gadfly. Of course, they are all much more than that. For one, they are all conservatives but some are more conservative than others. Hudak and Klees, for example, are right of right, Elliott is slightly more a central rightist, and Hillier, well, he's so far right he's almost pulling a U-turn. Hillier, is the most fun to quote simply because he's such a contrarian. Few are giv- ing him much chance to sweep the mem- bers' votes but he could play a decisive role since his kind of conservatism is very much alive in rural Southeastern Ontario. He's personable and his platform is a broad, hard-right manifesto: In Randy Hillier's Ontario, the Ontario Human Rights Commission would be Inside Queen's Park By Ian Harvey dismantled; the pit bull ban would be overturned; ministers would have the right not to perform gay marriages or any other ceremony they object to; the Workplace Safety and Insurance Board would face private sector competition; the spring bear hunt would resume; li- quor laws would be liberalized; the prop- erty tax assessment agency, the Munici- pal Property Assess- ment Corp., would be dismantled; the pesticide ban would be reversed; senate elections would be introduced in On- tario; and plebiscites on amalgamation under the Municipal Reform Act would be allowed. That's a lot of de-legislating and leg- islating and grist for great headlines but don't get the idea he's a country bump- kin with a shotgun and a bomb shelter in the basement. His opponents share many of the same values and it's reso- nating with those party members who wistfully recall the Mike Harris dynasty when the party took a hard turn to the right, told voters what it planned to do, and then did it despite the violent objections of the leftist mobs. Hudak too would dump the OHRC and also scrap the harmonized sales tax — something he's dubbed the DST — Dalton Sales Tax. Klees would scrap the tax too but has run his campaign mostly on a platform stressing his leadership, experience, vision, and understanding of the party. Elliott, meanwhile, has also amassed some big gun political endorsements, aid- ed in no small way by her hubby's profile and network. She's relatively inexperienced on the front bench of the Legislature but you don't spend a lifetime with Flaherty and not learn the mechanics of politics first hand, so don't write her off. She's promised to introduce a flat tax on income of eight per cent, raising the per- sonal exemption to $18,000, and remov- ing the current three tax brackets. She'd freeze the minimum wage; make Muskoka part of Northern Ontario again; order to qualify for more favourable grants; scrap the government's limit of a 48-hour work week (more requires a special permit) on the strange grounds that people "want" to work longer hours which I suspect is more about employers wanting to squeeze more out of their staff. And she disagrees with McGuinty on the HST which ought to make some interesting pillow talk with the hubby who's been falling over himself to praise the Liberal's plan to harmonize. All of this, of course, isn't worth pixie dust because it's really so much rhetoric. No matter who emerges with the title on June 27 the next day of a provincial elec- tion is still three years off with the McLib- erals firmly entrenched and comfortable. It's an interesting exercise for political junkies but I'm betting more than a few headline writers and the press gallery are hoping Hillier wins only because it's go- ing to make covering Queen's Park a little more exciting and outrageous. The odds, of course, are stacked against him so it real- ly comes down to charisma, organization, and the ability to sign up new members. Let the games begin. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues in- cluding legal and political affairs. His e-mail address is ianharvey@rogers.com. www.lawtimesnews.com PAGE 7 The greatest constitutional challenge of our time keynote address at Osgoode Hall Law School's annual constitutional cases conference. With the Supreme Court of Canada appointment process caught in the crosshairs of the democratic re- form movement, Bryant viewed chal- lenges to judicial independence as the leading constitutional issue of the time. Bryant's predictions about increasing A pressures on judicial independence were prescient in 2004 but I do not believe that judicial independence has become the constitutional issue of our time. Several years earlier Supreme Court Chief Justice Beverley McLachlin stood at the same podium and de- clared equality "the most difficult right" in the Charter. I tend to agree with the chief justice's declaration on this issue but it too is not the defining constitutional issue of our time. No, the defining constitutional is- sue of our time is found neither in the text of our fundamental law nor is it recognized as an unwritten constitu- tional principle that infuses mean- ing into the text. Rather, it has been explicitly rejected on both accounts. However, it threatens both the text and subtext of our Constitution. The greatest constitutional challenge of our time is access to justice. Most are familiar with both the rhet- oric and the reality of the access to jus- tice crisis in this country. It has become standard fare in judicial speeches from the chief justice of Canada and her colleagues across Canada. But the courts — especially our high court — are part of the problem, not the solution. By creating greater complexity and uncertainty in the legal process they have added to the length and cost of legal proceedings. And in decisions such as Little Sisters Book and Art Emporium v. Canada (Com- missioner of Customs and Revenue) and British Columbia (Attorney General) v. Christie, the Supreme Court has clearly and forcefully sent a message that it will not modify existing constitutional doctrine to make it easier for ordinary litigants to be able to retain lawyers. The Living Tree has been unable to breathe life into this aspect of the Constitution. But the courts are only one aspect of the problem. We, the legal profession, are another. We are contributing to the increasingly unaf- fordable costs of legal services. We risk pricing ourselves out of the market. We are already doing that in some areas of the law such as family law where statis- tics show an incredibly high rate of self- representation. This is not a family law problem. It is fundamentally a problem number of years ago my for- mer boss, then-attorney gen- eral Michael Bryant, gave the Second Opinion By Adam Dodek for the legal profession as a whole and for our justice system as an entity. We are going to wake up one day to find the justice system has truly be- come unaffordable, inaccessible, and hence illusory to the vast majority of Canadians. We lawyers will find ourselves di- vided essentially into two classes: one serving a new aristocracy of wealthy individuals and large corporations that can afford justice and the other a group of state-paid lawyers serving the poorest of the poor. Left out will be the vast ma- jority of Canadians who simply will not be able to afford to hire a lawyer. Successive governments have been unable or unwilling to ameliorate the problem. In the midst of a recession, we will now see falling revenues for legal aid plans coupled with declining incomes for those in need of legal assistance. It doesn't take a statistician to predict a swelling of the legal aid rolls and le- gal aid being unable to provide even for those who meet the current low-income cut-off of an annual net income of $7,212 for an individual and $15,372 for a family of five. When you put this all together it has the potential to create a constitutional tsunami. If we wake up one day to find that as lawyers our only clients left are the very wealthy and the very poor, then surely the public and the legislators who rep- resent them will rightly question how self-regulation can be said to be in the public's interest. Even more concerting, however, is that this tsunami may rip through the fabric of our Constitution. The rights in our Constitution are premised on a claim of universality. One of the key postulates of the rule of law is that everyone is equal under the law. But if the protections of the Constitution can only be effectively invoked by those who have the re- sources to hire a lawyer then we will have established a means test for our constitutional rights. That will threat- en the legitimacy of the Constitution which is the true foundation for the rights and liberties enshrined therein. And that will be a very dark day for our profession, for our Constitution, and for our country. Next: avoiding the tsunami. LT Adam Dodek teaches at the University of Ottawa's Faculty of Law. He can be reached at adodek@uOttawa.ca.