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Page 6 December 7, 2015 • Law Times www.lawtimesnews.com COMMENT udos to Western University Law School Dean Iain Scott for his swift response to shutting down a law school co-ed intramu- ral hockey team that used the vulgar name Dixon Cider (say it quickly and you'll understand) when he found out about it. However, it would have served deterrence better had the school made public its sanctions against the students. Scott said their conduct vio- lated the university's code of conduct. However, he would not speak to the specifics of discipline being handed out to the 12 players on the team because of privacy concerns. It seems like everyone seeks the cover of privacy laws when inappro- priate conduct comes to light on campuses and workplaces. It's unfortunate that the privacy laws are being twisted and distorted in such a fashion so as to protect the guilty. They were supposed to pro- tect the innocent from intrusions. It will be interesting to see if the legal regulators will weigh in, much the same way that dental regulators weighed into the Dalhousie dental school Facebook scandal of last year. In that case, male students posted sexist comments about female classmates, which led to an investigation and students underwent "remediation." The case was a cause célèbre, which saw a number of dental regulators get involved. Concerns were raised about the students' attitudes and the impact those would have on their ability to practice and whether patients should know. While the Western incident does not appear on its face to be of the same magnitude, it does pose some similar considerations. These law students will go on to practice law and interact with the Appeal counsel duty program helps offender move on 'd like to tell a good news story that started out very badly. On June 26, 2012, a 27-year-old first offender named Mahmoud Ghadban was convicted of having participated in a home invasion robbery. The victim was an alleged drug dealer. Ghadban, who knew the target, went to his house with two accomplices. When the vic- tim opened the door to let Ghadban in, the two others forced their way into the apartment and committed the robbery. The victim wasn't harmed, but he was subjected to what the Court of Appeal later described as a "strongly implied threat of physical harm." The accomplices got away, but Ghad- ban was apprehended almost imme- diately. At trial, he claimed he knew nothing about his friends' plan to rob the place. He was disbelieved, convicted, and sentenced to two years. He initiated an appeal of his convic- tion and sentence, and after a couple of months in jail was released on bail. His appeal started out badly, after two lawyers quit, and Ghadban's ap- peal proceeded in the "inmate stream," where he represented himself. This is where the story gets better. Ghadban was able to use the services of the Inmate Appeal Duty Counsel program. This program may not be well known to the wider bar, but it serves a criti- cal function in ensuring that unrepresented appellants get a fair shake in a forum not geared toward the self-repre- sented. Every month, two or three days are set aside to hear these appeals, with a rotating roster of experienced appellate law- yers volunteering to argue on behalf of appellants. I can say from personal experience that the work involved is challenging and intense. When Ghadban finally came before the Court of Appeal, he had been on bail for more than three years. He asked only that his jail sentence be reduced to time served. Ably assisted by duty counsel Jill Presser, his request was supported by impressive evidence of rehabilitation since his release on bail. He was now gainfully employed with the strong sup- port of his employer and good relations with his colleagues. He had married, be- come a volunteer, and had children. The Court of Appeal faced a difficult question: Should Ghadban be returned to jail for the remainder of his sentence? The court's judgment, R. v. Ghadban, authored by Justice Robert Sharpe, is a concise but powerful affirmation of the courts' need to fashion sen- tences with close attention to the circumstances and quali- ties of the individual offender. Although general deterrence and denunciation favoured upholding the sentence, the court recognized that they aren't everything. Rehabilita- tion also matters. Addressing the concern about what "message" the court should send in sentencing Ghad- ban, Justice Sharpe concluded: "The message sent by reducing the sentence would be that where an offender takes unusual steps to turn his life around, those steps will be recognized by the court." The court reduced the custodial portion of the sentence to time served, with probation. We've emerged from a decade under a federal government that would have found the question posed by this case easy to answer, since every criminal justice problem called out for a punitive response. Judicial discretion was the en- emy, prescribed penitentiary sentences a panacea. The recently published mandate let- ter for Minister of Justice Jody Wilson- Raybould is an encouraging sign of the new government's approach. The min- ister has been tasked with a mandate to "ensure that the rights of Canadians are protected." On the matter of incarceration, one of the questions the new minister is instruct- ed to address is solitary confinement. End- ing long-term solitary confinement in Ca- nadian institutions would bring Canada in line with an emerging international consensus and go a long way to demon- strating the new government's commit- ment to the kind of balanced, humane ap- proach to criminal justice exemplified by the Ghadban case but absent from federal policy for many years. Ghadban's odyssey through the trial and appellate process showed parts of the system at its worst — but, eventually, at its best. I hope it is part of a broader trend. LT uMatthew Gourlay handles crimi- nal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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Maybe law societies need to f lex their muscles and ask tougher questions of law deans when it comes to questionable student activity. After all, law societies are still the gatekeepers of the legal profession and good character remains one of the requirements for gaining access to the profession in most provinces. Maybe a couple of shots across law schools' bows will remind students that as upcoming lawyers they contribute to the public's perception of our profes- sion. Bringing shame to your school and profession is no way to start your legal career. As the lawyers' letters often say, govern yourself accordingly. LT A Criminal Mind Matthew Gourlay I K Govern yourself accordingly

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