Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. 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 Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter one is weighing heavily upon us, be- cause it seems size does matter — at least inside the hoosegow. Big Mike wasn't supposed to get out until February 2009, but the Quebec Pa- role Board granted him early release from Montreal's Bordeaux Jail, saying, "You have been held for more than 25 months and the conditions you're serving in are difficult because of your state of health." Translation: you get out early due to issues arising from living in a jail made for smaller felons, many of whom are now pouring on the gravy in a rigorous bulking up regime. To wit: Craig Jones of the John How- ard Society of Canada told the Globe and Mail that Big Mike's case is the first time he's heard of an inmate seeking special there until your time is up. But not in this effete country anymore — appar- ently if you become too big to fit into the house you get sprung early. At least that's what happened to one Michel "Big Mike" Lapointe whose enormous girth was his 'get out of jail early' card. To put it bluntly: the guy ate his way out of custody. As regular readers might expect, this W hen they say, "You're going to the big house," we thought that meant you have to stay November 24, 2008 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. 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L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905- 713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905-713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Chew on this one, folks treatment because of his weight, but he doesn't think it will be the last. And his tongue was not in his cheek. The board also cited Big Mike's good behaviour — although isn't that implied within the very nature of his complaint? — and the support of his wife and mother, the latter of which we're sure nobody from the criminal bar has ever heard before. But this isn't the first time Big Mike's size has been on the table. When he was sentenced in May after pleading guilty to drug trafficking, conspiracy, and gang- sterism charges, the judge reduced his sentence by six months because of the weight-related difficulties he experienced during his 20 months of pretrial custody. That means, by our calculations, nine months were carved from what he really should have served. The problem with this sort of thing is that good news spreads like wildfire on the jailhouse grapevine; the concept could become a well-cooked con. "In the end, some might say he got off easy," his lawyer Clemente Monterosso told the Globe. Gee, ya think? Wonder what his drug customers and their families have to say; those are hard-core charges so we're not talking about Bambi here. "But he didn't choose to be morbidly obese. This man is a colossus." Well, no- body was calling him Tiny Mike back when he was nabbed either. . . . He stepped in tipping the scales at 375 pounds and various news reports now pin him any- where from 430 to 450 pounds. Some would say, 'If you can't do the time. . . .' "His health deteriorated in detention from lack of exercise, bad prison food, and poor sleep," Monterosso said, add- ing the grub was greasy. Among the things adding to Big Mike's suffering was a mattress about a foot too narrow for his girth; he couldn't jam his legs under the prison tables at mealtimes; and the chairs didn't hold his back prop- erly. What a hellhole. Isn't this jail? Adding to his difficulties: Big Mike was turned down by two halfway houses because they didn't have room for some- one of his stature, which begs the ques- tion, why isn't there a fullway house? Upon his release, Big Mike pulled on a cigarette and told Le Journal de Montreal, "Fi- nally, I'll have a real bed and a chair to sit on. "Finally it's over," he further told Le Journal. "I want a normal life. I made some mistakes and I paid for them." Well, actually, not fully, that being the point. After he was sentenced, Big Mike's BY JAMES MORTON For Law Times myself, the blog is rather dry. While it has some political news, the main focus is case notes and commentary on recent legal mat- ters. I am very careful in prepar- ing my case notes to limit myself to a description of the case and what I believe it decided. I try not to let my opinion of the de- cision or the parties become part of the case comment. That care does not, however, mean that I do not get com- plaints. Usually such complaints are from disappointed litigants and they are accompanied by a lengthy explanation of why the judge was, for example, biased or in some other way unjust. I write a blog. If I am being honest with I received finished off with the threat that if I did not re- move the case comment from my blog within 24 hours, the writer would "complain to the law society." This last threat got me thinking, especially as I have had precisely the same threat many times before. We have all heard of the "libel chill" where wealthy liti- gants use the threat of a libel suit to stop discussion of otherwise legiti- mate issues; this threat is similar. To my mind, the use of the The last such complaint Law society chill Speaker's Corner Law Society of Upper Canada as a threat amounts to the same thing as a libel chill. Certainly it is entirely appropriate for the law society to regulate lawyer's conduct as relates to the practice of law. More broadly, I cannot argue that a lawyer's conduct, in general, ought not to be a con- sideration in membership for the law society, particularly where that conduct includes, say, crim- inal convictions or otherwise clearly dishonourable conduct. I cannot imagine the law society seriously considering a complaint about a neutral blog posting by a lawyer or parale- gal. Nevertheless, every time I get a threat to "go to the law society," I pause. And in truth, I hesitate to blog about family law cases because, in my expe- rience, family litigants are not shy about complaints. www.lawtimesnews.com mom told Canadian Press, "Happily the judge's decision yesterday was good, thanks for that, and I hope it will bear fruit." Meanwhile, Big Mike has filed a com- plaint with the Quebec Human Rights Commission. Speaking of bearing fruit. "His rights were violated because he wasn't given the tools to rehabilitate him- self," Monterosso said. "He deserved to be treated with dignity and humanity." That's true. So, rather than cutting his sentence, they should've ponied up for de- cent furniture for this man; nobody should be forced to live like that and it's not as if there won't be someone else coming down the pipe to use it. It's the cost of a bed and chair vs. taxpayers coughing up for the hu- man rights body to deal with this, plus Big Mike's inevitable cash parting gift from them. And, if the grub is as alleged, they should also reconsider the menu, even though, yes, the current fare is probably cheaper. But really, letting people out of jail early for things like this is a slippery slope. What's next: give a serial killer $6,000 in pain and suffering damages because his prison-issue sneakers were the wrong size and he hurt his knee whilst running? Oh yeah. We do that too in Canada. — Gretchen Drummie very easy to set a law society complaint in motion. All that is necessary is a letter or e-mail and the process begins. For the complainant, the com- plaint is virtually costless whereas for the lawyer, it involves very significant cost in responding to even a frivolous complaint in terms of time and effort. This last point ignores the emotional upset that any complaint to the law so- ciety naturally causes the lawyer. The difficulty with the law society complaint process is not limited to the law society. Many regulatory and administrative Perhaps this is because the law society is such a serious matter and ought to be given serious consideration whenever raised even if a proposed com- plaint is transparently frivolous. The problem is that it is bodies accept complaints with- out preliminary restraining and have a process which is, for all intents and purposes, costless to the complainant but costly to the party complained about. Lawsuits, by contrast, impose ongoing costs, particularly if, as is now common, cost awards are made on an interim basis follow- ing failed motions and the like. The result is akin to the libel chill problem. It's difficult to think of a solution where legiti- mate complaints would not be stifled but this is a challenge we must meet. Freedom of speech ought not to be sacrificed from fear of complaint. LT James Morton is a Toronto lawyer, law professor, and media commen- tator. His blog is at http://jmorton musings.blogspot.com.

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