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 sure bet those of us in the cheap seats would rarely be admitted to court- rooms. Given the choice, who wants their smalls aired out before the world? There isn't much doubt that if the opportunity were there to keep the rest of us in the dark, all but a tiny few would snatch it, particularly in the criminal system. But then obviously that would make it a closed court system. Well, witness what happened recently I f embarrassment were a valid reason to keep trials in Canada closed to the public, then it's a in Barrie where teacher David Carswell has been on trial charged with posses- sion of child pornography. At the end of the Crown's case the defence applied for a sweeping publi- cation ban and exclusion of the public. Carswell's lawyer David Wilcox made the unusual request of Justice Nancy September 29, 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. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postag=e guaranteed. Contact Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. 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. Black boxes are for airplanes Dawson based on claims that his cli- ent's wife, Linda, a school principal, was harassed and intimidated after news of her husband's case hit the press. They also asked that Mrs. Wilcox testify as a defence witness at a different venue, below the radar. The trial was on hold for several months and the public was excused while the motion was argued in cam- era. Members of the media had stand- ing at the closed hearing and thus were present, but reporting about the matter was banned until recently. In essence, Wilcox wanted to put the trial in a "black box," the judge quoted him in her written ruling, which was issued Aug. 25 but sealed to allow for the appeal period to expire. On Sept. 19, Dawson lifted her ban and the results became public. In short: "There will be no ban on publication. The public will not be excluded from the courtroom. The court location will not be changed." If the judge had granted the defence motion, that would have meant a secret trial. Imagine the precedent had Dawson agreed. But she didn't. Good for her. "Closed courts and secret trials bring back memories of the Court of the Star Chamber, whose activities cast a dark stain on English law," said Dawson, referring to the notorious medieval court. According to a Toronto Sun story by Tracy McLaughlin, Mrs. Carswell testified that she was intimidated by members of the public, her health suf- fered, and she had to seek employment in another city. She claimed she feared for her safety if evidence continued to be disseminated. But Crown attorney Ann Tierney pointed out, "She is a family member sub- jected to embarrassment but that is not a basis for [a] publication ban." "This case is an allegation of the lic scrutiny of the trial process and "reasons for result in this case would bring the administration of justice into disrepute. Open courts are the hallmark of democracy and the cornerstone of common law." Couldn't have said it better. — Gretchen Drummie British Columbia's 150th? On the coast, they are mark- ing the anniversary of the 1858 founding of the colony of British Columbia. The Vancouver Island colony Y ou will have heard of Quebec's 400th anniver- sary this year. How about Call of the Pacific lured Ontario lawyers That's judge Matthew Baillie Begbie, wanted to keep legal practice for proper Inns of Court men like themselves and their local students — and to keep out upstart easterners. But the "Canadians" — preceded it by many years, the two were not united until 1866, and B.C. did not join Canada until 1877. But 1958 was cho- sen as B.C.'s centennial, so 2008 has to be the sesquicentennial. And that makes an opportu- nity to note here how Ontario lawyers have responded to the call of the Pacific over the years. Since John George Barnston ar- rived in 1858, many Ontario- trained lawyers have made good and done good by choosing to practice in British Columbia. It took them a while to get a foothold. B.C.'s first judges, lawyers, and administrators, like most of the early settlers, came by sea from Britain. They, and particularly the renowned early History By Christopher Moore Quebeckers and Maritim- ers as well as Ontarians — squeezed in. After the rail- road was opened in 1886, they became a flood. The bar in Ontario was crowded, and Ontario legal migrants were thriving all over the Prairies. Many young On- tario lawyers asked themselves, why not get in on the ground floor in Canada's new Pacific gateway? As a result, many of B.C.'s leading law firms trace their ori- gins (though not too loudly) to eastern migrant lawyers. Russell DuMoulin, now part of Faskens, was launched by New Brunswick lawyer Joe Russell in 1889. Davis LLP was launched by Ontario lawyer Edward P. Davis in 1892. The Farris brothers came from New Brunswick to Vancouver in 1903, and Lyman Duff, later chief justice of Canada, moved his practice from Fergus, On- tario, to Victoria in 1904. Samuel Schultz went from Osgoode Hall to Vancouver before the turn of the century, and he eventually became one of Canada's first Jewish judges. Mabel Penery French, who be- came B.C.'s first woman lawyer in 1912, had earlier been called in New Brunswick. Not only Vancouver and Victoria attracted migrant Ontario lawyers. Many B.C. small towns got their first lawyer from Ontario. George Walkem, an Ontario-called lawyer and early B.C. premier, www.lawtimesnews.com Court were all British, but once the government of Canada took over appointments in 1871, eight of the next fifteen judges were lawyers who had trained in Ontario. Of the others, three were Maritimers and two British Columbia-trained. There were just two more Brits. B.C.'s Court of Appeal began sitting in 1910. All the judges appointed to it until 1938 were Ontario-born and Ontario- trained, as were the first four chief justices of the court. The B.C. legal community practised in the Cariboo gol- drush country. Another On- tarian, James A. Macdonald, practised in the mining town of Rossland and was leader of the provincial opposition be- fore becoming a judge. The first four judges of British Columbia's Supreme matured rapidly, and B.C. quickly began to train and call its own lawyers. The domi- nance of migrants from the east was in rapid decline by the possession of child pornography against an individual who had charge of children," wrote Dawson. "The public has an inter- est in knowing the result of such an allega- tion and the reason for such a result . . . "I am not satisfied that the harm that Mrs. Carswell asserts she has suffered, the medical stress, embarrassment, and discomfort is any different from other witnesses who suffer embarrassment and stress when testifying or as a result of a family member being charged with an offence." Dawson added that preventing pub- First World War. But some Ontario practitio- ners are still drawn to the rain forest and the good life. Eminent B.C. litigator Len Doust grew up in northern On- tario; a visit to B.C. in 1959 convinced him to do his legal studies there, and he has never returned. ronto criminal lawyer, moved to Vancouver in the 1980s, his wish to retain an association with his Toronto partner ran afoul of B.C.'s new law against interprovincial law firms. Mar- tin v. Attorney General of B.C. became the key case that made national firms legal in British Columbia. Judge Begbie would not be When David Martin, a To- pleased. LT Christopher Moore's most recent book is McCarthy Tétrault: Building Canada's Premier Law Firm, published by Douglas & McIntyre. His e-mail address is www.christophermoore.ca.

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