Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... Gail J. Cohen Editor ............ Gretchen Drummie Associate Editor ......... Robert Todd Copy Editor ............ Matt LaForge 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 the second-degree murder trial of a youth charged in the shooting death of Jane Creba on a downtownToronto sidewalk. If granted, the extraordinary measure would have effectively forbidden the media from reporting anything about the case while it is in progress this fall. Nothing. Nada. Zip. Didn't happen. According to the Toronto dailies that S uperior Court Justice Ian Nord- heimer has correctly nixed requests for a sweeping publication ban of covered Nordheimer's recent decision, lawyers argued publicity from the first trial would affect the fair trial rights of the co-accused who have yet to be tried. Seven adults and another youth are slated for trial on charges arising from the same 2005 Boxing Day fatal shooting of Creba, 15. If granted, the ban would've shut down coverage of the first trial until the jury in the last trial was sequestered and in deliberations, according to the Toronto September 8, 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 postage 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. This just in: courts still open Star's Peter Small. That's next year. But Nordheimer has decided the rest of us have a right to know. "The public has the right to determine whether all of the players in the crimi- nal justice system are performing their respective roles in a fitting and proper manner," said the judge in his decision. Said Nordheimer: "There have been other cases in Canada that have been the subject of extensive pretrial public- ity. Yet, in not a single case of which I have been made aware, has a court ever granted the broad publication ban that is sought in this case." According to the National Post's Shannon Kari, the judge agreed that the tragic shooting is a "touchstone event" in the "public outrage" over gun vio- lence. He also said most potential jurors have probably heard of the case. But, Nordheimer pointed out that there are venues, like for example online blogs, that may be outside of the court's control. And, it would violate the free- dom of expression guarantees under the Charter to ban reporting until the end of the other trials. was: vet the potential jurors in the nor- mal challenge-for-cause process. "Our faith in the remaining potential The solution is the same as it ever jurors, if selected and properly instruct- ed, to perform their duty and to reach a verdict based solely on the evidence to be presented in the courtroom and not on any extraneous information, should be sufficient to ensure that the applicants will all receive fair trials," said the judge. The Crown and defence seem able to do it successfully in other cases. Actually, it's surprising how little the public really does absorb these things. Over and over again during years of perching on the hard courtroom benches, we've seen potential jurors in so-called high-profile cases questioned about their knowledge of the facts. While it's depressing as a journalist to see first-hand how poorly people really recall the details in these stories beyond the high points, it's heartening as a citi- zen to see that most of them don't, and they want to do their duty honestly. But at the risk of having just cancelled our own argument, we stress it's still im- perative that everyone has the opportu- nity to find out what's going on in the courts when it happens via those who are able to attend (i.e. the media) — whether the public can remember the fine points six months from now, or not. And here's an interesting fact found in another Kari story on an unrelated topic wherein University of Toronto psychology professor Jonathan Freedman is quoted: "By and large, people exaggerate the effect of publicity on jurors. I think they try to do their job." He's right. Meanwhile, what's next: a bid to ban names in federal tribunals? — Gretchen Drummie C The new rules: can a politician be a judge? That's were said to aspire to be defeated political candidates. That way, their proven party loyalty could pave their way to judicial appoint- ments, and they would not even have to interrupt their legal careers for longer than the campaign. But if a failed political career could bring such rewards, so in Manitoba, Toews was a suc- cessful Crown prosecutor, a se- nior constitutional advisor, and a high-level corporate counsel. Sounds like a pretty good CV for a judicial appointment. But then Toews went into politics. He's a former attorney general of Manitoba, and cur- rently sits in the Harper cabinet as Treasury Board president. That's a pretty substantial re- cord too, but these days, that's a problem. Toews' rumoured appointment to the Manitoba bench is on hold. It used to be, some lawyers During 20 years of practice an Vic Toews be a judge? History would say, sure he can. could a successful one. In the 19th century, patronage was accepted as an essential part of the political process. John A. Macdonald advocated the "true constitutional principle: . . . whenever an office is va- cant it belongs to the party supporting the government if within that party there can be found a person competent to perform the duties." As a result, politicians have quite often gone straight from federal or provincial cabinets to the Supreme Court of Canada, including Télesphore Fournier, David Mills, Douglas Abbott, Ivan Rand, and J.W. Estey. Sometimes, it was rumoured, the bench was a good way to get rid of a failed politician. At least seven Ontario at- torneys general or party leaders have gone on to be chief justice of Ontario, the most recent be- ing Roy McMurtry, whose dis- tinguished political career did not prevent him from filling the judicial office very successfully. History By Christopher Moore McMurtry had several years out of politics before going to the bench, but several of his prede- cessors went straight from the cabinet room to the judicial chamber. It has been much the same in the United States. Earl Warren, the American chief justice of the 1950s and 1960s, was governor of California until the day he be- came chief justice of the United States; he had narrowly missed becoming vice president in the "Dewey defeats Truman" elec- tion of 1948. That has not happened in re- cent decades, but the recent trial balloon that would have Barack Obama (if he were elected presi- dent) naming Senator Hillary Clinton to the Supreme Court www.lawtimesnews.com Even the June 2008 naming of Justice Jeffrey Oliphant, of the Court of Queen's Bench of Man- itoba, to head the Schreiber-Mul- roney inquiry sparked complaints — because Mulroney was prime minister when Oliphant first be- came a judge 20 years ago. Toews' possible appointment have changed. Patronage, once the life blood of politics, has be- come its worst sin, and we now have elaborate rules to control what jobs politicians may ac- cept when they leave politics. suggests the idea is not dead across the border. In Canada, ethical notions against governments that ap- pointed their friends to office. Today, of course, panels vet and nominate most judicial can- didates. But even here there are complications for Toews, who was Harper's justice minister un- til early 2007. As such, he per- sonally appointed members of the advisory committee, and he spearheaded the change that put more police officers and fewer lawyers on the panels. to the Manitoba bench is now hedged about by a whole series of rules and guidelines. The Ca- nadian Bar Association recom- mends that politicians have two years out of politics before going to the bench. The NDP says the rule should be the same as Ste- phen Harper's own rule for poli- ticians becoming lobbyists: five years. As a Reform Party justice critic, Vic Toews used to inveigh a retirement plum have said, it is hardly self-evident that suc- cess in politics and public life should preclude one from going on to further successful service on the judicial bench. But those are the new reali- As many politicians seeking ties. These days, aspiring judges should consider a political ca- reer may be more likely to hin- der than help their progress to the bench. LT Christopher Moore is the author of several works in legal history. www.christophermoore.ca.

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