Law Times

LAW TIMES / JUNE 9, 2008 Toronto have a public policy problem. Gun crime contin- ues to increase despite more and more draconian laws. As believers in the "root causes of crime" theory, a variation on the "we are all born good" ideology, they are at a loss on how to deal with people who prefer the highs of a life of crime to the drudgery of nine-to-five. But they have to be seen to be doing something, so in the grand tradition of most ruling classes, they pick on a small minority group who lack clout and demonize it. In this case, the result is the constant and escalating attacks upon firearms owners in general, and hand- gun shooters and gun collectors in particular. Toronto Mayor David Mill- he Liberals who run Ontario and the New Democrats who run er, whom the National Post cor- rectly called an "ignorant dema- gogue," is receiving most of the current publicity for his emo- tional attempt to ban private firearms use in Toronto. He may actually believe that fewer guns mean fewer crimes, but that only proves he is a fool. No facts back up his absurdity. The Liberals aren't fools. In fact, unlike the flighty Mill- doesn't make it true T Repeating a lie Inside Queen's Park By Derek Nelson Miller-style claim is contained in an article in the spring is- sue of the Harvard Journal of Law and Public Policy entitled: "Would Banning Firearms Re- duce Murder and Suicide?" Writers Don Kates and (Ca- nadian criminologist) Gary Mauser, echoing earlier studies, said that the "more guns means more crime" philosophy is a fan- tasy of the gun control lobby. In reality, it is not the tool called a gun but social, socio- economic, and cultural factors that determine the prevalence of crime in general, including gun crime. er, who wouldn't know a fact if he tripped over it, the Liberal govern- ment's position on guns is cold, hard, and political to the core. Cabinet ministers repeat the call for a handgun ban as mantra in virtually every interview to do with public safety. Not that they care about public safety, but they do care to never again be out- flanked by the Progressive Con- servatives on law and order issues. And if in the process they have to destroy a small, power- less, and law-abiding minority, that's just too bad. fort with Miller, the Liberals sent a letter to the federal gov- ernment in late May calling on it to implement United Nations "marking regulations" on guns and to ban import of gun parts. "Currently, it is difficult to tell the difference between a legal and an illegal firearm" the letter reads, illustrating the re- mark with a picture of a hand- gun, despite the reality that if a handgun (or even the operative part, the receiver) isn't regis- tered, it isn't legal, period. It reminds one of the Lib- eral backbencher's bill to con- trol "handgun" ammunition, despite there being no such exclusive thing. It is hard not to conclude Liberal crassness goes further. As part of their tag-team ef- McGuinty and company know this is all politics and theatre and nothing to do with crime control. Miller may babble that "plausible explanation for many nations having widespread gun ownership with low violence is that these nations never had high murder and violence rates and so never had occasion to en- act severe anti-gun laws. "On the other hand, in na- tions that have experienced high and rising violent crime rates, the legislative reaction has gen- erally been to enact increasingly severe anti-gun laws. "This is futile, for reduc- ing gun ownership by the law-abiding citizenry — the only ones who obey gun laws — does not reduce violence or murder," the pair wrote. Sadly, none of this matters, As the authors say, the most COMMENT Ten questions for the Supreme Court nominee he will retire at the end of this term creates an unexpected va- cancy on the Supreme Court of Canada. The minister of Justice has announced that the nominee will appear at a pub- lic hearing of an ad hoc par- liamentary committee, as did Justice Marshall Rothstein. Here are the questions that T he surprise announce- ment by Justice Mi- chel Bastarache that should be put to a potential jus- tice of the Supreme Court. 1. What qualities make a for, even excluding a posturer like Miller, the political class can read the polls. They know there is no downside to discriminating against gun owners (just as there is none in the Liberal persecution of smokers and pit bull owners). It is true that Canadian laws and court decisions have stripped away to almost nothing one of the purposes of owning firearms: self-defence. The onetime "duty to re- treat" in public confrontations until, as English courts once said, "one's back is against the wall," or the idea that a "man's home is his castle" which could therefore be defended by force, are now pretty much obsolete in the common law world outside the United States. But that still leaves guns as a necessity for some occupations like farming, ranching, and trapping, as useful tools for sportsmen like target shooters and hunters, and as working artifacts and objects of beauty for collectors. But not to the Toronto Mil- lerites and the Ontario Liberals. To them, gun owners are the "where there is strong gun leg- islation there is a correspond- ing lowering of the rates of not just murders, but suicides and accidental deaths." But repeating a lie doesn't new witches, guns are their fa- miliars, and witches need to be burned at the stake. LT make it true. The most recent analysis of a Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@rogers. com. www.lawtimesnews.com see for the Supreme Court on the horizon? This question is inten- tionally open-ended because it can be interpreted in several different ways. It could be in- terpreted by the nominee as re- ferring to substantive issues that the court is likely to face in the coming years, such as privacy on the internet, terrorism, etc. good Supreme Court judge? This is a bit of a softball question, but we want to at least hear from a pro- spective member of our highest court that she or he has an open mind, lis- tens to others, plays nice, etc. 2. Supplemental question: What experiences qualify you to be a Supreme Court justice? By the time the nominee comes before the committee, the press and the PMO will have pro- vided us with an exhaustive CV of his or her work experience. This question aims to put some flesh on those bones and learn a little about the life experience of our new justice. 3. What judge do you admire most as a role model? Again, another softball question but one that provides insight into the jurisprudential view of the nominee. Would it be Bora Laskin or Brian Dick- son? Antonio Lamer or Claire L'Heureux-Dubé? Or perhaps a fellow Maritime justice like Ivan Rand, Roland Ritchie, or Gérard La Forest? Or maybe even a non-Canadian like William Brennan or Learned Hand? Whatever the answer and the explanation, it would be revealing. 4. What challenges do you Alternatively, it could refer to institutional challenges for the Supreme Court, such as the de- mand for greater transparency and accountability in the work of the court (manifested in the committee process for question- ing of the nominee). Either way that the nominee decides to an- swer the question, a follow-up would probe the other area. 5. The chief justice of Canada and the chief justices of virtually every court in Canada have talked about an access to justice "crisis" Second Opinion By Adam Dodek in Canada. What responsibility does the Supreme Court have to ensure that ordinary Canadians have real access to justice? Judges are getting better and better at spouting lofty rhetoric about the importance of access to jus- tice but are not quite so good at actually doing anything about this in their courtrooms. In cas- es like Little Sisters (No. 2) and Christie, the Supreme Court has dashed the hopes of access to justice champions. The court can, and needs to, do more to use the "living tree" doctrine to ensure that our justice system does not shrivel on the vine. 6. There is growing criticism about the length and complexity of criminal trials in this country. Some have attributed this in part to increased complexities added by the Supreme Court to the crimi- nal trial process. Do you think that there is a problem, and if so what is the role of the Supreme Court? It would be instructive to hear the nominee's perspec- tive on the respective roles of trial judges, prosecutors, defence counsel, and the Supreme Court in addressing this problem. I ac- cept the premise of the question and believe that all players in the criminal justice — including the Supreme Court — have a role to play to address problems in the justice system. What does the nominee think? 7. What has been the greatest the Supreme Court overrule an existing precedent? The Supreme Court does not appear to have any theory of stare decisis. As I wrote in my January 2008 col- umn on the year in constitu- tional review, in 2007 the court overruled three important long- standing precedents without articulating any basis as to why those precedents should be over- ruled beyond disagreement with them. We need more than this. 10. What role should technolo- challenge that you have faced in your life or your career? This pro- vides insight into the character of the nominee and capacity for empathy, important qualities of a Supreme Court justice. 8. When does history matter in constitutional interpretation? This is a trick question. Con- stitutional history almost never matters since justice Antonio Lamer (as he then was) said in Re B.C. Motor Vehicle Act that the statements of those who drafted the Charter were only entitled to "minimal" (read: "no") weight. The history of the making of our Constitu- tion should not be disposi- tive but it should be given at least some consideration. 9. What is your view of stare decisis? When should PAGE 7 gy and the media play in the work of the court? Over the past 25 years, there have been significant changes at the court: televising hearings, press briefings, judg- es giving interviews, etc. The court is currently undergoing a "courtroom modernization pro- gram" which will see the expan- sion of the use of technology in the courtroom. But what about access for the rest of us? I am not necessarily looking for YouTube videos or a Facebook site but I would like to see factums and oral argument transcripts (if not videos) posted on the Supreme Court's web site, if not live web- casting of hearings. LT Adam Dodek is currently a visit- ing scholar at Osgoode Hall Law School and, effective July 1, 2008, he will be an associate professor at the University of Ottawa's Fac- ulty of Law. He can be reached at adodek@sympatico.ca. FREE UNTIL JUNE 30TH

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