Law Times

PAGE 6 COMMENT Law Times Group Publisher ......... Karen Lorimer Associate Publisher ........ . Gail J. Cohen Editor .............. Gretchen Drummie Associate Editors .......... .Helen Burnett . . . . . . . . . . . . . . . . . . . . . . . . . . Robert Todd Copy Editor .............. Matt LaForge CaseLaw Editor ......... Jennifer Wright Art Director ............ Alicia Adamson Production Co-ordinator ..... Mary Hatch Electronic Production Specialist ................ Derek Welford Advertising Sales ........ Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ............. Sandy Shutt 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 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. ©Law Times Inc. 2008 All rights reserved. Editorial Obiter T Now, suddenly all of the cool kids want to have one; four universities in this province are vying for the green light to start law programs. Lakehead University is first out of the gate with a plan to educate law students to provide legal services to aboriginals and rural and northern communities. Last week the bid leapt a hurdle when the Law Society of Upper Canada gave it preliminary approval. Meanwhile, the University of Wa- terloo and Wilfrid Laurier University in Waterloo have plans for law programs, while Sudbury's Laurentian University is also at the drawing board. Each has its own particular pitch. he last time a new law school was established in Ontario, man was taking his first steps on the moon. MAY 5, 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 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 Publications Mail Agreement Number 40762529 • ISSN 0847-5083 CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. 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, Kathy Liotta at 905-713-4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-713-4340 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. If you build it, they will come "It's a long, complicated process set- ting up a law school and we have to have a fair amount of information before we approve a program," Vern Krishna, a member of the National Committee on Accreditation who chairs the society's licensing and accreditation task force, is quoted in the Toronto Star. It certainly appears Krishna's right; there are still a bunch of stages to clear including the next one, approval from the Federation of Law Societies of Canada. Then it's on to the provincial Ministry of Colleges and Universities for consent. The process includes input from the six The deans noted there are 200 lawyers practising in northwestern Ontario and the Lakehead school would graduate 55 lawyers per year, meaning "within a very short period of time any unmet need that might exist for legal services in the north would be satisfied." They further said that it seems "to us that the establishment of a law school whose stated mission is to train lawyers for practice in small firms in 'under serviced' areas requires careful consideration." But Lakehead's president Frederick Gil- Ontario law school deans who are cool to the idea. In a letter to the law society, the deans worried about the Lakehead proj- ect saying, "there were too many non- law courses being offered for credit." bert tells Law Times reporter Robert Todd that the deans' reaction was based on an in- complete view of the proposed curriculum, and their concerns "are not of substance." The Lakehead proposal has note- worthy backers, including former prime minister Paul Martin who in a letter urged LSUC to approve it ASAP. While it is bad timing given the two task forces that are weighing potential changes to the way lawyers are licensed, the Lake- head plan isn't a bad one, especially because it's being considered so thoroughly. If the Lakehead project works the way it is intended to, then it makes sense. There's a shortage of lawyers in the north and increasingly the older praction- ers are retiring; they need people to fill those shoes. Indeed there is a need for law- yers with a specialty in aboriginal issues. Yes, there are questions, including whether there will be articling and co-op positions in the north. But if all of the stars align, it probably is time for another giant leap. — Gretchen Drummie when it comes to our responsibili- ties. We do acknowledge the idea of responsibility very well. Only it is the government's responsibility . . . to ensure that our rights are protected of course. Civic responsibility is on the W e have become a soci- ety focused on rights but we are amnesiacs wane. We can barely convince two-thirds of our fellow citizens to take an hour every four years to cast a ballot. Other rates of politi- cal participation are even lower. We Canadians are often so smug in as- serting our moral superiority over our American neighbours, but we should be looking with envy at the current presidential primary season — the longest ever — and how it has excited and energized Ameri- cans and spurred an increase in po- litical participation that will likely translate into higher voting rates in November of this year. A recent non-constitutional case at the Supreme Court brought home some of the issues surround- ing the notion of constitutional responsibility. In Tele-Mobile Co. v. Ontario, 2008 SCC 12, Telus Mobility sought compensation for the costs of complying with third- Civic responsibility on the wane Second party production orders un- der the Criminal Code. In an unanimous decision written by Justice Rosalie Abella, the court dismissed Telus' arguments that the police should have to compensate them for comply- ing with the production orders. The decision rests on the idea of civic responsibility best captured by the term a friend of mine used to describe the theory of the case: "corporate jury duty." Telus unsuccessfully attempted to distinguish itself from other unpaid or under-compensated participants in the criminal justice system, like jurors and witnesses, on the basis that it is a repeat player in assisting law enforcement. Telus has a fraud and wireless security management unit that responds to requests from law enforcement agencies, and in 2004 it responded to over 2,800 warrants. Telus ar- gued that it should be treated more like judges or expert witnesses who are compensated for their participa- tion in the criminal justice system. This argument did not fly with any of the 10 judges who ruled in the case at the Supreme Court or in the court below. On the burdens imposed on Opinion By Adam Dodek witnesses in criminal trials, the Supreme Court invoked the still- popular John Henry Wigmore to the effect that, "It may be a sacri- fice of time and labour, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity or a courtesy, or an ill-required favour. It is a duty not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of or- ganized and civilized communities, and become a hermit." The court noted that every- one has a duty to assist in the ad- ministration of justice. That is, we all have a responsibility to preserve our constitution. When it came to dollars and cents, Telus had a very weak case. The evidence was that the annual estimated cost to Telus of complying with third-party pro- duction orders was $662,000. The motions judge translated this into percentage numbers to put this fig- www.lawtimesnews.com Then the Crown pointed out that these numbers are the equivalent of a person earning $100,000 a year having to spend up to $58 to comply with jury duty. I suspect that the case was likely lost for Telus at this point. For those wondering about jury ure in perspective. The numbers were not kind to Telus. The fig- ure amounted to 0.023 per cent of Telus Mobility's operating revenue for 2004 and 0.029 per cent of its operating expenses for the same year. Other numbers were worse. duty, in Ontario we take the idea of this civic duty perhaps a little too literally. We do not compensate ju- rors unless they serve more than 10 days, at which point we pay them $40 per day, less than what Mc- Donald's can legally pay a teenager. If they are on a jury trial for 50 days or more, jurors' stipends increase to $100 per day. We the taxpayers do not pay for childcare expenses or for transportation expenses un- less the juror is commuting from out of town. It is little wonder that Telus compared so unfavorably to our chronically underpaid jurors. However, there is a flip side to imposing "corporate jury duty" on the Teluses of our society. Im- posing all of the responsibility on Telus without any restraint on the party ordering the third-party production order (usually the police) creates a classic free-rider problem. The police have no in- centive to be efficient or strategic when another party is bearing the cost in time and money of such production. From a civil liberties perspective, do we literally want to give the police a blank cheque to order production of whatever records they want? They could probably use a little more re- sponsibility themselves. The jury should still be out on this ques- tion, but after the Telus case it is now left to Parliament to revisit this issue, and that is unlikely in the near future. In the meantime, Telus, other telecommunications providers, and financial institu- tions are now shouldered with constitutional responsibilities and will now have to report for "corporate jury duty" along with many ordinary citizens. LT Adam Dodek is a visiting schol- ar at Osgoode Hall Law School. He can be reached at adodek@ sympatico.ca

• Cover