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Focus: A litigator’s wish list for the federal election

|Written By Judy van Rhijn

Instead of the uphill grind of lobbying the current government on legal reforms throughout its tenure, some lawyers believe a change of government offers the best opportunity for the overthrow of unpopular legislation or at least a more receptive ear to talk to.

Toronto human rights and constitutional lawyer Hugh Scher believes the federal election reflects a set of clear alternatives. “The choices available represent a significant set of options for Canadians, including in the justice area,” he says.

While litigators focus on big-picture topics such as electoral reform, the role of the Senate, health care, and environmental protection, Scher notes the keen interest in the justice sphere as well.

“The Conservatives’ focus is on the impact of crime on victims,” he says.

“The NDP is focused on proactively addressing harms, such as providing greater safety for victims. The Liberals want more equity . . . within the justice system. Each party brings its own priorities and agendas.”

Maia Bent, a partner at Lerners LLP in London, Ont., and president of the Ontario Trial Lawyers Association, has a list of post-election hopes. “First on my wish list is a public apology to the Supreme Court of Canada and particularly Beverley McLachlin for publicly accusing her of professional misconduct.

This is important not only as to her role in the Supreme Court but as deputy governor general and to correct any erosion in public confidence that may have resulted from it,” she says.

“This ties into ceasing the defence of unconstitutional legislation on which millions of taxpayers’ money has been spent. The government should either get better legal advice or listen to the advice they’re getting regarding the constitutionality of the legislation they are proposing.”

Bent’s next wish is increased diversity on the bench. “We are falling behind in the appointment of non-white and female judges. Peter MacKay says that no women applied, but there is no way to check that. Those applications are not tracked in any public way. There should be a tracking mechanism and the process should be more transparent.”

That last concern is at the top of the wish list of Anthony Moustacalis, president of the Criminal Lawyers’ Association, and even ranks ahead of giving discretion back to judges on mandatory minimum sentences.

“I bet that surprises people, but if you don’t have good judges, you’ve got nothing,” he says.

“We need an independent selection process for federal judges and a peer review process to eliminate incompetent judges. Judges can be removed for certain bad behaviour but not for incompetence. We want to maintain the highest judicial standards.”

He points out that his election dream of an independent process for judicial selection and removal costs no money but requires political will.

When it comes to victims, Moustacalis calls for better funding of the justice system generally. “This includes proper federal funding of legal aid and direct funding of victims’ compensation. We also need to simplify the Criminal Code and make it accessible and fair to the general population. Let’s remove the politics from criminal law. For example, the criminalization of marijuana and other drugs has to be changed to more of a social/medical problem and less of a legal problem.”

Moustacalis notes the NDP plans to have a commission of experts review potential reforms to criminal law while the Liberals are promising to decriminalize marijuana. “The Conservatives have maintained their tough-on-crime agenda, which doesn’t address proper funding of victims’ services, which you would think would fit with that.”

Scher’s greatest concern is the government’s response to the Supreme Court of Canada decision in Carter v. Canada (Attorney General) that decriminalized physician-assisted suicide. “I’m very concerned that there needs to be a strong and corrective response that provides a comprehensive, clear, and effective set of safeguards that are equitable across the country — a level of national standards. They might include a requirement that someone be terminally ill in order to access assistance. There might be a requirement for judicial approval and oversight.”

He notes governments have convened panels to study the decision but that the federal panel is on hold pending the election. “It’s very important that there be a strong federal response and presence,” he says.

Scher is also hoping for oversight requirements in relation to new anti-terrorism laws. “We need to ensure judicial and parliamentary oversight, especially with warrants and acting on information relevant to anti-terrorism legislation. Any new powers need to be constrained by a multiparty committee overseeing intelligence and security.”

Scher notes some people are seeing the election as being about change. “The leaders appear committed to a regime of change. I am intrigued by [NDP Leader Tom] Mulcair’s focus on improving and increasing shelters for victims of crime. I am encouraged that the truth and reconciliation recommendations will be revisited and implemented and that there will be a parliamentary committee on missing and killed aboriginal women to bring equity and redress to that terrible area.”

In Ottawa, it’s not just the lawyers who have an interest in legal matters. A consortium of architectural institutes and societies and private architects have launched a lawsuit that aims to stop the building of a memorial to victims of communism on the proposed site of the Federal Court. One of the plaintiffs, architect Barry Padolsky, says the lawsuit has brought an agreement to wait until after the election.

“Representatives of the NDP and the Liberals have promised to reconsider the site if they are granted the power to do so. If the Conservative government is re-elected, I expect they will pursue trying to build the memorial and we will reinvigorate the lawsuit.”

Like many, Moustacalis is looking forward to an interesting election. “With our system being first past the post rather than proportional representation, one never knows where the chips will fall.”   

  • Lawyer

    Rich Gabruch
    and... this just in... some lawyers believe a Conservative government is the best thing for this country...
  • Citizen

    Leif Harmsen
    "With our system being first past the post rather than proportional representation"

    "With our system being disproportional misrepresentation rather than proportional representation" is the important distinction. Abolishing FPTP will achieve nothing without ensuring it is replaced by some form of PR. FPTP and AV (JT's disproportional ranked ballots) are just two of many undemocratic single-winner electoral systems.

    Quite right, who gets which seats has more to do with chance than it does with how the electorate votes when our voting system is so unresponsive (disproportional) to how we vote.

    In fact, were truth to prevail, it would be clear to all that anything short of PR denies each and every Canadian our Charter Right to fair elections. Disproportional Misrepresentation such as FPTP and AV are not just unpredictable, they're also unconstitutional.
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