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Editorial: To what extent should police powers trump individual rights?

One can easily imagine that the three members of the Ontario Court of Appeal who wrote the R. v. Clayton ruling would feel they’d been given a bit of a slap in the face by Justice Rosalie Abella and the Supreme Court of Canada. In a fairly stinging rejection of the appeal ruling excluding handgun evidence obtained during an informal roadblock, the top court has listed toward giving more power to police over protecting individuals’ civil liberties.

In excluding the evidence, the Ontario court said, “There was no suggestion that anyone was in imminent danger.” It said the police chose to ignore significant information from the 911 call that led to the roadblock when they stopped two black men in a Jaguar from leaving a strip club parking lot.

But the Supreme Court said the police were justified under common law powers to set up a roadblock. The 911 call provided “reasonable grounds” to believe there were several handguns in a public place which posed a “genuine risk” to the public. The test for determining whether such an exercise of police power is justified is whether the roadblock is “reasonably necessary,” wrote Abella.

Essentially, the top court expanded police powers where guns may be involved. As Justice Ian Binnie in his concurring reasons noted, the common law must adapt to the evolution of society and as such the balance is tipping away from civil liberties as gun problems “infect” society.

It seems that much in the same way civil liberties seem to be violable in the name of the “war on terror,” they’re going the same way in a similar war on guns. But as commentators in our page 1 story note, the concern is where the line gets drawn in these kinds of searches. In this case, the officers stopped the men - whose car did not match the description of the 911 call - because they were also black and leaving the parking lot at the time when the gun call was received. No crime had yet been committed and the two were not identified by the 911 caller.

But what if those men didn’t have any guns; would the court still have ruled that the search was justified? Will the same reasons stand up where knives, box cutters, even baseball bats are concerned?

As law professor Tim Quigley warns, an “end justifies the means” philosophy to police powers will likely result in improper searches that are never made public because a weapon was not found. And that will make it hard to guard against them.

The biggest problem with the Supreme Court’s ruling is not that it allowed this evidence, but rather that it hasn’t set any guidance for such searches in the future. The court will be looking at another high-profile case, R. v. Grant, on the constitutionality of a search that turned up a concealed handgun. In that case, the evidence/gun gathered from an 18-year-old black man who was walking “suspiciously” was allowed by the Ontario Court of Appeal because it said police did not overstep the bounds of legitimate questioning. Will the Supreme Court somehow bring both of the cases together and create constitutionally viable guidelines for police searches relating to guns, or will the validity of such searches continue to be decided on a case-by-case basis?

Either way, Parliament should be stepping in and tackling to what extent the police should have search powers, particularly at roadblocks in circumstances where crimes have yet to be committed.
- Gail J. Cohen
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High court sends cities strong message on open meetings

Two weeks ago, the Supreme Court of Canada sent municipalities across the country a strong message that they must comply with applicable open meeting provisions and refrain from holding unauthorized closed sessions.
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McMurtry notable among 28 chief justices

Roy McMurtry retired this spring after 11 years as chief justice of Ontario. The acclaim and the tributes that have accompanied his retirement suggest many would place him among the really distinguished chief justices of Ontario, at least of recent times. Which raises the question: who else might rate among the memorable chief justices of Ontario?

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Debating merits of court-appointed experts

The rules of expert evidence are on the table and being scrutinized carefully and thoughtfully.

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Bits & Bytes: Alternatives to costly cell phones while travelling

On a recent vacation in the United States, rather than pay the relatively high roaming rates charged by Canadian cellular providers, I decided to explore alternatives.

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Contentious human rights law brings changes

Both complainants and respondents are set to see some significant changes to the way human rights complaints are managed in Ontario, following the passing of Bill 107 into law last month. However, while some are content with the provisions of the new legislation, others remain concerned with the new structure and with the way the process was handled.

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Crown delays, dodgy witnesses sink prosecution

An unprecedented prosecution that spanned 16 years, cost taxpayers more than $30 million, and eventually hung on questionable evidence from the aging memory of an unscrupulous paid informant came to a close last week when Superior Court Justice Colin McKinnon stayed proceedings in the first-degree murder retrial of Richard Trudel and James Sauvé.

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Judge raps lawyers for flouting rules

A Federal Court of Appeal judge has cautioned counsel on both sides in a case for failing "to live up to the letter and spirit of the Federal Courts Rules."

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SCC focuses on remedy in CPP same-sex case

The Supreme Court of Canada recently heard oral arguments in Hislop v. Canada, a class action challenging sections of the Modernization of Benefits and Obligations Act (2000). This case raises important questions as to the responsibilities of courts and legislatures to remedy longstanding Charter infractions.

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Editorial: Do lawyers have a sweet spot?

WARNING: The following editorial may have information that excites and inflames, with graphic details about hookers, swingers, skin(s), and preferred lies, thus might not be suitable for some lawyers to read (since they’ll be too distracted to work on hot briefs).

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Editorial - The time has come for civil justice reform

The Ontario government has made it official that it will be looking into ways to reform the civil justice system in this province. And while not broken, the system is not serving Ontarians as it should. Many, particularly people with low and moderate incomes, have given up on the courts as a way to help them solve disputes. This even though a 2005 Department of Justice study by Ab Currie shows that almost half of Canadians surveyed over three years experienced "justiciable" problems.

"Many of the problems experienced by respondents were the types that could threaten the security and well being of individuals and their families," notes Currie's study. Most cases, it says, are "little injustices" that wouldn't necessarily be resolved by the courts but would have a better chance of easy resolution if those involved were better informed about their legal rights and obligations.There are, of course, large and small civil litigation cases involving mostly corporate litigants. There are different problems on both ends of the scale, many of which have been illuminated in a number of studies and research on civil justice systems across Canada and throughout the world, including a major review from the Canadian Bar Association in 1996.

There's no doubt that changes need to be made within the system. The Advocates' Society's civil justice reform report from earlier this year has some excellent ideas culled from other jurisdictions:

-   increasing Small Claims Court limits to $25,000 from the current $10,000

-    introducing self-help information centres such as the one at the B.C. Supreme Court in Vancouver that lets users learn about the court system and court procedures, get legal information, locate and fill out court forms, find out about free legal advice, and find alternatives to court; and

-    increasing the jurisdiction for cases under the simplified rules procedure to $100,000 from the current $50,000.

At the civil justice reform conference in Montreal a couple of months ago, Australian Justice Geoffrey L. Davies noted that encouraging parties to resolve cases earlier really speeds up the process. Don't focus on a trial, focus on resolution, he said, and part of that, in his state, is a statutory requirement for early mutual disclosure in civil cases.In Quebec, major changes to the civil justice system were put into place in 2002. One of those is to encourage more oral presentation, with strict guidelines, instead of relying on ever-burgeoning written submissions.These are just a few items former associate chief justice Coulter Osborne can look at in his recommendations to the Ontario government for improvements to the civil justice system here. Many don't require money being spent; it's often a case of changing the culture of both the bar and bench to focus on swift resolution.

 Such a cultural shift may not be easy but it is necessary and will make the system better for everyone, particularly those who should be served by it, the public.

— Gail J. Cohen 

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Editorial - The lawyers are sad

Yes, the lawyers are sad, but not as sad as pharmacists. At least that's according to a poll released last week by the City & Guilds of London Institute, a leading provider of vocational qualifications in the United Kingdom.
Lawyers came in 27th out of 28 occupations in the City & Guilds' Happiness Index with a score of 7.52 out of 10. The bottom half of the index is strongly populated by professionals, while the happiest workers are beauticians, clergy, florists, and hairdressers. The main reason for all this happiness is the chance to meet new people all the time while on the job, say the pollsters.
Although only 50 lawyers were part of the 1,301 workers surveyed last month, 49 per cent of them cited stress as a reason for their unhappiness. Twenty-eight per cent said they also felt underpaid. Seventeen per cent felt unchallenged and undervalued, and 11 per cent felt they were being undermined at work.
It's interesting to note that more than a quarter of the lawyers (well, in this case only 14 people) felt underpaid. The good news, for lawyers in Canada anyway, is that salaries are expected to rise by five per cent in the next year. That's according to a Robert Half Legal survey released earlier this year. In addition, it seems legal aid in Ontario will be getting a $13-million boost, which many lawyers are probably hoping will translate into either higher tariffs or more coverage for the work they do.
Perhaps the happiest of all will be provincial Crowns, who, according to a memorandum of settlement with the province, will get raises ranging from 45 to 60 per cent (if you include performance and other bonuses) over the next four and half years. Not too shabby, considering teachers only got about a 10-per-cent increase from the province. I imagine the Crowns will ratify the agreement this week; it'd be hard to understand why anyone would decline what some might consider such a generous settlement.
Beyond the niggly salary and stress issues, though, lawyers tied for sixth place (with butchers) on the City and Guilds' work-life balance poll. On that list, bankers brought up the rear with the worst work-life balance. So it's good to see that even if practitioners are stressed out at work, they do seem to make the best of their non-work time so their lives aren't totally miserable.
And at least this time lawyers "chose" to be at the bottom of a list. Usually it's the general public who stick them at the losing end of the most and least respected professions list.
Gail J. Cohen
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