Legal System in Crisis - Mr. Justice Rosenberg's Thoughts.

A big Helps Law Offices kudos goes out today to the great Mr. Justice Rosenberg for pointing out the flaws in our bail system and how innocent until proven guilty has fallen by the wayside. The Globe and Mail carried their article about it today. In addressing the Criminal Lawyer's Association luncheon Friday, this judge (who has, in my opinion, consistently kept out of the spotlight but who is one of the great legal minds of our time) became the conscience of the Canadian legal system.

Mr. Justice Rosenberg should be commended for taking the contrary view in a public debate that has increasingly favoured mandatory minimum jail sentences, withholding of bail on grounds where the public might be offended if the accused is released and a hysteria over "rampant crime" - when the crime rate has actually fallen.

It's true that marginalized populations are far more represented in the prison system than anywhere else. It's a crime. Aboriginal offenders, in spite of R v. Gladue just don't get a fair shake. We need to stop ignoring that Canada, for all our first world values and peacekeeping leadership on a world stage, has two worlds: a first world realm and a third world, quietly concealed on reserves and reservations.

He also commented on Legal Aid as being "a cornerstone of the system". If only Legal Services in British Columbia were properly funded. Any legal aid funding for serious matters is done at a rate of $83.90 an hour and all funding is capped - so often when a lawyer does an application properly on legal aid they're losing money. The system as it stands rewards the lawyers that do a poor job. It's why most lawyers I know who do legal aid are picky - because, in essence, it doesn't pay the overhead. It's a way of doing probono - an honour to the profession. 83.90 an hour?? You can't get this guy:



in to fix ANYTHING for 83.90 an hour!! More than that, the services offered do NOT assist those - like first offenders - who really need it. The tariff is so underfunded that there are unrepresented litigants facing significant lifetime consequences who are not receiving the help they need. It's a crisis.

Mr. Justice Rosenberg should be commended on his moral and ethical stance on these issues. It is imperative that we stop hiding behind Conservative governments to shirk our responsibilities. Legal Aid should be a priority in government funding; bail should not be denied for a fear of an uninformed public and mandatory minimums tie up trial time that would not otherwise be spent because discretion has been removed from judges.

Congratulations, Mr. Justice Rosenberg. Thank you for a reasoned entry into a debate that should be informed and passionate.

Vaguely Misquoted, but still: point made!

The Province printed what I wrote yesterday - albeit misquotedly. The writer, Mr. Bopp, was completely sarcastic when he said "what's next?"

Oh, well. Misquotes are always happening. I'm always surprised when I'm in a courtroom and what's printed matches what happened.

The only person I've never been misquoted by is Susan Lazaruk of the Province. She wrote about me the day that Mr. Mercer was acquitted of first degree murder after spending five years in jail. I was justifiably proud that day.

Amnesty Calls for Inquiry into Canada's Policies on Afghan Detainees

Fascinating news on the human rights front: Amnesty International is claiming that Canada has been, as far back as 2002, transferring detainees over to Afghan authorities, a situation that critics say puts prisoners at risk of being tortured.


Public opinion seems to be summed up by E. Bopp in his letter to the Vancouver Province today.

Mr. Bopp in yesterday’s Province writes in regard to the “alleged cruel and inhuman treatment” of captured Taliban fighters when turned over to Afghan authorities in Kandahar: “Can extending the reach of Canada's all-purpose Charter of Rights and Freedoms to Taliban detainees be far behind?” To this, I can only answer with great fervor and conviction: “I hope not”.

The Canadian Charter of Rights and Freedoms is the greatest piece of legislation in Canadian history. It is a shield that protects the least of us from the weight of the state being brought to bear against us – keeps our homes, our conversations and our person safe from random intrusion from the government. It gives Canada, as an operating democracy, the moral weight to stand up on the world stage against tyranny, fear and fascism. Handing over detained prisoners to a government where there is no assurance that they will be treated with humanity so that we don’t have to deal with them in a just and fair manner is just wrong.

Mr. Bopp puts the words “cruel and inhuman” in quotation marks, and uses the word allegedly perhaps because he does not believe that Afghanistan’s government is torturing detainees. Amnesty International says they are. That’s good enough for me. Canada should be the first nation to step forward and say that it’s wrong – not a nation facilitating these abuses.

For the record, I am a (metaphorically) card-carrying member of the BC Civil Liberties Association and of Amnesty (oh, and of Lawyer's Rights Watch Canada, and of all sorts of other "lefty-liberal" organizations). They perform an essential function in our society - to stand up for those that society generally feels are the least of us. Without this, rights could be eroded to the point that the state becomes more powerful than the individuals or voices of opposition can be.

How Time Passes!

So much has happened since May, I can hardly explain it all.

I had my first vacation in years, heading to Portugal, Greece and London. Friends had babies, my brother got engaged, and my fabulous assistant Melina became permanent and full time. I lost my beloved granddad but when I look out the window to Woodward's, I see, rising from the ashes, the place that my grandparents worked for 50+ years. Bittersweet, how this city is changing!

Lots of changes around the office have resulted in a lot of time out of the office and in court. We've won a ton of cases! If you've seen me in the news, you'll know that we've had a lot of success with murder, fraud, and sexual assault cases, and we won a landmark case on prisoner's rights in custody at the BC Court of Appeal. As always, our success rate in Impaired Driving and Driving Prohibitions remains very high.

As time marches on, I learn a lot every day. I'm lucky for the friends and colleagues (and friend-collegues!) who keep me going.

Posts will be more frequent, I promise!

The Greatest of Us to the Least of Us: Judge Stansfield dies, age 57

It is with sadness that I write about the passing of the Honourable Judge Hugh Stansfield, Chief Justice of the Provincial Court of British Columbia. He passed away yesterday at 57 years old and leaves behind a wife and four sons, men who I hope are like their father.

Many professional colleagues will write of his fairness, his devotion to his ideals and his sense of fair play, good nature and quest to make the courts more accessible and understandable for the public. They will write about his quest to implement a downtown community court to deal with habitual offenders, a project that came to fruition this year. Many of them will write about his defence of judges and their discrection in sentencing. There is not much I can add to that, other echoing those comments.

I articled in the Kelowna area in 2003. As one of only two articling students in the region, I was often surrounded by counsel who were not interested in assisting young counsel (the converse of that, of couse, are the now-lifelong friends who did assist and guide, all of whom I'm grateful for) but the Honourable Judge Stansfield never failed to stop and talk to me. When on the bench, he was unfailingly patient and polite. Three days after my call to the bar, I was in Kelowna and he asked to speak to me in Chambers. When I arrived in Chambers, he congratulated me on my call and asked me what I planned to do. I discussed my future plans and what I was looking forward to. He listened to me.

The greatest gift that someone in a position of power or authority can bestow is respect and kindness. I hope the Honourable Judge Stansfield knew that I appreciated every minute he ever gave to me. I hope that I can always carry that standard forward to students, articling students and junior counsel.

I also hope he secretly knew that a lot of the Kelowna Registry staff called him "Judge Clooney" for his good looks, smile and affable nature. I hope it pleased him.

My thoughts and sympathies are with his family.

The Coming Aporkalypse and Second Coming of the Carbolic Smoke Ball!

All this crazy talk about the Virulent Swine Flu - the coming Aporkalypse! - has put me in mind of one of the great cases in legal history and shows us that the more things change, the more they stay the same.

Walk into any Shoppers Drug Mart or London Drugs and there are signs everywhere - a Vitamin C product has a printed poster above it - "Perfect for Fighting Off the Flu!" - a hand sanitizer - "Frequent Use reduces Chances of Getting Swine Flu!". Sure, we may know more than we did in 1891 about preventing the flu, but really, when you get down to it, the fear of disease has always been used to promote the consuming of products.

In 1891, the Carbolic Smoke Ball Company made a product called the "smoke ball". It claimed to be a cure for the flu. The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid. The tube was then inserted into the user's nose. It was squeezed at the bottom to release the gases into the nose of the user. This would cause the nose to run, and hopefully flush out the cold. (In fact, we now know that the inflammation to the nasal passages caused by the device would have probably increased susceptibility to catching influenza - but they didn't know that in 1891!).

The Company published advertisements in theLondon newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement.

“£100 (about $15, 000 today!!) reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball.

£1000 is deposited with the Alliance Bank shewing our sincerity in the matter.

During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.

One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at a cost of 5s. Address: “Carbolic Smoke Ball Company, “27, Princes Street, Hanover Square, London.”

Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used three times daily for nearly two months until she contracted the flu on January 17, 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, a lawyer.

On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and checked by the secretary. Mrs Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious

The U.K. Court of Appeal unanimously rejected the company's arguments and held that there was a fully binding contract for £100 with Mrs Carlill. Among the reasons given by the three judges were (1) that the advert was a unilateral offer to all the world (2) that satisfying conditions for using the smokeball constituted acceptance of the offer (3) that purchasing or merely using the smokeball constituted good consideration, because it was a distinct detriment incurred at the behest of the company and, furthermore, more people buying smokeballs by relying on the advert was a clear benefit to Carbolic (4) that the company's claim that £1000 was deposited at the Alliance Bank showed the serious intention to be legally bound.

If only someone would advertise a miracle product in this way today!

Credit Where Credit Is Due

One of the first things I meant to mention on the blog is that the photograph of me taken above is by Paul Couvrette, an amazing Ottawa-based photographer who has been shooting portraits of dignitaries and celebrities in Ottawa (including the Time Magazine cover of Belinda Stronach and all the Justices of the Supreme Court of Canada) for more than 20 years. I love it. Copyright stays with him, of course. I can't recommend his work highly enough. It was taken last year when I was arguing R v. R.E.M at the Supreme Court of Canada.

And a link to Paul.

He made me feel gorgeous. Thanks again, Paul and everyone at Couvrette Photography!