bob tarantino

Shutting It Down

The good folks at Canadian Lawyer - Associates magazine have published my first cover story - "Shutting It Down - You've Decided to Quit. Now What?" in the Summer 2008 issue.  A full digital version of the magazine can be accessed here.

"there are reasons to believe"

The Minister of Justice has confirmed that the next appointment to the Supreme Court of Canada will "appear at a public hearing of an ad hoc parliamentary committee, a process that was first established for the appointment of the Honourable Mr. Justice Marshall E. Rothstein in 2006."  Which means that we're still stuck with a deficient appointments process - since our elected representatives still have no meaningful input into the appointments process, as final decision-making authority rests with the Prime Minister.  One would have thought that the glories of a minority government would have laid bare the inanity of vesting so much power in the unelected office of Prime Minister (viz. that a party (the Conservatives) lacking popular mandate for majority rule can effect the appointment of justices who have the power to affect laws for decades to come) - instead, the reactionaries in the legal community and the media are still fretting over whether the judicial appointments process is about to be subjected to the horrors of politics.  To which one can only reply: if you had listened to those of us who were arguing years ago that a parliamentary vote should be required to approve a Supreme Court nomination, then you wouldn't now be facing the night terrors which apparently afflict you when you think about Stephen Harper appointing the next puisne justice.  So, hey, nice work.

Over at The Court is offered a classic of the genre, querying whether news of the appointments process is "Democracy at Play or Judicial Independence Under Siege?".  That the second part of that question is pure histrionics can be demonstrated by observing what happened the last time around: when it was announced that a parliamentary committee would be undertaking public questioning of the nominee, the Canadian Bar Association just about lost its mind.  They harrumphed that they were opposed to even the prospect of a public questioning by elected representatives because it would "undermine public confidence in judicial independence".  Four days later the CBA announced that they might be willing to accept the notion of a "public interview" but only if no elected representatives were around, and, wait for it, the CBA, presumably on the basis that they're a bunch of swell guys, got to control the process.  Once they had bothered to, you know, actually watch the public questioning, the CBA was forced to admit that "hearing was a success".  From a grave threat to the very fabric of judicial integrity in this country to a "success" in the space of seven days might not be a record of any kind, but it remains impressive nonetheless.

Has anyone learned anything?  Hardly.  Confronted with the fact that the previous session not only was a "success", but was even praised by the Chief Justice, the reactionaries are forced to fall back on the coincidentally unfalsifiable "yeah, but next time" argument.  And so it begins: the CBA President announces that he is "concerned" and advocates "caution"; at The Court the opinion is offered that it is this next hearing which will be the "true litmus test" of whether Canada's elected representatives can possibly be trusted with responsibility for deciding who makes the law (the last one presumably failing to qualify as such because it so unequivocally managed to not live up to the unrelenting doom and gloom prophesied).  Evidently, no one should dare to ask the nominee any questions which might unduly frighten, alarm, vex, confuse, concern, disquiet, perturb or otherwise excite the fragile barrister or solicitor who ends up before the ad hoc committee.  In no conceivable situation should "criticism of past judgments" be permitted - our ermine-robed betters must stand inviolate before the huddled masses.  "Canadians," gravely intones the CBA, "must be secure in the knowledge that judges decide cases after they hear the arguments presented to them, with impartiality and integrity and applying the relevant law."  Quite how asking a few questions could possibly imperil this knowledge is never explained.

Perhaps the most telling line is the following Freudian slip in The Court post: "it is not clear how subjecting Supreme Court nominees to the glow of parliamentary politics affects judicial independence".  Indeed.  And still we wait for an explanation.

Cousin of Sam

At dinner the other night, one of my fellow entertainment lawyers was kind enough to gently point out to me that I got something wrong last year when I wrote about "Son of Sam" laws in Canada.  After recovering from the shock engendered by learning that someone actually reads this blog, I thought it prudent to take the opportunity to correct myself.  As I wrote at the time:

Although it's not precisely the same situation, it's worth noting that there are no "Son of Sam" laws in effect in Canada.  The most recent attempt to pass such legislation (which would have had the effect of transferring a convicted criminal's copyright in their writings to the Crown) was, apparently, in 1998, when Liberal MP Tom Wappel tried to get a private member's bill passed the proposed legislation was rejected by a Senate committee, after having passed third reading in the House.

I got that bold part way, way wrong.  The only sense in which I was correct was that there was (and remains) no "Son of Sam" law in effect at the federal level.  In Ontario, at least, a "Son of Sam" law in indeed on the books: the Prohibiting Profiting from Recounting Crimes Act, 2002, which itself was an effort to update (and which repealed) the Victims' Right to Proceeds of Crime Act, 1994.  The act does not appear to have been the subject of a reported decision thus far.