Establishing causation of an injury can be a difficult task. The courts traditionally apply what has come to be known as the “but for” test: causation is established if the injury would not have occurred but for the event in question. The problem can be especially difficult in cases of psychiatric injury, in sorting out the specific cause of emotional damage. The Court of Appeal for Ontario was faced with such circumstances in the recent decision of Frazer v. Haukioja, 2010 ONCA 249. Mr. Frazer attended at the emergency room following a motorcycle accident complaining of pain in his right and left ankles. He was examined by Dr. Haukioja, who diagnosed a left ankle fracture. He advised Mr. Frazer that the right ankle was fine and the pain was part of the healing process. When later x-rays disclosed that Mr. Frazer had suffered a talus fracture of the right ankle, Dr. Haukioja failed to advise Mr. Frazer of the results. When Mr. Frazer discovered this at an appointment with another physician, he began suffering serious psychiatric problems as a result of his belief that he had been mistreated and lied to by Dr. Haukioja. The resulting trial resulted in a substantial judgment for damages. The issue before the Court of Appeal was whether Mr. Frazer had properly satisfied the test for causation.

“As the trial judge perceived it, the evidence of Dr. Sadavoy is vital in determining whether the ‘but for’ test has been met. Dr. Sadavoy listed three causative factors behind Mr. Frazer’s psychiatric injury:

• The difference between the true severity of the talus fracture and what was conveyed by Dr. Haukioja;
• Mr. Frazer’s belief that he was “medically mistreated” and “deliberately harmed”; and
• Mr. Frazer’s belief that he contributed to his own disability by walking on the ankle.

The first cause identified by Dr. Sadavoy is the difference between the true severity of the talus fracture and Dr. Haukioja’s representations. Dr. Haukioja failed to communicate with Mr. Frazer at all between December 6, 2001 and January 10, 2002, leaving Mr. Frazer with the understanding that there was no right-ankle fracture. On January 10, 2002, Dr. Haukioja communicated in an inadequate fashion, leaving Mr. Frazer with the understanding that the fracture was tiny, barely visible and minor. It was not until January 23, 2002 that another doctor advised Mr. Frazer of the true nature of his injury.

The evidence clearly demonstrates that but for the non-disclosure, Grant Frazer would have known the true severity of his injury and this first factor would never have come into existence.

The second cause named by Dr. Sadavoy is Mr. Frazer’s belief that he was medically mistreated and deliberately harmed. Dr. Haukioja argues that there is a legal distinction between the non-disclosure and Mr. Frazer’s interpretation of the non-disclosure. Moreover, as the trial judge found there was no evidence to support a finding that Dr. Haukioja deliberately exposed Mr. Frazer to harm, it was not open to the trial judge to find factual causation. I do not agree with this submission. Despite the trial judge’s finding that Dr. Haukioja did not act deliberately, it is sufficient that Mr. Frazer would not have formed the belief that Dr. Haukioja was deliberately causing him harm if the non-disclosure had never happened. This is all that the “but for” test requires.

The third cause identified by Dr. Sadavoy is Mr. Frazer’s belief that he contributed to his own disability by walking on the ankle. Mr. Frazer would not have experienced extra pain from weight-bearing, and thus formed the belief that he had exacerbated his injury, if Dr. Haukioja had disclosed the existence of the fracture on December 6, 2001. This is sufficient to meet the “but for” test.

The trial judge’s acceptance of Dr. Sadavoy’s evidence necessarily means that factual causation is made out on the “but for” test. The real issue in this case is whether legal causation has also been established. As I will explain, I hold that it has…

In the present case, the trial judge found at para. 227 of his reasons that, ‘[t]he psychiatric evidence establishes that the illness that Dr. Haukioja’s conduct brought about in Grant was foreseeable even if the extent of his disability was not.’ I read this as the trial judge’s following the test in Mustapha and finding that it was reasonably foreseeable that Dr. Haukioja’s conduct would cause a mental injury in a person of reasonable fortitude, even if the precise nature and extent of Mr. Frazer’s condition were not reasonably foreseeable. Thus, although the trial judge distinguished Mustapha on its facts, he actually applied the test established in that case, and did so correctly.

Justice David Brown of the Ontario Superior Court of Justice is a careful and thoughtful jurist. Since his appointment as Administrative Judge in charge of the Toronto Estates List, he has been confronted with a number of contentious and difficult cases in this highly charged area of civil litigation. With this background, a postscript Justice Brown added to his decision in Salter v. Salter, 2009 CanLII 28403 on the subject of costs in estate litigation matters is especially noteworthy:

“From a year of acting as administrative judge for the Toronto Region Estates list I have concluded that the message and implications of the McDougald Estate case are not yet fully appreciated. A view persists that estate litigation stands separate and apart from the general civil litigation regime. It does not: estates litigation is a sub-set of civil litigation. Consequently, the general costs rules for civil litigation apply equally to estates litigation – the loser pays, subject to a court’s consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The ‘loser pays’ principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estate litigation, an even greater need exists to impose the discipline of the general costs principle of ‘loser pays’ in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.”

In cases involving personal injuries in Ontario, defendants are given a virtually automatic right to have the plaintiff examined by a health practitioner. Section 105(2) of the Courts of Justice Act provides that “Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”

The rationale for the rule is that by commencing an action for damages, a claimant puts their health condition in issue and it would be unfair not to permit a defendant to challenge this with evidence from a physician of their choosing. The question has arisen whether plaintiffs should be permitted to tape the examination. It is not uncommon for the parties to have differing memories as to what was said or done during the examination, and there is concern amongst many plaintiff’s counsel about the independence of physicians who earn much of their livelihood from the conduct of defence medical examinations.

The Courts have generally taken a conservative approach to permitting defence medial examinations to be video or audiotaped, requiring a showing of bias on the part of the doctor involved before allowing a plaintiff to do so. In the decision of Adams v. Cook, 2010 ONCA 293, a five judge panel of the Ontario Court of Appeal was asked to revisit the issue. In a 3-2 decision, the Court declined to permit the routine taping of defence medical examinations, holding that there are important issues requiring study by the Civil Rules Committee and the input of interested medical and legal organizations before such a step could be considered. The majority acknowledged that there was a basis for a change in practice:

“I recognize that this court constituted as a panel of five judges is in a position to broaden the application of Bellamy and, in effect, make the recording of defence medicals a more or less routine practice. No doubt a case can be made for doing so. Arguably, the litigation landscape has changed in the 18 years since Bellamy was decided. Legitimate concerns have been expressed by the Honourable Coulter Osborne and others in respect of the role of experts in the civil litigation process. The findings and recommendations of my colleague, Justice Goudge in his report, Inquiry into Pediatric Forensic Pathology in Ontario: Report (Toronto: Ontario Ministry of the Attorney General, 2008) suggest similar concerns arise in criminal cases. Some contend that the routine recording of defence medicals and the transparency it produces would improve the discovery process. Given the electronic world in which we now live, it is perhaps at least questionable whether the presence of a small recording device is likely to have any adverse affect on a medical specialist’s examination.”

The reasons of the dissenting judges well explained the basis for permitting the routine taping of defence medical examinations unless doing so would interfere with the proper conduct of the examination:

“The Chief Justice constituted this five-judge panel specifically so that it could reconsider the principles in Bellamy. In light of the developments since Bellamy was decided 18 years ago, that reconsideration should take place.

As I have said, it appears that the majority in Bellamy concluded that a case-specific reason or bias on the part of the proposed examiner is required. In my view, any requirement for a case-specific bias on the part of a defence examiner is overly-restrictive for three reasons.

First, it is unreasonable to expect that an individual plaintiff or a plaintiff’s lawyer could amass the data necessary to support such an allegation. Such an undertaking would be inordinately difficult, expensive and time-consuming.

Second, in Bellamy at p. 593, Brooke J.A. quoted the Divisional Court’s statement that a defence orientation “is immaterial short of misconduct that should be subject to a report to the College of Physicians and Surgeons”. If it is necessary to prove a defence orientation to the level of professional misconduct, rarely would a court impose a recording condition when ordering a defence medical.

Finally, the inevitably personal nature of an attack alleging actual bias, if unsuccessful, could put the plaintiff at risk of alienating the examiner who will pronounce on his or her medical condition. The plaintiff may unnecessarily be left with an increased concern about the examiner’s ability to report objectively.”

Maintaining the integrity of the litigation process is at the heart of this dispute. As both the majority and dissenting judges acknowledged, further study on this important issue is called for. In the meantime, in my view the dissenting judges got it right.

“Innocent until proven guilty” is a golden thread running through our criminal justice system. The detention of an accused person before trial runs counter to this principle but can be justified for serious offences where the defendant presents a danger to the public or where there is a real risk that the accused may not appear for trial. Section 11(e) of the Charter of Rights and Freedoms recognizes the competing interests. It provides that “Any person charged with an offence has the right not to be denied reasonable bail without just cause.”

In order to give effect to this important constitutional right, it is necessary that bail hearings be heard on the merits in a timely manner. Lack of institutional resources, in the form of insufficient courts or judges, may prevent this from happening. In these circumstances, courts are faced with difficult decisions as to how to remedy the situation. These were the circumstances facing the Court of Appeal for Ontario in the April 19, 2010 decision in R. v. Zarinchang, 2010 ONCA 286.

Mr. Zarinchang had been arrested at the end of March, 2007 and was brought before a Justice of the Peace in the Newmarket Court for a bail hearing a day later. As a result of a combination of too many cases on the court list and insufficient judges to hear the matter, the bail hearing could not proceed on four separate hearing dates on which Mr. Zarinchang, his lawyer and proposed sureties were in attendance and ready to proceed. Close to a month after his arrest, he was ultimately detained, however before the trial judge Mr. Zarinchang brought a motion to stay the proceedings on the basis that his right to a timely bail hearing had been denied. The trial judge granted the stay, saying “When the breach of the applicant’s rights here are considered, it can only be described as serious and flagrant, those responsible have effectively ignored the impending reality and disaster that was afoot. Individuals have been allowed to languish in custody awaiting show cause hearings. The serious nature of this matter could only be remedied by the most significant remedy available, that being a stay of the charges.”

On the resulting appeal by the Crown, the Court of Appeal did not try and sugar coat the breach of constitutional rights. The Court was concerned, however, that the remedy of a stay of proceedings be reserved for those cases where continuing the proceedings would cause sufficient harm to the justice system to warrant refusing to hear the case on the merits. The Court held that the reasons of the trial judge did not disclose that he had engaged in this balancing exercise:

“In this case, it appears that the systemic failure of the bail system in York Region found by the trial judge would likely continue to affect others in the future unless some appropriate action was taken. However, the question that arises is whether continuing the prosecution against the respondent in this circumstance would create prejudice to the system of justice that warrants the use of a stay. In our view, there is an element of uncertainty about the answer to this question. That being the case, the third criterion articulated in the above cases comes into play – a court should then balance the interests served by the granting of a stay against the interest served by a trial on the merits.

Unfortunately, the reasons of the trial judge do not suggest that he undertook the balancing exercise. That failure in our view is critical and leads us to conclude that the stay must be set aside. In fairness to the trial judge, counsel on the application for a stay did not submit that he undertake such an exercise.

While it may be open to this court, in an appropriate case, to undertake the balancing exercise when none has been undertaken in the court below, we would not do so on the record before us. While we have the evidence concerning the systemic failure and the serious consequences it had for persons in custody awaiting bail in York Region, the record is unhelpful in respect of other interests that are relevant to the balancing exercise. Although the transcript of the bail hearing contains some information that would ordinarily be required for the balancing exercise, much of it was challenged by the respondent.

It may be that a stay of the charges against this respondent is an appropriate price for society to pay in order to correct a serious systemic failure in the bail system in York Region. However, it is only after a proper balancing of the appropriate interests is undertaken that a court could come to that conclusion. We observe in passing that the trial judge’s order appears to have caused the authorities in York Region to take some steps to address the problem. Counsel for the Crown in the court below conceded during the costs hearing that since the trial judge had ordered the stay of proceedings ‘we have now been running a second bail court here five days a week, which will obviously have significant benefit to other accused going forward.’”

Liability for criminal conduct requires an intent to cause harm. An important question in criminal law is the degree to which lesser states than actual knowledge can form the basis for a criminal conviction. In the decision of the Supreme Court of Canada in R. v. Briscoe, 2010 SCC 13 released today, the Court makes some important observations about the concept of wilful blindness:

“Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

. . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]

It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added.]

(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret at p. 586.)

Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, ‘deliberate ignorance’.”

On March 26, 2010, the jury in the Jordan Manners murder trial announced that they were unable to reach a verdict, prompting Justice Ian Nordheimer to declare a mistrial. The two accused will now have to be retried. Manners’ shocking murder at his Toronto high school caused great consternation and an official review of high school security procedures. The resulting trial was bound to be a high profile one. What made it especially noteworthy was the recantation by two students who had given statements to the police indicating that they had witnessed the murder. At trial, the two girls recanted their evidence, stating they had merely been repeating “rumours.” The Crown Attorney argued to the jury that the girls had a change of heart out of fear.

From their failure to agree on a verdict, it can be inferred that the jury was troubled by the evidence. So was the judge. At the conclusion of the evidence, while the jury was deliberating, Justice Nordheimer called upon the Attorney General to conduct a “full review” of the matter, presumably with a view to a possible prosecution for perjury. Given that a new trial will have to go forward with the evidence of the two girls, the Attorney General is in a difficult position. He would undoubtedly want to pay careful attention to the recommendation of a respected jurist, but the continued prosecution would not be helped by an outstanding indictment for perjury of important Crown witnesses. We have clearly not heard the last of this matter.

On June 25, 2009, I reported on the decision in Fresco v. Canadian Imperial Bank of Commerce, in which a Superior Court judge refused to certify a class action for employees of CIBC claiming overtime pay. The issue has now been revisited in a proposed class action brought by employees of Scotiabank. In his decision in Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148, Mr. Justice George Strathy of the Superior Court of Justice came to the opposite conclusion from that of his counterpart in the CIBC case, holding that systemic issues relating to the bank’s conduct made the class action a preferable procedure to that of individual claims by affected employees. The crux of Justice Strathy’s decision on the point is set out below:

“The obligation of the employer to take active measures to prevent uncompensated overtime being worked has been recognized in labour arbitrations applying the Code: see Referee Emrich in T-Line Services Ltd. v. Morin, [1977] C.L.A.D. No. 422 at para. 33-34:

It is within the control and discretion of management to establish the hours of work and to supervise the work force effectively to avoid the triggering of overtime liability. Thus it is reasonable to cast the onus upon management to take active measures to regulate the hours that employees may work. In the absence of such measures, the employer runs the risk that through oversight or omission, workers are permitted to work overtime and thereby liability to pay overtime is triggered …

Viewed from this perspective, it is arguable that Scotiabank’s policy put too much emphasis on the employer’s interests and insufficient emphasis on the interests of Class Members. It is also arguable that it failed to protect Class Members against the risk that they would be required to work uncompensated overtime because of the demands of the jobs or their superiors. There is a basis in fact in this case for common issues based on the duty of Scotiabank to establish and implement a fair process to fulfill the duties it owed to the Class in relation to their overtime work.

The resolution of the issue of whether Scotiabank had a duty to put a fair and reasonable overtime system in place, and whether its system (including the pre-approval requirement) fulfilled this duty, is one that will advance the claim of every Class Member. If a common issues judge were to find that there was such a duty and that Scotiabank’s system was unfair and unreasonable, the absence of pre-approval would not be a defence to an individual overtime claim. While Scotiabank now acknowledges, and its new policy appears to reflect, that it has an obligation to pay overtime that has been “permitted,” its pre-2008 policies and practices did not reflect this acknowledgement.

There is also a factual basis for a common issue concerning Scotiabank’s record-keeping system. Scotiabank’s position is that the Plaintiff has failed to advance any evidence of a systemic flaw in its recordkeeping practices, and because the implementation of those practices was at the branch level, any inquiry into how records were kept must be conducted branch-by-branch and cannot be resolved on a Class-wide basis. I do not accept this. It amounts to Scotiabank saying that its record keeping system was so decentralized, varied and idiosyncratic that every claim for overtime must be examined on a case-by-case basis. Scotiabank cannot point to its own record keeping failures to defeat certification. This would not be an acceptable way for a bank to manage its customers’ money and it is not an acceptable way to manage the compensation to which its employees are entitled. There is evidence that, for most of the Class Period, Scotiabank did not have an adequate system in place for the recording of regular time and overtime worked by Class Members. The staff plan was nothing more than a record, prepared in advance, of the hours that employees were scheduled to work. It was not a record of hours actually worked. While employees were supposed to check and correct their hours after the fact, Scotiabank’s policy prevented them from recording and claiming for hours that had not been pre-approved. The “Catch 22” gave them no reason to record the hours they actually worked because they would not be paid unless the overtime had been pre-approved. The bank had no consistent corporate policy or system applicable to all branches, for the tracking of overtime. It had no system of tracking time in lieu” or of ensuring it was “cashed out”. It is appropriate to ask whether this was a breach of a duty owed to the Class.

The evidence before me, therefore, provides a basis in fact to ask whether Scotiabank owed duties to the Class to put policies and procedures in place to prevent overtime from being worked without compensation and to properly record all hours of overtime worked, whether pre-approved or not. There is also a basis to ask whether those duties were breached. The answers to these common issues do not depend on individual findings that have to be made with respect to each individual claimant. The answers will significantly advance the action because if they are answered in the affirmative the absence of pre-approval in any particular case may be irrelevant and the inability of an employee to prove the quantum of overtime hours worked may not be fatal to the claim. A conclusion by the common issues judge that the bank had a duty to pay overtime that was permitted or required, and that it breached a duty to establish a system to properly record such overtime, could result in a conclusion that the failure to prove overtime hours worked is not a bar to recovery, or that the absence of records is not an impediment to proof of damages.”

In an interesting decision released March 16, 2010, Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, the Court of Appeal for Ontario had occasion to consider the importance of reasons for judgment given by an administrative tribunal. The case arose out of allegations that lawyer Gary Neinstein had sex with a client and made untoward remarks to an employee at his firm. Mr. Neinstein categorically denied the allegations, in what the Court referred to as “a classic she said he said” case. A Law Society Hearing Panel determined that the allegations had been made out and ordered that Mr. Neinstein be disbarred. An Appeal Panel allowed the appeal, but a further appeal to the Divisional Court resulted in reinstatement of the Hearing Panel’s decision and the imposition of a three month suspension. The Court of Appeal allowed the appeal and ordered a new hearing on the basis that the Hearing Panel had failed to properly explain why it accepted the evidence of the complainants over that of Mr. Neinstein given substantial conflicts on disputed points in the evidence. The decision is noteworthy for its imposition of the same requirement for adequate reasons in the administrative law context as has been set out in the criminal law context.

The other interesting aspect of the decision relates to an application to admit fresh evidence brought by Mr. Neinstein. The chairman of the Hearing Panel, George Hunter, resigned from his position as Treasurer of the Law Society several years after the hearing as a result of a complaint, which he admitted, that he had consensual sex with a client which was ongoing at the time of the hearing. Mr. Neinstein argued that this gave rise to a reasonable apprehension of bias. Mr. Justice David Doherty of the Court of Appeal described the argument made by Mr. Neinstein’s counsel and the Court’s disposition of it in the following terms:

“When asked how Mr. Hunter’s circumstances could give rise to a reasonable apprehension of bias in this matter, Mr. Greenspan offered the following scenario: a reasonable person, informed of Mr. Hunter’s misconduct, could conclude that Mr. Hunter could be disposed to deal harshly with Mr. Neinstein because he knew at the time he was presiding over Mr. Neinstein’s hearing that his own sexual misconduct might come to light and become the subject matter of a professional discipline inquiry at some future point. In treating Mr. Neinstein harshly, Mr. Hunter would hope to create an image of himself at the Law Society as someone who would not tolerate sexual misconduct in a professional context. That image, so goes the scenario painted by Mr. Greenspan, could potentially be seen by Mr. Hunter as helping him if his conduct ever became the subject matter of an investigation or a disciplinary proceeding.

The scenario painted by Mr. Greenspan cannot be dismissed as an outright impossibility. It is, however, based on speculation that goes well beyond the kinds of reasonable inferences that can be made in assessing a reasonable apprehension of bias claim. Individuals who sit in courts or tribunals and are required to make independent and impartial decisions have private lives. Some may do things in those private lives that may be improper or illegal. Those misdeeds may subsequently come to light and become the subject matter of some form of inquiry. To suggest that decision-makers could reasonably be viewed as being influenced by considerations of what might best serve their interests at some unknown future date if some past impropriety should come to light and become the subject of some form of inquiry is farfetched, and stretches the concept of a reasonable apprehension of bias beyond all practical limits. In so holding, I do not exclude the possibility that in a given case there may be evidence that elevates the speculation underlying Mr. Greenspan’s submissions to the level of legitimate inference. I do, however, reject the submission that the necessary link between Mr. Hunter’s personal misconduct and the appearance of partiality can be made on the abstract level presented on this appeal.

The proffered evidence is not capable of supporting a finding of a reasonable apprehension of bias as regards to Mr. Hunter. It is, therefore, irrelevant to these proceedings and should not be received on appeal.”

An advertisement by a group calling itself Keep America Safe has caused an uproar in the close knit ranks of the conservative legal community in the United States. Keep America Safe was started by Elizabeth Cheney, daughter of former Vice-President Dick Cheney, and commentator William Kristol. The ad takes aim at lawyers in the Obama administration Justice Department and calls their patriotism into question for legal work done on behalf of Guantanamo Bay detainees before their government service. The lawyers are referred to in the ad as “The Al Qaeda 7.”

To their great credit, a number of legal scholars and former government officials have come forward to protest these outrageous accusations. In a statement published on March 8, 2010, the authors write:

“The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honourable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honourable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.”

This important statement was signed by, among others, former senior officials in the Bush administration as well as Kenneth Starr, prosecutor in the Monica Lewinsky scandal involving Bill Clinton. Writing in the March 10, 2010 edition of the Wall Street Journal, former Bush Attorney General Michael Mukasey also joined the call:

“It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility – whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It’s also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client’s views or behavior.

If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all.”

In the most recent edition of the Criminal Lawyers Association Newsletter, there is a reprint of the speech given by Mr. Justice Marc Rosenberg of the Ontario Court of Appeal on his receipt of the prestigious Martin Criminal Justice Award. Justice Rosenberg was a distinguished member of the criminal defence bar before his appointment to the Court in 1995. The award, named after legendary criminal lawyer and appellate court judge G. Arthur Martin, is the highest expression of esteem the Association can give.

In his speech, Mr. Justice Rosenberg praised the criminal defence bar for their essential role in safeguarding constitutional rights and the right to a fair trial. Those in attendance however could not have missed Justice Rosenberg’s reference to comments made by his colleague on the Court, Mr. Justice Michael Moldaver, himself a distinguished criminal defence lawyer while in private practice. Speaking before the Association in 2005, Justice Moldaver had caused a firestorm when he voiced complaints about the ever increasing length of criminal trials and the number of motions brought by defence lawyers under the Charter of Rights. The suggestion that unmeritorious motions were being brought to increase legal fees or squander precious legal aid funds hit a raw nerve. While Justice Rosenberg did not refer directly to Justice Moldaver’s views, some of the comments he made were aimed in that direction:

“When complaints are voiced about Charter motions making trials longer and overly complex, we must all step back and think about the broader context in which those Charter applications are being brought. No doubt, there are some Charter motions that should have been left on the cutting room floor. But we cannot lose sight of the fact that there is no one else out there whose job, day in and day out, in every case, is to ensure that the state is held to account, and to abide by the fundamental rules and the supreme laws that we want our society to be guided by.”

There is no doubt that co-operation between the participants in the criminal justice system and the exercise of a firm hand by trial judges, will speed up the trial process and benefit the administration of justice. Justices Moldaver and Rosenberg would undoubtedly agree on the point. This extra-judicial debate between senior colleagues of a Canadian appellate court, however, is exceedingly rare.