Recent news stories have
reported that the government of
Iran was on the verge of adopting legislation prescribing a list
of acceptable hairstyles for men.
Ponytails and spikes, among
other things, would be banned.
The widespread ridicule that followed has apparently caused the
Iranian government to pause for
Nevertheless, Iranians have
been subject to grooming codes
and dress codes for decades. This
summer, Iranian police have
reportedly been cracking down
and arresting women for such
heinous offences as wearing too
much lipstick or sporting suntans. Barber shops have been
ordered by police not to pluck
men’s eyebrows. And of course,
there is the hijab, mandatory
attire for women since 1979.
Do the people of Iran enjoy
liberty? Most Canadians, upon
hearing of these bizarre, intrusive rules, would respond with a
resounding “No!” Such regimentation, enforced by law,
spells full-fledged authoritarianism to us—the very antithesis of liberty.
But how does our law com-
pare? The Canadian Charter of
Rights and Freedoms appears to
provide a good foundation for
liberty, enshrining it as a right in
s. 7. Section 1 then warns that if
the state wishes to limit that
right, it must establish that its
limitation is both reasonable
and “demonstrably justified in a
free and democratic society.”
enough. But something pecu-
liar happened when this simple
framework for safeguarding
liberty started coming under
the scrutiny of our courts. Mys-
teriously, the concept of “lib-
erty” came to be eviscerated,
with the courts chucking out
many activities that the average
person would probably expect
liberty to include.
sions that s. 1 requires of them
as to when such activities can
legitimately be restricted in a
free society, the courts have
often just chickened out.
They’ve simply defined the targeted activities out of the realm
of liberty. If smoking pot for
kicks is not part of liberty, the
law prohibiting it obviously
“Why should ‘liberty’ in the Charter be interpreted
differently from ‘liberty’ in the dictionary? The
answer seems to be that the courts hate making
decisions under s. 1, so they try to prevent cases
from ever reaching that stage.
Why should “liberty” in the
Charter be interpreted differently from “liberty” in the dictionary? The answer seems to be
that the courts hate making
decisions under s. 1, so they try
to prevent cases from ever reaching that stage.
Over the years, litigants have
come to court thinking that liberty would encompass such
things as transacting business at
whatever time of day one
chooses, engaging in the medical
profession after being licensed
to do so, and smoking marijuana
for recreational purposes in the
privacy of one’s home.
Rather than making the deci-
can’t abrogate liberty. A little
the tough decisions vanish.
Codes of conduct: tackle the tough issues
Codes of professional conduct
are the constitutions for the legal
profession. They set out the
boundaries to lawyers’ exercise of
power in their relationships with
their clients, their colleagues, the
courts and members of the public. But like constitutions, codes
of conduct reflect the ethos of the
profession and serve an educational function, inculcating new
members of the profession and
radiating out into the general
public. Codes of conduct then are
powerful symbols of the legal
profession. So what are the
equivalents of ss. 91 and 92 and
“POGG” in our codes of conduct?
Alice Woolley has recently
offered 11 propositions for consideration of what codes of conduct should do (“Codes of conduct: we have to get them right to
be effective,” The Lawyers Weekly,
July 9). Privately, I chastised my
good friend Professor Woolley for
KEVIN FRAYER / THE CANADIAN PRESS
Ken Murray’s (pictured above) handling of his client Paul Bernardo’s
incriminating videotapes raised numerous questions about a lawyer’s
ethical duties. Codes of conduct have yet to address these questions.
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To benefit the Canadian Centre for Diversity,
offering an unbalanced “ 11” tips
rather than the even “ 10” which
might have alluded to the Decalogue (or perhaps a top 10 list).
So, at the risk of being hypocritical, let me propose one addition to Woolley’s list of 11.
Codes of professional con-
duct should tackle the tough
issues in the legal profession,
those that are important to the
public, to the profession and to
its members. On this point, cur-
rent codes of conduct are lack-
ing in key areas.