When can regulators
restrict the free speech
of lawyers?
CRISTIN SCHMITZ OTTAWA
May a lawyer privately tell off
a judge who has disparaged that
lawyer in open court? Is it permissible for the defence to try to
ferret out a police informant’s
secret identity? Can an administrative tribunal hear a complaint
already decided by another tribunal? When may local courts
assume jurisdiction over defamation on the Internet?
These are some of the novel
questions facing the Supreme
Court of Canada in a winter ses-
sion packed with interesting
issues, including: the nature of
the Crown’s fiduciary duty in
non-aboriginal cases; foresee-
ability in historic environmental
contamination cases; the exist-
ence of an aboriginal right to
commercially fish; the new con-
tours of the “real and substan-
tial connection” test in private
international law; the ambit of
the artistic merit defence in
child pornography cases; and
the application of the dreaded
general anti-avoidance tax rule
to a “series of transactions.”
The top court will hear 23 cases
from Jan. 18 to March 24, includ-
ing nine criminal appeals (six as-
of-right). (See story at right on
winter docket highlights).
One appeal sure to interest all
lawyers who have ever felt that a
judge overstepped the bounds of
civility in the courtroom—or
judges who feel a lawyer has
done likewise — is Doré v. Bernard, to be argued Jan. 26.
The appeal, filed by a senior
Montreal criminal lawyer who
was suspended from practice
for 21 days by the Barreau du
Quebec for privately writing a
scathing and disparaging personal letter to a judge after the
judge disparaged him in open
court, asks what professional
constraints may be put on a
lawyer’s s. 2(b) Charter-guaran-teed freedom of expression, in
particular outside the courtroom.
The appellant’s counsel,
Montreal’s Sophie Dormeau,
told The Lawyers Weekly that
the current parameters of a lawyer’s freedom of expression to
criticize a judge are unclear and
contradictory.
“The reasons of the Quebec
Court of Appeal in the Doré v.
Bernard case can lead one to
believe that any criticism from a
lawyer about a judge, notwith-
standing the factual background
in which the opinion was
expressed, is now potentially
subject to disciplinary action by
the Syndic of the Bar,” she
remarked.
“Lawyers occupy
a special role in
society, so they have
obligations that are
greater than those
any citizen may have.
Highlights of the SCC’s winter session — By Cristin Schmitz
THESE ARE some of the highlights of the Supreme Court’s
winter session:
Richard v. Time Inc. (Jan. 18):
Is it misleading advertising for
a magazine to send out a letter
entitled “Official Sweepstakes
Notification” which a recipient
interprets as offering to pay
them a large sum if he subscribes? The appellant thought
he would win US$833,337 if he
subscribed to Time. When no
prize was forthcoming, he sued
for violations of Quebec’s
Consumer Protection Act and was
awarded $1,000 in moral damages and $100,000 exemplary
damages. The Quebec Court of
Appeal reversed, finding that
an average consumer would
understand it was merely an
“advertising game.” Among the
issues, what is the test under
the Act for determining the
“average consumer”?
of transactions including the
share sale, resulted in misuse
and abuse within the meaning
of s. 245( 4) of the Act? Were
they wrong to find that the
share sale was an “avoidance
transaction” under s. 245(3)?
Barros v. R. (Jan. 25): This
case asks whether the common
law protection shielding the
identity of confidential police
informants in court precludes
the defence from seeking to
discover, via lawful investigative means, an informant’s
identity. For example, defence
counsel might want to seek out
an informer to ascertain:
whether he or she is in fact an
agent of the state; a material
witness; a fictional source fabricated for illegal purposes; or
whether there is evidence of a
Charter breach.
B.C. Workers’ Compensation
Board v. Figliola (March 16): Is it
an abuse of process — or not — for
the B.C. Human Rights Tribunal
to hear the respondent workers’
complaint that the chronic pain
policy of the Workers’ Compensation Board (WCB) is discriminatory when the WCB’s
Review Division has already held
that the policy is not discriminatory? What standard of review is
applicable to one tribunal’s decision to hear a complaint already
dealt with by another tribunal?
Club Resorts Ltd. v. Charron and
Van Breda (March 21): These
companion private international
law cases ask whether the law of
assumed jurisdiction in the common law provinces should be
harmonized by adopting the
Ontario Court of Appeal’s reworked test in Muscutt v. Cour-celles [2002] O.J. No. 2128.
Copthorne Holdings Ltd. v. R.
(Jan. 21): This far-reaching case
gives the court another chance
to elaborate on the general anti-avoidance rule (GAAR) in s. 245
of the Income Tax Act. The
appellant was assessed almost
$9 million in tax, plus a 10 per
cent penalty, in connection with
the 1996 redemption of preferred shares in its capital. Did
the courts below err by finding
that the share sale, or the series
Information and Privacy Commissioner v. Alberta Teachers’
Association (Feb. 16): On judicial review, the Alberta courts
quashed an adjudicator’s decision in favour of the privacy
commissioner on the basis
that the commissioner lost
jurisdiction for failing to comply with the time lines in s.
59( 5) of the Personal Information Protection Act. What consequences should flow when a
tribunal breaches a statutorily
imposed time limit?
Breedon v. Black (March 22):
Should Canadian courts assume
jurisdiction over libel suits for
allegedly defamatory statements
posted on foreign websites that
are downloaded in Canada?
Ontario’s courts agreed that ex-newspaper magnate Conrad
Black could sue in the province
for allegedly defamatory U.S.
press releases and reports which
were downloaded, read and
republished in Ontario.
able [to, and]
they are in a
prime position
to, challenge
the established
order, to bring
the attention of
the public to
issues which
can arise
within the justice system.”
The case arose in 2001 when
criminal lawyer Gilles Doré
appeared before Quebec
Superior Court Justice Jean-
Guy Boilard at a bail hearing.
As part of the judge’s inappro-
priate behaviour and attitude
that were later excoriated by a
disciplinary subcommittee of
the Canadian Judicial Council
(CJC), Justice Boilard told the
barrister his argument was
completely ridiculous and full
of overblown rhetoric and
hyperbole. When the lawyer
complained to the judge that he
hadn’t been given an opportun-
ity to make his arguments, Jus-
tice Boilard replied that “an
insolent lawyer is rarely of use
to his client (translation).”
Outraged, Doré held his fire
in court but hours later pri-
vately fired off a blistering let-
ter to Justice Boilard, noting in
his postscript (translation) “as
this letter is purely personal, I
see no need to distribute it (see
an unofficial translation of the
full letter as set out in the Que-
bec Court of Appeal’s reasons
on p. 8).
Justice Boilard conveyed
Doré’s letter to his chief justice,
who in turn forwarded the letter
to the Barreau du Quebec. Doré
was suspended from practice
for 21 days for his “disrespect-
ful” letter to Justice Boilard,
which the Barreau said violated
the code of ethics by using “lan-
guage that did not bear the
stamp of objectivity, modera-
tion or dignity.”
“Sir, I have just left the
Court,” Doré’s letter began. “Just
a few minutes ago, as you cow-
ardly hid behind your status,
you made comments about me
that were both unjust and
unjustified, scattering them
here and there in a decision the
good faith of which will most
likely be argued before our
Court of Appeal. Since you
marched out quickly and
refused to hear me, I have
chosen to write a letter as an
entirely personal response to
the equally personal remarks
you permitted yourself to make
about me. This letter, therefore,
is from man to man and is out-
side the ambit of my profession
and your functions.”
Continued Doré: “if no one
has ever told you the following,
then it is high time someone
See SCC Page 8
