Right to
die court

Ontario Bar Association
forms taskforce
PAGE 9

action
THE LAWYERS WEEKLY Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002
ramps up

DONALEE MOULTON

The legal divide over assisted death has taken on new life thanks to two cases before the Supreme Court of British Columbia.

FOOD FIGHT

First on the docket was the Farewell Foundation’s civil suit against the Attorney General of Canada challenging s. 241 of the Criminal Code, which prohibits assisted suicide.

“We were denied private and public interest standing,” said Russel Ogden, founding director of the organization, which advocates for people to be able to die as they choose. “Madam Justice Lynn Smith said that our anonymous and ill members and the five named plaintiffs (directors) did not have a sufficient direct interest in s. 241 to advance the civil claim.

THE LAWYERS WEEKLY
CRISTIN SCHMITZ / THE LAWYERS WEEKLY
GOOD CHARACTER
Bill Robinson, president of the American Bar Association, suggests at the Canadian Bar Association Conference in
Halifax that partisan questioning of Supreme Court candidates can lead to intense controversy.
See story on page 2
The ethics of judges and mediation
CRISTIN SCHMITZ
Judicial Mediation Taskforce (see
our story on this on p. 9).
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

“The ruling clarifies that
anonymous plaintiffs are not
acceptable,” he added. “We tried
something new and it failed.”
As part of a planned update of
its ethical guidelines, the Can-
adian Judicial Council (CJC) is
poised to examine the
thorny questions of
whether, when and how
judges may appropri-
ately do court-based
mediation, The Lawyers
(they are advisory only) in 1998,
new ethical questions have
emerged, including concerns
about Canadian judges’ partici-
pation in international activities
and judges returning to the
Chief Justice Scott told The
Lawyers Weekly there remains a
fundamental unresolved question
about whether judicial mediation
risks undermining the public’s
view of the judiciary as society’s
ultimate impartial arbiters.

Good character open to
too much interpretation?

Specifically, the organization, based in New Westminster, B.C., argued that the criminal prohibition “causes unimaginable pain and suffering.”

practice of law after they
step down or retire from
the Bench.
JAMIE LASKIS

“The Farewell Foundation is well aware that stress is harmful to health. We believed that we could reduce the stress and enhance the health of our members under medical threat by helping them to remain anonymous. The court demands a different standard,” said Ogden. “We are talking now with various members who say they are prepared to be publicly identified.”

Weekly has learned.
However, no judicial
ethical issues may be
more timely or import-
ant for the administra-
tion of justice than those
currently swirling
around judges’ partici-
pation in court-based
mediation — a phenom-
enon that has taken
hold and grown, albeit
unevenly, across the country.
Click here to
see our video of

THE LAWYERS WEEKLY

Chief Justice of
Manitoba
Dick Scott

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

Justice Smith, however, did give the Farewell Foundation some room for optimism. The

See Farewell Page 23
Manitoba Chief Jus-
tice Richard Scott, the
chair of the CJC’s judi-
cial conduct committee,
revealed during an
interview that the disci-
plinary body for Can-
ada’s 1,100 federally appointed
judges is preparing to revisit,
and eventually update, its eth-
ical guidelines for judges. He
said since the council of federal
chief justices and associate chief
justices issued the “guidelines”
A leading proponent of judi-
cial mediation, Ontario Chief Jus-
tice Warren Winkler, called last
December for lawyers to debate
the issue and the Ontario Bar
Association recently recreated a
“I’m no expert in this—but
mediation done properly involves
caucusing,” Justice Scott
explained. “Caucusing [means]
you meet with the parties
independently. And the long-term
worry that I have—and I have to
tell you this worry is not shared by
all judges—is its long-term
impact on the public’s perception
of our impartiality. Judges do
things in public. Judges do things
in the presence of both parties.
Now here’s the judge [who is
doing mediation] meeting with
one group and then the other.”
Chief Justice Scott said
See Mediation Page 23
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