Crime bill
doesn’t play
DONALEE MOULTON
The federal government calls
the most recent iteration of its
omnibus crime bill the Safe
Streets and Communities Act —
“comprehensive legislation that
will target crime and terrorism
and provide support and protec-
tion to victims of crime.”
Lawyers call it something else.
“This bill represents a serious
vote of non-confidence in our
judiciary. This lack of confidence
is undeserved,” said Andras
Schreck, a partner with Schreck
Presser LLP Barristers in Toronto.
He points to the bill’s mandatory
sentencing requirements: “Can-
adian judges have for the most
part approached the issue of sen-
tencing in a principled manner
that balances the variety of fac-
tors that must be considered in
arriving at a just sentence.”
The proposed legislation,
known as Bill C- 10, introduces
minimum prison sentences for a
wide variety of offences includ-
ing mandatory penalties for
seven existing offences related to
child exploitation and for ser-
ious drug offences carried out
for organized crime purposes or
targeting youth. These legislated
requirements will deprive trial
judges of the discretion to
impose a sentence that reflects
the particular circumstances
before the court, said Schreck, a
vice-president of the Ontario
Criminal Lawyers’ Association.
“In many cases, the result will be
an unjust sentence.”
The approach, he said, goes
against the country’s judicial
grain. “Canadian sentencing law
has historically been based on
the premise that a just sentence
is one that reflects the gravity of
the particular offence and the
moral culpability of the particu-
lar offender. Given that most
offences can be committed in a
wide variety of circumstances
by a variety of individuals for a
variety of reasons, the courts
have long recognized that a
one-size-fits-all approach to
sentencing is inappropriate.
Quebec Premier Jean Charest responds to Opposition questions over Bill C- 10 to amend the Criminal Code at the
legislature in Quebec City November 22.
an associate with Lenczner Slaght
Royce Smith Griffin LLP Barris-
ters in Toronto. “There is a lot to
be concerned about.”
First and foremost perhaps
are the charter implications of
this new section of Bill C- 10. The
federal government may have
stepped outside its legal purview
by assuming authority that
actually belongs to the provinces.
“It may not be constitutional,”
Quayat said, adding that creating
a private cause of action—the
Act’s main purpose — is generally
reserved for the provinces.
The terrorism provisions may
also be unnecessary, he added.
“From a civil law perspective, it’s
no different than someone driving
a car into you. It’s a tort. The idea
we need to create a new layer of
civil rights is naïve.”
Under the legislation, victims
would be able to launch a lawsuit in
a Canadian court against an indi-
vidual or organization that carried
out a terrorist attack, or against
supporters of terrorism, including a
foreign state that the federal gov-
ernment has listed as providing
support to terrorist entities.
The existence of such a list
opens up interesting political
and legal challenges. “In order to
sue another country, the govern-
ment has to identify the state on
its list. Who are you going to
list?” asked Quayat, former law
clerk to Chief Justice Allan Lutfy
of the Federal Court.
A year of boutiques and behemoths
The legal industry felt shock-waves in 2010 when Ogilvy
Renault joined international legal
conglomerate Norton Rose to
become Norton Rose OR, and the
rumblings continued into 2011 as
Norton Rose OR announced its
intention to absorb another Canadian firm, MacLeod Dixon, in a
deal set to close on Jan. 1, 2012.
Indeed, the legal landscape
has slowly transformed over the
years to the point where the
legendary Seven Sisters are now
overshadowed in overall size by
Gowling Lafleur Henderson
LLP and Borden Ladner Gervais
LLP, who have both found significant opportunities outside of
Toronto. Meanwhile, others,
including Gowlings, have also
set their sights beyond Canada.
“The long-term trend in the
legal market is towards stratification among law firms,” said
Jordan Furlong, a partner with
Edge International Consulting
OMAR
HA-REDEYE
in Ottawa. “Some of the big law
firms are going to end up truly
huge and global. But at the same
time, I think we’ll see a prolif-
eration of niche solo practices
and small boutiques relying on
systems and technology to con-
trol costs.”
R. Scott Jolliffe, chairman and
chief executive officer at Gowl-
ings, thinks that the national
market is already saturated for
most large firms. He sees some
potential in Saskatchewan, Mani-
toba and the Maritimes, but
believes that the real prospects
are now international.
Gowlings opened offices in
Moscow as early as 1992 and in
London in 2008, but further
areas of growth encouraged it to
open its doors in Beijing in 2011.
Its preference is a “Made in Can-
ada” or “Made in Gowlings”
approach, rather than merging
with others already in China, Jol-
liffe said.
