EVICTION
Community safety order
decision to break ground
G20 ASSAULT TRIAL
Lawyer vows case
will ‘embarrass’
Lawyers see danger in C-26
CRISTIN SCHMITZ OTTAWA

The contention that a witness should be permitted to veil her face on religious grounds, partly because facial cues are generally unreliable, was probed vigorously at a recent Supreme Court hearing.

“If you asked 100 experi-
enced counsel whether it is of
importance to them, in the con-
duct of their defence, to see the
face of the complainant in any
case—intuitively, what do you
think they’d say?” asked Justice
Morris Fish.

“They’d say that it is,” conceded David Butt, who acknowledged that his argument challenges the “great weight” the legal profession puts on assessing a witness’s demeanour.

The Toronto litigator came to
the high court December 8 to
rattle a sacred cow of the Can-
adian justice system: that trial
judges and juries are able to
assess credibility, at least partly,
based on seeing the witness.

Butt represents appellant N.S., a Muslim sexual assault complainant who claims that the Charter’s guarantees of religious freedom and equality entitle her to wear her niqab (a veil that covers her face, except her eyes) while she testifies against her uncle and his co-accused.

N.S. was ordered to remove her niqab at the preliminary inquiry on the basis that defence counsel needed to see her face in order to cross-examine her properly and vindicate the accused’s Charter right to make full answer and defence.

The seven-judge Supreme
Court Bench reserved judgment
this month (Justices Michael
Moldaver and Andromache
See Veil Page 23
THE LAWYERS WEEKLY
Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002
PAGE 11
PAGE 16
HOLIDAY
CRISTIN SCHMITZ OTTAWA

“This legislation expands cit-
izen’s arrest in a way that makes
private law enforcement pow-
ers greater,” Russomanno
asserted. “And when we look at
the numbers of arrests being
affected by private law enforce-
ment, you can see that it’s
undergoing a massive increase,
and this simply wasn’t contem-
plated by Parliament.”
Russomanno suggested “the
elephant in the room” is
whether Charter protections
apply to persons subjected to
citizen’s arrests. Most appellate
case law says “no” (although the
Supreme Court hasn’t settled
the question).
Absent constitutional con-
straints, if private security forces
are to be given broader arrest
powers, there must be enhanced
oversight and regulation, Rus-
somanno argued.
The Canadian Bar Associa-
tion will oppose Bill C-26’s
expansion of citizen’s arrest, said
criminal lawyer Eric Gottardi of
Vancouver’s Peck and Company.
“We’re of the view that the law
on citizen’s arrest, as it currently
exists, is fine, and this is a kind
of a worrisome expansion of the
power of the individual citizen to
potentially get themselves into
dangerous situations,” he said.
Gottardi warned that the bill
opens “a real can of worms” with
respect to private security forces,
which don’t get the same train-
ing or oversight as peace officers.
“I think it’s going to be hard,
on any view, to cast [private

The next issue of The
Lawyers Weekly will be
published Jan. 13, 2012

Proposed reforms to beef up the power of citizen’s arrest could expand the Charter-free zone for the burgeoning commercial security industry, lawyers warn.

See C-26 Page 23

THE LAWYERS WEEKLY

At press time, the Conservative government’s Citizen’s Arrest and Self-defence Act (Bill C-26) had been enthusiastically endorsed in principle by the NDP and Liberals during second reading debate in the Commons this month.

PAGE 20
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
SOLO
However, lawyers’ groups
contend the reforms could have
consequences not yet fully con-
sidered by MPs.
Timing may not be better
to start your own firm
PAGE 21

On behalf of the Criminal Lawyers’ Association (CLA), defence counsel Leo Russomanno of Ottawa’s Webber Schroeder Goldstein Abergel called for public debate on the proposed expansion of the power of citizen’s arrest, which he predicted will be used most often by the fast-grow-ing commercial security industry, rather than by lone shopkeepers, such as Toronto grocer David Chen, whose arrest for apprehending a fleeing shoplifter inspired the bill.