Law Times

November 13, 2000

Train AGs in Rudimentary Law

by Rob Martin
Commentary - Law Times

Having reflected long and hard on the matter, I came to believe a number of years ago that Marion Boyd, sometime attorney general in the "Now Defunct Party" government of Ontario, was the worst attorney general in Ontario's history. But the incumbent, James Flaherty, is now giving Boyd a serious run for her money.

Neither Boyd nor Flaherty appears to have grasped the constitutional significance of the office of attorney general. The office is a delicate one. The attorney general should attempt to behave with modesty and circumspection and in an essentially non-political fashion. The failing of Boyd and Flaherty is the same and has to do with the extent to which each has politicised the office.

Once again, we are falling into the abyss of allowing hysteria to drive our public policy agenda. The leading source of hysteria today is domestic violence. This hysteria has led to a number of seriously misguided acts, as various persons have attempted to demonstrate their commitment to "doing something" about domestic violence.

Pride of place amongst the misguided must go to Lesley M. Baldwin, a judge of the Ontario Court of Justice. Baldwin was a member of something called the Joint Committee on Domestic Violence. This was an ad hoc political lobbying and advocacy group, something which no judge should ever have become part of.

The committee, chaired by Baldwin, completed a report in 1999, which suggested certain steps be taken to combat domestic violence. On July 5, the Committee wrote Baldwin urging her to take "immediate action" with a view to having the report implemented. The letter was probably a contempt of court, but no matter.

On July 7, Baldwin wrote to Flaherty, enclosing the letter from the Committee, which she "endorsed". She added that she had "observed no noticeable change in the manner in which counsel are approaching these difficult cases in the criminal courts in which I preside". She expressed a willingness to meet with Flaherty to attempt to get the committee's report implemented.

To his great credit, Alan Gold, President of the Criminal Lawyers' Association, made a complaint about Baldwin to the Ontario Judicial Council.

I wonder if Baldwin has any inkling that her judicial office imposes limits on what she may or may not do. Does anybody ever instruct newly appointed judges in these things? This sort of behaviour by a judge is unacceptable in a constitutional democracy.

The hysteria has continued unabated. On September 27, Flaherty introduced Bill 117, an act to better protect victims of domestic violence, in the legislature. This bill is classic police-state legislation and violates just about every constitutional principle that anyone with even a minimal familiarity with our Constitution might think of.

The bill would authorize the Superior Court of Justice to make an "intervention order" when a judge is satisfied on a "balance of probabilities" that domestic violence has occurred. "Domestic violence" is defined as any one of the following, committed against an applicant for an intervention order or an applicant's relative or any child:

The applicant for an intervention order may be the spouse or former spouse of, or someone who is cohabiting with, the respondent. It may also be someone who is simply dating the respondent.

Notice of the application for an intervention order must be given to the respondent. An intervention order may restrain the respondent from being at any place regularly attended by the applicant, a relative of the applicant, any child or any other specified person. The "place" may include a residence, property, business, school or place of employment. Thus, a respondent who has merely been dating an applicant may be forced to give up his residence and his job.

Intervention orders are to be enforced by the police.

An "emergency" intervention order may specify the same things as a regular intervention order, but notice of the application need not be given to the respondent.

A truly extraordinary provision in the bill states that the applicant for an order shall not commit perjury or public mischief. Thus, someone may apply fraudulently and dishonestly for an order and not, as a result, face any legal sanction.

Designated judges and justices of the peace are to be available 24 hours a day, seven days a week, to hear applications for emergency orders.

I don't know where to begin in noting what is wrong with this bill. Many Canadians believe we have a system of constitutional government founded upon certain basic principles. It is not encouraging to realize that the Attorney General of Ontario has not grasped this basic notion.

There can be little doubt that Bill 117 is an attempt on the part of a province to make criminal law, something which every first-year law student, if not our attorney general, knows is prohibited by our Constitution. Does Mr. Flaherty realize that our Constitution also contains something called the Canadian Charter of Rights and Freedoms?

The Charter guarantees freedom of association, as well as certain fundamental procedural rights, and the presumption of innocence, all of which Bill 117 infringes.

Flaherty appears to believe that, if he is pursuing noble objectives, he need not let little things like the law or the Constitution stand in his way.

Stamping out domestic violence is an undeniably good thing, so why worry about the law? Flaherty wished recently to keep the hideous "artist" Eminem out of Canada and urged Ottawa to deny him entry to Canada regardless of the law.

The media, true to their devotion to promoting orthodoxy, have so far said nothing about Bill 117. On October 31, there was a public hearing about Bill 117 at Queen's Park. Two witnesses spoke against the bill, but not a word of their comments was reported.

These witnesses were friends of mine, two people for whom I have great admiration and respect. The first was Senator Anne Cools, whom I believe to be the only person in Ottawa who manages to combine intelligence, integrity and courage. The second was Toronto lawyer, Cynthia Wasser. Wasser regularly behaves the way we still like to imagine lawyers do and fearlessly represents unpopular figures accused of committing crimes.

One might think that the first court to look at Bill 117 would strike it down. One might have thought that until reading the Supreme Court of Canada's recent decision in K.L.W. v. Manitoba Child and Family Services Agency.

In this decision the Court upheld the constitutionality of the action by C.F.S.A. storm troopers in kidnapping a one-day old infant from the hospital where the child and its mother were both receiving treatment.

So much for our Constitution. Periodic waves of hysteria regularly convince us that certain behaviour is so reprehensible that it must be stamped out "at all costs". This notion will eventually subvert our system of constitutional democracy.

Perhaps it is time to institute a programme for training attorneys general in the rudiments of our legal system.

Professor Robert I. Martin teaches Constitutional Law at the University of Western Ontario. Equally versed in Media Law, Prof. Martin signs the popular column "Martin's Creed" in Law Times.