Roger writing the LAWmag
Jan 2008

The Daily Newspaper: Always A Law Journal

The "A" section of the Tuesday, October 23, 2007 edition of Canada’s national newspaper, the Globe and Mail contains some 30 stories, and a dozen shorter news clips.

To the untrained eye, there is nothing unique about this edition of the "G&M".

The format and similar content is repeated in dailies from coast to coast to coast.

What does come out in this and every other edition of any daily newspaper in the world is that when it comes to news, nothing is sexier than the law.

The law brings death, incarceration, the death penalty, rape, murder, theft, fraud, Jerry Springer and racial disputes. It sells newspapers, It’s next door and it is real.

Like the tide, legal stories occur at fairly regular intervals, always with a new, thin veneer slowly displacing yesterday’s. Gone – for today - are the same-sex marriage stories until the next rash of weddings. The execution of inmates on death penalty, always an ad-seller, comes and goes with the injections and the US Supreme Court’s vacillations. Marijuana use and draft-dodgers: not hot right now.

On October 23rd, the "G" reported that "RCMP Refused to Test Crew For Drugs". The reference is to an allegation that in the hours after the sinking of a ferry operated by a provincial agency (BC Ferries "Queen of the North", pictured), the head of that agency demanded from the RCMP that they conduct drug and alcohol testing of the crew. The RCMP, the story reports, did not do so because from their observations of the crew, several hours after the sinking, there were no visual signs of impairment. Thus a one-time opportunity to gather crucial evidence as to why the sinking occurred was wasted. In real-time, the request hi-lighted the inaccessibility by civil (such as tort) victims of a possiblecrime to gather evidence in the immediate aftermath of a the law enforcement matter, always a sacred domain of the police.

"Ottawa Detains Terror Trial Advocates", reads the next headline, a reference to Canada’s troubled post-9/11 anti-terrorism legislation. The Department of Justice lawyers have been trying to "get it right" but were recently rebuffed by the Supreme Court which set aside the existing regime for giving the terrorist disclosure, as is the norm in criminal proceedings, while still protecting active snitches within terrorist networks.

The new initiative, contained in a bill tabled in the House of Commons, calls for a star chamber network of lawyers who, alone, might have access to select internal spying information, aka "national security" information, related to the case against their client. Critics say it still does not afford the accused, already facing watered-down post-9/11 habeas corpus rights, with disclosure of the case against him.

To the uninitiated, the news story serves up a typical law-making reality reminding one of the expression about watching law being made akin to watching hot dog meat being churned. In the case of this bill, opposition parties, ever watchful of the almost-empty sand clock of the Conservative minority government, scramble to react, as the bright light of an imminent election campaign crests the horizon.

The headline "Kurdish Ceasefire Offer Leaves Istanbul Unfazed" runs across the cover of the paper, as Turkey agonizes over reaction to Kurdish nationals who are goading them along Turkey’s border with Iraq. The Kurds have no state to call their own, caught in a triangle at the Iraq/Iran/Turkey border. With the international community in no mood to upset the region with any suggestion of carving out a homeland for the Kurdish nation, they are restless, armed and, for now, able to squawk from the relative lawlessness of their bases in Iraq.

In perhaps the only real "lawyer’s" story, the headline "Harper Protected By Privilege, Court Rules" beckons the reader to days of yore, when the common law and the Courts of Chancery ran amuck in the Kingdom of England, and where, to the music of Blackstone and Denning, the law seamstresses set about crafting an immunity from defamation claims for libel or slander which issue from members of Parliament.

Ottawa Courthouse A magistrate, or "mini-judge" of Ontario’s Superior Court, (called a "master"), ruled that Prime Minister Harper was immune from a defamation claim filed by a disgruntled former Conservative candidate. But Master Beaudoin of Ottawa (courthouse pictured) thought to advance the cause of law reform by adding in his judgment that the 237-year old parliamentary privilege may have outgrown its usefulness in Canada, and may no longer be "appropriate in this day and age". This type of judicial comment, from a judge, never falls on deaf ears, unless a maverick was accidentally appointed to the bench, and there are very few of those. Like the butterfly flapping its wings affecting the air pressure in New York City, the judicial comment, obiter dicta though it may be, gets put on the informal scorecard for law reform. One never knows which comment will break the camel’s back in the molasses pace of law reform, although it’s unlikely to be Beaudoin’s.

The story about a 12-year old Alberta girl who assisted her boyfriend in murdering  her family, including her 8-year old brother, is profoundly troubling. The headline, in a reassuring style (reminding all readers that any child capable of such evil must be mental), runs "Girl Who Killed Family Is Seriously Disturbed". A psychiatric report to the Court, where the young offender is being sentenced (she ended up geting 6 years), pigeon-holed the child as having "oppositional defiant disorder" and "conduct disorder"!

Some of the more successful persons in the world live their lives by the motto: "oppositional defiant disorder", reminding one of the EA sports mantra "challenge eveything".

The young criminal already benefits from a ceiling on her sentence since she is a young offender, and regardless of the heinous nature of her crimes, she is granted anonymity, as her real name is the subject of a statutory publication ban (she is known as "JR" only).

For lawyers, the story speaks to her legal legacy, of which JR is unaware. How to deal with children who commit heinous crimes has been a challenge for law-makers since antiquity and has run the gamut from capital punishment to Canada’s "TLC" approach. But even Canada – which rightfully holds itself out as a world’ leader in this area - takes young offender law as a work-in-progress, having reworked and renamed the law three times in the last 20-years. What works or does not work in Regina v JR will be filed in the criminal justice reform database in Ottawa where, like the lives of her victims, will eventually be reduced to a mere data-byte.

The September, 2007 fatal reaction of Kathryn Clarke to cosmetic surgery continues to create headlines such as "MDs Queried Over Training For Cosmetic Procedures".

Provincial governments defer to professional bodies on such technical issues as medical certifications and procedures. On this issue, to demonstrate that it is being proactive, Ontario’s has sent out questionnaires to all its member/doctors.

Likely taken to be a witch-hunt by some, or an overreaction to an anomaly by others, the debate goes far further than just the regulation of doctors in Ontario.

At issue is also the right to expose oneself to the risks inherent in "self-mutilation" that individuals have in a free and democratic society; to request or receive any surgery - including bigger breasts or facial tucks, or those who are too busy to exercise or show restraint at the dinner table, and who want a liposuction – all of which have nothing to do with health.

Another deadlines yells: "Quebec Task Force Rejects Call To Stop Taser Use", as an unexpected backlash develops to the police’s very reasonable initiative of resorting to taser technology which is now found to be followed by cardiac arrest in a very few of the violent aggressors it is used on.

In a "be careful what you ask for because you might get it" situation, a few angry words of victims’ families wet the appetite of Globe editors, and cry for a ban, with even the saintly Amnesty International joining the fray, as most law enforcement officers probably content to return the to tried, tested and true bullet-hole alternative.

Cemetery law, especially so close to Halloween, is always an eye-catcher, especially with the secondary theme of the murderer of an RCMP officer.

Mostly-sedentary estate lawyers must resent the use of a principle from their law books – that the personal representative makes funeral decisions – in the case of the remains of Constable Leo Johnston.

In "Family Delays Mountie’s Disinternment",  the mother wants the body to remain in his hometown cemetery but the widow wants to honour his memory by having the remains transferred to the national cemetery in Ottawa.

An Alberta judge has already given the widow the right to make the decision, which prompted the short-sighted or stubborn mother and her allies to divide the family and create a devastatingly personal family rift – something any family law lawyer will recognize as greatly adding to the grand-children’s stress - as she formed a human chain around her son’s grave.

School law usually excites no-one but teachers at bi-annual strike-time or the delinquent wondering if his detention is legal.

In "Teen Spat In Montreal Sparks Racial Riot", the students of adjacent English and French high-schools in Montreal are reported by the Globe and Mail to have come to blows. The assault of one girl resulted in the all too-typical callous and cruel videotaping and YouTubing. Police moved in with kid gloves but charges came fast against the ringleaders.

An ocean away, but on just the next page of the October edition of the G&M, school law was front and centre in Quebec’s francophone colleague, France, as the new president ordered teachers to read in class the letter of a young French resistance fighter, Guy Moquet, written to his family just before he was executed by the Nazis in 1941. At page A17 of the Globe: "Moquet Day Stirs Controversy in France".

Sarkosy apparently meant well but, in a sign of a vibrant and healthy democracy, the press hunted for and found protesters. "The kid was a communist", some complained. The teachers – forgetting that their authority to govern school law is delegated from the government, of which Sarkozy is the leader, and to whom the minister of education reports - want the president to stay out of ... ah-hem ... "curriculum" matters, as if that were rocket science, too complicated for a dumb president.

The newspaper that Canadian have embraced for years and affectionately call the "The Globe", has other legal headlines as well; an alleged sexual assault within the air cadet corps and Ontario’s proposal to open-up the provincial adoption registry so parents and their natural children can connect.

As with any newspaper – the Globe, New York Times of the London Times, it may be called "news" but to any lawyer, our daily paper is our daily bread; another day in the life of the our sacred law.

Other professions get the occasional reference but we get cover-to-cover, coast-to-coast and worldwide coverage in each daily newspaper around the world, as it should be with the law.

That is because of our little Free Mason-like 'secret': that the lives of people and of societies is the life of the law. They are inseparable, evolving in perfect step, each tugging a bit on the other's sleeve from time to time. For those who enjoy a moment at the beach watching the waves come in, one after the other, there is the local newspaper to give you that very perspective on the law, one grain of sand at a time.

Posted in Current Events