On “Strictly Legal” on September 27, 2007, I had as my guest Ms. Stacey Stevens. Ms. Stevens is a lawyer with Thomson Rogers  (email: sstevens @thomsonrogers.com). Ms. Stevens was co-counsel with Clayton Ruby on a case heard by the Ontario Superior Court of Justice. The case was called Joy Cheskes, Denbigh Patton, C.M.D.S. v. The Attorney General of Ontario and it concerned Ontario’s new adoption law.

The case was heard by Justice Ed Belobaba, in June of 2007 and his Reasons for Judgment were released September 19, 2007. The issue of privacy of adoption records is a very emotional one and I was delighted to have Ms. Stevens on “Strictly Legal” so soon after the release of the decision.

Let me start by saying that Justice Belobaba struck down some new provisions in the Vital Statistics Act of Ontario. Under the previous law, adoption information could only be disclosed to adoptees or birth parents, with the consent of both parties (there were some exceptions for health or safety issues). However, under the recent amendments to the Vital Statistics Act, personal identifying information would now be disclosed without the consent, and perhaps contrary to the express wishes of the affected adoptee or affected birth parent. These amendments proposed to reach back in time and allow a reopening of decisions made many years ago. This disturbed more than a few individuals, as the original adoption commitments were made on the express understanding that the records would only be opened on consent – if at all.

Three adult adoptees and a birth parent challenged the new law, stating that it violated the Charter of Rights and Freedoms because it retroactively/retrospectively disclosed confidential birth and adoption information. The question that arose was whether the Charter protected a right to privacy for these individuals.

Justice Belobaba’s decision is a carefully written, 68 page decision and I would recommend that anyone interested in this issue or in the history of adoption laws of Ontario read the entire case. It is well written, with great clarity and reviews the history of the law, the new amendments and Justice Belobaba’s reasoning for striking down provisions purporting to reopen adoption records.

On “Strictly Legal” Stacey Stevens and I discussed the pros and cons of such a provision. She traced the potential impact of disclosure on the lives of the individuals involved and pointed out what the striking down of these new amendments will mean to people.

It is unknown at this stage whether the Ontario Government will appeal the decision. If so, I promised Stacey Stevens and viewers of “Strictly Legal” that we would revisit the issue to see what happens next.

After the decision was released, opinions on both sides of the issue were expressed in letters to the editor, on news programs and radio call-in shows. One of the more interesting opinions, I thought, was expressed by Margaret Somerville of the McGill Centre for Medicine, Ethics and Law in Montreal. She suggested that privacy does not always need to be a two-way street. Her view was that emphasis should be placed on the rights of the child, such that, if a child sought disclosure of adoption records, the information should be disclosed whether the parent who placed the child consents or not. The child had a right to know. The reverse, however, would not necessarily be true. In Ms. Somerville’s approach, an adult would only be entitled to information about a child who had been placed for adoption if the child consented. I think this suggestion should be given consideration.

If you are interested in finding more information about adoption issues, visit www.canadaswaitingkids.ca, as well as www.adoption.ca and www.snap.bc.ca. These websites provide information about children awaiting adoption in Canada, an adoption glossary and issues around adopting children with special needs. On a future “Strictly Legal” programme, I intend to revisit the area of adoption in general and spend some time looking at the rules for adopting children, privately and also adopting children abroad. The experiences of people like Angelina Jolie, Brad Pitt and Madonna adopting children in foreign countries has made this newsworthy and I think it would be worthwhile spending some time digging into the area of adoption.

Stay tuned for more on adoption rights on “Strictly Legal.”

Michael G. Cochrane, B.A., LL.B.

On September 20, 2007, my guest on “Strictly Legal” was Todd White, a partner in Greenspan White in Toronto. Todd White and Eddie Greenspan, the partners in that firm, are well known for their representation of Conrad Black and many other accused persons in high profile Canadian cases. Todd has been on the programme before and has a gift for helping me demystify certain aspects of Canadian criminal law.

On September 20th, we talked about Canadian juries. In Canada, juries are available both in civil trials and in criminal trials. In a civil trial, only six jurors are needed. In a criminal trial, however, twelve jurors are selected. On the programme we focused on criminal juries and, in particular, whether juries “get it right.” Critics of the jury system feel that the average person cannot comprehend complicated legal issues, believing essentially that the average person is not smart enough to understand contemporary law.

Todd White dispelled that notion and expressed the view that juries often immediately understand what the case is about and have no difficulty comprehending the issues placed before them. This view is certainly held up by studies done by the Canadian Law Reform Commission back in the 1970s and 1980s, where surveys of judges and lawyers revealed that professionals involved with the justice system feel strongly that juries understand the process, the evidence and generally make wise decisions.

Todd White and I reviewed some of the individuals who are not eligible to be jurors, including lawyers, law students, doctors, coroners, police officers and jail guards. I asked Todd if there was any type of person that defence lawyers generally wish to avoid for juries and he was frank in admitting that teachers are not considered to make particularly good jurors. This is not because they do not understand the law, but rather they are prone (at least in the view of defence lawyers) to make snap judgments. Defence lawyers prefer a juror with an open mind. I have not heard from too many teachers since we aired that programme, but that insight caught me by surprise.

During the programme on juries, we had calls from people who had received Jury Notices. In one case, a gentleman had received a request to come in to be a juror on at least five occasions. That was a little odd as, according to the Juries Act, a person is eligible to serve on jury duty once every three years.

Let’s face it, most people do not relish the idea of being on a jury. This is because it interferes with their employment, their personal life and they do not like the idea of getting involved in such difficult decisions. However, it is really an important duty for each and every citizen.

For more information about juries in Canada, I recommend that you take a look at Chapter 1 of my book Strictly Legal: Things You Absolutely Need to Know About Canadian Law. In that chapter I discuss “the System” and spend time discussing judges and juries.

One of the calls that we had on the programme that evening concerned a “Jury Duty Questionnaire” that is being mailed to Ontario residents. The caller wanted to know what would happen if he did not complete and return the jury questionnaire that he had received in the mail. A little research turned up the fact that the Juries Act of Ontario stipulates that if the questionnaire is not completed and returned in a reasonable time, an individual can be fined $5,000.00.

This issue of juries is an interesting one and I will return to it on future programmes, as I have particular interest in exploring the requirement for confidentiality of jurors after a trial. We have all seen jurors interviewed on American television after the trials of people such as O.J. Simpson, Michael Jackson and other prominent celebrities. In Canada, jurors are prohibited from discussing their deliberations. This aspect of the jury system in Canada could use a little further “demystification,” so stay tuned for more discussion of juries on “Strictly Legal.”

Michael G. Cochrane, B.A., LL.B.

On Ontario 10, 2007, Ontario voters will not only be able to cast a vote for the next provincial government in Ontario, but they will also have the opportunity to vote to select a new method for electing Provincial Members of Parliament.

The Referendum asks voters to vote on a recommendation made by a Citizens’ Assembly on Electoral Reform. The Assembly worked between September of 2006 and April of 2007 independently of government and the political parties to develop some alternative ways by which we might improve the political democratic process for Ontario.

The Assembly was made up of 103 voters randomly selected from across the province and it was chaired by George Thompson. Mr. Thompson was appointed by the government. George Thompson is a friend of mine, and if anyone could lead a process on electoral reform, it is George Thompson. In his past, he has been not only a lawyer and the head of the Bar Admission Course Program in Ontario, but also a Provicincial Court judge and a Deputy Attorney General for Canada under Attorney General and Minister of Justice Allan Rock. George Thompson knows his way around the justices system and the political process.

Before I share my views on a Mixed Member Proportional system, let’s consider what that is.

For more information than I am able to provide in this blog, I recommend that you visit www.citizensassembly.gov.on.ca. My information about this proposed system comes from the actual report published by the Citizens’ Assembly on Electoral Reform. This report is called “One Ballot, Two Votes - A New Way to Vote in Ontario.” It is dated May 15, 2007 and sets out, in a very understandable way the proposed system, and even sets out an example of what a ballot would look like in an election. 

The idea behind Mixed Member Proportional Representation is one of providing greater choice to voters. A voter would be able to vote, first for the person they wish to elect locally, their MPP, and they could cast a ballot for a party that they wish to support in the electoral process. So, for example, locally you could vote for Ms. Brown of the Liberal Party (let’s call that person “directly elected”), but you could also then cast a vote for the Green Party (let’s call that a general vote. After the election, the results would be tallied and a process would begin to ensure that each party’s share of the seats roughly equals each party’s share of the votes cast. If a party receives 25% of the votes, it will win about 25% of the seats in the Legislature. There would continue to be 90 local MPPs (directly elected), so the candidate who gets the most votes in a particular riding will still be elected. However, 39 additional MPPs would be elected, not based on votes that they received in a particular constituency, but rather because their names would be selected from lists provided by parties (the general vote). Imagine, if you will, that a party received 25% of the votes cast but the ballots cast only elected directly enough MPPs to account for 20%. The additional 5% entitlement to seats would be made up by selecting names from a list that that party had submitted in advance.

Directly elected MPPs and those individuals selected from the list would together make up 120 seats in the Legislature. This will be an increase of 22 seats from the current situation.

The individuals selected from the general party lists would be identified and selected by each party in advance through (what the Citizens’ Assembly hoped would be) a transparent process.

If anyone is concerned about a tiny number of voters creating political parties, there would be a threshold of 3% of total votes cast required to be considered as having anything close to clear support in the province. Under 3% means you are not a party to be considered for seats.

So, in a nutshell, there we have it. The province would expand the number of politicians. Many of them would be directly elected in individual ridings as we currently elect them, but an additional number of MPPs would be placed in the Ontario Legislature to account for a party’s share of the popular vote in Ontario. Theoretically, a party could have no members directly elected but still have a proportion of the seats in the Legislature.

Here is what I think:

(1) While I commend the Citizens’ Assembly for their work, I would have liked to have seen some recommendations from them to improve the existing electoral system, which has served us quite well for a considerable period of time. Canada, and in particular Ontario, is a model worldwide for a stable democracy. Granted, voters have become increasingly disillusioned with the political process and this has diminished the turnout in elections. However, for me, this does not lead us obviously to a dramatic reform of our electoral process. If the problem is voter disinterest in politics, why would a change in the electoral process make them more interested? I spoke with one young woman who is well-educated and tries to be politically active. She stated that most people do not understand the current system and changes to it might only further distance the average voter from the political process. I think there is a lot of merit in that observation. I would rather spend time trying to increase voter participation in the existing electoral system.

How could something like that be achieved? Well, for starters, I would be in favour of lowering the voting age in Ontario. I think our young people are pretty savvy and I think they should be allowed to express their views at the ballot box. Secondly, I think that we can make it a lot easier to vote. Personally, I find it exciting to go to the local church or school gym and physically cast a ballot. It is a chance to mingle with neigbours and pick up election buzz, but not everybody can do that easily. Why haven’t we developed a method of voting online? I can make investments, move money in my bank accounts and buy products online. Why can’t I vote online? I imagine that someday citizens will be able to vote from their cell phone or BlackBerry.

(2) One of the things that has been missing from our political process over the last 30 years is accountability. There was a great deal of hullabaloo when former Ontario Premier Mike Harris “did what he said he was going to do.” Isn’t that a badge of honour when a politician can ask to be re-elected simply because he did what he said he was going to do? Currently, there is a great deal of skepticism about politicians keeping promises. I think that voters want accountability, and electoral democratic reform in Ontario should include some new creative methods for holding politicians accountable for their promises. Some people have tried to sue politicians (see my book Strictly Legal: Things You Absolutely Need to Know About Canadian Law, Chapter 10, which deals with this issue), but surely there are better ways of holding politicians accountable for the flagrant breaches of their word. Instead of wholesale electoral reform to increase the number of parties and the number of politicians, would like to see more thinking on alternative accountability mechanisms.

(3) Related to this idea of accountability is the proposed idea of individuals arriving in the Ontario Legislature without anyone ever having voted for them directly. This method of election, if implemented, would further distance a politician from accountability at exactly the moment we are looking for more accountability. I am not the first one to speculate on who will appear on the lists set forth by each party. Yes, the Citizens’ Assembly asks that each party’s process be transparent, but anyone even remotely familiar with party politics will tell you exactly who will show up on those lists – individuals who do not want to stand for election and face voters directly. It is one of our society’s highest honours, to have citizens vote for an individual directly and place them in the Legislature. Names plucked from lists, to me, just doesn’t cut it.

Those are my overview thoughts on the proposed Mixed Member Proportional System. The Ontario Government probably hasn’t done enough to explain the process to voters but, at this stage, I think it is too late. The hurdle is quite high for this referendum to pass. Some 60% of Ontario voters will need to support this change.

Before concluding this blog, I do want to commend the members of the Citizens’ Assembly for their hard work. Even if the Mixed Member Proportional System is not accepted, their work will not be wasted, as I think it is going to trigger a larger discussion of electoral reform. I think people in Ontario and across Canada are looking for more from their politicians and more from the democratic process. I just don’t think that MMP is the answer they are looking for.

If you do one thing on October 10th, make sure you vote, make sure your children vote, make sure your parents vote and make sure your neighbours vote. Do what you can to encourage participation in the very good system that we already have.

Michael G. Cochrane, B.A., LL.B.

On Thursday, July 19, 2007, I was very fortunate to have the Environmental Commissioner of Ontario, Mr. Gord Miller, join me on “Strictly Legal” to talk about protecting our environment. Gord Miller has been Environmental Commissioner of Ontario for several years, and his office regularly publishes very thoughtful and very readable reports about threats to our natural environment and about progress that is being made in protecting it. The Environmental Commissioner’s Office was created as a component of the Environmental Bill of Rights of Ontario and I think that Gord Miller and his staff are having quite an impact on the way that environmental policy is developed in Ontario.

His office can be reached at 1075 Bay Street, Suite 605, Toronto, Ontario M5S 2B1. The telephone number is (416) 325-3377 and you can, of course, always visit them at the website www.eco.on.ca.

On July 19th, Gord Miller and I talked about a very serious threat to water quality and to human health. This threat is caused by pharmaceuticals and personal care products. By personal care products, I mean shampoos, toothpastes, insect repellents, deodorants, perfumes and other types of products.

When any of us receives a prescription from the doctor, we are usually more concerned with getting the pharmaceuticals into our system than what happens when they later come out. We tend to forget that drugs that have been consumed by humans are eliminated – in some cases unchanged. These drugs end up in our sewer or septic systems. The sewage that is produced is often processed at a sewage treatment plant and, ultimately, waste water from that plant is discharged into our waterways. To make matters worse, sometimes the drugs end up in the toilet, not because they have been passed through our system but because we did not take the entire prescription, it has expired, and we think we are doing the safe thing by flushing the remaining drugs down the toilet. In fact, nothing could be worse.

Antibiotics, anti-inflammatories, antiepileptics, beta-blockers, lipid regulators, vasodilators and sympathomimetics have all found their way into our drinking water. For more information about these drugs and the way in which they flow into our water, see an article by Jackie Campbell, B.Sc. (Pharm.) LL.B. Jackie Campbell is a drug information pharmacist at the Ontario Pharmacists’ Association Drug Information and Research Centre and an associate at Saxe Law Office, an environmental law firm in Toronto. She wrote an article called, “Drugs on Tap: Pharmaceuticals in Our Drinking Water.” It was featured in Pharmacy Practice and can be seen at pharmacygateway.ca.

When Gord Miller and I were talking on “Strictly Legal,” we were trying to focus on ways in which Canadians can make a difference in protecting the environment. Here is one small way - Do not throw unused drugs and other pharmaceuticals into the toilet, thinking it is a safe way of disposing of them. The best way of disposing of these kinds of products is to return them to a pharmacist who has an incinerator or other safe method of disposing of the drugs. It is a small thing, but it is an easy thing to do that makes a difference.

Another issue that Gord Miller and I talked about was the growing challenge of diverting electronic waste from our landfills. As the Environmental Commissioner detailed in his 2003 – 2004 Annual Report entitled, “Choosing Our Legacy,” Canadians throw out tens of thousands of tons of computer waste every year. This includes millions of desktop computers, millions of cell phones, tens of thousands of tons of selected household electrical and electronic products, not to mention millions of television sets and VCRs.

These products are made up of a variety of plastics, cathode ray tubes, mercury, batteries and a long list of other metals and materials, not to mention arsenic.

We probably hope that these electronic products (or what is now becoming known as “e-waste”) are put through a recycling and recovery process so that anything that is reusable can be salvaged and anything that can be recycled is reused. We wish! In fact, a lot of “e-waste” is simply crushed and dumped into landfills. By-products and components of that e-waste leech into our soil and water, threatening the water supplies, harming plants and threatening animal life. Incineration of these products releases dioxins and other by-products into the air to such an extent that that has not proven to be an effective way of managing e-waste.

To make matters even worse, in some cases, companies fill shipping containers with e-waste and send it to developing countries where workers strip the components and reusable parts out under very dangerous circumstances and simply discard the rest. Our throw away luxury items in North America become landfill waste in other parts of the world. In some cases, the plastic components of these computers are simply thrown on open fires, releasing toxic materials into the air.

A small way, but an important way, that Canadians can deal with this is to make sure that their electronic products are not simply thrown out in the garbage to wind their way eventually into a landfill site. There are companies in Ontario and other provinces that can do effective recycling and reuse of electronic components. They also are able to effectively and safely dispose of other parts that cannot be reused. In some cases, a fee must be paid in order to have the waste dealt with properly, but it is a small price to pay for making an important contribution to protecting the environment.

I know from personal experience that in Toronto each year there is a major effort to collect electronic products, batteries and other potentially hazardous materials that are being dumped in our landfill. My wife and I regularly make a trip to High Park in Toronto, where they have trucks and containers lined up to accept a drop off of these kinds of hazardous materials. Hundreds of cars arrive filled with unused paint cans and all sorts of hazardous materials. It is a true community effort. If you do not have such a program in your community, urge your local politicians to get one started.

Whenever Gord Miller is on the program we always have lots of calls, and on July 19th, it was no different, with calls coming in from across Canada. I know that this issue is top of mind for Canadians, and in Ontario, particularly, we have an election coming up in October of 2007. If ever there was a time to put a politician’s feet to the fire over environmental issues, it is now. Make sure that you ask your local provincial candidate what their position is on environmental issues. Some excellent materials for building a fire around a politician’s feet are the Environmental Commissioner’s Reports – which are, of course, all available on one simple CD for ease of reference. Good luck and stay tuned for further discussion of environmental issues when we come back for our third season on September 13, 2007!

A part of my practice and background includes “alternative dispute resolution.”  Lately people in the field have taken to calling it “appropriate dispute resolution,” the idea being that dispute resolution processes like mediation and arbitration are no longer simply alternatives to litigation.  The question for professionals in the dispute resolution field is how to match the appropriate dispute resolution technique with the problem faced by clients.

The spectrum of dispute resolution techniques ranges from straightforward negotiation through the use of facilitators to mediation and ultimately to arbitration, a form of private judge.  At a recent Ontario Bar Association event, a panel of knowledgeable dispute resolution professionals discussed the most recent development in the area of appropriate dispute resolution.  This new development is something called “circling.”

Circling is drawn primarily from the Aboriginal experience of drawing together members of the community to share knowledge, insight and consensus when the community is faced with a problem.

When I listened to the discussion of “circling” at the Ontario Bar Association event, I was a little puzzled about the difference between a “circling” process, which sounded essentially like a facilitated group discussion, and mediation, which is a process whereby a neutral person works with two or more people to develop a solution to whatever problem they face.
My curiosity led me to register for a training session this week at the offices of Peace Builders International.  On Wednesday I spent from 8:30 in the morning until 4 in the afternoon with a number of people from different walks of life, all of us interested in learning how the technique of “circling” can be used to resolve disputes.

Peace Builders International is led primarily by Eva Marszewski.  She is a lawyer and mediator who concluded some time ago that litigation offered a pretty one-dimensional solution to many problems and she moved her practice into the appropriate dispute resolution field exclusively. 

Over the course of the day on June 13, 2007 I learned that the “circling” process is being used in Ontario schools to assist students in uncovering problems that might interfere with learning at an early stage.  It is helping to build relationships in the classroom, and in some cases to provide an appropriate alternative to suspension and expulsion.  In the larger community, “circling” is being used to build networks and partnerships and to resolve conflicts.  The application that was of most interest, however, was the use of it under the Youth Criminal Justice Act where youth who are in the criminal justice system are given a diversion alternative whereby they can meet and hear their victims, develop a rehabilitation plan and work to reintegrate a young offender into the community.

The idea of a peacemaking circle is to have an experience to **** work with the group to develop some guidelines about their discussion and then to gently control the discussion by allowing each person to express themselves and their views in a respectful environment.  Imagine a really good chairperson who gently but firmly leads a respectful sharing of views and ideas.

An interesting component of the “circling” process is the use of what’s called a “talking piece.”  The “talking piece” is a symbolic item that is passed from participant to participant whoever holds the talking piece has the floor and cannot be interrupted until they have adequately expressed their views.  No one has an obligation to speak and can simply pass the “talking piece” to the next person in the circle, but if they choose to speak they must do so in turn when the “talking piece” arrives in their hands. 

My first reaction to the idea of a “talking piece” was that it seemed a little contrived.  But once I saw it in action, I could see that the discussion did flow nicely and participants did respect the opportunity to speak of whoever held the talking piece.

Peace Builders hopes to expand the use of circles, particularly in the area of Youth Criminal Justice.  I think they are on to something here and I intend to follow their progress and even volunteer to lead a circle to see what it offers, not only young people accused of criminal offences, but also their victims.  I think anyone close to the Youth Criminal Justice system would agree that right now it needs new ideas and youth circles seems to be a good one.  I’ll have more to say on this subject in future blogs. 

Listen to “Marriage Contracts”

During Strictly Legal Podcast #4, Michael considers the timely issue of marriage contracts. He notes many positive benefits of this type of contract, including the opportunity for full disclosure of each spouse’s assets and liabilities
before the marriage takes place.

Click here to listen to Strictly Legal Podcast # 3 - Compulsive Gambling

During Strictly Legal Podcast #3, I delve into the issue of complusive gambling in Canada. Professor Joe Kelly is a professor of Business Law at the State University of New York College in Buffalo, New York, and is considered to be a worldwide expert on Gaming Law and problem gamblers. He joined me on the April 26th/07 episode of Strictly Legal to share some insight on this topic.

In this podcast, I discussed the way in which compulsive gambling is treated in Ontario and in other provinces, and the role that the government plays in the abundance of gambling outlets and the subsequent issues, specifically gambling addiction.

From a legal standpoint, I mentioned a few interesting cases which highlight how compulsive gambling can lead to law suits as gamblers sue the casinos they believe exploited their addictions.

Click here to listen to Strictly Legal Podcast #2

During Strictly Legal Podcast #2, I discussed Cathy Crowe’s remarkable new book, “Dying for a Home: Homeless Activists Speak Out”, published by Between the Lines. Cathy Crowe is a street nurse and homeless activist and was my guest on the April 17th/07 episode of Strictly Legal.

Focusing on the legal side of the issue of homelessness in Canada, I considered the legal battles in the Ontario Court of Appeal surrounding the Ontario Safe Streets Act, which revolved around the relationship between Canadian legislation and the epidemic of homelessness, specifically Squeegee people, in Canada.