SR Vol 24 No 4, August 2006 - Nova Scotia Barristers' Society

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SOCIETY
RECORD
VOLUME 24 | NO. 4 | AUGUST 06
NOVA SCOTIA
BARRISTERS’ SOCIETY
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the
pUbLIC fACE
of Law
August 2006
VISION, LEADERSHIP, EXCELLENCE - THE LEGAL PROFESSION IN NOVA SCOTIA

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The Society Record

C o n t e n t s
VOLUME 24 | NO. 4 | AUGUST 2006
4 From the Editor’s desk
5 The President’s View
6 Dear Members
7 Briefs
12 Professionally Speaking — Cindy Locke
16 Media Training 101 — Chris Hansen
18 LIANS
the
Society
Record
is published six times
annually by the
Nova Scotia
Barristers’ Society
Suite 1101-1645
Granville Street
Halifax, NS B3J 1X3
Copyright ©2006
Mailed under Canada
Post publications
agreement number
40069255
Return undeliverable
Canadian addresses to:
Publications
Administrator,
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Barristers’ Society
Suite 1101,
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lneily@nsbs.org
Editor:
Pam Sullivan
psullivan@nsbs.org
Graphic Design:
Lisa Neily
lneily@nsbs.org
Pullout section — Vol. 31, No. 3 Nova Scotia Law News
20 Seven Tips To Make Sure Journalists Get It Right — Richard Perry
22 Mastering the Media— Jennifer Pink
24 Negotiationg the New Legal Landscape — donalee Moulton
27 Leading by Example — Dean Jobb
30 LAP
31 Letting the Media In On It — Chief Judge Patrick Curran
32 View from the Trenches — Brian Hayes
33 Nova Scotia Courts’ Media Guidelines — John Piccolo
34 Summation — John Piccolo
C o n t r i b u t o r s
page 16 page 22
Cindy Locke is a Halifaxbased
freelance journalist
and recent King’s
Journalism Grad.
Chris Hansen is the Director
of Communications for
the Nova Scotia Public
Prosecution Service.
Jennifer Pink is a lawyer,
currently working as
Communications Manager at a
London firm.
donnalee Moulton is a
professional freelance writer
and editor based out of
Halifax.
page 24 page 32
Patrick Curran is the Chief
Judge of the Nova Scotia
Provincial Court.
Brian Hayes is a Halifax
Herald Court Reporter.
NOVA SCOTIA
BARRISTERS’
SOCIETY
www.nsbs.ns.ca
Richard Perry is a communications
specialist, currently
working as Communications
Director at the Department
of Natural Resources.
Dean Jobb is an assistant
Professor of Journalism at the
University of King’s College.
John Piccolo is
Communications Director for
the Nova Scotia Judiciary.
August 2006

Well, a year’s worth of issues under my belt and, I’m
happy to report, much less confused than I was this
time last year. My goal as editor has been to develop
and explore ideas which are ultimately of interest to the membership
– hope I’ve been successful.
Having worked in the field of journalism and having spent the
last 12 months thinking about the issue of the law, it was only a
matter of time before I tackled this month’s theme. Perception
being (as it’s purported to be) 99 per cent of reality, it pays to
pay attention to both what’s being said and what we’re saying.
And finally, many many thanks to everyone who’s been so incredibly
helpful, generous with their time, and kind over the last
year – we obviously couldn’t do the Record without you.
September,
we go to the BLIP *
*BLIP = Bayers Lake Industrial Park
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The Society Record

The
President’s
View
the Society’s expectations for lawyers in terms of their own
continuing competence.
3) Professional Standards: With the implementation of the
Legal Profession Act, professional standards have become part of
the Society’s regulatory framework. At this point in time, the
professional standards real property transactions in Nova Scotia
are the only “professional standards” approved by Council.
Council will be looking into other areas for which standards
should be created, as well as the actual means by which high
standards should be promoted.
4) Regulation of law firms: The Society has long recognized that
most lawyers practise in firms and that there is a need for some
regulation of those firms. The Legal Profession Act, unlike its
predecessor, addresses the Society’s authority to regulate law
firms, as well as the nature and scope of this regulation.
This being my first President’s column, I wanted to provide a
brief overview of what is on the horizon for the upcoming
year.
Some areas that Council hopes to delve into this year and what I, as
President, hope to accomplish, are as follows:
1) Duty to Supervise: The failure of lawyers to supervise staff
and personally oversee client matters is a growing concern and
becoming a challenge in terms of regulating the profession.
Our fiduciary duty to our clients cannot be delegated to staff
regardless of the area of law or the competence of staff. The
Society needs to reinforce this concept with its members in the
interest of public protection.
2) Continuing Competence for Lawyers: In June 2005 Council
created a Continuing Competency Task Force to examine
continuing education issues. The task force acknowledged
Council’s statutory authority to set and monitor standards and
the right to ask members annually about their professional
development activities. In fact, we are now doing so by way
of a new Annual Members’ Report (which I might add was
due at the end of July). One of the issues before Council will
be to discuss what, if any, education should be mandatory for
lawyers. Please do not take this as an indication that you should
be locking down the hatches as the “Competency Cops” from
the Society will be barging in with pencil cases, rulers, and
textbooks in hand, requiring you all to go back to school. At
this point in time we are simply seeking a policy that articulates
Through the help of some very energetic and devoted staff, we have
tried some unique and innovative techniques at Council meetings
this year. These new processes can best be characterized by the
shared responsibility held by Council for making and driving its
agenda for the coming year. After two sessions Council was able
to give clear direction and focus on the areas to be included in the
Annual Plan. It proves to be an engaging way to conduct business
by allowing the bulk of some meetings to be in small groups where
everyone gets a chance to contribute. It also allows for creativity
and encourages members to suggest new ideas and solutions. I am
optimistic that Council will now have more collective responsibility
for the Annual Plan because not only will they have approved it
– they literally will have created it. Similar models allow individual
Council members to become more engaged and will demand a high
level of commitment from each of them.
Council must always remain alert and able to identify issues that
the Society should be involved in. Each individual issue presents
challenges in terms of the nature of the Society’s engagement, required
resources, and the anticipated or expected outcome from a given
involvement. Quite frankly, we cannot be expected to engage in
every fight that comes before us – nor should we. I do not want to
see Council taking on so many issues this year that its efforts will be
diluted by the sheer magnitude of the agenda. Alternatively, I suggest
that we focus our efforts so we can bring about effective changes.
My goal is to be a president who is in touch with the members and
who reacts appropriately to concerns expressed by them. I anticipate
on contacting each of the individual local Bar Societies during the
year so that we can discuss areas of mutual concern.
Philip J. Star, Q.C.
August 2006

D e a r M e m b e r s
It is the time of year
when we welcome new
leadership at the Society.
And, as with all change,
with it comes new priorities,
new directions, and a new
set of dynamics. Council is
currently focused on a few
significant goals. Through his columns, Phil Star will keep you
abreast of developments resulting from these goals, as they
arise.
Members have just filed their first Annual Member Report.
Most of you were co-operative with the process that will enable
Council to better understand the profession, what it does, in
what areas we practise, and how we remain current. Without
good information, good governance is only a wish.
With this issue of the Society Record we focus on some
aspects of what the public sees of the practice of law. We are a
prominent profession, and as such, there is much interest in
what we do. Ensuring a strong public understanding of legal
processes, and maintaining a positive public persona only
serve to strengthen the administration of justice — a key part
of the profession’s role. Being aware of the media and how it
portrays both lawyers and clients is important for all of us.
We hope you find something of value in this issue. As always,
we welcome comments and suggestions.
Darrel Pink
Executive Director
Nova Scotia Barristers’ Society
Meet our newest partner,
Gerald Green.
A new partner. It’s an important event.
They used to say that the best of the best can never return home. Or that home is
the place you grow up wanting to leave and later grow old wanting to return to.
Not so anymore. Technology. The New Economy. Professional doors that once
swung only in the direction of Halifax, Toronto or New York are now swinging open
to Pictou County.
Meet Gerald Green. Back home where he belongs.
We are proud of Gerald’s accomplishments. In law. In life. Harvard University.
Osgoode Hall and Dalhousie Law Schools. Four years in the private sector with the
Sobeys Group. Six years with the Corporate and Commercial Group of one of
Halifax’s largest law firms. Then lured back to the Corporate and Commercial
Group of Mac Mac & Mac.
It takes more than legal skills to be invited into our partnership. Gerald Green is an
accomplished athlete, twice making it to the NCAA Final Four National Hockey
Championships. He has coached various elite level minor hockey teams for the
youth of our communities, leading these young people to both Provincial and
Atlantic Canadian Championships. He is on the Executive of the United Way
Campaign and the Pictou County Chamber of Commerce and active with the
Stellarton Amateur Athletic Association. You probably see him running the
roadways and pathways of Pictou County as he nourishes his passion for long
distance running.
Gerald Green brings depth to our partnership. He does likewise for our business
clients. We are proud to call him partner.
The Society Record
RE-FORMATTED FOR

BRIEFS
A d m i s s i o n s D i n n e r 2 0 0 6
Michelle Awad, then-President of the CBA Nova Scotia Chapter, addresses the crowd at Pier 21 in Halifax on June 8, 2006
Chief Justice Kennedy greets the new admittees
MC Robert Mann
Three generations of the MacIntosh family: Sarah, Bruce
(Distinguished Service Award recipient), Alex and Leisa
Clerks’ Procession
August 2006

BRIEFS
A n n u a l m e e t i n g 2 0 0 6
This year’s Annual Meeting,
held at the Digby Pines
Golf Resort and Spa, was a
popular, well-attended event,
in spite of being a bit of a
wash-out in terms of the
weather. Over 250 members,
spouses, and children
attended the event, held the
last weekend in June.
President Philip J. Star, Q.C.
Friday night dinner reception at the Pines
1st VP, Catherine Walker, Q.C., Past President, Ron
MacDonald, Q.C., and current President, Phil Star, Q.C.
Judiciary and Media to Hold
Workshop
Judges and journalists both serve the interests of the public.
But they come to the task from two very different professional
cultures. And the objectives, practices, and parameters that
guide one are often at cross-purposes with those of the other.
Yet despite this apparent adversarial relationship, there is
plenty of room for co-operation — without infringing on such
imperatives as journalistic freedom and judicial independence.
To that end, the Chiefs and Associate Chiefs of the Nova Scotia
Courts and members of the province’s working press/media
are holding a workshop in late September. The schedule,
the topics for discussion, and a list of invitees are currently
being developed by a steering committee which includes
four members of the working press/media and four judicial
representatives.
The Chiefs will spend a day with reporters, editors, and producers
in a series of round-table and plenary sessions. They will
discuss practical issues of mutual concern and explore possible
solutions. These will then be given to the Media Liaison Committee
(made up of judges and press/media representatives) to
develop into guidelines which will, in turn, be recommended to
the various courts for their approval.
It is hoped that the workshop will also foster a more effective
working relationship between the judges and the journalists by
enhancing their understanding of each other’s professions, and
through doing so, help both groups better serve the interests of
the public.
The Society Record

BRIEFS
2 0 0 6 p r i d e r e c e p t i o n
On Thursday, July 20, 2006, the annual Pride Reception was
held at the Nova Scotia Barristers’ Society. This reception,
co-sponsored by the NSBS and the Canadian Bar Association
– SOGI Section, brings together members of the Bar to
celebrate diversity within the legal profession and to support
gay, lesbian and bisexual lawyers who live and work throughout
Nova Scotia. This year, Judge Jamie S. Campbell was on hand to
make comments about the role of law and lawyers in achieving
social progress.
This was the fourth year for the reception, which has seen an increase
in attendance since its beginning; this year hosting over
35 people. The CBA and NSBS continue to work to promote
and support law reform and diversity so that all members of the
legal profession feel valued and are included in the governance,
support, and development of our profession.
Judge Jamie S. Campbell
Renée Harleib and partner Lara Morris with daughter Sadie
Elizabeth Whelton and Terry Taylor
Second Vice President, Joel Pink, Q.C., and Jim Rossiter
August 2006

BRIEFS
The Honourable Justice
Gerald Borden Freeman Retires
Justice Gerald B. Freeman is retiring after 45 years of service to
his fellow Nova Scotians, 18 of which were served in the judiciary.
Born and raised in Liverpool, Justice Freeman began his working
life as a journalist at the Halifax Herald in 1953. He was
called to the Nova Scotia Bar in 1961 after earning a B.C.L.
from McGill in Montreal and a LL.B. from Dalhousie. But rather
than practising in the big city, Justice Freeman chose to go back
home to Liverpool and join Anne Crawford, W.S.K. Jones, Q.C.,
and Carl Milford, Q.C.
In March of 1988, Mr. Freeman, Q.C. became Judge Gerald B.
Freeman of the County Court in District #2 and of the local Supreme
Court. Then, just two years later, he rose to the Supreme
Court Appeal Division. In 1993 he became The Honourable
Justice Gerald B. Freeman of the Nova Scotia Court of Appeal.
He says the cases which have left the strongest impression
were the ones in which he found himself the dissenting
member of the panel. “I didn’t dissent because I enjoyed being
disagreeable,” says Justice Freeman, “but because a judge is
required to reach independent conclusions and mine didn’t
always accord with those of the rest of the panel.”
These cases are not simply memorable, however. Many have
also changed the way we live our lives, and have become part of
Canadian jurisprudence history — as has Justice Freeman.
For more about Justice Gerald B. Freeman, go to the “News”
section of the Courts of Nova Scotia website: www.courts.ns.ca
The Honourable Justice Gerald Borden Freeman
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10 The Society Record

Blakes Means Business
SECURITIES ASSOCIATE - 1 to 5 years experience, Vancouver
One of Canada’s leading national and international business firms,
Blakes is a progressive and forward-looking law firm. The firm’s
exceptional team of lawyers and unparalleled reputation has
been built on the principles of integrity and quality.
The Vancouver office has grown to over 60 lawyers who regularly act in some of the largest and most
complex public company finance and merger and acquisition transactions in Canada. The firm acts for
issuers, large and small, in a variety of industries and are leading advisors to domestic and U.S. dealers.
The firm’s rapidly growing securities and corporate finance group in Vancouver is seeking to add a lawyer
with 1 to 5 years of top-tier public company securities law experience.
If you are looking for an opportunity to experience a leading-edge securities law practice and have what
it takes to be a Blakes lawyer, maybe it’s time to make Blakes your business.
As this is an exclusive assignment with ZSA, please forward resumes to the contact below, quoting Ref#HSR5539
Emily Lee
Tel: (416) 368-2051
Fax: (416) 368-5699
E-mail: elee@zsa.ca
zsa.ca
C A N A D A ’ S L E G A L R E C R U I T M E N T F I R M T M
Isn’t it time that you
seized the opportunity
to change your world
BRITISH VIRGIN ISLANDS
Our client, Conyers Dill & Pearman, is an international offshore law firm with 7 offices worldwide,
and a Dubai office opening in July 2006. The firm has a wealth of experience in advising clients and
their professional advisers on company/commercial law in the world’s leading offshore centres.
Conyers Dill & Pearman’s offices in the British Virgin Islands (BVI) were opened 10 years ago to
handle the growing number of clients using the BVI to structure their international transactions.
In particular, BVI has seen a massive increase in the number of hedge funds established and
operated there.
The BVI office of Conyers Dill & Pearman now seeks to hire a mid-level to senior lawyer with at
least 8 years’ experience handling general corporate/commercial, securities and banking matters.
The successful candidate will work on a variety of corporate matters, including hedge funds, joint
ventures, mergers and acquisitions, financings and public company listings. Applicants must be
trained at a top-ranked Canadian law firm or financial institution. Working on behalf of
sophisticated international clients, the work will be varied and challenging, as well as highly
remunerative. You will also be rewarded by living in one of the most beautiful places on earth.
Ref#HSR8856.
As this is an exclusive assignment with ZSA, resumes sent directly to CONYERS DILL & PEARMAN will be
redirected to ZSA.
Emily Lee
Tel: (416) 368-2051
Fax: (416) 368-5699
E-mail: elee@zsa.ca
zsa.ca
C A N A D A ’ S L E G A L R E C R U I T M E N T F I R M T M
August 2006 11

12 The Society Record

Professionally
speaking:
working on a client’s behalf outside the courtroom
In an age of 24-hour-a-day news coverage, lawyers are increasingly
realizing that presenting a strong case in a court of law may not
be the end of their work on behalf of their clients. Today, savvy
lawyers know they must also craft a message for their clients that will
resonate with the public and they are regularly turning to communications consultants to help them
get that message out into the public domain.
Janet MacMillan, a principal with Halifax-based MT&L Public Relations Limited, says her firm
is often hired by lawyers to develop a communications strategy for clients. She says that in many
instances a client is faced with reputational concerns as well as legal problems and smart lawyers know
the advantages of bringing in trained professionals to help get the client’s message to the public.
“We have benefited from lawyers who have recognized early on where their expertise stops,” says Mac-
Millan. “Clients require someone to deal with legal issues and someone to deal with image issues.”
MacMillan says the kind of communications strategy a client needs will depend on who the client
is. She says she has dealt with lawyers who are handling negotiations and labour disputes; those who
work with private corporate clients and those who work with institutional clients. The strategy for
dealing with each client is entirely different based on their individual needs.
“We look at the organization’s objectives and goals and develop a strategy in support of that,” says
MacMillan, adding the tools used in the communication strategy vary from client to client. Where
one client may need to have its name in the press regularly to maintain a strong public image,
another may shy away from overexposure. “It’s not always in a company’s best interest to be out
there too much.”
Of course a good communications strategy costs money, especially when consultants are involved.
Joel E. Pink, Q.C., is a criminal lawyer who says that while he recognizes the value of engaging a
consultant or PR firm, the cost is often prohibitive for his clients. Instead, Pink normally does his
own press.
“I never refuse a press interview,” says Pink, a partner at Garson Pink. “It’s very important to get
your message out there on behalf of your client.”
But, Pink says, lawyers need to be very careful about what they say to the media.
“I talk about procedure, talk about law, but not about facts.”
Cindy Locke
Freelance Writer
August 2006 13

Lisa Taylor knows the value of utilizing a good communications
strategy. An associate at Merrick Jamieson Stearns Washington
Mahody, Taylor is a former journalist who turned to the law after
years covering court for CBC. She says clients are not the only ones
who can benefit from dealing with a communications consultant
– she believes lawyers can also learn from the experts how to
communicate effectively themselves.
“You need to make certain the press
understands the position being
adopted on behalf of your client.”
— George MacDonald, Q.C.
“I think what lawyers miss is they could use it themselves,” says
Taylor. “They could use the feedback to figure out their message
in a way real people will understand,” she says. And she believes
lawyers can provide a better service if they learn how to speak to the
public in language they understand, minimizing the use of what she
calls “high-falutin legalese.”
On the other hand, Taylor says journalists are trained to spot lawyers
who are trying to spin an interview to advance their client’s case.
“You risk alienating journalists if you try to not answer the
questions, to play them,” she says.
George MacDonald, Q.C., a partner at McInnes Cooper in Halifax,
says he has benefited from media training in the past. He says he
believes it’s important to bring a consultant in on a case that is likely
to have a high public profile.
“You need to make certain the press understands the position being
adopted on behalf of your client.”
But, he says, while a lawyer should feel comfortable speaking to the
press, he has to be careful not to try his case in the media.
“I’m not trying to use the press to try and win – but to try to get my
point across,” he says. “I don’t believe in saying ‘No comment’ to
the press because that doesn’t get your client’s position understood.”
And, with standard wait times of months, if not years, before a case
goes to trial, it’s vital to keep a positive image in the press.
“After papers are served, it may be months before a case hits the
courts,” says MacMillan. “You need to have a strategy to manage it
so that by the time the decision is rendered you haven’t already lost.”
Taylor agrees, saying a case doesn’t always get decided in the courtroom.
“There are lots of instances where someone has won in the court of
law only find they’ve lost in the court of public opinion.”
Potential. Realized.
14 The Society Record

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August 2006 15

Media training 101
When it comes to interacting with the media, you could
say the Crown Attorneys of the Nova Scotia Public Prosecution
Service fit into the category of “you’ve come a
long way baby!”
Crown Attorneys have emerged from the dark ages before 1999
when, upon exiting the court room, the tight-lipped “no comment”
was a common response to a reporter’s question. Today, Crown Attorneys
are more apt to look for reporters and ask if they need clarification
on what happened in the court room. It’s not unusual these
days to see a Crown Attorney walking comfortably into a media
scrum and confidently answering questions about the case at hand.
Prior to 1999, that sight would have been a rare one. The policy
covering media interaction then wasn’t clear. And many Crown
Attorneys, sensitive to an internal climate that encouraged silence,
chose not to risk getting themselves into hot water by saying something
to the media that could raise the ire of their bosses.
So, what happened to change things
During the 1990s a series of headline-grabbing events resulting in major
prosecutions focused unprecedented public scrutiny on Nova Scotia
Crown Attorneys and the Nova Scotia Public Prosecution Service.
National media and, in some cases, international media landed on
the steps of our court houses. And they wanted answers. So did the
public. In fact, the public – primed by the glut of popular cops and
lawyers shows on American television – had every expectation of hearing
the prosecution’s side.
While the defence was
quick to walk into a
scrum and offer up their
side, the Crown was hesitant.
They didn’t want
Chris Hansen
Director of Communications
Nova Scotia Public Prosecution Service
to compromise their case and weren’t always sure about how to talk
with the media without risking that. And, they were mindful of being
closely watched by a management that, at that time, seemed to
express a general disdain for the media.
The public was dissatisfied with the prosecution’s performance before
the television cameras and voiced that dissatisfaction loudly to
the politicians. (The difference between court room performance
and performance before television cameras was lost to the public.)
That public outcry was partially responsible for the government’s
initiation of an independent review of the Public Prosecution Service
as well as an independent review of the Westray prosecution.
Retired Judge Fred Kaufman made a series of recommendations to
help the Public Prosecution Service improve its operations. Several
recommendations focused specifically on communications. Judge
Kaufman said the PPS should “educate the citizens of Nova Scotia
about the role played by the Public Prosecution Service in the administration
of criminal justice.”
He said the PPS should be telling Nova Scotians just what it does on
their behalf and work to keep them in the loop during prosecutions.
Coincidentally, just as Judge Kaufman was getting his review underway,
the PPS experienced a change in leadership. The new Director
16 The Society Record

of Public Prosecutions was receptive to changing the way Crown
Attorneys interact with media.
So, when Judge Kaufman issued his findings, the PPS revised its
media policy accordingly. The current policy is clear. It says in part:
“Crown Attorneys should view media inquiries as opportunities to
speak to Nova Scotians. Responses to inquiries are to be made in
such a manner that they educate the public about the role of the
Public Prosecution Service and the Crown Attorneys in the justice
system, as well as informing the public about the Crown’s position
in the case in question.
“When responding to media inquiries, Crown Attorneys are to use
common sense and refrain from any comments that could jeopardize
the accused’s right to a fair trial, reveal undisclosed elements of
the Crown’s case or strategy, violate any bans imposed by the court,
or be interpreted as arguing the Crown’s case in the media.”
At around the same time the Public Prosecution Service revised its
media policy, it hired a Director of Communications to provide
advice and guidance on communications with all its key audiences,
including media. Media training was one of the first priorities for
the new director of communications.
To give Crown Attorneys the skills and confidence they need to deal
effectively with the media, the Public Prosecution Service began a
comprehensive program of media training. Beginning in 2000, all
86 Crown Attorneys – four at a time – underwent an intensive daylong
training session. New Crown Attorneys get the training as they
come on board. Aside from educating Crown Attorneys as to how the
media works and what it needs, the sessions focus on the various skills
and techniques a Crown Attorney can use to answer questions and
convey clear messaging about what is happening in the court room or
on a particular issue. The training also provides on-camera exercises
and critique. Follow-up or refresher training is provided as needed.
Just before the PPS embarked upon the media training program back
in 2000, it attempted to measure how frequently Crown Attorneys are
approached by the media. Some 80 Crown Attorneys in more than 40
court locations around the province reported daily or, at the very least,
weekly media interaction. Halifax, Dartmouth and Sydney reported
the highest frequency of media interaction. And, even if reporters
didn’t approach Crown Attorneys at the court house, they were still a
presence in the court room and were reporting on what transpired.
With the exception of our elected officials, it seemed clear that
Crown Attorneys were – and are – the most heavily scrutinized of
public servants. Reporters are not routinely watching teachers in
classrooms... nor doctors in their offices or operating rooms... nurses
at the bedside... nor any other public servant, for that matter, with
the same scrutiny.
But now, with a revised media policy... an encouraging internal climate...
a solid skill set in dealing with the media... and a communications
professional they can turn to for help, Crown Attorneys are
turning that media scrutiny into an opportunity; the opportunity to
ensure Nova Scotians understand what is happening in court rooms
across the province.
Kudos and In the Community
Have an employee you’d
like to acknowledge How
‘bout someone who’s doing
good work in his or her
community If so, we’d like
to hear from you! The Record
is looking for deserving
candidates for its Kudos and
In the Community columns.
Have someone in mind
Give us a call at 422-1491 or
drop us a line at psullivan@
nsbs.org.
I
Photo by Ted Power/NSBS
work at Gillis & Associates in Bedford. Being in “the law” is our community’s
generally a satisfying experience
for me (though some days cracks. The Society
can be very trying...). When
I consider
my
own conflict
with
also runs
a small
some aspect of the law, I usually
think of that upcoming hearing, food bank, a clothing
the phone call I have to return or
the
research I’ve yet
to
do. These
bank,
provides a safe
place for drop-in and counselling support,
conflicts, given the big picture,
are relatively modest and primarily and, where necessary, refers women to other community supports.
within my control. By contrast, the women served by the Elizabeth Elizabeth Fry also annually recognizes “Rebels with a Cause” —
Fry Society Mainland Nova Scotia
face substantial conflict notable Nova Scotian women dedicated to admirable causes. The
with the law or, due to a wide variety
of sad and unfortunate Society advocates for, publicizes and researches issues that affect
circumstances, are at a distinct risk for conflict. The manifestations the women it assists, including, most recently, mental health issues
of the law they face include incarceration, child apprehension, and child apprehension policies. A lot of the problems tackled by
parole issues and drug charges. Despite these obstacles, however, the Society are those about which few others are willing to speak.
the women are no different from the rest of us, who: hit the
proverbial wall at times, feel trapped by circumstances, or
I am immensely privileged that my position on the Board (since
encounter negative influences. What distinguishes them from us is August 2004), and as Chair (since February 2005) has brought
that they experience risks, poverty, and crisis;
circumstances most me into contact with this Society.
I really enjoy working with the
of us are fortunate enough to avoid. The support they receive from very dedicated board members
(Martha Amero, Selena Henderson,
the Society in handling these stressors is invaluable. Marian Mancini, Delthia Miller,
Linda Miller, and Carlene Miller-
Pease) and enjoy getting into the
practical side of governance,
The core staff (Laurie Ehler, Heather
McKenzie, Jeanette Milley, HR, and policy issues. Equally
important to me, however, is the
and Donna Phillips — Interim
ED), with lots of help from Mary opportunity I’ve had, and continue to have, to observe and admire
Young), along with great support
staff, students, and volunteers, the grass-roots work of the Society’s
staff. They’re there for women
provide women with support in
dealing with court situations, who are in almost perpetual crisis,
who too often lack support
child apprehensions, addiction
counselling, personal life skills services and resources (which I
believe others should be providing),
counselling, and issues associated with correctional institutions and who, as a result, often experience
frustration and fear. As a
(visits, social events, and assistance). These are just a few of the community, we can’t thank them
enough for what they’ve done
“big issues” faced by women who
might otherwise fall through and continue to do.
Barbara Darby
Gillis & Associates
in The
CommuniTY
Lending a much-needed hand at the Elizabeth Fry Society
50
October 2005 37
19
33
August 2006 17

LIANS
An effective intake procedure creates the foundation for a
good working relationship with your client. When there is a
good working relationship and good communication between
the lawyer and client, the risk of an errors and omissions claim is
significantly reduced.
An effective intake procedure includes:
• a good conflicts checking system
• an in-depth interview at the intake stage
• an effective client screening process
• an analysis of your practice workload, your resources, and
personal commitments
• an analysis of your competencies in the practice area
• appropriate retainer agreements, engagement letters, and
declination letters
In this article I address conflicts. The other components of an
effective intake procedure will be covered in subsequent articles.
Conflicts are a concern both ethically and from a risk management
perspective. Chapters 6, 6A and 7 of our Legal Ethics Handbook
(www.nsbs.ns.ca/handbook/handbk_jan17_01.pdf) deal with the
issues of conflict of interest. Take the time to re-read them.
Representing more than one party is always risky and frequently
results in claims, because the parties’ interests are at odds.
All good conflicts checking systems should:
• be integrated with other office systems
• require that the conflicts check be done in a consistent
format and be completed by persons trained and
responsible to do the check
• be easily accessible to everyone in the office
• require that the check be documented in the file for names
checked and who completed the check
• require that there be a check before an appointment is set;
before a file is opened and when any new party enters the case
• require a double check when the file is opened to confirm
the conflict check was done
• check for previous names (surname and given) and for the
various spellings of names
“
When there is a good working
relationship and good communication
between the lawyer and client,
the risk of an errors and omissions
claim is significantly reduced. ”
• require that all persons or entities connected with the
case, and their connection to the client are entered into the
system
• include in the list, lawyers in the firm, other staff and close
relatives of staff and lawyer
• include one-time consultations
Even with a good conflicts checking system some conflicts may
arise during representation. You should develop a policy to handle
conflicts as they arise and this policy should be communicated to
the client in your engagement letter/retainer agreement.
The Supreme Court of Canada in R v. Neil [2002] S.C.J. No. 72 and
[2002] 3 S.C.R. 631, discussed the various aspects and dimensions
of duties to the client, including loyalty, candor, commitment and
avoidance of conflicting interest. The court also stated that the
general rule is that a lawyer may not represent one client whose
interests are directly adverse to the immediate interests of
another current client – even if the two mandates are unrelated
– unless both clients consent after receiving full disclosure (and
preferably independent legal advice), and the lawyer reasonably
believes that he or she is able to represent each client without
adversely affecting the other.
Take a minute to complete the “Conflicts of Interest Checklist”
(located on the LIANS website at www.nsblcf.ca) to evaluate your
firm’s exposure in the area of conflicts.
Deborah E. Gillis, Q.C., is the Risk and Practice Management Advisor for LIANS. She may
be reached at 423-1300 ext. 345 or at dgillis@lians.ca
18 The Society Record

August 2006 19

Seven
tips to
make sure
journalists
get it
right
It’s 6:45 a.m. You’re on your drive
to work, coffee in hand, when your
cell phone ringer goes off. At the
other end is a somewhat panicky sounding
colleague who asks if you’ve read the
morning paper. “Not yet,” you reply.
“Why, what’s in there”
20 The Society Record

Richard Perry
Communications Specialist
“Page three,” he says, running
out of breath. “Upper right corner,
the bold headline. Good luck
when you get to the office.”
There are few things as frustrating as finding your key messages
distorted or taken out of context. Yet it happens everyday to wellintentioned
spokespersons who assume that the journalistic editing
process will preserve the pith and substance of their well-honed
media messages.
Here are seven guidelines to put the odds in your favour; not to
impress the media, but to make sure your partners, staff, and other
important audiences see you doing and saying the right things.
1. Know what you’re getting into
Understand why the media have come to you in the first place. Is
it to further a controversial story Get reaction to something new
A consumer piece Are you the perceived villain or hero The
media story is going to give thousands, if not millions, of readers
or viewers a perception of you and your organization, and a quick
perception at that. How you shape your messages must address the
manner in which you are being portrayed. If you’re the bad guy,
with credible opponents pointing fingers at you, it’s time to put on
your best apology face and offer to help make things right. Hauling
out the heavy attack artillery will only keep you in the muck
longer. Not fun.
2. Passion trumps logic
Don’t try to outsmart the media, they control the process. And if
you’re brave enough (or, in some cases, foolish enough) to play their
game, you’d better understand that you can’t argue your way out of a
bad story. Find a compelling way to reach your audience on the only
level they can be reached, and that’s with passion and personality.
Whatever your viewpoint on the issue du jour, punch it into the
hearts of the audience with a story or anecdote. Use references to
daily events, cultural and sports themes. “My reaction to our victory
in court today Why, it’s like winning game seven of the World
Series!” That quote is guaranteed to make reporters’ ears perk up. A
recitation of the constitutional merits of your legal brief, important
as they may be to your legal colleagues, is a useless public message.
3. Repeat thyself. Repeat thyself
You don’t need 10 answers to 10 questions. You need one or two
good answers that you can sneak into 10 different questions. Yes,
it might drive reporters batty, but who cares. Your goal is to drive
home a few relevant, clear points with an audience that doesn’t
have the time or legal savvy to decipher complicated statements.
The fewer editing options you give journalists, the greater the
likelihood that they will be forced to use the quote you offer.
4. Don’t be subtle, use a pile driver
Winston Churchill said if you have an important point to make,
don’t be subtle or clever. Haul out the piledriver and give it a
whack, a tremendous whack, and then come back and give it
another. So phrases such as “Let me reinforce the point I made
earlier”, “Again, what I’m advocating is...”, and (George W. Bush’s
favourite) “Let there be no mistake, we will win the war on terror”,
do just that. Sound simplistic It is. That’s why it works. Punch
your ideas out there. Hammer them home. The more room you
leave for interpretation, the greater the risk of being misquoted.
5. Ignore the reporter (politely)
How a reporter behaves and what they ask is almost irrelevant.
What matters is how well you control what you say and whether
you have the discipline to reach who really matters — John and
Jane Public.
When I was a young television reporter, I would often try to
dominate news conferences with aggressive questions. I even
suggested to a Premier during a live election-night broadcast,
that he had pretty much lied to voters during the campaign. In
retrospect, it was highly unprofessional, but I was more interested
in provoking a good answer than in being polite. He had every
right to call me an idiot and suggest that CBC send me to the
Arctic, but he kept his cool and talked about how good it felt to
win, how proud he was of his campaign team, and how he looked
forward to serving the public. Inside, he was probably calling me a
low-down son-of-a %$#$#, but he wisely took the high ground.
6. Paint word pictures
The reporter is looking for a short quote to help further an
interesting story. Nothing more. When Hillary Clinton was asked
about her husband’s tendency to cast his eyes (and who knows what
other parts of his anatomy) elsewhere, she was said to have replied,
“You know, we have a saying back home — sometimes it’s just hard
to keep the big dog on the porch.” Bingo.
Or how about this quote from an airline executive who was asked
if he would cut in-flight services to be more competitive with other
airlines. “Why, no,” he said. “That would be like taking the cheese
off the pizza.” Again, the visual makes us remember his point. We
think in pictures, so use it your advantage.
7. Take your time
Never allow yourself to be forced into a hurried comment by
deadline-crazed reporters. When I did radio news, I would often
call a source five minutes before airtime and beg for “just a quick
quote” to make the deadline. Be very careful. The looming
deadline is the reporter’s problem, not yours. The world won’t stop
if you take an hour to think through what you ought to say and
then call the reporter back. People who often complain about being
misquoted are guilty of a cardinal “spin sin” – they put their lips in
motion before their brain.
So, remember. A clear, thoughtful answer, told in a compelling
way, with your own personality, is your best shot at helping the
media get it right. As a mentor once told me, “Rich, if you’re ever
misquoted, it’s your own damn fault!”
Richard Perry is a former Director of Communications with the N.S. Dept. of
Justice. He is currently with the Department of Natural Resources and can be
reached at perryrg@gov.ns.ca.
August 2006 21

Mastering the media
The art of leaning how to influence the court of public opinion
Good lawyers are masters of influence. They communicate
their client’s case or position with skill and confidence.
They operate seamlessly within the courtroom, the deal
room and the board room.
Great lawyers take this one step further, recognising that to be
the best lawyer they can be – for both their client and their own
business – wider influencing skills come into play.
For some, this may be hard to accept. Many lawyers entered into
a profession that seemed to operate by its own set of rules, far
removed from the world of ‘sales’, ‘targets’ or the ‘bottom line’. But
they now find themselves in a business as fierce and competitive as
any other. They face the challenges of decreasing client loyalty and
an increasingly crowded marketplace.
The media plays a central role
for the modern business of law.
Well-managed media relations
can dramatically improve the
effectiveness of your marketing
Jennifer Pink
Lawrence Graham LLP
London, England
strategy. It can reassure clients of your skill and value, attract new
clients or recruits, impact positively upon office morale — and scare
your competitors.
On the flip side, mismanaged media relations can cause serious and
even irreparable damage to an organisation or person’s reputation.
Daily, we see the power of the media to build profiles up and to
destroy them.
No matter what your specialisation, it is worth investing some
22 The Society Record

time and effort to enhance your wider communication skills and in
particular, your ability to engage with the media.
There are a number of scenarios in which the media is a valuable
tool for lawyers. A couple of the most common uses are:
1. Making your case
For many lawyers, the role that the media plays in influencing the
outcome of litigation is a particularly contentious point. “Litigation
support” or “litigation PR” are the terms now most widely used
to describe the role that communications professionals play in
supporting lawyers and their clients in complex or high profile
litigation. This work is best described as building a favourable
climate of opinion.
A thorough understanding of media law is the starting point before
undertaking any media litigation work. The ‘dos’ and ‘don’ts’
vary among different jurisdictions and must always be clearly
understood.
This is one area where unless you are highly experienced in handling
litigation that attracts wide media interest – such as human interest
‘stories’ (eg: cases involving children, high profile business people or
politicians) or cases involving potentially large damages - you should
almost always seek the support of a specialist.
2. Building your profile
Increasingly, our opinions are affected by what we read in newspapers,
magazines and on the Internet, hear on the radio and watch on
the television. The more a lawyer is quoted in any of these sources,
the more likely they will be presumed to be a skilled and professional
operator.
Building a positive brand and profile for you and your firm takes
time and energy. But it is perfectly possible. Some firms have
dedicated resources for this purpose. But the good news is that
quality editorial coverage is free – or, perhaps more accurately, costs
the price of a cup of coffee and some of your time.
Many firms pay tens of thousands of dollars a year, or more, on
advertising. Others get to know a handful of influential journalists
who call them regularly for comment, or they write regular columns
in the business magazines read by their clients. The latter is both
more credible and cost effective.
The media is an incredibly powerful tool for lawyers. You don’t
need a great deal of training or experience to start making it work to
your or your client’s advantage. Once you start viewing the media as
a tool you can harness, the opportunities will become boundless.
Jennifer Pink is Communications Manager at London-based business law firm
Lawrence Graham LLP. She can be contacted at Jennifer.pink@lawgram.com.
August 2006 23

Privacy issues abound in the world of the
Internet with its easy access to what is often
considered to be private or personal information
24 The Society Record

negotiating the
new legal
landscape
There’s an old saying that captures the need for privacy and
the need to know that privacy is being respected. It goes
like this: What happens in Vegas stays in Vegas. Today, in
an information age, the saying has morphed. It now goes like this:
What happens in Vegas is on the Internet within minutes.
For legal professionals, the Vegas equivalent is the courtroom. Today
judicial decisions at all levels are usually available online in their
entirety and can be accessed from the comfort of a living room
and shared via a chat room. On one level, this access is not new.
Journalists have always gone into the courtroom and reported on
what occurred there. Citizens could always wend their way to the
court library for a copy of a decision.
“We have to have open access to our courts,” says Michael
Deturbide, a law professor at Dalhousie University. “But today
access is world wide. That has set up a whole new dynamic. You
could conclude that this is
just another medium. But the
difference is the dissemination
and the ease of getting that
information.”
“It is a significant issue,” agrees
Teresa Scassa, director of the
Law and Technology Institute
at Dalhousie University. “Most
courts provide decisions, and there are a lot of cases where you can
get personal information.”
Some of that information could potentially put someone at risk.
For example, in earlier decisions, a bank account number might
have been referenced. Armed with such information today, a savvy
computer hacker might well be able to access that account. Other
information, of course, while less threatening to the bottom line
or personal safety, is just plain embarrassing. Fights with former
spouses, for instance, can be played out in decisions for the world to
read, or at least the neighbours.
There are ways of shielding this
personal information, particularly as
it may relate to finances and other
critical data, and the courts take steps
“I don’t think it’s any
coincidence that privacy
legislation coincided with the
advent of the Internet.”
donalee Moulton
Freelance Writer
to protect both information and identity where necessary. Indeed,
the Canadian Judicial Council has released guidelines on the issue.
“But,” cautions David Fraser, a lawyer with McInnes Cooper in
Halifax, “the default is that information is available.”
In the modern era, he adds, that information is often available
without a second pair of eyes having reviewed it en route to
publication in the Dominion Law Reports. “A lot of decisions are
published on the Internet without having gone through the hands
of a couple of editors.”
The combination of easy access,
public availability, and inherently
thorny issues can put lawyers, courts
and law societies on the hook, or
at least on the receiving end of
queries from a concerned client or
a disgruntled citizen who often do
not understand why their personal
or professional life is being played
out via someone’s website, blog or list serve. “These are issues that
courts and law societies have been struggling with. There is no one
solution,” says Deturbide.
For Jim Middlemiss, editor of Canadian Lawyer, there is, however,
one underlying principle to which the profession must adhere, and
that is public access. “Lawyers should not play editor of good taste,”
he says. “There is a consequence to litigating. You don’t litigate in
privacy.”
August 2006 25

But there are some things that are done in private, and the federal
government has moved to ensure they remain private. “It was the
federal privacy law that brought the issue to the fore for many
people…. It governs what lawyers and their clients can do,” says
Fraser.
The Personal Information Protection and Electronic Documents Act
(PIPEDA), which came into effect in stages beginning in 2001, sets
out ground rules for how private sector organizations may collect,
use, or disclose personal information in the course of commercial
activities. The law also gives individuals the right to access (or
request a correction of) the personal information these organizations
may have collected about them.
Initially, PIPEDA applied only to personal information about
customers or employees that was collected, used, or disclosed
in the course of commercial activities by the federally regulated
private sector; organizations such as banks, airlines, and
telecommunications companies. The Act now applies to the retail
sector: publishing companies, the service industry, manufacturers,
and other provincially regulated organizations.
The new technology has lead to increased concerns over privacy,
says Deturbide. “I don’t think it’s any coincidence, for example, that
the privacy legislation coincided with the advent of the Internet.”
Ironically, despite the furor that erupted during the passage of the
new legislation, many individuals, companies, and lawyers are not
familiar with what it requires. “The privacy law has slipped in under
the radar for a lot of people,” says Scassa.
“Lawyers,” she adds, “need to know it for their clients.”
The law profession also needs to be aware of its own vulnerability in
a new electronic age. Email, for example, is a way of doing business.
Yet, cautions Middlemiss, lawyers are often too casual about emails.
“They don’t see them as letters, they see them as conversation.”
In addition to content, there is the issue of access. “Nothing is
totally safe,” stresses Deturbide. “You should think twice before you
send an email. Emails are shunted through various servers and can
be intercepted.”
Online deal rooms, complete with documents related to the case,
are also becoming more common in legal practices today, and they
are becoming a bigger concern from a privacy perspective. They are
also one more example of how the technology continues to evolve.
Now, for example, there is a move to filing case-related documents
electronically, which would mean even more information is available
to individuals via the electronic courthouse. At the same time,
technology advances.
“The technology is nowhere near where it’s going to be, and the law
will always be catching up,” says Scassa.
So, therefore, will lawyers.
26 The Society Record

Leading
by example
A look at some of Nova Scotia’s most important and precedent-setting media law cases
Linden MacIntyre’s request was simple. The CBC Television
reporter, now a host of the investigative program The Fifth
Estate, wanted to see search warrants used to seize documents
from Liberal party fund-raisers in Nova Scotia, as part of an RCMP
investigation into allegations of political corruption.
warrant should
remain private
if the search did
not yield evidence.
Dean Jobb
Assistant Professor of Journalism
University of King’s College
When MacIntyre went to Halifax’s provincial court office more than
25 years ago, it was not clear whether search warrants – and what they
reveal about criminal suspects and ongoing police investigations –
were in the public domain. The justice
of the peace who issued the warrants
refused to hand them over.
The CBC took the matter to court.
In a ground-breaking decision, Justice
Peter Richard, a trial judge of the
Nova Scotia Supreme Court, ruled
that once a search has been carried
out, the warrant and its supporting
documents must be made public. The
Supreme Court’s Appeal Division
(since renamed the Court of Appeal)
granted even more access, opening
warrants to inspection regardless of
whether they had been executed and
requiring public hearings when police
apply for a warrant.
The case ultimately reached the
Supreme Court of Canada, which
adopted a middle course in its January
1982 judgment. By a margin of
5-4 the court rejected the notion that
applications for warrants should be
vetted in public, since this would give
suspects a chance to hide or destroy
evidence. But Justice Brian Dickson,
the future chief justice who wrote
the majority judgment, declared that
warrants are public documents once a
search has been conducted. Dickson
made one exception – to protect innocent parties, he ruled that a
CBC’s Linden MacIntyre
“MacIntyre remains one of the
leading cases on access to court
records even though it predates the
Charter of Rights and Freedoms.”
Attorney General of Nova Scotia v. MacIntyre is one of a handful of important
media law precedents to come out of Nova Scotia. Dickson’s
ruling recognized that the business of Canada’s courts, with few exceptions,
must be conducted in the public
eye. “At every stage” of the court
process, Dickson wrote, “the rule
should be one of public accessibility
and concomitant judicial accountability.”
Public access can only be
restricted “to protect social values of
superordinate importance,” such as
the need to protect innocent persons
caught up in police investigations.
Courtesy of the CBC Digital Image Gallery
Protection of the innocent was the
key issue in Vickery v. Nova Scotia
Supreme Court (Prothonotary), another
Nova Scotia case that wound its way
to the Supreme Court of Canada.
In 1988 Claude Vickery, a producer
with CBC Television, sought access
to audio and video recordings in
which a man confessed to murder
and re-enacted the crime. The confessions
were ruled inadmissible and
the man was acquitted, but Vickery
argued the tapes were still on the
public record.
Then-Chief Justice Constance Glube
agreed but the Appeal Division overturned
her ruling and the CBC took
the case to Ottawa. This time the
Supreme Court split 6-3 and ruled in
1991 that judges can control access
to exhibits used as evidence in court. Citing MacIntyre, the major-
August 2006 27

ity said a person acquitted of a crime must be considered innocent
and privacy rights take precedence. The public’s right of access to
the confession, the court added, was fulfilled when the tapes were
played at the man’s trial.
“Dickson’s ruling recognized that
the business of Canada’s courts,
with few exceptions, must be
conducted in the public eye.”
Other, lesser-known Nova Scotia rulings have expanded news coverage
of the courts. In 1995 the Chronicle Herald won access to the
transcript of a controversial youth court trial. Last June, Provincial
Court Judge James Burrill granted a joint request from the newspaper
and the CBC for access to exhibits filed at the sentencing of a
teenager who killed a Halifax woman while speeding in a stolen car.
In 2001 the Herald and The Daily News fought against a motion to
ban publication of the names of two young assault victims, which also
would have prevented the media from identifying their assailant – one
of the first tests of a new Criminal Code provision. Associate Chief
Judge Brian Gibson of the Provincial Court refused to impose the
ban, ruling the identities of people involved in criminal cases should
not be shielded simply to avoid embarrassment or humiliation.
MacIntyre remains one of the leading cases on access to court records
even though it predates the Charter of Rights and Freedoms,
which enshrined the media’s right to freedom of expression. In
fact, when Parliament introduced Criminal Code amendments in
1985 to limit the impact of MacIntyre and restrict access to search
warrants, courts in Ontario, Quebec and Manitoba struck down
the amendments as a violation of the Charter.
A year ago Justice Morris Fish of the Supreme Court of Canada cited
MacIntyre in a ruling out of Ontario that further refined how the
courts should deal with access to search warrants. “The administration
of justice,” he wrote in Toronto Star Newspapers Ltd. v. Ontario,
“thrives on exposure to light – and withers under a cloud of secrecy.”
After more than two decades, the impact of one Nova Scotia journalist’s
simple request is still being felt.
Dean Jobb is an assistant professor of journalism at the University of King’s College
and author of Media Law for Canadian Journalists, published in 2006 by
Emond Montgomery Publications (www.emp.ca/books/093-4.html).
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28 The Society Record

CONTINUING PROFESSIONAL DEVELOPMENT
CONFERENCES & SEMINARS
SUNRISE SERIES: Intensive Civil Advocacy
September 22, 27, 29 & October 4, 6, 13, 20
The Halifax Club, 1682 Hollis Street
7:30 - 9:00 am
A collaborative program between the Nova Scotia Barristers’ Society and the
American College of Trial Lawyers, this intensive series is offered in 7 sessions
over 5 weeks and will cover the basics of trial practice. Seminars will include presentations
by the faculty, demonstrations of technique and in-depth discussion
and Q&A.
Hosted by experienced senior litigators, this is a unique and valuable opportunity
to learn from and interact with the leading members of the litigation Bar.
Space is limited and filling up fast! For more information or to register, visit us
online at www.nsbs.ns.ca/cpd.htm.
LAND REGISTRATION ACT EDUCATION
October 2 (lawyers and assistants)
October 3 (lawyers only)
9:00 am - 5:00 pm
NSBS Classroom, 1645 Granville St., Suite 1101, Halifax
This intensive two-day program prepares lawyers, assistants and title searchers
to work in the Land Registration System. Lawyers must complete this course in
order to migrate property in Nova Scotia.
To register, visit us online at www.nsbs.ns.ca/cpd.htm.
Hold the date!
2006 Criminal Law Conference
November 3, 2006
The Lord Nelson Hotel, Halifax
Registration coming soon.
August 2006 29

“I say to any lawyer, regardless of your circumstances,
give yourself the help you need.”
~ a member of the Society
Below is the full text of an email recently received by LAP.
The LAP saved my practice and my
marriage. After suffering, unknowingly,
from depression for years, I finally called when
my practice began to show cracks. Clients
were complaining. I was looking for reasons to
stay away from the office and procrastination
became a way of life. My marriage was in
trouble but I was down so low I couldn’t see
the reasons. I felt utterly alone.
I then remembered a presentation by LAP
from years earlier and decided to call. It was
the best decision I ever made.
When I called for help, the friendly voice
on the other end assured me there was a
way out. I was immediately referred to
counseling, both personal and marital. No
judgements. No negative consequences. The
costs were paid when I could least afford to
pay them. And I no longer felt alone. The
hopelessness was lifted.
I say to any lawyer, regardless of your
circumstances, give yourself the help you
need. You’re human. You sometimes need
a lifeline. And whether your problem is
psychological, marital, financial (or all three
as it often is), addictions or anything else,
this program is here to help you. No one else
will ever know. I say it’s the best program the
Barristers’ Society offers.
30 The Society Record

Letting the
Media in on it:
Judges and the Modern World
Somewhere over the Atlantic. Musical and poetic Irish words
and phrases from the Gaeltacht still reverberating in my head.
All is right with the world for the moment — or at least with
my world.
Photographers and journalists are a constant in the Gaeltacht – the
regions of Ireland, almost all along the western coast, where the Irish
language is officially recognized as the primary language. Everyone
seems to want to know and no one seems afraid to tell. Gleanncholmcille,
the village I was visiting, is like Brigadoon: it appears out
of the mists as you come over the crest of the last mountain pass; a
place of magic, and likely of mystery.
To most of the world, the courts are every bit as mysterious as this
hidden Gaeltacht. Perhaps not as magical, although everyone knows
— or fears — the hocus-pocus, the incantations in secretive language,
and the strange customs practised in the presence of judges.
Journalists and photographers
abound at the courts
as well. They often wear the
same baffled expressions as
Chief Judge Patrick Curran
Provincial Court of Nova Scotia
do first time English-speaking tourists in the Irish-speaking Gleann.
But, unlike in Gleann, no one comes forward to welcome them, let
alone to explain it to them. No one says the sober judicial equivalent
of “Step into Biddy’s for a pint and I’ll lay it all out for you.”
More’s the pity.
“Do we think our power of moral
suasion will somehow be lost or
diminished if the outside world begins
to know and understand us”
What are we afraid of Is it that we will give away part of our souls
if we are interviewed and our photos taken Do we think our power
of moral suasion will somehow be lost or diminished if the outside
world begins to know and understand us Those are fears any
ancient culture faces when it encounters the modern world, but
encounters are inevitable. Answering questions means allowing the
outside world to look inside. It means running the risk that imperfections
will be recognized and the ancient culture changed to suit
modern sensibilities. Yet it also gives the rest of the world a chance
to see there is something wonderful inside that is worth preserving.
The Gaeltacht is on a knife’s edge. With few material advantages, it
is on the outer fringes of an outer island off a great continent. Opinion
makers say it is an anachronism, irrelevant in the electronic universe
and a barrier to progress. Yet the people of the Gaeltacht know
they have something important to hold onto, and they celebrate
their existence in ways that have roots beyond memory and history.
Anyone fortunate enough to spend a little time immersed in their
language and culture is uplifted by the experience.
How could anyone not be uplifted by the accumulated wisdom of
the ages at the heart of our justice system We judges, the keepers of
that system, have the power to allow the world to be immersed in
the knowledge of it. Let’s open the doors.
August 2006 31

View from the Trenches
Nova Scotia’s criminal justice system can move at a snail’s
space, so I have to rewind years of covering courts for the
Halifax Herald to gauge just how far it’s come since I was
first assigned to the beat in the early 70s.
Gone are the days when sentencing options were limited to incarceration,
probation, or suspended sentences, and many crusty old
judges hurled fire and brimstone down from bench, striking fear
in the accused and those Crown and defense lawyers pleading their
cases before them.
It was a beat I initially had little knowledge of and a couple of early
blunders almost ended my career before it even began. But I learned
quickly (to the credit of many judges, administrative staff, Crown,
defense, and legal aid lawyers who willing gave of their precious
time to answer persistent queries about how the system worked) and
developed relationships I’m happy to say continue to this day.
I’ll never forget the late County
Court Judge Peter O’Hearn calling
me to his office to correct
spelling and grammar errors in
Brian Hayes
Herald Court Reporter
court stories I had written. Nor the many times Supreme Court justices
would pop into my small office at the Law Courts building late
at night to get my views on a jury’s decision.
Many lawyers during those early years have since been named
Queen’s Counsels and are now distinguished members of the Nova
Scotia Bar. A few have even been appointed judges.
In recent years, Canada’s justice system has shifted from a hardened
to a more compassionate approach in its dealing with the criminal
element to reduce the country’s prison population. As a result,
today’s judges and lawyers appear as well-versed on a host of new
community sentencing options (house arrest and Restorative Justice
for youths) as they are in criminal law. With today’s changing tech-
32 The Society Record

nology, it’s not unusual to see them entering courtrooms with laptop
computers in hand. I also sense judges are more caring and in tune
with the individual cases before them.
In my mind, the Crown attorneys and criminal defense lawyers I
have dealt with over the years are the equal to their counterparts
across the country. It’s that competence that I believe explains why
judges appear so willing to accept their joint sentencing recommendations.
While questioning some sentencing decisions, I’ve always found
most to be fair and within the limits imposed by federal legislation.
It bugs me that some judges’ decisions are attacked by uninformed
people who have never been in a courtroom. Perhaps it’s partly my
fault for failing to get the message out.
And bravo to Chief Provincial Court Judge Pat Curran for going
public to defend a judge in Windsor youth court last year who had
been assailed for releasing a boy from custody only days before he
was involved in a 2004 Halifax car crash that killed Theresa McEvoy.
Judicial independence is crucial, but it seems to me there needs
to be a mechanism to allow judges to defend themselves, especially
in high-profile cases. It irks me that two Crown attorneys, also involved
in the boy’s release, didn’t get the same kind of support from
their superiors in the Public Prosecution Service, and from Michael
Baker who was Justice Minister at the time. The minister was quick
to criticize the Crowns for their failures, but it seems to me he and
Public Prosecution Service management flaunted the golden rule of
rushing to judgement before all the facts were known.
The province’s justice system is complex, but I’ve learned the key
to its success depends on the cooperation and appreciation of all its
components — from the police officer on the street to the judge on
the bench.
The opinions presented in this article are those of the author and do not represent
the views of either the Halifax-Herald or the Nova Scotia Barristers’ Society.
NOVA SCOTIA COURTS’ MEDIA GUIDELINES
The Nova Scotia Judiciary’s media guidelines date back
to the early 90s. All along, they have been evolving to
meet the changing needs of the media and the Courts,
to take into account new technology, and to keep them in step
with the law. The most recent draft introduces the accreditation
of journalists who cover the Courts. It also includes a new
“consequences of breaches” section which sets out a protocol
for breaches of the guidelines. Both were developed last year by
a committee of press/media and judicial representatives.
The accreditation process includes generous qualification
criteria and provides anyone who might be rejected with
the opportunity to appeal to a committee dominated by
representatives of the press and media.
Accreditation enhances the media’s access to the courthouses,
courtrooms, and Court documents. For example, in the Law
Courts building, accredited journalists have priority in the
designated media sections of the public areas. They are offered
the use of a media room. And, when they request it, they are
given access to exhibits admitted as evidence in on-going trials.
Accreditation will also help bring the guidelines in step with
changing laws. Increasingly, Canada’s Courts are considering
journalists “interested parties”, a designation assigned to
people or groups who are to be given broader access than the
general public to the business of the Courts.
For example, decisions covered by publication bans can not
be posted on the Courts’ public website or released via e-
mail through the Courts’ release-of-decisions-subscriptionservice.
Doing so would constitute a breach of the Courts’ own
publication ban. However, these same decisions can be made
available to the media. By identifying journalists through the
accreditation process, the Courts will be able to release such
decisions directly to them via email.
It would be incomplete, however, to suggest the media
guidelines are only designed to enhance media access to the
Courts. Specific guidelines such as accreditation, designated
media areas, and the consequences of breaches protocol also
help to ensure security, safety, and decorum. Nova Scotia is the
only Canadian province or territory in which journalists may
use their cameras and audio recorders inside the courthouses.
By putting all members of the media on an equal competitive
footing, designated media areas for example, do away with the
need for scrums (the swarming of people who are coming and
going from the courthouses).
For more information on the Courts of Nova Scotia media
Guidelines, go to the Courts website: www.courts.ns.ca and
click on “Media Information”.
— John Piccolo
August 2006 33

Summation
The Destructive Power of Disrespect
If irreverence and disrespect are not identical twins, then they are
certainly fraternal. They look so much alike that distinguishing
which is which often depends on whether you are the one
being irreverent or the one being disrespected. If you look closely,
however, you can tell one from the other. It’s in how they act and
especially in the consequences of their behaviour.
What separates a functional and
safe society from total anarchy is
respect for the rule of law.
Irreverence is the well-adjusted twin, spirited yet incapable of
malice. Quick-witted and with an upbeat sense of humour, he offers
a healthy perspective, often reminding us not to take ourselves too
seriously. Although irreverence can be critical, even confrontational,
he is never disrespectful.
His brother, on the other hand, is maladjusted. He too is clever
but harbours a hurtful sense of humour. He can be brutally critical
and often attacks on a personal level as well as a professional one.
Disrespect revels in cutting everybody around him down to size so
as to make himself appear superior.
Now, the focus of this magazine is how the media and the justice
system relate to each other. So, in that context, the question is “why
should we be concerned about the distinction between irreverence
and disrespect” Because, aside from its emotional impact on
some of the individuals who are the targets, there is a broader and
potentially more harmful effect.
What separates a functional and safe society from total anarchy is
respect for the rule of law. The legal professionals – those who we
might call “the keepers of the rule of law” - who work within the
justice system every day certainly understand this. They know how
the law is woven into the very fibre of our society. They also grasp
the distinction between themselves (the keepers of the rule of law)
and the law itself - the tool they use to help maintain a functional
and safe society.
But to most people, the rule of law is intangible. It is just a concept.
They know it exists because it affects their lives, how they act, and
how they interact with others. What they can’t readily grasp is the
distinction between the rule of law and its keepers. They generally
define the rule of law as its physical manifestation: the people who
make up the justice system (the legislators who write and enact
the laws), the police who enforce them, the justice department
administrators, the prosecutors, defence lawyers, and judges, the
corrections officials, parole board members, and parole officers.
Can we say
with absolute
confidence that
video games,
John Piccolo
Communications Director, Nova Scotia Judiciary
car commercials, song lyrics, and other forms of entertainment
which depict - if not promote - unlawful activities have no effect
on the public’s respect for the rule of law Equally, can we say with
absolute certainty that the disrespect for the keepers of the rule of
law being shown more frequently in some press and media coverage
of the justice system has no effect on the public’s - especially young
people’s - respect for the rule of law
This is why we need to learn to recognize the twins: irreverence,
with his sassy but insightful, productive, and always-above-the-belt
criticism, and disrespect, who is usually hurtful on a personal level,
often irrelevant on a professional one, and who, I would argue, is
always destructive.
Disrespect for the keepers of the rule of law will inevitably lead to
disrespect for concept of the rule of law. And we’ll take another
step towards anarchy, not total anarchy maybe but the anarchy of
dysfunction certainly.
34 The Society Record

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36 The Society Record