Legal Submissions in 140

By: Omar Ha-Redeye · December 14, 2011 · Filed Under Aboriginal Law, Environmental Law · Comment 

I’ve been invited to participate in the first moot to be held entirely on Twitter.  The Twitter Moot will cover environmental law and First Nations rights, and is already attracting international attention.  I’ve written a little more about this on Slaw.

The student competitors this year are:

  • Team Dalhousie: Michele Charles and Kristen Balcom from the University of Dalhousie in Halifax, Nova Scotia.
  • Team Osgoode: Nikki Peterson and Emelia Baack from York University, in Toronto, Ontario;
  • Team Ottawa: Yana Banzen and Kowlasar Misir from Ottawa, Ontario;
  • Team UBC: Meghan Trepanier and Matthew Kalkman from Vancouver, British Columbia;
  • Team UVic: Matthew Nefstead and Julie DeWolf from Victoria, British Columbia;

Press release by WCEL below.

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Reconsidering Columbus Day

By: Contributor · October 12, 2010 · Filed Under Aboriginal Law · 1 Comment 

One year later, it’s still worth reconsidering.

Lawlessness

By: Law is Cool · November 13, 2009 · Filed Under Aboriginal Law · Comment 

Caledonia family lived ‘terrified existence’

Barbara Brown writes for the Hamilton Spectator:

A Caledonia family lived inside “a war zone,” says a Hamilton lawyer whose clients will testify about being trapped inside the barricades during the 2006 native occupation of the Douglas Creek Estates.

AdviceScene

Iacobucci: Recognizing History of Residential Schools a “Necessary Step”

By: Omar Ha-Redeye · November 8, 2009 · Filed Under Aboriginal Law, Politics · Comment 

Notes from a keynote speech by Justice Iacobucci at the Federation of Asian Canadian Lawyers (FACL) Fall Conference.

Grew up in the East End of Vancouver, where there was lots of diversity of people from many backgrounds.  Justice Iacobucci noted that he entered the law exactly 50 years ago, in 1959, when he graduated from UBC.  There wasn’t a lot of visible minorities in the profession back then. There also wasn’t a lot of “funny names” in it back then.  He recalls that when he told by one of his undergraduate professors that he wanted to do law that he shouldn’t go, “You don’t have the right name for it.”  But another told him that he should, because “Canada is changing.”

Canada is changing, and the proof is the numbers of visible minorities that are entering law, a profession that historically has not been welcoming to women or minorities. But there is more to do with inclusiveness, and creating strength in diversity.

He started by reminding us all that everyone in Canada can be put into two groups – native Americans, and the rest of us are immigrants.  It’s just a question of timing.  We’re all immigrants.  Many come with values, and not much else going for them.  But those values, with an opportunity, can accomplish a lot.

Not all of us have had those opportunities.  The focus of Justice Iacobucci’s talk was on the Aboriginal Residential School file, one of the most challenging files he was exposed to.  The talk was not about the legal aspects, but rather how a country deals with its past in a way that is fair and honourable.

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Reconsidering Columbus Day

By: Law is Cool · October 12, 2009 · Filed Under Aboriginal Law, Civil Rights · 2 Comments 

It’s turkey day in Canada.

But for our American neighbours, it’s Columbus Day, which commemorates the arrival of Columbus to the Americas on October 12, 1492.

Many Americans don’t see this as reason to celebrate.

The Examiner says,

For many in the United States, Columbus Day is just another holiday. It is a time to spend with family and friends, an opportunity to take a short vacation, an extra day of rest from a long work week, or it is the last chance for a barbecue before winter. But for others, it is a sharp and painful reminder that history has betrayed and forgotten the contributions of their people, the lives lost, and a rich culture that pre-dated colonization…
This drastic decrease in the indigenous populations of the Americas, later brought about the trans-Atlantic African slave trade, and was followed by indentured Chinese labor after slavery’s abolition. The thirst of cheap labor and the blood of the indigenous, Africans, and Chinese, still stain the soil that is the foundation of development in the New World.

Maybe it’s time to reconsider Columbus Day.

Madame Arbour Returns to Canada (Episode 20)

By: Omar Ha-Redeye · April 28, 2009 · Filed Under Aboriginal Law, Civil Rights, Constitutional Law, Immigration Law, Labour & Employment Law, Podcasts · 6 Comments 

Former Osgoode Hall law professor and Supreme Court justice, Madame Louise Arbour, recently completed a four-year term as the United Nations High Commissioner on Human Rights.

She will take on the position of President and Chief Executive Officer of the International Crisis Group in July 2009, but before that she’s making a brief return to the Canadian human rights scene.

Earlier today I heard her speak at the Public Service Alliance of Canada (PSAC) convention on the National Day of Mourning, an annual event recognized by the Federal government since 1991 to remember workers who lost their lives or were injured on the job.

Madame Arbour is perhaps best known in constitutional circles for her dissent in Gosselin v. Quebec, which would have given social and economic rights to Canadians.

Despite the court’s decision to the contrary, Madame Arbour is still making the case for social and economic rights in the future of Canada.

She characterized a dichotomy between the West and the East, with the former claiming to champion liberty, the latter championing social and economic rights, and neither side really hearing each other in the process.

Her talk was premised on the Roosevelt’s fundemental freedoms that gave way to the Universal Declaration of Human Rights, specifically the freedom from fear and the freedom from want.  She related the former fear to legal abuses by Western governments in the so-called “war on terrorism.”  The second fear is increasingly relevant in our tough economic times, the true test of which will be our treatment of migrant workers.

The key to our true security lies in addressing social and economic problems by dealing with them as fundamental rights, and the sooner we can realize this the safer and more prosperous we will all be.

The Conflicted Relationship between Lawyers and “Indians”

By: Law is Cool · January 11, 2009 · Filed Under Aboriginal Law, Constitutional Law, Politics · 1 Comment 

[The following piece was sent to us by a reader. Reproduced with permission of the author.]

An Identification of the Conflicted Relationship between the Indigenous Nations and the Legal Profession in North America

by Bruce Clark, LL.B., M.A., Ph.D.

An Indian goes into a law office and says, “Since my traditional government never agreed by any treaty to be governed by your government, why does your legal system apply your government’s laws to me on my indigenous nation’s unceded national territory?”

If he lives in Canada the Indian is likely to be aware of the fact that the original constitution for all of British North America (the Royal Proclamation of 1763) reiterated the stipulation that the first principle of all land occupancy and jurisdiction law is, “that the several Nations or Tribes of Indians with whom We are connected and who live under our Protection should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us are reserved to them or any of them as their Hunting Grounds.”

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Conflict of Interests Taskforce Reports

By: Omar Ha-Redeye · August 19, 2008 · Filed Under Aboriginal Law, Ethics, Intellectual Property, Legal Reform · Comment 

The Canadian Bar Association (CBA) has adopted the recommendations of its Task Force on Conflicts of Interest.  Background on the Task Force and their report can be found on the CBA website.

CBA President Bernard Amyot said,

Lawyers, law societies, judges and the Canadian public will benefit from the principled approach developed by the task force. The recommendations will contribute to the evolution of the conflicts regime to reflect changes in the practice of law.

Members of the Task Force, Scott Jolliffe, Simon Chester and Gordon Currie, can also be heard in a podcast interview moderated by Jordan Furlong.

Conflicts of interest have made headlines in Ontario recently, with some claiming that they are used as an aggressive tool to have opposing counsel removed from a case.

Tracey Tyler of The Star explains,

The payoff comes in putting an opponent to the expense and aggravation of fighting the claim and – if they lose – finding a new lawyer.

The Supreme Court of Canada weighed in on the issue this year in Strother v. 3464920 Canada Inc. Binnie J. stated for the majority,

34 When a lawyer is retained by a client, the scope of the retainer is governed by contract.  It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement.  The solicitor-client relationship thus created is, however, overlaid with certain fiduciary responsibilities, which are imposed as a matter of law.  The Davis factum puts it well:

The source of the duty is not the retainer itself, but all the circumstances (including the retainer) creating a relationship of trust and confidence from which flow obligations of loyalty and transparency. [para. 95]

Not every breach of the contract of retainer is a breach of a fiduciary duty.  On the other hand, fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for.  The foundation of this branch of the law is the need to protect the integrity of the administration of justice: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at pp. 1243 and 1265.  “[I]t is of high public importance that public confidence in that integrity be maintained”:  R. v. Neil, [2002] 3 S.C.R. 631, 2002 SCC 70, at para. 12.

35 Fiduciary responsibilities include the duty of loyalty, of which an element is  the avoidance of conflicts of interest, as set out in the jurisprudence and reflected in the Rules of Practice of The Law Society of British Columbia.  As the late Hon. Michel Proulx and David Layton state, “[t]he leitmotif of conflict of interest is the broader duty of loyalty”:  Ethics and Canadian Criminal Law (2001), at p. 287.

The issue appears to be a particular problem in specialized areas of law such as intellectual property and Aboriginal law.

Chronic Drunk Driver Gets 20 Years, but not Designated a Dangerous Offender

By: Lawrence Gridin · June 13, 2008 · Filed Under Aboriginal Law, Civil Rights, Criminal Law · 1 Comment 

A few months ago while listening to CBC Radio, I heard about the controversial case of a man being tried in Alberta for habitually drunk driving.

The man, Raymond Yellowknee, had already been convicted of drunk driving three times, when in 2006 he decided to drink and get behind the wheel yet again.

According to police, Yellowknee had a blood alcohol level of 0.22 (about three times the legal limit), and was driving a stolen pickup truck. Police pursued the vehicle, but Yellowknee refused to stop and instead provoked a high speed chase.

Just minutes later, Yellowknee lost control of the truck and crossed the center divider. He collided head-on with a passing car.

Inside the car were a mother, who was nearly finished her training to become a teacher, and her three young daughters. All were killed.

I became interested in the case when the radio broadcast reported that the Crown would be seeking a dangerous offender designation for Yellowknee under s. 753 of the Criminal Code. The designation allows the convicted offender to be sentenced to an indeterminate prison term.

The dangerous offender provisions are usually reserved for the most serious violent offenders that a court believes cannot be rehabilitated. This would have been the first time that the designation would be used for a habitual drunk driver.

A judge would have to acknowledge that drinking and driving is a serious personal injury offence: one which carries a sentence of ten years or more, and involves “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person” (CC s. 752).

The Canadian Press reports that yesterday judge Ernie Walter of the Alberta Provincial Court decided not to name Yellowknee a dangerous offender. I should point out that Yellowknee, 35, had by this point:

… amassed a total of 71 offences and has been out of jail for only one year since he was 18.

Instead, judge Walter felt (for whatever reason) that there was a chance for rehabilitation. The court sentenced Yellowknee to 20 years (less time already served) under the “long-term offender” provision.

Section 753.1 of the Criminal Code defines a long-term offender as one posing a substantial risk of re-offending but also one where “there is a reasonable possibility of eventual control of the risk in the community.”

Robert Solomon, Professor of Law at the University of Western Ontario, provided us with his opinion of yesterday’s decision:

The Crown had sought a dangerous offender designation, which carries an indeterminate sentence and lifetime parole. Instead, the judge held Mr.Yellowknee to be a long-term offender, which means that he will be supervised in the community for 10 years after his release from prison. Yellowknee was sentenced to 20.5 years imprisonment reduced to 16 years to reflect his pre-trial detention. In my view, several elements of the Yellowknee decision are gratifying. First, the judge clearly stated that Mr. Yellowknee’s long history of impaired driving offences, coupled with his horrific conduct on the day in question, met the criteria for being designated a dangerous offender. Although it is long overdue, this is the first case in which a Canadian court has acknowledged that repeat impaired driving offenders who pose ongoing risks can justifiably be labelled dangerous offenders. Second, Mr.Yellowknee’s long-term offender designation and lengthy sentence will protect the public for almost as long as a dangerous offender designation.

Without reading the decision [it seems to be unreported as yet], it is difficult to understand why the judge exercised his discretion not to label Mr. Yellowknee a dangerous offender. The facts are as close to a worst case scenario as one can imagine and a dangerous offender designation was clearly justified. However, the Supreme Court of Canada has previously indicated that the dangerous offender designation should not be used if a less onerous sentence would adequately protect the public. Perhaps the judge was concerned that a decision to label Mr. Yellowknee a dangerous offender would be overturned on appeal. Clearly, finding Mr. Yellowknee to be a long-term offender is less controversial than finding him to be a dangerous offender. Moreover, defence counsel had indicated that they would accept a long-term offender designation. The choice between the designations would not have made a great difference in this case, given the 16 year prison sentence.

Regardless of the ultimate designation handed down for Mr. Yellowknee, yesterday’s decision should set a precedent (admittedly, non-binding) for dealing with habitual drunk drivers and the substantial risk of harm that they pose to the community.

Supporting Lawyer Mothers is a Bad Thing?

By: Omar Ha-Redeye · June 2, 2008 · Filed Under Aboriginal Law, Civil Rights, Diversity in Law, Ethics, Law Career, Law School · 4 Comments 

Single MotherWe’ve all heard it from some of those more sharp-tongued friends of ours – all those single mothers are eroding our economy and stealing our taxes.

The Law Society of Upper Canada (LSUC) is getting heat now for supporting single mothers of another type – sole practitioners – and also those in smaller firms.

In a unanimous vote, LSUC will increase it’s fees by a measly $5-15 per lawyer to assist mothers and fathers seeking parental leave by providing grants of $3,000 a month.

But Karen Selick of the National Post slams the program, calling it “creeping socialism” (that’s a bad thing, by the way).

She forgets that Canada is often classified as a socialist democracy, especially the structure of our health care system, which to most Canadians is our proudest symbol of nationalism.

Selick also neglects to mention that the initiative was the result of a province-wide consultation by LSUC’s Working Group on the Retention of Women in Private Practice, which included many different social and ethnic groups and firms of all sizes. LSUC heard from 900 lawyers and students and received over 55 written submissions.

But consulting, of course, is so very undemocratic.

The Working Group states,

Women have been entering the private practice of law in record numbers for over two decades. However, they have also been leaving in great numbers, largely because private practice has not adapted to their realities, such as childbirth and taking on a significant portion of family responsibilities.

Also overlooked is that the move is part of a major plan to address the issue of equity in the workplace. Other recommendations adopted include:

  • a think tank to promote retention and advancement of women in law
  • direct support for women
  • practice locums, for more leave and flex-time
  • career development resources
  • creating an advisory group
  • networking strategies for minority (Francophone, Aboriginal) women
  • a review program

But they also clearly express that this initiative begins in the law schools by preparing female law students for the realities of law.

The entire comprehensive 174-page report can be found here.

If valuable legal talent is being lost to inflexible and inadvertently discriminatory work practices, you would think this would be perceived as a progressive move.

Selick says,

What I have never understood is why anyone gives a damn whether women are leaving private practice and clustering in government or corporate jobs, or quitting entirely.
[emphasis added]

Beyond ethical and humanitarian concerns, the legal industry loses millions of dollars a year due to skilled practitioners leaving the law.

Sean WeirSean Weir of Borden, Ladner, Gervais stated in May 2006 edition of Canadian Lawyer,

We invest a lot in education and programs and do a lot of intensive training from new associates and junior partners.

So when you have a well thought out plan that will save the legal industry mega bucks, and it’s also the right thing to do, why would someone think that it’s a bad thing?

Maybe it’s because they also think that human rights laws are phony too.

h/t Sharon Kour of UWO Law

Updates

Selick justifies her stance using legal economic theory. This type of analysis is frequently used by libertarians and the far right, as they create arbitrary cost-benefit analysis that attempt to prove their position.

More recently, legal economics has become popularized by books such as More Sex is Safer Sex. The author comes to some absurd conclusions, such as it’s better for a sexually inactive person to have a fling with a more promiscuous partner and contract a STD before returning to their inactive lifestyle, because they removed the opportunity of another more active person from getting the disease and passing it on to others.

But they also come up with some quite scary policy stances, such as justifying racial profiling. The problem with legal economics is that their supporters selectively choose the facts and statistics they include in their calculations. In the case of racial profiling, for example, many other studies have demonstrating that it actually increases cost and decreases effectiveness. Legal economists rarely have scientific or statistical backgrounds.

Canada invests hundreds of millions of dollars into our publicly subsidized education system. Despite rising tuition costs, they are still relatively low compared to other nations. But this means that your tax dollars are going into funding the education of women, who are now comprising 50-60% of law school classes. By not creating a more favorable career environment, we lose the incredible investment we put into these individuals. It’s these types of figures that are conveniently overlooked by strictly utilitarian legal economists, who falsely present their arguments as as logical and well-thought out.

A Wise Man Once Said…

By: Omar Ha-Redeye · May 25, 2008 · Filed Under Aboriginal Law, Civil Rights, Diversity in Law, Law Career, Marketing/PR in Law · 1 Comment 

Garry WiseLast week I met with Toronto lawyer Garry Wise.

Garry is one of the few Canadian practitioners that has made a prominent impression in the legal blawgosphere. Garry’s blawg was one of the other recipients of the 2007 CLawBie Awards, for Best Practitioner Support Blog:

Garry Wise – Year-in and year-out, Garry is one committed law blogger. He offers his opinions on almost everything, and if you do a Google search for Toronto lawyer you’ll see how blogging benefits the online exposure of his practice. If you didn’t read his Starting a law firm post back in February, please do. Garry Wise consistently offers great vision to a lot of solos across the country.

He related how he created his first firm site back in 1999, and has seen enormous returns from his online interaction. His client intakes have skyrocketed, and he is well-known and respected in the legal community.

We had a wonderful discussion on various subjects, and found many areas of mutual interest and common ground. Garry was generous enough to state that I would be an asset to any firm, and that progressive firms interested in expanding their client base should be trying to recruit me. Garry, I will be using your name as a reference as promised.

But he also suggested that I consider going solo directly out of law school, because I already have background knowledge and an existing client base in my area of legal interest (health), and greater prominence and contacts than many practitioners in the field for several years.

I’m not sure that’s the route I want to take, but it’s no surprise that his post on Starting a Law Firm is one of his most widely read articles. Garry outlines the basic requirements and strategic planning to set up your own firm.

But the “cons” he states – longer hours and more stress than even Bay St., and cost consideration during the initial start up – are likely to dissuade some of the most charismatic and entrepreneurial young lawyers, who opt to lend their credibility to a larger firm instead. Burn-out and stress are other often cited complaints of sole practitioners.

Gary GottleibGary Lloyd Gottlieb, a sole practitioner in Toronto, says in To be or no to be a prisoner of Bay St.,

The best advice I can give to a new lawyer who wants to practice solo is not to do it right away. You will spend too much time reinventing the wheel and then needlessly spinning it. Specialize and learn the ropes from the best lawyer or firm you can get a job with. Develop the knowledge and the competence for private practice for which law school has not equipped you, and for which the newly revamped bar admission process will not adequately equip you either. Develop your sea legs before you set sail alone.

That being said, all is not grim for those who choose to become sole practitioners. There are resources now available that did not exist when I sallied forth on my own 35 years ago

lawyers self-employed

This could explain why the average age of sole practitioners in Ontario is 51, with only 12% under 35, according to a Law Society of Upper Canada (LSUC) survey in 2005.

Yet as we’ve pointed out before, nearly half of Canadian lawyers are self-employed. Jordan Furlong recently provided further break-down of the types of legal practice in Canada, indicating that less that 10% of Canadian lawyers can be found in large firms.

Gottlieb provides tips for those who comprise the vast majority if Canadian lawyers,

You need an independent temperament, the ability to constantly adapt, and eternal optimism to survive as a sole practitioner. You should also not expect a pot of gold.

Above all, you must take to heart the wisdom expressed in the Ethics of the Fathers; in order to be happy, you must be satisfied with your lot.

Access to Justice and Diversity

Smaller firms play an essential role in providing greater access to justice to smaller communities, and often more reasonable billing to clients.

But a recent story in the Star related how rising student debt compells many new graduates to flock to large law firms to pay off student loans. As a result, many smaller communities are increasingly finding themselves without legal services. Some have responded by considering loan-forgiveness programs for new lawyers who move to small towns.

Other lawyers go solo as a result of the failings of big firms that fail create inclusive environments. A 2000 LSUC Equity and Aboriginal Issues Committee report stated,

A number of lawyers feel alienated by the size and types of practice of large firms, and choose to practice in small firms or as sole practitioners.

But the report continues, and indicates that small firms might actually be worse for diversity issues.

However, small firms and sole practitioners often do not have the resources and time to deal with equity and diversity issues, or to develop the appropriate expertise to do so effectively. There are also those who may believe that equity does not add value for law firms which already have strong reputations and clients. Further, members of communities may not be aware of the availability of legal services or may feel that their lawyer either does not understand them, treats them differently, harasses or discriminates against them or otherwise violates their rights.

It’s probably a misconception then that lawyers elect for small practice because they cannot find an inclusive environment in any large law firm.

But there are other reasons for going solo, including women who want greater flexibility in their practice to accommodate a family.

Availability of Mentoring

Gavin MackenzieGottlieb has elsewhere criticized other LSUC initiatives of a practice management review program as a “A War on Sole Practitioners.” But these accusations have been rebuffed by Gavin MacKenzie of Heenan Blaike, who says that such procedures would apply to number of years of practice, and not type of practice ,

Both law society discipline and LawPRO statistics show that the early years of private practice pose a risk for the development of practice difficulties. Beginning the practice management review program with a focus on members who have been called to the bar for the formative one to eight years and who are in private practice is a risk-based approach that is justified both by data and common sense.

MacKenzie claims that LSUC instead provides support to the independant practitioner,

One of the most important initiatives of this Convocation has been to help sole practitioners and small firm lawyers to survive and thrive. We struck a task force to recommend ways in which as a profession we can preserve and strengthen the practices of the 94 per cent of Ontario law firms that consist of five lawyers or fewer. These sole practitioners and small firms provide the vast majority of legal services to individuals in search of access to justice.

The LSUC report on sole practitioners highlights mentoring as one of the major areas of need. And this probably remains the best asset that large law firms have for young lawyers, beyond issues of compensation or diversity. Many of the more progressive firms increasingly have formalized mentoring programs.

Size versus Presence

Valerie Mutton covered the LSUC report in the Lawyers Weekly, and interviewed Diana Miles, the LSUC’s director of professional development and competence. She suggests that planning is the essential key to a small practice.

But Jordan Furlong says,

Really, in 20 years time, the whole notion of law firm sizes may very well seem quaint. It won’t be all that relevant how big your law firm is with the exception of the global giants, size really won’t matter, because the heavily niched, increasingly mobile and wired lawyers of the future won’t find enough advantages to a common office space and letterhead. It may not even take that long, if the changes we can already see rippling through the profession start multiplying faster than expected.

According to Mutton,

Getting your name known in the community and within the profession is essential to the development of a successful practice…

Miles also suggests that new lawyers should take a course in personal marketing, since new lawyers often feel awkward about basic self-promotion such as handing out business cards or introducing themselves to potential clients.

The basic denominator to all these practices, whether small or the 10% in large firms, is presence.

And arguably, it is early adopters such as Garry Wise that have led the way for Canadian lawyers.

Firing Up Might Not Get You Hired

By: Omar Ha-Redeye · May 21, 2008 · Filed Under Aboriginal Law, Civil Rights, Health Law, International Law, Politics · 3 Comments 

Employers are prevented in Canada from refusing to hire someone on a number of discriminatory grounds unless they directly relate to the job requirements. These categories include race, religion, gender, or political affiliation.

But what about lifestyle habits? Can employers refuse to hire someone based on the fact that they smoke, concluding that this individual in the long-term will have more sick days, and will have a shorter life expectancy?

Smokers Need Not Apply

It might seem strange, but that’s what is happening in Florida. Sarasota County officials announced that they will no longer hire smokers, who place a burden on taxpayers through health insurance.

The Supreme Court of Florida upheld a similar ban in 1995, when North Miami refused to hire smokers in The City of North Miami v. Kurtz.

Michelle Tyler describes the issues around the case in the Georgetown Law Journal,

…all prospective city employees to sign an affidavit stating that they had refrained from using tobacco products for the prior year.

…the city’s interest in reducing the burden on taxpayers is not only legitimate, but also compelling enough to override the individual’s privacy right, whether considered a fundamental right or merely a protected interest. This holding extends the Grusendorf rule that bona fide job requirements may override a privacy interest in smoking while off duty.

The heavy public costs associated with a smoking workforce support the court’s holding that the city had established a compelling interest sufficient to satisfy a strict scrutiny analysis. Health and productivity costs associated with smoking and borne by the employer are significant. Smokers more often suffer from chronic illnesses and are more susceptible than nonsmokers to acute health conditions. They incur more medical costs, require more hospitalizations, and visit physicians more often than nonsmokers. Productivity costs related to smoking include higher absenteeism; an injury rate double the nonsmoking rate due to loss of attention, coughing, and similar distractions; and lost time in the workday due to “cigarette breaks.” Together, these costs amount to significant losses to employers. For example, in 1992, Banc One reported that each smoking employee costs the company up to $1,100 more annually than its nonsmoking employees. Additionally, when an employer eliminates smoking on company premises, the company decreases structural maintenance and cleaning costs and derives savings from the reduced strain on heating and cooling systems which filter fewer smoke particles.

But could this happen in Canada?

The Canadian Council for Tobacco Control does cite Kurtz on their website.

Where Do we Stop?

smokersThe Soapboxblog raises the slippery-slope argument,

…ought we not then exercise this premise for private sector employers who wish to not employ individuals who are overweight?

Maybe said employers wish not to employ individuals with diabetes, a history of high cholesterol, a history of high blood pressure, genetic predisposition to breast cancer or cervical cancer, etc. or, as is more abundantly obvious, individuals who eat their weight in trans-fatty goods on a daily basis.

Maybe those same employers wish not to employ workers who lead high-risk lifestyles too. Come to think of it, the aforementioned list might just as well serve as a precursor for the latter argument as well; that being the healthier workforce argument.

And What About the Poor Farmers?

Even more compelling is the plight of tobacco farmers in Ontario, who are hitting tough times. Discrimination against smokers in the workplace would only make the farmers’ financial situation worse.

But tobacco farmers are putting their blame squarely on Conservative MP, Diane Finley. They are joined by residents in Caledonia, who are concerned that Aboriginal land claims will make their property value plummet.

Finley is the Minister of Citizenship and Immigration, and despite the anti-immigration (and potentially discriminatory) orientation of Bill C-50, her residents are not pleased.

What’s interesting is that members of her riding in HaldimandNorfolk are seem to be taking it out on her gender,

When she runs again, I am going to have a sign on my lawn that says `Never ever vote for this woman again.’

So while the right of smokers to be hired may be scrupulously upheld, advances of women in the workplace (and politics) may take second place.

Hillary would not be pleased.

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