Tribute to:
HONOURABLE P. DEREK LEWIS, Q.C.,
1924 to 2017

Old Tome Speaks Volumes

The Telegram, St. John's, NL

09 July 2015

LAW AND MENTAL DISORDER

Bloom, Hy, and Schneider, Richard D., Eds., Law And Mental Disorder[:] A Comprehensive And Practical Approach (Toronto: Irwin Law, 2013), i-xxi, 1,422 pp.

(01 July 2015)

Four Hundred Years Of Law Reporting In Newfoundland and Labrador

 By David C. Day, Q.C.

Remarks to National Judicial Institute Symposium: Trinity400,

Trinity, NL, 04 June 2015

Assessment of Lawyer’s Invoice for Fees and Disbursements
by Newfoundland and Labrador Supreme Court

First Encounter of Canadian Charter of Rights and Freedoms
(In Force: 17 April 1982) In Canada’s Courts:19 April 1982

Ray David George Guy
1939 - 2013

By David C. Day, Q.C.
(Colleague of Ray Guy at The Evening Telegram, 1963-1967)

Published in The Telegram, 05 June 2013

Thanks for the joyful Telegram memories

             Before Ray David George Guy (1939-2013)—celebrated social and political commentator, book author, and playwright—left his childhood home in Arnold’s Cove (eight kilometers from his birthplace, Come By Chance), he chose writing as his adulthood vocation. He was largely influenced in his career decision by Joseph R. Smallwood Liberals’ resettlement program (which, from 1954 to 1975, relocated almost 30,000 persons from some 300 villages). He was, he said, deeply troubled by grief the program caused his fellow rural Newfoundlanders. 

            He employed humour as a weapon to express his dissent from the provincial government’s decisions to create and implement the program. In particular, he ridiculed its architect, Premier Smallwood, for that program—and much else the Premier advocated. His principal vehicle for heaping scorn on the Premier was a daily (weekday) column in The Telegram (then, The Evening Telegram) from about 1963 to 1974. 

            During part of this period (about 1963 to 1972), his writing served as opposition—sometimes the only substantial challenge—to Smallwood’s provincial government administrations. And, for the remainder of this period (1972 to 1974), he wrote irreverently about Smallwood’s successor, Premier Frank D. Moores (whose electoral success was, in no small part, a product of Guy’s columns).

             Motivated, significantly, by the domestic resettlement program to become a journalist, Ray Guy’s acerbic writer’s art was materially impacted by the American humourist, S.J. Perelman. Like Perelman, he was adept at piercing “through to the heart of pretense and conceit”.  Years later, Guy yearned for a particular Perelman anthology (his contributions to The New Yorker magazine) which I found in Foyle’s Bookshop, London, and sent to him.

             Guy occupied a desk at the back of The Telegram’s newsroom, when located in the Parland Building, 271-275 Duckworth Street. Typically, he commenced each matchless weekday column about 1:30 PM. Using an Underwood, later a Remington, manual typewriter, he would continue to be engrossed, in crafting a column, at 6 PM—often, until much later.

             He brooded and troubled over each word, each sentence. His painstaking choice of language was as precise as the wielding by a surgeon of a scalpel in an operating theatre. He teased each paragraph, slowly and cleverly, from his droll mental hard drive.

             Often, he consulted, on this or that turn of phrase, with newsroom colleagues: Mary Deanne Shears, the women’s editor (later, managing editor of The Toronto Star), and Mary Deanne’s understudy, Jane Williams; news reporters Don Morris, Ron Crocker (later, a C.B.C. regional director), Gary Callahan, George Barrett, and Frank Holden (now a playwright); sports department writers Bob Badcock, Pee Wee Crane and Ron Rossiter; editing desk staff Bob Ennis (later, of The Montreal Gazette), Maurice Finn, and Tommy Power, and Canadian Press correspondent David Butler.

             Because he regarded Premier Smallwood as fancying himself a Messiah, Guy seized on every opportunity to capitalize pronouns, within sentences, referring to the Premier. Invariably, the editing desk detected and lower-cased them.

             Torpid summer afternoons in The Telegram newsroom were memorable for Guy’s arrival, barefoot, ferrying ten pound watermelons; which he distributed to colleagues, employing a lobster knife secreted in his desk.

             Assigned, one summer morning, to report on Carolyn Hayward, a bullfighter in Spain—who was rumoured to be disembarking a vessel in St. John’s Harbour for a visit to her native St. John’s—I approached Guy, seeking advice on interviewing her. He offered to accompany me. Together, we walked both sides of the waterfront, and boarded each moored vessel, in search of our quarry. Hours later, we identified a woman leaving a ship.

 We hailed her and learned her given name was “Carolyn”. Our 4.25 by 5.5 inch newsprint pads in hand, we commenced questioning. Clear from her responses, the woman was not a bull fighter. Rather, she gained her wages from retailing physical intimacy. We made the recounting of her harsh life the subject of a feature story we left on the editing desk about 2:30 AM.      Later that morning, we were escorted one floor up to The Telegram’s executive offices to be chastised by then-management.

             Within a month, we were back in the executive suite—to explain why we had devoted a full night to drafting an unassigned story entitled, “St. John’s After Dark.” My personal papers include drafts of this imaginative, occasionally fanciful, account of nocturnal St. John’s. Guy was proud of the lead sentence (here published—at long last—for the first time): “Twinkling lights, in a variety of hues, festoon the slate grey shores of the ancient, sheltered harbour at St. John’s, like a necklace of precious and semi-precious trinkets. Beneath them, the city throbs, pulsates, bustles, and—in some precincts—moans.”

             Assigned to report an event in Bishop’s Falls, Guy and I missed the late afternoon train from St. John’s. At alarming speeds, he tooled his green coupe to Holyrood station. At first, a police stallion, then a police cycle, and eventually a police car pursued him. Guy eluded all comers. On arrival in Holyrood, he concealed his vehicle in a copse of poplars on private property, and we caught the train as it chugged from the station.

            We suited up in blue turtleneck sweaters and berets, and accessoried ourselves with pince-nez spectacles, on arrival in St. Pierre, for another assignment—to report on rumoured insurrection. Although, as Guy cautioned, we made our inquiries discretely, we attracted attention of gendarmes. They briefly detained us and relieved us of our notepads.

In 1965, the Province received a gift from the Portuguese Fisheries organization: a statue of navigator Gaspar Corte-Real. Premier Smallwood proclaimed that an elaborate unveiling was in store. Guy discovered the gift, crated and wrapped in tarpaulins, lying beside Confederation Parkway. “The unveiling,” Guy announced, “will be sooner, not later.” He and a junior reporter (who will remain nameless) made a late night visit to the Parkway, unpackaged Gaspar—with aid of tire iron and grapnel—and took a ‘snap’ which appeared next afternoon in The Telegram.

Guy was not a fervent adherent of organized religion.  But, his conversation was often punctuated with brief liturgies from the Church of England’s Book of Common Prayer.  And, during summer lunch hours, at least, twice monthly, he and I accompanied reporter John Fraser (later, Master of Massey College, Toronto) to the Anglican Cathedral in St. John’s.  There, we were Fraser’s only audience as he performed hymns, movements, and dirges, on the Cathedral’s Robert Hope-Jones/Casavant organ.

                 Although impish and ever receptive to join in capers, Ray Guy, by nature, was shy, private and understated. When I paid him a visit in 1975, he was preoccupied, typing and re-typing a short letter on newsprint copy paper. The letter consisted of a single sentence. He planned to deliver the letter to the workplace of Cathy Housser; recently arrived from British Columbia to serve as a C.B.C. producer in St. John’s. Whether he delivered the proposal, I am not aware. Within six months, however, Ray and Cathy were married.

 Guy quoted, with ease, passages written by his ‘mentor’, S. J. Perelman. More than once, he reminded me of Perelman’s sentence that “love is not the dying moan of a distant violin—it is the triumphant twang of a bed spring.” When we reminisced about chasing the ‘bullet’ to Holyrood, he recounted Perelman’s narrative, “The whistle shrilled, and in a moment, I was chugging out of [New York] Grand Central [station] … I had chugged only a few feet when I realized that I had left without the train, so I had to run back and wait for it to start.”

             Asked by a C.B.C. radio interviewer, in 2008, whether he had any regrets, he replied “none”.  While Guy was a reporter and columnist at The Telegram, he lived faithful to the creed, life is not a dress rehearsal. In fact, some of his columns were written in the format of theatrical scripts.

             Ray Guy’s enduring legacy is a cold type footprint of priceless, published commentary, authored by a rare wordsmith genius; serving to entreat, exasperate, educate, enrich and entertain.

         Thanks, Ray—for the memories. Thanks for the indelibly joyful Telegram memories. 

An Anecdotal History Of The Newfoundland Supreme Court
And Its Chief Justices

[Among the most erudite, philosophical, and clever—not to mention, droll and whimsical—of the 25 Chief Justices of the Newfoundland and Labrador Supreme Court was Noel H.A. Goodridge. He was appointed a Justice of the Trial Division of the Court on 13 November 1975, and to Court of Appeal as Chief Justice of Newfoundland and Labrador on 17 November 1986. He assumed supernumerary status on 01 January 1996. He died 12 December 1997. Go >Authors for the text of his remarks to the Provincial Court Judges' Association, St. John's, in October 1991; as recently published in Hearsay, a publication of The Law Society of Newfoundland.]

Decisions

R. v. Woodrow [James]

Provincial Court of Newfoundland and Labrador
sitting at Nain, Labrador
Joy [John], P.C.J.
29 July 2011

          Vikas Khaladkar, for Her Majesty The Queen
          David C. Day, Q.C. for Accused

Authors

Binding Bargains

Solicitor agreement in matrimonial matters

  From the dawn of legal memory, solicitors' agreements have typically bound their clients if
litigation was pending or in progress. David C. Day, Q.C. asks whether that abinding common
law principle has been compromised by provincial matrimonial legislation which provides that
domestic agreements are unenforceable unless reduced to writing, signed by the contracting
parties, and witnessed. Answer: no, because the legislation lacks "irresistible clearness."
[Federated Press, Montreal, 1994]

Preventive Justice

Preserving the peace (Part 1)

As a process dedicated to preventive justice, the "peace bond" provision of the Criminal Code
(described formally as a "recognizance" under section 810 of the Code) is unique in Canada's
penal law, as it involves neither charge, nor plea, nor fmding of guilt or conviction. In the first of
three articles about legal processes intent on helping to preserve peace and security in and
between families (inter alia), David C. Day, Q.C. describes the function of the "peace bond".
[Federated Press, Montreal, 1996]

Preventive Justice

Preserving the peace (Part 2)

Preserving the peace (Part 2)
Even if a court declines an application to require a person to enter into a recognizance to keep the
peace under the Criminal Code's "peace bond" provision (section 810, discussed in part 1 of this
series), the court may resort to its common law jurisdiction to obligate the person to peace keep.
David C. Day, Q.C. appraises exercise of this jurisdiction, in the service of preventive justice
(together with several of the Criminal Code provisions, other than section 810, that likewise
specifically contemplate peace-keeping). [Federated Press, Montreal, 1996]

Preventive Justice

Preserving the peace (Part 3)

Legal mechanisms for preserving the peace are not furnished exclusively by Criminal Code
provisions and common law (discussed in parts 1 and 2 of this series). As David C. Day, Q.C.
outlines (in his third, and final, article on the subject), provincial and territorial legislation and
the equitable concept of parens patriae serve vital functions in peace preservation, sometimes in
partnership with common law and Criminal Code. [Federated Press, Montreal, 1996]

Child Protection

Sauce for the goose ls sauce for the gander

In the wake of the Supreme Court of Canada's 1991 decision in R.v. Stinchcombe requiring
Crown disclosure of its case to the accused in criminal prosecutions, courts have imposed on the
state and state agencies responsible for child protection a duty to disclose their cases to parents
and other guardians of children involved in protection proceedings. Moreover, as David C. Day,
Q.C. determined, the extent of disclosure depends on whether the protection proceeding derives
from exigent circumstances, and the duty to disclose is not confined to the state. [Federated
Press, Montreal, 1994]

Evidence

Opinions of learned treatises as shield and saber

Treatises have customarily been used to attempt to enhance or impugn the expert witness's
knowledge or methodology or conclusions. In what circumstances may opinions of authors of
learned scientific treatises, where the authors are not themselves present in court, be cited to an
expert witness? Or, be admissible in evidence? And, to what extent may such opinions be
introduced to enhance an expert witness's conclusions on examination-in-chief? Or, to impeach
the expert witness on cross-examination? These and related questions are addressed by David C.
Day, Q.C. in his commentary on learned treatises as shield and saber. [Federated Press, 1997]

Perils in Practice

Taxing ordeals of solicitor accounts

Agony associated with collection of some solicitor-client accounts is occasionally preceded by
audit and approval hearings that determine the sum a solicitor is entitled to attempt to collect.
David C. Day, Q.C. writes that data storage capacities-in computer and computer disk
memory-reinforce the requirements for integrity and accuracy in the accounting and billing of
fees. [Federated Press, 1997]

Family Law

Perils in Practice

Taxing ordeals of lawyer income tax returns

Although a family lawyer was substantially successful in a Tax Court of Canada appeal from
administrative treatment of his Tl General income tax returns for three years, the Court ordered
him to pay solicitor and client costs. Moreover, costs were authorized on the infrequentlyallowed
higher solicitor-and-client scale. David C. Day, Q.C. explains that the Court's reasons
combine insights into treatment-under income tax law, procedure and practice-by the Minister
of National Revenue of tax returns of privately-practicing lawyers. Although the decision producing
appeal occupied seven days, the case "boiled down essentially to a number of factual
issues that," the Court felt, "could and should have been resolved at the assessments level or the
[administrative] appeals level." Permeating the decision was the Court's dismay at repeated
failings of the taxpayer to responsibility access these extra-judicial processes. The decision (i)
affords insights on income tax law, procedure and practice treatment of tax returns of solicitors
practising privately in Canada, and (ii) offers counsel about how taxpayers should not treat the
Minister. [Federated Press, 1998]

'Lest We Forget'

While browsing in a St. John’s bookstore (Downhome), two years ago,    I discovered a copy of Lieutenant Owen William Steele of the Newfoundland Regiment, edited by historian David R. Facey-Crowther. I chanced to open the book at page 189. There, I read the last entry in Lt. Steele’s diary of his World War I experiences. Dated Saturday, 01 July 1916, the entry was a copy of his typewritten report, addressed “To the Adjutant”, of “the names of men of D Company [of the Newfoundland Regiment], who went over parapet on July 1st, and returned unwounded.” Among the 16 listed Regiment soldiers were J. Day (Reg. # 1484) and W. Day (Reg. # 1660); two of my paternal uncles. The effect of the report was that both had survived the Battle of the Somme at Beaumont Hamel.

My uncle James Louis Day was born in St. John’s on 23 March 1898. He enlisted in the Newfoundland Regiment in 1914. He was 16. Enlisting at the same time was his brother, my Uncle Walter Bennett Day, born 14 February 1900. He was 14. By accident or design, Walter overstated his age. His superiors discovered this fact when or shortly after the Regiment, en route from Newfoundland to combat in Europe, reached Scotland. There, Walter was temporarily relieved of duty and sent to grammar school. In due course, he rejoined his Regimental mates.

(Walter is aptly described by the title of war historian Gary Browne’s latest (2010)—illuminating, insightful—book, Fallen Boy Soldiers.)

Whether (as several war veterans later recalled to me) Walter served as drummer, while Regiment members exited their trenches, about 9:15 AM on 01 July 1916, to see action at Beaumont Hamel, I was never able to determine from him. Whenever I later asked him, he became crestfallen and was speechless.

What John Crosbie, Q.C. has aptly described as “the ferocity of combat” that summer morning, is recreated by G. J. Meyer in his June 2006 history, A World Undone [:] The Story of the Great War 1914 to 1918:

At Beaumont Hamel nine out of every ten members of a Newfoundland battalion advancing toward the Hawthorn Ridge crater were shot down in forty minutes. …. Before it was over the German gunners, at points in the center where the carnage had been most terrible, found themselves unwilling to continue firing. Shutting down their guns, they watched in silence as the British [and Newfoundlanders] departed with whatever wounded they were able to take with them.

Both James and Walter were among 68 Newfoundlanders who answered the roll call next day (my birthday). 733 other Newfoundlanders – wounded or dead – were less fortunate. (The wounded included Lt. Steele’s brother, James.)

On 07 July 1916, Lt. Steele (Reg. # 326) was himself wounded at a battlefield headquarters building. He was resuscitated and conveyed to hospital by my Uncle Walter and other Regiment soldiers (based on oral history passed down to his namesake, nephew William Steele of Winnipeg). Lt. Steele died of his wounds on 08 July 1916. In its edition of the same date, a St. John’s newspaper lamented: “St. John’s is weeping for her dead and wounded. What can comfort her? Even peace cannot dry her eyes. Time alone may heal such wounds.”

On 21 April 1917, my Uncle James optimistically wrote to his parents Sarah and Ernest, Hayward Avenue, St. John’s. “I don’t think the war will last much longer. We give it, out here, until July [1917], …. And if God spares me to come through alright, I will be home to you before Christmas.” Although his optimism was misplaced, he was not to know. Two days later, he died in action at Arras, France.

Regiment Captain Leo C. Murphy dedicated his poem, Remembrance, written on Bell Island in April 1925, to James, who had served as orderly to Capt. Murphy (and to his Platoon Sergeant Richard Neville):

Last night I saw the sunset fires
Sink in the dark’ning West,
While save the chill winds ghostly sigh,
All lay in tranquil rest.

And standing ‘mid the shadows dim,
My restless thoughts had flown,
Where two – real, loyal soldier lads,
Sleep their last sleep alone.

Wounded in action shortly after Beaumont Hamel, Walter was transported to England and hospitalized. When a visitor to Walter’s bedside, in April 1917, brought news of James’ death, Walter replied that he already knew. He told the visitor that James died at Beaumont Hamel. Evidently, Walter and James hadn’t seen each other since they scaled the parapet, there, on July 1st, 1916. And, they hadn’t heard each other answer the roll call next morning.

After returning to St. John’s, Walter briefly operated a cobbler’s shop. But the impact of the Great War had permanently damaged him psychologically. For many years, he was sheltered and cared for by his sister (my aunt) Stella Day Hunt (seamstress to Government House). And, he was among the first patients admitted to the war veteran’s wing of the General Hospital (now part of the Leonard A. Miller Centre for Health Sciences), Forest Road, in the 1960s. He died in St. John’s, while still a patient, on 18 November 1982.

Every July 1st and November 11th, I pause to remember the sacrifices, in the Great War, of my uncles James and Walter, and their comrades, of the Newfoundland Regiment: while holding the soldier’s photograph of Uncle James and the medals of Uncle Walter—lest I forget.

(Portions of this article, by David C. Day, Q.C., were published in The Telegram, St. John’s, NL, 11 November 2006. Acknowledged in preparing this entry to the Current portal is the assistance of Karen Day- Workman, Fredericton, NB.)

View "And In The Morning", Featuring Walter Day, RNR # 1660

Authors

What are the implications of Supreme Court of Canada's 2009 decision--relating to health care choices by 'mature minors'--in A.C. v. Manitoba (Director of Child and Family Services)? Counsel for A.C. offers his opinion in "Getting Respect: The Mature Minor's Medical Treatment Decisions" (2010), 88 Can. Bar Rev. 671. For the full text of his Case Comment: [View]
For an earlier opinion by the same author, on the subject of 'mature minors', see: "The Capable Minor's Healthcare: Who Decides?" (2007), 86 Can. Bar Rev. 1: [View]

54 Years Ago: September 1962

FIRST ST. JOHN'S TO PORT AUX BASQUES
WALK ACROSS ISLAND OF NEWFOUNDLAND

September 2, 1962
Kenmount Road
(outside Newfoundland Tractor Co. Ltd),
St. John's, NL

[Left to right] David Day, Frank Janes Jr., Bob Lemessurier

September 20, 1962
Trans Canada Highway
(at entrance to Port Aux Basques

[Left to right] David Day, Frank Janes Jr., Bob Lemessurier
 

Ethics

Remarks to
National Family Law Program,
16 July 2010, Victoria, B.C.
David C. Day, Q.C.
[Page numbers in the Remarks refer to 2010 paper at: http://www.lewisday.ca/ethics.html.]

“Around half past two o’clock … [in] the morning … , …, a middle-aged attorney … was awakened by the ringing of his bedside telephone. …. The call, …, was a business one, and although it was from an undertaker, it did not turn out to be bad news.”

So begins an instructive, not to mention indelible, account of “The Rich Recluse Of Herald Square” in The New Yorker magazine. (31 October 1953, p. 39)
The magazine article—recommended, for the taking, from our presenter’s table—recounts the tumultuous challenges of determining when a lawyer is retained. More significantly, the article narrates the wrenching tribulations of the retained lawyer, in striving to ascertain the true identity of the retaining client, and whether that client was competent to give instructions.

After all, “the rich recluse of Herald Square”, in New York City, was 93 years old; had rarely ventured outside her two-room hotel suite in 25 years; sustained herself on evaporated milk, coffee, crackers, bacon, eggs, and “an occasional fish” which she consumed raw; limited her attire to a towel rarely laundered; was blind and severely hearing-impaired hearing; and constantly nurtured her face with petroleum jelly.

Knowing whether you have a client and, if so, who the client is, and whether the client is competent to instruct you are—indisputably—essential, rudimentary tasks each lawyer must discharge at outset of each retention. They are initial tasks integral to responsibility—this panel’s subject—in the law vocation.
Practising law is a vocation, my learned friend James J. Smythe, Q.C., of St. John’s assures me, is a daily exercise in “lurching from crisis to crisis.” And a vocation, another of my learned friends from St. John’s, Lewis B. Andrews, Q.C., is convinced, in which “lawyers, not infrequently, are more troubled by retention subjects than their clients.”

Responsibility comprises three elements: ethical, legal and professional.

For the full text of the Remarks: [http://lewisday.ca/ethics.html]

Media Links

A law firm partner attended the reunion (06-07 August 2010) marking the 50th anniversary of his graduation from Prince Of Wales College.(100th Graduating Class) A trove of back issues (1898-1987) of the College's magazine--The Collegian (every Page, every Photo, including every article)--is maintained by Memorial University of Newfoundland.  Click on the link, then click on magazines, then choose The Collegian, at this link: http://lewisday.ca/medialinks.html. Commended for superb reunion planning are: Robert Jenkins, Patricia (Boone) Jenkins, Barry Sparkes (former Registrar of Newfoundland and Labrador Supreme Court), Margot (Peters) Evans, Barbara (Allen) Stone, Judi (Snelgrove) Somers, Joan (Lester) Chapman, Lorraine (Best) O'Neill, Marilyn (Duffett) Pumphrey, and Pauline (Stanley) Wadland.

Decisions

Cases in which Lewis, Day is, currently, retained as counsel, and other current developments, include:

Newfoundland and Labrador Supreme Court [Trial Division]

Lawrence and Kent [Counsel: Lewis, Day]  v. Her Majesty The Queen

[File no. 2006 / 01 T 1532 - application to 'stay' indictment in response to alleged police misconduct - argued 16 and 17 October 2006 -Judgment 24 October 2006 by Halley J.: police conduct in performing criminal investigation unacceptably prolonged, incompetent, constituted dereliction of duty;  collectively amounting to abuse of process - decision on application for 'stay' indictment deferred to end of jury trial - Notes: both accused acquitted 01 December 2006 after 30-day jury trial; publication ban has been lifted]

European Court Of Human Rights
[Strasbourg]

Case Of Jehovah's Witnesses Of Moscow v. Russia

[File no. 302 / 02 - appeal for redress under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, due to alleged breaches of Convention human rights - Judgment 10 June 2010: allowing, substantially, appeal by Jehovah's Witnesses Of Moscow - Notes: John M. Burns, of Kelowna, BC, international constitutional lawer, was among counsel for Jehovah's Witnesses Of Moscow; David C. Day, Q.C. of Lewis, Day, St. John's, NL, was among counsel consulted by Jehovah's Witnesses of Moscow.]

Supreme Court of Canada

A.C. [Counsel: Lewis, Day] v. Manitoba (Director of Child and Family Services)

[S.C.C. File no. 31955 - argued 20 May 2008 - judgment 26 June 2009:
Charter issues dismissed; otherwise allowed with costs to A.C. of all
Manitoba and S.C.C. proceedings]

Newfoundland and Labrador Supreme Court [Trial Division]

[B.(D.)] [Counsel: Lewis, Day] v. Watch Tower Bible and Tract Society of Pennslyvania,
[New York, Inc., and Canada] Counsel: Lewis, Day

[File No. 2006 01 T 1676 - preliminary applications to dismiss proceeding - argued 09 April 2008; judgment 29 October 2009 by Green C.J.T.D., proceeding dismissed with costs]

Newfoundland and Labrador Supreme Court [Trial Division]

P.H. v. Eastern Regional Integrated Health Authority and S.J.L.
[Lewis, Day appointed counsel for S.J.L.'s 'Best Interests']

[File No. 2009/ 01 T 5556 issue whether adolescent S.J.L. competent to make own health care decisions
- argued 10 February 2010 - judgment of LeBlanc J. 17 February 2010: not competent]

Ethics

W. GLEN HOW, Q.C. – IN MEMORIAM

I Remember Glen How

The Globe and Mail, Toronto,
26 February 2009

           For most of the 65 years he practised law—most-recently in Georgetown, ON—W. Glen How Q.C. maintained a modest wooden lecturn, from which he painstakingly rehearsed trial and appellate arguments for cases he conducted in every Canadian province and Supreme Court of Canada, as well as in the United States, Japan and Singapore. As his co-counsel in many of them since 1987, I was submitted by him to the same rigorous preparation. Often, he conscripted me in the role of opposing counsel. Responding to his cogent, acidic, relentless advocacy—more oration than argument—guaranteed frontstall preparation (especially considering he frequently and curtly challenged content, structure, style and demeanor of my every oral presentation).

           He became one of my invaluable professional mentors. Much his junior at the Bar, I marvelled—with considerable trepidation—at jousting with this icon of Canada's barristers; whose cases I had studied in law school (Dalhousie’s Faculty of Law, 1967).

           During a recess—about 3:30 AM—in an 8-hour lecturn rehearsal of an appeal scheduled for later the same day, he recounted to me one of his few court experiences for which preparation proved pointless.

           How Q.C. was among trial counsel for Emile Boucher, charged for seditious libel because he publicly distributed some of the 1.575-million copies of a tract, entitled "Quebec's Burning Hate", printed by Jehovah's Witnesses in response to acute oppression they suffered in Quebec during the premiership of Maurice Duplessis.

           As he recalled, Boucher's trial was conducted in rural Quebec in November 1947. Inexplicably, all windows in the St-Joseph-de-Beauce courtroom were open on the frigid autumn day when How and co-counsel commenced their jury addresses. Without warning, their voices were overridden by a cacophany of squealing sounds, emitting from a truckload of domestic swine—by chance or design—being discharged onto the adjoining street. If a coincidence, said How, "the timing was precise." But he wasn't convinced the event was fortuitous: "Letting loose a herd of pigs, immediately below open windows of a courtroom in session, did nothing to serve the pork bellies markets." Nonetheless, he was compelled by the court to compete with the porkers for the jury's attention. The pigs, who appeared to linger near the windows for much of the defence jury address, apparently proved, How said, "more attention-fetching and persuasive than me, because the jury later deliberated for about half an hour and convicted my humble farmer client."

          How's successful appeal, in 1951, of Boucher's conviction to Supreme Court of Canada was the first of a quintette of largely-successful appeals he argued before that Court; resulting in decisions which impacted enactment of the Canadian Bill of Rights in 1960, and the Charter, in 1982.

           As recently as 2003, age 84, he readied, at his office lecturn, for his last case; before Quebec Court of Appeal.

           Sometimes vehement in avowing civil rights of Jehovah's Witnesses to preserve, practise and propagate their religious convictions, How, Q.C. was blunt, not infrequently controversial, in deprecating those who sought to denigrate  Witness beliefs and deny their promotion. While his religious beliefs were incongruent with mine (as a practising member of United Church of Canada), he was unerringly respectful of my faith during 21 years (1987-2008) he engaged  my legal assistance.

            W. Glen How, O.C., Q.C., L.S.M., 89, who died 30 December 2008 at his Georgetown, ON home, profoundly advanced Canada's civil liberties. Resolutely and dauntlessly, he challenged intense legal and popular persecution of Jehovah's Witnesses, as their general counsel from 1943 to 2008.
"Throughout the course of his long career," stated American College of Lawyers (08 September 1997) in conferring on him—the only Canadian lawyer recipient—its Courageous Advocacy Award, "[he] demonstrated courage and commitment as a trial lawyer, as an appellate lawyer, and as a human being." (Comparable sentiments had been expressed by MacLean’s magazine in designating him, in 1963, an outstanding Canadian.)
His penchant for law became an adult life-long pre-occupation. He adroitly employed legal precepts as vehicles to overcome public, state and church (particularly, Roman Catholic) attitudes and actions—freighted with derision, distemper, distain, and discrimination—against the Witnesses.

           Incontestable is How Q.C.’s impact on recognition, development and growth of Canada's civil liberties, since his admission to the Bar (Law Society of Upper Canada) in September 1943. He was also a member of the Alberta and Quebec Bars.

          During 65 years of lawyering—including a private Toronto law practise (1954-1984)—How Q.C. served as counsel for Jehovah's Witnesses—always pro bono—in every Canadian province and in New York (Federal Court of Appeals [2nd Circuit]), New Jersey and Illinois (Supreme Court), Texas, Washington, and Nebraska, and as counsel or consultant counsel in Italy, Trinidad, Japan and Singapore.
Undisputably, however, How, Q.C.—born 25 March 1919 in Montreal—established his legal legacy in Quebec in the 1940s and 1950s..  There and then, during Maurice Duplessis’s premiership (1936-39 and 1944-59) opined former British Columbia Supreme Court Justice Thomas R. Berger, in Fragile Freedoms [:] Human Rights and Dissent in Canada, "Church and State joined in persecuting Jehovah's Witnesses, who carried their struggle for freedom of speech and freedom of religion to the Supreme Court of Canada again and again. …. The fervour of this small Protestant sect had more than a little to do with establishing the intellectual foundations for the [Canadian] Charter [of Rights and Freedoms]." Principal public face of their legal struggle—in confirming, protecting and asserting civil liberties for themselves and, by extension, all Canadians—was W. Glen How.

          In the 1940s, How, Q.C. gained enormous litigation experience, primarily in Ontario and Quebec. His clientele, at one time, included about 22 per cent—some 1,600—of all Jehovah's Witnesses then living in Canada); who had been charged—mainly in Quebec—under the Criminal Code or provincial or municipal legislation, for practising their religious faith. Nonetheless, he then managed to author two influential articles for the prestigious Canadian Bar Review.

           The first, in 1947 (25 Can. Bar Rev. 573), recommended reforms of Supreme Court of Canada; incorporated by Parliament in 1949 legislation which facilitated How Q.C.’s Supreme Court litigation.

          The second, in 1948 (26 Can. Bar Rev. 759), materially contributed, 12 years later, to enactment of The Canadian Bill of Rights. 
In 1949, How Q.C. received the first of a series of Supreme Court of Canada judgments, in R. v. Boucher, one ofa quintette of appeals—the others being Saumur, Chaput, Roncarelli, and Lamb—he brought (or assisted to bring) to the Court.

          Boucher was convicted of seditious libel (now Criminal Code s. 59(2) ) for publicly distributing  "Quebec's Burning hate”, a tract Jehovah's Witnesses published (1,575,000 copies) in response to oppression they were experiencing. A 5-member panel of Supreme Court set aside Boucher's conviction and ordered a new trial (3-2). Boucher successfully applied (9-0) for a re-hearing, which quashed the conviction (5-4). (1949), 93 C.C.C. 371 (S.C.C.); (1950), 96 C.C.C. 48 (S.C.C.); [1951] S.C.R. 265.

          The Saumur case began as Damase Daviau’s application to enjoin Quebec from enforcing a municipal by-law which authorized the police chief to license or prohibit circulation of printed matter. Daviau decided not to pursue the application in Supreme Court. A willing replacement—charged more than 100 occasions for his Jehovah's Witness activities—was Laurier Saumur. A complex Supreme Court decision held the by-law could not enjoin Jehovah's Witness distribution activities. [1947] S.C.R. 492; [1953] 2 S.C.R. 299; [1964] S.C.R. 252.

          In Chaput, a Jehovah’s Witness was conducting a religious meeting of Witnesses in his Chapeau, Quebec home when Romain and two other Quebec Provincial Police members entered, stopped the meeting, took bibles, hymn books, pamphlets, and a contribution box from the 40 assembled persons, and transported the visiting minister to Ontario. Chaput's resulting civil action against police was successful in Supreme Court; which awarded $2,000 (for what Rand J. characterized an "offensive outrage"). [1955] S.C.R. 834.

          Roncarelli was another civil action. The action was commenced by a Montreal restaurant owner, who provided funds to 'bail' numerous arrested Jehovah's Witnesses. His business failed after his liquor license was suspended by the Quebec Liquor Commission, which told him the licence would never be renewed; all on instructions of Premier Duplessis. Supreme Court upheld Roncarelli's trial judgment against Duplessis and added damages for diminished goodwill and future profit loss. [1959] S.C.R. 121 (as consulting solicitor).

          Lamb, a third civil action sustained on appeal by Supreme Court, involved Louise Lamb, arrested, while distributing pamphlets in Quebec, by provincial police special officer Benoit  who imprisoned her several days, then charged her, although knowing he had no grounds for his police conduct. [1959] S.C.R. 321.

          More recently, How Q.C. appeared in Supreme Court

          → as a party, in Young v. Young, [1993] 4 S.C.R. 3, which confirmed, as a general rule, an access parent’s right to introduce a child to the parent’s religious beliefs;

          → in the frequently-cited Charter decision of B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 (role of parents in medical decision making reference their daughter; costs, throughout, awarded his unsuccessful client), and

         → as an intervenor in New Brunswick (Minister of Health and Community of Services) v. G.(J.), [1999] 3 S.C.R. 46, ‘supporting’ a mother who successfully contended for the right of parents of state-apprehended child to state-funded legal services).

           Perhaps his cardinal triumph in provincial appellate courts is Malette v. Shulman (1990), 72 O.R. (2d) 417 (Ont. C.A.), which confirmed an adult’s right to respect for his or her advance health care treatment decisions.    
           
         His last court appearance was in 2003 (231 D.L.R. (4th) 706 (Que. C.A.)  
         How Q.C. is survived by his second wife, lawyer Linda J. How, J.D. (Indiana University), to whom he was married in 1989 (his first wife of 33 years, Englishwoman Margaret Biegel, died in 1987).  He is survived also by brother John, and stepson Paul Biegel.
A memorial service for W. Glen How, attended by more than 1,400 mourners, was conducted 10 January 2009 at the Assembly Hall in Norval, Halton Hills, ON; ten minutes' drive from his law office—and his cherished Court rehearsal lecturn—in Georgetown.
This law firm conveys heartfelt sympathy to How Q.C.’s widow, Linda J. How, J.D.; Canadian lawyers Shane H. Brady, LL. B, David M. Gnam CGA, L.L. B., and Jason D.A. Wise, L.L. B.; international counsel John Burns L.L. B. and Andre Carbonneau L.L. B. (presently in Kazakhstan); and the remarkably competent professional support staff at W. Glen How & Associates LLP, Georgetown; all of whom worked closely with W. Glen How.

David C. Day, Q.C.
Lewis, Day,
St. John’s, NL

Authors

▓ Revised edition of Matrimonial Property Law In Canada [Newfoundland and Labrador],
current to 08 January 2008, published February 2008 by Carswell, Toronto
and is available from the publisher in hardcopy, or on the publisher’s website: Carswell LawSource.

 Ethics

▓“"Guidelines for Practicing Ethically with New Information Technologies”
published August 2008 by Canadian Bar Association as Information to
Supplement the Code Of Professional Conduct of the Association

LEWIS, DAY LAW FIRM