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Professor Dan Ish

Justice minister had to appeal Klassen ruling

All this bad lawyering has to come from somewhere. What is being taught at our law school? The following suggests bullshit baffles brains

Following is the personal viewpoint of the writer, a professor of law and acting dean of law at the University of Saskatchewan.

The decision of the trial judge in the Klassen case and the subsequent actions of the provincial government have received considerable press, public and political attention. Most of the commentary has been highly critical of the government's actions. There is no doubt that the police investigation and the subsequent prosecution has caused serious injustice to a number of innocent people. The harm caused over many years is incalculable and can only be partially remedied by acknowledgement and compensation.

The decision of the minister of justice and attorney general to appeal the trial court decision, in itself, has been reacted to with responses ranging from puzzlement to severe criticism by some. It must be recognized, however, that the attorney general had little choice in his decision to appeal.

Constitutionally, the Office of the Attorney General is reposed with obligations that do not fall to other government ministers. While the attorney general is an elected politician, he or she has the overarching responsibility for balancing two competing, but compelling, interests -- protection of the individual (especially from harmful actions of the state) and the preservation of the prosecutorial function of the state.

In today's climate of heightened awareness and sensitivity of individual rights, the first interest is often highlighted and focused upon. The reaction to the Klassen case and its aftermath quite rightly is the best example of this.

The second major responsibility of the attorney general concerns the administration of justice and the prosecuting function of government. The state must pursue criminal prosecutions to protect the public. This must be carried out with a high degree of integrity and professionalism but with sufficient latitude not to jeopardize the diligence of prosecutors, police and other agents in carrying out their functions.

The appeal by the attorney general of the decision of the trial judge in the Klassen case is completely understandable. If the attorney general is of the view that the test of what constitutes malicious prosecution may have been expanded by the decision of the trial judge beyond that determined by the Supreme Court of Canada recently, he has a public duty to pursue the appeal. As a matter of public policy, the issue of the parameters of civil liability for malicious prosecution is one of significant importance to the administration of justice. Moreover, it is an issue that certainly merits the consideration of a panel of judges of Saskatchewan's highest court, the Saskatchewan Court of Appeal.

The public policy consequences of not having the higher court review the definition and application of the law surrounding malicious prosecution are such that the attorney general of Saskatchewan really has no option but to appeal the ruling of the trial judge. The consequences, of course, include a possible serious reluctance of police officers, prosecutors and other workers to pursue cases of serious wrongdoing, particularly those involving vulnerable children, for fear of being held liable for their actions.

For similar reasons, in his capacity as employer, the attorney general must stand behind the employees who were acting in the course of their employment when the harmful actions occurred. This is particularly so when they were acting with the full knowledge and direction of their superiors, some of whom are no longer employed by government. In short, the actions of the attorney general in pursuing an appeal are not only completely understandable but are necessary. As the guardian of the administration of justice in this province, the attorney general has a duty to balance complex interests that have surfaced in the context of this particular case.


Response

February 20, 2004

To the editor

I am a bit perplexed by the personal viewpoint of Dan Ish (Justice Minister had to appeal Klassen ruling, Feb. 19/04)

He states "The Attorney General has the responsibility for balancing two compelling interests -- protection of the individual . . . and the preservation of the prosecutorial function of the state." Why are these competing interests? Isn't justice the "overarching responsibility" of the Attorney-General?

As an employer the Attorney-General should demand accountability. If more accountability had been demanded of his employees the Klassen fiasco could have been avoided.

Judge Baynton sat through seven weeks of trial, heard all the evidence and gave his reasoned judgement. I would feel better about the pronouncements of Frank Quennell, Lorne Calvert and Dan Ish if I could be assured that they had read the judgement carefully. This is a particular case based on particular evidence and Judge Baynton paid it the honour of treating it as such, not as a model whereby the department employees can escape accountability.

Laura Jones

Saskatoon