Canadian politicians are fessing up to smoking pot.
OTTAWA — It could be an awkward first day of school on Tuesday for two University of Ottawa law professors who’ve been duking it out all week over Justin Trudeau’s recent admission to smoking pot as an MP.
Amir Attaran and Adam Dodek are at odds over comments made by Attorney General Peter MacKay following the Liberal leader’s mea culpa which came after Trudeau started advocating for the legalization of marijuana earlier this summer — a policy stance his party had taken previously.
Attaran took issue with MacKay for suggesting it was a crime to smoke marijuana when, in fact, it’s possession that’s a crime. He wrote the Nova Scotia Barristers’ Society, asking it to investigate the minister for allegedly misleading Canadians about federal laws.
Dodek responded with several Tweets and emails to Postmedia News about how his colleague’s actions were “ill-advised, baseless and frivolous.”
Professors Adam Dodek and Amir Attaran (Twitter, Wikimedia)
What ensued was a fascinating email debate conducted via this reporter. Seems like good fodder for a first assignment. Would be a shame not to share it with a wider audience that just might include their future students.
Here’s what happened after Dodek’s remarks were made public:
Hi Adam,
I read of your belief that my complaint against Peter MacKay is “baseless”. Can I please ask you two questions:
MacKay said that smoking marijuana is “against the law”. Please can you cite to me any part of Canada’s criminal law which prohibits the act of smoking, as opposed to possessing, marijuana?
MacKay accused Trudeau of “breaking the law”. Is it appropriate for a sitting Attorney General, who is supposed to discharge his official functions in a non-partisan fashion, to accuse a political opponent of breaking the law, when the Attorney General has never prosecuted, much less convicted, that person of any offence?
I would be grateful for your considered replies.
Amir
—
Hi Toby,
I saw your story about Adam Dodek calling it “baseless” to complain to the NS Barristers’ Society over the conduct of Peter MacKay. Needless to say I think Adam is wrong about this, and he’s confusing his personal dislike of law society complaints, with a supposed legal argument against the complaint.
Still, to be fair minded, I dropped Adam a polite note with a couple questions to clarify his position — see my email below (above). But he has not answered.
Adam is most noticeably wrong when he tweeted a Quebec Court of Appeal case from 1965, which he says gives the Attorney General “immunity” from law society scrutiny. Oddly Adam overlooked higher and more recent (2002) authority from the Supreme Court of Canada, which clearly says that the office of the AG is subject to disciplinary jurisdiction of the law society. As the unanimous Supreme Court held:
“Prior to considering the specific questions raised by this appeal, we believe it is useful to discuss the nature and development of the Attorney General’s office in Canada. Although we ultimately conclude that the Law Society retains jurisdiction over the alleged misconduct at the bottom of this dispute, the respondents rightly observed the unique and important role of the Attorney General and his agents as distinct from private lawyers…
The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General’s role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government…
It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions…”
See: Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372 (bolding is mine)
Thus clearly, the Supreme Court agrees that the AG is to behave in a non-partisan fashion and rejected the idea of immunity.
In my view, Mr. MacKay transgressed both his ethics as a lawyer, and the duties of the office. He was nakedly partisan in declaring criminality by an opposition politician, Mr. Trudeau, despite the fact that he has the power as Attorney General to charge or prosecute him but chooses not to. Mr MacKay is doing what tyrants in third world countries do: declaring guilt by innuendo, rather than by fair trial.
Now, if Adam wants to stick with his version that the complaint is “baseless” — and perhaps he does not, since he isn’t answering my polite questions — then can I please ask you to propose to your editors that he and I debate MacKay’s transgressions on the op-ed page, point-counterpoint style. I think that would make for a scholarly and interesting exchange.
Amir
—
Hi Tobi & Amir,
I stand by my comments to Tobi yesterday. Nothing Amir has said below (above) changes my opinion. I have no interest in engaging in further debate on the op-ed pages of the Citizen or elsewhere. I am content to await the decision of the Nova Scotia Barrister’s Society regarding Amir’s complaint which I trust he will release to the media in the same manner as he released the complaint against Mr. Mackay.
Best to you both,
Adam
—
Hi Adam,
Okay, that’s your choice. But if you have sound reasons for your point of view, surely those could be cogently articulated in a longer, scholarly op-ed, could they not? Or does an intelligent man like you really believe that a constitutional and criminal law issue of this novelty and complexity can be analyzed from all angles and boiled down to a 140 character tweet? (The legal system sure could save a lot of dead trees if that were true.)
I hope you will reconsider.
All that said, I readily admit that the Barrister’s Society might align with you and reject the complaint — it could happen. We all know that courts and law societies sometimes go weak in the knees and dodge difficult questions, but that does not mean that their reasoning is necessarily sound.
Amir
tcohen@postmedia.com
Twitter.com/tobicohen
