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"I believe for a democracy to succeed we need a zone of privacy around the individual." — Richard Peck Peck suggested a reference case as opposed to a straight chal- lenge as he felt a challenge could be derailed at several stages and never get to the meat of the issue on the constitutionality of polygamy laws. Peck also showed an empathy rarely seen for residents of the commune, saying "they were investigated 17 or 18 years ago and aſt er that investigation nothing was done and they've gone on and lived their lives in their peculiar belief system. "To suddenly change this, there was an element of fairness there that concerned me and I thought the reference would be a clean way to get to the core issue, get it dealt with in a fairly timely fashion, and then, as I suspect, it was upheld and found out to be constitutional, everybody would be on notice, and then it is fair game." Peck agreed that continually threatening people with charg- es, yet never following through, seemed almost malicious. De- spite the words of praise from Oppal, Peck's opinion prompted the province to call for another opinion, this time from Len Doust, one of the special prosecutors who represented the government's case in Air India. Doust also said the province should pursue a reference case. Th e province has now called for a third review. Regardless of the next steps, there will no doubt be those in B.C. that pin the entire issue, and the inability of the province to get a resolution, as a fault of the Charter. Truly, whenever there is a perceived case of a criminal or a suspected criminal getting the better of the court system, radio call-in shows are littered with listeners wishing to tear up the Charter. Th e air- waves are not the only place where you'll fi nd those who fi nd enormous fault with the Charter. Peck says the legal profession has also seen its Charter skeptics. "It is a lot harder to adapt to a sea change that was wrought by the Charter if you've been entrenched in thinking in pure common law, criminal law systems for 20 or 30 years and suddenly you've got this new machine, this new engine, this vibrant engine that is aff ecting criminal law," says Peck. "Th e odd thing about lawyers, and it doesn't matter whether they are criminal lawyers, civil lawyers, tax litigators, lawyers as a group tend to be very conservative, and I don't mean politically conservative, conservative by na- ture." Peck, called to the British Columbia bar in 1975, had only been practising law for eight years when the Charter was en- acted. He agrees with many of his predecessors that it is a living www. document, a "living tree" to borrow the description of the Brit- ish North America Act given by Lord Sankey in the Person's case. Peck marvels at the Charter's fl exibility in enabling Ca- nadians, their politicians, and the courts to cast off traditional belief systems. "I don't think we should be afraid to use it and to use it to challenge ideas that we have historically accepted with- out question," he says. "I think that it is to be used for important issues, I don't think it should be in any way trivialized. I think that sometimes people tend to use it for purposes or reasons that I don't think it was intended for. At the same time, it seems to me, that when you are dealing with core issues that mark the strength of a democracy such as privacy, I think that the Char- ter is there for our use and protection. Effective Written Advocacy Effective Written Advocacy brings together the wisdom of Canada's top practitioners, writing experts and judges to guide you on how to write powerfully and persuasively for your audience. With this book you will learn: tips to improve the strength of your legal writing how to take your writing from factual to persuasive what works and what doesn't from a judge's perspective how to anticipate and address the court's concerns in your writing how to design your written submissions so the judge can tell, at a glance, how you plan to argue your case and what law applies how to structure your writing to be as persuasive as possible See for yourself. Order your copy of Effective Written Advocacy today! *Authors' royalties will be donated to the Honourable Marvin Catzman Bursary fund. For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. Free Shipping on pre-paid orders. Prices subject to change without notice, and to applicable taxes. CL1108 mag.com NO VEMBER / DECEMBER 2008 37 CROMWELL_Effective Written Advocacy(CL 1-4 sq).indd 1 10/27/08 3:43:05 PM