Is Geoff Plant really one of the finest legal minds in British Columbia?
On September 8, I heard CKNW Radio host Sean Leslie blithely refer to former attorney general Geoff Plant as one of the finest legal minds in British Columbia.
Leslie made the comment in connection with Plant's appointment as B.C.'s lead lawyer at the Joint Review Panel's evaluation of the Northern Gateway Project.
Anyone who has interviewed Plant has likely come away thinking that he's exceptionally intelligent, which may account for Leslie's statement.
I recall inviting him into one of my journalism classes that I taught at Kwantlen Polytechnic University. He delivered an impressive analysis of the impact of the Canadian Charter of Rights and Freedoms on the relationship between governments and the governed.
There's no question that Plant is articulate. He wrote the Campus 2020 report, which included some excellent recommendations for modernizing B.C.'s postsecondary education system. He also didn't appear to make any serious blunders during his stint as Vancouver's civil city commissioner when Sam Sullivan was mayor.
But does this warrant the type of lofty praise offered up by Leslie? After all, this is the same attorney general who announced the firing of B.C.'s chief human-rights commissioner, Mary-Woo Sims, during question period. That was hardly his finest moment in government.
And as attorney general, he also oversaw the introduction of some of the most draconian welfare legislation in the country. This included a two-year independence test for young people and a 100-percent clawback on family maintenance payments and any earnings for those on social assistance.
I decided to look at the record of some high-profile legal cases that Plant has been connected to in recent history. When he was attorney general, the Crown won an appeal in one of the most important cases that ever came before the Supreme Court of Canada.
This was the Auton litigation. The B.C. Supreme Court and the B.C. Court of Appeal ruled that the B.C. government had violated autistic children's constitutional right to equality by refusing to include applied behavioural therapy in the Medical Services Plan.
The country's highest court, however, deemed that it was not discriminatory to deny the provision of some "non-core benefits", such as this therapy for autistic kids. Plant could chalk this up as a win, even though his government's determination not to pay for this service enraged these children's parents.
However, Plant was also attorney general when the B.C. Liberal government ripped up contracts for teachers and health-care workers. In these instances, the courts later ruled that the B.C. Liberal government violated the workers' constitutional right to freedom of association. As attorney general, Plant was the government's top legal adviser when the legislation was drafted.
Another strikeout occurred when Plant and his B.C. Liberal colleagues Mike de Jong and Gordon Campbell went to court to challenge the constitutional validity of the Nisga'a treaty. That was blown out of court.
More recently, Plant wrote an article in the Vancouver Sun claiming that the HST Extinguishment Act was unconstitutional.
A bunch of business groups took this advice and launched a legal challenge in B.C. Supreme Court. They lost.
Plant was on the winning side as a member of the B.C. government's legal team arguing the Delgamuukw case in B.C. Supreme Court. This ruling was later overturned by the Supreme Court of Canada when the government was represented by a different group of lawyers. In 1997, the highest court confirmed the existence of aboriginal title and offered a definition, which has had a profound impact on the province ever since.
I'm sure Plant has had many other legal victories, which have not been reported here.
But in light of this record in the most famous cases, perhaps the media should temper the superlatives when discussing his legal expertise. He won Delgamuukw (though he wasn't the lead lawyer) and Auton, and lost badly after ripping up workers' contracts and challenging the Nisga'a treaty. The province's largest business organizations also took a beating in court after he came to some controversial conclusions over the HST Extinguishment Act.
There are many great lawyers in B.C. And some of them (notably Joseph Arvay) have a better track record than Plant when it comes to dealing with the most newsworthy cases in the public interest. Maybe it's time that we in the media talked more about their accomplishments.
Follow Charlie Smith on Twitter at twitter.com/csmithstraight.
Comments
7 Comments
DavidH
Sep 9, 2012 at 10:37am
Sadly, Sean Leslie (generally a good reporter) simply parroted talking points from Christie Clark's office, following Plant's appointment. He should have spent a few minutes in the archives.
By the way, let's not forget Plant's "leadership" on the aboriginal treaty referendum - one of the worst affronts to democracy I have ever had the misfortune to see in Canada. A truly "fine legal mind" would have refused to have anything to do with that farce,
Charlie Smith
Sep 9, 2012 at 10:46am
DavidH
I considered including this in the article, but for some reason, I had the impression that Plant was turned off by this whole exercise, and it might be hitting below the belt by making too big of a deal about it. The referendum was Gordon Campbell's project. I can't fathom anyone with a law degree wholeheartedly supporting a referendum on minority rights, particularly in light of the withering criticism this received from Tom Berger and others. But you're right. A truly fine mind wouldn't have had anything to do with this farce and, in retrospect, it probably should have been mentioned.
Charlie Smith
Slantendicular
Sep 9, 2012 at 11:10am
I think that it is the task of a lawyer to advocate for their client, and a lawyer should not always seek to win, but to see that justice is done, especially when that lawyer is working for the government. I don't like measuring the worth of a lawyer by their tally of wins or losses: as one can see from your list, the fine legal minds of the BC Court of Appeal also regularly thought these matters "wrong."
Martin Dunphy
Sep 9, 2012 at 6:46pm
In all fairness though (as opposed to the fairness demonstrated, in good faith, by Charlie Smith), when two of your biggest "victories" involved kicking the asses of autistic kids, their parents and caregivers, and disadvantaged First Nations members, well......
chowza
Sep 9, 2012 at 9:53pm
Geoff Plante has never been considered one of BC finest legal minds except by the angry white guys over at CKNW. He is a fine lawyer. In addition, it is not merely wrong but objectionable to determine whether he is a good lawyer by his wins or losses as Smith tries to do.
Plantes role in the Enbridge hearings has nothing to do with legal advocacy and everything to do with politics and Clark's well known penchant for photo ops.
Danny Flannigan
Sep 10, 2012 at 11:11am
Geoff Plant demonstrates the kind of level headed solution based thinking this province is in dire need of.
eCoyote
Sep 10, 2012 at 12:33pm
In considering Geoff Plant's legal career, it's worth bearing in mind the following.
In Haida v. BC (2004), the Supreme Court of Canada said: "the Crown, acting honorably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof."
In Taku v. BC (2004), the Supreme Court of Canada said: "The province's submissions present an impoverished vision of the honor of the Crown and all that it implies."
Afterward, Ed John from the First Nations Summit, in an interview with Windspeaker on what the rulings mean, nicely summarizes the Crown's discredited position: "We have now a Section 35 duty on the Crown to consult and accommodate. And this is before Aboriginal rights or title are proven. That's a significant step for us and also for the government. I think it's clarified that matter. Both governments, and in particular the B.C. government, have said we really have no duty to consult before Aboriginal rights or title are proven. That argument's been completely thrown out. The court called it impoverished."
So then, who was the BC Attorney General at the time? None other than Geoff Plant, of course.
As for Plant's so-called "victory" in Delgamuukw I, he and his colleagues didn't so much as win the case because they somehow expertly rendered abstract concepts of law into persuasive arguments as much as they regurgitated the prevailing Eurocentric ideology of the time, all of which found easy favour with the trial judge. Case in point, the laughable "pizza test," when at trial the Crown's "best legal mind" cross-examined a plaintiff on whether she ate pizza, and because she did he argued this should go against her claim for aboriginal rights because it wasn't an authentic native dish. These and other patently false and arguably racist arguments provided BC Chief Justice Allan McEachern with enough "evidence" to confirm in 1991 that Aboriginal title and rights existed at the "pleasure of the Crown," and thus had been unilaterally extinguished in BC by government. He justified this by comparing the Aboriginal plaintiffs' pre-contact existence to Thomas Hobbes' hell, saying it was "at best, nasty, brutish and short."
This infamous ruling was, however, partially rebutted by the BC Court of Appeal in 1993 and then fully so in 1997 when it was overturned by the Supreme Court of Canada which cited numerous errors in Judge McEachern's reasoning. Hence, a new trial was ordered. But more importantly, it declared that Aboriginal rights and title hadn't in fact been extinguished, although it needed to be proven on a case-by-case basis.
Therefore, Plant's victory was in the end not to be. Nevertheless, this didn't deter BC, under his guidance, no less, from submitting a questionable position in the subsequent Taku case, which the Supreme Court of Canada damnably found "impoverished."
More than just questioning Plant's legal abilities, it's also worth questioning whether this former politician will follow the same route as Consersative MP and current Public Safety Minister Vic Toews, who according to reports might soon be appointed to the Manitoba Court of Appeal.