I now publish from my own site at www.tarullilaw.com/ethicallawyer.  Please update your feedreaders and bookmarks – your readership is always appreciated.

Also, if your interests lie along the lines of insurance litigation, have a look at my (nascent) insurance law blog at www.tarullilaw.com/insurancelawyer.

See you there!

The facts of the case are simple:  Mr. Whelan’s teenaged daughters set out to make some French fries.  They put some cooking fat into a large pot and put the pot on their electric stove, leaving the burner turned fully on.  Then they went upstairs to their room and started fixing their hair, forgetting completely about the fat on the stove.

Soon, the fat caught fire, and the girls ran screaming out of the house to their father, who had been working on a vehicle in the driveway.  He ran back into the house and was able to put out the fire.

He called his insurance company and told them what happened, and then went out to his lawn to recover from the smoke and fumes.

A neighbor happened along and told him that if it was a fat fire that had been the cause of his loss, then his insurance company wouldn’t cover the loss.

What happens next is what I find disturbing.

Mr. Whelan goes back into the house, takes the pot off the stove and hides it in the garage.  When he gets back, the fire in his kitchen re-ignited, and the house was destroyed.

When the police arrived that Wednesday night, he told them he didn’t know what caused the fire, but that he put on an electric kettle for tea, and when he came back, he found the fire on the stove.  He told the same story to his insurance adjuster on Friday.

By Saturday, he was beginning to worry about having lied to his insurance company.  On Monday, he called the insurance company back and told them what really happened.

The insurance company denied the claim.  The trial decision ordered payment of the claim, however in my opinion, the case is wrongly decided.  The fact is that the insurer is within its right to deny coverage on any misrepresentation made on an insurance claim, by virtue of the principle that an insurance contract is a contract of utmost good faith.

Nevertheless, the question for our profession is this:  Why didn’t Mr. Whelan check out his neighbor’s advice with a real lawyer?  There is no answer to that question in the case report.

He had plenty of time to do so.  The fire seems to have happened on a Wednesday, and he only gave his insurance adjuster a statement on the following Friday.

Unfortunately, I’ve met too many people who would have done exactly what Mr. Whelan did – shy away from consulting a member of the profession.  They do it because they think no lawyer cares unless they stand to charge a fee.  Or they think their question is too insignificant.

From an ethical standpoint, when so much is at stake for a client in Mr. Whelan’s position, the proper way to deal with the question is to meet with the client and get all the facts.

I would hope most lawyers would recognize the importance to him and take the time and care to give him an answer – even at a fairly low cost.

The problem is that most people don’t think that would happen.  We need to work to correct that perception.

The issue involves a two year old murder case that has not yet been tried.  The accused’s original defence counsel had sought an adjournment on the basis that the Georgia legal aid system could not pay their $95 per hour fees and the anticipated expert fees at trial.

The prosecutor suggested that rather than have two private attorneys represent this accused, the judge could order their substitution with two public defenders salaried by the state.  The judge agreed.

The new lawyers moved to be relieved of their new assignment, on the ground that forcing this new file on them puts them in the position of defending the accused at the expense of their existing clients, since their current workload is excessive already.

In addition, the considerable work that the original attorneys had put into the case would be lost.

Also of concern would be outside counsel’s willingness to properly defend future clients if they must be concerned that a judge will substitute them at some later date.

What also appears to be at stake in this case is when a client’s choice of lawyer be overruled, and at whose instance.  It is well established that a client’s choice of counsel should be overruled only in the clearest cases.

In this case, the judge made the substitution at the prosecutors’ suggestion.  If a prosecutor can successful move for the removal of a defendant’s counsel because another one would be cheaper, the potential for abuse and distrust for the legal system should not be overstated.

One can only hope this unfortunate decision will be reversed on appeal.

What makes this case interesting is that at the same time he carried on the affair over which he is now being sued, Mr. Hunter sat on a disciplinary panel for the Law Society of Upper Canada that also dealt with allegations of sexual involvement between another Ontario lawyer and that lawyer’s client.  That lawyer was disbarred.

Now, I am not privy to the particular facts before each committee.  There may well be very good reason for the vastly disparate treatments.  Indeed, the news reports indicate that the disbarment case is still before the courts.

The case did, however remind me of this paper that I wrote back in 1995-96, when I was in my third year in law school at the University of Alberta.  This paper is over 10 years old, and the writing is that of a third year law student so it isn’t my to my standard for an academic publication, and the authorities are not up to date.

The basic premise, however, stands.  Back then, I argued that the Canadian Bar Association ought to adopt a specific rule prohibiting sexual involvement between lawyers and their clients.

At the time, neither the Canadian Bar Associations Rules of Professional Conduct, nor the American Bar Association Model Rules of Professional Responsibility contained specific rules.  In 2001, the American Bar Association adopted Rule 1.8(j), which provides that

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

The last time the Canadian Bar Association debated the question was in 2004, at a divisive meeting where the majority shouted down the recommendations of its Standing Committee on Ethics and Professional Issues, calling them “paternalistic”.  The Committee offered 2 options: the first was a rule based on the American Bar Association’s approach, while the second was based on the approach taken by the Nova Scotia Barristers’ Society.

Nova Scotia was the first Canadian province to institute a rule dealing with sexual relations between lawyer and client.  Nova Scotia’s rule 7.5 from the Barristers’ Society Legal Ethics Handbook contains the standard wording that prohibits a lawyer from acting in a conflict of interest.  The commentary to the rule provides as follows:

Sexual Relations with Client
7.5  Rule 7(a) is intended to prohibit, inter alia, sexual exploitation by a lawyer in the course of a professional representation.  Often, based upon the nature of the underlying representation, a client exhibits vulnerability.  The lawyer must not take advantage of that vulnerability.  The solicitor-client relationship frequently creates an imbalance of power in favour of the lawyer where a client exhibits dependence upon the lawyer.  A lawyer owes the utmost duty of good faith to the client.  The relationship between a lawyer and client is a fiduciary relationship of the very highest character and all dealings between a lawyer and client that are beneficial to the lawyer will be closely scrutinized with the utmost strictness.  Where lawyers exercise undue influence over clients to take unfair advantage of clients, discipline is appropriate.  In all matters, a member is advised to keep clients’ interests paramount in the course of the member’s representation. [footnotes omitted]

This is substantially the same approach taken by Ontario and British Columbia.  The remaining Canadian provinces do not deal have a rule that specifically addresses this topic.

For all the allegations of paternalism, the approach taken by law societies of Nova Scotia, Ontario and British Columbia remains permissive, leaving it open to a lawyer facing disciplinary proceedings to argue that the relationship was not exploitive.

The difficulty with this approach is that it necessitates an inquiry by the disciplinary panel into the nature of the relationship and the dynamic that existed between the lawyer and client both in their professional relationship and in the romantic one.  This inquiry detracts from the primary issue – the lawyer’s conduct.  This is intrusive, and will tend to discourage clients from reporting inappropriate conduct by their lawyers.  This leaves the impression of an opaque disciplinary regime that protects its own.  In the end, the profession pays the price with the erosion of the public’s trust.

In addition, as my paper argued back in 1996-1997, the lack of a specific prohibition leads to uneven disciplinary results, as exemplified in the Hunter case.

Historically, the professions have excluded all vocations except the clergy, medicine and the law, yet the medical and clerical professions have not objected to far more prohibitive restrictions than even the approach taken by the American Bar Association.

In the medical profession, all jurisdictions strictly prohibit sexual relationships between doctor and patient.  Indeed, this proscription is seen even in the Hippocratic Oath.

The Ethics Manual of the American College of Physicians is explicit:

Issues of dependency, trust, and transference and inequalities of power lead to increased vulnerability on the part of the patient and require that a physician not engage in a sexual relationship with a patient. It is unethical for a physician to become sexually involved with a current patient even if the patient initiates or consents to the contact.

Even sexual involvement between physicians and former patients raises concern. The impact of the patient-physician relationship may be viewed very differently by physicians and former patients, and either party may underestimate the influence of the past professional relationship. Many former patients continue to feel dependency and transference toward their physicians long after the professional relationship has ended. The intense trust often established between physician and patient may amplify the patient’s vulnerability in a subsequent sexual relationship. A sexual relationship with a former patient is unethical if the physician “uses or exploits the trust, knowledge, emotions or influence derived from the previous professional relationship”. Because it may be difficult for the physician to judge the impact of the previous professional relationship, the physician should consult with a colleague or other professional before becoming sexually involved with a former patient. [footnotes omitted]

While Canadian Medical Association’s Code of Ethics is somewhat vague, all of the provincial Colleges of Physicians and Surgeons contain prohibitions not unlike that seen in the Policies and Guidelines of the College of Physicians and Surgeons of Nova Scotia:

The therapeutic relationship is not to be used to further the physician’s own needs, nor is it ever appropriate for the physician to attempt to meet a patient’s sexual needs. Sexualizing the physician-patient relationship has no therapeutic value. Patient consent is never an acceptable rationalization. Even when the patient has made sexual advances, it is the physician’s responsibility to reassert the appropriate boundaries. Because the physician holds the more powerful position in the relationship, the physician must set and control the limits.

Similar proscriptions are seen in the ethical codes of all medical disciplines.

The clergy are well known for prohibiting sexual contact between clients and pastors, as can be seen in the code of ethics for both the American Association of Pastoral Counselors and the Canadian Association of Pastoral Counselors.

It might be argued that many of the lawyer’s clients are not in as vulnerable a position as a doctor’s patients or a clergyman’s parishioners.  While that may be true in certain circumstances, what must be at all times at the forefront of a lawyer’s mind when conducting the affairs of his or her clients are the client’s best interests.

Proper legal representation requires the exercise of clear and dispassionate judgment.  That judgment necessarily becomes clouded when dealing with close personal relations.  Even the somewhat vaguely worded proscription in the Canadian Medical Association’s Code of Ethics requires that physicians refrain from treating themselves and members of their immediate families, except in emergencies or when no other care is available.

Members of the legal profession suffer from the same human frailties.

The approach taken by the American Bar Association strikes an appropriate balance of the particular nature of legal practice and the human frailties that are at play in all professional relationships.  Members of the legal profession in Canada would be well served by adopting a similar rule.

See also:
National Post – Saturday, January 05, 2008

This particular editor hailed from Belarus – a nation not well known for its tradition of freedom and democracy. 

We don’t, however, need to look that far.

Right here in Canada, lawyer and news magazine publisher Ezra Levant is defending himself against a complaint lodged against him by a radical Calgary imam for doing exactly what his unfortunate Belorussian counterpart did:  he had the temerity to publish the now infamous Danish cartoons in his own publication, the Western Standard.

Ezra, however, is not one to back down.  He has posted video of the Alberta Human Rights Commission‘s initial investigatory interview with him on his website.  What we see is a government inquiry into why he felt he should publish the cartoons, and what he was thinking when he did it.

This is Orwellian.  Does it really matter why he did it?  What he was thinking?

Is Ezra not entitled, in a secular society, to provoke a debate about whether violence and destruction is a reasonable response to the publication of some cartoons offensive to no one but a few religious fundamentalists?  Are we really so afraid of offending them that we are prepared to trade away the basic freedoms upon which our society is based?

That Ezra is not the only writer facing this kind of inquisition in Canada should give us pause.  Mark Steyn is facing a similar inquistion after the Canadian Islamic Conference complained to other human rights commissions over publication of an excerpt from his book that, they feel, insults Islam.

This, however, is a blog about the ethics of lawyering, and in this regard, Ezra deserves singular praise.  Freedom of speech, the right to a hearing before an impartial tribunal, procedural due process – these are all the fundamental values of a free and democratic society.  When the law purports to limit these freedoms in a way that stifles social and political debate, then surely it is the duty of a lawyer to speak out.

Where most lawyers are prepared to engage in this debate only in an abstract way – perhaps at most, only in the course of representing a client – Ezra has placed himself at the centre of the maelstrom.

His vocation, since shortly after graduating from law school, has been as a publisher.  Perhaps that is the legal profession’s loss.

Why indeed?

I have argued that even though administrative tribunals in Canada, such as the Canadian Nuclear Safety Commission, are entitled only to as much institutional independence as their enabling legislation grants them, given the language in the Nuclear Safety and Control Act, S.C. 1997, c. 9, including the fact that the legislation refers to that tribunal as a “court of record”, the CNSC is entitled to a great deal of independence from interference by government.

Where a tribunal is given that kind of independence, the members of the tribunal have a corresponding duty to defend that independence.

Ms. Keen’s decision not to testify before the parliamentary committee set up to inquire into the events giving rise to her dismissal is unfortunate.  It is, in my view, an abdication of her responsibility to defend the independence and integrity of the tribunal on which she continues to sit.  In addition, it deprives Canadians of the opportunity to hear and be educated on the functioning of administrative tribunals which occupy a growing part of the justice system in Canada.  Finally, it sweeps under the rug some questionable behaviour on the part of this government.

I agree with the writer in this editorial that if need be, she should be summoned to appear.  I do, however, hope that it does not come to that.  I hope that Ms. Keen will continue to do what she had done so well up to this point, and defend the independence of her tribunal.

As I indicated in a previous posting, although administrative tribunals in Canada enjoy only the degree of institutional independence that their enabling statute grants them, my analysis for the CNSC is that it is entitled to significant independence, considering that its enabling statute refers to it as “… a court of record”.  Also significant is the fact that its work deals with serious public safety issues, and its membership is employs specialized knowledge.

That degree of institutional independence imposes on tribunal members an obligation to reject any attempt at influencing its decision making in particular cases before the Commission.  Ms. Keen carried out that obligation well, and her efforts have now been rewarded with the loss of her presidency on the tribunal, although she remains a member.

This government’s handling of the affair undermines public confidence in the workings of administrative tribunals, and sends a troubling message not only to the members of other administrative tribunals, but to every party with proceedings pending before them.  The potential damage to the administration of justice before these tribunals should not be underestimated.

1. Just how much independence can one expect from an administrative tribunal?

2. How far should members of an administrative tribunal go to protect that independence?

Linda Keen is the President of the Canadian Nuclear Safety Commission (CNSC). The CNSC is, according its website:

… an independent federal government agency that regulates the use of nuclear energy and material to protect health, safety, security and the environment and to respect Canada’s international commitments on the peaceful use of nuclear energy.

As in the case of all independent tribunals, the CNSC is charged with applying specialized expertise to deal fairly and without political interference with the matters within their jurisdiction as defined by their enabling statute. In this particular case, the CNSC was dealing with a license held by Atomic Energy of Canada Limited (AECL) to operate a nuclear reactor at Chalk River, Ontario, that generated a very significant proportion of the medical isotopes used at hospitals and patient treatment centers throughout North America.

The basic facts are that on November 5, 2007, the CNSC discovered that AECL had been operating its nuclear reactor with 2 pumps in its cooling system disengaged, in contravention of its license. As a result, CNSC asked AECL to conduct an assessment to assure itself and the CNSC that it was still safe to operate the reactor.

The reactor shut itself down as a result of a reactor trip in November 16, 2007, however AECL staff informed CNSC staff that they were operating “within their safety envelope”, and restarted the reactor later that day.

The requested safety assessment was done on November 19, 2007, when the reactor was shut down for its regular four-day maintenance activities. The result of the assessment confirmed CNSC’s concerns, and on November 22, 2007, AECL voluntarily shut the reactor down until it could install qualified motor starters for the 2 non-functioning pumps.

It’s worth remembering that this reactor was originally commissioned in 1957. In 1996, after 40 years in operation, AECL informed CNSC that the reactor would not continue in operation beyond December 31, 2005. AECL applied during 2005 for a 63 month license extension, which was granted after a 2 day public hearing received presentations from CNSC staff, along with 37 intervenors. When the license was renewed in June 2008, CNSC expressed concerns that “… the [reactor] design fell below current standards and practices, particularly in the design of defence-in-depth barriers such as shutdowns, emergency core cooling and confinement”, but that based upon safety upgrades that included the 2 pumps in question, the upgraded reactor would not pose an unacceptable risk to the public.

What is also worth bearing in mind, is that this map indicating seismic activity in the Chalk River area (which is about 38 km from Pembroke, Ontario), in the last 30 days alone.

Within 2 weeks of the shutdown on November 19, 2007, a shortage of medical isotopes emerged in Canada that delayed a number of medical tests and treatments for a large number of patients across the country. This started to attract media attention, and despite the fact that CNSC and AECL had been working together in an attempt to bring the reactor back online as quickly and safely as possible, the Minister of Natural Resources, who had apparently been aware of the deficiencies at the Chalk River reactor since at least September 2007, sprang into action.

What followed was a frontal attack on the CNSC’s independence as a quasi-judicial tribunal, that involved at least 2 telephone calls by the Minister of Natural Resources and Health Minister Tony Clement, together with a joint letter from both of them, all designed to pressure CNSC to permit AECL to restart the reactor without AECL’s license amendment application, notwithstanding that no proper safety assessment had yet occurred for the manner in which AECL proposed to deal with how the reactor would be cooled.

By December 10, 2007, the government withdrew legal services from the CNSC without notice.

On December 13, 2007, the government had legislated the reactor to begin operations, over the safety concerns of its nuclear regulator.

Most recently, the Minister of Natural Resources has threatened to fire Ms. Keen over the matter. Ms. Keen has responded in spirited defence of the CNSC’s actions, and warning the Minister of the chilling effect his actions would have on the work of all quasi-judicial tribunals in Canada.

She raises an interesting point.

Independent – to an extent

The degree to which an administrative tribunal (as opposed to a court) is required to be independent of political and governmental interference in Canada was recently dealt with by the Supreme Court in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781. There, the unanimous Court stated

22 However, like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication. Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question.

23 This principle reflects the fundamental distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. The same constitutional imperative applies to the provincial courts. Historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. It protected, and continues to protect, the impartiality of judges – both in fact and perception – by insulating them from external influence, most notably the influence of the executive.

24 Administrative tribunals, by contrast, lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. However, given their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected. [citations omitted]

Bearing that in mind, just how much independence are Ms. Keen, and ultimately the Canadian Nuclear Safety Commission entitled to?  [UPDATE:  For an interesting take on the independence of administrative tribunals, see this article by Lorne Sossin on the University of Toronto Faculty of Law Blog.]

On the first question, Ms. Keen is quite correct when she states that as a permanent member of the Commission, she is entitled to hold office during good behaviour, and may only be removed for cause. Mr. Lunn appears to be referring to Ms. Kean’s leadership in handling the Chalk River reactor affair.

If Ms. Keen is correct in that she and the Commission prioritized resources to deal with getting the reactor up and running, and that they did all they could within the framework of the Nuclear Safety and Control Act, S.C. 1997, c. 9, then in my view, Cabinet cannot just simply remove her, even if they would like to have seen her take steps to allow AECL to restart the reactor much sooner.

As to the degree of independence with which the Commission as a whole is entitled to operate, the answer is much more complex. Presumably, a court reviewing a case where the CNSC’s independence has been questioned would cast an eye to the decision of the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, where, at least in the case of determining the standard of review, a reviewing court must consider whether the legislation that creates the administrative tribunal has a privitive clause, the expertise of its members, the purpose of both the act and the provision that deals with the question before the court, and the “nature of the problem”.

In a case such as whether the CNSC has improperly suspended a license, or failed to permit a reactor to be restarted, we are dealing with a clause that states that members hold office during good behaviour and may only be removed for cause.

The purpose of the Act is dealt with in its Preamble and section 3. The Preamble states

WHEREAS it is essential in the national and international interests to regulate the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information;

AND WHEREAS it is essential in the national interest that consistent national and international standards be applied to the development, production and use of nuclear energy;

Section 3 provides that

3. The purpose of this Act is to provide for

(a) the limitation, to a reasonable level and in a manner that is consistent with Canada’s international obligations, of the risks to national security, the health and safety of persons and the environment that are associated with the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information; and

(b) the implementation in Canada of measures to which Canada has agreed respecting international control of the development, production and use of nuclear energy, including the non-proliferation of nuclear weapons and nuclear explosive devices.

Section 20 of the Act actually states that the Commission “… is a court of record”. Its use of the term “court” would imply a greater degree of institutional independence than would be accorded to an administrative tribunal otherwise.

The “nature of the problem” would be the question of whether the CNSC acted properly in refusing to permit AECL to restart its reactor without submitting a license amendment application that would have allowed it to operate with only 1 functional backup coolant pump, rather than 2, as set out in its license.

Finally, the question of the expertise of the Commission’s membership: The membership page of the Commission’s website would seem to indicate that 4 of its 6 current members include a chemist, a geologist, a doctor, and an engineer. The remaining 2 members are former politicians.

Summarized, we have 4 highly qualified, technically trained individuals and 2 former politicians who made a decision balancing Canadians’ interests in restarting the production of medical nuclear isotopes with their interest in doing so in a manner that does not pose an unacceptable safety risk. The Commission includes persons who would have experience with the political aspects of such a decision, and all members have security of tenure. The legislation under which they operate actually refers to the Commission as a court of record.

One would hope that the Commission’s work proceeds without political interference, since the Commission’s work involves serious questions of public safety. One has only to consider the impact of a disaster in the nature of Chernobyl and Three Mile Island.

On the whole, the legislation, at least by implication, would contemplate a significant degree of institutional independence. Mr. Lund and his government are, to say the least, misguided in their attempts to influence the Commission’s work in the manner seen here.

Linda Keen’s correspondence

Some coverage has criticized Ms. Keen’s letter as “caustic”. The real question is whether, from an ethical standpoint, her reaction to Mr. Lunn’s letter is appropriate.

While Ms. Keen is not a lawyer, her role is quasi-judicial, thereby making the Commission a participant in our judicial system.

Ms. Keen’s participation as an officer of the Commission would therefore require that her actions be governed by a professional standard, whether written or unwritten. While Ms. Keen is not a judge per se, as indicated, the legislation governing the CNSC describes the Commission as “… a court of record”. Accordingly, some guidance as to how members of the Commission should conduct themselves in office can be had from the Canadian Judicial Council publication entitled “Ethical Principles for Judges (1998)”. Chapter 2 of the Principles is entitled “Judicial Independence”, and reads as follows:

1. Judges must exercise their judicial functions independently and free of extraneous influence.

2. Judges must firmly reject any attempt to influence their decisions in any matter before the Court outside the proper process of the Court.

3. Judges should encourage and uphold arrangements and safeguards to maintain and enhance the institutional and operational independence of the judiciary.

4. Judges should exhibit and promote high standards of judicial conduct so as to reinforce public confidence which is the cornerstone of judicial independence.

The commentary instructs judges to vigilantly guard their independence, and to firmly reject any improper attempt by anyone – and it mentions politicians specifically – to influence their decisions. Measured by this standard, Ms. Keen’s letter is wholly justified. Indeed, she would have been seriously remiss in her duties had it not been sent.

What is more troubling, however, is the knowledge that this government has considered itself justified in attempting to influence the process and outcome of the Commission’s decision with respect to the AECL reactor. This action seriously undermines not only the independence of this tribunal, but casts a pall on the work of all other administrative tribunals over which the federal government has authority. No party can feel safe that a tribunal’s decision in any matter that it has before such tribunals will not be free from attempts on the part of the government to influence decisions according to the government’s philosophy of the day.

The tribunal members are in an equally uncomfortable position in that should they feel their application of the laws they are applying leads them in a direction not palatable to the government of the day, those tribunal members may find themselves in a situation similar to that which Ms. Keen faces today, where her position is threatened.

This government’s actions were, to be charitable, ill-advised. This government ought to be firmly encouraged to abandon any further action on the Chalk River matter, and to issue an apology to Ms. Keen.

One hopes that in the future, it will more carefully consider its involvement with particular cases before its independent tribunals.