James Harbic

JAMES HARBIC B.A., LL.B., J.D., (April 11, 1950) Constitutional Rights Defense Lawyer. In the 1960's he became the youngest member of the Canadian Parliamentary Press Gallery. From this vantage point of covering the House of Commons he became an ardent supporter of the constitutional ratification of the bill of rights.
At the age of twenty he was a nominating delegate at the 1971 Ontario Progressive Conservative Leadership Convention at Maple Leafs Gardens in Toronto. It is in this arena that he helped launch the campaign for francophone educational rights that would become a reality thirteen years later.
In the 1980's he was the first Canadian appellate lawyer to challenge the criminal code and plead successfully that the Charter of Rights and Freedoms was constitutionally binding on parliament.
In 2000 Harbic wrote that it was his believe that " The cause of Human Rights and Civil Liberties, including the notion of equality before the law, are among the most noble achievements of mankind" It is an approach that he continues to pursue in the courts well into the new millennium.
EARLY YEARS
It is somewhat fitting that James was born, only 17 months after, Canadian lawyer John Peters Humphrey helped Eleanor Roosevelt and others to complete the first draft of the United Nations Universal Declaration of Human Rights. His farther Denis, was a university biochemistry professor whereas his mother stayed home and raised James and his older sister Patricia and his younger brother Robert and Peter.
At the age of six James attended a french separate school where he was given the strap for speaking english in the school yard. Rather than become bitter, James developed a sensitivity to the linguistic insecurity of francophones. During the summers he vacationed with his family at Lac Long Quebec where his french playmates regarded themselves as “canadiens” and James was an “anglais.”
At the age of 12 he was invited by his best friend, Paul Mckenna to watch his grandfather, Chief Justice Patrick Kerwin at the Supreme Court of Canada. While sitting in the stately public gallery of the country'a highest court James was impressed with passionate pleadings of defence counsel, Arthur Maloney. He always maintained that the eloquence og Maloney's advocacy helped to inspire him to pursue law as a vocation.
James attended Ridgmont High School where he was a defensive end for the varsity football team and a member of the Debating Society. A defining moment happened when he was disciplined for coming to the defence of a fellow student who was being humiliated for a deformity. Three years later when he obtained his Honours Graduation Diploma he received no awards, however for years afterwards he cherished an entry in the school year book by his english teacher, William Coveny, who borrowed a line from Paul Simon “In the clearing stands a boxer ….and his names is James.”
From a young age , James enjoyed reading about Hyperides, Demosthenes, Cicero, Saint Ivo Helroy of Kermartin, Sir Thomas More, Thomas Jefferson, Daniel Webster, Sir John A. Macdonald, Abraham Lincoln, Clarence Darrow and Gandhi. He followed the struggles of Nelson Mandela against apartheid as well as those of Thurgood Marshall and the Civil Rights movement in the deep South
THE BILL OF RIGHTS
Harbic ,during the sixties as the Ottawa Correspondent for the Whitehorse Daily Star, interviewed John Diefenbaker, a defence lawyer who became Canada's 13th Prime Minister. Diefenbaker's proudest accomplishment was his government's Canadian Bill of Rights. The young journalist supported Diefenbaker's position that the courts should give effect to the protection of fundamental rights as identified by the “Bill of Rights”. The courts refused to do so because it had never been ratified by the provincial and territorial legislatures.
As the youngest member ever of the Parliamentary Press Gallery, Harbic covered the national convention in the sparkling new Ottawa Civic Center that elected Pierre Trudeau as the leader of the Federal Liberals. It would be Trudeau's government that would initiate the legislation that finally abolished the death penalty in Canada and essentially emboldened Diefenbaker's Bill of Rights, by amending the Constitution to include a Charter of Rights and Freedoms.
THE CAMPAIGN FOR FRANCOPHONE EDUCATIONAL RIGHTS
While attending the University of Ottawa ,Harbic experienced the suspension of civil liberties first hand. Soldiers arrested french radical students at the bilingual campus pursuant to the declaration of the draconian War Measure's Act which was the government's response to the FLQ Crisis on October 16th, 1970. More importantly while socializing with french speaking students he became aware of their sense of injustice because of the inequalities in educational opportunities. Now James was the “Canadian”. And they were “Quebecois”. These legitimate concerns are all eloquently described in Hugh MacLennan's “Two Solitudes” and Gabrielle Roy's “Bonheur d'Occasion” and more forcefully in Pierre Valliere's “Les Negres Blancs d”Amerique du Nord”.
Experiencing the tension between Canada's two founding peoples motivated Harbic, along with 21 fellow students to campaign for equal educational rights for Ontario Francophones at the “New Wave Tory Convention” in February 1971.They raised funds by having Pub nights. Harbic sold his prized “Hart metal Skis”. Throughout the fall Harbic worked deligently in building a team of Human Rights activists. He then convinced Robert Pharand , a radical french speaking graduate student to run as a leadership candidate. Their intend was never to win the leadership of the Progressive Conservative Party but to put together a program of reform that would highlight the injustice in denying the french minority equal educational opportunities. They wrestled the Conservative campus club from underneath the nose of Maureen McTeer, a politician who would eventual marry Joe Clark , who became the Prime Minister of Canada in the late 1970s. They swept the Ottawa East delegate nominations and were editorially endorsed by Le Droit, the only french Daily Newspaper in North America outside of Quebec. The “equality riders” took the train from Ottawa to Toronto and stayed at the old Lord Simcoe hotel.
It was a very nervous James Harbic ,who as the nominator of leadership candidate Robert Pharand, addressed the 7,000 delegates in Maple Leaf Gardens first in french. When his words were greeted by boos he reverted to english and asked rhetorically “I wonder how I would be received if I spoke in english at a Quebec political meeting? Can we not have a dialogue in Canada? Do we have a country or don't we? We come from the libraries, bars, laboratories, cafes, playing fields and class rooms of Canada's only bilingual campus where students of english and french Canada study, play and talk. We are the canaries in the mine shaft. You are the political leadership of Canada's richest and most populated province - wake up and listen to our concerns. The boos quickly turned to cheers as the politically sensitive delegates remembered that their reception to this cry for national unity and attention to a social injustice was being televised to millions of Canadian homes.
Earlier in the day Harbic's life and those of his fellow volunteer students had been threatened. The reports from a Toronto radio station were that anti-french bigots were responsible for the threats. The threats were taken seriously as four Ontario Provincial Police officers were assigned to protect them.
The theme of Harbic's and Pharand's speeches was the importance of respecting the educational rights of francophones so that they would have the same opportunities as anglophones in Quebec. The delegates responded with standing ovations.The following night after William Davies was elected the new leader he approached Harbic-the only person on the platform who did not have a job to return to after the excitement of the convention -only a classroom and many late assignments. “The pipe smoking Davies told him “ You are right.....some day francophones will share equal educational opportunities in this province. Harbic never spoke to Davies again. In 1984, shortly before he retired as Premier of Ontario, Davies “startled” the province by initiating legislation that finally provided equal educational rights for francophones. That same year the Ontario Court of Appeal upheld the rights of every francophone and anglophone to an education in their language.
Harbic , who made the Dean's Honours List and graduated “Cum Laude”completed his studies at the University of Ottawa and also studied at Dalhousie and Saskatchewan Universities before being called to the Bar of Ontario on April 19, 1978. Upon completion of his formal studies he travelled extensively across North America and Europe. In 1981 he ran the National Capital Marathon in a respectful three hours fifty-eight minutes and fifty six seconds. He was married in 1982 to Claire and fathered two sons. Robert and John.
Years as a Defence Lawyer
While maintaining a busy practice as a defence lawyer in Ottawa Harbic has been a sessional lecturer on substantive criminal law, evidence, advocacy, ethics and criminal law procedures at the Faculty of law, University of Ottawa, Carleton University, Algonguin College as well as lecturing to police cadets and candidates to the Ontario Bar Program. He has also sat on continuing education panels dealing with Human Rights and Civil Liberties issues.
THE CAMPAIGN TO PROTECT THE FUNDAMENTAL RIGHTS OF CANADIANS
Diefenbaker died in 1979 heartbroken never having seen his beloved “Bill of Rights”recognized by the courts as protecting the fundamental rights of Canadians. The successor to his arch enemy Lester Pearson, Pierre Trudeau, Canada's 15th Prime Minister was eventually able to convince Parliament and all the provincial legislatures to ratify his proposed amendments to the constitution including a Charter of Rights and Freedoms. Quebec formulated it's very own very similar Charter. On April 17th, 1982 at a ceremony on the lawn of Parliament Hill in the presence of Queen Elizabeth the Second and thousands of Canadians the Charter of Rights and Freedoms was proclaimed.
The freedoms protected include religion, thought, opinion, belief, expression, press, peaceful assembly, association, the vote and mobility. The Rights protected include life, liberty and security of the person as well as to be secure against unreasonable search or seizure, nor to be detained or imprisoned arbitrarily. Upon arrest to be informed promptly why and to be informed of the right to speak to a lawyer and to be able to do so without delay and to have any arrest judicially reviewed. Upon being charged being advised of the specific offence, to be tried within a reasonable time, not to be compelled to testify against oneself, to be presumed innocent until proven guilty according to law in a fair and public hearing, to a a jury on major charges, the right against double jeopardy and cruel punishment and self incrimination and the right to an interpreter and the right to be treated equally before and under the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
A judicial war developed between the defence bar, who contended that the Charter empowered the courts to protect the fundamental rights of Canadians and the prosecution who asserted that like the Bill of Rights the Charter did not radically change the legal landscape and that the courts must be very careful before they declare a law inoperative simply because it violated one of the rights enumerated in the constitution. The whole legal community was apprehensive as to what approach the courts would adopt.
Although the Supreme Court of Canada, through judicial hierarchy is the most powerful tribunal, some legal scholars believed that the Ontario Court of Appeal was the most influential court in the country. Slowly the cases made their way to the appellate level.
Finally James Harbic successfully pleaded the first Charter constitutional appellate challenge to the Criminal Code. The case was R v Bryant which became a landmark decision where the Ontario Court of Appeal declared that the Charter recognized that Canadians had constitutional rights that the courts would give effect to. The legacy of “Charter” case law that has followed has been applied throughout the world and has earned for Canada an international reputation for human rights and civil liberties jurisprudence Prominent Criminal Lawyer Donald Bayne told the Ottawa Citizen that “Bryant was a very significant charter decision.”
Veteran Civil Rights lawyer Clayton Ruby asserted that “Up until Bryant the Criminal Code has by and large remained untouched by charter.
Stephen Bindman Southam news legal correspondent wrote that “Bryant was a major constitutional ruling and heralded it as a landmark constitutional decision”
The Ontario Lawyer's Weekly agreed referring to “Bryant as one of the most important charter decisions.”
Earl Levy, President of the Criminal Lawyers Association told the Toronto Star that “ the courts are looking at fairness. In pre-charter days courts might have concluded a law was unfair but upheld it anyway on the grounds that the law is the law. Bryant and other charter decisions mean that a court will say just a second where it is unfair and unjust that won't apply any longer.”
Distinguished Appellate counsel Alan Gold described “the emerging importance of the charter as evidenced by Bryant. It's like a new born baby that's coming to life.
“Bryant and other decisions are building the foundations for our rights for years to come” according to Claude Thomson, President of the Canadian Bar Association, “ They're the stepping stones. Under the charter (courts) have very broad powers which I'm happy to see them exercise to construe the charter liberally and fairly to achieve a foundation for guaranteed freedoms for all us.”
Harbic's first book “Profiles in Nobility” identifies the framers of Canadian values of Human Rights and equality. It was published in 1992 and was distributed throughout Canada.
Harbic devoted his life time to helping to develop the principles of Human Rights and Civil Liberties in the courts however he was not a one dimensional person. The love of family, good literature, the music of Brian Wilson, travel and adventure ensured that his legal pleadings were grounded in real life.
In 1998, again inspired by John Diefenbaker, this time his “Vision of the North”, Harbic paddled down
the legendary Yukon River between Bonanza Creek and Fortymile during the Klondike Centennial Gold Rush Celebrations and explored the Dempster Highway which is the only Canadian road to cross the Arctic Circle and was created as part of Diefenbaker's “Road to Resources.program.” Harbic has skied the Olympic mountains of Blackcombe-Whistler, Deep sea fished off of Bermuda, dove the Great Barrier Reef, kissed the Blarney Stone in Cork County, Ireland, wandered the “road to nowhere”in the arctic barren lands of Nunavut , witnessed a trial in London's Old Bailey and brought in the new year in Paris' “Left Bank.” He viewed the Lincoln monument with his son John, the Rock Hall of Fame with his eldest son Robert and the California State Historical Beach Boy's Monument with his wife Claire. He lunched in New York's Central Park and Surfed off of the beaches of Maztlan. He has survived Cyclone Yasi in an evacuation center in Queensland and the ice storm of 1998. Notwithstanding his love of travel Harbic's life appears to have been largely motivated by the Holy Grail of Human Rights and Civil Liberties.
On July 14th, 2000 Harbic won the first acquittals, on a double murder case in the new millennium using the charter protected new disclosure laws to show that the time lines and junk science undermined the case against his client after a lengthy trial in Lanark County.
In 2004 Staff - Sgt Lengacher, on behalf of the Ottawa Police Service, promised “to learn from it's mistakes”after the Superior Court of Ontario, accepted the submissions of Defence Counsel Harbic and ruled that “the method employed by the police to obtain a confession from his client was an oppressive tactic that breached the constitutional rights of a man accused of murder” and was therefore involuntary and inadmissible.
Harbic has been a trial lawyer for over 34 years appearing in courts at all levels throughout Canada. Some of his more prominent cases have attracted national and international media attention. He has represented over 10,000 persons on criminal charges and has appeared in over 100 jury trials as well as 33 homicide cases.
He is a member of The Canadian Civil Liberties Association, Amnesty International, The Ottawa Defence Counsel Association and the Carleton Lawyers Association. Harbic is committed to defending the constitutional rights of his clients . He has never refused a legal aid brief as he believes that all persons are entitled to the best defence possible. Although he has sat on the Board of Governors for the University of Ottawa as well as it's Senate and the Board of Directors of The House of Hope and the
Long Lake Property Association he has never applied to be appointed to any court or tribunal. He has stated that he “believes that defending a person 's constitutional rights including the right to a fair trial is the most rewarding work that a lawyer can be called to do.”
“Human Rights and Civil Liberties are like good health- you never think of them until you do not have them anymore.” A strong and viligent independent defence bar is essential to ensure that these treasured values are not lost” The seasoned lawyer told a gathering of students. “Every word spoken in court, by a lawyer in defence of his clients' rights, protects the fundamental rights of all of us.”

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