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Thursday December 9, 2010

Litigator worked to improve the image of the legal profession

His principled stand on social issues helped earn him The World Lawyer award

Special to The Globe and Mail

Claude Thomson worried that the legal profession was becoming tarnished. Courts were slow, expensive and inefficient, he lamented, and true justice often eluded victims of violent crime and calamity. Legal Aid was a mess. Word games by counsel cross-examining less educated witnesses often didn't work and generated sympathy for the other side.

He challenged members of the bar to take positive steps to help the public understand the complexity of legal issues and, referencing the movie Jurassic Park, "not just cheer when the dinosaur eats the lawyer."

A former president of the Canadian Bar Association and the International Bar Association, Thomson, who died in Toronto on Nov. 24 of cancer at the age of 77, knew the value of PR. In the mid-1980s, he represented nurse Phyllis Trayner before the Grange Royal Commission into mysterious baby deaths at Toronto's Hospital for Sick Children, and he veered sharply from his customary deferential demeanour.

Upset that Trayner's testimony was being televised via closed circuit across the country (and repeated over and over), he lashed out. "You have no right," Thomson scolded Mr. Justice Samuel Grange, "to put her on trial before the public."

He went on the offensive, appearing on CBC Radio's Cross Country Checkup for two hours to work up some "public sympathy" for his client and urge listeners to keep an open mind. "Whether I was successful," Thomson said after the program, "is anybody's guess." Perhaps, but Trayner was not charged with a crime.

Remembered as an intense, formidable courtroom tactician, Thomson had his share of high-profile cases. He prosecuted Canada's largest newspaper chains, Southam Inc. and Thomson Newspaper Inc., charged with conspiracy to squelch competition after the simultaneous closings of the Ottawa Journal and the Winnipeg Tribune. It was probably the biggest case he lost.

"I presented every piece of evidence I could," he recalled in a 1984 interview. "I asked every tough question I could think of. The judge believed the defence. That's what our system of justice is about and I have no complaints."

He represented Texaco Canada before the federal Restrictive Trade Practices Commission on another matter alleging anti-competitive behaviour. Despite several years of hearings, Texaco was never prosecuted.

He also acted for the Mounties before the McDonald Commission's inquiry in the late 1970s into RCMP wrongdoing.

"Claude was a first-rate litigator. Beyond serving his clients, he also cared deeply about the legal profession and served it well," said Walter Palmer, managing partner at Fasken Martineau, the firm where Thomson ended his career. "What made Claude special was his integrity. He always looked for the best in everyone he dealt with and treated everyone with respect."

Claude Renwick Thomson was born in Toronto on Sept. 30, 1933. His father, William, was a civil engineer who worked for the department of highways and was later transferred to Ottawa. His mother, Cecile Morency, was a French Canadian who did not speak French to her son in public out of concern it would hold him back.

Claude graduated from St. Patrick's College in Ottawa, where he won the Canadian University Debating Championship and a gold ring presented by then Ottawa mayor Charlotte Whitton. The topic was: "Resolved: Red China should be admitted to the United Nations." Thomson's daughter Marguerite leafed through one of several thick scrapbooks of mementoes and clippings to discover that her father spoke in favour of the motion. "But he could have argued the other side just as persuasively," she noted.

From the day he entered Osgoode Hall Law School in Toronto, he knew he wanted to be a courtroom lawyer. "I wanted to participate in the rough-and-tumble of the court system," he said upon his election as head of the Canadian Bar Association in 1984. "In the beginning it was the fight itself - the thrust, the parry, the intellectual exercise.

"As time went on, I matured and realized the courts are an important place of last resort for serious human problems. You can do something good for people."

After articling with Malcolm Robb, a renowned and aggressive lawyer, Thomson began by taking on criminal cases. The most notable of those was in 1963 when he was asked to defend an American engineer charged with murder at a U.S. missile base on Ascension Island, a south Atlantic protectorate of the British colony of St. Helena.

There were several problems: Ascension Island had no police force, no jail, no prosecutors, not even a courthouse. St. Helena, the island where Napoleon died, was 1,000 miles away. Eventually, British officials sent in the chief justice of Uganda to hear the case. The accused was acquitted of murder but found guilty of manslaughter. Sentenced to 12 years, he was sent to jail in England.

Thomson was probably the only Canadian member of the bar of St. Helena, and a certificate from the island was prominent on his office wall.

In 1993-94, he travelled the world as head of the International Bar Association. He was only the second Canadian to hold that post.

At a meeting in Tunis of the Union of Arab Lawyers, he ended up at a dinner hosted by PLO leader Yasser Arafat. This was before the peace agreement with Israel. According to a report at the time, Thomson wasn't sure whether to accept the invitation. He also didn't want to offend his Arab hosts. He attended after consultations with IBA officials. What he didn't know at the time was that Arafat was already in secret negotiations with Israel.

An important result of the trip was that a jailed Tunisian human rights lawyer was released after his visit because of pressures from the IBA and the head of the Tunis bar.

As head of the 30,000-member Canadian Bar Association in 1984-85, Thomson vowed he would be "militant" in pressing governments to repeal the controversial notwithstanding clause in the Canadian Charter of Rights and Freedoms. That didn't happen, but in his other priorities - modernizing courtrooms with computers, opposing restrictions on the number of new lawyers, and encouraging young lawyers to specialize - he was more successful.

Always, there was the profession's image.

Following a 1985 survey of lawyers' salaries, Thomson told members of the Canadian bar that too often "it seems we are viewed as being more interested in our incomes than in our clients' welfare. Too often, we are seen as a self-interested elite, unconcerned with the larger social issues that exist beyond our office doors. Unfortunately, some of those perceptions are true."

At the same time, he noted that thousands of lawyers are committed not only to providing their clients with the best counsel possible, but to working for law reform and social justice.

A singular honour came in 1985 when he became the first Canadian lawyer to win the World Lawyer Award, bestowed by the World Peace Through Law Centre. In his acceptance speech in Berlin, he called on lawyers to oppose nuclear arms. "Such weapons are illegal because they have the potential to destroy us all," he said.

He ended his career as an internationally respected arbitrator and mediator. He was working from his hospital bed just days before his death.

An even-tempered family man and devout Catholic, he loved fly-fishing and tied his own flies. His biggest catch was a 39-pound salmon caught off the Queen Charlotte Islands while fishing with Bryan Williams, then the Chief Justice of the Supreme Court of B.C., who urged him to let go of the line. Thomson held on and the battle took an hour.

A formal, by-the-book man, he believed the practise of law was to be taken seriously, but during a trial in 1990, he could not resist a bit of fun. The Pizza Pizza chain was alleging that its former president breached a non-competition clause and used confidential information to set up some restaurants called Chicken Chicken. Acting for the former executive, Thomson argued that the pizza company's plan for its own chicken venture never went beyond the idea stage, and he summoned the decidedly unappetizing line: "We know how ripe the Chicken Chicken idea was at Pizza Pizza. It was very raw and very green and very hard."

He leaves Rosemary, his wife of 52 years, five children and 11 grandchildren.

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