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James Harbic "Defender of Rights & Liberties"

James Harbic "Defender of Rights & Liberties"

By Les McLaughlin former CBC Radio Broadcaster and journalist (Updated by Jason Webster-Clarke, 15/12/2013)

In 1990 prominent Ottawa lawyer James Harbic was invited to address a Law Symposium at the University of Ottawa. Among those who attended was the then Chief Justice of Canada Antonio Lamer, who would play a pivotal role in breathing life into the new Charter of Right and Freedoms.


He told the gathered jurists that "….the most important achievement of humanity was the development of the ideals of human rights, civil liberties, and the principle of equality". [1]


James' passion for defending our rights evolved naturally. He was born only 17 months after Canadian lawyer John Peters Humphrey helped draft the "United Nations Universal Declaration of Human Rights". Harbic was raised during the cold war era when government prosecutorial excesses, such as the American McCarthy Inquiries destroyed many innocent lives. Harbic was inspired by the struggles of the Civil Rights movement in the United States.


His father was a university chemistry professor while his mother stayed home and raised James and his sister Patricia as well as his two younger brothers Robert and Peter. James early formal education was uneventful. He attended Ridgmont High School in Alta Vista, a suburb in Ottawa where he played defensive end on the varsity football team and was a member of the School Debating Society. [2]


Perhaps a defining moment happened when James was disciplined for coming to the defence of a fellow student who was being humiliated for a deformity. Three years later upon his graduation, his English teacher paraphrased Paul Simon and wrote in the school year book: "In the clearing stands a boxer ....and his name is James Harbic". [3]


From a young age, he enjoyed reading about Hyperides, Demosthenes, Cicero, Saint Ivo Helory of Kermartin, Sir Thomas More, Daniel Webster, Abraham Lincoln, Clarence Darrow and Gandhi. As a student James followed with sympathy Mandela's fights against apartheid in South Africa. His interest in human rights and civil liberties continued throughout the sixties. As the Ottawa Correspondent for the Whitehorse Daily Star, he interviewed John Diefenbaker whose government enacted the first Canadian Bill of Rights. [4]


As the youngest member ever of the Parliamentary Press Gallery, he witnessed the brilliant speech of Arthur Maloney in the House of Commons advocating the abolition of the death penalty. He also covered the convention that elected Pierre Trudeau as leader of the federal liberals whose government would initiate the legislation that finally abolished the death penalty in Canada and amended the Canadian Constitution to include a Charter of Rights and Freedoms. [5]


As a university student activist James was instrumental in establishing Leblanc Hall Student Day Care Center which was the first facility that enabled mothers to continue their studies while their children were properly cared for. [6]


While attending the University of Ottawa, he experienced the suspension of civil liberties first hand. Soldiers arrested suspects at the bilingual campus pursuant to the declaration of the War Measure's Act which was the government's response to the FLQ Crisis. This tyrannical action motivated him along with 21 fellow students, to campaign for equal educational rights for Ontario francophones at "The New Wave" Tory Convention in 1971 which elected William Davis. [7]


It was a very nervous James Harbic, who addressed the thousands of delegates in Maple Leaf Gardens and millions of Canadians on National TV. Earlier that day his life, and those of his fellow volunteer students had been threatened. The reports by a Toronto radio station suggested the threats were made by anti-french bigots. The threats were taken seriously as four O.P.P. Officers were assigned to protect them. The theme of his speech was the importance of respecting the educational rights of francophones so that they would have the same opportunities as Anglophones enjoy in Quebec. [8]


The delegates responded with a standing ovation. More importantly, he was approached by the new leader William Davis, who assured him: "that you are right ..... some day francophones will share equal educational rights in this province" In 1984, shortly before he retired as Premier of Ontario, Mr. Davis "startled" the province by initiating legislation that finally provided equal educational rights for francophones. [9]


James studied at the Universities of Ottawa, Saskatchewan, and Dalhousie. He obtained a Bachelor of Arts in 1972 a Juris Doctor in 1976 and a Barrister at Law Degree in 1978. His academic honours include being named to the "Dean's Honours' List" and graduating "Cum Laude". He was called to the Bar of Ontario on April 19th, 1978, and subsequently was certified by the Law Society as a specialist in criminal law. Although there are thousands of lawyers in Ottawa and Eastern Ontario, James Harbic is one of only 17 who are certified as "Specialists in Criminal Law by the Law Society of Upper Canada."


Upon completion of his formal education James traveled extensively across North America as well as to Europe. The "United Nations Year of the Child" was in 1979. In recognition of this initiative the Official Guardian of Ontario established a program to provide children who were involved in litigation with legal counsel to protect their rights. One of the first lawyers appointed to the child representation panel was James Harbic.


In 1981 James showed his determination where he ran in the National Capital Marathon in a respectful official time of 3 hours fifty-eight minutes and fifty-six seconds. He was married to Claire in 1982 and fathered two sons, Robert who has joined him in the practice of law and John, who after graduating from Trent University, obtained employment and continues to be employed in film production.


He has been a sessional lecturer on substantive criminal law, evidence, advocacy, ethics and criminal procedures at the Faculty of Law University of Ottawa, Carleton University, Algonquin College as well as lecturing to police cadets and to candidates to the Ontario Bar Program. He has also sat on continuing education panels dealing with Human Rights and Civil Liberties issues.


The Charter of Rights and Freedoms became part of the Constitution on April 17th, 1982. The following year James successfully pleaded one of the first "Charter" based constitutional Appellate challenges to federal legislation.


The case became a landmark decision in which the Ontario Court of Appeal declared that the "Charter" recognized that Canadians had constitutional rights that the courts would give effect to. [10] 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. [11]


James' judicial demeanor of a humane but skillful trial lawyer has brought him considerable success, especially with jurors. In 1987 an Ottawa court room broke out in cheers when a 12 person jury returned a not guilty verdict in a brutal rape case where Harbic's cross examination revealed that the complainant had lied to deflect the anger of her husband. [12]


In 1989 James represented a politician who was charged with defrauding the Federal PIP (Petroleum Incentive Program), a case that was featured on CBC-TV "Fifth Estate" and involved millions of dollars being spent on drilling for oil on Cape Breton Island, Nova Scotia. [13]


The seasoned lawyer ensured the freedom of an aboriginal woman who was charged with attempted murder for stabbing her abusive husband with a knife. He carefully presented evidence that underlined a history of physical and emotional abuse, abject poverty parental neglect as well as alcoholism. In imposing a non-custodial sentence, Mr. Justice James Fontana of the Ontario Court accepted James Harbic's argument that the hardships that our first nation people experience must be acknowledged by the Courts. This decision predated both the battered women syndrome defence as well as the Gladue principles of providing sensitivity to cases involving aboriginal Canadians. [14]


By effectively cross examining a manipulative ex-wife Harbic was able to convince the court that his client was not guilty of sexually assaulting his daughter. [15]


In 1990 James successfully used the "Marijuana is for the Iguana defence." When the police found a basement in Renfrew County full of home grown cannabis, his client told them that the dry leafy substance was not for the purposes of trafficking to other humans but for her pet iguana to eat. The officer dutifully recorded her statement and charged her with possession for the purposes. At a pre-trial Harbic was able to convince the Crown and the Court that there was a reasonable doubt as to what the purpose of the "prohibited substance" was for and his client plead to a far less serious charge of simple possession. Instead of going to jail his client was fined. The case received international attention and was featured on the NBC-TV "Current Affairs" and the "National Examiner". [16]


James 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 [17], and described as a "noteworthy idea" by critics.


Harbic, in 1989, skillfully used police officer's notes to contradict a deceptive complainant in cross-examination and in so doing secured an acquittal for a man charged with a brutal attempted murder. [18]


In 1991 James successfully defended a police officer who was acquitted of obstruction of justice. Harbic was able to convince Mr. Justice Hugh Poulin of the Ontario Court (General Division) that the police officer lacked the necessary criminal intent. [19]


In 1994, during a break in a conference at the University of British Columbia on the Canadian Charter of Rights and Freedoms, James skied Blackcomb and Whistler mountains which in 2010 hosted the world Olympics. In 1998, during the Centennial of The Klondike Gold Rush, he paddled down the Yukon River between Bonanza Creek and Forty Mile with his eldest son Robert.


The following year James traveled to Washington DC with his youngest son, John, and visited the Supreme Court of the United States, as well as the Abraham Lincoln Memorial, built in Honour of the “Great Emancipator”.


On July 14th, 2000, James won the first acquittal on a double murder case in the new millennium, when his client was found not guilty after a seven month long trial in Perth, Ontario. [20]


In 2004, Staff-Sgt. Lengacher, on behalf of the Ottawa Police Force, promised "to learn from its mistakes" after The Superior Court of Ontario, accepted the submissions of Defence Counsel James 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.” [21]

In 2005, after having obtained an acquittal for an indigent client on a very serious homicide arising from a stabbing death in Vanier, his client sent him a thank you note that read in part "….there is justice after all for rich and poor! Thank you so much for doing what you do, and being there when I needed you!" [22]


In 2006, James and his family traveled to his ancestral home where he acquired "the gift of eloquence" while he kissed the legendary Blarney Stone, and visited the modest but moving roadside monument to the "Irish Liberator" Michael Collins in rural Cork County.


In 2007, the Ontario Court of Appeal was persuaded by his advocacy to confirm the trial judge's stay of drug charges against his client because of a police illegal search of his client's vehicle violating his charter rights. [23]


James Harbic is respected by the bench. Many judges have praised him on the record for his excellent advocacy skills, unquestionable integrity and hard work on behalf of his clients. Examples of this include a judge of the Provincial Court (Criminal Division) who described James as "a very talented lawyer….a most honest man, a man of integrity". [24]


A judge of the Ontario Court of Justice also on the record referred to James as a "Knight in shining armour" who has done "his usual fantastic job on behalf of his client". [25]


On another occasion James was "commended" by a judge of the Provincial Court for his "approach" in one of the first Charter Applications brought in a Canadian Court. This was before the criminal rules of practice have been put in effected to accommodate Charter Applications. [26]


In 2008, a Senior Superior Court Judge on the record praised James for his "usual high standards" in having serious sexual assault charges withdrawn against his client thus avoiding a lengthy trial. [27]


In February 2010, while diving the Great Barrier Reef off of Queensland, Harbic was ordered to seek refuge in Cairns due to Cyclone Yasi the worst storm in Australian history. "Such is life" Harbic told ABC-TV during the height of the storm [ just as Ned Kelly, the infamous Australian bandit, said, immediately prior to being hanged for something he actually did not do, unlike the many he got away with] - unlike Mr. Kelly - Harbic survived his ordeal.


Also in 2010, after obtaining an acquittal for a man charged with importing child pornography, Harbic told the Ottawa Citizen, "you know the justice system works when an accused is condemned like my client and after a fair trial is acquitted." [28]


In 2011, James successfully defended an elderly immigrant charged with sexual assault, who had been maligned by the police 911 operator. After he was acquitted the Ottawa Police Service undertook to reform their 911 protocol so that all persons would be treated equally. [29]


In 2012 he also defended an Anglophone client, who was the chief executive officer of a large national corporation, and was charged with corruption in Quebec. The client not only received a fair trial but was acquitted of all charges by a Quebec jury. [30]


In 2012, James Harbic was able to use the Charter to have a client's sentence reduced from two years less a day to six months imprisonment in Iqaluit, Nunavut . While on Baffin Island, he had the opportunity to view the splendor of the northern lights and to hike down "the road to nowhere". [31]


An important component of human rights is the principle of equality before the law. He had always believed that all persons are entitled to a vigorous defence. Unlike many experienced lawyers he continues to represent individuals of modest means.


In 2013, he delivered on his promise to a distinguished same sex married physician that she could receive a fair trial in Ontario. The doctor was found not guilty of failing to provide the necessities of life, in a trial that rocked the city of Cornwall with allegations of prejudice. [32]


That same year, James Harbic won an acquittal for an indigent Canadian Youth of Arab descent on a very serious charge of Human Trafficking. The youth's family thought their son could not receive a fair trial because they were of a minority ethnicity and could not fund an expensive defence. James Harbic provided a strong and successful defence on a legal aid certificate. [33]


He has defended people accused of the most heinous crimes explaining that the more serious the charges does not minimize the necessity for a strong defence to ensure everyone is provided with a fair trial. His defence of freedom of speech is well documented including in Warren Kinsella's best-selling book "Web of Hate". [34]


In 1994, a political refugee was charged with "attacking an internationally protected person" when he was observed on a CSIS videotape alighting from the Iranian Embassy on Metcalfe Street in downtown Ottawa with a box of documents. The complainant, who identified the accused on the tape claimed he was "kicked in the face" and that his assailant was wearing black boots. By having the videotape enhanced the accused's trial lawyer James Harbic was able to show that his client was wearing white running shoes. This resulted in the client being acquitted of the charge. More importantly the client was not deported back to Iran where he faced certain execution. [35] James is of the view that all persons are entitled to the presumption of innocence no matter what the charges are.


In another case, Harbic's client who was a member of a minority community was charged with sexual assault. His client was fearful that if convicted he would be deported to Guatemala. The complainant denied that she had an on-going relationship with the accused. In cross examining the complainant the lawyer asked her if she ever hugged the accused. The complainant denied it. Harbic showed a picture of her with her arms around the accused in an embrace. The complainant told the court that was just a friendly hug. She then denied kissing the accused. When she was shown a photograph of kissing the accused on the lips she attempted to dismiss it as just a casual greeting "between friends". She also denied ever sleeping with the accused. The relentless Harbic showed her a picture of her in the accused's bed. At which point the witness finally crumpled. The experienced trial judge Peter Wright acquitted the accused. [36]


In 1997, respected Ottawa real estate lawyer, Gary Warren, referred to Harbic Law to an elderly gentleman accused of sexually assaulting a 7 year old child. The optics were not good. The child was an innocent sweet little girl. The accused a war veteran looked very tired and older than his 77 years.


At trial, Harbic Law used experts to establish that their client had absolutely no pedophilic tendencies; that a person would not likely suddenly develop pedophilic interest after a lengthy life of showing, absolutely no interest in such deviant behaviour unless he suffered from a severe psychosomatic illness which the accused did not.


Harbic Law's private investigator was able to ascertain that:

a. the complainant's single mother would leave her every weekend with her elderly grandparents, who lived in a triplex a few doors down the street from the accused's bungalow.

b. that the complainant's grandfather's bedroom was on the third floor of his residence and that he suffered from Alzheimer.


The defence gently cross-examined the 7-year-old’s complainant, who told the court that she missed her mom on the weekends. That her mom told her that she loved her grandparents. More importantly the complainant testified that immediately prior to being molested she went up a series of stairs.


Finally the defence confronted the police investigators with photographs showing that the accused had no stairs anywhere in his home. After Superior Court Judge Dan Chilcott acquitted the elderly accused, he hugged his wife and walked out of court, his nightmare over. [37]


In 1979, Harbic Law represented a black man on bizarre multiple sexual assault charges. The defence applied to the court for permission to vet jurors on their possible racial prejudices. Although the trial judge denied the application on the basis that it was of the view that there was no evidence to conclude that there was any racial bias in the National Capital Region. Years later, after the Charter of Rights and Freedoms became the Supreme Law of Canada, the Ontario Court of Appeal ruled that racial prejudice was very much part of modern Canadian reality and that such applications as anticipated by Harbic were mandatory when accused were members of visible minorities. [38]


At one point, Harbic Law represented an individual with very serious mental and emotional disabilities who was charged with aggravated sexual assault charges. Harbic realized that due to his client’s serious limitations he would not be able to have him as a witness at his own trial. By carefully cross-examining the complainant and establishing a reasonable doubt in the mind of a very able Superior Court Judge, who acquitted his client. [39]


Harbic has been a trial lawyer for over 36 years appearing in courts at all levels, throughout Canada. Some of his more significant cases have attracted both national and international attention. He has represented over 10, 538 persons on criminal charges including in excess of 103 jury trials as well as 33 homicide cases.


James Harbic is committed to defending the constitutional rights of his clients. He has never refused a legal aid brief because he believes "all persons are entitled to the best defence possible". He is a member of Amnesty International, the Ottawa Defence Counsel Association, the Canadian Civil Liberties Association as well as the Carleton Law Association. James has never applied to be appointed to any court, board or tribunal. 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 upon to do".


At the conclusion of his 1990 address to the University of Ottawa Law School symposium Harbic stated that "Defence Counsel are like soldiers in the trenches of the struggle for human rights and civil liberties. Every word they say in defence of their clients are in effect said in defence of the rights and liberties of everyone". [40]

Download the news article “Atticus Flinch” (PDF).

Footnotes

[1] Harbic, J., "Human Rights and the Role of Lawyers", Law Symposium University of Ottawa 1990

[2] "Political Writer at 15" by John McLean Canadian Press, 1965

[3] "The Acropolis" Ridgmont Secondary School Year Book 1970, Editor Deborah McLarthy

[4] "Youngest - Ever Press Gallery member" by Les McLaughlin "Scrum" Parliamentary Press Newsletter April 1996

[5] "Ex Teen Stringer has fond memories" by Les McLaughlin "Whitehorse Star", 1/3/96

[6] "War Measures Act" by Joann Carmichael ,University of Ottawa Fulcrum, October 1971

[7] "Viva Pharand University of Ottawa Fulcrum" by Bill Webb, 15/2/71, and see: "No Surrender" by Hugh Segal, Harper Collins, Publishing Ltd. (1996) at p. 16

[8] "Pharand wise not sad loser" by John Waugh, Toronto Telegram, 13/2/71

[9] "Education in Ontario" Canadian Encyclopedia Ed. James Marsh, McLelland & Stewart at p. 1717 (2000)

[10] "Deemed jury waiver offends Charter Appeal Court Rules" Ontario Lawyers Weekly, 07/12/84

[11] "Charter Coming to Life" by Rick Hallechuck, Toronto Star, 23/12/84

[12] "Friends cheer as jury clears man of rape" by Abbey Deveny, Ottawa Citizen 28/3/87

[13] "Kamloops Man Guilty in $1..3 Fraud" by Elizabeth Payne, Ottawa Citizen, 12/10/89

[14] "Tale of Inuk who stabbed mate melts coldheart of Justice" by Mike Blanchfield, Ottawa Citizen, 19/2/91

[15] "Wife made up sexual assault claims" by Bob Marleau, Ottawa Citizen, 5/6/90;

"Father acquitted of sexual assault" by Bob Marleau, Ottawa Citizen, 7/6/90

[16] "Pot Luck" by Glen Troeistrip, National Examiner, 19/7/90

[17] "Profiles in Nobility" by James Harbic, Kendall Publishing (1992) and also see "Pride in Heritage" Canadian Profiles a worthy idea" by Iris Winston, Ottawa Citizen, 02/02/92

[18] "Prostitutes evidence not trust worthy: lawyer" by Charles Kerr, Ottawa Citizen, 25/1/89;

"Prostitute contradicted by notes" by Tondra MacCharles, Ottawa Citizen, 25/1/89

[19] R v G.P. & C.M. (1992), O.J. No. 3550 ON CA, "2 city police man accused of obstructing Justice" by Charles Russell, Ottawa Citizen, 4/5/90; "Military officer found not guilty" by Charles Russell, Ottawa Citizen, 25/3/91



[20] "Man Acquitted in Firebomb" deaths by Kelly Egan, Ottawa Citizen, 02/12/00

"Shadow of Doubt" by Lisa Lisle, Ottawa Sun, 02/12/00; R v M.C.

(2002), 97-1025, Rutherford, S.C.J.

[21] "Superior Court Judge Condemns Oppressive Police Tactic" by Jake Rupert, Ottawa Citizen, 19/06/04 as well as R v B.J. (2004), WL 1853662 Cont. S.C.J.

[22] "Not Guilty in Fatal Stabbing" by Laura Czekaj, Ottawa Sun, 21/4/02 as well as "Two Acquitted in Screw Driver Stabbing Death" by Jake Rupert, Ottawa Citizen, 21/4/07, and R v J.W.B. & J.R.P. (2007), O.J. No. 1520 Hackland SCJ.

[23] R v J.A. & I.F. et Al (2009), ON CA 28

[24] R v C.B. Provincial Court (Criminal Division) 30/1/90 at page 9

[25] R v M.R. OCJ 16/9/93, 93-13517, 93-2138 at page 1

[26] R v R.B.S. (1982),O.J. No. 687 at page 1 Provincial Court (Criminal Division)

[27] R v J.M.S. (2008), ON SC 07-15454 at p. 3

[28] "Not Guilty of Possessing, Importing Child Porn" by Andrew Seymour, Ottawa Citizen, 24/12/08

[29] "Elderly Man who Fled the Nazis" by Rachel Quigley, London Daily Mail, 15/05/12 as well as " Beaten Ottawa Senior Jailed After Calling 911" by Kangon Wallace, Toronto Star, 15/05/12, and "Police Review 911 Call" by Tom Spears, Ottawa Sun, 15/05/12

[30]"R.S. Pas Coupable", LeDroit , 20/12/12

[31] R v S.S. (2012) 08/10/97 Nunavut Court of Justice, Cooper N.C.J.

[32] "Doctor Acquitted in Necessaries of Life" by Paul Cherry, Montrel Gazette, R v S.D. (2013), ON CJ, McPhee J.

[33] "Teen boy acquitted of human trafficking" by Chloe Fedio, Ottawa Citizen, 6/9/13, R v A.A. (2013), ON CJ Alder J.

[34] Web of Hate by Warren Kinsella, Harper Collins Publishers Ltd., Toronto 1999 at pages 260-271

[35] R v G.H. 20/5/94 Mercier J.

[36] R v F.R. ONCJ, Wright J. 3/2/99

[37] R v L.T. (1998), ON SC Chilcott J.

[38] "Psychic Healer" by Denis Foley, Ottawa Citizen, 15/10/79; "Psychic M.D." by Bob Avery, Ottawa Journal, 15/10/79

"Psychic case reported in National Lampoon" by Geoff Johnson, Ottawa Citizen, 19/07/80

[39] R v E.L. (2007), ON SC, Sheffield J.

[40] Harbic ., op.cit., 1990

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