NEWSLETTER – October 2006

Reisa Teitelbaum, President
Steven Slimovitch & Allen Mendelsohn, Editor(s)

Message from the President

Reisa Teitelbaum

Dear Colleagues and Honorable Judges:

I trust that you have all enjoyed the holiday period and I wish you all a Shanah Tovah.

Our next program, the Henry Steinberg Memorial lecture, will be on October 16 2006 when we will host Dr. Norbert Westenberger, Vice President of the German Bar Association, on the subject of “The Fate of Jewish Lawyers in Germany after 1933.”

In the early 1930s, fifty percent of the 5,000 Berlin lawyers were Jewish. During October 2006, an exhibition entitled “Lawyers without Rights”/“Avocats sans Droits” will be on display in Montreal. The exhibition is an exceptional exhibit of letters, photographs and documents that focus on the personal experiences of German-Jewish lawyers after Hitler came to power in 1933. All of them lost their profession, most of them lost their country and a large number lost their lives. The exhibit arrives in Canada for the first time, after having appeared in 35 cities in Germany including the premises of the German Parliament, Israel, the United States and Mexico.

The Federal Bar Association of Germany acts as a main sponsor and organizer of the exhibit. Dr. Norbert Westenberger will host the opening of the exhibit in Montreal and has agreed to address us. I encourage all of you to attend this special event.

The Human Rights lecture will be held on December 5 2006. We will honouring Mr. Fo Niemi. Mr. Niemi is the co-founder of the Centre for Research-Action on Race Relations (CRARR), which has played an incomparable role in the promotion of access to equality for minorities in Québec. Mr. Niemi was awarded the Prix de la Justice du Québec by the Attorney General of Quebec for his outstanding commitment to the ideals of justice as well as the 125th Anniversary of Confederation Medal by the Governor General. His CV includes a plethora of achievements.

For all members who have not yet paid their membership fees, please do so as soon as possible. The Society counts on these funds in order to continue its activities.

I look forward to seeing you on October 16, 2006.


Reisa Teitelbaum

Under the Robe: The Honourable Marshall Rothstein Speaks Out

Allen Mendelsohn

Review of the September 12th Alan B. Gold Lecture

The Society was pleased to welcome The Honourable Mr. Justice Marshall Rothstein on the occasion of the Alan B. Gold memorial lecture on September 12th. Justice Rothstein was thoroughly entertaining as he regaled the audience with tales from the Supreme Court and his nomination process.

The introductions were ably handled by Max Teitelbaum. F.C.J. Judge Teitelbaum praised Justice Rothstein and highlighted his career, calling him one of the best appointments the S.C.C. ever made. He cited Justice Rothstein’s expertise in intellectual property and his ability to deliver brief and succinct judgments.

Justice Rothstein took to the podium and looked to establish his Montreal connections by playing a little Jewish geography, thanks to his Montreal-born wife Sheila. Also, he highlighted his connection to Alan B. Gold in a brilliantly witty story which included reference to the “doctor who refused my mother’s request to have me aborted!”

He then turned to the Supreme Court and instead of a dry, academic lecture, delivered stories about nudity, including hilarious tales about the judges’ robes, highlighted by the use of the now infamous phrase “wardrobe malfunction.”

Finally Justice Rothstein turned to the crux of his speech, which was about the appointment of Supreme Court Justices and his experience. He described the ins and outs of the process, including the arduous preparation for the parliamentary hearing, and the lessons he took from the U.S. versions of the hearings. He found the hearing very civil in tone, with difficult but fair questions.

Justice Rothstein felt that the hearing process, while controversial, was open and fair. He felt the positives outweighed the negatives. He truly hoped the civility would continue in the future and that we would not be reduced the U.S. Senate-style hearings because Canadians don’t want that. He concluded by saying what an honour it had been to be at the Lord Reading that night.

Justice Rothstein shone through the question period as well, continuing with humour and honesty about the Court. He was thanked by Justice Perry Meyer, who stated that “our government had wisdom and good taste in making this choice (of Justice Rothstein on the S.C.C.).” All those in attendance that night would undoubtedly agree.

Upcoming Events

October 16, 2006 – Annual Hon. Henry Steinberg Memorial Lecture
Guest: Dr. Norbert Westenberger
Topic: The Fate of Jewish Lawyers in Germany after 1933

In the early 1930s, 50% of the 5,000 Berlin lawyers were Jewish. During October 2006, an exhibition entitled “Lawyers without Rights” will be on display in Montreal at the Université de Québec.  The exhibition is centered on the glorious phase of Jewish jurists in Germany and documents their collapse and extermination in the Holocaust.  Many perished but some escaped, including some who immigrated to Canada.  Dr. Norbert Westenberger, vice president of the German Bar Association is hosting the opening of the exhibit in Montreal. The Society is pleased to welcome Dr. Westerberger in conjunction with this event.

December 5, 2006 – Annual Human Rights Lecture
Honouree: Mr. Fo Niemi, co-founder of the Centre for Research-Action on Race Relations (CRARR)

Society Humour

Sex and the Ordinary Prudent Person

Doe v. Moe, a May 2005 Massachusetts appellate case, gives a whole new meaning to the idea of safe sex. A guy sued his long-time girlfriend (ex-girlfriend?) for negligence when an ill-advised change in position during consensual intercourse resulted in him suffering a fractured penis. (You’ll have to go read the opinion to get the details about how the accident occurred.)

In a case of first impression, the court struggled to arrive at an appropriate and workable standard of care to apply to private consensual sexual conduct. The court noted:
There are no comprehensive legal rules to regulate consensual sexual behavior, and there are not commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior.

Accordingly, the court concluded that the general negligence standard of reasonable care under the circumstances was inappropriate for consensual sex-physical injury cases. Instead, the court said the plaintiff needed to show conduct rising to the level of “wanton or reckless.” The court opined that while the trial record might support a finding that the defendant’s conduct exposed plaintiff to a risk of harm, it did not support a finding of wanton or reckless conduct.

Doe v. Moe, 827 N.E.2d 240 (Mass. Ct. App. 2005)



Congratulations to Andrew Brighten, recipient of the Lord Reading Law Society Prize for the 2005-2006 academic year at the McGill faculty of law.


Condolences to the Stein family, on the death of Samuel Stein.