Law Times

Jan 7, 2013

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LAW PRACTICE PROGRAM SCC APPEAL? Lawyer muses about Rob Ford's chances Follow LAW TIMES on $4.00 • Vol. 24, No. 1 P4 Prof recalls experience during 1949 crisis FOCUS ON P7 L aw TIMes Insurance Law CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M ntitled-4 1 P9 January 7, 2013 12-03-20 10:44 AM Judge decries 'horse and buggy' justice system Report finds sentencing recommendations don't make it to jails BY JULIUS MELNITZER For Law Times O ntario is functioning with "horse and buggy" technology to keep track of its incarcerated offenders, says an Ontario Superior Court judge. The problem is so great that agreed statements of fact, presentence, psychological, and psychiatric reports, and even victim impact statements are "not making it" to provincial institutions and are "hit and miss" in making it to penitentiaries despite legislation that mandates their transmission. These are some of the "startling" conclusions reached by Justice Arthur Gans in a recently released paper that points to gaps in the information that correctional authorities receive from the courts and when it comes to what underinformed judges intend when they impose jail terms versus what happens in prison. Despite protests to the contrary by some court services personnel, "we in Ontario are presently functioning with 'horse and buggy' technology in respect of provincialfederal document retrieval and transmittal," wrote Gans. Lawyers found the report troubling. "Justice Gans' report uncovers troubling aspects of the manner in which sentencing recommendations are processed and acted upon by correctional authorities," says Andras Schreck, a lawyer at Toronto's Schreck Presser LLP who serves as vice president of the Criminal Lawyers' Association. "He has documented what a lot of us practising criminal law hear anecdotally on a regular basis." Indeed, Gans' paper focuses "on the disconnect and communication problems" between the judicial and corrections systems. They include issues, Gans admitted, "in respect of which I had preconceived (and erroneous) notions, or no sense or understanding at all." Ontario is functioning with 'horse and buggy' technology to keep track of its incarcerated offenders, says Justice Arthur Gans. There's no evidence, however, that Gans' recommendations have made any impression on governments. He originally prepared the paper for the Canadian Judicial Council in March 2011. Sources say it made its way into the hands of the Crown law office before the council authorized its release to the Criminal' Lawyers Association last year. Anecdotal evidence suggests defence counsel have since been using the Photo: Shutterstock/Philip Lange recommendations in support of sentencing submissions. At the outset, Gans quickly discovered that judges could only make institutional and programming recommendations and couldn't mandate where an offender should go, not even to receive treatment programs that "I thought existed or might exist in any particular institution." See Little, page 4 Lawyers divided on conflict of interest act For Law Times T 'There have to be sanctions that are meaningful,' says Peter Jervis. he Municipal Conflict of Interest Act and its penalty provisions have faced unusually widespread commentary in the media and the legal community in Ontario as a result of the decision in the Rob Ford case. The analysis will undoubtedly continue as the Divisional Court hears an appeal on Jan. 7 and considers whether to uphold the decision of Superior Court Justice Charles Hackland to declare the mayor's seat vacant because of his breaches of the act. Yet while this may be a particularly high-profile application of the provisions, there's nothing unique about the penalty of removing someone from office in the Ontario statute. The law has been in place since the early 1970s. The wording and the sanction for violating the Municipal Conflict of Interest Act are virtually identical in most Canadian provinces. In Alberta, for example, a councillor found to have breached its conflict of interest provisions is disqualified immediately and can't stay in office as the appeal process continues. The Vancouver charter, which outlines the powers of that municipality, doesn't allow anyone found to be in a conflict of interest to run until the next municipal election. Hackland clarified his Nov. 26 ruling a few days later to say that if his appeal is unsuccessful, Ford can run in a byelection for mayor if Toronto city council calls one. Ford's supporters have characterized the sanction of removing politicians from office as disproportionate. But in written arguments filed in advance of the Divisional Court hearing, Ford's lawyers, Alan Lenczner and Andrew Parley of Lenczner Slaght Royce Smith Griffin LLP, aren't challenging the validity of the penalty provisions of the act. Instead, they suggest Hackland adopted the "wrong approach" with an overly strict application of the act. Other lawyers in this area say there are strong public-policy PM #40762529 BY SHANNON KARI See Weakening, page 4 A DAILY BLOG OF CANADIAN LEGAL NEWS [ WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS ] LegalFeeds-BB-LT-Apr23-12.indd 1 POWERED BY CANADIAN LAWYER & LAW TIMES 12-11-23 9:59 AM

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