Law Times

June 24, 2013

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MEDICAL LAWSUITS APPEAL VICTORY Ruling finds discrimination at Peel court Follow LAW TIMES on $4.00 • Vol. 24, No. 22 P5 Time to consider no-fault compensation FOCUS ON P7 Municipal & Planning Law L aw TIMes 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 P8 June 24, 2013 12-03-20 10:44 A Review board chairs decry NCR bill Accused likely to abandon defence, critics charge BY YAMRI TADDESE Law Times C riminal Code review board chairs across Canada are decrying a federal bill that puts new restrictions on offenders found not criminally responsible. Review board chairs from Manitoba, British Columbia, and Prince Edward Island tell Law Times the government didn't consult them in the drafting of the not criminally responsible amendment even though the bill will directly affect the way they do their jobs. The head of the Ontario Review Board has already denounced the bill, which passed third reading in the House of Commons last week and now moves to the Senate. The chairs unanimously called the amendment, which proposes a designation for high-risk offenders, a reactionary bill footed on no evidence to suggest it will work. If the bill passes, those who fall into the high-risk category will remain in detention for three years without a review board hearing to decide whether their condition has improved and if they're ready for reintegration into society. But review board chairs say the bill's goal of making public safety a paramount consideration is already a key factor in their decision-making process. Bill C-54 insinuates that review boards are on the opposite side of victims of crimes committed by those with mental illnesses, says Bernd Walter, chairman of the British Columbia Review Board. "The way the whole thing has been introduced Bill C-54 insinuates that review boards are on the opposite side of victims of crimes committed by those with mental illnesses, says Bernd Walter. and presented is really divisive," he says. "It seems to, rather than suggest that we're all on the same page as victims and the government in terms of wanting public safety, it really pits decision-makers and treatment providers against victims, suggesting that they have opposing interests, which I think is offensive." P.E.I. Criminal Code Review Board chairwoman Michele Dorsey, who calls the bill "misinformed," suggests the legislation is proposing a fix to a problem that doesn't exist. "Review boards across Canada, and P.E.I. is no different, take great pains to ensure that public safety is considered when a person is brought before the board," she says, noting that a three-year gap between hearings will mean less monitoring and vigilance around patients' progress. "There's far more chance of ensuring recovery of mentally ill accused persons when they are engaged with the system," she adds. The biggest concern, according to Dorsey, is that people with a mental illness facing charges will abandon the defence of being not criminally responsible but instead end up in a correctional system not designed for recovery. "What people are concerned about is that if you're a lawyer who is representing someone who's charged and you're evaluating that clients' options on how to proceed, then if there is a mental-health issue and it's a dangerous offence, then you may disregard the not criminally responsible option," she says. It's a concern John Stefaniuk, who chairs the review board in Manitoba, also shares. "If this process is implemented, it will accomplish a See Government, page 2 Judge rejects cy-près award to law firm's client Law Times C 'There's a lot more scrutiny now in how the money is going to the class,' says Jonathan Bida. Photo: Robin Kuniski lass counsel can't in any way benefit from a cyprès award, a Superior Court judge found in a decision rejecting a chosen organization set to receive funds left over from a settlement agreement. In Sorenson v. easyhome Ltd., a class action related to misrepresentation of the share price, Justice Paul Perell approved all terms of the settlement except for the designation of who would receive the residue funds after all class members have received their money. The idea behind a cy-près payment is to indirectly benefit class members who often choose a charity related to their cause to donate the remaining funds to. But class counsel should in no way benefit from the donation, said Perell. In Sorenson, he rejected the chosen charity because class counsel's law firm had previously worked for the organization on a pro bono basis. The class members had planned to donate the amount to the Canadian Foundation for Advancement of Investor Rights. When it came to that choice, Perell agreed with the defendants who argued that a different recipient should get the money because the firm representing the plaintiffs, Siskinds LLP, had links to FAIR Canada. Perell's June 10 order notes easyhome raised the issue after learning that Siskinds and FAIR Canada had "linkages that were not known to the defendants before the settlement."  Perell acknowledged that the purpose of a cy-près award is to indirectly remedy class members. "However, in the case at bar, if FAIR Canada is the cy-près recipient, then class counsel also obtains an indirect benefit because they can take credit for the class members' contribution to FAIR Canada, another client of the firm," he wrote. "Further, for those that are cynically minded, there is the optics or appearance of a business development synergy in class counsel's supporting FAIR Canada's mission and this synergy would be another indirect benefit to class counsel." PM #40762529 BY YAMRI TADDESE See Legal, page 2 Get more online • Fresh Canadian legal news and analysis every day Canadian Lawyer | Law Times | 4Students | InHouse | Legal Feeds Visit Us Online 1-8-5X.indd 1 2/28/11 2:37:34 PM

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