Law Times

Sept 23, 2013

The premier weekly newspaper for the legal profession in Ontario

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Quebec charter A DAY IN THE LIFE Moldaver speaks to Midland audience Follow LAW TIMES on www.twitter.com/lawtimes P4 FOCUS ON Long debate over constitutionality begins P7 Intellectual Property/ Trademark Law L AW TIMES P9 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 $4.00 • Vol. 24, No. 30 ntitled-4 1 September 23, 2013 12-03-20 10:44 A How long should Crown have to keep evidence? Innocence Project seeks declaration to preserve until accused dies BY YAMRI TADDESE Law Times W hen Innocence Project director Alan Young started unpacking evidence in the 1984 murder conviction of Amina Chaudhary, he discovered authorities had lost the photographic evidence a forensic expert had talked about during his testimony at the trial nearly 30 years ago. The missing photos are a travesty, Young told the Ontario Court of Appeal last week, but he's not dwelling on the past. If any other evidence goes missing, the court should hold the government liable through a constitutional declaration that requires it to preserve evidence until the accused dies, he argued on Wednesday. Current practices around the retention of evidence in criminal cases fall short, said Young, and a declaration in Chaudhary's favour could have a significant impact on cases where someone alleges a wrongful conviction years later. A lower court rejected Young's bid for a similar declaration last year, concluding that since the loss of the photographs hadn't harmed Chaudhary, she couldn't ask for such a declaration based on a violation of her rights under s. 7 of the Charter of Rights and Freedoms. But at the appeal court last week, Young said Superior Court Justice Michael Dambrot didn't quite understand what he was asking for. Chaudhary isn't claiming the loss of the images has already harmed her but that there's "a reasonable apprehension of harm" in 'I need to demonstrate that there is a threat of the violation of her rights,' says Alan Young of client Amina Chaudhary. Photo: Yamri Taddese the future, he said. Declaratory relief is appropriate for speculative harm, Young argued. "I need to demonstrate that there is a threat of the violation of her rights. It's a preventative measure," he said. Chaudhary "is not saying, 'I want an apology for what happened,'" he added. "She's saying, 'I am worried about the future.'" Years back, the court convicted Chaudhary of strangling an eight-year-old Toronto boy to death. The forensic expert at the time, Dr. Charles Smith, also referred to injuries to the boy's head that he said were a result of blunt-force trauma. When Smith was describing the location of the bruise on the boy's head, the judge interjected to ask if he was saying it was halfway back along the skull. "Yes," Smith replied. "We have photographs of that, which might be better than my description." Now that those photographs are missing, Chaudhary reasonably fears that the investigative file in her case has also disappeared, Young argued. "The failure to preserve impacts on her liberty." Court of Appeal justices Stephen Goudge and John Laskin questioned Young about what makes him believe the loss of evidence will cause a significant harm to Chaudhary. Young was quick to admit there isn't any way of being sure of that. "Your honour, we always draw inferences about the future based on the past," he said. The perceived harm is a "likelihood" and not necessarily a probability, Young added. But in his view, the details of Chaudhary's conviction See Scope, page 2 U.S. case a reminder of importance of online reviews Law Times J Mitch Kowalski isn't a big fan of responding to negative online reviews. Photo: Robin Kuniski Childview_LT_Sep23_13.indd 1 ust as big law firms fret over their ratings in legal publications, so should small and sole practitioners pay attention to maintaining a good reputation on online review forums, lawyers say. For professional services, online review web sites like Yelp are a much bigger sensation in the United States, says legal commentator Mitch Kowalski. But when it comes to online feedback, Canadian lawyers can't afford to ignore their profiles. "It's important and lawyers should be checking, doing your Google searches, and making sure the reviews are good," he says. "You always want to have good reviews because you don't want to lose a client you didn't even know you were going to get. They go online, they see the reviews, and say, 'Oh, they've got bad reviews. I'm going somewhere else.' Who knows how many times that happens?" Recently, Bloomberg Businessweek reported that Yelp is suing a San Diego sole practitioner for allegedly posting fake reviews on its site. Yelp is accusing the lawyer's firm of having its staff post positive reviews, according to Bloomberg Businessweek. Here in Canada, there's a slim chance of a similar lawsuit happening, says Kowalski. "You have to understand that in the U.S., it's a huge market and there are far more lawyers competing for clients," he says. "I think there's a lot of pressure on American lawyers to be far more aggressive with their efforts. We don't have quite the lawyer glut in Canada." Online review tools are much more important for smaller law firms than the big ones, Kowalski notes. A quick Google search proves him right. While smaller legal businesses tend to get results on both Yelp and Google reviews, Canada's biggest law firms hardly have any. That's because it's unlikely that big law firm clients, especially PM #40762529 BY YAMRI TADDESE See Should, page 2 13-09-17 3:13 PM

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