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January 6, 2014

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CHILI CASE MOBILITY DEAL Insurance lawyers eye Quebec opportunities Follow LAW TIMES on $4.00 • Vol. 25, No. 1 P3 FOCUS ON Sriracha matter shows residents rule P7 L aw TIMes ntitled-4 1 Insurance Law P8 January 6, 2014 12-03-20 10:44 A Defence counsel brace for victims rights bill Federal government touts new legislation early this year BY YAMRI TADDESE Law Times A s the federal government touts its impending victims bill of rights early this year, some defence lawyers say such a move would complicate an already complex criminal justice system and pressure prosecutors to "serve two masters." After a six-month consultation process, the federal government says it's about to introduce a victims bill of rights that will ensure victims of crime are more "informed and involved" at every stage of the criminal justice system. "This year, we have spoken with many Canadians across the country to learn how we can improve the experience of victims as they cope with an often intimidating criminal justice system," said Justice Minister Peter MacKay on Dec. 27. "The stories and experiences that have been shared with us will be invaluable in helping us develop legislation that aims to improve the overall treatment of victims and their families; helps ensure that victims are respected and, where possible, informed of decisions that affect them; and also addresses the rights of victims in Canada and entrenches those rights in law." But criminal lawyers say more involvement for complainants may mean increased pressure on prosecutors to seek convictions instead of serving the rule of law. Traditionally, the involvement of complainants is limited to the role of a witness and, if there's a conviction, to a victim impact statement. Accommodating victims even further in the process will 'Victims aren't going to get anything more out of this than they already have,' says Anthony Moustacalis. add complexity to the Crown's role, according to Ottawa lawyer Douglas Baum. "Now, on top of doing their job, they're going to have the victims rights lobby peering over their shoulders, scrutinizing everything they do. And I don't see how the prosecution can serve two masters like that," he says, adding Crowns may also face pressure to continue prosecuting a case in which a lack of evidence would otherwise merit dropping charges. "As a defence lawyer, I have a sworn duty to my client. But when the prosecutor comes to court, their oath is to serve the state; it's not to serve the individual complainant. And the more power the state gives to the victim, the less justice you're going to have. It doesn't bode well for an impartial system," adds Baum. Through efforts like victim and witness assistance programs, the Crown attorneys' office already pays a considerable amount of attention to victims, Baum notes. Services under the program include assisting witnesses, bringing them to court, and making them feel at ease with the process. "But what happens when you try to enshrine those rights in a bill of rights? What does it mean? Does it mean that the prosecutor who is on that case is now my counsel? Do I get to call the prosecutor and get updates on the case? Does it mean that the investigating officer has to keep me informed of everything that happens?" asks Baum. For Minister of Public Safety and Emergency Preparedness Steven Blaney, the bill of rights will mean "a more effective voice" for victims. "Our government is standing up for victims of crime See Little, page 5 Judge calls for presumptive validity for 33% class counsel fees For Law Times C 'If class counsel has some predictability about their fees, at the end of the day they may be more willing to take on certain types of cases,' says Jonathan Ptak. lass action plaintiffs' counsel are welcoming a Superior Court judge's call to afford presumptive validity to one-third contingency fee agreements. Ontario Superior Court Justice Edward Belobaba initially approved legal fees of 25 per cent after a partial settlement in a case arising out of a charity tax receipt scheme "because frankly, that's what other judges were doing" and asked for written submissions to convince him that the 33-per-cent fee agreed to in the retainer agreement was fair and reasonable. But after reviewing decisions that capped legal fees in the 20- to 25-per-cent range, Belobaba said he was unconvinced by their discussion of "arguably irrelevant or immeasurable metrics such as docketed time (irrelevant) or risks incurred (immeasurable.)" "If the settlement is in the best interests of the class and the retainer agreement provided for, say, a one-third contingency fee, and was fully understood and agreed to by the representative plaintiff, why should the court be concerned about the time that was actually docketed? This only encourages docket-padding and over-lawyering, both of which are already pervasive problems in class action litigation," Belobaba wrote in his Dec. 19 decision in Cannon v. Funds for Canada Foundation. "In my view, it would make more sense to identify a percentage-based legal fee that would be judicially accepted as presumptively valid. This would provide a much-needed measure of predictability in the approval of class counsel's legal fees and would avoid all of the mind-numbing bluster about the time-value of work done or the risks incurred." The court certified the class action two years ago after representative plaintiff Michael Cannon sued on behalf of 10,000 taxpayers who invested in the Donations For Canada gift program between 2005 and 2009. The $144-million program promised charitable tax credits worth four times the cash PM #40762529 BY MICHAEL McKIERNAN See Sensible, page 5 A DAILY BLOG OF CANADIAN LEGAL NEWS [ WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS ] LegalFeeds-BB-LT-Apr23-12.indd 1 POWERED BY CANADIAN LAWYER & LAW TIMES 12-04-16 11:56 AM

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