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February 11, 2008

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Page 0 of 15 McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM I nvestigative & F orensic A ccounting Specialists Damage Quantification + Expert Testimony Free Consult - 416.223.5991 A. NEUMAN ASSOCIATES INC. $3.55 • Vol. 19, No. 5 Covering Ontario's Legal Scene February 11/18, 2008 Law Times – Dream Kitchen (Front Page Base Bar 1C) *Underwritten by Lawyers' Professional Indemnity Company (LAWPRO ® ). Contact LAWPRO for brokers in Manitoba, Saskatchewan and Alberta. ® Registered trademark of Lawyers' Professional Indemnity Company. Protect your clients. Recommend TitlePLUS ® title insurance. * TitlePLUS title insurance and you, together we make real estate real simple. Visit or call 1-800-410-1013 for more information YOUR CLIENTS JUST BOUGHT A HOME WITH A DREAM KITCHEN. Too bad it hasn't been paid for. TPLawTimes1CBlue fin 11/2/06 3:09 PM Page 3 Security certificate proposal has criminal bar buzzing OTTAWA — A prominent member of the legal team that helped vindicate Maher Arar says lawyers should be willing to serve as the special advocates Parliament is introducing for se- curity-certificate arrests, despite misgivings they may have about potential Charter violations. And a leading Ottawa criminal defence lawyer says the proposal — where the advocates would have access to secret evidence but require a judge's permission to share it with the accused — at least opens the door to outside scrutiny of government evidence. The criminal bar is abuzz over the impending change — coming in response to a landmark Supreme Court ruling — after a report that the federal Justice Department had difficulty recruiting barristers to ap- ply for inclusion on a list of special advocates for security-certificate cases under the Immigration and Refugee Protection Act. Three of six men who were arrested in Canada following the Sept. 11, 2001 terrorist attacks in the United States won a Supreme Court ruling last February that found the act's provisions prevent- ing disclosure of secret evidence to anyone named in a security certif- icate violated s. 7 of the Charter. The three who went to the Su- preme Court were Adil Charkaoui, Hassan Almrei and Mohamed Har- kat, all of whom were earlier released with conditions. Only one of the six, Almrei, remains in detention. The court said the secret-evi- dence clause denied anyone named in a security certificate "the oppor- tunity to know the case put against him or her, and hence to chal- lenge the government's case. This, in turn, undermine(s) the judge's ability to come to a decision based on all the relevant facts and law." The Supreme Court gave Par- liament one year, until this Feb. 23, to amend the act. The justices specifically men- tioned two possible solutions for Par- liament that involved special counsel "to objectively review the material with a view to protecting the named person's interest, as was formerly done for the review of security cer- tificates by [the Security Intelligence Review Committee] and is presently done in the United Kingdom." Lorne Waldman, who was a member of Arar's legal team dur- ing the commission of inquiry into Arar's rendition to Syria at the hands of U.S. authorities, and his subsequent torture, believes the special advocates the Harper gov- ernment has proposed will also be challenged under the Charter. "I believe it's very likely there will be another Supreme Court of Can- ada challenge," he tells Law Times. The biggest difficulty will be the new law's requirement for the advocate — who does not actually represent the person named in the certificate — to seek permission from a presiding Federal Court judge before disclosing govern- ment evidence to the person the government is seeking to deport as a security risk. For those accused of being terror- ists or associating with terrorists, the Lawyers, Opposition demand inquiry Controversy over failed prosecution T he ruling that stayed corruption-related charges against six Toronto police of- ficers because of unreasonable delay by the Crown, is a controversy that's not going away for the Ministry of the Attorney General. Opposition parties are demanding the Lib- eral government call an independent inquiry. Defence lawyers, who originally made al- legations back in 1999 against members of a now-disbanded Toronto drug squad, continue to ask why the prosecution of what has been described as the largest police corruption in- vestigation in Canadian history could fall apart without going to trial. The ministry has said only that it is review- ing the Jan. 31 ruling of Superior Court Justice Ian Nordheimer for a possible appeal. Premier Dalton McGuinty said on Feb. 5 that he is waiting for recommendations from the attorney general. AG Chris Bentley called the result "trou- bling," yet he said the (appeal) review process needs to continue before he would make any comment. Speaking to the media after a speech at an Ontario Bar Association conference on Feb. 4, he repeatedly refused to respond to sug- gestions that the ruling could be interpreted as a "botched" prosecution by the Crown. Speculation that the Crown never wanted the case to go to trial is "baseless and ground- less," stressed Bentley. In the wake of the controversy, both McGuinty and Bentley promised to make changes to deal with systemic delays in criminal proceedings and "complex" cases. The decision to grant the s. 11(b) applica- tion, however, and stay charges against John Schertzer and five of his former police col- leagues had nothing to with systemic problems or the supposed complexity of the case, said Nordheimer in his 54-page ruling. Instead, the judge laid the blame squarely at the feet of the Crown for failing to bring the case to trial until four years after the offi- cers were charged and 10 years after they were first investigated. "The largest portion of the delay in this case results from the actions of the Crown relating to the manner and timing of the disclosure," said Nordheimer. "I have strived to find any sense of urgency on the part of the prosecu- tion in this case, or any apparent recognition that this case was teetering on the precipice of unreasonable delay." The three-member prosecution team was led by Milan Rupic, director of the special prosecu- tions unit in the ministry. The judge observed that the normal R v. Morin timelines in the 11(b) analysis "have little Speculation that the Crown never wanted the corruption case against six Toronto cops to go to trial is 'baseless and groundless,' says Attorney General Chris Bentley. Inside This Issue Justice System 3 Social Justice 7 Focus On IP and Trademark Law 9 Quote of the week "There's certainly fantastic benefits to all of these products, but we'll see an increase in the Competition Bureau and other authorities wanting to take manufacturers to task. We'll also see, I think, competitors within the marketplace wanting to take each other to task if they over- speak the true benefits of their product in environmental causes." — Catherine Bate lawyer, Heenan Blaikie LLP see Ensure, page 4 BY SHANNON KARI For Law Times See Clear, page 2 BY TIM NAUMETZ For Law Times See Lawyers, page 2 Photo: OBA *Pages 1-16.indd 1 7/18/08 12:45:17 PM

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