Law Times

April 18, 2011

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PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Heather Gardiner CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. April 18, 2011 • lAw Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-6786. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson, or Sandy Shutt at 905-713-4337 sandra. Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Sunshine List shows need for more restraint ast week, Law Times' report on the top-earning public-sector lawyers showed evidence of both attempts at and an absence of restraint. On the one hand, many Crown pros- L ecutors actually saw declines in their earn- ings in 2010 over their 2009 pay. Crown attorney Antonio Loparco, for example, took home $194,035 in 2010, down from $199,019. Crown counsel David Lepofsky, meanwhile, earned $198,808 last year. In 2009, his pay was $207,030. In addition, David Costen, portfolio di- rector for government and social services at the Ministry of the Attorney General, took a $4,000 cut last year. In fact, many prosecutors at the top of the list had reductions of about $5,000. It's good, then, to see that at least the Ministry of the Attorney General ap- pears to have taken the government's bid to restrain public-sector remuneration to heart. We all know that after the province attempted to declare an across-the-board salary freeze aff ecting the broader pub- lic sector as well, arbitrators went ahead and awarded increases anyway in labour disputes that had reached an impasse. So while the Liberal government failed to achieve its overall goal, it made attempts to cap the pay of its own employees. Th e broader public sector, including Crown corporations, agencies, and insti- tutions such as universities, is a diff erent story. Th e highest-earning public sector lawyer, David Brennan of Ontario Power Generation, got a $10,000 raise. Mary Martin, another big earner at Metrolinx, got an increase of more than $15,000. But at York University, faculty at Osgoode Hall Law School received conspicu- ously large income hikes that dean Lorne Sossin gives very reasonable explanations for. Professor Douglas Hay, for example, got a 21-per-cent boost to his earnings. In 2010, he took home $217,791, up from $179,602 the year before. A colleague, associate professor Marilyn Pilkington, earned $210,770 last year after taking in $188,647 in 2009. As Sossin legitimately points out, the increases were due in part to the eff ect of a retroactive pay increase of three per cent resulting from the timing of nego- tiations. Th at meant professors received two three-per-cent raises at once. And he notes the Sunshine List informa- tion includes not just salaries but also stipends from teaching continuing legal education courses and for added ad- ministrative roles some of the professors who had big increases took on. But compared with the numbers for the government lawyers, it's clear that the broader public sector in general hasn't done enough to rein in salaries. Th at in- cludes not just well-paid legal profession- als but also other government workers such as those who have benefi ted from pay hikes through arbitration rulings de- spite the mandated freeze. At the end of the day, if Canada is go- ing to continue to do well following the recession and control massive govern- ment debt, we have to get labour costs, particularly those related to benefi ts and pensions in the public sector, under con- trol. Reforming the arbitration system to mandate that arbitrators consider re- muneration for comparable jobs in the private sector, something commentator Michael Warren proposed in a recent To- ronto Star article, is a good place to start. — Glenn Kauth W Time to review troubled plea-bargain system Social rongful convictions have been in the news for many years. As a result, most lawyers are familiar with the names Steven Truscott, David Milgaard, Donald Mar- shall, Th omas Sophonow, Guy Paul Morin, Robert Baltovich, and many others. Wrongful convictions are diffi cult to accept, but what about wrongful plea bargains? By that, I'm referring to plea bargains that cause innocent people to plead guilty to crimes they didn't commit. It may seem counterintuitive that plea bargains could generate miscarriages of justice. After all, plea bargains are consensual, and in any signifi cant case the accused will have counsel. Yet we know that miscarriages of justice occur through plea bargains. Dinesh Kumar and Anthony Hanemaayer are both victims of wrongful plea bargains. Pursu- ant to such deals, they pleaded guilty to crimes they didn't commit. Th e Ontario Court of Appeal quashed Kumar's con- viction and entered an acquittal earlier this year. It did the same in Hanemaayer's case in 2008. It may seem odd that people would plead guilty to a crime they didn't commit, but an ex- amination of the Kumar and Hanemaayer cases provides worrying indicators that such occurrences may be more com- mon than we'd like to think. Kumar was charged with the second-degree murder of his fi ve- week-old baby in 1992. He chose to plead guilty to a charge of criminal negligence causing death as part of a plea bargain that in- cluded a 90-day sentence to be served on weekends. According to the appeal court, at the time of the infant's death, Kumar's wife "had just returned from hospital after major surgery for a brain tumour. He was facing loss of his liberty for at least 10 years, loss of custody of his remaining child, and deportation." To make mat- ters worse, the prosecution held out the now-infamous Charles Smith as its expert witness. Hanemaayer pleaded guilty to break and enter and commit- ting an assault and assault while Justice By Alan Shanoff threatening to use a weapon. He did so after his trial had begun and the court had heard eyewit- ness evidence. According to the ruling, the court "cannot ignore the terrible dilemma facing the appellant. He had spent eight months in jail awaiting trial and was fac- ing the prospect of a further six years in the penitentiary if he was convicted. Th e estimate of six years was not unrealistic given the seriousness of the of- fence. Th e justice system held out to the appellant a powerful inducement that by pleading guilty he would not receive a penitentiary sentence." At the same time, Hane- maayer's wife had left him and he had no one to confi rm his ev- idence that he was home at the time of the assault. By pleading guilty, Hanemaayer was able to get release on parole after serving about eight months of his sentence. But Hanemaayer should never have found himself in this position. Th ere was no circumstantial evidence link- ing him to the crime or the scene, and the photo array used by police was defective. In other words, in spite of the eyewit- ness testimony, the Crown had a weak case. Nevertheless, the inducement to plead guilty was too great to overcome. Th e Kumar and Hanemaayer cases have much in common. In each case, the prosecution re- lied upon a single witness whose testimony appeared to be unim- peachable notwithstanding the obvious frailty of the evidence. In both matters, the prosecu- tion's case was deeply fl awed. In addition, the accused in the two cases faced a serious charge with signifi cant jail time if convicted. At the same time, the Crown of- fered a deep discount to the antic- ipated sentence, and both Kumar and Hanemaayer had personal reasons for accepting the deal. A guilty plea as part of a plea bargain must be voluntary and informed. But how voluntary is any guilty plea when the induce- ment to enter into the deal is an inordinately large discount on the sentence? A deal that's too good to be true is liable to over- come any reasonable person's reluctance to plead guilty even when innocent. Such a deal is unduly coercive and therefore not voluntary. What's equally troubling is the apparent inability of the trial judges in both cases to have made eff ective inquiries into the propriety of the plea bargains. It's time, then, for us to re- view the plea-bargain system and set up safeguards to en- sure it doesn't coerce innocent people into pleading guilty to crimes they didn't commit. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff

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