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July 25, 2011

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Billions of dollars invested, not a penny lost. $4.00 • Vol. 22, No. 24 ntitled-3 1 5/4/10 2:49:21 PM Covering Ontario's Legal Scene ntitled-2 1 Client deserves second chance: lawyer Counsel worries court decision lowers bar for dangerous offender status BY MICHAEL McKIERNAN Law Times and attempting to kidnap and murder a young child lowers the bar for putting people behind bars indefinitely, according to his lawyer. Ontario Superior Court Justice Guy Di- A Tomaso sentenced Matthew Byers to an inde- terminate period of detention after granting the Crown's dangerous offender application. In 2005, police picked up Byers, who had no criminal record at the time, in a wooded area near a local school. They found him with a backpack containing child pornography and a rape kit consisting of condoms, duct tape, and electrical wire. They also turned up writings that detailed a plan to kidnap and rape a passing child. In addition, police found further writ- ings that outlined Byers' plan to rape and murder the 11-year-old child of a friend. He was also convicted of attempted mur- der over another incident in which he was discovered breaking into the friend's house the week before his arrest. Byers' defence lawyer, Daniel Brodsky, says it's the first time he's seen a person la- belled a dangerous offender without a physi- cal victim for any of the crimes. Byers claimed he was never going to carry out the plan, but DiTomaso disagreed after finding his actions had gone beyond mere preparation. "Here you've got a judge who has determined that [designation] based upon what my client wrote, first that he was going to do what he said judge's decision to label a Newmar- ket, Ont., man a dangerous offend- er for possessing child pornography by a period of strict supervision to ensure he continued taking his medication and was re- sponding well to it. "Ordinarily, when a client is charged and convicted of a crime, you punish them to see if the punishment works," Brodsky says. "This would be a very different case if Mr. Byers came to court and he was a person who had been in trouble before, was punished, and that didn't work or the state tried to treat him before and the treatment didn't work." Byers, who's now 35 years old, has been diagnosed with alcohol and cocaine de- pendencies, as well as pedophilia by expert witnesses on both sides, although a doctor who conducted an assessment for the de- fence wrote in his report that his risk could eventually be managed in the community. But DiTomaso said evidence that his risk could be reduced to an acceptable level amounted "to no more than an expression of hope that perhaps treatment and control may be successful in time." "Mr. Byers suffers life-long disorders for 'Ordinarily, when a client is charged and convicted of a crime, you punish them to see if the punish- ment works,' says Daniel Brodsky. he was going to do in the writing, and second that he couldn't be stopped from doing it in the future even though he's never physically hurt anybody," Brodsky says. Brodsky had argued during the hearing that the court should designate Byers a long-term offender, which would allow him to serve his sentence at a high-intensity treatment centre to help him control his sexual desires, followed which there is no cure," DiTomaso wrote in his July 6 decision. "I find the court cannot gamble with the lives and safety of children in the community. In this case, the protec- tion of the public does not involve taking a chance." According to the decision, Byers had dem- onstrated an inability to control his sexual impulses in the past. At the same time, the strength of the urges suggested he may not be able to do so in the future. After his conviction, more writings were discovered in Byers' cell See Byers, page 2 Taxing Aziga case sparks lawyers' spat BY MICHAEL McKIERNAN Law Times not guilty of professional misconduct related to a dispute with a colleague over his failure to pay their office rent after a groundbreaking case of murder through HIV transmission left him in financial distress. But during the same week in A late June that Johnson Aziga, the man convicted in the high-profile HIV case, returned to court for his dangerous offender hearing, a law society panel found his lawyer, Davies Bagambiire, guilty of professional misconduct for failing to serve another client. Law Society of Upper Canada panel has found a Toronto lawyer The other disciplinary matter stemmed from Bagambiire's failure to pay his rent, which resulted in him and his subtenant lawyers being locked out of their law offices in August 2008 on the eve of Aziga's original trial. Selwyn Pieters, one of the subtenants and also co-counsel to Aziga, complained to the law society about the rental situation. He claimed Bagambiire had failed to honour the financial obligations of his practice and that he had misappropriated Pieters' $1,600 in rent payments by failing to pass them on to the landlord. But the panel, deciding the situation didn't justify a finding of professional misconduct, disagreed. Relations between the two lawyers were already strained by the impact of the murder case and their problems handling Aziga, whom Bagambiire described to the panel as a "very difficult client to manage." "The Aziga murder case was a strain both professionally and financially," the law society panel noted. Bagambiire, who became the first black law professor in Canada when he took a position at Dalhousie University in 1990 and is also a former executive director of the African Canadian Legal Clinic in Toronto, declined to comment on Aziga, whose dangerous offender hearing is still before the courts in Hamilton, Ont. "I am satisfied with the law society ruling on the matter and would rather not say anything more," he tells Law Times. In an e-mailed statement, Pieters said he had moved on and wished Bagambiire well in keeping his financial affairs in order. "For Mr. Bagambiire to really get into the situation like that without even believing that he had to tell his subtenants, particularly me, is puzzling," he said. "However, life goes on. The decision is instructive to other lawyers dealing with persons like the lawyer in this case to simply sue civilly or call in the police when such issues arise. The law society is not the forum." According to the law society decision, Bagambiire, who intervened in the Aziga case on a pro bono basis in June 2007, used their shared Ugandan heritage to See Lawyer, page 2 www.adrontario.ca/findapro.cfm ADR Connect: Find an ADR Professional 416-487-4447 • admin@adrontario.ca Mediators Untitled-2 1 www.lawtimesnews.com Gold Standard Arbitrators 5/20/11 1:11:30 PM Estates Ruling 7 Maverick Retires 9 Focus On Forensics/ Private Investigators Quote of the week "Any investigation has to be conducted with a level of neutrality, and a good investigator is always going to be looking for information that sheds light on the question at hand." — Dean Benard, Benard + Associates See Protecting, page 13 July 25, 2011 7/7/11 9:10:05 AM Inside This Issue 4

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