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McKELLAR STRUCTURED SETTLEMENTS Billions of dollars invested, not a penny lost. 1-800-265-8381 www.mckellar.com cKellar_LT_Jan18_09 1 $3.55 • Vol. 21, No. 7 1/11/10 1:02:38 PM Inside This Issue 4 Legal Advice Covering Ontario's Legal Scene Follow on www.twitter.com/lawtimes March 1, 2010 Can colonel get a fair trial? Despite leaks, retention of top lawyer suggests a vigorous fight ahead BY TIM NAUMETZ For Law Times 6 Independent Body 9 Focus On Labour and Employment Law Quote of the week "It was somewhat surprising that there hasn't been more litigation around the principles laid down in Wronko." — Lynn Harnden Emond Harnden LLP See Wronko, page 15 OTTAWA — Police leaks and an avalanche of national media coverage of the arrest of Canadian Forces Col. Russell Williams on murder charges could rule out a fair jury trial, criminal defence lawyers worry. Publication of apparent details of a lengthy interview and statement the former commander of Canada's largest air force base allegedly gave police before they laid the charges could make prosecution, even through a trial by judge alone, more diffi - cult, says Mark Ertel, past president of the Defence Counsel Association of Ottawa. "I believe that the public regularly con- victs people, but this one is really over the top," he notes. "Th e journalists have all con- victed him, and everyone I know has con- victed him. I think it's going to be impos- sible for the guy to get a fair trial with a jury anywhere because the publicity has been so widespread." To top it off , the lawyer Williams retained following his arrest, high-profi le Ottawa advocate Michael Edelson, has the kind of expertise and courtroom ferocity that could expose even the smallest slip the police may have made in the case, say some of Edelson's colleagues in the capital's criminal bar. Th e fact that Williams has hired Edelson suggests the accused air force offi cer may have more than a guilty plea in mind despite the diffi culty of bargaining pleas on two separate murder charges. "If the police have crossed the boundary, 'What I can tell you is most days there are few things that I would find more interesting. It's because of the human drama element,' says Michael Edelson, the lawyer for Col. Russell Williams. Mike will fi nd it," says Richard Addelman, the criminal defence lawyer whose Ottawa fi rm Edelson fi rst worked with more than three decades ago. Th e spectacular case, involving a 46-year- old offi cer who was so dedicated and had a ca- reer so brilliant fellow offi cers say he was being groomed for a promotion to lead the entire air force, has had so much publicity that its details could almost go without mention. Th e Ontario Provincial Police charged Williams last month with the murder of two women who lived near the Canadian Forces base he commanded near Trenton, Ont. One of the women, 37-year-old Cpl. Marie-France See Several, page 5 Surrender your licence or be disbarred, lawyer told A BY ROBERT TODD Law Times Law Society of Upper Canada hearing panel has given a Toronto law- yer 30 days to surrender his li- cence after ruling it untenable for him to remain in the pro- fession after being slapped with a criminal conviction for theft over $1,000. In doing so, the panel said it was showing "compassion" for Brian Horgan in recognition of the "humiliation and stigma" he has suff ered. If he doesn't com- ply by next week, the LSUC will disbar him. Th e decision last month puts an offi cial end — barring an ap- peal — to the long saga and ca- reer of Horgan, who was called to the bar in 1976 but hasn't been practising since 1994. Th at's when Sun Life Assurance Co. discovered Horgan had been erroneously receiving annuities through a bank account he con- trolled on behalf of a client who had died four years earlier. "We are satisfi ed that the of- fence of theft, and based on the facts provided to us in the docu- ments, is in fact a criminal act that refl ects adversely on the law- yer's honesty, trustworthiness or fi tness as a lawyer," said tribunal chairman Paul Schabas in oral reasons on behalf of fellow pan- ellists Constance Backhouse and Baljit Sikand. Horgan had power of attor- ney over the woman's fi nancial aff airs and was the executor and sole benefi ciary of her will, according to a November 2007 endorsement from the Ontario Court of Appeal. Appeal court justices Marc Rosenberg, Susan Lang, and Paul Rouleau noted Horgan argued he had notifi ed Sun Life of the woman's death and believed the annuities re- mained payable for the following fi ve years. Horgan maintained his innocence and belief that he was wrongly convicted of the of- fence in his affi davit to the law society tribunal. Th roughout the saga, Horgan repeatedly sought to delay and overturn the legal proceedings against him. Th e appeal court endorsement noted Horgan was hospitalized for depression when charged in 1998 and was there- fore not arrested until 1999. He was eventually convicted in December 2004 and in Novem- ber 2005 received a conditional sentence of two years less a day. Horgan had earlier carried out an unsuccessful bid to reopen the trial and seek a stay of pro- ceedings by arguing abuse of process. At the Court of Appeal, Hor- gan took odds with Superior Court Justice John Hamilton's ruling that turned down the stay application. But the appeal court sided with the application judge, fi nding that various delays were outweighed by "the societal in- terest in the prosecution of the off ences." It also found that while the judge had twice wrongly in- terpreted evidence, those mis- takes were "inconsequential." Finally, the appeal court ruled See Panel, page 5 WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM Click here to subscribe today to LAW TIMES Julie Oliver / Ottawa Citizen. Reprinted by permission.