Law Times

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 ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2010 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. November 8, 2010 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com 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. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal 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 guar- anteed. Contact Jacquie Clancy at: jclancy@ clbmedia.ca or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. 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 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Good start on dealing with mega-trials I t's been about two years since the release of a major report on com- plex criminal trials in Ontario, and now we're starting to see some of those recommendations become reality. Already, we've seen the province move to gradually increase legal aid rates, a key suggestion in the report by Michael Code, then a University of Toronto law professor and now a judge of the Ontario Superior Court, and former Superior Court chief jus- tice Patrick LeSage. While the agree- ment to boost legal aid funding may not go far enough for some, it at least contained provisions to increase remu- neration for senior lawyers, something that would go some way to addressing the report's lament that many among the most experienced defence counsel were no longer willing to take on the biggest and most demanding cases. Then last week, the federal govern- ment took action with the proposed fair and efficient trial act. The goal is to streamline the most complex trials, such as those involving organized crime charg- es or multiple victims or defendants, by improving case management and reduc- ing duplication in court processes. The move comes in response to several in- stances of big cases that lasted too long, cost too much or resulted in mistrials due to delay. Key among the changes is the ap- pointment of a case management judge who can rule on preliminary is- sues to prevent matters from getting bogged down in procedures like dis- closure requests and Charter of Rights and Freedoms motions. As a result, the government says a case manage- ment judge would be able to impose deadlines, help narrow the issues, and encourage the parties to make admis- sions and reach agreements. Other changes include joint hear- ings on preliminary issues involving similar evidence in separate but relat- ed trials. In addition, amendments to the Criminal Code would provide that decisions on certain preliminary mat- ters would continue to stand in new proceedings in the event of a mistrial unless the court rules otherwise. Overall, the changes are positive. Of course, while they should help with the big cases, it's hard to see how having sep- arate case management judges for com- plex trials would make a huge difference to the justice system as a whole unless there are more judges available in the first place to handle the overall caseload. At the same time, concerns over disclo- sure, a key issue identified by Code and LeSage, remain. What will the govern- ment do to ensure police and prosecu- tors provide complete and timely disclo- sure while responding to concerns over frivolous and excessive requests? But last week's changes were a good start. So far, Code and LeSage's work appears to be a rare example of a re- port that hasn't simply gathered dust on a shelf. That in itself is nice to see. — Glenn Kauth addresses some fundamental issues about victim impact statements and the use the court may make of them. In Revet, the appellant had Victim impact statements: What's kosher and what's not T he recent Saskatch- ewan Court of Appeal decision in R. v. Revet pleaded guilty to sexually as- saulting a 14-year-old girl. The facts admitted involved statu- tory rape that included two acts of consensual intercourse with an underage complainant. Victim impact statements filed the morning of the sen- tencing noted that the girl had a learning disability and that the accused had grabbed her throat during one encounter. The defence lawyer's submis- sions involved a different set of facts. Relying on those ag- gravating factors, the sentenc- ing judge sent Charles Joseph Revet to the penitentiary for three years. The appeal court ruled that the judge could rely on this ad- ditional information because there were no objections raised at the sentencing. Justice G.R. Jackson dissented, holding that despite defence counsel's failure to object, the facts in the victim impact statements couldn't augment those on the plea to thereby increase the gravity of the offence. The dissenting judge would have only imposed an 18-month sentence. So the sentence was doubled by no objection being raised. In R. v. Gabriel, the accused pleaded guilty to criminal neg- ligence causing death in a case in which the court received more than 30 statements filed by family and friends. As the judge noted, "The statements should not contain criticisms of the offender, assertions as to the facts of the offence or recommendations as to the se- verity of punishment. . . . At- tempts to state, or presumably to restate, the facts of the of- fence usurps the role of the prosecutor and risks inconsis- tency with, or expansion of, prior trial testimony, or facts read in, and agreed to, on the guilty plea appearance." A Criminal Mind By Rosalind Conway Who is a victim anyway? In a number of prostitution and drug-trafficking cases, I have received stacks of state- ments from people living in the neighbourhood where the offence occurred. I have even seen statements that predated the alleged offence. Those people are clearly upset at the deterioration and criminaliza- tion of their neighbourhoods, but they are not victims of the offence, including for the pur- poses of s. 722 of the Criminal Code. Victim is defined in s. 722(4) (a) as "a person to whom harm was done or who suffered physi- cal or emotional loss as a result of the commission of the of- fence." Under s. 722(4)(b), if that person is dead or unable to make a statement, then it www.lawtimesnews.com includes a spouse, partner, an- other relative or a caretaker. You can have statements from complainants and their relatives, and victims can in- clude members of the direct vic- tim's family (see R. v. Duffus). The statement is supposed to be prepared on a form and is either read in by the victim, filed with the court or both. Of course, as defence, the last thing you want is for the victims to take the stand at the sentenc- ing, which is their right. So don't stand on ceremony and complain that they didn't use the proper form. Section 722.2 requires the sentencing judge to make an inquiry as to whether the vic- tim has been advised of the opportunity to make a victim impact statement. On its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement. The victim impact state- ment is often handed to the defence moments before the sentencing. The Crown must prove anything disputed by the defence at sentencing beyond a reasonable doubt. While you don't want to be in counsel's position in Re- vet by not actively contesting the contents of the statements but instead making your own submissions, the last thing you want is for the victims to come to court, take the stand, and be examined and cross-examined on just how awful it was and how much they've suffered. The Ontario Court of Appeal has even ruled there's no automatic right of cross-examination on a victim impact statement. So tread carefully. The de- fence is just as entitled to seek an adjournment and to strat- egize over the victim impact statement. There are only two parties to the proceedings. You may even be able to agree with the Crown as to what parts of the victim impact statement the court can rely upon. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

• Cover
• Revising Retainers
• Victim Impacts
• Focus On Family Law