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Page 2 May 4, 2015 • Law Times www.lawtimesnews.com NEWS No judge shopping in Kitchener case, defence says BY Yamri Taddese Law Times Toronto criminal defence counsel is denying suggestions of judge shop- ping in an impaired-driving case that recently concluded in a mistrial. In R. v. Glenfield, a case involving allega- tions of impaired driving causing death, Supe- rior Court Justice Peter Hambly had taken issue with a plea deal reached by the Crown and the defence and rejected it. Regional Senior Justice James Turnbull got involved in the matter after Hambly blasted the plea deal and Crown prosecutor David Russell went to another judge, Justice Patrick Flynn, who had informally accepted it, according to the Record newspaper in Kitchener, Ont. Turn- bull found that to be a procedural error that cre- ated a public perception of judge shopping, the Record reported. "There was no judge shopping done what- soever," says the defendant's lawyer, Paul Burstein. Instead, Burstein says the Crown had gone to Flynn in order to avoid a mistrial in the case before Hambly. "Justice Hambly gave his reasons for the mistrial but even if he hadn't done it on his own motion, my client would undoubtedly have sought a mistrial on the basis that he [Hambly] improperly prejudged the evi- dence, which had not yet been completed," says Burstein, adding the judge hadn't heard any evidence from the defence and had yet to hear all of the Crown's evidence. In the midst of the trial, the Crown and Burstein agreed to a plea deal that would see the accused serving 27 months, the Record reported. The defendant would likely have had the support of the Crown in bringing the mis- trial application, Burstein notes. "But instead of having to seek that mistrial in advance of April 20, with Justice Hambly's knowledge, the Crown took the matter back in front of the justice whom the case had been previ- ously pretried," says Burstein. The pretrial before Flynn had taken place with Hambly's permission, Burstein notes. Russell "wisely" took the matter back to Fly- nn in order to avoid having the start from the beginning, he adds. Russell "chose to try and achieve some fi- nality in a cost-efficient and expeditious man- ner by going back to the judge who had already been involved with the trial judge's permission at the midtrial conference," he says. In finding a public perception of judge shop- ping in the case, Turnbull has taken an "unfair and unreasonable view" of what happened, according to Burstein. "I can tell you in all the years that I've been doing this, I've never had a judge saying and do the things on the morning of April 13," he says. Ottawa criminal defence lawyer Michael Spratt says it's not "unheard of " for counsel to go to another judge for fear of apprehen- sion of bias. "It's certainly not routine, but in a case like this where the matter is before a trial judge and issues come up, it's sometimes the fairest and safest course of action to be able to have frank discussions with another impartial judge be- cause to do so in front of the trial judge could actually risk a mistrial," says Spratt. Spratt adds it can be "inf lammatory" to call this practice judge shopping. If the par- ties come to a resolution after a judge has heard some evidence, as was the case in this matter, it may in fact be unwise to continue in front of the same judge, according to Spratt. "It can actually be unfair and create percep- tion problems to ask a court to ignore evidence that it's already heard that may not be admis- sible or it may not be agreed to," he says. If done properly, moving the matter be- fore another judge who's coming at it from a blank slate may actually be the fairest way to proceed in these circumstances, he adds. "Given the unusual facts of this case, I think it would be unfair to characterize it as judge shopping. The perception of that might be there, but I think when the public is in- formed of the applicable law and the consid- erations that go into resolving complex mat- ters such as this, it's probably not accurate to characterize it as judge shopping." According to Burstein, Hambly's con- cerns about the agreed statement of facts were wrong in law. While it was up to the Crown to take the matter before another judge, "cer- tainly it had the defence support because the defence was also interested in not having to start this case all over again," he says. Burstein also takes issue with any sugges- tion of wrongdoing by Russell or Flynn. "There's nothing that the Crown did or said that is in any way a cause for the pro- cedural turmoil that has resulted from this. The Crown is one of the most senior prosecu- tors in the system and is a hardworking, most honourable man," he says. "The only mistakes made in this were by some of the judges involved and certainly Justice Flynn did nothing inappropriate, nor should it be suggested that he in any way signed on to anything inappropriate." According to the Record, Turnbull said he would appoint a judge from outside the region to hear the matter from the start. LT How the legal community in Ontario gets its NEWS To order your copy visit www.lawtimesnews.com or call 416.609.3800 or 1.800.387.5164 SUBSCRIBE TO LAW TIMES TODAY! Cutting-edge legal affairs, news and commentary for just 50 cents a day! Make time for Law Times and keep up with all the developments in Ontario's legal scene. SUBSCRIBE TODAY AND RECEIVE: t 40 issues a year covering Ontario's legal landscape t FREE Unlimited access to Law Times digital editions and digital edition archives t FREE Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer FREE Digital edition included! To order your copy Untitled-1 1 2015-04-29 8:29 AM A Personal injury lawyers alarmed at auto insurance changes BY Yamri Taddese Law Times he Ontario Trial Law- yers Association says it's "alarmed and dismayed" by cuts to statutory acci- dent benefits announced in the lat- est Ontario budget. The change will see the maximum amount for medical and rehabilita- tion benefits in cases of catastrophic injury fall to $1 million from $2 million. That's be- cause attendant-care services, which pre- viously had separate $1-million coverage, will now come under the existing $1 million for medical and reha- bilitation benefits. In addition, the government will cut the standard duration of medical and reha- bilitation benefits in half to five years from the current 10-year timeline for all claimants except children. "We are absolutely alarmed and dismayed by the cuts that are in the budget. This is the largest reduction to the automobile insurance prod- uct that we have seen in 20 years," says Steve Rastin, president of the association. For non-catastrophic injuries, medical and rehabilitation as well as attendant-care coverage will be $65,000 rather than the current combined total of $86,000. "All these cuts together are mas- sive," says Rastin. "We're alarmed and dismayed because they did it without consulta- tion, they did it without discussion." The budget also suggests a new definition of catastrophic injury is in the works. "The government will also continue to ensure, where possible, that insurance coverages ref lect the most relevant scientific and medical knowledge on identifying and treat- ing injuries from automobile acci- dents," the budget document noted. "This approach will provide clar- ity to help minimize disputes in the auto insurance system and ensure that people get the treatment they need after an automobile accident. Accordingly, the government will amend Insurance Act regulations to update the catastrophic impair- ment definition consistent with more up-to-date medical informa- tion and knowledge." Rastin says the cuts in the budget go against the findings of a recent re- port commissioned by the association. That study said Ontarians had overpaid for auto insurance by about $3.1 billion between 2001 and 2013. "We have to con- clude, to be fair to the government, that they must not have taken that report into ac- count," says Rastin. "We don't think the people that matter had a chance to prop- erly review the report. To give the govern- ment the benefit of the doubt, we hope that they didn't." Amid much fanfare about other topics in the budget such as the sale of Hydro One, Rastin suggests peo- ple haven't noticed the insurance changes. For its part, the Ministry of Fi- nance says its plans are part of an ef- fort to ensure "a fair and affordable" auto insurance system for Ontario's drivers. "That's why we passed the Fight- ing Fraud and Reducing Automobile Insurance Rates Act, Bill 15, which will help our government continue to fight fraud and abuse, reduce rates and uncertainty in the auto insur- ance system," said Kelsey Ingram, a spokeswoman for the office of Min- ister of Finance Charles Sousa, in an e-mail to Law Times. "Since 2013, auto insurance rates have declined by over seven per cent on average, which means consumers have paid over $635 million less in premiums since 2013. Further rate reductions will be realized now that Bill 15's provisions are starting to take effect," she added. LT T 'This is the largest reduction to the automobile insurance product that we have seen in 20 years,' says Steve Rastin.

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