Law Times

PAGE 2 NEWS augusT 10/17, 2009 • Law Times 'Who knows what the fall will bring?' Continued from page 1 "Th e decline that has been experienced in this market was broader, and didn't have the concentration argument at- tached to it that the high-tech market immediately did," he says. "Because the marketplace was hit more generally and even the best-quality stocks have been injured, I think that has something to do with it." He adds that the current market decline was forecast, giving people enough time to protect themselves from greater losses. Many did so by taking part of their portfolio to cash, for example. Campbell also believes the market is now coming back, making it a gentler drop with better prospects for quick recovery. Ian Russell, president and CEO of the Investment In- dustry Association of Canada, suggests the average number of complaints to IIROC are "fairly low" on a yearly basis. He also notes that the organization con- ducts about 500 investigations each year. "When you put that all in context, it means that if investi- gations are a proxy — and a very rough proxy I might add — for serious complaints, there's just not a lot of serious complaints," says Russell. He says many "very distin- guished lawyers" have made a positive contribution to the Ombudsman for Banking Ser- vices and Investments system, which resolves disputes between banks or investment fi rms and their clients. "Th e consumer redress sys- tem works pretty effi ciently, and I think the real value of it is it's effi cient and very cost-eff ective for the average investor," says Russell. "Th at's a good thing for the investor. Th at would be where I would say lawyers have made a very positive contribu- tion in helping the system work more effi ciently, whether at the fi rm level, through IIROC, through OBSI, and I think by and large the investor is pretty confi dent in the system." He adds that it's always best to avoid courtroom battles, and that the system aims to protect smaller investors. "Th e fact that we don't see a lot of cases in courts I think is a good thing," says Russell. But Campbell suggests it may be too soon to tell whether lawsuits stemming from the recent market collapse have been generally avoided. "Who knows what the fall will bring?" he says. "I think there could be people just sit- ting in the wings seeing if they do have a problem or not, rather than an instance of having it brought home dramatically that they do have losses from which there is little likelihood of im- mediate recovery." LT Ministry in 'early stages' of review Continued from page 1 said only that the ministry is in the "early stages" of its review and "we will provide an update once defence counsel and their clients have been located and notifi ed and the cases have been fully reviewed." Th e association brief calls for a formal protocol to "thorough- ly" collect all information about past jury vetting in Ontario and says the results should be public, Boni tells Law Times. Th e brief also criticizes the attorney general's offi ce for at- tempting to play down the extent of jury vetting when it initially responded to the con- troversy last May. Th e ministry suggested the practice was limited to the cases in Simcoe County. It was subse- quently learned jury vetting also took place in Kingston, Toronto, and Th under Bay. "Our position is that as a re- sult, the government allowed a cloud of suspicion to descend upon the issue," Boni says, add- ing the government's approach has had a "corrosive impact" on public trust in the administra- tion of justice. Th e seriousness of improper jury vetting has also been empha- sized by the newly-established David Asper Centre for Consti- tutional Rights at the University of Toronto faculty of law. Th e centre also presented a brief to Cavoukian. It harshly criticized the prac- No, we don't really think of ourselves as superheroes (although, we do regularly appear just in time to save the day) E-discovery requires expertise, strategic understanding, diligence and a uniquely collaborative approach. Fortunately, we have access to the most talented litigation support experts through our broad network of industry leaders and our ever-expanding database of over 30,000 legal professionals. Keep your e-discovery requirements in-house by recruiting our e-discovery experts. For seamless integration with the shortest possible search time – whatever your needs … whether it be one expert, a team, direct hire, temporary or contract. Just call us. We'll be there! • Phone: (416) 363-7227 • Fax: (416) 363-6125 • kentlegal.com • tice, calling for a "public inquiry or independent investigation that fully explores the incidence of the violations" of Charter rights to privacy of the prospec- tive jurors. Th e brief, citing several Su- preme Court of Canada rul- ings, said the Crown attorneys appear to have asked police for background checks on all jurors, rather than probing those they had reason to believe may have provided false answers to juror questionnaires. "Instead of investigating only those who were suspected of submitting false questionnaires, the Crown chose to search all potential jurors," the centre's brief says. "Th us, the jurors' reasonable expectation of privacy in their police fi les and the unreasonable manner in which the searches were conducted lead to the con- clusion that their s. 8 rights were violated." "Th e impact of the alleged conduct on the integrity of past trials is clearly beyond the man- date of the Privacy Commission- er," the brief continues. It says there is a "critical need" for an independent inves- tigation or public inquiry that has a mandate broad enough to investigate all potential Charter violations in the jury vetting and to "restore confi dence in our criminal justice system." Th e centre only briefl y fo- cused on the eff ect of the prac- tice on rights of the accused, but noted while the Crown does not need to produce material that is clearly irrelevant, "it must dis- close if relevance is questionable. Any transgressions of this duty are considered 'a very serious breach of legal ethics.'" Th e brief was prepared by professor Lisa Austin, research assistant Kerri Lui, and Cheryl Milne, the centre's executive director. Milne said University of Toronto law students also contributed to research for the paper. Federal prosecutors have strict limits on the kind of infor- mation they are able to seek for jury selection, says Dan Brien, communications director with the Public Prosecution Service of Canada. Brien says they may only ask police to conduct criminal record checks to determine whether or not the juror has a conviction that disqualifi es jury service un- der Criminal Code s. 638(1)(c) — a conviction for which the ju- ror was sentenced to 12 months or more for which a pardon has not been received. Prosecutors in the territories may also ask victims and witness- es to review the jury list and pro- vide information about family or other personal relations between the juror and victims, witnesses, or the accused that could aff ect the juror's ability to be impartial, Brien tells Law Times. LT www.lawtimesnews.com

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