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December 14, 2009

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A. NEUMAN ASSOCIATES INC. Forensic Accounting & Damage Quantifi cation Specialists Turn Crisis into Opportunity (416) 223-5991 $3.55 • Vol. 20, No. 40 ntitled-3 1 9/28/09 12:30:15 PM 'I'm all by myself,' youngest bencher declares LSUC votes to end life terms BY TIM SHUFELT Law Times a move detractors are calling a threat to the body's independence. In a heated and fractious Convocation debate this month, benchers approved sweeping changes to the body's governance structure designed to increase transparency and engage a disconnected bar. However, the changes will require ask- ing the provincial government to make leg- islative amendments, a dangerous prospect that could expose the LSUC to unintended consequences, several benchers said. Clayton Ruby noted a prevailing distaste for self-governance and warned a packed room not to awaken a sleeping giant. "Our independence is always at risk, and we M are the guardians of that independence," Ruby said. "It is vitally important that we don't take steps to put it at risk. If the bar does not have that independence, we are nothing." On the other hand, those in favour of the reforms characterized the law society as bloat- ed and dysfunctional. Induce change now or risk government intervention, they countered before voting on a set of recommendations from the LSUC's governance task force. In doing so, Convocation introduced 12- year term limits to end life-bencher status for those having served four terms and ter- minated ex-offi cio bencher status for former treasurers and attorneys general. Term limits will help bridge the gap between the law society and the lawyers it governs, says Thomas Heintzman. Th e reforms aim to reduce the size of Con- vocation, give electoral rookies a better shot at becoming benchers, improve voter turnout for bencher elections, and inject some youth into what's seen as an "old boys' club," said Th omas Heintzman, chairman of the task force. ajor changes are afoot to the way the Law Society of Upper Canada governs the profession, "Term limits will overcome or help to overcome the detachment that we see be- tween the governed and the governors," Heintzman said. "Renewal, new ideas, rejuvenation are essential for this body to maintain the con- fi dence of those it governs." Th e reforms come after more than three years of studies and consultations with law- yers in Ontario. Th e sheer size of Convocation was a near unanimous complaint, Heintzman said. With its unusual system of granting life-bencher and ex-offi cio bencher status, Convocation has ballooned to 83 mem- bers, including 32 unelected benchers. Under the current system, by the end of 2011, membership will grow to 91, including 41 ex-offi cio benchers, a larger contingent than the 40 chosen by election, Heintzman explained. "Th at is not a suitable situation for the effi cient governance of the profession." He added that lawyers in the province don't want to be represented by ex-offi cio benchers who tend not to actively exercise their rights to participate. "Th ey expect that people who will be on this tribunal will be elected and appointed and that they will be active, they will be engaged, they will participate," he said. However, not all benchers favoured the shift towards youth over experience. "Th ere are certain things we always say, like 'fresh blood is good,'" said Alan Gold, an elected bencher and Toronto criminal lawyer. See AG, page 3 justice system in Ontario moves a little closer to making amends for one of its darker periods. But the same conditions that led courts to criminalize the inno- cent remain today, according to the country's foremost advocate for the wrongfully convicted. James Lockyer says the "aura of infallibility" around Crown expert witnesses still lingers, cre- ating the kinds of circumstances that unjustly sent his client to jail for the death of her son. "Crown experts still are al- lowed to proff er opinions that Concerns over experts remain despite acquittal W BY TIM SHUFELT Law Times ith another overturned conviction for the death of a child, the shouldn't see the light of day." Lockyer was at the Ontario Court of Appeal last week as his client, Sherry Sherrett-Robin- son, was acquitted of infanticide almost 14 years after she found her four-month old son, Joshua, dead in his playpen. In the face of damning autop- sy fi ndings reported by disgraced forensic pathologist Charles Smith, the Trenton mother pleaded guilty to infanticide. She spent a year in jail. Smith testifi ed in Sherrett- Robinson's preliminary hearing that he found four suspicious injuries in the autopsy that led him to conclude that Joshua had been intentionally asphyxiated. However, after the boy's body was exhumed and re-examined, all of the injuries were determined to be either consistent with acciden- tal asphyxia or caused by Smith himself during the autopsy. Th e court declared that Sher- rett-Robinson was the victim of a miscarriage of justice. Th e Crown agreed to an acquittal. Lockyer says the entire case against his client rested on er- roneous evidence manufactured by "a man who thought he had a mission." Sherrett-Robinson's plight is the perfect example of the mis- guided blind faith and absolute deference courts can grant expert witnesses, he adds. "Certainly, if I had been rep- resenting her back in 1996, I would have been worried she would have been convicted based Breaking Records 6 Take a Student 9 Focus On Criminal Law Quote of the week "But the Supreme Court also made it clear that to fi nd that there is malice on the part of the Crown is going to require an awful lot to show that the Crown willfully perverted or abused the offi ce of the at- torney general, which is very strong language." — Peter Doody, partner at Borden Ladner Gervais LLP See Court, page 13 Covering Ontario's Legal Scene TitlePLUS title insurance and you, together we have all the tools TitlePLUS title insurance and you, together we have all the tools. December 14, 2009 tlePlus_LT_Jan26_09.indd 1 1/20/09 12:14:52 PM Inside This Issue 5 on Smith's evidence." Despite Court of Appeal Jus- tice Stephen Goudge's inquiry into Ontario's child forensic pathology system and the reforms and rem- edies announced by the provincial government in response, courts still give Crown experts unwarranted credibility, Lockyer says. "I wouldn't say it's remarkably diff erent." Ironically, any new skepticism of scientifi c testimony introduced into the system seems to be ap- plied more to experts called by the defence than those called by the Crown, Lockyer adds. Others, too, identify dispari- ties in accessing expert witnesses as a big problem. John Struthers, a Toronto See Victims, page 3 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 5/29/08 1:05:49 PM Click here to subscribe today to LAW TIMES

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