Law Times

December 7, 2009

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Follow McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com $3.55 • Vol. 20, No. 39 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM Inside This Issue 4 Bar Liability 6 S Cadillac Treatment 8 Focus On ADR/Mediation Quote of the week "Just like an athlete who's out of shape and isn't sure about what she's doing likely projects that she's going to lose, a lawyer who looks introverted and doesn't have her fi ll-in-the-blanks mental- ity in gear doesn't breed confi dence in a client." — Shaunna Taylor, sport psychologist, Ottawa High Performance Centre, See Stressed, page 5 Cracks in boycott 'Withholding services' not the way to get more funding BY TIM SHUFELT Law Times mall cracks are emerging in the solidarity of the province's criminal defence bar just as boycotting lawyers prepare to sit down with government offi cials for negotiations. Clay Powell, a prominent London criminal lawyer, has agreed to defend an accused on a legal aid certifi cate in a high-profi le murder trial in Kitch- ener, Ont. Powell says the boycott of murder and guns-and-gangs cases over inad- equate legal aid funding abandons those accused of the most serious crimes. "Th ey're sitting in jail charged with murder, and you don't have a lawyer? I suppose that's a disservice," Powell says. "I don't think that withholding services is the way to get more money paid to lawyers." He likens the boycott to a refusal by a 'It's one case, it's one lawyer. Obviously, Mr. Powell is a respected, senior member of the criminal bar. But he obviously marches to the beat of his own drum,' says Paul Burstein. judge to increase their tariff s to $170 per hour. However, Powell realizes that undermin- brain surgeon to operate for rates paid by the province. So he accepted an off er from Legal Aid On- tario to represent one of three men accused in the February shooting death of Nadia Gehl. Powell says he wasn't initially aware he was wading into such a contentious political situ- ation, as the Gehl trial has become a staging ground for the fi ght for enhanced legal aid fees. Current counsel for the accused have asked a ing the boycott won't win him any favour among his colleagues. "I'm very widely disliked for my stance." Dissenting voices have been few since the outset of the boycott. In fact, support for expanding the prov- incewide action has been overwhelming, ac- cording to the Criminal Lawyers' Association, which was on the verge of including addition- al off ences in the boycott when the province off ered to hold funding discussions. Powell's move does little to aff ect that united front, says Paul Burstein, incoming CLA president. "It's one case, it's one lawyer. Obvi- ously, Mr. Powell is a respected, senior member of the criminal bar. But he obviously marches to the beat of his own drum." Burstein notes LAO has been call- ing hundreds of lawyers whose names don't appear on the list of boycott sup- porters before fi nding someone to ac- cept a certifi cate for a serious case. And he points to Powell's admission that one reason the London lawyer can aff ord to accept cases at legal aid rates is because he operates out of his own home with no staffi ng or overhead costs. Burstein also explains that two experienced Crown attorneys, who have full administrative resources at their disposal, will be prosecuting the case. Compare that to the eff orts of a single defence lawyer working out of a home offi ce, he says. "I question anyone's ability to help their client make full answer and defence in a complex murder case without some level of supporting cast. I think it would very likely lead to pursuing an appeal on that basis." A second defence lawyer, Avrum Flisfed- er, who has no experience on murder trials, has fi led an affi davit off ering his services for the trial, Burstein says. See Lawyer, page 2 Litigators alarmed at new rules on Crown liability C BY TIM SHUFELT Law Times ivil litigators are sound- ing the alarm about a provincial bill they say will fundamentally and unfairly change the rules for malicious prosecution claims. Th e good government act, cur- rently in its third reading in the legislature, transfers liability from individual Crown attorneys to the attorney general for such suits. Th e change aims to reduce the TitlePlus_LT_Mar9_09 2/27/09 11:23 AM Page 1 bill, however, are a few provisions damage caused by frivolous accu- sations against individual Crown prosecutors and follows recom- mendations from the Uniform Law Conference of Canada. Embedded in the minutiae of the that give the attorney general pro- cedural advantages and further im- munize prosecutors from account- ability, says Louis Sokolov of Sack Goldblatt Mitchell LLP. For example, the bill removes the right to jury trials and allows the attorney general to withhold information and refuse to answer questions on the basis of public interest. "Th ese are very, very serious changes to the law that have been in place for generations," Sokolov says. "Crown attorneys wield extraor- dinary and immense power in the criminal justice system. One would hope that with this power comes a signifi cant level of accountability." Until Nelles v. Ontario, Crown attorneys enjoyed absolute immunity from civil claims. Th e Supreme Court of Canada's 1989 decision in Nelles ultimately established a complex tort that paved the way for lawsuits if the prosecution was characterized as both malicious and lacking reason- able and probable cause. Ever since, claims for prosecu- torial acts have risen dramatical- ly, according to Paul Cavalluzzo, who has acted on behalf of the Canadian Association of Crown Counsel. In 2006 alone, there were 107 malicious prosecution lawsuits in Ontario, which has about 800 Crown attorneys in total, he says. In a 2007 report, the law con- ference recommended removing the names of Crown attorneys Together we have all the tools To ensure your clients get the most comprehensive coverage in one title insurance policy, take a look at the TitlePLUS Program , your Bar-related real estate partner! 1 ® PROTECTION AS GOOD AS IT GETS 1-800-410-1013 ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS and LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. titleplus.ca 1 Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Contact LAWPRO for brokers in Saskatchewan, Manitoba, Alberta and Québec. TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. ® Covering Ontario's Legal Scene on www.twitter.com/lawtimes December 7, 2009 as defendants from those claims altogether. "Even in the absence of a fi nd- ing of liability, the mere accusa- tion of malicious prosecution can be demoralizing to both the individual named and to Crowns in general and be perceived as an impediment to a judicial appoint- ment," the report said. "Making the attorney general solely liable would improve mo- rale amongst Crowns and reduce the exposure they feel when per- sonally named as a defendant." Th e pertinent section of the good government act, however, incorporates elements of a separate piece of legislation, the Proceed- ings Against the Crown Act, to im- pose limitations on discovery and See Prosecutors, page 2 www.lawtimesnews.com

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