Law Times

January 26, 2009

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TitlePLUS title insurance and you, together we have all the tools TitlePLUS title insurance and you, together we have all the tools. McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com $3.55 • Vol. 20, No. 3 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM Inside This Issue 3 Rumpole's Creator Dies 7 Inside Queen's Park 9 Focus On Forensics/ Private Investigators Quote of the week "If you're in the private sector, although people may not go to jail on the basis of your inves- tigation, they could lose their livelihood or lose their stand- ing in the community. So, you can still be liable for millions of dollars for a negligent investi- gation. What's negligence is in the eye of the beholder." — David Debenham, lawyer Lang Michener LLP See Beware, page 13 Covering Ontario's Legal Scene titleplus.ca tlePlus_LT_Jan26_09.indd 1 January 26, 2009 Defence to get police discipline and criminal records and criminal records, meaning counsel no longer need to rely on serendipity to prompt such disclosure. The court ruled that "records relating to findings of serious misconduct by police of- ficers involved in the investigation against the accused properly fall within the scope of the 'first-party' disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably im- pact on the case against the accused." The decision goes on to state, "The Crown, in turn, must provide disclosure to the ac- cused in accordance with its obligations un- der Stinchcombe. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first-party disclosure package is governed by the O'Connor regime for third-party production." Marie Henein, who argued the case as am- SCC issues key disclosure ruling T BY ROBERT TODD Law Times he Supreme Court of Canada has is- sued long-overdue guidelines for the release of relevant police discipline McNeil, who was convicted of various drug- related charges in May 2004 at the Ontario Court of Justice. After his conviction but be- fore sentencing, McNeil went to the Court of Appeal to seek documents related to drug-re- lated misconduct by his arresting officer, who later pleaded guilty to a criminal charge. Mc- Neil planned to use the material to prepare an application to file fresh evidence on appeal. The appeal court ruled there was no expectation of privacy for the criminal in- vestigation files, and ordered the Attorney General of Ontario and Barrie Police Service to hand over the records to the federal pros- ecutor handling McNeil's case. Based on the new evidence and submissions, the appeal court in September 2007 overturned Mc- Neil's convictions and ordered a new trial. The Crown decided not to re-prosecute McNeil, and while the Supreme Court's de- cision no longer affected him, the court ap- pointed Henein and Jordan Glick to act as amicus curiae. In its decision, the top court noted that, icus curiae, says the decision is vital, as counsel previously had to bring a third-party records ap- plication under such circumstances. "Often defence don't know the history, we don't have access to the records, and so unless it's really reported in the media, or you get infor- mation anecdotally, you will not be able to get access to that information," she says. "I think underpinning it is the reality that, if you've got an officer whose integrity may be Marie Henein says the SCC ruling in McNeil is vital because counsel previously had to bring third-party records applications to obtain police disciplinary and criminal records. compromised in a way that impacts on investi- gations, everybody needs to know about that. That is something that should be aired, it's not something that should be protected." The court's decision comes in the case of R. v. McNeil, a matter involving Lawrence based on Stinchcombe, relevant records out- lining serious misconduct by officers involved in an investigation of an accused should be included by police in first-party disclosure packages provided to the Crown. "For the purposes of fulfilling this cor- ollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party," said the court. "Rather, it acts on the same first-party footing as the Crown." The court noted that the courts must, when considering the production of records under ly a month now, and they tell Law Times that clients have welcomed the new measures aimed at crack- ing down on money laundering. "We had a lot of clients proac- Clients welcome new identification standards O BY ROBERT TODD Law Times ntario lawyers have been held to strict new identifi- cation standards for near- Meanwhile, it appears that the law society will introduce amend- ments this month aimed at clarify- ing the rules. The new requirements, which came into force Dec. 31, 2008, call on lawyers to obtain a client's full name, home address, home phone number, occupation, and, if applicable, business address and business telephone number when or non-private company; and the name, position, and contact infor- mation of any individuals autho- rized to give instructions on the matter being dealt with. New standards also were put in place for verification during finan- cial transactions. The regulations, which also ap- ply to paralegals, are based on a model rule developed by the Fed- There are potential amendments being proposed, that I believe are going before Convocation from the perspective of Ontario on the 29th of January. tively get in touch with us and say, 'Okay, tell us what you need, we'll give you everything so you have it,'" says Blake Cassels & Graydon LLP lawyer Jacqueline Shinfield. "So the response has been quite favourable." opening an account. When deal- ing with organizations, lawyers must get incorporation numbers and place of issue of that number; details on the organization's activi- ties, unless the organization is a financial institution, public body, eration of Law Societies of Canada. Law societies across the country are now implementing the model rule to create a national standard. "We have hosted a teleseminar and have been pushing out other educational material to lawyers," 1/20/09 12:14:52 PM See Ferguson, page 2 says law society communications director Roy Thomas. "But it's really too early yet to know more than that, in terms of how it's go- ing or how it's going to go." Shinfield, who specializes in anti-money laundering legislation, is a member of a committee made up of lawyers from Toronto firms that has met with the law society on the regulations. The committee hoped to "get certain amendments to the rules to make them more properly reflect what's required, and make them operate in a more practical fashion," she says. She's also the go-to person for her firm's implementation of the rules. Blakes has amended its new- client forms, sent a bulletin to its existing clients, and conducted educational sessions with lawyers. See Effort, page 5 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 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM

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