Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. may 17, 2010 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Time to change police practices in SIU probes Provincial Police raises many impor- tant issues. Last week, attention turned to T Scott's bid, along with the families of two men shot by police officers, to challenge police practices in SIU in- vestigations in the Ontario Superior Court. In particular, they're concerned about officers, following an incident involving police in which someone is killed or injured, having their notes vetted by a police union lawyer. At the same time, they're raising red flags about the same lawyer representing all of the officers involved in the investi- gation, including both witnesses and subject officers. he legal dispute between Spe- cial Investigations Unit direc- tor Ian Scott and the Ontario The issue is one of due process. Does it taint the investigation to have a lawyer approve the notes? Does hav- ing the same lawyer deal with wit- nesses and the subject officer allow for collusion between them? It's a complicated matter. On the one hand, it seems fairly obvious that separating witnesses from the person being investigated is key to maintain- ing the integrity of the investigation, an issue police are always quick to raise in any criminal matter they themselves are dealing with involving civilians. At the same time, given the importance of providing timely and untainted notes in contentious investigations, concerns about a lawyer approving them first are valid. Police advocates raise Charter of Rights and Freedoms arguments about officers having a right to counsel. In addition, a Toronto Star report last week noted two other defences. First, having separate lawyers for all officers involved in an investigation would be too expensive. Second, a lawyer for the OPP said that if he noted any conflict in the stories between officers or got any hint that they are colluding, he would call in another lawyer to get involved. It's a reasonable case to make, espe- cially given concerns about the costs of policing in this province. But in many ways, that argument makes the point Scott and the families are raising: the potential for collusion does exist, and if there's money for separate lawyers in cases where such behaviour is evident, there likely are resources for them more generally. Overall, because it's not obvious that the Charter guarantees witnesses the right to counsel, police should back off on this issue. Whatever the tech- nicalities they may raise and the valid arguments they may have, the idea of a common lawyer vetting notes for both witnesses and subject officers doesn't look good. It's a very different way of doing things than the procedures po- lice follow in their own criminal cases, and given our system's concern with maintaining both the substance of and the appearance of serving the ends of justice, it's time for things to change regardless of what the court rules in the case at hand. — Glenn Kauth Let's address miscarriages of justice in civil court Expert database, disclosure requirements among remedies for wrongful findings E very year, we find more examples of convictions. Late last year, for example, Kyle Unger joined a long list of victims of miscarriages of justice. A Manitoba judge ac- quitted him after hearing that DNA evidence couldn't link a hair found at the murder scene to him. The case also involved a false confession obtained through the use of the Mr. Big technique. This is an odious scam where police draw sus- pects into lucrative criminal ac- tivity and then encourage them to confess to a murder or other serious crime to satisfy their boss of their trustworthiness. With organizations such as the Association in Defence of the Wrongly Convicted and the innocence project doing their work along with the Goudge inquiry's look at the wrongdo- ings of pathologist Dr. Charles Smith, we've learned a lot about the many wrongful convictions that bring discredit to our crim- inal justice system. Much of wrongful the discredit is due to false or overzealous expert testimony. Thus far, we've focused on wrongful convictions. I'm not aware of any efforts to exam- ine the world of civil litigation. But let's not kid ourselves. If there have been many miscar- riages of justice in the crimi- nal court system due to false or overzealous expert testimony, what makes anybody think there haven't been even more injustices on the civil side? After all, the standard of proof in the civil justice system is much lower than beyond a reasonable doubt. Logic tells me that there must be many more problems in the civil justice system as compared to the criminal courts. Maybe we shouldn't care about miscarriages of justice on the civil side. After all, nobody ends up in jail due to mistakes in civil cases. But such errors can ruin lives. A wrongful finding of liability can lead to bankruptcy, ruined marriages, delayed re- tirement, and severe psycho- logical harm. It can see children Social Justice By Alan Shanoff wrongfully removed from a par- ent. Conversely, the wrongful dismissal of a civil action can lead to catastrophically injured people living out their lives in relative poverty or with a substantially di- minished quality of life. There's no magic answer to this vexing problem. We must have some finality and certain- ty in civil disputes. We can't expect people to live with the threat of a lawsuit hanging over their heads indefinitely. Bar- ring fraud, we shouldn't allow a civil judgment to come un- der attack after the conclusion of the appeal process. But we can take steps to improve the quality of our court system in order to reduce the incidence of miscarriages of justice. Since expert witness testi- www.lawtimesnews.com mony is a common factor in many wrongful criminal convictions, it seems logical that it's also a large contribu- tor to miscarriages of justice in the civil system. So a good start would involve a massive change to procedures involv- ing expert witnesses. While I understand that changes to the Rules of Civil Procedure are al- ready in place, I fear they don't go far enough. We must do even more to eliminate the hired-gun men- tality of expert witnesses. Judges must become better gatekeep- ers, for example, while lawyers should have more training in cross-examining expert witness- es. Experts must be confined to give testimony only within their sphere of expertise. But that's not enough. Past experience tells us we can't rely on the good-faith efforts of lawyers and judges. We need to make their tasks easier. All previ- ous adverse comments, judicial findings, and disciplinary pro- ceedings concerning the experts must be available to the other side and the court in addition to the fees paid to them along with all communications and docu- ments exchanged with the side that hired them. The other side should also have access to a list of all previous cases in which the experts have testified or provided a report. I'd go so far as to require the existence of an expert witness database that would contain ref- erences to every case in which someone has testified. Bluntly put, we must make it as easy as possible to limit or discredit expert witnesses and bar them from becoming ad- vocates. By avoiding false and overzealous expert testimony, we'll go a long way towards curbing miscarriages in civil litigation. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e- mail address is ashanoff@gmail. com.

• Cover
• Alternative Paths
• Civil Injustice
• Focus On Running Your Practice