Law Times

September 22, 2008

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A.NEUMAN ASSOCIATES INC. McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com ckellar_LT_Jan14_08.indd 1 $3.55 • Vol. 19, No. 29 1/8/08 3:03:02 PM Inside This Issue 3 Women In Law 5 Groundbreaking Decision 9 Focus On Intellectual Property/Trademark Law Quote of the week "I think what you will see, and what's to be hoped, is better police education about how to obtain informed voluntary waivers." — Frank Addario, president Criminal Lawyers' Association See SCC, page 4 Covering Ontario's Legal Scene Call 416.223.5991 www.IFAccountant.com Investigative & Forensic Accounting Specialists Proven Expertise ntitled-6 1 September 22, 2008 Don't 'throw the baby out with the bath water' says Jamie Trimble, the OBA's new president. Trimble tells Law Times, "It would not OBA warns against abandoning articles T BY JEFFREY H. WAUGH Law Times he Ontario Bar Association is stand- ing firm on its position against the abolition of articling in this province, be in the public's interest nor in the interest of the lawyers to turn them out as licensed individuals without having a practical com- ponent of their education." As part of their response to the task force for licensing and accreditation at the Law Society of Upper Canada, the OBA conducted a survey of its own members to gauge reaction to the sug- gestion of abandoning the articling program. They surveyed two groups, based on prac- tice age — recent calls to the bar, and those who have been practising for over 10 years. Trimble, who also chaired the OBA's task force that prepared the response paper, says they expected to see some variation between the two groups, but the results were similar. "The overwhelming decision was to keep articling," he says. Over 73 per cent of recent calls (those with 10 years or less practice experience) completely agreed that articling was an es- sential part of their training for the practice of law. Eighty per cent of those practising for more than 10 years shared the same view. Trimble says his own informal polling and con- versations with colleagues revealed the same result. "There are certain things that can be taught in a practical setting, in an apprenticeship-type setting, that you just cannot get in the classroom." Other organizations are taking a similar stance 'The overwhelming decision was to keep articling,' says Jamie Trimble about a recent Ontario Bar Association poll on the subject. against the idea of extinguishing articling. Peter J. E. Cronyn, president of The Advocates' Society, confirms their board debated the issue ear- lier in the year. "We were unanimous in conclud- ing that it would be a mistake to abolish articles, both for the students and the public," he says. The possibility of increased candidates and a shortage of articling positions "cannot be a jus- tification to do away with such a crucial step in the process of becoming a lawyer," says Cronyn. New lawyers are primarily trained in three ways — law school education, the skills and professional responsibility program adminis- tered by the law society, and a 10-month arti- cling period. The gap created by the removal of one of these components would need to be filled in some other way, say lawyers. Cronyn suggests that an expectation for universities to fill the void is unwarranted. "The law schools over the years have made it clear that they do not want their curricula to be shaped by the regulating bodies," says Cronyn. He adds that the diminishing nature of the bar course leaves little room for increased training. "Articling is the only remaining op- portunity for those who wish to become law- yers to learn what it means to practise law." The County and District Law Presi- dents' Association has also filed a report in response to the law society's call for consul- tations. In their report they state, "There is no substitute for the practical learning that is achieved inside a law firm." One criticism of the articling process is that students who work in firms with spe- cialized practice areas lack the well-rounded quality. But Trimble says there are skills all articling students will acquire, no matter where they choose to complete their term. "There are generic skills you learn; the busi- ness of practising law, interviewing people, client management skills, time management skills, risk management skills, insurance issues, professional responsibility issues," says Trimble. See Hybrid, page 2 singled out by a Superior Court judge recently as a reason why it is not possible to fully embrace the open courts principle. "We have very limited tools electronically," said an exasperated Justice Arthur Gans. "We are truly operating in the 19th century," the judge noted at the beginning of a civil trial stemming from a lawsuit filed by three veteran Toronto po- lice officers against the Ministry of the Attorney General and the Toronto Police Services Board. The judge said he did not see how a videotaped KGB statement made in 2000 by a confidential in- Ontario courts operating in '19th century' A BY SHANNON KARI For Law Times lack of technology and electronics available in the Ontario courts were formant known as CI-186, which is central to the civil trial, could be played unless the court was sealed. Tony Wong, a lawyer at Blake Cassels & Graydon LLP who was representing the Toronto Star and the CBC, suggested various mea- sures such as a screen in the court- room, turning video monitors away from the public gallery, or placing the media in a separate room with an audio/video feed to protect the identity of the informant. Ted Ayers, who represents the TPLawTimes1CBlue fin 11/2/06 3:09 PM Page 3 Toronto Police Services Board, in- dicated that this could be a problem because someone from the "com- munity" of CI-186 might identify the informant from the sound of his voice. "That is what makes this so difficult," said Ayers, a lawyer at Borden Ladner Gervais LLP. "Do you have the electronics to make that happen?" Gans asked Wong when presented with the media options. The judge also suggested the onus was on the media to take steps to try to obtain the KGB statement from the parties in the civil suit and edit it, if necessary, to protect the identity of the in- formant (notice to the media of the motion to seal the court was provided only a few days before the start of the trial). "We just don't have the electron- ics," said Gans about the set-up in the 393 University Ave. courthouse in downtown Toronto. As a result, he ruled that the KGB statement would be played in camera. The trial in the $4.5 million mali- cious prosecution lawsuit filed by of- ficers Rick Franklin, Wayne Frye and Gordon Ramsay (now retired) began 1/8/08 3:28:10 PM on Sept.8, more than six years after the action was initiated. The officers filed the lawsuit after criminal charges, alleging they mis- appropriated a total of $1,100 from the "fink fund" used to pay infor- mants were withdrawn in Novem- ber 2001 at the preliminary inquiry. The charges were withdrawn because the Crown indicated it had concerns about the reliabil- ity of CI-186, who was the main witness against the officers. Central to the civil suit is a June 2000 letter sent by CI-186 through his doctor, to Toronto police internal affairs, purporting to recant his KGB statement. The letter was not formally disclosed by the Crown for several months. According to the state- ment of defence in the civil suit, See Exasperated, page 2 A HOME WITH A DREAM KITCHEN. Too bad it hasn't been paid for. 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