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 Sales Co-ordinator ......... Sandy Shutt ©2010 Thomson Reuters Canada Ltd. 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 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. sepTember 27, 2010 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guar- anteed. Contact Jacquie Clancy at: jclancy@ clbmedia.ca or Tel: 905-713-4392 • 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 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 Government should heed call for better web accessibility O nce again, Donna Jodhan finds herself facing off against government lawyers in her bid to improve the accessibility of govern- ment web sites. Jodhan, a blind Toronto resident, be- gan her battle in 2004 after she struggled with applying for a federal government job. She then took the matter to the Ca- nadian Human Rights Tribunal but, fol- lowing failed attempts to negotiate a so- lution with the government, decided to go to the Federal Court to argue her case on the basis of violations of the Charter of Rights and Freedoms. It's a long-running case, one that's beginning to defy logic as to why the government is fighting Jodhan on the issue. Officials counter that the government offered Jodhan help by phone, mail, and in person, all of which amount to reasonable accom- modation of her disability. While it may be true that other methods exist, the government has yet to prove that accommodating Jodhan fully to allow her to use its web sites would be an onerous burden. In fact, experts on the matter, including tech- nology lawyers, say it's relatively easy to fix the problems people with dis- abilities face in accessing government services online. In terms of visual impairment, what's key in general is making the text on a web site readable so blind people can hear the content in audio format. In the meantime, the government has been up- dating its online materials to make them more interactive, a move that will allow Canadians to access more of their ser- vices via the Internet. While extending them to people with disabilities requires the latest technology, it's hard to see how the government can argue against using it when other jurisdictions and private businesses have done so. Cost may be a factor, but we've yet to see any evidence that it would be excessive. The case comes as the Ontario gov- ernment has been considering the issue through its processes under the Acces- sibility for Ontarians With Disabili- ties Act. It's clear, then, that society is on a path to making the world more accessible through changes to every- thing from customer service standards to transportation practices. If we can move towards improving buses and streetcars on that issue, surely we can do so with web sites. In the end, it's going to be more ex- pensive to fix accessibility issues after the fact rather than incorporating them into ongoing changes to the govern- ment's online content. As a result, the government should drop its reluctance and heed Jodhan's call for improved ac- cessibility. As the online world grows in importance, there's no justification for leaving people with disabilities behind. — Glenn Kauth he criminal lawyer's worst nightmare is being gulled by a client and losing his or her good name. Consider Ontario lawyer T Ken Murray's predicament when serial killer Paul Bernardo sent him into his house to col- lect videotapes that an extensive police search had missed. Then there was the Lake Pleasant bodies case, in which New York lawyers Frank Ar- mani and Francis Belge checked out dump sites serial killer Rob- ert Garrow had disclosed to them. Belge even took photo- graphs and moved one victim's skull closer to her body. Murray was prosecuted for attempting to obstruct justice but was acquitted. Belge was indicted by a grand jury for in- terfering with burial rights and failing to give notice of death but was also ultimately acquit- ted. Many lawyers lauded Ar- mani and Belge for heroically protecting their client's confi- dences, but the public didn't, which meant their reputations and practices suffered. Luckily, not many of us will encounter serial killers and fall What do you do when a client lies to you? A Criminal prey to their instructions, but ethical issues arise daily in our work, often in seem- ingly innocuous situations. A very common one in crimi- nal practice is the employ- ment lie, which is frequently accompanied by a letter ap- pearing to be real. How would you handle the following scenarios? • That long-awaited employ- ment letter needed for an intermittent sentence looks a little odd. It's the date of the sentencing, so what do you do? The Crown has said it won't oppose an intermit- tent sentence accompanied by an employment letter. • The client will be diverted from jail on condition of do- ing community-service hours. But you can't reach the author of the letter. There's a time limit on the Crown's offer. • Prior to the bail hearing, your client told you about a recent job with some- one named Joe (last name unknown). But key infor- mation changed when the client testified. What sub- missions can you make? Mind By Rosalind Conway Questions 1 and 2 are very similar, but in the first scenario you have a feeling that the letter is a forgery. You have a duty not to mislead the court. Knowingly filing false evi- dence clearly violates the Rules of Professional Conduct, but we're not talking knowledge. We're really talking negligence. One lawyer told me that filing such a letter on the fly as he juggled dif- ferent courts resulted in a police investigation for obstructing jus- tice and an inquiry from the law society. He was never charged, but all of that would have been avoided by an adjournment to confirm the information. Once he took a proper look at the let- ter, he could see that part of it was photocopied. The second question raises a similar issue: can you give the note that purports to con- firm community service to the www.lawtimesnews.com Crown? Suppose you give it to the Crown with the proviso that you couldn't confirm it, but it later proves to have been forged. It's not a pretty situation. Every letter has to be checked. The mens rea for uttering a forged document is as little as reck- lessness. The commentary to Rule 2.02(5) states that a lawyer "should be on guard against be- coming the tool or dupe of an unscrupulous client." What about those garden- variety lies given to you by the client when you prepare for a bail hearing? The client may be planning on fooling the court or may be exaggerating in the cells in an attempt to impress you. In either situation, make no reference to the client's tes- timony about employment in your submissions because you don't believe it's true. It's easiest to advise all clients that all employment letters, character references, and other documents have to be checked so that no one has any nasty surprises and they understand that this is how you practise law. So what do you do with a false letter provided to you by the client? Litigation privilege attaches to the document, so it can be kept secret or even de- stroyed by counsel. When Armani was appoint- ed to represent Garrow in 1973, he wasn't even aware there was a written ethics code for New York lawyers, yet he said he would have handled the case in the same way if he had to do it again. That's OK for him, but personally, I wouldn't want the tsores (a Yiddish word for trou- ble, distress or problem). Who wants to be remem- bered as a chapter in an eth- ics text? If you are asked to do something that makes you feel uncomfortable and you can't find the answer in the Rules of Professional Conduct, don't do it. Get the client to change the instructions. Acting upon in- appropriate instructions, ten- dering the forged document or referring to the perjured testi- mony will only create problems for counsel. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway @gmail.com.

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