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June 1, 2015

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Questions continue over policy on police who lie By Shannon Kari Law Times T he Ontario Ministry of the Attorney General says it doesn't know if any police have been charged crimi- nally since it brought in a new policy in 2012 to deal with judicial findings that an officer has lied in court. It also says that senior officials within the ministry, including assis- tant deputy attorney general James Cornish, wouldn't necessarily know if an officer has been charged as a result of a court finding about his or her testimony. The disclosure that the attor- ney general doesn't keep track of this information was in re- sponse to a number of questions submitted by Law Times. The policy directive, contained in a memo from Cornish to all provincial Crown attorneys in the fall of 2012, requires trial Crowns to forward details to a superior if a judge has found an officer has been "deliberately untruthful" or there's reasonable evidence of lying. From there, the file could be forwarded to a regional direc- tor within the Crown's office and then to police if there are grounds for further investigation. A senior official in the minis- try's Crown law office told the To- ronto Star in October 2012 that it would track cases it forwarded to police as part of the new policy. It's unclear, however, what the ministry has done to track cases. "The ministry does not track mat- ters in the manner you requested," said ministry spokesman Brendan Crawley. "The ministry keeps statistics according to the specific Criminal Code offence (eg. perjury or ob- struct justice). But the statistics do not speak to the circumstances of each case or the occupation of the accused," he noted. The ministry has a justice pros- ecutions unit within the Crown law office at its head office in Toronto. This unit normally prosecutes cases where criminal charges have been laid against criminal justice system participants such as police or law- yers. Two Crown attorneys within the unit are currently handling the CANADIAN LAWYERS MOST INFLUENTIAL TOP THE OS OS OST ST ST OST MO TOP TOP TOP OP OP T THE THE THE TH THE THE T VOTE NOW Who do you think are the most influential law yers in Canada? Vote in Canadian Lawyer's TOP 25 MOST INFLUENTIAL LAWYERS IN CANADA poll. VOTING IS OPEN UNTIL JUNE 9 TH Visit WWW.CANADIANLAWYERMAG.COM for details Untitled-1 1 2015-05-20 2:38 PM Carriage decision fails to provide expected guidance: lawyers By Marg. BruineMan For Law Times new Divisional Court ruling up- holding an earlier decision grant- ing carriage to a group of law firms in the Barrick Gold Corp. class ac- tion has failed to provide the guid- ance many had hoped for, some lawyers say. While Justice Ian Nordheimer had raised significant doubts about the carriage ruling when he granted leave to appeal in December, some of the lawyers involved say the Divisional Court ruling on the issue last month failed to address the concerns. "They paid no regard to it," says Koskie Minsky LLP's Garth Myers. "They had opportunity to create some law that would be extremely helpful to the class ac- tion bar" and gave up that chance, adds Myers, an associate at one of the firms on the losing side of the carriage battle. On May 21, the Divisional Court upheld Jus- tice Edward Belobaba's carriage decision from early December 2014. The ruling included a statement that reviewing courts should defer to such decisions in the absence of an error of law. The decision dealt with a bid by a group of law firms led by Toronto's Rochon Genova LLP and including Rosen Naster LLP and the Merchant Law Group LLP in competition with another group of class action lawyers led by Koskie Minsky and including Sutts Strosberg LLP, Siskinds LLP, and Groia & Co. to represent shareholders in a proposed class action against Barrick Gold and four of its executives. In the latest ruling, a three-member panel of the Divisional Court affirmed December's de- cision by Belobaba to grant the Rochon Genova group carriage based on the many claims it had advanced and the relative state of preparation. The Koskie Minsky group had advanced a sin- gle claim arguing for a leaner approach. In the decision last month, Justice Alison Harvison Young noted the broad discretion granted to judges and said the reviewing courts should defer to their decisions in the absence an error of law. She also found the primary con- cern is to determine which group is most likely to advance the interests of the class. "The appellants argue that although the motion judge articulated the correct factors, he failed to apply them such that he did err in law and/or principle, and also that he misappre- hended the evidence or record so that his find- ings also fell into palpable and overriding er- ror. I disagree. In my view, [the Koskie Minsky group's] submissions amount to no more than an attempt to convince this court to reweigh the factors applied by the motion judge and do not demonstrate any reversible error in the exer- cise of his discretion to determine which group should obtain carriage of these class proceed- ings," wrote Harvison Young for the panel. After announcing two years ago that Chil- ean courts had suspended its Pascua-Lama mining project, Barrick's share price dropped. That development prompted several class Cautionary note Appeal court leery of commercial list informality P4 privacy intrusions Canada downplays metadata snooping P6 FoCuS on Criminal Law P8 See Lack, page 5 See Lawyer, page 5 PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 18 June 1, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES A 'A message has been sent that police are above oversight,' says Heather Pringle. Law society honours An enthusiastic Bencher Beth Symes presented the law society medal to lawyer Susan Eng, left, at the Law Society of Upper Canada last week. Eng, a vice president of CARP Canada, received the medal for her advocacy work on a range of issues. She was among eight lawyers honoured with the medal last week along with the recipients of the William J. Simpson distinguished paralegal, Laura Legge, and Lincoln Alexander awards. Photo: Robin Kuniski

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