Law Times

June 15, 2015

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Page 2 June 15, 2015 • Law Times NEWS the jury had used Google to find informa- tion about the case that hadn't come up in court. Soon after, private investigators started digging into the alleged use of vari- ous types of extrinsic information in the case and the appeal followed. On behalf of the panel, Justice Gladys Pardu wrote: "Here I am not persuaded that there is a reasonable possibility that the verdict was affected by the extrinsic information, that the trial was rendered unfair by the juror conduct or that the conviction is unsafe." While Moustacalis doubts jurors' use of the Internet or other sources to find out information about the case is or threatens to be a serious problem, he concedes that as things stand — with jurors forbidden by law from speaking openly about jury pro- ceedings — there's no way to know for sure. Graham Clark, a Toronto-based criminal lawyer, applauds the idea of amending Canada's strict requirement of juror silence. "I would support that," he says. "I'm not sure the benefits [of the cur- rent rules] outweigh the costs," he adds. "The costs of what we don't get to find out are too high. " Like Moustacalis, he believes most ju- rors follow the judge's instructions. "I've noticed juries to be generally quite consci- entious about the process," he says. Iain MacKinnon, a lawyer with Chitiz Pathak LLP who represented a number of media outlets in a fight to lift a publication ban in Farinacci, notes Pardu made a point of mentioning the penalties the court could impose on jurors who research the case. If the public was more aware of the possibility of such harsh penalties, it could serve as a deterrent, he says. MacKinnon also says he has a lot of con- fidence in jurors to make the right decision even if they're aware of information not presented in court. "Just because you know something you're not supposed to doesn't mean the entire criminal trial is tainted. Jurors are very well capable of disabusing themselves of information that is not rel- evant to the trial or not in evidence." LT The wait is almost over. Soon we'll be adding our personal injury offering to Practical Law Canada. Practical, up-to-date content designed for the personal injury and insurance defence lawyers. Watch for it. Learn more at IT'S PRACTICALLY HERE COMING SOON – PRACTICAL LAW CANADA PERSONAL INJURY Continued from page 1 Silence requirement questioned of having to pay for two residences regard- less of whether the victim is under a real threat or not. "The pendulum has swung too far," says Adler. "The concept of zero tolerance is ad- mirable, but that presumes that everyone who makes a complaint is not only telling the truth 100 per cent of the time but is perceiving it properly and doesn't have any motivation to lie. The way the current bail works just hurts everybody." Instead, Adler says, the system should make a sharper differentiation between serious incidents where there are "ongo- ing abusive issues" and cases involving first-time offenders dealing with less se- rious incidents such as pushes, shoves, and "so-called threats." Family lawyer Murray Maltz agrees with Adler that the pendulum has swung too far in the family law sphere as well. "Despite the idea that it is an allegation that the individual has committed an assault, in family law purposes they will err on the side of caution in many cases . . . to ensure that he is removed from the house and it certainly plays a role in cases of custody and access," he says. "You have to have zero tol- erance . . . but in many many cases it is used to obtain financial advantage or advantage concerning children in the family courts." Adler's views, however, meet with strong disagreement on the part of at least one ad- vocate for victims. "None of these things are true in my experience," says Mary Lou Fassel, director of legal services at the Bar- bra Schlifer Commemorative Clinic that provides help to women who have been victims of domestic violence. Family violence has indeed become a political issue, says Fassel, due to the need to better protect women and children from harm. Fassel says it's simply not true that police called to the scene of an alleged do- mestic violence offence don't listen to the alleged perpetrator. "Most of the time, our clients — and we do have a particular client group who come to us for assistance when they're having problems in the criminal justice system — their experience gener- ally is that the police don't want to listen to them, that they speak with the alleged abuser, they do hear his side of the story, and quite often they don't lay charges at all. So my client group would have the exact opposite experience." When police arrest someone over an a lleged incident of domestic violence, she says, they usually do so with good reason. And the system, she adds, already differen- tiates between very serious and less serious cases. For example, in cases where the de- fendant has a criminal record or has alleg- edly assaulted the victim with a weapon, the court may not grant bail. But for those who don't fall into that category, it will generally grant bail with the defendant re- quired to stay away from the alleged victim. Police use tools to assess the likeli- hood of the accused committing further violence and the risk, according to Fas- sel, covers much more than the issue of defendants simply wanting to kill their spouse. "In the vast majority of cases, there isn't going to be any risk of lethality. That's probably true . . . but there could be some other very serious risks of harm, including harm to kids," she says. The system, according to Fassel, also contains generous allowances for spous- es who want to reconcile with each other and victims who decide they don't want to have the defendant separated from the family. "The defendant can always bring a vari- ation application for bail and if his partner really believes that the charges by the police were unjust or misguided or heavy-handed, she can always appear at a bail hearing and give that evidence," says Fassel. "Generally speaking, those cases aren't going to result in charges by the police," she adds. "But if they do . . . in those kinds of situations, in my mind, there'd be no way that a prosecutor would persist in a vigorous prosecution." Fassel also sits on the community ad- visory committee for Ontario's integrated domestic violence court. The court, she says, has a lot of potential to successfully resolve less serious cases. "It's generally go- ing to be inclined to dismissing criminal charges against offenders because what they're really trying to ensure is . . . protec- tion of the women and her children into the future but also ensuring the individual offender continues to have some rights to continue a relationship with his kids." LT Continued from page 1 Bail system criticized

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