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August 22, 2011

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Billions of dollars invested, not a penny lost. ntitled-2 1 $4.00 • Vol. 22, No. 26 7/7/11 9:10:05 AM Inside This Issue 5 Provocative Comments 6 Cautionary Note 9 Focus On Health/Life Sciences Law Quote of the week "Ontario has a very large patient population. Ontario's public drug plan has the ability to impact on how other provincial drug plans may model their practices or pricing." — Jill Daley, Norton Rose OR LLP See Pharmacies, page 10 Covering Ontario's Legal Scene ntitled-3 1 August 22, 2011 5/4/10 2:49:21 PM Nicholson rebuffs CBA critics Minister rejects concerns about judicial discretion BY MICHAEL McKIERNAN Law Times HALIFAX — Federal Justice Minister Rob Nicholson brushed off a barrage of criticism for his tough-on-crime policies during his annual appearance at the Canadian Bar As- sociation's conference in Halifax last week. Earlier, the CBA's council passed a string of resolutions sponsored by its criminal jus- tice section calling for the federal govern- ment to tone down legislation expanding mandatory minimum sentences for certain off ences by inserting a so-called safety valve in Criminal Code amendments. It also asked Nicholson to reconsider the policies in the light of their costs through increased impris- onment and their eff ects on the aboriginal community and mentally ill off enders. But Nicholson stood fi rm under question- ing from lawyers and reporters, insisting that lawmakers are entitled to give guidance to the court and that voters had endorsed his ap- proach during the federal election in May. "Th at is our job. We set the guidelines where we believe they are appropriate. Th ere are a number of mandatory minimums al- ready existing in the criminal justice system. I would suggest the ones we have introduced are reasonable and appropriate under the cir- cumstances. I think that's part of our mandate that we are given as legislators. We set maximum sentences, and in some cases where we believe it's appropriate, we set minimum sentences." Manitoba lawyer Josh Weinstein attempted Justice Minister Rob Nicholson faced tough questions at the CBA conference last week. to extract a compromise from Nicholson through one motion at council that called for a safety valve allowing judges to consider oth- er sentencing options "where injustice could result by the imposition of a mandatory mini- mum sentence." According to Weinstein, the safety valve could kick in when off enders have mental ill- nesses or other conditions, including fetal al- cohol spectrum disorders. He said legislatures in Britain, Australia, and South Africa have all See Lawyers, page 4 Time to have judges preside over inquests? C BY RAVI AMARNATH For Law Times oncerns over two recent inquests in Ontario are prompting calls to have legal professionals, rather than doc- tors, preside over the proceedings. For lawyer Julian Falconer, part of the concern stems from his experiences representing the Smith family at the inquest into the death of Ashley Smith, who committed suicide in 2007 while she was an inmate at the Grand Valley Institution for Women in Kitchener, Ont. Th e Smith in- quest has faced continuous de- bates and delays over what evi- dence should be permitted. Th e inquest system "is a strange process," says Falconer, who notes most other provinces do it diff er- ently. "Other than Prince Edward Island and Ontario, every other jurisdiction in Canada has options for not having doctors preside over inquests." Coroners in Ontario are physi- cians. Following the call for an in- quest, a coroner's constable selects fi ve jurors from a list of eligible people from the community. At the conclusion of the inquest, jurors may choose to make non-binding recommendations to the Offi ce of the Chief Coroner for Ontario. "I don't believe doctors are qualifi ed to run the [inquest] process," says Toronto defence lawyer Roger Rowe. "Th ey don't have a grasp of the administrative process . . . or the training needed to interpret and apply provisions of the Coroners Act." Rowe recently represented the family of Diane Anderson at an in- quest into a 2007 fi re at a Toronto Community Housing apartment. Th e blaze took the lives of Ander- son and two of her children. Legal squabbles during that inquest as well as the Smith proceedings have highlighted concerns about Ontar- io's system. But in a statement, the coroner's offi ce defended its use of physicians over judges at inquests. "Th e role played by a presid- ing coroner at an inquest is very diff erent from that of a judge," the statement said. "Th e coroner comes to the proceeding with extensive knowledge of the case and the issues." Th e statement also quoted the judgment from People First of Ontario v. Porter, Regional Coro- ner Niagara, in which the On- tario Superior Court of Justice stated: "Although an inquest has some of the trappings of a royal commission, it retains its essen- tial quality of an investigation conducted by a medical man (or woman) into the death of indi- vidual members of the commu- nity." Manitoba is one province that operates a medical examiner sys- tem instead of a coroner's system. "Th e primary diff erence between the two systems is that in a medical examiner system, the judicial func- tion is deferred to those who have expertise in this area: judges," said Dr. Peter Markesteyn, retired chief medical examiner for Manitoba. See Inquest, page 4 Click here to subscribe today to LAW TIMES ADR Connect: Find an ADR Professional 416-487-4447 • Untitled-2 1 Gold Standard LT Digital version.indd 1 6/25/10 12:59:47 PM Mediators Arbitrators 5/20/11 1:11:30 PM Photo: Gail J. Cohen

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