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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 . . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 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. Editorial Obiter he push to have some sort of system for co-ordinating na- tional class actions got a small boost during the Canadian Bar Asso- ciation conference last week. During the event in Halifax, the CBA council approved part of the judicial protocol drafted by the orga- nization's national task force on class actions. It includes a requirement that plaintiff counsel post the pleadings in their case on the CBA's class action da- tabase; a standard set of information to go into settlement approval notices to class members that will be suitable for use in all jurisdictions; and provi- sions for co-ordinating the court ap- proval process for multi-jurisdictional class settlements. Th e latter element of the protocol would allow for commu- nication between the judges involved, including via video link, as well as Bar drops ball on national class actions T consideration of a uniform settlement approval order for the various cases across the country. Following last week's approval in Halifax, Sylvie Rodrigue, a partner at Norton Rose OR LLP and chairwoman of the CBA task force, said the protocol is now ready for implementation in Sep- tember. Th at's a good thing and an obvi- ous testament to the task force's ability to get solutions to the vexing problem of multi-jurisdictional class actions in a relatively short period of time. But the protocol approved last week didn't in- clude a fi nal key provision allowing for the appointment of a case management judge to oversee scheduling matters in situations where there are overlapping class actions fi led across the country. Th e change was in response to ob- jections from the bar, said Rodrigue, who spoke during a panel discussion on the new protocol during the con- ference. Th e concern, she said, centred on whether judges can delegate their management powers to a colleague in another province. At the same time, there were objections over the lack of an appeal process in relation to a case management judge's decisions. Th ose concerns prompted a degree of exasperation among judges on the panel last week. "We're talking scheduling here," said Saskatchewan Court of Queen's Bench Chief Justice Robert Laing. "We're not talking substantive rights." "We have to go further," chimed in Quebec Superior Court Chief Justice François Rolland, who called the de- lays stemming from the proliferation of class actions unacceptable. Rodrigue noted the task force hopes to revise the protocol to get additional pro- visions approved next year. In particular, she noted the concerns about an appeal process are legitimate. Let's hope that's enough to get over the objections to case management. If we can't co-ordinate schedules, we'll never get to a place where we'll have any degree of effi cient management of multi-jurisdictional class actions. Th e problem may be a reality of our constitutional system, but it's clear that we have to be open to solutions. It's hard to imagine that there are many people who want a repeat of the long-running carriage battle in the Vioxx class action. Plaintiff counsel may enjoy the fees earned from launching cases, but when they have to divide them among mul- tiple lawyers in overlapping matters, doing so becomes much less profi table. Th e parties involved, meanwhile, lose out as well. — Glenn Kauth I American Alford plea. Where the court permits nolo conten- dere, the defendant can plead no contest to the charges. Similarly, where the system allows for the special Alford plea, the defen- dant asserts innocence while conceding that there's suffi cient evidence for a conviction. But the Ontario Court of R. v. D.M.G. shows need for caution on admissions Mind n an earlier column, I wrote about nolo contendere and the attractiveness of the Appeal's recent decision in R. v. D.M.G. shows how risky it can be for counsel in Canada to embark upon a "not guilty" guilty plea. Th e accused in the case was charged with sexual interference. He was 62 and hard of hearing. He had no record, but there was no bail hearing. Two days had been set for trial. Counsel hadn't reviewed the videotaped evidence, nor had he had it tran- scribed in his offi ce. At the same time, the client wanted to spare the young complainant from testifying. But the client never agreed that he was guilty of sexual impropriety. His position was one of factual innocence. His statement to police was a denial, but counsel never reviewed it. Counsel claimed the client had signed written instructions. Th e client denied that but not very cogently. On the fi rst of the dates set for trial, the client pleaded not guilty, the Crown read in the allegations, and the defence made no submissions. Defence counsel told the court his client was content to be found guilty, but the accused wasn't asked on the record to confi rm the ac- curacy of what the Crown had read to the judge. D.M.G. was sentenced to further imprison- ment. He appealed. Justice David Watt wrote the decision for the Court of Appeal. He noted that no spe- cifi c statutory authority per- mits or prohibits the procedure A Criminal By Rosalind Conway followed. But he pointed out that a plea of not guilty puts the onus on the Crown to prove all of the elements of the off ence, whereas a plea of guilty is a for- mal in-court admission of it. Th e appeal court held that there ought to have been an in- quiry by the trial judge into the voluntariness of the appellant's participation in and under- standing of the nature and ef- fect of this procedure. Indeed, s. 606(1.1) requires an inquiry by the court when there's a guilty plea. Th is was a miscarriage of justice. As Watt wrote, "Persons who admit their guilt should plead guilty." He continued: "Persons who deny guilt should plead www.lawtimesnews.com not guilty and have a trial at which proper proof may be off ered and its suffi ciency or inadequacy assessed by the trier of fact." Watt called what happened in D.M.G. a "cannibalized procedure" that blurred the distinction between formal admissions and denials of guilt. Formal admissions under s. 655 mean the accused agrees that a fact is true. As a result, Watt ruled there had been a miscarriage of jus- tice. In doing so, he questioned the reliability of "allegations un- tested in the crucible of cross- examination." Th is is a cautionary tale for counsel. Th e court viewed the lawyer's lack of preparation as the inevitable precursor to the hasty resolution on the date of trial. Th e case demonstrates the dim view the courts will take of this procedure. What if, after a well-pre- pared lawyer obtains written August 22, 2011 • LAw times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 905-841-6481 • Fax: 647-288-5418 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 905-841-6481 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@thomsonreuters.com or Tel: 905-841-6480 Ext. 2732 or Fax: 905-841-6786. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 647-288-8018 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 905-841-6480 Ext. 4052 kimberlee.pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. instructions, the client pleads not guilty but counsel has the accused acknowledge an ad- mission of the facts? What will follow in that case? A court may accept a guilty plea only if it's satisfi ed that it's voluntary; that the accused un- derstand that they're admitting all of the elements of the off ence as well as the nature and con- sequences of the plea; and that they're aware that the court isn't bound by any plea agreement. Th e court's supervisory role for guilty pleas is illustrative of the fact that when the accused pleads not guilty and counsel admits the Crown's case, it must be vigi- lant. Th e court is now required to make an inquiry of the accused and, according to D.M.G., it would likely order that the matter proceed to trial. Rosalind Conway is a certifi ed specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.