Law Times

November 29, 2010

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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 ......... 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. November 29, 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 Crown's gestures a good example of civility issue Law Society of Upper Canada's new civility regime. Over the last couple of years, the T LSUC has put a big emphasis on civil- ity, particularly in light of comments in the report on major criminal cases by former Superior Court chief jus- tice Patrick LeSage and current Justice Michael Code about problems in that area being a major impediment to the efficient administration of justice. In Alexander's case, the implica- tions of his actions in court were very grave. As a result of his gestures and he courtroom antics of Crown prosecutor Paul Alexander seem like a perfect case for the faces towards Erika Mendieta, the accused in the murder of her young daughter, Superior Court Justice Nola Garton ruled she had no choice but to declare a mistrial. Even the jury found Alexander's behaviour unsettling. "We find him very distracting and he is making strange faces all the time," the jury said in a note. "We feel very un- comfortable with him." Alexander, of course, had been the prosecutor during earlier proceedings against Mendieta, which also resulted in a mistrial. So while he had an obvi- ous investment in the latest proceed- ings, it was clearly inappropriate for him to come back to court where he sat rolling his eyes and making ges- tures the accused interpreted as try- ing to convey the message that she was lying. The case has prompted vigorous debate over whether Garton should have declared the mistrial rather than simply remove Alexander from the courtroom and canvass the jury on whether it could then still render a fair decision. It's a reasonable ques- tion to ask, but given that continu- ing on that basis would likely have resulted in an appeal later on, Garton made the right move. As for Alexander, his actions are an egregious example of the types of conduct the LSUC is attempting to address with its measures on civility. But given that a key focus is on pro- viding mentorship to errant lawyers, going that route is clearly not enough. By provoking a mistrial, Alexander has done a disservice to the profession, potentially wasted even more public funds on the second proceeding, and put the search for justice in the girl's murder at risk. He should have known better. As a result, the LSUC should go beyond mentoring to formally dis- cipline him, as should the Ministry of the Attorney General. — Glenn Kauth Globe and Mail v. Canada (At- torney General) dealing with journalist-source privilege and publication bans. Headlines trumpeted the decision as a re- inforcement of press freedoms. I'm not so sure. The Globe decision is a com- panion to the R. v. National Post ruling issued earlier this year in which the top court rejected the concept of a class-based journal- ist-source privilege and decided that an order compelling a re- porter to reveal a confidential informant's identity isn't a viola- tion of s. 2(b) of the Charter of Rights and Freedoms. Based on the headlines, one might think the court decided to reverse itself in the Globe decision. That's not the case. Instead, it confirmed the result and analysis in the Post ruling, which arose in the con- text of a criminal investigation, and affirmed that even in a civil litigation context, "the presump- tion is that all relevant evidence is admissible and that all called to testify with respect to relevant evidence are compellable." L Globe ruling hardly a victory for press freedoms Social ast month, the Supreme Court of Canada re- leased its reasons in The top court did con- firm the existence of a po- tential case-by-case privilege using the Wigmore analysis. The fourth step in any Wig- more consideration requires the court to weigh the pub- lic interest in protecting a source's identity against the importance of disclosure to the administration of justice. Cen- tral to this is a determination of whether the relevant infor- mation "is available by other means" and "could be obtained without requiring a journal- ist to break the undertaking of confidentiality." This is no significant breakthrough, how- ever. As conceded by the top court, this principle related to alternate sources has been part of the law since at least 1977. So what is it that merits the congratulatory headlines? The court came down hard on yet another example of a lower court ignoring clear laws related to the press. Despite the fact that a judge shouldn't compel a journalist to testify or divulge an informant's identity where other alternatives to obtain the infor- mation are available, the lower court judge in the Globe case ordered the paper's reporter to reveal his source merely because it was "preferable." That's not the law and hasn't been for decades. Nevertheless, the top court didn't rule on the vital question of whether the reporter ought to disclose his source. Instead, it sent the case back to the judge to make a determination using the Wigmore framework. We'll have to wait and see whether the court truly has affirmed the media's right to investigate. The lower court judge also is- sued a publication ban against the Globe prohibiting the pa- per from "publishing anything whatsoever regarding the pro- ceedings pending before the court." Never mind that the proceedings involved a signifi- cant matter of public interest: a civil action to recover money paid by the federal government www.lawtimesnews.com Justice By Alan Shanoff in what has been termed the sponsorship scandal. Never mind that the scandal resulted in a public inquiry and per- haps a change of government. But what is most incredible is that the judge issued the pub- lication ban without a formal motion, without allowing the media to make any submissions, and without providing reasons. While there may be urgent matters in which the media may not have an opportunity to argue against a discretion- ary publication ban, this wasn't such a case. While the par- ties were before the court, the judge simply refused to allow them to make any submissions. How is that possible so many years after the 1994 Dagenais decision? But it gets worse. The deci- sions ordering the reporter to testify and issuing the publi- cation ban were the subject of unsuccessful applications for leave to appeal. The top court, however, dis- charged the publication ban while confirming the Dagenais framework, which includes a key analysis of whether the beneficial effects of a ban out- weigh the negative effects "on the rights and interests of the parties and the public, includ- ing the right to free expression and the efficacy of the admin- istration of justice." It rightly concluded there was no risk to the administration of justice and that the court could have pursued other approaches short of issuing a publication ban. But has the top court rein- forced press freedom? Hardly, for this is the same court that upheld the validity of manda- tory publication bans in bail hearings simply upon the re- quest of an accused. At the same time, we still live in a world where there is no ad- equate judicial reaction to so- called strategic lawsuits against public participation. In addi- tion, we still don't have cam- eras in the courtrooms. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@ gmail.com.

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