Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 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 Inc. 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 Being a good neighbour n the parable of the Good Samaritan, a traveller came to the aid of an injured man who was beaten and robbed by bandits. The two were strangers, but he bandaged the man's wounds, took him to an inn, and gave the innkeeper two silver coins to look after him. Ontario's legal community has its I very own Good Samaritan: Ottawa's Eugene Meehan. To wit: In the middle of the night a trio of thugs, one brandishing a hand- gun, invaded a family's home in Bar- rhaven, Ont., and made off with $500 — the father's earnings from a long, 12-hour shift as a cabbie. Meehan read about the shameful event in the Ottawa Citizen, and moved by the terrible facts, he offered to replace the stolen amount. Meehan, a former president of the Canadian Bar Association, a partner at Lang Michener LLP and chairman of the firm's Supreme Court of Canada advocacy group, was planning to vis- it the family last weekend with one of his four children. "I'm going to bring one of my kids with me and they're actually going to hand over the money because it's a lesson learned; there's a lesson for my kids too that this is what you do," said Meehan. Meehan told Law Times the story was "compelling," and what caught his attention was the part about the plucky 12-year-old daughter who scur- ried between one of the robber's legs and grabbed a cell phone to call 911. Her mom, who was being held by one of the hoods, directed her to get help in their native language, knowing the intruders wouldn't understand. Spying her on the phone, the bandits fled — with the cash, an Xbox, DVD player, and the keys to the family's car. "It's a tough story," said Meehan. Here, in his words, is why he stepped up: "I read the story and thought, here's a guy who busts his ass for 12 hours, brings what he earned for that day … [and] not only is it taken away but other things are taken away from the house, and he has a feeling of personal, emotional, familial violation. He's an immigrant to Canada and Canada's a great country. Here another immi- grant [Meehan's from Scotland] has an opportunity to make good that loss. "We have a country where it's a strong, robust democracy where the police are trusted, and that's not the case in every country in the world. This family, and this kid knew that the thing to do was to call the police because the police would be fair and just and deal with it . . . It's a powerful statement to make about a powerful country that we have. It's not a lot for me to simply validate and acknowl- edge that, so that's why I'm doing it." Meehan said he didn't expect his donation to become public knowledge but he is comfortable with the family in question knowing who he is and that he's a lawyer because, "I'm proud to be a lawyer. I'm proud of the good lawyers do in our communities." He added, "When opportunities come along to do something that for us is rela- tively small but for somebody else might be big and practical, that's something that it's easy to say yes to. It's that simple." And so, Meehan was going to tell the family that he doesn't "need or want their thanks, and years from now they will have the opportunity to do something small for somebody else that for the other person is big, and they will remember it and they will follow through and do that." To borrow from the parable: go, and do likewise. — Gretchen Drummie M The polygraph and the practice of criminal law A Criminal any clients ask wheth- er they should submit to a polygraph. Are there any circumstances under which you should advise your client to undergo a polygraph? The first time I encountered the polygraph was in a rape case, and the suspect was known to the complainant and was well known to the police, but not for sexual offences. Her injuries cor- roborated her story. I was pros- ecuting the case as an assistant Crown attorney, and I had met with the complainant, who had an odd habit of closing her eyes when she talked about the case. We completed the prelimi- nary inquiry, and the complain- ant had testified so effectively that the judge committed on more counts than the police had laid. As we left the court the de- fence lawyer offered to have his client submit to a polygraph. It was a risky strategy. The polygraph was subse- quently conducted by a police polygraphist, and the client passed. The detective invited the complainant to come into the station for an interview. Then she disclosed what had really happened that day, and it was an eyeopener. She and her husband were work- ing for the same government department, but she had left early to go to a bar, where she picked up a stranger. Their home was vacant, because it was being renovated, so she and the real suspect went to the back of the building, where he asked her if she "liked it rough." That was when the assault took place. Why did she blame the cli- ent? She needed to explain why she was found unconscious in an alley, and to save her marriage, but there was a more sinister motive: revenge. The client had dated both her and her teenage daughter. She was subsequently prosecuted for perjury. Some years ago I had a cli- ent charged with fraud who had Mind By Rosalind Conway agreed to a polygraph without legal advice. She had thought that she had passed it, but the polygraphist returned and said that the machine suggested that she had been untruthful. Then the real questioning began. I was able to have her statement excluded after a voir dire, argu- ing that confronting her with the failure was a "psychologi- cal sledge hammer" (see R. v. Nugent). However, since the Supreme Court of Canada's de- cision in R. v. Oickle, this result will likely not obtain. The police should tell a sus- pect that the results are not admissible, although this is not necessarily fatal to the ad- missibility of a statement. The www.lawtimesnews.com defence lawyer must advise the client that the results are just an opinion, and are inadmis- sible to show whether the cli- ent is telling the truth, but any statements made are likely to be admissible. The client may have little to gain from sub- mitting to a police polygraph. Private polygraphs are ex- pensive, but may be highly useful to the defence. I had a client under investigation for a historical sexual assault that was disclosed in counselling as a recovered memory. Despite the dubiousness of this disclo- sure, there was a real threat of the client being charged. A pri- vate polygraph was arranged, and the client passed. The re- sults were disclosed and the investigation was closed. Had the client not passed the poly- graph, our results would have been confidential, unlike those in the police polygraph. Although the results of a poly- graph are sufficiently unreliable June 22, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • 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@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@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. that they cannot be admitted in court (R. v. Béland), the police are not precluded from using the polygraph as an investiga- tive tool (R. v. Trochym). Police officers have a lot of faith in the polygraph and may exclude sus- pects who pass polygraphs. So when can you advise a client to undergo a polygraph? I only recommend a privately administered polygraph by a recognized polygraphist. It will be subject to solicitor-client privilege. The Crown or the police are free to reject the re- sults, but they are persuasive at a pretrial or in negotiations. If a client wants to submit to a police polygraph, he must be thoroughly cautioned about the peril that he faces: the real questioning is likely to take place after the procedure. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca.

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• Review Process
• A Criminal Mind
• Focus On Family Law