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April 27, 2009

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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 ............. Neal Adams 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 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. ©Law Times Inc. 2009 All rights reserved. Editorial Obiter the If It Walks Like a Duck Act. The unanimous ruling arises from Chat- T terjee v. Ontario, a case that pondered the question of whether the act, which autho- rizes the forfeiture of proceeds of unlawful activity, is ultra vires because it encroaches on the federal criminal law power. "In my view the CRA is valid provin- cial legislation," wrote Justice Ian Binnie for the court. In March 2007, Chatterjee was stopped by York Regional Police because his car lacked a front plate. It was discovered that he was in breach of recognizance, which re- quired him to reside in Ottawa but he was living in Thornhill. Chatterjee was arrest- ed, and during a search of his car, officers came upon $29,020 in cash, an exhaust fan, a light ballast, and a light socket. The This is quackers he Supreme Court of Canada has backed the province's Civil Rem- edies Act, or as we like to call it, cops said the items smelled of marijuana, though no drug was found. fence in relation to the money, items, or any drug-related activity. But on May 13, 2003, the attorney general brought an interlocuto- ry motion under ss. 4 and 9 of the CRA to preserve the seized money and equipment, and a preservation order was granted. Three days later the AG brought an application under ss. 3 and 8 of the CRA for forfeiture of the seized money as proceeds of unlaw- ful activity and the items as instruments of unlawful activity. Chatterjee responded by challenging the act's constitutionality. "Each level of government bears a por- tion of the costs of criminality and each level of government, therefore, has an interest in its suppression," wrote Binnie. But the CRA doesn't require a criminal conviction, just a judge to give permission if based on a balance of probabilities it is Chatterjee was not charged with any of- demonstrated that the property constitutes proceeds of crime — which is not as high a standard as the criminal test of proof be- yond a reasonable doubt. As Toronto defence lawyer Leora Sh- emesh tells Robert Todd in our page one story: "It sort of leaves open the possibili- ty that if police get things wrong, they can still make it right by taking people's mon- ies, and homes, and cars, and so forth. So you're being punished in the eyes of the law, or being criminalized, without actu- ally being proven guilty." And Chatterjee's lawyer James Dia- mond makes an excellent point sug- gesting that cash-strapped people facing property forfeiture won't qualify for legal aid which could make it extremely dif- ficult to afford a lawyer. That certainly runs counter to access to justice. Finally, defence lawyer Peter Zaduk raises an interesting potential side effect: backlog in the courts because "there's lots of people that might make a deal and plead guilty who won't do that now because they stand to lose their houses if they're convicted." "Crime imposes substantial costs on provincial treasuries," wrote Binnie. "Those costs impact many provincial interests, in- cluding health, policing resources commu- nity stability, and family welfare. "It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot use deter- rence to suppress it." Agreed. But Shemesh has the final sensible word: "I just think the two sys- tems ought to work more efficiently to- gether. And I just think they're on differ- ent railroad tracks, so to speak." — Gretchen Drummie n his Report on Civil Justice Reform, former associate chief justice Coulter Osborne noted a major problem in the proliferation of the use of expert witnesses. The report noted the "issue of 'hired guns' and 'opin- ions for sale' as having been re- peatedly identified as a problem during consultations." I'm grati- fied to see the proposed changes to the Rules, but I believe the problem is larger than we'd like to think, and we need to do more to curb "expert bias." Expert bias not only leads to longer and more complex trials, meaning more expense for cli- ents, but can also lead to miscar- riages of justice. At one extreme, in the criminal justice system, we have seen the incompetence of disgraced pediatric patholo- gist Dr. Charles Smith which resulted in the wrongful convic- tion and imprisonment of many. Smith was qualified to give evi- dence as an expert witness in the field of pediatric forensic pathol- ogy at least 45 times in spite of the fact that he had no training I We need to do more to curb expert bias Social in forensic pathology. Smith mistakenly believed that it was his role to support the Crown attorney. In other words he acted as a hired gun. It seems we have the same Justice problem in the civil justice system. According to the Os- borne Report "[a]t the 2006 Advocates' Society Policy Forum on Streamlining the Civil Jus- tice System, the expert evidence working group concluded that the proliferation of experts, ex- pert bias, and lengthy and uncon- trolled expert testimony are ma- jor problems in Ontario." More bluntly, "[a] common complaint was that too many experts are no more than hired guns who tailor their reports and evidence to suit the client's needs." Any review of personal injury cases would reveal a tendency of medico-legal ex- perts entering the arena as hired guns. Some physicians conduct assessments although they have no qualifications to conduct or give expert evidence relating to the assessments. Requiring experts to certify By Alan Shanoff that they understand their duty is to the court and not to any party is a good start at curbing abuses, provided we are explicit in the language of the certificate so there is no room for misun- derstanding. But we need to go further. To prevent experts from abusing their positions we need to allow cross-examination on prior judicial findings or state- ments concerning the expert's conduct and testimony in previ- ous cases. Strange as it may seem, there is a line of cases which ef- fectively bars such cross-examina- tion. In the 2004 case of Desbiens v. Mordini, an Ontario Superior Court justice refused to allow plaintiffs' counsel to impeach an expert's credibility by referring to negative comments which had previously been made by judges www.lawtimesnews.com court relied on a 1999 Ontario Court of Appeal decision R. v. Ghorvei, which stated "it is not proper to cross-examine a wit- ness on the fact that his or her testimony has been rejected or disbelieved in a prior case." Ghor- vei doesn't bar cross-examination on prior inconsistent statements, but since each case is based on its own facts the prospects of a fruitful cross-examination based solely on prior inconsistent state- ments are limited. Surely expert witnesses would or arbitrators concerning the witness' lack of objectivity and impartiality in his role as an expert. In doing so, the April 27, 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 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 Publications Mail Agreement Number 40762529 • ISSN 0847-5083 $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. CIRCULATIONS & SUBSCRIPTIONS 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 ADVERTISING Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Go to www.lawtimesnews.com for an audio version. go a long way to curb abuses. Getting back to the Smith fi- be more cautious in their testimo- ny and less likely to act as hired guns if they knew that they could be cross-examined on the basis of findings in other cases. Indeed, I'd go further and require that every expert provide a list of all cases or hearings in which they have testi- fied or filed a report along with a copy of the decision so that all prior findings concerning the ex- pert are transparent. This would asco, we know that in 1991 Justice Patrick Dunn of the Ontario Court of Justice acquitted a babysitter charged with manslaughter in the death of a 16-month-old child. In the course of his reasons acquit- ting the babysitter, Dunn lowered the boom on Smith pointing out that Smith wasn't familiar with the scientific literature, failed to conduct a thorough investigation, and gave unscientific evidence and was dogmatic in the giving of his evidence. Yet, Smith was allowed to testify in other suspicious death cases until 2001! He was never confronted with Dunn's critical findings — and rightly so, based on the state of the law. Yet, one can only wonder what the result may have been had such cross- examination taken place. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail ad- dress is ashanoff@gmail.com.

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