Law Times

McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com ckellar_LT_Jan14_08.indd 1 $3.55 • Vol. 20, No. 11 1/8/08 3:03:02 PM Covering Ontario's Legal Scene Courts poked: tweets not sweet Judges must act to avoid 'Google mistrials' BY ROBERT TODD Law Times R search using new communications tools and avoid havoc recently seen in U.S. courts, says a Toronto criminal defence lawyer. "What's at stake here is the integrity of the egional senior justices must immedi- ately issue a practice direction to keep jurors from conducting their own re- jury trial system, and the foundational notion that an accused has a right to a trial based on the evidence presented in a courtroom be- fore 12 independent, impartial arbiters of the facts," says Toronto criminal defence lawyer Adam Boni. Lawyers last week reacted to U.S. news for Toronto with the Criminal Lawyers' As- sociation. "I think this is a classic example of how technological advances can outpace devel- opments in the administration of justice." Boni says the reports have "taken every- body by surprise," and that lawyers simply assume jurors will follow instructions. "I think we tend to downplay the impact of this technology on non-lawyers," he says. "What it demonstrates is that human curios- ity and our modern-day addiction to instanta- neous information needs to be acknowledged in a very serious way." If jurors are searching the Internet for reports of what have been dubbed "Google mistrials" — cases in which jurors have been compiling and disseminating information on cases via BlackBerrys and iPhones, contrary to their legal obligations. Recent incidents include a federal drug trial news reports that might include excluded evidence, a fundamental right has been jeop- ardized, says Boni. He says the possible trend could become "corrosive to the right to a fair trial." in Florida in which nine jurors went against a judge's orders and did their own Internet research, an Arkansas civil trial involving a $12.6-million judgment in which a juror was accused of using Twitter to send updates, and a Pennsylvania political corruption trial in which a juror is accused of posting newsflashes on Facebook and Twitter. The Florida case was the only incident to lead to a mistrial, but it's clear that ubiquitous new communications tools may be throwing a wrench into established jury rules. Howev- er, many of the lawyers Law Times spoke with suggest it would be impossible to police and enforce stricter rules, and that it's best to trust that jurors are following court orders. 'The apparent problem in the U.S. should be ring- ing alarm bells in Canadian courtrooms,' says Adam Boni. But Boni says members of Canada's legal community cannot simply shrug off the issue. "The apparent problem in the U.S. should be ringing alarm bells in Canadian court- rooms," says Boni, who is a regional director • an immediate practice direction should be issued by regional senior justices on how trial judges ought to deal with this issue in the charge to the jury. Boni says the latter recommendation should lead to the adoption of a uniform code of practice "without delay." • judges must explain to jurors the reasons for the prohibition, including the fact that evi- dence in a trial is vetted by counsel and the court to ensure credibility, reliability, and fairness; and Sides line up on bilingual SCC battle BY TIM NAUMETZ For Law Times And, despite a carefully or- chestrated response to NDP MP Yvon Godin's bill in the House of Commons, a slip-up by the government's inexperienced heri- tage minister may have put Prime Minister Stephen Harper in a dif- ficult position. Godin first introduced the legis- lation following last year's election, in the aftermath of Harper's ap- proval of the appointment of uni- lingual Justice Marshall Rothstein OTTAWA — A New Democratic Party bill that could become law as early as this fall is rekindling a sen- sitive debate over whether bilin- gualism should be a requirement for appointment to the Supreme Court of Canada. to the Supreme Court in 2006. Rothstein was an eminently qualified jurist from Manitoba who had, among other accom- plishments, been appointed to the Federal Court of Appeal before the Harper government named him to the Supreme Court. He is now the lone unilingual anglophone on the court, following the government's decision last year to hastily name the bilingual Justice Thomas Cromwell, from the Nova Scotia Court of Appeal, to succeed retired justice Michel Bastarache. Despite Rothstein's resumé and his promise three years ago to learn French within four years on the court, Godin and members of the francophone legal community in Canada say no unilingual ap- pointments to the Supreme Court should ever occur again. lieves any citizen of Canada has the right to have their case heard in the highest court of the land in the of- ficial language of their choice. Otherwise, they face the possi- bility that one of the judges hearing the arguments may misunderstand the points because of linguistic nu- ance or confusion, he says. "Can we afford that kind of justice?" he asks. Godin tells Law Times he be- ristes d'expression française de l'Ontario, which lays claim to be- ing the largest bar organization for francophone lawyers in the coun- try, agrees. It first took up the cause fol- The Association des ju- lowing the retirement of Basta- rache last year. "Justices at the highest level need to be able to deal with both official languages without inter- preters or written translation," says Louise Hurteau, the organization's past president and counsel for the Law Society of Upper Canada. "They need to understand; they need to understand the acts that are before them; they need to un- derstand the nuances that are be- ing argued by individuals before them. The individuals need to understand that they are getting a fair hearing by judges that can hear them and understand them in their own language." The Canadian Bar Association has consistently taken a diplo- matic position, avoiding a direct position on the question of man- datory bilingualism on the Su- preme Court while at the same Boni says trial judges and lawyers must tackle the issue before it grabs hold in courts here. He suggests the following measures: • judges and lawyers should discuss specific instructions for jurors during pre-charge conferences, and make clear the prohibition on Internet searches; TitlePLUS title insurance and you, together we have all the tools TitlePLUS title insurance and you, together we have all the tools. titleplus.ca tlePlus_LT_Jan26_09.indd 1 March 30, 2009 1/20/09 12:14:52 PM Inside This Issue 5 Go Digital 7 Electoral Reform 8 Focus On Energy/ Environmental Law Quote of the week "I used to live in Chinatown. I have no doubt that where I used to live would now be deemed contaminated." See Behaviour, page 2 –– Harry Dahme, senior partner, Gowling Lafleur Henderson LLP See Rules, page 11 time insisting that fluency in both See CBA, page 2 WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM Photo: Phil Brown

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• Go Digital
• Electoral Reform
• Focus On Energy/Environmental Law