Law Times

March 16, 2009

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TitlePLUS title insurance and you, together we have all the tools TitlePLUS title insurance and you, together we have all the tools. 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. 9 1/8/08 3:03:02 PM Inside This Issue 3 'Queen Of Smiles' 6 Identity Theft 9 Focus On Litigation Quote of the week "My sense is that defendants prone to disobeying court orders may take the view that contempt proceedings are purely civil, so there's nothing to worry about . . . And because it's not an issue that comes up that often, counsel don't think that much about it. But boy can you get hammered these days, especially in cases involv- ing extraordinary relief like Mareva injunctions or Anton Piller orders." Ira Nishisato, partner, Borden Ladner Gervais LLP See That's right, page 13 Covering Ontario's Legal Scene titleplus.ca tlePlus_LT_Jan26_09.indd 1 March 16, 2009 him play out the final months of his judi- cial career rather than oust him based on an attorney general's 2004 complaint. The CJC recently held a special meeting in the mbattled Superior Court Justice Paul Cosgrove is clinging to the hope that the Canadian Judicial Council will let ballroom of a downtown Toronto hotel in which Cosgrove made a final plea, explaining why judi- cial misconduct he committed during the 1998 murder trial of Julia Elliott should not lead to what his lawyer called "capital punishment for a judge." It was only the third time the CJC has held such Judge faces career 'capital punishment' E Cosgrove apologizes to Canadian Judicial Council BY ROBERT TODD Law Times a meeting through its inquiry process. Should the council rule against Cosgrove, he would become just the second judge to face a recommendation to the federal minister of justice for removal. Cosgrove, 74, responded to the findings released in December by a CJC inquiry committee, which ruled 4-1 there are grounds for his dismissal. The Brockville judge told the council, which is Justice Paul Cosgrove (right), who made a final plea to the Canadian Judicial Council to remain on the bench, is seen during the meeting with Richard Stephenson, one of his lawyers. made up of chief justices, associate chief justices, and senior judges of Canada's superior courts, that he failed at his task of handling the Elliott trial. But he said his mistakes were "made in good faith at all times," and he regrets that those errors hurt some people involved in the trial. He characterized his errors as "misguided attempts to achieve justice." Cosgrove, who was appointed to the bench in 1984, also explained his confusion as to why then-attorney general Michael Bryant waited until April 2004 to issue a complaint over his handling of the trial, which he stayed in Sep- tember 1999. Cosgrove said he had become de- sensitized to criticism of his handling of the trial by the time the complaint was made. principle" that he opted to pursue a constitutional challenge of the CJC proceedings at the Federal Court in 2005. He won that decision, but the Fed- eral Court of Appeal later overturned it. The Su- preme Court of Canada rejected Cosgrove's leave to appeal application in November 2007. The judge told the council that a statement He said it was based on "an important issue of made to the inquiry committee was meant to fully recognize the mistakes he made during Elliott and apologize to those who suffered because of them. He reaffirmed his apology to the attorney general, police officers, civilian witnesses, the public, and the family of the victim, who he acknowledged were forced to wait too long for justice. Cosgrove also said he regrets any damage he may have done to the judicial office he holds. The former Scarborough mayor and federal Liberal cabinet minister said he can best serve his community by returning to the bench until he reaches mandatory retirement this Decem- ber. He added that he stands by his performance as a judge both before and after Elliott. Chris Paliare of Paliare Roland Rosenberg Roth- stein LLP, Cosgrove's lawyer, told the council that based on its previous analysis of an inquiry into the conduct of Superior Court Justice Ted Matlow, Appeal court ruling could impact Creba case T BY ROBERT TODD Law Times transferred intent cannot be ap- plied to cases of attempted murder in which bystanders are injured. The decision could have a ripple he Ontario Court of Ap- peal has ruled that the common law doctrine of effect on other cases involving ac- cusations of gun violence in which bystanders are injured, says a To- ronto criminal defence lawyer. "At the end of the day, I think Marquis Arlando Gordon. Maunder says the decision leaves room for the prosecution and pun- ishment of the underlying conduct. Even when an intended target of violence is uninjured, she says, an accused who acts on the intention to kill can still be found guilty of at- tempted murder. The accused may also be found guilty of offences such as aggravated assault in relation to injured bystanders, she adds. Toronto defence counsel Ed- A recent decision on transferred intent could have a ripple effect, says Leslie Maunder. the result is convictions, if they flow after a trial, are going to better reflect both the accused's conduct and their moral culpa- bility for their behaviour," says Leslie Maunder, associate and se- nior appeal lawyer at Pinkofskys, who argued the case for her client ward Sapiano says the case could affect charges against three of the seven people accused in the up- coming Jane Creba murder trial who are each facing six counts of attempted murder with a firearm. Sapiano says the Court of Appeal's decision in R. v. Gordon will force those charges to be changed to ag- gravated assault because they are See Decision, page 2 1/20/09 12:14:52 PM based on transferred intent. Sapiano represents one of the ac- cused in the Creba case, Jeremiah Valentine, who faces six charges of attempted murder, as well as second- degree murder. Sapiano says the at- tempted murder charges are based on transferred intent and stem from six people who caught stray bullets during the incident in which the 15-year-old Creba was killed. "I owe my dear friend Leslie lunch — she just won six attempt- ed murders for my client," says a jubilant Sapiano, who adds that he has previously unsuccessfully argued against transferred intent. The case involved Gordon, who appealed convictions on four counts of attempted murder, as well as concurrent sentences of 10 years. The appeal followed the See Transferred, page 3 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: Robert Todd

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