Law Times

June 20, 2016

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Page 16 June 20, 2016 • Law Times www.lawtimesnews.com RETIRED LAWYER WALKS FOR PARKINSON'S DISEASE RESEARCH Harry McMurtry never listened to the doubters. The retired lawyer, who has Parkinson's disease, was set to walk 500 miles (804.6 kilome- tres) with others to spread aware- ness and raise money for Parkin- son's research. Two of the other people who round out the core of his group — Ross Sugar and Sue Thompson — also suffer from the aff liction. "A lot of people doubted we could pull this off, but I think we have," he says. "There are a lot of doubters out there, but I had a dream and it's come to fruition." McMurtry and his group left his adopted home of New York City on May 6 and have since made their way up to Canada, as various guest walkers have joined them along their way. They planned to finish the walk in Toronto. McMurtry retired in 2010 as a partner of Affleck Greene McMurtry LLP, after living in Toronto for many years. McMurtry says the trip is "marrying two countries and two major cities in each country." The 500 Mile Walk has raised $300,000 so far, according to McMurtry, and hopes to reach $500,000 by the end of the initiative. McMurtry says all the money raised will go to charity as expenses are covered by sponsorships. CONSTRUCTION LAWYERS CONFERENCE Next year's Canadian College of Construction conference is set to take place in Quebec City in May. Incoming president Olivier Kott, of Norton Rose Fulbright Canada LLP, will host the event May 25-28 at the Fairmont Le Chateau Frontenac. The details of next year's event were released at this year's CCCL conference, which took place in St. John's, N.L. The three-day conference included talks on a variety of issues that affect con- struction law. BLG CHANGES Corporate lawyer Melinda Park is set to become the first female chairperson of national council for Borden Ladner Gervais LLP. Park is a partner in the law firm's securities and capital mar- kets group in Calgary and has practised securities and corpo- rate law for more than 20 years. Park takes over from Bob Shouldice, a commercial law- yer who specializes in infra- structure, M&A, and corporate governance. The national coun- cil has also appointed David Whelan to become the national group head. Whelan, who is a partner in the firm's financial services group, has been the re- gional partner in the Calgary office since 2007. The firm also announced that Alan Ross, a partner of the firm's commercial litigation group, was elected to become its regional managing partner in Calgary. 12 % NO, I DO NOT AGREE YES, I AGREE 88 % LAW TIMES POLL Law Times reported recently that an Ontario man was prose- cuted for possessing $10 worth of marijuana. Readers were asked if this was a ridiculous use of pub- lic resources. More than 88 per cent of re- spondents said yes, this is a total waste of court and judicial re- sources, and the fact that the man had to forfeit most of the $25,000 in his vehicle is also questionable. Almost 12 per cent of respon- dents said simple possession is still a criminal offence under the law and should be treated as such. LT u Bizarre Briefs By Viola James u The InsIde story Harry McMurtry, Sue Thompson, and Dr. Ross Sugar (left to right) are participating in the 500 Mile Walk. 40 issues a year covering Ontario's legal landscape FREE digital edition and unlimited online access to past issues FREE Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!& t7PM/P Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W Subscribe to Law Times today for $199* and receive: Canlawyer.lawtimes@thomsonreuters.com | 416.609.3800 | 1.800.387.5164 Access a free preview at: bitly.com/LawTimes-FreePreview Order online at: www.lawtimesnews.com/subscribe *Plus applicable taxes How the legal community in Ontario gets its news @lawtimes Untitled-1 1 2016-06-16 8:01 AM TOTALLY NORMAL BEHAVIOUR . . . RIGHT? BUENOS AIRES, Argentina — A top public works official in Argentina's previous govern- ment was arrested while throwing what police called "an obscene amount of cash" over the walls of a monastery, intensifying questions about possible past corruption. Officers responded to a pre-dawn 911 call reporting a man tossing bag after bag into the Our Lady of Fatima Catholic monastery in the Buenos Aires suburb of General Rodriguez. Within minutes, officials said, former Dep- uty Public Works Minister Jose Lopez was in custody, where he remained on suspicion of money laundering. "He has to explain," Cabinet chief Marcos Peña told reporters. "Lopez managed every- thing that had to do with public works under the previous government. This confirms there were enormous problems with transparency, at least, and at most, serious corruption." Lopez at one point told nuns at the scene that he had planned to donate the cash to the mon- astery, officials said. Reuters was unable to contact his lawyers. The case is the latest to focus on figures linked to Cristina Fernández, whose second term as president ended in December. Prosecutors have questioned Fernández as part of a probe into possible corruption in her administration. She was succeeded by former Buenos Aires Mayor Mauricio Macri. Local media reported that $8 million to $10 million worth of various currencies was re- covered. But Buenos Aires provincial security chief Cristian Ritondo said the money was still being counted. "We found an obscene amount of cash at the convent, where neighbours and even the nuns living there told us that a lot of officials from the previous government had visited," he said. "It was in four different currencies. Most of it was in [U.S.] dollars. The rest was in euros, yen, and a currency from Qatar, of which we are still not sure of the value," he added. "He was caught red-handed," Ritondo said, adding Lopez had a rif le with him when he was arrested. "He tried to bribe one of the officers, and the bribe was rejected." Officers confiscated six upper-end wrist- watches from Lopez, brands including Rolex, Omega, and Tommy Hilfiger. Asked by a reporter what kind of condition Lopez was in, Ritondo said: "He's depressed." YOU HAVE . . . THE RIGHT TO PIERCE YOUR PRIVATES HUTTONSVILLE, West Virginia — A federal appeals court revived a lawsuit in which a West Virginia inmate accused state prison officials of invading his privacy by surgically removing marbles he had implanted in his penis. By a 3-0 vote, the 4th U.S. Circuit Court of Ap- peals said Adrian King could pursue claims that officials at Huttonsville Correctional Center ille- gally threatened him into consenting to the June 2013 surgery, or risk being segregated from other inmates and lose his eligibility for parole. Circuit Judge Roger Gregory found "over- whelming evidence" that the intrusion was un- reasonable, despite the asserted need by prison officials to police the security threat posed by in- mates carrying contraband within their bodies. "The interest in bodily integrity involves the most personal and deep-rooted expectations of privacy, and here, the nature of the surgery it- self, surgery into King's penis, counsels against reasonableness," Gregory wrote for the Rich- mond, Va.-based appeals court. King had the marbles implanted in and tattoos drawn on his penis in late 2008, prior to his incar- ceration, during a "body modification" craze. He said the surgery left his penis with tin- gling and numbness, and pain when it is touched or when it rains, snows, or gets cold. King said the surgery also resulted in mental and emotional anguish, saying that prison of- ficials call him "Marble Man" and ask when searching him where his marbles are, and that gay inmates approach him because of how staff gossip about him. LT

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