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Sept 24, 2012

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PROCEEDS OF CRIME P3 Infamous case heads to court DENIAL BY PROCESS ntitled-2 1 Judge calls foul on 'three-strikes' law A $4.00 • Vol. 23, No. 30 COVERING ONTARIO'S LEGAL SCENE • WWW.LAWTIMESNEWS.COM September 24, 2012 ntitled-4 1 7/7/11 9:10:05 AM L AW TIMES Procedures a barrier in mental-health cases P7 BY MICHAEL McKIERNAN Law Times London, Ont., judge has dealt a blow to the federal government' Criminal Code in 2008 through the Conservative government' that any person convicted of a third designated seri- ous personal injury off ence and sentenced to at least two years for each would be presumed to have met the dangerous off ender criteria unless the accused could prove otherwise on a balance of probabilities. A dan- gerous off ender label carries with it the possibility of an indeterminate sentence. Th e provisions ended up before Ontario Superior Th e three-strikes-style section became part of the s Tackling Violent Crime Act. It provides da aſt er declaring a provision of the Crimi- nal Code dealing with dangerous off enders to be unconstitutional. Court Justice Alan Bryant in the case of Roland Hill aſt er Crown lawyers indicated they would be relying on s. 753 (1.1) in an application to have Hill declared a dangerous off ender following his guilty plea to the attempted choking and aggravated sexual assault of a woman. He had previously been convicted of two other designated off ences. But Hill' in the burden of proof violated his client's s. 7 rights under s defence lawyer, Peter Behr, claimed the shiſt the Charter of Rights and Freedoms that protect the right to life, liberty, and security of the person. In his Sept. 13 endorsement, Bryant agreed. "Since s. 753 (1.1) reverses the onus on the Crown to prove aggravating factors beyond a reasonable s tough-on-crime agen- see that three-strikes legislation fails miserably in terms of protecting the public," he says. "It placed defendants in a position where everything "It's not just that if you look south to the U.S., you can " was reversed and they had to prove a negative that they were not going to present a recidivism risk, that they will take treatment, and that it will work. It' threshold to meet." Brodsky expects the government will appeal the The law presents defendants with 'an impossible threshold to meet,' says Daniel Brodsky. Photo: Laura Pedersen s an impossible ruling and hopes an appellate court can off er guidance for counsel. "It' s entirely standardless at this point. You can't open your Criminal Code and say, 'Well, my client is facing a Bar told to embrace trials over summary judgment A 'Essentially, Justice Brown is saying that the judicial system is a partner in determining the most cost-effective way to get disputes resolved,' says Alan Mark. BY MICHAEL McKIERNAN Law Times Superior Court judge's an intensifi cation of case manage- ment, according to one of the law- yers involved. In a Sept. 3 double decision, refusal to schedule sum- mary judgment motions in two cases could signal with Norton Rose Canada LLP, represents the defendant Domtar, which moved to strike the sum- mary judgment motion brought by Weston following last year' Ontario Superior Court Justice David Brown declined to sched- ule the motions in commercial list cases G eorge Weston Ltd. v. Domtar Inc. and 1318214 On- ta rio Ltd. v. Sobeys Capital Inc. and instead directed the parties to develop plans to allow them to proceed directly to trial. Alan Mark, senior partner Ontario Court of Appeal decision in C ombined Air Mechanical Ser- vices Inc. v. Flesch. In that case, the appeal court gave guidance on the suitability of cases for summary judgment. Mark says he was happy with the decision because it halted a motion he saw as inappropriate. "Essentially, Justice Brown is s saying that the judicial system is a partner in determining the most cost-eff ective way to get disputes resolved. It' for litigants to dictate to the court how much resources are to be used to resolve their disputes. s no longer acceptable that unless there is some sensible case management in place to regu- late in what cases summary judg- ment will be brought, it' "I think Justice Brown is right be chaos. Leaving it to the parties to bring massive motions for sum- mary judgment with massive re- sponses is obviously not sustainable if it' s going to to summary judgment as part of a wider move by judges to put pro- portionality at the heart of cases. "More generally, we're seeing a s going to be done on wide scale." Mark sees Brown's approach See Challenge, page 4 FOCUS ON Intellectual Property/Trademark Law P8 12-03-20 10:44 A Superior Court ruling declares reverse onus provision unconstitutional doubt, it contravenes s. 7 of the Charter," Bryant wrote, calling the section a "pri ma facie violation of the prin- ciples of fundamental justice as it purports to require a dangerous off ender fi nding to be made, even in the face of a reasonable doubt." "Th e dangerous off ender indeterminate sentence is the most severe sentence in Canadian criminal law. Leaving aside administrative effi ciency arguments, no valid grounds were advanced for allocating the burden of proof to the off ender to prove on a balance of probabilities that he does not meet the s. 753 (a) or (b) criteria," Bryant concluded. Th e ruling is an important one, says Behr. "I think it' pretty signifi cant in that it emphasizes where the onus should lie, and that is on the Crown, to prove aggravating factors beyond a reasonable doubt," he tells Law Ti mes. Toronto lawyer Daniel Brodsky, who has defended a s number of clients facing dangerous off ender hearings, says the judgment was "inevitable. model where the court has to ration judicial time, and I think it is right to require parties to come up with a more eff ective trial plan than simply saying, 'We will take as much time as See Case, page 4 www.lawtimesnews.com Childview_LT_Jan24_11.indd 1 1/19/11 11:04:05 AM PM #40762529

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