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September 10, 2018

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PM #40762529 $5.00 • Vol. 29, No. 28 September 10, 2018 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Case on privacy rights headed to SCC Samara Secter and Emily Lam say an upcoming case before the Supreme Court of Canada will focus on whether guests in a backyard have a reasonable expectation of privacy in police searches. Photo: Robin Kuniski POT OPT-OUT Municipalities can say no to retail plan P5 MANDATORY MINIMUMS Shifting discretion back to judges proposed P7 FOCUS ON Human Rights Law P8 BY ANITA BALAKRISHNAN Law Times A n Ontario case headed to the Supreme Court will focus on whether guests in a backyard have a rea- sonable expectation of privacy in police searches. The Supreme Court deci- sion could have wide-ranging ef- fects for people who currently do not have standing to challenge a search or detention when they are an invited guest on a property, say lawyers. A factum filed by the ap- pellants in Tom Le v. Her Majesty The Queen addresses the ques- tion of whether invited guests at backyard gatherings have a right to be left alone by the state. "Richer people can essentially purchase their privacy, in terms of building taller fences, walls, gates. People in poverty don't have that same ability," says Emily Lam, a partner at Kastner Law and one of the lawyers representing Le. "If privacy rights are linked to ownership and control, that means that people living communally or in social housing might not get the same privacy protection as more aff luent people." The case, which will be heard by the SCC on Oct. 12, revolves around Le, who in 2012 was visit- ing friends in a fenced backyard at the Atkinson Housing Co-opera- tive, a subsidized housing complex in Toronto. Andrew Furgiuele, trial and ap- pellate counsel at Doucette Santo- ro Furgiuele, who was not involved in the case, says the matter is one to watch. "Now there is a realistic chance that [the reasonable expectation of privacy] could change," says Furgiuele. The factum said that police did a "walk-through" of the common area around the edge of the back- yard, looking for two people that were neither Le or his friends. The police "started question- ing the young men in the back- yard, asking who they were, if they lived there, and what was going on." When questioned, Le ran and two officers tackled him to the ground nearby. The police found a gun, cash and 13 grams of crack cocaine on Le's person and in his bag, the factum said. Before the Court of Appeal, justices David Doherty and David Brown upheld the trial judge's anal- ysis, writing in the January deci- See Richer, page 2 Judicial review of LAO panel decision sought BY ANITA BALAKRISHNAN Law Times A lawyer is challenging Le- gal Aid Ontario on the way her panel member- ship was handled. Oshawa criminal lawyer Mary- Clare MacKinnon filed a factum with the Ontario Superior Court of Justice Divisional Court on Aug. 17, following a notice of ap- plication for judicial review dated July 18, according to documents provided to Law Times. MacKinnon was a full-time LAO employee from 1999 to 2015, when she was manager of duty counsel services in Oshawa for criminal matters, she says in her no- tice of application. However, after the investigation of a harassment dispute between several employees she supervised, MacKinnon opted to leave her position at LAO rather than take a non-managerial role. Then, her new role as a duty coun- sel was stopped by the old dispute between her former employees, ac- cording to a factum. Letters filed from MacKinnon's lawyer, Mark Fletcher, a partner at Grosman Gale Fletcher Hopkins LLP, to LAO detail that legal aid's decision to exclude Oshawa from her panel membership has "inhib- ited her private practice," has made her work inaccessible as she no longer has a vehicle and has inter- fered with her weekend availability for bail court hearings. "Despite the fact that Ms. MacKinnon was not personally accused of harassment and that she acted appropriately to escalate [the complaint] as soon as it came to her attention, on July 29, 2015, she was called into a meeting with Randal Ellsworth, LAO vice presi- dent, and informed LAO wanted to remove her managerial respon- sibilities and transfer her to LAO's Scarborough office as a criminal duty counsel," the factum said. "Having done nothing wrong, Ms. MacKinnon was not prepared to accept a demotion and be forced to work in another city, so she re- See Left, page 2 Follow & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Celebrating In-House Counsel Sept. 20, 2018 | Arcadian Court, Toronto Keynote Speaker: The Right Honourable David Johnston, C.C. Governor General of Canada (2010 - 2017) Chair, Rideau Hall Foundation, Executive Advisor, Deloitte FORGING A STRONGER FUTURE Signature Sponsor Cocktail Sponsor Silver Sponsor Untitled-5 1 2018-09-05 4:16 PM Mary-Clare MacKinnon is seeking judicial review on the way her panel membership was handled by Legal Aid Ontario.

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