Law Times

November 12, 2018

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Page 2 November 12, 2018 • Law Times The Ontario bill comes amid a looming justice reform bill, Bill C-75, at the federal level, which also proposes changes to juries. The two bills look at two aspects of jury composition, says Jør- gensen: Who is in the pool and who gets picked. Kate Robertson, an associate at Markson Law in Toronto, says the criminal justice system is moving away from "blunt" tools such as province-level bans on jurors and focusing increasingly on reforming policies to redress issues such as the overrepresen- tation of Indigenous communi- ties in the criminal justice sys- tem, which excludes them from juries. "When we are looking at the contemplated reforms under Bill C-75, really everyone agrees with the ultimate question that juries must be representative. The contested question right now is deciding the best way to achieve that goal," says Robert- son. "I would think that if Bill C-75 passes in its current form, it will likely be that much more important to ensure that the pool of eligible jurors is itself representative of the wider com- munity. That's because, under Bill C-75, the bill removes a pro- cedural tool called pre-emptory challenges that currently can be used as a mechanism . . . of en- suring that the jury itself is rep- resentative in a particular case." As a member of the Liberal party, Des Rosiers' bill may not represent the agenda of the ma- jority of the provincial govern- ment, and it's also still unclear which aspects of the federal and provincial bills will be approved and how they may interact. Nonetheless, Des Rosiers says, Bill 52 is not "political." "Lawyers interested in crimi- nal justice should support this bill," says Des Rosiers. LT indictment is unable to act fairly and impartially as a juror," wrote Des Rosiers in an emailed state- ment. "Communities who may have been at times 'overpoliced,' whose membership is overly represented in the criminal jus- tice system, are systematically excluded, which compounds the problem of underrepresentation of these groups in the jury pool." Gregory Lafontaine, who practises at Lafontaine & Asso- ciates Barristers in Toronto, was one of the lawyers that argued R. v. Yumnu, a Barrie, Ont.-based case that ended up before the Su- preme Court of Canada in 2012. That case challenged the fair- ness of "a 'jury vetting' practice in the Barrie area, consisting of inquiries conducted by the po- lice, at the behest of the Crown Attorney's office, as to whether potential jurors had a criminal record or whether they were otherwise 'disreputable persons' who would be undesirable as jurors," said the Supreme Court of Canada decision. The panel of judges in that case said that while the Crown should not have asked the police to use po- lice databases to detect "disrepu- table persons," the trial was still fair. Lafontaine says the simpler jury eligibility model proposed in Bill 52 represents "a shift en- tirely in the other direction" from the Yumnu decision. "People who have had con- victions for relatively minor offences at some point in their life and aren't pardoned pres- ently can't sit on a jury and, in my view, there's not necessarily a good reason for that. Somebody may have been convicted [of a] minor offence in their 20s and [are] now in their 50s and have led an otherwise exemplary life, but they are not able to qualify for jury duty. They might actu- ally bring life experiences that may provide them unique in- sight into the experience of [the] justice system," says Lafontaine. "The sort of whole theory behind having those checks in place in the pre-Yumnu time was individuals might try to slip on to the jury where they have a serious indictable conviction in the past. I think that's far- fetched." The Law Society of Ontario's current Convocation recently approved a budget that in- cluded a $50,000 donation to Pro Bono Ontario for 2019, the same amount as was donated in 2018, after years of donating office space to the organization. There are no plans to alter those amounts, an LSO spokesperson said in an email statement on Nov. 8, as the law society has not received a request for additional funding from Pro Bono On- tario, says Susan Tonkin, senior communications advisor at the Law Society of Ontario. Pro Bono Ontario has dealt with a multi-fold increase in cli- ents over the past decade with nearly the same level of infra- structure as before, after a 2010 cut to a Legal Aid Ontario grant slashed the funding, says Burns. Pro Bono Ontario's total op- erating budget was $1.6 million in 2017, which is used to operate projects in 11 locations in On- tario, wrote Yonit Fuhrmann, Pro Bono Ontario's deputy dir- ector, in an emailed statement. The Law Foundation of On- tario has a sustaining grant of $800,000 per year for Pro Bono Ontario, and the law society has approved funding in the past for organizations such as Lawyers Feed the Hungry that were in the process of finding long-term financial funding. The organization says that $500,000 is needed to keep the centres open in 2019. "Because we spent down our reserve fund in previous years to keep the centres running, we are experiencing cashf low prob- lems. If we kept the centres open past December 2018 without new funding, PBO would be in- solvent by spring," wrote Fuhr- mann. Pro Bono Ontario says it's the only one with a response to civil, non-family needs in Ontario when it comes to serving groups such as students, the working poor and the disabled. A GoFundMe campaign has been launched by former On- tario Bar Association president Quinn Ross in an attempt to raise $500,000 to save Pro Bono Law Help Centres in Toronto and Ottawa. Ross, a real estate lawyer who runs The Ross Firm PC, recently announced that he plans to run in the law society's April 2019 election. He says that increasing the LSO budget for Pro Bono Ontar- io is only one road to removing the barriers Ontarians face when working through legal issues. "I understand that an insti- tutional response to emergent issues takes time, which is why I took the initiative to start the Go- FundMe campaign, while public interest was piqued," says Ross. "I think the LSO should give careful and specific consider- ation to providing additional financial aid and I would sup- port that consideration. I do not, however, think that, as a matter of policy, emergent and unique circumstances should rule the day." The struggles at Pro Bono Ontario are not new. The decision to close the three help centres comes after three years of discussions with the provincial government, starting with the Liberal govern- ment and carrying over to Pre- mier Doug Ford's government this year, says Burns. The province did not pro- vide comment on the closure of the centres, when asked by Law Times. Erin Durant, who practises insurance defence litigation and labour and employment law as a senior associate at Borden Lad- ner Gervais LLP in Ottawa, says she has not considered running for bencher but is considering Pro Bono Ontario's situation as she plans to cast her vote in the bencher election. "I am still focusing on growing my practice and accomplishing things internally at BLG such as obtaining partnership," says Du- rant. "However, the law society's failure thus far to step forward to assist Pro Bono Ontario by providing emergency support to keep these centres open has made me seriously look at the candi- dates for bencher and what their policies are toward supporting pro bono services in Ontario." Sean Bawden, a partner at Kelly Santini LLP, had 159 sup- porters as of Nov. 9 for a propos- al he made on Twitter to impose a levy on lawyers to fund Pro Bono Ontario. LT NEWS Pro Bono centres in peril Continued from page 1 Continued from page 1 Bill 52 could change Juries Act © 2018 Thomson Reuters Canada Limited 00251KJ-A92244-CM Available risk-free for 30 days Online: Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8617-65203 $185 Hardcover approx. 520 pages May 2018 978-0-7798-8617-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Publication Support Rights and Obligations Under Ontario Family Law Robert M. 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