Law Times

Page 4 NEWS Time for study ���is over��� Continued from page 1 system,��� says Jonathan Rudin, program director at Aboriginal Legal Services of Toronto. ���You can���t solve the jury issue without recognizing those things.��� The Ministry of the Attorney General said it plans to immediately adopt Iacobucci���s first two recommendations, which ask the government to create an implementation group and an advisory committee to oversee application of new measures. ���Since no solution to increasing First Nation representation on jury rolls can occur without working directly with First Nation partners, we will form an implementation committee that includes representatives from the First Nations community and from various government ministries,��� Attorney General John Gerretsen said in a press release. Currently, there isn���t a single list of the names and addresses of First Nations people living on reserves, says Rudin. Iacobucci suggests the government uses OHIP records to gain access to names of those living on reserves. Although provinces like Manitoba are already using health card information for jury duty purposes, Ontario is still not up to speed, says Rudin. ���The fact that Manitoba uses health card information has been known since the 1990s. Ontario knew there were other ways of doing it.��� For jury duty selection purposes, the Ontario government normally uses the Municipal Property Assessment Corporation���s (MPAC) database, which doesn���t include aboriginals living on reserve, says Rudin. ���The problem with the jury system right now is that it lacks credibility with minority communities, with black communities, with aboriginal communities, and with lots of ethnic communities in Canada,��� says David McRobert, who is a member of the Ontario Bar Association���s aboriginal law executive committee. ���And why is that? Because they don���t see themselves often on those juries and they feel that their particular values are not reflected on those juries.��� In a case involving the 2007 death of Jacy Pierre, a member of the Fort William First Nation near Thunder Bay, Pierre���s family withdrew from the inquest after neither the coroner nor the attorney general responded to their request that a member of the First Nations community sit on the jury. Rudin, who represents the Pierre family, says the case remains stalled. But according to Iacobucci���s report, lack of access to communities and language barriers aren���t the only reasons for the absence of aboriginal people on juries. Some cultural teachings of First Nations people are incompatible with the duty jurors are expected to fulfil. ���The traditional aboriginal justice process was aimed at restoring the offender and the victim to a place of harmony, peace, healing, and reconciliation,��� says the report. ���Because criminal trials require the jury to make a finding of guilt or innocence, which potentially affects a person���s future in a negative way, many First Nations people feel unwilling to participate in that process.��� Iacobucci adds that when questionnaires are sent to potential jurors, citing fines for non-response, First Nations communities view it as ���imposing jury duty through intimidation and threat.��� He suggests the government use language that is less likely to be perceived as a warning. However, Iacobucci notes: ���The First Nations people with whom I met expressed a willingness and desire to work towards a reconciliatory model of justice that respects and incorporates First Nations traditional values and laws as a matter of self-governance within Canada���s justice system.��� Dianne Corbiere, a partner with Nahwegahbow Corbiere, says it���s ���high time��� Ontario implemented the recommendations in the report, including finding a way of incorporating traditional aboriginal laws into the justice system. ���We���re not about just including us. We���re about recognizing that we have our own tradition and laws,��� she says, adding that recommendations like Iacobucci���s have been brought up before by organizations such as the Canadian Bar Association and the Indigenous Bar Association. ���The time for studying this issue is over,��� she says. ���This is a time for real, fundamental action.��� For his part, Iacobucci also wrote that ignoring the issues would be shameful. ���Doing nothing will be a profound shame, especially when there has been a greater recognition throughout Canada of the tragic history of aboriginal people, with many examples of mistreatment, lack of respect, unsound policies, and most importantly a lack of mutual trust between aboriginal and non-aboriginal people,��� he wrote. LT March 4, 2013 �� Law Times ��� Delays targeted Continued from page 1 means people should be heard.��� Short���s decision helps to further define this new rule that continues to be tested, said Colin Chant, who has a wide-ranging civil defence and plaintiff personal injury practice with Moddie Mair Walker Lawyers and has been following decisions affected by a rule he calls a potent tool to weed out languishing cases. ���[The decision] continues to fill in the gaps in the jurisprudence that people have worried about,��� said Chant. ���It gives us a nice lay of the land. ���If you don���t move . . . then you face the prospect of having the action dismissed,��� he said. ���There���s now more of a formal process around the status hearing.��� Rule 48 was designed to weed out lingering cases and lays out a series of actions that need to be carried out in order for them not to be dismissed as abandoned. And there is reference to steps that need to be taken. Short clarifies what is necessary to avoid a registrar���s dismissal and offers a more specific set of criteria, said Chant. To avoid a dismissal, the motion must be well on its way to being resolved, meaning a great deal of emphasis is placed on the speed of justice, observed Chant. ���He gives more specific criteria on what a master is going to be looking for. But at the end of the day, there���s still that residual discretion.��� Brian Radnoff, a commercial litigator at Lerners LLP, said the intent of the rule is to keep things moving along. ���Courts are starting to be more strict with delays,��� said Radnoff. At the same time, defendants are becoming more aggressive in complaining about delay. ���This decision contains a very thorough analysis of what a court should consider at a status hearing when there���s a motion to dismiss for delay.��� Despite direction provided from the courts, the rule isn���t universally accepted. In fact, the Ontario Bar Association has been asking for changes to Rule 48. ���It is our view that the operation of the rule results in an avoidable waste of administrative resources and limits access to justice through unproductive use of judicial resources,��� said Chris Jaglowitz, chairman of the OBA���s civil litigation section. ���There is little policy justification for the status hearings to weigh against the fact that they are wasting court resources. ���Given the fiscal situation and the need to find efficiencies wherever possible, it is increasingly crucial that inefficient and unnecessary procedures are eliminated to ensure critical justice services can survive.��� Jaglowitz said those limited resources are being unnecessarily consumed in the process to reverse dismissals resulting in status hearings. And he suggests the rule is unnecessary because remedies already existed in the Rules with Rule 24 already dealing with undue delay. LT AVAILABLE ONLINE AND IN PRINT WIpN GACard le ift REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ting 500 Aepyour current lisnced a Upgrad or Silver enh 13 ld 20 to a Go by June 30, in. listing hance to w for a c elow for details $ See b PLUS! Monthly draws from January to June, 2013 for a $100 Apple Gift Card just for asking how you can develop your business with an Annual Gold or Silver Enhanced Listing. Untitled-3 1 With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com Visit www.canadianlawlist.com for full contest details. www.lawtimesnews.com 13-01-08 1:26 PM

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