Law Times

Page 6 March 4, 2013 ��� Law TiMes COMMENT u Editorial obitEr By Glenn Kauth Require true residency for senators I t���s interesting that questions around senators��� actual residency status are emerging now. After all, it���s hard to believe the phenomenon of senators with tenuous residency links to the provinces they represent began with the appointments of Pamela Wallin, Mike Duffy, Mac Harb, and Dennis Patterson. Prime ministers have long used the Senate as a patronage dumping ground for the Ottawa political class, so it���s inevitable there have been lots of previous appointments of people who live full-time in one province but own property elsewhere. The issues in the latest controversy centre largely on the meaning of the residency requirement for senators. Does being a resident require them to simply own property in the province they represent and, presumably, spend lots of time there or do the rules mean they must be residents in the full legal sense with driver���s licences and health cards from their Senate jurisdiction along with their income taxes filed there? Last week, the Senate said merely owning property was good enough. But the controversy is an opportunity to refine the rules further. The issue, of course, involves constitutional questions, which makes it a difficult area to resolve. But given the Senate���s lack of legitimacy as a patronage dumping ground, it would be wise for the government to embrace stricter rules that would require residency in the full sense. Emphasizing a more stringent requirement would bolster the notion of senators truly representing their home provinces and may be a simpler area for Senate reform than the government���s current bid for an elected body. With the federal government already referring its plans for an elected Senate with term limits to the Supreme Court, the question of residency could be another issue to ask the judges about. The government claims it wants to bolster the Senate���s legitimacy through its own reform plans, so this would be another way of accomplishing that. When it comes to restoring credibility, however, Wallin, and particularly Duffy, will have lots of work to do. As former journalists, they���ve been especially hypocritical in admonishing reporters for their inquiries and shying away from answering questions. In their previous careers, of course, they would have been the ones asking the questions and pointing out their frustrations in not getting answers. It���s interesting to see how their approach has changed when they���re on the other side of the microphone. ��� Glenn Kauth Advising complainants a tricky area for defence counsel C omplainants, especially in domestic matters, frequently consult defence counsel. What should the lawyer���s concerns be when meeting with them? First, confirm the identity of the party you���re meeting with. Treat this like any other file, meaning proper documentation and a conflicts check are essential. A retainer and a discussion of the scope of it are important as you probably aren���t intentionally agreeing to sit through the client���s evidence and the spouse���s trial. There are two different scenarios. First, there���s the reluctant complainant who hasn���t yet spoken to the police. In this situation, determine if your client thinks he or she is at risk and advise that seeing a lawyer can���t ensure safety. The client must call the police for that. The longer the client waits, the less real his or her fear will appear to the authorities. Discuss with the client the typical bail conditions the court might impose if police lay a charge. If there are injuries, document them and advise the client to seek medical attention. The lawyer should also suggest having the injuries photographed. If police have already laid a charge, there are generally two reasons for a complainant to consult with you: to Law Times Crowns expect to meet with recant the statement made or resume a potentially dysfunc- A Criminal complainants before consenting to bail variations and may tional relationship with the Mind expect the accused to have accused. If possible, review taken some positive steps (a a copy of the statement the plea entered and sentence complainant client made to remanded or an anger manthe police. Determine if the agement program completed) complainant is seeking your before they���ll permit contact advice voluntarily as the acor let them return home. cused may be waiting outside. Some basic advice that���s useIt���s not advisable to draft an affidavit for a witness who appears Rosalind Conway ful to witnesses, especially those unfamiliar with the justice systo want to recant some earlier tem, is they���re free to stay completely out statement because you may make yourself a witness and you may be doing your of the matter unless they receive a subclient a disservice since you don���t and can���t poena.��They must respond to a subpoena have a copy of the brief. The Rules of Pro- but they have no obligation to attend at the fessional Conduct require counsel not to Crown���s office or the police station or submit to interviews with the police, victim be the dupe of an unscrupulous client. Defence counsel can advocate on services, the Crown or even the accused���s behalf of a complainant who wants the counsel.�� They don���t even have to discuss accused to return home. This requires with you what transpired between them a really in-depth interview with the and the accused. The only time they must complainant and taking a detailed per- talk is when they���re in court. Always stress the importance of tellsonal history, including whether there are past instances of police attendances ing the truth. Advise the client he or at the home and whether there are con- she can face criminal charges for giving cerns for the safety of children. If the false evidence.��Possible charges include Children���s Aid Society is involved or obstructing justice, giving contradicmight be, attempts to vary the bail may tory evidence, perjury, and even assault. negatively affect custody for your client. Police can arrest material witnesses Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON ��� M1T 3V4 Tel: 416-298-5141 ��� Fax: 416-649-7870 ��� www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . Michael McKiernan Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . . . . . . . . . . . Sandy Shutt ��2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 ��� ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 ��� 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com who fail to respond to a subpoena. Despite a bail order prohibiting contact, many complainants and accused parties communicate freely with one another. Their cellphone may be ringing or buzzing as they meet with you. The complainant, while not bound by the bail order, may be party to a breach of it if he or she contacts the partner and could face charges. Remedies may inure to your client by proceeding with the matter in court, whether through the restraining effect of a probation order, restitution or a civil judgment or from the Criminal Injuries Compensation Board. You may not be insured or competent to advise complainants on remedies they might receive or be abandoning and you may have to refer that part of the matter to other counsel. Advising complainants is a tricky area because the lawyer has to be extremely well informed to do a proper job. The best advice may simply be to do nothing by letting the prosecution take its course and telling complainants they don���t need to have their own lawyer. LT ���Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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