Law Times

HEALTHY LAWYERS TRIAL BACKLOG 'Shameful' wait times in Toronto courts Follow LAW TIMES on www.twitter.com/lawtimes $4.00 • Vol. 24, No. 26 p2 FOCUS ON p7 Set workload boundaries Pensions Law L aw TIMes p9 CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M August 19, 2013 CLA wants talks on amicus pay ntitled-4 1 12-03-20 10:44 A Organization seeking agreement on compensation protocol BY YAMRI TADDESE Law Times A fter the Supreme Court of Canada banned judges from determining the pay for amicus curiae, the Criminal Lawyers' Association is looking to sit down with the attorney general to come to an agreement about a compensation protocol. The association suffered a defeat after the top court said the government of Ontario — and not judges — should be in charge of determining how much courtappointed counsel should receive for their services. "Allowing superior and statutory court judges to direct an attorney general as to how to expend funds on the administration of justice, in the absence of a constitutional challenge or statutory authority, is incompatible with the different roles, responsibilities, and institutional capacities assigned to trial judges, legislators, and the executive in our parliamentary democracy," wrote Supreme Court Justice Andromache Karakatsanis on behalf of the majority. In previous decisions, the appeal court had ruled that if judges have the authority to appoint amicus lawyers, they should also have jurisdiction over their pay even if the amount is above the legal aid tariff. The Supreme Court disagreed. "Furthermore, in our system of parliamentary democracy, an inherent and inalienable right to fix a trial participant's compensation oversteps the responsibilities of the judiciary and blurs the roles and public accountability of the three separate branches of 'The court should have a final say in matters such as these,' says Andras Schreck. Photo: Robin Kuniski government," the top court said in a decision this month. Criminal Lawyers' Association president Norm Boxall says he's "more than disappointed" by the decision. The tariffs set by legal aid are inadequate, says Boxall, suggesting those rates shouldn't apply to amicus curiae as well. "We feel strongly that the legal aid rate should be for persons who require and need legal aid. When a judge is retaining a counsel for the court, it's the judge's lawyer. The judges are not persons that require legal aid," he says. "It cannot be a principle that because they are paid by government funds, our public funds, that legal aid applies. It doesn't apply when Crown retains counsel. It doesn't apply in civil cases," Boxall continues. But following the decision, Boxall and his colleagues are now thinking about the next step in advocating for fair pay for friends of the court in criminal law. "The first and most obvious step is that we contact the attorney general and in the process of that to sit down and see if there can be a protocol developed that would determine how counsel are chosen for amicus and also some protocol to set rates," he says. "It shouldn't be done case by case. There should be something looked at in the bigger picture." Ministry of the Attorney General spokesman Brendan Crawley didn't say whether the office would work with the CLA to come up with a pay structure but noted the government is willing to speak with the organization. "The Criminal Lawyers' Association and its members play an important role in Ontario's justice system," See Pay, page 5 Carter instruction in two-person conspiracies upheld For Law Times T he Ontario Court of Appeal has rejected suggestions that the standard instruction to juries about the use of co-conspirator acts and declarations is unfair when an alleged criminal conspiracy involves only two people. A special five-judge panel upheld the use of the R. v. Carter instruction and dismissed the appeal of Nicola Puddicombe. She was convicted in 2009 of first-degree murder in the death of her boyfriend who was struck six times on the head with the blunt end of an axe while sleeping. "Some rules governing criminal trials are of necessity complicated," wrote Justice David Doherty on behalf of the panel in R. v. Puddicombe on Aug. 7. "Our system of trial by jury, however, presumes that juries can and do understand and apply instructions given to them by trial judges," Doherty explained. long-time boyfriend, Dennis Hoy, in 2006 with her then-girlfriend, Ashleigh Pechaluk. The two women were tried separately in two highly publicized trials in Toronto. Pechaluk, accused of wielding the axe, testified on her own behalf and was acquitted by a jury. She was then called as a Crown Our system of trial by jury, however, presumes that juries can and do understand and apply instructions given to them by trial judges. "If those instructions are plainly put, I do not think that one should assume a jury cannot follow them simply because they may seem illogical to the jury." Puddicombe was accused of formulating a plan to kill her witness at Puddicombe's trial. Pechaluk denied killing Hoy but testified that Puddicombe wanted Hoy dead and intended to blame it on an intruder. The jury also heard evidence from co-workers of Pechaluk about comments she made on plans to kill Hoy. The Carter instruction requires the trial judge to tell a jury it must be satisfied beyond a reasonable doubt that there is a plan. Then, it must decide if the accused was probably a participant in a plan based on all of the direct evidence that is admissible. Finally, if step two has been satisfied, the jury can use evidence of the acts and declarations of the other member of the conspiracy against the accused to decide if the person is guilty beyond a reasonable doubt. David E. Harris, who represented Puddicombe in her appeal, expresses concern that a Carter instruction can lead to inadmissible hearsay being used when a two- PM #40762529 BY SHANNON kARI See A matter, page 5 ONTARIO LAWYER'S PHONE BOOK 2013 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS More detail and a wider scope of legal contact information for Ontario than any other source: 26,000 lawyers 9,000 law firms and corporate offices OLPB_LT_Feb11_13.indd 1 Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation 13-02-06 12:58 PM

• Cover