Law Times

Page 6 November 11, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth A way forward on jury representativeness O n its face, the recent Ontario Superior Court case of R. v. Kennedy is proof of the seemingly overwhelming difficulty of addressing the First Nations jury issue. In that case, Justice Andrew Goodman rejected an application to have a sheriff found guilty of fraud, partiality or wilful misconduct over the lack of First Nations members on the jury panel. The case involved a First Nations member, Gregory Kennedy, charged with sexual interference and sexual assault. While the recent Ontario Court of Appeal decision in R. v. Kokopenace highlighted the government's duty to make reasonable efforts to include First Nations members on jury rolls, it's clear officials involved in the Kennedy matter did just that. In the London, Ont., area where the Kennedy matter was taking place, officials sent letters to the band chiefs of the three local reserves. There was no response. Sheila Bristo, acting director of the corporate planning branch at the Ministry of the Attorney General, eventually had the sheriff contact the chiefs directly so a senior manager could possibly drive out to the reserves to discuss the issue. The letters all came back as undeliverable. In the end, the bands either declined to share their residents' lists or didn't respond. The issue is, of course, a complex one. As former Supreme Court justice Frank Iacobucci noted in his report on the issue this year, First Nations are reluctant to participate on juries for a host of reasons. They include cultural barriers due to the fact "the criminal justice system represents deep-rooted pain and oppression for many First Nations peoples"; the overrepresentation of aboriginals in the corrections system; and the reduction in support over the years for restorative approaches to justice. In addition, many chiefs, Iacobucci found, believe they can't share residents' lists due to their obligation to protect people's privacy. Many people also oppose the threatening language in jury questionnaires for non-compliance. "This is about reversing what has been traditional alienation and disenfranchisement between First Nations and the justice system as it's currently set up," says Julian Falconer, who was counsel to the Nishnawbe Aski Nation in Kokopenace. Falconer is right. As Iacobucci noted, there's lots of work to do in addressing the issue beyond what are the arguably reasonable efforts made by provincial officials in Kennedy. He set out a number of recommendations, which the province has already begun to act on by establishing an implementation committee. Iacobucci's suggestions range from the practical (such as toning down the threatening language in jury questionnaires for non-compliance) to more systemic change. The latter issue, of course, is the most difficult to take action on. The federal government in recent years has been particularly reluctant to acknowledge and address First Nations' deep disagreements with the system as it stands. Unless that changes, we'll continue to see the types of unsatisfactory and ridiculous scenarios evident in Kennedy. — Glenn Kauth Lawyers in high demand as Senate scandal drags on W hen politicians get into legal trouble, they do what many of us do: they turn to the best lawyers they can afford. That's what Mike Duffy did by hiring Janice Payne of Nelligan O'Brien Payne LLP in Ottawa. She's one of the top employment lawyers in the country. At the time, Duffy was negotiating with Nigel Wright and a bunch of socalled "kids in shorts pants" from the prime minister's office. Duffy was trying to keep his Senate job in the face of demands to pay back the money the Senate accounting people said he had improperly obtained for his lodgings. Harper had the Conservative party lawyer, Arthur Hamilton, on his side. Wright, meanwhile, said he paid the $90,000 Duffy owed out of his own pocket. Now why would Wright do a thing like that for a guy he barely knows? Maybe it was because the party's bagman, Sen. Irving Gerstein, didn't want to pay for Duffy's $90,000 scam over fears of a backlash from the party donors. Hamilton's role was getting his law Law Times election campaign reimbursefirm, Cassels Brock & Blackfrom taxpayers. The well LLP, to send a cheque The Hill ments paid the money back party for $13,560 to Payne. There's plus a $50,000 fine. paperwork backing it up. But The opposition parties why should the Conservahave been getting worked up tive party's lawyer be paying about the top-notch ConserDuffy's counsel? That sort of vative lawyers. Liberal Marc thing usually happens when Garneau snapped in the there's a deal. Commons: "Arthur HamilNDP Leader Thomas Mulcair has been going after Harp- Richard Cleroux ton is well-known for mopping up ethical problems for er hard and fast for months over the Senate issue. His best line was the the current government. So why did the other day. "Since the prime minister now prime minister's entourage pay Duffy's leclaims that the whole deal was wrong, is he gal fees unless there was something very going to fire Arthur Hamilton?" he asked. serious to cover up?" But when Duffy got his turn to state It doesn't look like it. Hamilton has been coming to the rescue of Harper and his case in the Senate, he hired a noted his party for years. Hamilton was Harp- criminal lawyer, Donald Bayne, who er's lawyer when Helena Guergis took went on live television with an impasthe prime minister to court after he fired sioned plea in favour of due process for her for reasons still unknown. Hamilton his client. Bayne was brilliant. So why did Harper pay Payne's legal fees won the case. Hamilton also rescued the Conserva- but not Bayne's? Pamela Wallin hired Terry tive party when Elections Canada charged O'Sullivan as her lawyer, and there's not a it in the so-called in-and-out scandal for scrap of evidence that Harper paid a cent scamming something like $252,000 in for her legal fees. Was that because there 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 • clb.lteditor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth 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 Advertising Sales . . . . . . . . . . . . . . . . Steffanie Munroe Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . Grace So Advertising Sales . . . . . . . . . . . . . . . . . . . . Joseph Galea ©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., 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 and address changes should include a copy of the mailing www.lawtimesnews.com was no deal between her and the prime minister's office? During his very moving presentation in the Senate, Duffy revealed the existence of the deal between himself and members of Harper's office. Lawyers involved in the matter had negotiated elaborate undertakings, Duffy said. "They were taking instruction from their clients — at least two lawyers from the PMO, one I know from the Conservative party, and my own lawyer." The Conservatives have repeatedly denied there were any undertakings or deals of any kind. Now everything is in the hands of the police as they prepare a court case. We still don't know who they intend to charge. There's only one thing less sure than predicting the outcome of trials. That's predicting who the police will charge and on what counts. This thing isn't over by several years. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. He can be reached at richardcleroux@rogers.com. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Grace So .............................................416-609-5838 grace.so@thomsonreuters.com Joseph Galea .......................................416-649-9919 joseph.galea@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com

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