Law Times

www.lawtimesnews.com Page 4 January 28, 2008 / Law Times Refused to hear closing submissions from Crown JP was 'illogical and profoundly wrong at law' BARRIE – The edict of a justice of the peace, who insisted he did not have to hear submissions from the Crown at a bail hear- ing, was shot down by a higher judge recently in the Barrie Su- perior Court. Justice Margaret Eberhard ruled at a Dec. 10 bail review that justice of the peace Philip Solomon was "illogical and pro- foundly wrong at law," on two points during a bail hearing he held a month earlier. The first was when Solomon insisted he did not have to swear in a law- yer on the witness stand. The second was when he refused to hear closing submissions from the Crown, who opposed the surety. The contentious hearing arose at a bail hearing Nov. 6, when Crown attorney Michael Minns vehemently tried to oppose a surety who, he sug- gested, was "wearing four hats" as the offender's friend, live-in landlord, employer, and lawyer. The accused, an 18-year-old male who was a young offender at the time of the alleged crime, had a long list of previous con- victions on his record, including assaults, uttering threats, breach- es of probation, and dangerous driving in Orangeville, Milton, Belleville, Oshawa, and Barrie. The more recent offence of dangerous driving involved police allegations that the teen was driving erratically at 100 km/h in a 40-km/h school zone last May. Once police pulled him over in the Mercedes-Benz that allegedly belonged to his lawyer, the youth resisted ar- rest and had to be taken down forcefully, police say. The mat- ter is set for trial next May. At his bail hearing, the youth's lawyer, Eginhart Ehlers, who has since removed himself, took the witness stand. "I believe this officer is an officer of the court," said Solo- mon. "It is not necessary to swear him in." The Crown objected, noting Ehlers was not acting as an of- ficer of the court at the bail hear- ing, but rather as a surety. "Your objection is noted. Please go ahead," said Solomon, who allowed the witness to con- tinue without affirming or tak- ing an oath. Throughout his examina- tion, the Crown raised his con- cerns over how much involve- ment Ehlers had with his client. "This is a client that you em- ploy; this is a client to which you act as surety; this is a client to whom you have provided a place to live, correct?" asked Minns, noting the lawyer was already acting as a surety for the youth in a previous charge. "Correct," answered Ehlers. Following the hearing, and following a lengthy closing sub- mission from defence counsel, Solomon immediately asked the youth to stand while he deliv- ered his decision to release him. That's when Minns rose. "Sorry, I don't want to inter- rupt," said Minns. "Is Your Wor- ship prepared to hear from me?" "No sir, it is not necessary," answered Solomon, who then ordered the youth to be released with Ehlers as the main surety on strict conditions and with $7,500 bail without deposit. "I'm sorry to interrupt," said Minns, who rose again. "I'm concerned about the appearance of not hearing from the Crown . . . There's a principle of natural justice called audi alterum par- tem, and that's the right to be heard, both sides, before a deci- sion has been made." But again he was cut off, with Solomon insisting the principal only applies at a trial, not at a bail hearing, especially since it was a reverse-onus hearing. "This was a flagrant violation of the administration of justice," said Crown attorney Ray Wil- liams, who conducted the bail review before Justice Eberhard. "At times the justice of the peace was just downright rude." Along with the "bizarre" be- havior of not swearing in the witness and not allowing the Crown to speak, Williams also contended the youth should not have been let out on bail and that the suitability of the surety was questionable. "It's an affront to the administration of justice," said Williams. "All witnesses must swear or affirm — a witness who is a law- yer has no special status in that regard," said Eberhard in her ruling. "And unless the justice of the peace intends to accept the posi- tion of a party, he must hear the submission of the party. The ex- planation that it is a reverse onus and that he is satisfied so that it is not necessary to hear from the Crown is both illogical and profoundly wrong at law," said Eberhard. "It is the duty of an advo- cate to present his submissions and he should not be reproved for seeking that opportunity. All participants, counsel, and judicial officers owe a duty of courtesy." In the end, and "despite the significant errors of the JP," Eberhard allowed the youth to remain out on bail with Ehlers as surety, but under stricter conditions and provided Ehlers no longer acts as lawyer for the youth. Eberhard, in agreement with the Crown, noted the youth had not breached his bail conditions and proved himself through the passage of time. NEWS Office & Furniture Products • Corporate Promotional Products Printing & Graphic Services • Law Office Essentials Corporate Supplies • Search & Registration Services your ONE source supplier for your One source for Law Office Essentials is Dye & Durham, known for selection of products geared towards today's legal profession W e ' r e a C a n a d i a n C o m p a n y dyedurhambasics.ca • 1-888-393-3874 • Fax: 1-800-263-2772 OFFICE & FURNITURE PRODUCTS BASICS ® Ultra Easy Fit Deluxe Binder Our best built presentation binder. Space saving design with double hinged cover. Unique design takes less space on a shelf. 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