Law Times

www.lawtimesnews.com Page 6 March 31, 2008 / Law TiMes A s I read about Canadian Brenda Martin languish- ing in an overcrowded Mexican jail cell for over two years as she awaits trial on a fraud charge, I am smug that we in Canada have a Charter right to a speedy trial. When cases take too long to get to trial in Canada we stay the charges for unreasonable delay. Thus it has been since the Askov decision of the Supreme Court of Canada in 1991. That's as it should be, but it ignores the rights of victims. Where is the justice for the victims of sex assaults and other crimes when an accused avoids trial by reason of delay? Why should victims suffer because of systemic delays or over- worked Crown attorneys who lose sight of the ticking of the clock? Victims who see their offend- ers walk free due to technicalities, botched prosecutions, or foul-ups in the system deserve some form of compensation. I'm not talking about the minimal compensation that the Criminal Injuries Com- pensation Board provides. The maximum award available from the Ontario CICB is $25,000, an amount that was set in 1971 and has never been increased. I'm talking about the use of the civil courts to obtain redress directly from the offenders themselves. A civil court may be able to provide the justice that wasn't available through the criminal justice system. We all know that O.J. Simpson was successfully sued for monetary damages arising from the murder of his ex-wife and her boyfriend after the perverse jury verdict found O.J. not guilty. There's also ample precedent for victims of criminal acts successfully suing their offenders in Canada in cases, regardless of whether the defendants were or were not con- victed in the first instance. Victims may not always be able to collect on the judgments but they just might get some satisfaction by hav- ing their day in court. Instead of suing just the of- fender, maybe the net can be cast a bit wider. Perhaps there is someone else who should be sued. Is there someone who aided and abetted the offender? Perhaps someone was in a position to stop the assault but didn't. Perhaps someone was negligent. Maybe even a parent or spouse. Maybe an employer is vic- ariously liable. We need to look for a deep pocket. The Ontario Court of Appeal (88 O.R. (3d) 1) recently upheld a damage award where a victim sued not only her male at- tacker but also the attacker's wife. The male pleaded guilty to the as- saults — which took place around 1985 — and was sentenced to nine months, but the victim sued both the male and his wife. The court accepted that the wife knew of the assaults or was wilfully blind to them and was in a position to stop the assaults but did nothing to prevent them. The victim obtained a judgment of $100,000 plus inter- est of $21,250 and reimbursement of legal costs of $32,000 against both defendants. When suing, remember to con- sider including the victim's spouse, child(ren), and parents as plaintiffs, where warranted. Also, remem- ber to seek costs on a substantial indemnity basis. Under the Vic- tims' Bill of Rights Act, judges are directed to order costs in favour of a victim on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice. I can hear your objections al- ready. Where are the victims going to get the money to pay for lawyers? Won't any judgments be worthless? I don't have easy answers but I do have some suggestions. Ontario has had a Victims' Bill of Rights Act since 1995. Millions of dollars are collected every year through a victim surcharge, which is added to most Provincial Offences Act fines. Why doesn't the government allow victims to use some of this money to retain lawyers to sue their offend- ers for bodily harm and emotional distress? If the government won't allow this, surely there are lawyers who will take on these cases on a contingency basis. Also, if the On- tario attorney general really cares about victims' rights, then there ought to be a mechanism whereby uncollectable judgments can be paid out of the victim surcharge funds. Remember the preamble to the Victims' Bill of Rights Act states: "The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with com- passion and fairness. The people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process." Surely the "justice process" referred to is broad enough to in- clude the civil justice system. If we can't provide justice for vic- tims in a criminal court, surely we can provide justice in civil courts. If we are unable to do that then we fail the victims a second time. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com Should have known better W e've all heard the adage, "a law- yer who represents himself has a fool for a client." All of us except apparently Heather Mills, the for- mer wife of short-sighted and pre-nup-less Beatle Paul McCartney. For, not only did Mills — best known in the colonies for her turn on Dancing with the Stars — fire her own legal team during her long and wind- ing divorce proceeding from the mop-top millionaire, but she's advising others not to spend their hard-earned gold on such silly things as lawyers. Call it the Magical Mystery Tour, or Can't Buy Me Love. "It's not easy, but just make sure you do all your research," she advised other family law litigants. "Save yourself a fortune." Well, did it work for her? After all, it's been reported Mills sought a whopping $250 million and came away with $48 million, a drop in the proverbial bucket of McCartney's $800 million fortune. In fact, observers, like London lawyer Patricia Hollings, thought the amount was, "in the scheme of things . . . quite surprisingly low. It is only offering her about six per cent of his assets. In terms of high-wealth cases it's very low." Sure, Mills cackled on the London courthouse steps later that she consid- ered it a win with which she was "very, very pleased." It does calculate out to $34,000 for every day of her marriage, so hello. But was she really, pleased? One could conclude that pouring a pitcher of drinking water over the Camilla-esque tresses of McCartney's lawyer Fiona Shackleton in court, was a clearer indica- tion of how well she thought she really did. (The fact that Shackleton looked better with dripping wet hair à-la-Diana- on-a-yacht, as she emerged from court, is likely irrelevant.) It's not probable that Mills was making a fashion commentary — however accurate — but rather vent- ing her frustration at losing. So let's break this one down. While no, obviously this is not an Ontario case, it is of interest to some of us this side of the pond, because what we have here is a woman crowing on internet sites around the world that the way to go is without a lawyer. And hey, if you don't like counsel on the other side dunk her while court's in session. With no repercussions. Great example. But this isn't jolly old. In this province we have unrepresented family law litigants who can't get legal aid, lined up around the block. The OBA has called for a significant increase in legal aid funding with a focus on helping the unrepresented. And, one assumes that if someone had "baptized" a lawyer during court in Ontario, some sort of sanction would result. Listen to the lawyers quoted in our front page story by Tim Naumetz: Our family court system is in crisis with a dire need for judges. And, Naumetz writes, adding to the problem is the unrepresented can clog up the process further because the few judges who are there must take time to assist them. Meanwhile, it looks like Mills isn't taking her own advice after all. News reports say she's hired California lawyer Gloria Allred to represent her in the U.S. though for what purpose it remains to be seen. She's also claiming she'll use some of her settlement monies, to support pet charities, which we assume doesn't include funding a rest home for paid-off exes like Larry Fortensky. The bottom line is, Mills' message is dumb. The best way to go is with a law- yer, and it's hoped that soon our system will be more available to those in need. — Gretchen Drummie Editorial Obiter Editorial Obiter Suing offenders COMMENT Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca circulations & subscriPtions $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaran- teed. 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