Law Times - Anniversary

Law Times • march 24, 2014 Page 5 www.lawtimesnews.com bears the burden of proving the essential elements of the al- leged offence beyond a reason- able doubt, it is the Crown who is responsible for eliciting the evidence-in-chief of Crown wit- nesses. It is simply not the proper function of the trial judge to con- duct that examination." Still, Campbell found Cavi- on's actions didn't impact the outcome of the proceedings and upheld the conviction in Plet- sas. Although his actions were inappropriate, the trial judge asked open-ended questions, remained neutral, and allowed the defence to properly make its case, according to Campbell. In addition, defence counsel didn't complain about Cavion's actions during the trial, he noted. "At no point during the course of the trial did defence counsel for the appellant raise any objection with respect to the questions posed by the trial judge or his other interventions in the trial proceedings." He continued: "While the absence of any objection by counsel is not, of course, deter- minative of the issue of the ap- pearance of fairness in the pro- ceedings, it is a factor to be taken into account." While speaking against a trial judge may be difficult, especially for junior counsel, "there is actu- ally a thick line between stand- ing up to a judge and being rude or getting cited for contempt," says O'Connor. Early in his career, O'Connor saw a judge tell high-profile de- fence lawyer James Lockyer to sit down during a trial. Lockyer told the judge, "with consider- able arrogance and disgust," that he wouldn't sit down because he had a client to defend, says O'Connor. "I've tried to keep that in mind every time I defend an individual," he notes. Yet in the same vein, the idea that appeal courts could factor in a lawyer's silence during a trial is problematic because, "if I have failed to object to something an appellate court might think is ob- vious, there was oen a very good underlying reason for it," he adds. Cavion "can be a challenge" for junior counsel, O'Connor notes, but "he gives it to both sides and I think it will be a very dull legal world when the judge Cavions of the world are no longer with us." Although defence counsel want to maintain a good relation- ship with judges, criminal lawyer David Cohn says that in the hot- house of a trial, the primary duty is to the client. "If you feel as counsel that a judge has abandoned a position of neutrality or there exists a reasonable apprehension of bias, then I think counsel has an obli- gation to raise that with the trial judge," he says, noting that doing so protects the record that will be a factor on appeal. "It is more important to pro- tect your client's interest than to worry about the potential of harming your relationship with the judge," he adds. Last year, Campbell criticized Cavion for a similar approach during a trial. "Indeed, virtually every significant piece of evidence provided by the testimony of Cst. Humphries was elicited by the trial judge. ere is no gain- saying the reality that the trial judge usurped the role of Crown counsel in the examination of Cst. Humphries," wrote Camp- bell in R. v. Lahouri. Even if a judge's inappropriate interjections don't affect the final outcome, they oen give the ap- pearance of bias, something that's problematic in itself, says Ottawa criminal lawyer Norm Boxall. "It's a fairly trite statement that justice must not only be done, it must be seen to be done," he says. Cohn agrees that the appear- ance of bias erodes the public's confidence in the fairness of the justice system. "If a judge crosses the line to advocate or in some other way hijacks the trial, clearly this would erode the public's confi- dence in the administration of justice," he says. "e judge's role should always be that of the neutral arbiter." While O'Connor is all for speaking up when there's an ap- pearance of bias, he's careful about the kinds of actions he feels are inappropriate. Recently in Wojdat v. Ventawood Manage- ment, a defence lawyer raised the issue of bias aer the judge spoke to counsel in chambers prior to a motion hearing. e judge made comments about his "first impression" and asked hy- pothetical questions. For O'Connor, there was no basis in Wojdat to accuse the trial judge of bias. "He took a prelimi- nary position — so what?" he asks. "Judges are human. ey're going to do that. You're an advo- cate; get over it. Win the judge over [through] your skilled ad- vocacy. Move them away from their preliminary position." e Pletsas appeal finding comes amid other cases where judges' conduct has come under scrutiny. In Ottawa, prosecutors are appealing a not-guilty ver- dict in a sexual assault case aer discovering the trial judge cre- ated a fake online dating profile to investigate the victim. LT Partisanship bill a big worry for federal lawyers NEWS Cavion 'gives it to both sides,' lawyer says mid concerns about a new life- long gag order for government lawyers who've seen top-secret documents, the union that rep- resents Department of Justice counsel says it's paying more attention to a partisanship bill that will affect 40 lawyers. While the federal government quietly amended secrecy provisions on March 12 to cover Department of Justice lawyers who have looked at sensitive documents, the president of the Association for Jus- tice Counsel says the changes will likely have few implications for counsel already bound by solicitor-client privilege. "I could tell you quite frankly that we had no expressions of concern from mem- bers unlike other pieces of legislation that have affected them," says Lisa Blais, presi- dent of the association. As a drug prosecu- tor herself, Blais says she's "mindful that our members deal with sensitive material, [in- cluding] terrorism cases where confiden- tial informants are used." While she understands the reason for the secrecy order as there have been "lapses" in the past with information reaching people it shouldn't, there's no justification behind the proposed bill C-520, ac- cording to Blais. If passed, Conserva- tive MP Mark Adler's pri- vate member's bill would require those who apply for certain government positions to disclose their political affiliations and activities for the last 10 years. While the bill, dubbed the supporting non-partisan agents of Parliament act, targets political links, it's overkill in that it threatens to "politicize public service," says Blais. Forty government lawyers are part of the targeted positions, she notes, calling the proposal a form of a "witch hunt" that will create a chilling effect on lawyers. If someone makes a complaint against any of those lawyers for acting in a partisan manner — something Blais says "has yet to be defined" — they'll face an investigation by Parliament. "at's much, much more of a concern to us because we feel that it will create a chilling effect on the work our lawyers would do. Some might think twice about criticizing government ini- tiatives or policies when it's perfectly within the context and the parameters of their job. . . . ey may feel that they'll be subject to a com- plaint," she adds. e union is at a loss as to why a bill like C-520 is necessary, accord- ing to Blais. "ere are already safeguards and pro- visions under other legislation that will in- vestigate true and legitimate complaints of partisanship," she says. To date, the union isn't aware of any complaints about lawyers who have acted in a partisan manner while working for agents of Parliament, according to Blais. Last month, the agents of Parliament targeted by the bill sent a letter to Pat Mar- tin, chairman of the standing committee on access to information, privacy, and eth- ics, to express their concerns. eir first concern, they said, is that the disclosure re- quirement would affect the hiring process. "If an individual had declared prior politically partisan positions and, due to reasons of merit was unsuccessful in ob- taining a position in the office of an agent of Parliament, the decision not to hire that individual could be challenged under [other legislation] on the basis that the declaration impacted the hiring process," the letter said. "Second, there is no definition of what constitutes partisan conduct, no threshold of evidence that would be required to re- quest an examination, and no remedial ac- tion for the manager or any redress mecha- nism for the employee." e Office of the Privacy Commis- sioner of Canada is looking into the matter, said spokeswoman Valerie Lawton. "We are continuing our work to exam- ine this proposed legislation," she said. "We await news on next steps to be tak- en on this bill by Parliament. Our current work is directed toward providing analy- sis and recommendations to Parliament through a possible appearance before committee." LT Continued from page 1 BY YAMRI TADDESE Law Times A Lisa Blais and it's available to you 24 hours a day. s available y availabl y legal expertise? Looking for Find exactly what you need at www.CanadianLawList.com Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. Simply go to www.CanadianLawList.com to find the right lawyer for your particular legal need. www.CanadianLawList.com is Canada's most comprehensive online directory of lawyers and law firms. And it's easy to use! You can search by city, legal specialty, or name for listings and contact information. Find the legal expertise you need at www.CanadianLawList.com. Untitled-4 1 13-12-19 3:08 PM

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