Law Times

Page 4 May 12, 2014 • Law TiMes www.lawtimesnews.com NEWS Draft your own customized documents with O'Brien's Encyclopedia of Forms, Eleventh Edition, Ontario – Court Forms, Division VIII. This service provides, both in looseleaf and electronic formats, a comprehensive collection of documents that can be easily adapted to suit your clients' needs. Get convenient access to: • Expert commentary – providing context to the proceedings and assisting with the preparation of documents, including references to the relevant Rules of Civil Procedure • Checklists – guiding you through the proceedings • Table of Cases – providing case citations referenced in the commentary Save time with O'Brien's Online With O'Brien's Online, you can quickly search thousands of documents, pinpoint the right one, and download and edit it to suit your situation. Preparing court documents has never been easier O'Brien's Encyclopedia of Forms, Eleventh Edition Ontario – Court Forms, Division VIII Editors: W. Bruce Drake and Christopher Wirth Includes online access Order # L91124-65203 $579 4 volume looseleaf supplemented book + online access Anticipated upkeep cost – $208 per supplement 1-3 supplements per year Supplements invoiced separately L91124 Also available in online only or print only formats Master Subject Index also available Shipping and handling are extra. Prices subject to change without notice and subject to applicable taxes. 00218EB-A43205 CANADA LAW BOOK ® Available risk-free for 30 days Order online: www.carswell.com/obriens Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Mandatory minimum sen- tences create consistency and help people understand exactly what the repercussions for a cer- tain crime are, the Bennett Jones lawyers argue. "Mandatory minimums reflect the lowest possible sentence for the least culpable offender," they wrote in their paper. But to the president of the Criminal Lawyers' Association, that argument neglects things like mental-health issues some- times affecting the perpetrators of a crime. "People who get into these crimes don't expect to be caught," says Anthony Moustacalis, not- ing they aren't likely to weigh the consequences of their actions. "e majority of people who get in trouble — 80 per cent — either have drug or alcohol or mental-health problems and so those people, I would argue, need a broader approach toward their treatment and punishment than simply imposing manda- tory minimums," he notes. Caylor says the paper isn't de- fending the appropriateness of the mandatory minimum sentences set by Parliament but is simply emphasizing judges' obligation to uphold them. If judges see the mandatory sentences as unfit, it's up to them to declare them un- constitutional, the paper notes. In a recent case, that's exactly what Ontario Court Justice Rob- ert Beninger did. In Tinker v. e Queen, he found that a set victim surcharge without regard to an offender's personal circumstanc- es is unconstitutional. "I find that the mandatory imposition of the surcharge does negatively impact the security of the person for the applicants be- fore the court. Without regard to their personal circumstanc- es, the surcharge must be paid within a 30- or 60-day time pe- riod. If the surcharge is not paid as required, the person in default is clearly informed that they are subject to serving a jail sentence," he wrote on April 23. "e Crown argues that a person has the option of obtain- ing extensions of time to pay the surcharge. I do not find that ar- gument persuasive. Applications for extensions of time to pay pro- long a court proceeding. ey require additional resources within the court system. In my view, an extended enforcement procedure for a $100 surcharge, targeting a person who has no ability to pay, is not a proceed- ing which enhances the criminal justice system in the eyes of the community." e judge then declared s. 737(1) and s. 737(2)(b) of the Criminal Code to be "of no force and effect." "e s. 737 amendment which removes judicial discre- tion in considering a fit sentence in all cases, without reference to sentencing principles as set out in s. 718, is a broad brush pun- ishment which casts the widest possible net upon persons being sentenced in the criminal justice system," wrote Beninger. Moustacalis says the paper by Caylor and Beaulne makes it seem "natural" that Parliament would pass legislation and the courts would find it unconsti- tutional. Although it's within judges' jurisdiction to make that finding, Parliament "should be trying to create laws that are constitutional," he says. To see things otherwise is to "ignore Parliament's responsibility," he adds. In their paper, Caylor and Beaulne argue that critics who rebuff mandatory minimum sentencing laws should instead "focus on the more defensible position of attacking Parlia- ment's conclusions about the moral status of behaviour con- stituting the elements of a given offence." Parliament isn't infallible in its decisions about mandatory minimums, but people could say the same about judges, ac- cording to the authors. "Aer all, Canadian judges have certainly reached inap- propriately severe (or, more frequently, inappropriately lax) sentences as well," they noted in the paper. "rough statutes, Parlia- ment speaks with a single voice. Its errors thus have the virtue of being applied consistently until they are struck down. Converse- ly, individual judges exercising discretion are more likely to cre- ate uncertainty and unpredict- ability with their errors." But Moustacalis doesn't feel judges have more frequently ar- rived at overly lenient sentences. "If they are, the appellate courts have corrected that," he says. LT to court staff — you name it." Ford chose Morris because he knew he needed "one of the most re- spected lawyers in the profession who is both conservative and ethical and polished," says defence lawyer Marcy Segal. "He's well known for his subtleties and professionalism. He's not known for court tactics or outlandish views." Because of his personable character, Morris is oen capable of nego- tiating results that "other lawyers wouldn't dream of being able to obtain," says Lafontaine. In 2003, aer the the in broad daylight of five pieces of palm- sized ivory sculptures that belonged to billionaire Ken omson from the Art Gallery of Ontario, Morris facilitated the negotiations that saw them returned. e pieces of art, with a combined worth of $1.5 million, were dropped off at Morris' office. He didn't disclose who dropped them off due to client-solicitor privilege. "at was fantastic legal work on his part," says Lafontaine. "Everybody ended up winning as a result of the way he handled that matter." Even through what's potentially a very difficult job of representing an embattled Ford — an ordeal that saw the mayor's intoxication and alleged recent drug use captured on audio and video recordings before he took leave to enter rehabilitation — Morris has "rolled with the punches" and did the best job he could, says Lafontaine. "I think he's been exceptional" through the Ford ordeal, says Segal. "How your client is is partly dependent on the lawyer's advice and partly dependent on their own desires," she says. "So in spite of his at- tempts to try to keep Ford out of the limelight, temptation sometimes gets the better of you." Morris, who has known the Ford family for many years, has been "exemplary" in his work for the mayor, Segal adds. "He's shied away from the spotlight. He's not looking to use this as a career enhancer and he's tried to be on top of it as much as he can and I'm sure he's given him great advice on places to go for substance abuse or anything else." Perhaps unsurprisingly for a man known to avoid the spotlight, Morris didn't respond to requests for an interview with Law Times for this article. Having infamous clients adds a different dimension to a lawyer's role, says Lafontaine. "You have to be mindful of how your work on behalf of the client reflects on the client in the public domain and, of course, you want to do things in a way that casts that individual in the best light possible," he says. Is it tough to defend someone many people tear apart? "It's a chal- lenge," says Lafontaine. "It's a challenge I've always welcomed and enjoyed, but that's why I took the job, I guess." Rosen says he would have done some things differently had he been in Morris' shoes as the lawyer for the beleaguered mayor. "I would define my role as being a legal adviser as opposed to a person who is handling the media," he says. "I would have gotten a media expert, especially in a situation where the client, Rob Ford, has not been charged with anything." ose who know Morris agree on his congeniality. "He's a gentleman through and through," says Segal, who describes Morris as a "straight shooter" as well as "a fabulous father." "He works very hard; [he's] very conscientious, very down to earth," says lawyer Alan Gold, who has worked with Morris on several cases over the last few decades. "He doesn't worry about generating a high profile; he worries about doing the best possible job for clients." An avid Blue Jays fan, Morris is also known to unwind in Barba- dos or Aruba once in a while, according to Segal. "A very likable guy — just a decent person," says Lafontaine. LT Morris 'exemplary' Continued from page 1 Victim surcharge among laws rejected by courts Continued from page 1

• Cover