Law Times

Page 2 November 17, 2014 • Law Times www.lawtimesnews.com services and offerings," she says. "So we want to take a look at those trends while we are still a very vibrant and strong organi- zation. It's high time that we sort of take a look at what we're doing and how we could do it better." The scope of the review stops at nothing, she notes, adding the leadership at the CBA agrees it needs to look at "everything" the organization does. "We are asking at this point really fundamental questions: Why do we do what we do? What are we doing? What should we be doing? What should we not be doing? And then operationally, how should we do those things?" Intellectual property lawyer Mark Hayes says despite his long involvement with both the CBA and the Ontario Bar Associa- tion, he has lately found himself "drifting away from it." "Right now, I'm thinking about whether I'm going to re- new this year," he says. Part of his reconsideration is a simple cost-benefit analy- sis. Like some lawyers and law firms, he's really looking at whether a CBA membership is worth the annual fee. A regular membership with the CBA now costs almost $800 per year. "What I find from my par- ticular point of view, because I have a relatively specialized practice, I find there are spe- cialized organizations both in Canada and internationally that are more useful to me in terms of networking and business de- velopment and professional de- velopment," he says. Toronto criminal lawyer Todd White agrees declining memberships at the CBA may be a sign of a trend towards spe- cialization and lawyers choos- ing to be a part of specialized legal associations. "Individual organizations that are dedicated to one area of law seem to be doing very well," says White, who suggests the CBA should look at what those organizations are doing to stay relevant and apply those things to its various sections. There's an 18-month time- line to complete the review. The first step for what the CBA calls its "rethink steering committee" is to do a wholesale inventory of how the organization works, what its different parts are, and how they work together. The review will then move into a consultation phase in- volving interviews with both members and non-members of the CBA to see what's working and what isn't. If lawyers have chosen not to become members or have withdrawn their mem- bership, the CBA wants to know why. For Hayes, how the CBA's sections perform is highly de- pendent on whether there are active individuals on their ex- ecutive boards. "It's a hit or miss. If you had a strong executive one year, the section could be really ac- tive and [you] would really feel there's lots of stuff going on and the next year there wouldn't be as much," he says. "It seems like there isn't much strategic direction as perhaps should be," he adds. Some lawyers are also pitch- ing their thoughts on the over- arching question of what the CBA should stand for. For class actions lawyer Dimitri Lasca- ris, the organization should fo- cus on pushing for reforms that will make justice accessible for the many people who currently don't have it. "We must find a way to make legal services affordable to ev- eryone who has a legitimate need for them. I find that far too often, the profession pays lip service to the notion of access to justice but steadfastly resists reforms that would enhance ac- cess to justice meaningfully," he says. "In my view, the overarching mission of the CBA should be to advocate for, design, and help implement reforms that will finally solve this fundamental and intolerable f law in our legal system." When it comes to speaking out on legal issues, the recent controversy around the CBA's initial decision, since reversed, to intervene in the matter in- volving Chevron Corp. at the Supreme Court of Canada is an example of how difficult it can be to represent a very di- verse profession. That's an area the CBA would have a hard time dealing with, according to Hayes, who says it's difficult to accommodate diverse views without losing the greater im- pact of speaking in unison. But perhaps for some issues, the CBA should offer more than one take, he suggests. Hollins says she's excited about what could come out of the review but admits it's "a bit frightening to have this on your plate as the president." "But even though it is intimi- dating in terms of the potential scope for change, it is also really exciting," she says. LT NEWS on Donnelly's "naïveté," would bring the appropri- ate sentence to 21 months in prison, almost double the mandatory minimum of 12 months. But Nordheimer found Donnelly shouldn't serve the sentence in custody. Due to breaches of his Charter rights, Donnelly spent three days in unnecessary incarceration, according to Nord- heimer, who also found Donnelly suffered severe mental deterioration. The judge also relied on medical reports that suggested Donnelly would likely commit suicide if he went to jail. "Of more importance, however, is that I have the opinions of three medical professionals (two psychologists and one psychiatrist) who say, in very clear terms, that Mr. Donnelly is at a marked risk for suicide, as a consequence of these events," wrote Nordheimer. "It is a risk that will be significantly increased if Mr. Donnelly is incarcerated. Indeed, the psy- chologist who is most familiar with Mr. Donnelly and who has worked with him the longest, is of the opinion that Mr. Donnelly's risk of suicide, if he is sent to jail, is very high. These suicide concerns are reinforced, not only by Mr. Donnelly himself, but also by his family members." The decision, according to criminal lawyer How- ard Rubel, is an example of the dilemma judges face when trying to apply sentencing principles with- out questioning the constitutionality of mandatory minimum sentences. "Respect for the law isn't just restricted to punishment; it is restricted to a just pen- alty," he says. "And that's the tension that judges have these days because there are a number of mandatory minimum sentences that are now in our law books." He adds: "What we are left with is judges caught between two very powerful principles. And frank- ly, I think this an example of the willingness of our judges to face the dilemma head-on." In many U.S. jurisdictions, judges faced with tough cases like this one have simply opted to not take on those matters for fear they couldn't apply the law, according to Rubel. Although Canadian judges don't have the ability to reject cases, "our bench has decided not to duck the problem but to face it head-on," he says. In the past, judges found other ways to circum- vent mandatory fines and sentences, in some cases ordering a levy of $1 where fines were mandatory. Nordheimer's decision is another "creative" way around mandatory minimum sentences, says criminal lawyer Edward Prutschi, who notes the judge's remedy in this case was very specific to the set of facts before him. "What's unique about this scenario is because of the psychiatric evidence and because of the fac- tual background for the particular violation and the psychiatric evidence for this particular ac- cused, Justice Nordheimer is finding that reduc- ing the sentence would not be an effective remedy under s. 24(1)," says Prutschi. "It would be a remedy but not an effective one. The only way to craft an effective one would be to create a remedy that would allow this accused to serve a non-custodial sentence. And to do that, he had to butt right up against the mandatory mini- mums, which would normally prohibit it." Nordheimer reasoned that in this case, incar- ceration would have had an adverse effect. "It is clear that, in the case of Mr. Donnelly, imposing a term of imprisonment will not advance his reha- bilitation. Indeed, the uncontradicted evidence is that imprisonment will have the opposite effect," he wrote. "Imprisonment will not only impede rehabili- tation, it will place Mr. Donnelly at very serious risk of self-harm and will, most certainly, nega- tively affect his already fragile mental state and it will do so in a significant way." Although unique, Nordheimer's decision likely has little precedential value, according to Prutschi, because the case is very specific to the facts. Not all lawyers take kindly to judges who avoid mandatory minimums. Bennett Jones LLP part- ner Lincoln Caylor, co-author of a report defend- ing mandatory minimum sentences earlier this year, told Law Times judges who creatively cir- cumvent such provisions should perhaps "resign and run for Parliament ." "If it is constitutional, then it must be upheld and to the extent that you want the law changed, it is for Parliament to do that and it's not for judges to try and circumvent the law," said Caylor. LT Let the experts help you to narrow your search and save you research time. Canadian Patent Reporter has been Canada's leading intellectual property law report since 1942. This renowned resource, available online and in print, includes precedent-setting intellectual property law judicial and board decisions from across Canada. This publication provides practitioners with the leading decisions on patent, industrial design, copyright and trade- mark law. Topical catchlines in bold print show the key issues involved in each decision. Expert case selection, editing and headnoting are a tradition with Canadian Patent Reporter. Weekly updates via email and in print, plus an annual cumulative index volume, ensure that this publication continues to be the prime reference source for intellectual property case law. Includes eReports (weekly electronic pdf version) Stay current as cases are issued with eReports emailed weekly to your desktop, with topically indexed case summaries linked to the full text judgments. Edited by Marcus Gallie, Ridout & Maybee LLP Fourth Series (Volumes 1 to 65): Edited by Glen Bloom, Osler, Hoskin & Harcourt LLP First, Second and Third Series: Edited by Gowling, Strathy & Henderson Founding Editor: Gordon F. Henderson, C.C., Q.C., LL.D. Canadian Patent Reporter Order # A26520 $489 price per volume Subscription price includes parts, bound volume and eReports Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00226NM-A47747 Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Continued from page 1 Mandatory jail time rejected Continued from page 1 Lawyers embracing specialized legal organizations

• Cover