Law Times

Law Times • January 10, 2011 NEWS Opposing lawyer told to 'shove it' Continued from page 1 it easier for judges to raise concerns about a lawyer's behaviour. According to Millar, judges had been reluctant to complain to the LSUC because of the perception that cases would disappear without a trace. But now they're better informed about the progress of a complaint, he notes. Millar also chaired the law society's civil- ity forum that heard from members of the profession in 11 diff erent locations across Ontario. "We had a real interaction, and I think it raised the whole profi le of the issue," he says. "It's an important issue be- cause lack of civility impacts on the admin- istration of justice and ultimately it under- mines the public's trust in lawyers and the legal system." Nevertheless, he'd like to see disciplinary action reserved as an avenue of last resort for problems with civility. "We would pre- fer to have people improve and mend their ways," he says, noting that suitable candi- dates are referred to mentorship programs run by professional organizations. But in his case, Guiste was never off ered mentoring, although his matter dates back to 2007, long before Millar's civility forum toured the province. Th e complaint against him stems from a mediation session in a sexual harassment case in which he told an opposing lawyer to take his opening off er and "shove it up your ass." Guiste admits he "got upset" and "said some things that he shouldn't have" but maintains the context is important when determining whether his behaviour was uncivil. He says his client broke down fol- lowing the off er, which Guiste believed was deliberately low in an attempt to shake the client's confi dence in him. In addition, he notes the mediator wasn't off ended by his actions. He also fi led an expert report by mediator Jules Bloch who said he had seen much worse behaviour in the particularly emotionally charged atmosphere of a me- diation dealing with sexual harassment. "Feelings often run high," Bloch wrote. "Counsels may fi nd themselves pushing unpopular positions. Th is type of advocacy often leads to loud voices and the possibil- ity of aggressive exchanges, which often in- volve swearing." In any case, Guiste feels the session fell under the protection of a strict confi denti- ality agreement. In another instance highlighted by the law society, Guiste rebuff ed an as- sertion by the opposing lawyer and told him in an e-mail that he was "speaking nonsense." "I'm from the Caribbean," he says in explaining his actions. "In our culture, when someone is speaking nonsense to you, you tell them. It's not seen as being uncivil. Th ere's a lot of vagueness as to what is uncivil." In another e-mail, Guiste told opposing counsel that "unlike yourself, I do not have a client that is a CASH-COW!" He says he was responding to a suggestion that the opposing client, a large corporation, was willing to go to the Supreme Court on a procedural matter. "Th ey're saying, 'My client has the bucks, so we're either going to do it our way or not do it at all.' Th ey were say- ing they were prepared to fi ght my cli- ent tooth and nail. What are you going to say? Are you just going to roll over and die? In a context where a lawyer is dealing with a diffi cult lawyer on the other side, we can't just take it in a vacuum. When everything is taken in context, the e-mails and the communications that I wrote do not stand up to the jurisprudence I've seen about incivility." LT Parties reluctant to challenge justice bills Continued from page 1 former president of the Criminal Lawyers' Association isn't happy about a raft of law-and-order bills on the government agenda. He fears Canada is heading down the tough-on-crime path already taken by a number of American states that now fi nd themselves in trouble as a result. "Th ey can't empty their pris- ons fast enough because they've learned that imprisonment is one of the most expensive habits the state can develop," Addario says. "Instead of learning from that ex- perience, the federal government seems doomed to repeat it. It's tough, it's muscular but it's ulti- mately ineff ective criminal law leg- islation. Th e taxpayer gets shafted because they were promised safer streets when fi ve years later they discover the streets are no safer, but the money's been spent." In Addario's view, bill C-16, which would restrict a judge's ability to apply conditional sen- tences in certain cases, tackles a non-existent problem. "Th ere is no evidence that judges in Cana- da are out of control or incapable of exercising their discretion in such a way as to meet the com- munity need for deterrence and denunciation of property crimes and serious crimes," he says, add- ing that the removal of judicial discretion interferes with the ability of prosecutors to negoti- ate resolutions, thereby length- ening sentences and increasing the likelihood of recidivism. Addario believes the opposi- tion parties are reluctant to take a stand against the government's justice legislation for fear it will label them weak on crime, an is- sue that will only grow with an election looming. Th e Truth in Sentencing Act passed in 2009, for example, showed the opposi- tion parties have "no inclination to challenge these bills on an ef- fectiveness basis," he says. Another hot election topic could be bill C-49, the federal government's response to human smugglers. Th e problem with the bill, according to Gordon May- nard, a past chairman of the Ca- nadian Bar Association's national citizenship and immigration law section, is that "little of bill C-49 is directed at them." It instead tar- gets the refugee claimants them- selves regardless of whether their claims are valid or not, he says. "It seems to be very politi- cal, very broad, very harsh, and inappropriate to the claimant's needs," says Maynard, who out- lined the CBA's opposition to the bill in a submission at the end of last year. Th e government tabled the bill after the arrival of a sec- ond ship of Tamil refugees on the coast of British Columbia last year. Under the legisla- tion, refugees who arrive in those circumstances could face 12 months of detention with- out the possibility of review. Even if offi cials approve their claim, they'd be unable to ap- ply for permanent residence or any travel documents for fi ve years. "Th ey're in a very tenuous situation for those fi ve years," Maynard says. "It's arguably contrary to obligations Canada has under international trea- ties as to how refugees should be treated. Th ey're supposed to be integrated, not treated dif- ferently to anyone else, and the detention itself would probably run afoul of the Charter." In December, the Liberals indicated they wouldn't support the bill, but Maynard suspects the government may put it up for a vote anyway to make a politi- cal point. "Th ey may want to try and score points with people who think that one boat is too many and buy into the argument that unless there's a serious response, more boats are coming. We un- derstand that mass arrivals by boat raise public ire. It off ends people to see boats arrive. Th ere are responses that one can take to it, but this response is excessive." Lorne Waldman, a Toronto immigration lawyer, says the legislation may not even be necessary and notes that recent decisions by the Federal Court involving claimants who arrived on the Sri Lankan boats show the justice system is adapting the existing legislation. In his Dec. 3 decision in Can- ada (Citizenship and Immigra- tion) v. B479, Justice Russel Zinn stayed the claimant's release while noting that the nature of the ar- rival was a factor to consider. "While detention is not tak- en lightly, those who arrive en masse should expect that this extraordinary occurrence will require signifi cant resources and that it will take some signifi cant time to resolve the public inter- est concerns of the country upon whose shores they have landed," Zinn wrote. "Th e government says we need all these anti-smuggling laws because our current system isn't working properly," Wald- man says. "I would argue that the court has already gone a consid- erable way towards adapting the current legislation to the new re- ality of mass arrivals by boat." LT PAGE 5 ELECTRONIC DOCUMENTS RECORDS MANAGEMENT, E-DISCOVERY AND TRIAL Editors: Bryan Finlay Q.C., Marie-Andrée Vermette and Michael Statham With contributions from: Caroline Abela, Stephen Doak, Paul D. Guy, Nikiforos Iatrou, Stephanie L. Turnham, David Vitale and John Wilkinson EFFECTIVELY NAVIGATE THE LEGAL CHALLENGES POSED BY ELECTRONIC DOCUMENTS Electronic data is modifying how lawyers interact, changing how information is collected and used, and transforming the courtrooms. This in-depth resource examines and analyzes the issues relating to electronic documents, including: • • • • Looseleaf • $210 Subscription updates invoiced as issued (1/yr) P/C 0283030000 • ISSN 1920-1737 • the sources and types of electronic documents records management policies the legal framework governing e-discovery in Canada the preservation, collection, processing, review and production of electronic documents the use of electronic evidence at trial This dynamic and burgeoning aspect of legal practice is clarified and explained with extensive reference to relevant Canadian and U.S. authorities. canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0110 www.lawtimesnews.com

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