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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. January 24, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Should all JPs be lawyers? S hould all justices of the peace have to be lawyers? That was the question Ontario Superior Court Justice Gregory Ellies dealt with in R. v. Zelinski this month. As Highway Traffic Act proceedings against him moved along, Michael Zelinski, represented by Donald Orazietti, sought an order prohibiting any non-lawyer justice of the peace from presiding at his trial dealing with the provincial offence of stunt driving. As an alternative, he sought a declaration under s. 24(1) of the Charter of Rights and Freedoms barring any non-lawyer justice of the peace from presiding in the provincial offences court. Zelinski argued that Ontario's system of allowing non-lawyers to become justices of the peace, contrary to Alberta's, violates his Charter rights under ss. 7 and 11(d). Ellies, however, rejected those arguments. "I am not prepared to accept the proposition that a trial before a non-lawyer JP is inherently unfair simply because a trial before a lawyer JP might be better," he wrote. As Ellies noted, at least one study has pointed to the wisdom of following Alberta's approach, which that province adopted after a 1998 decision of the Alberta Judicial Council. Doing so, the report said, would help address the low status of the role of justices of the peace in Ontario's court system by improving quality. According to Ellies, however, that doesn't mean trials before non-lawyer justices of the peace are unfair under the Charter. As a result, he rejected Zelinski's application and ordered the matter to go before the provincial offences court for trial. Still, it's worth considering whether Ontario should follow Alberta's lead given the comments about the quality of the current system. In fact, as the 2007 report of the Ontario Justices of the Peace Remuneration Commission noted, justices of the peace perform important roles, particularly given the advent of telephone search warrants that require them to consider urgent applications at any time related to issues affecting people's fundamental rights. In that light, requiring justices of the peace to have the sort of legal training lawyers go through makes sense. But the issue then becomes one of cost. Many justices of the peace make less than mid-range Crown prosecutors who also work for the province. So if the government were to make such a change successfully, it's likely it would have to increase salaries to attract more lawyers to the job. But is it worth it? In a perfect world, it certainly would be. But in an era of constraint, now isn't the time to go down that path, particularly given Ellies' comments that a trial before a non-lawyer justice of the peace isn't inherently unfair. Having lawyers do the job may be better, but there are other issues to consider as well. — Glenn Kauth S Theft from oyster beds and other time-specific crimes A Criminal ome crimes are timeless, while others are specific to a particular era. When you were in law school, no doubt you thought it funny that the Criminal Code con- tained and retained arcane of- fences such as theft from oyster beds. The Tackling Auto Theft and Property Crime Act, which is not yet in force but received Royal assent on Nov. 18, introduces a new offence of theft of a motor vehicle. The new provision under s. 333.1 is hybrid. Previously, whether the Crown could proceed by sum- mary conviction depended on the value of the motor vehicle. If the car was worth more than $5,000, it was a straight indict- able offence; if it was worth less than $5,000, it was hybrid. It's important to note that if the Crown proceeds by indict- ment on a third or subsequent offence, the mandatory min- imum penalty under s. 333.1 is six months in jail. Counsel will have to proceed carefully with these cases. If you can per- suade the Crown to proceed summarily, no minimum ap- plies, nor would there be a minimum if the plea was to theft over $5,000. Counsel should also note that if the Crown pro- ceeds summarily under the new motor vehicle theft sec- tion, the maximum penalty is 18 months, rather than six months, as would be the case if the charge were simply theft under with an election of sum- mary conviction. If the Crown proceeds by indictment, the maximum penalty is the same as if the charge were theft over $5,000. The difference is the six-month minimum on third or subse- quent convictions. The new legislation is pri- marily intended to deter crim- inal enterprises because another amendment targets altering vehicle identification numbers. Tampering with a vehicle iden- tification number is a hybrid offence punishable by up to Mind By Rosalind Conway five years if the Crown pro- ceeds by indictment. There are also new offences of trafficking and possessing stolen property for the purpose of trafficking that have a maximum penalty of 14 years if the value exceeds $5,000 and five years if the Crown proceeds by indictment on property valued at less than that amount. Now, a lot of penurious cli- ents, especially in winter, love to lift cars. As the secondary intention of the legislation is to address the concern that auto theft leads to dangerous driv- ing and high-speed chases, the penalty for this type of disor- ganized crime is definitely on the upswing as well. We still have the offence of joyriding under s. 335 of the www.lawtimesnews.com Criminal Code, which is a straight summary offence. This is the crime of tak- ing a motor vehicle without the owner's consent but also without the mens rea of theft: the intent to deprive them of their property. We even have a fairly recent offence of occu- pant joyriding for the joyrider's friends. Now we still have cattle theft, and horse stealing is in- cluded in cattle rustling by vir- tue of the definition of cattle under s. 2: "neat cattle or an animal of the bovine species by whatever technical or familiar name it is known, and includes any horse, mule, ass, pig, sheep or goat." It's interesting to see how separate offences come about. It seems that, once created, authorities retain them. Of course, all of these offences are theft. The modern equivalent of horse stealing is car theft. Victims of car theft would no doubt feel happier that the criminal record reflected the nature of their deprivation. Crowns could build a record that would demonstrate the crime committed and thereby set the stage for a third strike. For the defence, of course, it's more than a mere nuance. We're responsible to know the differ- ence between this new car theft charge and conventional theft, so I will set it out here. Section 333.1 is hybrid with a 10-year maximum if the Crown proceeds by indictment and an 18-month maximum if it proceeds sum- marily. On a third conviction, if the Crown proceeds by indict- ment, the mandatory minimum penalty is six months. Note that conditional sentences won't be available if the co-ordinating amendment comes into effect through bill C-16, the ending house arrest for property and other serious crimes by serious and violent offenders act. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

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