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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. march 7, 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 $165.00 + 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 Public workers should heed climate of restraint week, Toronto Hydro Corp. launched a lawsuit to fi ght back against attempts to rein in compensation for its executives. Th e dispute here centres on a cap A the Ontario Municipal Employees Retirement System has placed on pen- sion benefi ts. It would limit the extent to which bonuses count in calculating pension payments. For executives who receive a large part of their compensa- tion in bonuses, the move would re- strain future pension payments. Toronto Hydro disagrees and, ac- cording to the Toronto Star, says the OMERS decision runs counter to its preference of rewarding executives through a bonus based on performance. It's a fair argument to make, but during s Wisconsin's governor con- tinued his massive and unfair assault on workers' rights last an era of public restraint, it's not the time to be making that case. It's interesting that the issue arises just as the Toronto Community Hous- ing Corp. came under heavy criticism over a spending scandal. In 2008, for- mer CEO Derek Ballantyne, who ran the housing agency during the period when many of the problems happened, earned $222,000 plus $9,000 in bo- nuses. Ballantyne may have done a good job in many respects, but it's clear that there were serious problems. So do we really have to pay people big money — and roughly $230,000 to run a public-housing agency certainly is generous compensation — to get good results? Th e scandal, along with similar fi nancial issues at other high- paying public bodies like eHealth On- tario, shows that's not always the case. As a result, the Canadian Union of Public Employees was right to come out against the Toronto Hydro lawsuit last week. Calling it "an outrageous at- tack on the pensions of hard-working Ontarians," CUPE Ontario said its members don't want the money they contribute to OMERS going to execu- tive pensions based on "massive cor- porate bonuses." It noted as well that the average pension for a CUPE retiree from the OMERS plan is $14,000 a year. Th at's not a lot of money and certainly not excessive in any way. Neverthe- less, public-sector unions in Ontario would do well to take note of Wis- consin Gov. Scott Walker's bid to dra- matically scale back the rights of state workers. While Walker has gone too far in his eff orts to restrain spending, public-sector unions in general do themselves no favours when they fi ght back against attempts to limit benefi ts that governments can no longer af- ford. Th at was clearly the case during the recent municipal strike in Toronto when city workers walked off the job in part in order to retain an excessive sick bank. Certainly, underpaid workers — as is arguably the case with Quebec Crown prosecutors — deserve fair pay. But de- manding too much, whether employ- ees are executives or average workers, only brings aggressive cost-cutters like Walker and Toronto Mayor Rob Ford to power. With massive budget defi cits, taxpayers, many of whom work in the private sector, can't aff ord to fund ben- efi ts they themselves don't get. — Glenn Kauth sentencing or bail submissions in matters involving aboriginals accused in criminal cases. Th e trilogy of cases that began L with R. v. Gladue and continued with R. v. Kakekagamick and R. v. Batisse makes it clear that the defence, Crown, judge, and even the probation offi cer have a duty to thoroughly address issues that aff ect aboriginals. Th e Criminal Code in s. 718.2(e) provides for special consideration when sentencing aboriginal off enders. Th e court must apply the principle that "all available sanctions other than im- prisonment that are reasonable in the circumstances should be con- sidered for all off enders, with par- ticular attention to the circum- stances of aboriginal off enders." Th e code section is reme- dial and addresses issues such as residential schools, dislocation, poverty, racism, alcohol abuse, assimilation, family breakdown, and lack of employment op- portunities. It doesn't mean the awyers have to do more than just utter the name Gladue to make proper Paying more than lip service to Gladue A Criminal court won't incarcerate very violent off enders but it may lessen their jail terms. Th e same provision appears in s. 38(2)(d) of the Youth Criminal Justice Act with simi- lar wording: "All available sanc- tions other than custody that are reasonable in the circum- stances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons." Th e facts in the Gladue case were tragic. A young native woman was facing a charge of second-degree murder of her fi - ancé. It was her 19th birthday, and she was pregnant with their second child. Fuelled by alcohol, she gave way to her guilty suspi- cion that her fi ancé had had an aff air with her sister. She stabbed him twice. Her mother, a Cree, had left the family home when she was about 11. While await- ing trial, she had drug and al- cohol counselling and furthered her education. She pleaded guilty to manslaughter and received a three-year sentence. Defence counsel didn't raise Mind By Rosalind Conway the fact that she was aboriginal, but the trial judge asked ques- tions. Even so, the trial judge didn't take her aboriginal status into consideration. He noted she was living off the reserve in an urban area rather than with- in the aboriginal community. He found there were no special circumstances arising from her aboriginal status to take into consideration on sentence. Th ere's a judicial duty to give this remedial provision real force. In Gladue, Supreme Court justices Peter Cory and Frank Iacobucci wrote: "Th ere is no discretion as to whether to consider the unique situation of the aboriginal off ender; the only discretion concerns the determi- nation of a just and appropriate sentence." Noting the serious and well-documented problem www.lawtimesnews.com of aboriginal overrepresenta- tion in Canadian prisons and citing disturbing fi gures, the court held that Parliament in- tended to attempt to redress this social problem. In Kakekagamick, the On- tario Court of Appeal criticized counsel and the trial judge for failing to give adequate consider- ation to the legal requirements of s. 718.2(e). Th e Crown was noted to have made just a brief reference to Gladue. Th at wasn't enough as the court put a positive duty on counsel to assist the trial judge. Pre-sentence reports may be defi cient, and a trial judge has the power to request that wit- nesses be called to testify about reasonable alternatives to jail. While the Kakekagamick ap- peal was under reserve, the On- tario Court of Appeal ordered a pre-sentence report that would address Gladue considerations. Authority for a trial court or- dering a Gladue report is in s. 723(3) of the code. Counsel should be aware that s. 113 of the code provides for the lifting of a prohibition order for people who need a fi rearm or restricted weapon to hunt or trap for their sustenance on such terms and conditions as are appropri- ate. It also provides for lifting the order if a weapons ban would constitute a virtual prohibition against employment in the only vocation open to the person. In Ontario, as of March 1, 2011, there are Gladue panel standards in legal aid matters requiring mandatory legal edu- cation. Only lawyers who cer- tify that they've read the trilogy of cases and relevant legislation and have reviewed the related le- gal aid memoranda may accept these certifi cates. Th e lawyers must also certify that they're familiar with local resources for aboriginal clients and will participate in related continu- ing legal education. Th is is an encouraging development. I commend Legal Aid Ontario for requiring it of counsel. Rosalind Conway is a certifi ed specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

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• Crown Uproar
• Dollars and Cents
• Focus On Immigration Law