Law Times

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 . . . . . Adela Rodriguez 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. May 16, 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 Lawyers, court complicit in 'cannibalized procedure' O nce again, we can thank On- tario Court of Appeal Justice David Watt for his powerful writing in a recent judgment ordering a new trial for a man who pleaded not guilty but ended up with an immediate conviction anyway after the Crown read out the allegations against him. Th e accused "thought he would have a trial where he could tell his side of the story," Watt wrote. "He had a lawyer to help him out. But the appellant didn't have a trial. He didn't get to tell his side of the story. And he didn't see or hear anyone else testify either." Watt continued: "As soon as the ap- pellant's lawyer pleaded not guilty on the appellant's behalf, the prosecutor read out the allegations against him. Th e appellant's lawyer said that he had no submissions. Th e prosecutor made no submissions either. Th e judge con- victed the appellant and remanded him in custody for sentencing." Th e events as described in R. v. D.M.G. sound problematic. But it gets worse. Th e accused, who was facing two counts of sexual assault and two charg- es of sexual interference, is 60 years old and has a hearing impairment. He re- ceived a 15-month jail sentence. Th ere were complicating factors in the case. As Watt noted, while the accused maintained his innocence throughout, he repeatedly expressed worries about the alleged victim having to testify in court. At the same time, his original trial counsel claimed the accused had signed a handwritten doc- ument instructing him to resolve the matter on Feb. 21, 2008, the day the trial was to begin. While the accused denies signing those instructions (he at one point claimed his signature was a forgery, Watt noted), he admits to signing a handwritten memo attesting to the adequacy of his defence coun- sel's eff orts on his behalf. At the same time, Watt noted that what took place here — essentially pleading not guilty while making admis- sions anyway — can happen. But that's not enough. "After the appellant pleaded not guilty, the prosecutor read the allega- tions but neither adduced evidence nor proposed that the allegations be taken as a formal admission under s. 655 of the Criminal Code," Watt wrote. "No one asked the appellant to confi rm his understanding of and agreement with the proposed proce- dure," he noted. Th ere were other problems as well. "Th e audio enhancement system func- tioned intermittently, if at all," Watt wrote. Calling the events a "cannibalized procedure," Watt set aside the convic- tion and ordered a new trial. It's good, then, to see the accused will at least have a chance at justice. However, it's unfortunate that defence counsel, the Crown, and the trial judge allowed things to play out as they did. While Watt noted admissions under s. 655 can form the entirety of the Crown's case, it's clear that the accused at the very least deserved more protections to ensure he understood the implications of what was taking place. Now we're stuck with the cost and time burden of a new trial. Th ose involved should have known better. — Glenn Kauth ing off ence? It's going to be easily $20,000 or more if your client wants to be back on the road as soon as possible. When a new client walks W in the door and you're discuss- ing the cost of going to trial or pleading guilty, it's vital to review the many consequences of being found guilty. Here's some basic advice, then, for a fi rst-time off ender in Ontario charged with impaired by alco- hol, over 80 or refusing or fail- ing to provide a breath sample. Costs include the minimum $1,000 fi ne and $150 victim surcharge; increased insurance rates; the Back on Track pro- gram; the licence reinstatement fee; ignition interlock and in- stallation; and your fees. For a fi rst off ence, there's more involved than that min- imum penalty of a $1,000 fi ne and a prohibition. Probation is unlikely but possible. A crim- inal record is a given. Condi- tional discharges aren't available The cost of DUIs: taxis never looked so sensible A Criminal hat does it cost to plead guilty to a drinking and driv- in Ontario for clients in need of curative treatment. Th e judge isn't obliged to impose the minimum penalty. Jail of up to 18 months is pos- sible when the Crown elects to proceed summarily, and section 255.1 of the Criminal Code makes readings in excess of 160 milligrams of alcohol per 100 millilitres of blood an ag- gravating factor on sentencing. An accident or erratic driving can increase the penalty. When clients are arrested, they receive notice of a three- month administrative suspen- sion of their licence. Upon con- viction, the prohibition ranges between one and three years, but the client may be back on the road in three months with an early guilty plea, registration in the Back on Track program, and an interlock device. Th e prohibition runs concurrently with the one-year provincial suspension. Th e increased insurance rates are substantial. Although the Ministry of Transporta- tion web site gives an estimate Mind By Rosalind Conway of $13,500 over a three-year period for an otherwise good driver, a client might pay an extra $5,000 a year. Th e ministry's mandatory Back on Track program is now $578 plus HST. As it's popular, the client should arrange enrol- ment as soon as possible. Th e ministry web site cautions that it can take 11 months to com- plete the program, depending on the assessment of the client. Th e licence reinstatement fee, called the administrative monet- ary penalty, is currently $150. Th e ministry web site esti- mates the cost of the interlock for one year at $1,300. But the cost of obtaining it for one car for one year may be closer to $2,000, including HST. Th e ignition interlock must be in- stalled in each car that the client www.lawtimesnews.com drives, even a boss' vehicle or the company truck. Although the interlock is required if the client wants to drive after the one-year prohibition has expired, it's now available after three months unless the court or- ders otherwise. But the client must plead guilty within three months of being charged and must prove registration in the Back on Track program. So there are potential advan- tages to a guilty plea within three months of being charged. First, the three-month administrative suspension will overlap with the mandatory one-year minimum prohibition. Second, the client who pleads guilty early is eligible for the interlock program in three months unless the court or- ders otherwise. Th ird, the client would only have to have the interlock for nine months. But such clients must be registered in the Back on Track program. By contrast, an off ender who pleads guilty after three months or who is found guilty would have a minimum six-month waiting period before becoming eligible to drive with an inter- lock and would have to have the device for 12 months. Note that the Crown can ask the judge to make an or- der that the client not be eli- gible for early enrolment in the interlock program. If clients want to wait 12 months before driving, they must use the interlock for the next 12 months. If they fore- go driving for two years, they won't have to use the interlock but they'll still have the other expenses. Taking a taxi after imbibing looks more sensible than ever. If the client missed that judgment call, taking the bus for a few years looks good, too. Th is is a complex area to give advice on. I'm indebted to David Gilhooly, who restricts his practice to such matters, for reviewing my column. Rosalind Conway is a certifi ed specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

• Cover
• Role Model
• Religious Revival
• Focus On Running Your Practice