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 ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator ...... Ryan Rogers Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 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 Inc. 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. Editorial Obiter Oilsands giant gets it right in court battle A n interesting legal issue is shap- ing up at the ongoing Syncrude Canada Ltd. duck trial near Edmonton. As the Edmonton Journal reported last week, the company was battling the Crown's attempt to enter state- ments from 28 Syncrude employees as evidence at the trial. Authorities took the statements in the aftermath of rev- elations that an estimated 1,600 ducks had died in the Fort McMurray, Alta., company's tailings pond in 2008, an incident that brought worldwide con- demnation on Syncrude and later fed- eral and provincial charges against it. Alberta provincial court Judge Ken Tjosvold ruled against the company last week in allowing the Crown's re- quest. Syncrude had vigorously fought the move. At first blush, it appears an unwise decision by the company given the public-relations fiasco it was al- ready facing over the duck deaths. To then try to stymie evidence in the case worsens that image. But the company does, in fact, have a point. It's arguing that to enter state- ments shared with the government after the incident will complicate such co- operation in the future. As a result, au- thorities will have to resort to subpoenas and warrants to get the information if companies and their employees believe it could later count as evidence in crimi- nal proceedings. Instead, Syncrude law- yer Robert White suggested the Crown call the employees as witnesses to testify at trial. That would be better, he argued, than allowing prosecutors to enter un- contested statements as evidence. For its part, the Crown said the statements provide the freshest evidence from the immediate aftermath of the in- cident that's free of influence by compa- ny officials. That's certainly true, but the company makes a valid argument that having its staff give direct evidence in court would work just as well while sat- isfying its concerns. While the employ- ees' court testimony might in some cases be different from their statements, the Crown has access to those documents and can therefore question them on any inconsistencies before the judge. That's how most criminal proceed- ings work. Witnesses say what they saw, after which the lawyers have an opportunity to compare what they say in court to what they told police dur- ing the investigation. Of course, the Crown's position ne- glects the fact that police statements can be problematic anyway. While the pros- ecutors in the Syncrude case are em- phasizing their validity, it's not unusual for police to struggle to find witnesses who will tell them the truth given their concerns for their own welfare. As a re- sult, there's a good argument to make that court testimony given under oath in some cases has a greater likelihood of eliciting the truth. In the wake of last week's ruling, White called the move a "perversion of the basics of law." While many people would argue Syncrude should simply co-operate and allow the full story to come out, the company is right. Given that the Crown and the court had oth- er options, the decision is unnecessary and one that could create complica- tions for investigations in the future. — Glenn Kauth to decide whether you want a jury at all. If your client is charged with sexual assault, and the complainant is a child or a very sympathetic person, you don't want a jury. If your client is a member of a minority, you may not want one. But if the charge is murder, you may not be able to avoid a jury. Another issue you need to think about is whether or not to have a challenge for cause. A com- mon challenge occurs when your client is black and the alleged victim is white. The question is generally as follows: "Would your ability to hear this case without bias, prejudice or partiality be af- fected by the fact that the accused is black and the complainant is white?" This is known as the Parks challenge stemming from the R. v. Parks case. I was recently in a trial where we had challenge for cause, and W Navigating the sticky issue of jury selection A Criminal hen it comes to jury selection, the first thing, of course, is although only one prospec- tive juror declared herself not to be impartial (surprisingly, she was a university student), the two triers found quite a number of others not to be impartial either. One woman weakly declared: "I would like to think I am not prejudiced. Is that the correct answer?" I chose not to recommend having revolving triers because they develop expertise as they go along. This is more efficient than replacing them. At the same time, it was somehow ap- propriate to have two female triers, one black and one white, for my black female client. Unfortunately, there were no prospective black jurors left on the panel since there is a vetting process that takes place as we pick juries. Many people are excused from the panel be- fore we reach the stage of call- ing the first 20 prospective ju- rors. Excuses include language problems, health issues, hearing Mind By Rosalind Conway difficulties, and personal hard- ship. People looking after ill family members and the self- employed don't have to serve. After this culling takes place, the panel can look quite differ- ent. Few members of minority groups remain, and the very young and older members have mostly been excused, as has the working class. Often, you find yourself facing a largely middle-aged and middle-class group of people. Prospective jurors include people who wouldn't have been eligible to serve in the past. The Ontario Juries Act sets out the criteria for serving. They must reside in Ontario, be Cana- dian citizens, and have reached the age of 18 in the previous www.lawtimesnews.com year. Those who are ineligible include members of Parliament and the Senate; judges and jus- tices of the peace; lawyers and articling students; practising doctors and veterinarians; all coroners; and anyone involved in law enforcement. While the latter group in- cludes police, firefighters, and court officers, that's only the case if they're currently em- ployed. So former RCMP of- ficers can, for example, serve as jury members. Spouses of po- lice officers can do so as well. There have been some over changes the years. In 1974, the list of disqualified individuals was similar but didn't include justices of the peace or firefighters. Signifi- cantly, spouses of judges, law- yers, articling students, and police officers, who were once disqualified, have been able to serve since 1994. Will your clients have a jury of their peers? The current crite- April 19, 2010 • lAw Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • 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 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. ria in Ontario, which recognize that two spouses are individuals and that people change careers, potentially favour the rights of prospective jurors over those of the accused. The spouse of a po- lice officer, for example, doesn't have to declare that relationship. With retired jurors, the lawyer should ask what their previous occupation was. The biggest difficulty with panel selection, however, is the extent to which jurors' stretched financial means diminishes the pool. That's because they must be able to afford to serve since they aren't paid until they've done so for 10 days. The fee for the 11th to 49th day is $40 dai- ly before rising to $100. If ju- rors received the $100 for each day they served, the pool would be more representative. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca.

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