Law Times

Law Times • December 14, 2009 NEWS PAGE 3 AG would have own agenda, benchers warn Continued from page 1 "Fresh blood is only good all the time if you have a serious chest wound. Sometimes, fresh blood is not very good." Paul Schabas, a partner at Blake Cassels & Graydon LLP, pointed out that he is what passes for youth in the law society. "I just turned 50 and yet I'm one of the youngest people in the room," Schabas said in advocating for the changes. "While we may have a monopoly on the provision of legal services in this province, it is a fragile one. Our gov- ernance model is indeed out of step," he added. "Unless we propose change, unless we try to catch up rather than stay ahead of the curve, change will be thrust upon us." Jennifer Halajian, the room's youngest and most junior bencher having been called to the bar 10 years ago, said the law society is not exactly accommodating to youth. "If you look around this room, I'm all by myself. The vast majority of this room has three characteristics in common, and I'm not going to point out what they are but I bet you can guess. And they do not reflect the profession." Halajian went so far as to suggest that she feels gener- ally disliked by her fellow benchers. She added that most of her colleagues in the profession don't have the fondest impression of the law society. "And they have no bones about telling me what they think of the law society. And I can tell you, they don't think much if they think of us at all. And it's reflected in the fact that only one in three of them bothered to vote in our elections," Halajian said. She implored benchers to "get beyond the smell of self-preservation." Others, however, said they were concerned only with the preservation of collected wisdom and institutional memory. Neil Finkelstein, a life bencher, said that many of the prevailing legal issues the LSUC is currently grappling with have been touched on before. And those who have already lived through it have much to impart, he said. "These are issues where that experience and institu- tional wisdom are lost to the future, and we get nothing to compensate for it except a few less chairs." Why should younger lawyers be given an unfair ad- vantage in vying to fill those chairs? Ruby asked. After all, term limits are an inherently undemocratic move that restricts lawyers in their voting choices, he noted. "The focus should not be on who wants to serve. But the focus should be on who the electorate wants to gov- ern them. You reversed it." However, Ruby, whose upcoming life-bencher eligi- bility will be protected by a grandfather clause as part of the reforms, acknowledged that there are problems with the way the law society functions. "We have not exactly met the pressing issues of our day. We're by and large silent on the access to justice, legal aid question. We've done nothing significant about it," he said. "We haven't exactly grappled with the marginaliza- tion of women." But if the provincial statute is opened up, it would be naive to think that the government would simply agree to make only the changes the law society requested, Ruby said. The attorney general of the day is sure to have an inde- pendent agenda and ideas for how governance of the legal profession should change, he said. "We've given no consideration to these dangers." Former law society treasurer Harvey Strosberg echoed those concerns. "If this act is opened up, it is impossible to control what the outcome will be," he warned. "And you don't want to go to Queen's Park unless you know that you can control the outcome." However, it's a loss of control that Bob Aaron, a long- serving bencher and Toronto lawyer, embraces. "What I advocate is that the government give serious consideration to assuming the governance of the law soci- ety," Aaron said, acknowledging his view would be shared by no one in the room. Aaron was highly critical of the LSUC's record of gover- nance as he held up a copy of Lawyers Gone Bad, an insider exposé on the darker side of Canada's legal profession. "What I think we are doing this morning is rearrang- ing the deck chairs on the Titanic," Aaron said. "The fact is that when it comes to the governance of the law society emanating from this room, we're not very good at it." LT Victims still waiting for compensation Continued from page 1 criminal lawyer and murder trial veteran, says there isn't enough provincial funding for defence teams to hire scientists of the same calibre as those used by the Crown. "We still have an adversarial system. In an adversarial sys- tem, you have to have balance, and we don't," Struthers says. At the same time, consider- ing how scientific evidence has stolen some of the focus away from witness testimony — what Struthers calls the "CSI effect" — that imbalance bur- dens an accused with a system- atic disadvantage, he says. "Juries very much are now looking for science. You have a doctor testifying before the jury, and it's mesmerizing." In January 2000, Smith tes- tified in a preliminary hearing against a client of Struthers ac- cused of killing a child in her care. The woman reported that the three-year-old boy had tumbled from the couch and hit his head on a coffee table. Smith asserted that children don't die from falls of less than three or four stories, so the caregiver must have caused the child's head injury. A panel of pathology ex- perts later described his con- clusion as "grossly erroneous." Although Smith's claim was ab- surd even to a layperson, there was no doubting the gravity of the doctor's looming testimony on the eve of the trial. "It was terrifying," Struthers says. "I believed this woman was innocent, and she was be- ing totally railroaded by this charlatan." On other remedies already proposed in response to the Goudge report, Lockyer says the province is dragging its heels. Last December, the On- tario government established a committee led by Ontario's former associate chief justice Coulter Osborne to examine a compensation framework for victims of Smith's erroneous medical findings. So far, there's no word on progress, Lockyer says. "I'm afraid they don't seem to have done anything. I've never even spoken to them." He previously made an in- quiry with the committee, he adds, but didn't hear back. "It's been extraordinarily unsatisfactory and quite bru- tal. These people need help and they can't get it." In an e-mailed response, a spokesman for the Ministry of the Attorney General said the committee is indeed working on the issue of compensation. "The government is looking forward to receiving the commit- tee's recommendations as soon as possible so that we can proceed in the fairest and fastest way pos- sible," the statement said. "As it is important to get this right for everyone in- volved, an arbitrary deadline has not been set." The ministry also noted that the team reviewing shak- en-baby deaths has completed an initial review of all 142 cases and dismissed those that "don't involve any issues of criminality or where the con- victed person is deceased." An international panel of medical professionals is also planning on meeting in To- ronto next spring to review the cases and will report its find- ings to the attorney general, the statement said. LT O ur Sincere T hanks for your valued business We appreciate having you as our customer and look forward to serving you in the New Year. 1-888-393-3874 • dyedurham.ca Untitled-5 1 www.lawtimesnews.com 12/8/09 3:31:46 PM

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