Law Times

PAGE 6 COMMENT Law Times Group Publisher ..... Karen Lorimer Associate Publisher .... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editors ..... Helen Burnett . . . . . . . . . . . . . . . . . . . . . .Robert Todd Copy Editor .......... Matt LaForge CaseLaw Editor ..... Jennifer Wright Art Director .........Alicia Adamson Production Co-ordinator .. Mary Hatch Electronic Production Specialist ............Derek Welford Advertising Sales .. Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . .Rose Noonan Sales Co-ordinator ........Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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 web site. It was impossible to resist a click on that one. "A $3.5 billion class action lawsuit has been launched on behalf of thousands of addicted gamblers who say they asked to be barred from Ontario's casinos, but were still allowed in," reported the CBC. Has the starter's pistol finally cracked on the summer silly season? "P The statement of claim was filed last week by Markham accountant Peter Dennis, 48, and his wife Zubin Noble, on behalf of 12,000 gamblers and their families who bet the Superior Court cer- tifies the class, said news reports. The lawsuit against the Ontario Lot- tery and Gaming Corp., which regulates casinos in this province, alleges according to the CBC, that it "did not do enough for those who signed up for 'self-exclu- sion'" from the gambling palaces. For the uninitiated, that apparently is a program meant to deter these particular people Gamblers roll the dice roblem gamblers hit Ontario ca- sinos with $3.5B lawsuit," beck- oned the headline on the CBC's from darkening the gaming dens; they let themselves be banned so "that they can curb their ruinous gambling habits," said the CBC story. Registered gamblers had their pic- tures and personal details put into binders that were kept at each casino. According to the lawsuit, few were ever stopped. But really, how could they amongst what we wager are millions of faces crossing those thresholds. Gamblers told the CBC the pro- gram simply doesn't work. They quoted one addicted woman who signed up, but claimed she was soon back at it. "I walked through, no one looked at me," she said. "I kept gambling for the next couple of years." Lawyer Jerome Morse told the CBC the suit will hopefully assist addicted gamblers who've lost large amounts of money, but also bring about change. "[We hope it sets] a precedent that not only benefits all members, but that will benefit anyone who is sub- ject to the dangers of gaming in North America," he said. He further is quoted by Toronto Sun columnist Michele Mandel that, "These aren't people who want to ruin their lives. They have this recognized psychi- atric illness and they did the responsible thing by recognizing the need to reach the agreement with the OLG to keep them out of the casinos." He also said the OLG did not use state-of-the-art technology to enforce the program. According to Mandel's column OLG spokesman John Letherby said they are looking into advanced facial-recognition technology. The CBC quoted lawyers as saying that in the Netherlands gamblers present photo ID at casinos which is checked against a database. The story has prompted reaction. On the CBC's web site readers say: "Gee, I wonder what they're going to do with the money if they win their suit?" said someone called "Big Furry Moose." "JayJay" said: "With these frivo- lous lawsuits we are fast becoming the United States." Another wondered what's next: Would crack addicts sue their dealers? (Actually . . . that did happen and she won, on a technicality.) "So they didn't win big at the casinos and now they're trying to hit the jackpot in the courts," said "Neon Cab." Well, let's not forget that while the words "personal accountability" may quiver for liberation at the end of our tongues, this is a heartbreaking disease. Mandel put it best: "According to the lawsuit, Ontario casinos draw 36 per cent of their total revenues from problem gamblers. But is it reasonable to expect casinos to babysit addicts? Probably not — but then they should never have pretended that they could do so in the first place." The program might be a good idea, but if it doesn't work under its current in- carnation, there has to be a better way for both sides to find a solution, rather than turning to our courts. — Gretchen Drummie on a long case on legal aid means risking financial ruin. Many years ago I was on the Why senior lawyers are avoiding serious cases W hat happens when a long legal aid trial falls through? Taking "Iranian case." Activists had stormed the Iranian Embassy and, once inside, mischief and assaults were committed. After I succeeded in having the line- up evidence excluded on a pretrial motion (the client was arrested downtown for "looking foreign"), my client walked away. I basked briefly in the fuzzy glow of victory, until I was hit with the full weight of the Frankenstein I had created: a two-and-a-half month hole in my diary. I wrote a woeful letter to Legal Aid Ontario and was paid one day for each week of the time set aside but not otherwise used. That was a blockbuster case with 31 accused and 29 defence counsel. Now cases with far fewer accused take much longer. Murder cases take many months, or even a year. Losing four or five months of trial time is devastating. Overhead still has to be paid. Work has been turned away. But LAO no longer pays for time set aside. Justice Patrick Lesage and Michael Code are presently reviewing the complex cases in Ontario to recommend changes to the way the Crown, the courts, and Legal Aid handle matters. The mandate of these the complex criminal case procedure review is to recommend solutions to move larger, complex cases through the system faster and more effectively. There has been a concern that long cases are draining legal aid and judicial resources, and that frivolous motions are being brought. But, ironically, when cases collapse, the present system permits the province to visit the entire "downtime" defence cost of these long cases The public A Criminal Mind By Rosalind Conway on the lawyers themselves. Who is taking the long cases? perception may be that only the most senior lawyers take these cases, but the reality is different. In the legal community there are concerns that less experienced lawyers are taking on murder trials and other serious matters. Many of the most senior lawyers are comfortably ensconced on inquiries at what are most definitely not legal aid rates, or they are honing their skills on drinking and driving. Taking on a long case has come to be called the "practice buster." Clients may have to consult a number of lawyers before finding someone to take www.lawtimesnews.com their murder case. One of the ideas up for consideration is creating a "tier four" for the lawyers that take on murder trials in Ontario. Presently, there are three tiers: tier one is the entry level, and LAO pays those lawyers $77.56 per hour; tier two, requiring four years of experience, is remunerated at $87.26 per hour; tier three is reached at 10 years of experience, and the hourly rate is $96.95, after which no further increases are presently possible, although there are special rates for northern Ontario. Only lawyers on the extremely serious criminal matters panel may take on certain files in Ontario. The lawyers are expected to have a minimum of five years of criminal experience and to meet other criteria, although the area director for Legal Aid can empanel a lawyer who may not meet the standards. Last year the Defence Counsel JUNE 16, 2008 / 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 address- es. 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 Helen Steenkamer at: hsteenkamer@clbmedia.ca or Tel: 905-713-4376 • 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, Kathy Liotta at 905-713-4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca or Rose Noonan at 905-726-5444 rnoonan@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Association of Ottawa had proposed a tier four for lawyers with 15 years of experience, who would be paid an additional 40 per cent hourly. This was in their submission to the McCamus legal aid review, which was then taken over by Prof. Michael Trebilcock. Eight years ago Justice Fred Kaufman and Robert Holden's tariff review task force report recommended senior counsel be paid $140 per hour, as well as paying counsel one day for each week of "fall-throughs." Serious matters deserve senior counsel, supported by junior counsel and a strong legal aid plan. The province must deal with the fact that our system chronically lags behind the times. If LAO wants senior lawyers on serious matters, they will have to pay senior lawyer rates. LT Rosalind Conway practises criminal law in Ottawa. She can be reached at rosalind.conway@magma.ca.

• Cover