Law Times

Law Times • march 2, 2009 NEWS Judge's interventions prompt new trial BY ROBERT TODD Law Times T he Ontario Court of Ap- peal has ordered a new trial in a case heard by Ontario Superior Court Justice Arthur Gans, ruling the veteran judge made inappropriate in- terventions during cross-exam- inations that undermined the appearance of fairness. The matter involves David Stucky, who was charged with 16 counts of making false or mis- leading representations "to the public" between 1995 and 2002, according to the decision writ- ten by Justice Karen Weiler and Justice Eileen Gillese, and agreed to by Justice Robert Armstrong. The charges stemmed from Stucky's direct mail business that sold lottery tickets and merchan- dise outside Canada. Gans acquitted Stucky of the charges in November 2006, according to the appeal court's decision. Gans ruled that appli- cable legislation dealt only with activity involving members of the Canadian public. The Crown appealed that decision, and the appeal court ruled that the leg- islation was not restricted to the Canadian public. It's not just a job Continued from page 1 as central a role in spreading professional values," he said. University of Toronto law professor Michael Code reminded the symposium of the report last year from he and former On- tario Superior Court chief justice Patrick LeSage on complex criminal cases. That study pointed to a need for all players in the justice system to enhance professionalism. Law schools must train students on the subject, judges must uphold the standards in their courts, law societies must take a strong stance to punishing abuses, and employers like the Min- istry of the Attorney General and Legal Aid Ontario must also enforce standards, said Code. Ongoing learning in professionalism for practising criminal lawyers may need to be offered by organizations other than the Criminal Lawyers' Association and the Ontario Crown Attor- neys' Association, said Code. His report found that the two groups' conflicting ideologies make it difficult for the two sides to come together in such settings, he noted. Code suggested that law schools and the judiciary come on board to offer pro- grams for both sides of the courtroom. Laurie Pawlitza, chairwoman of the law society's professional de- velopment and competence committee, told the symposium that the regulator faces a number of challenges to ensuring professionalism. She noted that those who need continuing legal education pro- grams the least are the most likely members of the bar to take them. She said that the LSUC can make legal education mandatory, but it's impossible to know whether a lawyer has internalized the material they've been presented. "If we're really serious about it, surely one of the things we're go- ing to have to begin to think about is whether or not we are going to test on mandatory continuing legal education or professional de- velopment," she said. "Is that an option we want to pursue? That's for another day, and certainly another debate in Convocation." If testing is not welcomed, said Pawlitza, the LSUC could take a proactive approach through its practice management review system. "A practice management review could uncover at least the tip of the iceberg," she said. "Certainly a less draconian option than the testing and suspension option." Pawlitza said that a mentoring system is not possible, as there are about 40,000 lawyers in the province and nearly 1,500 new ones are called each year. She suggested that individuals flagged by a practice management review could be paired with a mentor. Meanwhile, in an interview with reporters before the sympo- sium, Goudge said lawyers must do a better job revamping their knowledge of professionalism throughout their careers. He said it doesn't make sense for law schools to spend time sensitizing students to these issues only to cast the subject aside when they begin practising and face first-hand challenges. "You need to have mechanisms in place to keep us all thinking about what the new issues are in legal ethics and professional responsibility," he said. "Partly because the problems keep arising over the course of a career, partly because the world changes from time to time." Goudge suggested that training in professionalism means anything from sensitizing lawyers to issues of conflict of interest, confidentiality, and independence — saying what your profes- sional judgment requires, not what the client wants to hear. It also involves more substantive issues, such as ensuring access to justice. "But it all has to do with the notion that being a lawyer is not simply holding a job," he said. "It's actually being part of a profession that is given a stature and a certain prestige and, in return, has a certain service component." The "systemic dimension" of the issue, said Goudge, is the need for the public to have confidence in the justice system. "So far as that public confidence wanes, we lose that element of the foundation we need," he said. "The justice system is only going to work so long as the public has confidence in it." Goudge avoided a critique on just how bad the lack of professionalism has become, opting to say, "We can do better." — with files from Gretchen Drummie Untitled-3 1www.lawtimesnews.com 2/24/09 11:27:03 AM But the court agreed with Stucky's argument that a new tri- al should be ordered due in part to Gans' interventions during the trial, which it said suggested he had prejudged the matter. "We agree that the trial judge's interventions at trial did under- mine the appearance of fairness of the trial in that, at various times, the trial judge assumed the role of counsel for the Crown through his cross-examination of defence witnesses, including the accused, and appeared to prejudge the credibility of the ac- cused," wrote the court. The court noted that Gans interrupted the examination and cross-examination of defence witnesses on over 20 occasions. "During these interventions, the trial judge conducted a vig- orous cross-examination of the witness, often after Crown coun- sel had expressly indicated that he was finished dealing with the particular area in question," the court wrote. "The trial judge also made sar- castic comments, some of which suggested that he had premature- ly judged the witnesses' credibil- ity," read the decision. The appeal court noted, "The failure of defence counsel to ob- ject more frequently, however, must be considered in light of the fact that the prior defence counsel had withdrawn from the file due to acrimony with the trial judge and the trial judge made sarcastic and derogatory comments about prior counsel intermittently during the course of the trial." In one exchange noted by the appeal court, Gans "inappropri- ately cross-examined" an Ameri- can expert on direct marketing, called by the defence. The ap- peal court quoted an exchange with the witness in which Gans remarked, "So you buy your fire- works and your AK-47s at the same store?" The witness answered, "I hope not." Gans replied, "That's the American way, isn't it?" The Crown submitted at ap- peal that a reasonable, informed observer of the trial would have viewed it as fair. The court ac- knowledged that Gans indicated during the trial that he had an open mind regarding the case, and asked counsel if they had any questions following his interven- tions, according to the decision. "Unfortunately, in our view, the above examples illustrate that a reasonable observer would conclude that the appearance of fairness of the trial was under- mined," wrote the court. The appeal court also ruled that Gans' "acerbic comments" to Crown counsel during the tri- al cannot be used as an example of his impartiality. "The comments respecting the Crown and its witnesses do not excuse or offset the trial judge's conduct towards the de- fence," wrote the appeal court. "It is the accused who is in dan- ger of losing his liberty or being sanctioned if found guilty at trial. As we have already empha- sized, prudence and judicial re- straint must be greater where the accused takes the stand." The appeal court went on to note that, "the Crown is not an ordinary litigant." The judges wrote, "In pros- ecuting those alleged to have committed a crime, the Crown represents the public interest. The Crown's role as representa- tive of the public interest is part of the larger obligation it has to the due administration of justice. The Crown and the defence are not adverse in interest insofar as the due administration of justice is concerned. Rather, both have an interest in ensuring that jus- tice be done and be seen to be done." LT PAGE 5 MEET DOUG 30 years in the industry s © 3815.SR.LawTimes 02/2009

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