Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ..........Tim Shufelt Staff Writer ............. Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt .... Kimberlee Pascoe ©Law Times Inc. 2009 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. November 23, 2009 • 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. Editorial Obiter Weighing in on Ontario's new jury rules selection in Ontario. In a bill currently making its way T through the legislature, the province plans to amend the Juries Act to ex- clude anyone convicted of a hybrid criminal offence from serving on a jury. That would expand the current rules that make only people with records of an indictable offence ineligible. The move is somewhat surprising given that it was less than two months ago that Privacy Commissioner Ann Cavoukian issued a highly critical report on the government's controversial jury- vetting practices. Her investigation cen- tred on the privacy issues surrounding he government chose an inter- esting time to introduce a new law changing the rules for jury Crown prosecutors' collection of per- sonal information about potential jurors — data that went beyond mere criminal record checks — without sharing it with defence counsel. In response, the govern- ment vowed to implement Cavoukian's recommendations to tighten the rules. Nevertheless, the recent changes, which are contained within the larger good government act, appear in part to be aimed at that criticism. The proposal, according to the government, would have all criminal record checks on poten- tial jurors go through the provincial jury centre; ensure that they take place ac- cording to strict confidentiality require- ments; and remove the names of ineli- gible jurors from the lists before they go out to courthouses "so that information is never provided directly to any of the participants in court proceedings." The government should get credit for acting quickly. But by expanding the definition of ineligible jurors, it has add- ed a sore point for some defence lawyers concerned about the vetting issue. The change, in fact, comes as the is- sue of jury selection has popped up in a few provinces. In Alberta, for example, the government has moved to exclude anyone charged with a criminal offence, let alone convicted of it. Here in Ontario, the legal profession as well as the public have an opporunity to weigh in on the changes to who is in- eligible during hearings before the stand- ing committee on finance and economic affairs. It is true that many jurisdictions eliminate convicted criminals from juries, but does that mean we should be expand- ing those restrictions? The concern is that the mere fact that someone has a criminal record, particularly for a minor crime dating back years, isn't necessarily unable to be an impartial juror. The goal is to ensure juries include a cross-section of society, a notion that's especially im- portant given that some groups are overrepresented in the criminal justice system. So by eliminating more people with a criminal record, those groups will have less chance to participate in juries. As a result, given the timing and the lack of discussion so far, those interested in the issue will hopefully have their say before the proposals become law. — Glenn Kauth I f there's one Law Society of Upper Canada report you'll want to read in your profes- sional lifetime, it's the recent proposal to implement a con- tinuing professional develop- ment requirement. You will shortly have the op- portunity to provide your in- put as October's Convocation approved consultations with lawyers and paralegals on the report's recommendations. It may be called a profession- al development requirement or regime, but call it what you will, it means mandatory continuing legal education and it will be enforced. The issue has been a conten- tious one ever since I became a bencher in 1995. First, there were the 1996 report and rec- ommendations on post-call learning for lawyers. Then, in 2001 there was a committee re- port on implementing the law society's competence mandate. The current report, however, covers all the bases. All the ar- guments against a mandatory regime get thorough consider- ation. For the most part, it re- buts them given the sea change Mandatory CLE: The time has come Bencher's in the provision of continuing legal education during the last 14 years. Education programming, with the law society leading the way, has finally become relevant and practical. It's no longer merely a platform for special- ists to showcase their expertise in the expectation of attracting new business. Program attendees no longer have to be satisfied if they learn only one thing. Today, continuing legal education pro- vides a lot of practical informa- tion and precedents. The law society has also been in the vanguard of making it more accessible. Now, with in- teractive teleseminars and live webcasts, you don't have to trek down to Osgoode Hall but can access programs by telephone or computer. You can also download and save materials. The only weak link in the chain of providing continu- ing legal education is making it more affordable. Fulfilling the 12-hour annual requirement by attending recognized programs will cost $800 to $1,000, but the report has tried to respond to this issue by, for example, allowing Diary By Gary Lloyd Gottlieb small firms and sole practitioners to engage in interactive continu- ing legal education that they or- ganize themselves. The proposal would also recognize in-house programs at large firms. One cannot realistically ex- pect, however, that sole prac- titioners and small firms will have the time to organize their own seminars, including keep- ing substantiating records of the topics discussed, time spent, and who attended. They'll also be hard-pressed to provide the same quality, in terms of speak- ers and materials, as programs presented by the law society, the Ontario Bar Association, and other formal providers. For a number of years, by providing a 50-per-cent dis- count to those lawyers whose take-home income is below $35,000 per year, the law soci- ety has recognized that for many www.lawtimesnews.com lawyers, often sole or small- firm practitioners, there is an economic barrier to attending continuing legal education. I therefore suggested at Convo- cation that the threshold for bursary assistance should in- crease to $75,000. The report on the profes- sional development requirement notes that of 7,400 sole-practice law firms in the province, ap- proximately 27 per cent or 2000 of them reported in 2008 that they took no continuing legal education. Undoubtedly, many of those lawyers would attend if there was no economic barrier. In the past, keeping track of the law society's minimum expectations for professional development has added to the record-keeping burden for many practitioners. That barrier will come down. The plan is for practitioners to be able to access the law society web site after en- gaging in continuing legal edu- cation so they can easily update their own attendance record. I do not understand, how- ever, why the current report recommends continuing pro- fessional development audits. Some will take place as part of the practice management review and paralegal practice audit processes. Others won't entail a visit but will be random re- quests for proof of compliance. Audits cost money, something that's ultimately reflected in the law society membership fees we pay. Furthermore, audits are an- noying and time-consuming. The 2000 report to Convoca- tion on implementing the law society's competence mandate, in fact, noted that the vast ma- jority of members would never demonstrate performance re- quiring either a practice review or a competence hearing. Most of us believe in and at- tend continuing legal education. Audits should focus on lawyers and paralegals for whom there are concerns over competence, not on the rest of us. LT See the Convocation report at www.lsuc.on.ca/media/con voct09_joint_report.pdf. Gary Lloyd Gottlieb, a Toronto sole practitioner, is a Law Society of Upper Canada bencher. His e-mail address is glgqc@interlog. com.

• Cover
• Sponsorship Woes
• Biting Letters
• Focus On Environmental Law