Law Times

PAGE 4 NEWS September 19, 2011 • Law timeS Charter of Rights and Freedoms even in the absence of any claim of bad faith or malice against the Crown. Th e case, which is set for a hearing by the Ontario Acquitted man seeks compensation for time in custody A BY SHANNON KARI For Law Times man who spent nearly a decade in custody be- fore he was acquitted of murder after a second trial is arguing he's entitled to damages under the Court of Appeal on Sept. 21, is believed to be the fi rst time a court has been asked to apply the fundamen- tal justice provisions of the Charter after someone has been acquitted of a crime. Vytautas Baltrusaitis is seeking damages under s. 24(1) of the Charter due to his loss of liberty. "It is not in accordance with the substantive tenets of fun- damental justice, including the substantive tenet of presumption of innocence, that an innocent person spend 9 1/2 years in jail without a right to compen- sation," his lawyer Rocco Galati wrote in arguments fi led with the Court of Appeal. Baltrusaitis, who lived what the courts heard was a "transient lifestyle," was accused in 1994 of killing his brother, a successful pharmacist, in a small community on the shores of Lake Huron. Th e Crown led a largely circumstantial case that included evidence that the brothers had argued over the distribution of the estate of their mother who had died 11 years earlier. Th e testimony of a jailhouse informant with a lengthy criminal record was a key part of the Crown's case. In May 1996, a jury convicted Baltrusaitis of fi rst- degree murder. Th e Court of Appeal ordered a new trial in 2002 because of the trial judge's failure to pro- vide a proper Vetrovec warning about the informant's testimony. Th e Crown didn't call the informant as a witness at the second trial and Baltrusaitis was acquitted in July 2004. Following the launch of a civil action in 2006, the province ar- gued it was fi led one day after the end of the limitations period. Supe- rior Court Justice Kevin Whitaker agreed with the province and dis- missed the action in a ruling in Jan- uary of this year. Even if the claim wasn't statute-barred by the Limita- tions Act, the judge found there was no breach of the fundamental jus- tice provisions of the Charter. Baltrusaitis' failure to seek a bail review was a "full answer to the charge that he was wrongfully imprisoned while innocent and without criminal responsibility," Whitaker wrote in his ruling. Baltrusaitis had no prior criminal It's 'never fundamentally just' for someone to spend a decade in prison for a crime they're ultimately acquitted of, says Rocco Galati. record upon his arrest in 1994, but his "transient life- style" and the fact that he was facing a charge of fi rst- degree murder meant the court was unlikely to grant bail, Galati tells Law Times. (Galati didn't represent Baltrusaitis in the criminal proceedings.) Th e civil action is an attack on the constitutionali- ty of the bail provisions in the Criminal Code that the Supreme Court upheld in R v. Pearson in 1992, the province states in its written arguments. "Th e fact that the plaintiff was later acquitted does not mean that an initial decision to deny bail, which balanced the three statutory factors, violated his Char- ter rights. Indeed, the availability of bail serves to preserve those rights," Ontario government lawyer Hart Schwartz wrote in arguments fi led with the Court of Appeal. To seek a remedy under s. 24(1), there must be a claim either that a law violates the fundamental justice provisions of the Charter or that "conduct is contrary to the Char- ter," Schwartz wrote. "Th e plaintiff does not identify any such conduct and indeed there is no allegation of any Charter mis- conduct or even negligence on the part of the Crown, the police or any state actor in this case," he added. Th e nearly 10 years Baltrusaitis spent in custody "may have been in accordance with principles of pro- cedural fundamental justice, but given his acquittal, it was not in accordance with the principles of substantive fun- damental justice," says Galati, who notes it's "never fundamentally just" for someone to spend a decade in prison for a crime they're ultimately acquitted of. Galati disagrees with the province's suggestion that if Baltrusaitis receives damages, the case would open the fl oodgates and require compensation for everyone in custody who's acquitted at trial. A claim under s. 24(1) of the Charter must be brought before the Superior Court and would likely be successful only when there has been a lengthy period of detention, Galati says. Top judge disappointed at courthouse cutback Continued from page 1 encourage both levels of govern- ment to expand the unifi ed fam- ily court in Ontario. One court with authority to deal with all family law issues will save fami- lies emotional pain, time, and money." At the recent family law summit in Toronto, Attorney General Chris Bentley shifted the onus for expanding the uni- fi ed family court to the federal government and claimed he was prepared to go ahead with it. Instead, he touted his own fam- ily law reforms that he said will provide "much of what is so at- tractive about a unifi ed court." Heather Smith, chief justice of the Ontario Superior Court, also paid tribute to those re- forms, many of which became reality during the last year. Information referral co-ordin- ators, mandatory information sessions, and mediation servi- ces are now available at all 50 of the court's locations. Smith sounded much less convinced about the need for the radical change espoused by Winkler. It has been a year "of feasible, practical, and tangible deliver- ables," Smith said. "In these un- certain times, I venture to say this is just what was needed. We have great confi dence that our approach is both sound and the best approach and that it de- serves a solid chance to establish its worth." But both judges were singing from the same hymn sheet when it comes to courthouse facilities. According to Smith, the in- creasing demand for criminal jury cases in urban centres has meant that "a critical inadequa- cy of court facilities in those lo- cations now looms large." In Brampton, Ont., the capacity to deal with pend- ing criminal actions has "hit a wall." Th e situation in New- market, Ont., "is dire," Smith noted. In Barrie, Ont., mean- while, it's "even more dire." Judges there, she said, "literally have no more space in which to conduct criminal proceedings." For his part, Winkler said he was "disappointed to learn of the cancellation of the planned Toronto west courthouse," which was a casualty of the province's battle with its defi cit in March. Th e move will save the province $181 million over the next three years. Th at won't impress Winkler, who warned there was also a "particularly urgent need to build a new courthouse in downtown Toronto to supplement the facil- ity at 361 University Ave." "Th e continued failure to address this need increases the risk of intractable delays in hearing cases and thus poten- tial miscarriages of justice," Winkler said. Toronto criminal lawyer John Norris was also honoured at the ceremony. He received the Catzman Award for Pro- fessionalism and Civility in memory of the late Ontario Court of Appeal justice Marvin Catzman. Norris, an adjunct professor at the University of Toronto Faculty of Law, recently took on the case of Omar Khadr following the fi ring of his long- time Canadian lawyers Dennis Edney and Nathan Whitling. "His professionalism and ci- vility are as well-known as his excellent legal skills," Winkler said. "I'm very proud to be the fi rst member of the criminal bar to be a recipient of this award," Norris said. "Th is award serves to remind all members of the bar that we do not represent only our clients. We also rep- resent a noble profession, one that plays an essential role in the administration of justice." Bryan Carroll of Borden Ladner Gervais LLP was a joint winner of the award. He was recognized at a separate ceremony in Ottawa. No credit for standard bail: judge Continued from page 1 lengthy criminal record in a domestic violence case. "Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence," wrote Rosenberg. Th e Court of Appeal stressed that there should be no set formula but said it would be an "error in principle" if the sentencing judge didn't ad- dress whether to give credit for pretrial bail that was similar to house arrest. Th e court added that the onus was on the off ender to inform the court about the impact of the bail conditions. Th e court relaxed the bail conditions on Mag- no in 2007, but Henein argued that several years with any kind of restriction should also be a fac- tor on sentencing. "It is more onerous the longer you spend on bail," she said. "I am not going to give him any credit for www.lawtimesnews.com MA_LT_Sep19_11.indd 1 11-09-15 1:50 PM standard bail conditions," Ducharme responded at the sentencing hearing. Magno should receive at least four years' credit for the more than nine years he was on bail awaiting tri- al, Henein argued. She noted that unlike in Downes, her client has no prior criminal record and has been a productive member of society while on bail, includ- ing by making donations to charities. Henein pointed to a 2008 ruling by Superior Court Justice Gary Trotter in R v. Kelsy. In that case, the court gave credit on sentence for sig- nifi cant eff orts at rehabilitation by the off ender while observing strict and lengthy pretrial bail conditions. While Magno continues to maintain his inno- cence, Ducharme indicated he didn't think Kelsy applied in this case. "With the greatest of respect to Justice Trotter, I don't think it is of much as- sistance to me," said Ducharme.

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