Law Times

LAW TIMES • NOVEMBER 21, 2011 NEWS Lawyers may serve as witnesses Continued from page 1 the administration of justice. "Justice McGee was unable, on the ex parte motion, to conduct the bal- ancing exercise because there was no evidence fi led or submissions made on behalf of the respondent. She did, however, consider a wide range of fac- tors when the matter came back be- fore her on June 22, 2011. She held, and I fully agree, that the fundamental right to counsel of one's choice cannot be exercised at the expense of the in- tegrity of the judicial system. She con- cluded that the respondent's right to select counsel of his choice, namely his mother, must, in the circumstances of this case, give way to the safeguarding of the integrity of the justice system." But Boswell promptly rejected the idea that a family relationship was akin to romantic involvement between a law- yer and a client. Th e issue wasn't, in his view, grounds for disqualifi cation. "To the extent that Paragraph 40 of the ruling of the motions judge establish- es a prohibition against lawyers acting in Did judge order juror info? Continued from page 1 "It encourages potential ju- rors to do research before they are properly instructed by the court," says Rippell. He notes he only learned of what was in the notice when a potential juror who came forward to dis- close that he knew the co-de- fendant presented it. "I can't conceive of a justifi - cation" for naming the accused and their alleged off ence weeks before the jury selection pro- cess began, says Rippell. Th e Ontario Ministry of the Attorney General administers the jury-roll process through its court services branch. "Jury in- formation sheets are mailed out along with jury summons at the direction of a Superior Court judge," said ministry spokes- man Brendan Crawley. "Any content that is included in the juror information sheet is in the discretion of and at the direc- tion of a Superior Court judge." Naming defendants and their off ence in the jury infor- mation sheet occurs "on occa- sion in Barrie and other areas of the province where the judi- ciary provide such direction," Crawley noted. Th e Juries Act outlines the authority of a Superior Court judge to direct the sheriff with respect to the number of peo- ple required on a panel to se- lect a jury. Th ere's no reference in the act to the content of the form sent to a potential juror. Th e ministry didn't respond by press time to a question about whether it was suggesting that the trial judge in the Emms case had directed the sheriff to include the additional infor- mation on the jury notice. Carswell-26296_LT_Nov21_11.indd 1 family court for close family members, it goes farther than the Rules of Profession- al Conduct and represents a signifi cant extension of the existing common law," he wrote. "For that reason, it is open to serious debate and merits consideration at the appellate level." Th e issue is an important one, law- yers say. "Th ese days, it's hard enough to get before the courts with adequate representation," says Slayton. "Th ere are also many consequences to not hav- ing adequate representation, like a per- son ultimately representing themselves when they are unable to fi nd representa- tion, which is neither good for the per- son or the judge in most cases." Yet at least one lawyer says the ar- gument about access to justice doesn't negate the reality that it's often dif- fi cult for family members to separate feelings from fact in heated family court debates. "I'm still concerned about the im- plications of welcoming what may be special circumstances in cases where they are not provided for," says Heenan Blaikie LLP partner Simon Chester. He notes that in most cases, lawyers don't represent people they're intimately in- volved with for a variety of reasons, in- cluding the fact that they may end up serving as witnesses. "It's probably not a good idea if ob- jectivity will become an issue, which is certainly often the case in heated family matters where it may be diffi cult to sep- arate feelings from the duties required of a lawyer," says Chester. Chester adds that lawyers would be "ill advised" to represent a close relative. "Doctors don't treat their own family members, and lawyers would be ill ad- vised to believe they can do the same," says Chester. "As a lawyer, you're not simply a mouthpiece for your client, you're an offi cial of court. . . . Objectiv- ity becomes an important factor." Th e issue arose frequently in McGee's decision to ban Lavalley from acting as her son's counsel. "It is well settled that lawyers cannot act for persons with whom they are romantically involved," she wrote. "No less a standard should be applied to lawyers who are in a close familial relationship with a litigant and whose personal interests are caught within the proceeding. Th e record, par- ticularly the e-mail referred to above, is persuasive evidence that Ms. Lavalley cannot separate her personal views from her professional role as counsel." Boswell, however, ruled McGee's conclusion and the questions it raised should go before the Divisional Court. Gavin Smyth, who represented Mitchele, declined to comment on the matter, saying his client was concerned about the impact on the appeal process. For her part, Judson told the court she was "simply asking for the quick- est path through this process" during a hearing on the matter in June. In es- sence, she took no position on the issue, Boswell noted. "It's an interesting decision," says Chester. "I think it shows there should have been greater provisions. . . . And as the judgment seems to note, there is a de- bate that needs to happen as to whether law consummates with practice." 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• Monetary Penalties
• Repatriation Revisited
• Focus On Environmental Law