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Law Times 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. OCTOBER 31, 2011 • LAW TIMES Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Eman Aboelsaud at: eman.aboelsaud@thomsonreuters.com or Tel: 416-609-5882 Ext. 2732 or Fax: 416-649-7870. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or contact Karen Lorimer at 416-649-9411 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 416-649-8875 kimberlee. pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Time for clarity on electronic devices in court equipment? It's a good question given a recent D ruling that banned the use of devices that can transmit wireless signals. In the high-profi le trial of three people accused of murdering their relatives, Superior Court Justice Robert Ma- ranger eff ectively said no to live Twit- ter updates during the proceedings. "Electronic devices that have the capability to transmit or receive wire- less signals may not be set to 'silent' or 'airport mode' settings, but must be completely powered off ," Maranger wrote in rules laid out for the trial of id Twitter updates during the proceedings against Russell Williams aff ect courtroom Mohammad Shafi a, Tooba Moham- mad Yahya, and their son Hamed in Kingston, Ont. Th e trio is facing alle- gations of fi rst-degree murder over the killing of four relatives in an attempt to restore the family's honour. Judges have the authority to make exceptions to rules against electronic devices in court should they see fi t. Th at's why reporters were able to tweet during the court proceedings against Williams last year. Th at case was ad- mittedly one of the most sensational murder cases Canadians have seen in a long time, but should that be the crite- ria governing the use of Twitter? It's obvious that the justice system is uncomfortable with the idea of things like cameras and Twitter up- dates in courtrooms. Th at's why there are committees to look into the issues but rarely clear guidelines on exactly what should happen. In the mean- time, lawyers like Michael Edelson, who defended Williams, has called for clear rules on what people can and can't do. "I would like to see our rules of practice amended . . . in order to address these issues and give judges and lawyers clear guidance," he said in a Canadian Lawyer interview pub- lished earlier this year. Edelson is concerned about the im- pact live Twitter updates of courtroom testimony can have on witnesses who are about to testify. "Typically, in a criminal case, we really value the order excluding witnesses so that one witness can't tailor their evidence to the next witness," he said, noting live tweets could render that practice meaningless. Th at concern is diff erent from wor- about devices ries interfering with courtroom equipment. It's hard to see how smartphones could actually do that, but either way, it's time for more clarity on what the impacts are and what reporters can do. Simply mak- ing up the rules according to a judge's whim isn't a good way to go about the issue. Somehow, the courts need to fi nd a way to accommodate new technology while ensuring fairness for all sides. — Glenn Kauth Th e proposed safe streets and communities act has an array of new mandatory minimum jail terms and increased penalties. Th e landscape of criminal practice will change as a result. Legal Aid Ontario will have to fund more certifi cate cases be- cause it issues certifi cates when there's a probability of incarcer- ating a penurious accused. Th is will surely aff ect legal aid plans and is perhaps an unintended but inevitable consequence of the new penalties. Expect more trials as some ac- cused will feel they have nothing to lose. Th is will aff ect the Justice on Target program and cause de- lays in the court process. Governments will have to build jails to house additional inmates. Post-conviction B repre- sentation in trying to obtain early release will probably become more important, but parole will be harder to get. For defence lawyers, new mandatory minimums will mean explaining to clients a harsh real- ity that many of them will have ill C-10 will change the way we practise criminal law. Bill C-10 shakes up criminal practice A Criminal diffi culty accepting. We have long seen this in domestic as- sault cases and impaired driv- ing matters. It's hard for people who are coming into contact with the justice system for the fi rst time to understand the life-altering consequences of the charge they're facing. As the advent of new manda- tory minimums decreases judicial discretion, it enhances the role of the Crown. Th e function a judge plays in sentencing an accused is transferred to the Crown, whose election in laying a charge can invoke a mandatory minimum. For example, after bill C-10 be- comes law, if the Crown elects to proceed by indictment on a sexu- al assault where the complainant is under 16, a one-year minimum sentence applies. Yet sexual assault can be as minor as a kiss or plac- ing a hand on someone's knee. If there's bodily harm or a weapon, a fi ve-year minimum applies. People who expose them- selves to a person under 16 will face a minimum 90-day term if the Crown proceeds by indict- ment or 30 days if it proceeds summarily. A drug traffi cker who Mind By Rosalind Conway allegedly carried a weapon will face a minimum one-year term. Adding an allegation that the traffi cking took place by a school ground attracts a mini- mum two-year term. Growing six marijuana plants to share with a friend will lead to a minimum six-month jail term. Th ere are exceptions for those in drug treatment court and in approved programs. As well, there's a notice requirement that pertains to drug off ences. Th ose who decry minimum penalties don't condone the pro- hibited conduct but they fear the impact of these sentences on the accused, their futures, and their families. People make mistakes. Th en they wind up in our offi ces and we do damage control. But what of the damage that can't be controlled? Constitutional litiga- tion may be our only recourse. In R. v. Gill, Ontario Court www.lawtimesnews.com Justice Howard Borenstein dealt with the Crown's decision to fi le a notice of intention to seek a higher penalty in an impaired driving case. Th ere had been a 17-year gap since the last of- fence. Borenstein noted that the Crown exercises a quasi-judicial function and ruled it should be able to articulate a reasonable ba- sis for seeking a higher penalty. Th e use of dated convictions in support of a mandatory mini- mum sentence was potentially unfair and unreasonable. Susan Pennypacker, acting for the ac- cused Richard Gill, unsuccess- fully argued the sentence would amount to cruel and unusual punishment under s. 12. But her s. 7 argument found favour. Th e court dismissed the Crown's ap- peal, with Superior Court Justice Frances Kiteley noting there had been no injury, property damage or fi nding of risk to the public. Gill may be of utility in other mandatory minimum cases and it would make good sense to see what guidance the Crown poli- cy manual provides. Th e key is whether there was a reasonable exercise of the Crown's discre- tion. See also Justice Michael Code's s. 7 analysis in R. v. Nur. Be cautious about advising clients about the eff ect of get- ting a criminal record. When bill C-10 becomes law, the concept of a pardon disappears and the client must apply for a "record suspension." For summary con- viction matters in which the cli- ent has received no more than six months in jail, the waiting period for a record suspension goes up to fi ve years. Conviction for certain off ences makes the off ender ineli- gible for a record suspension. Newly criminal is the charge of showing explicit material to a young person to facilitate a list- ed off ence. For those practising young off ender law, the Crown now has greater scope for obtain- ing custodial sentences. My column can merely touch on the massive impact of bill C-10. Let none of us be the criminal lawyer who missed telling the client the consequences of a guilty plea and gave bad advice. Rosalind Conway is a certifi ed specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

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