Law Times

Law TiMes • March 26, 2012 COMMENT PAGE 7 I t's not often in criminal cases that law- yers are also the alleged victims. It's even less common for them to help prepare the case against the alleged abuser. But that happened in Winnipeg last week at the sentencing of Graham James, the notorious predator and abuser of young hockey players. Readers will recall that James' case prompted the federal government to revise its laws on granting pardons to restrict them in situations that would bring the justice system into disrepute. Parliament has since moved to eliminate pardons in cases involving convictions for serious sexual offences. The most recent proceedings against involved Ottawa James lawyer Greg Gilhooly, who was a promising hockey player until James got hold of him and allegedly wreaked horror on his life. The alleged abuse began in the 1970s and lasted until Gilhooly escaped on a schol- arship to university in the United States. He survived it all and went to Princeton University and then on to the University of Tor onto to become a lawyer. Last year, he reached out to help police with their investigation into James' actions. Gilhooly told his story to Jim Brown on CBC Radio's The Current last week. He talked about how it felt to be both a law- yer and victim watching the proceedings during James' final sentencing last week. The saddest, most frustrating part for Gilhooly was not being able to testify against James. Part of Gilhooly's concern is the notion that the legal sys- tem isn't set up to do justice. It merely hands down legal results. Gilhooly believes he may have been James' first vic- tim before Sheldon Kennedy, Theoren Fleury, Todd Holt, and as many as 75 other young boys. Gilhooly said he reached The Hill predator, preying on children, be granted bail. "Once Graham had bail, he was holding all the cards. He could plead to any number of charges, or not. "Unfortunately, it was my set of charges he didn't plead guilty to." He noted prosecutors came out to police after Fleury's book came out. "The book sent me spiralling," Gilhooly recalled on the CBC program. He told police his story of abuse and helped prepare the case against James. But in the end, he discovered to his immense frustration that he wouldn't be testifying. "My charges were stayed," said Gilhooly with a hint of resentment. "Graham only pleaded guilty to assaults against Fleury and Holt." Gilhooly noted he has no idea why James refused to plead guilty in his case despite doing so in the Fleury and Holt matters. Was it vengeance? Was James playing a game? Was it because Gilhooly was his earliest alleged victim or because he knew Gilhooly had leaked the fact that James had received a pardon to the media? In any case, Gilhooly isn't about to trouble himself with it. "The problem the Crown faced was that Graham had been granted bail, and only in Canada can an already-serial Richard Cleroux to him during the first week of December and told him James wasn't willing to include his set of charges in his guilty plea. "I was unbelievably upset," Gilhooly said on The Current. "I said to myself, 'This is not what I signed up for.' I was not looking for my charges to be stayed. It was frustrating. I was looking for some form of vindica- tion and/or some validation. I wanted to lawyer the thing myself and be the Crown prosecutor going after Graham." But in the end, being a lawyer helped him come to terms with the fact that the charges related to him against James wouldn't proceed. He recalled taking a step back and reflecting over what the prosecutors had told him. "I was in the end able to understand why the Crown did what it did. But at the time, the victim inside me was incredibly upset." He said he now realizes the Crown had valid reasons for what it did. First, if the court were to convict James of assaulting three young hockey players instead of two, the difference wouldn't sig- nificantly affect James' sentence. "On top of that, there was the bigger problem of the length and cost of the trial," he noted. "From the Crown's perspective, it would be more difficult if there was a trial because witnesses would have to be called. "There would have been any number of witnesses from that time with respect to what Graham did to me and to others who would have been called to testify against their wishes and who we believed were also victims. "And the Crown doesn't like to call vic- tims of sexual assault to trial against their wishes. When I took a step back and under- stood what the Crown was doing, the law- yer inside me understood. But as a victim, it didn't make me feel any better." On Tuesday morning, when the judge read out her sentence, Gilhooly said he ceased to be part of the case. "I'm Citizen X, the same as you or your neighbour." Brown, the CBC interviewer, asked: "And an alleged victim?" "Alleged! That's a wonderful word that I will carry with me for the rest of my life," Gilhooly responded. "Everything is alleged. Nothing is proven." LT Richard Cleroux is a freelance report- er and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. Brown's critique of province's ceived an unusual amount of publicity last week. The issues, however, go deeper than the ones the case high- lighted. Although the decision turned on only one filed S document, there were many ramifications. Court staff had to run across the street to pull documents from the file. At the same time, lawyers had to ask staff to run documents up to the court. There was a delay in the hearing and ultimately, all of this resulted in higher legal fees and wasted time. To his credit, it wasn't the first time Brown has been critical of Ontario's antiquated court filing system. Last September, he explained the irony of judges exhorting lawyers to exchange documents electronically when it's the Superior Court that "labours in the Dark Ages of document management." There, too, he concluded that judges "must continue to point out this most ser- ious problem until such time as those who administer this court take the necessary steps to fix it." Despite Brown's judgments and papers on the topic, no changes have occurred. An article published in Precedent in September 2011 described the long history of aborted at- tempts at modernizing Ontario's court system. Th e eff orts started in 1996 with the Integrated Justice Project that cost $265 million by October 2002. Th e government ultimately cancelled the project. A new attempt to modernize the sys- tem occurred in 2007. Although the trial project was a hit, the government declined to expand it provincewide, pre- ferring instead a plan to develop a similar system internal- ly. All of this is in stark contrast to British Columbia. Th at province rolled out an online court services project in 2004 that now operates in every jurisdiction there. Brown's decision illustrated the increased ex- penses to litigants arising out of one lost docu- ment. But lost documents are only a small part of document-management system reflects larger problem u SPEAKER'S CORNER BY JEAN-MARC LECLERC For Law Times uperior Court Justice David Brown's recent decision criti- cizing the inefficient paper-based document- management system in Ontario's courts re- Brown's lost document case, these are ex- penses that occur in every matter due to the province's failure to adopt some kind of electronic filing project. Scheduling motions can be equally the problem. Every day, people involved in Ontario's court system must contend with the expensive con- sequences of the province's antiquated documents system. Suppose a small-business owner has a problem. The company delivered the goods, but the customer refuses to pay. This is a quintessential example of the most straightforward kind of collections claim. There are thousands of such claims before Ontario's courts at any point in time. How does the small-business owner collect? The first step is to have a claim issued. This requires physically attending at court and having a hard copy of the document stamped. Although anyone can stand in line to do this, most lawyers will hire a process server to take care of it. Process servers cost about $200 an hour. After this, a hard copy of the claim must be physic- ally served on the defendant. Most lawyers will hire a process server to do this, too. After serving the claim, the process server must sign an affidavit of service. After the process server signs the document, he or she must then again attend court and wait in line to physically file a copy of it with the court. All told, the costs of hiring a process server to stand in line to issue a claim and file copies of it with the court can easily reach $500 or more. This does not even begin to include the lawyer's time involved with drafting the claim. The wait times can sometimes be significant. Line- ups to file materials can take hours. In a modern world where e-mails can be sent to hundreds of people around the world in the blink of an eye, Ontario's antiquated service and filing require- ments are expensive and time-consuming. Unlike www.lawtimesnews.com expensive and difficult. If the small-business owner in the collections case wants to seek summary judgment in Toronto, a lawyer must attend motions scheduling court in person at 9:30 on Tuesday and Friday. And it must be a lawyer who attends because articling stu- dents aren't allowed. On some days, dozens of lawyers pack the court- room waiting for their case to be called. Assuming there are 20 lawyers at an arbitrary hourly rate of $400, every hour spent in the court is a collective $8,000 that clients must pay for the simple privilege of schedul- ing court time. Once scheduled, the client must hop back on the paper bandwagon. Documents are sent to printers to be copied and bound. Copies must be phys- ically served on opponents by process servers. More copies must be physically filed with the court. Costs go up and up. It's as simple as devising a system to permit par- ties to electronically serve and file court documents and schedule appointments. Expensive copies would no longer have to be made. Process servers would no longer have to serve copies on parties and wait in line to file copies with the court. Electronic copies of materials would be available for review by the court and the parties 24 hours a day. In appropriate cases, members of the public could even review court filings via the Internet, a feature that U.S. courts have allowed with their PACER system since 2001. Although Brown's recent decision criticizing On- tario's outdated court-filing system revolved around one lost document, it's symptomatic of a much larger problem. Ontario must update its service, filing, and scheduling requirements to reflect the reality of ordin- ary people seeking access to justice. LT Jean-Marc Leclerc is a partner in the litigation depart- ment at Sotos LLP. A lawyer' s tale as one of Graham James' alleged victims

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