Law Times

Page 4 January 25, 2016 • Law Times www.lawtimesnews.com whether QCIPA was used or not, at the end of the investigation the patients and the family, who- ever the patient wants told, have to be told what happened, why, and what the hospital intends to do to prevent it from happening again," Laupacis says, adding that under the current structure of the QCIPA, there is no re- quirement for hospitals to share the outcomes of an investigation and how the hospital is respond- ing to ensure it is not repeated. Laupacis says the recommen- dations include a provision that the investigation results, while protecting patient information, should be shared to help elimi- nate the potential for repeated errors in other facilities. "As the health-care sector transitions to shared electronic health records, the privacy of patients and the confidentiality of their personal health informa- tion must be protected to ensure public confidence," said Brian Beamish, the information and privacy commissioner of On- tario, in a press release from the Ministry of Health and Long- Term Care announcing the committee recommendations. "The introduction of mandatory breach reporting to my office and strengthening the conse- quences for those who violate pa- tient privacy will bring increased accountability and transpar- ency as well as instill trust in the health system." The act is in the second read- ing process and will be due for approval later in 2016. Registra- tion for the professional develop- ment event running Jan. 26 from 6 to 8 p.m. is available through the Medico Legal Society's web page at mlst.ca. LT probation. According to the agreed statement of facts, following his 2011 arrest, Dastani provided statements to the police that implicated James in the activi- ties, leading to the investigation and ultimate arrest of James in 2012. RCMP raided his offices in Concord, Ont. and a suburban Toronto home he shared with Cremer where about $750,000 in cash was found. In his reasons for judgment in R. v. James, Ontario Court Justice David Rose found Dastani, a key Crown witness, to be inconsistent in his testimony and that James would not have been knowledge- able of the illicit business activities. In his decision, Rose wrote: "There is ample evidence that Mr. James was paying suppliers on behalf of Mr. Dastani, namely Nutrition Club or Canada Post. Mr. Dastani's evidence was that Mr. James paid the Canada Post bills but was not knowledgeable about where Canada Post was shipping to. "I have rejected Mr. Dastani's testimony as not credible, and since he is the principal source of evidence that Mr. James knew that the ephedrine received was for exportation I have a reason- able doubt on this charge [con- spiracy to export ephedrine]." Rose wrote that he accepted Dastani's testimony "to the ex- tent that he himself designed and operated a scheme which started with unlawful exporta- tion of ephedrine and developed to include money laundering and tax evasion. "There is a plethora of evi- dence which confirms just that. Beyond that, I completely reject Mr. Dastani as a credible witness. "His evidence has too many internal inconsistencies, and his history of significant lies to so many people renders him un- worthy of belief," he wrote. During the investigation against him, several of James' personal and business accounts became subject to restraint or- ders on the basis the monies there were offence-related or proceeds of crime. He was in court Jan. 20 to at- tempt to have those lifted, but Bergman says the matter was ad- journed until Jan. 27. When the criminal charges were brought against James, he was in the process of addressing an LSUC disciplinary investiga- tion against him in a separate matter. Those matters include allega- tions of professional misconduct for failing to be on guard against unscrupulous clients in connec- tion with 12 mortgage transac- tions pre-dating 2010 and for failing to be honest with lender clients. It is further alleged that James acted in those transactions for multiple parties with conf lict- ing interests in the transactions without disclosure to, or consent from, his lender clients. On Jan. 6, he was in front of the disciplinary panel in relation to those allegations and panel has reserved its decision. In July 2012, during an LSUC hearing, James agreed to a sus- pension of his licence to practise law while the criminal proceed- ings were being resolved. "With the possibility of an ap- peal and the outstanding applica- tion for the return of his property still before the court, it would be improper to comment any fur- ther on the extraordinary hurdles these allegations have posed for Mr. James," Bergman says. "He will have more to say af- ter the Crown's 30-day appeal period has come and gone." LT NEWS Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Emond_LT_June15_15.indd 1 2015-06-10 2:47 PM Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 20 June 15, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski page 2 PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec June 15, 2015 L AW TIMES Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Emond_LT_June15_15.indd 1 2015-06-10 2:47 PM Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 20 June 15, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W How the legal community in Ontario gets its news Understand cutting-edge legal affairs, discover the latest news and benefi t from expert commentary for just 55 cents a day! SUBSCRIBE TODAY AND RECEIVE: • 40 issues a year covering Ontario's legal landscape • FREE digital edition and unlimited online access to past issues • FREE Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer Subscribe to Law Times today for only $199*! To place an order please call 416.609.3800 or 1.800.387.5164 Order online at: www.carswell.com/product-detail/law-times-print-digital *Plus applicable taxes @lawtimes Contact us for more information: Canlawyer.lawtimes@thomsonreuters.com | 416.609.3800 | 1.800.387.5164 Access a free preview at: bitly.com/CanLawyer-FreePreview Witness who testified against lawyer inconsistent: judge Patients' privacy must be protected Continued from page 1 Continued from page 3 I completely reject Mr. Dastani as a credible witness. His evidence has too many internal inconsistencies, and his history of lies to so many people renders him unworthy of belief. Justice David Rose

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