Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. 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. ©Law Times Inc. 2009 All rights reserved. Editorial Obiter A obligations? Well, they are in the U.S. which means you can bet your tweet bippy it's going on here as well. And Toronto criminal lawyer Adam Boni has rightly sounded the alarm about the potential problem, telling Law Times reporter Robert Todd in our page one story that regional senior jus- tices must issue a practice direction now to keep jurors' hands in their pockets. "What's at stake here is the integrity re sneaky jurors snooping in cyberspace for information on cases thus breaching their legal of the jury trial system, and the founda- tional notion that an accused has a right to a trial based on the evidence presented in a courtroom before 12 independent, impartial arbiters of the facts," Boni says. Here's a newsflash: he's actually not over- stating the urgency of the situation and march 30, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca Publications Mail Agreement Number 40762529 • ISSN 0847-5083 $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. CIRCULATIONS & SUBSCRIPTIONS Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbme- dia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca ADVERTISING Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Unplugging jurors it isn't happening here? Ah, except here it's a lot more difficult to find out given that it's illegal for our jurors to talk it's prescient for him to raise "alarm bells" here in Canada. "I think it's a classic example of how technological advances can outpace developments in the administration of justice," says Boni. In the U.S. there are reports of what's been dubbed "Google mistrials" — cases that have gone off the rails because jurors collected and disseminated information about cases on BlackBerrys and iPhones. As Todd reports, there's a case where a juror was accused of sending Twitter up- dates; another allegedly posted updates on Facebook and Twitter; and nine jurors went against a judge's order and conduct- ed their own Internet probe. Why on earth would anyone assume about deliberations. Back in the dark ages when we covered Toronto's courts, the rule was then as it is today, you can only report what the jury heard in the courtroom on a daily basis. The jurors are also instructed not to read or watch media reports of a trial, but in case they do take a peek, the added layer of pro- tection is in place. Woe betide the newbie court reporter who breaks that rule; they and their editors are hauled before the judge to 'splain themselves post-haste. In- ternet ban breakers? M'eh. We' think it's because there are two rules . . . This is why the ubiquitous, "What d hate to the jury didn't hear" stories dominate so- called mainstream news pages and broad- casts once juries are sequestered. Until now, jurors simply didn't during trials have access to the kind of information and communication the web provides. Blatchford writes in her column recently, "The normal rules mean squat on the web. Publication bans imposed by law don't count, apparently not even to the authorities who would properly pros- ecute the regular press for such breaches." Boni's suggestion for adoption of a uniform code of practice "without de- lay," is sound. "What we don't want is a patchwork of different approaches to the issue," he says. So let's nip this tweeting, grunting, As The Globe and Mail's Christie ensure everyone sees it. — Gretchen Drummie mewing, lowing, clucking, or whatever it's called this week, and create new rules. And post them on the Internet to Go to www.lawtimesnews.com for an audio version. Brownstone has done something historic with his re- cent book Tug of War. Judges, you see, don't often address the public by writing books about the work they do. As Kirk Makin wrote in The Globe & Mail, "Sitting judges simply do not write books offering insider anecdotes, advice, and a critique of the court system in which they work." But ever since the first Cana- dian family court opened in To- ronto in 1929, Family Court has never been quite like other courts. Amid the rapid social changes of the 1920s, social reformers discerned a crisis in the fam- ily: family breakdown, juvenile delinquency, immorality. They concluded it all required a new approach by the courts. The idea was what historian Dorothy Chunn calls "an amalgam of law and social work," a bottom-up initiative to address social prob- lems as much as legal ones. In the reformers' dream, the new courts would have most- I 've been reading that Fam- ily Court Justice Harvey Brownstone — the Blackstone of Family Court? That's History By Christopher Moore ly non-legal personnel. They would offer treatment and prevention rather than punish- ment. They would emphasize informal settlements more than judicial decrees. ily courts were established un- der provincial court legislation, with the limited jurisdiction of magistrates' courts, where many people represented themselves. Among the advocates for Initially, fam- allow a lawyer" to be a family court judge. Well, Family Court has come a long way since then. "Do I need a lawyer? The answer is a definite YES," Brownstone writes. He started specializing in family law in law school, clerked at the Family Court in Toronto, practised family law for 18 years, and has presided in Family Court throughout his judicial career. That whole non-lawyer court idea is long dead. And by the 1970s, the prob- family courts were leading women's activists of the time: Charlotte Whitton in Ontario, and Magistrate Helen Gregory MacGill in Vancouver. And in keeping with the "non-lawyer courts" concept, many of the early judges of these courts were non-lawyer magistrates. B.C. at- torney general and judge Alec Manson, a supporter of the con- cept, declared he would "never lem of responsibilities divided between federal and provincial courts had become too great to ignore. An experiment in apply- ing both federal and provincial jurisdiction in family courts be- gan in Ontario in 1977, and the expanded jurisdiction was made permanent in 1984. Still, something of the "courts recommends mediation, arbitra- tion, and collaborative law, and reports with approval that 60 per cent of divorcing couples in Canada now rely on these. Brownstone's principal mes- sage to his readers: how toxic Family Court is for families. In a line that seems destined to be- come famous, he finds the "major difference between couples who reserve their disputes privately and those who turn to a judge has to do with one overriding char- acteristic: maturity." The people he sees in family courts, he has concluded, are mostly those who lack the horse sense to find another way. that are not like courts" aspira- tion survives. "Family Court is not good for families, and litigation is not good for chil- dren," Brownstone declares. Non-lawyer specialists remain vital in the process. Brownstone www.lawtimesnews.com new idea, there was great ambiv- alence about including divorce in their purview. The idea of the social reformers was to pre- vent that shameful failure, not to facilitate it. In those days, of course, Canada only had a few hundred divorces a year. That was then. Brownstone's focus is almost entirely on di- vorce and its consequences. Tug of War and most of its chapters When family courts were a emphasize separation and custody to the exclusion of almost all else. Tug of War is written less for lawyers and experts than for people who may be entering into family court battles — it's the book you recommend to your client who is heading in that direction. Back in the 18th century, when William Blackstone wrote his Commentaries on the Laws of England, he addressed not so much the lawyers of the day as the educated lay reader who needed to know more about the law. This book tries something similar. Brownstone: the Black- stone of family law? LT Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court by Harvey Brownstone was published by ECW Press in 2009. Christopher Moore's most re- cent book is McCarthy Tétrault: Building Canada's Premier Law Firm, published by Douglas & McIntyre. His web site is www. christophermoore.ca.

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