Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Associate Publisher ...... 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 . . . . . . . . . . . . . . . . . . . . . . . . . Rose Noonan Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2008 All rights reserved. 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. Editorial Obiter profile players in Ontario's justice system. First out of the gate was the province's I t was hammer time last week: two scathing probes pulled no punches in rightly slamming a couple of high- Ombudsman André Marin who took large bites out of the Special Investiga- tions Unit's hide, calling the police watch- dog "muzzled" and a "toothless tiger." Marin made 45 recommendations in his 121-page report cleverly entitled, "Oversight Unseen," calling for new leg- islation to strengthen the agency which reports to the Ministry of the Attorney General and internal changes to banish pro-police bias perceptions. The SIU is independent from police services, but Marin's report noted there's a culture influenced by a bunch of ex-cops on OctOber 6/13, 2008 • 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 Publications Mail Agreement Number 40762529 • ISSN 0847-5083 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 CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. 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One-two punch staff, a reluctance to insist on officer co- operation, "endemic" delays, and a lack of "rigour" in their probes. Key among the recommendations is that the SIU director — the new one, Crown attorney Ian Scott, was selected days prior to Marin's report — should make public explanations when charges are withdrawn or not laid. Transparency. That would certainly be refreshing. Both Marin and the Criminal Law- yers' Association president Frank Addario say legislation must be amended to force police to comply with SIU demands. "If the government is unwilling to do that for fear of alienating police in- terests, it should scrap the legislation and not hold out its promise," Addario tells Law Times reporter Robert Todd. The next day, Justice Stephen Goudge's blistering final report on the Public Inquiry into Pediatric Forensic Pathology in On- tario took the headlines. Among his 169 recommendations, Goudge said the gov- ernment should find a way to compensate those who were wrongly convicted via the work of pathologist Dr. Charles Smith. He also urged the province to review ad- ditional instances of child deaths that may have ended in wrongful convictions. Attorney General Chris Bentley do to make sure that where the shadow of suspicion exists, we shed light." Good. It would also be "the right thing" to show the wrongly convicted the money. As for the SIU, is Addario right when he says it doesn't matter who the director is if the government won't provide new legislative powers? promptly apologized to affected families, reports Glenn Kauth in our front page sto- ry. Bentley said a committee will look into compensation and he pledged to launch a wider probe into more than 200 shaken- baby cases, saying, "it's the right thing to After all this is the seventh time the agency has been reviewed. Listen to Marin: "The history of police oversight in On- tario is marked by successive governments reacting reflexively, whenever public con- troversy erupts. Consequently, government interest in reforming the SIU has tended to be short-lived and incomplete." Is that history . . . or prophecy? — Gretchen Drummie group presented its final report at a recent Convocation, all the rec- ommendations easily carried, in- cluding the one for parental leave benefits. The three-year pilot pro- gram, to be implemented in 2009, will make benefits available to law- yers who are sole practitioners, or in firms of five lawyers or less. Belleville lawyer Karen Selick noted that, "Every politician knows you don' W hen the retention of women in private practice working if you want to be re-elected . . . Not a single [bencher] dared vote against a recent proposal to subsidize mother- hood among Ontario Lawyers." (A perfect demonstration of creeping socialism, National Post, June 2.) Ezra Levant, writing in the July t vote against motherhood issue of Canadian Lawyer, was of like mind. He called the law so- ciety's scheme for parental leave benefits social engineering. Both Selick and Levant made some compelling arguments against what they perceive to be a socialistic measure. Selick noted that the law society's mandate is to regulate legal profession- als in the public interest, and this "wealth redistribution scheme," and "making some lawyers subsid- ize procreation by other lawyers," Taking baby steps in the right direction Bencher's hardly seems to fit that mandate. Selick also didn't see how "encouraging more lawyers to take time off from their prac- tice would alleviate any alleged shortage of legal services." In any event, "Once the beneficiaries of the program have children to chauffeur to hockey practices or dentist appointments," they will likely want to leave private practice for 9-to-5 government or corpor- ate positions that also offer week- ends off, paid vacations, and health benefit packages. For me, however, the report on Diary By Gary Lloyd Gottlieb thought the society was treading far from its mandate. the retention of women in private practice was not a motherhood issue. I may be a bencher, but as a politician I am an abject failure. Since I was first elected 13 years ago, I have never been constrained, in my remarks or my voting at Con- vocation, by the consideration that I wished to be re-elected. With the prospect of becoming a life bencher on the near horizon, thoughts of re- election are remoter than ever in the factors I consider. That is not to say I act independently of the wishes of the lawyers who elect me, or the profession generally. leave recommendation, I nearly arrived at the same conclusion as Selick and Levant. At first, I too When I first saw the parental Then I looked at the widespread consultation done by the society to elicit comments from the profes- sion on the report and its proposed recommendations. Meetings were held throughout the province with lawyers and legal associa- tions. About 900 lawyers and stu- dents attended the meetings, and the society received more than 55 written submissions from indi- viduals and organizations. The final consultation at- tracted a broad spectrum of law- yers, men and women, and from all types of practice settings and firm sizes. overwhelmingly positive. Unless it is a matter of con- science, it would not be appropri- ate for a bencher to vote against a report and recommendations that attract such widespread approval and enthusiasm. As a bencher, I receive much correspondence from individual lawyers and law firms, Their reaction was www.lawtimesnews.com mark of what was another major consideration for me when he said, "The law society knows what's best for moms, and now it's moving from its ineffective bully pulpit to actually intervening in the market. If a law society can take money from female lawyers who choose to go back to work right away and give that money to female lawyers who don't, why can't the law soci- ety tell firms to take money from lawyers who bill big hours to sub- sidize those who don't or can't." Precisely, but Levant' and prior to the presentation of the final report I did not receive a single letter or phone call critical of any of the recommendations. That made me sit up and take notice when, at first blush, I was not enamoured with the parental leave benefit recommendation. Levant came close to the tion did not drive me to the same conclusion as his. I remembered the law society' s observa- cation in 1997 at Niagara-on-the- Lake. I recalled some comments I made then when major law society equity initiatives on women in the legal profession were resoundingly approved. I stated that I looked for- ward to the day when measures were taken to assist all economically vul- nerable lawyers in the profession. s bicentennial Convo- society's report on sole practitioners and small firms. The research find- ings of that report confirmed what we all knew anecdotally to be true. There are many lawyers, almost I remembered as well the law invariably sole practitioners, who earn marginal incomes. These self- same lawyers provide legal services to the ordinary public and legal aid clients. Their low income is not a reflection of the calibre of the ser- vices they provide or of a lack of business acumen, but rather of the areas of legal work they do and the clients they serve. If the law society truly wants to ensure the survival of economic- ally vulnerable lawyers in private practice in order to fulfill its man- date of preserving access to legal services, then it will have to take steps to intervene in the market- place, whether those steps include getting legislative authority to set minimum fees for legal services, or charging graduated annual mem- bership fees based on income. Par- ental leave benefits are a tentative step in that direction. LT Gary Lloyd Gottlieb, a Toronto law- yer, is a Law Society of Upper Cana- da bencher and a Toronto sole practi- tioner. His e-mail address is glgqc@ interlog.com.

• Cover
• SIU Slammed
• Focus On Litigation
• Canadian Legal & Technology Forum