Law Times

February 29, 2016

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BY SHANNON KARI For Law Times A n upcoming decision by the Ontario Court of Ap- peal could greatly impact how the jury selection process takes place in the province, depending on its interpretation of eight-year-old amendments to the Criminal Code. The ruling may also ultimately pave the way for new trials in two other cases that were presided over by Justice Eugene Ewaschuk, who retired last year after more than three decades on the Superior Court. For the first time, the appeal court has been asked to interpret a section that relates to whether there can be "rotating" or "static" triers during jury selection if there is a challenge for cause question and the defence wants only prospective jurors excluded during the process. The use of rotating triers during jury selection has been in the Crim- inal Code since 1892. The amend- ments, enacted in 2008, state that if the accused makes an application to exclude sworn and unsworn [prospective] jurors, then static tri- ers (the same two people) are used to decide each time if someone is acceptable after answering the challenge for cause question. Victor Giourgas, a Toronto de- fence lawyer who has represented clients in numerous jury trials, says in his experience it is common for the Crown to consent to exclude prospective jurors and use rotat- ing triers. "I think this makes it fair for the Crown and defence," says Giourgas. That view is echoed by Peter Zaduk, who says that in only one case of about a dozen jury trials he has handled since 2008 has a judge decided that static triers must be used if the jury pool is excluded from the courtroom. Using rotating triers "reduces the risk of rogue triers who don't understand their function," says Zaduk, who has been counsel in more than 100 jury trials in his career. The case before the Court of Appeal was argued on Feb. 8 and stems from the conviction of Superior Court rules plaintiffs cannot re-litigate claims Costs awarded for fraud allegation withdrawal BY NEIL ETIENNE Law Times T he last-minute withdrawal of fraud allegations after years of litigation has led to a substantial in- demnity costs award granted by the Ontario Supe- rior Court of Justice. The ruling is a warning from the bench for lawyers to be cautious when pursuing such allegations without full evi- dentiary support, says Milton Davis, lead representative for Great Lakes Copper, and partner with Fogler Rubinoff LLP. In 1623242 Ontario Inc. v. Great Lakes Copper Inc., Superior Court Justice David Price gave leave to the plain- tiffs 162 Ontario Inc. [162] to discontinue its fraud claim. Price also ordered a substantial indemnity award against 162 of $516,395.23, and ruled the plaintiffs cannot attempt to re-litigate the fraud claims. "It's long been my belief a lawyer, never mind a client, has duty to the court to not start a fraud claim without hav- ing at least a prima facie case," says Davis. "It's a cautionary tale about alleging fraud; litigants should think twice before making strong allegations of fraud if they can't sustain them, and they should also think about the fact that if you can't sustain them and you abandon them, the court is going to show its disapproval in costs." In 2005, 162 Ontario Inc. had purchased an industrial property in Fergus, Ont., from Wolverine Tube Canada Inc., a company that manufactures copper and alloy tubing. The property had been contaminated by polychlori- CRIMINAL OFFENCES Justice minister rethinks definition P3 TRINITY WESTERN LSUC files factum of response P4 FOCUS ON Labour & Employment P8 See Ruling, page 4 PM #40762529 $5.00 • Vol. 27, No.7 February 29, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M See Judge, page 2 Darren Smith says it is a trend of the court to deal harshly with fraud allegations that are unsubstantiated. Photo: Robin Kuniski Michael Lacy says whether a trial judge can exclude prospective jurors during the chal- lenge for cause questions and use rotating triers was not before the Court of Appeal in a prior case. ARE YOU RECEIVING CANADIAN LEGAL NEWSWIRE? Keep abreast of essential late-breaking legal news and developments with our electronic newswire. VISIT OUR WEBSITE WWW.CANADIANLAWYERMAG.COM AND LOOK UNDER "LINKS" SIGN UP FOR FREE From the publisher of and CanLegalNewswire_LT_Feb22_16.indd 1 2016-02-17 10:02 AM & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Follow LAW TIMES on Court of Appeal decision could impact jury selection

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