Law Times

Law Times • march 7, 2016 Page 5 www.lawtimesnews.com Lawyer can practise while LSUC firms up its case BY NEIL ETIENNE Law Times T he Law Society of Upper Canada's disciplinary tri- bunal declined to force a Toronto-area real estate law- yer to sign an undertaking to not practise for the next month while he prepares a response to allegations of misconduct. Winston Deonarain is ac- cused of professional miscon- duct over how he's handled mixed trust fund withdrawals. The tribunal also ordered the LSUC's counsel in the matter to rework its submissions to better clarify the allegations of wrong- doing against barrister and so- licitor Deonarain of Deonarain, Winston PC. The tribunal is chaired by Raj Anand, with Bar- bara Laskin and Patrick Furlong. Appearing before the tribunal March 1, Deonarain appealed for an adjournment to craft a re- sponse to allegations and notice he received Feb. 22. The LSUC allegations are based on the results of a spot audit of the lawyer's practice, conducted between June and August 2015. According to the LSUC's factum against Deon- arain, the audit showed more than 50 questionable withdraw- als from his mixed trust account totalling $175,000. "This is a very serious mo- tion; to make an order [to un- dertake giving up his licence for a month] based on erroneous facts would prejudice me to my clients," Deonarain said to the panel. Deonarain told the tribunal allegations made against him were "absolutely incorrect" and he needed more time to retain counsel of his own. He requested the tribunal deny the undertaking request by LSUC counsel Elaine Strosberg that he give up his licence to prac- tise until the next hearing date. The tribunal denied Strosberg's request for the undertaking. Strosberg argued for the un- dertaking due to concerns he would reoffend. The lawyer agreed to a tem- porary freeze of those accounts during the spot audit period, but Strosberg argued that after the audit and the accounts were re- leased back to the lawyer, Deon- arain made yet another "ques- tionable" withdrawal of $500, without proper documentation verifying the reason. She argued that subsequent investigations of the account by the LSUC since the spot audit also showed he had not been keeping his books and records current and is also facing a sepa- rate investigation for mortgage fraud. She said these factors combined gave rise to the con- cerns of reoffending. "He's been playing fast and loose with his trust account; in all the circumstances together, Mr. Deonarain represents a risk," Strosberg said. "There's some- thing wrong in Mr. Deonarain's office, these are worrisome sig- nals that seem to indicate there is a risk to the public." For his part, Deonarain chalked the "questionable" with- drawals up to "bank error," and he had completed online bank transfers from his general ac- counts to rectify the mixed trust account deficiencies. "A licence to practise is a priv- ilege," he said, adding he would not risk that licence by deliber- ately misappropriating mixed trust account funds, especially while they were being watched by investigators. In declining the undertaking, Anand said that while the fac- tum and investigation affidavit point to the $500 withdrawal af- ter the spot audit as being "ques- tionable," there was little there to explain why it was questionable in the submissions. Anand requested that LSUC counsel rework the allegations to make clearer reference to the misconduct claims. The panel adjourned the mat- ter until March 30 to give time to Deonarain to retain counsel and draft a complete response to the LSUC while the LSUC's counsel was asked to provide supplemen- tary information, a better chro- nology of events, and further documentation to support the misconduct claims. In the separate mortgage fraud complaint against Deon- arain that is still under investiga- tion, LSUC investigator Jordan Baum wrote in his sworn affi- davit that the lawyer, without his client's knowledge or authoriza- tion, registered a mortgage in the amount of $165,000 on the client's property. In the affidavit, Baum said Deonarain received a file from Mortgage Central during the summer of 2015 and referred it to a junior lawyer with office space in the same office building as Deonarain. Baum states that the client learned of the mortgage when Deonarain's office sent a letter to the client stating a cheque in the sum of $5,000 was ready for pickup. Baum alleges that the cli- ent went to meet with the lawyer about the issue, but Deonarain allegedly would not show the cli- ent the mortgage application. The client claimed to Baum that he had nothing to do with the transaction and alleged his identity was stolen. Baum stated the investigation is still under- way and several interviews need to be conducted to further the investigation and added Deon- arain otherwise denies any wrongdoing. LT NEWS Promote your law firm by ordering reprints of articles from the voice of the profession — Law Times! Reprints are great for: Been in Law Times Want a record of it • Firm promotional material • Use on your web site • Training and education • Suitable for framing $200–$250/reprint We provide a colour PDF and unlimited reproduction rights. For more information or to order reprints, please e-mail Gail Cohen at: gail.cohen@thomsonreuters.com 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

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