Law Times

Page 2 March 21, 2016 • Law TiMes www.lawtimesnews.com ere were resignations, pro- tests, and letters to the media when the CBA announced that, because of the interests of the 4,500 in-house lawyers among its membership, it would inter- vene to raise issues of corporate law before the Supreme Court. In fact, the main thrust of the case was the recovery of damages for environmental degradation caused by Texaco (which later merged with Chevron) in Ecua- dor. e CBA's stance appeared to pit the CBA against the environ- mental claims of the Ecuadorian villagers, to the great distress of environmental, aboriginal, and human rights lawyers across the country. McRobert says the CBA is the umbrella organization that represents a tremendous range of interests across Canada, with different laws and different memberships. "What really brought the issue to the fore was that the executive of the CBA decided to launch an intervention in the Chevron case, but the consultation process was inconsistent with the policy in place at the time," he says. McRobert acknowledges that it wasn't unprecedented for an expedited process to be used, es- pecially in summer when things are a bit quiet. "Oen, there are very short timelines involved, but the out- come was that the decision was taken without the support of important committees and all the affected provincial organiza- tions. No matter how finely craed the intervention was, there was a message to constituents that the position was accepted by the ma- jority of the CBA," he says. Adding salt to the wound was the fact that the intervention ap- peared to be unnecessary and that the CBA intended to brief a law firm that frequently repre- sented Chevron. "Chevron was ably repre- sented by its lawyers," points out McRobert. "ere was really no new ar- gument contributed; nothing that wouldn't already be can- vassed." At the last minute, the CBA executive decided not to go ahead, and instead launched a full-scale review of the interven- tion policy, involving an analysis of all of the intervention propos- als from 1992 to 2014, and a re- view of relevant changes to the SCC rules. e review committee also canvassed all the membership and other experienced stake- holders. Its report was presented last June and, based on its recom- mendations, the new policy was approved by the board in Sep- tember 2015 and the council in February 2016. "It was the right decision," says McRobert. "It provided the opportunity for the organization to do dam- age control." Hollins has had an oversight role throughout the reform pro- cess. She says the new policy makes great strides. "e former policy was over 20 years old by the time we looked at it. Like all organizations, we have evolved, as have the prac- tices around intervention policy. Interventions themselves have changed over the years," she says. "We needed to take a look at how to redra the policy or make amendments that better reflected what the members expect." Hollins confirms that Chev- ron was the catalyst for the broader review. "e scope of consultation was highlighted by Chevron, and also it was timely and appropri- ate to consider what kind of cases we should be intervening in and those we should not be interven- ing in," she says. In fact, the policy reform has outpaced the case that inspired it. Yaiguaje v. Chevron has been adjourned until Sept. 12, when competing motions on the available defences will be heard. Alan Lenczner, who repre- sents the plaintiffs, advises that his clients have filed a motion to strike out most of the statement of defence of Chevron Corp. and cross-motions in response to claims by Chevron Corp. and Chevron Canada that there are no assets in Canada with which to satisfy the judgement. Meanwhile, the CBA is al- ready issuing intervention pro- posals under its new policy, ac- cording to McRobert, who is the public liaison officer for the ab- original law section in Ontario. "Since September, four or five interventions have been pro- posed. e dras have come to me and I have consulted with my colleagues," said McRobert. As for the cases themselves, Hollins says the review commit- tee recorded a strong response that interventions should pri- marily be about the core princi- ples of the legal profession, issues of importance to the legal profes- sion generally and only in excep- tional cases, and on substantive legal issues of relevance to law- yers in a particular practice area. "What the committee found was that the broad support of CBA interventions is more as- sured in cases relating to core principles, such as solicitor- client privilege and the indepen- dence of the judiciary," explains Hollins. "e division of opinion is very low because we all recog- nize those principles. e farther you move away from that to substantive law, the more likely you are to find divi- sion within a 36,000-member organization." e new policy also specifies that the full CBA board must be responsible for approvals, and that interventions must consti- tute a significant contribution to the case and not merely restate the arguments advanced by the parties. Counsel representing the CBA must be unbiased and not promote their own agenda. Several interventions ap- proved under this policy are al- ready underway. "We can say it's working very well," advises Hollins. "More member engagement and transparency are at the fore- front of these amendments, fol- lowed closely by the very neces- sary review of the kind of cases the CBA is intervening in. "e unanimous approval of the policy in February shows we got it right." LT CBA already issuing intervention proposals under new policy NEWS Continued from page 1 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 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 t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W 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 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 t7PM/P +VOF 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 [OLSH[LZ[UL^ZHUKILULÄ[MYVTL_WLY[JVTTLU[HY` for just 55 cents a day! SUBSCRIBE TODAY AND RECEIVE: • 40 issuesH`LHYJV]LYPUN6U[HYPV»ZSLNHSSHUKZJHWL • FREEKPNP[HSLKP[PVUHUK\USPTP[LKVUSPULHJJLZZ[VWHZ[PZZ\LZ • FREE Canadian Legal NewswireH^LLRS`LUL^ZSL[[LYMYVT[OL editors of Law Times and Canadian Lawyer Subscribe to Law Times today for only $199*! ;VWSHJLHUVYKLYWSLHZLJHSS VY 6YKLYVUSPULH[!^^^JHYZ^LSSJVTWYVK\J[KL[HPSSH^[PTLZWYPU[KPNP[HS *Plus applicable taxes @lawtimes *VU[HJ[\ZMVYTVYLPUMVYTH[PVU! *HUSH^`LYSH^[PTLZ'[OVTZVUYL\[LYZJVTc c (JJLZZHMYLLWYL]PL^H[!IP[S`JVTCanLawyer-FreePreview Untitled-1 1 2016-03-17 8:55 AM

• Cover