Law Times

PAGE 4 NEWS MAY 12/19, 2008 / LAW TIMES Mathieu will have impact across country BY SHANNON KARI For Law Times he Supreme Court of Canada has found that pre-sentence custody is not a potential impediment to a T 19–20 June 2008 Crisis has become a fact of corporate life: tainted products, environmental catastrophes, company scandals, dawn raids by competition authorities, fraud and wrongdoing. Dealing effectively with a corporate crisis requires unique skills and judgment on the part of both the litigation lawyer and corporate counsel who are confronted with issues that may be unfamiliar, often on an emergency basis, while being asked to assume responsibilities and roles that few have been trained to handle. This Conference will assist both internal and external counsel to deal with these high stakes, high profile crises that not only lead to litigation but may threaten the reputation and entire franchise of the corporation. This highly practical event will feature experienced professionals in crisis management, senior internal counsel who have had their own 'trials by fire', senior external counsel who have been on the front line of crisis litigation, and media advisers, journalists, judges and academics who have a wealth of experience with issues that arise in crisis situations. Topics will include: • Anticipating and planning for a company's next crisis • Global privilege issues: strategies for lawyer-client communications • Dealing with the public during a crisis • Responding to false information in the 21st century • Legal and ethical perspectives on media communication during litigation For further information, please contact: DD LT RXQTA-13 OP ad 5/2/08 9:43 AM Page 1 International Bar Association 10th Floor, 1 Stephen Street London W1T 1AT, United Kingdom Tel: +44 (0)20 7691 6868 Fax: +44 (0)20 7691 6544 E-mail: confs@int-bar.org Website: www.ibanet.org IBA_LT_Apr28_08.indd 1 4/22/08 10:31:24 AM trial judge imposing a probation order in addition to a jail term. The decision in R. v. Mathieu and three related Quebec cases, finally settles an issue where there had been conflicting decisions in appellate courts across the country. pret parts of s. 719 of the Crimi- nal Code and how pretrial custody should be considered when a judge would otherwise have imposed a penitentiary term. "Pre-sentence custody cannot The court was asked to inter- A conference presented by the IBA Litigation Committee and supported by the IBA North American Regional Forum The Role of the Lawyer Crisis Litigation: Toronto, Canada really be interpreted as a sentence," wrote Justice Morris Fish. "The term of imprisonment is the term imposed by the judge at the time of the sentence," said Fish. Probation orders under s. 731 of the code may be imposed on offenders receiving a jail term "not exceeding" two years. Mathieu means probation or- ders may be imposed by trial judg- es even if the combined pretrial detention and custodial sentence exceeds 24 months. A 2006 decision by the B.C. Court of Appeal in R. v. Goeujon was cited by Fish as authority for the purpose of a probation order. "Probation is not intended to pun- ish the offender as much as to reha- bilitate the offender," said Fish. The use of a probation order is a "useful tool" for a trial judge, he noted. "If it were to be concluded that a probation order is not avail- able in cases where the total of the time spent in pretrial custody and the sentence of imprisonment im- posed by the judge is more than two years, this could have a harm- ful consequence, as the judge might decide to impose a longer term of incarceration. This interpretation, which must be rejected, would have the unfortunate effect of un- justifiably increasing the length of time to be served in prison; in ad- dition, the probation order's effect of facilitating an offender's reinte- gration into society would be un- available to offenders who might benefit from it," wrote Fish. The Supreme Court has previ- ously found that pretrial custody can be treated as part of the term of imprisonment in the context of a minimum sentence (R. v. Wust) or whether an offender is eligible for a conditional sentence (R. v. Fice). "These are exceptions that prove the rule," said Fish, who distin- guished those decisions. The ruling in Mathieu will have a significant practical impact for trial courts across the country, says Vincenzo Rondinelli, a Toronto. defence lawyer. "Judges do not have to second-guess whether they have jurisdiction to make a probation or- der in light of Wust or Fice. Lawyers can advise clients with much more clarity as to the possible sentences he or she will be facing," he says. The ruling is a very conserva- tive approach to statutory inter- pretation, notes Rondinelli, who says it will "widen the net" of pro- bation orders and could lead to inconsistent sentences. For example, two offenders who a court finds should get the equiva- lent of a 30-month sentence will be treated differently depending on whether they have spent time in pretrial custody, says Rondinelli. An offender with four months in pretrial custody (counted as eight months with standard two- for-one "dead time" credit), will now be considered to have received a 22-month sentence and will be subject to a probation order of up to three years. If the other of- fender has been free on bail, he will be sent to the penitentiary to serve the 30-month sentence. He will be subject to parole upon release, but for a shorter period than someone on a probation order. In addition to its findings related to probation orders, the court nar- rowed the opportunity for judges to delay an offender's parole eligi- bility under s. 743.6 of the code. Pretrial custody cannot be in- cluded to find that an offender has received a sentence of more than two years and is subject to the pro- visions in 743.6, said Fish. As well, the section can only be invoked if an individual count meets the threshold. LT Feds tight-lipped With over 20,000 Office Products finding what you want is easy. BY TIM NAUMETZ For Law Times OTTAWA — The Justice De- partment is tight-lipped about an embarrassing internal audit of service contracts that found a widespread absence of compli- ance with government contract- ing regulations and policies. The internal audit of contract- tracts included hiring of outside lawyers for work not falling under the "legal services" umbrella. At press time the department Dye & Durham's Exclusive Juraplus Paper Exclusive U PREFERRED SUPPLIER EPP E yourONE source supplier for dyedurhambasics.ca • 1-888-393-3874 • Fax: 1-800-263-2772 OFFICE & FURNITURE PRODUCTS Office & Furniture Products • Corporate Promotional Products Printing & Graphic Services • Law Office Essentials Corporate Supplies • Search & Registration Services www.lawtimesnews.com 94 20 20 lb. 94 Bright white. Ideal for copiers, fax machines, laser and inkjet printers. High quality multipurpose paper with a 30% post-consumer recycled content. 500 sheets per package. POUND 01001190 01031192 01001490 01000184 8-1/2" x 11" (3-hole punched) 8-1/2" x 14" 11" x 17" C ing procedures at the department's headquarters examined what the audit team called a "statistically valid sample" of 50 contracts and concluded with "95 per cent" con- fidence most of the contracts failed to meet the proper standards. Of those surveyed, the team found no evidence multiple bids were sought in 78 per cent of the cases where bids were required for competitive contracts. In 41 per cent of the sampled cases of com- petitive contracts, those who signed for the contract initiation didn't have required financial authority. In 20 per cent, work had begun prior to a contract being in place. A spokesman for the depart- ment said none of the contracts involved the hiring of private-sec- tor lawyers to provide legal servic- es as Crown agents — either for criminal cases or civil litigation. But Christian Girouard was unable to say whether the con- or professional designation of a contractor does not come into consideration when inputting financial coding at the depart- ment," he tells Law Times. The audit, which was quietly posted on the department's web site last year, specifically excluded contracts with Crown legal agents, whose work for the Justice Depart- ment, and through it for other de- partments, is exempt from the gov- ernment's contracting regulations. Girouard provided excerpts didn't have at hand a breakdown that would reveal if lawyers were included among the contractors and consultants. "The educational background from Treasury Board policies that define legal services as the provision of legal advice, preparation of legal documents and legislation, litiga- tion, and "overseeing all mecha- nisms used to achieve the overall objectives of government." A further section defines the legal services that Justice provides to other departments and agencies as being advice and opinion, the conduct of civil litigation and pros- ecutions, the resolution of disputes, See Department, page 5 D a Y I E 9 n p N & 9 d D C n m R 1 a H a n A M S 8 a W e ' r e y C i o a

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