Law Times

PAGE 4 NEWS June 4, 2012 • Law Times Damage immediate once criminal charge levied Continued from page 1 issues of custody and access more dif- ficult. As a result, according to lawyers, the spouse making the allegation has an edge in the case. With exclusive access, the children themselves could become pawns in the case. Delays in the criminal system com- plicate the situation as the charge can easily loom for a year. By the time it' over, says Maltz, the damage is done. "How do you combat that?" he asks. Domestic violence continues to be s a concern in Canada. Statistics Canada reported last week that about 99,000 Canadians were victims of police-report- ed domestic violence in 2010. It also noted that more children reported witnessing domestic violence in 2009 than in 2004. Clearly, the issue of domestic vio- systems. The pilot project is running in one Toronto location. Gadhia is hope- ful this new court will be able to deal with the inconsistencies that she says are sometimes very apparent in the family and criminal court files. The aim of the integrated domestic violence court is to improve the com- munication and co-ordination between the criminal and family courts, said Jason Gennaro, spokesman for the Ontario Ministry of the Attorney General. "The court provides a single judge to hear criminal and family law cases relat- ing to one family where domestic vio- lence is an issue, port the judge in more fully understand- ing the family and its ongoing needs." In 2009 and 2010, the govern- " he says. "This will sup- lence continues to be a serious societal concern. But complications arise from false allegations. "The sad reality is that legitimate cases of abuse get tainted with the same incredulous brush," says criminal defence lawyer Roots Gadhia. Ontario introduced a new integrated ment introduced legislative reforms to strengthen the family justice system and make judges more aware of violence that may have occurred in the family. Anyone applying for child custody or access must now complete a sworn statement. Lawyer Esther Daniel points out domestic violence court last June to deal with people who had cases before both the family and criminal justice that Form 35.1, an affidavit required for custody or access applications, requires those seeking custody to indicate if the applicant faces any criminal charges. As a result, the family and criminal matters intersect when it comes to disputes over practitioner, Daniel worries the situation could lead to further abuse of the crimi- nal justice system. "It usually comes about when there' custody of the children and the matri- monial home. As both a criminal and family law a matrimonial breakdown and then police are called, s lot of criminal clients that have had proceedings against them . . . and family court proceedings follow. " she says. "I've had a from fiction. Clearly, the issue of abuse between couples is one the courts take very seriously. But it' It's difficult, she adds, to discern fact " lawyers that some people use the process to further their own family law case. "Unless you personally are wit- s also clear to many ness to what the situation was . . . you don't know 100 per cent," says Daniel. "However, you can assess the situation and have a good judgment." At the end of the day, it' of many of those disputes who suffer the greatest impacts, says family lawyer Kristy Maurina. "We are dealing with real lives and the s the subjects interests of children," she says. "It can have a detrimental impact on the children who are already dealing with the pain of sepa- ration and are now faced with a loving and involved parent who is suddenly not allowed to see them anymore. pute, the damage is immediate once someone levies a criminal charge. " For those involved in a marital dis- " system . . . need to use their discretion," said Daniel. "Domestic violence is something All the stakeholders in the justice that needs to be taken seriously. But at the same time, you do have to uphold the integrity of the justice system. The persons in the justice system should be supported when they use their discre- tion not to lay a charge or not to proceed with a matter and should do so free from the pressure that there may be pro- fessional consequences when doing so. Maltz foresees some practical " approaches to the issue. Expediting the criminal matters, for example, is impor- tant, he notes. The family courts, according to Maltz, strides and become have made great over between the two, they should work on the same level, he suggests. "I' s overlap or cross- combine themselves and actually deal with the charges together. " Jogendra says he's 'not a malicious person' Continued from page 1 v. Jogendra, Jogendra wrote a letter to the Justices of the Peace Review Council and former associate chief justice of justices of the peace Donald Ebbs saying he didn't dispute the contents of Field' assertion Jogendra adamantly disputes. He says that wasn't the case, adding a formal plea agree- ment was never reached and he never resigned. "That is absolutely untrue, the charges were withdrawn. There was never any written agreement that I resign. There was simply a proposal by the Crown. They wanted to have me removed from my office by police because I' " says Jogendra. "I retired and issued charges against police while in judicial office. I'd also d refused improper search warrants and by Jogendra, Jogendra entered mandatory retirement in January 2003, five months prior to the criminal charges being dismissed. Jogendra says the sexual assault allegations involved dismissed cases for lack of evidence and struck down im- proper search warrants brought by Crowns." According to a letter by Ebbs provided to Law Times s complaint and offered to resign, an June 2007, he also sought judicial indemnification. According to the letter, Kenneth Campbell, then- his policies and practices of the ministry and confirmed that there is no policy or practice in place authorizing the Ministry of the Attorney General to provide judicial in- demnification in a case such as yours," the early resolution officer stated in the letter to Jogendra. "He explained that your only recourse in this case is to pursue this matter through the court system." So Jogendra says that' right here that I should pursue this matter through the court system," says Jogendra, pointing to the letter. "So I did and now they're coming aſter me and are trying to stop me from doing that. It doesn't make sense. s what he did. "Mr. Campbell says asking a woman to place her hand on the Bible aſter she came to him for help. Jogendra says he placed his hand over hers, an act he says contributed to sexual assault charges being brought against him. He says the alleged assaults also involved him and a woman brushing up against each other as they passed each other in his office. Jogendra was later charged separately with the sexual launched a small claims action against Campbell for denying his reimbursement claim. He then unsuccessfully appealed an ensuing ruling dismissing the action as statute-barred and an abuse of process, according to the ministry' Following the 2007 letter from the ombudsman, Jogendra " in support of its application for judicial supervision. Jogendra also launched a small claims action against om- s affidavit filed budsman employees for "refusing to intervene in respect of the Ministry of the Attorney General' bursement claim," the ministry's affidavit notes. assault of a 16-year-old girl on the TTC subway, accord- ing to the statement of defence filed by the Crown in a Small Claims Court matter brought by Jogendra. Jogendra was found not guilty at trial in the matter in- volving the girl, according to a statement of defence filed in a Small Claims Court matter launched by Jogendra. According to Jogendra, Crown counsel in the matter Then in 2006, Jogendra began to seek reimbursement of his criminal defence costs from the Ministry of the Attor- ney General for the prior criminal proceedings against him along with retroactive adjustments to his remuneration. According to a letter Jogendra received from an early resolution officer with the Ontario ombudsman in produced a photo of him on a TTC platform as evidence in the sexual assault case involving the 16-year-old girl. However, the photo contained a different date from when the alleged assault took place, he adds. "Luckily, the judge was very intelligent and realized the dates didn't add up," says Jogendra. s denial of the reim- against the ministry and Campbell for denying the reim- bursement claim and several judges who later ruled against him in the matter, according to the ministry' fused to issue process against any of the persons whom Jogendra has charged. The courts, the ministry's affidavit alleges, have "re- " s affidavit. Jogendra. "It created significant conflicts of interests which I argued against," he adds. The action against Muir was unsuccessful. The ministry' misconduct complaints against Campbell, lawyers who www.lawtimesnews.com s affidavit notes Jogendra also brought gendra launched a complaint at the Human Rights Tri- bunal of Ontario against the HRTO itself and its vice chairman, David Muir, for dismissing his human rights case against the ministry and brought an application to the Superior Court of Justice to appoint a "disinterested person" to adjudicate the matter. "Mr. Muir was an ex-Crown attorney himself, In addition, according to the ministry's affidavit, Jo- " says In addition, he launched a human rights complaint Campbell "provided further information concerning s case. director of the Crown law office, replied that judicial im- munity didn't apply in Jogendra' opposed him in court, the Crown law office, and several others to the Law Society of Upper Canada. Jogendra says the law society never responded. "Since 2009, Jogendra has initiated over a dozen private criminal prosecutions against members of the judiciary, Ministry of the Attorney General lawyers, and other law- yers who have acted for parties involved in Jogendra' and administrative proceedings," the affidavit claims. The Crown' s civil future litigation by Jogendra was argued on March 22 and 23, 2012. The judge' Jogendra also disputes the ministry's interpretation of Stinson's order on access to the documents and records of s application for judicial supervision over any s decision on the application is on reserve. court proceedings. According to him, "access, if any, was not to" the ministry but to Her Majesty the Queen. "It was submitted by me that criminal informations gendra added in a written response to questions from Law Times. "Justice Stinson did not determine this issue and leſt it to the application judge, who later was Justice Hainey who heard it and he said that if he determines they are out- side s. 140, he would disabuse his mind and exclude them." Within the ministry' were outside the scope of s. 140 of the Courts of Justice Act as it is confined to only proceedings meaning civil, " Jo- sion, it requested that Jogendra not be allowed to "institute or continue any civil proceedings in any court in Ontario, except with leave of a judge of the Superior Court, pursu- ant to s. 140 (3) of the Ontario Courts of Justice Act." The Crown also requested that Jogendra be stopped from s application for judicial supervi- "initiating private criminal prosecutions or swearing infor- mations under the Criminal Code of Canada, except with leave of a judge of the Superior Court of Justice, with requests made with at least 10 days' notice to the attorney general. "The order of Justice Stinson does not prohibit Mr. Jogen- " dra from starting any criminal or civil proceedings in On- tario. The order allowed the Crown to access court records for use in its vexatious litigant application, which was argued on March 22 and 23, 2012. The judge' said ministry spokesman Brendan Crawley. "If the vexatious litigant application is granted, there will be judicial supervi- sion over any future litigation brought by Mr. Jogendra." For now, Jogendra says he'll continue to make sure "the s decision is on reserve," truth is known." "I'm not a malicious person. I just want people to know the truth. Everyone is equal before the law," he adds. "The Ministry of the Attorney General cannot have LT access where the ordinary citizen is not allowed." much less combative over the years while the criminal courts remain adversarial. In situations where there' d like to see the courts somehow LT

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