Law Times

Page 4 September 26, 2016 • Law timeS www.lawtimesnews.com NEWS data of their employees so that they can compare themselves with aggregate demographic data compiled in annual reports. The law society will also compile information gathered into an in- clusion index every four years. The report also recommends reviewing and amending the Rules of Professional Conduct to "reinforce professional obli- gations of all licensees to recog- nize, acknowledge and promote principles of equality, diversity and inclusion." From 2001 to 2014, the num- ber of racialized lawyers in the province increased to 18 per cent from 9 per cent. The 2011 National House- hold Survey found that 26 per cent of Ontario's population identified as racialized. While the proportion of racialized lawyers in the prov- ince has increased over the years, the law society working group was set up in 2012 to tackle the fact that many racialized licen- sees still felt alienated from the dominant culture in their pro- fession. A consultation paper released in 2014 identified that there were significant barriers that racial- ized licensees face. The issues identified includ- ed concerns over equality in hir- ing and unconscious bias in the legal workplace. "The independent research that we did, as well as our con- sideration as a working group, basically confirmed the anec- dotal evidence that we all knew about," says Anand. Before the final report came out, diversity-seeking groups were dismayed by the length of the review, which kicked off in 2012 and included a consul- tation process that heard from more than 1,000 lawyers, para- legals and students. "Systemic racism is a matter of common knowledge in our society today. We read about it and see it in the news in par- ticular instances every day," says Anand. "We shouldn't have been sur- prised, because there is no rea- son to believe that lawyers and paralegals have experienced sys- temic racism more or less than anyone else," Anand added. Ranjan Agarwal, president of the South Asian Bar Association of Toronto, says he was relieved to see the report sent to Convo- cation. "I had the privilege of par- ticipating in the early consulta- tion almost four years ago and to finally see the report be sent to Convocation I was relieved at being able to see the end of a long journey," says Agarwal. Now that the final report has been released, some stakeholders say it remains to be seen if the rec- ommendations will bring about the changes it hopes to see, if they are approved by Convocation. "Overall, the hope is that these measures will create a cul- ture shift, as legal workplaces are required to put their minds to issues of equality, diversity and inclusion," says Lai-King Hum, president of the Federation of Asian Canadian Lawyers and chairwoman of the Roundtable of Diversity Associations. Convocation will vote on the committee's recommendations in December. LT Continued from page 1 Systemic racism matter of common knowledge: lawyer made in the body of the court- room, during a recess in the cross-examination of a defence witness. The Crown attorney called a relative of the witness in India (with the defendant present in the courtroom, but not the wit- ness) and asked questions seek- ing to impeach the credibility of the witness. When the trial resumed in front of the jury, D'Iorio suggested to the witness that she was told about the call he had made, which she denied. The phone call was "entire- ly improper" and introduced hearsay "through the mouth of Crown counsel," wrote Strathy. As part of a fresh evidence application in the appeal, the defence was permitted to cross- examine D'Iorio. "His evidence that he made the call in court for purposes of disclosure and transparency is unconvincing when he did not even inform defence counsel in advance that he would be mak- ing the call," stated the Court of Appeal. James Lockyer, who repre- sented Dhaliwal on his appeal (but not at trial), declined to comment specifically on the conduct of D'Iorio, but he says improper cross-examinations are not unusual. "In my experience, in ap- peals that I argue, an issue that I often feel obliged to raise is the conduct of the Crown. The first thing I do [when going over trial transcripts] is to review any cross-examination of the de- fendant and the closing address," says Lockyer, a partner at Lock- yer Campbell Posner. The Ministry of the Attorney General argued in the Dhali- wal appeal that D'Iorio's actions were not improper, which is of concern to Lacy. "He is being trained by these guys. I think it is significant that the chief justice wrote the judg- ment. The Court of Appeal is attempting to send a message," says Lacy. Improper cross-examination of a defendant facing robbery charges in a jury trial before Su- perior Court Justice Joseph Fra- gomeni was cited as the reason the Court of Appeal ordered a new trial in 2013 for Shameel Singh. Cross-examination by D'Iorio of the defendant in a "sustained fashion" about the motives of the co-accused to fabricate their testimony ren- dered the trial unfair, the appeal court stated. When he was cross-examined in early 2014, as part of the fresh evidence application in the Dhaliwal appeal, D'Iorio agreed that he asked improper questions of Singh. "I appreciate now that it is wrong is what I am trying to say, and if I appreciated it then, I would not have asked the ques- tions," he testified. About 16 months after that testimony, the conduct of D'Iorio was called into question by the defence in a murder trial he was prosecuting with Brian McGuire, a senior Crown attor- ney in Brampton. Superior Court Justice John Sproat issued a "corrective in- struction" to the jury in R v. Cargioli after D'Iorio's opening address to the jury, because as- pects of it "exceeded the scope" of what was appropriate. D'Iorio was also named as a defendant in a civil suit filed in 2009, seeking $3 million in damages for the alleged disclo- sure of the identity of a confi- dential informant in a criminal proceeding. Sean Dewart, who repre- sented the plaintiff, says he can- not provide any specific com- ment about the action. "All I can say is the matter was concluded a number of years ago," explains the partner at Dewart Gleason LLP in Toronto. D'Iorio forwarded a request for comment by Law Times to David Maylor, senior Crown Attorney for Peel Region. As a result of Crown policy and the sub judice rule, Maylor said in an e-mail that Crown attorneys are "generally not in a position to provide further comment about criminal cases and state- ments of claim." The Ministry of the Attorney General declined to comment on any work-related action it might have taken as a result of the court findings about D'Iorio, because it says all mat- ters relating to employees are confidential. In a general sense, though, "the Ministry takes judicial rul- ings very seriously and is care- ful to monitor the quality of its prosecutions and conduct of Crown counsel," says spokes- man Brendan Crawley. "Concerns relating to the conduct of any particular assistant Crown attorney are addressed by the local Crown attorney," he adds. Crawley said that, in a gen- eral sense, remedial action may be taken if warranted and can include mentoring and educa- tional programs. LT Continued from page 1 Judge says new trial needed AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 New Edition Brand Management in Canadian Law, 4th Edition John S. 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