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October 24, 2016

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Crown's cross-examination leads to retrial BY ALEX ROBINSON Law Times T he Court of Appeal has granted a retrial to a man accused of committing sexual interference against his stepdaughter because of an "ill-advised" cross-examination by a London, Ont. Crown attorney. In R. v. Joyes, the court deter- mined that the trial was unfair as the Crown inappropriately asked the defendant, Robert Joyes, about his six-month absence from the province after he was arrested and charged. The Crown and defence coun- sel had already agreed that Joyes' post-arrest conduct would be off limits at trial unless the defendant raised the issues himself. "In the end, the jury heard evi- dence that it should not have heard that may well have had a negative impact on the appellant's cred- ibility," said the decision rendered by Court of Appeal Justices David Doherty, William Hourigan and Lois Roberts. "In a case turning entirely on credibility assessment, the appel- lant has demonstrated the requi- site prejudice resulting in a miscar- riage of justice." The decision comes just a few months after the Court of Appeal declared a new trial in R. v. Dhali- wal, after a Brampton, Ont.-based Crown's conduct at trial was "suffi- ciently predjudicial." Lawyers say the Joyes decision raises similar questions about Crown conduct. "Crown counsel have an obliga- tion not simply to secure convic- tions but to ensure that justice is done, and so they are rightly held to a high standard of conduct," said Cate Martell, the lawyer who represented Joyes on the appeal. "I think this decision and the Court of Appeal's recent decision in Dhaliwal remind us that Crown counsel are going to be held ac- countable by the courts when they make errors in judgment that have the effect of depriving the accused of a fair trial." LOCKDOWN CRISIS Judge says labour issues hurting inmates P7 FOCUS ON Trusts & Estates Law P8 See Risk, page 4 PM #40762529 $5.00 • Vol. 27, No.33 October 24, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Follow LAW TIMES on BY ALEX ROBINSON Law Times T he federal government has introduced a bill in Parliament in an attempt to modernize the Cor- porate Business Corporations Act, but some corporate lawyers have lingering concerns that the pro- posed amendments could cause confusion for some companies. While the regulations have not been released, some lawyers say they worry that any differences between the proposed legislation and the requirements of the To- ronto Stock Exchange could cause confusion for companies that are both listed under the index and come under the purview of the CBCA, says Jennifer Longhurst, a partner with Davies Ward Phil- lips & Vineberg LLP. "To the extent that the CBCA is going to make amendments that in many ways already address things that the [Toronto Stock Ex- change] rules address, but with differences, it could cause confu- sion and some conf licting com- pliance," Longhurst says. "It begs the question if it's ap- propriate for different regulators to be prescribing rules or regu- lations that deal with the exact same matters," she adds. If passed, Bill C-25 would re- quire board of directors be elect- ed by a majority voting system when they're facing uncontest- ed elections. The amendments would allow shareholders to vote against a director, whereas cur- rently, shareholders vote for a dir- ector or withhold their vote. Law firms cannot incorporate under the CBCA, but lawyers say it's important for corporate law- yers to be aware of such develop- ments to be able to advise clients on how to update their majority voting policies. "For some corporate lawyers what it might mean is investigat- ing the corporate statutes that their clients are currently existing under," Longhurst says. Under TSX rules that were implemented in 2014, listed companies are required to have a majority voting policy in which directors must receive more "for" votes than "withhold" votes in uncontested elections. If a direc- tor fails to get a majority of "for" votes, they must resign, but the board has the last say as to wheth- er that director's resignation is accepted. The board can choose to reject a resignation if there are "exceptional circumstances." A 2015 report by Davies Ward Phillips & Vineberg LLP found that only one in 10 directors who did not receive majority support in 2015 had their resignations ac- cepted by their board. The proposed amendments would remove that role for boards and would require the unsupport- ed director to step down. "The main difference there with regard to this majority vot- ing requirement would be that, as it would be a legal requirement, directors and boards wouldn't have the ability to sort of reject a resignation," says Laura Levine, a lawyer with Stikeman Elliott LLP. Currently, a director who does not receive a majority of "for" votes is still considered elected, unless the board accepts their re- signation. The proposed amendment would mean that any director See Diversity, page 4 Andrew MacDougall says proposed changes to the Corporate Business Corporations Act could cause 'failed elections' in which shareholders fail to elect enough directors to act. Corporate lawyers should monitor developments to advise clients Confusion for companies result of bill? Cate Martell says 'crown counsel have an obli- gation not simply to secure convictions but to ensure that justice is done.' REPRESENT EMPLOYEES? Lawyer can act for her receptionist, judge rules P5 TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM When you're working, we're working. End-To-End Legal Marketing Solutions. Visit Untitled-4 1 2016-10-18 4:22 PM

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