Law Times

law Times • July 23, 2012 into eff ect on July 1 will play out. I t will be interesting to see how the new Crimi- nal Rules of the Ontario Court of Justice that came noticeable changes are the fact that the new rules are simpler and are designed for both the self-represented accused, called the "defendant," and counsel. At times, they take a folksy fl avour with language that' Among the immediately But their objectives are clear: the litigant is to give proper notice of an application and be prepared to present evidence for it and parties are to be ready to proceed on trial dates. At the same time, they encourage the court to exercise control over the pro- ceedings, especially preliminary hearings. Previously, there were 15 forms, but s distinctly not legalese. now we only have three: Form 1 is called application, Form 2 is response, and Form 3 is consent. Th ere is no form for a back sheet, which may not be necessary. Th ere are seven rules, but rules 6 and 7 simply repeal the old ones enacted back in 1997 and state that on July 1, the new ones come into force. Five rules criminal rules, which makes the new rules sound simple, right? Well, they are sim- replace the previous 32 New Criminal Rules should help cut waste of court time COMMENT A Criminal Mind pler. You need to read through them, but they're only 15 pages long. Because there are so few rules, some rules combine a certain amount of material. Rule 1 states the overarch- ing principle of dealing with proceedings "justly and ef- fi ciently. Rosalind Conway advises self-represented liti- gants that these rules apply to all criminal matters, including drug cases and peace bonds, but not " Th e commentary es. Th e application must be in Form 1 and include a concise statement of the subject, the grounds, and details on the facts. It cautions the self-represented accused to fi ll the form out completely so that the court and other parties will understand what they're seeking and the basis for it. Th e potential requirement for and Rule 2 covers applications and respons- Highway Traffi c Act. to trials under the unless the court orders otherwise. Par- ties are to bring s. 11(b) applications in advance before the assigned trial judge. Th is is a welcome improvement. Th e rule then goes on to explain what sorts of ap- plications are trial applications the court would hear at the outset or during the tri- al. Th ey include similar fact, evidence of a complainant' third-party records applications. Rule 3 deals with service. It requires s prior sexual history, and service and proof of it at least 30 days be- fore the hearing of the application. Parties are to fi le the response at least 15 days be- fore the hearing of the application. Th ey can eff ect service by e-mail but they may have to fi le hard copies as well. Rule 4 relates to case management. have authority to make binding decisions. Th ree days before the focus hearing, par- ties requesting preliminary hearings must serve, together with the statement of is- sues and witnesses, a list of the witnesses they want to hear from, a summary of the expected evidence, an explanation of why in-person testimony is necessary, and an estimate of time to hear from the wit- nesses. Other requirements include a list of witnesses they wish only to discover, a statement on whether committal for trial is in issue and on what basis, and admis- sions. Rule 5 states that there may be practice importance of transcripts, especially for stays of proceedings for unreasonable de- lay under s. 11(b) of the Charter of Rights and Freedoms, arises in Rule 2.1(3). It says that if the determination of the applica- tion is likely to require a transcript, the applicant shall serve and fi le it with the application. Rule 2 states that pretrial applications are to be heard 60 days before the trial Counsel are to meet well before a judicial pretrial. Crowns will generally provide a synopsis three days before the judicial pretrial, and the defence can also provide material. Parties attending the pretrial must have the authority to make binding decisions on disclosure, witnesses, admis- sions, time estimates, and resolutions, if appropriate. Th e trial judge is not to be a mere observer sitting passively by but has the ability to control the proceedings by setting dates for completion of disclosure and the hearing of applications. If you're having a preliminary hearing, you must comply with Rule 4, which cov- ers focus hearings. Again, counsel must directions and sets out the three forms. Th e chief justice or a delegate may issue additional forms. Th is is also the rule that gives the court discretion to excuse com- pliance with the rules, but the commen- tary cautions that there' obligation to adhere to them. And that' s a professional see how the rules work in practice. I think that fi ling and serving applications three months in advance with the transcripts is going to be a challenge, but we should see better-prepared counsel and self-rep- resented accused and much less waste of court time. s it. It should be interesting to LT u Rosalind Conway is a certifi ed spe- cialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. Firms should foster the athlete in every lawyer through mental-health support BY JEAN-MARC MacKENZIE For Law Times that there are many common elements when it comes to practising law and being an athlete. Chief among them is that both involve a strong culture of performance. In fact, performance is everything. But why do some ath- letes and lawyers maintain peak performance over the long haul while others driſt off in despair? Great athletes have mental toughness or resiliency, B efore getting my law degree, I played pro- fessional hockey. But a knee injury encour- aged me to transition from being a "club- house lawyer" to a real one. I have since learned u SPEAKER'S CORNER thinking and pessimism. Th ey know the best response is to focus on the game and not let pessimistic thinking overcome belief in their abilities or shake their confi dence. Th ere is an athlete in every lawyer. Th e law seems to two terms not oſt en used in the legal and business worlds. Good athletes bounce back quickly and don't wallow in depression. Th is is not to say that some athletes don't fall into the depths of depression, but they remain in the mi- nority of that fi eld. However, lawyers as a group have a larger critical mass suff ering from depression. A Johns Hopkins University study of 104 occupational groups found that lawyers were the most likely to suff er from depression at more than three times the average. One feature of depression is pessimistic thinking. So why aren't lawyers resilient or mentally tough? Lawyers are trained to see every conceivable problem that might occur, and in this way, pessimism counts as a positive. Seeing troubles as pervasive and permanent is a compo- nent of what our profession deems as prudent. Lawyers, like athletes, must learn to understand how their thinking patterns may contribute to performance or symptoms of depression. Awareness of thinking patterns must also come with positive coping mechanisms and other behavioural techniques to help confront situations of adversity. Th is is where lessons from athletes can help. Athletes learn resiliency skills over the years as they move up through the ranks. At the same time, great ath- letes know that unplanned things happen in competi- tion. Successful ones may experience disappointment, anger or frustration but aren't overcome with negative attract Type A individuals who are overachievers with a tendency towards perfectionism. Lawyers put in long hours and oſt en have no control over their schedule with little ability to manage and balance life. Cases may take them away from their families with the result that they turn to drugs or alcohol for support. Th ey must also deal with the pressure of clients and there' billing and attracting new business. Th e stakes are high and lawyers see themselves in an adversarial environ- ment. It sounds like sport to me. Law fi rms are no diff erent from other organizations gram is critical but even then, there can be relapse. Th us, early diagnosis and treatment are vital for a successful recovery and return to work. Th e key is to intervene early when a fi rm fi rst critical to successful treatment and preventing problems from becoming chronic. So what can we do? • Promote a culture of resiliency where performance and mental health are seen as positively correlated. notices something is out of whack. In managing workplace mental health, the fi rst three months are • Ensure everyone is having an annual medical checkup. • Encourage lawyers to recharge themselves physically and mentally through things such as gym member- ships, exercise classes, sports, and social functions. s a constant focus on PAGE 7 • Your employee assistance program should allow people to seek help voluntarily with the help of a man- ager or counsellor in order to identify potential areas of trouble. Th is will also include support and, when needed, help for the person' in that mental health is an issue that they should be ad- dressing. It doesn't matter if you work in a big or small fi rm as the need to develop ways to promote resiliency is vital. Managing partners and those responsible for law- yers who report to them should take note if they want to ensure high productivity. Th ey are the fi rm' general managers. Any law fi rm, organization or department with law- s coaches and yers needs a support system. Consider what happens with a physical injury. Let' a leg and needs surgery. Let's also assume the person's per- s assume that someone breaks formance at work was consistent until the accident. Th e person is disabled for a period of time but then returns to work and gets back to the earlier level of performance. Th ings are not so straightforward with a mental- health injury. Performance may decline over an extend- ed period of time and if intervention doesn't take place early, that period can be longer still. Finally, the person reaches the point of no longer being able to work. It' when the person comes back that a return-to-work pro- s www.lawtimesnews.com • Have a mental-health management model that includes pre-diagnosis by recognizing the warn- ing signs and intervention; disability assistance by understanding the person' s family, too. • Conduct regular employee-engagement surveys to see what concerns people have. • Provide coaching and resiliency training for lawyers. In the old days, we called the problem burnout but to- LT touch, managing the absence, and supporting the team; and return to work by preparing the team, reviewing functional assessments and accommoda- tions, and managing communications. s experience, staying in day we know more. Still, a lawyer who must bill is under enormous pressure and oſt en plays hurt. Th e answer is to provide a culture of resiliency. In the long run, it pays off as we foster the athlete in every lawyer. uJean-Marc MacKenzie is a lawyer and senior vice president of organizational health solutions with Morneau Shepell Ltd., a provider of employee assis- tance and workplace wellness programs.

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