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Page 6 December 5, 2016 • Law Times www.lawtimesnews.com COMMENT ©2016 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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The most popular professors are often those who are nicknamed 'pracademics' — those who can navigate the space between theory and practice. One has to admire a recent panel at the University of To- ronto dedicated to examining police enforcement around sexual ac- tivities in Etobicoke's Marie Curtis Park. As reported in Law Times, University of Ottawa Faculty of Law assistant professor Kyle Kirkup has questioned the constitutionality of the Toronto Police Service's use of bylaw infractions in Project Marie. Kirkup told Law Times the argument could be made that the police's use of bylaws to enforce what is in essence a criminal prohibition is unconstitutional. As a re- sult of police enforcement, police issued 89 charges (mostly to men), though only one of the charges was criminal. The others were all mu- nicipal bylaw and Provincial Offences Act infractions. Ridiculous. Leaving out the public relations nightmare the project has spawned, there are some solid legal critiques of the ill-conceived po- lice crackdown. These discussions of public events are crucial — and legal scholars must use and share their knowledge of the law to defang such silly behaviour by police. More, please. LT Charities treated like mushrooms W ith all the important things such as a carbon cap-and- trade scheme and the scrapped provincial pen- sion plan to juggle, it's easy to see why the Ontario government might say it has been distracted as of late. Still, there's a big differ- ence between distraction and dereliction. It's been six years since it passed leg- islation to update the Ontario Not-for- Profit Corporations Act and it still hasn't been enacted. Six years. Surely, six years is enough time to get the processes outlined in the legislation in place and move forward? Apparently not. We're still waiting and it isn't going to happen any time soon since the gov- ernment also promised a two-year no- tice before enactment and an additional three-year phase-in period to give chari- ties and not-for-profits time to adjust and get compliant. So the earliest this is going to happen is, maybe, some time in late 2018 or early 2019, assuming there's some traction over the next few months with it taking effect some time in 2021 or later. Even by civil service standards, that's painfully slow. "They said originally it would be en- acted by June 2013 to give the not-for- profits and the charities time to prepare their paperwork and to ensure compli- ance," says Taras Kulish, senior associate with Steinberg Title Hope & Israel LLP. "This delay is very frustrating, both for the charities and not-for-prof- its and the counsel who advise them. And there's no reason given," he says. Ironically, federal legisla- tion was introduced around the same time and that law has long since been updated and enacted without issue. Officially, the ONCA is still in the process of being updated. The government website says only, "We are working to bring ONCA into force as ear- ly as possible, but it cannot come into force until: The Legislative Assembly passes a number of technical amendments to the legislation and related acts and technology is upgraded to support these changes and improve service delivery." The changes aren't minor. They're designed to simplify the incorporation process, clarify governance rules and in- crease accountability, define fundraising better, allow the use of a "review engage- ment" in place of an audit and give mem- bers more rights to access records and challenge directors' decisions. There are some exceptions such as insurance corporations under Part V of the Corporations Act, corporations without share capital that fall under the Co-operative Corporations Act and when a statute clearly says otherwise. However, companies with social pur- poses, such as share-capital golf, tennis or country clubs, must switch over five years after the Act comes into force. They must then operate as a non-share-capital cor- poration under ONCA, a co- operative corporation under the Co-operative Corpora- tions Act and a share-capital corporation under the On- tario Business Corporations Act. With some exceptions, ONCA will also apply to not- for-profit corporations incorporated un- der special or private act. "We've been advising clients not to incorporate under the old Ontario Act because they'll only incur more expenses transitioning to the new one, but there is no new one officially as of yet so clients are really being left in no-man's land here," Kulish says. "For those looking to update their by- laws or objects, for example, they can't go forward under the new legislation. Any changes under the old legislation would still need to confirm to the new legisla- tion once enacted." The looming time lag, however, is unconscionable. How can counsel advise clients prop- erly as to a course of action if the biggest variable, the timeline, is five or more years out? Service Ontario is still accept- ing filings under the old regime, but it only delays the inevitable. As Kulish points out, "They've es- sentially handcuffed the entire charity sector, especially those who are 20, 30 or even 40 years old and want to update and modernize their papers." So what is the holdup? Certainly, there is often a dom- ino effect when legislation is updated, re- quiring several other pieces of legislation to also be updated. None of this is new, however, and there are dozens of civil servants and lawyers at Queen's Park who are capable of combing through the wording of any legislative change and highlighting anything that might impact another statute. Certainly, they managed to get the cap-and-trade legislation rocking along, as well as the Omnibus Bill last year, which cleared the way for Hydro One to be parcelled off and sold, protecting the new buyers from liabilities and shielding any future actions from public scrutiny. The latter affected a myriad of statutes. Clearly, it's a case of desire and will. If a government truly desires to do something, it can and it does. Maybe it's time to dust it off and get it back on track? LT uIan Harvey has been a journalist for more than 40 years writing about a di- verse range of issues including legal and political affairs. His email address is ian- harvey@rogers.com. Queen's Park Ian Harvey Dear Editor, It is difficult to think of Marie Henein as someone in need of an advocate. But as her fellow advocates, we have a duty to speak in defence not only of her — because she would likely tell me she's doing just fine, thank you — but the administration of justice in general. I am referring to the recent news cycle of criticism of Ms. Henein — who successfully defended former CBC radio host Jian Ghomeshi — for agreeing to speak at Bishop's University this coming February, with live streaming to St. Francis Xavier, Acadia and Mount Allison universities. Our justice system depends upon strong advocacy by lawyers fulfilling their ethical duties to their client, the court and the public. The Rules of Professional Conduct, which every Ontario lawyer must uphold, require a lawyer to represent the client resolutely and honourably within the limits of the law. The lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer believes will assist the client's case. The lawyer's function as advocate is openly and necessarily partisan. When defending an accused person, a lawyer's duty is to protect the client as far as possible from being con - victed, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer's private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences, including so-called technicalities, not known to be false or fraudulent. In defending Mr. Ghomeshi, Marie Henein did precisely what she and all defence lawyers are ethically bound to do. The defence of unpopular clients and causes is part of the job. It is grossly unfair to condemn her for fulfill- ing her professional obligation. Hearing from one of the leading defence counsel of our generation contributes to the continued strength of our bar and legal system. Yours very truly, Bradley E. Berg President of The Advocates' Society u Letter to the editor

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