Law Times

Law Times • apriL 3, 2017 Page 5 www.lawtimesnews.com NEWS Government has identified priority of more diverse bench Racialized lawyers encouraged to apply to judgeships BY ALEX ROBINSON Law Times I f Ontario wants to have a ju- diciary that ref lects the di- versity of its population, it is imperative that racialized lawyers apply to judgeships, and before they do, that they prepare themselves, judges said at a re- cent panel discussion. Getting more racialized li- censees on the bench was among the topics discussed at the panel that brought together judges to talk about diversity and advo- cacy. "The public needs to know that this bench, this justice sys- tem, ref lects me. "By doing that, it gives the entire system credibility," On- tario Superior Court Justice Kofi Barnes said at the panel, orga- nized by the Canadian Associa- tion of Black Lawyers, the South Asian Bar Association and the Federation of Asian Canadian Lawyers. "The reason why we are able to maintain peace [and] har- mony in our society is people respect our institutions. So if you continue to have processes in place that do not make our bench representative of our country, then, eventually, the very foundation of one of the things that keeps us together is in jeopardy." Judges shared their own ex- periences of how they got ap- pointed to the bench. As there are often many qual- ified candidates seeking these coveted appointments, luck is often a big part of it, but getting prepared and talking to judges goes a long way, Barnes said. Barnes said when he was looking to become a judge, he spoke to as many judges as he could to familiarize himself with how judges are selected. This also made it so that when the time came for him to apply, people knew who he was. Justice Mavin Wong of the Ontario Court of Justice said she was one of a handful of Asian members of the Criminal bar when she first entered the pro- fession but that the bar is now more diverse. What can be a big obstacle is just the sheer quality and num- ber of candidates applying to judgeships, she said. "The other problem is the candidates are so damn good. So everybody is competing for a fairly limited number of spots," Wong said. Reputation is particularly important, and lawyers need to look beyond being competent and good at what they do, judges said. "Don't get stuck on how com- petent you are. . . . We have tons of people who are good," Barnes said. Both federal and provincial governments have said making the bench more diverse is a pri- ority. The federal government created new Judicial Advisory Committees in January with this in mind. In his remarks before the panel, Chief Justice George Strathy said the legal profession needs to keep a "report card" of how the government is doing in keeping its promise to appoint a complement of judges that re- f lects the diversity of Ontario's population. "I do believe it will happen and it is happening," he said of bringing more diversity to the bench. Barnes says he thinks there is less room for improvement than there used to be on the issue, but there is still a lot of work that needs to be done to make sure to continue to ensure the judiciary ref lects Canada. "We should continue to en- sure that there is transparency in the process and we also should continue to ensure that all law- yers of all stripes are aware of how to prepare themselves to ensure that they are viable can- didates for the bench," he told Law Times after the panel dis- cussion. The judges agreed that more needs to be done, but they said some of the responsibility lies with qualified racialized lawyers to apply and to prepare them- selves. The judges said that luck is always a big factor in being ap- pointed but being prepared al- ways helps. Strathy quoted Louis Pasteur, saying, "Chance favours the prepared mind." In his remarks, Strathy said he had not intended at the be- ginning of his career to become a judge. "Frankly, I didn't plan it. It happened. "I was in the right place at the right time," Strathy said. Wong said it is not enough to just be involved in doing work in the legal community and that those who aspire to judgeships should look to be deeply in- volved with particular organiza- tions in leadership roles. Barnes said it is never too late to start preparing to apply for a judgeship but that lawyers who think they might be interested in sitting on the bench should start as soon as possible. LT Ontario Superior Court Justice Kofi Barnes said young lawyers hoping to become judges need to talk to as many judges as possible and educate themselves on the process. U ndoubtedly, there are rst-rate health practitioners and facilities available in Ontario. But access to exceptional doctors and hospitals does not guarantee that you'll receive exceptional health care. Harmful medical errors, or "ad- verse events," occur in an estimated 7.5 per cent of hospital admissions across the country. When health care goes wrong, what literally adds in- sult to injury is the secrecy surrounding these mistakes. Consider the numerous instances where medical errors leading to disability or even fatality were not adequate- ly disclosed. "Oral cautions" given by the College of Physicians and Surgeons of Ontario (CPSO) to doctors, warning them to deal with serious issues such as errors in prescribing medication, did not appear on the Public Register until 2015. Hepatitis C outbreaks at three To- ronto colonoscopy clinics between 2011 and 2013 were initially kept out of the public eye. As well, the Quality of Care Information Protection Act (QCIPA), which was meant to encourage medical pro- fessionals to share information about critical incidents and health care quality improvement, has been used by some hospitals to bury medical errors. Secrecy surrounding medical errors has been per- vasive and has on occasion resulted in concealment of alleged negligent misconduct. The Ontario Superior Court of Justice recognized that cover-ups occur when Justice Lederman applied the doctrine of fraudulent misrepresentation to toll the limitation period in Giroux Estate v. Trillium Health Centre [2004] O.J. No. 557, afrmed by the Court of Appeal. Justice Leder- man commented at paragraph 40 that "The course of Dr. Harvey's conduct, beginning with lies, and leading ultimately to the falsication of evidence, was done for the purpose of hiding his alleged negligence and also for the purpose of creating doubt in the plaintiffs' minds about the wisdom of bringing a claim." Resistance to the secrecy surrounding medical er- rors has recently emerged, notably within those insti- tutions that themselves rely on "privacy." The Ontario Hospital Association has stated it wants hospitals to know about all complaints against doctors and nurses, Ontario Health Minister Eric Hoskins pushed for better disclosure regarding public health inspections and outbreaks, and the backlash to the QCIPA's effects was palpable. Steps have been taken in some areas to reduce the secrecy. The CPSO launched a transparency project that culminated in the broadening of the scope of publicly available information on doctors, including the addition of oral cautions to the Public Register. There was a review of the QCIPA that led to propos- als for change that were debated in the legislature on March 3, 2016. What remains to be seen is if these piecemeal pol- icy shifts will lead to cultural ones. Regulatory reform will only go so far. That was the problem with the QCIPA in the rst place; the explicit intention was to enable discussion that would improve care and avoid repetition of mistakes, not leave families wondering why their child died. We may be nominally travelling towards transparency, but as we well know, imple- mentation and interpretation are everything. Are we moving towards a brave new world of disclosure, or will we learn, yet again, that old habits die hard? For full references to this article, please visit our website at www.bogoroch.com. Secrecy Surrounds Medical Errors in Ontario Sponsored by By Bogoroch & Associates LLP Personal Injury and Medical Malpractice Lawyers

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