Law Times

September 4, 2017

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Page 2 September 4, 2017 • Law timeS NEWS yond running an efficient court. There are practical issues that can be forgotten by someone who has never appeared in a bail court in the position of counsel, she says. "There are real world con- cerns that can get lost in the bail process that as a practitioner you're slightly more sensitive to because you've seen it in the trenches," Ross says. She says the rate of detention is far too high and stems from the law being misapplied in such proceedings. Brian Greenspan, a criminal defence lawyer with Greenspan Humphrey Weinstein, says that while he does not have a prob- lem with the JP appointments, he thinks that those conducting bail hearings should have a law degree. He says that the decision that is made by an adjudicator in a bail hearing is the most critical decision in the justice system. "I think that people who make that critical decision on release ought to be legally trained people," he says. Lawyer James Morton, who used to serve as counsel for the Association of Justices of the Peace of Ontario, says it does not hurt for JPs to have law de- grees but that it is by no means necessary, even for bail pro- ceedings. He says having a law degree is not necessary as the JP bench is designed as a lay bench. "The legal issues in bail are not that complicated. It's the factual issues [and] making the decision of whether or not someone is going to be likely to offend while they're out on bail [and] how does the community see the release of this individu- al," Morton says. "And those are things which frankly having a law degree doesn't make much difference one way or another." Morton says general life ex- perience is probably more help- ful for JPs and that sometimes lawyers' experiences are rather narrow. He adds that there are some complex legal issues that come up and a law degree is not a hin- drance, but it is not a necessity. Ross, however, says common sense doesn't always carry the day in the criminal justice sys- tem. "You have people coming before you who are accused of what are sometimes very hei- nous offences," she says. "And the gut reaction [or] the common sense reaction could be of course it's too dangerous to let these people back out into the community, but that's not the legal standard." In 2012, then-Liberal MPP David Orazietti introduced a private member's bill that would have created two tiers or classes for justices of the peace. It would have required law degrees for the tier that would preside over bail hearings but not for those who were engaged in many of the other JP func- tions. While the bill — called the Justices of the Peace Modern- ization Act — had support of the legal community, it was never passed. Orazietti, who became a cabinet minister in Ontario Premier Kathleen Wynne's gov- ernment before he recently left politics, declined to comment on why he thought the bill did not pass. He says he would have rein- troduced the bill if he had not entered cabinet, but ministers cannot introduce private mem- ber's bills. "I believe there is broad sup- port in the sector for it and I think Ontarians expect we do all that we can to raise the integ- rity of the court system," he says. "The question is, 'Does it fit into the premier's agenda?' That's re- ally [the] question. The legisla- tion that gets on the order paper and the priority of that legisla- tion is a decision that's made by the premier's office." He adds that while govern- ment legislation has priority over other bills, private mem- ber's bills can pass if there is enough of a sense of public ur- gency. Orazietti says he believes such legislation is still needed to raise the standards of candi- dates being appointed to make what can be important life-al- tering decisions. Ontario Attorney General Yasir Naqvi declined to be in- terviewed on the topic and his office did not provide comment before deadline. LT Continued from page 1 Law degree helpful in navigating bail court have term limits. So they are the ones who are accountable." He says the same applies to appointed benchers, who are more accountable than life benchers, as they have limited terms and are selected by the at- torney general of Ontario every four years. Schabas says that when he ran for treasurer, he heard com- plaints from many benchers that the committees were too big and not as effective as they should be. He says it was not easy to re- duce the size of the committees with a board the size of Convoca- tion's, but he has managed to keep them to 15 or fewer members. "Good governance involves having committees that are smaller and nimble and can be more efficient," he says. Life benchers were grand- fathered a few years ago when Convocation implemented a number of governance reforms. These included limiting bench- ers to just three terms. Those that were life benchers before the change continued to be life benchers, but there were no new life benchers created after that for benchers who had served a particular number of terms. Former treasurers still, how- ever, become ex-officio benchers after their term is complete. Bencher Michael Lerner says life benchers make a valuable contribution to the conversa- tion, particularly in committees. "They may have something to contribute to our current dis- cussions. They may have been involved in decisions that we are currently reconsidering or re- viewing," he says. "And that would certainly be helpful to our current delibera- tions to have the benefit of their experience and the nature of the discussion and the debate that occurred at the time that the issue was first before Convoca- tion." Lerner says there should be at least one life bencher appointed to each committee. He says that when there are no longer any life benchers, Convocation will lose the prac- tical experience and knowledge they can bring to its discussions. "Convocation will still be able to do its work, but it will have lost one resource that is currently available to it today," he says. Lerner also expressed some concern over what he said was an uneven standing between benchers from Toronto and out- side in positions of responsibil- ity on the committees. In Convocation, 20 benchers are elected from Toronto and 20 are elected from outside of the city. While in some committees, there is not a chairperson or vice chairperson from outside of To- ronto, there are committees that do not have Toronto benchers filling such positions. Lerner says there is still an uneven balance tipped in the fa- vour of those in Toronto. "I thought that it was ap- propriate if there was a Toronto chair that an outside Toronto [bencher] would be the vice chair and vice versa just to maintain the equality that exists in the constitution of Convoca- tion with the number of elected benchers," he says. Schabas, however, says that where the benchers come from was not a factor in his decision- making and that he has simply tried to choose the best person for each position. "There's been no strategy or anything like that to favour in Toronto over out of Toronto," he says. Going forward, the law soci- ety's governance task force will be looking into a whole range of governance issues that in- clude the structure of commit- tees, their relationship to the board and even the size of the board. LT Few life benchers on new committees Continued from page 1 © 2017 Thomson Reuters Canada Limited 00246UU-89009-NP NEW Enhanced Texts and Annotations Library for Authored Commentary The enhanced Texts and Annotations Library on WestlawNext Canada allows you to intuitively browse and search texts and annotations, as well as the Thomson Reuters Canada collection of eLooseleafs on ProView. All this content is integrated and displayed on one page. You can narrow your search using multiple filters to search by eLooseleaf titles only, texts and annotations on WestlawNext Canada only, or both. The enhanced page also allows you to access your favourite publications from a Favourite Publications carousel at the top of the page. 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