Law Times

Law Times • apriL 23, 2018 Page 5 www.lawtimesnews.com Lawyer charged for offences can practise for now BY AIDAN MACNAB For Law Times A Law Society of Ontario tribunal has rejected an interlocutory motion to suspend the licence of a lawyer accused of child por- nography offences. The Law Society Tribunal Hearing Division released its de- cision April 9 regarding Jamuar Sharat Vijaya, a criminal defence lawyer who practises in North York. Vijaya has been charged with possessing and accessing child pornography and is set to begin trial in provincial court in January 2019, says his law- yer, Scott Hutchison of Henein Hutchison LLP in Toronto. The failed motion is part of an increase in interlocutory sus- pension applications brought by the law society against lawyers facing disciplinary hearings, says criminal defence lawyer William Trudell. "The increased use of inter- locutory suspensions is some- thing of great concern because it effectively shuts a lawyer down and it's very hard to recuperate from that because it's all public," Trudell says. "I would hope that the law so- ciety would try to work out these kinds of restrictions without the necessity of a public hearing," he says. "Protecting the public is the law society's first concern and interim measures, such as inter- locutory suspensions or restric- tions, are sought to address seri- ous risk that becomes apparent before an investigation or hear- ing is complete," LSO commu- nications adviser Susan Tonkin said via email. Tonkin said the law society "conducts ongoing risk assess- ments" to determine if restric- tions such as these are necessary. According to s. 49.27 of the Law Society Act, the tribunal's job was to determine whether it is reasonable to believe a "signifi- cant risk of harm to the public interest in the administration of justice" exists if Vijaya is not suspended and, if so, that the suspension is "likely to reduce that risk." Suzanne Jarvie acted for the law society and argued that such a risk to the public did exist, but the tribunal rejected that argument. Given that the charges were not related to Vijaya's conduct as a lawyer, Hutchison says, there is no reason the public or profes- sion is harmed by him continu- ing to practise. "The way the statute reads is an interlocutory suspension is only to be made where there is a proper basis for it. The allega- tions against Mr. Vijaya have nothing to do with the practice of law," he says. "There is no sug- gestion that any member of the public, even if the allegations were true, has ever been exposed to any danger as a result of Mr. Vijaya's being a lawyer or prac- tising law." In the decision, the tribunal cited the 2016 case Law Society of Upper Canada v. Schulz, in which a lawyer who was found guilty of possessing child por- nography and sentenced to prison did not have his licence suspended. In Schulz, the tribunal found there were no reasonable grounds for believing that a sig- nificant risk of harm to members of the public existed. The lawyer had a family law practice and was restricted from being alone with anyone under 18 years old other than his children as well as representing anyone under 18. Similarly, Vijaya's licence was put under the interlocutory re- strictions that he not be in the presence of an unaccompanied minor and not to place personal data on an electronic device he uses for work. The charges against Vijaya stem from a complaint made by his wife in 2013. The police re- moved four computers and ex- ternal hard drives from Vijaya's home. Due to the fact that Vijaya had work-related data on the computers, solicitor-client privi- lege was asserted, a search war- rant was granted and a referee and forensic examiner were ap- pointed, according to the tribu- nal's decision. In October 2017, Vijaya was arrested and charged. Hutchison says that in bring- ing this motion when the prec- edent was that someone con- victed of the charges his client is accused of would not be sus- pended, the law society is trying to change the test for an inter- locutory suspension. "While the society didn't re- ally say it, it is fairly clear that what they were trying to do in this case was change the test for an interlocutory suspension," he says. According to the Crown, there were 52 files that consti- tuted child pornography. One file name referred to "a child aged 5," the tribunal wrote in the decision. Vijaya was interviewed by law society investigator Nina Iwanowich in November 2017 and at that time Vijaya had not yet received disclosure from the Crown and so could not give a detailed, accurate account of the charges against him, according to the tribunal's decision. Jessyca Greenwood, a partner at Greenwood Lam LLP, says that Vijaya is just getting what any other accused would be en- titled to — the ability to continue his life until his day in court. "It's kind of ironic that you have a defence lawyer who has to fight for his right to be presumed innocent," she says. LT NEWS A Law Society of Ontario tribunal has ruled that a lawyer charged with offences related to child pornography should not be subject to an interlocutory suspension. JUDICIAL VACANCY ONTARIO COURT OF JUSTICE THUNDER BAY The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in Thunder Bay. This appointment involves presiding over criminal and family law matters (approximately 50% criminal and 50% family) and also involves travel within the regional boundaries as assigned by the Regional Senior Justice and/or the Chief Justice. The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: www.ontariocourts.ca/ocj/jaac/ All applications, either sent by courier, mail or hand delivery, must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, May 11, 2018. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. The Judiciary of the Ontario Court of Justice should reasonably reflect the diversity of the population it serves. Applications from members of equality-seeking groups are encouraged. Untitled-4 1 2018-04-17 12:48 PM Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. Visit www.canadianlawyermag.com/newswire-subscribe THE LATEST NEWS Keep abreast of essential late-breaking legal news and developments. THE BEST COMMENTARY Access trusted analysis and opinion on the cases and changes that are shaping the legal landscape. DELIVERED WEEKLY Your profession can change quickly, which is why you need the freshest, most recent information. FOR READING ON ANY DEVICE Get the news and opinions you need on any device. Whether you read at work, or on the go, the newswire adapts to your screen. Untitled-2 1 2018-04-18 2:52 PM

• Cover