Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A u g u s t 2 0 1 4 11 West albeRta'S cRowNS PRicKly about RevealiNG SalaRy detailS p rovincial Crown attorneys in Alberta don't want you, or more particularly the violent crimi- nals they help put away, knowing much about them. That is why the prosecutors have been fighting for the last eight months to stop the province from releasing a list of their exact salaries and benefits. The provincial government has begun reveal- ing the salaries of all employees earning over $100,000. But the prosecutors argue the so-called sunshine list is casting a shadow on their lives. Their Edmonton lawyer Paul Moreau, a former Crown himself, points out "the security experts tell us the more information that's out there, the less safe you are." In January, just days before the list hit the government web site, Crowns gained an 11th-hour injunction keep- ing their names and salaries from being published. The injunction was not launched on behalf of the Alberta Crown Attorneys' Association, but by an individual Edmonton Crown known only as Jane Doe. However, the ACAA membership is supporting the action and the association is appealing for cheques to help defray costs. However, the January injunction was dissolved by the Alberta Court of Appeal in late May. In its very brief judgment, the court relied in part on assurances "received from the Deputy Minister of the Executive Council concerning an alternative legal process." That process allows a Crown prosecutor to apply for an exemption on the grounds his or her personal safety may be endangered. That is not good enough, insists Moreau. So about the same time the injunction was obtained, the prosecutors also launched a class action lawsuit to stop the whole process. They are hop- ing the government will withhold the release of any names until that lawsuit has worked its way through the courts, which could be sometime next year. If the province goes ahead and publishes the Crowns' names and salaries the class action "becomes mute," says Moreau. "It's a bell that cannot be un-rung." In addition, last month, Moreau filed a motion with the appeal court seeking to re-argue the court's decision to dis- solve the original injunction. The Crowns are not getting that much sympathy. Crown salaries are already pub- lished in B.C., Saskatchewan, and Ontario and the salary bands paid to Alberta Crowns are available publicly. The aver- age prosecutor's salary is about $110,000. In a February editorial, Law Times editor Glenn Kauth argued "the concern about Crowns' safety seems a bit of an exaggeration." He points out the roles played by many government employees can easily put them at odds with a some- times angry general public. Other critics say Crowns, especially in smaller centres, already regularly encounter those they have prosecuted around town. Moreau admits he had that experience when he was a Crown in Wetaskiwin. However, while there seems little evi- dence on the public record about attacks on Crowns, Moreau says, "I don't think [a Crown] has to wait until they are victimized before they are protected. Just because something hasn't happened yet, doesn't mean it will never happen." — Geoff eLLwAND writerlaw@gmail.com Streisfield wouldn't comment on the decision but told Law Times his lawyer is reviewing the ruling for the purpose of appealing it. "The fact that the judge was highly critical of the expert is not that unusual; what's unusual is that they're holding the lawyer accountable," says Toronto personal injury lawyer Darcy Merkur of Thomson Rogers. "So that does raise the bar for lawyers when consulting with their experts." It's within a judge's power to make cost orders against lawyers personally, notes Sotos LLP lawyer Jean-Marc Leclerc. "I think the more interesting [aspect of the ruling] is what led the court to reach that decision in this case," he says, adding it's uncommon for a court to order the production of e-mail communication between a lawyer and an expert witness. "If courts are going to routinely order the production of background e-mails going to and from an experts and coun- sel, that is certainly going to be a much more different regime than the current one," says Leclerc. In a much-discussed decision in Moore v. Getahun, the Superior Court raised the bar for expert witnesses objectivity when it said lawyers should stop reviewing draft reports. In that case, now under appeal, Justice Janet Wilson emphasized an expert's primary duty is to the court. Barbour is consistent with judges' growing emphasis that experts are friends of the court, says Merkur. "There's a movement by the courts to push the experts to remain totally impartial," he says. — YAMrI tADDese yamri.taddese@thomsonreuters.com

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