Canadian Lawyer

10 M A r C h 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m \ At L A N t I C \ C E N t r A L \ W E s t rEgIoNAL WrAp-up delay, it was unlikely a lawyer would accept the dismissal without a fight, he suggests, noting followup motions to set aside such dismissals only added court time. Murray says while the two-year limit might have worked in some areas, it was particularly problematic for lawyers prac- tising personal injury law. "It failed to take into account that oftentimes, counsel do know what they're doing, the direction that a file is taking, the time that it's taking, and there [could be] multiple good reasons as to why a case wasn't set down for trial or even sometimes why there wasn't a state- ment of defence," says Murray. Lawyers could be dealing with a minor or someone whose medical condition needs to stabilize before setting a trial date, he notes. Ferro, too, says the previous rule had "an unrealistic expectation. Personal injury ligation and litigation of all kinds is messy. It's not a very nice business because people are fighting, and to expect them to wake up one day on Year 2 and say, 'By the way, we're not fighting anymore, we're going to move along,' is totally unrealistic." Murray says the fact the new rules mean automatic dismissal after five years without further notice is both positive and negative. On the one hand, the change eliminates court time often spent on determining whether there was proper notice before dismissal. On the other, lawyers who don't have the proper time tickers may find cases dismissed without their knowledge. — YaMRI TaddeSe yamri.taddese@thomsonreuters.com t he Ontario Court of Appeal has concluded a senior Crown attor- ney acted improperly in a closing address to a jury when he compared the defendant to religious terrorists, mass murderers, and notorious cult leaders. Mark Poland's actions "fell well below the standard expected of Crown counsel," said the court in ordering a new trial last month for a Kitchener-area man convict- ed of orchestrating a plan to have his three children kill his estranged wife. "The Crown in this case engaged in multiple instances of prosecutorial misconduct," wrote Justice Mary Lou Benotto. "His remarks were inflamma- tory, vindictive, sarcastic and ridiculing of the appellant," added Benotto for the three-judge panel. The failure to provide a correc- tive instruction was an error in law by Superior Court Justice James Ramsay and rendered the trial unfair, the appeal court panel added. A spokesman for the Ontario Ministry of the Attorney General told Legal Feeds it was "carefully reviewing the decision." The appellant, who can only be named as A.T. to protect the identity of his chil- dren, was convicted by a jury in March 2010 of attempt to commit murder and conspiracy to commit murder. During the trial, the jury heard testi- mony from the children that their father told them to kill their mother by drown- ing her in the bathtub. An attempt was made, but the mother survived, the court heard. The father, a devout Mennonite, had a previous conviction for domestic assault. His religious views became a cen- tral issue during the trial. The Crown displayed passages from the Bible on a screen in the courtroom and questioned the defendant about them during cross- examination. Poland, who is now the senior pros- ecutor in Dufferin County, northwest of Toronto, was "fixated" on the religious beliefs of the defendant instead of "what, if anything, he had told the children," said the Court of Appeal. To support the notion that an individ- ual can be influenced to commit murder, the Crown asked the jury to consider the Jonestown massacre in 1978 and the kill- ings committed by followers of Charles Manson. References were also made to suicide bombers and the Nazis. Poland told the jury he was not using the examples to liken the defendant to Jim Jones, Manson, or Adolf Hitler. However, after a brief "self-correction," the Crown "immediately continued on with his com- parative rhetoric," wrote Benotto. The Crown ended his closing with a reference to an integral part on a helicop- ter that is referred to as the "Jesus nut" because of the consequences if it comes off. Poland told the jury the "Jesus nut" of the defence was that the children were conspiring against their father. "When [defence counsel] offers you a ride in his helicopter, my suggestion is you say, no thanks, that Jesus nut looks a little loose to me," Poland stated. The analogy "was no innocent meta- phor," noted the appeal ruling. "It is evi- dent that he was calling the appellant a Jesus nut." Jill Presser, who represented A.T. in his appeal but not at trial, says the decision sends an important reminder about the long-standing recognition by the courts of the prosecution's duty to act with modera- tion and impartiality. "It re-emphasizes the role of the Crown and the trial judge in ensuring fair trials. The line of rhetorical excess is crossed when there is actual prejudice to the accused," says Presser, a Toronto defence lawyer. A spokeswoman for the Law Society of Upper Canada declined to say if it will investigate the Crown's conduct. The Court of Appeal ruling was issued the same day the Ontario Divisional Court upheld a suspension and costs order against Joe Groia, for incivility in his successful defence of former Bre-X executive John Felderhof on insider trad- ing charges. The Divisional Court upheld a one- month suspension and $200,000 costs order against Groia, ordered by an LSUC appeals tribunal. Arguments by the law society that a court's comments about a lawyer's conduct are proof of misconduct, were rejected by the Divisional Court. However, it said comments or findings may be admitted as evidence at a disci- plinary hearing. — SHannon KaRI shannon.kari@thomsonreuters.com CRown ReBUKed foR InflaMMaToRY CloSInG Two-year rule repealed Continued from page 9

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