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opinion Group Publisher: Karen Lorimer Editorial Director: Gail J. Cohen Staff Writer: Glenn Kauth Copy Editor: Heather Gardiner Creative Director: Einar Rice Art Director: Bill Hunter Account Co-ordinators: Alice Chen and Catherine Giles Contributors: Robert Todd, Kelly Harris, Jean Sorensen, Geoff Kirbyson, donalee Moulton Canadian Lawyer is published 11 times a year by Canadian Lawyer Magazine Inc., 240 Edward St., Aurora, Ont. L4G 3S9 (905) 841-6480 Fax: (905) 727-0017. All rights reserved. Contents may not be reprinted without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information pre- sented is compiled from sources believed to be accurate, how- ever, the publisher assumes no responsibility for errors or omissions. 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COHEN Disbar those bad apples I n this issue, both Legal Ethics columnist Philip Slayton and incoming Canadian Bar Association president Kevin Carroll touch on the explosive issue of police and prosecutors doing background checks on potential jurors. At least two mistrials in Ontario were declared once the irregular, perhaps even illegal, practice came to light. Ontario's privacy commissioner and Attorney General Chris Bentley jointly have sent out detailed questionnaires to all 54 Crown prosecution offices in the province "to determine the nature and extent of this practice." The Ontario Criminal Lawyers' Association has also demanded that Bentley's office provide "full disclosure of all infor- mation in the ministry's possession relating to any prior jury trials in this province in which this practice is known to have occurred." Chances are there are more cases in which this has occurred than the few that have become public. It's not just a question of whether the privacy of jurors has been breached but that secret background checks on the jury pool are essentially illegal under the Ontario Juries Act. The implications of this practice do more than simply bring the administration of justice into disrepute, it will be costly on many levels. If it's found to be widespread, there will be a wave of defence counsel filing appeals, which will take valuable court time. Likely there will be civil lawsuits filed against police and prosecutors. Will it be the individuals involved that are going to pay damages if they're found culpable? Unlikely. Taxpayers will, once again, have to foot the bill. The AG must come down hard on prosecutors who have participated in this folly: any Crowns who may have been involved should be reported to the law society. It, in turn, must institute disciplinary proceedings. Those Crowns found to have been involved should be disbarred. It would send a message both to other Crowns and to the public that the justice system has integrity — and don't mess with it. letters to the editor Gowns are next to go I Re: "Ontario lawyers, paralegals to swear the same oath," Canadian Lawyer, July 2009. took time out from my busy practice to have a gander at the scrolls gathering dust in my office. One of them says I was duly sworn in and enrolled as a solicitor of the Court of Appeal for Ontario, and the other confirms I was called to the degree of barris- ter-at-law. In spite of this fancy paperwork (they have red seals and everything), I went to bed one night as a barrister and solicitor and woke up as a licensee. That might have been cool if it came with a 00 prefix like James Bond's, but mine seems more like the one the MNR gave me so I can catch bass. Now, the law society has decided our oath has to be the same because the proposed oath for paralegals was "somewhat demeaning." At the risk of sounding elitist, shouldn't I feel somewhat demeaned after I went to good lengths to join a profession that seems to have become ashamed of its own history and position? You can bet the gowns are the next to go. And why shouldn't they? Isn't it frightfully off- putting to our fellow licensees that we get to wear fancy duds and they don't? What's a few centuries of tradition when people's sartorial self-esteem stands in the balance? But for now, it's the wording of the oath. Nothing better to worry about, I guess. Things are in clover at Legal Aid, access to justice seems hunky-dory, and the public has never held us in higher esteem. If I can find my gowns, I'm going fishing. Andrew Elrick, licensee Oshawa, Ont. www. C ANADIAN Law ye rmag.com A UGUST 2009 3