ter and dumbfounded by his acts. Pieter Joubert was one of the lucky members of the audience to assist Mr. Glow with his show and afterwards

stated, "He glowed my mind! Literally!"

We concluded the evening with music and an excellent dance party, DJ'd by volunteer

The Kenora District Law Association held its 1st annual Holiday Celebration "Smoke & Mirrors" on Saturday, De-cember 10, 2016. The purpose

of this event was to invite our entire legal community to come together, including but not limited to, judges, lawyers, support staff and spouses.

We started our evening with cocktail hour and some bingo fun. Our MC, Tyler Johnson, enlightened us with some

KDLA trivia to determine which tables would be the first to be served. Dinner was ca-tered by Erin's Catering which provided a delicious meal

consisting of chicken in sun-dried tomato sauce, roast beef, and many tasty salads. One of

our guests, Reid Thompson, was quick to endorse, "That was the best meal I have ever had at an event like this".

Following dinner we were

treated to some astounding entertainment by illusionist/magician Brian Glow. He had the crowd roaring with laugh-

SMOKE and MIRRORS CHRISTMAS BANQUET A GREAT SUCCESS

Inside this issue:

Quiz 2

Smoke & Mirrors Gallery

3

Goudge Report 4-5

Greetings 5

Quiz answers 6

Dale Announcement 7

Library Acquisitions 8

Kenora District Law Association

KDLA News DECEMBER 2016

FOLA PLENARY—Fall 2016 by Sayer Down

This November the KDLA

executive attended beauti-

ful Brampton, Ontario for

the FOLA Fall Plenary.

The theme of this Fall’s

plenary was “Innovating to

Thrive”, and featured top-

ics and guest speakers fo-

cusing on technological and

practice based innovations.

We also received regular

reports from FOLA stand-

ing committees including,

but not limited to, the FO-

LA Chair, real estate, and

LibraryCo.

Some highlights of the

Plenary were: drinks and

dinners at Terrace on the

Green Restaurant, hearing

from the Honourable Yasir

Naqvi, Attorney General

of Ontario; Cian O’Sulli-

van, “Top Dog & Co-

Founder” of Beagle AI,

and Paul Shabas, our newly

elected Law Society Treas-

urer.

We can advise that FOLA

is planning two fund-

raising trips for 2017. First,

“Egypt & the Nile” Febru-

ary 2, 2017 (12 or 16 day

trips), and second, “Food

& Wine: Flavours of Tus-

cany & Umbria” July 15,

2017 (10 or 12 day trips).

Please feel free to contact

the KDLA executive for

further information.

Finally, the following mo-

tions were voted on and

passed November 4, 2016:

1. Resolution Regarding

the Truth and Reconcili-

ation Commission Final

Report, Calls to Action.

Summary: FOLA supports

and endorses, in principle,

the calls to action 27 and

28 of the Truth and Recon-

ciliation Commission.

CONTINUED ON P.2

Christian Zilinski.

We followed up with a few other attendees to tell us about their night at the KDLA Holiday Celebration and they offered the following com-

ments:

"Superb, top notch event!" - Bubbles "AKA" Hillary Giesbrecht.

"Twas a night filled with magic!!" - Julie Gerbrandt.

"It was a great event, the organizers did an excellent job, hoping for a repeat next year" - Terry Douglas.

On behalf of the KDLA and the

Social Committee we would like to send out a big thank you to everyone who supported our vision and helped us make this event such a great success!

The Events Centre at Seven Generations all dolled up for the Smoke and Mirrors Banquet.

and that such revenue be di-

rected to improve services pro-

vided in local Practice Resource

Centres, and further that barriers

standing in the way of these

opportunities be removed, where

practical.

3. Resolution Regarding Ref-

erence to “Law Society of

Upper Canada” by Paralegals

in Advertising. Summary: FO-

LA requests that Convocation

move as soon as reasonably pos-

sible to prohibit any use of “Law

2. Resolution Regarding

Practice Resource Centre Mo-

tion. Summary: FOLA shall

recommend to Convocation that

a stable, separately identified levy

as a portion of lawyers’ annual

fees dedicated to Practice

Resource Centres would provide

the financial stability that the

Practice Resource System needs

to be sustainable in the long run.

Also, FOLA encourages Library-

Co shareholders to seek other

revenue generating opportunities

Society of Upper Canada” in all

advertising, unless such refer-

ence specifically confirms that

the member is a licensed parale-

gal.

Please feel free to contact the

KDLA executive for further

information on any of the afore-

mentioned resolutions.

The Fall Plenary provided the

KDLA Executive with some

fresh perspective and goals to

work towards in our agenda for

the coming 2017 year.

FOLA continued from p. 1

3. Cage, Fish & Associates

4. Barr, Robinovitch & Tchobanian

5. I Can’t Believe it’s a Law Firm

6. Firth, Wynn & Meyer

LAWYERS

7. Sydney Carton

8. Harmon Rabb

9. Jeff Winger

10. Elle Woods

11. Steve Dallas

12. Carson Drew

13. Adam Schiff

14. Oliver Wendell Douglas

15. Claire Huxtable

16. Atticus Finch

Answers on p. 6

QUIZ—FICTIONAL LAWYERS AND LAW FIRMS

Can you identify the TV show, movie, or novel that gave us each of the following make-believe lawyers and law firms?

FIRMS

1. McKenzie Brackman, Cheney & Kusack

2. Dewey, Cheathem & Liv-ingstone

Page 2 KDLA NEWS

The Fall Plenary provided the

KDLA Executive

with some fresh

perspective and

goals to work

towards in our

agenda for the

coming 2017 year.

Tunnel Island becomes quite a Winter Wonderland at –20, as it did on Friday, Dec 16.

Smoke and Mirrors—a Good Time was had by All

Dancing the Night Away.:

Page 3 DECEMBER 2016

LEGAL AID STAFF:

The Crown’s office was well represented:

Many thanks to the organizers and our MC: Andrea Mason, Chenoah Bueckert, Tyler Johnson(MC), Emily Delaney and Sarah Burden.

GOUDGE REPORT STILL A DETERRENT by Laurelly Dale

The most frightening aspect of being a criminal defence lawyer is contributing to a miscarriage of justice.

A Supreme Court judge once scoffed at my objection to admit an expert report on the basis of qualification, claiming that be-cause the author had an MD be-hind his name my objection was without merit. I responded with “Goudge.”

The Inquiry into Pediatric Foren-sic Pathology in Ontario ( a review of the cases of disgraced pathologist Dr. Charles Smith in 2008 by Justice Stephen Goudge), has resurfaced in the 2015 Motherisk Hair Analysis Independent Review, and in R. v. Stephan [2016] A.J. No. 654, the case of the Alberta parents con-victed in the meningitis death of their 19-month-old son Ezekiel.

Goudge has provided counsel with the courage to object to expert testimony on the basis of qualification; however, more work is needed.

Expert opinion is presumptively inadmissible (R. v. Mohan [1994] 2 SCR 9). When an expert’s evidence strays beyond the prop-er scope, it is imperative that the trial judge not assign any weight to the inadmissible part (R. v. Sekhon 2014 SCC 15). Smith was a general practitioner who had no formal training as a foren-sic pathologist. He soon began

working with the criminal justice system as an unchallenged expert and then was appointed director of the Ontario Pediatric Forensic Pathology Unit. His repeated qualification amplified into the label “world renowned expert.”

Goudge was assembled to review cases from 1981 to 2001. In the Louise Reynolds case, Smith opined that the lacerations which caused the death of a 7-year-old could not have been generated by the family pit bull, supporting the allegations that Reynolds stabbed her child more than 80 times.

In a groundbreaking decision, Reynolds’ application to file a civil action against Smith was granted.

Goudge concluded that errors were committed in 20 child au-topsies, resulting in 12 wrongful convictions and approximately six wrongful accusations.

Motherisk is a laboratory in the Hospital for Sick Children, the same institution that was in-volved in Goudge.

The review was initiated as a result of a successful fresh evi-dence application in R. v. Broomfield [2014 ONCA 725. The court found that the hair samples produced by Motherisk to support the trial judge’s con-clusions that the accused had given cocaine to her young child for 14 months were unreliable. Retired Ontario Court of Appeal Justice Susan Lang produced the report. In it, she found that alco-hol and drug analysis produced between 2005 and 2015 was unreliable. The report noted three primary deficiencies: 1) misleading testing capabilities to

determine quantity and type of drug used by subjects; 2) failure to meet internationally recog-nized “gold standard” testing procedures; 3) lack of expertise required to interpret test results. Following the recommendation of Justice Lang, a second review of the cases of more than 9,000 individuals who tested positive is under way. While it is embar-rassing that these errors occurred over such a lengthy period of time and at the same institution examined in Goudge, this discov-ery is reassuring in that our legal system exposed these errors.

Both Smith and Motherisk were held out as “world’s leading” experts/facilities. It is not hard to imagine the desire to maintain this status, coupled with the am-plification effect, contributed overall to these miscarriages of justice. Their reports were ad-mitted in court and they were rarely challenged as to their qual-ifications. This was not the case in Stephan.

Both the Crown and the defence have filed appeals in Stephan. David Stephan was sentenced to four months custody, while Col-let Stephan was sentenced to a conditional three months. In its appeal defence argues that Justice Rodney Jerke erred in not allow-ing former chief medical examin-er Dr. Anny Sauvageau to give expert evidence. Sauvageau’s report was based upon her review of an expert report and listening to the 911 call made by Ezekiel’s parents after the boy had stopped breathing. The Crown objected on the basis of lack of impartiali-ty as she was suing Alberta

CONTINUED ON P. 5

Page 4 KDLA NEWS

While it is embarrassing that these errors occurred over such a lengthy period of time and at the same institution examined in Goudge, this discovery is reassuring in that our legal system exposed

This article is being reprinted with permission. It was origi-nally published in the Oct 21, 2016 edition of the Lawyer’s Weekly (Vol. 36.No.23)

Moonset as Seen from the Law Library Dec 14, 2016

Court of Canada relied on Goudge in the professional negli-gence case of White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23. In upholding the decision to admit the report, Justice Cromwell held that: “…if there is a realistic concern the expert is not inde-pendent or impartial and that concern cannot be rebutted by the proponent, it should be ruled inadmissible.”

Justice for wrongful dismissal as well as qualification. Sauvageau opined that the toddler died of viral meningitis, rather than the bacterial form. At trial the judge limited her report in weight, re-flecting her admission that she is not a microbiologist.

Goudge has impacted various areas such as civil, employment law, and it has even been referred to at the Court of Appeal in Eng-land and Wales. The Supreme

The fear that Goudge instills in the hearts of counsel ripples through to the public. Fear is progress. Increased references to Goudge in Books of Authorities as well as reminder in media reports will heighten its impact as a deterrent.

Laurelly Dale is a sole practi-tioner and practices criminal law and litigation. She is also the Director of Content Development at LexisNexis Canada.

Goudge—Continued from previous page

Laurelly Dale

Page 5 DECEMBER 2016

 

 

The Execu ve and staff of the District of Kenora 

Law Associa on  

 Wish to extend Holiday Gree ngs 

 To all Members of the Bar, the Judiciary and the 

Courthouse Staff. 

Answers to Fictional Lawyer Quiz

FIRMS

1. McKenzie, Brackman, Chen-ey & Kusack LA LAW—the firm’s name varied from seasons to season as partners were added or subtracted, but the firm was always identified as McKenzie Brackman.

2. Dewey, Cheathem & Living-stone—This firm showed up in the series 30 ROCK—not to be mistaken for “Dewey Cheathem & Howe” referred to in several episodes of the Three Stooges.

3. Cage, Rish & Associates—This is the firm ALLY McBEAL joins and eventually becomes partner.

4. Barr Robinovitch & Thcobainian—This one is Cana-dian, featured in the series STREET LEGAL, about a small firm in Toronto, starring actors Sonja Smits, Eric Peter-son , C David Johnson & Cyn-thia Dale.

5. I Can’t Believe it’s a Law Firm—THE SIMPSONS have engaged the services of Lionel Hutz (voiced by Phil Hartmas) from time to time. In one epi-sode, he is working under this banner.

6. Firth Wynne and Meyer—In FRESH PRINCE OF BELAIR, Will’s uncle Phil be-longed to this firm before be-coming a judge.

LAWYERS

7. Sydney Carton—A TALE OF TWO CITIES (Dickens) Sydney Carton trades places with his client, Chalres Darnay just before Darnay is to face the Guillotine. It is Sydney who speaks the well-known line “It is a far far better thing I do than I have ever done. It is a far far better rest I go to than I have ever known.”

8. Harmon Rabb— JAG -Captain Harmon Rabb Jr (played by David James Elliot) is a for-mer naval aviator who became a star lawyer in the Judge Advocat General’s Office

9. Jeff Winger—COMMUNITY— Jeff (played by Joel McHale) had a promising career in law until it was discov-ered that his undergraduate de-gree was bogus

10. Elle Woods—LEGALLY BLOND—Elle (played by Reese Witherspon) is a student in fashion merchandising and leader of her sorority. After being dumped by her boyfriend, she decides to show him up by attending the same law school (Harvard).

11. Steve Dallas—BLOOM COUNTY comic strip by Berke Breathed. Steve is a self-employed, somewhat unscrupu-lous, and rather ineffectual law-yer in Bloom County.

12. Carson Drew—Carson Drew is the father of teenaged sleuth NANCY DREW.

13. Adam Schiff—LAW AND ORDER—Adam Schiff (played by Steven Hill) was the District Attorney of New York County for ten years on the original Law and Order series.

14. Oliver Wendell Douglas—GREEN ACRES—Oliver Wendell Douglas (played by Eddie Albert) leaves a thriving New York law practice to be-come a less-than-successful farmer in the small rural com-munity of Hooterville.

15. Claire Huxtable—THE COSBY SHOW— Claire (played by Phylicia Rashad) was the TV wife of Bill Cosby’s char-acter, Dr. Heathcliff Huxtable. In one episode she successfully represents her eldest daughter, Sondra, in a case over dishonest car repairs.

16. Atticus Finch—TO KILL A MOCKINGBIRD.(Harper Lee) - Atticus is a lawyer in May-comb County, Alabama, who is court-appointed to represent a black defendant who is wrong-fully accused of raping a white girl. Gregory Peck won an Academy Award for his portray-al of Atticus in the 1962 movie based on the novel.

 

Page 6 KDLA NEWS

Lionel Hutz, of “I Can’t Be-lieve it’s Law Firm” has rep-resented the Simpsons on several occasions.

Street Legal ran on CBC from 1987-1994. L-R: Eric Peterson, C. David Johnson, Sonja Smits and Cynthia Dale.

David James Elliot as JAG lawyer Harmon Rabb.

operate out of Mr. Greg Iwasiw’s office located at 136 Matheson St. S. downtown Kenora, Ontario. Second office is located at 25 the Es-planade in Toronto, Ontario, offering litigation ser-vices. Looking forward to

working with everyone again. Email: ldale@dalelegalfirm.com Kenora office num-ber: 807 - 467-3087; Toronto office number: 416-903-9958. Visit the web-site: http://www.dalelegalfirm.com/

 

Ms. Laurelly Dale and her shoes have returned to the District of Kenora. Areas of practice include 1) Criminal Defense and 2) Personal Inju-ry (Motor Vehicle Accidents; Occupier’s Liability; Dog Bites). Dale Legal Firm will

A Prodigal Returns — Laurelly Dale

Laurelly Dale

Page 7 DECEMBER 2016

Open water and -20

temperatures made

for a misty morning

on December 14.

Please mark your calendars

District of Kenora Annual General Meeting

Friday, March 31, 2017

4:30 AGM, 6:00 Dinner

Lake of the Woods Brewing Company (Whiskey Lounge).

(corner of Second St. S. and Park St. in Kenora)

Modern First Na ons Legisla on 2017 

Ontario Courtroom Procedure (Fuerst & Sanderson) 4th ed. 

Ontario Family Law Prac ce 2017 

Ontario Landlord & Tenant Law Prac ce 2017 (Fleming) 

Ontario Municipal Act & Com‐mentary 2017 

Oosterhoff on Wills and Succes‐sion 8th ed (Oosterhoff et al) 

Wrongful Dismissal Handbook 7th ed (Sproat) 

 

NEW CLE  

From LSUC 

The 17th Annual Employment Law Summit 

The 19th Annual Estates and Trusts Summit 

24th Annual Immigra on Law Summit 

The Administra on of Estates 2016 

Advanced Issues in Spousal Sup‐port 

NEW BOOKS 

2016 Consolidated Ontario Insur‐ance Statutes and Regula ons (Rachlin) 

2017 Annotated Divorce Act (MacDonald & Wilton) 

2017 Annotated Ontario Con‐struc on Lien Act (Glaholt & Keeshan) 

Aboriginal Law 5th ed (Isaac) 

Aboriginal Law: Supreme Court of Canada Decisions (Isaac) 

Annotated Ontario Rules of Crimi‐nal Prac ce 2017 

Benne  on Bankruptcy 19th ed 2017 (Benne ) 

Consolidated Na ve Law Stat‐utes, Regula ons, & Trea es 2017 

Defending Drug Cases 4th ed (Bolton) 

Examina on of Witnesses in Criminal Cases 7th ed (Levy) 

Learning Canadian Criminal Pro‐cedure 12th ed (Stuart & Quigley) 

McLeod’s Ontario Family Law Rules Annotated 2016‐2017 

The Annotated Shareholder Agreement 2016 

Civil Li ga on Prac ce Basics 2016 

Class Ac ons for Civil Li gators 

Criminal Law and the Charter 

Indigenous Law Issues 2016 

Intensive Child Protec on Train‐ing Primer 

Plain ff’s Personal Injury Law Prac ce Basics 2016 

Probate Essen als 2016 

The Six‐Minute Debtor‐Creditor & Insolvency Lawyer 2016 

The Six‐Minute Family Law Law‐yer 2016 

The Six‐Minute Real Estate Law‐yer 2016 

Taxa on for General Prac oners 2016 

Taxa on Issues for Real Estate Lawyers 2016 

 

From OBA 

A Primer on Liens, Encumbrances and Other Instruments Affec ng 

Real Property 

 

 

District of Kenora Law Association

District Court House 216 Water St. Kenora, Ontario P9N 1S4

 

YOUR LAW 

LIBRARY 

Maria Berezowski, 

Librarian 

PHONE:: 807‐468‐9335 

TOLL FREE:  1‐866‐684‐1164 

FAX:  1‐807‐468‐1758 

E‐MAIL:  lawlib@kmts.ca 

 

HOURS 

Monday, Wednesday, 

Thursday 

8:00 AM‐1:00 PM 

Tuesday 

8:00 AM – 2:30 

KDLA EXECUTIVE 

 

 

President—SAYER DOWN 

Hook Seller & Lundin LLP,  Kenora  

VP—CARLYNN S. BELL 

McAuley & Partners, 

Dryden 

Secretary/Treasurer 

KIM RIEDIGER 

Hook Seller & Lundin LLP,   

Kenora  

 

 

Recent Library Acquisitions

This was, quite literally, the calm before the storm, December 5. The snow fell and the temperature dropped over the following few days.

A View From My Window