Legal Feeds Blog
A Senate committee has demanded the federal government immediately fill 44 judicial vacancies nationwide that it says are “hobbling” Canada’s justice system.
|Senator (from left) Denise Batters, Senator Claude Carignan and Senator George Baker speak in Ottawa Aug. 12 at the release of a Senate committee report on court delays. (Photo: Alex Robinson)|
The Senate Committee on Legal and Constitutional Affairs released an interim report Aug. 12 outlining recommendations it says will help tackle court delays.
“We have a serious problem with court delays,” Senator George Baker, the deputy chairman of the committee, told reporters at the Canadian Bar Association conference in Ottawa.
“The innocent are left in limbo. The persons who committed crimes are left unprosecuted. Canadians are left frustrated. They are so frustrated that they have condemned our court process.”
In 2013-14, the median time between when a charge is laid in provincial courts and a case’s final disposition was 123 days, according to the report. In superior courts, the median completion time was 514 days.
Committee members said changes to tackle delays are all the more necessary after a recent Supreme Court of Canada decision, R v. Jordan, which put a cap on the amount of time a trial could be delayed. The court ruled that delays of 30 months or more in superior courts or 18 months in provincial courts will be considered unreasonable and charges could be stayed.
“We have now a crisis situation in this country (in) which you’re going to see tens of thousands of persons who are guilty of serious crimes in this country released, acquitted,” Baker said.
“In other words, they will no longer go to jail for what they’ve been convicted of simply because we have not made the proper changes in procedures relating to court operations.”
The committee echoed remarks made the day before by Supreme Court Chief Justice Beverley McLachlin who pleaded the government to fill the vacancies as soon as possible.
McLachlin called the situation a “perpetual crisis.”
In addition to demanding the vacancies be filled, the committee called on the federal government to work with its provincial and territorial counterparts to improve case management to decrease unnecessary court appearances.
The recommendations also asked the federal government to invest in court technology and work toward implementing restorative justice programs, alternative courts and shadow courts.
Edmonton teenager charged with online 'sextortion': police, Canadian Press
A Nova Scotia judge has said he will not interfere with a decision to subpoena seven Crown attorneys to a lawyer’s disciplinary hearing.
|In his current disciplinary matter, lawyer Lyle Howe asked a hearing panel to subpoena a number of Crown attorneys, and the hearing panel granted much of his request. (Photo: Harris Studio)|
The Nova Scotia Public Prosecution Service had made an application to quash a Nova Scotia Barristers’ Society hearing panel’s authorization to subpoena the Crown attorneys in the case of criminal lawyer Lyle Howe.
“I do not propose to interfere with the hearing panel’s decision to issue the subpoenas. Indeed, the court is loathe to intervene at this stage in this interlocutory challenge to the hearing panel’s authority,” said Supreme Court of Nova Scotia Justice James Chipman in the decision this week.
Howe, who has a complicated history with the courts and the barristers’ society, is facing a number of professional misconduct allegations, including failure to be honest with clients and discharge his responsibilities “honourably and with integrity.” Previously, he was stripped of his licence to practise law after he was convicted of sexual assault before being re-instated as a lawyer when his conviction was overturned on appeal.
Howe, a black man, has in the past told Canadian Lawyer he feels the lack of black and aboriginal judges in Nova Scotia poses issues of bias and discrimination. In his current disciplinary matter, Howe asked the hearing panel to subpoena a number of Crown attorneys, and the hearing panel granted much of his request.
The PPS argued the subpoenas would be unnecessary and that Howe is on “a fishing expedition.” But the hearing panel said the Crown lawyers’ testimony could help in its consideration of bias and unlawful discrimination in Howe’s case.
“On the point of relevance, the PPS did not acknowledge that issues of bias and unfair discrimination were relevant to this hearing. Mr. [Glenn] Anderson, speaking on behalf of the PPS, stated that the only things relevant to the hearing were matters related to the charges,” the hearing panel wrote in a July 25 written decision cited in Chipman’s ruling. “It would seem by his answers that the PPS takes the position that bias and unlawful discrimination should not be considered as issues necessary to a full consideration of the charges against Mr. Howe.”
Chipman said the hearing panel conducted “a fulsome” analysis before issuing the authorization for subpoena. In any case, he said the PPS application is premature because no subpoena has been issued yet. “The matter for which the PPS seeks judicial intervention is not ripe and I must therefore decline their request for the court to intervene,” Chipman said.
He added: “If the Crown attorneys are called and if evidence is elicited that offends the Crown prerogative or prosecutorial discretion or is irrelevant and if the panel fails to intervene, it may then be appropriate for the PPS to then consider judicial intervention.”
Neither counsel for Howe nor counsel for the PPS responded to a request for comments.
The New Brunswick Court of Appeal has ruled a criminal lawyer can keep his controversial DUI DR vanity licence plates.
|A judge has ruled that Moncton lawyer Wendell Maxwell can keep his DUI DR plates. (Photo: Wendell Maxwell)|
In a recent ruling, Justice Kathleen Quigg said the plates and their controversial message might seem like an inconsequential privilege, but “privileges such as these are connected to fundamental rights enshrined in the Charter under freedom of expression, and no matter how trivial this expression may seem to a third party, it appears to have substantial personal value to Mr. Maxwell.”
Wendell Maxwell, a 76-year-old lawyer who has been practising criminal law with a focus on impaired driving cases for 48 years, first registered his plates in 2008. The Moncton lawyer is in court almost every day around New Brunswick, Nova Scotia and Prince Edward Island, and “99 per cent” of those cases deal with impaired driving. He wanted plates that reflected what he does, he says, noting he had seen a dentist’s plate that read TOOTH DR and liked the idea.
Though the DMV did initially question the appropriateness of the message, DUI was not on the list of banned phrases at that time and when Maxwell threatened legal action, it issued the plates. Maxwell renewed them without issue until November 2014, when he was told by the registrar of Motor Vehicles via a letter to return the plates as they had been “erroneously issued.”
“That was a falsehood,” Maxwell says. He says he spoke to a deputy at the registrar, and she discussed it with her boss before issuing him the plates in 2008.
“That doesn’t sound erroneous to me,” he says.
The registrar stated it had received multiple complaints, including from the national and Fredericton chapters of Mothers Against Drunk Driving, but made no mention of this — or any other reason for its decision — in the 2014 letter to Maxwell revoking the plates.
Maxwell says he respects MADD’s viewpoint, but he reiterates that his vanity plates are simply a nod at what makes up the majority of his caseload.
“I strongly discourage drinking and driving — I sure as heck don’t promote it,” he says, pointing out he is a teetotaler himself.
In response to the letter retracting his plates, Maxwell filed an application for judicial review, which was heard at the Court of Queen’s Bench on June 24, 2015, and a decision was rendered the same day.
The registrar was ordered to reinstate Maxwell’s plates as the judge found there was a breach of procedural fairness and the registrar’s decision was unreasonable given there was no evidence presented to provide a basis for its decision. The application judge also ordered the registrar to pay costs to Maxwell in the amount of $5,000.
The registrar appealed, and Maxwell says while he was originally upset the government chose to appeal the original decision, he’s “very pleased with the ruling. They gave a strong decision.”
Along with the lack of rationale given to Maxwell in the 2014 letter, the appeal court focused on how the Department of Motor Vehicles came to its decision to revoke the plates, and ultimately upheld the initial ruling.
“Fuelling any legal doctrine are the foundational principles of natural justice and equal treatment under the law,” Quigg said in the decision.
“These principles are not diminished because the subject matter of a case may be objectionable in the community.”
Quigg noted Maxwell was given no opportunity to respond before the plates were revoked and wasn’t given the right of appeal. Ultimately, Maxwell wasn’t given “the most minimal requirement of procedural fairness.”
The judge dismissed the registrar’s appeal and ordered $3,000 in costs.
Legal Leaders for Diversity has handed out 12 more scholarships to law students with disabilities — bringing the total to 21 since the fund was launched in June 2014.
Julie Harmgardt and Julia Munk were awarded scholarships of $3,000 each at a reception held by LLD at the offices of Gowling WLG in Toronto last night.
Munk is a graduate of Osgoode Hall Law School and is attending Ryerson University’s Law Practice Program. She has been doing a work placement at ARCH Disability Law Centre in Toronto since May engaging in client advocacy.
Munk said the LLD scholarship program is important because having a disability “shapes the way you experience law school, the legal professional, articling, interviews and client interaction.”
She is one of the founders of Canada-Wide Accessibility for Post Secondary Students, and in 2002 she started Students for Barrier-free Access, an association of students with disabilities and their allies.
Harmgardt is currently articling at Stikeman Elliott LLP, having completed her JD at Queen’s University Faculty of Law. She is also the founder and executive director of InvisAbilities, a registered Canadian charity that promotes awareness, education and support to young adults living with hidden, chronic illnesses.
As someone who has suffered from arthritis from an early age, Harmgardt created the organization to help break down societal misconceptions associated with invisible illnesses such as lupus, diabetes, arthritis, Crohn’s disease and others.
“She has transformed the initiative from what began essentially as a university club into a registered Canadian charity now with chapters on several university campuses and is now working to add a chapter that will serve young professionals in Toronto,” said Scott Jolliffe, head of international development and past chairman and CEO of Gowling WLG, who is also a member of the LLD board of trustees.
She has also worked as a legal intern for Human Rights Law Network in New Delhi, India.
Harmgardt said for her the scholarship represents recognition from the corporate law community of the challenges faced by disabled students.
“I feel welcome in the corporate community and that’s something I might not have said a few years ago,” she said. “I would like everyone to take back to their firms and companies some thoughts about invisible disabilities. It’s something when I was at Queen’s that wasn’t really on the radar. Now I feel like we’re getting to the point where people are observing and being more knowledgeable. For example, sometimes I have a hard time with stairs. From what I look like I might not necessarily appear to have that issue, so I have had to be an advocate for myself and tell people there are impediments in everyday life that we experience.”
With the goal of advancing diversity and promoting equal access to the legal profession, the LLD Trust Fund offers annual scholarships to young people with disabilities who are pursuing undergraduate and graduate studies in law.
The scholarships provide financial assistance to students with physical, mental, intellectual or sensory impairments.
More than 42 general counsel and managing partners from law firms across Canada have committed to give $5,000 to the trust fund.
- Data scientist will help decipher firm’s internal data for greater insight
McMillan LLP has announced a plan to work with IBM on new software that will improve accuracy of price models for legal work.
|Tim Murphy says a new collaboration between McMillan LLP and IBM will help bring legal patterns and trends to light, and benefit clients.|
The initiative by the law firm and the technology company will involve the work of a data scientist who will sift through the firm’s internal data to spot legal patterns and trends, as well as boost certainty around pricing.
Tim Murphy, executive partner at McMillan LLP, says the project is focused “on using analytics to provide predictive value,” and moving away from anecdote.
“One of the big problems law firms have is that every lawyer is an independent pricer and manager of legal services,” says Murphy.
“What we’re trying to do is bring the skillset of all of them up, by virtue of providing them with reliable, objective data, not just their anecdotal personal experience as a basis for pricing, staffing and that communication with a client.”
A news release announcing the project said it will be “powered by IBM’s comprehensive predictive analytics system, SPSS, and running on IBM Cloud, the platform offers advanced algorithms and techniques that aggregate, analyze and interpret McMillan’s internal data to strengthen the decision making process.”
Internal data that will be used includes billing information, or time spent by lawyers on a file (tracked by areas such as client, matter, lawyer, partner, associate, value, time or office).
There could be further analysis on the number of documents created, how many drafts were done, and how many people participated in the process.
“All of that is buried in the technology we already have; what that reveals is what this [data scientist] is skilled in,” says Murphy.
For example, Murphy says a sample could be taken of an area of law where services are provided on a regular basis, such as the purchase and sale of a business. Lawyers may act for the seller or the buyer or one of the bidders, he says.
In the new initiative, the data scientist will use predictive software to analyze past deals the firm has participated in to “produce a set of learnings to have a richer conversation” with clients, says Murphy.
This might mean studying a number of past deals that the firm has participated in, says Murphy, to illuminate a “more informed” discussion around pricing for legal services.
“We can have a way richer conversation with our client, give them some comfort and insight into the pricing,” says Murphy.
Or, it could mean gathering intelligence to share with clients about where potential pit-falls may lie, thereby helping prevent a “busted deal.”
“You think about the power of that information both from the client perspective and from our perspective, we think it has huge potential,” says Murphy.
He says it will also assist the firm in figuring out how to staff particular files.
“[T]here is a degree to which the legal industry is still like a guild, built on the model that was almost pre-industrial, and is slowly catching up, and it’s really obviously market pressures that are driving the change,” says Murphy, who says the “drive is to be one of the most innovative firms.”
“We think one of the ways in which we can help achieve that goal is through the use of data and analytics, and so that’s why we’re excited about this collaboration,” he says.
McMillan LLP has about 280 lawyers in six offices, including in Vancouver, Calgary, Toronto, Ottawa and Montreal. It also has an office in Hong Kong.
The ambition is to have the first results of the project this fall, says Murphy.
Findings will be shared with the law firm’s lawyers, who can then share the information with clients.
Part of the drive will be to connect with in-house counsel, says Murphy.
“What the focus of the firm is, if we’re going to be an innovative supplier of legal services, our view is we’re going to have to have a different kind of discussion and relationship with in-house counsel, because we know they’re looking for better-informed external counsel who can provide value to them,” says Murphy.
McMillan LLP won’t be the only beneficiary, says Murphy.
“From the IBM perspective, their interest is they’ve got this platform, they’ve not seen it used in a legal context, so it’s an opportunity for them to see how it can be used and see whether it creates a market opening for them, and that was their interest in collaborating with us, so we’re quite keen on it, and we think there will be learnings in both directions,” says Murphy.
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