Legal Feeds Blog
- New rules set 30-month 'presumptive ceiling,' above which onus falls on prosecutors
The gravity and seriousness of a case — even one relating to sex crimes against children — cannot be used to justify unreasonable delay at trial, according to the Supreme Court of Canada.
It’s one of the more controversial aspects of a new legal framework issued today by the court for assessing whether a delay is unreasonable under the Charter.
In Jordan v. R., a drug-trafficking conviction was challenged due to a 44-month delay between the charge and ultimate conviction. In a ruling written by justices Michael Moldaver, Andromache Karakatsanis, and Russell Brown, on behalf of a unanimous nine-judge panel, the court sides with the defendant in ruling that his constitutional right to a reasonably timely trial had been violated.
More importantly, the court took the opportunity to rewrite the rulebook on delays, noting that the framework based on Morin v. R. had contributed to a culture of complacency, where rationalization about whether the delay caused true prejudicial harm could be used to excuse a delay.
In its place, the court has created a framework (the Jordan framework) that sets a “presumptive ceiling” for delay of 30 months — above which the burden will now fall on Crown prosecutors to prove that the delay was a result of exceptional complexity or unavoidable circumstances.
The court, however, leaves it to judges to determine the “exceptionality” of the delay:
As the decision states, “It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a s. 11 (b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience.”
The ruling does, however, provide guidance to the courts and specifically rules out justifications based on chronic institutional delay, the gravity of the offence, or absence of prejudice.
As the decision states, “An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached.”
While the ruling in Jordan was unanimous, the one in companion case R. v. Williamson split 6-3 on the matter of societal interest.
This case dealt with historical sex offences against a minor. The trial lasted 35 months — above the presumptive ceiling — leading the majority at the SCC to uphold the appeal court decision to stay the proceedings on constitutional grounds.
The conviction, moreover, could not be saved by an argument for exceptional circumstances. The decision, also written by Moldaver, Karakatsanis, and Russell, states:
“Although W did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay, and W was reasonably proactive in attempting to move the matter along. Therefore, while the crimes committed by W are very serious, the balance weighs in favour of his interests in a trial within a reasonable time, over the societal interest in a trial on the merits.”
Justice Thomas Cromwell offers dissent on this point (with justice Richard Wagner and Clément Gascon concurring). In his dissent, he argues that the gravity of the allegations may create pressure on the justice system that contributes to the delay:
“The new framework does not permit the sort of balancing of interests that is inherent in the concept of reasonableness,” he writes. “In this case, staying these charges would be more publicly disreputable for the administration of justice than tolerating an inordinate trial delay.”
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An Ontario Superior Court judge has found an Oakville lawyer inappropriately borrowed from his client and produced a document in court that was “likely not genuine.”
In Wedlake v. Richey, Justice Douglas Gray granted a part summary judgment against Jeffrey Richey in a dispute with his client, Frances Wedlake, over unpaid debts the lawyer amassed.
Under the Law Society of Upper Canada’s Rules of Professional Conduct, lawyers are not permitted to borrow from a client, unless that client is a relative or financial institution.
“There is no dispute, and indeed Mr. Richey’s counsel acknowledges, that Mr. Richey violated one or more of these rules,” Gray wrote in the decision.
Lee Akazaki, of Gilbertson Davis LLP, says that the prohibition against borrowing exists so that lawyers will not have their ethics compromised by such an agreement.
“Somebody who has so lost his moral compass as a lawyer to have crossed not just one but I think perhaps three red lines that are important to our professional integrity, he should not be practising law,” he says.
In July 2007, Richey and his wife borrowed $75,000, which was secured against their home, from his client Frances Wedlake, a real estate agent, according to the ruling.
Jeffrey then registered a discharge of the mortgage, something Wedlake denies she had any knowledge of until recently.
He then borrowed a further $130,000 from Wedlake in Aug. 2013, the ruling said.
Richey argued that the loans had been defrayed by legal services he had presented her, but Wedlake disputed that such an understanding existed.
In court, Richey submitted an Acknowledgement and Direction document, which was supposedly signed by Wedlake and authorized the discharge of the mortgage.
Wedlake swore she did not sign the document and said while it was demanded in February, Richey did not produce the document until May, when an order of the court required it.
“The Authorization and Direction purporting to authorize Mr. Richey to register a discharge of the mortgage must be viewed with considerable suspicion,” Gray wrote.
“On a balance of probabilities, I am persuaded that the document is not genuine,” he added.
Richey’s lawyer, Fabio Gazzola, argued that the facts of the case are in conflict and that the matter should go to trial.
Gazzola also maintained that while “the arrangement between Ms. Wedlake and Mr. Richey was somewhat unusual,” it could be explained by the “informal, friendly relationship the parties had for many years.”
He also contended that Richey did not send any bills to Wedlake while conducting legal services for her.
Furthermore, Gazzola said it could not be determined whether the Acknowledgement and Direction document was actually a forgery without a trial.
Gray, however, determined summary judgement as appropriate, citing Hyrniak v. Mauldin, a Supreme Court decision that expanded the use of summary judgment.
“He has provided virtually no records, including dockets, to support his position that legal services were provided or that they had any value,” Gray wrote. “There is no reason to think better evidence would be available at trial.”
Gray ruled that Richey did not comply with his fiduciary obligations and that the mortgage discharge was improperly registered.
Richey is also facing disciplinary proceedings at the Law Society of Upper Canada for allegations he engaged in professional misconduct. The hearings for those proceedings began in May, but the law society could not confirm if they were related to Wedlake’s claim.
“In this case, a solicitor borrowed money from his client. With respect to one of the loans, a mortgage on the solicitor’s home was given,” Gray wrote.
“Disputes have now arisen as to whether the loans have been repaid, and whether the mortgage was properly discharged. To describe the dispute as unseemly would be an understatement.”
When reached for comment, Richey said he is looking to appeal the decision.
Wedlake and her lawyer, Robert Watson, refused to comment on the ruling.
Tax lawyer Philippe DioGuardi’s professional misconduct hearing may have ended last year with a six-week suspension and a $5,000 fine, but the lawyer remains in a legal wrangling with the Law Society of Upper Canada over the regulator’s handling of confidential client information.
Yesterday, the Ontario Court of Appeal rejected DioGuardi’s constitutional challenge of the Law Society Act. DioGuardi and his father Paul, who is also his law partner, had argued the act leaves highly sensitive client information vulnerable to public disclosure during law society investigations.
Last year, in the midst of an investigation into their practices, the DioGuardi lawyers went to the Superior Court to get an order protecting confidential information belonging to clients who have lodged complaints against them. The lawyers, who act for clients dealing with the Canada Revenue Agency, were concerned that if client information becomes public (and known to the CRA) through the law society proceedings, some of those clients may face criminal prosecution.
The DioGuardi lawyers also argued that the law society should obtain a written waiver of solicitor-client privilege from complainants, perhaps in the form of a notice on the complaint form that complainants’ information may become public.
But the lower court had declined to intervene, adding it would not get involved in administrative proceedings “absent exceptional circumstances.” And yesterday, the court of appeal agreed. “Our conclusion on this issue is simple: we agree with the application judge’s conclusion and with his reasons in support of the conclusion,” said James MacPherson, who wrote on behalf of the three-judge panel.
Philippe DioGuardi, who was convicted of taking payment before doing little or no legal work and failing to serve clients to “the standard of a competent lawyer,” told Legal Feeds his challenge at the court of appeal was not about his case.
“It’s about protecting the public. Who cares about me?” he says.
DioGuardi says the issue is that the law society has the double duty of protecting the public and protecting complainants’ privileged information. “There are times when these two duties are in conflict and that’s when you have a problem,” he says.
Although the regulator has processes in place to protect confidential information, “the law society is not perfect,” DioGuardi also says, adding complainants should know there’s a chance their information might end up in the hands of the public or the CRA during the law society’s investigative process.
Part of the DioGuardis’ argument was that the legislative scheme in the Law Society Act related to the Law Society of Upper Canada’s investigation powers violates the Charter ss. 7 and 8 rights of the complainant clients.
In its brief written decision, the court of appeal quoted Superior Court Justice Edward Belobaba, who said the application was premature and the issue should first be decided at the law society.
“In short, there is every good reason to allow the administrative process in this case to run its course,” Belobaba said. “The Law Society Tribunal should be allowed to decide at first instance whether the constitutional arguments advanced herein are well-founded and, in particular, whether there is any room in the legislative design and policy of the act for the specific client-focused protections being sought by the applicants.”
But DioGuardi says client information is at its most vulnerable in the timeframe between when a complaint is made to the law society and a formal hearing starts before a tribunal. If and when law society investigators request documents from the CRA in relation to a complaint, DioGuardi says they may well raise eyebrows at the agency, which may then reexamine the clients associated with the lawyer being investigated.
At that point, “there’s no tribunal yet; it’s just an investigation,” DioGuardi says. “How’s the tribunal going to fix the genie once it’s out of the bottle?”
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It’s a tale that reads a little like the plot to the popular legal drama, Suits, in which the affable former investment banker Mike Ross finds his way into the halls of big law without the appropriate credentials.
In a Solicitors Regulation Authority decision issued today in the U.K., a regulatory settlement agreement outlines how Michael McCooe, at one time employed at McCarthy Tétrault LLP’s London office in 2011, has agreed to removed himself from the Roll of Solicitors.
McCooe, who now lives in Switzerland, had submitted a resume to McCarthy’s in 2011, which he also gave to an employment agency. It stated that he had been admitted to professional bodies in Australia in 1980, Ireland in 1989, France in 1991 and Switzerland in 1993.
It also indicated he held an LLM in competition law from King’s College, London, a PhD in international competition and trade from the University of Zurich, and a doctorate in international competition law from Trinity College in Dublin.
In fact McCooe had not been admitted to any professional bodies in Ireland, France or Switzerland — he had only practised law there. He also does not hold any qualifications from Trinity College or the University of Zurich.
He does hold a post-graduate diploma in EC law from King’s College in London but does not have an LLM from that institution.
He began his career as a solicitor in 1991 and worked in-house as well as on his own from 1996 before joining McCarthy’s in 2011.
In 2013 McCarthy Tétrault announced McCooe had been hired by the government of Colombia to advise on a long-time maritime border dispute between Colombia and Nicaragua. In a press release it stated that McCooe would “… act as international counsel and global strategist to the Republic of Colombia, working with President Juan Manuel Santos and Foreign Minister Maria Angela Holquin.”
The firm described him as “among the most experienced and respected lawyers practising in international affairs in the world.”
The regulatory decision issued today states: “Mr. McCooe does not now remember how the inaccuracies arose on his CV. However he accepts he is responsible for them.”
He admitted that he “was aware of, but failed to correct, false and inaccurate details contained within the CV that he knew or ought to have known would be misleading to others.”
“His recollection is that his employer did not rely on the CV when offering him a job, and he did not realise that his employer would include incorrect details in its publications.”
When he realized that the firm was using the information from his CV he alerted them and made sure they were removed.
In March 2014 McCooe resigned from the firm. He does not currently hold a practicing certificate.
When it comes to vetting resumés, organizations must be diligent when looking at talent, says Emily Lee of ALT Recruitment Partners Inc.
“It is unfortunate, but even the legal profession — one of the most trusted professions in the world — has its outliers,” says Lee.
“In addition to comprehensive reference checks and law society verification, which should always be conducted, there are many other tools on offer including credit, criminal and education checks. Often the decision to use these tools comes from a gut feeling.”
McCooe admitted he was dishonest and indicated he will remove himself from the Roll of Solicitors in the next 28 days.
He also agreed to pay the SRA’s costs in the sum of about $3,000.
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The national director of Pro Bono Students Canada will use a fellowship to look at how legal coaching may help self-represented litigants tackle their legal problems.
|Nikki Gershbain is one of the recipients of the Law Foundation of Ontario’s Community Leadership in Justice Fellowships.|
Gershbain will be partnering with Dr. Julie Macfarlane at the University of Windsor’s Faculty of Law. As part of her fellowship, the LFO said Gershbain will create “teaching tools for a new model of legal service delivery called legal ‘coaching.’”
“I think that we’re looking at self-represented litigants because really, they are the manifestation of so many of the problems that we’re seeing in the justice system. When we as a profession start to look at these alternative models of service delivery, it’s because so many people are self-represented,” says Gershbain.
“The vast majority [of people] who self-represent don’t necessarily want to be in that situation. They would prefer to be represented by counsel but they don’t have the resources to be able to afford it, or they were represented by counsel, but they ran out of resources.”
Gershbain said there are “huge massive numbers of ordinary Canadians who cannot afford to access justice,” and this impacts the greater justice system.
“Self-representation is not only onerous for the person who’s going through it, but it also is a burden on the court system, so issues take longer to resolve, they’re harder to settle, and I think, significantly, it means higher costs for the person who is represented, so if you’ve got one person who’s represented and one person who isn’t, you’re also placing…a burden on that person for no fault of their own, necessarily.”
For Gershbain, developing legal coaching is part of the unbundling trend. The lawyer’s job in the coaching model is to “set the client up for success,” she says.
“[T]he lawyer is there to guide the client through the process, teach the client what he or she needs to know to get through the process, and to empower the client to be able to get through it on their own,” she says.
Gershbain likens legal coaching to what a coach does in sports, where a coach “brings out the very best” in an athlete. She says ideal clients for coaching would have high levels of literacy and comprehension, an openness to being coached, and self-motivated and self-directed. However, she says coaching is not “the right solution” for everyone.
“Part of the teaching and the training of lawyers is to think about who are the clients out there who would be appropriate to be coached,” she says.
Brenda Young, community justice director for the Chippewas of the Thames First Nation, in southwestern Ontario, is also a fellowship recipient.
Young’s fellowship, with Western University’s Faculty of Law, will target “the connection between international and domestic legal frameworks on the human right to economic justice for Indigenous people and how these can be translated and applied to achieve economic justice locally,” according to a LFO news release.
Sarah Pole, executive director of Law in Action Within Schools, will look at urban inequity as part of her fellowship. The LFO said she will “research and build connections among the education, legal, and urban planning sectors to explore how our physical environments impact diverse youth, their education, and their ability to engage as citizens in issues that matter to them.”
Through the fellowship, organizations can receive up to $50,000 to cover the cost of filling the role of the fellow, or supporting the organization, while the fellow’s work is underway.
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