Legal Feeds Blog
This week, the Supreme Court of Canada will begin its winter session of hearings. The court will get off to a busy start with six appeals including: an extension request for the assisted dying legislation; the right to engage with regulatory bodies; minimum sentences for drug offences; burden of proof in workers’ compensation claims; the cumulative value of circumstantial evidence; and the “mistaken belief” defence in sexual assault cases.
Jan. 11 – British Columbia – Carter v. Canada
Charter of Rights: Last year, the SCC ruled in favour of Lee Carter, who joined with others in challenging provisions in the Criminal Code against assisted suicide and euthanasia. The court issued a suspended ruling that required Parliament to draft constitutionally sound law by February. The SCC will review federal lawyers’ request for a six-month extension.
Read the SCC decision
Related news stories:
Supreme Court rules Canadians have right to doctor-assisted suicide, The Globe and Mail
Jan. 12 – Alberta – Ernst v. Alberta
Charter of Rights: Jessica Ernst sued EnCana Corp., the Alberta government, and the respondent Energy Resources and Conservation Board, alleging that EnCana’s hydraulic fracturing has polluted the aquifers feeding her water supply and that the province and its regulators failed to protect the environment. Ernst also alleges the board refused to accept communications from her as long as she issued public criticisms in the media. On appeal, Ernst argued the board, by attempting to censor her comments, breached her freedom of expression. The appeal court, however, found the board was granted statutory immunity from such charges. The SCC will review the parameters of that immunity.
Read the Alberta appeal court decision
Related news story:
Court won’t let Alberta quash landowner fracking lawsuit, Calgary Herald
Jan. 13 – British Columbia – Lloyd v. R.
Charter of Rights: The appellant was convicted of drug possession for the purposes of trafficking. The sentencing judge found that provisions within the Criminal Code mandating a minimum sentence of one year constituted cruel and unusual punishment, and found the legislation to be of no force and effect. On appeal, the sentencing decision was set aside. The SCC will determine whether the mandatory minimum breaches the Charter of Rights.
Read the British Columbia Court of Appeal decision
Related news story:
Judges won’t hear challenge of mandatory minimums, The Globe and Mail
Administrative law: The tribunal’s appeal involves the case of three laboratory technicians who contracted breast cancer and applied to the Workers’ Compensation Board for benefits. The tribunal found that the technicians had met the burden of proof in establishing a causal connection between their employment and their medical conditions. On appeal, however, the court determined the evidence was insufficient. The SCC will decide whether the tribunal is required to find a sufficient causal connection or whether any causal connection will do.
Read the British Columbia Court of Appeal decision
Jan. 15 – Alberta – Seruhungo v. R.
Criminal law: The appellant was originally acquitted of a manslaughter charge, after the trial judge found the Crown’s key witness to be unsavoury. The Crown acknowledged this and entered 19 items of corroborating evidence. The trial judge reviewed each piece independently, not cumulatively, and found them to be of no confirmatory value. The trial judge, in addition, refused to allow text messages to be entered into evidence, deeming them hearsay. On appeal, the court found the trial judge to have erred and ordered a new trial. The SCC will review the scope of confirmatory evidence in such cases. A publication ban is in place.
Read the Alberta Court of Appeal decision
Related news story:
New trial for accused Edmonton killer, Edmonton Sun
Jan. 15 – Alberta – Spicer v. R.
Criminal law: The appellant was accused, along with his two friends, of sexually assaulting a woman in the park. He was acquitted at trial after presenting evidence from a police interrogation where he claimed the woman was heavily intoxicated and invited the encounter. The acquittal was quashed and a new trial ordered after the appeal court determined the accused had not taken reasonable steps to assure the victim was consenting. One judge offered a dissenting opinion, suggesting there was reason to conclude the accused had mistakenly inferred consent. The SCC will review the “mistaken belief” defence. A publication ban is in place.
Read the Alberta appeal court decision
Related news stories:
Serious police discipline cases often handled in secret, The Toronto Star
Police investigate shooting death of man in Ottawa, Canadian Press
Fredericton transit workers vote to strike, Canadian Press
The Supreme Court of Canada’s winter session kicks off next week, with hearings that deal the usual assortment of criminal and business matters, and the occasional Charter challenge. This season, the top court is focusing on procedural and evidentiary issues, although there are plenty of high-profile criminal appeals on the schedule.
First order of business this session is a request by federal lawyers’ to extend the 12-month deadline for assisted-suicide legislation after the landmark Carter ruling of February of last year. Opposing them is the British Columbia Civil Liberties Association, which is arguing that an extension would punish patients suffering with intolerable conditions.
Also in the first week, the SCC will be reviewing the value of cumulative evidence in Seruhungo v. R. The appellant here was originally acquitted of manslaughter, after the trial judge assessed the independent value of 19 pieces of corroborating evidence. The Alberta appeal court ordered a new trial after finding that, despite their being no single piece of conclusive evidence, the cumulative value of all the corroborating evidence should have been taken into account.
On Jan. 18, the top court will wade into the murky waters of judicial independence, and the compensation of judges. The applicants in Conférence des juges de paix magistrats v. Quebec are justices of the peace who argue that new provisions under the Courts of Justice Act that reduce their compensation have the effect of compromising judicial independence.
Another Quebec-based legal-industry case will be heard on March 24, in Chambre de l’assurance de dommages v. Aviva Insurance. Here, the appellant is a regulator that was pursuing an ethics inquiry against a claims adjuster. The respondent, however, used solicitor-client privilege to withhold certain documents. That leaves it up to the SCC to determine whether the relevant provincial legislation affords such protections.
Overstepping their authority?
In March, the court will be hearing arguments for a couple of peculiar cases where the courts and regulators may have crossed the line.
The first, set for March 23, is Edmonton v. Capilano Shopping Centres. A shopping mall challenged its tax bill of $31 million and was upwardly reassessed for $41 million. On appeal, the court found the City of Edmonton had gone beyond its authority to review the appeal and instead “cross-appealed” its own assessment. The decision will no doubt have huge ramifications for business.
The second, a case out of British Columbia, Anthony-Cook v. R., involves a manslaughter conviction wherein the defence and Crown made a sentencing deal for 18 months with no probation. The judge, however, rejected the joint submission and imposed a sentence of 24 months with three years’ probation. The Supreme Court will review the test that should be applied when deciding whether to accept such a plea deal.
Sex, violence, and privacy
The SCC will also be called upon to rule on a few criminal cases that will be sure to polarize public perceptions.
In Spicer v. R., set for Jan. 15, the court will review the contentious “mistaken belief” defence for sexual assaults. The case involves a man who was convicted of sexual assault, but argues the victim was heavily intoxicated and invited the encounter. The SCC will review whether the mistaken belief of consent is a legitimate defence.
Finally, on Feb. 24, the SCC will weigh privacy against the public interest in a child pornography case emanating from Alberta. In R. v. Villaroman, the respondent was convicted after he brought his computer into a repair shop, where the technician stumbled upon the illicit content. Here, the SCC will determine whether Charter protections are applicable in such circumstances.
The Canadian Judicial Council has been forced by the Alberta Attorney General Kathleen Ganley to launch an inquiry into Federal Court Justice Robin Camp’s conduct during a 2014 sexual assault trial.
|Complainant Elaine Craig says Ganley’s actions are welcome in ensuring a more efficient investigative process of the judge.|
“I think her decision is a positive development because it will make the process more efficient,” says Elaine Craig, an assistant law professor at Dalhousie University and one of four law professors who filed the initial complaint to the CJC after reading Camp’s ruling in R. v. Wagar.
She says she was pleased to hear Ganley’s decision to step up the inquiry because of the potential harm to public perception of the judicial system.
“I think it’s warranted under the circumstances,” says Craig.
“The reality is sexual assault complainants continue to report a fear of the criminal justice process. Cases like R. v. Wagar, and the now well-known statements made by Camp in that proceeding, most certainly do not help to alleviate this problem.”
Craig and her peers filed a complaint with the Judicial Council against Camp for his comments during the 2014 Provincial Court of Alberta trial in which a 19-year-old woman accused a Calgary man of sexually assaulting her during a house party. Their complaint states Camp was contemptuous of sexual assault laws and rules of evidence, going as far as to ask the complainant “why couldn’t you just keep your knees together” and why she didn’t explain to the court better “why she allowed the sex to happen if she didn’t want it?”
Camp acquitted the accused following the trial, but that decision was overturned on appeal.
The appeal court ruled Camp’s comments gave rise to doubts about his understanding of the law governing sexual assault, the meaning of consent, and restrictions on evidence of a complainant’s sexual activity.
By the time the appeal ruling had been released last fall and the issues came to public light, Camp had been promoted to the Federal Court. He has since been barred from hearing any matters until the inquiry is complete and was ordered to take sensitivity training.
“As we wrote in the complaint, our review of the transcript in R. v. Wagar led us to the conclusion that this was conduct that would warrant removal,” says Craig. “It will be up to the inquiry panel to decide, based on all of the information, whether they agree.”
Camp issued an apology in November, following the announcement by the Federal Court he was to undergo the training, stating.
“I have come to recognize that things that I said and attitudes I displayed during the trial of this matter, and in my decision, caused deep and significant pain to many people. My sincere apology goes out, in the first place, to the young woman who was the complainant in the matter,” he said.
The CJC says federal Justice Minister Jody Wilson-Raybould has been invited to designate one or more lawyers to the committee that will otherwise be comprised of judges who are members of the council. The council says the committee’s composition will be made public once it is in place. The hearings will be public.
OPP investigates two separate pedestrian fatalities, Canadian Press
Halifax man faces impaired-driving charge after head-on crash, Canadian Press
There’s little chance an escalating dispute between Ottawa and the federal courts of this country — about IT procurement, of all things — will ever find its way into a courtroom, despite the Supreme Court of Canada’s threat to directly challenge the constitutionality of the policy if it isn’t reversed.
|Mark Freiman says, 'It’s highly unlikely that this will go any further.'|
Exemptions were created for watchdogs like the auditor general, privacy commissioner, and information commissioner. The highest courts in the land, however, were not afforded such an exemption — an omission some legal observers (who declined comment) are calling an intentional snub by the judicially combative former government.
Now, according to documents uncovered via access-to-information laws and reported yesterday by the Canadian Press, a number of federal courts — including the Federal Court, the Federal Court of Appeal, and the SCC — are presenting a united front against a policy they say undermines judicial independence.
On Thursday afternoon, the Supreme Court released the following statement. "The application of Order in Council PC 2015-1071 to the Supreme Court of Canada became a matter of concern to the Court before its entry into force in September 2015. The Registrar of the Supreme Court of Canada and other Court officials met with Department of Justice officials and others to explain the concern and emphasize the need to preserve the Court’s administrative independence from government. The Court was encouraged by the federal government’s response and is expecting a satisfactory resolution of the issue shortly."
Mark Freiman is a litigator at Lerners LLP who, as a former deputy attorney general in Ontario, has direct experience with judicial brinksmanship. Despite all the bluster, Freiman says we’re unlikely to see a constitutional challenge. What will probably happen, he says, is the new Liberal government will simply reverse the policy.
“It’s highly unlikely that this will go any further,” says Freiman. “At first instance, all of this is conducted on an administrative level, with administrators talking to administrators. And then the judges get wind of it, and they become concerned, and they talk to the administrators. I think by the time this gets up to a decision at the political level — I would be surprised, but I’ve been surprised before.”
Whether a challenge is forthcoming or not, Freiman says the courts are appropriately defending their judicial independence, given the importance of information technology in the judiciary. The sensitive nature of information handled by the courts, he says, requires a custom approach to IT procurement — not the generalized approach of a bulk purchaser — and that’s both for the sake of functionality and security.
Perhaps more to the point, a policy that gives government the authority to make financial and administrative decisions on behalf of the courts could, in theory, give the Crown an advantage in litigation, or create a perceived conflict of interest where a judge’s decision may be influenced by procurement interests.
“Now, that’s hardly likely to happen, but the appearance that the government has a hold over judges is an important component of judicial independence,” says Freiman.
“The government is a litigant . . . and as a litigant, it is subject to the rule of law, which means that it has to be equal before the court both in fact and in appearance. If it appears that the government has an advantage over an ordinary litigant or that it is holding something over the judiciary, that undermines the appearance of judicial independence.”
If a constitutional challenge did proceed, Freiman says the optics could be “undesirable.” The motion would be initially brought by a court administrator or a judges’ association, with federal judges named as plaintiffs, but any appeal would end up at the Supreme Court of Canada, where the high court would be forced to invoke the “doctrine of necessity” to rule on an issue in which it is has a direct stake.
“The court has [in the past] invoked the doctrine of necessity, saying we don’t like to do this but there’s no one else who can do it, so we have to sit in judgment, even though we are affected by it,” says Freiman. “It would be highly undesirable as an optical matter for that to happen, but I don’t know how it can be avoided.”
Update 5:20 pm: Statement from the SCC added.
Assisted-dying committee still needs members, Canadian Press
A new leadership team under a new management model will steer McMillan LLP in the direction of greater innovation, says the law firm.
|McMillan’s new executive committee (l to r): Tim Murphy, Stephen Wortley, Teresa Dufort, and David Dunlop.|
Litigation partner Teresa Dufort is the CEO of the four-member executive committee, which includes lawyers David Dunlop, Tim Murphy, and Stephen Wortley. Dufort, who is also a co-leader of the firm’s product liability defence and regulatory group, says her team has been working together extensively over the past year to develop new ideas for doing business.
The firm’s longtime CEO Andrew Kent, a restructuring and insolvency partner, will return to full-time practice.
“Innovation is a focus of the firm. It’s something that we’re independently developing,” says Dufort, adding McMillan is looking at various ways it could be innovative in its service delivery.
One of those is using technology to create a platform where lawyers can collaborate on the different kinds of work they’re doing for clients, explains Dufort. Such a platform would also allow clients to easily manage all of work the firm is doing for them.
Another priority is developing a cost-and-margin analysis model that would allow the firm to do a better job of coming up with proposals for alternative fee arrangements. This means McMillan’s lawyers would be able to tell their clients they understand what the cost of doing business in a law firm is, “which is something a lot of law firms don’t understand, I think,” says Dufort.
Although McMillan has six offices, the idea is to use “the one-office concept” when it comes to client service, she adds.
“Instead of being office-centric, which is the way I think a lot of national firms that have multiple offices can be, our thought was it would give us a lot of ability to draw from a much broader expertise in order serve clients if you could pretend that there was no geography between us,” Dufort continues.
Murphy says the legal marketplace now demands the kind of creativity and expertise that cannot be restricted by geographic boundaries.
“McMillan believes increasingly complex legal challenges require innovative and sophisticated legal solutions that are best delivered without regard to geographical or practice area boundaries through a combination of collaboration, strong project management, and technology,” he says.
Dufort says McMillan’s clients have successfully used the collaborative leadership model. “We thought it works for our clients, why wouldn’t it work for yourselves?” she says.
- Two ‘unapologetic feminists’ launch new litigation boutique in Halifax
For years, Nasha Nijhawan dreamed of starting her own business — she just wasn’t always convinced it would be a law practice with her name on the door.
|Kelly McMillan and Nasha Nijhawan have launched a litigation boutique in Halifax.|
“After moving to Halifax where the market is so different it dawned on me I could stay in the law, which I absolutely love. You don’t have to follow a traditional path and join a firm and become a partner as the only way to be successful in this industry.”
On Monday, Nijhawan and her partner Kelly McMillan launched Nijhawan McMillan Barristers on Maitland Street in Halifax.
The two women first met at Halifax boutique firm Pink Larkin. Prior to that Nijhawan was at Toronto’s Paliare Roland Rosenberg Rothstein LLP where she worked on class action litigation.
About a year and a half ago Nijhawan returned to Halifax, where she had attended law school at Dalhousie University, and met McMillan.
“Working together we discovered we have a set of skills that makes us a pretty effective team,” says McMillan who graduated from McGill law and is focused on employment, human rights ,and aboriginal law.
“It was Nasha’s long-time dream to start her own firm and when she did, I saw it as a good time for me personally to join her and take the risk and a new challenge.”
Nijhawan started a sole practice last fall and a few months later McMillan decided to join her.
Today the duo also announced they are lead counsel representing Abortion Access Now PEI in the challenge to Prince Edward Island’s abortion policy. It was something they started as a pro bono project at Pink Larkin.
“It’s the case that really brought the two of us together as lawyers and gave us the opportunity to discover we have really complementary skills and in how we approach cases. We have different strengths in the way we approach litigation that makes us as a team very strong,” says Nijhawan.
Their Twitter account bio describes Nijhawan McMillan Barristers as a “litigation boutique in Halifax with a special interest in equality issues. Run by two unapologetic feminists who love the law.”
“We are both dedicated feminists and have a really deep interest in equality issues and one of the interesting things for us in starting a firm is the ability to apply that lens to all sorts of cases,” says Nijhawan. “With the case in P.E.I. that’s a straight up constitutional challenge and a women’s rights issue on Charter grounds.”
But the desire to pursue equality issues doesn’t encompass everything they do. Their practice is largely focused on employment law, and corporate and institutional clients in civil, criminal, and administrative law.
“The reason equality is so prominent in our Twitter account is because Twitter is that place where you express views and personality but it’s not an all-encompassing description of the work that we do,” says Nijhawan.
Nijhawan focused on corporate-commercial litigation in Toronto but became interested in criminal law when she returned to Halifax.
“I had an interest in criminal law but in my first five years of practice had no exposure to it until I came to Pink Larkin where I had the benefit of junioring for Joel Pink, who is a wonderful mentor and teacher and he sparked that interest for me and we did some big trials last year.”
Nijhawan says she has enjoyed every aspect of launching the practice — from setting up a cloud-based management system with a goal to having a paperless office, to designing their web site, and giving thought to their own personal beliefs around access to justice.
The firm web site has a fee page indicating it offers flexible billing structures and a one-hour flat fee consult on any case for $100 plus tax.
“It’s not common to have a fee page on a web site. It’s not always the fairest thing to do to charge an hourly rate. I believe it’s part of my ethical responsibility to promote access to justice and this is the way to do it if you’re in private practice,” says Nijhawan.
“The mystique around hiring a lawyer is a real problem. We wanted to offer the ability for someone to just come and speak to us for an hour for whatever they have to talk about for a fee that is fair for our times and manageable.”
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