Legal Feeds Blog
A well-recognized Canadian judge has another accolade on her list of accomplishments — the fact she’s now been named the global jurist of the year by Northwestern University.
|Justice Rosalie Silberman Abella will speak about international law when receiving an award in Chicago later this month.|
Previous recipients include Gloria Patricia Porras Escobar of the Guatemalan Constitutional Court, Justice Shireen Avis Fisher of the Special Court for Sierra Leone, and Acting Chief Justice Dikgang Moseneke of South Africa’s Constitutional Court.
“Justice Abella has long been recognized internationally as one of Canada’s foremost jurists,” said Adam Dodek, a law professor at University of Ottawa. “This award confirms that long and widely-held view.”
The award is on behalf of the Northwestern Pritzker School of Law’s Center for International Human Rights.
“Justice Abella’s extraordinary personal story and her outstanding professional achievements really make her a compelling figure, someone who is well-worthy of this honour and someone who we are very excited to welcome to Northwestern Law School to have the chance for our students and faculty to interact with her, and hear from her,” says Juliet Sorensen, the centre’s Harry R. Horrow Professor of International Law, who was part of the four-person selection committee who chose Abella for the award. Sorenson says Abella was nominated for the honour.
Abella —who graduated from University of Toronto with a bachelor of arts and a law degree — will speak on January 25 at Northwestern about whether international law has kept up with the world.
“Abella is a pioneer in many ways. She is the first Jewish woman and the youngest person ever appointed as a judge in Canada,” said the news release from Northwestern announcing the award. “She also is the first Jewish woman appointed to the country’s Supreme Court.
Born in a displaced persons’ camp in Stuttgart, Germany, in 1946, Justice Abella is the daughter of two Holocaust survivors.”
A biography on the Supreme Court of Canada’s website notes Abella was appointed to the Ontario Family Court in 1976, and the Ontario Court of Appeal in 1992. She joined the Supreme Court in 2004.
“She was the sole Commissioner of the 1984 federal Royal Commission on Equality in Employment, creating the term and concept of ‘employment equity,’” says the biography. “The theories of ‘equality’ and ‘discrimination’ she developed in her Report were adopted by the Supreme Court of Canada in its first decision dealing with equality rights under the Canadian Charter of Rights and Freedoms in 1989.”
Eugene Meehan, a lawyer at Supreme Advocacy in Ottawa, said Abella is well-known for various decisions, including the recent SCC decision in Daniels v. Canada (Indian Affairs and Northern Development), where Meehan said Abella “wrote the unanimous judgment of the Court that government is to constitutionally recognize the rights of Métis and non-status Indians.”
“Justice Abella is now the second most senior judge on the court,” said Meehan. “Though some try to peg her as being of this or that school of thought, on this or that issue, the reality is she’s a chameleon that’s able to muster majorities among different groups of allies – yet still feel strongly enough on issues of importance to her to write the lone wolf dissent.”
Nurse accused of killing seniors faces six new charges, Canadian Press
The Law Society of British Columbia has recently discontinued a pilot project which allowed designated paralegals to appear in court. However, that doesn’t mean the LSBC has given up plans to regulate paralegals; legislating the provision of legal services by non-lawyers is still very much on the plate, says LSBC president Herman Van Ommen.
|“I think the profession here didn’t know what they could do with paralegals” in court, says Herman Van Ommen.|
The paralegals-in-court pilot project, which ran from January 2013 until autumn 2015, was part of the LSBC’s “access to justice” initiative. During this pilot project paralegals could independently make procedural appearances in court, for example, and book dates. However, only three members of B.C.’s 1,300-strong bar sent paralegals to court in their stead; this may be because paralegals are less commonly used in B.C. than in a jurisdiction such as Ontario, where about 7,500 paralegals are licensed by the Law Society of Upper Canada.
“I think the profession here didn’t know what they could do with paralegals” in court, says Van Ommen.
However, he stresses, the LSBC’s designated paralegal program continues. In 2013, 345 B.C. lawyers supervised designated paralegals (at a maximum of two per lawyer), and in 2015, 647 did so, says Van Ommen.
The LSBC defines a “designated paralegal” as “a paralegal who can perform additional duties under a lawyer’s supervision” such as giving legal advice to clients and appearing before tribunals, as permitted, or at family law mediations.
The title “designated paralegal” does not affix to the paralegal as a right, and the title does not transfer with the paralegal from job to job or from supervising lawyer to supervising lawyer, according to the LSBC’s website. “Designation is an active process by the supervising lawyer. Even if a lawyer has a designated paralegal, the role requires consideration on a case-by-case basis as to whether a particular matter is suitable to delegate to the designated paralegal.”
“We’ve given lawyers the authority to allow paralegals to do more than they could in the past,” Van Ommen explains, which is expected to lead to the regulation of paralegals. “The [B.C.] government has been very cooperative [and] supportive, and so we anticipate having legislation that will enable us to regulate and create classes like paralegals. Washington state has done something similar [and] we’ll be looking at Ontario when it comes to setting up classes of legal service providers. Ontario has a long history of this,” having been the first jurisdiction in North America to regulate paralegals, in 2007.
Regulation of paralegals, whose fees are much lower than those of lawyers, is “an important component” of access to justice for B.C. residents, says Van Ommen.
“We intend to proceed on that project,” he says: “the creation and regulation of paralegals. Anyone can call themselves a paralegal now . . . We want to create a class of legal service providers that may be called paralegals, with set-out scopes of practice and education requirements.
“Most of the existing paralegals will always remain working under the supervision of lawyers,” he adds. However, “when we create these classes [of legal service providers], hopefully some will take the education and do a lot more.”
The gap between the number of Canadian youth in pre-trial detention versus those in sentenced custody has once again begun to widen.
|Source: Statistics Canada|
“Certainly we are concerned about the fact that the numbers are higher for remand custody than for an actual custodial sentence,” says Samira Mobina Ahmed, litigation lawyer at Justice for Children and Youth in Toronto, adding however that the gap looks pretty narrow.
“That’s an indication that judges are using the right factors as outlined in the Youth Criminal Justice Act for when detention can be used — as a measure of last resort, so it should be that there is a small discrepancy.”
The study, titled Trends In The Use of Remand in Canada, 2004/2005 to 2014/2015, documents the results of four surveys — the Corrections Key Indicator Report for Adults and Youth, the Adult Correctional Services Survey, the Youth Custody and Community Services Survey and the Integrated correctional Services Survey — when it comes to use of remand in Canada. The first survey offered average counts data while the remaining three were used for data on admissions. The analysis doesn’t include federal correctional service data, as it does not supervise remand, or people held in ‘temporary” detention such as immigration holds.
The Criminal Code allows for detention prior to a finding of guilt “to ensure attendance in court; for the protection and safety of the public, including any victims of or witness to the offence; and to maintain public confidence in the justice system,” says the report.
While the number of youth arrested and sentenced overall, as reported by 12 provinces and territories, has declined over the years — with remand count in 2014/2015 down 33 per cent from 10 years ago and the number of youth in sentenced custody made an even larger drop of 60 per cent — this is chalked up to a drop in young people entering the system at all. The number of young people charged with a crime fell 46 per cent nation-wide, but statistically, of those arrested, time spent by youth in pre-trial detention did not change that much over the same time period.
“The numbers are on the decline, which is a good thing. Hopefully this is a reflection of the appropriate application of the YCJA,” says Ahmed. “The sentencing principles allow for there to be lots of discretion on the part of the judge to determine what the appropriate sentence is. Specifically for pre-trial detention, it shouldn’t be used as a substitute for mental health, social or child welfare needs and I think that’s still something courts struggle with which could account for any widening in the gap that you see from time to time.”
In 2014/2015, more than 81 per cent of youth released from remand in the nine jurisdictions that reported figures spent one month or less in pre-trial detention, a “proportion unchanged from 10 years earlier.” Over half of those remanded were there for one week or less — up slightly to 56 per cent from 53 per cent in 2004/2005.
In 2014/2015, and in the eight jurisdictions where information was available, Aboriginal youth made up 36 per cent — or more than one-third — of youth admissions to remand custody. This is five times their representation in the general population. In 2004/2005, this percentage was much lower at 21 per cent. Aboriginal young people in sentenced custody was also disproportionally higher.
“Our office is very concerned about the high percentage of aboriginal young people that are before the courts,” Ahmed says, noting she is unable to, based on the data provided, comment on whether this is an indication that the Gladue Principles aren’t properly being applied in the youth criminal justice context but adds “that’s certainly something we would want to make sure was at the forefront of all consideration for youth that were before the youth courts.”
For the adult population, the report doesn’t have any good news. Across the country, provinces and territories saw the adult remand number rise between 2004/2005 and 2014/2015. Nova Scotia, Northwest Territories, Manitoba and Alberta each saw over 100 per cent increases in average daily counts.
In 2014/2015, compared to 10 years earlier, the number of people in remand has grown almost six times more than the number in sentenced custody, increasing 39 per cent over the last decade while the number in sentenced custody increased seven per cent.
One in four of people admitted to remand in 2014/2015 were Aboriginal, with the exception of statistics from Alberta and Prince Edward Island. This is almost eight times greater than the representation of Aboriginals in the overall population. The statistic is also up nine per cent from 2004/2005, when the number stood at 16 per cent.
Lawyers for the plaintiff in a youth solitary confinement class action against the province of Ontario are appealing an order that their client produce his young offender records to the Crown.
|James Sayce says judge doesn’t have jurisdiction over young offender records.|
J.K. v. Her Majesty the Queen in Right of the Province of Ontario involves allegations of Ontario’s “over-reliance on the use of solitary confinement on minors in Ontario’s youth justice facilities.”
The class action claims $100 million in damages for negligence and breach of fiduciary duty and $25 million in punitive damages. It covers everyone detained or incarcerated at youth detention centres from Jan. 1, 2007 to the present and were placed in secure isolation while under the age of 18. Lawyers for J.K anticipate the proposed class to “number in the thousands.”
J.K. alleges the Crown was “negligent, in breach of fiduciary duties, and has breached the Class Members’ rights under s. 7,9, and 12 of the Canadian Charter of Rights and Freedoms.
On Dec. 22, 2016, Justice Paul Perell of the Ontario Superior Court of Justice ordered J.K. to produce his young offender records to the Crown. Perell ruled that records relating to J.K.’s crimes and incarceration, which took place when he was a minor, are relevant to his motion to certify the matter as a class proceeding.
Perell said that “by commencing this class action and by delivering an affidavit, J.K. has waived his right of privacy while at the same time preserving the rights of privacy of the putative Class Members, who under the Class Proceedings Act, 1992, are protected from discovery without leave of the court.
“To be a representative plaintiff is to be a champion for the class and I anticipate that J.K. will be prepared to be a champion and make the necessary disclosure of relevant documents,” Perell said in his decision, noting “appropriate orders” can be made to seal the court file and that J.K. would be protected by the deemed undertaking rule.
The order asks for J.K.’s records for before, during and after his incarceration in a number of youth justice facilities in Ontario. The documents include behaviour reports, youth management plans, serious occurrence reports, secure isolation release plans, secure isolation observation placement review, secure isolation observation logs, and other correspondence.
Before the age of 18, J.K. was convicted of several criminal offences, and incarcerated at three different youth centres. He was placed in secure isolation several times in two of the locations, the first time when he was 15 years old. At one, he said the placements lasted up to 12 hours each time in a “small soiled room with no bathroom, bed, chair or mat.”
The Crown had also requested a full criminal history file from the Canadian Police Information Centre, however Justice Perell refused to order the production of that file.
J.K.’s lawyers, Koskie Minsky LLP and Sutts Strosberg LLP, are appealing Perell’s decision and have brought a motion to stay the order pending the appeal.
“Everything Justice Perell ordered to be produced is protected by the Youth Criminal Justice Act,” says James Sayce, an associate from Koskie Minsky.
“We think there are serious grounds for appeal and that the Court of Appeal will take issue with some of Justice Perell’s reasoning and what’s in the order,” he says. “We think Justice Perell has made some errors.”
“The acts, the occurrences, events that take place while you are incarcerated or while being rehabilitated are not to be published to the public or to individual litigants in litigation,” says Sayce.
Criminal lawyer Daniel Brown points to R. v. Sheik-Qasim that covers the rationale for protecting such records.
Brown says while there are a number of scenarios where someone could gain access to YCJA records, none in s. 119 of the Act would apply to defending a civil lawsuit.
“It’s surprising that this judge would order that the young person needs to disclose his records in order to advance a civil action. It would appear to run contrary to the principles of the Youth Criminal Justice Act and the purpose behind sealing those records in the first place,” he says.
The Crown argues that the Youth Records are relevant to the certification motion with respect to whether J.K. was in secure isolation, the particulars of the institution and time spent in isolation and whether he is an “appropriate representative plaintiff” as well as to test his “credibility on the matters about which he deposed in his affidavit.”
As it stands, J.K. has been ordered to obtain the files and produce them to the Civil Law office Crown.
Sayce says the relevance of ordering the records to be produced is at issue as a certification motion is not about the merits of the claim but asks, “Can it work as a class action?”
In his decision, Perell acknowledged that “a judge, managing a class action is not a judge of the Youth Justice Court” and that he doesn’t have jurisdiction to make an order under the Youth Criminal Justice Act to grant access to records. However, he decided that:
“…it is patently obvious to me that the requested Youth Records are relevant to the certification criterion, most particularly to the common issues and preferable procedure criteria.
“The proposed common issues for the class actions concern the details of the circumstances and duration of placement in secure isolation.”
Sayce says the case is about a “systemic problem”, not about one individual’s experience.
The Office of the Provincial Advocate for Children and Youth released a report in 2015 entitled It’s a Matter of Time, which provides details on the use of solitary confinement on children in Ontario.
The report takes issue with the use of solitary confinement in Ontario’s youth justice facilities and advocates for greater safeguards and/or the complete eradication of the use of solitary confinement on children in Ontario.
Marineland denies animal cruelty charges filed by Ontario's SPCA, Canadian Press
Domestic violence debate emerges in N.S. murder-suicides, Canadian Press
Subscribe to Legal Feeds
- Alex Robinson
- Patricia Cancilla
- Jennifer Brown
- Elizabeth Raymer
- Mallory Hendry
- Alexia Kapralos
- Tim Wilbur
- Gabrielle Giroday
- Karen Lorimer