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|(Left to right) Rod Northey, Renée Pelletier, Johanne Gelinas, with federal environment Minister Catherine McKenna and Doug Horswill. Pelletier says she is ‘excited and honoured’ by her appointment to the review panel.|
Renée Pelletier, managing partner at Olthuis Kleer Townshend LLP, has been appointed to the federal government’s environmental assessment review panel.
Pelletier is of the Maliseet First Nation from Nova Scotia whose practice focuses on aboriginal and treaty rights litigation. A member of the Indigenous Bar Association, Pelletier has worked at Aboriginal Legal Services of Toronto, volunteered for the Native Women’s Resource Centre and was a Native Court Worker at College Park Criminal Court.
Federal Environment Minister Catherine McKenna announced Monday that the four-person panel will deliver a long-promised review of how natural resource development projects are approved in Canada.
Environmental lawyer Rod Northey, partner at Gowling WLG, joins Pelletier, with Johanne Gelinas, former federal commissioner of environment and sustainable development, leading the panel and Doug Horswill, the retired vice president of Teck Resources, rounding out the foursome.
Pelletier says she is “excited and honoured to have been provided the opportunity to contribute to the government’s review of environmental assessment processes.”
The panel aims to “introduce new processes that are robust, incorporate science, protect the environment, respect the rights of indigenous people and support economic growth,” Pelletier says.
“Additionally, the panel is aware of the importance of this review as it relates to the government of Canada’s support of the principles of the United Nations Declaration on the Rights of Indigenous Peoples and its goal of renewing its relationship with Indigenous people and moving towards reconciliation. Further to this end, the panel has been directed by its terms of reference to reflect the principles of the declaration in its recommendations, as appropriate.”
According to a press release, “Panel members were selected based on their knowledge, experience and expertise relevant to federal environmental assessment processes. The Minister also considered the need for diversity in terms of Indigenous, regional and gender representation.”
“The panel had the opportunity to meet with the minister of Environment and Climate Change,” Pelletier says. “We shared with her our goal, which is to deliver to her a robust report summarizing our recommendations and the input we receive from Canadians.”
The panel will take into account industry’s concerns that environmental assessments are too lengthy and complicated, as well as environmentalists’ complaints the process fails to consider the protection of fragile ecosystems.
The panel will also take into consideration other reviews being conducted by Natural Resources, Fisheries and Oceans and Transport Canada.
The panel begins its work, starting with consultation opportunities, next month and is scheduled to finish by the end of January 2017.
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The Nova Scotia Barristers’ Society will not seek leave to appeal the provincial top court’s finding that its council’s resolution not to accredit Trinity Western University is invalid.
NSBS had made changes to its regulation to allow it to decline accreditation to the Evangelical Christian university’s law school. Like law societies in Ontario and B.C., NSBS took issue with TWU’s community covenant, which requires that members refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
But the Nova Scotia Court of Appeal found the wording of NSBS’s amended regulation went beyond the regulator’s authority under the Legal Profession Act. On Monday, NSBS announced it has accepted the court’s findings.
“The Nova Scotia Court of Appeal has confirmed that the change that we’ve made is ultra vires, so we’re going to put the regulation back to the way it was,” says Darrel Pink, executive director of NSBS.
Putting the regulation back to its former wording means that if TWU’s law school starts operating, its graduates can article and become licensed in Nova Scotia, Pink also says.
“We’re accepting the finding of the court that we went a little bit too far,” Pink says. “That having been said, we certainly recognize that there are court proceedings in two other jurisdiction — one in B.C, where they’re waiting for a decision from the court of appeal, and of course the likely Supreme Court of Canada appeal out of the Ontario Court of Appeal.
“I think a prudent course of action may be to see what comes out of the other proceedings and that would give us something further to consider,” Pink adds.
The original prerequisite for a law practice licence in Nova Scotia asked for, among other things, a bachelor of laws degree or a juris doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada.
But NSBS amended its regulation to add a qualifier that says a person meeting this criterion could be licensed, “unless council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrolment policies or requirements on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act.”
However, a lower court found, and the Nova Scotia Court of Appeal agreed, that the barristers’ society has no power to unilaterally determine that TWU unlawfully discriminates in its admission and enrolment process.
“Nothing in the Legal Profession Act authorizes the Society to issue an independent ruling that someone has violated Nova Scotia’s Human Rights Act. Nor does the Human Rights Act, R.S.N.S. 1989, c. 214, as amended, contemplate the society’s intervention,” the Nova Scotia Court of Appeal said, adding also that the Charter doesn’t apply to TWU, a private institution.
“The amended regulation does not merely authorize the council to weigh human rights or Charter values in the exercise of an administrative discretion to promote diversity in the practice of law. Nor does it just say the council may consider a ruling, issued by a tribunal constituted under the Human Rights Act or a court of competent jurisdiction under the Charter, that the university has violated the Human Rights Act or Charter,” the court of appeal also said. “Rather, the amended regulation directs the council to make a free-standing determination whether the university ‘unlawfully’ contravened the Human Rights Act and Charter.”
The court of appeal said the Ontario equivalent of this regulation is “instructive,” and suggested NSBS is free to amend its rules to mirror that of the Law Society of Upper Canada’s. In Ontario, the regulation broadly says only law degree holders from a law school accredited by the Law Society of Upper Canada can be licensed to practice law in that province.
Pink admits NSBS’ council can go back to the drawing board and amend its regulation to look like its Ontario equivalent, but he says it’s “prudent” to first wait and see how the proceedings in Ontario and B.C. conclude.
“At that time, we will see whether council wishes to make another regulation or not,” Pink says.
The Ontario Court of Appeal has upheld LSUC’s decision not to accredit TWU’s law school, and the university has said it will seek leave to appeal that decision at the Supreme Court of Canada.
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- Federal Attorney General Jody Wilson-Raybould told the Canadian Bar Association conference in Ottawa that improving relationships with indigenous Canadians is top of mind for the government
|Jody Wilson-Raybould says indigenous Canadians are among the ‘most marginalized’ people in the country. (Photo: Gabrielle Giroday)|
Canada’s federal Minister of Justice and Attorney General Jody Wilson-Raybould told a crowd of hundreds of lawyers that the federal government is committed to improving relationships with indigenous people, as well as promoting diversity on the bench.
“Many of the issues we face as a country have a justice element to them, and which is why our government has embarked on a very ambitious agenda, and an effort to reform our justice system,” Wilson-Raybould said to lawyers from across Canada gathered in Ottawa last week for the Canadian Bar Association’s annual conference. Wilson-Raybould was the conference’s keynote speaker Friday morning.
She dedicated much of her keynote address to calling attention to justice issues related to indigenous Canadians, and reaffirmed the concept of “re-building the nation-to-nation relationship.”
“It is a sad reality that many members of indigenous communities are among the most marginalized segments of our population, and that they are over-represented both as offenders and victims in the justice system,” said Wilson-Raybould.
Referencing her experience as a former Crown prosecutor in Vancouver’s downtown east side, Wilson-Raybould said indigenous men were often charged with non-violent property crimes, and then got caught in a “vicious cycle within the system” that led them to spending more time behind bars than outside.
“In fact, incarceration rates for indigenous people in some parts of Canada are up to 33 times higher than for non-indigenous people,” she said.
Wilson-Raybould pointed to a report from the federal Office of the Correctional Investigator that illustrated the gap. From 2005 to 2015, she said, the indigenous inmate population increased by 50 per cent, compared with the overall growth rate of 10 per cent.
She also noted that while indigenous people make up 4.3 per cent of the population, they represent more than 25 per cent of inmates. She also said that indigenous women comprise 37 per cent of all female inmates serving a sentence of more than two years.
“This is totally unacceptable,” she said.
Wilson-Raybould said administration of justices cases — such as parole breaches — make up more than 20 per cent of all Crown cases, and cost more than $700 million per year.
“We need to find ways to allow for more discretion in differentiating and treating administration of justice offences,” she said, saying resources spent on minor offences could be freed and used in “more meaningful” ways. Part of the new federal government’s approach is reviewing changes in sentencing that happened under the Harper government, and the use of discretion when it comes to measures such as restorative justice and sentencing circles.
Wilson-Raybould also addressed the issue of judicial vacancies across Canada. The day before Wilson-Raybould’s remarks, Supreme Court of Canada Chief Justice Beverley McLachlin had told media “the perpetual crisis of judicial vacancies in Canada is an avoidable problem that needs to be tackled and solved.”
“I am very sensitive to the pressures that courts throughout the country are currently experiencing due to judicial vacancies,” Wilson-Raybould told the CBA audience.
“As you know, the government has already made the 15 appointments to trial and appellate courts and we are taking steps to both strengthen the process and to fill remaining vacancies, and I look forward to publicly announcing our intentions in this regard very soon.”
Wilson-Raybould also voiced a commitment to gender parity on the bench, and said recent appointments made to provincial Superior Courts reflect that.
In June, the federal government announced its first judicial appointments since taking office last fall. There were 15 appointments, including six in Alberta, five in Ontario, two in British Columbia, one in Quebec, and one in the Federal Court of Appeal.
Of the 15, 10 were women and five were men.
Earlier this month, Prime Minister Justin Trudeau announced a new process for judicial appointments to the Supreme Court of Canada, including a seven-member advisory board that will compile a short list for consideration. Any qualified judge or lawyer can apply, as long as they meet requirements that include functional bilingualism.
“Getting the balance right — whether in terms of gender, race or ethnicity — is extremely important and speaks to the need for fairness and accessibility,” Wilson-Raybould said.
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.
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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.
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