With British Columbia’s criminal justice system in dire need of reform, three reports with recommendations for improvement were released yesterday.

All three were conducted in response to B.C. Attorney General Shirley Bond’s request for advice on reforming the criminal justice system earlier this year.

Geoffrey Cowper, senior counsel at Fasken Martineau DuMoulin LLP, was appointed chairman of the B.C. Justice Reform Initiative. His 277-page report calls for systemic change within the justice system. It also includes a review of B.C.’s charge assessment process by Gary McCuaig, Alberta’s former chief prosecutor.

Cowper calls out a “culture of delay” that continues to plague the criminal justice system and create backlogs in the courts.

“The culture of delay in the court system is resistant to change because there are several benefits to those working within the system that are gained from delay and no accepted means of enforcing timeliness as a priority. To change this culture we must fundamentally change the incentives that apply to the parties and provide the right tools to the right participants to make timeliness a necessity and not an option,” he writes.

Cowper does admit there has been some reduction in that backlog recently, but cases are still not being resolved in a timely manner. He calls for the appointment of five new judges to help with the backlogs.

“We have to move to measures that happen in respect of days and weeks of time, not months and years of time,” he said.

While Bond said: “We agree with Mr. Cowper that the criminal justice system moves too slowly. This report shows that the issue of timeliness in the justice system is critical for all justice partners - and for the public. British Columbia, like other jurisdictions, has a crime rate that is dropping, while experiencing increasing delays in cases,” the province made no commitments.

She said her department will be digesting the three reports and come out with its own report in the fall to address Cowper’s recommendations.

Cowper proposes a number of wide-ranging reforms including a province-wide crime reduction plan, measures to resolve criminal cases earlier and reduce the number of delays and backlogged cases and a major overhaul of how prosecutors handle files.

A significant recommendation Cowper’s makes is to establish a new Criminal Justice and Public Safety Council within the Justice ministry. It would be responsible for development of an overall strategy for the criminal justice system, one that ensures effective collaboration among the various stakeholders.

“Previous efforts to reform criminal case process have been disappointing. In my view their failures occurred for primarily two reasons: the failure to successfully collaborate with other justice participants in framing the reform, and the failure to ensure that needed changes would work across the system. There are many worthwhile proposals which will be reviewed and recommended, but success will depend greatly on effective collaboration in the detailed planning and introduction of new reforms,” says his report.

The Legal Services Society made a number of recommendations in its report. Mark Benton, LSS executive director, said in a release that the reforms are aimed at reducing costs and reallocating the savings to legal aid.

“Our experience has taught us that a small investment in legal aid can result in savings in other areas of the justice system,” he said. “We believe our proposals will help people resolve their legal problems faster and when that happens they are less likely to experience legal problems in the future which is an additional benefit not just to the justice system, but to society as a whole.”

Jamie Maclaren, a Vancouver lawyer and executive director of the Access Pro Bono Society of British Columbia, says although he agrees with the LSS’ recommendations, they don’t go nearly far enough to increase the incentive for private lawyers to take on legal aid cases.

“The most striking aspect of the report to me was the description of how our legal aid tariff rate has declined by 27 per cent since 1991, and how the number of practising lawyers taking legal aid referrals has nearly halved in the past decade,” said Maclaren.

“No matter how much we reform our family law and criminal justice systems — and heaven knows they need substantial reform — the government can’t expect LSS to switch from a staff lawyer service model to a private lawyer service model without substantially incentivizing the private bar to take on legal aid files.”

The LSS made recommendations in five main areas, including family law reforms, expanded criminal duty counsel, video and tele-bail, non-lawyer service providers, and problem-solving courts.

Under family law reforms, the LSS proposed that there be more duty counsel and community-based advice services to increase the availability of family law services; provide assistance for housing and debt problems; and expand mediation referrals.

For the criminal law system, the LSS suggested that rather than have lawyers accept assignments on an ad hoc basis, specific lawyers should be assigned to the same court on an ongoing basis.

The LSS also recommended that the justice system make greater use of video and tele-bail to cut down on transportation costs. It referred to the Burnaby Justice Centre that provides 24-7 access to judges for bail hearings via video link and telephone.

In terms of non-lawyer service providers, the report emphasizes the need for legal information outreach workers and aboriginal community legal workers to help people navigate the justice system.

Maclaren said non-lawyer service providers need to start providing legal aid.

“Many of the lawyers that are currently taking on legal aid files are treating the files as pseudo-pro bono work. To some extent, legal aid has become another form of charitable service rather than a robust system for ensuring that the rights of marginalized people are respected according to the rule of law,” he said.

Finally, the LSS suggested creating problem-solving courts such as drug courts, mental-health courts, domestic violence courts, and First Nations courts, which already exist in some provinces and territories.

Maclaren says he doesn’t expect these changes to happen overnight. “It will take much greater reforms to the justice system as a whole to make a noticeable difference in access to justice by way of legal aid, absent new funding,” he says.

The chief justices of all three levels of the B.C. courts yesterday said they had received all three of the reports and will consider further comment once they’ve had a chance to review them.

Bruce LeRose, president of the Law Society of British Columbia, provided the following statement to Legal Feeds: “The law society will study the report but notes on an initial review that Mr. Cowper has made a number of recommendations to address how he believes the justice system could be better managed and to identify the institutional elements he considers necessary for the system as a whole to succeed. His recommendations call on all justice system stakeholders to work together to address concerns raised during his consultations. The law society remains engaged in this important process and looks forward to working with everyone involved to improve public outcomes and maintain a sound justice system.”

Toronto boutique firm Lenczner Slaght is putting its litigation heft behind refugees at risk of immediate deportation working with Legal Aid Ontario’s Refugee Law Office. This after an announcement by legal aid earlier this month that it would cut refugee and immigration certificate spending by $1 million this fall.

Yesterday, LAO confirmed Lenczner Slaght had approached it earlier this year with an offer to advocate for the RLO’s clients on a pro bono basis.

Carole Simone Dahan, director of the Refugee Law Office, said because immediate deportation cases often have short timelines, the RLO couldn’t always step in. That made the offer particularly attractive in light of recent certificate spending cuts.

“Most recently, a woman detained at the immigration holding centre was given notice on a Monday that her removal was scheduled for that Thursday morning,” said Dahan. “Thanks to the work of Lenczner Slaght staff, we were able to file an emergency motion to the Federal Court, and successfully obtained a stay of the woman’s deportation.”

According to legal aid, the RLO began by training an associate at Lenczner Slaght in refugee law for six weeks. The associate then trained eight colleagues at the firm.

Since March, Lenczner lawyers have argued on behalf of four refugees who faced deportation within 24 to 72 hours, and remain on call to argue for an injunction that will stop their deportation through an emergency stay motion before the Federal Court, according to LAO.

Peter Griffin, Lenczner Slaght’s managing partner, said the firm is “pleased” that its lawyers have taken on the issue.

“We are pleased that our lawyers have demonstrated real interest in expanding the availability of legal services for refugees and others facing imminent deportation by supporting LAO’s RLO,” said Griffin.

The partnership comes in light of an Aug. 3 announcement by LAO that lawyers will receive a certificate for a maximum of eight hours for an expedited refugee case, while taking a closer look at refugee claimants hoping to qualify for legal aid. The changes will start Sept. 6, and are designed to tackle legal aid’s deficit.

According to LAO statistics, between 2009 and 2012, legal aid spending on immigration and refugee legal services increased by 24 per cent. In 2010-11, it spent $21 million for refugee and immigration services, but received roughly $7 million in federal funding for those services.

Tariffs and discretion requests have been a source of contention among refugee, family, and criminal lawyers, who say they should be paid more than the current rates. They have also pointed out that the amount of work required to complete matters often exceeds legal aid’s maximum hours significantly, and feel they may ultimately have to opt out of providing legal aid work because the margins are too slim.

LAO addressed some of those issues by changing its final discretion guidelines to consider a larger number of factors, like disclosure, in the discretion request process for complex criminal and family cases earlier this month. For refugee cases, it is now considering exclusion and multiple countries of citizenship.

But many lawyers have remained skeptical, saying they will have to wait to see how the changes ultimately play out.

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University of Windsor law professor Emily Carasco, who accused the law school of gender and racial discrimination, suddenly withdrew her application to the Human Rights Tribunal of Ontario on Aug. 29 after reaching a settlement with the university.

Carasco launched a human rights complaint in 2010 after she lost the candidacy for the law school’s new dean to Camille Cameron, who joined the faculty in January. Carasco claimed she wasn’t handed the position because the search committee didn’t want to hire a racial minority. As a result, she asked the tribunal to order the university to fire Cameron and appoint her instead. She also sought $60,000 in compensation.

In her complaint, Carasco accused fellow law professor Richard Moon of discriminating against her when he told the dean search committee that she had plagiarized parts of an immigration and refugee law casebook that she co-authored. Carasco wanted Moon to publicly retract his allegations and sought $15,000 in damages.

Then earlier this week, after five days of hearings, the parties came to an agreement. The details of the settlement have not been released and Carasco declined to comment when reached by Legal Feeds.

In a statement, Holly Ward, spokeswoman for the University of Windsor, said: “The university has and will continue to strive for the highest standards of human rights and equity. With respect to the specific application that was before HRTO, we will be making no further statements.”

Prior to the settlement, Carasco faced two days of cross-examination where Raj Anand, counsel for the University of Windsor, and Freya Kristjanson, Moon’s lawyer, presented multiple examples of unattributed passages in her work.

Carasco maintained that it shouldn’t be considered plagiarism because she didn’t intentionally try to pass off another author’s ideas as her own.

According to The Windsor Star, Carasco told the tribunal: “Carelessness I would plead guilty to. An attempt to deceive or appropriate . . . no.”

The Star reported that Mary Eberts, Carasco’s lawyer, argued that Carasco would have been hired if she hadn’t been accused of plagiarizing.

“The plagiarism allegations unsettled or dispersed some of the support she would have had despite her minority status. The people who were against her candidacy — because they did not want her signature and methodology in the law faculty — were able to dominate the process.”

Anand defended the faculty of any wrongdoing, according to the Windsor newspaper.

“You have far-fetched allegations and no facts from which to infer discriminatory factors were at play. Nowhere in any of the massive filings will you find any evidence of any action from any of the committee members that suggest they were adverse to racial minorities,” he reportedly told the tribunal.

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The RCMP has laid charges against 39 people in an alleged marriage immigration scam dubbed Project Conjugal.

The RCMP’s probe into bogus marriages has netted its first 39 charges. (Photo: Shutterstock)

A total of 78 new counts of indictment, including misrepresentation and procuring feigned marriage, have been laid against individuals in an investigation conducted by the RCMP’s immigration and passport section.

It is alleged that Canadian women married in exchange for money so that their North African “husbands” could stay in the country.

The initial part of the investigation led last February to the dismantling of an alleged criminal organization involved in illegal immigration. The purpose of the current part of the probe was to lay charges against the individuals who allegedly took part in marriages of convenience. They are scheduled to appear in court on Oct. 16.

Immigrations lawyers say such fake marriages are a problem in Canada and often the women here in Canada are willing participants complicit in their involvement.

“I think the overwhelming percentage of marriage cases we see are genuine, however there is a problem and I think it’s good it’s being addressed,” says Mario Bellissimo of Bellissimo Law Group in Toronto.

“I’ve seen both side of the divide. I’ve seen females that are complicit and individuals who were exploited and not aware of what is happening. Sometimes in arranged marriages it can become even more blurred because often there isn’t the progression of a relationship we would see by Western standards.”

The RCMP initiated the investigation with the purpose of addressing the legitimacy of hundreds of suspicious marriages.

The investigation was of a bogus immigration consultant who is believed to be the mastermind behind this scheme, who gave advice on how to submit misrepresented facts to Citizenship and Immigration Canada to individuals whose visas were due to expire. Specifically, he organized fake marriages with the assistance of accomplices to allow these individuals originating from North Africa to remain in Canada.

The network recruited young Canadian women in the Montréal area and arranged for them to participate in marriages of convenience in exchange for money.

Amadou Niang, 56, appeared in Court this past March to face 42 counts of indictment, including for offences under the Immigration and Refugee Protection Act. He appeared again yesterday at the Montréal Court House.

As part of Project Conjugal, an investigation took place into the legitimacy of about 315 suspicious weddings that took place between 2007 and 2009. These 39 people are the first of 630 the RCMP plans to charge as a result of Project Conjugal.

CIC is trying to address such fake marriages with new laws, says Lloyd Ament with Basmen Smith LLP.

“There is a new regulation introduced in March whereby someone who has been sponsored can’t sponsor another spouse for five years. I think that’s a pretty good way of stopping this stuff depending on what was the motive. If it was to bring in another spouse that would cover it,” says Ament.

Also, the CIC is considering making the sponsorship visa conditional for two years.

“That could have more teeth because if you tried to get divorced within that period you lose your status,” says Ament.

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Imax’s summary judgment motion based on a limitation defence was denied yesterday, giving the class action bar cause for celebration in light of other recent decisions that seem to go against plaintiffs in similar circumstances where lengthy proceedings have delayed matters.

In Silver v. Imax, Justice Katherine van Rensburg dismissed Imax’s motion for summary judgment dismissing the statutory claims of the plaintiffs for secondary market misrepresentation.

“I think it’s a great decision and is turning the law back in the direction in which it should have been in the first place,” says Kirk Baert, a partner at Koskie Minsky LLP. “I thought it was quite brave of her to disagree with both the Court of Appeal and Justice Strathy in essence, and say, we’re not going to allow these types of cases to get dismissed when the plaintiff couldn’t have done anything differently than what they did.”

In her decision, van Rensburg wrote: “No public interest would be served by permitting a cause of action to be defeated by delays inherent in the litigation process. As argued by the plaintiffs in Nor-Dor (at para. 4), ‘[the expiry of a limitation period while the leave motion is pending] cannot have been the intention of the legislature when it enacted this section of the Act”.

Last month, plaintiffs in a secondary markets securities class action case involving CIBC and its subprime mortgage exposure were denied certification, even though Ontario Superior Court Justice George Strathy indicated he saw merit in the case.

On July 3, Strathy ruled in Green v. Canadian Imperial Bank of Commerce that the plaintiffs failed to obtain the required leave to proceed with the action within the three-year period mandated by the Ontario Securities Act. The plaintiffs’ request to certify common law claims for negligent misrepresentation was also rejected. However, Strathy indicated that had he found the limitation period hadn't expired, he would have granted leave and certified the action as a class proceeding.

Strathy relied on Sharma v. Timminco Ltd. in rendering his decision in the CIBC case.

“I didn’t think the original Timminco decision was correct for a lot of reasons,” says Baert. “Mainly because it’s forcing people to go through these types of motions for really no purpose whatsoever. It’s also the only example of a limitation period that runs off when a judge makes a decision as opposed to something the plaintiff can actually control.”

The Imax litigation arose from allegations the company made misrepresentations that led to a precipitous decline in its share price a few years ago. The U.S. action was filed in 2007. Shortly after, Dimitri Lascaris of Siskinds LLP in London filed a parallel case in Ontario.

Given the debate created by Timminco, Baert says it may be time to address it in a more formal way, so that case that already complicated, costly and time consuming, aren’t further delayed.

“It’s another diversion to getting to the real issue. The way to fix this is to amend the legislation. Otherwise we’re going to have a lot of motions and appeals over the periphery of the case rather than the merits of the case. If you think the reason there is a three-year time limit is to get the cases disposed of more efficiently having this issue out there just makes the cases take longer,” he says.

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Guy Pratte, the independent lawyer leading the inquiry into a Manitoba Court of Queen’s Bench Associate Chief Justice Lori Douglas has resigned, leaving the Canadian Judicial Council scrambling to find a replacement for him at the controversial proceeding.

Guy Pratte has resigned as independet counsel for the Douglas inquiry.

Norman Sabourin, executive director and senior general counsel of the CJC, would not comment on Pratte’s reasons for resigning, saying only that the hunt is on for an immediate replacement.

“My top priority is ensuring that a new independent counsel is appointed and chief justice Wittmann, who appointed Mr. Pratte is considering a successor at this time. We hope that within a few days we can announce an appointment,” says Sabourin.

Pratte declined to comment when contacted by Legal Feeds.

In a statement released today, the council indicated a replacement would be appointed as soon as possible to ensure the hearing continues in a “fair and expeditious manner.”

A council committee is looking into the conduct of Douglas, whose husband posted sexually explicit photos of her online in 2003, when the couple were family law lawyers at a Winnipeg firm.

Douglas’s lawyer Sheila Block has asked the Federal Court to quash the inquiry, arguing questioning by the lawyer acting for the committee members, George Macintosh, was too aggressive and showed bias against Douglas.

Pratte had threatened to quit, insisting the inquiry committee can’t act be a referee of the proceedings and an active participant. But the committee insisted it had a duty to strongly question witnesses. In May, the CJC clarified the role of the independent counsel, noting that: “Independent counsel may make recommendations but must carry out his duties in a manner that does not impinge on the discretionary decision-making responsibility of the committee.”

Sabourin admits it won’t be easy to find a replacement for Pratte.”I’m sure it will be challenging, like in any proceedings where one is called in as a substitute, so to speak. This inquiry is complex, there’s no question, but I’m hopeful with very able counsel things will unfold in a satisfactory way.”

He noted that the inquiry committee hasn’t set dates for its next hearings yet and it was difficult to find the amount of time they feel they need to continue.

“I imagine they will want to hear from the newly appointed independent counsel and hopefully they can agree on dates in the near future,” he says.

Despite the complexity of the inquiry and the complications it has encountered Sabourin said he doesn’t think it will be difficult to find a replacement for Pratte.

“Lawyers at that level of expertise and experience are usually very receptive to answering the call of public duty. This is an important process and we’re a public body trying to get things done in the public interest. Lawyers are often very receptive. We look for seniority and reputation and ideally someone who has knowledge with inquiry committee processes.”

There are pending judicial review applications in the Federal Court and Sabourin said time may be required to take steps to address those issues as well.

“The inquiry committee is there to ensure that there is an investigation and light thrown to the allegations made against the judge. For the council it’s critical that any serious allegation against a federally appointed judge is thoroughly reviewed. Hopefully it can happen in good time, but it is a complex issue and the process has to be fair to everyone. It will have to take the time needed to ensure it continues to be fair.”