The Supreme Court of Canada has restored the indecent assault conviction in a case that dates back more than 30 years after concluding the Quebec Court of Appeal went too far in assessing the evidence at trial.

“Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they ‘cannot be supported on any reasonable view of the evidence,’” wrote Justice Marie Deschamps in quoting from R. v. Burke.

The case, R. v. R.P., hinged in large part on the evidence of two witnesses: the complainant M.L. and her sister G.L., who was also the  accused R.P.'s wife. M.L. was 13 years old at the time of the assaults, which occurred more than 30 years before R.P.’s trial. Among M.L.’s allegations were that R.P. sexually assaulted her while babysitting for the couple when G.L. was about to leave for the hospital to give birth to their second child. But G.L. testified that M.L. didn’t babysit on that occasion. Instead, she said she brought the first child to stay with her mother. M.L., the court noted, didn’t contradict G.L. Instead, she could only say repeatedly: “I have no idea. I don’t know.”

Nevertheless, the trial judge believed M.L.’s testimony. It was clear, Deschamps noted in this morning’s decision, that he took into consideration the weaknesses of the complainant’s testimony and found they weren’t determinative given that the incident had taken 34 years before the trial and given M.L.’s young age at the time.

“The trial judge’s approach was coherent and was also supported by the evidence,” Deschamps wrote on behalf of the majority that included justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis. “It did not justify the intervention of the Court of Appeal.”

Key to the ruling was the question of how far the Court of Appeal should have gone in considering the evidence.

“It is now well established that where a trial judge draws inferences or makes findings of fact that are contrary to the evidence, he or she engages in an ‘illogical or irrational reasoning process’ that invites appellate intervention,’” wrote Justice Morris Fish in his dissenting opinion that referenced R. v. Sinclair.

The inconsistencies in the case, including the evidence related to the assault around the time of the birth of the second child, made the trial judge’s findings unreasonable, Fish concluded.

“In short, the complainant testified that she was abused by R.P. while babysitting when G.L. was in the hospital giving birth to their second and third children,” wrote Fish in a dissenting opinion supported by Justice Louis LeBel. “G.L. testified that the complainant did not babysit on either occasion. The complainant’s evidence was that R.P. again abused her ‘practically every time’ she babysat during the five years covered by the indictment. G.L. testified that R.P. was rarely home without her and that, when home, she had an unobstructed view of the scene of the alleged abuse during much of the relevant period.

“It thus seems to me unreasonable, if I may say so with respect, to find that G.L.’s testimony does not ‘interfere with’ ― or tend to contradict or render implausible ― the evidence of the complainant, M.L.”

Centralized services, greater use of paralegals, and cutting down on bricks and mortar are all on the agenda as Legal Aid Ontario takes a look at the province’s clinic system.

In a discussion paper [http://www.legalaid.on.ca/en/news/newsarchive/1205-04_ClinicLawDelivery.asp] released Friday, LAO noted a number of demographic changes that it believes Ontario’s legal clinics need to do a better job of adapting to. They include the aging of the population, growth in the working poor, changing geographic location of low-income Ontarians from city centres to the suburbs, and increasing number of aboriginal Ontarians.

“The system must respond to the growing diversity of Ontario’s population,” the report, which cites the disconnect between the existing system and changing client needs, notes.

LAO released the discussion paper as part of its contribution to the Association of Community Legal Clinics of Ontario’s strategic planning exercise, a process aiming to chart future directions for the system. While LAO’s budget for the clinics has increased to about $70 million this year from $37 million in 1998-99, the paper raises concerns about how they’re using the money.

“The growth in the number of clients served by the clinic law delivery system has been very modest despite significant recent investments. In other words, increases in funding have not demonstrably translated into much more access to justice or better client services. As discussed in the 2010 discussion paper on administrative savings, between 1999 and 2009, LAO increased clinic funding by 57 per cent. Adjusted for inflation, this represents a 30-per-cent increase in funding while the number of assists during this period only increased 12 per cent.”

According to the report, much of the new money went to salaries and infrastructure rather than expanding services. It goes on to note that the goal should be to increase access to justice and find ways of streamlining the system through technological changes such as case management, call centres, and web-based client services.

It also says LAO will be looking at a broader transformation of the clinic system through centralized services; by examining the appropriate mix of staff among lawyers, paralegals, students, management, and administrative employees; and considering the value of bricks and mortar given the increasing clinic budgets for rent. Options, it notes, include locating clinic service providers in other agencies and public spaces.

“By co-locating staff, we could dramatically reduce the office space required to house clinic law service providers,” says the discussion paper.

The comments from LAO come as it has embarked on its own efforts in recent years to transform itself on the lines the discussion paper suggests. But while the paper hints at some criticisms of how clinics have handled funding increases, they’re likely to respond that they already run on bare-bones budgets and that the extra money they received in the last few years was largely making up for past cutbacks. Still, the paper offers some interesting suggestions for improving the system.

After taking Ogilvy Renault LLP into the Norton Rose Group and then merging the Canadian arm of the global legal practice with Calgary-based Macleod Dixon LLP, Norman Steinberg is tackling yet another challenge in becoming the chairman of the Norton Rose Group.

Norman Steinberg takes over as Norton Rose Group chairman on May 1.

The move represents the first time Norton Rose will have a group chairman from outside Britain.

Despite the flurry of changes, Steinberg — who will continue in his role as chairman of Norton Rose Canada LLP — tells Legal Feeds he’s excited to take on yet another position. He notes the move reflects the Norton Rose Group’s positive view of its Canadian arm as well as Canada’s economic success more generally.

“We are taking more of a leadership role in the world,” he says, reflecting on Canada’s good economic record given the strength of the banking and resource sectors here.

Steinberg replaces Stephen Parish, who steps down as global chairman today. Steinberg says the move also reflects the importance of showing the former Ogilvys’ clients that the Canadian firm would have a “central role” in the Norton Rose Group’s global management and activities.

“My primary focus will be on the continued business development of our clients internationally and I look forward to working with the global partnership in my new capacity,” he says.

Despite the new role, Steinberg, who has been with Norton Rose and its predecessors since 1976, notes he’s staying put in Canada.

“There’s no necessity to relocate anywhere,” he says.

He adds that while businesses and law firms face greater uncertainty due to the ongoing economic challenges, Norton Rose’s global position allows the firm to expand and set up offices in countries where there are opportunities.

“In changing times, there are often opportunities that are of great interest to us,” he says. “We’re going to continue to grow.”

The Ontario government must stop requiring transgendered people to have surgery before they can change the sex designation on their birth certificates, the Human Rights Tribunal of Ontario has ordered.

Ruling in XY v. Ontario (Government and Consumer Services),  HRTO vice chairwoman Sheri Price considered the complaint of a male-to-female transgendered person that the requirement was discriminatory on the basis of unequal treatment on the grounds of sex and/or disability. The woman, XY, had in fact had a bilateral orchiectomy in order to change the designation on her birth certificate — which she did successfully — but she then went on to challenge the requirement before the HRTO.

The government’s response included a number of defences, including the argument that XY did in fact get her birth certificate changed and that the requirement advances the legitimate public policy objective of ensuring the accuracy of registered vital event data. It also argued the requirement was reasonable and bona fide with the meaning of the Human Rights Code.

Price, however, saw the issue differently and ordered the government to change the requirement. “I further find that the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had ‘transsexual surgery’ is substantively discriminatory because it exacerbates the situation of transgendered persons as a historically disadvantaged group, and thus perpetuates their disadvantage,” wrote Price.

“In the alternative, the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had ‘transsexual surgery’ is substantively discriminatory because it perpetuates stereotypes about transgendered persons and their need to have surgery in order to live in accordance with their gender identity, among other things.”

The Ontario Human Rights Commission, which intervened in the matter, is lauding the decision.

“Transgender people’s rights are human rights,” said chief commissioner Barbara Hall. “This decision is a welcome step forward in recognizing and promoting the dignity and equality of trans people.”

Price’s order gives the government 180 days to revise the criteria for changing the sex designation on a birth registration.

Osler Hoskin & Harcourt LLP ranks as the top Canadian law firm brand, according to a new survey by legal market research firm Acritas.

While Oslers didn’t rank as highly for unprompted brand awareness, it did score first when it came to questions around which firms general counsel favour, the most used, and the most likely candidates for top-level work.

“Overall, Osler was not first for unprompted brand awareness. That was actually McCarthy,” says Elizabeth Duffy, vice president of Acritas US Inc.

Acritas carried out the survey by asking 250 Canadian-based general counsel which law firms come first to mind; which they most favour; and which they’ll consider when it comes to top-level mergers-and-acquisitions work, bet-the-company litigation, and high-value files. It also asked 302 general counsel elsewhere which Canadians firms they’d mostly likely use for their legal needs here.

The survey shows, among other things, that bigger isn’t necessarily better. On this score, it gave the example of Torys LLP. “The firm sits in third place on the index, but despite its smaller (in relative terms) size and not being one of the top choices for international buyers, it still has a stronger brand than other larger firms,” Acritas noted in announcing the survey results.

In addition, the survey noted the trend of business clients seeking greater value from their law firms, an issue Duffy says doesn’t always relate to price. “Clients are not price-sensitive but they are value-sensitive. It’s less so much about dollar amounts and what they feel they’re getting for it.”

The value equation, according to Duffy, comes down in part to communication and relationships. As a result, law firms need to ensure they tailor the work they do to the business context and involve the client in decisions, she says.

Another trend identified by Acritas is the shift in work to second-tier law firms. In response to the economic downturn and tightening budgets, “we are seeing a shift across the global legal market as clients use top tier firms less for high value work overall,” Acritas noted. “Instead, they are thinking more carefully about which firm will provide the appropriate quality for the right price. What is true of the global legal market also stands for the Canadian market.”

According to Duffy, that means companies aren’t necessarily using the top-paid legal specialists for all of their needs. “They’re looking at the context of each piece of work,” she says, a trend accentuated by the increased choices available as more global law firms pop up.

Some big names are joining the newest player in Toronto’s arbitration scene.

On April 18, Arbitration Place in Toronto’s financial district will hold its official opening at the Bay Adelaide Centre. Among its resident arbitrators are Yves Fortier, former chairman of Ogilvy Renault LLP who recently left its successor firm Norton Rose Canada; Thomas Heintzman, counsel at McCarthy Tétrault LLP and, like Fortier, a former president of the Canadian Bar Association; alternative dispute resolution practitioner Stan Fisher; and former Ontario associate chief justice and integrity commissioner Coulter Osborne.

The new firm’s member arbitrators include Earl Cherniak of Lerners LLP; John Judge; Barry Leon, head of the international arbitration group at Perley-Robertson Hill & McDougall LLP; John McDougall, partner emeritus and counsel at Fraser Milner Casgrain LLP; Goodmans LLP’s Harry Radomski; and Osgoode Hall Law School professor Janet Walker. The in-house counsel at Arbitration Place is Be-Nazeer Damji.

Kimberley Stewart, CEO and founder of Arbitration Place, says the new firm will have a global focus given its partnerships with the London Court of International Arbitration and the International Court of Arbitration.

“It’s putting Toronto on the map for the international community,” she says, noting she hopes those drafting international arbitration clauses will be more likely to think of Toronto as a seat of arbitration as a result. In addition, the firm has expansive space in the Bay Adelaide Centre as well as translation and interpretation services that Stewart says make it “very conducive to international work.”

To celebrate the opening of the new firm, Arbitration Place's official launch features a debate between former Supreme Court justice Ian Binnie and litigator Will McDowell. Binnie’s former colleague on the Supreme Court bench, justice Frank Iacobucci, will wield the gavel.

The County & District Law Presidents’ Association is shaking up Ontario’s articling debate with a call for a new type of licence without the requirement to article.

As the Law Society of Upper Canada’s task force on the issue gets set to release its report this spring, the association is recommending the creation of an L4 licence that would allow candidates to practise law in environments where they’re not providing services directly to the public.

According to CDLPA vice chairwoman Janet Whitehead, that could include people working in corporate law departments or in government or Crown law offices. The proposed licence would apply to law graduates who have passed the bar exam and completed the professionalism course.

Whitehead notes the proposal is a response to CDLPA members’ concerns about the need to maintain an articling requirement for those in private practice while providing an option for others in the profession and addressing the shortage of positions. She points out that there are some aspects of private practice, such as maintaining trust accounts, that involve serving the public and don’t apply to those working in places like government departments.

There would also be a mechanism, she adds, for those holding an L4 licence to move into the L1 category. “We weren’t envisioning that they’d be stuck in that category,” she says, noting lawyers holding the L4 status would be able to article later on or have their experience evaluated in some fashion.

The proposal would get around one of the options that appears to have found some favour in the run-up to the articling task force’s report: a practical legal training course that would serve as an alternative to the requirement to article. According to Whitehead, those working as L4 lawyers would still benefit from the internal training that many corporate and government departments provide.

CDLPA’s proposals also aim to address another issue that frequently surfaces in the articling debate: the supply of lawyers and positions in Ontario’s smaller towns and cities. Its solution would be to provide a “modest” subsidy to articling principals in “specific remote, high-needs areas,” says Whitehead. The program would involve a subsidy from the LSUC that would provide an incentive for lawyers to take on articling students, she notes.

The proposal comes as the profession has been taking note of the lack of interest often shown by law graduates in articling in smaller towns and cities. But given the shortage of articling positions and the need to respond quickly, Whitehead says CDLPA’s subsidy and licensing recommendations would be an easy way to address the issue in comparison to the job of setting up a practical legal training course.

“It’s going to be an interesting time,” she says, noting the profession’s intense interest in the issue right now. “We’re all trying to come up with something that’s going to work.”

Ontario Superior Court Justice David Brown evoked the famed editorial “Yes, Virginia, there is a Santa Claus” in launching yet another scathing attack on the backwardness of Ontario courts’ technology. This time he took aim at the court’s document management system.

Writing in Romspen Investment Corp. v. 6176666 Canada Ltée. last week, Brown doesn’t mess around diving right in at the beginning of his decision with the heading: “Just how broken is the document management system of the Superior Court of Justice?” And the bar has been buzzing about his comments since Thursday.

Paragraph 1 then is as follows:

I suppose that on a sunny, unusually warm, mid-March day one should be mellow and accept, without complaint, the systemic failures and delay of this Court's document management system.  The problem is that from the perspective of the members of the public who use this Court, delays caused by our antiquated, wholly-inadequate document management system impose unnecessary, but all too real, costs on them.  And yet the entity that operates that part of the Court's administration system – the Court Services Division of the Ministry of the Attorney General – seems completely indifferent to the unnecessary costs it is causing to the members of the public who use our Court.

Brown recounts the tale of a receiver that was seeking to introduce appraisals related to several Ottawa condo units during motions to approve the sale of some properties. With a sale set to close on Thursday, the receiver noted it had previously filed the sealed appraisals with the court. But in heading to the motion before Brown last week, the appraisals weren’t available to the court.

According to Brown, a “two-track process then unfolded.” He directed his staff to go to the office that had the sealed documents. That took an hour. In the meantime, the receiver’s counsel was able to get copies of the appraisals from her office. That also took an hour. The result, Brown noted, was added time for counsel, higher legal fees, increased costs related to the receivership, and a reduction in recovery for the creditors.

In his view, it shouldn’t have been that way. “The real solution? Consign our paper-based document management system to the scrap heap of history and equip this court with a modern, electronic document system,” he wrote.

But, of course, Brown isn’t overly optimistic about that happening any time soon. “Yes, Virginia, somewhere, someone must have created such a system, and perhaps sometime, in another decade or so, rumours of such a possibility may waft into the paper-strewn corridors of the court services division of the Ministry of the Attorney General and a slow awakening may occur.”

In response to such concerns, the ministry refers to its planned court information management system as proof that it’s on top of the issue. When exactly that’ll happen is unclear. According to a document on the project on the Canadian Centre for Court Technology’s web site, the government has big plans. User training is to begin this spring, it noted. But there’s no firm date for the subsequent phased implementation of the new system. So while Virginia got the answer she wanted so long ago, Ontario lawyers and judges may still have to wait a while yet for their gift from the government.

A key case dealing with libel on the Internet is headed to the Ontario Court of Appeal this week.

Lawyer Peter Burnet of Ottawa’s Jones Horwitz Bowles Burnet will be making arguments on behalf of appellant John Baglow before the appeal court this week in Baglow v. Smith. Baglow is objecting to Superior Court Justice Peter Annis’ ruling last August granting summary judgment in favour of defendants Rogers Smith and Connie and Mark Fournier.

The case deals with comments on the web site FreeDominion calling Baglow, who has his own progressive political blog called Dawg’s Blawg, “one of the Taliban’s more vocal supporters.” In the ruling, Annis noted Baglow had argued in favour of repatriating Omar Khadr to Canada from Guantanamo Bay, Cuba, and was an opponent of Canada’s military engagement in Afghanistan. In 2010, following Baglow’s calls for a federal election to oust the Conservative government, Smith made the comments about the Taliban on FreeDominon.

In his ruling, Annis considered whether the comment was a statement of fact or opinion. In ruling it was opinion, Annis focused on the ongoing back-and-forth nature of blog discussions. “In its pith and substance, when the defendant Smith’s statement is considered in its context of an ongoing thread on an Internet blog, it is properly understood as a comment about the impact of the application of the plaintiff’s views in terms of supporting the Taliban,” he wrote.

“Accordingly, the alleged defamatory attribution of the plaintiff (supporter of the Taliban) is the comment portion of the defendant Smith’s unstated factual premise that the plaintiff’s views on due process have the effect of supporting the Taliban.”

At the same time, Annis ruled the comments wouldn’t impugn Baglow’s reputation. “Instead, I conclude that the opinion expressed by the defendant lies at the heart of the debate between the factions represented by the parties and whether the underlying facts are true or not, readers following the blog would understand the comment as being one side of the debate.”

The decision raised eyebrows last year in part for what critics said was its distinction between allegedly libellous comments in traditional forums versus online platforms like blogs. However, Annis did later show some leniency to Baglow by reducing the costs award against him given the public interest in raising a novel point of law. The appeal court is to hear the matter tomorrow.

When he announced his retirement from the bench last year, former Supreme Court of Canada justice Ian Binnie included among the reasons for leaving the notion of returning to Toronto to pick up the threads of his past life.

Former Supreme Court justice Ian Binnie, centre, celebrates his honour with 2012 Toronto Lawyers Association president Christopher Matthews, 2011 president Sam Marr, vice president Miriam Young, and Ontario Court of Appeal Justice Robert Armstrong. (Photo: Glenn Kauth)

But as Ontario Court of Appeal Justice Robert Armstrong noted in introducing him during the Toronto Lawyers Association’s Awards of Distinction last night, Binnie has so far made only a handful of appearances in the city, mostly to receive similar honours including another one from the Ontario Bar Association.

Binnie, however, tells Legal Feeds he expects to return to practise here once the restrictions on doing so, due to his ongoing connection to the country’s top court, end next month. He predicts he’ll likely get work involving mediation and arbitration.

In the meantime, he has been working in New Zealand as the commissioner of an inquiry into the wrongful conviction of a man who spent 13 years in jail. As part of that work, he’ll make recommendations to the government on whether to compensate the man.

In introducing Binnie at the ceremony, Armstrong referred to the surprise that greeted his appointment to the Supreme Court in 1998 directly from the bar. Armstrong said he wasn’t surprised, but mused that he would have expected Binnie to go the Ontario Court of Appeal instead. Noting that he wouldn’t mind if there was a right of appeal of Supreme Court decisions to the Ontario Court of Appeal, Armstrong mused to laughter: “Think of what me might have done with that securities regulation case.”

Nevertheless, Armstrong joined the many people and organizations that have been heaping praise on Binnie as of late. “He was the leading counsel of his day before going to the Supreme Court,” he said, adding there’s probably no award that could fully acknowledge Binnie’s accomplishments.

For his part, Binnie responded with praise for the association for being able to renew itself over the years. He also had positive words for the association’s publication, the Toronto Law Journal, which he said is notable for providing useful yet brief information to the profession even when it’s criticizing his own judgments. “You don’t mind being dumped on if you only have to read a few paragraphs,” he said.