Mallory Hendry is associate editor for Canadian Lawyer. Mallory is dedicated to delivering the latest news in legal education across Canada. She contributes to both print and online content.
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.
Five lawyers were appointed to the Order of Canada last week, in a milestone year marking Canada’s 150th birthday and the order’s 50th anniversary.
|Retired Supreme Court justice Morris Fish was appointed a Companion of the Order of Canada for his “eminent service” as a jurist.|
Retired Supreme Court justice Morris Fish was appointed a Companion of the Order of Canada for his “eminent service” as a jurist, particularly on the SCC bench from 2003-13. A law graduate from McGill University, Fish practiced mostly in Quebec — though he was called to the bars of Prince Edward Island and Alberta as well — and also lectured at various Canadian law schools including holding the post of adjunct professor at his alma mater and teaching at the University of Ottawa and the Université de Montréal. His focus in practice and in his teaching was criminal law.
Appointed to Officers of the Order of Canada are Ellen Irene Picard and Paul Cronin Weiler.
Picard was appointed for her contributions as a judge at the Court of Queen’s Bench and her further elevation to the Court of Appeal. She is forefront in the field of health law in Canada, having helped to establish it through her work as a legal scholar. She co-authored Legal Liability of Doctors and Hospitals in Canada, a book widely regarded as the most comprehensive text on the subject.
A graduate of Osgoode Law School in Toronto, Weiler went on to become a professor of law at his alma mater as well as visiting professor of Canadian studies at Harvard Law School, where he got his Masters of Laws years earlier. He was appointed for “his contributions to reforming labour and employment standards as one of North America’s foremost legal scholars,” including serving as a panelist in the United States/Canada Free Trade Agreement softwood lumber arbitration in 1992.
Benoît Pelletier, for “his efforts to bring about interprovincial-territorial co-operation and for his advocacy on behalf of Francophone communities,” and Alfred Popp, for his “contributions to maritime law” in various positions, were named Members of the Order.
Pelletier, currently a law professor at the University of Ottawa where he also earned his Masters Degree in law, was an active political figure between posts at the university, as well as the author of many books, articles and opinion pieces. A supporter of the federalist cause in Quebec, Pelletier departed from traditional policy by also seeking to help Francophone minority groups from other parts of the country resist assimilating with the English-speaking majority. He is still called upon to comment on constitutional matters.
Following a legal education in South Africa, Popp completed his Masters Degree in law at the University of Ottawa. A member of the Canadian delegation to the Legal Committee of the International Maritime Organization — where he eventually became president — Popp was a driving force in developing major international agreements in the field of maritime law. Retiring from the committee in 2005, Popp was appointed administrator of the Ship-source Oil Pollution Fund two years later.
The Order of Canada, one of Canada’s highest civilian honours, was established in 1967, during Canada’s centennial year, to recognize outstanding achievement, dedication to the community and service to the nation. More than 6,000 Canadians have been invested into the Order since its creation. To celebrate its 50th anniversary, there will be multiple special initiatives and partnerships announced throughout the year.
This year’s recipients will be invited to accept their insignia at a ceremony to be held at a later date.
Despite an injunction to stop Montreal’s controversial pit bull ban being dismissed, opponents to breed-specific legislation aren’t giving up the fight.
|Rebeka Breder, of Breder Law Co., says lawmakers need to ‘look at the person on the other end of the leash’ when developing dangerous dog legislation.|
Camille Labchuk, animal rights lawyer and executive director of Animal Justice in Toronto, says the reality of the latest decision means pit bulls — and really all dogs in Montreal — are at risk from this “vague, discriminatory and ineffective bylaw.”
“What we know about keeping the public safe is strongly related to education and dog licensing,” she says. “This is a draconian measure that’s not going to work and is going to be expensive.”
Quebec Superior Court Justice Louis Gouin granted the temporary suspension stopping parts of the new law from going into effect on Oct. 5 in Lours v. Montreal (City of), but on Dec. 1 the injunction was dismissed by the Quebec Court of Appeal and the bylaw came into full effect.
In a statement on its website, the Montreal SPCA said the appeal court is “holding the City of Montreal to the concessions it made during the appeal hearings.”
“Importantly, the City of Montreal cannot issue euthanasia orders based on breed or physical appearance, prohibit someone from reclaiming their lost dog based on breed or physical appearance, and must allow all dogs to continue to be adopted to families residing outside of Montreal,” the Montreal SPCA stated.
According to both lawyers, Ontario is a good example of how breed-specific bans are ineffective. Labchuk says research from 2012 shows there was a 40 per cent increase in dog bites reported in Ontario hospitals since the ban was enacted in 2005.
On Dec. 10, Toronto City Council unanimously passed amendments to the city’s bylaw regulating dangerous dogs. According to the amendments, which stem from a Sept. 7 report for action called Responsible Dog Ownership: Mitigating Risks of Dangerous Dogs, dogs classified as dangerous will need to be muzzled and microchipped, will not be allowed in a leash-free area and the owner must purchase a dangerous dog tag from the city and also post warning signs on their property.
Anyone found to be in violation of the bylaw, which comes into force on March 1, 2017, could face fines up to $100,000.
Labchuk calls the changes positive, saying many of the local animal activists in Toronto “pushed quite hard” to get these amendments through.
While Breder acknowledges these amendments are steps in the right direction, she says Toronto didn’t go far enough.
“Any city that really wants to go to the root of the issue should start with education or have education as part of their dangerous dog regulations,” she says.
Additional amendments to the Toronto bylaw, especially making it illegal to tether a dog outside for longer than three hours and banning choke and pronged collars, are excellent Labchuk and Breder agree.
Breder says there are a number of examples from cities in B.C. in the last decade that have reversed breed specific legislation including Vancouver in 2005, North Vancouver in 2009, Delta the year after that, Castlegar, Cumberland, Coquitlam and White Rock in 2011 and New Westminster in 2013.
“Forget activists or pit bull lovers,” Breder says. “Looking at objective data that’s out and talking to animal behaviourists, we shouldn’t be dealing with a band-aid solution that isn’t a solution at all. Look at the people on the other end of the leash.”
But the gold standard in North America is Calgary, Breder says. In 1985 the city had just over 2000 aggressive dog incidents. By 2014, that number went down to 641. The number of trials where the city tries to get a destruction order for an aggressive dog has “decreased astronomically” in that time as well, she adds.
“They moved away from an ‘animal control’ model to a ‘responsible pet owner’ model. They did this in early 2000s and what that means is they take public education very seriously. They start by educating kids in their formative years, in elementary school, on how to approach dogs, how not to approach them. Because dogs are such a part of society they worked it right into the curriculum,” Breder says.
“Essentially what that legislation does in Calgary is it targets known risk factors and known behavioural problems so that they can nip it in the bud. It’s progressive,” Breder says. “We have to remember — in the 1960s it was the Shepherd, then the Doberman, now pit bulls and the latest trend is towards banning Cane Corsos and Bull Mastiffs. Where do we stop? We, as human beings, are supposed to be intelligent and learn from our mistakes — and it’s beyond me why we’re not.”
When it comes to office holiday parties, it’s best if the only thing that’s lit is the Christmas tree.
|Natalie MacDonald of Rudner MacDonald LLP says employers and employees should remember holiday festivities are extensions of the workplace and all policies still apply.|
This is just one piece of advice to help both employers and employees make it through the annual holiday office party.
“Tis’ the season!” says Natalie MacDonald of Rudner MacDonald LLP. She says it’s important that both employers and employees understand their respective roles at the company Christmas party, and don’t lose sight of the fact it is an extension of the workplace — professionalism, courtesy and respect still apply.
“We’ve come quite a ways from the Mad Men days where people were swinging from chandeliers and photocopying private body parts. Now we’re hopefully becoming a more respectful workplace and with it there are obligations on both ends,” she adds.
MacDonald says social host liability is something employers need to pay attention to, noting their role is assessed in terms of what they have done to minimize liability and to maximize safety for the employee.
In her book, Extraordinary Damages in Canadian Employment Law, MacDonald talks about cases where the courts attributed a duty of care to the employer to provide a safe and healthy workplace, and the courts’ willingness to use a broad application of the definition of workplace.
“The concept of social host liability has been applied to the employer in a few cases, where the employer was responsible for providing the employee with alcohol, while in the workplace. In some cases, the damages have been extensive, as the courts have recognized the need to apply principles of personal injury,” she writes.
A 2002 case, Hunt (Guardian of) v. Sutton Group Incentive Realty Inc., is a good example of the concept of social host liability, she says, adding it is applied where the employer is responsible for providing alcohol at the workplace, or at an office party wherever the location.
In Hunt, an employee consumed alcohol during an open-bar afternoon office party on the employer’s premises and no one was designated to monitor alcohol consumption. After the party, the employee and some colleagues went to a pub for more drinks. She attempted to drive home and was involved in a car accident.
The trial judge found Hunt 75 per cent responsible and her employer and the pub 25 per cent jointly and severally liable, with damages assessed at over $1 million. The trial judge said the employer “should have foreseen or anticipated that some employees would stop for a drink on the way home” and that, as her employer, Sutton Group “owed her a duty of care.” The trial judge also noted, “the worsening of the weather added to the employer’s duty” and that duty was not discharged by offering cabs to the employees generally and Sutton Group should have “insisted on her leaving her keys at the office or on her taking a taxi” or should have called her husband to pick her up.
On appeal, Sutton Group argued that even if it had been negligent for allowing Hunt to leave the party intoxicated, their negligence was not the direct cause of the accident due to Hunt’s trip to the pub and consumption of more alcohol there. While the Court of Appeal agreed, they overturned the trial judge’s decision on procedural grounds, namely that the trial judge's discharge of the jury from hearing the case upon grounds of complexity and publicity. A new trial was ordered.
A 2009 case, van Woerkens v. Marriott Hotels of Canada Ltd., stands as a warning to employees. A man, who had worked for the Marriott for 22 years, was terminated for cause after engaging in inappropriate conduct at the company’s holiday party. A senior manager tasked with supervising the party failed to regulate alcohol consumption — in himself and others — and engaged in “sexually suggestive” dancing. Van Woerkens also condoned an after party with more drinking, where he inappropriately touched a female subordinate and then denied his behaviour when his employer investigated his misconduct later.
The court found the Marriott had just cause to fire van Woerken — that by engaging in physical conduct of a sexual nature with a subordinate employee at a time when she was highly intoxicated, it amounted to an abuse of power. His persistence afterwards in asking if she would pursue a sexual relationship with him amounted to sexual harassment. The court also found the plaintiff’s dishonesty during the investigation was sufficiently serious to erode his employer’s confidence in him.
The trial judge wrote in the decision — which has a section titled “The holiday party and its aftermath" — that “the plaintiff consumed alcohol to the point where it impaired his judgment and affected his behaviour that evening. His consumption of alcohol showed very poor judgment when he was one of two senior managers responsible for the supervision of the holiday party. That lack of judgment and its consequences, all contributed to Marriott’s loss of trust and confidence in the plaintiff.”
MacDonald says not becoming inebriated is rule No. 1 for employees and on the part of the employer, ensuring a safe route home. Employers should see it as “a given that some will drink to excess.”
Other do’s and don’ts for employees include dressing appropriately and behaving “as if your boss is watching.” Be mindful of your reputation — and remember all workplace policies, like those relating to harassment, still apply at holiday events.
“We need to be mindful of the fact that attending the office Christmas party is not a license to go wild,” MacDonald says.
The city of Hamilton has drafted a policy aiming to be more inclusive of its transgender citizens.
|Neena Gupta, partner in Gowling WLG’s Waterloo office and co-chair of the firm’s Diversity & Inclusion Council, says inclusive washrooms are a ‘profound way of including people in your community.’|
Neena Gupta, partner in Gowling WLG’s Waterloo office and co-chair of the firm’s Diversity & Inclusion Council, says she welcomes Hamilton’s new policy, calling it an “enlightened and proactive” move by the city.
The changes come after a local transgender woman filed the human rights complaint after being denied access by a security guard to the women’s bathroom at the MacNab St. bus terminal, despite the 2012 amendments to Ontario’s Human Rights Code legally protecting the right of a person to use whatever bathroom aligns with their self-identified gender. The woman — known only as A.B. in the tribunal proceedings and who has remained anonymous — was permitted to use the family bathroom instead.
“In the course of my work I have to tell you I’ve had transgender youth confide in me that they’re afraid of using the washrooms — afraid of being harassed by other users or passers-by,” Gupta says. “It’s really sad and so on a personal note, I think it sends a message of inclusivity and respect that this community — that has been very marginalized over history — needs to hear. Kudos to the City of Hamilton for doing this.”
The complaint was settled earlier this year, with the city apologizing and publically stating its intention to codify its existing policies concerning transgender rights. The city committed to a formal written policy reflecting its commitment to accessible and safe public facilities, such as washrooms and change rooms, as well as posting signs where they might be needed and offering more training to employees.
The remaining terms of the settlement were kept confidential.
Joyce Thomas, an associate at Lerners LLP in London, Ont., says it was a positive move on behalf of Hamilton to make that part of the settlement public.
“It does two things — first, it creates a positive precedent for other organizations to look to, but second it also strengthens the relationship with the LGBTQ community,” she says. “If that’s something the city really is looking to reinforce this would be something that would be welcomed.”
Bill 33, Toby’s Act, or the Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression was passed in 2012. The act amended the Human Rights Code to make it more inclusive and specifically include gender expression and identity as grounds for discrimination. It also ensures that everyone has the legal right to choose which washroom they use, according to the gender they identify with or live as.
“This whole issue of washrooms is more important than you think,” Gupta says, referencing the lack of accessible bathrooms for wheelchairs or even the segregated bathrooms in the United States during the era of the Jim Crow laws that made it illegal for black people to use the same washroom facilities as white people.
“Having inclusive washrooms is really a profound way of including people in your community.
Thomas says other cities or private organizations aren’t under an obligation to necessarily codify their transgender-related policies — as long as they are already in compliance with the human rights code.
“They don’t have to go through such a drastic change if they were regularly updating their policies and making sure they were meeting obligations under the code,” she says. “Their existing policies should already reflect those things that Hamilton is now codifying.”
Gupta adds that laws and policies are not effective unless they are operationalized, and training and education are her preferred methods of doing that — though she understands the need for her “least preferred methodology” of fines and penalties for non-compliance.
The city is awaiting feedback from the Ontario Human Rights Commission, an outside human rights adviser and an LGBTQ advisory committee.
An Ontario Court justice who wore a Donald Trump-inspired “Make America Great Again” ball cap to court has since apologized, but many are arguing that it’s not enough.
|Kim Stanton says when it comes to evaluating courtroom behaviour, the issue isn’t what the person intended when they acted in a concerning way but the impact of their action on people around them.|
“It seems entirely inappropriate for a judge to make such a display in a Canadian courtroom, and in particular because his actions appear in support of Donald Trump’s win as president and that on its own would be problematic — to just bring partisan politics into the courtroom — but to associate yourself with someone who has become so associated with Islamophobia and misogyny and racism is another level,” says Kim Stanton, legal director of LEAF, the Women’s Legal Education and Action Fund.
“If you were to appear in front of him in court whether as a litigant, as an accused person, as a witness or as counsel, you would have to wonder whether he can adjudicate in an unbiased manner.”
On Nov. 14, five days after Justice Bernd Zabel entered the courtroom wearing the red hat with the campaign slogan used by president-elect Donald Trump in the recent U.S. election, LEAF submitted a letter of complaint to the Ontario Judicial Council.
Beyond appropriate sanctions for Zabel, Stanton says LEAF hopes the OJC will also ensure there is broader judicial training to restore the public’s trust in the judicial system.
“When the public sees a judge acting in a way that does not comport with impartiality, it really does hit the confidence of the public in the justice system,” she says. “We want the judicial counsel to take this seriously with an eye to addressing this loss of confidence."
Emmett Macfarlane, assistant professor, department of political science at the University of Waterloo, calls Zabel’s decision “profoundly foolish and inappropriate” and says it warrants the condemnation it has received.
“Whenever we talk about judicial independence, it’s about shielding or protecting judges and the judiciary from politics or political criticism, and we don’t sufficiently recognize that judicial independence is truly a two-way street,” he says.
If society is expected to buy into the notion that judges are neutral arbiters of the law, they can’t engage in this kind of behaviour, he adds.
“This is almost mind-blowing that this judge could even entertain this let alone follow through on doing something so silly.”
Zabel has since apologized for his actions in a statement in a courtroom in the John Sopinka Courthouse Tuesday morning, calling it a “misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election.”
He said wearing the cap was a “lapse in judgment” and his intention was not to make a "political statement" or an endorsement of Trump’s controversial views.
"I apologize for any offence or hurt caused by my thoughtlessness," he said.
But for Stanton, while she acknowledges it’s important he acknowledges his actions were not appropriate, she says that’s not enough — and she’s not surprised he would apologize now given that there are complaints being made to the judicial counsel. She says LEAF has no intention of withdrawing its complaint and adds it’s incumbent upon the council to consider it regardless of the apologies.
“As with other aspects of equality law, the question isn’t really what the person intended when they acted in a concerning way, but the question is what was the impact of their action on the people in the courtroom.”
Macfarlane agrees the behaviour warrants some form of sanction, but he notes that if Zabel doesn’t have a track record, he doesn’t agree with those calling for his removal from office. He says that it is harsh for a one-off incident, but he adds that some official response is important because it’s not just about punishing one judge but about “making clear to the legal profession and society more broadly about why this is inappropriate and why judicial independence is important going both ways.
“Even if it was a plain cap with no logo or lettering, it would have been at a minimum odd but to a degree inappropriate,” he says. “If a lawyer walked in to a courtroom to speak before a judge wearing inappropriate attire, they could face sanction. The fact that it’s a cap of a political nature just exacerbates how absurd and problematic it is.”
The OJC is receiving a number of complaints, including one from the University of Windsor’s law school. David Tanovich, a law professor at the university, and 26 of his colleagues made a formal complaint on Nov. 15.
Stanton says she anticipates it will take a while for the judicial council to review the information from the multiple complaints and come to a decision regarding further action.
|Immigration lawyer Guidy Mamann says the volume of inquiries his firm has fielded from Americans wanting to ‘turn their backs on their country and American identity is actually quite remarkable.’|
Immigration lawyer Guidy Mamann, founding partner of immigration law firm Mamann Sandaluk & Kingwell LLP, says his firm always receives a handful of inquiries from Americans unhappy with the results of an election and looking to make a move to Canada, but “the volume we’ve received this year is unprecedented.”
“We’ve got more emails in the past few hours than we have in all previous campaigns,” Mamann says. “Americans are amongst the most patriotic people in the world and for them to actually think seriously about turning their backs on their country and American identity is actually quite remarkable.”
The tone of the inquiries is very different this year too, he notes — there’s an exhaustion, a sense of futility. It’s a “very, very historic time,” he says.“There is a visceral reaction to the election results and the perceived direction that the United States is about to embark upon."
As the republican presidential nominee inched closer to a surprising victory in the United States’ presidential election last night, disbelieving Americans began visiting the Citizenship and Immigration Canada website — so many, in fact, that the site temporarily crashed.
Mario Bellissimo, of Bellissimo Law Group, says the response to the very divided election was one he can only compare to the hotly contested Bush/Gore election in 2000.
“We’ve got a lot of calls, a lot of emails today,” he says. “Anxious people as the election was unfolding last night were already emailing. I think it’s somewhat unprecedented, at least in my lifetime, in terms of some of the issues that were raised.”
Bellissimo says because of the immigration website going down, they are currently unable to access the portal to file or review applications.
He points out immigration was a very hot issue in the presidential debates, and “some of the racial and ethnic divides became part of the narrative so I think that’s playing into the anxiety of many in terms of what their place might be in the United States moving forward and then they look to Canada as a potential solution.”
Reports say Internet searches about moving or immigrating to Canada spiked Tuesday night, ranking as a top trending Google search, as poll results rolled in red. Over one million tweets from the U.S. referenced Canada.
Mamann says every U.S. election brings chatter of moving to Canada from those not happy with the choice of the electorate, and that dies down after a few days. But in the case of this election, momentum only seems to be growing.
But moving to Canada isn’t as easy as it may seem — or as easy as Americans may wish it to be.
Mamann says it’s expensive and takes time. Canada is set to accept a record number of 300,000 people in 2017, including the specific allotment of refugees set out by the federal government. There is a set of categories with targets within each, Mamann says, as laid out on the federal government’s website.
Bellissimo adds that some people want to come temporarily to see how things play out in the United States, and those applications can be facilitated more quickly. He also sees the recent changes to Canada’s system aimed at processing applications faster as making the country more attractive to Americans who last checked in after the Bush/Gore election.
Regardless of what length of time an American might seek to stay in Canada, and whatever their reasons for the move, “there are no special privileges or favouritism given to any persons coming to Canada as a permanent residence by virtue of nationality — the fact you’re an American is not going to score you any more points than if you were a citizen of Russia or China or South Africa,” Mamann says.
Anyone can apply under the categories, assuming they meet certain criteria. Young candidates — those in their 20s and 30s — as well as those with a post-secondary education or a skilled trade with a few years of experience under their belts and a healthy savings account will get maximum points, he says.
Those with the most points are put in a pool and every month or two “the government goes fishing and skims the top candidates,” Mamann says.
A candidate can stay in the pool for a year, and if they aren’t selected have to register again.
Bellissimo says immigration lawyers will be “watching very closely how the policy unfolds in the United States in terms of any mass deportations, how the amnesty situation is dealt with, NAFTA, border perimeter control — all of these issues will inevitably affect Canadian immigration law and policy.”
With a Republican president, house and senate Trump is well-positioned to make changes.
“We’ll see if the tone remains the same or if we now shift into governance which is often, as we know, a lot more difficult than stating political positions during a campaign,” he says. “What becomes reality, what really is a priority in the first 100 days — it’ll be very interesting to see how it plays out.”
In a decision released yesterday, the Ontario Court of Appeal has overturned a conviction based on a juror’s conduct, which was ruled to have created a reasonable apprehension of bias.
Derek Welsman, jury foreman in R. v. Dowholis and producer of the since cancelled Dean Blundell show, appeared on the radio show and “made derogatory comments about sexual activity between men,” the decision reads.
|Mark Halfyard says he wouldn’t be surprised if the case goes further because 'there’s such a disagreement between the majority and the dissent.'|
“It is unusual just because factually you don’t often have a situation where the comments made by a juror are essentially on the record and can be used as evidence in court to suggest they at least displayed the apprehension of bias,” says Mark Halfyard, criminal lawyer at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP.
“It’s just a matter of happenstance because he just happened to be affiliated with this radio show and, therefore, word of the communications got back to the lawyers and they were able to file that material as fresh evidence on the appeal.”
Joshua Dowholis, an HIV-positive man convicted of sexual assault in 2014, will get a new trial due to Welsman’s conduct.
“I have concluded that the conduct of the juror created a reasonable apprehension of bias such that a new trial should be ordered,” said the judgment.
Jill Presser, principal at Presser Barristers and counsel for Dowholis, said in a press release that “the court is saying that homophobia is just as unacceptable as racism in the justice system and that’s a huge step forward. The court has elevated homophobia to the no-no list in the justice system and that is really significant.”
In the two-to-one decision, dissenting Justice David Doherty argued that the radio show was known to make fun of everything and aimed to be provocative, so comments made in that context can’t be seen as a reflection of the juror’s true beliefs. Although he noted that the remarks were “inappropriate and potentially hurtful,” he goes on to write that “sometimes a joke, even a joke that is offensive, is nothing more than a joke.
“The distinction between comments that are only intended to entertain and comments that provide real insight into the speaker’s beliefs can be difficult to discern,” wrote Doherty.
“I feel my position will be misunderstood, that I do not mean to assert that humour predicated on stereotyping or ridiculing identifiable groups is harmless or acceptable,” he wrote, but that is not the concern of the appeal court. A conviction cannot be quashed based on finding a juror offensive, he wrote. That can only happen when the court is “satisfied that the comments demonstrate a reasonable apprehension of bias giving rise to a miscarriage of justice,” a hurdle he did not feel the juror’s comments cleared.
Halfyard calls the disparity a difference of opinion between the judges when it comes to the type of venue in which the comments were made.
“When you’re assessing apprehension of bias, you have to look at the context under which the comments are made,” he says. “If they’re said in a hateful way where you’d actually expect the person to express bias as opposed to jest — I think there’s a real grey area there.”
Doherty did agree that a new trial was needed but on the basis of error in instructions to the jury by the trial judge.
In a detailed decision, Justice Mary Lou Benotto disagreed with Doherty and found that “the reasonable observer would expect that a person who comes before the courts would be treated with dignity and respect and not be publicly ridiculed by the person judging him. I conclude that a reasonable person, knowing all the facts, would apprehend that consciously or unconsciously it was more likely than not that this juror would not decide fairly.”
Benotto writes that Doherty’s reference to racial bias in another court of appeal case, R. v. Parks, at para. 59 applies equally to bias against homosexuals.
“The likelihood that a bias against gay men would affect the juror’s decision-making process is greater given his willingness to publicly disregard instructions, engage in homophobic rhetoric, and mock the court process,” she writes in the majority decision. “The issue is not whether the juror meant what he said. Nor is it whether he was in fact unfair. The issue is the impression that his conduct created.”
In the release, Presser agreed the focus shouldn't be on “whether this particular juror actually was homophobic or what the entertainment value is for the radio broadcast" but on upholding the integrity of and appearance of fairness in the justice system.
Halfyard says he wouldn’t be surprised if the case goes further because “there’s such a disagreement between the majority and the dissent.”
After a year and a half of internal consultation, Ryerson University has taken the first steps towards opening its own JD program.
On Oct. 20, the law school originating committee released a letter of intent following initial consultations with the community. The committee, comprised of faculty members from across disciplines, used community feedback to write the letter of intent, which is the first step in the process of developing the JD program. On its website, the university states “the proposed program focuses on innovation in legal education for the benefit of graduates, their communities, and the broader society.”
Chris Bentley, executive director of the Legal Innovation Zone and Law Practice Program at Ryerson, says the law school being proposed is fundamentally different than what’s on offer currently. He says when people talk about challenges law students have securing articling and full-time positions, they forget the multiple studies talking about unmet legal need.
“If you’re in another business, you get innovative,” he says. “You say that’s a market — in Canada, and North America, it’s a market for millions and millions of dollars. There’s work out there we’re not going after as lawyers because we can’t change fast enough to get that market. If we don’t change others are going to get it.”
Bentley says the challenges law students face after graduating have to do with out-of-date legal training, not lack of need.
Ryerson also released a whitepaper entitled Training Tomorrow’s Legal Professionals that says the legal practitioners of the future need different skills than lawyers from 20 years ago. New lawyers will “need to be creative and skilled problem solvers, strategic planners, and process managers with the financial literacy, technological competency, and entrepreneurial spirit needed to serve consumers.” To achieve this, they need a “dramatically different” law school experience, which is what Ryerson says its proposed program will offer — a law school designed to specifically address issues in the legal industry.
“We don’t have a law school that’s graduating this kind of student — not yet, not until we set it up and launch it,” Bentley says.
“We all know the struggles society is facing when it comes to the law — it’s unaffordable, too complex, too slow, we haven’t involved technology as we should. If you train people in the traditional way you’re going to get more of the traditional approach.”
He adds that the entrepreneurial and innovative energy Ryerson bases its programs on is something the law desperately needs. He says Ryerson’s proposed law school offers a great opportunity to prepare lawyers to “grab a piece of the unmet legal need out there.”
One of the mandates of the new program is to incorporate the relevant elements of the Legal Innovation Zone and Law Practice Program, the latter of which is under review by the Law Society of Upper Canada. The law society recommended the LPP be cancelled after the committee’s report — which was based on surveys and focus groups with employers and candidates — said despite positive reviews, it fell short of providing a sustainable alternative to articling that was accepted by candidates and the legal profession. Bentley says the fate of the LPP is still up in the air as only a sub-committee of the law society has spoken on the issue. Full convocation still has to weigh in so nothing will be finalized until Nov. 9, Bentley says, adding that he’s still hopeful.
Ryerson has long been after its own law school, publically announcing its intention to start the internal process to develop one a year after the launch of the English LPP.
“The practical, hands-on experience Ryerson has gained in administering the Legal Innovation Zone and Law Practice Program will be utilized in developing and delivering the program’s curriculum,” states the whitepaper.
“This includes the incorporation of the entrepreneurial aspects of legal education, the use of simulated online legal files and in-class role-playing, the formalization of mentorship relationships, and employment of the most recent electronic tools. All represent key pillars of the new program and will form the basis of Ryerson’s distinctive approach to legal education.”
In an email, Law Society of Upper Canada spokeswoman Susan Tonkin said the law society is “interested in and following Ryerson’s proposal, but it’s still very early days in the process.”
Ryerson, which hosted the first of two town halls for students, faculty and staff on Oct. 25, is offering the second town hall on Oct. 27 and asking for input from the community before Nov. 17.
The letter of intent is the formal step needed for getting internal Senate approval at Ryerson, Bentley says, and after all consultations are held a final proposal will be sent to the Federation of Law Societies of Canada and the LSUC for approval, as well as to the Ontario government for funding.
Despite the dismissal of an injunction request attempting to stop the Cleveland Indians baseball team from using its name and logo during the play-off game against the Toronto Blue Jays on Monday, lawyers involved in the case say the fight is far from over.
|Rebecca Jones, partner at Lenczner Slaght Royce Smith Griffin LLP, says the important thing is that failing the test for the injunction is different from a determination on the merits of their case.|
The issue centres on the team’s logo, Chief Wahoo, a red-skinned cartoon head with a toothy grin and a feathered headband considered to be a caricature of an aboriginal man, combined with the name Indians. Canadian indigenous activist Douglas Cardinal filed human rights complaints with both the Human Rights Tribunal of Ontario and the Canadian Human Rights Tribunal, as well as an application for an interlocutory injunction with the Ontario Superior Court of Justice pending the outcome of the human rights complaints, against Cleveland Indians Baseball Co. Ltd. Partnership, Major League Baseball and Rogers Communications Inc.
Cardinal, who is of Blackfoot descent, wants a ban on the use of the logo and the word Indian in association with that logo, which the case argues is racist and discriminatory under Canadian law.
“What we’re saying is when you deliver a service in Ontario, whether it be Rogers through the Rogers Centre or its broadcast, or the Cleveland team by coming and participating in that service, when you’re in this province you have to deliver that service without discrimination,” says Rebecca Jones, partner at Lenczner Slaght Royce Smith Griffin LLP and counsel for Cardinal.
The factum for the injunction says the aim is to end, at least in Canada, “the use of a racist name and logo that has no place in Canadian society.”
It goes on to say the use of the name and logo “discriminate, harass, and incite discriminatory conduct against persons of Indigenous descent” and argues without the injunction, the offensive name and logo will be given an “unprecedented platform in Canada. That will further perpetuate and normalize discrimination against Indigenous Peoples.”
Justice Thomas McEwen has yet to give reasons for his ruling.
Another of the lawyers representing Cardinal, Paul-Erik Veel also of Lenczner, says he was disappointed with the judge’s decision, but adds the rejection of the injunction does not necessarily touch upon whether the name and logo are discriminatory.
“The question of whether an injunction is appropriate involves a lot of considerations beyond the merits of the case and one of the things our opponents argued quite strenuously was all of the practical problems that could emerge if an injunction was granted,” he says.
"Having to make the last minute changes on three hours’ notice they said would pose significant inconvenience and would essentially be impossible.”
Jones says the important thing is that failing the test for the injunction is different from a determination on the merits of their case. She says applications to the human rights tribunals were filed on Oct. 14.
Some of the allegations relate to the broadcast of the offensive logo and team name, which is a federal issue, while hosting the game in Ontario sees the matter also fall under provincial jurisdiction, which is why applications were filed with both federal and provincial human rights tribunals.
“Under Ontario human rights law you can’t have discrimination in the delivery of a service and there are various grounds of discrimination that are prohibited,” she says.
“What’s going to be before the human rights tribunal is whether or not offering a service to the public — which is a sports event — whether or not using the Chief Wahoo logo and in particular the Chief Wahoo logo in association with the name Indians, constitute discrimination in the delivery of a service.”
Jones, who says it’s an important case about racial discrimination in the delivery of services in Ontario, points out they aren’t seeking anything that would have an “extra-territorial effect” by impacting use of Cleveland’s name and logo in other jurisdictions.
“If the human rights commission found in our favour what it would mean would be that while the team is playing in Ontario, they would play using their jerseys that contain the C logo which they’ve identified as being their primary logo in any event,” Jones says.
They already have various types of jerseys, she says, including ones that say Cleveland across the chest. The team would have to wear jerseys that combined their C logo and the word Cleveland instead of jerseys that say Indians and Chief Wahoo. Similarly, when broadcast to the Ontario public, the broadcast would call the team Cleveland and use the C logo.
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