Legal Feeds Blog
The Law Society of British Columbia has recently discontinued a pilot project which allowed designated paralegals to appear in court. However, that doesn’t mean the LSBC has given up plans to regulate paralegals; legislating the provision of legal services by non-lawyers is still very much on the plate, says LSBC president Herman Van Ommen.
|“I think the profession here didn’t know what they could do with paralegals” in court, says Herman Van Ommen.|
The paralegals-in-court pilot project, which ran from January 2013 until autumn 2015, was part of the LSBC’s “access to justice” initiative. During this pilot project paralegals could independently make procedural appearances in court, for example, and book dates. However, only three members of B.C.’s 1,300-strong bar sent paralegals to court in their stead; this may be because paralegals are less commonly used in B.C. than in a jurisdiction such as Ontario, where about 7,500 paralegals are licensed by the Law Society of Upper Canada.
“I think the profession here didn’t know what they could do with paralegals” in court, says Van Ommen.
However, he stresses, the LSBC’s designated paralegal program continues. In 2013, 345 B.C. lawyers supervised designated paralegals (at a maximum of two per lawyer), and in 2015, 647 did so, says Van Ommen.
The LSBC defines a “designated paralegal” as “a paralegal who can perform additional duties under a lawyer’s supervision” such as giving legal advice to clients and appearing before tribunals, as permitted, or at family law mediations.
The title “designated paralegal” does not affix to the paralegal as a right, and the title does not transfer with the paralegal from job to job or from supervising lawyer to supervising lawyer, according to the LSBC’s website. “Designation is an active process by the supervising lawyer. Even if a lawyer has a designated paralegal, the role requires consideration on a case-by-case basis as to whether a particular matter is suitable to delegate to the designated paralegal.”
“We’ve given lawyers the authority to allow paralegals to do more than they could in the past,” Van Ommen explains, which is expected to lead to the regulation of paralegals. “The [B.C.] government has been very cooperative [and] supportive, and so we anticipate having legislation that will enable us to regulate and create classes like paralegals. Washington state has done something similar [and] we’ll be looking at Ontario when it comes to setting up classes of legal service providers. Ontario has a long history of this,” having been the first jurisdiction in North America to regulate paralegals, in 2007.
Regulation of paralegals, whose fees are much lower than those of lawyers, is “an important component” of access to justice for B.C. residents, says Van Ommen.
“We intend to proceed on that project,” he says: “the creation and regulation of paralegals. Anyone can call themselves a paralegal now . . . We want to create a class of legal service providers that may be called paralegals, with set-out scopes of practice and education requirements.
“Most of the existing paralegals will always remain working under the supervision of lawyers,” he adds. However, “when we create these classes [of legal service providers], hopefully some will take the education and do a lot more.”
The gap between the number of Canadian youth in pre-trial detention versus those in sentenced custody has once again begun to widen.
|Source: Statistics Canada|
“Certainly we are concerned about the fact that the numbers are higher for remand custody than for an actual custodial sentence,” says Samira Mobina Ahmed, litigation lawyer at Justice for Children and Youth in Toronto, adding however that the gap looks pretty narrow.
“That’s an indication that judges are using the right factors as outlined in the Youth Criminal Justice Act for when detention can be used — as a measure of last resort, so it should be that there is a small discrepancy.”
The study, titled Trends In The Use of Remand in Canada, 2004/2005 to 2014/2015, documents the results of four surveys — the Corrections Key Indicator Report for Adults and Youth, the Adult Correctional Services Survey, the Youth Custody and Community Services Survey and the Integrated correctional Services Survey — when it comes to use of remand in Canada. The first survey offered average counts data while the remaining three were used for data on admissions. The analysis doesn’t include federal correctional service data, as it does not supervise remand, or people held in ‘temporary” detention such as immigration holds.
The Criminal Code allows for detention prior to a finding of guilt “to ensure attendance in court; for the protection and safety of the public, including any victims of or witness to the offence; and to maintain public confidence in the justice system,” says the report.
While the number of youth arrested and sentenced overall, as reported by 12 provinces and territories, has declined over the years — with remand count in 2014/2015 down 33 per cent from 10 years ago and the number of youth in sentenced custody made an even larger drop of 60 per cent — this is chalked up to a drop in young people entering the system at all. The number of young people charged with a crime fell 46 per cent nation-wide, but statistically, of those arrested, time spent by youth in pre-trial detention did not change that much over the same time period.
“The numbers are on the decline, which is a good thing. Hopefully this is a reflection of the appropriate application of the YCJA,” says Ahmed. “The sentencing principles allow for there to be lots of discretion on the part of the judge to determine what the appropriate sentence is. Specifically for pre-trial detention, it shouldn’t be used as a substitute for mental health, social or child welfare needs and I think that’s still something courts struggle with which could account for any widening in the gap that you see from time to time.”
In 2014/2015, more than 81 per cent of youth released from remand in the nine jurisdictions that reported figures spent one month or less in pre-trial detention, a “proportion unchanged from 10 years earlier.” Over half of those remanded were there for one week or less — up slightly to 56 per cent from 53 per cent in 2004/2005.
In 2014/2015, and in the eight jurisdictions where information was available, Aboriginal youth made up 36 per cent — or more than one-third — of youth admissions to remand custody. This is five times their representation in the general population. In 2004/2005, this percentage was much lower at 21 per cent. Aboriginal young people in sentenced custody was also disproportionally higher.
“Our office is very concerned about the high percentage of aboriginal young people that are before the courts,” Ahmed says, noting she is unable to, based on the data provided, comment on whether this is an indication that the Gladue Principles aren’t properly being applied in the youth criminal justice context but adds “that’s certainly something we would want to make sure was at the forefront of all consideration for youth that were before the youth courts.”
For the adult population, the report doesn’t have any good news. Across the country, provinces and territories saw the adult remand number rise between 2004/2005 and 2014/2015. Nova Scotia, Northwest Territories, Manitoba and Alberta each saw over 100 per cent increases in average daily counts.
In 2014/2015, compared to 10 years earlier, the number of people in remand has grown almost six times more than the number in sentenced custody, increasing 39 per cent over the last decade while the number in sentenced custody increased seven per cent.
One in four of people admitted to remand in 2014/2015 were Aboriginal, with the exception of statistics from Alberta and Prince Edward Island. This is almost eight times greater than the representation of Aboriginals in the overall population. The statistic is also up nine per cent from 2004/2005, when the number stood at 16 per cent.
Lawyers for the plaintiff in a youth solitary confinement class action against the province of Ontario are appealing an order that their client produce his young offender records to the Crown.
|James Sayce says judge doesn’t have jurisdiction over young offender records.|
J.K. v. Her Majesty the Queen in Right of the Province of Ontario involves allegations of Ontario’s “over-reliance on the use of solitary confinement on minors in Ontario’s youth justice facilities.”
The class action claims $100 million in damages for negligence and breach of fiduciary duty and $25 million in punitive damages. It covers everyone detained or incarcerated at youth detention centres from Jan. 1, 2007 to the present and were placed in secure isolation while under the age of 18. Lawyers for J.K anticipate the proposed class to “number in the thousands.”
J.K. alleges the Crown was “negligent, in breach of fiduciary duties, and has breached the Class Members’ rights under s. 7,9, and 12 of the Canadian Charter of Rights and Freedoms.
On Dec. 22, 2016, Justice Paul Perell of the Ontario Superior Court of Justice ordered J.K. to produce his young offender records to the Crown. Perell ruled that records relating to J.K.’s crimes and incarceration, which took place when he was a minor, are relevant to his motion to certify the matter as a class proceeding.
Perell said that “by commencing this class action and by delivering an affidavit, J.K. has waived his right of privacy while at the same time preserving the rights of privacy of the putative Class Members, who under the Class Proceedings Act, 1992, are protected from discovery without leave of the court.
“To be a representative plaintiff is to be a champion for the class and I anticipate that J.K. will be prepared to be a champion and make the necessary disclosure of relevant documents,” Perell said in his decision, noting “appropriate orders” can be made to seal the court file and that J.K. would be protected by the deemed undertaking rule.
The order asks for J.K.’s records for before, during and after his incarceration in a number of youth justice facilities in Ontario. The documents include behaviour reports, youth management plans, serious occurrence reports, secure isolation release plans, secure isolation observation placement review, secure isolation observation logs, and other correspondence.
Before the age of 18, J.K. was convicted of several criminal offences, and incarcerated at three different youth centres. He was placed in secure isolation several times in two of the locations, the first time when he was 15 years old. At one, he said the placements lasted up to 12 hours each time in a “small soiled room with no bathroom, bed, chair or mat.”
The Crown had also requested a full criminal history file from the Canadian Police Information Centre, however Justice Perell refused to order the production of that file.
J.K.’s lawyers, Koskie Minsky LLP and Sutts Strosberg LLP, are appealing Perell’s decision and have brought a motion to stay the order pending the appeal.
“Everything Justice Perell ordered to be produced is protected by the Youth Criminal Justice Act,” says James Sayce, an associate from Koskie Minsky.
“We think there are serious grounds for appeal and that the Court of Appeal will take issue with some of Justice Perell’s reasoning and what’s in the order,” he says. “We think Justice Perell has made some errors.”
“The acts, the occurrences, events that take place while you are incarcerated or while being rehabilitated are not to be published to the public or to individual litigants in litigation,” says Sayce.
Criminal lawyer Daniel Brown points to R. v. Sheik-Qasim that covers the rationale for protecting such records.
Brown says while there are a number of scenarios where someone could gain access to YCJA records, none in s. 119 of the Act would apply to defending a civil lawsuit.
“It’s surprising that this judge would order that the young person needs to disclose his records in order to advance a civil action. It would appear to run contrary to the principles of the Youth Criminal Justice Act and the purpose behind sealing those records in the first place,” he says.
The Crown argues that the Youth Records are relevant to the certification motion with respect to whether J.K. was in secure isolation, the particulars of the institution and time spent in isolation and whether he is an “appropriate representative plaintiff” as well as to test his “credibility on the matters about which he deposed in his affidavit.”
As it stands, J.K. has been ordered to obtain the files and produce them to the Civil Law office Crown.
Sayce says the relevance of ordering the records to be produced is at issue as a certification motion is not about the merits of the claim but asks, “Can it work as a class action?”
In his decision, Perell acknowledged that “a judge, managing a class action is not a judge of the Youth Justice Court” and that he doesn’t have jurisdiction to make an order under the Youth Criminal Justice Act to grant access to records. However, he decided that:
“…it is patently obvious to me that the requested Youth Records are relevant to the certification criterion, most particularly to the common issues and preferable procedure criteria.
“The proposed common issues for the class actions concern the details of the circumstances and duration of placement in secure isolation.”
Sayce says the case is about a “systemic problem”, not about one individual’s experience.
The Office of the Provincial Advocate for Children and Youth released a report in 2015 entitled It’s a Matter of Time, which provides details on the use of solitary confinement on children in Ontario.
The report takes issue with the use of solitary confinement in Ontario’s youth justice facilities and advocates for greater safeguards and/or the complete eradication of the use of solitary confinement on children in Ontario.
Marineland denies animal cruelty charges filed by Ontario's SPCA, Canadian Press
Domestic violence debate emerges in N.S. murder-suicides, Canadian Press
An Alberta judge heavily criticized for remarks he made during a sexual assault trial has asked again to make oral arguments to the Canadian Judicial Council, in his fight to remain on the bench.
|Justice Robin Camp is asking to oral submissions through his lawyers to the Canadian Judicial Council. Photo: Canadian Press|
Last November, an inquiry committee for the council in charge of reviewing Camp’s conduct unanimously recommended that he be removed from the bench.
However, in a response to the committee made available on Jan. 6, Camp has asked the council “to find that his misconduct was the product of unconscious bias and remediable ignorance.”
“Justice Camp’s misconduct was the product of ignorance, not animus. His legal decision making was reasonable,” said the submission, submitted by Camp’s counsel.
“He apologized and rehabilitated himself. In the circumstances, the ultimate sanction of removal is counterproductive.”
In the submission, Camp reiterated a request to make oral submissions through his counsel.
“The notoriety, the evidentiary and policy issues, and the extent of remorse and rehabilitation make this a highly unusual case. Justice Camp is the first judge to fight for his office and his reputation since the Council amended its bylaws in 2010 to remove the express right to oral submissions,” said the submission.
The 25-page submission notes that Camp made “instant, repeated and sincere apologies” and was “quick to acknowledge that he had failed in his judicial duty.”
“He apologized as soon as he was confronted with the law professors’ complaint.
As he came to understand the depth of his error, he apologized again and more fully,” said the submission.
“His apologies developed in exactly the way one would expect from an ethical jurist confronted with an unknown personal failing, who gradually comes to understand the nature of the problem.”
However, in its findings released last fall, the committee stated “that Justice Camp’s conduct in the Wagar Trial was so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the Judge incapable of executing the judicial office.”
“Accordingly, the Inquiry Committee expresses the unanimous view that a recommendation by Council for Justice Camp’s removal is warranted,” said the report and recommendation of the Inquiry Committee to the Canadian Judicial Council.
Kim Stanton, legal director for the Women’s Legal Education and Action Fund, said Camp “had a fulsome opportunity to make his case before the Committee during the hearing in September.”
“The question for the Council is not whether the judge is sorry, but whether public confidence in the judge is sufficiently undermined to render him or her incapable of executing judicial office in the future in light of his or her conduct to date.”
“The test is to be considered from the perspective of a reasonable and well-informed person,” she said.
“As stated by the Coalition (of which LEAF was a member) in our submission to the CJC Committee that conducted the inquiry in this matter, the reasonable person must include the perspective of survivors of sexual assault, and marginalized women generally, as they are entitled to a judiciary that rejects sexual myths and stereotypes and understands and respects equality.”
Frank Addario, a Toronto-based lawyer acting for Camp in the matter, said he no additional comment on the matter.
In this first week of the Supreme Court of Canada’s winter session, the docket comprises three civil cases, with two involving the government: the Quebec Attorney General as appellant in the first case, concerning health law, and the Minister of Public Safety and Emergency Preparedness as the respondent in the third, on immigrant admissibility.
January 11 – Quebec – Quebec v. Guérin
Health law: Quebec’s AG is applying for leave to appeal the judgment of the Court of Appeal in October that dismissed the appeal from a Superior Court judgment allowing the motion for judicial review brought by the respondent, Dr. Ronald Guérin. Guérin had asked the council of arbitration to declare that the clinics he represented met the necessary conditions for obtaining a special fee. The issue is whether a medical specialist may submit that dispute to the council of arbitration established by s. 54 of the Health Insurance Act or whether only the medical specialist’s representative association has the interest required.
Read the Quebec appellate court decision here.
January 12 – Quebec – Uniprix v. Gestion Gosselin et Bérubé
Contract law: The parties had been bound by a contract of affiliation since 1998. A clause in the contract provided that the contract would be renewed automatically every five years unless the respondents gave notice to the contrary. Six months before the contract term expired, the applicant sent a notice of non-renewal. The respondents, the beneficiaries of the renewal clause in the contract, refused to allow the applicant to terminate the contract in that way and brought a motion before the courts for a declaratory judgment and permanent injunction.
Read the Quebec appellate court decision here.
Related law firm bulletins:
Can you be contractually bound to another party forever? McCarthy Tétrault LLP
To the end of the term and beyond: perpetual renewal clauses considered legal; Lapointe Rosenstein Marchand Melançon LLP
Automatic renewal provisions and perpetuity; Osler, Hoskin & Harcourt LLP
January 13 – Federal – Tran v. Minister of Public Safety and Emergency Preparedness
Immigration law: On January 18, 2013, Thanh Tam Tran, a permanent resident in Canada, was convicted of operating a large marijuana grow operation. Under the Immigration and Refugee Protection Act, permanent residents are inadmissible to Canada if they have been convicted of acts of “serious criminality” carrying maximum prison terms of at least 10 years. The maximum sentence for the marijuana offence was seven years at the time of the offence but 14 years at the time of Tran’s conviction, and he received a conditional sentence. In 2013 Tran was referred by the respondent to the Immigration and Refugee Board to determine whether he should be removed from Canada for serious criminality.
Read the Federal Court of Appeal decision here.
Related law firm bulletins:
Conditional Sentence is not Imprisonment in Inadmissibility for Serious Criminality; Legally Canadian Immigration Law Firm
Inadmissible and Removable Classes: Conditional sentence did not represent term of imprisonment; Law Times
PMO held talks with Trump team to avert trade war, Globe and Mail
Supreme Court ruling opens door to more B.C. teaching jobs, Globe and Mail
- Saskatchewan lawyer brought suit in response to blog posts
The Ontario Court of Appeal has upheld an $80,000 libel judgment against conservative provocateur and former lawyer Ezra Levant.
|Gil Zvulony says the decision highlights how important context and motivation are in defamation cases.|
The blog posts concerned hearings at the B.C. Human Rights Commission that came out of a dispute between Maclean’s magazine and Awan when he was a law student at Osgoode Hall Law School.
Awan and three other students filed a complaint at the Ontario Human Rights Commission, as well as the Canadian Human Rights Commission, over a 2006 Maclean’s cover story they said was Islamophobic.
Mohamed Elmasry, the president of the Canadian Islamic Congress at the time, filed a third complaint in B.C., and Awan testified at hearings in that matter. The complaint was later dismissed.
Levant live-blogged the first two days of the hearing, and he subsequently published nine blogs that spurred Awan to launch his libel suit.
Levant had frequently written about Elmasry, a controversial figure, who had made a statement in 2004 “suggesting that all adult Israelis were valid targets of violence,” according to the decision.
In blog posts, Levant called Awan a “serial liar.” He also said Awan, who used to be the youth president of the Canadian Islamic Congress, was an anti-Semite. He called Elmasry an “anti-Semite-in-chief” and said Awan was Elmasry’s protégé.
Levant argued that his words were not defamatory because of his reputation “as someone who is provocative and controversial.” He also tried to defend his statements under fair comment, contending they were not intended as statement of fact but as opinion.
Matheson found Levant’s statements accusing Awan of being a liar and an anti-Semite were defamatory. She found some of his other statements could come under fair comment but that Levant was motivated by malice, and as such, the fair comment defence would not apply.
Matheson also determined that Levant had made little or no effort to fact-check his statements.
She ordered Levant to take down the defamatory posts and awarded $50,000 in general damages, as well as $30,000 in aggravated damages, to Awan.
Levant appealed the damages, as well as the judge’s finding that the posts were libellous.
The Court of Appeal disagreed with Matheson’s characterization of Levant’s statements that Awan was an anti-Semite as statement of fact, saying they were opinion. But the court upheld Matheson’s finding that Levant was motivated by malice, defeating the fair comment defence.
“Although the trial judge erred in her characterization of the appellant’s blog statement that the respondent was an anti-Semite as a statement of fact rather than opinion, the defence of fair comment cannot apply if the statement was made, as the trial judge found, with malice,” Justice Kathryn Feldman wrote in the decision.
Brian Shiller, the lawyer representing Awan, says the decision is further confirmation that what Levant said about his client was false and defamatory.
“The most important result you can achieve in a defamation case for a plaintiff is vindication of their good name,” he says.
The Court of Appeal also upheld the damages Matheson awarded.
Gil Zvulony, a Toronto defamation lawyer, says the decision highlights how important context and motivation are in defamation cases, as the claim could have been defeated if there was not a finding of malice.
“The words at issue in a defamation case don’t stand alone,” he says.
“You have to look at the context in which they were written and you also have to look at the motivation of the speaker.”
In an email, Levant said he intends to apply for leave to appeal the decision to the Supreme Court of Canada.
On one of his websites, Levant said the Court of Appeal ruling has implications for freedom of expression.
“I’m worried that this ruling sets a precedent, and it is now legally dangerous to call out an anti-Semite as anti-Semitic,” he wrote.
Shiller, however, says that is not the case, as Levant could not factually support his assertion that Awan was an anti-Semite.
“Mr. Levant is a very clever wordsmith and I don’t believe the decision stands for that,” he says of Levant’s comment.
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