Legal Feeds Blog
Syrian refugee claimants who apply for refugee protection division coverage will be issued a 10-hour expedite legal aid certificate under a new pilot project from Legal Aid Ontario.
The expedite certificate covers the preparation and filing of the basis of claim and other documents such as submissions under the Immigration and Refugee Board of Canada’s expedited process established for Syrian refugee claimants. Last month, the board announced it would begin to expedite Syrian refugee claims. The process applies to Syrians who are in Canada and making a claim on Canadian soil.
A regular refugee claim would receive seven hours of coverage from legal aid to do the initial basis of claim form and then another nine hours for the hearing stage. While immigration lawyers say that’s never enough time to handle a claim, the provision for Syrian refugees under the expedited process is welcome.
“Generally, I think 16 hours for a refugee claim is very low. I’ve never been able to do a claim in 16 hours,” says Jacqueline Bonisteel, an immigration lawyer with Perley-Robertson Hill & McDougall LLP.
“That said, the hours make sense because you’re still doing the basis of claim plus an additional three hours to put the documentation together and there is no hearing preparation required. In general, it would be great to have more hours from legal aid for refugee claims, but this standard makes sense.”
However, Bonisteel says the LAO web site indicates claimants may not find out whether they’re approved for the expedited process until very close to the hearing date.
“When you submit your paperwork, you will be asking for the expedited process, but by the time you get an answer from the Immigration and Refugee Board, your hearing could be getting close and if you don’t have the assurance, you will want to be preparing your client for a hearing just in case,” she says.
If a client does require a hearing, Bonisteel says LAO has said it will grant an additional six hours to prepare.
“This all happens so fast that in general, it can be very difficult to get the answers you need from legal aid in time and you end up doing work without the assurance of having the hours,” she says. “I do see that there may be an issue there.”
Bonisteel applauds the board for bringing in the expedited process for Syrian refugees and suggests it should be extended to claimants from other countries.
“It’s hard to argue it’s not a good thing. I think there are other countries where it should be introduced — for Iraq and Afghanistan, perhaps,” she says. “I’ve often had to go from Ottawa to Montreal for a hearing, and the whole thing is over in half an hour because the case was so clear. I think it makes a lot of administrative sense to not have the claimant have to go through [the hearing] process. If this works well, it would be great if the IRB would consider other countries where it is quite clear a claim is genuine.”
Winnipeg court hears arguments about suspected terrorist, Canadian Press
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The swearing in ceremony of prime minister-designate Justin Trudeau and his cabinet on Wednesday will mark the beginning of a lawyer-heavy Liberal majority government reign for the next four years.
|Ralph Lean predicts lawyers Catherine McKenna and Dominic LeBlanc will be among those chosen for the federal cabinet this week.|
The 184-member government caucus includes 43 MPs with law degrees, according to the Liberal Party of Canada.
According to Lean, Catherine McKenna of Ottawa Centre is one of the most notable lawyers elected to the House of Commons last month with a strong shot at a cabinet position. She’s one of eight women lawyers in the Liberal caucus.
Her background includes serving as executive director of Canadian Lawyers Abroad and practising at leading firms in both Canada and Indonesia with a focus on international trade, competition, investment, and constitutional matters. She comes to Parliament after defeating NDP veteran Paul Dewar last month.
“I’ve heard very good things about her from the Liberals I know,” says Lean.
Other lawyers in the Liberal caucus include Prof. David Lametti of the McGill University Faculty of Law; Will Amos who has a background in environmental law and natural resources; and Nicola Di Iorio, whose practice focuses on labour and employment law.
Veteran MP Dominic LeBlanc is another lawyer Lean believes will be in cabinet. “He’s been around for a very long time, he is very close to Trudeau. I think he probably will go in,” says Lean.
Despite the heavy presence of lawyers, he’s not sure it’s particularly important to have so many of them in the government caucus.
“Other than the attorney general and minister of justice, you don’t necessarily need a bunch of lawyers,” he says.
Nevertheless, the lawyer-heavy governing caucus is a change from more recent federal elections and is definitely a difference from the situation at the provincial level in Ontario where just seven lawyers won seats at Queen’s Park in 2014.
Among the considerations this week, Lean notes, is Trudeau’s commitment to gender parity in cabinet. “I am always hopeful that the prime minister of whatever party chooses the best candidate,” says Lean, a well-known Conservative.
This week, the Supreme Court of Canada will hear four appeals, including a number that will have particular significance for the legal community. On Monday, the court will hear arguments on solicitor-client privilege for notaries. On Tuesday, hearings will be held on pre-sentencing credit. And on Friday, the top court will look into the SNC-Lavalin Group Inc. corruption case and whether international organizations are indeed immune from court processes.
Nov. 3 – Quebec – Attorney General of Canada v. Chambre des notaires du Québec
Charter of Rights: The Income Tax Act authorizes the minister of national revenue to require any person to provide information or documents that may assist in enforcement or administration, including advocates and notaries. An exemption for solicitor-client privilege with highly specific definitions is provided for in the act. Chambre des notaries du Québec successfully applied for a declaration that the act contravened Canada’s Charter of Rights and Freedoms. The top court will review the attorney general of Canada’s appeal.
Read the Quebec Court of Appeal’s decision
Nov. 4 – Ontario – R. v. Safarzadeh-Markhali
Charter of Rights: The Crown seeks to appeal the lower court decision to strike down provisions in the Truth in Sentencing Act related to credit for time served in custody prior to sentencing. The applicant has sought a declaration that amendments envisioned under the act, which limit credit to 1:1 in specific circumstances, are in breach of the Charter. The top court will review the appeal court’s decision.
Read the Ontario Court of Appeal’s decision
Related news stories:
Nov. 5 – Newfoundland & Labrador – Neville v. R.
Criminal Law: Steven Neville was convicted of second-degree murder and attempted murder in an incident in which he stabbed two people. At trial, the jury was instructed on the definition of concepts such as first- and second-degree murder, manslaughter, attempted murder, aggravated assault, self-defence, and provocation. During deliberations, the jury asked whether “the legal definition of ‘to kill’ is the same as ‘to murder.’” Instead of responding directly, the trial judge referred the jury to written instructions. On appeal, a dissenting judge found that the lack of direct guidance constituted an error in law.
Read the Newfoundland & Labrador appeal court decision
Related news stories:
Nov. 6 – Ontario – World Bank v. Wallace
Public international law: The respondents are former employees of SNC-Lavalin who were charged with bribing a foreign public official under the Corruption of Foreign Public Officials Act in relation to a project in Bangladesh. The World Bank had approached the RCMP and provided information about the allegations. At trial, the respondents subpoenaed employees of the World Bank and demanded that certain documents be produced. The Superior Court of Justice granted the application, but the World Bank objects on grounds that it’s an international organization and thus immune from court processes. The organization has successfully applied for an accelerated hearing at the Supreme Court. The court will review the parameters of immunity for international organizations.
Halifax police search for suspects after man stabbed in home, Canadian Press
With the passing of the Law Society of Upper Canada’s 2016 budget on Oct. 29, Convocation has kept lawyer and paralegal annual fees at 2015’s levels.
It also debated the potential use of a $1-million contingency fund and ultimately agreed that if future projects eat up that money this year, Convocation would consider running a deficit to ensure the new initiatives move forward.
Audit and finance committee co-chairman Peter Wardle presented the 2016 budget, saying one of the main priorities was to keep fees as stable as possible. Wardle said those fees, based on budget projections for 2017-18, should remain the same for the next few years as more lawyers and paralegals begin to practise. Annual fees for 2016 will remain at $1,866 for practising lawyers and $996 for paralegals. Wardle said the law society has managed to keep fees under control, comparing them to British Columbia where the amount is $1,992 for lawyers or Alberta’s $2,620.
“Our base fees increase as the professions continue to grow and that growth, of course, also increases the demands on the law society’s resources,” said Wardle, noting the budget includes a two-per-cent provision for salary increases with the equivalent of about nine new full-time administrative staff positions created in the past year after two years of staffing reductions.
The budget projects revenue and funding of $110 million, up from a little more than $107 million in 2015, but with expenses of just under $111 million.
Benchers held a retreat earlier this summer where a number of future projects or initiatives to further such things as mentoring or access to justice were discussed. Wardle said the budget committee anticipates those initiatives would consume about $200,000 of the $1-million contingency fund in 2016 but would have a greater budget impact in 2017 and 2018.
“If any new initiatives arising out of the strategic planning initiative come forward to Convocation and are approved during 2016, the financial consequences of those initiatives during 2016 will be met by the law society out of the contingency or by running a deficit,” said Wardle.
That idea spurred some debate, with several members saying Convocation shouldn’t consider running a deficit. “It creates a dangerous precedent,” said Bradley Wright.
“I don’t think it’s wise to have a statement as part of our policy decisions today on budget to, in advance, say we will run deficit budgets,” he said. “It leaves the door open to a level of potential unaccountability and a lack of discipline in the budgeting process.”
Wardle said because those initiatives are still in the preliminary development stages and are far from coming to Convocation for approval, no firm costs could be included in this year’s budget. He added the contingency should be more than enough to ensure any initiatives that do come forward for approval will not be hindered financially in 2016.
In the end, Convocation agreed to proceed with approval of the budget as it stood, and any funds used on projects or initiatives beyond the $1-million contingency fund will be considered when they come to the table.
Four arrested after police raid alleged meth lab in Brampton, Canadian Press
|Linda Fuerst would like to see a program that encourages whistleblowers to report their concerns internally before going to the Ontario Securities Commission.|
The policy proposal, released yesterday, increases the maximum reward to $5 million from a previously proposed $1.5 million, although the higher amount can only be achieved if the information results in fines or payments worth upwards of $35 million.
While the maximum payout has been raised, it still falls short of the tens of millions paid out by the U.S. Securities and Exchange Commission and it may not be enough to encourage senior officers at large corporations, who commonly earn more than $10 million a year, to risk their careers, a lawyer suggests.
“The amounts are still low compared to the SEC program, but you know, I think it’s a step in the right direction,” says Linda Fuerst, a securities litigator at Norton Rose Fulbright Canada LLP. “If the commission is serious about providing meaningful incentives to individuals, particularly in senior positions, to be reporting serious misconduct, then they’re going to have to find another source of funding and increase the maximum award.”
Perhaps a bigger issue, says Fuerst, is that the new whistleblower policy gives companies little opportunity to look into allegations internally before being confronted with a high-profile public investigation. Under the program, employees can report misconduct directly to the OSC without going to their supervisor or internal compliance officer.
Senior officers, directors, auditors, and legal advisers are generally excluded from the program but they can take advantage of it in specific circumstances, such as situations in which they believe the organization is on the verge of engaging in misconduct that “is likely to cause substantial injury to the financial interest or property of the entity or investors.”
With no requirement by whistleblowers to report internally first, a company may be taken completely off guard by the allegations. “There’s a huge benefit to encourage individuals to report first internally to give the organization an opportunity to look at the allegations, and if necessary, conduct an appropriate internal investigation and decide whether there’s any merit to them before the regulators get involved,” says Fuerst.
Fuerst acknowledges that many employees may have reason to fear retaliation from managers who may be involved in misconduct. In those cases, however, whistleblowers should be required to explain to the commission why they didn’t report the allegations internally first.
“I think that what needs to be done is to require that a whistleblower report internally or be able to provide a reasonable explanation for why the whistleblower didn’t,” she says. “If the whistleblower says, ‘I’m in a small shop and we didn’t have any program for this,’ or, ‘I was legitimately afraid of retaliation and here is why, and I can explain that,’ then of course they should still be able to qualify.”
Fuerst also points out that anonymity can only be guaranteed at the reporting stage. In the event that allegations lead to charges and subsequent proceedings, the defendant will have a right to disclosure. Without the identity of the whistleblower, the case may fall apart along with any potential reward.
“It’s going to be inevitable in many of these cases that the identity of the whistleblower is going to end up being part of that disclosure that has to be made to the respondents in order for them to have an opportunity to defend the allegations appropriately,” says Fuerst. “So that’s why the OSC can’t give any ironclad guarantee of anonymity.”
Masturbating in a public space doesn’t necessarily constitute a wilful indecent act if the person doing it never intended for others to notice, an Ontario Superior Court Judge has found.
On Monday, Justice Kenneth Campbell set aside the conviction of a Toronto man found guilty of wilfully committing an indecent act because a lower court judge had assumed that just because others witnessed the act it meant the man had intended for people to see him or to offend them.
Counsel for the appellant argued his client, Paolo Novello, had tried to cover himself when undercover police officers spotted him masturbating in public places near schools, parks, and playgrounds.
“First, there is no legal presumption that, where an accused is engaged in some indecent act and is, in fact, observed by another person while engaged in that indecent act, the accused must, therefore, have wilfully engaged in the indecent act in the presence of the other person,” wrote Campbell, who noted a person might not know someone else is around.
“For example, an accused may engage in an indecent act in circumstances where he or she is not aware of the presence of another, and is not aware that he or she is being observed by another. In such circumstances, it would be illogical for a court to presume that, having been surreptitiously observed by another while engaged in an indecent act, the accused must have wilfully performed the indecent act in the presence of another person.”
Criminal lawyer Daniel Brown says cases of indecent exposure don’t arise often and that when they do, it seems like there has been confusion over what the jurisprudence says about the presumption of wilfulness.
“This decision by Justice Campbell clarifies any confusion that might have otherwise existed,” says Brown.
“If you are being seen, maybe a judge can conclude that was your intention, but it isn’t something that should necessarily flow from being seen,” he adds.
In R. v. Novello, the trial judge concluded the appellant “positioned himself in a somewhat clandestine manner and was observed to place both hands in his front pants pockets close to the groin area and vigorously move his hands back and forth continuously as the front of his pants tented and he paced back and forth in an excited state.”
Campbell, however, ordered a new trial in the case after setting aside Novello’s conviction.
“Instead of carefully reviewing the evidence in the case in order to determine whether or not the Crown had, in fact, established that the appellant possessed the specific intent of wilfulness required by s. 173(1) of the Criminal Code, the trial judge erroneously convicted the appellant based upon a perceived (but non-existent) legal presumption that the necessary wilfulness was established by the fact that his acts of masturbation were in fact witnessed by another,” he wrote.
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