Legal Feeds Blog
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.
Donald R. Cranston has been elected as the incoming president-elect of the Law Society of Alberta
|Donald R. Cranston has been elected as the incoming president-elect of the Law Society of Alberta.|
A partner in Bennett Jones LLP’s Edmonton office, Cranston is co-chair of the firm's commercial litigation team and is a former member of the firm's board of directors. His practice focuses on commercial litigation, medical and legal malpractice and disciplinary hearings, public administration law and alternative dispute resolution.
In 2008, Cranston was inducted as a Fellow of the American College of Trial Lawyers. This is considered one of the greatest honours for a litigation lawyer in North America. He is also a member of the board of directors of the Alberta Law Reform Institute, a Fellow of the Litigation Counsel of America and a roster member of the Supreme Court Advocacy Institute.
He has practiced in Edmonton since he was called to the Bar in 1979, and is a graduate of Robson Hall Faculty of Law at the University of Manitoba.
The Standing Senate Committee on Legal and Constitutional Affairs has asked for the Supreme Court of Canada to clarify a decision that set caps on court delays.
|Lawyer Dan Stein says senators are ‘jumping the gun.'|
In the decision, the Supreme Court set limits on the amount of time a case could take from the time a person is charged until trial. The decision implemented a limit of 30 months in superior courts and 18 months in provincial courts.
Charges must be stayed in cases that have delays that exceed these limits, except for certain exceptions. There have now been two murder charges stayed under the framework recently, prompting the senate committee’s demand for clarity.
“Although the court said the transitional provisions were intended to prevent thousands of cases already before the courts from being thrown out by applying a new standard, rather than the law that existed at the time, there have been numerous cases halted in recent weeks, including at least two murders,” the committee said in a press release.
In a recent Ontario Superior Court decision that stayed a murder charge, R. v. Picard, Justice Julianne Parfett says the transitional provisions allow for the new framework “to be applied contextually and flexibly” to older cases.
“While the new framework is relatively simple to apply, the transitional guidelines are not,” she said in the decision.
Dan Stein, a Toronto defense lawyer, says the senate committee is “jumping the gun” in its request and that it should give the higher courts a chance to clarify the law.
He says the Picard decision will likely be heard in the Ontario Court of Appeal, and could make its way up to the Supreme Court.
“The senate should give a chance to the court of appeal to analyze this and perhaps as well for the Supreme Court to revisit,” Stein says.
In an interim report on the delays in the justice system released this summer, the senate committee called on the federal government to immediately fill all judicial vacancies and to work with its provincial counterparts to develop better case management and invest in court technology.
Ontario’s provincial government recently took its own crack at tackling backlogs, by announcing a number of measures such as appointing more judges and hiring new Crown attorneys.
This week’s Supreme Court of Canada hearings docket comprises two criminal and two civil cases, with Google as the appellant in a civil case to do with inherent jurisdiction. The court will also hear a right-to-equality appeal related to a drug user being fired from his job following an accident.
December 5 – Quebec – Director of Criminal and Penal Prosecutions v. Jodoin
Criminal law: The respondent, a lawyer, was representing clients charged with driving while intoxicated. In 2013, after a hearing in the Court of Quebec on a motion for the disclosure of evidence, the respondent filed in the Superior Court, on behalf of his clients, motions for writs of prohibition challenging the jurisdiction of the Court of Quebec judge. The Director of Criminal and Penal Prosecutions objected to these motions. The Quebec Superior Court dismissed the motions for writs of prohibition, and the Quebec Court of Appeal allowed the appeal solely to set aside the award of costs against the respondent.
Administrative law: The plaintiffs sued their former distributors for appropriation of trade secrets, alleging the distributors designed and sold counterfeit versions of their products. The plaintiffs obtained injunctions against the distributors, prohibiting them from carrying on any business online, and when this proved ineffective the plaintiffs sought a court order against Google to prohibit it from displaying search results that included the distributors’ websites. B.C.’s Supreme Court granted a worldwide injunction against Google, finding that it possessed an inherent jurisdiction to maintain the rule of law and protect its processes, and the appeal court upheld the decision.
Read the B.C. appellate court decision
Supreme Court of Canada to hear Google Injunction Appeal, Dimock Stratton LLP
Worldwide Delisting from Google Search Results: The Significance of Equustek Solutions Inc. v Google Inc., ABlawg.ca (University of Calgary Faculty of Law blog)
SCC Grants Leave on Google Injunction, IPPractice
December 8 – British Columbia – Alex v. R.
Charter of Rights and Freedoms: The applicant was convicted of driving while intoxicated, contrary to s. 253(b) of the Criminal Code. He was also convicted of driving while prohibited. There was some uncertainty as to whether the trial judge found objective and subjective grounds for the police officer’s suspicion of impaired driving under s. 254(2) of the Criminal Code, and the summary appeal judge did not reach a firm conclusion as to whether the officer subjectively believed there were grounds to suspect it. Both the trial judge and summary appeal judge concluded, though, that R. v. Rilling applied to make the breathalyzer certificate admissible in the absence of a challenge under s. 8 of the Charter; the Court of Appeal agreed and dismissed the appeal.
Read the B.C. appellate court decision
December 9 – Alberta – Stewart v. Elk Valley Coal Corporation
Human rights law: A worker was terminated from his employment when he tested positive for cocaine after a loader truck he was operating struck another truck. His union filed a complaint with the Alberta Human Rights Commission, claiming the worker was fired on account of his addiction disability, but the tribunal concluded the worker was fired because he failed to stop using drugs, stop being impaired at work, and did not disclose his drug use. Alternatively, the tribunal held that the employer had shown accommodation to the point of undue hardship. The Court of Queen’s Bench of Alberta dismissed the appeal but disagreed with the tribunal’s alternative conclusion that the worker had been reasonably accommodated. A majority of the appeal court dismissed the appeal and allowed the cross-appeal.
Read the Alberta appellate court decision
This Fall’s Supreme Court Hearings – A Missing Voice for Human Rights, ABlawg.ca (University of Calgary Faculty of Law blog)
Ontario’s Ministry of the Attorney General today announced significant new investments in the province’s criminal justice system, in order to try and reduce the time it takes for cases to come to trial and to improve the bail system.
|Ontario Attorney General Yasir Naqvi says his government had made and continues to make new investments in Legal Aid.|
The plan, which will be implemented in the new year, includes appointing 13 more judges to the Ontario Court of Justice, as well as an additional 32 assistant Crown attorneys, 16 duty counsel and 26 new court staff. The province's existing Bail Verification and Supervision Program will be expanded and enhanced to facilitate the release on bail of low-risk accused pending trial, by making the program available at a number of weekend court locations and extending eligibility to allow more vulnerable people to be served across the province.
Other initiatives include an innovative new "bail beds" program to provide safe, supervised housing for low-risk individuals in five Ontario communities; making duty counsel available at six correctional facilities across the province to allow for more effective bail hearings; and developing a new, culturally-responsive program to provide support to indigenous people undergoing the bail and remand process.
“These are all laudable efforts by the provincial government, addressing important needs; the fundamental problem now is under-resourcing,” says Jessyca Greenwood of Greenwood Lam LLP in Toronto, whose practice speciality is representing those with mental health problems and special needs.
“When the Wynne government was elected, they made some statements early on [that] they were committed to access for justice; . . . we hoped that meant more legal aid certificates for accused people.”
Most people don’t quality for legal aid unless they’re indigent, she says, and an increase in the financial threshold to qualify for legal aid in Ontario would mean that more people would be eligible to be defended at trial, by a counsel of choice and throughout the entire court process. “It would be great to see the government do something to provide more funding, for vulnerable accused people to have a lawyer from the beginning.”
Defence counsel Daniel Brown, of Daniel Brown Law in Toronto, notes that additional duty counsel hired under the new plan will not be tasked with representing accused persons throughout the court process.
“They’ve hired people on the front end to help manage the bail process, but it doesn’t deal with the issue that contributes to significant delay, which is that an accused person can’t fund their criminal defence and is in the court system unrepresented right now,” he says.
Legal Aid Ontario “will fund only certain more serious offences, and only for people who meet a minimum financial threshold,” Brown told Legal Feeds. But these financial thresholds are far too low, he says, leaving accused unrepresented in the court system and contributing to delay because they don’t want a lawyer to assist them in the court process.
“That’s been observed time and time again by judges,” Brown says, “that unrepresented litigants lead to significant delays in the court system.”
Brown suggests that better efficiencies in the criminal justice system could free up more resources.
“Right now there’s an inefficiency in that way that some cases are prosecuted,” he says. “Cases will make their way to trial, only to be withdrawn, for example, on the first day of trial. If there were interventions in those cases earlier on, resources wouldn’t have been spent clogging up the court system with those cases that are ultimately not prosecuted.”
But Naqvi says his government had made and continues to make very significant new investments in Legal Aid, with the 2014 budget including a multi-year plan that would see a six per cent increase to the eligibility threshold.
Ontario Attorney General Yasir Naqvi says his government had made and continues to make very significant new investments in Legal Aid, with the 2014 budget including a multi-year plan that would see the eligibility threshold increase approximately six per cent every year for three years. The 2014 budget included the largest infusion of new funding toward financial eligibility in LAO’s history ($95.7 million), and as of April 1, 2016, the income eligibility threshold increased by another six per cent, according to figures supplied by the Ministry of the Attorney General; these increases helped nearly 400,000 more people have access to legal aid services.
As well, Naqvi tells Legal Feeds, the strategic increases in duty counsel, be they present at a correctional facility or a bail hearing, will provide a better opportunity, “especially those who are low risk and vulnerable, to be able to get bail and be in community under supervision, as opposed to being remanded to a correctional facility.” This is “built on the kind of investments we’ve made in Legal Aid that are ongoing every year,” he says.
The government has taken to heart the Supreme Court of Canada’s recommendations in R. v. Jordan, he adds, which recommended that, where there are no exceptional circumstances, time limits be set for the completion of criminal cases at 18 months for cases in the Ontario Court of Justice, and 30 months for cases in the Superior Court of Justice.
“One of their recommendations [was] to provincial governments to put more resources into our criminal justice system,” says Naqvi. “We’ve taken that call to action very seriously. . . . Of course, we will continue to work with the federal government as well, so that the work they have undertaken in terms of reforming the Criminal Code and simplifying the process and procedures remained very much part and parcel of the conversation. But we wanted to make sure that in Ontario, we’re creating a faster and fairer criminal justice system that would enhance public safety.”
Updated Dec. 2 at 9:22 a.m. to correct item in fourth last paragraph to "six per cent increase to the eligibility threshold" and additional facts from AG's office.
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