Legal Feeds 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.
In a unanimous decision, the inquiry committee tasked with reviewing the conduct of Justice Robin Camp has recommended to the Canadian Judicial Council he be removed from the bench.
|Federal Court Justice Robin Camp leaves a Canadian Judicial Council Inquiry on Sept. 9. A committee of the CJC has recommended his removal over controversial comments he made in a Calgary sex assault trial. THE CANADIAN PRESS/Todd Korol|
“This was something far more profound — this was a complete disregard and disrespect for the principles of equality, as well as the sexual assault law that was specifically put in place to get rid of discrimination and inequality. It goes to the core of judging. It’s not this individual per se — it goes to what it means to be a judge and he basically failed at that. It’s a really strong indictment on Justice Camp.”
Gray says it’s a well-reasoned decision that gets to the core of what the matter really was.
The report outlines the committee’s review of Camp’s misconduct in R. v. Wagar, a 2014 sexual assault case in which Camp acquitted the accused but not before making questionable comments to the 19-year-old complainant, including asking her why she couldn’t keep her knees together and stating “pain and sex sometimes go together.”
The committee concluded “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.”
Gray says she’s pleased the committee was able to “hone in on what is really at issue, which is the public confidence in the judiciary system and that his behaviour was of such a profound nature that no matter whether or not he is sincerely apologetic for what he said or that he did seek out additional education, it just can’t undo what is already a mistrust in the judiciary for sexual assault victims.”
The report notes that throughout the original trial, “Justice Camp made comments or asked questions evidencing an antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials. We also find that the Judge relied on discredited myths and stereotypes about women and victim-blaming during the Trial and in his Reasons for Judgment.”
Because of these findings, the committee said Camp committed misconduct and placed himself “in a position incompatible with the due execution of the office of judge within the meaning of ss. 65(2)(b) and (d) of the Judges Act.”
Kim Stanton, legal director of LEAF, the Women’s Legal Education and Action Fund, which was an intervener in the inquiry, says the decision sends a message “to other judges, to legal actors and to survivors that such conduct is unacceptable.”
“It’s impressive in the depth in which it goes to address the concerns about public confidence in the judiciary and it was unexpected to see such a strongly worded decision,” she adds. “It’s a very strong statement.”
The report goes on to say that “although Justice Camp made significant efforts after complaints were made to the Council to reform the thinking and the attitudes which influenced his misguided approach to the Trial, in the particular circumstances of this inquiry, education — including social context education — cannot adequately repair the damage caused to public confidence through his conduct of the Wagar Trial.”
The fact the report said his apology was sincere but went on to say an apology and education is simply not enough is a very important aspect, Stanton says.
“Essentially, they’re saying we’re not being unforgiving here — we acknowledge the sincerity of the apology, but the problem is the damage was already done and the apology can’t repair that.”
The Canadian Judicial Council will now consider the committee’s report and recommendation as well as offer Camp the opportunity to make written submissions for them to consider as well. The next step will be the council’s recommendation to the Minister of Justice of Canada.
However, Gray says she can’t think of a similar incident where a recommendation that a judge be removed got to that level — most resign first.
“Looking at the decision, it’s hard to conceive of an argument he could make — especially given the fact the inquiry committee itself pointed out the inconsistencies in his own submissions before them,” she says.
“If I were a judge receiving a decision so strongly worded like this, I would be evaluating very carefully how I would respond to it,” she says. “The panel referred to a profound failure to act with impartiality and to respect equality before the law.”
Camp’s 2014 decision was appealed in 2015, where a new trial was ordered on the basis of Camp’s conduct despite the fact Wagar did not show up.
In the appeal court’s decision, Justice Brian O’Ferrall wrote: “we are cognizant that the Crown is limited to appeals on questions of law alone. However, we are of the view that the conduct of the trial and the trial judge’s reasons disclose errors of law and therefore we allow the appeal and order a new trial.”
Following the appeal court’s ruling, complaints about Camp’s behaviour from members of the public, law professors and law students rolled into the Canadian Judicial Council. Before the council could decide whether the complaints should be referred to an inquiry, the Attorney General of Alberta made a complaint under the Judges Act and triggered an automatic inquiry.
The inquiry hearing took place Sept. 6-12.
Wagar’s new trial began on Nov. 7.
Canadian economy rebounds with fastest growth in two years, Globe and Mail
This week the Supreme Court of Canada will hear one civil case to do with governing principles of directors’ personal liability, a criminal case, and three cases dealing with Aboriginal rights (two concerning the National Energy Board’s consultations with Aboriginal groups, and one with freedom of religion).
November 29 – Quebec – Wilson v. Alharayeri
Civil: The respondent was chief executive officer and a major shareholder of a corporation, Wi2Wi, which specialized in manufacturing Wi-Fi modules. In 2007 Wi2Wi, which was suffering financially, decided to merge with another business. While negotiating the merger the respondent decided to negotiate separately the sale of his own shares in Wi2Wi, but when the Wi2Wi directors learned of this it triggered the respondent’s resignation as CEO, and no merger or share-purchase transactions resulted. The directors then proceeded with a private placement of convertible secured notes, and as a result the proportion of the common shares owned by the respondent was significantly reduced; he eventually brought an action for oppression against the corporate directors.
Read the Quebec appellate court decision
Related news stories:
Oppression remedy lawsuit against corporate directors reaches Supreme Court of Canada, Canadian Underwriter
Related law firm bulletins:
November 30 – Federal – Hamlet of Clyde River v. Petroleum Geo-Services
Constitutional law: The respondents (the project proponents) applied to the National Energy Board for authorization to undertake a marine seismic survey program in coastal waters off Nunavut. Local Inuit groups and communities objected to the project. The NEB issued the requested authorization to the project proponents, on specified terms and conditions, and provided an environmental assessment report which outlined the consultation steps and activities undertaken by the project proponents and by the NEB. The Inuit of Clyde River brought an application for judicial review of the authorization on grounds including inadequate consultation. The Federal Court of Appeal dismissed the application, finding that the Crown’s duty was discharged, the Inuit were meaningfully consulted on their rights, and that an appropriate level of accommodation was undertaken.
Read the Federal Court of Appeal appeal decision
The Crown’s duty to consult and accommodate - three upcoming cases at the SCC to watch, McCarthy Tétrault LLP
Federal Court of Appeal Upholds the National Energy Board's Authorization of Seismic Testing in Davis Strait and Baffin Bay, Borden Ladner Gervais LLP
The Federal Crown Fulfilled its Consultation Obligations when the National Energy Board Approved a Seismic Program in Baffin Bay, University of Calgary Faculty of Law
November 30 – Federal – Chippewas of the Thames First Nation v. Enbridge
Constitutional law: Enbridge applied to the National Energy Board to approve a pipeline project that would reverse the flow of one section of an existing pipeline, expand the capacity of the pipeline, and exempt the project from certain regulatory requirements and procedures to allow for the transportation of heavy crude oil. The NEB approved the project, on specified terms and conditions. The Chippewas of the Thames First Nation appealed the NEB’s decision, citing, among other things, inadequate consultation. The Federal Court of Appeal dismissed the appeal, finding that, in the absence of the Crown as a participant in the original application, the NEB was not required to determine whether the Crown was under a duty to consult, and if so, whether the duty had been discharged.
Read the Federal Court of Appeal decision
Related law firm bulletins:
New FCA decision creates dangerous loophole to the duty to consult and accommodate, Olthuis Kleer Townshend LLP
Supreme court to hear appeals on role of tribunals in duty to consult, Blake Cassels & Graydon LLP
Chippewas Of The Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, McCarthy Tétrault LLP
December 1 – British Columbia – Ktunaxa Nation Council v. Minister of Forests, Lands and Natural Resource Operations
Charter of Rights and Freedoms: In 2012 the respondent Minister approved an agreement for the development of a ski resort by the respondent company on Crown land in Jumbo Valley, southeastern B.C. The applicants brought a petition for judicial review, arguing that it violated their freedom of religion guaranteed under the Charter and breached the Minister’s duty to consult and accommodate under the Constitution Act, 1982. The applicants say the proposed resort would lie at the heart of the Grizzly Bear Spirit’s home or territory, or “Qat’muk,” and that allowing the development of permanent overnight human accommodation within Qat’muk would constitute a desecration and irreparably harm their relationship with the Grizzly Bear Spirit. The Supreme Court of British Columbia dismissed the petition for judicial review, and the Court of Appeal for British Columbia dismissed the appeal.
Read the B.C. appellate court decision
CMLA Granted Leave to Intervene by SCC in Ktunaxa Nation Council, Canadian Muslim Lawyers Association
SCC to consider spiritual beliefs under the Charter and Section 35, Fasken Martineau DuMoulin LLP
December 2 – Ontario – R. v. Antic
Charter of Rights and Freedoms: This case involves the right to reasonable bail; a publication ban is in effect.
Lawyers from both private practice and in-house legal departments were among those honoured this year as part of the Women’s Executive Network list of Canada’s Most Powerful Women.
|Melissa Kennedy, executive vice president, chief legal officer and public affairs at Sun Life, is one of 13 lawyers on the list of Canada’s Most Powerful Women: Top 100 for 2016.|
Melissa Kennedy, executive vice president, chief legal officer and public affairs, is one of 13 lawyers on the list of Canada’s Most Powerful Women: Top 100 for 2016.
Kennedy was recognized for her leadership in helping Sun Life advance its sustainability strategy, and championing diversity and inclusion at Sun Life and within the Canadian legal community.
She is accountable for upholding standards of business ethics and strong governance for Sun Life’s Canadian and international operations. She is the executive sponsor for sustainability, leading global initiatives aimed at increasing employee engagement and commitment to Sun Life’s sustainability goals.
“A huge part of what I think makes Sun Life unique is the culture,” she says.
Kennedy is also involved with mentoring programs through the Legal Leaders for Diversity and the University of Toronto,
“As an architect for change, Melissa devotes significant time to improving diversity and inclusiveness in the legal industry,” said Carrie Blair, executive vice president, chief human resources & communications officer at Sun Life. “Through initiatives, such as Legal Leaders for Diversity which she co-founded in 2010, she supports projects aimed at mentoring and creating access to opportunities for all.”
Prior to joining Sun Life in 2014, Kennedy was senior vice president, general counsel and corporate affairs at the Ontario Teachers’ Pension Plan.
She is also a member of University of Toronto’s law alumni association council, serves on the board and audit committee of the Toronto Financial Services Alliance and is on the executive committee of the Legal Leaders for Diversity and Inclusion.
Launched in 2003, the Canada’s Most Powerful Women: Top 100 Award recognizes exceptional women leaders who contribute to advancing the societal and professional landscape for future generations. Since its inception, the WXN has celebrated over 900 women and their many accomplishments.
Other winners representing the legal field include:
• Amélie T. Gouin, associate in Borden Ladner Gervais LLP’s commercial litigation group in Montréal. She received the Future Leaders award.
• Joy Grahek, general counsel, GFL Environmental Inc.
• Charlene Ripley, executive vice president, general counsel, Goldcorp Inc.
• Shannon Rogers president & general counsel, Global Relay Communications.
• Samantha Horn, partner, Stikeman Elliott LLP
• Valerie Mann, partner, Lawson Lundell LLP
• Carol Pennycook, partner, Davies Ward Phillips & Vineberg LLP.
• Sarah Qadeer, general counsel, Home Depot of Canada Inc.
• Cheryl Reicin, partner, Torys LLP
• Sylvie Rodrigue, partner & Head of Torys’ Montreal Office, Torys LLP.
• Penny Wyger, senior vice president general counsel & corporate secretary, Liquor Control Board of Ontario.
• Lisa Borsook, executive partner, WeirFoulds LLP
When asked what it will take to increase gender equality in the legal profession, Pennycook said: “More women directly involved in law firm management; increased flexibility in how individual lawyers contribute to the firm’s practice; commitment to women staying connected while on maternity leave; and facilitating reintegration upon return.”
Reicin said in order to increase gender equality in the legal realm women would benefit from: “Starbucks-style customized careers that allow one to power up and power down, guilt-free.”
And when it comes to raise one’s voice in the work environment, Reicin said: “I like to ask lots of questions to get others to see an issue in a different way. I generally only speak in meetings when my view is not the majority view — why espouse a view that is already accepted?”
Murder trial of Toronto senior to hear closing arguments, Canadian Press
Deepa Mattoo is the latest recipient of the Community Leadership in Justice Fellowship from the Law Foundation of Ontario, a non-profit organization that funds other groups to provide education and initiatives on access to justice.
|Deepa Mattoo will be conducting research around the relationships between race, gender and immigration status.|
Mattoo, the current director of legal services at the Barbra Schlifer Commemorative Clinic, says that while she’s very excited for this opportunity to conduct research around the relationships between race, gender and immigration status under this year-long fellowship, she also feels “very humbled.”
During her time as a fellow, Mattoo’s research will specifically focus on racialized women who have precarious immigration status, as they face violence and barriers in accessing supports and legal services. She’ll team up with the University of Toronto’s Factor-Inwentash Faculty of Social Work, academics from the law and sociology faculties and the Rights of Non-Status Women Network for this undertaking.
“The goal of this project is to create a network of individuals who would work with me in reviewing the intersectionality, but to also create solid tools for service providers to provide services and assistance to the women who are going through these experiences of violence and going through the experiences of precarious immigration,” she says.
She adds that there’s a need for “sensitivity toward the service delivery models for women” when it comes to legal assistance and to look at “frameworks and understand the gaps” that exist in Canada’s Immigration and Refugee Protection Act.
According to Mattoo, many racialized women who have precarious immigration status, meaning their status as a Canadian citizen or permanent resident is uncertain, don’t feel safe accessing the justice system because they fear deportation.
“Access to justice should ideally be rooted in the concept that [legal help] should be available to everyone, regardless of who they are and what their experiences are, whatever their citizenship is,” Mattoo says. “It’s not just about having the conduit to go to the legal system. It’s also about having the capacity to even think about what my rights are … sometimes even women without immigration status can’t even think of their citizenship rights. They can’t even think that they have access because of the inherent barriers, which are existent in our systems.”
Toward the latter portion of the fellowship, in the spring, Mattoo will offer workshops to share the results and tools of the study with law and social work students, settlement workers, lawyers and key agencies in Ontario that assist with non-status immigrants.
“I’m not the first one who’s doing this work and I’ll also not be the last one doing this work,” says Mattoo. “I’m a small fish in a big sea.”
In a pair of decisions, the Supreme Court of Canada has reaffirmed robust protections for solicitor-client privilege, while elevating litigation privilege.
|Lawyer David Rankin says ‘it’s very clear that a very high standard is required to abrogate privilege.’|
In Lizotte v. Aviva Insurance Company of Canada, the Supreme Court upheld a 2015 Quebec Court of Appeal ruling that determined a provincial regulator could not have access to information Aviva Insurance claimed was protected by litigation privilege.
Quebec’s damage insurance regulator, Chambre de l’assurance de dommages, had requested certain documents from Aviva about a claims adjuster in an ethics enquiry. Aviva withheld some documents citing litigation privilege, as a client had brought legal proceedings against the company, which involved the same claims adjuster.
The Supreme Court found the regulator could not abrogate litigation privilege by inference and that “clear, explicit and unequivocal language is required in order to lift it.”
By applying the same standard to litigation privilege as solicitor-client privilege, Adam Dodek, a law professor at the University of Ottawa, says the decision brings litigation privilege closer to solicitor-client privilege, which is considered more absolute.
In a 2006 decision, Blank v. Canada, the Supreme Court distinguished the two privileges as distinct doctrines, deeming litigation was a lesser privilege.
“The court pays homage to that decision, but these two decisions bring the doctrines closer together and collectively continue the trend of strengthening solicitor-client privilege and elevating litigation privilege to a status closer to solicitor-client privilege,” says Dodek, who wrote Solicitor-Client Privilege, a book referenced in the Supreme Court decision.
“The fact that same test is embraced for abrogating litigation privilege as for solicitor-client privilege is significant.”
In the second decision released Friday, Alberta v. University of Calgary, the court determined a provincial regulator could not abrogate solicitor-client privilege on inference.
“…solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal,” Justice Suzanne Côté wrote for the majority in the decision.
The decision concerned a dispute that arose when a former employee, who filed a lawsuit against the University of Calgary for wrongful dismissal, requested information about her in the university’s possession. The university released some information, but withheld some records, which it considered protected by solicitor-client privilege.
A delegate from the province’s privacy commissioner then ordered the university to produce the records.
At issue was whether a section of the province’s freedom of information legislation, which required records be handed over to the privacy commissioner despite “any privilege of the law of evidence,” trump solicitor-client privilege.
The Supreme Court found that the legislation was not clear enough to abrogate privilege.
“In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege,” Côté said.
“It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection.”
David Rankin, a lawyer with Osler Hoskin & Harcourt LLP, says the decision reaffirms the protection of solicitor-client privilege.
“The way Justice Côté reasoned, it’s very clear that a very high standard is required to abrogate privilege, which is a very significant development,” says Rankin, who represented the Canadian Bar Association in its intervening on both cases.
Subscribe to Legal Feeds
- Gabrielle Giroday
- Patricia Cancilla
- Alexia Kapralos
- Jennifer Brown
- Alex Robinson
- Elizabeth Raymer
- Mallory Hendry
- Tim Wilbur
- Karen Lorimer