Legal Feeds Blog
|Amicus curiae George Macintosh leaves court with the weighty polygamy reference in hand. Photo: Ben Nelms/Reuters|
In a landmark reference case to decide if the polygamy law should be struck down, Bauman ruled that the Criminal Code’s s. 293 prohibition on multiple marriages is consistent with the Canadian Charter of Rights and Freedoms and should remain. While it does contravene s. 2(a) religious freedoms, it is justified under s. 1 of the Charter due to the harm it can cause.
“I accept that for some, especially fundamentalist Mormons, the interference with a sincerely held belief represented by the prohibition in s. 293 is very significant. Still, I acknowledge the point made by the Attorneys General that some fundamentalist Mormons do choose to live monogamously without sacrificing their religious beliefs. And as we have seen, polygamy in Islam is not mandated, although it is permitted by the Qu-ran,” writes Bauman.
But at the same time, the chief justice ruled that the section shouldn’t be used to prosecute teenagers married into polygamy.
He notes, “s. 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it includes within its terms, children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time.”
It was not within his purview to suggest a remedy but suggests in his disposition that “one alternative is to read into the law an exclusion of the problematic application. Here, I would do so in respect of the noted group of potential accused persons.”
The case was brought by the British Columbia government, which wanted to test the constitutionality of the law before taking legal action against members of a breakaway Mormon sect that practises polygamy at their Bountiful settlement in the southeast of the province.
Authorities have been wary of prosecuting members of Fundamentalist Church of Jesus Christ of Latter-Day Saints out of fear the 19th century anti-polygamy law ran afoul of more recent civil rights protections and would not hold up in court.
A central issue in the case has been the question of whether the practice of polygamy involves the potential for abuse of women and children in polygamous communities.
The FLDS says it is exercising its religious freedom. The group’s critics say it subjugates women, requires underage girls to marry older men, and creates other social ills, including forcing young unmarried boys onto the streets.
Bauman said lawyers for the B.C. and Canadian governments had demonstrated “a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy.”
If the court had overturned the current law, it would have meant Canada would be the only western country allowing polygamous marriages.
— with files from Reuters
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“It’s another sign of how distinct the justice system is in Quebec,” former Quebec justice minister and well-known defence attorney Marc Bellemare told Legal Feeds. “Our system is all about protecting the rights of criminals over that of their victims.”
In its ruling in R. v. Vachon, the appeal court panel found that the judge in the 2008 trial of Jacques Vachon failed to take into consideration complaints by the accused that he had lost confidence in his lawyer, Germain Côté. Côté was later suspended for life by the Quebec Bar over unrelated charges.
Vachon’s new lawyer, Alain Dumas, argued that the decision was similar to the 1999 case (R. v. Delisle), when the Quebec Court of Appeal ordered a new trial because of the incompetency of the defence lawyer.
But defence lawyers across the province say the decision is both unique and dangerous. Montreal criminal lawyer Rénald Beaudry called the decision “a cold shower” for Quebec’s legal community.
But Bellemare, who could never be accused of mincing his words, said the decision was another example of Quebec judges bending backwards in theirs efforts to defend the rights of the accused, no matter how horrendous their crimes.
He compared the decision to retry Vachon — a man he called “a monster capable of the most reprehensible acts imaginable” and who may be released from prison pending his new trial — to the recent acquittal of cardiologist Dr. Guy Turcotte for the murder of his two young children.
“This decision sets an extremely dangerous precedent,” said Bellemare. “The convicted often argue that their lawyer is incompetent [and] I’ve seen some cases that have been unbelievably botched, believe me. But I have never seen a retrial ordered over such a claim. Just imagine where we’re headed now that that door has been opened.”
Bellemare and other jurists are calling on Quebec Liberal Justice Minister Jean-Marc Fournier to appeal the decision to the Supreme Court of Canada. “He has to put his pants on in this matter,” said Bellemare, who knows some of Vachon’s many victims. “If it’s allowed to stand we’re all in trouble.”
According to a survey released yesterday by Robert Half Legal, lawyers interviewed said it takes an average of seven years to reach partner status today, which remains unchanged from when the survey was last conducted in 2003.
“Although the number of years it takes to make partner remains consistent, competition for partner positions has intensified,” says John Ohnjec, division director of Robert Half Legal in Canada. “In fact, some firms have been thinning the ranks of partner by promoting fewer associates.”
That’s because some lawyers are staying on longer in their firms, choosing to postpone retirement.
“In terms of the numbers game there may not be as many openings as there were previously,” says Ohnjec, noting it always depends on the size of the firms. “I think the raw numbers for the firms are probably the same so they’re not downsizing, but everything the firms are doing these days is done with a lot more examination in advance in terms of general hiring, looking for the right people and making sure if there is a space it’s the right person for partnership. While some people would have made it in previous years they may not have make the cut now.”
The Canadian survey includes responses from 75 lawyers at large and medium-sized law firms in Canada.
Ohnjec says there are options for lawyers who don’t make partner.
“It all depends on what one is looking for when they enter the profession. Are they looking to become [an] experienced and very qualified lawyer to serve their clients or is becoming partner the be all and end all? Partnership can mean so many different things. They may not be a full equity partner but still have the title, while others become counsel or senior associate instead of partner.”
For others, Ohnjec says the option may be to move in-house or go to another firm where it might be easier to make partner.
Robert Half Legal offered advice for lawyers interested in advancing their careers:
• Seek out professional development. In addition to legal skills, concentrate on helping the firm improve client service levels and grow revenue.
• Align with a mentor or career coach. Find a more senior lawyer who can provide advice and guidance, as well as help identify ways to raise visibility at the firm.
• Become involved in the local chapter of the bar association, do pro bono work, volunteer in the community, or contribute to legal publications or forums online.
• Network. Expand your roster of professional contacts and stay in regular communication with them. The more people you know, the more likely it is that you’ll hear of new opportunities that could help you keep your career on track.
(l to r) Sherry Hanlon, senior legal counsel with Scotiabank; Jodi Skeates, senior counsel with Canadian Life and Health Insurance Association Inc.; Déliska Beauregard, senior legal counsel, Scotiabank; and Kate Walker, counsel, Manulife Financial.
Jonathan Kielb, vice president and general counsel of NUCAP Industries Inc., with Patty Keroglidis, senior legal counsel, legal affairs with Ivanhoe Cambridge.
(l to r) Juron Kinnear, legal counsel, OP Trust chats with Kim Pascoe, account manager Canadian Lawyer/Law Times Media, and Diego Pereira, legal counsel, Vale Canada.
Entertainer Mysterion the Mind Reader with TV Ontario's in-house counsel Jonathan Lau.
(l to r) Conversing with the Queen of Hearts was Teresa Lee, senior director of estates and trusts with CIBC, and Carol Dalgado, director trust management, CIBC.
(l to r) Bob Armstrong, counsel with Computershare Trust Company of Canada; Pierre Tellis, senior counsel at Canadian Stock Transfer Company Inc.; and Wade Jamieson, counsel, Computershare Trust Company of Canada.
(l to r) Primus Telecommunications Canada Inc. general counsel and vice president law Jill Schatz talks with SAP Canada vice president and general counsel Barry Fisher and Xerox Canada vice president and general counsel Dorothy Quann.
(l to r) The Queen of Hearts also caught up with Gowling Lafleur Henderson LLP partner Filomena Frisina and Paula Rietta, vice president, legal and assistant secretary with Ford Credit Canada Ltd.
Alex Teijeira, senior counsel with Target Canada, with Cheryl Beckett, executive vice president, legal and corporate secretary with March Networks.
ACC Ontario chapter president and Hydro One Networks Inc. senior legal counsel Sanjeev Dhawan thanked managing partner Stephen Pike of Gowlings for hosting the "royal dinner" portion of the evening.
All photos by Jennifer Brown.
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|Lawyers per 10,000 census population. credit: Ontario Civil Legal Needs Project|
“We now have access to hard data that can be used to identify the civil legal needs of Ontario’s low- and middle-income communities, as well as the distribution of legal service providers available to meet those needs. We have not had access to this type of data before,” McMurtry noted at the report’s release.
The geography report examines and compares the demographic characteristics of the Ontario population and the distribution of legal services, to create a detailed picture of the market for civil legal services across Ontario.
“Some of the larger, more rural areas appear underserviced at first glance but actually have a good number of lawyers and paralegals compared to the population. This is encouraging news since we may be able to use existing legal service providers to improve access to civil legal services,” says John McCamus, the chairman of Legal Aid Ontario.
The research also shows that almost half the lawyers in the province provide some pro bono or free legal services. “An unexpected, positive finding was the high per centage of lawyers - 46.7 per cent in 2009 - who provide some level of pro bono or free legal services,” says Osgoode Hall Law School dean Lorne Sossin. “While there are still questions about the nature of those services, we can use this information to further engage the profession in access to justice solutions.”
Read next week’s Law Times for more details and analysis of the report.
|The City of Toronto regularly spends more than other Ontario municipalities on legal costs measured per $1,000 in municipal operating and capital expenditures. Photo: Loimere|
Toronto, however, was regularly above its counterparts with a cost of $7.24 per $1,000 in 2008, a number that dropped to $4.21 in 2010. Windsor, meanwhile, spent $4.83 in 2008 but towered over all of the other municipalities measured in 2009 at $8.29. The number fell back to $4.90 in 2010. Barrie, Ont., Durham Region, Niagara Region, and Waterloo Region, all came in well under the median.
Cities’ legal budgets have been in the news a fair bit lately. In Cornwall, Ont., for example, attention has focused on a high-profile whistleblowing case in which the city pleaded guilty to retaliating against an employee who complained about an incident of nursing home abuse.
The employee, Diane Shay, eventually got her job back, but the charges against the city cost thousands of dollars in legal fees, according to the Cornwall Standard Freeholder. Much of the money went to Hicks Morley Hamilton Stewart Storie LLP, the city revealed last week. It also faced legal fees of $67,518 in relation to a human rights case over discrimination against an employee on the basis of disability.
A report in the National Post last week, meanwhile, noted the City of Toronto spends more than 1,400 lawyer days a year at or preparing for Ontario Municipal Board cases.
The benchmarking report notes cities have restrained their in-house legal budgets since 2008. It found that the legal operating costs per in-house lawyer hour fell to $127 last year from $141 in 2008. Toronto, in general, had the highest costs at $222 in 2008 and $146 in 2009, although data for 2010 for that city wasn’t available. The most frugal in-house legal spender last year was Waterloo at $113.
But as for external legal budgets, cities weren’t able to cut costs despite efforts such as the Association of Corporate Counsel’s Value Challenge. The study put the median external legal cost per external lawyer hour at $370 in 2010. That’s up from $346 in 2008. Again, Toronto topped the list at $556 in 2008, a number that rose to $615 in 2009. (That city didn’t have data for 2010.) Despite being one of the province’s biggest cities, Ottawa came out lowest on that score at $247.
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According to Ontario Superior Court Justice Sidney Lederman’s Nov. 10 decision in Soteropoulos v. Charles, Michael Charles represented Vasiliki Soteropoulos in family law litigation between 2006 and 2008, before Soteropoulos retained a new lawyer in August 2008.
Charles acted for Soteropoulos in an unsuccessful mediation, which was followed by an adverse arbitration award as well as a costs order against her. The arbitration was unsuccessfully appealed and in April 2008, Charles suggested his client find a new lawyer.
Soteropoulos claimed the mental distress caused by the lost appeal rendered her unable to effectively consult with a new lawyer until early 2009. In March of that year, her new lawyer told her she might have a case against Charles. By that time, her ex-husband was threatening to stop support payments, a move the original arbitrator granted in May 2009. Another appeal was later abandoned on the advice of the new lawyer, according to Lederman’s decision.
Soteropoulos made a complaint about Charles to the Law Society of Upper Canada in January 2010 after an initial review of her file. But in her statement of claim, filed in May 2011, she said that it wasn’t until October or November of 2010 that she could “fully appreciate the nature and extent of the defendant’s negligence and the damage done to her,” due to the precariousness of her mental and emotional state. She blamed her former lawyer for the adverse results, alleging he failed to follow her instructions in the mediation and arbitration.
Despite her claim not to fully appreciate her situation, Lederman found that the limitation began to run in March 2009 when Soteropoulos “had knowledge of the material facts on which the claim would be based following the advice she was given by her new counsel.” That meant her filing in May 2011 came two months too late, and the claim was statue barred. Charles was also awarded $3,000 costs on a partial indemnity basis.
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Gail J. Cohen