Bernard Amyot has strongly criticized the barreau’s position on the Quebec government’s bill.

The Barreau du Québec has ruffled the feathers of some members of the bar after it sent a letter to the Quebec government criticizing legislation that would give police more control over student protesters and public gatherings.

The letter, published on the barreau’s web site on May 16 by president Louis Masson, expressed concerns about the bill that it said could unduly limit freedom of expression and requires more debate before its adoption.

“The proposed regulation raises serious issues related to respecting fundamental freedoms of expression and of peaceful assembly and it is therefore likely to be subject to judicial debates,” the letter reads.

The letter continues: “In addition, the provision, as drafted, might give rise to charges against individuals who wished to participate in an event without being identified and having no intention to offend.”

Once adopted, the bill would requie the exact location and itinerary of a meeting, parade, or other gathering to be shared with the director of police; stop anyone involved at meetings, parades or public gatherings from having their faces covered without reasonable cause; and institute a range of penalties depending on the number and severity of the offences.

Some barreau members have balked at the letter, saying the bill is necessary given the continued rioting by student protesters that has rattled the province over the past three months.

“I have just read your press release this evening with the deepest distress and most complete disbelief," former Canadian Bar Association president Bernard Amyot wrote to the barreau president on Thursday evening, according to a La Presse report. “Silence would have been less damaging than the total abdication to anarchy in defiance of the rule of law, which you falsely claim to defend, from the authority of elected parliamentarians and authority of the judiciary and its independence. Shame to the Quebec Bar and to the president Masson.”

Massive protests have raged in Quebec for more than three months, particularly in Montreal, as the Quebec government goes head-to-head with students protesting college and university tuition-fee hikes.

Among bill 78’s proposals, student protesters would be barred from demonstrtating inside and within 50 metres of college and university buildings. The legislation would also fine protesters found guilty of an offence that forces the cancellation of classes. The fines would range from $1,000 to $5,000 depending on the offence. They could go up to $125,000 if the offence is committed by a senior officer or representative of a student group or federation.

Today, the Quebec legislature is continuing its section-by-section consideration of the law.

Thomas Conway has been elected treasurer of the Law Society of Upper Canada. Conway will begin his term following Convocation proceedings on June 28 and will serve as the law society’s top elected official.

Thomas Conway was acclaimed as the new LSUC treasurer last week.

He will replace current law society treasurer Laurie Pawlitza, who has held the position since June 2010.

“I’m very humbled and honoured to be elected and I hope to continue the really great work of the treasurers before me,” Conway tells Legal Feeds. “I have big shoes to fill and I hope I am able to help ensure the law society meets its core responsibilities.”

While Conway says he doesn’t plan to make any drastic changes to the law society in his new role, he says he does hope to listen to the needs of Convocation and focus on key areas like articling and tribunal reform.

“I think this Convocation has been particularly vocal about wanting to focus on improving the law society’s commitment to its core responsibilities, particularly in light of these challenging economic times,” says Conway. “They want to ensure law society dues are spent judiciously and wisely and I intend to carry that forward.”

Conway is a partner at Cavanagh Williams Conway Baxter LLP in Ottawa where he practises civil and commercial litigation.

In the past, he has served as president of the Carleton County Law Association and an adjunct Faculty of Law professor at the University of Ottawa.

Conway was first elected as bencher of the law society in 2007 and has served as chairman of the professional development and competence committee and co-chairman of the retention of women in private practice working group. he is also chair of the law society’s articling task force.

Conway says he hopes to carry on the work of those initiatives in his new role.

“I certainly intend to continue the very important work of those programs and I will see them through to the end,” says Conway. “Certainly if the Articling Task Force makes recommendations and Convocation accepts them, I’ll be intent on ensuring articling reforms are implemented in a timely way.”

Conway was elected by acclamation and will be the law society’s 64th Treasurer.

Read more on this story in next week’s Law Times.

More than 50 Law Society of Upper Canada members showed up at the regulator’s annual general meeting last night and overwhelming showing their support to keep its 215-year-old name.

Federal government lawyer Thomas Vincent makes his argument for the LSUC to change its name to the Ontario Law Society last night. (Photo: Omar Ha-Redeye)

The lively debate at Osgoode Hall last night was mixed with passionate comments and bursts of laughter to discuss Federal government lawyer Thomas Vincent’s formal motion in a battle that saw traditionalists and modernists divided.

“I didn’t expect the motion to go forward. But I do think it was important to have that discussion,” says Omar Ha-Redeye, a family lawyer in Toronto and one of the few who supported Vincent’s motion. “From my impression of the debate, the vote wasn’t actually based on merits but rather on tradition, which is disappointing, given lawyers are trained to debate issues on their merits. “

The formal motion to change the law society’s name to the Ontario Law Society was brought by Vincent last month and has been a hotly contested issue among members of the bar ever since.

Vincent argued the law society’s current name created confusion among the public and needed to be modernized to reflect Canada’s current geography.

“Typically law society members are dealing with highly educated and sophisticated individuals and so they may not be aware of people in the general public who might be confused by the name,” says Ha-Redeye. “In this case, I would say the absence of information doesn’t lead to a conclusion and we should study the issue further to see if there truly is a problem and then find the best way to address it.”

Still, Alan Heisey, a lawyer at Papazian Heisey Myers who has been following the debate and opposes the name change, says he was encouraged by the debate.

“I thought the debate was very healthy and it was encouraging to see so many people who knew about the law society’s history,” says Heisey. “I learned quite a bit and I think those who were dissatisfied with the name perhaps didn’t know the law society had such a history. Maybe there should be a component in the bar admission course related to that.”

A formal vote was not taken at the annual general meeting, however, of the more than 50 members who attended, three supported the motion. Those three were Vincent, Ha-Redeye, and past Ontario Bar Association president Lee Akazaki.

During the meeting, it was estimated the cost to the law society to change its name would be between $1.4 and $1.5 million — a figure that would likely come have to come from increases to member’s annual fees.

See Monday’s issue of Law Times for more on this story.

Update: 4:39 p.m. - Clarify that Alan Heisey was not at the LSUC meeting.

The Ontario Court of Justice released a new set of rules for criminal proceedings this month in a move that its says will help make court proceedings simpler and quicker for self-represented clients.

Jeff Hershberg says he hopes unrepresented litigants will be directed to the new rules.

The Criminal Rules of the Ontario Court of Justice will come into effect July 1 and will govern conduct in all criminal proceedings at the court. They will replace the current Rules of the Ontario Court of Justice in Criminal Proceedings.

“The new criminal rules are brief, written in plain language, and contain extensive commentary regarding their interpretation and application,” states the Ontario Court of Justice. “This reflects the reality that many accused today do not have legal counsel or are unrepresented.”

But some criminal lawyers in Toronto say the rules, while laudable, may require more effort from the court if they hope to have an impact, particularly when it comes to helping self-represented litigants in court.

“While easier to read, self-represented individuals often have trouble understanding the rules even when explained in court in as plain language as one can imagine. The court process is often a scary one for those charged with offences [who] cannot afford a lawyer and are denied legal aid for whatever reason,” says Jeff Hershberg, a criminal defence lawyer in Toronto.

“They are rarely directed to these rules and are not provided a copy in court. Hopefully, with the new rules will come new procedures for making sure self-represented individuals are made aware of them; including providing a copy of the necessary forms.”

Some of the most notable changes to the rules include a 60-day time limit before the scheduled trial date for the hearing of pre-trial matters and a requirement that parties that have decision-making authority attend judicial pre-trial. Additionally, counsel who will conduct the preliminary hearing or a designated counsel with decision-making authority must attend focus hearings. The changes also mean five new criminal rules and three new forms will replace 32 old rules and 15 forms.

A condo can be purchased through e-mail when certain legal requirements are met, New Brunswick’s top court has ruled.

Setting aside a lower court’s decision, the New Brunswick Court of Appeal determined in Druet v. Girouard that writing requirements under the Electronic Transactions Act and the Statute of Frauds, the price, parties, and property, the assumption of an existing mortgage, the payment of closing fees, joinder, and the intent to create legal relations, can, when taken together, make the purchase of a condo through e-mail legally binding.

“As a matter of general principle, we accept that an exchange of emails can satisfy the writing requirement under the Electronic Transactions Act and, correlatively, the Statute of Frauds,” wrote justices Joseph Robertson and Marc Richard with Justice Wallace Turnbull concurring. “Of course, to reach this conclusion, one must apply the principle of ‘joinder.’ We also accept that the parties reached an agreement with respect to the essential terms (the 3 Ps, namely, price, parties and property) and two other matters: the assumption of the existing mortgage and payment of closing fees.”

But in this particular case, the court ruled that the e-mails did not show sufficient legal intent to create a binding contract.

“In short, the e-mails do not represent the type of detailed agreements which have propelled some courts to conclude the execution of a formal document would serve no valid purpose other than to provide one of the parties with a feeble legal excuse for reneging on an agreement,” says the ruling.

Druet and Girouard appeared to be reaching a consensus on the condo’s sale in 2010, but Druet ultimately withdrew her offer to sell the condo, saying her partner, who was vacationing in Peru, did not agree to the purchase price Girouard and Druet had reached.

Girouard brought a motion under Rule 23 to determine whether or not the e-mails constituted a binding agreement and sought compensation from Druet under the Act of Frauds.

The Court of Queen’s Bench of New Brunswick ruled last year that the e-mails constituted a binding agreement between Druet and Girouard and ordered Druet pay $1,000 to Girouard.

“After reviewing the mail, I am convinced that they constitute a binding agreement. The reference to the agreement of purchase and sale was not an indication that there was agreement regarding the conclusion of another contract. The clauses in e-mails is clear and easy to perform,” wrote Court of Queen’s Bench Justice George Rideout. “There is no indication that it was subject to acceptance from Mrs. Druet. It is recognized that there is no closing date, but, given the other clauses, it is reasonable to argue that a reasonable time to complete the purchase or could be implied that the usual practice in the field property, a closing date in mid to late next month, was implied.”

But the appellant court ruled while the Court of Queen’s Bench was correct to determine most of the legal requirements to establish the purchase of the condo had been met, the court was ultimately wrong to dismiss that a formal contract was necessary to make the e-mail agreements legally binding, and allowed Druet’s appeal.

“Moreover, we have concluded Mr. Girouard’s reference to the future preparation of a draft agreement for Ms. Druet’s review is normally interpreted to mean that the parties did not intend to create a binding contract until such time as a formal agreement was prepared and executed,” says the appeal decision. “The reasonable bystander also knows that the exchange of e-mails represents a skeletal contractual framework worked out without the assistance of professional advice . . . more importantly, neither Mr. Girouard nor Mrs. Girouard had ever viewed Ms. Druet’s condominium unit.”

The ruling continues: “Frankly, there is more legal formality surrounding the millions of transactions that occur daily on eBay than what occurred in the present case. Parties to a real estate transaction who are strangers usually fix a closing date, obtain a deposit and, most importantly, sign a formal purchase and sale agreement.”

As a result, the appellant court allowed Druet’s appeal and set aside the motion judge’s order. The court also awarded $3,500 to Druet on the motion in the Court of Queen’s Bench. With regard to Druet’s appeal, the Court of Appeal found Druet is entitled to disbarments only, fixed at $1,500.

Update: May 3, 2012 to change headline and clarify aspects of the ruling.

Alain Perron

Ontario Chief Justice Annemarie Bonkalo has named a new judge to the Ontario Court of Justice this week.

Alain Perron will join the court April 25 in a bilingual position in Parry Sound.

Perron comes from a managing partner position at Wallace Carr Klien & Trenker and practised as an associate in criminal and family law after joining the bar in 1994.

Perron has prosecuted Provincial Offences Act matters for the City of North Bay and has acted as standing federal Crown for the Public Prosecution Service of Canada, in the past.

He has also been a part-time prosecutor for the Ministry of Transportation in Nipissing and was deputy judge in the Small Claims Court of the Superior Court of Justice. In his spare time, Perron has also held various executive positions with the North Bay General Hospital and the North Bay Crisis Centre.

Alberta Court of Queen’s Bench Master L.A. Smart fired off at two lawyers for their lack of civility in the courtroom after an hour-long squabble between the pair during questioning forced one client to leave.

In West Edmonton Mall Property Inc. v. International Stereo Centres Ltd., Smart wrote while it was impossible to determine whether Edmonton lawyer SandeepK. Dhir or E. Mark Keohane was to blame for initiating the squabble, he would resist the urge to award costs against each counsel under Rule 10.49, and instead directed the parties to bear their own costs.

“As one might expect, after reading the transcript, it is simply not possible to determine who is to ‘blame’ for the questioning to deteriorate to such a state that one of the parties felt it necessary to leave,” wrote Smart. “After hearing the arguments and complaints of both counsel, even if there was evidence provided, it is impossible to reconcile what transpired. Frankly, it is disappointing that counsel found it necessary to air their grievances with each other in open court before members of the public. It served only to potentially diminish the public’s respect for the administration of justice while diminishing respective counsel’s reputation and that of the legal profession generally.”

The issue first arose April 13, 2011, when the questioning of Alberta doctor Roger Watson denigrated into several confrontations between Keohane and Dhir.

According to Smart’s ruling, Dhir and Keohane spent nearly an hour in chambers that morning during which they made serious allegations against one another, numerous interjections and objections, statements that questioning was discourteous, and complaints about inappropriate facial gestures. Both also denied that such things were occurring and complained about the other’s ediotrialization of what happened.

The squabble eventually caused Keohane to leave with his client before the questioning was complete.

Shortly after, an application was brought to compel Dr. Roger Watson, and his wife Janet Watson to appear for questioning without further payment of conduct monies and an award of costs for the application. It also called for the costs of the uncompleted questioning to be thrown out on a solicitor client basis.

Keohane did not object to questioning continuing without additional conduct money and an order was given for the Watsons to attend at a date later agreed upon.

Still, Smart was quick to let his disapproval be known as he ordered both clients to bear their own costs.

“When two young children squabble and it is impossible to determine which of them is the culprit, the solution is often to send both to their room. It strikes me that I am dealing with an analogous situation . . . .” wrote Smart.

The Toronto West Detention Centre will be closing. Photo: Joshua Sherurcij

Finance Minister Dwight Duncan’s 2012 Ontario budget calls for reforms to the province’s youth justice system, the Provincial Offences Act, several prison closures, and increased electronic court services to combat the province’s rising deficit.

Billed by Duncan as one of the toughest yet, this week’s budget includes significant cuts to program spending across the board to contain costs by $17.7 billion over the next three years, while increasing revenues by $4.4 billion, all without raising taxes.

In the justice sector, the budget touches on the following:

The youth justice system:

The budget proposes closing the Bluewater Youth Centre in Goderich and downsizing the Brookside Youth Centre in Cobourg and the Cecil Facer Youth Centre in Sudbury. It also suggests reducing the number of transfer payment agencies contracted to supply open custody services.

According to the ministry, the Youth Criminal Justice Act has led to decreased custodial sentences for youth since 2003 and has diverted more youth to community-based alternatives for less serious offences, creating a reduction in demand for youth justice custody, and consequently, the need for several closures.

The Provincial Offences Act:

According to the ministry, uncollected fines related to the POA are a growing problem for the province, adding to a ballooning deficit. To address this, the budget proposes unpaid POA fines be set off against tax refunds issued by the Canada Revenue Agency.

Prison closures:

The 2012 budget confirms the provincial government is moving ahead with fully closing the Toronto West Detention Centre, the Brantford jail, and the Chatham jail in the upcoming years.

According to the ministry, the closures will help “modernize” Ontario’s correctional facilities and create more efficiency within the system. The budget states the closure of the Toronto West Detention Centre will save the province $23 million in 2013-14 and $28 million in 2014-15.

Underutilized prisons in Owen Sound, Walkerton, and Sarnia were closed last year by the province to cut costs, along with a partial closure of the Toronto West Detention Centre.
 
Electronic court services:
 
The budget also suggest the provincial government provide some court services online, including court forms, court document filings, and court fee payments. It proposes provincial courts transition to providing 24-hour online service instead of the traditional daytime hours currently provided. It also suggests a significant overview of the court system is needed to ensure courts are receiving the funding where they need it most.
 
Provincially, the 2012 budget also falls on the heels of the federal omnibus crime bill’s passage earlier this month. Rough estimates project the associated costs to the province at $1 billion for new jail facilities and nearly $145 billion in soft costs resulting from the bill. This year’s budget also projects an increase of $68 million in provincial expenses within the justice sector due to legal settlements under the Proceedings Against the Crown Act and “funding for operational pressures.”

Judges must carefully consider flexible sentences for Aboriginal offenders to avoid violating the law, the Supreme Court of Canada ruled in an anticipated Aboriginal law decision today, noting the principles established in R v. Gladue have not been met.

Releasing its ruling in R. v. Ipeelee, a pair of cases that explore the issue of differential treatment for Aboriginal offenders highlighted by the court in Gladue, the Supreme Court found factors like cultural oppression, poverty, and a history of abuse in the residential school system must factor heavily into sentencing Aboriginal offenders.

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190),” the Supreme Court of Canada ruled in a 6-1 majority. “To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.”

According to the Supreme Court, Gladue, a 1998 precedent-setting decision that was designed to take factors such as poverty and residential school abuse into consideration in sentencing and shift a disproportionate number of Aboriginal offenders out of prison, has failed to take hold in Canada’s justice system.

“Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate, section 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system,” the Supreme Court ruled. “Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.”

Ipeelee involved appeals by two separate Aboriginal offenders who were declared long-term offenders and had long-term supervision orders imposed. The central issue in each appeal involved the determination of a fit sentence for a breach of a long-term supervision order in the case of an Aboriginal offender, particularly in determining whether or not the principles of Gladue had any effect.

Manasie Ipeelee, a 39-year-old Inuk man, is decribed in the SCC decision as a lifelong alcoholic involved in a laundry list of thefts, assaults, and sexual assaults. He began drinking alcohol when he was 11 years old, his mother froze to death when he was five years old, and he has been out of jail or in detention since 1985.

Ipeelee was sentenced to six years for a recent sexual assault and a subsequent ten years with a long-term offender designation. The designation meant he could be returned to prison for breaching the designation’s terms.

“In my view, the courts below made several errors in principle warranting appellate intervention. First, the courts reached the erroneous conclusion that protection of the public is the paramount objective when sentencing for breach of an LTSO and that rehabilitation plays only a small role,” the Supreme Court ruled. “As discussed, while protection of the public is important, the legislative purpose of an LTSO as a form of conditional release set out in s. 100 of the CCRA is to rehabilitate offenders and reintegrate them into society. The courts therefore erred in concluding that rehabilitation was not a relevant sentencing objective.”

Frank Ralph Ladue, 49, a member of a small community in the Yukon Territory was 5 when he was sent to a residential school where he was allegedly physically, sexually, emotionally, and spiritually abused, was the appellant in the other case.

After Ladue was released from residential school, he began using drugs and drinking heavily, according to the Supreme Court’s decision. Ladue also amassed 40 criminal convictions, including a number of sexual assaults, and was sentenced to three years in prison for breaking and entering and committing sexual assault.

Ladue was released in 2006 from that sentence and has been jailed for several breaches of his long-term offender order since then.

“The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality,” the Supreme Court ruled.  “Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.”

The Supreme Court ultimately allowed Ipeelee’s appeal but dismissed Ladue’s appeal. Ipeelee was sentenced to one year in prison, while Ladue’s sentence of one year in prison was left untouched.

Christopher Pinnington

Fraser Milner Casgrain LLP has been named one of Canada’s Best Employers for New Canadians in 2012.

FMC was the only law firm in Ontario recognized this year and has been awarded in each of the previous three years of the program.

The firm was recognized for its legal professional internship — a six-month paid internship program that provides professional employment experience to foreign-trained lawyers seeking Canadian employment.

“It is a great honour to be recognized as one of the Best Employers for New Canadians in 2012,” said Chris Pinnington, FMC’s chief executive officer. “At FMC, the diverse backgrounds of our team contribute to the excellence of our client service and our ability to find innovative legal solutions to the business challenges of Canadian companies. Creating a welcoming workplace environment where new Canadians can realize their talents and career aspirations is part of the firm’s long-standing commitment to diversity and inclusion.”

The firm was also recognized for its participation in the Toronto Region Immigrant Employment Council and the Calgary Region Immigrant Employment Council’s Mentoring Partnerships. As part of that program, FMC created a resume and interview workshop program involving more than 40 FMC members.

The Best Employers for New Canadians award is a part of Canada’s Top 100 Employers Project and ALLIES, a joint initiative of The Maytree Foundation and the J.W. McConnell Family Foundation. Both provide employment assistance for immigrants and employers across Canada.

Award winners are selected based on their program offerings, the steps they have taken to reduce employment barriers for recent immigrants, their work in helping new Canadians to have their credentials recognized in Canada, and their training in cross-cultural issues.

“At FMC, we embrace a cross-section of cultures, ethnicities and backgrounds that reflect our diverse community,” said Kate Broer, FMC partner and co-chairwoman of FMC’s National Diversity and Inclusion Initiative. “Diversity and inclusion are an integral part of FMC’s culture and business strategy and our involvement with these programs expands on this belief. We are committed to creating opportunities for new Canadians.”

FMC was also recognized for sponsoring the University of Toronto Faculty of Law’s Internationally Trained Lawyers Program, their partnership with the St. Stephen’s Community House Employment and Training Centre Connections Program to offer six-week unpaid cooperative placements, and FMC’s Boot Camp for Diversity and Inclusion which trains firm members on diversity and inclusion issues within the firm. FMC was also recognized for providing financial assistance to firm members who are recent immigrants to upgrade credentials or skills relevant to their roles within the firm.Forty corporations and businesses from across Canada were awarded in this year’s competition.