Canada

Nanny told to accept deal in case against ex-MP, Toronto Star

SCC won't hear disabled Nortel workers' appeal, Ottawa Citizen

Judges clash over accused rights in N.S. DNA case, The Globe and Mail

United States

Toronto's i4i wins U.S. patent case against Microsoft, Reuters

Jury finds Canadian man guilty on terror charges, CBC News

International

Spanish court upholds face-veil ban, Associated Press

10 sentenced to death for Indian 'honour killings', Associated Press

Groups representing visible minority lawyers say a report showing their inability to gain a foothold in leadership positions in the Greater Toronto Area legal sector show how much work they have left to do to create a truly diverse legal profession in Canada.

‘Bay Street and a number of institutions have gone further in terms of fostering diversity, but they’ve got a very long way to go,’ says Andrew Alleyne.

“The report is not terribly surprising,” Canadian Association of Black Lawyers president Andrew Alleyne tells Legal Feeds. “I do think the issue is of vital importance. Bay Street and a number of institutions have gone further in terms of fostering diversity, but they’ve got a very long way to go.”

The DiverseCity Counts report was prepared by the Diversity Institute at Ryerson University, for DiverseCity: The Greater Toronto Leadership Project. It followed 3,330 leaders within the corporate, public, elected, education, and nonprofit sectors. It was the first time in the report’s three-year history that visible minority leadership in the legal sector has been studied.

It’s findings are alarming — if perhaps not all that surprising, unfortunately — to those within the legal community. Only 6.8 per cent of those in positions of leadership in the GTA legal sector are visible minorities. That’s a pitiful number when you consider that 49.5 per cent of those within the population studied are visible minorities.

“Lawyers and judges are influential decision makers who shape the laws and the administration of justice,” said the study’s lead author, Wendy Cukier. “Lawyers lead in other areas too, such as in elected office — in fact, 73 per cent of Canadian prime ministers have also been practising lawyers. They are also at the forefront of advocacy and social change. Representation in this sector is critical to a democratic society.”

Here are some other key findings from the report that the legal community should reflect on:

• In the legal profession, judges have a greater level of visible minority representation compared to law firm partners or Crown attorneys, at 8.3 per cent versus 6.6 per cent.

• Overall, 14.5 per cent of leaders in the GTA are visible minorities. That’s up from 13.4 per cent in 2009.

• Visible minorities are best represented in leadership positions within governing bodies and law schools, at 10.5 per cent.

Alleyne notes that in October 2010, CABL recognized 18 black partners working at Bay Street law firms. The organization viewed that as a “minor accomplishment,” he says.

“But, as you can imagine, only 18 black partners on Bay Street out of the hundreds if not thousands of partners on Bay Street is a pretty small number,” he says. “So we have a very long way to go.”

The only way for law firms to make meaningful change may be through pressure from the corporations that pay for firms’ expertise, suggests Alleyne.

“It’s a very small number of corporations that are doing that, and it’s not really becoming much of an influence on the way Bay Street firms staff their files,” says Alleyne. “Until this becomes something that Bay Street firms see as a benefit to them, I don’t know that we’re going to get that much further.”

Julia Shin Doi, president of the Federation of Asian Canadian Lawyers, believes headway can also be made through the enhancement of social and professional networks. The DiverseCity report identified deficiencies in that area.

“Organizations such as FACL assist in providing a network for visible minority legal professionals,” she says. “FACL fosters advocacy, community involvement, legal scholarship, and professional development, which are key touchstones to advancement in the legal sector.”

Canada

Globalive wins appeal over Wind Mobile, Reuters

B.C. trial suspended due to sheriff shortage, The Globe and Mail

Teacher liable for student's sport injury: court, The Vancouver Sun
United States

Government sues investment firm over pension losses, Reuters

Environmental lawsuit against Exxon upheld, Reuters
International

Brazil won't extradite ex-guerrilla to Italy, Reuters

ICC prosecutor claims Gaddafi linked to rape policy, Reuters

Two B.C. lawyers, who have been critical of police investigating police-related deaths or serious injury incidents, believe the B.C. government’s announcement last month to establish a civilian review body will go a long way in restoring public confidence in police after the high-profile tasering death of polish immigrant Robert Dziekanski at Vancouver International Airport in 2007.

Walter Kosteckyj, who represented Dziekanski’s mother and delivered recommendations to a subsequent public inquiry, called the move “a very positive thing and one of the recommendations that I had pressed for in my submission in the Braidwood Commission.”

Vancouver lawyer Cameron Ward, who has represented families in 10 B.C. cases relating to injury or death of individuals at the hands of police, said: “It is change that has been long overdue. I’ve felt having police officers investigate cases of serious injury or death involving police officers does not serve the police nor does it serve the community. A civil organization tasked with the investigation will improve the investigation and restore the public trust in the police.”

In his June 2010 report into the death of Dziekanski, Justice Thomas Braidwood recommended that B.C. develop a civilian-based criminal investigative body, which he suggested be named the Independent Investigation Office (IIO). B.C.’s government announced in May that bill 12 will create the IIO and it is currently assessing the office’s location, budget and staffing requirements, but expects the office to be operational by the end of 2011.

The IIO will be the lead investigative agency in cases under its mandate, interview witnesses and gather evidence. It will be lead by a civilian (who has never served as a police officer), conduct criminal investigations in serious injury, death, or other serious incidents involving police, be able to investigate all police officers, including RCMP, have powers entrenched in legislation and report to the attorney general. The broad powers of the office are expected to extend beyond those of similar civilian bodies that exist in Ontario and Alberta.

While B.C. has the Office of the Police Complaint Commissioner, it is only empowered to handle complaints against B.C.’s 15 municipal police forces and not the RCMP, a federal entity.

IIO investigators will have status equivalent to that of police officers. The office’s director will have the discretion to hire ex-police officers as investigators, as long as they have not served in B.C. within the past five years. This will ensure the office has sufficient investigative skills and capacity to achieve its mandate in its initial, formative years.

Ward said he believes there will be a transitional period where individuals, who have not been police officers, will get trained to work with the IIO. Kosteckyj, who is a former RCMP officer, said he sees no problem with hiring former police officers as long as there is an arms-length relationship. Establishing an independent investigative body “is not going to happen over night,” he said, as individuals have to be hired and independent labs established to work with the investigators.

“One of the things that I would do, if I was looking to do this, is to look what they do in England, look at the Ontario model and look at Alberta and try to take the bet for all of these models. It is not going to emerge all of a sudden and it is going to take a while to get it up and running.”

Before Jan. 1, 2015, a special committee of the legislature will conduct a review of the office’s administration and general operations. The chief civilian director’s legislation will allow the office’s civilian director to appoint a civilian monitor with access to all information on an investigation. The monitor will be free to raise concerns to the director about the integrity of an investigation and submit a final report within 30 days.

Ward said he is hopeful that the IIO will be adequately funded and staffed and that the staff will not consist of solely of ex-police officers.

We are very proud of the journalism we do here at Canadian Lawyer and once again I am happy to announce that at last night's KRW Awards, which recognize the best in the Canadian business press, that our magazine took home a gold and two silver awards.

Art director Bill Hunter, staff writer Robert Todd, and editorial director Gail J. Cohen celebrating our success at the KRW Awards last night. Photo: Heather Gardiner

The gold award was in the best marketing/merchandising article and was won by Montreal laywer Ava Chisling who freelance authored the our May 2010 cover story “How am I doing?” The story looked at the steps Canadian law firms, both small and large, are taking towards integrating client feedback into their firms' culture.

The silver awards came for staff writer Robert Todd’s “Legal aid: a system in peril,” a critical look at the state of legal aid across this country in the October 2010 issue. That same issue was honoured in the best cover category with art direction by Bill Hunter and illustration by Darren Booth.

Canadian Lawyer also received honourable mentions for the June 2010 Money Issue cover; for our former Back Page columnist Ezra Levant in the best regularly featured column or department category; in the best feature category for Bruce Livesey’s article “When Temptation Bites” and Todd’s “Greener pastures”; artist Anthony Tremmaglia got a nod for his Canadian Lawyer InHouse October 2010 cover illustration; and Hunter along with photographers Roth & Ramberg for the opening spread of the article “A Major undertaking.”

I look forward to continuing our history of excellence with a great team of staff and freelance contributors who work hard every day to bring great content to our readers. Please join me in congratulating our dedicated team.

Legal Feeds was at the Four Seasons Centre for the Performing Arts to celebrate Thomson Rogers' 75th anniversary on June 7.

All photos by Heather Gardiner.

Canada

Man. creating new mental-health court, Winnipeg Free Press

Alta. court denies appeal in sex exploitation case, Calgary Herald

Feds won't consult SCC on Senate reform, The Canadian Press

United States

N.J. court rules against blogger, Reuters

Pediatrician on trial for rape, sexual assault, Reuters
International

Chinese student executed for woman's death, Reuters

Ex-Credit Suisse broker gets additional 2 years in prison, Reuters

If you are a legal professional looking for a job, chances are you are going to have a good third quarter.

In a report releasted today by Robert Half, 50 per cent of executives interviewed plan to add to the number of full-time employees who are legal professionals in the third quarter of 2011. Only one per cent plan to downsize. The data comes from the latest Robert Half Professional Employment Report.

“Lawyers, law clerks, paralegals, and legal support staff are the positions in the greatest demand for the third quarter,” says the report. “A net 49 per cent of lawyers at law firms and corporations surveyed indicated they are likely to increase hiring in the third quarter of 2011. Most of the hiring is expected at law firms.”

Legal hiring will outpace all other professions examined in the report, like accounting and finance, advertising and marketing, human resources, IT, and sales and business development.

When all professions are grouped together, 15 per cent of executives expect to increase jobs in the third quarter and one per cent expect a decline.

Survey respondents included 150 lawyers (split between law firms and in-house counsel); more than 270 chief financial officers; 270 chief information officers; 150 senior human resources managers, 50 advertising executives, and 200 marketing executives, all of whom have hiring authority.

Overall it’s good news for the Canadian economy, according to the report, as 79 per cent of executives are at least somewhat confident in their organisations’ ability to grow in the third quarter.

“Although some firms remain conservative in their hiring outlook, augmenting staff levels for others is becoming necessary when trying to meet added consumer demand,” says Kathryn Bolt, district president of Robert Half Canada. “Increased business activity and economic factors are stimulating hiring in many industries.”

The Professional Employment Report is the first quarterly executive survey of its size and scope to concentrate exclusively on professional-level hiring.

Canada

Bank of Nova Scotia's overtime class action appeal rejected, Financial Post

Moose-crash victims to sue N.L., The Canadian Press

Judge approves French bomb suspect's extradition, Reuters
United States

Wis. court hears arguments on union law, Reuters

Fla. doctors challenge law regarding patients' guns, Reuters

International 

Ex-Iceland PM to face charges over bank collapse, The Canadian Press

Hotel maid to testify against Strauss-Kahn: lawyer, The New York Times

A B.C. Supreme Court decision has posed an interesting debate: do legal aid rates provide the accused with a fair trial, and, the ability to assembling an adequate defence team? And, should the taxpayer bear the cost of an exhaustive defence team putting every aspect under a microscope when the average individual, unable to qualify for legal aid, could not afford such a protracted defence?

A B.C. judge has waded into the debate over enhanced fees for legal aid lawyers.

Pivotal to the issue is the public purse. Supreme Court Justice Sunni Stromberg-Stein, in a recent decision in R. v. Bacon, criticized the B.C. attorney general for negotiating fees above those publicly posted by the Legal Services Society.

“But, sadly, when the Attorney General is approached for ‘special fees,’ and engages in negotiations with counsel who seek a richer deal, cost and common sense take a back seat. This is evidenced by the enormous legal fees paid in the past in the Air India, Pickton and Basi and Virk trials. The Attorney General has stated that a counsel rate of $250 per hour is unsustainable, in an apparent move to reign in public spending on legal fees. There seems to be little political or public appetite to perpetuate the process used to determine fees and number of counsel as has occurred in the past,” she said.

In the case, accused killers Jamie Bacon, Matt Johnston, and Cody Haevischer came before Stromberg-Stein to argue that unless the AG’s office could double the LSS rate, they felt they could not assemble the defence team they needed and their rights to a fair trial would be compromised.

“Senior counsel want $250 per hour. The numbers of counsel requested for each defence team have varied. I understand each team wants two to three senior lawyers,” Stromberg-Stein said in reasons. “Funding a second lawyer is exceptional. It is a very rare occurrence, to ever fund three lawyers.”

Bacon, Johnston, and Haevischer along with co-accused Michael Le (who did not participate in the proceedings) are all alleged members of the Red Scorpion gang and charged in 2009 with first degree murder of six individuals. The Surrey Six murders are considered B.C.’s worst gang homicides.

Bacon’s lawyer Kimberley Eldred, who spoke for all the defence counsel, maintained since June 2010, the AG’s office has not dealt in good faith with funding issues and has the ability to increase the LSS funding. She argued that this case required a remedy of proper funding, not a stay of proceedings, and asked the court to establish a funding structure. She also maintained the hourly rate structure goes to the quality of counsel an accused person can hire, and the degree of devotion that counsel can give to the accused person’s case.

LSS spokesperson Brad Daisley said currently legal aid lawyers receive between $83 and $92 an hour with an “enhanced” fee for more senior counsel rising to $125 an hour on major complex cases. On larger cases that can monopolize a lawyer’s time, the attorney general has the ability to add a 15 per cent fee to LSS-appointed counsel, which would raise the legal aid lawyer’s fee to $144 an hour. This only happens in “rare” cases, said Daisley.

Justice Stromberg-Stein pointed out that the comparison should not be between what LSS could pay and what the AG’s department could spend on counsel but rather if B.C.’s legal aid rate fell below the standard offered by other provinces to enable the accused to obtain counsel.

“I conclude government rates paid in other cases are not relevant. . . . The hourly rate, without context, is not a comparator,” said Stromberg-Stein. “What is a comparator is the legal aid rate paid in other provinces. British Columbia, by far, offers the richest compensation for counsel engaged in complex trials.”

The judge noted the lawyers had not returned the LSS certificates or applied to withdraw from the case, an option if they felt they were not able to financially take on the case.

“When assessing Charter rights related to representation by publicly funded counsel, the test is simply whether counsel is ‘sufficiently qualified to deal with the matter at issue,’ not whether counsel is the better or best qualified lawyer,” Stromberg-Stein reasoned.

She cited the Rowbotham and Fisher applications, but noted that few courts today follow Fisher. She concluded neither application of the law applied here.

The Surrey Six trial is expected to be a complex, large trial. However, the judge was critical of the rising costs of mega-trials. “What is a ‘mega’ trial if not a big complex criminal trial?” she asked. “Simply describing a trial as ‘mega’ seems enough to ensure that it will mushroom out of control and take on a life of its own. The description creates the monster,” she said, adding in reasons the more resources that poured into these larger, longer trials, the more complex they tend to be and thus, result in a self-fulfilling prophecy.

In the end, Stromberg-Stein simply ruled: “I agree with counsel for the Attorney General. This case does not invite judicial intervention or remedial action. It invites counsel to make a decision: they must decide whether they will accept what is being offered by LSS, as enhanced by the Attorney General, or whether they will seek to withdraw.”