Class action seeks damages from city and province after epic snow storm, Canadian Press
Case of Canadian charged in Yahoo hack in court today, Canadian Press
Alberta Children's Services not to blame in father's murder of two sons: judge, Canadian Press
Judge approves $27 million driver settlement in Lyft lawsuit, Reuters
California judge seeks to prevent immigration arrests inside state courts, Reuters
Venezuela arrests brownie and croissant bakers in 'bread war', Reuters
Russian court to consider ban on 'extremist' Jehovah's Witnesses HQ, Reuters
|Justice Robin Camp has resigned as a member of the Federal Court of Canada.|
“I would like to express my sincere apology to everyone who was hurt by my comments during the Wagar trial. I thank everyone who was generous and kind to me and my family in the last 15 months, particularly my legal team. I will not be answering any media inquiries today. If you have questions I ask you to direct them to my lawyer, Frank Addario.”
He signed the statement Robin Camp.
Camp is the judge who asked a sexual assault complainant in a trial why she couldn't "keep her knees together." Transcripts from a 2014 trial showed he called the complainant "the accused" several times and told her "pain and sex sometimes go together."
The CJC recommendation, dated March 8, follows a public inquiry conducted under the Judges Act.
“From the time they are considered for appointment to the Bench, and every day thereafter, superior court judges in Canada are expected to be knowledgeable jurists,” reads the report’s introduction.
“They are also expected to demonstrate a number of personal attributes including knowledge of social issues, an awareness of changes in social values, humility, fairness, empathy, tolerance, consideration and respect for others.”
The council found Camp failed to meet these high standards and “seriously undermined” public confidence in the judiciary.
“We applaud the CJC majority report to the minister that properly confirms that the question here was not whether the judge was apologetic, but rather whether the conduct under review is of such a nature that a reasonable person would lose confidence in the judiciary,” says Kim Stanton, legal director at the Women’s Legal Education and Action Fund, which was an intervener in the case.
“Here, the CJC determined that Justice Camp’s disrespectful treatment of the complainant was so antithetical to the values of the judicial system that his removal was the only manner in which to maintain public confidence in the system.”
Four of the 23 members who deliberated disagreed with the decision. In the reasons for voting against the recommendation for removal the dissenting members argued Camp’s request to appear before the council should have been honoured and that, while his comments do amount to judicial misconduct as the majority found, they wanted a sanction short of removal.
The dissenters noted in their reasons that “the full record of proceedings before the Inquiry Committee quite clearly leads to the inference that the Judge's words reflected an unconscious bias, which is remediable, and do not reflect animus or antipathy toward the complainant, women, or the law. The record demonstrates that the Judge was fully apologetic and apologized promptly, sincerely and appropriately.”
The majority disagreed, however, and in their recommendation said:
In our view, the statements made by Justice Camp during the trial and in his decision, the values implicit in those statements and the way in which he conducted himself are so antithetical to the contemporary values of our judicial system with respect to the manner in which complainants in sexual assault case should be treated that, in our view, confidence in the system cannot be maintained unless the system disassociates itself from the image which the Judge, by his statements and approach, represents in the mind of a reasonable member of the public. In this case, that can only be accomplished by his removal from the system which, if he were not removed, he would continue to represent.
“In this instance, the Judge’s misconduct was evidenced over a continued period during the trial,” the report states.
“Some of the Judge’s most egregious comments were repeated in his reasons for decision, issued much later. The reasonable person’s confidence in the Judge’s ability to discharge the duties of office is seriously undermined.”
The recommendation was reached following the unanimous decision the inquiry committee tasked with reviewing Camp’s conduct arrived at on Nov. 29, as Legal Feeds previously reported.
In the inquiry committee’s report 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.
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.”
A judge may be removed from office only through a joint resolution of Parliament. Because Camp has resigned, it will no longer have to vote on his removal.
|Erika Chamberlain takes on the position of dean of law at Western University May 1.|
Western already does a great job of being inclusive, Chamberlain says, noting she had a great student experience as a National Scholar at Western Law in 1996, followed by getting her LLB as gold medalist from Western Law in 2001. After clerking for the Supreme Court of Canada in 2002, Chamberlain once again returned to Western as assistant professor in 2005. Following her PhD from the University of Cambridge in 2009, Chamberlain has held the position of associate dean (academic) at Western Law for the past five years.
During her time working at the university, Chamberlain has led the development of the faculty’s strategic plan, led the planning and implementation of curriculum reform and assisted with budget planning, accreditations, faculty appointments and developing interdisciplinary programs.
Chamberlain has served on committees both within and outside of the university, including the Council of Ontario Universities Quality Council.
Now, as head of the department, Chamberlain says she wants to preserve the “really good sense of community” for future students. She says the fact that Western Law is the smallest law school after Lakehead University's Bora Laskin Faculty of Law helps foster the close environment.
“Our faculty care a lot about teaching, care a lot about mentoring students, and I think that’s a real strength for us,” she says.
Chamberlain notes that all Ontario law schools are facing uncertainty when it comes to the articling process and the Law Practice Program. As dean, she’ll be keeping an eye on “how that’s ultimately going to affect our curricula and whether we’re going to get called on to do more skills training in law school,” she says.
“That’s going to be a big challenge for us over the next several years I think.”
Something else that’s top of mind for the new dean is the changing profession and “making sure we keep legal education relevant and keep it engaging for our students throughout all three years of their education,” she says.
“We’re trying to come up with as many different experiences and opportunities for our students as we can, whether that’s externships, research projects or interdisciplinary learning.”
Another important focus will be on implementing the Truth and Reconciliation Commission’s call to action, she adds.
According to a news release, Chamberlain’s five-year appointment was endorsed by university president Amit Chakma and Western’s board of governors.
Chamberlain takes the reins from Iain Scott, whose term ends this year.
“Erika has demonstrated her exceptional leadership abilities and commitment to Western Law over the course of her entire academic career and I know she will help the faculty continue building on its reputation as Canada’s premiere business law school,” Chakma said in the release.
Chamberlain is a three-time recipient of the University Students’ Council Teaching Honour Roll and received the J. McLeod Professor of the Year Award from the Student Legal Society twice. She has authored a national textbook on tort law, and her work in impaired driving law has been cited by provincial courts of appeal and the SCC.
Chamberlain says she’s been overwhelmed with how many people have been in touch with her since the announcement that she’ll be at the helm of the law school, and she says she’s “really excited” to take on her new role.
|Robert Lee, counsel for the plaintiffs, says he’s happy about the decision, but he anticipates the government will launch an appeal.|
On Feb. 10, the decision in LC v. Alberta was released, the latest in a string of cases dealing with claims that the government in that province — in particular, its child services branch — failed to file care plans in a timely way or, in some cases, at all for children in government care under temporary guardianship orders.
Lee says his reaction to the decision is mixed.
“On the one hand, I’m happy, but on the other hand, this has gone on already so long that it’s so tiring. It’s not finished. I expect that there will be an appeal and that’s the whole problem with this case — the huge disadvantage that the plaintiffs face against a government.”
Justice Robert Graesser wrote in the decision that he had “provisionally certified this as a class action proceeding” and that the class action was split into classes — the child class and the parent/guardian class. Advance costs were awarded in this decision to the child class.
Lee is already facing an appeal by the government on the class action certification, calling the string of cases an ongoing war.
“I started suing child welfare in 1998,” he says, noting that he’s not even a class action lawyer — he’s a sole practitioner who took on a few cases that ended up turning into class actions. “I might retire before this case is finished. That’s the reality. And that’s why advance costs are so important — the governments can drag these things out forever and ever and ever. The lawyers need to be able to fund themselves while the case goes on.”
Lee adds that if the government is essentially paying for the case once an advance costs order is made, it “totally changes the dynamics of the lawsuit.”
“Now they don’t have the financial advantage anymore,” he says. “They can’t grind the plaintiff into the ground.”
Lee says this is one of the first times advance costs have been awarded in a class action setting, and it’s an important decision because he sees a rise in class action lawyers turning to litigation funding companies and, “frankly, from my perspective, I don’t think that’s a healthy alternative for our legal system and for plaintiffs.” He argues that advance costs mean the well-funded defendant loses the economic advantage that causes a procedural advantage.
“Advance costs is a proper remedy where a litigant can’t get a lawyer to do the case, because these defendants go into this scorched-earth approach where they throw all their resources into trying to stop the case from proceeding,” Lee says.
Advance costs is a remedy that exists in our legal system, he says, and the application has to meet three tests as laid out by the Supreme Court of Canada. In British Columbia (Ministry of Forests) v. Okanagan Indian Band the court held that “the power to order interim costs is inherent in the nature of the equitable jurisdiction as to costs, in the exercise of which the court may determine at its discretion when and by whom costs are to be paid.”
Later, in Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency) and in R. v. Caron, the SCC spelled out the three requirements needed for advance costs to be ordered. In this case, Graesser wrote out the three-prong test:
- The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial — in short, the litigation would be unable to proceed if the order were not made.
- The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be fortified just because the litigant lacks financial means.
- The issues raised transcend the individual interests of the particular litigant, are of public importance and have not been resolved in previous cases: Okanagan at para. 40.
Though the case law calls advancecosts “an extraordinary remedy” and necessitates “sufficiently special” cases in order to apply, Lee says the courts generally use it in trust cases or in matrimonial cases where there’s kind of a spousal fiduciary duty, and he argues that child welfare should be viewed similarly as a special category since the government owes the children a fiduciary duty.
“Advance costs are appropriate in almost every child welfare case and I’m confident in almost any case you will find the criteria set by the SCC in Okanagan and Little Sisters — it’s met.”
While Graesser approved the advance costs, he did not set an amount. “The amount … will be determined upon receiving additional submissions,” he wrote in the decision. Lee had sought coverage for his budget of $1,774,537.50, but he says the judge said he was “not prepared to approve a budget in that magnitude.”
Lee says that even though he has the costs order, and “as a lawyer, academically, professionally, I’m so proud of this decision,” which he calls precedent-setting, he’s been fighting this battle for so many years and the piece of paper doesn’t help him pay his staff or his rent.
“In the decision, the judge says maybe we might have to wait for certification appeal,” he says, noting they just filed their factum on that appeal and he’s currently working on his response to that. “Until I see something from it, it’s just kind of more of the same — a lot of fighting against the government where they can just fight and fight.”
Final arguments today for suspect in deaths of Calgary couple, grandson, The Canadian Press
Universities moving away from allowing students to judge sex assaults, The Canadian Press
RCMP say 21 people arrested for illegally crossing border at Emerson, Manitoba, The Canadian Press
Courts likely to probe Trump's intent in issuing travel ban, Reuters
Turkish hacker behind cyber heists gets 8 years in U.S. prison, Reuters
Germany's AfD votes to expel lawmaker who criticized Holocaust memorial, Reuters
Rights group says Pakistan has 'forced' mass Afghan refugee returns, Reuters
Fasken Martineau DuMoulin LLP has partnered with professional services firm PwC Canada for the provision of e-discovery services, the firm announced today.
|Vera Toppings, partner in Fasken Martineau DuMoulin LLP's litigation and dispute resolution group, says efficient delivery of e-discovery services is ‘top-of-mind’ for law firms.|
Prior to the arrangement with PwC Canada, Faskens dealt with e-discovery on a “case-by-case” basis, which was often more costly and less efficient for clients.
“We would go to the market and solicit quotes from different providers, analyze them, then go back and forth with the providers, and then go back and forth to the client,” Toppings says.
“We were dealing every time with different people in the marketplace — sometimes you don’t have responses from everyone right away, or they aren’t able to provide all the same types of services you may want to be able to offer to the client,” says Toppings.
She notes the pairing is more of a contractual arrangement than a formal partnership.
The e-discovery services will be scalable to any level of client demand and will offer improved predictability of costs. Faskens clients will have access to PwC Canada’s specialists who can share e-discovery industry best practices.
This move follows McCarthy Tétrault LLP’s acquisition of Wortzmans earlier this month, and Toppings says if there seems to be a trend that’s fueling these moves, there’s a good reason for it.
“I think it’s an issue that’s front-of-mind for a lot of law firms,” she says, noting it’s becoming more necessary to be in “the best position possible” to provide these services to clients.
“The expectations on clients, and of course their counsel in guiding them through the process, are very high. I think for that reason lots of firms are thinking about what’s the best way that we can provide this service to our clients and ensure we are advising them and offering them the best options possible for navigating what has become a more complex, involved and risky proposition because the courts have really set high expectations for how these processes will be managed and for the consequences that can flow from doing it improperly.”
The gap between the number of Canadian youth in pre-trial detention versus those in sentenced custody has once again begun to widen.
|Source: Statistics Canada|
“Certainly we are concerned about the fact that the numbers are higher for remand custody than for an actual custodial sentence,” says Samira Mobina Ahmed, litigation lawyer at Justice for Children and Youth in Toronto, adding however that the gap looks pretty narrow.
“That’s an indication that judges are using the right factors as outlined in the Youth Criminal Justice Act for when detention can be used — as a measure of last resort, so it should be that there is a small discrepancy.”
The study, titled Trends In The Use of Remand in Canada, 2004/2005 to 2014/2015, documents the results of four surveys — the Corrections Key Indicator Report for Adults and Youth, the Adult Correctional Services Survey, the Youth Custody and Community Services Survey and the Integrated correctional Services Survey — when it comes to use of remand in Canada. The first survey offered average counts data while the remaining three were used for data on admissions. The analysis doesn’t include federal correctional service data, as it does not supervise remand, or people held in ‘temporary” detention such as immigration holds.
The Criminal Code allows for detention prior to a finding of guilt “to ensure attendance in court; for the protection and safety of the public, including any victims of or witness to the offence; and to maintain public confidence in the justice system,” says the report.
While the number of youth arrested and sentenced overall, as reported by 12 provinces and territories, has declined over the years — with remand count in 2014/2015 down 33 per cent from 10 years ago and the number of youth in sentenced custody made an even larger drop of 60 per cent — this is chalked up to a drop in young people entering the system at all. The number of young people charged with a crime fell 46 per cent nation-wide, but statistically, of those arrested, time spent by youth in pre-trial detention did not change that much over the same time period.
“The numbers are on the decline, which is a good thing. Hopefully this is a reflection of the appropriate application of the YCJA,” says Ahmed. “The sentencing principles allow for there to be lots of discretion on the part of the judge to determine what the appropriate sentence is. Specifically for pre-trial detention, it shouldn’t be used as a substitute for mental health, social or child welfare needs and I think that’s still something courts struggle with which could account for any widening in the gap that you see from time to time.”
In 2014/2015, more than 81 per cent of youth released from remand in the nine jurisdictions that reported figures spent one month or less in pre-trial detention, a “proportion unchanged from 10 years earlier.” Over half of those remanded were there for one week or less — up slightly to 56 per cent from 53 per cent in 2004/2005.
In 2014/2015, and in the eight jurisdictions where information was available, Aboriginal youth made up 36 per cent — or more than one-third — of youth admissions to remand custody. This is five times their representation in the general population. In 2004/2005, this percentage was much lower at 21 per cent. Aboriginal young people in sentenced custody was also disproportionally higher.
“Our office is very concerned about the high percentage of aboriginal young people that are before the courts,” Ahmed says, noting she is unable to, based on the data provided, comment on whether this is an indication that the Gladue Principles aren’t properly being applied in the youth criminal justice context but adds “that’s certainly something we would want to make sure was at the forefront of all consideration for youth that were before the youth courts.”
For the adult population, the report doesn’t have any good news. Across the country, provinces and territories saw the adult remand number rise between 2004/2005 and 2014/2015. Nova Scotia, Northwest Territories, Manitoba and Alberta each saw over 100 per cent increases in average daily counts.
In 2014/2015, compared to 10 years earlier, the number of people in remand has grown almost six times more than the number in sentenced custody, increasing 39 per cent over the last decade while the number in sentenced custody increased seven per cent.
One in four of people admitted to remand in 2014/2015 were Aboriginal, with the exception of statistics from Alberta and Prince Edward Island. This is almost eight times greater than the representation of Aboriginals in the overall population. The statistic is also up nine per cent from 2004/2005, when the number stood at 16 per cent.
Five lawyers were appointed to the Order of Canada last week, in a milestone year marking Canada’s 150th birthday and the order’s 50th anniversary.
|Retired Supreme Court justice Morris Fish was appointed a Companion of the Order of Canada for his “eminent service” as a jurist.|
Retired Supreme Court justice Morris Fish was appointed a Companion of the Order of Canada for his “eminent service” as a jurist, particularly on the SCC bench from 2003-13. A law graduate from McGill University, Fish practiced mostly in Quebec — though he was called to the bars of Prince Edward Island and Alberta as well — and also lectured at various Canadian law schools including holding the post of adjunct professor at his alma mater and teaching at the University of Ottawa and the Université de Montréal. His focus in practice and in his teaching was criminal law.
Appointed to Officers of the Order of Canada are Ellen Irene Picard and Paul Cronin Weiler.
Picard was appointed for her contributions as a judge at the Court of Queen’s Bench and her further elevation to the Court of Appeal. She is forefront in the field of health law in Canada, having helped to establish it through her work as a legal scholar. She co-authored Legal Liability of Doctors and Hospitals in Canada, a book widely regarded as the most comprehensive text on the subject.
A graduate of Osgoode Law School in Toronto, Weiler went on to become a professor of law at his alma mater as well as visiting professor of Canadian studies at Harvard Law School, where he got his Masters of Laws years earlier. He was appointed for “his contributions to reforming labour and employment standards as one of North America’s foremost legal scholars,” including serving as a panelist in the United States/Canada Free Trade Agreement softwood lumber arbitration in 1992.
Benoît Pelletier, for “his efforts to bring about interprovincial-territorial co-operation and for his advocacy on behalf of Francophone communities,” and Alfred Popp, for his “contributions to maritime law” in various positions, were named Members of the Order.
Pelletier, currently a law professor at the University of Ottawa where he also earned his Masters Degree in law, was an active political figure between posts at the university, as well as the author of many books, articles and opinion pieces. A supporter of the federalist cause in Quebec, Pelletier departed from traditional policy by also seeking to help Francophone minority groups from other parts of the country resist assimilating with the English-speaking majority. He is still called upon to comment on constitutional matters.
Following a legal education in South Africa, Popp completed his Masters Degree in law at the University of Ottawa. A member of the Canadian delegation to the Legal Committee of the International Maritime Organization — where he eventually became president — Popp was a driving force in developing major international agreements in the field of maritime law. Retiring from the committee in 2005, Popp was appointed administrator of the Ship-source Oil Pollution Fund two years later.
The Order of Canada, one of Canada’s highest civilian honours, was established in 1967, during Canada’s centennial year, to recognize outstanding achievement, dedication to the community and service to the nation. More than 6,000 Canadians have been invested into the Order since its creation. To celebrate its 50th anniversary, there will be multiple special initiatives and partnerships announced throughout the year.
This year’s recipients will be invited to accept their insignia at a ceremony to be held at a later date.
Despite an injunction to stop Montreal’s controversial pit bull ban being dismissed, opponents to breed-specific legislation aren’t giving up the fight.
|Rebeka Breder, of Breder Law Co., says lawmakers need to ‘look at the person on the other end of the leash’ when developing dangerous dog legislation.|
Camille Labchuk, animal rights lawyer and executive director of Animal Justice in Toronto, says the reality of the latest decision means pit bulls — and really all dogs in Montreal — are at risk from this “vague, discriminatory and ineffective bylaw.”
“What we know about keeping the public safe is strongly related to education and dog licensing,” she says. “This is a draconian measure that’s not going to work and is going to be expensive.”
Quebec Superior Court Justice Louis Gouin granted the temporary suspension stopping parts of the new law from going into effect on Oct. 5 in Lours v. Montreal (City of), but on Dec. 1 the injunction was dismissed by the Quebec Court of Appeal and the bylaw came into full effect.
In a statement on its website, the Montreal SPCA said the appeal court is “holding the City of Montreal to the concessions it made during the appeal hearings.”
“Importantly, the City of Montreal cannot issue euthanasia orders based on breed or physical appearance, prohibit someone from reclaiming their lost dog based on breed or physical appearance, and must allow all dogs to continue to be adopted to families residing outside of Montreal,” the Montreal SPCA stated.
According to both lawyers, Ontario is a good example of how breed-specific bans are ineffective. Labchuk says research from 2012 shows there was a 40 per cent increase in dog bites reported in Ontario hospitals since the ban was enacted in 2005.
On Dec. 10, Toronto City Council unanimously passed amendments to the city’s bylaw regulating dangerous dogs. According to the amendments, which stem from a Sept. 7 report for action called Responsible Dog Ownership: Mitigating Risks of Dangerous Dogs, dogs classified as dangerous will need to be muzzled and microchipped, will not be allowed in a leash-free area and the owner must purchase a dangerous dog tag from the city and also post warning signs on their property.
Anyone found to be in violation of the bylaw, which comes into force on March 1, 2017, could face fines up to $100,000.
Labchuk calls the changes positive, saying many of the local animal activists in Toronto “pushed quite hard” to get these amendments through.
While Breder acknowledges these amendments are steps in the right direction, she says Toronto didn’t go far enough.
“Any city that really wants to go to the root of the issue should start with education or have education as part of their dangerous dog regulations,” she says.
Additional amendments to the Toronto bylaw, especially making it illegal to tether a dog outside for longer than three hours and banning choke and pronged collars, are excellent Labchuk and Breder agree.
Breder says there are a number of examples from cities in B.C. in the last decade that have reversed breed specific legislation including Vancouver in 2005, North Vancouver in 2009, Delta the year after that, Castlegar, Cumberland, Coquitlam and White Rock in 2011 and New Westminster in 2013.
“Forget activists or pit bull lovers,” Breder says. “Looking at objective data that’s out and talking to animal behaviourists, we shouldn’t be dealing with a band-aid solution that isn’t a solution at all. Look at the people on the other end of the leash.”
But the gold standard in North America is Calgary, Breder says. In 1985 the city had just over 2000 aggressive dog incidents. By 2014, that number went down to 641. The number of trials where the city tries to get a destruction order for an aggressive dog has “decreased astronomically” in that time as well, she adds.
“They moved away from an ‘animal control’ model to a ‘responsible pet owner’ model. They did this in early 2000s and what that means is they take public education very seriously. They start by educating kids in their formative years, in elementary school, on how to approach dogs, how not to approach them. Because dogs are such a part of society they worked it right into the curriculum,” Breder says.
“Essentially what that legislation does in Calgary is it targets known risk factors and known behavioural problems so that they can nip it in the bud. It’s progressive,” Breder says. “We have to remember — in the 1960s it was the Shepherd, then the Doberman, now pit bulls and the latest trend is towards banning Cane Corsos and Bull Mastiffs. Where do we stop? We, as human beings, are supposed to be intelligent and learn from our mistakes — and it’s beyond me why we’re not.”
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