Year’s end invites assessment of what has past. For me, that includes reflection on the most significant developments in legal ethics over the year.
As usual, my assessment of significance isn’t one I claim to be objective or right; it is better characterized as, “things that happened in 2015 I thought were especially interesting” (with assistance from Richard Devlin, Adam Dodek, and Amy Salyzyn). Some things drop off the list that could have stayed on it; access to justice remains a crucial and unsolved problem in Canada, but fell off the list because it was more chronic than involving specific developments or discussion, at least this year. Others are on the list for the fourth consecutive year; Trinity Western’s law school was proposed in 2012, remains controversial, and law society decisions in relation to it are before several Canadian courts.
The one thing that constructing this list makes clear, however, is that the ethics and regulation of Canadian lawyers and judges remains an important and fruitful topic for our consideration: there is certainly no shortage of subject-matter.
1. Judges behaving badly
2. Trinity Western University before the courts
3. National competency standard
4. The Supreme Court on money laundering
5. Lawyer advising
6. Truth and Reconciliation Commission
7. Resignation of Quebec’s bâtonnière
8. Regulatory innovation
9. Campaigning in the LSUC election
10. Joe Groia and civility regulation
The B.C. government has appointed three new Provincial Court judges to start in early 2016.
During Jamieson’s 27 years in the legal profession, he has practised in all levels of B.C. courts. After graduating in law from the University of Manitoba, Jamieson earned a master’s degree from the University of British Columbia. His career has included research, teaching and private practice. Since 2002, Jamieson has been legal officer for the office of the chief judge for the B.C. provincial court.
Lee’s legal career encompasses 24 years of experience with criminal, family, and civil litigation, as well as real estate, personal injury, and builders’ lien litigation. After receiving his law degree from UBC, he worked with a number of small- to medium-sized law firms and, since 2001, has been a lawyer with the family maintenance enforcement program in both the Provincial Court and B.C. Supreme Court.
Seagram has practised criminal law in Vancouver, the Fraser Region, Penticton, and Nelson since his graduation from the University of Victoria Faculty of Law. In addition to his career as Crown counsel, he has worked in private practice and been a member of the Mental Health Review Board. An active volunteer in his community, Seagram has been involved as a coach, referee and fundraiser for youth hockey, soccer and gymnastics clubs.
The judges will be assigned to locations determined by the chief judge to meet the needs of the court. In 2015, 15 judges have been appointed to address recent retirements and vacancies. B.C. has about 150 provincial court judges who serve more than 80 court locations.
The closing of an 80-year-old music store in south Winnipeg opened a door for Darren Sawchuk. The longtime Winnipeg criminal lawyer with a newfound passion for old LPs just happened to be looking for a venue for a new music store.
|‘I have rediscovered what it is like to sit and relax and listen to records,’ says Darren Sawchuck.|
“LPs are coming back in style,” says Sawchuk. “People are discovering the qualitative difference in the sound of an LP as compared to digital music or iPods.”
Now it’s not that Sawchuk, a past president of the Manitoba chapter of the Criminal Defence Lawyers Association, has any plans to give up practising law after 25 years. He says he views law as a helping profession, particularly in criminal law cases. He notes that he has taken on a large number of legal aid over the years and values the relationships that he has established with his clients.
But one could describe Sawchuk as a free spirit — an individual with numerous other interests. For 16 years, for example, he filled much of his free time coaching local hockey teams.
And he has long been involved in music. While still at university, he played trumpet in a professional jazz band. While in law school, he learned to play guitar. And for the past 10 to 15 years, he has been the singer and lead guitarist for the band 59 Divide, which plays benefits and other bookings.
“We do about 10 gigs a year,” he says.
Sawchuk rediscovered the joys of vinyl last spring. He recalls that he had retired from coaching hockey and had time on his hands. He found some old records in the house and decided to play them on an old record player he still had. Impressed by what he heard, he began regularly listening to the LPs with his girlfriend, Loralie McKelvey, and collecting more.
“I started buying other people’s collections,” he says. “My collection had grown to about 1,000. Then in August, I made contact with a guy in Saskatoon who was selling his collection of 25,000 records. Loralie and her daughter and I rented an U-haul, drove to Saskatoon, and brought back all the records. That’s when I started thinking about opening a record store.”
But Vinyl Revival is more than just a record store. Sawchuk’s new enterprise also offers an open mic on Wednesdays and music lessons (guitar, bass, piano, vocals, and drums), in a rock band setting, with University of Manitoba faculty of music students as instructors.
Sawchuk reports that the response to his new venture has been tremendous.
“People who come in love the atmosphere here,” he says. “I am meeting a lot of talented musicians and I am enjoying jamming with them.
“The Beatles, the Stones, the Doors, and Led Zeppelin are among the records that are most in demand.”
Vinyl Revival doesn’t interfere with Sawchuk’s day job as the place is open from 5 p.m. to 9 p.m. on weekdays.
“The place almost runs by itself,” he says. “I may be the face of Vinyl Records, but my girlfriend and my son [Jordan] basically manage things.
“I have rediscovered what it is like to sit and relax and listen to records,” he says.
Quebec can implement Canada’s first law permitting physician-assisted dying, while the federal government decides on a framework for how to handle the tricky ethical issue, the Quebec Court of Appeal ruled on Tuesday.
|The Quebec Court of Appeal ruling means the province can implement Canada’s first law permitting physician-assisted dying.|
But contradictory legislation on the books leaves open the possibility that Quebec doctors who help patients die could be guilty federally while innocent provincially.
In February, the Supreme Court of Canada overturned a ban on euthanasia but suspended the application of its decision for a year to let Parliament draft new rules for when assisted suicide would be allowed, meaning the current federal law remains in force for now.
In Quebec (Attorney General) v. D’Amico, the Quebec appeal court overturned a lower-court decision that had left the provincial law in legal limbo. Quebec’s legislation was supposed to take effect on Dec. 10 but euthanasia opponents had contested it, saying it conflicts with Canada’s Criminal Code.
A spokesman for the federal government said it was reviewing Tuesday’s decision.
Pronovost said she was not concerned about Quebec doctors being sued or threatened with prosecution by performing euthanasia. Quebec has argued that euthanasia is a form of medical care, which falls under provincial jurisdiction.
The new Liberal government has asked the Supreme Court for a six-month extension on enacting legislation, saying last year’s election and the change of government set back drafting of replacement rules. The SCC will be hearing oral arguments on the extension Jan. 11, 2016.
Paul Saba, a Montreal family doctor who challenged the Quebec law in the lower court, said he would return to that court next year in a new legal bid to stop legalized euthanasia.
Saba and handicapped Quebecer Lisa D’Amico first sought legal action in that court in May 2014 to stop the provincial law.
“Euthanasia is a cheap and fast way to end suffering,” he said. “We are fighting for patients’ lives.”
Saba said he would argue that euthanasia is not a form of health care and Quebecers are not able to make a free choice when asking for assisted suicide because of errors by doctors in prognosis and diagnosing patients’ condition, along with inadequate palliative care.
Quebec Health Minister Gaetan Barrette, an advocate of the provincial law, told CBC television that while there will never be unanimity of views on such a topic, “there was a very, very large consensus.”
A 16-year-old boy, the youngest on trial for terrorism offences in Canada, has been found guilty by a Quebec youth court judge of committing a robbery in association with a terrorist organization and planning to leave Canada to join a jihadist group abroad.
His conviction for trying to leave Canada to participate in terrorist activities abroad is the first under federal anti-terror laws passed in 2013.
"It is a first, it is a new infraction and it is the first conviction," Crown Marie-Eve Moore told reporters.
The teen, who was not identified because he is a minor, admitted to robbing a convenience store in 2014 when he was 15, but pleaded not guilty to trying to use the stolen money to travel to Syria.
Youth Court Judge Dominique Wilhelmy said evidence showed the teen’s radicalization began when he was 13.
“This sad story is that of a young boy submerged by the messages of violence, of vengeance and of war issued by the Islamic State,” Wilhelmy said.
The boy's father, who emigrated from Algeria with his family in 2003, reported his own son to police in October 2014 after discovering a bag hidden behind their home containing a mask, knife and cash.
Montreal police alerted the RCMP when they found he had become radicalized.
A meeting to discuss the boy's sentencing will be held on Jan. 5.
The Law Society of British Columbia wants all its member lawyers to read the Truth and Reconciliation Commission of Canada report, says LSBC president Ken Walker.
|The LSBC hopes to have a plan in place by early 2016.|
Integral to the report is the role police and lawyers played in responding to complaints of abuse of children in residential care, but it also argues for greater intervention to reduce over-represented numbers of youth in custody and in the foster care system, the victimization of indigenous people, a national inquiry into missing and murdered indigenous women, and the over-represented numbers of First Nations people in prisons.
“The benchers unanimously agreed in October that addressing the challenges of the report was one of the most important and critical obligations facing the country and legal system today,” says Walker. “Two of [the recommendations — 27 and 28 —speak specifically about the legal profession, but we realize the need to go beyond those recommendations.”
Recommendation 27 calls for the Federation of Law Societies of Canada to ensure lawyers receive cultural competency training (history, treaties, aboriginal rights, indigenous law, and the UN Declaration of Rights for Indigenous Peoples) plus skills training in intercultural competency, conflict resolution, human rights, and anti-racism. Recommendation 28 calls for all law schools to bring forward courses addressing all of these competencies.
Walker says he is hopeful the LSBC benchers will have an action plan ready early in 2016. “We will be seeking the viewpoint of the aboriginal community,” he says.
Walker says he has been in contact with deans at all three B.C. law schools and was pleased to learn they all either have existing courses on aboriginal law and culture or are in the process of providing them. “So, I can say that the legal education community is taking the report seriously,” says Walker.
The LSBC has already existing programs in place encouraging aboriginal lawyers. It offers a province-wide mentorship program for aboriginal law students and articling students using either aboriginal or non-aboriginal lawyers. It also awards a $12,000 scholarship annually to an aboriginal graduate student in the field of law. The goal is to support the development of indigenous leaders and role models in the legal academic community, in addition to retaining aboriginal lawyers in the profession. The latest winner was Darcy Lindberg, a graduate student in law at the University of Victoria.
The report, in recommendation 50, calls for the federal government to fund indigenous law institutions to promote the understanding, development, and use of indigenous law and access to justice in accordance with the unique cultures of aboriginal people in Canada.
The role of traditional justice is slowly becoming part of the mainstream. Community courts throughout the province have made use of First Nations elders in their sentencing, while Gladue rights encourage judges to take a restorative justice approach to sentencing if the individual is native. These initiatives are a departure from the traditional legal system that has been taught for generations in law schools, Walker says, but they provide answers to some of the TRC report’s concerns.
“We will be looking at what we can learn from all this and how we can move forward,” he says. Ultimately, the decision will lie with the federal government on what changes it makes to the judicial system.
The new Liberal government asked the Supreme Court of Canada today for a six-month delay in applying its decision on physician-assisted suicide because of the recent federal election.
In Carter v. Canada (Attorney General), the top court had on Feb. 6 struck down a ban on doctor-assisted death and given the government 12 months to come up with replacement legislation if it chose to do so.
The government told the court that deliberations stopped during the campaign for the Oct. 19 election, in which the Liberals took power from the Conservatives. It said a parliamentary committee would study the issue but there would not be enough time before Feb. 6 to come up with a federal response.
Thursday was the first day of the newly elected Parliament.
The court's decision in February was that mentally competent, consenting adults who have intolerable physical or psychological suffering from a severe and incurable medical condition had the right to a doctor's help to die.
People involved in human smuggling cannot be denied refugee status in Canada simply on the basis of having assisted in the smuggling, if they have not received any financial benefit from the activity, the Supreme Court ruled on Friday.
|Canadian border officials and police stand on the deck of the MV Sun Sea after its arrival in B.C. in 2010. (Photo: Andy Clark/Reuters)|
“I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum seekers in their collective flight to safety is not inadmissible. . . ,” Chief Justice Beverley McLachlin wrote for the court in B010 v. Canada (Citizenship and Immigration), which was heard with R v. Appulonappa.
The court also ruled that Canada cannot level criminal charges against people simply for having helped someone gain illegal entry, or else “a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution.”
To try to dissuade boatloads of migrants from arriving on Canadian shores, the government of former prime minister Stephen Harper had decided to go only after the organizers, in the hope of dissuading future smugglers from arranging such ventures.
Wednesday’s decisions will make it tougher to go after those in charge, though that will still be possible if it can be proved that they gained financially or materially.
Several of the asylum seekers arrived with about 500 other Tamils who paid substantial sums to board the cargo ship Sun Sea in Thailand. Shortly after sailing for Canada, the crew abandoned the ship, leaving the asylum seekers to fend for themselves.
The Canadian authorities had concluded that several who undertook duties such as working in the engine room had helped with the smuggling and so should not be allowed to stay in the country. The court disagreed.
A separate group of asylum-seeking Tamils who the government says were the captain and chief crew of another vessel, the Ocean Lady, still will face criminal charges that they took money to ferry fellow Tamils to Canada.
The question of refugees has taken on added prominence in light of Canada’s decision to take in 25,000 Syrians on an expedited basis. One criticism of the speed with which Canada is acting is that once they land in Canada, it can be difficult to deport them if they are found undesirable.
SASKATOON — Traditional First Nation stories about an Ojibway legend were used to demonstrate how laws were taught and passed down from one generation to another during the “Aboriginal Peoples and Law: We Are All Here To Stay” conference in Saskatoon.
|Justice Murray Sinclair says he learns new things from traditional stories every time.|
The story contained life learning lessons and teachings about what can happen if you are lazy and a thief.
“Each of theses stories are just filled with teachings,” said Justice Murray Sinclair during the question and answer portion of the session. “As I was listening to it, and as I tell it, each time I seem to get something different from it because that’s the beauty of a good story. This is about taking somebody’s else’s property.”
In the story, Nanabush wakes up from a long sleep, hungry and wanting food. He wanders until he comes across a camp. He steals and eats roasted ducks. Then he gets sick to his stomach because he eats too much.
“This is reinforcing that we have a sense of property,” said Sinclair.
Earlier in the day, Sinclair spoke to the conference explaining indigenous laws and concepts as well as debunking some myths.
“I’ve always chafed a bit by the dominant theory that is held by white legal authorities who said Indians had no knowledge, no tradition of owning property, which I always wanted to say out loud, bullshit,” said Sinclair.
“The reality is you owned things, you owned your weapons, you owned your tipi, you owned your property. No one could take those things away from you. You owned the territory that you occupied. It was your land, your property. Therefore, anybody who interfered with that would suffer the consequences.”
Former Assembly of First Nation Chief, Ovide Mercredi, joined in on the analyses of the Nanabush story.
He said the story teaches what is right and what is wrong.
“Its not a good thing to be lazy but it’s worse to be a thief,” he said to a chorus of laughter. “Because if you are lazy consequences are there and obviously the consequences are that you can’t look after yourself. The story teaches you not to take other peoples property without their consent.”
University of Victoria indigenous law professor, John Borrows, said there are examples of where First Nation tribal courts have used these kinds of stories to support their reasons for decisions.
“In one way, these are children’s stories and they’re entertaining but we also have a resource for reasoning,” said Borrows. “We find this to be a resource for talking with one another what our responsibilities are, our laws, our obligations, and our responses to our challenges we find in our midst.”
Borrows says there is a framework in Canadian law that allows for these stories that talk about reconciliation and involving aboriginal perspectives on the meaning of the right at stake.
The Canadian Institute for the Administration of Justice sponsored the three-day conference.
Yesterday, Thomson Reuters launched an exciting innovation project in Ontario’s tech centre in the Waterloo Region.
Thomson Reuters Lab will live at the Communitech centre, which houses nearly 1,000 technology and innovation companies in the region. The lab means Thomson Reuters can engage with the exciting and expanding innovation network and its dynamic startup company community, the University of Waterloo, and a culture of collaboration within the technology and innovation industries.
The event was well-attended, including a number of Thomson Reuters dignitaries, including chairman David Thomson, president and CEO Jim Smith, and Neil Sternthal, the new managing director for Canada/Australia/New Zealand. Thomson Reuters customers and academic attendees included members of Deloitte, Gowlings, professors from the University of Toronto and University of Waterloo, members of the government, and members of the Communitech community.
Lab data scientists, from including some from Boston and Toronto, put on five demonstrations in the areas of: data science prototypes, Eikon and Westlaw Next, startups (Silque, Beagle, Think Data Works, and Nest Wealth), Reuters TV, and LRT and High Speed Rail (Ion and GO).
The launch kicked off Techtoberfest, which takes place Oct. 13-14, 2015. It allows investors and startup companies to connect, as well as talks from speakers including Gary Vaynerchuk, prolific angel investor and venture capitalist; Allen Lau, CEO and co-founder, Wattpad; and Angela Tran Kingyens, associate, Version One Ventures.
Attendees were also treated to a tour of the Perimeter Institute, a leading centre for scientific research, training and educational outreach in foundational theoretical physics, in which the attendees gathered a sense of how theoretical physics enhances technological innovation. Attendees also toured the University of Waterloo to hear about the applied sciences, technology, and engineering achievements the region and university have garnered.
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