Far from mitigating violent crime, cultural beliefs leading to violence should, if anything, be an aggravating factor supporting a harsher sentence, the Ontario Court of Appeal ruled yesterday in striking down the inadequate sentence of a lower court.
The ruling in R. v. H.E. involves an Iranian immigrant convicted of raping his wife repeatedly and beating her along with his children. The assaults were routine, occurring three or four times a month, and the wife never thought to contact police because, according to her, such domestic abuse was common in Iran.
Indeed, the victim seemed shocked when it became clear to her that her husband could go to prison. Despite terrible abuse suffered over years, neither she nor her children wanted the man jailed.
The Crown sought a prison term of four years, but Justice William Gorewich of the Ontario Court of Justice handed down a much lighter sentence — 18 months plus probation — reasoning that there was no risk to reoffend and there were “no injuries” requiring medical attention.
Gorewich also took it upon himself to weigh cultural considerations despite the fact that none were offered as a defence: “In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The accused’s wife] testified in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence those cultural differences moved with them from Iran to Canada. It is only a factor in my deliberations, and not a sentencing principle.”
On appeal, Associate Chief Justice Alexandra Hoy, on behalf of a unanimous court, took great exception with the notion that one’s cultural background could excuse violent criminal behaviour. “Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value,” the decision states.
“All women in Canada are entitled to the same level of protection from abusers. The need to strongly denounce domestic violence is in no way diminished when that conduct is the product of cultural beliefs that render women acceptable targets of male violence. If anything, cultural beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing.”
Hoy’s decision also cited errors with the lower court’s explanation that “no injuries” were suffered because medical attention was never sought. “The sentencing judge commented that medical attention was not sought. This does not mean there were no physical injuries.”
Finally, the appeal court found errors with the lower court’s assumption the accused posed no risk to reoffend. Much to the contrary, it found, the convicted man expressed no remorse for his actions and may continue to hold beliefs that his criminal behaviour was acceptable. “Given the lack of remorse, what then was the evidence that there was no risk to reoffend? . . . The respondent, in his late forties, was found guilty of routinely raping his wife over many years, and of physically attacking his own children. These offences were not isolated incidents. By nearly all accounts, the respondent had difficulty controlling his anger. This engaged an inference that the respondent was a risk to re-offend.”
The appeal court decision imposed a sentence of four years with no parole. Counsel for both the Crown and the respondent declined to comment on the decision.
|The Crown’s comments ‘ were made on purpose in order to paint a very negative opinion of the accused,’ says Elliott Willschick.|
In this case, Haiden Suarez-Noa had conceded he had stabbed his wife with a knife, according to Reid. But in open court and with the jury absent, defence counsel suggested he expected to raise a defence of provocation, Reid noted. Following the opening address and reading of an agreed statement of facts, however, the defence brought an application for a mistrial.
In the opening address, the Crown made references to personality traits the could disguise “deep uncontrolled rage” and went on to note that most people are able to push back against their instincts given “the norms of our society.” She then discussed an older movie, Impulse, in which people return to their “most feral instincts” due to a water supply issue in a small town.
“That ladies and gentlemen, is what this trial is about: the difference between reasonable human beings and animals,” prosecutor Kimberly Rogers told the jury.
“That characterization of the accused was both highly improper and was of such a nature that it could not be erased from the minds of the jurors even with a significant correcting instruction,” wrote Reid.
“The fairness of the trial process was irremediably compromised.”
Toronto criminal defence lawyer Elliott Willschick agrees.
“The Crown’s comments were beyond inflammatory and prejudiced the trial considerably. There is no way the jury could forget such inflammatory comments,” he says.
“Normally, the Crown makes their opening address to the jury so that they can outline the case and explain how the process works,” he adds, suggesting the situation in Suarez-Noa wasn’t necessarily an isolated incident.
“Inappropriate comments do arise and the courts accord leniency to those who make them,” says Willschick, distinguishing this case from another one in which the court found a reference to “Mr. Guilty” to be inadvertent.
“The comments in R v. Suarez-Noa were made on purpose in order to paint a very negative opinion of the accused,” says Willschick.
Reid’s other big concern was Rogers’ reference to the fact Suarez-Noa would raise the defence of provocation and her instruction to the jurors that they must consider whether the facts “accord with the accused’s version of events or belie it.”
“It may be that the accused will rely on the defence of provocation,” wrote Reid.
“It also may be that the accused will testify or call evidence in his defence. However, those are decisions for the accused to make in due course. It is highly inappropriate for Crown counsel to advise the jury of the defence position without a prior agreement, and particularly implying to the jury that the accused will testify.”
In the end, Reid found “the combination of rhetorical over-zealousness, personal opinion, argument, negation of the accused’s right to silence and implied reversal of the onus of proof combine to make a mistrial the only available option. The fairness of the trial was irreparably damaged beyond the possibility of redemption through a correcting instruction.”
Charn Gill, one of the defence counsel for Suarez-Noa, says the Crown’s actions left him “dumbfounded.”
“I’ve never seen a Crown go so far astray from what they’re supposed to do in an opening statement,” says Gill, who notes he quickly moved forward with the mistrial application after hearing the opening address.
Gill calls the situation a “colossal waste of resources” given the one month set aside for the trial. The goal now is to try to find time in November, he notes.
“I’m surprised the Crown attorney’s office is allowing the Crown to continue,” says Gill, suggesting that while inappropriate comments sometimes arise in opening statements, the accumulation of circumstances in Suarez-Noa was rare. “I think it was a rare thing that you’d make that many mistakes,” he says.
|AJC president Len MacKay is pleased this decision has cleaned up what was a patchwork of practices across the country.|
In a decision this month, adjudicator George Filliter found in part in the union’s favour.
“In my view, this confirms the requirement of the employer to pay any and all fees necessary for the student to be enrolled as a law student or an articling student in their respective law society,” he wrote, citing the language in job postings that refer to the different articling provisions of the respective law society.
“This demonstrates that membership in a law society is a professional qualification ‘required by the employer for the performance of any duties and/or responsibilities assigned,’” wrote Filliter.
At issue was s. 28.01 of the association’s collective agreement that says the government will reimburse lawyers for their membership in a professional organization when it’s necessary to maintain a professional qualification required by the employer. The collective agreement also notes the term “lawyers” also includes articling students.
In 2013, the government denied the union’s grievance on the issue, arguing articling students don’t have to maintain a professional qualification as they’re in fact candidates rather than members of a law society.
While Filliter ruled in favour of the union on the issue of law society membership fees, he rejected the proposition that the government should also cover the costs of bar courses and examinations.
“In my view, clause 28.01 of the collective agreement cannot be interpreted to impose such an obligation on the employer,” he wrote. “Again, looking at the posting notices, students apply for these positions with the full knowledge that these fees are not going to be reimbursed by the employer and that they are therefore responsible for the payment to the professional association.”
“That’s by far the largest fee,” says Len MacKay, president of the union.
MacKay notes there has also been a patchwork of practices across the country on that issue as the government uses payment of the course and examination fees as a recruiting tool for individual candidates.
“It’s an individual, sort of applicant basis,” he says.
The union did win another partial victory on whether the government must cover articling students’ fees for their call to the bar.
“When students are not offered employment post-articles by the employer, the employer is not required to pay bar fees,” he wrote. “However, in those instances where a law student is offered a permanent position with the employer as counsel, I reach a different conclusion, as such call to the bar fees would be necessary for the employee to maintain his or her recently acquired professional qualification.”
MacKay welcomed that aspect of the decision.
“Outside of that, we’re also happy that they sided with us on the hire backs,” he says.
Besides the fee issues, Filliter’s ruling also included some noteworthy facts on the government’s cuts to its articling program. In statistics on the number of articling students across the country, Filliter showed it has made significant cutbacks since 2010.
At the Ontario regional office, for example, the number of positions in 2013 was nine, down from 18 in 2010. At the northern regional office, there were no positions in 2013 versus two in 2010. At the prairie regional office, the number of positions fell to six in 2013 versus 14 five years ago.
“That’s one of the programs that have suffered,” says MacKay, referring to the government’s general climate of budgetary and staff cutbacks in recent years as it made efforts to eliminate the deficit. While he notes articling is often an easy target for cuts, he says he has heard there’s an intention to return hiring to previous levels.
Filliter’s decision comes as law students in Ontario are celebrating another victory on the financial front. In a news release today, the Law Students’ Society of Ontario noted the Law Society of Upper Canada had relented on its plan to provide licensing materials in electronic format only, something the group said would mean an estimated $100 in required printing costs.
According to the law student group, the law society has now said it will provide hard copies to students who request them.
“This is great news for law students across Ontario, and the LSSO commends the law society for its reconsideration of this decision,” said Ryan Robski, president of the law students’ society.
The actions of Mark Poland “fell well below the standard expected of Crown counsel,” said the court in ordering a new trial for a Kitchener-area man convicted of orchestrating a plan to have his three children kill his estranged wife.
“The Crown in this case engaged in multiple instances of prosecutorial misconduct,” wrote Justice Mary Lou Benotto. “His remarks were inflammatory, vindictive, sarcastic and ridiculing of the appellant,” added Benotto, with justices John Laskin and Katherine van Rensburg concurring in the decision issued Feb. 2.
The failure to provide a corrective instruction was an error in law by Superior Court Justice James Ramsay and rendered the trial unfair, the appeal court panel added.
A spokesman for the Ontario Ministry of the Attorney General says it is “carefully reviewing the decision. As the matter is currently within the appeal period, we have no further comment,” says Brendan Crawley.
The appellant, who can only be named as A.T. to protect the identity of his children, was convicted by a jury in March 2010 of attempt to commit murder and conspiracy to commit murder.
During the trial, the jury heard testimony from the children that their father told them to kill their mother by drowning her in the bathtub. An attempt was made, but the mother survived, the court heard. The father, a devout Mennonite, had a previous conviction for domestic assault.
His religious views became a central issue during the trial. The Crown displayed passages from the Bible on a screen in the courtroom and questioned the defendant about them during cross-examination.
Poland, who is now the senior prosecutor in Dufferin County, northwest of Toronto, was “fixated” on the religious beliefs of the defendant instead of “what, if anything, he had told the children,” said the Court of Appeal.
To support the notion that an individual can be influenced to commit murder, the Crown asked the jury to consider the Jonestown massacre in 1978 and the killings committed by followers of Charles Manson. References were also made to suicide bombers and the Nazis.
Poland told the jury he was not using the examples to liken the defendant to Jim Jones, Manson, or Adolf Hitler. However, after a brief “self-correction,” the Crown “immediately continued on with his comparative rhetoric,” wrote Benotto.
The Crown ended his closing with a reference to an integral part on a helicopter that is referred to as the “Jesus nut” because of the consequences if it comes off. Poland told the jury the “Jesus nut” of the defence was that the children were conspiring against their father.
“When [defence counsel] offers you a ride in his helicopter, my suggestion is you say, no thanks, that Jesus nut looks a little loose to me,” Poland stated.
The analogy “was no innocent metaphor,” noted the appeal ruling. “It is evident that he was calling the appellant a Jesus nut.”
Jill Presser, who represented A.T. in his appeal but not at trial, says the decision sends an important reminder about the long-standing recognition by the courts of the prosecution’s duty to act with moderation and impartiality.
“It re-emphasizes the role of the Crown and the trial judge in ensuring fair trials. The line of rhetorical excess is crossed when there is actual prejudice to the accused,” says Presser, a Toronto defence lawyer.
A spokeswoman for the Law Society of Upper Canada declined to say if it will investigate the Crown’s conduct. The regulator does not comment on any specific matter, or if it is investigating, “unless and until a matter has resulted in formal discipline, which would be public,” says Susan Tonkin.
The Court of Appeal ruling was issued the same day the Ontario Divisional Court upheld a suspension and costs order against Joe Groia, for incivility in his successful defence of former Bre-X executive John Felderhof on insider trading charges.
The Divisional Court upheld a one-month suspension and $200,000 costs order against Groia, ordered by a Law Society of Upper Canada appeals tribunal. Arguments by the law society that a court’s comments about a lawyer’s conduct are proof of misconduct, were rejected by the Divisional Court. However, it said comments or findings may be admitted as evidence at a disciplinary hearing.
Although the main dispute (termination from the home position) has not yet been arbitrated and is scheduled to be heard later in 2015, an arbitrator ruled on a preliminary motion brought by the Association of Law Officers of the Crown on behalf of the discharged articling student.
At issue in that motion was: Assuming, for the purposes of the argument, that MOH had just cause to terminate Speck’s employment, is that sufficient by itself to satisfy both the just cause provisions of the ALOC collective agreement and the requirements for articles of the Law Society of Upper Canada?
For six years, Todd Speck worked as a program analyst for the Ministry of Health and Long Term Care. He took an educational leave of absence from September 2008 to May 2010 to get his law degree. He continued to work for MOH.
On Feb. 19, 2013, Speck was informed he was being suspended with pay pending an investigation against him under the Workplace Discrimination and Harassment Policy and Workplace Violence Prevention Policy.
While under the non-disciplinary suspension from MOH, Speck got an articling job with MAG, to serve at the Financial Services Commission of Ontario. A temporary assignment agreement was concluded between MAG, as the receiving ministry, MOH, as the releasing ministry, and Speck in July and August 2013 so Speck could work as an articling student.
On July 29, 2013, Speck started working at FSCO as an articling student and his disciplinary suspension ended. He was alerted to the potential jeopardy to his articling student position as a consequence of the MOH investigation in to his alleged misconduct.
The period of the secondment to MAG/FSCO was from July 29, 2013 until May 30, 2014, to allow Speck to complete his articles. During this period, he was to be under a fixed-term contract. He signed a fresh Conflict of Interest Attestation, completed a fresh Oath of Office and a fresh Oath of Allegiance. That done, his articles officially began July 29, 2013, for 10 months.
While working for MAG at FSCO Speck was subject to the collective agreement between Association of Law Officers of the Crown and the province. Article 5.1 gave just case protection to him. He could be fired only “for just and sufficient cause.”
On Feb. 3, 2014, Speck was advised in writing by MOH that it had completed its investigations determined that he had breached the WDHP policy in various ways. MOH informed him it had concluded his conduct had given just cause for his dismissal and that he was being fired for cause. He was told that he ceased to be employed by the Crown.
ALOC, supported by the Association of Management, Administrative and Professional Crown Employees of Ontario, argued it was not sufficient; the Crown argued it was.
In the decision, arbitrator Christopher Albertyn stated: “There is no suggestion that Mr. Speck engaged in any culpable conduct as an articled student to give his principal or FSCO or MAG just cause to terminate his articles. It is common cause that his articles were terminated only because his employment with the Crown was terminated by MOH. In fact, Mr. Speck was given unqualified letters of commendation for his work as an articling student by his principal and other lawyers he worked for.
However, Albertyn concluded: “Accordingly, on the assumption of just cause for the termination at MOH, that is sufficient to satisfy the just cause provisions of the ALOC collective agreement.”
Albertyn said he rejected the suggestion Speck’s conduct at MOH is akin to off-duty conduct with respect to his employment at MAG.
“MOH and MAG are sections of a single employer. His conduct in one section is directly relevant and germane to his conduct in the other. That is why, under s. 40 of the Act, if there is just cause to dismiss a public servant in any section, in any ministry, the individual is dismissed from the Crown.”
Update Feb. 10, 2015: Story amended to clarify that the arbitrator in the matter was ruling on a preliminary motion only. Legal Feeds regrets any confusion caused, and wishes to apologize to Mr. Speck.
Court of Queen’s Bench Justice Chris Martin made the remarks in R. v. Harper after a man initially accused of eight armed robberies faced an 82-count indictment.
“Not to be unduly critical to Crown counsel here, this is not an isolated approach to charging. Over-charging is an increasing trend — one which has little if any utility. It needlessly complicates and distorts a case, and distracts from the core issues,” said Martin.
The judge, who sentenced Winnipeg resident Jamie Harper for 8-1/2 years in prison, dedicated a good portion his ruling discussing issues that have delayed the proceedings.
“Two things were readily obvious — one, that a plea resolution should have been reached and, two, Crown and defence counsel were at loggerheads in large part because of the sheer size of the 82-count indictment and the huge gap in positions respecting sentence,” said Martin.
He added: “Why is all this important? Because over-charging and unrealistic sentencing positions blocked counsel from reaching a plea arrangement, an arrangement they should have reached within months of Mr. Harper’s arrest. As a result, scarce judicial resources were wasted through countless remands, conducting a three-day preliminary inquiry, and keeping Mr. Harper in remand custody for 30 months.”
Winnipeg criminal lawyer Gary Stern doesn’t see a trend in Crown counsel overcharging people and says it was unfair for the judge to make those comments given the duty prosecutors have to the public.
“The bottom line is it may be a trend to lay all these charges but at the end of the day, if there is an accusation someone committed a crime, shouldn’t they be prosecuted?” Stern asks. “If it’s your ox being gored. Wouldn’t you want the offender to be prosecuted?”
The prosecutor is justified in pursuing all charges if they have evidence to support them, Stern adds.
“You can’t sweep it under the rug; if there’s an allegation someone committed a crime, they’ve got to be prosecuted.”
While he’s sympathetic to the concern about court resources that go into addressing a pile of charges, the solution is to increase them and not to tell Crown to lower the number of charges, according to Stern.
In another observation, the judge also lamented the time Crown and defence counsel wasted trying to come to an agreement on what’s an appropriate sentence. The need to arrive at such an agreement is mostly “illusory,” according to Martin.
“Legitimate disagreements as to an appropriate sentence will always exist. But the benefit, and perhaps psychological need, of agreeing or even greatly narrowing a joint recommendation or sentence range for the judge before a plea is arranged, is illusory,” he wrote.
“That should not usually prevent a guilty plea, where the realistic likelihood of conviction is present anyway. Lawyers are advocates. Sentencing judges do not freelance; we are bound by sentencing principles, rules, and precedents. Lawyers must have the confidence to advocate their position on sentence, without undue delay, and to trust that the sentencing judge will get it right or otherwise know that an appeal may lie.”
Marin emphasized the issue wasn’t unique to the case before him.
“Again, moving away from this case, increasingly, disagreements between counsel respecting sentencing matters are too often an excuse leading to delay, by putting off the tough call until another time,” he wrote. “This style of practice must be discouraged.”
Nov. 10 – Quebec – Hinse v. Canada
Crown liability: In 1964, Réjean Hinse was convicted of robbery and sentenced to 15 years. He claimed he was a victim of a miscarriage of justice. In 1997, he was acquitted by the SCC. He then brought actions against the town of Mont Laurier, the Attorney General of Quebec and the Attorney General of Canada. A settlement was reached with Mont Laurier and Quebec. Against the Attorney General of Canada, Hinse alleged systemic contributory fault and claimed damages of nearly $13 million. The Superior Court ordered the federal AG to pay $5.8 million. The Court of Appeal found Hinse had not established fault on the part of federal authorities but set aside the decision.
Read the Quebec Court of Appeal’s decision
Related news story:
Wrongfully convicted man wins Supreme Court hearing on compensation, CBC
Nov. 12 – British Columbia – British Columbia Teachers' Federation v. British Columbia Public School Employers Association
Collective agreements: The B.C. Teachers’ Federation filed a grievance alleging the association had failed to provide supplemental employment benefits to birth mothers in relation to maternity leave and parental leave. It alleged that this was discriminatory conduct contrary to the Human Rights Code and the Charter of Rights and Freedoms. The arbitrator allowed the grievance, but the Court of Appeal set aside that decision and dismissed the grievance.
Read the British Columbia Court of Appeal’s decision
Related news stories:
What you need to know about labour strife between B.C. and its teachers, The Globe and Mail
B.C. school strike could drag on until September as talks fail, Vancouver Sun
Nov. 13 – British Columbia – Henry v. R.
Charter of Rights: Ivan Henry was convicted in 1983 on 10 sexual offence counts, was declared a dangerous offender, and remained incarcerated for almost 27 years. In October 2010, he was found to be wrongfully convicted and was acquitted. Henry sought damages against Crown prosecutors and successfully sought leave to amend his pleadings to include new charges against prosecutors. On appeal, the amendments were struck down on the basis that such amendments require evidence of malice. A publication ban is in place.
Read the British Columbia Court of Appeal’s decision
Related news stories:
Ian Mulgrew: City of Vancouver says wrongfully convicted Ivan Henry not ‘innocent’, The Vancouver Sun
After 27 years in jail, B.C. court says man was wrongly convicted, The Globe and Mail
Nov. 14 – Manitoba – R. v. Grant
Criminal law: Mark Edward Grant was convicted of the second-degree murder of a 13-year-old girl. At trial, a voir dire was held where Grant requested whether he could cite evidence of an alleged unknown third-party suspect. The trial judge refused to admit the new evidence. The appeal court overturned that decision, ruling that the judge had erred and should have allowed the new evidence to go to the jury.
Read the Manitoba Court of Appeal’s decision
Related news stories:
Accused killer in Derksen case has long history of sex crimes, Winnipeg Free Press
Supreme Court to hear appeal on Mark Grant retrial, Winnipeg Free Press
Nov. 14 – Ontario – Wills v. R.
Criminal law: The appellant was convicted of robbery with a firearm, but the victims of the home invasion could not identify him, given that the perpetrator was wearing a mask. The Crown’s evidence relied on circumstantial evidence, inconclusive DNA evidence and a baton found in the appellant’s home that couldn’t be connected to the home invasion. The appellant appealed on grounds that the verdict was unreasonable. The appeal was dismissed.
Read the Ontario Court of Appeal’s decision
|A number of federal government lawyers were recipients of the 2014 Public Service Award of Excellence.|
“We were going to have less money to respond to the legal needs of government in the area of aboriginal issues,” says McCurry
That foresight and her success in cutting costs while maintaining top-quality legal services recently earned McCurry the Public Service Award of Excellence, one of the highest honours handed out to federal public servants.
A group of Justice Department lawyers and officials from Public Safety Canada who administered the ex gratia payment program following the Air India disaster were also among those honored in the 2014 awards.
While the awards were for their performance within the public service, the lawyers say there are lessons for others in the legal profession.
For McCurry, the biggest lesson was about how to respond to a client’s desire to reduce legal costs while maintaining the same level of service, a problem many law firms across Canada are facing.
“It’s really a question of how can you respond to demand that may not have declined, may be stable, may be shifting when there is downward pressure on your revenues because clients don’t want to pay or they can’t pay,” says McCurry. “It’s all about finding ways to reduce your overall cost structure so you can deliver excellence and meet their needs along the way.”
The secret to her success, she says, is data.
“When you are trying to figure out how you can reduce your cost structure, you need to have data. You need to know where to look. Otherwise, if you do it on a random basis, you’re likely to make some important and costly mistakes. Your data can point the way.
“Your data can also set the table for really good discussions with your clients because it becomes shared knowledge. It is what it is. The numbers don’t lie. They also point the way for a really good discussion around managing both demand and supply because clients have a real role in it. It’s how they use their lawyers and how they are using their lawyers actually does show up in the numbers.”
Data also helps to rally staff, she notes.
Federal Justice Department data, combined with a litigation efficiency review, allowed McCurry to pinpoint a couple of areas where it was spending the most money. Those, of course, were areas where it could drill down to find savings. While the cost-cutting exercise at the Justice Department has been successful, it hasn’t been without controversy. The government has cut dozens of lawyer positions across the department and the union that represents counsel who work for it has reported that morale is low.
McCurry, however, points to areas that offered significant savings. “One of them was document production. That is a hugely expensive part of the litigation process,” she says.
McCurry’s section produced 13 templates for Aboriginal Affairs and Northern Development Canada that allow it to handle many routine transactions such as leases without having to always call in a lawyer. McCurry’s section also built a database containing standard clauses for those negotiating treaties; cut travel costs by doing more videoconferencing; and put checks and balances in place to govern drawdowns on legal advice.
For federal government lawyers Lisa Hitch and James Brender, who worked on the Air India ex gratia team, the challenges and the lessons learned were very different.
Instead of finding ways to save money, they were part of a team that handed out $6.6 million in compensation for the loss of family members. In the end, 286 people received ex gratia payments ranging from $8,000 to $24,000.
One of the biggest challenges was determining family relationships and defining how those would govern the payments, says Brender.
The key to success, the lawyers say, was teamwork and the ability to bring together experts from various areas of the Justice and Public Safety departments.
“It takes some maturity and experience to realize that no [single] one of us will ever have the answer and to understand and appreciate what can be gained and the importance of what can be gained by a dialogue amongst experts who are looking at the same issue from many different perspectives,” says Hitch.
|‘These things that used to be better benefits in the public sector are no longer there,’ says Len MacKay.|
“Historically, they’ve always told us through the years that they don’t use the time keeping to keep an eye on us,” says Len MacKay, president of the association that represents federal government lawyers.
According to a recent letter to MacKay from Deputy Justice Minister William Pentney, the department is increasing the “average time spent on the delivery of legal services” to 1,400 hours per year, up from 1,300. While MacKay notes the department has long had the targets for what it said were budgeting purposes, the move to incorporate them into performance reviews is new.
The goal, according to Pentney’s letter, is to reduce the time spent on non-legal activities.
“While the participation of counsel to non-legal services work remains important, the department will examine the extent of counsel involvement in corporate and non-legal activities to ensure that their time is used most efficiently,” he wrote, adding the department also uses the numbers when it comes to collecting revenues from other ministries and agencies.
MacKay has a couple of concerns about the change. First, lawyers can only bill for work on behalf of clients.
“But many lawyers don’t work necessarily for clients, so in many ways the target is artificial,” he says.
Also, he notes the targets won’t include administrative duties, something lawyers have had to take on more of as the government has cut staff in recent years.
“Lawyers are having to work more administrative duties, which can’t go towards billable targets, for example,” he says.
While Pentney’s letter hints at the need to move lawyers away from such tasks, MacKay doubts that’ll mean more support staff to do them.
“In this current climate, in this current government, we’re not optimistic that’s going to happen,” he says.
More generally, MacKay says the move highlights the government’s efforts over the years to have the department reflect a more private-sector approach. He notes part of the implicit deal in taking a government job with the attendant lower salary was a better work-life balance and benefits. But with changes to things like severance and pensions and now the increased focus on billable hours, those advantages are eroding.
“These things that used to be better benefits in the public sector are no longer there,” he says, noting the new approach may prompt the association to push harder on the salary issue (which he acknowledges lawyers made major gains on in the last round of bargaining).
The 1,400-hour target is in line with the median reported by Canadian Lawyer in its recent compensation survey. That survey put the median at 1,470 hours, although the targets are often higher at large national and global firms. When it comes to federal lawyers, MacKay says the target is generally doable but not necessarily for all lawyers. “I think they’re putting the hours in,” he says.
“I think it’s realistic for some folks because they do a job where it’s almost entirely billable work,” he adds. “But for others, it’s not going to be realistic.”
|Bill Basran says his time at Vancouver’s wills clinic has been ‘an enormously gratifying experience.’|
Crown counsel can only volunteer for departmentally approved activities and have traditionally been restricted in the level of insurance coverage they can obtain for pro bono work. It has also been difficult for government lawyers to rule out potential conflicts of interests, due to the enormous scope of legal cases involving the federal government.
Under the new policy, lawyers will be insured to work at the three legal clinics in Vancouver, Edmonton, and Ottawa, on specific areas of law screened by the government to minimize conflicts. Justice Minister Peter MacKay announced the move during a speech at the University of Calgary’s law faculty on Friday.
He said: “Accessibility to justice has become increasingly important in the complex society we live in today.
“Through this initiative and policy, many Justice Canada lawyers here in Alberta and across the country, can now volunteer their considerable legal skills and knowledge in providing pro bono legal services to Canadians.”
The three approved projects are:
• The Wills Clinic operated by Access Pro Bono B.C., located at the Justice Access Centre at the Vancouver Courthouse. Trained pro bono lawyers and articling students draft and execute simple wills, representation agreements, and powers of attorney for seniors living with low incomes and people who have terminal illnesses.
• The Edmonton Community Legal Centre, which provides a variety of pro bono legal information and advice to people living with low incomes. Justice lawyers volunteering at the centre are limited to providing pro bono legal advice on landlord and tenant matters.
• Law Help Ontario at the Ottawa Court House, which provides pro bono legal help to unrepresented people living with limited means who are suing or being sued in civil court. Department of Justice lawyers volunteering at the clinic are limited to providing pro bono legal advice to non-family civil litigants in Small Claims Court and the Ontario Superior Court.
The pro bono policy document explicitly prohibits volunteer work in the areas of criminal law, habeus corpus matters, and “any other matter involving the Minister of Justice and Attorney General of Canada.”
Volunteering will normally take place outside of working hours, except “on an exceptional basis,” it says.
The development has been several years in the making. In the past few years, some law societies have started providing no-fee liability insurance to Crown lawyers who participate in pro bono activities approved by their law societies.
The insurance is now available to lawyers in Ontario, Alberta, B.C., and Saskatchewan.
This has opened up the possibility of pro bono work, but the department has also needed to work with pro bono organizations on practicalities such as avoiding conflicts of interest, explains Bill Basran, director general of the Department of Justice’s B.C. regional office and who has been closely involved with the project.
Basran has been volunteering at the Vancouver wills clinic and describes his time there as “an enormously gratifying experience,” that has involved helping people to put their affairs in order at the end of their life.
The department now wants to expand the pro bono scheme to other cities and is considering opening clinics in Toronto and Saskatoon.
“We’ve received a lot of interest from Justice lawyers across the department,” he says.
Lisa Blais, president of the Association of Justice Counsel, says her organization “applauds the attempt to increase access to justice” and looks forward to the program being expanded.
The unavailability of insurance had previously been the biggest concern of ACJ members, regarding pro bono work, she states.
Whereas pro bono files sometimes contribute towards performance targets for lawyers in private practice, this has not been written into the policy for the Crowns.
“It would be up to individual managers to consider that type of contribution in performance appraisals,” says Blais.
Check out Canadian Lawyer’s April issue for more news and views on pro bono work, including the results of a national survey of lawyers and firms.
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