Legal Feeds Blog
|Former Supreme Court justice Frank Iacobucci has said the justice system as it relates to First Nations is in crisis.|
Ontario has been considering the issue of aboriginal issues on jury panels in recent years given a number of high-profile cases that indicated the provincial government’s lax approach to the matter. Earlier this year, former Supreme Court justice Frank Iacobucci wrote a report that noted the justice system as it relates to First Nations was in crisis. In its ruling on the issue this year in R. v. Kokopenace, the Ontario Court of Appeal highlighted the government’s duty to make reasonable efforts to include First Nations members on jury rolls.
But in Kennedy, it’s fairly clear officials did just that. In documenting those efforts in this case, Goodman noted provincial officials responded proactively to the fact the federal government had stopped providing band lists as of 2000. Sheila Bristo, acting director of the corporate planning branch at the Ministry of the Attorney General, had managers at each Superior Court location contact local band chiefs in order to get an updated list of potential jurors. Only a few bands responded, she told the court.
In the London, Ont., area where the Kennedy matter was taking place, officials sent letters to the band chiefs of the three local reserves: the Oneida of the Thames, the Muncee-Delaware, and the Chippewas of the Thames. There was no response.
Bristo eventually had the sheriff contact the chiefs directly so a senior manager could possibly drive out to the reserves to discuss the issue. The letters all came back as undeliverable. The sheriff was never able to reach any of the chiefs personally, although the chief of the Munsee-Delaware First Nation at one point left a message saying he had made a request to the band council, without success, for a band eligibility list. The band’s position was that no list would be forthcoming, according to the sheriff’s testimony. The Chippewas of the Thames later responded that it, too, would decline to share a band list, while the Oneida of the Thames never responded.
In the end, the sheriff had to use the outdated list from the federal government dating back to 2000. Of 231 jury notices sent out to the various reserves in the area, 229 came back undeliverable. The other two came back indicating the people had died.
In the end, Goodman distinguished Kennedy from Kokopenace, a case that featured a number of indications on the government’s part that it hadn’t been doing that much to include aboriginals on jury rolls. In that earlier case, for example, there was evidence of “incompetent” work by the employee responsible, including the fact there were “little to no efforts made” to get updated on-reserve lists, according to Goodman’s review of Kokopenace.
In the end, Goodman ruled against Kennedy’s application. “I must take into account the necessity for cultural sensitivity,” he wrote.
“However, when band chiefs and councils directly or indirectly decline to provide band lists to the sheriff, for whatever valid reason, and the leaders and decision-makers of these respective communities decline to meet or discuss these issues with representatives of the ministry or the sheriff, I have no evidence before me to determine what other efforts might be reasonably effective.”
Motor vehicle cases (motor tort actions concerning injury —personal or property — caused by a motor vehicle) have been the single top matter for general civil cases historically and have increased by 25,000 in five years, according to statistics released this morning by Statistics Canada. There were 44,000 new motor vehicle cases for 2011-2012.
|Click to enlarge. (Source: Statistics Canada)|
Family law makes up 35 per cent of active cases for the most recent statistics. This number has remained the same for at least five years. It is consistent within Ontario also where there were 265,000 new civil cases from 2011-2012.
According to the data, Ontario accounts for 52 per cent of Canada’s active civil cases. Following is Alberta, which accounts for 22 per cent.
There were 25,000 new family law cases in Canada over the past five years. Divorce makes up 35 per cent of the total number of family cases, and child protection accounts for 10 per cent.
In other civil matters, there were 317,000 new cases in the 2011-2012 period. There were just over 600,000 general civil cases before the courts, 90,000 more than five years previous.
Bankruptcy cases have nearly doubled over the past five years, but the numbers have been steadily declining since 2009, with only 13,000 new cases in 2012.
According to the data, the majority of civil cases are resolved in under 3 months, with just 6 per cent of cases taking over two years to resolve. Two per cent of all civil cases this year were resolved by the parties involved.
There were also 576,000 inactive cases in the courts for 2011-2012. Nearly 30 per cent had been inactive for over four years.
For full statistics on civil actions visit StatsCan's web site.
|Justice Richard Chartier|
Scott’s retirement set off a number of changes within Manitoba’s judiciary. Replacing Chartier is Court of Queen’s Bench Associate Chief Justice William Burnett. He became a judge in 2009 following a stint as partner at Thompson Dorfman Sweatman LLP in Winnipeg.
Moving into Burnett’s role is Justice Shane Perlmutter. Currently a judge of the Court of Queen’s Bench, he becomes associate chief justice as Burnett moves to the Court of Appeal. Prior to becoming a judge in 2011, he also worked at Thompson Dorfman Sweatman and at Fillmore Riley before that. His main areas of practice were civil litigation and administrative law.
The final Manitoba appointment is Justice Herbert Rempel of the Court of Queen’s Bench family division. He replaces Justice Diana Cameron, who left the Court of Queen’s Bench for the appeal court on Nov. 2, 2012. Rempel had been with the court’s family division since late 2011 following a career as a lawyer in adoption matters, corporate commercial law, wills and estates, and civil litigation.
Besides the Manitoba appointments, the federal government also named a new Quebec Superior Court judge on Friday. Justice Karen Kear-Jodoin, a lawyer since 1984 who mainly practised family law, replaces Justice Marie-Christine Laberge following her resignation in January.
The March 1 ruling, which considered a grievance by the Ontario Public Service Employees Union against the provincial government’s treatment of court reporters as independent contractors when it comes to their transcription work, noted the new plan aimed at responding to an earlier finding that the province’s approach was in violation of the collective agreement.
“The employer has made it known to the union as well as the board that its intention is to exercise its management rights to contract out the work of producing transcripts,” wrote vice chairman Nimal Dissanayake.
The ruling follows a 2006 decision that the work court reporters do in typing and certifying transcripts of court proceedings was bargaining unit work rather than additional freelance-type duties beyond their regular courtroom activities.
Under the Ministry of the Attorney General’s framework, court reporters got a per-page fee for transcription work often done outside of regular hours. The union, however, argued transcription work was a key function performed by court reporters that should be subject to the provisions of the collective agreement and the associated remuneration for things like overtime and holiday pay.
Despite the 2006 ruling, the parties have struggled to agree on how to implement it and, as such, the government has maintained the existing regime that essentially treats court reporters as employees for their regular courtroom duties and independent contractors for transcription work. As a result, parties have been back before the board repeatedly since 2010 in a bid to resolve the issue.
Despite the government’s imminent plans to contract out the work and its argument that the board lacked jurisdiction to force it apply the collective agreement, Dissanayake ordered the province to change its approach right away.
“The employer shall forthwith cease its violation of the collective agreement by failing to apply the collective agreement to court reporters, who the board had declared to be employees performing bargaining work when producing transcripts,” wrote Dissanayake.
In the family law case Vilardell v. Dunham, the mother in the case, Montserrat Vilardell, made an application to waive the fees she was being charged for every day of her court hearing.
After considering constitutional arguments by the Canadian Bar Association, B.C. Trial Lawyers Association, and the West Coast Women’s Legal Education & Action Fund, the B.C. Supreme Court ruled the fees were unconstitutional. On appeal, the B.C. Court of Appeal overturned the lower court decision.
West Coast LEAF says the decision will improve access to justice for women, but it doesn’t go as far as they had hoped.
West Coast LEAF had argued hearing fees in family law cases have an unequal impact on women because they are less likely to have the resources to afford them than men. It argued hearing fees “violate women’s equality and security rights and the principles of fundamental justice, and should be struck down on that basis.”
In his decision the trial judge had struck down the hearing fees charged by the Crown in Supreme Court trials as unconstitutional, saying the fees “materially hindered” access to the courts.
The Crown justifies the fees as legitimate efforts to recover costs and promote efficiency at cost recovery.
The Attorney General of British Columbia had argued the case did not present an access to justice problem. If the fees would hinder a litigant, the attorney general says the rules allow the judge to make an exemption.
However, appeal court Justice Ian T. Donald rejected that argument based on the fact the indigency rule applies only to the poor, not to the “struggling middle class who, while not poor in the ordinary sense, cannot afford the fees.”
He wrote: “In my opinion, were it not for the power of the courts to give relief from the hearing fees, they would be an unconstitutional impediment to justice. The power is found in an enlarged interpretation of the indigency provision.”
The Court of Appeal found hearing fees do pose an unconstitutional obstacle to the courts for many people, including the middle class, without adequate provision for those who are unable to afford them.
The court recognized the current “indigency” exemption was insufficient to capture those who can’t afford the fees, and ordered it be broadened to cover those could not meet their everyday expenses if required to pay fees.
In his decision Donald wrote: “The enlarged scope of the exemption in Rule 20-5, then, should be read as saying ‘impoverished or in need.’ The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.”
Donald allowed the appeal and set aside the order striking the hearing fees rule. While the court did not go so far as to strike down the hearing fee structure as requested it was seen as a small victory.
“Importantly, the court recognizes that women in family law cases, aboriginal persons, those with disabilities, and recent immigrants are disproportionately impacted by the current hearing fee system,” said Kasari Govender, executive director and co-counsel for West Coast LEAF. “While the court did not go as far as we hoped, it is clear that more people — including women in family law matters — will have access to the courts as a result of this decision.”
|Chief Justice Robert Bauman stresses counsel 'must be available to proceed on short notice during the assize week' for the pilot project to work.|
“It’s certainly been a problem getting dates,” says Michael Dew, a Vancouver civil litigator.
At times, Dew claims to have had problems booking long chambers dates from an increasing amount of lawyers seeking appointments at the same time.
“This is a good example of our court taking some initiative to solve a problem, and I hope that counsel will take advantage of it,” says Dean Crawford, a civil litigator and vice president of the Canadian Bar Association British Columbia branch.
For Crawford, the former method for chambers applications is “frustrating for both clients and lawyers” who have prepared for a hearing and arrive at the court “only to learn that you’re not going to be able to proceed.”
In a press release from the Supreme Court of B.C., Chief Justice Robert Bauman said although the project is designed to improve matters, it can not “guarantee that every member on the assize list will be heard” and counsel “must be available to proceed on short notice during the assize week.”
“Like many things, this is an initiative where it’s going to require the co-operation of counsel to get things done efficiently for their clients,” says Crawford. “So it would be my hope that counsel will do that, and take advantage of this to their own benefit.”
“I think it will allow parties more certainty about getting before the court,“ says Dennis Hori, civil litigator and president of the Trial Lawyers Association of British Columbia.
Hori mainly practises in Kamloops, B.C., and claims that Kamloops currently has a similar system to the proposed pilot project that works “quite well.”
Although supportive of the new pilot project, Dew believes the current process for short chambers applications could also be improved. From an oversupply of lawyers waiting to be addressed in short chambers proceedings, Dew says this is a “serious problem” that needs to be improved through a program similar to the new pilot project.
The oversupply came shortly after a new set of Supreme Court Civil Rules were implemented in July 2010 for governing civil proceedings in the British Columbia Supreme Court. Several changes were made to chambers procedures, requiring applications to be filed and have a hearing date scheduled once submitted, instead of a hearing date scheduled after an application was responded to.
About a year after the new policies were in place, the CBA-BC conducted a survey of its members to analyze how practising lawyers found the new policies.
Roughly 55 per cent of survey members either strongly disagreed or disagreed with the new system, while about 50 per cent preferred the old method for chambers applications. About 55 per cent of participants also claimed to have most of their applications rescheduled from their original date.
According to the CBA-BC, changes to the chambers procedures provoked a large number of comments from lawyers. One survey participant claimed “chambers seems to be busier and a higher chance of getting bumped than was the case under the old rules.”
A survey participant also stated the “new system seems to have created a backlog of chambers applications in Vancouver.”
However in order to be placed on the new assize list, applications must require more than two hours, and be less than two days for hearing. Other criteria include approval from all parties involved, as well as an open availability for three days within a scheduled five-day assize week.
Beginning this month, the pilot projects hearing dates are scheduled for six weeks throughout the year, with the last available date scheduled for May 6.
According to Crawford, under the normal process openings wouldn’t be available until May at the earliest.
“A two-week wait as opposed to a four-month wait is quite preferable,” says Crawford, who notes although the chambers application process was formerly a problem, he believes that this pilot project is a “good step to try address it.”
Update 2:50 pm: Comments from Dennis Hori added.
|Restrictions on using devices should apply only when absolutely necessary, says media lawyer Dan Henry.|
But the rule applies in reverse for all others in court: they can’t use their devices unless the judge says otherwise.
“Members of the public have the same freedom of expression enjoyed by members of the media and others listed on the protocol,” says independent media lawyer Daniel J. Henry.
Restrictions on using devices should apply only when absolutely necessary, according to Henry. All of those in court should know the restrictions, he adds.
“Freedom of information is intimately connected to the right of citizenship and shouldn’t be lightly dismissed,” he says.
Henry also predicts it will be practically difficult, if not impossible, to police the use of devices only by those listed in the protocol.
“There is no question that the line between journalists and members of the public is blurring in relaying the information we all share.”
The new protocols come after a team of legal experts proposed more permissive guidelines last year. The team, put together by the Canadian Centre for Court Technology, said it was time to grant every person in court the privilege to transmit information via personal technological devices.
After the proposals came out in the fall, Stephen Bindman, who was part of the centre’s consultation group, told Law Times social media helps advance access to justice.
“More and more Canadians are getting their information and information on the courts from social media,” said Bindman.
While Henry agrees, he says smartphone use isn’t all he wants to see in Canadian courtrooms. He’s a strong advocate for audio-visual access.
If cameras record proceedings accurately and in real-time, journalists and others won’t have to bear the pressure of firing off 140-character tweets as events unfold, he says, and the recordings can be linked to tweets.
Under the new protocols, taking photographs continues to be banned in courtrooms while audio can be recorded for the purpose of taking notes but not for broadcast or sending electronically from the recording device.
|It took Justice David Brown 75 hours to write this ruling.|
“For the first time since my appointment to the bench, I kept a docket of the time which I spent on writing a judgment,” he says. “I spent 75 hours writing these reasons.”
The current Superior Court scheduling protocols allot 35 weeks of sitting a year each judge. That is 175 day or 875 hours, notes Brown. He adds hearing the motion in this specific case took almost one per cent of his annual sitting time.
Each judge is also given nine weeks in one year to write judgments. If a judge writes for eight hours a day, that makes 360 hours of allotted judgment writing time, Brown writes.
“These reasons took 75 hours to write, or 21 per cent of my annual judgment writing time. Of course most judges use part of their vacation to write reserve judgments, but I will put that issue to one side,” he adds.
The court is now faced with complex summary judgment motions and much of factual review of these complex motions occurs after the hearing.
“Yet, at the same time that judges are asked to hear complex summary judgment motions, they also are called upon to hear and decide quickly numerous intervening urgent motions and applications,” he writes. And prioritizing urgent cases means a delay in adjudication of less urgent but complex matters.
“Is over seven months an acceptable turn-around time for a 1.5 day summary judgment motion? I do not think that it is, but in the present case it was not possible to do otherwise,” says the ruling.
Brown lists three faulty principles in the scheduling protocols that have to be reconsidered:
• Assigning judges the same amount of writing time regardless of the complexity of the issue before them.
• Assuming the volume of work judges must complete can be routinely completed within normal business hours.
• Generally meeting the statutory requirement to release decisions on motions within three months of the hearing.
A 2010 amendment of the internal scheduling protocol, in fact, asked judges to avoid chronic overtime work, notes Brown, who called on a re-configuration of the system.
“If we are to restore the health of Ontario’s ailing civil litigation system, as judges we must not only call on those who appear before us to change their litigation culture, we also must look at our own internal scheduling culture and change it to meet the realities of our times.”
|Mandatory minimum rules mean more cases are going to trial, says Scott Rogers. (Photo: Gail J. Cohen)|
“Murder trials just don’t go through our system that fast anymore,” says Rogers. “You have preliminary hearings that take weeks and weeks and weeks, followed by trials in the Superior Court that take months and months and months.”
This is partly due to the introduction of mandatory minimum sentences, which has resulted in fewer accused pleading guilty.
“What mandatory minimums do is a person who is facing charges says, ‘Well I can’t go to jail so I’m going to take my chances at trial,’” says Rogers. “So more people opt to have a trial, which means you need to have more prosecutors, you need to properly finance the legal aid system, and you need more judges.”
One of the problems, according to the auditor general’s report, is that there is no system in place to assess Crown attorneys’ workload or how cases are being handled.
“[I]t is difficult to gauge the actual impact of this on prosecutor workload, especially because the [Criminal Law Division of the Ministry of the Attorney General] makes little use of numerical and statistical information to analyze the relative workload, efficiency and effectiveness of its Crown attorneys, and relies more on informal oversight by senior staff at each of the 54 Crown attorney offices,” wrote McCarter.
Rogers says the OCAA has been asking the government for an assessment system for years.
“There’s no reason why we can’t have a system where we can assess whether Crown attorney offices and courthouses are properly staffed,” he says. “We just have to be able to have that statistic, and that’s something that our association has been saying for a long, long time because our association is not afraid of those statistics. Those statistics, we believe, will bear out that many offices are grossly understaffed.”
In the report, McCarter made reference to Manitoba’s electronic case-management system, which Alberta recently bought the rights to and will be enhancing. He criticized the division for the delay in implementing such a system in Ontario.
“A much-needed electronic case management system originally projected to cost $7.9 million and to be completed by March 2010 has been significantly delayed because of weak management, oversight and financial reporting, and insufficient resources being dedicated to the project,” said the report.
The auditor general also mentioned the Supreme Court of Canada’s 1990 ruling in R. v. Askov, which established that a reasonable period of time for trial was generally eight to 10 months. This resulted in the dismissal of thousands of backlogged cases across the country due to unreasonable delay, according to the report.
The Ministry of the Attorney General introduced its Justice on Target project to try to reduce the number of court appearances and days to dispose of a charge. The report states that as of March 31, 2012, Justice on Target was able to reverse the long trend of increases, but still unable to meet its reduction targets.
Rogers says it’s essential to know why cases get stayed, and the only way to do that is through an assessment system.
“Cases get stayed for any number of reasons but when they get stayed for delay, then we have to know that,” he says. “If cases are getting stayed that means that the courthouse or that particular jurisdiction is understaffed.”
The fascinating case involves a string of home invasion sexual assaults between April 1985 and December 1987. While DNA testing was in its infancy, police believed they had enough evidence to charge Donald Milani in December 1987. The judge, however, found the evidence lacking and acquitted Milani on one charge and refused to commit him to trial in the three others at the preliminary inquiry stage.
By the 1990s, DNA testing had advanced somewhat through the use of restriction fragment length polymorphism, but that technique required more material than was available.
Eventually, with the development of short tandem repeat techniques and legal changes allowing police to obtain a warrant to collect DNA, authorities took a stab at the case once again in 1997. The results, however, were disappointing. While they didn’t exclude Milani, they didn’t do so with the degree of probability police were looking for, Superior Court Regional Senior Justice Helen Pierce noted in her ruling last week in Milani.
Finally, Y-chromosome testing became available in 2005 that would allow for a more accurate result. By that time, the officer who had been doggedly tracking the case and keeping up to date on forensic advancements had retired.
But police didn’t submit the materials to the Centre for Forensic Sciences until October 2007. In addition, there were problems with one sample, which meant police had to surreptitiously obtain a new one from a discarded cigarette in July 2008. The new results provided more solid evidence, including one that gave a probability of one in 18.8 billion. Police arrested Milani in August 2010. A trial by jury was to take place just a month from now.
Milani, however, applied for a stay given what Pierce determined to be a 301-month delay in the case.
In the Crown’s view, the clock didn’t start ticking for the purposes of analyzing the delay according to s. 11(b) of the Charter of Rights and Freedoms until the issuance of the preferred indictment in July 2010. Pierce, however, disagreed.
“I conclude that the time for assessing delay for the purposes of a s. 11(b) analysis runs from the date of the laying of the first information coincident with the applicant’s arrest on December 22, 1987,” she wrote.
At the same time, she attributed 32 months of delay to the Crown for, among other things, the unexplained failure by police to submit the exhibits to the centre until October 2007.
In the end, Pierce found herself commending certain police officers for the “doggedness and professionalism” in keeping the case — one she noted involved serious offences — alive. But balancing that against Charter protections, she stayed the charges against Milani.
“It is an acknowledgment that individuals should not have to live indefinitely with the prospect of prosecution hanging, like the sword of Damocles, above their heads,” she wrote.
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Gail J. Cohen