Head of Commission on Indian Residential Schools Resigns

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Mon, 20 Oct 2008 22:40:10 GMT

Justice Harry LaForme resigned today from his position as head of the Truth and Reconciliation Commission set up to examine the legacy of decades of abuse of aboriginal children in residential schools.

In a letter to federal Indian Affairs Minister Chuck Strahl, LaForme mentioned political and bureaucratic interference as well as disagreements between himself and 2 other commissioners.

LaForme, a judge of the Ontario Court of Appeal, had been appointed in April as the chair of the Commission (see the Library Boy post of April 28, 2008 entitled Ontario Aboriginal Judge To Head Truth and Reconciliation Commission).

More background on Laforme's resignation:

Head of commission into Indian residential schools resigns (Globe and Mail): "In July, less than two months after it was struck, Justice LaForme expressed concerns that political or bureaucratic interference could compromise the commission, and he said those concerns were delaying the panel's startup. Justice LaForme also said the panel cannot allow itself to be 'shackled' by bureaucratic requirements, and that the commissioners, not government, must be able to decide how to spend their $58-million budget. At the time, Justice LaForme noted a potential for friction over the panel's independence. He said it came as 'a surprise' to discover the feds had created a secretariat as a government department staffed by civil servants reporting to the Minister of Indian Affairs, instead of allowing the commission to set up its own office."
Native commission head quits, citing 'incurable problem' (CanWest News Service): "[T]he former Ontario judge said in his letter of resignation to Indian Affairs Minister Chuck Strahl that: 'The two commissioners are unprepared to accept that the structure of the commission requires that the TRC's course is to be charted and its objectives are to be shaped ultimately through the authority and leadership of its chair. Laforme added: 'the two have chosen to compete for control of the commission by insisting that it is to be run on the basis of simple majority rule'."
Chairman quits troubled residential school commission (CBC News): "He [LaForme] said the commissioners want to focus primarily on uncovering and documenting truth, while he also wants to have an emphasis on reconciliation between aboriginal and non-aboriginal Canadians."

Breaking the Silence : International Conference on the Indian Residential Schools Commission of Canada

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Tue, 30 Sep 2008 16:36:44 GMT

Last weekend, the Université de Montréal hosted Breaking the Silence : International conference on the Indian residential schools commission of Canada.

The gathering was a joint initiative of the Indian Residential Schools Truth and Reconciliation Commission, the Centre for Research on Ethics of the Université de Montréal (CREUM) and the Centre on Values and Ethics of Carleton University (Ottawa).

Prof. Daniel Weinstock of the Université de Montréal was interviewed last night on the Radio-Canada program Vous êtes ici ("You are here"). The interview is in French and lasts 18 minutes.

Prof. Weinstock teaches philosophy there and is the director of the CREUM.

The interview discusses the experience of truth and reconciliation commissions in other countries (such as South Africa) and examines some of the foreseeable problems that the Canadian commission into the abuse of tens of thousands of aboriginal children in government-funded boarding schools may run into.

From the 19th century until very recently, about 150,000 aboriginal children were removed from their communities and forced to attend remote residential schools. Countless children were abused physically or sexually.

The system intended to aggressively assimilate the children and Christianize them. They were frequently punished for speaking their ancestral tongues and their culture was denied or "beaten out" of them.

Earlier Library Boy posts on the residential schools issue:

Implementation of the Indian Residential Schools Settlement Agreement (September 20, 2007): "The federal government announced this week the implementation of the Indian Residential Schools Settlement Agreement. Former students who were subjected to abuse in Indian Residential Schools will be able to submit applications for compensation until September 2011. Aboriginal children were often grabbed away from their families to be shipped off to the boarding schools that tried to assimilate them."
Ontario Aboriginal Judge To Head Truth and Reconciliation Commission (April 28, 2008); "The Canadian government announced today that Justice Harry LaForme of the Ontario Court of Appeal will head the Truth and Reconciliation Commission that is to examine the legacy of decades of abuse of aboriginal children in residential schools (...) The Commission's official work of hearing testimony from former students and surviving school staff is to start in June and last 5 years. Its job will be to establish an official historical record of what was done to Native children in the residential school system."
Government of Canada Officially Apologizes for Indian Residential Schools Fiasco (June 11, 2008): "Prime Minister Stephen Harper presented a formal apology today on behalf of the Canadian government for the damage done to generations of aboriginal Canadians who went through Indian residential schools.The apology was read to a packed House of Commons in which many aboriginal leaders had been invited to sit. The apology ceremony was broadcast live on TV, radio, and the Internet."

Conflict of Interests Taskforce Reports

Tue, 19 Aug 2008 10:14:07 GMT

The Canadian Bar Association (CBA) has adopted the recommendations of its Task Force on Conflicts of Interest. Background on the Task Force and their report can be found on the CBA website. CBA President Bernard Amyot said, Lawyers, law societies, judges and the Canadian public will benefit from the principled approach developed by the task force. The [...]

The Canadian Bar Association (CBA) has adopted the recommendations of its Task Force on Conflicts of Interest. Background on the Task Force and their report can be found on the CBA website.

CBA President Bernard Amyot said,

Lawyers, law societies, judges and the Canadian public will benefit from the principled approach developed by the task force. The recommendations will contribute to the evolution of the conflicts regime to reflect changes in the practice of law.

Members of the Task Force, Scott Jolliffe, Simon Chester and Gordon Currie, can also be heard in a podcast interview moderated by Jordan Furlong.

Conflicts of interest have made headlines in Ontario recently, with some claiming that they are used as an aggressive tool to have opposing counsel removed from a case.

Tracey Tyler of The Star explains,

The payoff comes in putting an opponent to the expense and aggravation of fighting the claim and – if they lose – finding a new lawyer.

The Supreme Court of Canada weighed in on the issue this year in Strother v. 3464920 Canada Inc. Binnie J. stated for the majority,

34 When a lawyer is retained by a client, the scope of the retainer is governed by contract. It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement. The solicitor-client relationship thus created is, however, overlaid with certain fiduciary responsibilities, which are imposed as a matter of law. The Davis factum puts it well:

The source of the duty is not the retainer itself, but all the circumstances (including the retainer) creating a relationship of trust and confidence from which flow obligations of loyalty and transparency. [para. 95]

Not every breach of the contract of retainer is a breach of a fiduciary duty. On the other hand, fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for. The foundation of this branch of the law is the need to protect the integrity of the administration of justice: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at pp. 1243 and 1265. “[I]t is of high public importance that public confidence in that integrity be maintained”: R. v. Neil, [2002] 3 S.C.R. 631, 2002 SCC 70, at para. 12.

35 Fiduciary responsibilities include the duty of loyalty, of which an element is the avoidance of conflicts of interest, as set out in the jurisprudence and reflected in the Rules of Practice of The Law Society of British Columbia. As the late Hon. Michel Proulx and David Layton state, “[t]he leitmotif of conflict of interest is the broader duty of loyalty”: Ethics and Canadian Criminal Law (2001), at p. 287.

The issue appears to be a particular problem in specialized areas of law such as intellectual property and Aboriginal law.

Report on Inuit Concepts of Civil Justice

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Thu, 19 Jun 2008 21:13:19 GMT

The Canadian Forum on Civil Justice (based at the University of Alberta) has released a report entitled Justice for Nunavummiut: Partnerships for Solutions that deals with the territory of Nunavut and Inuit living in Ottawa:

"This report is drawn from the Civil Justice System and the Public research data specific to Nunavut and to Inuit living in Ottawa (the largest community of Inuit outside of the territory). The data are based on interviews, community workshops and participant review of draft reports between June 2003 and June 2007. Based on the research findings, the report begins by asking the root question, what is justice in the context Nunavut and Nunavummiut living outside of the territory? In order to examine this question, important issues are considered in providing family, civil and administrative justice that generates respect, harmony, peace and rehabilitation — the Inuit Qaujimajatuqangit philosophy of justice and offers related recommendations. The importance of networks and partnerships in generating creative solutions for meaningful change to justice and social systems is discussed. The report concludes by asking how the Canadian Forum on Civil Justice can best support their partners in achieving the Inuit Qaujimajatuqangit vision of justice — not only for Nunavummiut, but for all people in Canada."

The objectives of the Canadian Forum on Civil Justice are:

collecting in a systematic way information relating to the system for administering civil justice;
carrying out in-depth research on matters affecting the operation of the civil justice system;
promoting the sharing of information about the use of best practices;
functioning as a clearinghouse and library of information for the benefit of all persons in Canada concerned with civil justice;
developing liaisons with similar organizations in other countries to foster exchanges of information across national borders; and
taking a leadership role in providing information concerning civil justice reform initiatives and developing effective means of exchanging this information

Chronic Drunk Driver Gets 20 Years, but not Designated a Dangerous Offender

omar@lawiscool.com (Omar Ha-Redeye) — Fri, 13 Jun 2008 17:48:54 GMT

A few months ago while listening to CBC Radio, I heard about the controversial case of a man being tried in Alberta for habitually drunk driving. The man, Raymond Yellowknee, had already been convicted of drunk driving three times, when in 2006 he decided to drink and get behind the wheel yet again. According to police, Yellowknee [...]

A few months ago while listening to CBC Radio, I heard about the controversial case of a man being tried in Alberta for habitually drunk driving.

The man, Raymond Yellowknee, had already been convicted of drunk driving three times, when in 2006 he decided to drink and get behind the wheel yet again.

According to police, Yellowknee had a blood alcohol level of 0.22 (about three times the legal limit), and was driving a stolen pickup truck. Police pursued the vehicle, but Yellowknee refused to stop and instead provoked a high speed chase.

Just minutes later, Yellowknee lost control of the truck and crossed the center divider. He collided head-on with a passing car.

Inside the car were a mother, who was nearly finished her training to become a teacher, and her three young daughters. All were killed.

I became interested in the case when the radio broadcast reported that the Crown would be seeking a dangerous offender designation for Yellowknee under s. 753 of the Criminal Code. The designation allows the convicted offender to be sentenced to an indeterminate prison term.

The dangerous offender provisions are usually reserved for the most serious violent offenders that a court believes cannot be rehabilitated. This would have been the first time that the designation would be used for a habitual drunk driver.

A judge would have to acknowledge that drinking and driving is a serious personal injury offence: one which carries a sentence of ten years or more, and involves “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person” (CC s. 752).

The Canadian Press reports that yesterday judge Ernie Walter of the Alberta Provincial Court decided not to name Yellowknee a dangerous offender. I should point out that Yellowknee, 35, had by this point:

… amassed a total of 71 offences and has been out of jail for only one year since he was 18.

Instead, judge Walter felt (for whatever reason) that there was a chance for rehabilitation. The court sentenced Yellowknee to 20 years (less time already served) under the “long-term offender” provision.

Section 753.1 of the Criminal Code defines a long-term offender as one posing a substantial risk of re-offending but also one where “there is a reasonable possibility of eventual control of the risk in the community.”

Robert Solomon, Professor of Law at the University of Western Ontario, provided us with his opinion of yesterday’s decision:

The Crown had sought a dangerous offender designation, which carries an indeterminate sentence and lifetime parole. Instead, the judge held Mr.Yellowknee to be a long-term offender, which means that he will be supervised in the community for 10 years after his release from prison. Yellowknee was sentenced to 20.5 years imprisonment reduced to 16 years to reflect his pre-trial detention. In my view, several elements of the Yellowknee decision are gratifying. First, the judge clearly stated that Mr. Yellowknee’s long history of impaired driving offences, coupled with his horrific conduct on the day in question, met the criteria for being designated a dangerous offender. Although it is long overdue, this is the first case in which a Canadian court has acknowledged that repeat impaired driving offenders who pose ongoing risks can justifiably be labelled dangerous offenders. Second, Mr.Yellowknee’s long-term offender designation and lengthy sentence will protect the public for almost as long as a dangerous offender designation.

Without reading the decision [it seems to be unreported as yet], it is difficult to understand why the judge exercised his discretion not to label Mr. Yellowknee a dangerous offender. The facts are as close to a worst case scenario as one can imagine and a dangerous offender designation was clearly justified. However, the Supreme Court of Canada has previously indicated that the dangerous offender designation should not be used if a less onerous sentence would adequately protect the public. Perhaps the judge was concerned that a decision to label Mr. Yellowknee a dangerous offender would be overturned on appeal. Clearly, finding Mr. Yellowknee to be a long-term offender is less controversial than finding him to be a dangerous offender. Moreover, defence counsel had indicated that they would accept a long-term offender designation. The choice between the designations would not have made a great difference in this case, given the 16 year prison sentence.

Regardless of the ultimate designation handed down for Mr. Yellowknee, yesterday’s decision should set a precedent (admittedly, non-binding) for dealing with habitual drunk drivers and the substantial risk of harm that they pose to the community.

Government of Canada Officially Apologizes for Indian Residential Schools Fiasco

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Thu, 12 Jun 2008 01:42:51 GMT

Prime Minister Stephen Harper presented a formal apology today on behalf of the Canadian government for the damage done to generations of aboriginal Canadians who went through Indian residential schools.

The apology was read to a packed House of Commons in which many aboriginal leaders had been invited to sit. The apology ceremony was broadcast live on TV, radio, and the Internet.

From the 19th century until very recently, in total, about 150,000 aboriginal, Inuit and Métis children were removed from their communities and forced to attend remote boarding schools run by Christian congregations under government contract. Countless children were abused physically or sexually.

The assumption behind the system was that aboriginal Canadian cultures were unable to adapt to modern industrial society. The schools were intended to aggressively assimilate the children and Christianize them. They were frequently punished for speaking their ancestral tongues and their culture was denied or "beaten out" of them. As the Prime Minister admitted in his apology today, the real goal of the system was "to kill the Indian in the child."

The Canadian Broadcasting Corporation has produced a very thorough package of resources on the question of residential schools under the title Truth and Reconciliation: Stolen Children.

Earlier Library Boy posts on the residential schools issue:

Implementation of the Indian Residential Schools Settlement Agreement (September 20, 2007): "The federal government announced this week the implementation of the Indian Residential Schools Settlement Agreement. Former students who were subjected to abuse in Indian Residential Schools will be able to submit applications for compensation until September 2011. Aboriginal children were often grabbed away from their families to be shipped off to the boarding schools that tried to assimilate them."
Ontario Aboriginal Judge To Head Truth and Reconciliation Commission (April 28, 2008); "The Canadian government announced today that Justice Harry LaForme of the Ontario Court of Appeal will head the Truth and Reconciliation Commission that is to examine the legacy of decades of abuse of aboriginal children in residential schools (...) The Commission's official work of hearing testimony from former students and surviving school staff is to start in June and last 5 years. Its job will be to establish an official historical record of what was done to Native children in the residential school system."

Readers may also want to take a look at the Library Boy post of February 8, 2008 entitled Australian Parliamentary Library Report on Forcible Removal of Aboriginal Children.

Supporting Lawyer Mothers is a Bad Thing?

Mon, 02 Jun 2008 22:59:18 GMT

We’ve all heard it from some of those more sharp-tongued friends of ours - all those single mothers are eroding our economy and stealing our taxes. But the Law Society of Upper Canada (LSUC) is getting heat now for supporting single mothers of another type - sole practitioners - and also those in smaller firms. In [...]

We’ve all heard it from some of those more sharp-tongued friends of ours - all those single mothers are eroding our economy and stealing our taxes.

But the Law Society of Upper Canada (LSUC) is getting heat now for supporting single mothers of another type - sole practitioners - and also those in smaller firms.

In a unanimous vote, LSUC will increase it’s fees by a measly $5-15 per lawyer to assist mothers and fathers seeking parental leave by providing grants of $3,000 a month.

But Karen Selick of the National Post slams the program, calling it “creeping socialism” (that’s a bad thing, but the way).

She forgets that Canada is often classified as a socialist democracy, especially the structure of our health care system, which to most Canadians is our proudest symbol of nationalism.

Selick also neglects to mention that the initiative was the result of a province-wide consultation by LSUC’s Working Group on the Retention of Women in Private Practice, which included many different social and ethnic groups and firms of all sizes. LSUC heard from 900 lawyers and students and received over 55 written submissions.

But consulting, of course, is so very undemocratic.

The Working Group states,

Women have been entering the private practice of law in record numbers for over two decades. However, they have also been leaving in great numbers, largely because private practice has not adapted to their realities, such as childbirth and taking on a significant portion of family responsibilities.

Also overlooked is that the move is part of a major plan to address the issue of equity in the workplace. Other recommendations adopted include:

a think tank to promote retention and advancement of women in law
direct support for women
practice locums, for more leave and flex-time
career development resources
creating an advisory group
networking strategies for minority (Francophone, Aboriginal) women
a review program

But they also clearly express that this initiative begins in the law schools by preparing female law students for the realities of law.

The entire comprehensive 174-page report can be found here.

If valuable legal talent is being lost to inflexible and inadvertently discriminatory work practices, you would think this would be perceived as a progressive move.

Selick says,

What I have never understood is why anyone gives a damn whether women are leaving private practice and clustering in government or corporate jobs, or quitting entirely.
(emphasis added)

Beyond ethical and humanitarian concerns, the legal industry loses millions of dollars a year due to skilled practitioners leaving the law.

Sean Weir of Borden, Ladner, Gervais stated in May 2006 edition of Canadian Lawyer,

We invest a lot in education and programs and do a lot of intensive training from new associates and junior partners.

So when you have a well thought out plan that will save the legal industry mega bucks, and it’s also the right thing to do, why would someone think that it’s a bad thing?

Maybe it’s because they also think that human rights laws are phony too.

h/t Sharon Kour and Stephanie Ouellette of UWO Law

A Wise Man Once Said…

omar@lawiscool.com (Omar Ha-Redeye) — Sun, 25 May 2008 14:02:33 GMT

Last week I met with Toronto lawyer Garry Wise. Garry is one of the few practitioners that has made a prominent impression in the legal blawgosphere. Garry’s blawg was one of the other recipients of the 2007 CLawBie Awards, for Best Practitioner Support Blog: Garry Wise - Year-in and year-out, Garry is one committed law blogger. [...]

Last week I met with Toronto lawyer Garry Wise.

Garry is one of the few practitioners that has made a prominent impression in the legal blawgosphere. Garry’s blawg was one of the other recipients of the 2007 CLawBie Awards, for Best Practitioner Support Blog:

Garry Wise - Year-in and year-out, Garry is one committed law blogger. He offers his opinions on almost everything, and if you do a Google search for Toronto lawyer you’ll see how blogging benefits the online exposure of his practice. If you didn’t read his Starting a law firm post back in February, please do. Garry Wise consistently offers great vision to a lot of solos across the country.

He related how he created his first firm site back in 1999, and has seen enormous returns from his online interaction. His client intakes have skyrocketed, and he is well-known and respected in the legal community.

We had a wonderful discussion on various subjects, and found many areas of mutual interest and common ground. Garry was generous enough to state that I would be an asset to any firm, and that progressive firms interested in expanding their client base should be trying to recruit me. Garry, I will be using your name as a reference as promised.

But he also suggested that I consider going solo directly out of law school, because I already have background knowledge and an existing client base in my area of legal interest (health), and greater prominence and contacts than many practitioners in the field for several years.

I’m not sure that’s the route I want to take, but it’s no surprise that his post on Starting a Law Firm is one of his most widely read articles. Garry outlines the basic requirements and strategic planning to set up your own firm.

But the “cons” he states - longer hours and more stress than even Bay St., and cost consideration during the initial start up - are likely to dissuade some of the most charismatic and entrepreneurial young lawyers, who opt to lend their credibility to a larger firm instead. Burn-out and stress are other often cited complaints of sole practitioners.

Gary Lloyd Gottlieb, a sole practitioner in Toronto, says in To be or no to be a prisoner of Bay St.,

The best advice I can give to a new lawyer who wants to practice solo is not to do it right away. You will spend too much time reinventing the wheel and then needlessly spinning it. Specialize and learn the ropes from the best lawyer or firm you can get a job with. Develop the knowledge and the competence for private practice for which law school has not equipped you, and for which the newly revamped bar admission process will not adequately equip you either. Develop your sea legs before you set sail alone.

That being said, all is not grim for those who choose to become sole practitioners. There are resources now available that did not exist when I sallied forth on my own 35 years ago

This could explain why the average age of sole practitioners in Ontario is 51, with only 12% under 35, according to a Law Society of Upper Canada (LSUC) survey in 2005.

Yet as we’ve pointed out before, nearly half of Canadian lawyers are self-employed. Jordan Furlong recently provided further break-down of the types of legal practice in Canada, indicating that less that 10% of Canadian lawyers can be found in large firms.

Gottlieb provides tips for those who comprise the vast majority if Canadian lawyers,

You need an independent temperament, the ability to constantly adapt, and eternal optimism to survive as a sole practitioner. You should also not expect a pot of gold.

Above all, you must take to heart the wisdom expressed in the Ethics of the Fathers; in order to be happy, you must be satisfied with your lot.

Access to Justice and Diversity

Smaller firms play an essential role in providing greater access to justice to smaller communities, and often more reasonable billing to clients.

But a recent story in the Star related how rising student debt compells many new graduates to flock to large law firms to pay off student loans. As a result, many smaller communities are increasingly finding themselves without legal services. Some have responded by considering loan-forgiveness programs for new lawyers who move to small towns.

Other lawyers go solo as a result of the failings of big firms that fail create inclusive environments. A 2000 LSUC Equity and Aboriginal Issues Committee report stated,

A number of lawyers feel alienated by the size and types of practice of large firms, and choose to practice in small firms or as sole practitioners.

But the report continues, and indicates that small firms might actually be worse for diversity issues.

However, small firms and sole practitioners often do not have the resources and time to deal with equity and diversity issues, or to develop the appropriate expertise to do so effectively. There are also those who may believe that equity does not add value for law firms which already have strong reputations and clients. Further, members of communities may not be aware of the availability of legal services or may feel that their lawyer either does not understand them, treats them differently, harasses or discriminates against them or otherwise violates their rights.

It’s probably a misconception then that lawyers elect for small practice because they cannot find an inclusive environment in any large law firm.

But there are other reasons for going solo, including women who want greater flexibility in their practice to accommodate a family.

Availability of Mentoring

Gottlieb has elsewhere criticized other LSUC initiatives of a practice management review program as a “A War on Sole Practitioners.” But these accusations have been rebuffed by Gavin MacKenzie of Heenan Blaike, who says that such procedures would apply to number of years of practice, and not type of practice ,

Both law society discipline and LawPRO statistics show that the early years of private practice pose a risk for the development of practice difficulties. Beginning the practice management review program with a focus on members who have been called to the bar for the formative one to eight years and who are in private practice is a risk-based approach that is justified both by data and common sense.

MacKenzie claims that LSUC instead provides support to the independant practitioner,

One of the most important initiatives of this Convocation has been to help sole practitioners and small firm lawyers to survive and thrive. We struck a task force to recommend ways in which as a profession we can preserve and strengthen the practices of the 94 per cent of Ontario law firms that consist of five lawyers or fewer. These sole practitioners and small firms provide the vast majority of legal services to individuals in search of access to justice.

The LSUC report on sole practitioners highlights mentoring as one of the major areas of need. And this probably remains the best asset that large law firms have for young lawyers, beyond issues of compensation or diversity. Many of the more progressive firms increasingly have formalized mentoring programs.

Size versus Presence

Valerie Mutton covered the LSUC report in the Lawyers Weekly, and interviewed Diana Miles, the LSUC’s director of professional development and competence. She suggests that planning is the essential key to a small practice.

But Jordan Furlong says,

Really, in 20 years’ time, the whole notion of “law firm sizes” may very well seem quaint. It won’t be all that relevant how big your law firm is — with the exception of the global giants, size really won’t matter, because the heavily niched, increasingly mobile and wired lawyers of the future won’t find enough advantages to a common office space and letterhead. It may not even take that long, if the changes we can already see rippling through the profession start multiplying faster than expected.

According to Mutton,

Getting your name known in the community and within the profession is essential to the development of a successful practice…

Miles also suggests that new lawyers should take a course in personal marketing, since new lawyers often feel awkward about basic self-promotion such as handing out business cards or introducing themselves to potential clients.

The basic denominator to all these practices, whether small or the 10% in large firms, is presence.

And arguably, it is early adopters such as Garry Wise that have led the way for Canadian lawyers.

The law school blog and podcast from Canada

Firing Up Might Not Get You Hired

omar@lawiscool.com (Omar Ha-Redeye) — Wed, 21 May 2008 05:17:34 GMT

Employers are prevented in Canada from refusing to hire someone on a number of discriminatory grounds unless they directly relate to the job requirements. These categories include race, religion, gender, or political affiliation. But what about lifestyle habits? Can employers refuse to hire someone based on the fact that they smoke, concluding that this individual in [...]

But what about lifestyle habits? Can employers refuse to hire someone based on the fact that they smoke, concluding that this individual in the long-term will have more sick days, and will have a shorter life expectancy?

Smokers Need Not Apply

It might seem strange, but that’s what is happening in Florida. Sarasota County officials announced that they will no longer hire smokers, who place a burden on taxpayers through health insurance.

The Supreme Court of Florida upheld a similar ban in 1995, when North Miami refused to hire smokers in The City of North Miami v. Kurtz.

Michelle Tyler describes the issues around the case in the Georgetown Law Journal,

…all prospective city employees to sign an affidavit stating that they had refrained from using tobacco products for the prior year.

…the city’s interest in reducing the burden on taxpayers is not only legitimate, but also compelling enough to override the individual’s privacy right, whether considered a fundamental right or merely a protected interest. This holding extends the Grusendorf rule that bona fide job requirements may override a privacy interest in smoking while off duty.

The heavy public costs associated with a smoking workforce support the court’s holding that the city had established a compelling interest sufficient to satisfy a strict scrutiny analysis. Health and productivity costs associated with smoking and borne by the employer are significant. Smokers more often suffer from chronic illnesses and are more susceptible than nonsmokers to acute health conditions. They incur more medical costs, require more hospitalizations, and visit physicians more often than nonsmokers. Productivity costs related to smoking include higher absenteeism; an injury rate double the nonsmoking rate due to loss of attention, coughing, and similar distractions; and lost time in the workday due to “cigarette breaks.” Together, these costs amount to significant losses to employers. For example, in 1992, Banc One reported that each smoking employee costs the company up to $1,100 more annually than its nonsmoking employees. Additionally, when an employer eliminates smoking on company premises, the company decreases structural maintenance and cleaning costs and derives savings from the reduced strain on heating and cooling systems which filter fewer smoke particles.

But could this happen in Canada? The Canadian Council for Tobacco Control does cite Kurtz on their website.

Where Do we Stop?

The Soapboxblog raises the slippery-slope argument,

…ought we not then exercise this premise for private sector employers who wish to not employ individuals who are overweight? Maybe said employers wish not to employ individuals with diabetes, a history of high cholesterol, a history of high blood pressure, genetic predisposition to breast cancer or cervical cancer, etc. or, as is more abundantly obvious, individuals who eat their weight in trans-fatty goods on a daily basis. Maybe those same employers wish not to employ workers who lead “high-risk” lifestyles too. Come to think of it, the aforementioned list might just as well serve as a precursor for the latter argument as well; that being the healthier workforce argument.

And What About the Poor Farmers?

Even more compelling is the plight of tobacco farmers in Ontario, who are hitting tough times. Discrimination against smokers in the workplace would only make their financial situation worse.

Tobacco farmers are putting their blame squarely on Conservative MP, Diane Finley. They are joined by residents in Caledonia, who are concerned that Aboriginal land claims will make their property value plummet.

What’s worse, Finley is the Minister of Citizenship and Immigration, and despite the anti-immigration (and potentially discriminatory) orientation of Bill C-50, her residents are not pleased.

What’s interesting is that members of her riding in Haldimand—Norfolk are taking it out on her gender,

When she runs again, I am going to have a sign on my lawn that says `Never ever vote for this woman again.’

So while the right of smokers to be hired may be scrupulously upheld, advances of women in the workplace may take second place.

Hillary would not be pleased.

New Research Papers on Aboriginal Law

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Tue, 06 May 2008 15:47:14 GMT

The Scow Institute, an institution based in Vancouver that works to further understanding between aboriginal and non-aboriginal Canadians, has published a series of new papers in its research library:

Comparative Governance Structures Among Aboriginal Peoples in Canada
Elderlaw: Relationship and Relevance to the Needs of Aboriginal Elders
Matrimonial Property on Reserve in Canada
Intellectual Property and Aboriginal Peoples: Conflict or Compromise?
Aboriginal Courts in Canada

The Institute was founded in 2001 by retired Judge Alfred J. Scow, the first Aboriginal person called to the Bar and to the Bench in British Columbia.

[Source: British Columbia Courthouse Library Society]

Ontario Aboriginal Judge To Head Truth and Reconciliation Commission

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Mon, 28 Apr 2008 22:59:00 GMT

The Canadian government announced today that Justice Harry LaForme of the Ontario Court of Appeal will head the Truth and Reconciliation Commission that is to examine the legacy of decades of abuse of aboriginal children in residential schools [biographical background information on Justice LaForme].

The Commission's official work of hearing testimony from former students and surviving school staff is to start in June and last 5 years. Its job will be to establish an official historical record of what was done to Native children in the residential school system.

The Commission is part of the negotiated Indian Residential Schools Settlement Agreement reached between legal counsel for former students, legal counsel for the Churches, the Assembly of First Nations, other Aboriginal organizations and the Government of Canada.

The Canadian government has already paid out more than $1 billion to people who could prove they attended the once-mandatory schools where Native youngsters were sent to be forcibly 'Christianized'.

In recent years, many former students have testified about extensive physical, emotional and sexual abuse at the hands of church officials from various denominations who ran the schools on behalf of the federal government.

Background material on the legacy of residential schools:

Where Are The Children (Legacy of Hope Foundation in partnership with the Aboriginal Healing Foundation, Library Archives Canada, and Canadian Heritage’s On-line Partnership Program): " The website makes accessible photographs and documents related to residential schools, which will inspire a lasting legacy of awareness, healing, and reconciliation. The website allows the many Survivors of residential schools access to historical photographs and documents.
Native Residential Schools in Canada: A Selective Bibliography (Library and Archives Canada):"The type of materials listed in this bibliography include books, scholarly articles, school histories, personal accounts, theses, videos, and Internet resources. Please note that we would also like to acknowledge the incredible amount of coverage on the topic of residential schools by Native newspapers and periodicals, many of which are available at the National Library and some of which are listed herein.The scope of the bibliography, particularly more recent publications, suggests the vast impact that residential schools have had on the Aboriginal peoples of Canada. Themes of the bibliography range from the injustices of abuses and enforced hardship to reconciliation and restitution."
Residential Schools (Aboriginal Canada Portal): this section of the portal offers a selection of high quality web links about the residential schools issue. The portal is a partnership between Government departments and the Aboriginal community.

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