Defending the “Guilty”

Thu, 18 Dec 2008 04:29:57 GMT

An interesting situation is developing in India as certain members of the Bombay Bar have unofficially declared that no lawyer is going to defend the lone terrorist caught in the Mumbai attacks of 26/11. At the same time, the Country’s top criminal lawyer sitting in New Delhi has stated that the terrorist must be given a good defence and even he may step in to do so. While a large part of the country is in shock for his comments, a greater question that has always remained is the idea of a lawyer defending the “guilty” .

This brings me to another parallel situation; that of Radovon Karadzic. Karadzic is accused of genocide in Bosnia and Kevin Jon Heller is defending him. In this post , Kevin explains to friends and peers as to why he’s defending Karadzic. His views may be an answer to the situation above. He brings forth the idea of a fair trial and a good defense for everyone as a matter of right and uses it to suport his argument. At the end of articulating his reasons he states;

“These, in any case, are the reasons why I will devote much of my professional life in the coming years to helping defend a man most people believe is responsible for some of the worst crimes since World War II. I am honored to be involved in such an important case. Indeed, given the stakes, I think “how could you defend Radovan Karadzic?” is the wrong question. The better question, I believe, is how could I not?”

Arun

Tue, 16 Dec 2008 08:25:49 GMT

Apologies for this delayed post. However, quite fortunately, the last Part of this three-pronged series coincides with two seminal events/publications. 1. CJI K.G. Balakrishnan’s piece on “Terrorism, rule of law and human rights” in The Hindu (Opinion Page). 2. The Union Cabinet’s nod for NSA Amendments and a new Investigation Agency. KGB’s write-up/analysis of our contemporary security predicaments [...]

Apologies for this delayed post. However, quite fortunately, the last Part of this three-pronged series coincides with two seminal events/publications.

1. CJI K.G. Balakrishnan’s piece on “Terrorism, rule of law and human rights” in The Hindu (Opinion Page).

2. The Union Cabinet’s nod for NSA Amendments and a new Investigation Agency.

KGB’s write-up/analysis of our contemporary security predicaments has been posted in his official capacity as the Hon’ble Chief Justice of India, and is remarkable for that very reason. The highest judicial officer in this country has clearly expostulated the need to maintain our constitutional ethos in place. He elucidates upon the role played by due process and rule of law in protecting human rights, even at a time when the nation is blinded by rage against a terror attack that left India reeling.

Adherence to the constitutional principle of ‘substantive due process’ must be an essential part of our collective response to terrorism. Any dilution of the right to a fair trial for all individuals, however heinous their crimes may be, will be a moral loss against those who preach hatred and violence.

On the other hand, the Union Cabinet has given the green signal to proposed amendments in the National Security Act, 1980 and a new Anti-Terror Investigative Agency (Part II of this series had enlisted the major provisions in the prospective legislation). In a chaotic post-Mumbai period when public sentiment and ire has been directed largely against the political class, it is important that the Government does not resort to populist methods to assuage this anger. A new and shiny array of ‘tough’ anti-terror laws might seem to be the perfect panacea to our security problems, but in reality they are nothing more than knee-jerk reactions.

Tougher anti-terror laws have had a chequered history in this nation’s democratic regime. Yet, they continue to be hot favourites among people and institutions who want a change in the Government’s attitude towards terror. Indeed, I remember a discussion in one of our Criminal Law classes at Nalsar where the topic in question was the efficacy of anti-terror laws like POTA, ULFA etc. The debate invariably spun around to the “Human Rights v. National Security” perspective, with a visibly emotional law professor eventually closing the arguments thus:

Those who might find favour with the concept of due process, and justiciable rights for the terror -accused will never step down from their ideal ivory towers till they lose a little finger in a blast or attack.

Surely, she spoke for a sizeable portion of the populace, who truly believe that India’s anti-terror must be incisive and deterrent to all who wreak havoc in its villages and cities. Take Qasab’s case for instance; the Mumbai Bar Association has forbidden its members to take up his defence. Does his obvious involvement in the terrorist attacks mitigate a constitutionally guaranteed right of legal aid? Doesn’t the lawyering community rush to defend the super-rich and mighty from all sorts of civil,criminal and commercial indictment, even when evidence is blatantly against them? Why treat Qasab exceptionally then? Is it because terrorism is an evil more equal than the other evils which plague civil society? Certainly, we have to draw the line, before the rule of law goes flying out of this polity’s windows.

The POTA has an abysmal conviction rate of 2%, and has hardly produced the desired results. The new face of terrorism does not operate like other societal crimes, and ‘deterrence’ is hardly any reason to come up with multi-fanged laws. That the terrorists in the Taj and Trident-Oberoi had no intentions of negotiating with the Government, and came readily prepared to die, must teach us an invaluable lesson. If the purpose of all anti-terror laws is to preserve public order, then we must embrace a systematic procedure to collect evidence, grant fair trials and opportunities. Without these safeguards, the law will never strike at the root of terrorism, for all the wrong people would be behind bars then.

Arundhati Roy wrote a blistering piece in Outlook India last week, and she says;

It was after the 2001 Parliament attack that the first serious questions began to be raised. A campaign by a group of lawyers and activists exposed how innocent people had been framed by the police and the press, how evidence was fabricated, how witnesses lied, how due process had been criminally violated at every stage of the investigation….The Supreme Court upheld the death sentence of another of the accused, Mohammad Afzal. In its judgment, the court acknowledged that there was no proof that Mohammad Afzal belonged to any terrorist group, but went on to say, quite shockingly, “The collective conscience of the society will only be satisfied if capital punishment is awarded to the offender” Even today we don’t really know who the terrorists that attacked Indian Parliament were and who they worked for.

The rallying calls against anti-terror laws must not be mistaken to be a blind push for seemingly facile human rights, but a warning against the nightmarish future of citizens losing faith in its own legal regime.

Huge Changes to Ontario Civil Procedure

Thu, 11 Dec 2008 16:52:02 GMT

The McGuinty government has today announced that it will be making significant changes to the civil justice system in Ontario. The changes arise in response to Justice Osborne’s recommendations for civil procedure reforms. The government initially commissioned the report to find ways to improve access to justice and speed up the processing of civil matters. An extensive [...]

The McGuinty government has today announced that it will be making significant changes to the civil justice system in Ontario.

The changes arise in response to Justice Osborne’s recommendations for civil procedure reforms. The government initially commissioned the report to find ways to improve access to justice and speed up the processing of civil matters.

An extensive list of the recommendations of the Civil Justice Reform Project can be found here. The abridged highlights are also published in the 2008-2009 Ontario Annual Practice - a book which just about every civil procedure student and civil lawyer owns - at page vi.

Just over a year later, the government has agreed to implement 25 major reforms to the rules of Ontario’s civil courts, including the following major recommendations:

An increase in the jurisdiction of the Small Claims Court from $10,000 to $25,000.
An increase in the Rule 76 Simplified Procedure limit from $50,000 to $100,000.
Parties will be allowed up to two hours of oral discovery for Rule 76 actions.
Each party will be limited to a total of seven hours of pre-trial Examination for Discovery (unless the parties consent or the court orders otherwise.)
New rules of summary judgment that make it less likely for costs to be awarded against the party that loses the motion. These costs awards acted as a disincentive to bring a summary judgment motion.
A judge can now order a “mini-trial” to hear oral evidence on a summary judgment motion.
The civil court rules will now contain a general principle of proportionality to guide their interpretation. The time and expense devoted to any proceeding must now reflect what is at stake. Cases that are straight forward and of lower value should not take as long or cost as much as large, complex cases.

Mr. Justice Osborne had the following to say about today’s announcement:

“By acting on my recommendations, the Attorney General is reducing cost and delay for individuals and businesses who use our civil courts. The reforms reflect the need for proportionality in our civil justice, which means that straightforward, lower value cases should not take as long or cost as much as large, complex cases.”

We have previously covered some of the Attorney General’s criminal law reforms on this website.

Kudos to the Hon. Mr. Chris Bentley for implementing these sweeping reforms that promise the speedier and cheaper resolution of cases.

Prorogue a ‘Very Dangerous’ Precedent

Fri, 05 Dec 2008 11:10:59 GMT

Prof. Errol Mendes of UofO has stated that PM Harper’s recent decision to prorogue government is not just a bad idea, but “very dangerous.” Any time that the prime minister wants to evade the confidence of the House now he can use this precedent to do so… This is certainly an unprecedented situation that we saw unfold. [...]

Prof. Errol Mendes of UofO has stated that PM Harper’s recent decision to prorogue government is not just a bad idea, but “very dangerous.”

Any time that the prime minister wants to evade the confidence of the House now he can use this precedent to do so…

This is certainly an unprecedented situation that we saw unfold. I hope that we won’t come to the brink of this type of effort to unseat a sitting government going against the democratic wishes of the people of Canada.

Mendes is the same person who contemplated seeking an injunction when the election was called early.

He suggests that parliament could pass legislation to prevent prorogue abuse in the future, which may just happen when the House resumes in January. All three parties have indicated they intend to continue their efforts despite attempts at appeasement.

In the meantime I’m thinking that if the PM can prorogue over lack of confidence, why can’t all of us follow the same precedent?

I’m thinking of proroguing my exams this week. Friends have indicated an interest in proroguing mortgage payments, or maternity leave until their kids hit 21.

One of my colleagues in law school posed a philosophical question as to whether death could be prorogued. My response was if an elected government doesn’t do the job we elect them (or not) to do, can we regard it as a breach of social contract and prorogue our taxes?

Probably not, but just like death and taxes, the recent move by the PM likely just delays the inevitable.

Cross-posted from Slaw.

It’s Official: E-Laws Printouts are Good Law!

Wed, 03 Dec 2008 20:14:22 GMT

Mr. Wisdom has pointed out how reliant we soon-to-be-lawyers are on technology. I, like him, cannot imagine living without CanLII, electronic library catalogs, and e-laws. However, there has always been an undercurrent of resistance to technology from the old school bar that somehow - incredibly in my eyes - manages to get by just fine without [...]

Mr. Wisdom has pointed out how reliant we soon-to-be-lawyers are on technology. I, like him, cannot imagine living without CanLII, electronic library catalogs, and e-laws.

However, there has always been an undercurrent of resistance to technology from the old school bar that somehow - incredibly in my eyes - manages to get by just fine without electronic legal resources. For a long time, printouts of electronic case law and legislation have not been acceptable for use in court.

The general rule was that printouts are unacceptable or at least frowned-upon, especially in Superior Court proceedings, though some leeway was occasionally granted in the interests of expedience.

I am extremely happy today to report that the general rule is changing.

Ontario was the first province to begin publishing its laws online. That happened back in 2001 with the launch of e-laws. That was a progressive move to help make the law more accessible to the public, and indeed, to help keep lawyers up to date on changes that could take time to get published in print.

As of November 30, 2008, the government has gone a step further.

According to a MAG press release, copies of regulations and statutes published on e-laws will now be an official source of law.

Both of the following are official:

An on-screen display of a statute or regulation viewed on, or downloaded from, the e-Laws website
A printout of a statute or regulation viewed on, or downloaded from, the e-Laws website.

According to Ontario’s Attorney General, Chris Bentley (a fellow Londoner):

“E-Laws provides Ontarians with easy access to Ontario’s laws. Making e-Laws an official source of law recognizes the reality of today’s modern technological environment. Eliminating our reliance on printed publications not only makes the law more accessible but does so in a cost-effective and environmentally friendly way.”

These changes were made pursuant to a new regulation under the Legislation Act, 2006, [S.O. 2006, c. 21, Sch. F].

Ironically, the regulation (presumably under s. 41(1)) is too new to have been published on the E-Laws website just yet. I haven’t been able to find it!

The Prospective Federal Anti-Terror Agency: An Analysis.

Wed, 03 Dec 2008 13:14:32 GMT

(This post forms the second of a three-part article. The next one attempts to debunk the myth of tougher terror laws). The overwhelming public response to laxities in handling terrorist attacks and security threats has prompted the Government to formulate a proposal for a federal anti-terror agency. The proposal, incorporated as an amendments to the National [...]

(This post forms the second of a three-part article. The next one attempts to debunk the myth of tougher terror laws).

The overwhelming public response to laxities in handling terrorist attacks and security threats has prompted the Government to formulate a proposal for a federal anti-terror agency. The proposal, incorporated as an amendments to the National Security Act, 1980 is expected to be tabled in the upcoming Parliamentary session. The Bill, currently in its nascent stages, has not been placed before the public yet; we’ve relied solely on secondary sources to analyze the amendments.

The changes to the existing law include

Setting up of a National Security Authority that will take charge of administration and supervision of all investigation of terrorism-related crimes across the country
The Authority, comprising a Chairman and five members, will be responsible for prosecuting the accused
The appointment of a Security Commissioner (a high-ranking IPS officer) in each State, who will report directly to the Authority
Stringent Bail provisions
Fast-track Courts
Death Penalty (no surprises here)
Freezing of assets and bank accounts of those accused and their overt and covert sympathizers and sponsors
Punishment for those found guilty of raising funds or sponsoring terrorist acts, conspiracy, harbouring terrorists or threatening witnesses

While the attempts to usher in reform are perhaps well-intentioned, the proposed changes do not seem to be a radical change from the extant system. The introduction of a National Security Authority will merely augment excessive bureaucratization, the very lapse currently being highlighted post-Mumbai. The Authority seems to be quasi-judicial, with powers to prosecute the accused. In this regard, it is important to note that the framework seems to base itself on the ethos of Tribunalization. While the main purpose of creating alternative judicial forums is too expedite the process of justice delivery, the same attitude cannot be adopted in an issue of such magnitude. Quasi-judicial authorities or fast-track courts are not the solution to tackle terrorism, as it involves a long, extended process of collecting evidence and arriving at conclusions. The allegations raised towards the accused will be, no doubt, grave - it is important that the veracity of claims is brought out through extensive investigation and not speedily dismissed. Missing the target will not only fail to curb terrorism, but also reduce the public’s faith in the legal machinery.

One may question the role of the Security Commissioner in each State; are they acting as officers of this quasi-Court? Will their findings and observations be treated as evidence? Is the State Police involved in assisting the Security Commissioners? What difference does such appointment bring about, apart from adding an unnecessary intermediary? These are questions to which the Government must respond. The onus upon the establishment to effectively tackle terrorism cannot be guised in the form of knee-jerk reactions.

The other provisions seem to belong to the macho-class of anti-terror laws. They have been advertises as tougher, more stringent norms to curb the menace of terrorism. However, tough does not mean efficient, as my next post will hope to convince.

(To be continued…..)

Early Release for Weight

Mon, 17 Nov 2008 21:37:21 GMT

Earlier this summer we raised the question of how the justice system will deal with the obesity epidemic. We just got what might be our first test case. Michel Lapointe, aka Big Mike, got early release last Tuesday because he couldn’t fit in any of the furniture in his cell. To make things worse, or better in [...]

Earlier this summer we raised the question of how the justice system will deal with the obesity epidemic.

We just got what might be our first test case.

Michel Lapointe, aka Big Mike, got early release last Tuesday because he couldn’t fit in any of the furniture in his cell. To make things worse, or better in the case of Mike, two other facilities refused to receive him.

Although he received a five-year sentence for conspiracy, drug trafficking and gangsterism, the authorities told him,

You have been detained for more than 25 months and your prison conditions are difficult because of your health.

He will be required to follow some conditions, including finding a job, staying away from bars and checking in with a parole officer.

Should prisoners get early release simply because facilities have failed to consider accommodation of different body types?

Is early release an adequate exemption from their duty to provide an equitable system to rehabilitate criminals?

Closure to the Free Speech Debate?

Wed, 29 Oct 2008 02:41:32 GMT

We are fairly confident that many of our readers are well aware that the CIC v. Maclean’s case has been officially closed (at least at this point in time; an appeal is still a legal possibility). Just in case you didn’t hear - Maclean’s won! A Political No-Brainer Does this come as a surprise? It all depends from [...]

We are fairly confident that many of our readers are well aware that the CIC v. Maclean’s case has been officially closed (at least at this point in time; an appeal is still a legal possibility).

Just in case you didn’t hear - Maclean’s won!

A Political No-Brainer

Does this come as a surprise? It all depends from which perspective you view the matter.

From an administrative law standpoint, there was strong precedent, sufficient evidence, requisite expert testimony, a clear mandate and policy rationale, statutory power, and overall a compelling case to be made in favour of the Complainants. Perhaps the only militating factor against the CIC’s claim was that the Canadian Human Rights Commission recently decided against them.

From a political standpoint it was a no-brainer.

Unsurprisingly, all the major newsprint and most journalists officially endorsed the Respondents, politicians were bombarded with letter and email campaigns resulting in vocal pronouncements for a review of human rights commissions (HRCs) and their provisions, and several civil liberty groups and recognizable figures such as Alan Borovoy provided unwavering support and reprimanded the use of HRCs for censuring our God given right (sic) to express ourselves.

Undoubtedly it was the politics of the day under the auspices of the national media that drove this decision.

The Currie 2-Part Test

This notion is not just sour grapes in light of our seeming support for my fellow legal peers. In fact it was Maclean’s supporters who first delineated this point in their characteristically witty and sarcastic prose.

Mark Steyn opined on the decision almost immediately. In one of his responses he reproduced this quote by fellow free speech advocate and popular blogger Jay Currie:

The way I read this decision is that it imposes a two part test:

a) are your words offensive and hurtful?

b) are you a major media organization with deep pockets represented by serious lawyers.

If “a” and not “b” you are a hate monger; if “a” and “b” you are engaged in political debate.

More importantly and telling is the wording and position of the judgment itself.

About the Decision

The Tribunal goes a long way out by prefacing their analysis by first explaining the Tribunal process. Specifically, it revisits the transformation undertaken over 5 years ago in 2003 which made the BC Human Rights Tribunal (BCHRT) the first “direct access” tribunal in Canada.

Further, it explains that to bypass the screening process there is a low threshold requiring more substance than mere conjecture and speculation, yet less taxing than requiring actual proof; the requirement is that the complaint alleges facts that, if proven, could contravene the Code. Both points justifying and explaining why the complaint made it directly to the hearing process.

Moreover, not only does the decision use legislative requirements to reinforce its undertaking of a hearing, it goes on to highlight Maclean’s failure to legally apply for a dismissal which (by the tone of decision writer) probably would have effectively ended the matter at that juncture.

Lastly, according to this excerpt in the National Post, counsel for the Complainants Faisal Joseph suggests that the tribunal “unilaterally changed the [legal] test” for establishing hatred and contempt, preferring a purely objective test over an earlier, more subjective one that focused on how the alleged hate message was understood by recipients.

What Next?

Moving beyond the decision, questions of what happens next are floating around in the ether.

Has the BCHRT quelled the surge for the abolishment of human rights commission and/or certain provisions by stealthily releasing the painstakingly anticipated decision to the most contentious Canadian debate of 2008 on the eve of a holiday weekend preceding a Federal election?

Or will the self-proclaimed free speech advocates revive this issue to the point where it will be incumbent upon our political representatives to officially confront the matter head on?

This is not the first time that HRCs and their respective provisions have been scrutinized by the media and it won’t be the last. And although this time around the media conglomerates flexed their muscles with overzealous force and coordinated cooperation it appears as if this war in the battle against HRCs has come to a close.

That is not to say that the legislators won’t have their final word through future amendments, but without further action taken in the form of an appeal or some drastic change in public sentiment through the release of a best-selling book, government and the legislature will let the dust settle before weighing in.

Ontario Expands “Justice on Target” Initiative

Fri, 24 Oct 2008 20:22:30 GMT

According to the Ontario Attorney General’s website: In 1992, it took an average of 4.3 court appearances to bring a charge to completion. By last year, this figure had more than doubled to 9.2 appearances. Over the same period, the average time needed to complete a charge has gone from 115 days to 205 days. One of [...]

According to the Ontario Attorney General’s website:

In 1992, it took an average of 4.3 court appearances to bring a charge to completion. By last year, this figure had more than doubled to 9.2 appearances. Over the same period, the average time needed to complete a charge has gone from 115 days to 205 days.

One of AG Chris Bentley’s prime initiatives during his office has been to address these delays in the criminal justice system.

Bentley is the Liberal M.P.P. for my riding of London West. Because of his personal knowledge of our court’s delays, Bentley made London the testing ground for his “Justice on Target” program. The program aims to identify bottlenecks and address them to reduce the number of adjournments and the amount of time it takes for criminal cases to be resolved.

The Ministry of the Attorney General has issued the following (slightly edited) press release today:

—

Accelerating The Pace Of Justice
McGuinty Government Selects Three Courthouses For Next Phase Of Justice On Target Strategy

NEWS
The Ontario Courts of Justice in Newmarket, North York and London have been chosen to begin the province’s intensive, sustained effort to move cases through the justice system faster.

This is the next step in the Justice on Target strategy , to reduce unproductive criminal court delays and appearances by making more effective use of justice resources.

These courthouses have been designated as “action sites” to improve the pace of justice. Teams, led by Regional Senior Justice Bruce Durno and Senior Crown Attorney Ken Anthony, will work to quickly identify, test and implement new ideas.

Successful initiatives will then be rolled out in other courthouses across the province to help achieve the target of a 30 per cent reduction in the provincial average of days and court appearances needed to complete a criminal case. Progress towards the targets in each courthouse will be measured and reported online.

QUOTE
“Our expert teams will be working closely with all justice participants in these three courthouses initially - but the goal is to identify, test and implement approaches that will make criminal justice faster province-wide,” said Attorney General Chris Bentley. “We’re committed to making the justice system more effective for everyone - victims, witnesses, and the public who pay for it.”

QUICK FACT
* With 600,000 charges entering the system every year, saving one minute per charge could save seven years of court time.

—

My personal London criminal justice pet peeve: simple disclosure requests that take six months to fulfill.

The Solution is Insite

Tue, 21 Oct 2008 19:06:12 GMT

With an unabating drug epidemic and the winds of political change in the air, interest is growing in the United States for a less punitive and more liberal war on drugs. One battle in this war is being fought, and won, in Canada by the City of Vancouver, British Columbia—and the tactics being used are controversial, [...]

With an unabating drug epidemic and the winds of political change in the air, interest is growing in the United States for a less punitive and more liberal war on drugs.

One battle in this war is being fought, and won, in Canada by the City of Vancouver, British Columbia—and the tactics being used are controversial, to say the least.

No, not torture. In September 2003 Vancouver opened the first “safe injection site,” a legal facility for users of illegal narcotics. The facility is run by healthcare workers and funded by the provincial government, and it is the only facility of its kind in North America. It is called ‘Insite‘.

In July 2002 I travelled with a friend to Vancouver. We walked the streets of the then-notorious Downtown Eastside. Literally stepping over bodies and discarded needles, and politely declining invitations to enter alleyways, we met a young drug addict named Rob from Peterborough, Ontario. Boasting of his honesty, this former marathon runner told us he needed “$5 for crack.” We obliged, and were treated to a guided tour of misery, desperation, and sickness that exceeded anything I have ever seen in the developed world.

At the time of our visit, Insite had just been established; it was highly controversial and still illegal. I remember doubting that it would survive but coming to believe that it was Vancouver’s only hope.

In a terrific (though slightly dated) article entitled The needle and the damage undone, Mark Follman from Salon.com considers the challenges and successes of Insite since its establishment, as well as its potential application in the United States. Check it out.

Man Suing God Unsuccessful

Fri, 17 Oct 2008 17:17:20 GMT

Just over a year ago we covered Senator Ernie Chambers, the man suing God for making terrorist threats. The case was tossed out this week. But the point of Chambers’ suit, to demonstrate that anyone can sue or be sued, was also highlighted in the recent decision. He has 30 days to appeal.

Just over a year ago we covered Senator Ernie Chambers, the man suing God for making terrorist threats.

The case was tossed out this week.

But the point of Chambers’ suit, to demonstrate that anyone can sue or be sued, was also highlighted in the recent decision.

He has 30 days to appeal.

New Proposed Apology Legislation in Ontario

Tue, 07 Oct 2008 20:35:18 GMT

Just over a month ago I said on Slaw, …government officials should also review legislation relating to liability of public apologies so that responsible companies like Maple Leaf are not penalized in the process. It seems someone was paying attention. A new proposed law would address this issue. The Ministry of the Attorney General of Ontario said in [...]

Just over a month ago I said on Slaw,

…government officials should also review legislation relating to liability of public apologies so that responsible companies like Maple Leaf are not penalized in the process.

It seems someone was paying attention.

A new proposed law would address this issue. The Ministry of the Attorney General of Ontario said in a release today,

The Apology Act would, if passed:

Allow individuals and organizations, such as hospitals and other public institutions, to apologize for an accident or wrongdoing, without it being used as evidence of liability in a civil legal proceeding under provincial law

Help victims by acknowledging that harm has been done to them — an apology is often key to the healing process

Promote accountability, transparency and patient safety by allowing open and frank discussions between patients and health care providers

Enhance the affordability and speed of the justice system by fostering the resolution of civil disputes and shortening or avoiding litigation.

B.C., Manitoba, and Saskatchewan have already enacted similar legislation.

xPD from Slaw.

Motor Vehicle Lemon Laws in Canada

Mon, 15 Sep 2008 01:49:20 GMT

Every state in the U.S. has a lemon law that gives consumers redress when they find that they’ve purchased a defective car and the manufacturer can’t (or won’t) fix it. In addition, there are a number of U.S. federal laws (like the Magnuson-Moss Warranty Act) that can be used to fight on behalf of consumers [...]

In Canada, there is no national lemon law, but each province has some consumer protection statutes. Ontario tried to pass a lemon law in 2002, but the efforts were not successful. Consumers can, however, submit disputes to the Canadian Motor Vehicle Arbitration Plan (CAMVAP) for neutral third-party resolution.

According to the CAMVAP website,

CAMVAP covers most domestic and imported passenger cars, light trucks, sport utility vehicles, vans and multi-purpose passenger vehicles purchased or leased in Canada, as long as the vehicle is the current model or one of four previous model years.

Unlike U.S. arbitration, which is typically binding for the manufacturer but non-binding for the consumer, CAMVAP arbitration is binding for both parties. In other words, once the arbitrator has reached a decision, that’s the final word on the matter.

CAMVAP arbitration also limits the kinds of refunds and reimbursements that consumers can receive. For example, it can’t reimburse expenses to buy or lease a vehicle, void a purchase or lease agreement, or award exemplary or punitive damages.

As with any arbitration, if you enter into CAMVAP, you should have a lawyer at your side. Although it’s not mandatory to do so, keep in mind that car manufacturers have teams of lawyers who do nothing but fight lemon law claims. You’ll only be on equal footing if you have legal representation.

The bottom line? Canadian consumers seem to have far fewer protections than their U.S. counterparts.

Sergei Lemberg of Lemon Justice is sitting in the guest blogger’s chair today. He has some great info about what you can do if you wind up with a defective new or used vehicle.

Harper Picks Justice Thomas Cromwell to Complete S.C.C.

Sun, 07 Sep 2008 18:17:17 GMT

Prime Minister Stephen Harper has nominated Nova Scotia appeal judge Thomas Cromwell to sit on the Supreme Court of Canada. Justice Cromwell will succeed Justice Michel Bastarache, who retired from the S.C.C. on 30 June 2008. Justice Cromwell holds a Bachelor of Music degree, a law degree, and a Bachelor of Civil Law degree. He was [...]

Justice Cromwell holds a Bachelor of Music degree, a law degree, and a Bachelor of Civil Law degree. He was a professor of law at Dalhousie University from 1982 to 1992 and from 1995 to 1997. From 1992 to 1995, he was Executive Legal Officer in the chambers of then-Chief Justice of Canada Antonio Lamer. In 1997, Jean Chretien appointed him to the Nova Scotia Court of Appeal.

“Thomas Cromwell’s candidacy was highly recommended by judges, lawyers and other Atlantic Canadians,” said Prime Minister Harper. “He is well qualified to serve on the country’s highest court.”

According to the Office of The Prime Minister,

The Prime Minister said that an appointment will not be made until Mr. Justice Cromwell has the opportunity to answer questions from an ad hoc all-party committee of the House of Commons. This would be only the second time in Canadian history that a Supreme Court nominee faced questions from Members of Parliament.

“I am looking forward to watching the ad hoc committee’s work and listening to Mr. Cromwell’s answers,” said the Prime Minister.

One-Stop Shop Legal Services in Ontario

Wed, 27 Aug 2008 13:49:29 GMT

The Ministry of the Attorney General of Ontario announced today a new website and hotline to provide legal information. Information is available on: Finding a lawyer Tickets and fines Lawsuits and disputes Family and criminal law Human rights, and Wills and Estates The site provides services in 23 languages to reflect the increasing cultural diversity of the Province, and the hotline has up [...]

The Ministry of the Attorney General of Ontario announced today a new website and hotline to provide legal information.

Information is available on:

Finding a lawyer
Tickets and fines
Lawsuits and disputes
Family and criminal law
Human rights, and
Wills and Estates

The site provides services in 23 languages to reflect the increasing cultural diversity of the Province, and the hotline has up to 170 languages. Minority access to legal information is a concern that has arisen in many different contexts.

Attorney-General, Chris Bentley, said,

Ontarians now have a place to start when they need basic legal information about our justice system. Justice Ontario is the one-stop destination that puts answers to your basic questions about the legal system just a click or a phone call away.

The site is part of broader strategies to reform the Civil and Criminal system.

The Access Partnership that helped develop the site includes representation from the following organizations:

How will Courtrooms Deal with Obesity Epidemic?

Fri, 22 Aug 2008 21:49:12 GMT

Section 11(b) of the Charter states, 11. Any person charged with an offence has the right… (b) to be tried within a reasonable time; The Supreme Court of Canada affirmed in R. v. Finta the principles outlined in R. v. Askov, indicating that 11(b) included the right to a speedy trial, Two elements must be assessed under s. 11(b): [...]

Section 11(b) of the Charter states,

11. Any person charged with an offence has the right…

(b) to be tried within a reasonable time;

The Supreme Court of Canada affirmed in R. v. Finta the principles outlined in R. v. Askov, indicating that 11(b) included the right to a speedy trial,

Two elements must be assessed under s. 11(b): the length of the delay, and its reasonableness. If the delay is prima facie excessive, it is necessary to go on to consider whether it is nonetheless reasonable. Reasonableness may depend on a variety of factors, including the prejudice caused by the delay. Absent waiver, a certain prejudice in a long?delayed trial may be inferred if not rebutted by the Crown. Here, the delay was prima facie excessive and unreasonable and entitled the accused to the benefit of s. 11(b).

In June 2005, Ontario passed the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). That same year, Honourable R. Roy McMurtry, Chief Justice of Ontario, headed an advisory report on making courtrooms more accessible. The Attorney-General in this province then followed with an accessibilty plan launched last year.

But courtrooms may be facing a more significant problem [the obvious pun was deliberately avoided for sensitivity reasons].

Sheena Starky explained in a report for the Library of Parliament,

In 2004, approximately 6.8 million Canadian adults ages 20 to 64 were overweight, and an additional 4.5 million were obese.(1) Roughly speaking, an adult male is considered overweight when his body weight exceeds the maximum desirable weight for his height, and obese when his body weight is 20% or more over this desirable weight. A similar guideline holds true for women, but at a threshold of 25% rather than 20%. Dramatic increases in overweight and obesity among Canadians over the past 30 years have been deemed to constitute an “epidemic.”

A Texas court is facing this challenge today, as a woman charged with first-degree murder cannot even fit through the front door of her home,

She was allowed to remain in bed, on a personal recognizance bond, because she couldn’t be put in jail.

“Whatever the county and court system has to do in reference to the death of this child, we’ll do it,” Hidalgo County District Attorney Rene Guerra said at that time. “We can’t let someone’s physical disability stand in the way of justice.”

While he and Hidalgo County Sheriff Lupe Treviño promised yesterday that Rosales would be prosecuted, “they remained mute about the details of that process,” reports the Monitor in another article.

Rosales can’t be put in jail, even if she could fit through the doorway of her home, because she needs medical care…

If a similar case was brought in Canada, it’s unlikely that any buildings could be brought to code in a timely enough manner.

This might rise to teleconference options that have been discussed in other contexts, but such options would have to be examined by the courts first.

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.

Colour Conscious Justice: Towards a Colour Blind Justice System

Wed, 13 Aug 2008 05:13:27 GMT

Is the justice system blind to colour? Jim Rankin and Betsy Powell of the Toronto Star pose this question in an article that is part of the newspaper’s series on Crime and Punishment. The series explores “the state of crime and punishment in Canada, including the social costs of mandatory minimum sentences, in a series of [...]

Is the justice system blind to colour?

Jim Rankin and Betsy Powell of the Toronto Star pose this question in an article that is part of the newspaper’s series on Crime and Punishment. The series explores “the state of crime and punishment in Canada, including the social costs of mandatory minimum sentences, in a series of articles and, on-line at thestar.com, in video documentaries, interactive maps and timelines, and a game, where you are the judge”. After two years of fighting a freedom of information battle, the Star obtained and analyzed three sets of data, including details of criminal records and one-day data snapshots of federal and Ontario inmates sentenced to terms of more than two years and less than two years, respectively. A note on methodology and statistical background can be found here.

The article provides synoptic feedback from justice experts who seek to explain the Star’s statistical findings on race and crime. The statistics show that visible minorities charged with a crime are 47 per cent less likely to be convicted, but more likely to have warnings on their files, accessible by computers in police cruisers. Even without a conviction, a record of a criminal charge can remain for years in the Canadian Police Information Center Database (CPIC), which is reportedly accessed tens of million of times a year by a multitude of enforcement agencies and potential employers. The article also indicates that visible minorities are more likely to have samples of their DNA taken.

Attention in this analysis is placed on the first statistical finding (of lower convictions for visible minorities) and the corresponding first part of the article. The focus is on the language used by the legal experts, police and the reporters when talking about race. The following offers a critical reading of how legal discourse can obscure or imagine issues as they relate to race and crime.

A Note on Numbers

The figures mentioned in the article were obtained from the RCMP- administered CPIC database. To avoid stigmatizing communities, Canadian governments and police forces have opted, traditionally, to not distribute race and crime statistics. However, according to the Star this has led to abundant misconceptions by the Canadian public on what constitutes a criminal. For this, the efforts by the Star and the series’ team are laudable as they point out the necessity to bring these issues to light. This graphic showcases how Canadians underestimate the number of people with criminal records generally, and, more specifically, how they overestimate the number of visible minorities who have committed crime. More charts and graphics are available on the Star’s website.

A Note on Language

The data from CPIC, as they relate to and record race, utilize two categories of “white” and “non-white”. Aboriginal people are lumped in the “non-white” category. From the outset, this is problematic. Trite as it may sound, there is variety in “whiteness”, and that is demonstrated by the history of Canadian immigration policies. In fact, depending on definition, “white” can be seen as a system regardless of skin colour. However, CPIC’s most impressive shortcoming is the use of the denomination of “non-white”. It is troubling enough to be “classified” in relation to someone else, let alone in negation to them.

Crowned with quotation marks initially, without critical regard, the two categories repeatedly leap from the pages. To the reporters’ credit, they replaced “non-white” with visible minorities when providing their own analysis. The problem is that this would skew the prolific CPIC data. “Non-white” is barely skin deep and does not account for the nuanced difference that visible or minority suggest.

At the very outset, a judge, who refused to be identified, said that low conviction rates for “non-whites” (his words) can be explained as “rewards”; “if the ‘non-whites’ have spent more time than ‘whites’ in pre-trial custody”. Little is said in way of explaining his account or the reasons for his anonymity. The phenomenon may reflect the commendable colour blindness of judges on the bench at crunch time when giving a verdict. But this observation is a clear incrimination of the colour-bias of the police force and pre-trial judicial procedures. The reporters do note that, after the 1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, it is no secret that “black accused, for example, are more often held without bail”.

Another explanation that should raise some eyebrows relates low conviction rates to over-charging in cases involving multiple non-white accused. The suggestion being, that gangs are predominantly “non-white”, and that over-charging “non-white” is a fact that does not seem worthy of further investigation by the reporters.

Another explanation was the over policing of poorer neighborhoods, which are largely populated by low-income people of colour. This fact should not be read in isolation as a numerical account. This situation results from Canadian immigration policy procuring skilled and educated immigrants and a Canadian labor market and settlement policy that disenfranchises “foreign” expertise, skill and education.

In his response, Toronto police chief Bill Blair, president of the Ontario Association of Chiefs of Police, dismissed the defence lawyers’ theories as “quite predictable,” for nothing more than the fact that their role is to “obfuscate” and one way to do that is to “undermine the credibility and confidence the criminal justice system would have in the police”.

While plentiful in a later article on “Solving crime? Tackle the root causes first”, a lot of the issues, whether political, systemic, social or economic, involved in such an important study were not expounded nor highlighted. The legal experts shied from connecting the larger forces at play in Canada with racial discrimination. However, it is great that the Star is taking on the task of critically reviewing the processes and effects of the Canadian Criminal Justice System. It is invaluable to have the media and the public hold the system accountable or at least expose its shortcomings and sometimes outright failings. If anything, the article should be a rallying call to question how Canadians, lawyers, police and judges react, read and interpret race, if only to have accurate information and to hopefully effect change. For in order ensure that our Justice System becomes blind to colour, we need to make sure that our legal debates and public policies are anything but.

Cross-posted from The Court

Award for Most Activist Judge Goes To…

Thu, 07 Aug 2008 18:31:31 GMT

The US Supreme Court seems to receive a lot more attention than its Canadian counterpart. In part because it plays such a decisive role in US politics. The structure of the American political system may be to blame. Comprised of the judiciary, congress, and executive, the founding fathers wanted each branch of government to maintain a [...]

Comprised of the judiciary, congress, and executive, the founding fathers wanted each branch of government to maintain a relative independence from the others, while providing the checks and balances required to uphold a functioning presidential system. This organization of separate, but not equal, offsetting political institutions was an intended and striking departure from the monarchy that spawned independence.

In contemporary America, however, the path to US political supremacy is the co-opting of each branch of government by either dominant political party. This has led to the extreme politicization of the US Supreme Court and rest of the federal judiciary. Consequently, judges are tagged as either liberal or conservative and portrayed as activist or partisan.

So, it has been a common perception, especially among conservatives, that liberal judges are the activists. However, a study by Law Professors from Harvard and the Chicago School of Law has concluded the opposite. According to their research, conservative or Republican appointed judges are in fact the most activist and partisan. From the “Washington Independent”:

“We catalogued thousands of judicial decisions — well over 20,000– to analyze this. We looked for partisan bias by studying whether and when judges vote to uphold decisions of federal agencies, in areas including environmental protection, labor, telecommunications, discrimination and occupational safety.

We investigated which members of the Supreme Court are the most partisan — in that they are more likely to vote in favor of conservative agency decisions than liberal ones…”

“We used a simple test to decide whether an agency’s decision should be counted as liberal or conservative. If a decision was challenged by a public-interest group, like the Sierra Club or Environmental Defense, we counted it as conservative. If it was challenged by a corporation, like Exxon or General Motors, we counted it as liberal…

“We wanted to know: Is it true that liberal justices are more partisan than conservatives? Who is the most partisan member of the Supreme Court? Who the most neutral?…”

And the Winner For the Most Partisan?

“Justice Clarence Thomas wins the Partisanship Award. Justice Anthony M. Kennedy wins the Neutrality Award.”

And the Most Activist Judge Award Goes To?

“To test for judicial activism and judicial restraint, we examined all the data to find which justices are most likely to strike down agency decisions…”

“Of course, there are other measures of what makes a judge “activist,” and I do not claim that our method cannot be challenged, but it is useful to offer some statistical tests, which can ensure that critics are not building their conclusions into their definitions…”

“If we ask how often the justices vote to strike down agency decisions, Scalia and Thomas, the most conservative members of the Supreme Court, show the most activist voting patterns. By contrast, the justices commonly described as “liberal” are the least activist…”

“It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia…”

Read the complete article here.

The Award for ‘Most Activist Judge’ Goes To…?

Thu, 07 Aug 2008 04:00:39 GMT

The US Supreme Court seems to receive a lot more attention than its Canadian counterpart. In part because it plays such a decisive role in US politics. The structure of the American political system may be why. Comprised of the judiciary, congress, and executive, the founding fathers wanted each branch of government to maintain a relative [...]

It is commonly perceived, especially among conservatives, that liberal judges are the activists. However, a study by Law Professors from Harvard and the Chicago Schools of Law has concluded the opposite. According to their research, conservative or Republican appointed judges are in fact the most activist and partisan. From the “Washington Independent”:

“We catalogued thousands of judicial decisions — well over 20,000– to analyze this. We looked for partisan bias by studying whether and when judges vote to uphold decisions of federal agencies, in areas including environmental protection, labor, telecommunications, discrimination and occupational safety.

We investigated which members of the Supreme Court are the most partisan — in that they are more likely to vote in favor of conservative agency decisions than liberal ones…”

“We used a simple test to decide whether an agency’s decision should be counted as liberal or conservative. If a decision was challenged by a public-interest group, like the Sierra Club or Environmental Defense, we counted it as conservative. If it was challenged by a corporation, like Exxon or General Motors, we counted it as liberal…

“We wanted to know: Is it true that liberal justices are more partisan than conservatives? Who is the most partisan member of the Supreme Court? Who the most neutral?…”