Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.
This week’s summaries concern: Extradition – Courts – Family Law – Conflict of Laws – Statutes – Trials – Damages – Master and Servant – Civil Rights – Guardian and Ward – Practice
M.M. v. Canada (Minister of Justice) 2015 SCC 62
Summary: M.M. brought her children to Canada from the State of Georgia, U.S.A., in violation of a custody order, allegedly for their safety. The State of Georgia sought her extradition to face prosecution for interstate interference with custody. …
Mwanri v. Mwanri 2015 ONCA 843
Courts – Family Law
Summary: On a variation application in a family law matter, a motions judge varied custody and spousal support, including awarding the wife a lump sum equivalent to an unpaid equalization payment. The husband/father appealed, raising a number of issues. …
Tenny v. Ontario 2015 ONCA 841
Conflict of Laws – Statutes – Trials
Summary: At issue on this appeal was whether s. 26(3) of the Provincial Offences Act, R.S.O. 1990, c. P-33, authorized service of a summons by registered mail on an individual who resided in the United States of America. …
Michela et al. v. St. Thomas of Villanova Catholic School 2015 ONCA 801
Damages – Master and Servant
Summary: The plaintiff school teachers brought a wrongful dismissal action against the defendant private school. On a motion for summary judgment, the motion judge found that the teachers were wrongfully dismissed and awarded pay in lieu of the six months’ notice that he found they should have received (2015 ONSC 15). …
Manager of Child, Youth and Family Services, Zone E (Nfld. and Lab.) v. J.T. et al. 2015 NLCA 55
Civil Rights – Family Law – Guardian and Ward – Practice
Summary: The Manager of Child, Youth and Family Services (Nfld. and Lab.) applied for an order of continuous custody respecting three children, aged six, four and three. …
When it comes to the VirtualBox settings, only 2 of the virtual settings are critical during the new VM wizard. All the others can be easily modified after the install and Linux doesn’t care too much.
When you create the disk storage for the VM, always preallocate the entire amount. DO NOT USE dynamic allocation on spinning HDDs. Be certain that you have defragmented the partition before as well. If you are using an SSD to hold the VM, then you can use sparse allocations. SSD performance is so high that there is not any downside to letting allocations grow dynamically.
Be certain to have VBox emulate an Intel PRO/1000 network card. This is in the Network Advanced Settings and not usually displayed by default. The actual card in the physical machine does not matter. Wifi or wired does not matter.
If you are running a recent Linux, use virtio drivers for both the storage controller and network card. This is more efficient than SATA or the Intel PRO/1000 network cards.
Select the ICH-based chipsets where available. Newer and more standard is better than other options.
Great article that gets into the settings for VirtualBox that you’ll need to get the maximum performance out of the VM.
High Performance and Cheap Cloud Servers Deployment – Vultr.com https://www.vultr.com/pricing/
Trying to get websites to take down pages that make you look bad is inherently problematic, but it’s even harder when your approach is to go around threatening lawyers who are well-known for not backing down in the face of threats. Florida lawyer Gary Ostrow apparently wanted to put some unfortunate things behind him, like this comical-if-it-weren’t-probably-unethical press release and some mentions of his brushes with the law.
In order to try to clean up his Internet reputation, Ostrow hired an Internet tough guy named Patrick Zarrelli, who spent yesterday threatening Mark Bennett, Scott Greenfield, Brian Tannebaum, and probably others. He’s spectacularly bad at it, and he’s just making things worse for Ostrow. For example, here is the voicemail he left with Tannebaum:
Of course, Bennett, Greenfield, and Tannebaum just posted Zarrelli’s emails and voicemails — as they should — along with a healthy dose of their own posturing and now the blawgosphere smells like a high-school locker room and I can’t breathe.
Update. It turns out Ostrow is an Internet tough guy, too:
"You have no fucking idea what's coming your way, my friend. Have a nice fucking life." —Ostrow, when asked to confirm that Zarrelli was his
— Free-Speech Dog (@MarkWBennett) October 30, 2015
I have a feeling we’ll be hearing about this for a while.
2015-11-10. Apparently, according to TechDirt, Zarrelli has filed a criminal and/or a bar complaint against me:
2015-11-30. It turns out Zarrelli did file an ethics complaint against Florida lawyer (and blogger and former podcast guest) Brian Tannebaum “and three other attorneys” (of which I assume I am one), but the Florida bar didn’t think it merited further investigation. Here’s the closeout letter:
2015-12-02. Oh look, I got one, too!
I’m sure the other lawyers mentioned above will be getting similar letters from their own state ethics boards. I probably won’t post them all here, but maybe Zarrelli will finally get tired of this after all his complaints have been ignored or rejected by the authorities.
2016-01-22. Zarrelli is a tenacious bugger, I’ll give him that. He resurrected a post on Reddit to take a swing at Keith Lee, and it turns out he is going around buying domains in order to try to ruin the reputations of those he believes have wronged him. attorneysamglover.com has a nice fireplace or something, plus a “take down policy” page that, while blank, leads me to suspect I’m going to be offered a chance to take down the site if I do something for Zarrelli.
I’m in good company, at least. He’s also got attorneyscottgreenfield.com (redirected to attorneysamglover.com for some reason), attorneykeithrlee.com, attorneykenwhite.com, and probably others.
(It should go without saying, but if you link to those websites you are playing into Zarrelli’s strategy. If you must link, include rel="nofollow" in the link HTML in order to prevent the “Google juice” from following the link.)
The saga continues …
Featured image: “Portrait of two smiling muscular men flexing biceps” from Shutterstock.
Lawyer Hires Internet Tough Guy to Silence Internet-Tough-Guy Lawyers was originally published on Lawyerist.com.
There is no doubt that our current government has been busy since November 4th and, as an immigration lawyer, the change in rhetoric (and action!) has been like a zephyr warming up the winter blues. I still have clients mention to me that they saw the Prime Minister at the airport greetings refugees. (In photos, not live. He did not grace the Winnipeg airport with his presence.) Well done, PMJT! And now Minister John McCallum announced that they will be looking to change the loan repayment rules for refugees so that they are fair. Another move in the right direction.
The above actions should not be trivialized and there are certainly positive changes to come. At some point, however, Minister McCallum and the government need to turn its collective mind to legislative immigration reform. There are many sections of the Immigration and Refugee Protection Act (IRPA), its Regulations and the Citizenship Act that simply need to be amended or repealed. Here is a list of low-hanging fruit:
The list is short, with broad public support, so it seems fitting to call it “low hanging fruit”. I believe Minister McCallum was on the Standing Committee that considered Bill C-24 so he is well-acquainted with the issues on that point. In addition, the above changes would mean significant immigration reform that would have a positive impact on many individuals, including Canadian citizens (who are often unaware of immigration law), Permanent Residents of Canada and other people. Minister McCallum can pick this fruit, win some advocates and muster up momentum to tackle some of the more thorny issues (off the top of my head: LMIA, EE, s.34(1)(f), DCOs, s.117(9)(d), etc.). I will leave my comments on these for future posts.
In most urban centres, you can’t swing a stick without hitting a social service or social service connected agency. Most of these agencies are glad to have any legal materials they can get their hands on, and most are willing to share the materials they have. Most importantly, each of these agencies serves a specific target population with specific legal needs.
Groups like SUCCESS Settlement Services in British Columbia, for example, help newcomers to Canada overcome language and cultural barriers; groups like the Atira Women’s Resource Centre help women dealing with abuse through advocacy and education. Various other social service agencies have been set up to address the needs and interests of Canada’s first nations, the LGBTTQ community, the elderly, people coping with mental illness, the homeless and the addicted, and so on. Many of these groups also have in-house legal advocacy centres, and sometimes advocates who provide legal information and assist clients with common legal tasks. Those that don’t have something as organized as this will at least have a handful of pamphlets, information sheets, printouts and web links they routinely hand out.
Although there’s rarely any shortage of pamphlets and fact sheets, the reality is that there is always some specific subject or area of the law which could be addressed or addressed in more detail. Whether that’s the case or not, legal materials do not age well and inevitably need refreshing from time to time as the law changes.
A useful and easy way to promote access to justice is to connect with a few of the social service agencies in your neighbourhood, find out where the holes are in their library of legal resources, and fill them. Most agencies will be keenly aware of where the gaps are, but if that’s not the case you could arrange to visit their offices and root through their brochure rack to identify to any stale materials that could use updating. They’ll also welcome your interest and will be happy to work with you.
What’s fun and rewarding about this sort of work is not just the opportunity to connect with a group providing important community service, but to think and write about the law in a way that addresses the unique legals needs and realities of each group’s target population. Here, for example, is a screen capture of an information sheet for parents and parents-to-be that I wrote for the BC Council for Families, directed specifically toward the LGBTTQ community:
Other work of mine has focussed on family law for youth with children (for the BC Council for Families), abused women (for the BC Society of Transition Houses), parents living in poverty (for the Salvation Army’s defunct pro bono program), people in polyamorous relationships (for the Canadian Polyamory Advocacy Association), recent immigrants (for SUCCESS Settlement Services), grandparents caring for grandchildren (for the Parent Support Services Society of BC) and other populations.
Working with community media and larger social service groups is another way to enhance access to justice. Organizations such as these generally have a broader reach and better funding, and the work you do often goes much further. Here, for example, are screen captures of an article I wrote for the online magazine LawNow and of the front cover of a booklet I wrote for the People’s Law School:
LawNow is an Edmonton-based magazine published by the fantastic Centre for Public Legal Education Alberta and aimed, at least partially, at public school teachers and youth that talks about how law relates to every day life. The People’s Law School is a public legal education organization in Vancouver that has special experience working with other community groups to create information on the law, offers its publications in multiple languages and formats, and allows bulk orders of its print material. (It’s been my experience that social service agencies like these are more than happy to share whatever resources they have, often at no cost to the recipient save for postage and copying.) Both organizations are great to work with.
If you decide to tackle this sort of project, here are some tips and suggestions.
1. Don’t reinvent the wheel. Sometimes it’s enough just to update existing materials; the group you’re working with may even have the original document in an editable format.
2. Always use plain language, and be sensitive to the fluency of your audience. Aim for a reading level the group’s target population will be comfortable with.
3. Be neutral, but be alive to and respectful of the social and political perspective of the group you are working with.
4. Always explain that the information you are providing is general information and not a substitute for proper legal advice. It is important to protect yourself and the group you are working with from liability.
5. Encourage the translation and sharing of your work, but be wary of accepting responsibility for the accuracy of a translated document unless you can verify the translation.
On this last point, my preference has been to ask to not be identified as the author of translated material; a statement to the effect that the translated material is based on my original will usually do. I’ve made exceptions to this general rule is where the organization I’m working with is clearly assuming ownership of the publication and can pay for professional translation. For example, this booklet, which Nate Prosser and I wrote for the Legal Services Society…
… has been translated into French, Chinese (simplified and traditional), Punjabi and Spanish. Here are the Punjabi and Spanish covers:
Given the size, funding and outstanding professionalism of LSS, I have few concerns about the likely accuracy of the translations it obtained.
Finally, my personal practice has always been to avoid using legal materials like these to promote myself or my firm. Firstly, social service agencies are unlikely to be terribly enthused about working with you on a marketing tool. This is not unreasonable. Second, legal materials have a great deal more public credibility when they’re not seen as vehicles for rank self-promotion. Third, your firm may not wish to be seen as adopting one particular cause or affiliation over another.
Stacks of paper, overflowing inboxes, and cluttered desks are major contributors to stress. To regain a sense of calm, you need to take control of your space. Here’s how to do it.Make Sure You Can See the Door
“Come around here like the good lad and sit facing the door. It’s not that I think there’s any danger in the castle; it’s just a habit I want you to form.” —Thufir Hawat, Dune
Much like a zebra at the watering hole, you want to know when a predator (or an angry boss or client) is on the prowl. Whenever possible, place a wall to your back with the door in your line of sight. You should also arrange your furniture so you can see who walks by and enters your office. Attorney and Feng shui master Liseanne Kelly notes that sitting with your back to the window or door can create a lot of subconscious stress and tension.
Rearranging your furniture also comes with the added bonus of reducing neck strain because you won’t have to crane to see who is coming.Deal With the Clutter
But that doesn’t mean clearing your desk entirely. Instead, Kelly advises that you classify your piles into three groups: a homeless clutter, a “woulda, shoulda, coulda” clutter, and a trash clutter.Homeless Clutter
The homeless clutter isn’t necessarily bad; you just need to find a home for it. Create files, binders, and labels to find a home for your items. Be careful not to create an overly extravagant filing system, though, because that can also cause stress. People who get too fancy with their organization systems still won’t find anything because they can’t remember how their own system works.
Fancy filing systems also mean you have to spend a lot of time putting things away. Another time suck in your time-starved world is not likely to reduce stress.“Woulda, Shoulda, Coulda” Clutter
The “would, shoulda, coulda” clutter is a bigger problem. It consists of things you meant to do but haven’t. These are things like unread bar journals or projects you have not started. For many people, this clutter causes feelings of being overwhelmed and guilt—a reminder they never get through their to-do lists.
To address this clutter, Kelly recommends creating a single repository. When it gets full, go through the whole box in a single sitting and decide whether to use it or trash it. But don’t let this clutter accumulate where you see it every time you sit down to work.Trash Clutter
This third category of clutter is generally harmful. “It [trash clutter] increases stress, wastes our time and contributes towards a feeling of being stuck,” Kelly explains. Trash clutter is all the stuff you don’t need and don’t use, but you keep anyway. Just get rid of this clutter. But Kelly cautions there may be emotional reasons you haven’t trashed this stuff yet, and it’s worth paying attention to why you are hanging onto something you don’t need anymore. “Try to identify why you thought it was necessary to keep the coffee mug you received from a court reporting firm 10 years ago, but you’ve never actually used,” she says.
If you aren’t ready to part with your trash clutter, then box it up, date the box, and stash it out of sight for three-to-six months. When you go back to the box, tossing the clutter inside is usually easy.Go Green (Literally)
Perhaps the easiest change you can make is adding plants to your workspace. Plants have been shown to reduce stress. In one study, hospital patients in rooms with indoor plants reported less stress than patients in rooms with a painting on the wall. Another study of 385 office workers similarly found that the more plants employees could see from their desks, the less sick leave they took. The same study indicated that workers who have plants on their desks are less stressed and have lower blood pressure than those who don’t.There is No Gain to Pain
Physical discomfort can contribute to the stress cycle because pain and stress are closely linked. In a vicious cycle, stress can cause pain, which itself becomes a new stressor. To break the pain-stress cycle, make sure you work in comfort. Keep key objects close by, ensure that your chair offers good lumbar support and permits your feet to comfortably rest on the floor, and place the top of your monitor just below eye-level.
Though the psychological benefits of stand-up desks have not been thoroughly researched, early adopters’ anecdotes suggest stand-up desks may reduce stress. A stand-up desk forces you to engage in stress-reducing physical activity and may encourage stress-reducing postures.Get Creative with Your Space
Customizing your space is one of the most effective ways to make it less stressful. According to the Journal of Environmental Psychology, people who design their space according to their preferences show greater satisfaction. Another study found that offices with no decorations were the worst for people’s psyches—worse even than offices where management controls the décor. Simply put, people who exert personal control over their workspaces have higher job satisfaction and less stress.
Think about what personal touches would make you feel calm, happy, and productive. Maybe a picture of your family, a lovely landscape. or a souvenir from your vacation. Consider lighting, temperature, and furniture choice. You are the person who has to work here, and taking control over your space is likely to lower your stress.Choose Colors Wisely
Colors in your environment can play a big role in creating moods. Kelly notes that, generally speaking, blue, green, and indigo help create a calmer environment. A Minnesota State University study confirmed green and white rooms provoked lower stress responses than red rooms. If you are seeking calm, try green and blue and be cautious with red—which can stimulate energy and become overpowering.
When it comes to color, Kelly cautions, the most important thing to remember is that it is extremely personal, and you should consider how you react to a particular color. Orange, for example, tends to evoke strong reactions: people either love it or hate it.Quiet, Please!
According to the National Institute for Occupational Safety and Health, background noise aggravates stress responses. Clerical workers who were exposed to open-office noise for three hours had increased levels of epinephrine, which is associated with stress response. Even worse, the study found that people in noisy environments made fewer ergonomic adjustments than they would in private, which contributed to the physical discomfort that can be an independent stressor.
Office noise is a stressor because you can’t control it. Try reintroducing control over the noise with noise-cancelling headphones or your own music. If you can, consider talking to your office mates about the value of quiet working space.
In the end, Gretchen Rubin, lawyer-turned-author of The Happiness Project, is right: one of the greatest “secrets of adulthood” really is that “outer order contributes to inner calm.” And there’s no better place to start imposing outer order than at our desks.
Originally published 2015-02-04.
Featured image: “Closeup view of a very cluttered businessman’s desk” from Shutterstock.
Let’s say that you are a good lawyer whose client did something bad. Should you snitch on them to the authorities? What if they did something really bad? What if someone offered to pay you millions of dollars if you ratted them out?
If these questions were asked on a bar exam, the answers would be clear. A good lawyer who abides by the Rules of Professional Conduct cannot disclose any information about the business or affairs of his or her client except in very limited and specified circumstances, such as where there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.
In this context, it was surprising to learn that the Ontario Securities Commission is currently considering a Whistleblower Policy designed to encourage certain individuals, including in-house counsel, to report serious securities or derivatives-related misconduct to the Commission in exchange for a financial reward of up to $5,000,000.
To be fair, the proposed policy contains a number of exclusions which appear to be designed to recognize and respect lawyers’ professional obligations. In particular, the definition of “original information” in section 1 of the proposed policy excludes, inter alia, information obtained either “(i) through a communication that was subject to solicitor-client privilege” or “(ii) in connection with the provision of legal advice to a client or employer, on whose behalf the whistleblower or the whistleblower’s firm acts or provides services.” Additionally, under section 15(1)(c) and (d), external and in-house counsel are excluded from acting as whistleblowers if they have obtained information in connection with providing legal services to, or conducting the legal representation of, the subject of the whistleblower submission, unless disclosure of that information would otherwise be permitted by a lawyer under applicable provincial or territorial barreau or law society rules.
Although the OSC should be commended for including these exclusions, they do not appear to provide adequate recognition of, and respect for, lawyers’ professional obligations for a number of reasons:
(1) One possible interpretation of the exclusions in relation to the definition of “original information” is that they exclude all information that an in-house lawyer would receive in his or her capacity as an in-house lawyer. Given this interpretation, the later position that lawyers may disclose provided doing so is in accordance with applicable provincial or territorial barreau or law society rules is inconsistent, and also risks confusing lawyers into inaccurately believing that they can disclose information;
(2) To the extent that the exclusions in relation to the definition of “original information” do not exclude all information that an in-house lawyer would receive in his or her capacity as an in-house lawyer, disclosure under the proposed policy would appear to violate a lawyer’s confidentiality obligations under the Law Society of Upper Canada’s Rules of Professional Conduct to “hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information” (Rule 3.3-1), subject to specified narrow exceptions. On this point, it is important to note that, while often conflated, solicitor-client privilege and the ethical duty of confidentiality are two distinct legal concepts, with the latter applying to a broader set of communications and information (for further discussion, see Adam M. Dodek, Solicitor-Client Privilege (Markham: LexisNexis Canada Inc., 2014) at 21-23);
(3) Although lawyer whistleblowing is justified under the narrow exceptions provided for in the Rules of Professional Conduct, insofar as the proposed policy provides financial awards in exchange for disclosure, the presence of a financial incentive risks creating a conflict with lawyers’ duty of commitment to a client’s cause, recently recognized by the Supreme Court of Canada to be a principle of fundamental justice (Canada (Attorney General) v. Federation of Law Societies of Canada,  1 SCR 401) and risks placing the lawyer in a conflict of interest with his or her client contrary to his or her fiduciary obligations and obligations under the Law Society of Upper Canada’s Rules of Professional Conduct;
(4) The further exclusions found in section 15(1) that prohibit disclosures impermissible under law society rules do not appear to adequately remediate the above issues. First, a lawyer’s ethical obligations are defined not only by law society rules but by common law provisions set out by the courts. This is particularly true in the areas of solicitor-client privilege, fiduciary obligations and conflicts of interest. Second, section 15(2) renders the exception for an in-house lawyer found in section 15(1)(d) inapplicable in three circumstances, namely where:
(i) the whistleblower has a reasonable basis to believe that disclosure of the information to the Commission is necessary to prevent the subject of the whistleblower submission from engaging in conduct that is likely to cause substantial injury to the financial interest or property of the entity or investors;
(ii) the whistleblower has a reasonable basis to believe the subject of the whistleblower submission is engaging in conduct that will impede an investigation of the misconduct; or
(iii) at least 120 days have elapsed since the whistleblower provided the information to the relevant entity’s audit committee, chief legal officer, CCO (or their functional equivalents) or the individual’s supervisor.
These nullifications conflict with a lawyer’s professional obligations for the reasons set out in (2) and (3) above.
To be sure, there is precedent for the suggestion that in-house counsel ought to be eligible for whistleblowing awards. The U.S. Securities and Exchange Commission (“SEC”) allows for lawyers to collect whistleblower awards and the exceptions found in section 15 of the OSC policy appear to mirror exceptions found in the SEC rule. Here it is worth noting several distinctions in the legal and regulatory contexts of Canada and the United States.
First, in the United States, the American Bar Association’s Model Rules of Professional Conduct permit a lawyer for an organization to disclose confidential information in cases where the lawyer knows that someone associated with the organization is acting illegally and in a manner that is likely to result in substantial injury to the organization, so long as the lawyer has first pursued internal channels to deal with the issue (see Rule 1.13). In contrast, the Law Society of Upper Canada Rules of Professional Conduct only permit a lawyer for an organization to silently withdraw from representation upon knowledge that an organization has acted, is acting or intends to act dishonestly, fraudulently, criminally or illegally (see Rule 3.2-8).
Second, in the United States, the American Bar Association’s Model Rules of Professional Conduct provide an exception to a lawyer’s ethical duty of confidentiality to prevent future financial harm (see Rule 1.6). In contrast, the Law Society of Upper Canada Rules of Professional Conduct only permit a lawyer to disclose confidential information in order to prevent death or serious bodily harm (see Rule 3.3-3).
Insofar as section 15(2) of the policy permits disclosures that might be permitted under American ethics rules but are not permitted under Canadian ethics rules, the proposed policy risks conflict with the existing law governing lawyers in our country and could create a messy situation for lawyers trying to determine how to conduct themselves in accordance with the law.
Finally, it is worth noting that the American experience with the SEC rule has not been without controversy. For example, in a 2014, an American lawyer who had worked whistleblowing cases was quoted in an article as saying:
The state bars around the country have not hesitated to punish lawyers who blow the whistle on their clients outside of the narrow circumstances permitted by the rules. And for good reason. One of the most important attributes of an attorney is his or her ability to maintain client confidentiality. If corporate counsel disclosed confidences at will, the attorney-client relationship as a whole would be greatly damaged….
Whistleblower programs can serve important policy interests, but lawyers generally should not be part of them unless they are acting ethically under the lawyer-conduct rules that have been formulated over centuries.
The OSC recently requested comment on its proposed whistleblowing policy and specifically welcomed responses to the question: Do you agree with in-house counsel being eligible for a whistleblower award? If not, why?
In a letter submitted in response to this request, myself, along with fellow legal ethics Slaw columnists, Adam Dodek, Alice Woolley, and Malcolm Mercer, along with Brent Cotter, submitted that the OSC should not include in-house counsel in its proposed whistleblowing policy for reasons including those outlined here.
Time will tell if the OSC will rethink its inclusion of in-house counsel in its proposed whistleblowing policy. If they do not, there may be some challenging and confusing times ahead for in-house counsel in Canada.
Fair Division of Rent, Goods, Credit, Fare, and Tasks – Spliddit http://www.spliddit.org/
It should be no secret that advancing technology will impact the legal field. In fact, we have warned about the implications of robot lawyers on the legal job market again and again. Now another report gives bad predictions for the legal job market due to technological advances.
According to a report by the important-sounding Wold Economic Forum (pdf), the years leading up to 2020 will be marked by disruption to existing business models and what economists euphemistically call “churn.” Major industries will see significant changes in their workforce due to technological advances in artificial intelligence, manufacturing, robotics, and so forth. The report refers to these changes as the “Fourth Industrial Revolution.” As you may have guessed, the legal industry is no exception.
The World Economic Forum figures that due to these advances the legal industry will lose about 109,000 net jobs by 2020. A handy graphic from the report:
Keep in mind that the report was authored with the world’s largest employers in mind, so it did not take solo-small firms into account. Many, if not most boutique practices will survive by providing services that are both client-focused and efficient. But while the legal industry as a whole is predicted to be on the lower end of net-job-losing industries, it is still on the losing end. Whether or not robots will truly replace lawyers, change is coming to the legal industry.
Featured image: “Human and robot hand in action of arm wrestling isolated on white background (modified)” from Shutterstock.
In Markoulakis v SNC-Lavalin Inc., the Ontario Superior Court of Justice concluded after considering the Bardal factors that long-serving employee Eftihios (Ed) Markoulakis was entitled to 27 months of common law reasonable notice following his termination from a senior role at SNC-Lavalin. The court noted that notice beyond 24 months is within the court’s discretion in exceptional cases. Clearly, this was one of those cases.Facts of the case
Markoulakis requested a summary judgment of his claim for wrongful dismissal.
He had been employed for 40.66 years by SNC-Lavalin at the time of his termination, which was the result of a shortage of work. At the time of termination, he was earning $129,272 annually as a Senior Civil Engineer and was 65 years old.
In lieu of reasonable notice, Markoulakis was paid an amount approximately equivalent to 34 weeks (eight months) compensation up to the time of the hearing of his motion.
Markoulakis argued that he should have been paid 30 months’ compensation, due to the challenges he faced finding another comparable senior-level professional position: his work experience was only with this one company; his age was 65 and employers would infer that he was going to retire shortly; the job market for senior engineers at his level in this industry was not plentiful; there were few available opportunities with a similar level of status, responsibility and compensation; and the company never offered any outplacement or career counselling.
On the other hand, SNC-Lavalin claimed that 34 weeks of compensation was within the “reasonable range” of payment in lieu of reasonable notice of termination of employment.
Although SNC-Lavalin agreed that a summary judgment motion was appropriate to resolve the determination of the period of reasonable notice, it submitted that the motion should not have been brought until the end of the notice period being claimed by Markoulakis (i.e., 30 months). The employer therefore argued that the motion should be adjourned until the end of the notice period to avoid an unfair resolution of the dispute.
This “unfairness” arises because Markoulakis has an obligation to make all reasonable attempts to mitigate his damages. Should he be successful, SNC-Lavalin’s liability for the award of pay in lieu of notice at common law would be reduced.
The court noted that even though 34 weeks had passed before the motion, it was still possible to award damages for significant notice and use the trust approach. This principle requires an employer to trust that the employee will mitigate damages during the notice period. Markoulakis would simply account for any mitigation earnings should he find any other employment during the notice period. It was important to note that SNC-Lavalin initially agreed with using this approach.
The court examined similar cases with extraordinary long-service employment records and examined the Bardal factors (the character of employment; the length of service; the age of the employee; the availability of similar employment having regard to the experience, training and qualifications of the employee; and any other relevant circumstances). The court commented that notice beyond 24 months was within the court’s discretion in exceptional cases.
Ultimately, based on the trust approach, and given Markoulakis’s circumstances, the court concluded that 27 months was the appropriate amount of notice.What can we learn from this case?
As can be seen from this case, there are times when an extraordinary notice period must be awarded and that the Bardal factors are still relevant guidelines when determining reasonable notice periods.
It was interesting to see the various approaches courts take regarding common law notice periods and potential mitigation issues. The court examined the various options that could be used in this case:
The trust approach was the best one to use under the circumstances. This is typically what happens, especially in good faith situations where an employer can trust that a terminated employee would be truthful regarding mitigation.Conclusion
A 40-year employee is an increasingly rare sight. In today’s economy, when such people find themselves out of work, they are often in a tough position: their skills may be too specialized, employers might see them as too old or too close to retirement, there may simply be too few jobs in the market that match their experience.
Employers must be sensitive to these factors when deciding whether to terminate older employees and when determining reasonable notice periods. One important lesson for employers is that offering job counselling or outplacement services may help a terminated employee find alternate work and therefore reduce the notice period.
International security authorities spent close to two years pursuing a criminal site called Darkode, where hackers could buy and sell malware meant to steal information. On the international site, which could only be accessed with a referral and a password, hackers advertised and sold their homemade software. Criminals who bought it could steal anything from Facebook follower lists to database account passwords.
The sophistication of Darkode shows just how organized hacking has become. The eventual government takedown didn’t stop the site altogether, either. Darkode was resurrected with improved security, showing that although many people were arrested in the sting, several key players were able to escape prosecution and get back to business.“Law firms are especially tempting to cyber criminals because of the value of the sensitive information stored on their networks.”
Law firms are especially tempting to cyber criminals because of the value of the sensitive information stored on their networks. A majority of law firms have experienced some sort of hacking, with law firms that handle government contracts and international business being targeted most often. About 80% of the largest 100 law firms have experienced some sort of violation. The sensitive information on lawyers’ computers can be invaluable to foreign governments, stakeholders and investors, and perhaps most worrisome, criminals.
As quickly as we build new technology to keep criminals out, hackers are working around the clock, and using sophisticated tools like Darkode to penetrate your security.Why Are Law Firms so Susceptible to Hackers?
Law firms are hesitant to go public and share information because exposing data breaches could compromise their reputation and potential clients’ trust. The problem with this lack of openness is that law firms aren’t able to learn from one other’s experiences. The FBI is currently making efforts to work privately with law firms to learn about their hacking experiences and to offer assistance when firms experience attacks.Common Hacking Tactics
The leading hacking technique used on law firms is spearfishing, a targeted attack against a specific organization. In a spearfishing approach, hackers spend a significant amount of time researching a company so they can infiltrate it. They may send personalized emails engineered to motivate people to respond quickly. The emails themselves can’t harm you, but responding to them definitely can.
Because of the sophistication and attention to detail involved in spearfishing attacks, these emails are often very believable. Law firms are also especially vulnerable to ransomware, which encrypts a firm’s information and then demands a ransom for its restoration.
Hackers also use social engineering to get into law firms’ systems. Social engineering works because the people who give out the information may think they are giving out harmless information. However, hackers use this seemingly innocuous information to get into accounts and databases. If someone asks where you went to college, you might not bat an eye before answering. However, imagine all the different accounts you’ve signed up for online. Somewhere, the security question might be “What was the mascot of your college?”
Once a hacker uses social engineering to gain access to some of your personal information, they can use it to gain your trust in spearfishing campaigns.Keeping Your Firm Secure “It is your responsibility to ensure the safety of client information.”
While it may seem like the biggest law firms would be most tempting to hackers, small firms have also become a target of enterprising thieves. Being attacked by hackers costs firms money, and large law firms invest in security. In contrast, about 90% of small and medium businesses lack any protection on their customer information and email. Because small businesses spend less on security, cybercriminals see them as easy prey.Be Vigilant
Treat your electronic information as if it were an extremely valuable asset that criminals are actively trying to take. It is. You wouldn’t leave your actual files outside for anyone to take, so be just as cautious with your electronic records.
Don’t bypass extra security measures. Use them. For example, Gmail’s two-step verification makes it much more difficult for anyone to compromise your account.Know What to Look For
Learn how to spot unauthentic emails. Keep in mind that hackers are getting smarter at making fake mail look like real mail. Look out for offers that are too good to be true, vague details or addresses, misspellings, and grammatical mistakes. Reputable companies have copy editors. Malicious hackers generally don’t. On the other hand, some of the more sophisticated hackers can afford copy editors too. A professional-looking email can still be dangerous.Stay Up to Date
Have fire drills. Because hackers are constantly evolving, so must security. Send fake phishing emails to your employees to see how they respond. One of the best things lawyers can do to avoid hacking is to stay educated about the current attack vectors, especially those used against law firms.
It is your responsibility to ensure the safety of your clients’ information.Use Common Sense
Finally, but perhaps most important, adopt the skills you use in your personal accounts in your business accounts. Even if a password does not require a lowercase and uppercase letter, symbols, and numbers, why not use them anyway? They work. Do not use the same password across all of your sites. Change your passwords often. In the end, building the most secure system in the world is pointless if the password is 1234.
Start securing your law firm’s data today with our 4-Step Computer Security Guide.$20.00 – Add to Cart Checkout Added to cart
Featured image: “Hacker in Work. High Speed Computer Keyboard Typing by Professional Hacker. Hacking the Internet Photo Concept.” from Shutterstock.
Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Andrea S. Anderson, PhD Candidate, Osgoode Hall Law School, York University, @asandrson
Excerpt: Introduction & Part III
[Footnotes omitted. They can be found in the original via the link above]
In an ideal criminal justice system, only the guilty are punished while the innocent remain free. In reality, some individuals spend upwards of ten years in prison for crimes they did not commit, or crimes that never even took place at all. The Canadian media has showcased several high-profile cases of wrongful convictions, leading to increasing public awareness of the fallibility of the criminal justice process. In Canada, wrongful convictions are usually addressed and remedied through the appellate courts. Once these judicial avenues have been exhausted, section 696.1 of the Criminal Code of Canada (the “Criminal Code”) allows the Minister of Justice to review alleged wrongful convictions. Canada’s post-conviction review process has been heavily criticized for not providing an adequate mechanism to deal with alleged miscarriages of justice after all statutory means of appeal have been exhausted. As such, the public remains unsatisfied that the issue is being addressed.
This paper presents an overview of the current post-conviction review system in Canada and examines the continued calls for improvements. It is crucial for an appropriate mechanism to detect, review, and rectify errors within the criminal justice system to exist, yet the development of such a measure has been neglected in the discourse on wrongful convictions. Since 1986, seven public commissions of inquiry have been held in Canada following cases of confirmed wrongful convictions. Most recently, the Ontario government launched a public inquiry following the revelation that pathologist Dr. Charles Smith’s discrete testimony had allegedly contributed to a number of miscarriages of justice relating to infant deaths. The Smith inquiry has drawn attention once again to the fallibility of the criminal justice system and has reignited discussion about post-conviction remedies. The manner in which causes of wrongful convictions are studied and what recommendations are presented to eradicate them are largely dependent on the effectiveness of the review process that investigates wrongful convictions. While the power of the Minister of Justice to review convictions has been amended, it has failed to challenge the status quo and does not increase public confidence in the criminal justice system. It is imperative to question whether there exists an effective alternative to section 696.1 of the Criminal Code for individuals who apply for a conviction review once they have exhausted all avenues of appeal.
This paper examines the review mechanisms in both the United States and Britain, and asks whether the role of the Minister of Justice in Canada should be replaced with an alternative system to review claims of innocence. Further, this paper argues that the Canadian government should create an independent review body to examine post-conviction claims because this approach is the best way to evaluate and address miscarriages of justice. Part I of this paper analyzes the ways that researchers, particularly in the United States, have attempted to define and identify cases of wrongful conviction. Part II describes the origins of the review process used in Canada, with a specific focus on the process that an individual who claims to have been wrongly convicted must go through when all avenues of appeal have been exhausted. Part III analyzes the limitations of Canada’s current post-conviction review system, using case illustrations to demonstrate the difficulties inherent to the review process. The paper then discusses specific post-conviction review mechanisms in the United States and Britain aimed at reducing the imprisonment and execution of the innocent. In the conclusion, this paper addresses whether the establishment of an independent review process modeled closely after the United Kingdom’s Criminal Cases Review Commission is feasible, and whether it is a more effective means for addressing miscarriages of justice in Canada, all while taking into account possible implications for Canada’s criminal justice system.
Despite the 2002 amendments to the Criminal Code, the conviction review process continues to be criticized for a variety of reasons. These criticisms can be grouped into two areas: (1) those aimed at the process itself and (2) those relating to the role of the Minister of Justice as the arbiter of conviction review. The case of Steven Truscott illustrates two of the main issues with the current review process. In 1959, 14-year old Steven Truscott was convicted of murdering 12-year-old Lynne Harper in Ontario. Truscott was initially sentenced to death, but this was commuted to life imprisonment. Truscott would serve ten years before being released on parole. During that time, his appeals against his conviction to the Ontario Court of Appeal and the Supreme Court of Canada were refused. In 2001, Truscott filed a conviction review application with the CCRG. Given the high profile nature of his case and conviction, the Minister appointed retired Justice Fred Kaufman to conduct the review. Kaufman completed his investigative report in 2004. The Minister of Justice referred the case back to the Ontario Court of Appeal. The Court of Appeal heard the case in 2006, and acquitted Truscott a year later, “but fell short of declaring him innocent.” The Court of Appeal concluded that “while it cannot be said that no jury acting judicially could reasonably convict, we are satisfied that if a new trial were possible, an acquittal would clearly be the more likely result.” In the end, it would take six years from the time Truscott’s application was received by the CCRG for the Court of Appeal to reach a decision.A. Shortcomings in Canada’s Current Review Process
Critics maintain that section 696.1 through 696.6 represent little more than a cosmetic change to preceding legislation and, as such, fall short in providing a reasonable standard of independence, fairness, efficiency, and transparency. Braiden and Brockman identify a number of problems with the post-conviction review process, such as the secrecy surrounding the process, the high cost of applying for a review, and the conflict of interest in the Minister’s role. Many of the same criticisms of the section 690 process can be reiterated for the current legislation. The literature examining this topic has pointed to six broad categories in which the current system has failed: (1) lack of independence, (2) evidentiary burden too high, (3) barriers of access, (4) potential of application to be dismissed, (5) delays, and (6) lack of transparency.i. Lack of Independence—Conflict of Interest
The most obvious objection to the current review process in Canada is the lack of institutional independence on the part of the body responsible for determining applications for review. In Canada, the Minister of Justice serves a dual role as the Attorney General, meaning that he or she also supervises the prosecution of violations of federal statutes (other than the Criminal Code) in all provinces, as well as the prosecution of all federal offences (including the Criminal Code) in the territories.
The federal Minister of Justice, as the chief lawmaker, is too close to the prosecution of a case to render an impartial decision when approached with a post-conviction review application. Having the power to grant a remedy in a case where a miscarriage of justice occurred is essentially incompatible with the role of the prosecution of crimes. On the one hand, a prosecutor must balance his or her function as an adversary with the responsibility to exercise discretion as a guardian of the public interest. Yet, at the same time this individual is asked, through the conviction review, to critically examine those very same practices undertaken by members of the same team. In those cases where a remedy is ordered by the Minister, “a member of the executive branch of government is essentially overruling the judiciary.” Philip Rosen believes that this practice reflects a prosecutorial bias on the part of the Department of Justice, resulting in a “deference to judicial determinations of guilt and an insufficiently rigorous questioning of the foundations of criminal convictions.” Traditionally, the constitutional separation of powers ensures that the executive does not interfere, nor can it be perceived as interfering with judicial processes. Through section 696.2 the Minister of Justice acts as a gatekeeper to the courts and is effectively authorized to usurp the powers of the court by refusing a reference. As noted by Braiden and Brockman, whether or not the Department of Justice officials are partial or impartial in their decisions, it is imperative that justice appears to have been achieved. Any perceived conflict of interest, whether well-founded or not, undermines the integrity of the process.ii. Evidentiary Burden
Under the 2002 amendments, applicants are still required to investigate their own wrongful convictions, with the onus falling upon them to identify the legal grounds for their application. Critics of the current review process argue that this imposes too high a threshold on the applicant. For example, the requirement that the applicant “demonstrate a reasonable basis to conclude that a miscarriage of justice likely occurred” imposes a higher standard than would be applied by the Court of Appeal on a review. Additionally, opponents criticize the requirement that applications for post-conviction review be based on ‘new’ and ‘significant’ evidence as being overly restrictive. Although the Department of Justice now has the ability to compel evidence, the onus still remains primarily on the applicants themselves to identify what evidence is necessary for their application. As stated in the Milgaard Commission:
The key to exposing wrongful convictions is having the will and the resources to go out and investigate to see whether there is anything wrong and not simply sit back and say to the applicant, well, if you can show me something new I may react to it, but if you can’t, I’m sorry, there’s nothing I can do.iii. Barriers to Access
In the current conviction review process potential applicants face a number of financial barriers. For example, the regulations provide that no application will be considered until the applicant provides all the necessary documents. Regulations governing applications for ministerial review require that they be accompanied by copies of all documents related to pre-trial, trial, and appeal proceedings. Critics maintain that this requirement is prohibitive, as these documents are often so large that they fill numerous boxes.
Currently, if individuals wish to obtain legal assistance in making an application for ministerial review, they must either pay for it themselves or apply for legal aid from the province or territory in which they live. Only some provinces and territories will consider such a request. When legal aid for post-conviction review is available, stringent criteria must be met. For example, similar to the requirement for making an application for ministerial review, an application for legal aid may not be considered unless the applicant can demonstrate, amongst other criteria, that ‘new’ and ‘significant’ evidence exists. As noted by James Bell and Kimberley Chow, the majority of applicants are incarcerated and thus “unable to conduct their own investigation.” As a result, volunteers from organizations such as Association in Defence of the Wrongly Convicted (“AIDWYC”) and other innocence projects like those found at Canadian law schools are often left with the burden of uncovering new evidence and providing legal assistance, which hardly seems fair or just.
From April 2005 to March 2007, the CCRG received fifty-seven applications, completed five investigations, and made three decisions: one case was dismissed and two were referred to the Court of Appeal. These figures do not represent the actual incidences of wrongful convictions in Canada. According to AIDWYC, “the Minister intervenes in about one percent of all applications.” While AIDWYC’s report admitted that this low number of decisions reflects the integrity of the applications, it also demonstrates that the process may not be the most effective means of addressing wrongful convictions. Bell and Chow note that long-held criticisms of the ministerial review process center around lack of accountability and expediency.iv. Delays
Reviews and investigations conducted by the CCRG are characterized by delays. According to Julian Roy and Elizabeth Widner, “the current review process makes no provision for ensuring that applications for review are considered and determined on a timely basis.” The experience of AIDWYC demonstrates that applications can take years to process, with the applicant being largely uninformed during the process. Statistics reported by the Minister in the 2013 Annual Report show that of the twelve applications received at the preliminary assessment, only three were completed during the reporting period (April 1, 2012 – March 31, 2013). During this period the CCRG only rendered a decision in one case. While the CCRG defends these delays by claiming that investigations take time, critics argue that these delays are inexcusable. Further, even when investigations have been completed and recommendations and advice have been provided to the Minister, decisions may take up to an additional five years to be delivered.v. The Potential of the Application to be Dismissed
According to AIDWYC, the preliminary assessment stage of the current conviction review process is also a significant concern. AIDWYC argues that the requirement that the applicant demonstrate to the satisfaction of the Minster that there “may be a reasonable basis to conclude that a miscarriage of justice likely occurred” puts the applicant in a catch 22 situation, in that “it is almost inconceivable that an unrepresented applicant, from his prison cell, could meet any such standard prior to some form of investigation (however modest) being conducted.” While the disclosure of the investigation report provides information to the applicant, the applicant is still not provided copies of the CCRG’s final submission to the Minister. The applicant is provided with facts, but is not fully informed of the findings, issues, and considerations on which the Minister proposes to make a decision.vi. Transparency
Finally, Kerry Scullion notes that, aside from the Criminal Code and the regulations, there are no publicly accessible guidelines or rules that prescribe how an application is to be considered, such as what documents ought to be provided for the Minister’s consideration, or how evidence is considered and against what standard. The lack of legislative guidelines allows the discretion of the Minister to remain private and unscrutinized. These problems with transparency in the review process are compounded by the fact that the Minister’s decisions are not made public. While annual reports to Parliament do provide some new information that is useful for statistical analysis, they reveal only a limited amount of statistical information. The essence of section 690 remains; what few changes have been made are primarily superficial—there has been little substantive change in post-conviction review procedures, and as such it is not surprising that there continue to be calls for reform in Canada.B. Recommendations
This overview of the post-conviction review process as a last resort for the wrongfully convicted in Canada serves to illustrate its many challenges, deficits, and difficulties. With sufficient time and resources, individuals can apply for review but, as the past has indicated, the chances of being granted a remedy are remote. The current review process is cumbersome, onerous, and lengthy, rendering it inaccessible and ultimately ineffective for most wrongfully convicted individuals seeking redress. As a result, it is important to inquire whether an alternative method to effectively address post-conviction review in Canada exists.i. Post-Conviction Review Mechanisms in Other Jurisdictions
a. The American Experience
In 2004, the Advancing Justice Through DNA Technology Act and the Innocence Protection Act (“IPA”) were included within a bill called the Justice for All Act of 2004. The IPA is a package of criminal justice reforms intended to reduce the risk of innocent persons being executed by the State and ensure that potentially wrongfully convicted inmates have access to evidence that can establish their innocence.
b. Post-Conviction DNA Testing for Qualified Inmates
In federal cases, the IPA allows an inmate “under a sentence of imprisonment or a sentence of death” to apply for post-conviction DNA testing. The court orders DNA testing if it finds that the specific requirements of section 411(a) of the IPA have been met. A motion for post-conviction DNA testing must be filed within five years after the enactment of the IPA or within three years of the applicant’s conviction, whichever comes later. After this period, an inmate can apply for such testing if he or she can demonstrate reason for failing to apply within the required time period. If the results of the DNA testing reveal that the applicant was the true source of DNA found at the crime scene, the court will consider whether the applicant’s assertion of actual innocence was false. If the applicant has made false assertions, then he or she will be sentenced to a term of imprisonment of not less than three years. On the other hand, if the DNA testing results establish that the applicant was innocent, he or she may file a motion for a new trial or a new sentencing hearing, as appropriate. The court shall grant the motion if the DNA results, along with all other evidence, establishes that a new trial would likely produce an acquittal of the offense, or entitle “the applicant to a reduced sentence” or “new sentencing proceedings.”
Section 411 of the IPA also ensures that biological evidence in federal cases will not be destroyed while the individual is imprisoned. However, it is important to note that the evidence could be destroyed if the defendant “knowingly and voluntarily waived the right to request DNA testing” in a court proceeding, or if the court previously denied a request or motion for DNA testing. It could also be destroyed if the defendant failed to file a motion for DNA testing after being informed that the biological evidence could be destroyed. These requirements demonstrate that only certain prisoners are eligible to apply for and obtain post-conviction DNA testing.
Section 412 of the IPA established the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program to help states pay for post-conviction DNA testing. As an incentive for states to consider claims of actual innocence, section 413 of the IPA awards grants to eligible entities in states that meet certain requirements. Under a particular state statute, rule, or regulation, the state must provide reasonable procedures for providing post-conviction DNA testing and preserving biological evidence while a person is imprisoned. If a state has already adopted these procedures through legislation enacted before the IPA, it will automatically qualify for these grants. Likewise, the IPA authorizes the Attorney General to award grants to improve the ability of prosecutors in state capital cases.
c. Improving the Quality of Counsel
The IPA also attempts to fix the issue of ineffective counsel, one of the documented causes of wrongful convictions in the United States. Some commentators argue that the IPA takes a “proactive approach in addressing wrongful convictions by aiming to provide better legal representation” to defendants in state capital cases. Section 421 awards grants to states to “establish, implement, or improve an effective system for providing competent legal representation […] to indigents charged with an offence subject to capital punishment.” Michael Kleinert illustrates that this system may either be a public defender program or an entity that has jurisdiction in criminal cases. This system must establish qualifications for lawyers, maintain a roster of competent counsel, perform and approve specialized training programs, and monitor the performance of these lawyers.
In addition, the entity or public defender program must “ensure funding for the full cost of competent legal representation by the defense team and outside experts selected by counsel.”
d. Criticism of the IPA
Critics of post-conviction testing note that not every person in the prison system will have the opportunity to apply for such DNA testing. To date, 47 states have adopted post-conviction DNA testing statutes; some have imposed additional limitations that hinder applicants from obtaining testing, such as prohibiting applications from those (1) that have plead guilty; (2) that have admitted to guilt in order to obtain parole; (3) whose attorneys did not request testing; (4) convicted of crimes for which relief could be sought; (5) who are sentenced to death; (6) who are able to establish a likelihood rather than a possibility the testing will be exculpatory; (7) where there are clear and convincing evidence that the new results would be significantly more discriminating than the results of previous testing; or (8) that fail to provide adequate safeguards to preserve biological evidence. For instance, Alabama and Kentucky only allow DNA testing in capital cases, and Pennsylvania only allows DNA testing for individuals who were convicted before 1995.
Further, commentators have maintained that the federal statute is limited to cases in which identification was an issue at trial, and contains chain-of-custody requirements that may be impossible to meet if interpreted literally. A few states even retain a statute of limitations in DNA testing. For example, some of the states have statutes of limitations of six months or less on motions to present newly discovered evidence of innocence. Such statutes severely “limit the ability of a person believed to be wrongly convicted to gain access to any evidence, let alone DNA, to aid in exonerations.” Finally, the full effects of the financial assistance depends on numerous factors, including whether concerns over state sovereignty would impact the full utilization of the grant program, and whether the funds allocated to the grant program would be sufficient to cover the requests being submitted by the states.
In 2009, the United States Supreme Court heard a claim by a convict seeking DNA testing. The convict was William Osborne, who was convicted in Alaska in 1993 of crimes resulting from a sexual assault, kidnapping, and assault. After losing his appeal, he sought post-conviction DNA testing of materials from the crime scene using new DNA technology that, he argued, could prove his innocence. After seeking DNA testing in the state courts with no success, Osborne filed a complaint in 2003 in the federal district court stating that the due process clause of the Fourteenth Amendment entitled him to obtain DNA testing that could provide profound evidence of his innocence. The state of Alaska refused to permit the testing under its general post-conviction statute because DNA testing had been available, Osborne had admitted guilt to some of the crimes in an application for parole, and no constitutional right to obtain DNA post-conviction testing existed.
In District Attorney’s Office v Osborne (“Osborne”), the Supreme Court held in a five against four decision that there “is no constitutional right to obtain post-conviction DNA testing, and that Alaska’s procedure for DNA testing did not violate due process.” The Court did overcome its concerns about the effect of DNA on finality, declaring “the availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” In the majority opinion, “the Supreme Court ultimately decided that the finality of a conviction is more important than making sure the right person was convicted.” In effect, the Osborne decision concluded that the “floodgates would open to frivolous innocence claims if a right to testing was recognized.” As noted by American law professor Myrna Raeder, “the Osborne majority ceded DNA post-conviction relief to state and federal legislators, claiming for the most part they had already enacted statutes with varying requirements to provide relief.” In doing so, the Court held that the federal IPA was a model for post-conviction procedures regarding access to DNA testing. In states without adequate laws granting DNA testing, the federal court can be the last resort, as in Mr. Osborne’s case. Peter Neufeld, cofounder of the Innocence Project in the United States, has argued that the Osborne decision would not greatly impact most federal and state inmates in obtaining testing under existing DNA statutes. However, Neufeld does admit that the ruling would affect a small number of people who are denied testing in state courts, and claimed that “more innocent people will languish in prison.”ii. The United Kingdom
a. Introduction to the Criminal Cases Review Commission
The Criminal Cases Review Commission (the “Commission” or “CCRC”) was established by the British Parliament under the Criminal Appeal Act of 1995 following recommendations from the 1993 Royal Commission on Criminal Justice (the “Royal Commission”), a royal commission charged with investigating how effectively the British criminal justice system secured convictions of the guilty while ensuring acquittals of the innocent. The Criminal Appeal Act established the CCRC “as an executive Non-Departmental Public Body” to consider applications for “review of the convictions of those who believe they have either been wrongly found guilty of a criminal offense, or wrongly sentenced.” Prior to 1995, the Home Secretary had the power to refer cases to the Court of Appeal. The problems associated with the Home Secretary’s referral power are well documented and calls came as early as the 1970s to establish an independent tribunal to reopen cases. These calls continued throughout the 1980s. The high-profile wrongful conviction cases of the Guildford Four and the Birmingham Six served as catalysts for change in the United Kingdom. The Royal Commission recommended that the Home Secretary’s power to refer cases back to the Court of Appeal be removed and that a new body should be formed. This new body was to consider alleged miscarriages of justice, supervise their investigation if further inquiries were needed, and refer appropriate cases to the Court of Appeal.
By its own account, the CCRC is an independent body charged with “impartial, open, and accountable investigation of suspected miscarriages of justice in both convictions and sentencing in England, Scotland, Wales, and Northern Ireland.” The depth of the Commission’s investigative powers enables it to actively investigate miscarriage of justice claims before a decision is made on whether or not to refer the case to the appeal courts. The Commission, which rarely accepts cases that have not been previously appealed, is not restricted to innocence-based applications.
In summary, the CCRC’s primary functions are (1) to consider suspected miscarriages of justice, (2) to arrange for their investigation where appropriate, and (3) to refer cases to the Court of Appeal in the event that the investigation revealed matters that ought to be considered further by the courts. The CCRC Members principally partake “in policymaking and final decision-making on references of cases” and “in providing expertise and guidance to Case Review Managers.” Further, the CCRC, as envisioned by the Royal Commission and established by Parliament, is not “within court structure,” and is not “empowered to take judicial decisions that are properly matters for the Court of Appeal” or “to change a decision made by a court.”
One of the main reasons to establish a new review body to replace the Home Office was the need for investigations that could be carried out independently of the executive. To ensure this, the Criminal Appeal Act provides that the CCRC “shall not be regarded as the servant or agent of the Crown.” However, the Commission’s connection with the Government is not completely severed, in that its eleven Members are appointed by the Queen on the recommendation of the Prime Minister. The Commission relies on the Ministry of Justice for resources and, additionally, the Minister of Justice sets the employment terms and conditions of the Commission’s Members.
b. Investigation and Review by the CCRC
Anyone claiming to have experienced a wrongful conviction may apply to the CCRC for case review, with or without the aid of a solicitor. A convicted defendant seeking a CCRC review can obtain a straightforward, standardized application form that the CCRC has made available. Upon application, the CCRC “examine[s] each case impartially and decide[s] whether it would have a real possibility of succeeding in the Court of Appeal.” If the CCRC determines that a case is eligible for review, the case is ranked “regularly in priority for allocation of caseworkers, taking into account the human costs of delay, the effective use of resources, and the date of receipt” as well as “whether or not the applicant is in custody, and the impact of the case on public confidence in the criminal justice system.” The CCRC has its own investigatory power and can appoint experts to assist in the investigations of cases and examinations of evidence. It can require any British public body to preserve materials under the public body’s control. The Commission conducts some inquiries through its own staff and will then inform the applicant of its findings and accept the applicant’s comment on the investigation. The CCRC will review the case in light of all the information before it, and the “decision on whether or not to refer the case to an appeal court will then be made by three or more Commission Members.”
Eligibility for review depends on whether the application arises from a conviction in England, Wales, or Northern Ireland. Only in exceptional circumstances can a case be referred without the applicant having exhausted the normal appeal process. Previously, the Home Secretary could refer cases that he or she believed met the criteria, but the Commission’s referral power is much more restrictive.
c. Decisions by the CCRC
Once Case Review Managers have completed their reviews, cases are passed to the CCRC members to decide whether the cases should be referred for appeal. The CCRC may make a referral, under section 13 of the Criminal Appeal Act, if there is a real possibility that the conviction or sentence would not be upheld. The real possibility must arise from arguments or evidence not raised during the trial, at appeal, or due to exceptional circumstances. These exceptional circumstances are defined on a case-by-case basis. The CCRC will also make a referral if “an appeal against the conviction has been determined or leave to appeal against it has been refused.” When deciding whether to refer a case, the CCRC is required to consider representations made by the applicant, his or her representatives, the Government or other outside agencies or public or private bodies, and “any other matters which appear to the Commission to be relevant.” The CCRC is required to give reasons for its decision on whether or not to refer a case for appeal. The CCRC’s involvement in a case concludes after a referral. Following the CCRC’s referral of a conviction or sentence to the Court of Appeal, the applicants and their legal representatives assume responsibility for arguing the case before the Court of Appeal. In the design of its procedures, the CCRC separated the review and decision-making functions to ensure that independence and objectivity are consistent throughout the process. This separation means that the Member assigned to assist the Case Review Manager with the review will not be involved in making the decision.
d. Criticism of the CCRC
For critics of the administration of justice in Britain, the CCRC signaled parliamentary acknowledgement of the failure of due process. That said, evaluations of the efficacy of the CCRC have raised serious concerns. In their critical assessments of the CCRC, Robert Schehr and Lynne Weathered identify the following key characteristics that generate serious impediments to the CCRC’s ability to perform its oversight role: (1) the subordinate structural relationship of the CCRC to the Court of Appeal, (2) no objective determination of what constitutes a thorough investigation, (3) the role of caseworkers in screening viable cases of review, (4) the limited amount of time for case review, (5) limited resources to fully investigate cases and over-reliance on petitioners to generate grounds for appeal, and (6) limitations on case investigation to meet fresh evidence standards. Further, some commentators note that, while “the chances of wrongs being righted has increased with the arrival of the CCRC, many innocent inmates may be forced to remain in jail because their cases simply do not qualify for CCRC consideration due, for example, to lack of any new evidence.” Others have severely criticized the CCRC for its slow progress and for being “too meticulous” and setting its standards too high. Research shows that when the CCRC make the decision to move forward with an investigation, it typically takes three years to complete the case. The CCRC is essentially the lone gateway to the Court of Appeal. The CCRC has also been heavily criticized for not being independent of the Court of Appeal, in order to focus on whether applicants are innocent as intended by the Royal Commission that recommended it be established. CCRC critics maintain that it does not look at guilt or innocence; rather it considers whether it is a possibility that the Court of Appeal will find a conviction unsafe. In turn, the Court of Appeal hears new evidence offered by the appellant and considers whether, if a jury had heard it, the individual would have been convicted. Further, a single Commissioner is, in many cases, the ultimate decision maker regarding an applicant’s case. Given this reality, the composition of the Commission and the caseworkers, along with any personal biases the members may bring to their position, may be highly relevant to the outcome of the applicant’s case. Finally, some critics argue that the single greatest challenge facing the CCRC is a lack of adequate funding and resources.C. What is the Best Model for Canada?
The Canadian experience demonstrates an inability to effectively identify, investigate, and challenge alleged miscarriage of justice by depending on the police, prosecutors, and the courts alone. While DNA evidence has been used successfully in securing post‑conviction exonerations in the United States, the vast majority of Canadian criminal cases and claims of miscarriages of justice are not subjected to DNA analysis. Given the reluctance of the courts to upset the finality of a decision, the Canadian system could benefit greatly by turning to an outside institutions to review claims of miscarriage of justice.i. Calls for an Independent Review Body
The idea to introduce an independent post-conviction review commission in Canada is not novel. While section 690 was replaced with sections 696.1 – 696.6, recommendations that a truly independent review body be created to replace the power of the Attorney General have gone unheeded. There has been extensive lobbying for the establishment of an independent body to undertake post-conviction review, particularly by AIDWYC and the Canadian Bar Association, as well as recommendations from commissions of inquiry. In 1989, the Commissioners in the Marshall Inquiry wrote:
Although it is important to note that the RCMP’s 1982 investigation did lead to Marshall being freed from prison – implying that one cannot always assume that a police force will not be able or willing to conduct a proper investigation into allegations of wrongful conviction – we believe that most citizens would feel more comfortable taking this sort of information, at least initially, to a person or body they do not consider to be part of the criminal justice system, or directly or indirectly involved in the original investigation. We believe that it makes more sense to expect citizens to provide information to a body that would not seem to have any sort of vested interest.
In order for such an independent body to function effectively, people must not only know about that body’s existence and role, but also have confidence that such a body has the power and the resources to conduct a thorough reinvestigation of the conviction. There are two issues here. The first is the constitution of a reinvestigative body and the second, the nature of its powers.
The Marshall Inquiry made two recommendations, inter alia:
We recommend that the provincial Attorney General commence discussions with the federal Minister of Justice and the other provincial Attorney’s General with a view constituting an independent review mechanism – an individual or body – to facilitate the reinvestigation of alleged cases of wrongful conviction.
We recommend that this review body have investigative power so it may have complete and full access to any and all documents and materials required in any particular case, and that it have coercive power so witnesses can be compelled to provide information.
Similarly, Commissioner Kaufman made the following recommendation in the 1998 Commission on Proceedings of Guy Paul Morin:
The Government of Canada should study the advisability of the creation, by statute, of a criminal case review board to replace or supplement those powers currently exercised by the federal Minister of Justice.
Further, in 2001 following Commissioner Cory’s report of the Inquiry Regarding Thomas Sophonow, the following recommendation was made:
I recommend that, in the future, there should be a completely independent entity established which can effectively, efficiently, and quickly review cases in which wrongful conviction is alleged. In the United Kingdom, an excellent model exists for such an institution. I hope that steps are taken to consider the establishment of a similar institution in Canada.ii. CCRC—A Model for Canada?
The section 696.1 process has been criticized for its delay and the burdens imposed on the applicants. Despite recommendations by public inquiries, the requirement that the Minister of Justice alone has the power to re-open a case after all appeals have been exhausted remains. Regardless of the approach adopted, there are compelling reasons to believe that an independent review body that is knowledgeable in cases of wrongful convictions, has special administrative powers, and possesses expertise in reviewing claims is a far more effective way of addressing claims of miscarriages of justice than the current model. While there has been criticism against the CCRC, a review of the model illustrates that there are key elements that a Canadian independent review body needs to include: (1) a committee with the power to investigate cases that raise questions of factual innocence and make policy recommendations to correct structural errors; (2) the power to order investigations in cases where factual innocence is alleged; (3) the power to subpoena documents and people, compel testimony, and bring civil suits against those who refuse their requests; (4) to allow factual records generated by their investigation to become part of the case file; (5) transparency, accessibility, and accountability; and (6) mandatory filing of public reports of their findings and recommendations, with those government bodies named in the reports providing a timely response to the findings. In addition, members of the body must represent all sides of the criminal justice system as well as the diversity of the public in order to achieve the goal of improving public confidence. Further, annual reports, budgetary information, and a website should be available to the public.iii. Accessibility
The CCRC demonstrates a commitment to being accessible to its applicants, consistent with an inquisitorial, proactive approach to the identification and referral of possible wrongful convictions. There is no requirement that the applicant gather all of the necessary documentation before an application will be considered; commission staff take on the responsibility of assembling the appeal file, transcripts, and other documentations.
The statutory threshold test for the referral of an application ensures that the Court of Appeal reviews all possible wrongful convictions. There is no requirement to demonstrate a basis for a likely miscarriage of justice, or that the applicant is factually innocent; rather, an inference is made that “there is a real possibility that the conviction, verdict, finding or sentence would be upheld.” The low threshold test is consistent with an intention to seek out allegations of wrongful conviction, and to ensure that they are reviewed by the courts where there is a real possibility of success. It specifically contemplates the referral of cases that will not ultimately succeed. For example, addressing the cost of a new independent commission, AIDWYC asserts that the financial cost “would be small compared with the enhanced confidence in the administration of justice that would result from the creation of a Commission.” Further, the Commission’s work, insofar as it uncovers cases of wrongful conviction, would save considerable public funds that would otherwise be spent in the continued imprisonment of the wrongly convicted person.iv. Fairness
The CCRC has devised a formal and transparent process that governs every stage of the case review process. Each application is assigned to a Case Manager, who is directed and supervised by a Commissioner, and the review follows a written investigation plan. There is an internal process for prioritizing case files to ensure their timely completion and identifying for special attention those cases that have not been subject to a determination within six months.D. Benefits of an Independent Review Process
Despite the public awareness of wrongful conviction cases in Canada and the calls by advocates and organizations for an independent body to investigate such cases, the Minister of Justice has determined that “an independent body for conviction review [is] not needed in Canada.” The government has rejected calls for such a model, arguing that transferring the job of reviewing alleged miscarriages of justice to an independent commission, similar to the CCRC, is not necessary because the Canadian Minister of Justice does not have the same conflict of interest problem as did the UK Home Secretary because “in Canada the vast majority of criminal prosecutions are conducted by the provinces.” Further, with the appointment of an independent Special Advisor to oversee the review process and provide advice directly to the Minister, the government has rejected calls for an independent commission.
Former Minster McLellan concluded that “the ultimate decision-making authority in criminal conviction review should remain with the federal Minister of Justice, who is accountable to Parliament and the people of Canada.” The Minister of Justice has a stake in upholding criminal convictions in order to preserve the integrity of the country’s judicial institutions and to ensure public confidence that the government is capable of ensuring justice in society. However, the continued discoveries of wrongful convictions undermine the justice system. The government has a vested interest in seeing that convictions are sustained to promote the legitimacy of the justice system. In general, an independent review body would not have the same vested interest as the government in maintaining a conviction.
An independent review process in Canada would play a vital role in restoring public confidence in the criminal justice system that has been shaken by the number of wrongful convictions. In addition, it is plausible that this proposed process may serve as a form of deterrence against misconduct by officials within the criminal justice system. An independent body also has the potential of becoming a repository of knowledge concerning the systemic causes of wrongful conviction, and a resource for those seeking to improve the criminal justice system. An independent review commission could also alleviate the hurdles applicants face in establishing the basis for a section 696.1 review. AIDWYC contends that Canadian cases of alleged wrongful convictions should “not [be] examined from the adversarial perspective of trying to show that the convicted person was rightfully treated by the court system” as occurs at present through the Minister of Justice’s current practice under section 696.1147 Rather, AIDWYC argues that an independent review board like CCRC should “undertake a fresh review without bias.”
AIDWYC suggests that an independent review body “would remove all political considerations from the review of applications submitted to it” and eliminate “the incompatible roles of the Minister as Chief Prosecutor and as the person to review wrongful convictions.” The independent body would also offer an opportunity for a thorough investigation and review of many cases for which an investigation is not provided on appeal or post-conviction review due to appellate courts’ procedural bars and emphasis on legal and procedural errors instead of factual errors. The creation of an independent review body challenges the status quo and could earn the respect of the courts, the prosecuting authorities, and the general public.
Last week, three Powerball ticket holders won the record $1.6 billion jackpot. Lottery winners are advised to hire an attorney to protect their money from scammers, opportunists and tax collectors. Here are some of the common issues that lottery winners and overnight millionaires will face.Ticket Disputes
A large jackpot involving multiple people can lead to disputes. They can be difficult to resolve since many of them are unwritten, informal agreements. For example, let’s say I gave a friend $20 to buy 10 quick pick lottery tickets. He purchases 10 tickets for me and 10 tickets for himself but holds on to the tickets until after the winning numbers are announced. One of these 20 tickets had the winning number. My “friend” tells me that my ticket lost while keeping the winning ticket for himself. Similarly, the manager of a lottery pool holding all of the tickets may decide to run off with the money and deny the existence of the pool, betting that the others cannot afford an attorney.Anonymity
Most states require the names of winners to be public to show that the lottery system is not rigged. While some may relish the attention, most winners will want to disappear until the hype dies down. They will want to know how to establish residences using other people’s names, business entities or pseudonyms. And they will have to do it in a way that will avoid or frustrate private investigators.Taxes
Lottery winnings are taxable income to the federal government. But some states, such as Florida, have no state income tax. Also, some states, like California exempt lottery winnings from state income tax. They will want to know if they owe any additional taxes at the end of the year, the tax consequences of taking the lump sum versus the annuity, and how to take advantage of favorable tax laws previously unavailable to them. If the ticket holders are senior citizens, then they may want to consider letting their children claim a portion of the winnings in order to avoid estate taxes.Entity Formation
Lottery winners will need legal assistance determining whether an LLC, corporation, or a non-profit tax-exempt entity is appropriate for whatever venture or cause they wish to pursue. The proper entity will minimize taxes, protect their assets, and help them maintain control.Estate Planning
Lottery winners will purchase businesses, invest in real estate, and other assets. So they will need to set up an estate plan to ensure these assets are managed by people they can trust and distribute to beneficiaries in case of death or disability.Employment Issues
While some winners will quit their day job, others will want to continue working. Unfortunately, they will become lawsuit magnets from clients and co-workers. Employers and their insurance companies have a strong financial incentive to point the blame to them in order to eliminate or reduce damages. Lottery winners should be advised about the risks of continuing to work, what steps they should take to protect themselves, and whether there are any statutory employee indemnification laws.Frivolous Lawsuits
Lottery winners will eventually face a frivolous lawsuit. Most of these lawsuits will be pro se with statute of limitations issues, bogus causes of action, and other procedural defects. Others may have interesting but audacious theories. For example, an ex-spouse might sue for a share of the winnings because three of the winning numbers—4, 27, and 10—happens to coincide with the anniversary of their divorce (April 27, 2010). Most of these lawsuits will hinge on the hope that it will settle quickly. To deter scammers, advise them to publicly announce the hiring of an attorney who is an expert in malicious prosecution and abuse of process laws.
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Several years ago on this site, Mitch Kowalski posed a question that merits another look. In his post “What if the western provinces saved the profession?”, Mitch asked:
What would happen if a group of western provinces (Alberta, Saskatchewan and Manitoba for example) decided to strike out on their own and allow ABS-type structures in their jurisdictions?
His conclusion was that “…once the snowball starts rolling in any province it will be unstoppable.”
Well, it’s winter on the prairies and guess what? It’s snowing.
The law societies in Manitoba, Saskatchewan and Alberta have recently released a discussion paper on a number of potential innovations in the regulation of lawyers in these jurisdictions. The paper, Innovating Regulation, tackles three main topics: entity regulation, compliance based regulation and regulation of alternate business structures.
The release of the discussion paper is interesting but hardly newsworthy of itself, given similar discussions are already ongoing across the country.
What is worth taking notice of here is the collaborative approach. Three law societies are working together because, in their view:
…these complex issues are best tackled collaboratively.
National lawyer mobility, combined with the proliferation of national and global law firms, drives the need to ensure consistency in approach to legal regulation across Canada. It is impractical to have different regimes across provinces and remain effective.
We are a large geographic country with a small population and, compared to other jurisdictions where regulatory reform is occurring, we have relatively few lawyers. This reality means that our resources are limited and it is strategically wise to share them. It is also our view that a diversity of perspectives from different jurisdictions will achieve better, more effective outcomes.
For these reasons, the law societies of Alberta, Manitoba and Saskatchewan are doing this work together. We are also keeping a close eye on developments across the country, particularly in Nova Scotia, Ontario and British Columbia where work is ongoing.
…This is not a revolution in regulation, but rather an evolution that will be guided by our duty to protect the public interest.
It’s not unheard of for these law societies to collaborate. The CPLED program is an excellent example of the good work that can be accomplished through such an approach.
This leaves me feeling rather optimistic about the possibilities in terms of the future of legal profession regulation in the prairie provinces. At the very least, it gives me a reason to hope the snow doesn’t melt too soon.
“[T]he Courts Administration budget represents a mere 0.54% of the total Ontario Government budget for the year, a percentage which has remained relatively constant for the past number of years.” – Ontario Civil Justice Review, 1996
Do you know how much the Ontario government spends on the justice system a year? Do you know precisely how it is allocated? Could you state with confidence how much of it goes to: judges’ salaries, office space, assistants, maintaining courthouses, registrars, court reporters, clerks, librarians, legal counsel, and so on? Could you state with confidence how much is budgeted for the different regions within Ontario?
We should be able to type into Google keywords and be taken directly to a clear breakdown of the province’s budget for the courts. We should be able to know exactly how much is spent, where precisely it goes, and when the funds come into effect. The justice system is indispensable to a functioning democracy.
I suspect that times remain similar to 1996, where only half of a percent of the total Ontario government’s yearly budget is spent on the administration of the courts. However, finding a detailed account remains difficult, if not impossible, even though we are entitled to know precisely how funds are divided. The 2014-2015 Ministry Results-Based Plan is insufficiently detailed. The operating and capital summary provides figures for things like “Court Services” and “Legal Services” and merely states that the overall Ministry Total Operating and Capital Assets is $267,266,829. It does not explain with precision where monies are being allocated.
How is it okay that the latest article critically analyzing spending on the court system on the Ministry of Attorney General’s website is from 1996? 20 years ago. We deserve better. We deserve full and detailed disclosure on the Court Administration budget.
Further, how is it okay that the provincial government allocates about half of a percent of its total yearly budget to the administration of the courts, a pillar of our democracy?