Nova Scotia aims to improve sex assault prosecutions with specialized Crowns

Nova Scotia aims to improve sex assault prosecutions with specialized Crowns
Halifax defence lawyer Tom Singleton says he hopes the new positions will increase efficiency in the Public Prosecution Service.

Nova Scotia has hired two Crown attorneys to specialize in sexual assault prosecutions. The new hires will provide training to other Crown attorneys and develop research to enhance the performance in the prosecution of sexual violence cases.

Chris Hansen, director of communications for Nova Scotia’s Public Prosecution Service, says the unique characteristics of sexual assault cases led the NSPPS to seek specialists with an academic and professional background in women’s studies and sexual violence.

“We have 95 Crown attorneys across the province. Virtually all the 95 Crown attorneys do sexual assault prosecutions, but as you can appreciate, there are a number of challenges when prosecuting a sexual assault. It’s an offence like no other,” she says.

In 2016, there were 38 sexual assault convictions and 63 other sexual offence convictions in Nova Scotia.

Danielle Fostey and Constance MacIsaac were appointed by the Public Prosecution Service as the specialized sexual assault prosecutors.

MacIsaac has two bachelors of Arts, one in sociology and the other in gender and women’s studies, and she was co-chairwoman of Dalhousie’s Association of Women and the Law while she attended law school. She has worked with the Nova Scotia Transition House Association and the Elizabeth Fry Society of Greater Vancouver, both organizations that provide services to victims of sexual violence.

Fostey graduated from Queen’s University Law School in 2013 and was appointed a Crown prosecutor in Fort McMurray, Alta., where she was the lead Crown attorney on domestic violence, according to a Public Prosecution Service media release.

Hansen says Fostey and MacIsaac will provide legal education in sexual assault, will research best practices and act as prosecutors in sexual assault cases.

Halifax defence lawyer Tom Singleton says he hopes the new hires will increase efficiency in the Public Prosecution Service. He says that a single Crown attorney is not assigned to sexual assault cases early enough, which creates problems for disclosure. He says this occurs particularly with disclosure of highly vetted files from the police, causing delays because defence counsel are having to make multiple disclosure requests, which take weeks and sometimes months to fulfil.

He says evidence that is sent to the RCMP forensics lab in Ottawa takes a long time to return, further holding up the process.

“I am hoping that the fact that they have more manpower, so to speak, that they’ll do something about this. For every file, you’re waiting sometimes three or four months before you get the disclosure materials,” he says. “And if there was a sexual assault kit done at a hospital and swabs of body fluids and so on taken, you’re waiting six months or more to get the forensic reports back from the RCMP lab in Ottawa.”

In 2012, the RCMP closed the forensic science and identification services lab in Halifax, centralizing eastern Canada to the lab in Ottawa.

“The best they can do is offer a report within six months,” says Singleton. “That’s pretty frustrating on everyone involved.”

Singleton says that the process of sexual assault prosecutions would be more efficient if a prosecutor was assigned to a particular file from the beginning of a case.

“That doesn’t happen soon enough,” he says, “which is one of the reasons why we’re getting delays in the process, and these aren’t just a problem for the accused, they’re also a problem for the complainant and the complainant’s family and so on. The longer these things drag on, the worse it is for everybody.”

Singleton says that in two of the current sexual assault cases he is defending, the Crown attorneys who did the preliminary inquiry were not assigned to the actual trial.

Hansen says the Public Prosecution Service’s policy is to assign a sexual assault file to a prosecutor who sees the case through.

“It is our policy to ensure that there is one Crown attorney assigned to a sexual assault case consistently from the beginning of all the significant court appearances,” she says.

“Once they sit down for a [preliminary inquiry], it is the common practice that one Crown attorney sees it from the beginning of the [preliminary inquiry] through to sentencing.”

The appointment of these special prosecutors comes after the government of Nova Scotia released a sexual violence strategy called Breaking the Silence: A Coordinated Response to Sexual Violence in Nova Scotia in 2015.

The strategy called for the development of better prevention and support services, education and to provide nurses, counsellors, volunteers and government with access to tools necessary for addressing sexual violence.

The province of Nova Scotia now offers victims of sexual assault up to four hours of free legal advice through a jointly funded program from the federal and provincial governments. Part of the funding will go toward the Public Prosecution Service to train Crown attorneys and help victims navigate the court process.

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Former tax lawyer takes feds to court over pension payout

Former tax lawyer takes feds to court over pension payout
Shana French of Sherrard Kuzz LLP says that because of the size of the federal government it’s a bit different than a situation where a private employer tells an employee to contact the accounting department.

A retired tax lawyer for the federal government sued his former employer because he alleges the government failed to fulfil its duty of care in regard to giving him complete and accurate information about his pension options.

In McLaughlin v. Canada (Attorney General), John McLaughlin, who represented himself at trial, said that, had it not been for the incorrect information he received, he would have not retired at that time and would have sought different pension payout options. He claimed $2.5 million in compensatory damages and $2 million in punitive damages.

His claims, brought under rule 21.01(1)(a), were dismissed Jan. 22 by justice David Stinson of the Ontario Superior Court of Justice. Rule 21 is a tool used to determine and rule out unsuccessful claims prior to trial. In the decision, Stinson states, “Rather, this motion is tantamount to ‘litigating in slices,’ a practice that runs counter to the established goals of determining disputes in the most expeditious and least expensive fashion.”

However, labour and employment lawyers say this is not the last time the federal government will be in court over this case.

“Provided that the advice provided to him was negligent in some way, I think he has a good cause of action,” says Paul Champ, a litigation lawyer from Champ & Associates in Ottawa. “This is just a skirmish in a battle that will go on for a while, obviously.”

McLaughlin and the government had three key factual disputes, as described by the judge:

  1. Whether a lump sum payment to settle three grievances, paid to McLaughlin upon termination of his employment, was salary-based and, therefore, pensionable.
  2. Whether a response from a senior employee of the Ontario Regional Office of the Department of Justice — after McLaughlin sent an initial email asking for his pension to be calculated — directing McLaughlin to speak with his compensation adviser, amounted to the government telling McLaughlin that he should rely on the information provided by his compensation adviser when making his decision about which pension option to choose.
  3. Whether McLaughlin had received enough information to make an informed decision when selecting his pension option, upon his resignation on Oct. 23, 2008.

The dispute over the lump-sum amount is what Adrian Ishak, a member of the labour and employment group at Goodmans LLP in Toronto, calls a “live issue.”

Some information on what the grievances were about is in the decision, says Ishak. To some extent, they were about McLaughlin not being in the correct job. Ishak says it’s unclear what exactly that entails, but he says what’s going to have an impact on the case is to what extent the grievances were about McLaughlin not being in the correct job and if the amount he was paid, as a result of those grievances, is pensionable.

With regards to the disagreement over whether the email from the senior employee relates to the duty of care and fiduciary duty of the government, Toronto labour and employment lawyer Shana French of Sherrard Kuzz LLP says that, because of the size of the federal government, it’s a bit different than a private employer telling an employee to contact the accounting department.

“That’s a little bit more contained,” she says. “But I recognize that an employer does have a duty of care when communicating to an employee about elements of their compensation, whether it’s their base compensation or incentive entitlements, benefits or pension that [the employer] is accurate in the representations they make and that if there is some third party who has administrative control over that plan, that the employee is directed” there.

Champ says that, because the government is the pension plan administrator, it is wholly accountable for its actions when directing someone to speak with a compensation adviser.

“In this special circumstance, it’s not for all governmental decisions or matters, but here it’s about the individual’s pension plan and the government is the pension plan administrator,” he says. “And in those cases, my view is that clearly if the government is telling you go speak to a compensation adviser, as a plan member, you should absolutely have confidence that that compensation adviser is giving you accurate, fulsome information that you can rely on to make your decisions.”

He says that a pension plan administrator should fully disclose any relevant information.

“In my opinion, clearly, if an employee asks a specific question to a pension plan [adviser] to make a certain decision and asks if there are risks, then absolutely a pension plan adviser is to be full and frank and tell them all the information they can and be confident in doing so.”

Ishak says he doesn’t agree that the email exchange should be taken as the government telling the plaintiff he should rely on the information provided by the compensation adviser to make his decision and, if this goes further, he says that the government would contest this point during trial.

“Essentially, what they’re doing is redirecting him to the person who has his information,” he says, “not necessarily committing to the fact that the information will be 100-per-cent detailed enough for him to make a decision.”

When it comes to informed decisions relating to compensation, French says, there’s a standard the employer has to meet when providing employees information related to their compensation or other incentives.

“What’s the standard? Well it’s going to vary depending on circumstances,” she says. “That’s why, if there’s an underlying entitlement, we always encourage employers to be clear that the entitlement will be governed according to the terms and the conditions of the plan and put it on the employee to ensure that they’re pursuing the appropriate resources by contacting the plan provider or their own tax adviser or their professional financial adviser so the employer isn’t held accountable for having made that representation.”

Ishak says employers must be absolutely sure that the information they’re providing employees is accurate.

“You have to give them enough information to make an informed decision,” he says.

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Photo gallery: LGBTQ group for broader legal community holds first event

Photo gallery: LGBTQ group for broader legal community holds first event
Helen Kennedy speaks about how many countries in the commonwealth still consider homosexuality a crime.

An LGBTQ social organization for people working in the broader legal community held its first event on Jan. 26 in Toronto.

The event took place at Stori Aperitivo Bar and a portion of the proceeds were donated to Egale Canada Human Rights Trust, an organization that works to improve the lives of LGBTQ+ people in Canada.

Helen Kennedy, executive director of Egale Canada, and Ontario Court Justice Harvey Brownstone were guest speakers for the evening. “This organization is going to bring together all the professions in the legal world,” says Justice Harvey Brownstone.

For more information about the group, find them on Facebook, Instagram or email them at wildfirelgbt@gmail.com.

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Legal news roundup – Jan. 29, 2018

Canada

Law firm called in to investigate Toronto Community Housing Corp.’s HR practices, Toronto Star

President of Ontario PC party Rick Dykstra resigns after alleged sexual assault surfaces, National Post

Ontario gas plant scandal investigator retained in Alberta deleted email probe, Edmonton Journal


United States

Rosenstein approved surveillance extension of former Trump adviser: NYT, Reuters 

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Legal Aid Saskatchewan lawyers may have to use cabling for briefcases

Legal Aid Saskatchewan is looking at having lawyers use anti-theft cabling for their briefcases in different court locations after a privacy breach.

A ruling by the Office of the Saskatchewan Information and Privacy Commission says that in November 2017, a lawyer working for Legal Aid Saskatchewan at the Battlefords Courthouse stepped out into a hallway to speak to clients. 

The ruling said the lawyer had left files on a defence counsel table, and when he returned from the hallway, he discovered one file had disappeared. 

Efforts by the lawyer to find the file by following up with four other defence lawyers and the Crown were not successful, said the ruling. 

Legal Aid Saskatchewan reported the privacy breach to the Office of the Saskatchewan Information and Privacy Commission the following day.

As a result of the incident, officials at Legal Aid Saskatchewan say the organization is now considering having staff use anti-theft cabling for their briefcases when at different court locations. 

The ruling noted that Legal Aid Saskatchewan told the commission it was looking at purchasing bike locks so lawyers could secure their briefcases, and in the ruling, the commissioner recommended it “follow through with purchasing bike locks, or anti-theft cables, so that its lawyers can use them to secure locked briefcases to fixed objects.”

“. . . We’ll have a conversation with our local managers about that to make sure that’s feasible,” says Kyla Shea, director of planning and administration at Legal Aid Saskatchewan. “We go to court in a lot of places that aren’t courthouses. It’s curling rinks and band halls and things like that, so securing a briefcase to a folding table isn’t actually doing anything.” 

The ruling said that, prior to the incident, if a Legal Aid Saskatchewan employee needed to leave a room at a court location and leave court files unattended, a policy was in place that all documents had to be in a locked briefcase or in view of the court party. 

The prior policy was also that files could be left unattended in a locked courtroom, said the ruling, or in other locations — such as a band office — in a locked room for a short period of time.

However, the Office of the Saskatchewan Information and Privacy Commission found the policy to be “inadequate to protect against the loss of personal information.”  

“The policy permits employees to leave personal information unattended for short periods of time in a locked briefcase. The briefcase, even if it is locked, can still be taken with personal information inside of it,” said the ruling.

“My office’s position is that these records must be stored securely and kept under the constant control of the employee. If this is not possible, then the records should be temporarily stored in a secure location such as a locked room or desk drawer.”

Legal Aid Saskatchewan has 73 staff lawyers who work in more than 80 different locations, says Shea. The organization also works with approximately 100 lawyers in the private bar who also handle cases on a contract basis. 

“Our lawyers all travel with locking briefcases, of course, and do their best to keep those in site and on their person,” she says.  

Shea says that, in the past, there have been discussions about members of the court party not being responsible to keep an eye on documents.

“We’ll reiterate that again,” she says, noting there will be a new training module launched in 2018 on privacy, confidentiality and managing electronic and paper documents. The loss was reported to the client, said the ruling. 

Craig Goebel, chief executive officer of Legal Aid Saskatchewan, says that “resolving the risk down to zero is probably impossible.

“[T]hat’s part of the difficulty we have to accept, that where we go and how we get there and what we carry . . . does not allow our lawyers to be capable of 100-per-cent risk resolution,” he says.   

Gordon Hamilton, partner at McDougall Gauley LLP in Saskatoon, said the takeaway for lawyers is “to remain vigilant with protecting client information and client files.”

“[T]he concept of keeping your files in a locked briefcase that is secured to the defence counsel table with a bike lock, which you lock and secure whenever you leave the courtroom, seems impractical,” he said via email.

He noted, however, that the case is “a unique decision with unique facts.”  

“We all know that client files are to be strictly guarded, as the law society and our professional code place strict obligations on lawyers to protect confidential client information,” he wrote. “Here, the apparent ‘theft’ occurred from the defence counsel table, presumably during a break in the court’s proceedings. We all know the multiple files that legal aid lawyers will bring with them to court, and we have all seen legal aid lawyers leave the courtroom and spend 10 minutes or so meeting with clients. I have personally seen legal aid lawyers leave their files on the defence counsel table numerous times while they leave to chat with a client.” 

That being said, Hamilton said the ruling struck him as “odd” for several reasons.

“[Fi]rst, the stolen file was sitting on the defence counsel table, which is on the other side of the bar or rail, where only lawyers are permitted to go with a few exceptions,” he said. “Second, even during breaks, there are usually other lawyers present in the courtroom, who would question someone walking past the rail and right up to the defence counsel table. I am told that this old courthouse does not have video surveillance in the courtroom, which will make it difficult to determine for certain who stole it. These facts seem to fall into the category of a ‘one-off’ situation.”

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Survey finds 21 per cent of articling students face harassment, discrimination

Survey finds 21 per cent of articling students face harassment, discrimination
Paul Saguil says that the survey’s results are unfortunately not surprising, given what the law society learned through its report about the challenges faced by licensees.

A new survey conducted by the Law Society of Ontario has revealed that harassment and discrimination are an ongoing reality for many articling students.

The survey found that one in five current or recent articling students who completed the survey faced “comments or conduct” based on their gender, race, sexual orientation, citizenship, disability or other personal characteristics. It also showed that 17 per cent of respondents felt they faced unequal or differential treatment related to such personal characteristics.

“Issues of harassment and inappropriate conduct [are not] confined to the film industry or politics. It’s everywhere,” says LSO Treasurer Paul Schabas.

The law society conducted the survey as part of a larger review of the entire licensing process, which is looking to tackle the shortage of articling positions across the province.

Of those surveyed that had completed articling, 39 per cent identify as racialized, 57 per cent were female, 42 per cent were male and one per cent was transsexual. And of those that were still articling at the time of the survey, 42 per cent were racialized, 55 per cent were female, 44 per cent were male and one per cent was other.

Of the 5,242 individuals asked to participate in the survey, 1,471 completed it. With a 28-per-cent response rate, the survey’s data cannot be considered representative of the targeted population, but the survey found that the responses “are a source of information and insight that were not available prior, and much can be learned from this source.”

Paul Saguil, chairman of the law society’s equity advisory group, says that the survey’s results are unfortunately not surprising, given what the law society learned through its report about the challenges faced by licensees.

He says the survey reinforces what was learned in the report, which found racialized licensees faced widespread barriers in the legal profession. In the consultation process of the report, the law society heard from racialized licensees who provided examples of discrimination and harassment during articling and the first few years of practice.

The survey results are also not surprising, says Saguil, considering articling students are at a vulnerable moment in their career.

“They’re beholden to their employers,” he says. “They need their employers to sign off in order to get their licence, and so it’s not surprising that during this period, a lot of people are experiencing things they don’t want to put up with, but still do because they need to ultimately get called to the bar.”

In response to the survey results, the law society’s professional regulation and competence committee is now reviewing s. 6.3 and s. 6.3.1 of the Rules of Professional Conduct, which deal with discrimination and harassment to make sure they are up to date.

In an email, an LSO spokesman said that the law society already has several programs in place to address harassment and discrimination but that the survey responses make it clear that too many articling students are still experiencing unwelcome conduct.

“The numbers wouldn’t be acceptable if it was one per cent. One is too many,” Schabas says. “And certainly when we see something that suggests that 20 per cent of articling students are being subjected to unwelcome and harassing conduct by their principles, we have to do something about it.”

The law society is also looking to increase promotion of the existing programs and will also engage with firms and legal departments to share best practices concerning harassment and discrimination.

Saguil says that while the law society’s efforts to review the rules are commendable, those rules already prohibit harassment and discrimination. He says there are issues around how the rules are enforced and how the law society investigates these kinds of complaints.

Saguil says he would like to see the law society revamp its discrimination and harassment council program, which acts as an ombudsman-type service to guide licensees and articling students in how to bring forward concerns and initiate a complaint.

“I think if they revamped that and make it more welcoming to people to come forward, some of these incidents would be brought to light in a much easier way,” he says.

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Duty to consult First Nations in legislative process now rests with SCC

Duty to consult First Nations in legislative process now rests with SCC
Lawyer Robert Janes says, ‘This is the first time this issue has been squarely before the courts and the first time before the Supreme Court of Canada.’

The Supreme Court of Canada has now heard an appeal from an Alberta First Nation that, if successful, could have a significant impact on First Nations’ role in the creation of legislation where it involves their treaty rights.

In December 2016, the Federal Court of Appeal allowed the appeal of the Governor General in Council and six federal government ministers, after the Federal Court found they had breached their duty to consult the Mikisew Cree on the development and introduction in Parliament of two omnibus bills that reduced federal regulatory oversight of works and projects that might affect the Mikisew Cree’s treaty rights.

The resulting amendments to federal legislation in 2012, under Stephen Harper’s government, had affected the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act and the Canadian Environmental Protection Act. The Canadian Environmental Assessment Act was replaced by a new version of the act.

The government has a duty to consult on major legislative changes as well as on smaller decisions that affected First Nation treaty rights, says Robert Janes of JFK Law Corporation in Vancouver, who argued the appeal before the Supreme Court last week on behalf of Mikisew Cree First Nation, of northeastern Alberta, and its chief, Steve Courtoreille.

“This is the first time this issue has been squarely before the courts and the first time before the Supreme Court of Canada,” Janes told Legal Feeds.

In Tsuu T’ina Nation v. Alberta (Environment), 2008 ABQB 547, the issue was “looked at . . . abstractly,” says Janes, in a case concerning a water management plan for the South Saskatchewan River Basin that was opposed by the Samson Cree Nation and the Tsuu T’ina Nation. The First Nations had sought a declaration that the Crown had a legally enforceable constitutional duty to consult with and accommodate the First Nations where their existing and claimed treaty rights were or might be affected by the SSRB Plan. The Court of Queen’s Bench found in favour of Alberta, noting that “the approval of the SSRB Plan itself did not have an adverse impact on the Applicants’ Aboriginal or treaty rights, asserted or claimed” and that “the duty to consult is part of the evolution of our constitutional common law” (emphasis added) rather than “in the Constitution.”

And in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, the Supreme Court of Canada found that “the duty to consult extends to ‘strategic, higher level decisions’ that may have an impact on Aboriginal claims and rights”; however, the court concluded then, “We leave for another day the question of whether government conduct includes legislative action . . . “

In allowing the appeal in Canada (Governor General in Council) v. Mikisew Cree First Nation, [2017] 3 FCR 298, 2016 FCA 311, the Federal Court of Appeal held that while federal ministers have executive powers in their responsibilities for their departments pursuant to statues, those statutes do not refer to the ministers’ roles as policy-makers or to the development of legislation for introduction in Parliament. Rather, those roles flow from the Constitution and from Canada’s system of parliamentary democracy.

The host of interveners in Chief Steve Courtoreille on behalf of himself and the members of the Mikisew Cree First Nation v. Governor General in Council, et al., now before the Supreme Court of Canada, includes the attorneys general of Quebec, New Brunswick, British Columbia, Saskatchewan and Alberta, several Yukon First Nations, the Assembly of First Nations, the Grand Council of the Crees and Cree Nation Government, the Manitoba Métis Federation and Advocates for the Rule of Law.

“ARL will be arguing that the Court should not recognize a justiciable duty to consult at any stage of the law-making stage as it would be contrary to the constitutional principles of parliamentary sovereignty and the separation of powers and would severely impede the law-making process which is integral to the rule of law in Canada,” according to an article on ARL’s website.

If the Mikisew First Nation is successful in its appeal, “lawmakers would have to figure out an approach to consulting First Nations,” says Janes. From the standpoint of reconciliation between First Nations and the governments of Canada, this would be “entirely positive,” he says. “One gripe First Nations have is that administrators apply rules,” and when First Nations take issue with them the administrators say, “’you should be talking to the legislator about the problem.”

The case now before the Supreme Court of Canada, at the least, “makes sure people are talking” about the issue and “taking First Nations into account.”

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