Time for the civil bar to step up

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Last week Pro Bono Ontario dropped the bombshell that they would be forced to shutter their offices in Toronto and Ottawa because of a $500,000 funding gap. Private funders, apparently, can no longer support the program. So, civil lawyers took to the opinion pages and social media to defend the little guy.

Our courts are full of little guys. The single mother who was improperly denied support payments. The immigrant who fell behind on rent and faces eviction by a predatory landlord. The working father who was wrongfully terminated. These are the clients that Pro Bono Ontario helps. These are the little guys will now be left to face the machinery of the legal system on their own.

And they will be chewed-up and spit-out.

There is no question that the people assisted by Pro Bono Ontario are all in dire straits. Many of Pro Bono’s clients suffer from poverty, mental health issues and social marginalization. But, there are also the middle class who can’t afford the high fees charged by the civil bar. 

The one thing every Pro Bono client has in common is that they can’t afford admission into the boardrooms of Bay Street. 

Pro Bono Ontario is a Band-Aid on the gaping wound that is access to justice – a problem driven by the fact that the fees charge by civil lawyers are simple out of reach for anybody but the well-off.

According to the results of Canadian Lawyer’s 2015 Legal Fees Survey, the average cost of a two-day trial was more than $30,000. An amount made even more obscene by that fact that this was an increase of 43 percent from the previous year. Hourly rates over $400 are not uncommon. And we wonder why there is an access to justice problem.

Law is, after all, a business and like any business, profit matters. “This year was a good year,” Eric Gossin of Toronto’s Stancer Gossin Rose LLP told Canadian Lawyer in 2018. “All of us seem to be achieving a higher hourly rate in terms of what we tell the clients we are charging.”

The solution to access to justice issues cannot just include Pro Bono Ontario. Civil lawyers need to take a hard look in the mirror and come to grips with the role they have played in creating the access-to-justice problem.

Simple put – civil lawyers need to lower their fees. It is great that some lawyers volunteer their time to Pro Bono Ontario – but more can and must be done. Self-congratulations over donating three pro bono hours every three months is simple not enough.

Last week I made this abominable suggestion on Twitter and was met with an immediate backlash. The arguments from the civil bar ranged from the absurd (Bay St. lawyers would not be competent to handle Pro-Bono-type cases) to the blissfully circular (but my hourly rates put me beyond the reach of non-wealthy clients).

Well then, civil lawyers perhaps you should – on occasion – lower your hourly rate. Stop by my office and I will show you how. 

There are lots of civil lawyers who do go above and beyond and who do generously volunteer their time and expertise. Good for them. But as a whole the civil bar needs to do more. They need to advocate for systemic changes in how their services are priced and delivered. And they need to start at their own firms.

“But there seems to be a comfortable lack of self-awareness on the part of the civil bar. It does after all take some gumption to record a video decrying the lack of funding for Pro Bono Ontario, as Advocates’ Society President Brian Gover did,from the Advocates’ Society’s conference held in Laguna Beach California.

The latest suggestion from the towers of Bay Street is the idea of a flat tax on Law Society fees to bridge Pro Bono Ontario’s funding gap. Another short-sighted plan. Why should young lawyers, many of whom have massive law school debts, who have just emerged from a cut-throat articling process, and who, by necessity, work almost for free subsidize a program that exists in large part due of the excesses of Bay Street?

Perhaps, as some have suggested, the government should step in to fund Pro Bono Ontario? After all, a 2017 return-on-investment analysis showed that, on a total budget of $600,000, Pro Bono Ontario saved the government almost six million dollars. But again, why should the government subsidize a program that exists because of Bay Street’s ridiculous fee structure? 

Carolyn Mulroney has said that the government would continue to provide Pro Bono Ontario with rent free space – just as the Liberal government did. But she went on to “encourage Pro Bono Ontario to work with its private-sector partners, Legal Aid Ontario, the Law Foundation of Ontario and the Law Society of Ontario to find solutions to its long-term funding issues.”

There is room for the government to invest in Pro Bono Ontario. But everyone needs to do their part. 

And a word of caution to the civil bar: it is a risky move to invite the government into a self-regulating profession – especially when, unlike in criminal cases, they are not a litigant. If civil lawyers cannot regulate their own fees would they suggest that the government should?

So, what is the solution?

Maybe next year’s Laguna Beach money could be donated to Pro Bono Ontario? Maybe each Bay Street firm could sell one of their valuable pieces of art to help Pro Bono Ontario? 

Or perhaps civil lawyers could commit to charging some clients a little bit less and commit to work towards structural changes that would ensure that it’s not just large corporations and the wealthy that have access to the courts.

But even then, there will be a need for Pro Bono’s services. Some of the people who need the type of justice that can only be found in the courts will not be able to afford it – at any price. 

But until civil lawyers take a hard look in the mirror not even the Band-Aid of Pro Bono Ontario will be enough to get access to justice system off life support.

With Bill C-75 Liberals Break Three Promises

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In 2015, prior to the last federal election, the then-third-party Liberals made three promises that warmed the hearts of lawyers who work in the criminal-justice trenches.

First, the Liberals said they were going to base their justice policy on facts, not make up facts to suit a preferred policy. It was a simple promise but a breath of fresh air after a decade of ideologically driven justice policy from the Conservatives. 

Harper’s tough-on-crime rhetoric left us with more mandatory minimum sentences, watered-down privacy rights and colder penal policies. The Conservatives said that these measures would deter crime and make our communities safer — even when the evidence suggested precisely the opposite.

Second, the Liberals said they would strengthen parliamentary committees so that they could better scrutinize legislation. Better government, they said, starts with better ideas. Parliamentary committees should not exist to toe the party line but to ensure that expert evidence is incorporated into legislation so new laws actually achieve their objectives.

Third, the Liberals said they would overhaul the justice system to ensure it achieves fair and just results.  

It all sounded so good. But it has all gone so wrong.

After waiting years for the promised justice overhaul, in the dying days of March 2018, and on the eve of a long weekend, Justice Minister Jody Wilson-Raybould unveiled her self-described “bold” criminal justice reforms. The legislation, Bill C-75, was advertised as a silver bullet to unclog our courts and bring about a “cultural shift” that would result in a fairer justice system. 

Bill C-75 promised to speed up court cases by eliminating preliminary hearings for all but the most serious matters. It promised to make jury trials fairer by limiting an accused’s ability to select a jury of his peers. Also, quietly slipped into the bill was a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify. 

Wilson-Raybould’s bold legislation was met with an immediate, loud and visceral condemnation by criminal defence lawyers who called the bill an “utter and complete betrayal,” an erosion of procedural safeguards that “gravely misses the mark,” a “regressive blindside” and “worse than anything Harper ever did.”

Last week, Bill C-75 passed through the justice committee with few changes and is now one step closer to becoming law. 

Over the last decade, I have appeared dozens of times before various parliamentary committees to testify on new legislation. Last month, I appeared before the justice committee and offered expert evidence on Bill C-75.

I have seen how the parliamentary committees operated under the control of both Harper’s Conservatives and Trudeau’s Liberals. Sadly, there is little difference.

Under Harper, the committees ignored expert evidence and refused reasonable amendments that would improve the legislation and avoid laws of dubious constitutionality. 

The same is true under the Trudeau government. The only difference is that the Liberals promised to do better.

Despite hearing from 95 expert witnesses, the committee studying Bill C-75 recommended few changes. Even when there was a concurrence of opinion from these witnesses on various parts of the bill, there still were no changes. The Liberals, you see, voted as a block to keep the legislation mostly as originally proposed. It is almost like they made up their minds before the whole process started.

Sure, there were a few small changes to the bill. The universally criticized provisions of the bill that would allow police officers to file written evidence and avoid cross-examination was removed. And the government bowed to Conservative outrage over the hybridization of some offences.  

But most amendments based on the evidence presented at committee were rejected by the Liberal block. 

Take Bill C-75’s elimination of preliminary inquiries for all but the most serious offences. The government said this would speed up trials. But the expert evidence — from defence counsel, prosecutors, academics and civil rights groups — was unanimous that preliminary hearings actually save court time and are an important procedural safeguard to avoid wrongful convictions.

There was no explanation for why proposed amendments to preserve preliminary inquiries, in accord with the expert evidence, were rejected by every Liberal on the committee. 

And so, with Bill C-75, the liberals have broken three promises: They ignored the facts, they turned their backs on a constructive and evidence-based committee process and they have done little to make the justice system fairer. 

The last betrayal may come as a shock. 

The Liberals have not only done almost nothing to reverse the damage inflicted by the Harper government, but they seem strangely proud to advance legislation that erodes procedural protections designed to prevent wrongful convictions. 

Harper made no secret about his justice agenda. And he, like Trudeau, may have ignored evidence when it conflicted with that agenda — but at least Harper was a man of his word. 

Pot Pardons: My choice is what I choose to do And if I'm causing no harm It shouldn't bother you

Last week, the Liberal government, in a rare move, almost followed through on a key election promise. Marijuana is now legal in Canada — sort of. 

During the 2015 election, the Liberals promised to “remove marijuana consumption and incidental possession from the Criminal Code.” And while it is true that Canadians can now smoke and possess marijuana, the new law leaves in place the criminalization of cannabis in many circumstances. This continued criminalization has led to serious concerns about the new law’s constitutionality. But it is a step in the right direction.

It was always a fool’s errand to believe that punishing the users of cannabis would result in any social good. The criminalization of marijuana did not deter the relatively harmless activity of burring one down. Canada’s cannabis policy should have been simple: If you don't like my fire,
then don't come around. Instead, for more than a century, the government arrested, prosecuted and criminalized marijuana use. 

And the result is that more than 500,000 Canadians have a criminal record for simple possession of marijuana. Tragically, marijuana laws were disproportionately enforced on marginalized groups and racial minorities.

The stigmatizing effect of a criminal record for simple pot possession is a back-breaking burden that closes employment and educational opportunities. A marijuana conviction makes it harder to volunteer and limits full participation in society. And travel south of the border? Forget about it. It is easier to cross the U.S. border with a serious violent conviction on your criminal record than it is with a minor drug conviction.

The Liberal’s bill that legalized marijuana took no steps to correct this historic wrong. There was no mention of pardons, record suspensions or expungements to be found in C-45. 

The government insisted that remedies of historic injustices would only be considered after marijuana was legalized — because, apparently, it is difficult to do more than one thing at a time. 

The government had three years to plan for the day when marijuana would be legal, but Public Safety Minister Ralph Goodale’s announcement last week of a plan to pardon historic convictions contained few details. 

We were simply told that a plan to offer pardons to those who have completed their marijuana sentence and legislation would be coming soon. There were few details except that the $631 pardon application fee and waiting periods would be waived.

That’s not good enough.

For a century, the government actively prosecuted under the unjust marijuana laws. The government must now be proactive in correcting that historic mistake. Waiving fees and the five-year waiting period is a start, but it’s only the smallest of starts.

In recognition of the serious impacts of a marijuana record and the historic racism of Canada’s drug laws, the government must do more. 

The answer is simple — automatic expungements. No cost. No wait. No application. No questions.

By insisting that the sentence is fully completed before a pardon is available, the government discriminates against the poor. Marijuana convictions often were punished by way of a fine. Sometimes, it was a fine of hundreds or thousands of dollars. An impoverished offender who is too poor to pay that fine cannot apply for a pardon.

The application process to obtain a pardon is a complex 10-step process that often requires the assistance of a professional. This means marginalized individuals, people with mental health issues or those who suffer from homelessness will find it difficult to actually make an application.

And then there is the waiting time. The government may waive the five-year waiting period, but there can be delays of up to a year for a pardon application to be processed. There is already a massive backlog of applications, and a flood of hundreds of thousands of new applications won’t help with that delay.

Automatic expungements of criminal records for simple pot possession would not only recognize these continuing barriers, it would be the fair thing to do. 

A streamlined, merit-based and free-pardon process should be reserved for more serious marijuana crimes, such as trafficking or cultivation.

Canada’s pardon system is broken. Some of the regressive legislative changes introduced by the Harper government — laws that were opposed by the Liberals — have been found unconstitutional. Now in power, the Liberals have taken no action. 

The public overwhelmingly supports reforms to the pardon system. But the Liberals have taken no action.

So, you can excuse the lack of blind trust when it comes to the vague plans on pot pardons.

Promises are cheap. Promises in the months before an election are cheaper. And given that there will be a federal election in 2019, any bill introduced now has little chance of becoming law any time soon.

Marijuana might be sort of legal today, but there are half-a-million Canadians who continue to be impacted by the ghosts of the historic, wrongheaded and discriminatory criminalization of cannabis.

Promises and half-measures are simply not enough to correct historic wrongs.

As the Liberals were so fond of saying in 2015, it’s time for some bold action and real change.

Kavanagh confirmation sows decades of judicial distrust

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The legitimacy of the judicial system depends on trust. Courts and judges are, after all, not imbued with an inherent magic or divine authority. Instead, legal decisions are respected because, as a society, we choose to respect them — we trust the process, the people and the system that produced them, even if there is disagreement with a particular result. 

But what happens when disagreement with a decision turns into a complete dismissal of the judiciary’s independence and authority? 

This weekend, the United States took the first step toward answering that question when the Senate confirmed Brett Kavanaugh to the Supreme Court and laid bare the overtly political and partisan nature of the appointment process.

The truth is that partisan politics has defined the United States Supreme Court appointment process for years. From the Federalist Society’s judicial lists and lobbying efforts to the rejection of Robert Bork to the Republicans’ audacious decision not to allow a vote in 2016 on President Barack Obama's judicial pick, Merrick Garland, politics has always coloured the law in the U.S.

But Kavanaugh is different. He is different because he was, by his alleged criminal conduct and by his own words, a uniquely ill-tempered and ill-suited candidate.

Kavanaugh was always going to be a controversial appointment. His name was on the Federalist Society’s list of pre-approved, right-wing judges. But that was all par for the course. The real debate began after allegations by Dr. Christine Blasey Ford that Kavanaugh had tried to rape her when they were teenagers. Blasey Ford’s Senate testimony was consistent, compelling and credible. 

This should have been enough to disqualify Kavanaugh. But the Republicans cried foul about a new “open season” on men and argued that Blasey Ford’s allegations had not been proven. Kananaugh, they said, should be presumed innocent.

Let me let you in on a little secret: The presumption of innocence is a legal construct. It operates in our courts of law to protect people charged with crimes from the power of the state to deprive them of their liberty. 

In short, the presumption of innocence is a procedural court protection to ensure fairness, not a moral imperative. This is why we do not automatically convict and sentence a self-admitted murderer whose crime is clearly captured on video. In court, even where guilt is plainly obvious, proper procedures must be followed and the prosecution must prove guilt beyond a reasonable doubt. 

The presumption of innocence does not mean someone is forever factually blameless until proven beyond any doubt otherwise. The presumption of innocence does not operate to immunize potential Supreme Court judges from scrutiny. 

The Kavanaugh confirmation hearings were not a criminal trial where a benefit of the doubt matters and where, as the saying goes, it’s better that 10 guilty men go free than to convict an innocent man.

I’ve never heard anyone suggest that it’s better to put 10 guilty men on the Supreme Court rather than to risk depriving one federal court judge of a promotion.

But even leaving aside Blasey Ford’s heart-wrenching testimony, the absurdity and tone of Kavanaugh’s denials should disqualify him.

Put simply, Kavanaugh does not possess a proper judicial temperament. I have cross-examined hundreds of witnesses and I have seen many of my clients subjected to gruelling and often unfair questioning by prosecutors. These witnesses have neither the education nor courtroom experience that Kavanaugh does, yet all of them were more composed, more respectful and more responsive than he was.

Throughout his angry and unhinged testimony, Kavanaugh avoided or did not answer direct questions. Senator Kamala Harris asked the simple and straightforward question, “Are you willing to ask the White House to conduct an investigation by the FBI?” 

Kavanaugh answered, “The FBI would gather witness statements, you have witness statements. . . . The witness testimonies before you, no witness who was there supports that I was there . . .”

In other words, he did not answer. Over and over and over again.

If this was a trial, the argumentative, belligerent and unresponsive testimony given by Kavanaugh would leave a prosecutor smiling all the way to a conviction.

But if credible allegations of rape, a lack of judicial temperament and possible perjury are not enough to discard Kavanaugh and choose one of the dozens of other conservative-friendly judges on the Federalist Society’s list, Kavanaugh’s own words should have been the final nail in his coffin. 

The Supreme Court must never be viewed as a partisan institution, said Brett Kavanaugh in an opinion piece he wrote for The Wall Street Journal after his very bad day in the Senate. Kavanaugh may have been trying to salvage his confirmation, but he was right.

Now look at what Kavanaugh yelled under oath only a few days earlier.

“Since my nomination in July, there’s been a frenzy on the left to come up with something, anything to block my confirmation. . . .

“You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.

“The behaviour of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at borking. . . .

“This whole two-week effort has been a calculated and orchestrated political hit, fuelled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

After Kavanaugh was sworn in to the United States’ highest court, Donald Trump’s press secretary, Sarah Sanders, tweeted,“Congratulations Judge Kavanaugh! Instead of a 6-3 liberal Supreme Court under Hillary Clinton, we now have a 5-4 conservative Supreme Court under President @realDonaldTrump, cementing a tremendous legacy for the President and a better future for America”

How can anyone ever view Kavanaugh as anything but a political operative?

The rape allegations may not have been proven beyond a reasonable doubt, but surely the partisan nature of Kavanaugh’s appointment has been.

How can there be any legitimacy in a future Supreme Court decision on a political divisive issue where Kavanaugh is the deciding vote?

And what happens when half the country refuses to accept a ruling from the country’s highest court?

Unfortunately, Kavanaugh’s shocking and disappointing confirmation will afford a lifetime to answer these questions.

The Liberals are all vision, no reform

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The benefit of fixed election dates is that we probably know when the next federal election will take place. So, you can mark your calendars — but do it in pencil just in case — Canada will be voting on Oct. 21, 2019.

With the federal election only a year away and given the glacial pace of the government’s promised justice reform, there’s not much time for any new criminal justice bills. And given the partisan politics that have become hard-baked into criminal justice proposals, the Liberals will certainly not want to provide fodder for the inevitable Conservative “soft-on-crime” attack ads.

What we have here is all the justice legislation we’re going to get.

So, now is as good a time as any to see if the Liberals have lived up to their lofty justice promises. And, boy, did the Liberals come to power in 2015 on the back of some very big promises.

The instructions provided by the prime minister to Minister of Justice and Attorney General of Canada Jody Wilson-Raybould were ambitious. She was instructed, among other things, to modernize the justice system, increase the use of restorative justice, increase the government’s Charter compliance and address gaps in the justice system that allow the most marginalized Canadians to fall through the cracks. The Liberals also promised to embrace evidence-based policy-making, to restore judicial discretion, to legalize cannabis and to eschew omnibus legislation.

Unfortunately, by any measure, the Liberal government has not only failed to live up to its promises but has moved progressive justice policy backwards.

But let’s start with one almost positive. When it comes to the legalization of marijuana, it seems that the Liberals kept their promise — sort of. They pledged to legalize marijuana because it “traps too many Canadians in the criminal justice system.” So, in 2015, the Liberals promised to “remove marijuana consumption and incidental possession from the Criminal Code.”

But the Liberal’s cannabis legislation doesn’t do any of those things very well. Sure, the new legislation does legalize some marijuana — some of the time, under some circumstances — but it does not “remove marijuana consumption and possession from the Criminal Code.”

Unfortunately, in addition to leaving marijuana criminal in too many circumstances, the cannabis legislation also discriminates against the young and the poor and is checkered with unconstitutional provisions. Amendments to correct these issues were proposed when the bill was studied, but the Liberal-controlled committee rejected every opposition amendment — evidence-based policy be dammed.

But the list of promises, even half-kept ones, basically ends there.

Sadly, even in the face of an explicit promise, the government has taken no action to address the problem of minimum sentences. Even though almost all the evidence suggests that minimum sentencing is a counterproductive measure that contributes to inequality and court delays — while offering no increase in community safety — the government has done nothing.

Wilson-Raybould did introduce a bill to restore some discretion to judges to determine the appropriate victim fine surcharges, but that bill languished on the order paper and was abandoned only to be sent back to square one and incorporated into the self-described “bold” criminal justice reform bill C-75.

But bill C-75 does little to satisfy the Liberals’ lofty justice rhetoric. This flagship and highly criticized piece of legislation reacted to high-profile court cases by eliminating the preliminary inquiry and radically changing jury selection. When combined with legislation that would compel an accused to make reverse disclosure to the Crown in sexual assault cases, Wilson-Raybould’s “bold” justice reform has been described by the criminal defence bar as “utter and complete betrayal,” an erosion of procedural safeguards and “worse than anything [former prime minister Stephen] Harper ever did.”

What is missing from the government’s criminal justice track record are any meaningful measures to transform how we deal with crime driven by addiction, poverty or mental health. Missing is any recognition that systemic racism is a problem. Missing is anything remotely resembling the promised reforms.

Ultimately, the government cannot be criticized for a lack of vision — just look at all its promises. But the Liberals’ first term in power has shown that they are willing to sacrifice that vision. Perhaps they don’t have the stomach for necessary reforms, perhaps they were full of hot air when they made the promises or maybe they just don’t really care about community safety, constitutional values and fairness.

History will show the last four years as a missed opportunity. And a government that swept to power with the support of many in the criminal defence bar may learn the lesson that there is no greater fraud than a promise not kept.