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Commentary

Contentious human rights law brings changes

Both complainants and respondents are set to see some significant changes to the way human rights complaints are managed in Ontario, following the passing of Bill 107 into law last month. However, while some are content with the provisions of the new legislation, others remain concerned with the new structure and with the way the process was handled.

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Crown delays, dodgy witnesses sink prosecution

An unprecedented prosecution that spanned 16 years, cost taxpayers more than $30 million, and eventually hung on questionable evidence from the aging memory of an unscrupulous paid informant came to a close last week when Superior Court Justice Colin McKinnon stayed proceedings in the first-degree murder retrial of Richard Trudel and James Sauvé.

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Judge raps lawyers for flouting rules

A Federal Court of Appeal judge has cautioned counsel on both sides in a case for failing "to live up to the letter and spirit of the Federal Courts Rules."

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SCC focuses on remedy in CPP same-sex case

The Supreme Court of Canada recently heard oral arguments in Hislop v. Canada, a class action challenging sections of the Modernization of Benefits and Obligations Act (2000). This case raises important questions as to the responsibilities of courts and legislatures to remedy longstanding Charter infractions.

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Editorial: Do lawyers have a sweet spot?

WARNING: The following editorial may have information that excites and inflames, with graphic details about hookers, swingers, skin(s), and preferred lies, thus might not be suitable for some lawyers to read (since they’ll be too distracted to work on hot briefs).


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Editorial - The time has come for civil justice reform

The Ontario government has made it official that it will be looking into ways to reform the civil justice system in this province. And while not broken, the system is not serving Ontarians as it should. Many, particularly people with low and moderate incomes, have given up on the courts as a way to help them solve disputes. This even though a 2005 Department of Justice study by Ab Currie shows that almost half of Canadians surveyed over three years experienced "justiciable" problems.

"Many of the problems experienced by respondents were the types that could threaten the security and well being of individuals and their families," notes Currie's study. Most cases, it says, are "little injustices" that wouldn't necessarily be resolved by the courts but would have a better chance of easy resolution if those involved were better informed about their legal rights and obligations.There are, of course, large and small civil litigation cases involving mostly corporate litigants. There are different problems on both ends of the scale, many of which have been illuminated in a number of studies and research on civil justice systems across Canada and throughout the world, including a major review from the Canadian Bar Association in 1996.

There's no doubt that changes need to be made within the system. The Advocates' Society's civil justice reform report from earlier this year has some excellent ideas culled from other jurisdictions:

-   increasing Small Claims Court limits to $25,000 from the current $10,000

-    introducing self-help information centres such as the one at the B.C. Supreme Court in Vancouver that lets users learn about the court system and court procedures, get legal information, locate and fill out court forms, find out about free legal advice, and find alternatives to court; and

-    increasing the jurisdiction for cases under the simplified rules procedure to $100,000 from the current $50,000.

At the civil justice reform conference in Montreal a couple of months ago, Australian Justice Geoffrey L. Davies noted that encouraging parties to resolve cases earlier really speeds up the process. Don't focus on a trial, focus on resolution, he said, and part of that, in his state, is a statutory requirement for early mutual disclosure in civil cases.In Quebec, major changes to the civil justice system were put into place in 2002. One of those is to encourage more oral presentation, with strict guidelines, instead of relying on ever-burgeoning written submissions.These are just a few items former associate chief justice Coulter Osborne can look at in his recommendations to the Ontario government for improvements to the civil justice system here. Many don't require money being spent; it's often a case of changing the culture of both the bar and bench to focus on swift resolution.

 Such a cultural shift may not be easy but it is necessary and will make the system better for everyone, particularly those who should be served by it, the public.

— Gail J. Cohen 

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Editorial - The lawyers are sad

Yes, the lawyers are sad, but not as sad as pharmacists. At least that's according to a poll released last week by the City & Guilds of London Institute, a leading provider of vocational qualifications in the United Kingdom.
Lawyers came in 27th out of 28 occupations in the City & Guilds' Happiness Index with a score of 7.52 out of 10. The bottom half of the index is strongly populated by professionals, while the happiest workers are beauticians, clergy, florists, and hairdressers. The main reason for all this happiness is the chance to meet new people all the time while on the job, say the pollsters.
Although only 50 lawyers were part of the 1,301 workers surveyed last month, 49 per cent of them cited stress as a reason for their unhappiness. Twenty-eight per cent said they also felt underpaid. Seventeen per cent felt unchallenged and undervalued, and 11 per cent felt they were being undermined at work.
It's interesting to note that more than a quarter of the lawyers (well, in this case only 14 people) felt underpaid. The good news, for lawyers in Canada anyway, is that salaries are expected to rise by five per cent in the next year. That's according to a Robert Half Legal survey released earlier this year. In addition, it seems legal aid in Ontario will be getting a $13-million boost, which many lawyers are probably hoping will translate into either higher tariffs or more coverage for the work they do.
Perhaps the happiest of all will be provincial Crowns, who, according to a memorandum of settlement with the province, will get raises ranging from 45 to 60 per cent (if you include performance and other bonuses) over the next four and half years. Not too shabby, considering teachers only got about a 10-per-cent increase from the province. I imagine the Crowns will ratify the agreement this week; it'd be hard to understand why anyone would decline what some might consider such a generous settlement.
Beyond the niggly salary and stress issues, though, lawyers tied for sixth place (with butchers) on the City and Guilds' work-life balance poll. On that list, bankers brought up the rear with the worst work-life balance. So it's good to see that even if practitioners are stressed out at work, they do seem to make the best of their non-work time so their lives aren't totally miserable.
And at least this time lawyers "chose" to be at the bottom of a list. Usually it's the general public who stick them at the losing end of the most and least respected professions list.
Gail J. Cohen
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Big-time legal

The Gomery commission was a big-time inquiry that cost big-time money. It ended being the most expensive in Canadian history. The commission itself came in under budget at $32 million for two years of work. But that's just the start.
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Editorial - Slightly off message

A number of professional organizations have in recent years run advertising to enhance the public's perception of their members. These include the certified management accountants and professional engineers.
Some professions such as doctors, nurses, and firefighters don't need such PR. Others do. An Australian survey released last year about the most and least trusted professions wasn't the first and won't be the last to find legal beagles near the bottom of the pack. In this study, lawyers ranked 23rd out of 26, ahead of car salesmen, real estate agents, and politicians.
It's always been an uphill battle for lawyers. Within the last few months, the Toronto Star wrote a serious of highly unflattering articles about the Law Society of Upper Canada, which I'm sure did nothing to improve the public's attitude toward the legal profession. And daily you'll hear lawyer jokes or people whining about how lawyers are ripping them off and charging exorbitant amounts for hardly any work.
Working to address this perception disaster, the Canadian Bar Association developed a campaign in the spring of 2004 in response to a survey in which the CBA's members said they felt the association should endeavour to improve the public's opinion about lawyers. According to CBA spokeswoman Hannah Bernstein, the most recent Ipsos Reid tracking study conducted in October 2005 indicated that 74 per cent of members still saw it as "highly relevant."
The CBA created a series of print ads and a television spot, which ran last fall. Taking advantage of the huge numbers of Canadians tuning into Olympic Games' coverage, the CBA has decided to run the TV ads again. The current campaign is running during the Olympics: off-prime on CBC, off-prime and prime on Newsworld, and off-prime and prime on TSN. French ads are running on RDS and Radio Canada.
So in between the amusing ads of beavers Gordon and Frank shilling for Bell and the tear-jerker Tim Hortons commercial showing the hard-ass grandfather bringing his son a double-double at the rink, you'll occasionally catch a glimpse of Ritu Banerjee, lawyer.
Lots of people will see the ads. I have, quite a few times. However, while the accountants' and engineers' advertising campaigns were slick, professional and left an impression of quality and competence, the CBA's efforts can only be described as "cheeseball," looking as if someone put it together with an old handycam.
One viewer likened the spot, which has Banerjee coming across more as a teacher than a lawyer, to the short in-flight safety flicks you watch before take off. "It's a disgrace. We look like a charity," said another young lawyer.
If you haven't caught the ad during your Olympic viewing, it's on the CBA's web site at www.cba.org/CBA/about/discover.
It seems lots of people are seeing the ads, the airtime for which is costing the CBA $85,000, but it may not be making the impression the association had in mind. Perhaps the CBA should try again and give its message a bit more professional polish. These ones aren't going to do
anything to improve lawyers' reputations.
— Gail J. Cohen
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Wireless hotspots and the law

Not long ago wireless Internet access was mostly of use to laptop users. Now an increasing number of electronic devices are "Internet-enabled" and capable of utilizing publicly accessible hotspots. For example, many PDAs have web browsers that can be used to access the Internet or built-in e-mail clients that can synchronize over a wireless connection.
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The lighter side of politics

It's election time in Canada and once again a great occasion to watch politicians putting their feet into their mouths — saying the wrong thing and doing the wrong thing.
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Editorial - Free press issues at the fore

Last week freedom of the press issues were in the forefront of the news ? the most obvious situation being the confrontation between extremists on both sides over the publication of cartoons depicting the prophet Muhammed. All I'll say about that is everyone knows most newspapers and magazines in Europe and western countries have the right to print whatever they want. However, respect and good judgment should also play a part. Fanning the flames of this us-versus-them scenario is no more right or justified than gangs of Muslims setting fire to Danish embassies and flags.
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  • Access to Justice
    Access to Justice The Action Group on Access to Justice (TAG) strives to inform the public on the importance of the people having access to legal resources and…
  • Legal Aid lawyers rally for collective bargaining rights
    Legal Aid lawyers rally for collective bargaining rights Legal Aid Ontario lawyers held three protests in July to push the provincial government to support their attempts to unionize. The lawyers have been in…
  • Jane-Finch community gets employment law help
    Jane-Finch community gets employment law help Osgoode Hall Law School's Community Legal Aid Services Programme recently opened an employment law division for Toronto's Jane-Finch community.Phanath Im, review counsel for the division,…
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Law Times poll

Recreational marijuana use will be legalized, and lawyers say there will be an increase in terms of criminal charges and civil cases as a result. From the perspective on how this will impact the courts, do you support pot legalization?
Yes. While there will no doubt be an impact on the courts from this change, the overall social benefits of legalization are positive.
No. The move to legalize marijuana is short-sighted, and will lead to negative social results, including longer court delays.