Monthly Archives: May 2013

A Dodek: The Curious Case of the Non-Lawyer Attorney General: White Tiger of the Legal System

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On May 29, 2013, on the SLAW website, Adam Dodek recently posted his thoughts on the implications of an non-lawyer assuming the role of AG.  For the original version with some very interesting comments, click HERE.

Must the highest legal officer in the land be a lawyer? Surprisingly, the answer is no.

Recently, the B.C. Court of Appeal dismissed an appeal from a decision of the BC Supreme Court that held that the appointment of a non-lawyer Attorney General (the Honourable Shirley Bond) did not breach that province’s Legal Profession Act. In Askin v. Law Society of British Columbia, 2012 BCSC 895, Madam Justice Stromberg-Stein held that “the Legal Profession Act cannot be read in a manner which limits the Lieutenant Governor’s absolute and unfettered right to appoint members to the Executive Council and assign portfolios, including that of the Attorney General.”

One must admit that the petitioner had a point. It seems strange that the occupant of the highest legal office of the province could be a non-lawyer. It seems strange further still that this person is charged by statute with many important legal responsibilities, including acting as the official legal adviser to the Lieutenant Governor and to the Cabinet. Continue reading →

A Dodek: Public Office and Standards of Conduct

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From the CBA National Magazine, April – May 2013 issue:

In April, NDP Leader Tom Mulcair captured headlines by supporting calls for an investigation into allegations about Chief Justice Bora Laskin and the Supreme Court’s patriation decision made by historian Frédéric Bastien. After the Supreme Court unsurprisingly announced that its internal inquiry had not unearthed any relevant information, Mulcair sharply criticized the high court for failing to undertake a broader inquiry. On twitter (@ADodek), I characterized Mulcair’s attack on the Supreme Court as uninformed and dangerous. As a lawyer, Mulcair should have known better.

My question here is whether a higher standard of conduct is expected of Mr. Mulcair because he is a lawyer.

For the full article, click HERE.

Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30

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Judgments and orders — Reasons — Trial judge delivering reasons for judgment consisting of reproduction of plaintiffs’ written submissions — Whether trial judge’s decision should be set aside because reasons for judgment incorporated large portions of material prepared by others.

From the judgment:

The question before us is whether a trial judge’s decision should be set aside because his reasons incorporate large portions of material prepared by others, in this case the plaintiffs.

1.         A Matter of Procedure

[12]                           Judicial decisions can be set aside either for substantive errors or procedural errors.  A complaint that a judge’s decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint.  It goes not to whether the decision is correct on the merits having regard to the evidence and the law, but to whether the process by which it was reached is procedurally fair.  A fair process requires not only that the parties be allowed to submit evidence and arguments to the judge, but that the judge decide the issues independently and impartially as the judge is sworn to do.  Extensive incorporation may raise concerns that the judge has not done so.

[13]                          To determine whether a defect relating to reasons for judgment is evidence of procedural error negating a fair process, the alleged deficiency must be viewed objectively, through the eyes of a reasonable observer, having regard to all relevant matters: see e.g. R. v. Teskey, 2007 SCC 25 (CanLII), 2007 SCC 25, [2007] 2 S.C.R. 267.  Reasons need not be extensive or cover every aspect of the judge’s reasoning; in some cases, the basis of the reasons may be found in the record.  The question is whether a reasonable person would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently.

For the full judgment on CanLII, click HERE

A Woolley: Chapter in a New Book

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ANNOUNCING A NEW BOOK

How Can You Represent Those People?  Edited by Abbe Smith and Monroe H. Freedman

Palgrave MacMillan, publishers. Discounted pre-publication sales currently available at Amazon.com!

This is the first-ever collection of essays on what criminal defense lawyers call The Cocktail Party Question. Contributors are some of the most experienced and thoughtful lawyers and teachers in the

country: Barbara Babcock, Paul Butler, Tucker Carrington, Angela Davis, Alan Dershowitz, Monroe Freedman, Vida Johnson, Joseph Margulies, William Montross, Ann Roan, Meghan Shapiro, David Singleton, Abbe Smith, Robin Steinberg, Michael Tigar, and Alice Woolley. It is a must-buy for lawyers, law students, and anyone interested in crime, punishment, race, poverty, and the motivations of criminal lawyers.

CBC: Articling law students caught plagiarizing

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From CBC News Online: Work stolen for ethics essay

Posted: Apr 24, 2013  12:51 PM CST; Last Updated:  Apr 24, 2013  12:39 PM CST

Two law grads have been caught plagiarizing an essay on ethics while they were articling.

The students were caught stealing material for an assignment that’s part of the bar exam process.

Law dean Sanjeev Anand sat on the Law Society of Saskatchewan committees that looked at the cases.

Both Darby Jane Bachynski and Joanie Stephanie Paquin were found guilty of stealing material.

In one decision, Anand quoted another case that said, “next to stealing, cheating and lying are the most egregious activities a lawyer can engage in.”

Anand writes that he’s mystified by the students’ behaviour.

“It is baffling why students who have successfully completed a law degree, in what can only be hoped is a singular instance of profoundly poor judgment, decide to gamble their reputation by cheating on what is acknowledged by most as a relatively straightforward evaluation.”

The students had submitted the essays last October.

But plagiarism detection software, used on all the essays that had been submitted, revealed that the papers were similar to an essay done a year earlier by another student.

Bachynski and Paquin must write a new ethics paper, write another essay outlining what they did wrong, and push back any applications to become lawyers by three and four months.

Grandfather of eyewitness in police assault trial files complaint against defence lawyer

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Written by Joe Lofaro, Metro Ottawa,  and published online May 7, 2013.

The grandfather of a key witness in the Ottawa police assault trial has filed a formal complaint against defence lawyer Michael Edelson, calling his cross-examination “excessively aggressive and intimidating.”

Norm Doucette filed the complaint with the Law Society of Upper Canada on May 3 after sitting in on the first days of the trial of Constables Thanh Tran and Colin Bowie.

The officers are accused of assault causing bodily harm during the Aug. 13, 2011 arrest of a homeless man, Hugh Styres. They have pleaded not guilty.

“Mr. Edelson repeatedly badgered and harassed my granddaughter over relatively minor details in a blatant attempt to upset and confuse her regarding events took place two years ago when she was only 17,” wrote Doucette following testimony from his granddaughter, River Doucette.

He also wrote that his granddaughter and daughter, Tasha, were doing a “civic duty,” when they reported the alleged abuse.

For the rest of the story, click HERE

A Woolley: Independence of the Bar and the Prevention of Money-Laundering

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On ABLawg, May 8, 2013, Alice Woolley considered:  Federation of Law Societies of Canada v Canada (Attorney General) 2013 BCCA 147.

Introduction

On April 4, 2013 the British Columbia Court of Appeal issued its decision in Federation of Law Societies of Canada v Canada (Attorney General), 2013 BCCA 147 which upheld the earlier decision of a chambers judge that aspects of Canada’s money-laundering legislation violate section 7 of the Charter of Rights and Freedoms and cannot be saved under section 1.

In her initial judgment (2011 BCSC 1270) the chambers judge held that aspects of the money-laundering regime undermined the lawyer-client relationship and, in particular, eroded the solicitor-client privilege, which created an unjustified violation of section 7 (para 144). Because the alternative regime implemented by the provincial law societies was an effective alternative that had a more minimal effect on the liberty interests of clients, the money-laundering regime could not be saved under section 1. The law societies’ regulation ensured “that proportionate and dissuasive criminal, civil or administrative sanctions be available for non-compliance with anti-money laundering requirements” (para 154).

To continue reading, and for a PDF of her analysis, click HERE

M Mercer: I gotta tell ya, it’s complicated! Candour Owed to Clients

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Malcolm Mercer has posted an interesting comment on the duty of candour on the SLAW website.  For the full comment, click HERE

 

In R. v. Neil, Justice Binnie stated that the duty of candour was an aspect of the duty of loyalty. As Justice Binnie put it, an aspect of the duty of loyalty is

a duty of candour with the client on matters relevant to the retainer

The fiduciary duty of candour was the basis for the earlier decision of the Supreme Court of Canada with respect to physicians in McInerney v. MacDonald,

While not previously said quite so plainly, it has long been clear that fiduciaries owe a duty of candour to their beneficiaries. As the B.C. Court of Appeal said in Ocean City Realty Ltd. v. A & M Holdings Ltd.2 (cited with approval by the Court of Appeal for Ontario in Raso v. Dionigi3):

The obligation of the agent to make full disclosure … includes “everything known to him respecting the subject matter of the contract which would be likely to influence the conduct of his principal” (Canada Permanent Trust Co. v Christie) or, as expressed in 1 Hals., 3rd ed, p. 191, para. 443, everything which “. . would be likely to operate upon the principal’s judgment”. ..

This fiduciary duty is mirrored in the Federation of Law Societies Model Code by Rule 3.2-2 which states:

When advising a client, a lawyer must be honest and candid and must inform the client of all information known to the lawyer that may affect the interests of the client in the matter.

But like many other statements of professional standards that seem obviously true when stated generally, it just isn’t quite that simple in real life.

To continue reading, click HERE.