Friday, February 27, 2015

Paralegals not entitled to represent young people under Youth Criminal Justice Act

R. v. K.P.D., 2015 ONCJ 88:

[24]            By-law 4 enacted by the Law Society provides for classes of licences, and delineates the scope of activities authorized under each class of licence, as well as any terms, conditions, limitations or restrictions imposed on each class of licence. Paralegals like Mr. Llorente, hold a Class P 1 licence. This licence restricts the scope of legal services which the paralegal is authorized to provide[10]. A licencee who holds a Class P1 licence is authorized to do any of the following:

1. Give a party advice on his, her or its legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.

2. Represent a party before,

i. in the case of a proceeding in the Small Claims Court, before the Small Claims Court,

ii. in the case of a proceeding under the Provincial Offences Act, before the Ontario Court of Justice,

iii in the case of a proceeding under the Criminal Code, before a summary conviction court,

iv. in the case of a proceeding before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, before the tribunal, …

[25]            A "proceeding" means a proceeding or intended proceeding,

(a) in the Small Claims Court,

(b) in the Ontario Court of Justice under the Provincial Offences Act,

(c) in a summary conviction court under the Criminal Code(Canada),

(d) before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament …

[26]            Thus, in criminal matters, a paralegal may only give advice to a party with respect to a proceeding "in a summary conviction court under the Criminal Code (Canada)". A paralegal may only represent a party "in the case of a proceeding under the Criminal Code before a summary conviction court"[11]. In my view these restrictions preclude the holder of a Class P 1 licence from providing legal services in a Youth Justice Court. 

[27]            Firstly, proceedings in the Youth Justice Court are not proceedings "under the Criminal Code," they are proceedings under the Youth Criminal Justice Act. This conclusion flows from section 14(1)of the YCJA. Pursuant to this section, the Youth Justice Court has exclusive jurisdiction over the offence, and the young person must be dealt with as provided in the Youth Criminal Justice Act - not as provided in the Criminal Code.  As Justice Abella states in R. v. S.J.L.,[12] Where provisions of the Criminal Code are "imported in to the YCJA", they "are deemed to be applicable only to the extent that they are consistent with the provisions and objectives of the YCJA

[28]            Secondly, a Youth Justice Court is not a "summary convictions court under the Criminal Code". The youth justice court is a specially created court, established under the Youth Criminal Justice Act. Under section 14(6) of the Act, for the purpose of carrying out the provisions of the Act, it has the jurisdiction and powers of a summary conviction court under the Criminal Code. Thus, while the Actprovides that Part XXVII of the Criminal Code (Summary Conviction Offences) will apply to trials under the YCJA, those provisions will apply only where they are consistent with the Act:(section 142).Section 14(6)does not constitute the youth justice court a court "under the Criminal Code." 

[29]            Finally, applying the principles of statutory construction to the regulatory scheme, I note that, although By-Law 4 refers to the Small Claims Court, the Provincial Offences Act, and proceedings under the Criminal Code, it contains no reference to the Youth Criminal Justice Act or the Youth Justice Court. This silence on the part of the Law Society must be presumed to be deliberate. 

[30]            Considering the foregoing, I conclude that pursuant to By Law 4, paralegals are not authorized or licenced to provide legal services including advice or representation, in proceedings under the Youth Criminal Justice Act. Such advice or representation is not within their permitted scope of activities.

Thursday, February 26, 2015

Wearing a hijab bars litigant from court

In truly bizarre story (see link below) a Quebec judge refused to hear a woman wearing a hijab. The judge cited Article 13 of the regulations of the Court of Quebec which says "Any person appearing before the court must be suitably dressed". 

The judge said that rules had to apply equally and no one would be allowed to wear a headscarf in Court. 

"In my opinion, you are not suitably dressed," Judge Eliana Marengo told Rania El-Alloul. 

"Decorum is important. Hats and sunglasses, for example, are not allowed, and I don't see why scarves on the head would be. The same rules need to be applied to everyone."

(One wonders if the judge has heard of the concept of disproportionate impact of facially neutral rule - for example a ban on breast feeding at work that applied equally to men and women). 

Most jurisdictions have a provision similar to Quebec's Article 13.  Nunavut, for example has Practice Direction 25 that deals with court attire - although it largely is drafted to allow lawyers to wear traditional clothing in court. Ontario generally requires that all persons in court be dressed respectfully and a judicial officer can refuse to hear someone who, for example, is wearing a swimsuit - and I have seen that (Ontario Court of Justice in Bradford). 

But it is unheard of (at least till now) for a modern Canadian court to disallow someone to be heard because of religious clothes. In Ontario (but not Nunavut) court clerks often say "remove your hat unless worn for religious purposes"; merely saying a hat is worn for religious purposes ends the issue.  

Freedom of religion does not end at a courtroom door; indeed case law protects the right of someone to attend court with full face covering absent good reason to require unveiling. 

For a judge in Canada today to refuse to hear someone because they are wearing a hijab is clearly an error of law - not to mention just plain bizarre. 


Tuesday, February 24, 2015

Unreasonable verdict

R v Moose, 2015 ABCA 71:

A verdict may be unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge: R v RP2012 SCC 22 (CanLII) at para 9, [2012] 1 SCR 746.

Monday, February 23, 2015

Misapprehension of evidence involves a "stringent standard"

R. v. Bonnington, 2015 ONCA 122:

Misapprehension of evidence involves a "stringent standard": R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. This standard is met only "[w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction": R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541, cited with approval in Lohrer.

Saturday, February 21, 2015

Freedom of Religion

Recent events in the news have raised the issue of religious freedom and specifically the legal implications of religiously focused face covering. The Constitution does give certain rights and freedoms that are relevant.
The "Fundamental Freedoms" section of the Canadian Charter of Rights and Freedoms states:

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion ...
A fundamental right to freedom of religion is a central part of the Constitution.

That said, all rights and freedoms are subject to reasonable limits prescribed by law that are consistent with a free and democratic society. The hard issue is where to draw that line.

The Supreme Court considered the issue of people who did not want their faces to be on public documents - drivers licences - in Alberta v Hutterian Brethren of Wilson Colony 2009 SCC 37. Here the Court held religious conduct was properly limited.

Alberta required all persons obtaining drivers licences had to have a photograph taken; a requirement objected to by Hutterites. Alberta conceded that the photograph requirement was a violation of the Hutterites' religious freedom but argued that this violation was allowable as a "reasonable limit" on Charter rights. The Hutterites maintained that the requirement was an unreasonable limit.

Chief Justice McLachlin, writing for the majority, found the law constitutional. She found that the government's need to fight identity fraud was pressing, and that driving was not a right, so the government was entitled to attach legitimate conditions to it.

A government requirement to reveal a face, contrary to a sincerely held religious belief, is valid but only if there is a substantial and important reason for the requirement and there is no other practical way to fulfill the requirement. Absent such basis a limit on freedom of religion will be held unconstitutional.