Law Times

October 31, 2016

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Page 2 OctOber 31, 2016 • Law times www.lawtimesnews.com NEWS NEWS of the province or by the senior judge of the territory; a nomi- nee of the provincial attorney general or territorial Minister of Justice; and three nominees from the federal government representing the general public. "The purpose of the new judicial advisory committee is to open up the process to be more public and more trans- parent and to ensure that we are making a concerted effort to ensure that there is diversity on the bench so Canadians can see themselves in terms of the judges they see," Justice Minister Jody Wilson-Raybould told MPs in Question Period in the House of Commons on Oct. 24. Stephen Mullings, president of the Toronto Lawyers Asso- ciation and partner with Dutton Brock LLP, says reforming the JACs is "going to cause a further delay with filling the existing va- cancies." "One of the things that is troublesome for us in Toronto is that we have these vacancies to begin with, but even if we fill the vacancies, it won't be enough because we've outgrown our ju- dicial resources long ago, and we need to increase the comple- ment," he says. "The immediate concern is get those vacancies filled, and it sounds to me like we're going to be waiting until mid-2017." Canadian Bar Association president René Basque, a partner with Actus Law Droit in Monc- ton, says the association "agrees with the reinstatement of the 'highly recommended' category for judicial candidates as a way of denoting truly exceptional candidates." "We are also happy that voting on Judicial Advisory Commit- tees has been rebalanced so that the majority of members will be independent of the government," says Basque. "We welcome the move toward transparency and openness in selecting the general public members of the JACs, and in requiring people to complete a questionnaire when they apply for appointments." Basque's praise is tempered when he points out the need to fill the remaining 40 vacancies quickly, because of delays in the court system. The government is accepting applications and nominations for the new committees until Nov. 17, which means that it will not be evaluating new judicial nominations until 2017. Removing the police presence from the JACs is irksome partic- ularly to Conservative MPs and senators, who saw their contri- butions as valuable. "Nobody is in greater contact on a daily basis with people in- volved in the law than our law enforcement agencies," says for- mer attorney general Rob Nich- olson, who is currently the Con- servative justice critic and MP for Niagara Falls, Ont. "They did a good job and I'm sorry they're being taken off." That justification does both- er critics of police inclusion like Sossin. Police inclusion "bought into this notion that judges needed to be tougher on crime and crimi- nals, which is, of course, the role for government in passing legis- lation," says Sossin. "To put law enforcement there seemed to imply that we wanted to have judges with a concern to law enforcement, and it's not clear why we would want that in a body that we created to be an accountability check. Law en- forcement has the guns and the power — it's the court that has to be the bulwark for the rule of law and the limits of that power." The reconstituting of the committees to ref lect greater di- versity does have its proponents, even if it causes delays in filling the remaining vacancies. "We have very few minor- ity judges in all courts across the country, and it's especially not acceptable in B.C. where I come from, because we hardly have any judges of colour," says Liberal Senator Mobina Jaffer, a lawyer with Dohm Jaffer Jeraj in British Columbia since 1978. Jaffer was the vice-chairwoman of the Senate Legal and Constitu- tional Affairs committee when it began its study on court delays, and she remains on the commit- tee currently. "Over the years, people kept saying no, no, no, so people stopped applying. This is the same thing that happened with women — they stopped apply- ing, then the chief justice [of B.C.] set up a proactive way to bring people in," she says. "I have the greatest respect for the judicial committees, but you only select people you know well. If you're out of the box, they don't select you." Jaffer says that she respects what Wilson-Raybould is doing by reforming the JACs in order to get them to give her better names. "I understand that we need to work on court delays, but I also understand that we need to change the face of courts," Jaffer says. "Why? It's not just because it's a person of colour, but if the bench ref lects the community, there is respect for the bench." As part of its announced changes, the government did commit to collect and publish statistics on judicial applications and appointees. "A growing number of law- yers are women and members of racialized and other minor- ity groups, yet their numbers are not ref lected on the courts," says Basque. "Open data is a good first step to diversity. We look forward to working with the minister to achieve our shared goal of increasing diversity on the bench." LT Continued from page 1 Open data helps improve diversity of the bench: Senator lawyers at a Queen Street East location, first approached the is- sue of the amount of paperwork needed to submit an appeal when it attempted to file almost 1,500 pages in its biggest case to date. Gerry Williams, a former homeless man the clinic rep- resented, had amassed more than $65,000 in fines on more than 400 tickets. More than 18 per cent of his tickets were Safe Streets Act offences. In order to file an appeal, ap- plicants were previously required to submit three forms for every individual fine. In Williams' case, this meant more than 100 hours of work by 15 people just to fill out the paperwork. "It's not something anyone has the time to do on their own, especially people who have ad- diction and mental health is- sues," says Nefs. The court refused to take the mammoth application in early 2016, saying the clinic could submit one set of forms with an attached spreadsheet. The clinic believed this was a new procedure, but when it later tried to submit another appeal with a single set of forms, it was told Williams' case was a one- time occurrence. Nefs says the head clerk, who had established the process with the clinic, had since retired, causing a breakdown in com- munication among the court- house staff. Nefs, however, was able to come to an agreement with court officials in late October that, as long as the appeal had more than 50 tickets, the clinic would be able to use the expe- dited process again. "It would, unfortunately, be up to the clerks to communi- cate that this different process is available, but people who are representing themselves would be able to make use of this pro- cess as well, which would be a huge difference for them," she says. Lawyers say the change will make a huge difference in terms of how much time and work each appeal will take. Nefs says it took only six hours to fill out the paperwork for Williams using the abbrevi- ated process. The clinic will be able to take advantage of the new procedure with an appeal it will be filing in a few weeks that has 250 charges and $35,000 worth of fines. When asked if the new proce- dure in the Toronto courthouse could be part of a province- wide policy, Brendan Crawley, a spokesman for the Ministry of the Attorney General, said municipalities are responsible for the administration of courts hearing Provincial Offences Act matters — under which Safe Streets Act charges fall. "As we work toward modern- izing the POA system, initiatives to streamline the processes of non-criminal offences will re- quire thorough appraisal and further discussion," Crawley said in an email. While the streamlined pro- cess in Toronto is a big step in fighting these tickets, lawyers say their eventual goal is to see the act repealed. Jessyca Greenwood, a To- ronto lawyer who does pro bono work for the clinic, says the SSA unnecessarily punishes people with mental illness. "If there is conduct that's criminal assaultive, violent or putting the community at risk, then that should be dealt with under the Criminal Code," she says. The Ontario Court of Appeal has affirmed the act after the Ontario Superior Court rejected a constitutional challenge to the legislation in 2005. While the clinic's clients often have many tickets from offences under other provincial statutes or municipal bylaws, Daniel Ci- arabellini, the director of Fair Change, says the SSA is the most obvious source of problems be- cause it only impacts homeless people. LT Continued from page 1 Act clogs courts, say lawyers ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. 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