Law Times

November 7, 2016

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Challenge to hinge on pardon waiting period BY SHANNON KARI For Law Times A n increase in waiting periods to apply for a pardon of a criminal conviction that was en- acted by the former Conservative government of Stephen Harper is facing a court challenge on the grounds that the changes violate the Charter of Rights. An Ontario Superior Court judge in Ottawa will hear an ap- plication Nov. 7 by two men who are arguing that the current provi- sions, which also applied retroac- tively after they were implemented in 2012, constitute "punishment" and breach sections 11(h) and 11(i) of the Charter. For its part, the Liberal gov- ernment is defending the current rules in the court challenge even though earlier this year Public Safety Minister Ralph Goodale criticized the changes and de- scribed them as unfairly punitive. Federal government lawyers state in their written submissions in Su- perior Court that criminal records are not punishment but merely a "historical account" of an individ- ual coming into contact with the criminal justice system. The Conservatives amended the rules in 2010 and 2012 for any- one seeking a pardon. The name of a pardon was changed to "record suspension" and the fee to apply for one was quadrupled to $631. The waiting period for anyone seeking a record suspension was increased to five from three years for indi- viduals convicted of a summary conviction offence, such as simple possession of marijuana. For those convicted of an of- fence that was prosecuted by in- dictment, the waiting period was doubled to 10 from five years. The Safe Streets and Commu- nities Act, passed in 2012, also imposed the increased waiting periods on people convicted of criminal offences before the new measures became law. Vic Toews, then-public safety minister, told the House of Com- CARDING ISSUES New regulations mean uncertainty P7 FOCUS ON Family Law P8 See Waiting, page 4 PM #40762529 $5.00 • Vol. 27, No.35 November 7, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Follow LAW TIMES on www.twitter.com/lawtimes Michael Spratt says 'liberty must be given a broad meaning,' in a document filed with the court arguing pardon wait times violate the Charter of Rights. PRIVACY DISPUTE Court sides with lawyer, not privacy commissioner P5 BY ALEX ROBINSON Law Times L awyers say a recent Hu- man Rights Tribunal of Ontario decision has turned the test used to de- termine family status discrimina- tion on its head. In Misetich v. Value Village Stores Inc., a Niagara Falls, Ont. Value Village employee, Tonka Misetich, claimed her employer had discriminated against her by requiring she work evenings and weekends at times she cared for her elderly mother. Adjudicator Jennifer Scott dis- missed Misetich's claim, but she also rejected a test for family sta- tus discrimination developed in a 2010 Federal Court of Appeal de- cision, Johnstone v. Canada Bor- der Services. Lawyers say that while the tri- bunal in Misetich tried to clarify what the test should be, the deci- sion actually muddied the waters in terms of what it will be going forward in Ontario. "It is an ongoing struggle to try to figure out what the law is in this area," says Raquel Chisholm, a partner at Emond Harnden LLP, who added she expects to see the issue eventually come up before the Supreme Court of Canada. In Johnstone, the court de- termined that in the context of childcare, a claimant must prove a number of things that include the child is under the caregiver's supervision, and that the claim- ant's obligation to the child is one of legal responsibility rather than personal choice. According to the Johnstone test, claimants must also prove that they have made reasonable efforts to meet those obligations through alternative solutions but that no such solution is reasonably accessible. The fourth thing they must prove is that a workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare ob- ligation. The tribunal's decision in Misetich found that the develop- ment of a different test for fam- ily status discrimination has made the burden higher than that for other types of discrimination. Scott took issue with part of the Johnstone test that requires a par- ent to prove they have a legal obli- gation. The tribunal said the ob- ligation need only be significant, See Test, page 4 Parisa Osborne says it's important lawyers are aware of both the recent Misetich and Johnstone tests, while the law is in flux. Photo: Robin Kuniski Discrimination decision muddies waters AnyWhere. AnyTime. AnyDevice. www.divorcemate.com ntitled-2 1 2016-11-02 7:37 AM THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS NEW EDITION Perfectbound Published December each year On subscription $82.50 One time purchase $86 L7796-5932 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. ORDER YOUR COPY TODAY! 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