Law Times

Page 4 March 25, 2013 �� Law Times ��� NEWS Judge reiterates lawyers��� duties in refugee matters BY ANASTASIA MOSKVITINA For Law Times I n a ruling reiterating lawyers��� duties in immigration matters, a Federal Court judge has granted a new hearing to a Roma man after finding the actions of his former counsel compromised the refugee protection division of the Immigration and Refugee Board of Canada���s decision in the matter. In his application for judicial review, applicant Viktor Galyas, a 37-year-old man who feared persecution in Hungary, claimed the division denied him refugee status because the office of his former lawyer didn���t properly fill out his personal information form, which in turn caused it to find inconsistencies in his testimony at the hearing. Galyas said he was left to write his own narrative and the instructions weren���t explained to him, according to the March 8 Federal Court ruling in Galyas v. Canada (Citizenship and Immigration). In his decision, Justice James Russell ruled in favour of Galyas because he found the results of the hearing would have been different if it weren���t for his former counsel���s actions. ���The respondent says that, on the facts of the present case, the applicant has not established that his former counsel was incompetent or that the result would have been different. I disagree,��� wrote Russell. ���After arriving in Canada, the applicant was told by a neighbour to go to the law offices of Viktor Hohots,��� Russell noted. ���He met with an interpreter who told him to write out the reasons for his claim and to sign the personal information form (PIF) before he left. The interpreter did not tell the applicant that what he was writing would be used as his PIF narrative; nor did he explain what should be in a PIF narrative or its relevance to the applicant���s claim. The applicant was not given any instructions on what to write, so he just wrote a short and general paragraph about his experiences in Hungary.��� Galyas��� narrative contained allegations of persecution but didn���t set out the events that took place in detail and chronological order. It contained general statements such as: ���Since I was a boy, I struggled because I am a gypsy��� and ���I was humiliated, discriminated, and beaten.��� During the judicial review, Galyas��� new counsel, Aisling Bondy, argued that had her client known what was supposed to be in the form, he would have provided the proper information and documentation. She criticized the fact that no one from the office of his former lawyer explained the application to Galyas or attempted to amend his weak narrative. Department of Justice counsel Suran Bhattacharyya argued there was no breach of procedural fairness since Galyas was told repeatedly he needed to obtain relevant documents to support his claim and was aware he could amend his form. She cited several letters Hohots��� office sent to Galyas. She argued there was no basis for a claim of incompetence because ���a claimant who is partly at fault for failing to be diligent is not entitled to relief.��� But Russell found otherwise. ���Anyone with experience before the RPD knows that it consistently and relentlessly draws negative credibility findings from a failure to include important incidents in the PIF and that, where an applicant is assisted by a lawyer, it will not accept a lack of knowledge as to what should be included in a PIF as a reasonable explanation. In that regard, the applicant���s PIF is a negative credibility finding waiting to happen,��� he wrote. Counsel from Hohots��� office for the hearing was Vikramjit Uppal. According to Russell���s ruling, Uppal met with Galyas a few days before the hearing. ���Nothing in the tribunal record indicated I was incompetent,��� Uppal tells Law Times. He says he was ���not responsible for the PIF,��� which was ���submitted two years earlier by different counsel.��� Uppal says he made some amendments to the form before the hearing but notes he didn���t change the narrative because that would undermine the credibility of the claim. ���I went over the narrative and specifically advised him [Galyas] it was weak,��� he adds. Uppal is seeking to have Russell���s ruling overturned on the basis that not all of the facts were before the court, according to his counsel, Rocco Galati. LT Ministry���s management practices criticized Continued from page 1 tracking workloads, efficiency, and quality of performance. ���When we last audited the division in 1993, we noted ���a systemic emphasis on prosecutorial discretion,��� and that monitoring was done by ���more subjective means, such as informal feedback and personal knowledge about the individuals involved.��� This observation remains valid today,��� the report noted. The audit report also found that the division ���does not have a systematic process in place to ensure that services at its 54 Crown attorney offices are consistently meeting minimum standards.��� It noted that at 11 Crown offices, there were ���no standards for recording decisions and events, forms were either missing or not used, and case files were missing.��� Crawley indicated that since the release of the audit report, the ministry is working towards improvements, including in information and case management; monitoring and tracking cases; and key performance indicators. He stated: ���We recognize the need for measuring workload effectively and the benefit this has for overall organizational planning. Defining workload is challenging for a prosecution service as large as Ontario���s and there are many variables and factors that must be taken into consideration. We are comparing how other jurisdictions measure workload to see if there are processes we can apply here.��� Anthony Doob, a professor of criminology at the University of Toronto, says there���s ���a long tradition in the Ministry of the Attorney General of not managing what they are doing by looking carefully at data.��� He adds that the idea of making this information public is also not part of the tradition. While other provinces track each Crown lawyer���s workload and have electronic case-management systems in place, Ontario has fallen behind. The audit report stated that an electronic management system that was to have been in place by now ���has been significantly delayed because of weak management, oversight, and financial reporting and insufficient resources being dedicated to the project.��� Ontario���s Crown offices ���have an antiquated, not very useful information system and they���re really hampered by that,��� says Doob. The new electronic system was originally supposed to be running by March 2010 at a cost of $7.9 million but it���s still not in place. As of November 2011, the estimated costs had ballooned to $11.5 million with an expected launch in March 2015. In a Dec. 17, 2012 story, Law Times reported that the ministry was considering scrapping the electronic system altogether. On the other hand, the audit report noted Alberta had paid $1 for the rights to use and further develop Manitoba���s case management system. ���At this time, the division is continuing to evaluate existing case management systems from other jurisdictions, as well as systems used by police services to see if there are components that could be used in Ontario,��� said Crawley. Despite the increase in the number of Crown attorneys, taxpayers may not be getting their money���s worth. Statistics Canada figures reveal that Ontario had the highest rate ��� 43 per cent ��� of adult criminal charges withdrawn or stayed in 2010 and 2011. For the rest of Canada, the number was 26 per cent. At the same time, Ontario had the lowest rate of guilty verdicts at only 56 per cent whereas the rest of Canada was at 69 per cent. The audit report pointed out that ���the division does not have the information needed to determine the reasons for this or whether this relates more to certain regions or Crown attorney offices.��� While low conviction rates and high numbers of stays and withdrawals suggest problems in Ontario���s justice system, criminal defence lawyer J.S. Vijaya says higher conviction rates don���t necessarily mean success. ���It is not supposed to be a scorecard measure of success like a hockey game or a football score. It���s not that simple.��� He notes Crown attorneys are not supposed to care if they win or lose. ���There is a tendency to overcharge everything which is under the sun,��� says Vijaya, noting police officers will lay several charges knowing people will use plea bargains to reduce them. The Toronto region may be costing taxpayers more than other areas. The audit report indicated it costs more to resolve a charge in Toronto. The Toronto region has the most charges in total, but the cost on average is $437 per charge compared to $268 in other locations. In response to inquiries on the reasons for the higher costs in Toronto, Crawley wrote: ���As the auditor general explained in his report, the ministry does not track this type of data. The criminal law division is still reviewing these findings.��� LT Putting the legal community front and centre has made us the #1 choice with Canadian lawyers for over a decade. 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