Law Times

Law Times • June 17, 2013 Page 3 NEWS Paper touts 'no jail' option in exchange for reduced Charter protection BY SHANNON KARI For Law Times A discussion paper issued by the federal Department of Justice is suggesting that for certain offences, the assurance of lower penalties or no time in jail in exchange for reduced protection under the Charter of Rights and Freedoms could lead to a more efficient criminal justice system. A number of options to achieve these goals arise in the proportionality discussion paper issued by the federal steering committee on justice efficiencies and access to justice. The discussion paper, which dates back to last year, went out to a number of groups representing participants in the justice system on May 16 along with an introductory letter from Lori Sterling, associate deputy minister for the Justice Department and a member of the committee. "The full protection of the Charter is necessary and strict rules of evidence are appropriate to ensure fairness to a person charged with a serious criminal offence," wrote Sterling. "However, we feel it is necessary to ponder the following question: Is this protection necessary and appropriate with respect to every offence? In the post-Charter world, moving towards greater proportionality is challenging, but, the committee believes, essential." The main options examined by the committee included: • Increased hybridization • The right of the Crown to make a "no jail" election • Administrative approaches to first-time offenders in impaired driving matters • Making minor property crimes provincial offences • Criminal arbitration for some offences The discussion paper committee included 17 members: the deputy attorneys general from five provinces; several senior judges from the provincial and superior courts; a representative of the Canadian Bar Association and the Canadian Council of Criminal Defence Lawyers; and two people from the Canadian Association of Chiefs of Police. Amendments to the Criminal Code to provide for more administrative sanctions for first-time impaired drivers and the creation of a criminal arbitration process attracted the most interest from committee members, the discussion paper noted. The paper approvingly cited changes to the Motor Vehicle Act in British Columbia in 2010, which imposed immediate administrative penalties on people accused of impaired driving, as a way to increase justice efficiency. However, a B.C. Supreme Court judge struck down some of the changes a year later and required the B.C. government to amend the act to provide for more rights of appeal. The discussion paper states that for most offences in the criminal courts, the court doesn't impose a custodial sentence upon conviction. "Yet, the trial of these offences can involve frequent and lengthy Charter applications. Strict rules of evidence also apply in such cases. Is this necessary?" the steering committee asks. In response, it suggests the right of the Crown to make a "no jail" election for certain offences, which may mean that "the liberty component of s. 7 of the Charter may not come into play or may be reduced." A criminal arbitration process could deal with some of these "no jail" cases separately from the criminal court system, the committee suggests. "Accused persons would face a less expensive, less intimidating, and less complex option to deal with their criminal charges," according to the discussion paper. "For any kind of criminal arbitration to work effectively, the accused would need to waive his/her Charter rights, particularly the right against self-incrimination." Any arbitration process would also need to involve services for offenders with addiction or mental-health issues, according to the committee. The potential changes outlined in the discussion paper "provide some good points of debate," says Enzo Rondinelli, a Toronto defence lawyer and a member of the adjunct faculty at Osgoode Hall Law School. "Something has to be done" to deal with problems such as overburdened courts, limited legal aid resources, and "a growing number of mandatory minimums leading to more contested trials and incarceration," says Rondinelli. Dispensing with Charter applications for certain offences may be reasonable, yet Rondinelli suggests "there are many cases that should not be in the system." While the discussion paper looks for efficiencies after an individual is already in the system, it doesn't address what to do about the number of minor charges laid by police each year, says Carissima Mathen, a criminal law professor at the University of Ottawa. "It is all post facto, after the decision has been made to charge." Any changes, she suggests, need to be "paired up" with increased funding for programs that deal with the social conditions that lead to people committing multiple minor offences. Catherine Latimer, executive director of the John Howard Society of Canada, echoes that view. Finding greater efficiencies is "critically important," she says."But this should not be done by compromising the Charter rights of the accused. Maximizing front-end programs and alternatives to the criminal justice system, such as mental-health and substance abuse programs, would be economical and effective." LT Lawyers 'worth every penny' BY AMANDA SILLIKER For Law Times A t Compass Group Canada, the human resources department works closely with the in-house legal team. The team is very collaborative and helps human resources staff support the managers dealing with employees, says Gavin Clingbine, director of human resources at the 25,000-employee food services company in Mississauga, Ont. "What's critical in today's employment market and for employers is attracting, retaining, and engaging employees. And part of that is managers making good and informed decisions with HR support — and the backing behind that is good legal advice," he says. "They're a piece of the picture to being a top employer." The legal team at Compass is "100 per cent" a strategic partner with human resources, says Clingbine. And more than onequarter (28 per cent) of human resources professionals across the country consider their lawyer a strategic business partner, according to a pulse survey. Another 26 per cent consider their lawyers to be partners in some aspects of strategic planning. But 46 per cent only use their lawyer for transactional support, the survey of 552 Canadian HR Reporter readers and members of the Human Resources Professionals Association found. "An HR director or HR VP has strategic knowledge themselves and has a background in employment law and certainly knows what policies to put in place that would be proactive against any litigation," says Evelyn Mayor, director of human resources at the Canada Drugs.com Group of Companies in Winnipeg. More than two-thirds (69 per cent) of survey respondents said their lawyer understands both the practical and legal sides of human resources. "It's a complete package. It's not just about numbers or black and white. When you're dealing with people, everybody's different. It's about treating people with compassion, what are fair expectations," says Catherine King Ward, human resources manager at Houghton Canada in Brampton, Ont. One of the lawyers the Nova Scotia Liquor Corp. works with specializes in human resources issues, and his practical understanding of the matter is very helpful, says Roddy Macdonald, vice-president of human resources at the Halifax company. "Advice that is just kind of conceptual legal advice is not as handy as advice that's practical and meets the legal requirements but can be implemented in practice," he says. But it's also important for human resource professionals to understand how to use legal services because it can be easy to run up the bill, says Macdonald. "It's important to balance drawing on legal services for legal and strategic advice without having them do a bunch of transactional stuff that you should be doing in-house." Still, 43 per cent of respondents said that although lawyers are expensive, they're always good value for the money. "It's a competitive marketplace and you need important and winning advice to do what's right for staff and the company and you need to have good employment lawyers," says Clingbine. "They're worth every penny." LT ANNOUNCEMENT Untitled-5 1 www.lawtimesnews.com 13-06-07 1:09 PM

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