Law Times

LaW TIMeS • NOVeMBeR 9, 2015 Page 5 www.lawtimesnews.com gaps," says Thomas, who's also a Toronto director of the provin- cial Criminal Lawyers' Associa- tion. The draft regulations would make it a potential Police Act disciplinary offence to collect identifying information or make an unlawful or unnecessary physical or psychological deten- tion without "good and suffi- cient cause." One of the permitted ways to collect identifying information is if it occurs during an "infor- mal or casual" interaction and the officer initially didn't intend to gather the data. The wording "is very vague," says Thomas. "Whose perception is it that decides if it was informal or ca- sual?" she asks. As well, while a government backgrounder states that police can't stop and collect informa- tion about individuals based on a "hunch or intuition," that lan- guage isn't in the draft regula- tions. Police wouldn't be able to col- lect identifying information of someone if one of the reasons is that the person is a member of a racialized group. However, if an officer is seeking to find a particular individual and be- ing a member of the "racialized group" is part of a "credible de- scription" of the person, the reg- ulations would allow it. The province needs to prop- erly define and communicate such exemptions to police so they don't use them to justify arbitrary stops, says Singh. The principles outlining the changes state that it's not proper for po- lice to collect identifying infor- mation based only on race or if someone lives in a neighbour- hood with a high crime rate. Singh says he would like to see age added to those prohibitions. "Age is a major area of discrimi- nation," he says. In certain communities, "if you are a young black man, you are going to get stopped," he adds. Data obtained by the Toronto Star earlier this year indicated that in Peel Region, there were nearly 160,000 street checks of individuals in the previous six years. Toronto police filled out 400,000 contact cards in 2012, a number that dropped to 11,000 last year, following numerous media reports and criticism of the practice. The proposed changes would require police to provide indi- viduals they stop with a docu- ment noting the name of the officer as well as the date, time, and location of the interaction. They must also provide the per- son with information on how to access the private informa- tion they've stored and how to complain to the civilian police oversight agency. The officer must also record the reason for the stop. These requirements are sig- nificant, says Morgan, because they'll provide more data about the interactions and perhaps require officers to be "more dis- cerning" when they decide to stop and question individuals without reasonable grounds. Police in Ontario have main- tained that street checks are a legitimate investigative tool, a stance that Singh questions. "Up to now, there has been no statis- tical evidence to show it is use- ful," he says. With a requirement for police to provide increased documentation when they stop people, there will be more data available to better address the is- sue, he suggests. A representative of the On- tario Association of Chiefs of Police was unavailable for com- ment last week. In a statement issued on Oct. 30, it said it had concerns about the impact on public safety if the proposed measures become law. The association also distin- guished between carding, which it admitted involved random stops, and street checks that it de- scribed as obtaining information from citizens voluntarily and a valid tool of law enforcement. Regardless of the name peo- ple give to them, these stops are "inherently random," says Thomas. She's skeptical of claims that those powers are necessary. "Police know how to identify crime. They know what needs to be done to identify rea- sonable suspects," she says. All the proposed changes would restrict, she says, is the ability of police to decide to in- terrogate a group of young men standing on a corner together on the pretext that "there must be something going on." LT authority [in the lower courts], the court has rec- ognized that the rule should be interpreted and applied robustly so that a motion judge can effec- tively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexa- tious, or an abuse of process," the court wrote in its endorsement last week. "However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the plead- ing and there is a basis in the pleadings to support the resort to the attenuated process." In the court's view, Rule 2.1 was an effort to deal with frivolous or vexatious proceedings in a summary manner. "Resort to evidence defeats the purpose that the [Rule] 2.1 process will itself be- come a vehicle for a party who might be inclined to inf lict the harms of frivolous proceedings on the opposing parties and the civil justice system," the court stated, fixing total costs of the appeal against Scaduto at $3,500. "The courts are definitely taking a harder line," says Michael Myers of Papazian Heisey Myers in Toronto. "Absent Rule 2.01, you could have serious and lengthy proceedings to deal with non-serious cases and arguments." Evidencing the harder line is a recent decision of the Federal Court, Bursey v. Canada. Using no un- certain language, prothonotary Kevin Aalto struck five actions that he described as "pseudo-legal drivel." The plaintiffs were "quintessential OPCA liti- gants," he wrote, referring to a term — organized pseudo-legal commercial argument litigants — coined by the courts. "OPCA litigants follow a now well-known path of illogic, presumption and pseudo-legal rants. [They] endeavour to build a cause of action based on snip- pets and fragments of international treaties, the Canadian Charter of Rights and Freedom, various Supreme Court of Canada cases and miscellaneous statutes, both federal and provincial. All of these are bound together in pseudo-legal verbiage." Myers, the lawyer, believes Bursey and similar cases are sending a clear message. "The way the law is going in Canada, nobody is going to get anywhere with this kind of approach to litigation," he says. Still, he notes his concern that Aalto awarded only $500 in costs against the plaintiffs in each action. "Walking to and from court from my office costs $500," he says. "Until the courts make OPCA and other frivolous litigants pay through the nose, they're going to keep trying no matter how the law develops." John Olah, a senior litigation partner at Beard Winter LLP in Toronto, has also seen a rise in the number of frivolous lawsuits. He attributes the rise to a number of factors. "The larger problem is that there is an increasing inability for the public to access lawyers, so in some cases we are seeing parties representing themselves and who don't understand the process. As well, in some cases, the young lawyers haven't always done the best job in their handling of these types of cases, often because there is a lack of adequate mentoring." Olah also notes the pervasive mentality that any case has a settlement value and the involvement of law firms that may not have the resources to properly review and assess files. "As well, there's a decline in work out there for the plaintiffs' bar and some plaintiffs' lawyers seem to be taking on more and more tenuous cases than they did in the past," he says. "Having said that, it's also important to point out that there are only a relatively small number of cases that have no merit." Nevertheless, Olah acknowledges that open courts and access to justice are essential for democ- racy and the rule of law to function effectively. "But there's a price for that, and the public ulti- mately pays the price," he says. In his view, the courts and legislatures need to adopt an approach that mirrors the one taken in Charter jurisprudence. "We have to balance the right to open access by creating processes that filter out meritless cases at an early juncture and eliminate them early and inexpensively," he says. "In the end, perhaps the best we can do is recognize the problem and impose substantial indemnity costs to send out the message that litigants who resort to these tactics will pay a meaningful price." LT NEWS E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 Willowdale, Ontario M2N 5W9 (905) 731-5812 evlitigation@rogers.com E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 evlitigation@rogers.com Toronto, Ontario M2N 5W9 (905) 731-5812 CFA, CPA, Vlit_LT_Mar10_14.indd 1 14-03-04 10:18 AM and it's available to you 24 hours a day. s available y availabl y legal expertise? Looking for Find exactly what you need at www.CanadianLawList.com Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. Simply go to www.CanadianLawList.com to find the right lawyer for your particular legal need. www.CanadianLawList.com is Canada's most comprehensive online directory of lawyers and law firms. And it's easy to use! You can search by city, legal specialty, or name for listings and contact information. Find the legal expertise you need at www.CanadianLawList.com. Untitled-5 1 2015-10-20 2:39 PM Continued from page 1 Courts sending clear message NDP critic wants age added to carding prohibitions Continued from page 1

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