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Page 4 NOVeMBeR 23, 2015 • LaW TIMeS www.lawtimesnews.com Justice minister mandated to review Ottawa's litigation strategy Lawyers hoping for changes to mandatory minimums, new positions on appeals BY NEIL ETIENNE Law Times ith this fall's changing of the guard in Ottawa, lawyers are hop- ing for legal reforms with the new justice minister charged with reviewing the federal gov- ernment's litigation strategy. Newly elected Prime Minister Justin Trudeau gave some hints during the election campaign that the Liberals would bring a different approach to legal mat- ters. The first of the changes came on Nov. 16 when the gov- ernment formally withdrew an appeal to the Supreme Court of Canada of a ruling dealing with its attempt to ban the niqab at citizenship ceremonies. Just three days earlier, Trudeau sent mandate letters to each of the new ministers. In his letter to Justice Minister Jody Wilson-Raybould, the priorities include a review of the govern- ment's litigation strategy. "This should include early decisions to end ap- peals or positions that are not consistent with our commitments, the Char- ter or our values," wrote Trudeau. Toronto lawyer Omar Ha-Redeye says Wilson- Raybould's mandate to review the government's litigation strategy is a big job for the rookie minister. He says the philosophical swing from a Conserva- tive government led by a former Reform party MP to the new Liberal regime will likely bring signifi- cant change to Ottawa's legal approach. Ha-Redeye says that while the niqab debate was certainly a polariz- ing one during the elec- tion campaign, it was one that affected only a small portion of the population. He says its prominence in the elec- tion is most likely why the gov- ernment dealt with it so quickly but he suggests there are far more significant areas for Wil- son-Raybould to review. "There are going to be substantive changes in terms of a new majority government coming into place. They announced that [nibaq decision] early on in this new administra- tion because they wanted to signal very clearly the new type of approach they are going to be taking toward issues," he says. "But in terms of the justice sys- tem, this has a fairly negligi- ble impact and there's much bigger issues at stake." Ha-Redeye says one is- sue the Canadian Bar As- sociation and many law- yers are particularly keen on seeing action on is the approach to mandatory minimum sentencing. "Irrespective of po- litical ideology, there has been widespread and near- unanimous opposition in the legal community against those measures," he says, adding he expects the government to ap- peal some of the laws and with- draw from some of the litigation they've spawned. "From a justice prospective, I think that is probably the most pressing issue and the cases that will have the greatest impact on the population." It's an issue civil litigator Sarah O'Connor of O'Connor Richardson PC sees as a priority along with significant changes to Bill C-51. In her view, the government needs to balance the costs of its appeals against the potential gains to society. She says the Conservative government's ap- peal of the nibaq ruling was a good example of wasted funds on a case that had little chance of success and ultimately af- fected only a very small part of the population. "[Government] appeals based on trying to draw political support or to fear mon- ger do little good for the admin- istration of justice," she says. O'Connor hopes the review includes a solid look at the former Conservative government's 2014 attempt to appeal a B.C. ruling that would reinstate a program to guarantee lifelong disability pay- ments for injured veterans. Hugh Scher of Scher Law PC expects the new government to approach the review from a phi- losophy of furthering rehabilita- tive policies and dispute resolu- tion over adversarial stances. He also expects certain discre- tionary powers to swing back to judges. "There will be certain cases around aboriginal rights where there's ongoing appeals, partic- ularly in regard to land claims or other aspects of aboriginal jus- tice where I can see an attempt to move toward a more concilia- tory and negotiated resolution process and to even put in place a form of dispute resolution that would otherwise take these mat- ters out of the courts," he says. In the short term, Ha-Redeye says the government should fo- cus on reviewing elements of Bill C-51, legislation he says is akin to "medieval" law. "As unfortunate as they were, I don't think the attacks in Paris should deter us from moving in this direction. We need to go back to being an open so- ciety," he says. "I don't see how it's a just approach and I think it's contrary to public policy. Of course, it's still an open debate and there's a lot of discussion in the legal community as well as within the [Liberal] party about how much is going to be retracted." O'Connor says she, too, wants a thorough review of the bill but hopes the government is careful to also provide for greater oversight around refu- gee claims. "It's going to divide society if we don't have proper back- ground checks," she says. "Parts of the bill are mind-boggling, but I think what's happening [in Paris] is going to create some public fears they're going to have to be very aware of and address through their reviews." In general, Ha-Redeye says there will likely be a significant philosophical change to the gov- ernment's approach to litigation matters. "It may not be evident to the public already, but we're turning back toward an evi- dence-based justice system," he says. 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