Law Times

March 7, 2016

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Page 2 March 7, 2016 • Law TiMes are, given the rates, given the de- mographics, then the prediction is that there will be an increase in federal custody, unless mea- sures are taken to either increase programs or undertake other measures to basically bend the curve," Piragoff told MPs. In some provinces, such as Ontario, it is taking longer for defendants to get bail, he said. Among the solutions the federal government is studying is giving front-line police officers more discretion to release someone pending his or her trial without having to turn to superiors or the crown to make the decision. Prosecuting cases such as drunk driving is taking longer, particularly in provinces lsuch as Quebec, as stiffer consequences prompt more defendants to contest charges and lawyers to mount "novel defences" to chal- lenge the law. "Many impaired driving cases were put on hold pending certain key appellate decisions working their way up through the Court of Appeal and the Supreme Court of Canada," Piragoff told MPs. "There are a number of novel defences that people are raising tied to the Charter, so there's a combination of factors with respect to what's driving impaired driving rates." Some types of cases are domi- nating the caseload at court- houses, Piragoff told MPs. "Administration of justice of- fences, such as failure to appear or breaching probation, as well as impaired driving and theft, account for over 40 per cent of the court caseload. Administra- tion of justice offences as a pro- portion of all criminal court cas- es have seen an increase, up from 21 per cent in 2006 to 26 per cent in 2013-14." Echoing comments by federal Justice Minister Jody Wilson- Raybould, who told the Canadi- an Bar Association's mid-winter council meeting last month that it was time to rethink some ad- ministrative justice criminal of- fences and focus resources on more serious crimes, Piragoff said the Justice Department is working with the provinces on alternatives to some administra- tion of justice offences. "We are looking at what other countries are doing in handling administration of justice offences so that we can maybe avoid some of these, I would say, needless charges and convictions and peo- ple getting huge criminal records." Piragoff cited the example of one reservation where there was a high rate of failure-to-appear breaches because the closest courthouse was several kilome- tres away from the reservation and defendants couldn't get to town. The court workers got a school bus and went around on court day, picked everyone up, and took them to court. "People can get criminal re- cords quite often, not because they've actually committed a crime such as theft. They may be in court for the first time for theft, but then they have a whole host of other breaches for things like breaching curfew, drinking alcohol, etc., and they then end up getting a long list of criminal offences." Piragoff 's testimony reso- nates with defence lawyers such as Trevor Brown, president of the Defence Counsel Association of Ottawa and co-founder of the Ottawa law firm Greenspon Brown & Associates. Brown, who welcomes the federal government's plan to study alternatives in adminis- trative justice cases and to give police officers more discretion to release offenders, says the cur- rent system is creating a "vicious circle" for some offenders who land back in court for violating bail conditions such as to not consume alcohol or drugs. "They end up with these ad- ministration of justice offences, breaching those conditions of release and coming back before the courts, and every time they do so, it gets harder and harder for them to be released." The current reverse onus ap- plied to bail hearings is making it even harder for some defen- dants to secure their release while waiting for their trials, and the more disadvantaged the de- fendant, the more they are likely to run afoul of administrative justice rules, Brown points out. The result is that Ottawa's criminal justice system is bogged down and it can take up to two weeks to get a bail hearing, he said. "There's no doubt that the pro- vincial remand facilities — and in particular the remand facility in Ottawa —[are] overcrowded. A large proportion of people in custody, certainly in Ottawa, are on remand. One of the biggest issues we see is a high proportion of people who are mentally ill, drug-addicted, alcohol-addicted, aboriginal, [and] homeless who are crowding the bail system. LT Feds study alternatives in administrative justice cases NEWS Continued from page 1 This is more than a phone book. It is your instant connection to Canada's legal network. With Canadian Law List 2016 you have access to: • an up-to-date alphabetical listing of more than 80,000 barristers, solicitors BOE2VFCFDOPUBSJFTDPSQPSBUFDPVOTFMMBXȮSNTBOEKVEHFTBDSPTT$BOBEB • all contact information supplied for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown Corporations • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid and other important MBXSFMBUFEPGȮDFT THE LATEST CONTACT INFORMATION IN A USER-FRIENDLY FORMAT THAT IS BEYOND TRADITIONAL LISTINGS Continually updated by a dedicated team of professionals, Canadian Law List includes value added features such as: • lBTUOBNFȮSTUJEFOUJȮDBUJPOJOUIFGFEFSBMBOEQSPWJODJBMMJTUJOHT • separate section of corporate law departments for more than 1,250 companies • pSPGFTTJPOBMDBSETPGQSPNJOFOU$BOBEJBOMBXȮSNT • International Agency Referral Cards AREAS OF PRACTICE AND ENHANCED LISTING INDEX The enhanced listing index is displayed in bold type with detailed practice information. It also: • lJTUTȮSNTBOEMBXZFSTUIBUIBWFFYQBOEFEUIFJSQSBDUJDFJOGPSNBUJPOJOUIFJS provincial listing • is organized by areas of practice by province, city and page reference in their provincial listings Hardbound • Published February each year • L88804-765 • On subscription $169* • One time purchase $188* Multiple copy discounts available * Plus shipping/handling and applicable taxes ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY FOR OVER 130 YEARS Untitled-2 1 2016-01-25 12:35 PM Arbitration underutilized we want to keep the assessment process we have, we need to have more assessment officers, and we need more courtroom space to hear them. I wish there was a way to do that without cost, but that's not the reality, unfortunately." Stephen Thiele, a partner at Gardiner Roberts LLP, warns the situation is becoming more urgent for law firms seeking out- standing payment as judges cut off alternative routes for fee dis- putes, funnelling cases into the al- ready clogged assessment process. "I think we're all getting frus- trated, whether you're at a big firm, a medium-sized one, or you're a sole practitioner. Law firms are businesses, and they depend on cash f low, just like any other. There has to be a process that is quick and simple for the collec- tion of fees," he says. "As these processes become more delayed, complicated, or time-consuming, it's going to have a serious impact on the practice of law." Ben Hanuka, principal lawyer at Law Works PC in Toronto, says more assessment officers are the simplest answer to the long delays in the process. "These people have developed significant expertise, and other than the waiting time, it's a pro- cess that works very efficiently," says Hanuka. "We need to lobby the government to make sure the resources are there. Hiring as- sessment officers is going to cost a fraction of what it would for a federally appointed judge. "You can't start substituting judges for assessment officers, because that would screw up the system and make things worse." Rather than moving for tra- ditional assessments under s. 3 of the Solicitor's Act, Gilbert's applied instead to the Superior Court under s. 23, which is nor- mally used in the determination of disputes over contingency fee agreements. The firm asked Dunphy for a declaration that the agreement between Gilbert's and its clients were "fair and reason- able," and, crucially, "for an order that the respondent pay" the out- standing accounts, which were $5,000 and $9,000, respectively. Despite the firm's success with previous similar applica- tions, Dunphy ruled that s. 23 was not intended to permit ap- plications whose primary pur- pose is fee collection and con- cluded there must be "evidence of a bona fide dispute between the solicitor and the client as to validity or effect of the written agreement" in order to confer jurisdiction under the section. "The mere fact of an unpaid account is not sufficient," Dun- phy wrote. The judge observed that as the assessments process has become more bogged down, lawyers have sought "imaginative means of avoiding" the assessments process instead of "seeking to reform it or obtain from the government the allocation of additional resources" needed to bring it up to scratch. "I do not wish to sound alarmist, but applications such as this can start as a trickle and soon develop into a f lood," Dun- phy's decision reads. "In my view, the mandate of the Superior Court does not extend to being an all-purpose alternative to as- sessment where the solicitor or the client find the current state of the assessment system no longer works to their liking." Thiele says his firm has begun looking into inserting arbitration clauses into its retainer agree- ments as an alternative to the increasingly unavoidable assess- ment process. "There are pros and cons to that because, although it may be quicker, someone still has to pay for the arbitrator. And if the legal bill is relatively small, as it was in this case, it may not be worth the cost." Mick Hassell, a lawyer and arbitrator who settles legal fee disputes at Hassell Arbitration in Toronto, says the state of the assessment process has contrib- uted to the growth of arbitration in the area and the potential of a two-week turnaround is attrac- tive compared with the two-year alternative, as well as the privacy afforded by arbitration process. "Arbitration is widely under- utilized, but I think decisions like this, which push more cases into the already broken assessment system, are going to cause the number [of arbitrations] to spike up even more," he says. LT Continued from page 1 Ben Hanuka says more assessment officers are the simplest answer to the long delays in the process.

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