Law Times

Law Times • January 23, 2017 Page 7 www.lawtimesnews.com What's in store for the Supreme Court? BY MATTHEW GOURLAY F or those of us who intently watch the Supreme Court of Canada, 2016 was not a banner year for criminal law. (That is, with one big exception.) Overall, the SCC issued just 56 deci- sions in 2016. From what I can tell, this is the court's second-smallest annual output in the modern era. More importantly — at least when it comes to my purposes — of those 56 deci- sions, 23 were in criminal cases. But if we take away the 11 brief oral decisions issued from the bench, that leaves just 12 fully rea- soned written judgments. That is a low total. And, of these, few were particularly memorable. Granted, R. v. Anthony-Cook provid- ed some long-awaited guidance on joint submissions. And R. v. Villaroman clari- fied the proper approach to circumstan- tial evidence. But while providing helpful restatements, neither of these changed much of anything. However, one case did change a lot. R. v. Jordan, which rewrote the rules for unreasonable delay under s. 11(b) of the Charter, has already had a huge impact on how the criminal courts process cases, and its impact is certain only to deepen in the coming year. The "transitional period" for pre-Jordan charges still in the system will comprise an ever-smaller proportion of the courts' case f low. The hard caps set by Jordan will more and more be the reality to which courts, Crowns and defence counsel will have to orient themselves. I expect that the litigation action will be in the judicial definition of what counts as an "exceptional circumstance" in the context of all the scenarios not consid- ered explicitly in Jordan. With significant cases being stayed for delay — in- cluding two murder cases I'm aware of — it won't be long until the courts of appeal will need to sort out what it all means. The Supreme Court will eventually need to weigh in as well. But I expect that won't happen in 2017. I am hard-pressed to identify many criminal law blockbusters likely to be ar- gued in the year ahead. It's too early to say whether the court's overall criminal law output will exceed 2016's languid pace, but it's clear that the f lood of challenges to the Harper tough-on-crime agenda has large- ly dried up. These accounted for some of the court's most significant criminal law decisions over the past decade. The Liberal government has intro- duced legislative change in respect of some provisions that had generated a lot of litigation (the victim fine surcharge comes to mind) and committed to making re- forms in respect of others (marijuana chief among them). One of the most significant criminal law issues that's going to confront the court early this year implicates society's evolving relationship to technology rather than any particular govern- ment policy. In R. v. Marakah, a divided Ontario Court of Appeal de- cided that a person who sends a text message to someone else retains no reasonable expecta- tion of privacy in the content of that message. The B.C. Court of Appeal had earlier taken the contrary view, and it was joined by Justice Harry La- Forme dissenting in Marakah. The reality is that it's hard- er than ever to distinguish between what people want to keep private and what they want to disseminate. Most people probably entertain contradictory feelings and expectations about what they commit to the electronic ether. It falls to the courts to make policy judgments about what level of privacy people ought to be entitled to insist upon, which may be a very different thing from what people actually expect. On the extradition front, in the Repub- lic of India v. Surjit Singh Badesha, et al., the court will review the decision of a divided B.C. Court of Appeal refusing to send a person to face trial in India. The majority thought there was too great a risk that the accused would be subject to tor- ture or neglect by Indian authorities. The fact that the person sought is ac- cused of a particularly notorious "honour killing" only adds to the general interest in the case. On a doctrinal level, it pits the gen- eral trend toward a hands-off comity-based approach to extradition against the increas- ing pressure on the judiciary (since at least the Omar Khadr saga) to be more vigilant about human rights abuses abroad. In R. v. Peers, the court will consider the limits of the s. 11(f ) Charter right to a jury trial. On its face, that provision guarantees a jury trial in any case where the accused is liable to five years imprisonment. But what if the accused faces, say, four years and a $1-million fine? Does the fine somehow get added to the imprisonment to produce a total punishment that is "more severe" than five years in prison? I doubt it, but the court weighing in on a Charter provision that hasn't yet received much judicial scru- tiny is always a noteworthy occasion. These are all significant if not exactly earth-shaking cases. My hope for 2017 is that most of the real action on criminal law policy will be in Parliament — where it really belongs. The federal government has been dragging its feet on some long- promised reforms. While marijuana legal- ization does appear to be in the offing, the delay in getting rid of Harper-era manda- tory minimum sentences is a real concern. Solving that problem — for instance, by way of a generally applicable "escape hatch clause" — is not impractical. I hope the federal government will resolve to tackle this and other eminently solvable issues in the year to come. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litiga- tion. He's available at mgourlay@hhllp.ca. COMMENT Client capacity and the duty to accommodate BY DIANNE WINTERMUTE O ne of the most fundamental and difficult duties of a lawyer is to assess a client's ca- pacity to instruct them. As service pro- viders, we are bound by Ontario's Human Rights Code and have an obligation to ensure that we do not discriminate on the basis of any Code-protected grounds, such as disability. We have a responsibility to provide accommodations up to the point of undue hard- ship. Lawyers in Ontario are bound by the Law Society of Upper Canada's Rules of Professional Conduct, which include guidance on the issue of solicitor/client relation- ships, should a client have a disability. Assessing a client's capacity to instruct counsel is one of the most frequent lawyer-to-lawyer consultations that happens at ARCH Disability Law Centre. Unfor- tunately, there is no bright line that defines capacity on one side and lack of capacity on the other. It is a nuanced process, taking many factors into account. For people with disabilities, the importance of being found capable to instruct counsel cannot be overempha- sized. If a client is found incapable of instructing coun- sel, they are denied access to justice. They are also denied the right to tell their narrative in their own words, participation in their own legal pro- ceedings and are stripped of their independence and autonomy. These are heavy prices for a person with a disability to pay. In our own practice, for example, ARCH was re- tained to represent many victims of abuse in the class action settlement, Marilyn Dolmage as Litigation Guardian of Marie Slark and Jim Dolmage as Liti- gation Guardian of Patricia Seth v. Her Majesty the Queen in Right of the Province of Ontario and Huronia Regional Centre. In that settlement, Ontario agreed to compensate former residents of the Huronia, Rideau and Southwestern Institutions for the abuse they suffered while living at the centres. In 2016, a judge approved almost $36 million for compensation for vic- tims, based on the degree of abuse experienced. In relation to this proceeding, ARCH prepared plain-language materials, videos and workshops to front-line workers and others who assisted the resi- dents. ARCH interviewed numerous victims. After reviewing the documents received from the province's Ministry of Community and Social Services, ARCH helped residents write a narrative describing the indig- nities they experienced while living in a place that was supposed to protect them. With permission, we talked to family members and others who saw the impact on their loved ones living at these institutions. We would break down retainers into shorter sentences and tasks, use clear and plain language, speak slowly, rephrase questions and listen carefully. We would conduct more than one interview. We attempted to use all possible means available to aid us in finding the client capable to instruct us. These victims — many of whom were considered to be incapable solely because of their disability — would not have been able to retain us and benefit from our ser- vices in helping to prepare the narrative on which the amount of compensation to be awarded was based. This demonstrates how critical finding capacity to instruct can be for persons with disabilities. Lawyers start from the presumption that all persons in Ontario are capable unless proven otherwise. The proof for other types of capacity may take the form of a capacity assessment or a psychiatric assessment. How- ever, capacity to instruct counsel is a legal decision and does not depend on medical assessments. In order to assess whether a client is capable to in- struct counsel, we presume capacity. Then we look at the test for capacity — does the client understand the information you are providing to them? Does the cli- ent have the ability to appreciate reasonably foreseeable consequences of making a decision or not making a de- cision based on that information? If so, then the client is capable of instructing counsel. If not, what supports and services can we offer to assist in a finding of capac- ity? This test is process oriented not outcome based. As lawyers, our job is to advocate. We may not agree with the client's decision or instructions if they are found capable. But a client's instructions stand if capacity is found, even if a lawyer disagrees with them. A foolish or questionable decision may not be sufficient to find incapacity. Other clients are permitted to make decisions that a lawyer does not agree with, and that does not mean that we get to act in the client's best interests just because we disagree. As long as we do our job, based on the facts and law, and set out the available options for the client, we follow the client's instructions regardless of disability. One of the many challenging factors in making this initial assessment is that capacity is f luid and task spe- cific. Some disabilities are episodic and/or recurrent. A client may be capable one day and not the next. In these instances, a lawyer is entitled to act on prior ca- pable instructions. Not all clients will be found capable of instructing counsel. But finding capacity is a way to ensure that the client's wishes, and not best interests, are the instructions we follow. Another issue lawyers face is that sometimes we presume incapacity as a result of a particular disabil- ity. Persons with mental health disabilities, dementia or certain cognitive or intellectual disabilities have of- ten been determined to be incapable simply because of their disability. It is critical that lawyers examine our own attitudes when working with clients with disabili- ties, to ensure that our personal biases do not impact on any decision we might make. Providing accommodations must be unique and individualized to each client. Everyone experiences dis- ability differently, so the supports offered to one client may not work for another. Being creative and thinking outside the box is often a good way to think about indi- vidualized accommodation. LT uDianne Wintermute is the staff lawyer with ARCH Disability Law Centre. The centre provides lawyer-to- lawyer advice on capacity and other disability-related issues. u SPEAKER'S CORNER A Criminal Mind Matthew Gourlay

• Cover