Law Times

Law Times • JuLy 24, 2017 Page 7 www.lawtimesnews.com Has the Alberta Court of Appeal gone rogue? BY MATTHEW GOURLAY W hat's the matter with Alber- ta? Two recent, high-profile decisions from the Court of Appeal of Alberta raise issues that should also concern those of us who practise elsewhere. Both suggest a troubling proclivity to put a thumb on the appellate scales in favour of the Crown, notwithstanding the stringent standards that are supposed to apply to Crown ap- peals. One of them is R. v. Barton, 2017 ABCA 216, a notorious murder case in which the court recently overturned a jury's acquittal on what were to me highly questionable grounds. But here I want to talk about the court's approach to sentencing. Alberta's appeal court has long been a national outlier in this area. Back in the early 1980s, it pio- neered the "starting point" approach. Under this doctrine, the appellate court carves up broad offences such as sexual assault into judicially developed catego- ries of seriousness, then assigns starting point (presumptive) sentences to each cat- egory. So, for instance, in Alberta, the start- ing point sentence for a "major" sexual assault is three years. Aggravating or mit- igating factors in a particular case can jus- tify moving upward or downward from the starting point. But any significant departure — especially in the downward direction — is likely to prompt appellate intervention. This approach is either not applied — or not applied with such gusto — in other provinces. Most of them use the more f lexible concept of a sentenc- ing range. Ranges are less rigidly de- fined than starting points and more sensitive to the unique aspects of the particu- lar offender and offence. Re- cently, in R. v. Lacasse, [2015] 3 SCR 1089, the Supreme Court emphasized that even loosely defined ranges should not be enforced too exactingly on appeal, in order to give proper deference to the sentencing judge's delicate and individu- alized task. Meanwhile, back in Alberta, the "start- ing point" approach has continued to hold sway, resulting in a steady stream of successful Crown appeals. In R. v. Hajar, 2016 ABCA 222, the court announced the creation of a new starting point sentence, this one for something judicially defined as a "major" sexual interference: three years' imprisonment. In a diffuse opinion, the majority ex- plained why a number of widely accepted mitigating factors shouldn't be consid- ered mitigating at all. The offender in this case, according to the court, should have received 3.5 years instead of the 18 months imposed by the sentencing judge. Although the decision cites Lacasse, it is blithely oblivious to the Supreme Court's clear message that courts of appeal must not be in the business of en- forcing judicially created de facto minimums. Then, in June, there was the ruling in R. v. Ga- shikanyi, 2017 ABCA 194. Again, it was a Crown appeal of a sentence for sexual inter- ference. Presiding this time, however, was Justice Ronald Berger, a long-time dissenter from the Crown-friendly starting point approach. In a blistering opinion, Berger took issue both with the substan- tive correctness of the Hajar decision but also — remarkably — with the internal court procedures that produced it and other like-minded judgments. On substance, Berger explained why the cookie-cutter approach adopted by Hajar was ill suited to the offence of sex- ual interference and unfair on the facts of that case. On process, he suggested that the non- random assignment of justices to hear sentence appeals (presumably by the chief justice) has resulted in a "disproportion- ate opportunity afforded to certain judges to shape the jurisprudence of the Court." He didn't say it explicitly, but the im- plication is that panel assignments may be made with ideological concerns in mind. Berger drew a stern rebuke from Jus- tice Patricia Rowbotham, who would have applied the Hajar approach and upped the sentence, and a demurral from Justice Brian O'Ferrall, who concurred with Berger in the result but disassociated himself from the remarks on panel com- position. While it's surprising for a judge to air the court's dirty laundry publicly, in my estimation, Berger's judgment was a cou- rageous act of whistleblowing. Indeed, his core complaint isn't really a shock to any- one who has been following the court's ju- risprudence in recent years. It often seems as if the court has rolled out a red carpet for the Crown to appeal sentences it be- lieves are too low. And certain judges (not including Berger) appear to be repeatedly assigned to major Crown sentence ap- peals. What is to be done? I think the most promising solution f lows from Berger's intriguing observation that the court has effectively shielded its starting-point precedents from Supreme Court review by declining to actually re-incarcerate the offender in question. That way, neither side has any reason to appeal. But this case is different — the Crown lost, and it may well wish to seek review. I hope it does so. If it happens, my money is on the Supreme Court of Canada finally putting an end to starting points. They would not be missed. 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. A two-tier system to serve the people BY JOEL MILLER A ll systems of justice have underlying prin- ciples. They may be to serve the leader, the state, the administrators or the people. Whatever the purpose, the structure supporting it needs to be built to serve that purpose, and if it doesn't, it's a failure. Our family law system is a failure. The Law Society Act, R.S.O. 1990, c. L.8, s. 4.2 (2) gives the Law Society the privilege of self-governance in exchange for it accepting certain duties. One is the "duty to act so as to facilitate access to jus- tice for the people of Ontario." But the truth is, we don't have access to justice for most of the people in Ontario's family courts because access to services is too expensive. Studies such as the 2016 Family Legal Services Re- view by Justice Annemarie Bonkalo and the 2016 Ry- erson Family Reform Community Collaboration show that between 57 and 80 per cent of people in our family courts are representing themselves. The main reason they give is the cost of legal ser- vices. If our family court system fails the clear majority of users, we should change it. But changing the system is seen as a risk, and the family law bar is risk averse. So we lawyers are comfortable delivering high-quality legal services to the shrinking pool of those who can afford it, while ignoring the growing pool of those who cannot. We choose to ignore the fact that we have a two-tier system of family law justice in Ontario — one for the rich and one for the rest. A four-year study of Ontario Superior Court cases showed that where one litigant had a lawyer and the other didn't, the self-represented person lost more than five out of every six times. It's not that cases presented by self-represented people have less merit. It's that they have less effective presentations. If the chief indicator of success for a self-represented person is whether the other side has a lawyer, that isn't justice. One reason legal services are so expensive for the clear majority of litigants in the family court system is because of all of the things lawyers are required to do, even if the client doesn't want or can't afford them to be done. Our professional CLE courses tell us how to do what we do better and how to avoid potential claims for fall- ing below the standard of care. But it's not good enough if only the rich can afford services meeting that quality. We've been so focused on the need for excellence that we've neglected the need for accessibility. We've created a vast service desert in which we con- trol the oasis and charge what we want to those who want a drink. We say our oasis is accessible to all, but that doesn't help the thirsty who can't afford the fee. What we need is a two-tier system built to serve the people and provide affordable access to services. This would be a system with two standards of procedure, rules and evidentiary practice, a Full Rules Court and a Relaxed Rules Court. Every case with two self-represented people would automatically be assigned to the RRC. Rules, procedures and forms would be simplified and written from the perspective of a one-time user of the court system. The applicable law would be as set in the RRC Pro- cedural, and case law or legislation wouldn't be cited. The presumption would be that the issues to be de- cided don't involve facts or law of such complexity that the FRC rules should apply. The judges would be interactive — allowed to ask questions, raise issues and invite the parties to engage with the court in a joint, informally conducted exercise designed to resolve the matter. The judge would be able to use mediation tech- niques without polluting the role of final arbiter if no resolution is reached. Either party could move to be in the FRC if they preferred, and the request would be considered in the context of the availability of resources to both parties. RRC judges would need specialized training. Sub- missions and evidence would be limited. In cases with one represented and one self- represented party, the first attendance would be to de- termine if the case should be moved to the RRC, unless both parties agreed. And either of two represented parties could also move to be in the RRC. Lawyers and non-lawyers could represent parties in the RRC, and extensive use of unbundled services would be encouraged. The obligations of lawyers in the RRC would be specified, but less rigorous than those in current, fully traditional courts. This requires us to re-think our fundamental ap- proach to lawyering. Ontarians need to understand that we already have law-free courts when there are two self-represented people and often when there is only one. They don't know the law or cite legal principles. Judges are deciding cases without the benefit of le- gal argument but doing so constrained by rules of evi- dence created for a system using lawyers. That often leads to having inadequate information because what the litigant knows is a fact can't get before a judge. It's simple. If we really want to serve all litigants in Ontario courts justly — and with the current principles we aren't — either we need to make changes or be hon- est that our self-interest trumps change. The way it is now, the system is built to serve us, the lawyers, more often than it serves the litigants. Shame on us if we don't seek change. Oregon and Massachusetts are ex- perimenting with specialty courts. Why can't we? LT uJoel Miller is the founder of The Family Law Coach, a service dedicated to providing unbundled legal services at fixed fees remotely. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

• Cover