The Power of Perspectives

The Canadian Bar Association

National Blog

Why we don't have Miranda rights in Canada

By Yves Faguy April 22 2013 22 April 2013

    There was plenty of debate over the weekend about whether or not Dzhokkhar Tsarnaev should be read his Miranda rights. The Dish has a pretty complete roundup of the different views. And interestingly a FiveThirtyEight poll shows a small majority of Americans in favour of reading him his rights. In Canada, of course, we have our own rights protected under the Charter. Section 10(b) states that, “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” But Canadians might be surprised to learn that in a 2010 decision the Supreme Court rejected the idea of transplanting wholesale the US Miranda rule which ensures ”the right to have counsel present at the interrogation,” deemed “indispensable to the protection of the Fifth amendment privilege.” Indeed the SCC found, by a slim margin, that the Charter does not mandate the presence of a lawyer throughout a custodial interrogation for a number of reasons (UPDATE: hat tip  @APribetic):

    … The scope of s. 10(b) of the Charter must be defined by reference to its language; the right to silence; the common law confessions rule; and the public interest in effective law enforcement in the Canadian context. Adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures.

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    Toward national standards for publicly-funded legal services

    By Yves Faguy April 22 2013 22 April 2013

      In this discussion paper, the CBA’s Standing Committee on Access to Justice makes the case that national standards for publicly-funded legal services in Canada are “non-existent” and ought to be re-introduced:

      Why national standards? In the context of this discussion paper, national standards are primarily seen as potentially enhancing equal access to justice by providing a principled framework to counterbalance the sole focus on reducing expenditure as the driver of legal aid reforms. It is rare today for legal aid standards to be guaranteed through legislation, as governments have preferred more flexible arrangements in which the availability of legal aid can be constantly shifting.

      That being said:

      National standards do not mean uniformity in program delivery or accountability mechanisms in all provinces and territories. Standards are framed at a general level, leaving scope for local priority setting and innovation in each region. This is the case, for example, under the Canada Health Act. Historically, this has been a particular concern for Quebec and has been accommodated by establishing province-specific programs. National standards for legal aid can “be developed and enforced in ways that respects Canada’s national complexity” while at the same time serving the shared commitment to equal justice and constitutional and international rights obligations.

      This discussion paper reviews four approaches to developing national standards: 1) a rights-based approach; 2) an “urgent legal needs” approach; 3) the US context-based right to counsel research and initiatives and the Australian Commonwealth approach.

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      Legal aid reform and the realities of poverty

      By Yves Faguy April 18 2013 18 April 2013

        First, a passage that stands out from the CBA’s Envisioning Equal Justice Discussion Paper, Underexplored Alternatives for the Middle Class:

        People living in poverty tend to experience more and different kinds of legal problems with more serious consequences than those with higher incomes. The poor are not just the middle class without money; they tend to be exposed to the sharp edges of the law in a way the middle class generally are not. Studies of civil legal needs have found that poverty has a profound impact on legal needs, and that people living in poverty tend to be “enveloped by the law.”

        People living in poverty are also likely to confront legal issues that threaten very basic needs, for example, fighting eviction from public housing that might result in homelessness, trying to resolve bureaucratic problems with government benefits that represent the sole source of household income, and defending themselves against state action, by police, immigration officials or child protection agencies. These problems are often compounding, one worsens another.

        I quote this passage because this week the CBA released a new discussion paper on future directions for legal aid delivery, which we will look at more closely in the coming days. For now we note that, while the paper advocates on behalf of legal aid innovations, it also argues forcefully in favour of taking into account “the realities of the people the innovations are intended to benefit”:

        Legal aid innovations that account for these realities will be most successful at helping people living in poverty. Innovations that fail to do so maybe less than useful for the very populations they are intended to help. For example, providing written self-help materials to people with literacy challenges might be more likely to frustrate than to assist, unless perhaps accompanied by in-person assistance to explain the materials in light of the individual’s particular situation.

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        When the executive decides on the judiciary's budget

        By Yves Faguy April 12 2013 12 April 2013

          Mediation, ADR, and unbundling of legal services have clearly emerged in recent years as a promising (if albeit partial) solutions to improving access to an underfunded justice system. At the same time there is a recognition, in the legal community, that emphasis on these kinds of innovations must not detract from the fact that the legal system nevertheless remains underfunded. Antoine Leduc, who we interviewed recently, raises an important point about the politics of financing our justice system.

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          Access to justice for the middle class

          By Yves Faguy April 11 2013 11 April 2013

            Here’s another interesting paper from the CBA Access to Justice Committee, which looks at the distinct needs of the middle class. What’s interesting about this study is that it recognizes that different populations have different needs, and therefore can benefit in different ways from innovations to access to justice. The trouble is, people (including those from the middle class) don’t always know where to go:

            In addition to having a greater financial “safety net”, those in the middle class may have greater resources, for example in terms of education, literacy and health, to address legal problems that arise. With the right information, this population may be better able to prevent an ordinary life problem from becoming a “legal problem”, or be able to access an appropriate level of help, geared to the degree and nature of their legal problem. They may be able to consider options in terms of service delivery and service deliverers, and choose what they can best afford, sufficient to address their situation. They may be able to use information and tools to avoid the justice system entirely when that is the best solution. Innovations should not be limited, therefore, to those pertaining to the formal justice system. Nor should they be limited to options that require lawyers’ involvement, and in fact, many options rely on other sources of legal information, assistance and representation. That said, where a lawyer’s skills and training are required, individuals who retain counsel achieve better and fairer outcomes than those who are unrepresented. Sometimes lawyers are essential for a just result.

            So having a broader range of legal services available at different price points, provided the public is aware of these options, would go a long way to making things better. Read the report and you'll find some surprising findings from studies that seem to indicate that people who use lawyers are more satisfied with the results, given what they paid, than what we might think. That said, it's worth highlighting the last line in the paragraph quoted above. Obviously, finding innovative solutions to improve access to justice for most is a worthy goal. Even so, the CBA has always held firm to the position that “the legal needs of this significant majority must not obscure or detract from the need and public responsibility to find comprehensive solutions that will also properly address the legal needs of the most vulnerable and marginalized populations.”

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            How do we measure the performance of our justice system?

            By Yves Faguy April 10 2013 10 April 2013

              Anecdotal evidence isn't enough. We need empirical data.

              Last week, the CBA’s Access to Justice Committee released a discussion paper on the need for better metrics about access to justice. Generally, it explores the challenge of quantifying access to justice by outlining the components of how to frame metrics and offers some examples of existing approaches and methods:

              The development of access to justice metrics is an important building block for reform. Metrics would serve a range of purposes from informing the public about their justice system, to informing policy making processes and supporting change processes. Metrics are also likely “to enhance users’ choice, to enable comparison and learning, to increase transparency, and to create incentives for improving access to justice.” There is a growing awareness concerning the utility of increased empirical knowledge about the functioning of the justice system, but uneasiness over how to meet that goal. In short the challenge is: “can we make access to justice a quantifiable concept instead of a broad aspiration?” (More after the jump)

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              Is Axiom Law even a law firm?

              By Yves Faguy April 10 2013 10 April 2013

                Not according to Richard Granat, who thinks it's time that state bar associations take a closer look at this new kind of legal services provider:

                Axiom Law is demonstrating that certain kinds of services can be delivered at a much lower price, without compromising quality. By enabling corporate counsel to get done certain kinds of legal work that ordinarily would be provided by outside counsel at a much higher price, Axiom has opened up a major market be simply segmenting the kind of work that can be done more efficiently in-house with help from Axiom.

                It seems to me, however, that an in-house counsel assumes the risk of malpractice when they contract with Axiom. Axiom is not a law firm so it can't secure a law firm malpractice insurance policy. Moreover, the supervisor of the legal work is not Axiom, (technically it can't be), but in-house counsel. When in-house counsel contracts with a company like Axiom they give up the assurance of quality legal services and accountability that they get from a traditional law firm. The in-counsel is self-insuring that the legal services that they are providing to themselves are correct, accurate, and valid for the situation at at hand. General Counsel of major companies -- welcome to the DIY movement!!.

                It's worth reading the whole article.

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                A2J and the law of unintended consequences

                By Yves Faguy April 9 2013 9 April 2013

                  In a report prepared for one of the working groups of the Action Committee on Access to Justice In Civil and Family Matters, Alison MacPhail explains the perception that the legal system never changes and that the system is designed to serve judges and lawyers instead of the public:

                  Even when a problem gets to the justice system, it is often not a court – with the exception of family law. Instead, the matter is often resolved through an adjudication process by one of a variety of administrative tribunals dealing with landlord/tenant, social services, employment, workers compensation, human rights issues, etc. These specialized courts or tribunals can be more responsive to the real situations people face, and seem more able to innovate.

                  Changes have recently occurred however in these tribunals, as well as in courts which were designed for citizens to participate without counsel – such as small claims court. Citizens are increasingly appearing with counsel. And in a diametrically opposite trend, the courts that were designed for representation by lawyers are seeing an enormous rise in self-representation.

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                  The laws of global business and their limits

                  By Yves Faguy April 9 2013 9 April 2013

                    I recently sat down with Antoine Leduc, a partner at BCF in Montreal to discuss his recently published book on the globalization of secured transactions. It's a very thoughtful comparative study with some fascinating insight on the globalization of business law.  In the video below, he discusses how international financial institutions drive the global harmonization of our laws, as well as some of the limits they have encountered along the way.


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                    Canadian authorities ponder a more poisonous pill

                    By Yves Faguy April 8 2013 8 April 2013

                      For some time now, a growing number of voices have been calling on Canada's provincial secuirities regulators to review the rules governing shareholder rights plans -- or poison pills, as they're known. The notion is that Canadian companies are viewed as easy takeover targets, and boards need more effective tools to balance their own needs with the interests of outside bidders and shareholders (more after the jump).

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                      Is the LPO fad beginning to fade?

                      By Yves Faguy April 2 2013 2 April 2013

                        There’s no question that last week was a rough one for Integreon, as news circulated that two UK-based firms, Osborne Clarke and CMS Cameron McKenna, are scaling back their arrangements with the legal process outsourcer. So, does the story signal a trend away from outsourcing arrangements? It’s hard to say. CMS managing partner Duncan Weston is quoted by The Lawyer as saying that his firm is looking for another third-party provider to cover some of the work that Integreon had been tasked with doing. Still, it’s worth reading Catrin Griffiths’ item from last October in which she lays out some of the reasons LPOs are experiencing growing pains. Interestingly, she argues that much of the resistance to LPOs is coming from in-house lawyers. And, predictably perhaps, there’s the fact that traditional firms are adapting  (more after the jump).

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                        Banning Twitter in the courts

                        By Yves Faguy April 1 2013 1 April 2013

                          Criminal defence lawyer and blogger Véronique Robert applauds the Twitter/email ban in Quebec’s courts. Neither the legal community or journalists, she argues, have shown themselves to be ready to make responsible use of Twitter from inside the courtrooms (more after the jump).

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