The Power of Perspectives

The Canadian Bar Association

Yves Faguy


Mulcair, the Supreme Court and the Patriation allegations

By Yves Faguy April 29, 2013 29 April 2013

Catherine McKenna and Adam Goldberg are most unpleased with Thomas Mulcair for declaring last week that the Supreme Court of Canada “had no intention all along of ever dealing” seriously with the allegations surrounding the Patriation Reference:

It is one thing for a political leader to disagree with a court’s judicial opinion. It is quite another to question its good faith.

Last week, the Leader of the Opposition did the latter. Mulcair did not merely suggest that the Supreme Court had left too many stones unturned — he also implied that it did so intentionally. That the internal investigation was itself a remarkable step — the court typically ignores political posturing from people like Mulcair — seems to have been lost on the NDP.

True, this was not a full judicial inquiry, but nor should it have been. Mulcair is a lawyer. He knows — or should know — that the high court is not a detective agency. It does not launch inquiries. It reviews questions of law, not insinuations of fact. Nor does it answer to politicians, and rightly so.

(More after the jump)

Read More

Our justice system falling short

By Yves Faguy April 26, 2013 26 April 2013

One of the goals of the CBA’s Envisioning Equal Justice initiative is to include community voices and perspectives in identifying the shortfalls of our legal system. It’s part of the attempt to define what “equal justice” is and what our justice system should look like. Through a series of consultations and interviews with people on the street, the Access to Justice Committee reached out to representatives of marginalized communities to learn more about their experience of justice and how they would define equal justice. Here is a sample of their comments:

"Justice is to protect us, not to abuse us. It has been used to overpower or manipulate us." (Aboriginal woman, Saskatoon)

"I feel intimidated and bullied by the legal system." (domestic violence survivor)

"To me, legal rights are an unfulfilled promise." (person with disability, Toronto)

"The information that we need should be provided. You are made dependent on the system, because you don’t know what to do." (Aboriginal woman, Saskatoon)

"I was referred to a website, but good luck dissecting that! How do people do it? The website wasn’t user friendly at all." (single mother, Moncton)

"My experience overall is that I had to spend entirely too much time trying to figure out the steps, the process, and the players. I often felt like I was given a jigsaw puzzle but all the pieces were the same size and there was no colour or picture and I couldn’t figure out how to put them together." (BC resident)

"There should be a place that everyone should know about. If you have a legal issue, you can go explain your situation, and they would tell you where to go, YWCA, website, etc. A sort of triage service to get you on the right track. Right now, it’s all disjointed, and hit or miss." (single mother, Moncton)

Read More

Envisioning equal justice

By Yves Faguy April 25, 2013 25 April 2013

Today begins the Envisioning Equal Justice Summit in Vancouver, which we'll be covering. You'll find the agenda here. The event, organized by the CBA’s Access to Justice Committee, is bringing together stakeholders in our justice system from across Canada. They’ll be looking carefully at problems among low- and middle-income Canadians and marginalized communities in gaining access to legal services and advice. Melina Buckley, the chair of the committee, is heading that initiative. Here she is explaining how this initiative marks a departure from past efforts at solving an issue that can at times seem insoluble:

Over the course of the next couple of days and in the months to come, you will hear plenty more about the initiative. Hopefully the event will help us better understand the needs of our justice system's stakeholders and guide the CBA in its future advocacy initiatives on the access to justice front.

Read More
Criminal law

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.

Read More

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.

Read More