Vol. 36, No. 2. | FALL 2017 CANADA HYDRO HST/GST CHILD The Advocates’ Journal REBATE CREDIT BENEFIT Vol. 36, No. 2; Fall 2017
6 GIS
SENIOR HOMEOWNERS’ PROPERTY ONTARIO TAX GRANT WITHOUT A TRILLIUM STRUCTURE BENEFITS
GOVERNMENT BENEFITS The unsettling truth about settling: From the Editor 3 28 Part II ARE THROWN OAS RDSP The Honourable Joseph W. Quinn BENEFIT AWAY BOND/ GRANT If we can’t trust witnesses, Correspondence 5 34 can we trust trials? Matthew Milne-Smith
Where to draw the line: Internal investigations and Communications with expert witnesses 6 40 privilege: Encouraging Anna Loparco and Lara J. Draper voluntary provision of impressions, explanations McKellar puts more money and interpretation in your client’s pocket The best way to stay in of events practice is to not quit 15 Alexander M. Gay and Kenneth Jull The Honourable Justice Jasmine T. Akbarali You work hard to ensure your clients get the best possible settlements. Help them maintain their income-tested government benefits/credits by encouraging them to structure! How to lose an appeal in the Court of Appeal: The next generation 19 47 More tough crimes The Honourable Justice David M. Brown Julianna Greenspan
After Jordan: The fate of the speedy trial and prospects for systemic reform 22 Matthew R. Gourlay CANADA & USA 1.800.265.8381 | EMAIL [email protected] | www.mckellar.com THE ADVOCATES’ JOURNAL | FALL 2017 | 1 FROM THE EDITOR
Plus ça change…
THE ADVOCATES’ SOCIETY
One of the most salient features of our culture is that there is so much bullshit. Everyone knows this. PAST PRESIDENTS ~ Harry Frankfurt, On Bullshit
1965-66 J. J. Robinette, Q.C. 1992-93 The Hon. Justice Eleanore A. Cronk 1966-67 The Hon. R. F. Reid 1993-94 Roger Oatley 1967-68 The Hon. Justice R. S. Montgomery 1994-95 The Hon. Justice Mary Anne Sanderson t was a relatively quiet election night in Paris About our home and native land, I’ve always thought 1968-69 The Hon. Justice P. Cory 1995-96 C. Clifford Lax, Q.C., LSM in May. A few rowdy university students were that one of our hallmarks of a true social democracy 1969-71 W. B. Williston, Q.C. 1996-97 Margaret A. Ross, LSM singing “La Marseillaise” in the 5th arrondisse- was universal health care. I think that even more so 1971-72 The Hon. Justice W. D. Griffiths 1997-98 The Hon. Justice Harriet Sachs 1972-73 C. F. McKeon, Q.C. 1998-99 Michael F. Head Iment, where Sandy and I were staying. But little activ- today as the US, for reasons I can’t begin to fathom, 1973-74 A. E. M. Maloney, Q.C. 1999-00 James A. Hodgson ity was going on around the Champs-Élysées, where except cynically – to kowtow to the plutocrats, specifi- 1974-76 P. B. C. Pepper, Q.C. , LSM 2000-01 Ronald G. Slaght, Q.C., LSM we had been earlier in the evening. Despite concerns cally the Koch brothers? rugged individualism? It cer- 1976-77 H. G. Chappell, Q.C. 2001-02 J. Bruce Carr-Harris, LSM 216077_Stephen-8 216077_Stephen-9 216077_Stephen-10 from French friends that Marine Le Pen would win, tainly can’t be cost, especially in proportion to military 1977-78 W. S. Wigle, Q.C. 2002-03 Philippa G. Samworth Stephen Grant, Fall 2017; Vol. 36, No. 2. 1978-79 The Hon. Justice J. J. Fitzpatrick 2003-04 Jeffrey S. Leon, LSM France pulled back from the isolationist “narcissistic spending – is on the verge of dispossessing millions 1979-80 E. A. Cherniak, Q.C., LSM 2004-05 Benjamin Zarnett, LSM LSM populism” – as Justice Rosie Abella calls it – that has of Americans of health coverage. Given that of the 25 Editor 1980-81 The Hon. Justice J. W. O’Brien 2005-06 Linda Rothstein, LSM Stephen Grant, LSM | [email protected] 1981-82 T. H. Rachlin, Q.C. 2006-07 Michael E. Barrack taken root in Washington and elsewhere (“Supreme wealthiest nations, the US is the only one without ba- 1982-83 K. E. Howie, Q.C. 2007-08 Michael Eizenga Court Judge Abella Worries about the State of Justice sic health coverage, the repeal of the Affordable Care Act Managing Editor 1983-84 J. P. Nelligan, Q.C., LSM 2008-09 Peter J. E. Cronyn in the World,” Toronto Star, May 22, 2017). Le Pen’s would be staggering (Steven Rosenfeld, “Compared Aaron Dantowitz | [email protected] 1984-85 Peter Webb, Q.C., LSM 2009-10 Sandra A. Forbes 1985-86 Bert Raphael, Q.C., LSM 2010-11 Marie T. Henein problem, as it turned out, wasn’t her xenophobic mes- to Other Countries, America Already Has Horrible Production Editor 1986-87 A. D. Houston, Q.C. 2011-12 Mark D. Lerner sage but, rather, that she couldn’t articulate her eco- Health,” AlterNet, July 3, 2017). Sonia Holiad | [email protected] 1987-88 The Hon. Justice J. R. R. Jennings 2012-13 Peter H. Griffin nomic plan to leave the EU – although her strong Sadly, it seems, no one is listening or hearing anyone 1988-89 R. A. Stradiotto, Q.C., LSM 2013-14 Alan H. Mark 1989-90 The Hon. Justice Peter G. Jarvis 2014-15 Peter J. Lukasiewicz showing was worrisome enough. else anymore, and persuasion is on the wane (“You’re The Advocates’ Journal: cite as Adv J 1990-91 John F. Evans, Q.C., LSM 2015-16 Martha A. McCarthy, LSM From the time when Sandy and I began spending a Not Going to Change Your Mind,” Ben Tappin, Ryan 1991-92 Terrence J. O’Sullivan, LSM 2016-17 Bradley E. Berg part of each year in Paris, half-a-dozen years ago by McKay and Leslie van der Leer, New York Times, May Editorial Correspondence Stephen Grant, LSM, Grant Crawford Watson LLP 216077_Stephen-11 now,216077_Stephen-12 it’s become eerie. At216077_Stephen-13 our last apartment, outside 27, 2017). But this debate, such as it is, reminds me of 165 Avenue Road, Suite 201 the door were young military women and men, four the sublime 2014 takedown by Canadian physician and OFFICERS Toronto, ON, M5R 3S4 or five at a time, toting presumably loaded automatic pharmacare advocate Dr. Danielle Martin of Senator [email protected] | 416-238-7776 weapons. The reason? Not that we were next door to a Richard Burr of North Carolina. He asked her about Advertising and Subscription Correspondence President: Sonia Bjorkquist lycée. Rather, there was a Jewish cultural centre across Canadians going to the United States to avoid the long Robin Black Vice-president: Brian J. Gover the street. Walking down Boulevard Saint Germain or waiting lists here. She retorted that she couldn’t confirm [email protected] | 1-888-597-0243 x.108 Treasurer: J. Scott Maidment Secretary: Guy J. Pratte in the Marais, all of a sudden we saw the same military his statistics but, whatever the number, it paled in com- Creative Director Executive Director: Alexandra M. Chyczij presence. Eerie and troubling. parison to the 45,000 Americans who die each year from Jessica Lim [email protected] Andy Borowitz offered us some much-needed hu- lack of medical coverage (https://www.youtube.com/ mour about the election. In his Report (“French An- watch?v=iYOf6hXGx6M). Cover “Caught in the web of words” DIRECTORS Illustrated by Anja Javelona noyingly Retain Right to Claim Intellectual Superiority While there are undoubtedly problems with the in- Over Americans,” New Yorker, May 7, 2017), pretending frastructure and cost, as an inalienable right, a country Paintings, Illustrations and Photography: Frank Addario Rosemary A. Fisher Peter W. Kryworuk Tara M. Sweeney Karam Bajwa: Cover | p. 5, 23, 34-35 (or not?) to canvass French citoyens after the votes were can’t do better than provide health care coverage for Sarah J. Armstrong D. Brian Foster, Q.C. R. Reena Lalji Steve J. Tenai Ryan Little: p. 6-7, 29 counted, he reported, “Pierre Grimange … sipped on a its citizens. Michelle Awad, Q.C. Aaron M. Franks Joseph J. Markson Anne M. Turley Hayden Maynard: 15, 41 glass of Bordeaux and toasted his nation ‘for not being Another reason it’s a privilege to live in Canada. Margaret Mulligan: p. 3 (Editor photograph) Brian A. Babcock P.A. Neena Gupta J. Kenneth McEwan, Marie-Andrée Scott Shields: p. 19, 47 Sandra L. Barton J. Sheldon Hamilton Q.C. Vermette so dumb as the United States after all.’” A few tables ************ Colin S. Baxter Eric R. Hoaken Ann L. Morgan Paul B. Vickery away, “Helene Commonceau … admitted that she did As we head into fall, we are showcasing an array of The opinions expressed by individual authors are their Wendy R. Berman Peter K. Hrastovec David C. Janice L. Wright own and do not necessarily reflect the policies of Andrew E. Bernstein Dominique T. Nahwegahbow Aaron Dantowitz, not understand what all of the celebrating was about. fresh thoughts about advocacy in its many aspects. As The Advocates’ Society. Blair W.M. Bowen Hussey Deborah E. Palter ex officio ‘We are smarter than the Americans, true, but they have well, The Advocates’ Society is now reaching across the Alexandra S. Clark Mahmud Jamal Lonny J. Rosen, C.S. set the bar very low, no?’” country in membership and scope, so we are pleased to K. Erin Cullin Eliot N. Kolers Megan E. Shortreed Publications Mail Commercial Sales Agreement No. 40019079 As the United States moves away from at least a feature another article from Alberta counsel. The Advocates’ Journal is printed in Canada and is published four times a year by The Advocates’ Society, 250 Yonge Street, Suite century of social advances – as if suddenly someone Congratulations to my colleague at the family law 2700, Toronto, Ontario, M5B 2L7. Distributed free to all members of switched off enlightenment values – French voters were bar, Ken Cole, the 2017 recipient of the Catzman Award the Society. Contents copyright © 2017 by The Advocates’ Society. PAST EDITORS OF THE ADVOCATES’ SOCIETY JOURNAL Second class registration number 5941, paid at Scarborough. at the same socio-political crossroads. Instead they chose for Professionalism and Civility. Contents may be reproduced only with written authorization a path of moderation and tolerance, much like we en- Nostra culpa: We misspelled the word “counsel” in of the authors and acknowledgment of The Advocates’ Journal. 1982-90 Moishe Reiter, Q.C. The editors do not assume responsibility for the loss or return of joy here in Canada as we celebrate 150 years of nation- Spring 2017. If you’re first to find it, we have a copy 1991-08 David Stockwood, Q.C., LSM manuscripts, photographs, or illustrations. hood. Modestly, of course, being Canadians (Stephen of the book reviewed in this issue as a prize for you. Marche, “Canada Doesn’t Know How to Party,” New Contest limited to advocates whose initials are not PJL. York Times, June 23, 2017). Enjoy the changing leaves. We are back in December.
2 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 3 CONTRIBUTORS TO THE EDITOR
The Honourable Justice Jasmine T. Akbarali Justice Jasmine Akbarali sits on the Superior Court of Justice in Toronto. Prior to her appointment she was an appellate lawyer in Toronto.
The Honourable Justice David M. Brown Justice David Brown sits on the Court of Appeal for Ontario. When the mysteries of final and interlocutory orders become too impenetrable, he retreats to outport Newfoundland to seek wisdom from the cod. THE ADVOCATES’ JOURNAL SUBMISSION GUIDELINES
Lara J. Draper • Content: We value articles about advocacy Lara Draper is an associate at Dentons Canada LLP in Edmonton, practising commercial insolvency law and civil and advocates that are topical and crackle litigation. She has appeared before the Provincial Court of Alberta and the Alberta Court of Queen’s Bench and with currency. is secretary of the Board of Directors and member of the Advisory and Human Resources Committee of the Kids Kottage Foundation. • File format: We accept submissions only in Microsoft Word format. Alexander M. Gay Alexander Gay is a senior litigator, practising primarily in the area of commercial litigation and trade disputes. • Length: Although we appreciate concision, He is also a part-time law professor at the University of Ottawa Law School where he teaches Civil Procedure. there is no maximum or minimum length for Journal articles. The majority of our articles are between 1,500 and 3,500 words (excluding notes), but we will consider articles outside Matthew R. Gourlay this range. Matthew Gourlay is a partner at Henein Hutchison LLP in Toronto, with a practice focused principally on criminal appeals and professional discipline. • Notes: We prefer articles without notes, but whether to include notes is at the author’s Correspondence discretion. (All direct quotations should Julianna Greenspan be referenced, however, whether in the body of the article or in notes.) If you No port in this storm Julianna Greenspan is a partner at the law firm of Greenspan Partners LLP. She has practised criminal defence include notes with your submission, law in both the US and Canada for 20 years. we prefer endnotes to footnotes. When I read with mounting mixed feelings of amusement and reviewing notes after completing the final embarrassment (I am a Brit, after all) the e-mail exchange draft, double-check that cross-references compiled in The Advocates’ Journal concerning “Port to Port” Ken Jull (“ibid.,” “supra”) haven’t changed because of (Summer 2017). I am one of (I suspect) a relative few of your Ken Jull is counsel at Gardiner Roberts, practising corporate compliance, and is presently on an interchange late additions or deletions of text. readers with a copy of A.P. Herbert’s Uncommon Law on my bookshelf. I have now reread “Port to Port” for the first time as general counsel with the Competition Bureau. Ken used to be an amateur triathlete, but as they say with • Citation format: We do not insist on a particular since I was a pupil barrister in London. It’s a hoot, and I hope judges, “as he then was.” citation style. If you include citations, we that one day you will be able to reproduce it! trust that you will ensure they are accurate, Best regards, Anna Loparco complete, current and internally consistent. Graeme Mew, Superior Court of Justice Anna Loparco is a member of Dentons’ Litigation and Dispute Resolution group. As a general commercial litigator, In particular, check that citations to Internet she has a wealth of experience in insurance law, professional liability, administrative and privacy law, product sources refer to web addresses that are valid liability, intellectual property and contractual disputes. Anna has appeared before every level of court, including as of the date of the submission. If a cited web Advocacy the Supreme Court of Canada. address is no longer valid, we expect you to make note of this in the citation. I just finished reading the piece by Arthur Maloney (Spring Matthew Milne-Smith 2017). That was the address in my Call to the Bar ceremony, fol- Matthew Milne-Smith is a partner and the Litigation Practice Group Coordinator at Davies Ward Phillips Thank you, lowing which I began practice in association with Arthur and & Vineberg LLP in Toronto. He practises commercial litigation and is already regretting writing an article that a number of others in a new office in the Richmond-Adelaide advocates for fewer trials. Stephen Grant, Editor Centre. I’m not sure what inspired you to reprint that address, but reading it brought back a flood of great memories. As you Aaron Dantowitz, Managing Editor know, the words on the page only begin to pay tribute to Ar- The Honourable Joseph W. Quinn thur’s eloquence, personal charm and generosity of spirit. What- The Honourable Joseph Quinn took an early retirement from the Ontario Superior Court of Justice in 2016, Sonia Holiad, Production Editor ever the reason, thank you. following which he and his wife acquired a lively puppy. His Honour is now seeking a reappointment to the Stephen Richard Morrison bench. He needs the rest. (Editor’s note: Justice John Laskin passed the Maloney address on to me, and I thought it was more than worthy of publication.)
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Where to draw the line: Communications with expert witnesses
Anna Loparco and Lara J. Draper
n recent years, there has been a rise in challenges in court against the admissibility of expert reports. This trend has caused a chilling effect in communications with experts to ensure that the metaphorical line with respect to the expert’s indepen- Idence and impartiality is not crossed and resources are not wasted. This article reviews the various issues raised in those challenges and provides a framework, clarification and guidance for practitioners in Alberta with respect to maximizing an expert’s credibility and ensuring the admissibility of his or her opinion in court.
mplied waiver of privilege over documents and materials provided to an expert Upon admission of the expert’s evidence at trial It is well established in Alberta law that, if an expert testifies as to his or her opinion Iat trial, privilege is waived over the documents and other materials in the expert’s file, where such materials formed the basis of the expert’s opinion or were reviewed in the preparation of the opinion. These materials may include draft versions of the expert’s opinion and instruction letters from counsel used in preparing that opinion.1 In Lamont Health Care Centre v. Delnor Construction Ltd. (“Lamont”),2 Justice Macklin of the Alberta Court of Queen’s Bench, when deciding that an engineering expert retained by the de- fendant was required to produce his working file (including statements of witnesses and
6 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 7 working papers) at trial, stated: counsel which are relevant to the expert’s report, and he expressed doubt that deliv- for cross-examination to impugn credibility at trial. legal framework for admissibility of expert evidence,29 which is [T]he information the expert had in opinion unless and until the expert’s opin- ery of expert reports pursuant to Rule 5.35 a two-stage analysis arising from previous case law, namely R v. his possession but disregarded or did ion is introduced into evidence at trial.8 necessarily amounts to the expression of Upon pre-trial questioning of an expert Mohan (“Mohan”)30 and R v. Abbey (“Abbey”).31 The first stage is the not rely upon or which he had for oth- Justice McMahon rejected the submission such an intention.15 Master Smart further As noted above in the context of Master Smart’s analysis in Gram- threshold analysis of admissibility, during which the court must er reasons ignored when forming an that trial efficiency should weigh in favour noted that the limited scope of Rule 5.37(1) mer, Rule 5.37(1) of the Alberta Rules of Court permits parties to determine whether the proposed expert evidence meets the four opinion, may very well be considered of compelling production of related privi- of the Alberta Rules of Court is consistent question each other’s experts before trial where a party indicates threshold requirements described in Mohan and Abbey: by others, including the Court, as rele- leged documents upon exchange of expert with the approach of prioritizing the that it intends to use an expert report at trial, but only if the 1. relevance, in the sense of logical relevance; vant to the determination of the issue reports before trial, instead holding that [i] protection of privilege over underlying parties agree to the questioning or if the court directs the ques- 2. necessity; being considered and, more particu- If counsel chooses not to introduce the re- documents before trial. Rule 5.37(1) per- tioning in exceptional circumstances. The restriction of pre-trial 3. absence of an exclusionary rule; and larly, the credibility of the expert and port into evidence, there is no waiver.”9 mits parties to question each other’s experts questioning of an expert to cases involving agreement or “ex- 4. a properly qualified expert.32 the validity of his opinion.3 More recently, Master Smart of the Al- before trial, which consequently may disclose ceptional circumstances,” being “[c]onditions which are out of A fifth factor, being the reliability of the underlying science for the However, the court in Lamont notably held berta Court of Queen’s Bench in Grammer certain relevant and material documents un- the ordinary course of events; unusual or extraordinary circum- purpose for which it is put forth, also comes into play during the first that a report, which was marked in the affi- v. Langpap (“Grammer”) considered wheth- derlying those experts’ opinions, where a stances,” resulted from a concern that permitting unrestricted stage in instances of expert opinions based on novel or contested sci- davit of records and which was created by er the current Alberta Rules of Court AR party indicates that it intends to use an expert questioning of experts would cause undue delay and expense.21 ence or science used for a novel purpose.33 the expert at the instruction of counsel for 124/2010 (the “Alberta Rules of Court”) impact report at trial, but only if the parties agree to In M. (B.J.) v. M. (S.L.), Justice Phillips of the Alberta Court of The Supreme Court of Canada in White Burgess further noted the sole purpose of preparing the the questioning or if the court Queen’s Bench considered the scope of such a questioning, in that “[t]his [first-stage] threshold requirement is not particularly defence for the anticipated litiga- directs the questioning in excep- particular what materials the expert may be questioned upon.22 onerous and it will likely be quite rare that a proposed expert’s tion, would remain privileged tional circumstances.16 The applicant contended that such questioning must be limited evidence would be ruled inadmissible for failing to meet it.”34 To even though the expert had testi- In 2016, Justice Goss of the to the expert’s report only and that witness statements, test results fail at the threshold stage of the admissibility analysis, it must be fied at trial.4 Alberta Court of Queen’s Bench and any other material on which the expert based her report re- “very clear” that the expert is unable or unwilling to provide Justice McIntyre of the Alberta confirmed this approach in Reid mained privileged until the expert was called at trial.23 Justice the court with fair, objective and non-partisan evidence, such as Court of Queen’s Bench in Chap- v. Bitangcol (“Reid”).17 Justice Goss Phillips rejected that position, holding that the documents re- where the expert has a direct financial interest in the outcome of man Management & Consulting considered a defendant’s appli- viewed by the expert in preparing her expert report, including the litigation, has a close familial relationship with one of the par- Services Ltd. v. Kermic Equipment cation for disclosure of the docu- test results and statements from the parties and other witnesses, ties, risks professional liability if his or her opinion is not accepted Sales Ltd. (“Chapman”) also took this approach, previous judicial authorities pertaining to ments, test protocols and raw test data under- must be disclosed and the questioning may address those docu- by the court, or assumes the role of advocate for a party. Anything holding that the defendant was required to privilege over experts’ working files before lying the expert reports which the plaintiffs ments in addition to the expert’s report itself.24 The court was of the less than that level of clarity should not lead to exclusion at this produce all relevant documents in the pos- trial.10 In Grammer, the defendant sought had served on the defendants and on which view that, without disclosure of those underlying documents, stage, but rather should be taken into account in the second-stage session of the defendant’s expert, who had al- production of the documents and notes un- the plaintiffs intended to rely at trial pursuant the questioning of the expert would be less meaningful and useful cost-benefit analysis of receiving the evidence.35 ready testified at trial, or of the expert’s firm.5 derlying the report of an expert who had to Rule 5.35 of the Alberta Rules of Court. The and thus the potential to reduce trial time and complexity would For expert evidence to be admissible at the second stage of the conducted a psychological assessment of defendants contended that these underlying be hindered, especially in circumstances in which the expert’s cred- Mohan and Abbey framework, the court must weigh the evidence Upon pre-trial exchange of reports the plaintiff prior to trial on the basis that documents and information were relevant ibility and validity of his or her opinion is critical to resolution of and be satisfied that the potential helpfulness of the expert’s evi- While Lamont and Chapman pertained to ap- the reports had already been produced and and material records not protected privilege the issues.25 Further, the court found that pre-trial questioning of dence is not outweighed by the possible risks associated with that plications for disclosure during the course of thus the documents underlying those re- and should be produced before trial so that an expert is akin to an expert giving evidence at trial, as in both evidence. To weigh the evidence’s risks and benefits, a court may trial after both experts at issue had already ports were relevant and material and no the defendant’s expert could use them to cases the expert would be providing evidence under oath and consider its relevance, necessity and reliability, and the absence of testified, the analysis differs for requests for longer protected by litigation privilege.11 complete his rebuttal medical examination may be tested through cross-examination, and therefore ques- production of the documents underlying The defendant pointed to the foundation- report under Rule 5.44 (conduct of medical tioning similarly should trigger the waiver of privilege over the an expert’s opinion before trial. For exam- al rules and Rule 5.1 of the Alberta Rules of examinations) in order to avoid unnecessary documents underlying the expert’s report.26 ple, in Chernetz v. Eagle Copters Ltd., upon Court (which promote timely and cost-effec- costs and delay.18 Referencing Grammer and Nevertheless, like the court in Ramirez, Justice Phillips limited the exchange of expert reports before trial, tive process) to contend that trial efficiency other Alberta decisions, Justice Goss conclud- this disclosure by noting that there “still are other documents that the plaintiffs sought an order compelling should outweigh protection of the docu- ed that “this mandatory disclosure [Rule 5.44] need not be produced and may not be questioned upon” before the defendants to produce all documents mentation underlying expert reports.12 He does not include disclosure of documents, trial, being “working documents” which include any communi- in the possession of the defendants’ ex- also submitted that certain jurisprudence test protocols and raw data from tests under- cations, memoranda, calculations, notes, diagrams, drawings and perts which were relevant to those experts’ dealing with the timing of the exchange lying the expert reports.”19 preliminary or draft opinions.27 Reid opinions, including correspondence to and of expert reports indicates a “general evo- One should note that distinguished B.A., LL .B. from counsel, notes on meetings and tele- lution towards maximum disclosure and certain decisions made pursuant to the old he importance of impartiality and independence of experts John Collins, Barrister and Solicitor phone conversations with counsel and other expeditious exchange of information” and Alberta Rules of Court, Alta Reg 390/68 (the to the admissibility and weight of experts’ opinions Certi ed by e Law Society of Upper Canada experts, and claim review notes.6 The plain- that Rule 5.35 of the Alberta Rules of Court “Old Rules of Court”).20 In light of Andre, With the jurisprudence regarding the timing of disclo- As a Specialist in Criminal Law tiffs submitted that all relevant documents in (which provides that once an intention to which was distinguished by Reid, it appears Tsure of an expert’s report and its underlying documents relative- the experts’ possession should be producible rely on an expert report at trial has been ex- the rule is that test protocols and original raw ly well-established in Alberta, courts have been tasked with the Over 40 Years of Trial and Appellate Experience once the expert reports are served in order pressed, the report shall either be entered data used in medical examinations conduct- issue of admissibility and credibility of expert opinions at trial. 357 Bay Street Tel: (416) 364-9006 to promote trial efficiency, whereas the de- into evidence or the expert shall be called ed pursuant to Rule 5.44 of the Alberta Rules In White Burgess Langille Inman v. Abbott and Haliburton Co. (“White Suite 703 Fax: (416) 862-7911 28 Toronto, ON Cell: (416) 726-8279 fendants contended that such documents as a witness at trial) constitutes an express of Court may be producible before trial if both Burgess”), the Supreme Court of Canada clarified the law re- M5H 2T7 E-mail: [email protected] should remain privileged unless and until intention to waive privilege over the work- sides’ medical expert reports have been com- garding admissibility of expert evidence. In particular, it clarified the expert testifies at trial.7 ing file underlying the expert’s report.13 pleted and served. The purpose would be to whether the basic standards for admissibility (rather than merely Justice McMahon of the Alberta Court of Ultimately, Master Smart declined to com- permit both sides to obtain all relevant data the weight) of expert evidence should pertain to the proposed ex- Queen’s Bench concluded that there is no pel the production of the documents.14 He underpinning served expert reports prior to pert’s independence and impartiality. waiver of privilege over the documents and found that there was no evidence to the trial so that they may prepare accordingly. materials reviewed by the expert in forming effect that the plaintiffs had indicated an However, this still would not permit pre-trial Independence and impartiality factors in the framework for his or her opinion or over the communica- express intention to waive privilege over disclosure of drafts or expert communications admissibility of expert evidence tions between the expert and instructing the working file underlying the expert’s with counsel, which is only an issue relevant The Supreme Court of Canada in White Burgess outlined the basic
8 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 9 full_page_ottawa_ASAP_ad.pdf 2 2017-04-21 11:51 AM
bias (in other words, the independence and they do not disqualify or diminish the admis- others, preparing position papers countering impartiality of the evidence).36 sibility or weight of expert evidence on which Justice Wilson’s position and intervening in With that basic framework in mind, the they seek to rely by communicating with ex- the Moore appeal to oppose Justice Wilson’s Supreme Court of Canada in White Burgess perts in a manner which may be, or which ruling on the issue.50 considered the nature of an expert witness’s may be perceived as being, overly influential The Court of Appeal acknowledged “the duty to the court and how that duty fits into to the expert opinions provided. Put simply, long-standing practice of counsel reviewing that framework.37 It noted the importance of it is vital for counsel to avoid the result and draft reports”51 and indicated that requiring ensuring that expert witnesses are impar- the perception that an expert is a “hired gun.” written disclosure of all communications tial, in the sense that their professional opin- This issue came to a head in Moore v. between consent and expert witnesses is ions are unbiased; and independent, in the Getahun (“Moore”), in which Justice Wilson “unsupported by and contrary to existing sense that “their opinion is the product of of the Superior Court of Justice of Ontario authority.”52 Counsel play a “crucial medi- their own, independent conclusions based called attention to the scope of permissible ating role” by explaining the relevant legal on their own knowledge and judgment,”38 interactions between counsel and expert issues to the expert and presenting compli- in order to avoid “egregious miscarriages witnesses.43 The relevant issue in Moore cated expert evidence to the court; without of justice.”39 Specifically, the Supreme Court was the propriety of counsel reviewing the communicating with the expert during the Ottawa of Canada indicated that experts have a “spe- draft report of an expert who had been re- preparation of the report, it would not be cial duty to the court to provide fair, objective tained to provide an opinion.44 Defence coun- feasible for counsel to fulfill this role.53 In and non-partisan assistance,”40 which trumps sel had reviewed the expert’s draft report and particular, consultation and collaboration their obligation to the party retaining them. had suggested changes for the final report between counsel and expert witnesses is It articulated a new version of the frame- during a one-and-one-half-hour telephone not merely appropriate, but also essential work in which impartiality and indepen- conference call.45 The expert confirmed to to ensuring that experts frame their reports dence of the expert are relevant to admis- the court that he had sent his draft report to in a way that is responsive and restrict- sibility as well as to weight of the expert’s defence counsel “for comments” and that he ed to the relevant issues in the litigation; evidence, noting the comment of Justice subsequently made “the corrections” suggest- understand their duties to the court; en- Binnie in R. c. J. (J.-L.), 2000 SCC 51 at para ed by defence counsel over the telephone.46 sure that their reports comply with the C 28, [2000] 2 SCR 600 that The plaintiff submitted that it was improper applicable civil procedure rules and rules M [45] … [t]he admissibility of the expert for defence counsel to make suggestions to in- of evidence; write their reports in a manner
Y evidence should be scrutinized at the fluence the expert’s report. and style that is coherent and accessible; un- time it is proffered, and not allowed too In the context of Rule 53.03 of the Ontario derstand relevant legal matters (e.g., the dis- CM easy an entry on the basis that all of the Rules of Civil Procedure, RRO 1990, Reg 194, tinction between the applicable legal bur- MY YOU ASKED. WE LISTENED. frailties could go at the end of the day to which requires an executed acknowledge- den of proof and scientific certainty); ensure 41 CY weight rather than admissibility. ment from an expert witness of his or her that the facts and assumptions underlying CMY Coming this summer to Ottawa, Regarding admissibility, the court held primary duty of independence and impar- their opinions are clear; ensure that their re- that impartiality and independence should tiality to the court, Justice Wilson admon- ports are restricted to matters within the ex- K Arbitration Place and ASAP Reporting be considered both at the first stage of the ba- ished the practice of counsel reviewing pert’s area of expertise; and avoid assuming Services bring a new state-of-the-art facility sic Mohan and Abbey admissibility framework and shaping draft reports. She indicated the court’s function as the “ultimate arbiter during the threshold inquiry and, once that that counsel should not play any role in the of the issues,” especially in highly technical to the National Capital’s premier business initial threshold is met, at the second stage of preparation of an expert’s report, absent cases.54 The Court of Appeal made clear that centre, the World Exchange Plaza. that framework during the overall cost-benefit full written disclosure to opposing coun- precluding communications between coun- analysis which the court conducts when per- sel of any changes to the report resulting sel and expert witnesses or requiring that 42 forming its gatekeeping role. from counsel’s input, in order to ensure all such communications and consequent transparency and to preserve the expert’s changes to reports be documented and dis- Together with ASAP Reporting Services—a global Come experience the difference. Book your next cope of communications between credibility, independence, impartiality and closed in written form (as Justice Wilson had court reporting firm providing a full portfolio of arbitration or out-of-court examination with us at counsel and experts and their effect primary duty to assist the court.47 proposed) would increase costs and delays reporting, transcription and videoconferencing Arbitration Place Ottawa. on experts’ actual or perceived On appeal,48 the Court of Appeal for Ontar- in the justice system, which already is strug- services—Arbitration Place Ottawa will build on Simpartiality and independence io rejected Justice Wilson’s statements regard- gling to improve the timeliness and cost-ef- 55 the success of our internationally-acclaimed For more information, please visit: In light of the jurisprudence which establish- ing the propriety of involvement by counsel in fectiveness of adjudication of civil disputes. es that an expert testifying at trial may be the preparation of expert reports, concluding It consequently is clear that, while an facilities in Toronto. arbitrationplace.com or asapreportingservices.com required to produce the documents or com- that she had erred in holding that consulta- expert may offer important technical ev- munications underlying his or her opinion tion between counsel and experts and the re- idence to assist the court, counsel’s role (including briefings and communications view by counsel of draft expert reports must in introducing such an opinion in an effi- with counsel for the party that retained him end. It noted that Justice Wilson’s comments cient, understandable and legally relevant or her) and the jurisprudence which stipu- in that regard caused “considerable concern manner remains essential. lates that an expert witness’s independence in the legal profession and in the communi- Further, although this necessary medi- and impartiality are essential both to the ad- ty of expert witnesses,”49 with The Advocates’ ation process between counsel and expert missibility and the weight of expert evidence, Society, the Canadian Institute of Chartered may risk loss of impartiality on the expert’s it is important that lawyers ensure that their Business Valuators, the Holland Access to part, the Court of Appeal in Moore indicat- communications with experts do not under- Justice in Medical Malpractice Group, the Ca- ed that existing law and practice already mine experts’ impartiality or independence. nadian Defence Lawyers Association and the protect the independence and impartiali- Lawyers should be cautious to ensure that Ontario Trial Lawyers Association, among ty of expert witnesses in numerous ways.
THE ADVOCATES’ JOURNAL | FALL 2017 | 11 These measures include the ethical and arguably targets the impartiality and inde- but it is silent about what use the defendant the MIR scheme.”80 As a result, the court held Notes professional standards of the legal profes- pendence of experts retained by defendants may make of the video once received.70 The that the Alberta Rules of Court videotaping provi- 1. See Edmonton (City) v Lovat 33. Ibid. sion and of other professional bodies (such to perform IMEs over experts retained by court concluded that Rule 5.43 should be sions, which aim to provide protection to the ex- Tunnel Equipment Inc, 2000 34. Ibid at para 49. as those of engineers, actuarial scientists plaintiffs to do the same. This rule provides interpreted to permit the defence expert to aminee due to the perceived partiality of medical ABQB 182 at paras 16–32, 260 35. Ibid. and business valuators), which oblige their plaintiffs with a prima facie right to require review the video recording before complet- examinations under those rules, have no appli- AR 272. 36. Ibid at para 54. members to be independent and impartial that a defence expert’s IME be conducted ing his or her report and to allow defence cation, and indeed would jeopardize the neutral 2. Lamont Health Care Centre v 37. Ibid at paras 26–54. when giving expert evidence; the adversarial in the presence of a third-party nominee counsel to view the recording.71 Notably, CME process under the MIR.81 Delnor Construction Ltd, 2002 38. Ibid at para 11. court process, particularly cross-examination; health care professional, be videotaped in arriving at that conclusion, it remarked ABQB 1125, [2002] AJ No 39. Ibid at para 12. and the ability of judges to reject or limit the or be subject to a word-for-word recording that videotaping the defence IME would onclusion 1589. 40. Ibid at paras 2, 10. weight of expert evidence where there is (subject to an application by the defendant “address other concerns about the partial The clarity brought by recent jurispru- 3. Ibid at para 12. 41. Ibid at para 45. actual evidence that the expert lacks inde- to modify or waive the plaintiff’sprima facie nature of [medical examinations], includ- dence regarding communications between 4. Ibid at para 17. 42. Ibid at para 34. pendence and impartiality.56 right to those conditions), without offering ing the concerns regarding the questions Ccounsel and experts is a welcome development 5. Chapman Management & 43. Moore v Getahun, 2014 ONSC 237, The Court of Appeal for Ontario subse- the defence an equivalent prima facie op- that the examining doctor may ask.”72 since the Ontario Superior Court decision in Moore. Consulting Services Ltd v [2014] OJ No 135. quently considered the propriety of com- portunity to require that those same condi- Justice Ross’s commentary in Gordon v. It is now well established that the line between Kermic Equipment Sales Ltd, 44. Ibid at paras 47–52, 519–520. munications between counsel and expert tions be imposed on an IME conducted by Taylor,73 when distinguishing IMEs from counsel and experts favours fair advocacy princi- 2004 ABQB 498 at paras 1–2, 45. Ibid at para 519. witnesses again in Fonseca v. Hansen (“Fonse- the plaintiff’s expert. certified medical examinations (CMEs) con- ples, including the independence and impartiality [2004] AJ No 756. 46. Ibid at para 47. ca”).57 While the facts of Moore pertained to In a number of decisions in the context ducted pursuant to Alberta’s Minor Injury of experts, without compromising counsel’s duty 6. Chernetz v Eagle Copters Ltd, 2005 47. Ibid at paras 50–52. discussions between counsel and the expert of Rule 5.42, the Alberta Court of Queen’s Regulation, AR 123/2004 (MIR) under the to advocate zealously for their clients and to ensure ABQB 712 at paras 2–3, 385 AR 48. Moore v Getahun, 2015 ONCA in respect of draft reports which the expert Bench has pointed to an inherent lack of Insurance Act, RSA 2000 c 1–3, also high- that the best possible evidence is advanced in a 238. 55, 381 DLR (4th) 471, leave already had prepared, the issue in Fonseca independence which characterizes the ad- lights this point. In that case, the Alberta manner that is clear and comprehensible to a court 7. Ibid at paras 4, 6. to appeal to SCC refused was the propriety of discussions between versarial IME process, in particular with Court of Queen’s Bench was asked to con- or jury. Notwithstanding, additional precautions 8. Ibid at paras 10, 12. (2015), [2015] SCCA No 119 counsel and the expert before the expert respect to defence IME experts. For exam- sider whether the rules regarding IMEs in have been built into the Alberta Rules of Court; name- 9. Ibid at para 11. (SCC). had prepared any draft report or had even ple, in Lai v. Henry,61 Master Smart of the the Alberta Rules of Court provide plaintiffs ly, Rule 5.42 thereof, which aims to address the 10. Grammer v Langpap, 2014 ABQB 74, 49. Ibid at para 46. met with the client.58 The Court of Appeal Alberta Court of Queen’s Bench indicat- with a right to require videotaping of CMEs perceived inherent partiality of IMEs (particularly 6 Alta LR (6th) 396. 50. Ibid at paras 46–49. in Fonseca reaffirmed the stance inMoore re- ed: “Although these examinations are of- conducted pursuant to the MIR, which says those performed by defence experts) by provid- 11. Ibid at para 2. 51. Ibid at para 53. garding the importance of communications ten described as an Independent Medical nothing about videotaping CMEs.74 The ing the plaintiff with a presumptive right to have 12. Ibid at paras 2, 6. 52. Ibid at para 55. between counsel and experts and indicated Examination (IME) they are anything but court ultimately found that it would be in- defence IMEs monitored, videotaped or otherwise 13. Ibid at para 6. 53. Ibid at para 64. that it applies equally to communications independent. These are one-shot exercis- consistent with the object and spirit of the recorded. It is interesting to note, however, that the 14. Ibid at para 10. 54. Ibid at paras 55, 62–63. between counsel and experts which take es conducted in adversarial circumstanc- MIR to import the entitlement to videotape Ontario courts have rejected imposing such safe- 15. Ibid at para 6. 55. Ibid at para 65. place before the expert prepares any draft es. The aim of the Defendant is to discredit IMEs from the Alberta Rules of Court into the guards on defence medical examinations absent 16. Ibid at paras 8–9. 56. Ibid at paras 56–61. report or even sees the client.59 It held that the claim of the Plaintiff.”62 MIR so as to allow videotaping of CMEs.75 some evidence of bias. 17. Reid v Bitangcol, 2016 ABQB 57. Fonseca v Hansen, 2016 ONCA 299, the respondents’ counsel’s line of question- In Nguyen v. Koehn,63 Justice Moreau of the Although the court acknowledged that the In conclusion, some practical tips for lawyers follow. 122, 36 Alta LR (6th) 407 266 ACWS (3d) 104. ing of the appellant’s expert criticizing the Alberta Court of Queen’s Bench similarly provisions regarding IMEs in the Alberta [Reid]. 58. Ibid at para 49. expert’s communications with appellant referred to the intrinsically biased nature of Rules of Court and the provisions regarding Instruction letter 18. Ibid at para 7. 59. Ibid at paras 62–63, 69–70. counsel was “undoubtedly improper” and defence IMEs in this context, noting that “dif- CMEs in the MIR relate to similar subject Counsel should include language in their in- 19. Ibid at para 18. 60. Ibid at para 51. “should not have been permitted” in light ferent considerations apply when a plaintiff is matter and both establish a method to ob- struction letters to experts which emphasizes 20. Ramirez v Brander, 2007 ABQB 61. Lai v Henry, 2013 ABQB 696, 576 of the Court of Appeal’s decision in Moore.60 being examined by a doctor of the defendant’s tain a medical examination and report for the expert’s role and primary duty to the court 729 at paras 9–12, 162 ACWS AR 204. Based on the foregoing, it appears that the choosing rather [than] his or her own physi- use during settlement negotiations or as ev- to be to be fair, objective and non-partisan and (3d) 730 [Ramirez]; Andre v 62. Ibid at para 13. pendulum swing regarding communica- cian”64 and that the plaintiff’s presumptive idence at trial, it found that they each oper- which asks the expert to sign a declaration ac- Wiebe, 2000 ABQB 946, 284 AR 63. Nguyen v Koehn, 2012 ABQB 655, tions between counsel and expert witness- rights under Rule 5.42 are a “means of ensur- ate in distinct contexts.76 knowledging his or her understanding and 378 [Andre]. 550 AR 272. es has settled at the midpoint: recognizing ing accuracy and fair play during an exam- IMEs, in the context of the adversarial na- acceptance of this duty. 21. M. (B.J.) v M. (S.L.), 2012 ABQB 64. Ibid at para 37. the important role of counsel and the expert ination ordered and paid for by a party oppo- ture of litigation, purportedly give rise to 731 at paras 27–28, 2012 65. Ibid at para 36. in collaborating to ensure that an expert’s site in interest”65 and a means of confirming examinations which are inherently at risk of Form 25 CarswellAlta 2492. 66. Ibid at para 43. opinion is ready for the rigours of trial. that “the medical practitioner’s questions were bias. The court stated: “This context is crucial Counsel should include language in the form en- 22. Ibid at paras 30–39. 67. Kohlendorfer v Northcott, 2013 fair and the record of the examinee’s answers to the purpose of the Rules provision for vid- closing the expert’s report (Form 25 pursuant 23. Ibid at para 31. ABQB 145, 558 AR 227. ndependence and impartiality of was accurate.”66 eotaping of medical examinations ... Video- to the Alberta Rules of Court) which reinforces 24. Ibid at para 36. 68. Ibid at para 10. experts in the context of independent Justice Read of the Alberta Court of taping was seen as a less expensive alterna- the expert’s independence and impartiality 25. Ibid. 69. Ibid at para 11. medical examinations in Alberta Queen’s Bench in Kohlendorfer v. Northcott tive to attending with a medical nominee.”77 (e.g., “I have no personal interest in the out- 26. Ibid at para 38. 70. Ibid at para 20. IThe importance of impartiality and inde- (“Kohlendorfer”) 67 similarly alluded to the In contrast, the MIR aims to facilitate come of this litigation and I am not financially 27. Ibid at para 37. 71. Ibid at paras 22–24. pendence of experts, and the consequent supposed inherent bias of IMES, this time settlement of motor vehicle injury claims interested in any of the litigants involved”). 28. White Burgess Langille Inman v 72. Ibid at para 35. scope of proper communications between in the context of deciding whether Rule regardless of whether litigation has been Abbott and Haliburton Co, 2015 73. Gordon v Taylor, 2014 ABQB 11, counsel and experts addressed by Moore, is 5.43 of the Alberta Rules of Court allows a commenced.78 The procedure for selecting Other SCC 23, [2015] 2 SCR 182 [White 579 AR 387. put to a stricter test in Alberta when one con- plaintiff who has obtained a video record- a certified examiner to perform a CME Counsel should mark prior expert reports Burgess]. 74. Ibid at para 18. siders health care experts who conduct “inde- ing of a defence IME to prevent the defence thereunder is by agreement of the parties that do not form the basis of the final re- 29. Ibid at paras 16–25. 75. Ibid at para 26. pendent medical examinations” (IMEs) in the expert who conducted the IME from re- or by appointment by neutral third party, port as privileged in the affidavit of re- 30. R v Mohan (1994), [1994] 2 SCR 9, 76. Ibid at para 24. course of litigation. viewing the video recording before finaliz- which ensures that there is no bias in the cords. As well, counsel should confirm the 114 DLR (4th) 419 (SCC). 77. Ibid at para 30. Rules 5.41 to 5.44 of the Alberta Rules of ing his or her report.68 Subrule 5.43(3) spe- selection process and that the selected cer- expert’s understanding and acceptance of 31. R v Abbey, 2009 ONCA 624, 97 OR 78. Ibid at para 24. Court set out additional safeguards for the cifically requires that the video recording tified examiner is neutral in relation to the his or her duty of independence and impar- (3d) 330. 79. Ibid at paras 31–32. conduct of medical examinations by health be provided to the opposing party as soon parties.79 The court found that neutrality of tiality during direct examination of the ex- 32. White Burgess, supra note 32 at 80. Ibid at para 36. care professionals. In particular, Rule 5.42 as practicable after the IME is completed,69 the certified examiner is “clearly central to pert at trial. para 23. 81. Ibid at paras 37–38.
12 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 13 THE ADVOCACY PROFESSION Thomson, Rogers Lawyers The best way to stay in practice TRUST is to not quit Every time you refer a client to our firm, you are putting your reputation on the line. The Honourable Justice Jasmine T. Akbarali It is all about trust well placed.
while ago, I read a Princeton University professor’s CV of failures.1 It included the degree programs he did not get into; the academic positions, fellowships, scholar- Aships and research funding he did not get; and the academic jour- nals that rejected his work.2 He published it because his successes were visible while his failures were not. He worried that this record led people to think everything had come easily to him and perhaps to attribute their own failures to themselves, instead of understanding that so much of what we do is a crapshoot. I thought about that CV of failures a lot last fall, in the days and weeks following my appointment to the Superior Court of Justice. As people reached out to me with notes and calls of congratulations, and as I attended events where kind speeches were made about me, my successes were enumerated – the awards I earned, the recogni- RICHARD HALPERN | WENDY MOORE MANDEL | SLOAN MANDEL tions I received, the big wins I gained for clients. Those successes are part of my story. I don’t mean to, or want to, diminish them. My successes are also bound up inexorably with my failures and mistakes. The oral argument that didn’t go so well paved the way Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship for the one with a better structure. The feedback from a respected colleague made my documents better. Experience teaches all of us. with hundreds of lawyers across the province. But in my mind, I kept coming back to the big one. The colossal mistake I nearly made that would have changed everything. That As a law firm specializing in civil litigation, we have a record of accomplishment time I stumbled badly but was lucky. A wise and compassionate second to none. With a group of 30 litigators and a support staff of over 100 people, woman caught me before my stumble became a freefall. I’m talking about the day I tried to quit law. we have the resources to achieve the best possible result for your client. I was approaching the end of my already once-extended maternity leave with my youngest child. I was in the midst of a huge renovation. was under. She respected how I was feeling. She asked me what I We welcome the chance to speak or meet with you about any potential referral. I have a lot of kids, and they were all young. My husband was man- needed, and she gave me choices. We look forward to creating a solid relationship with you aging a demanding career. We had close family members with health I told her I did not need to resign, but I did not want to be unfair to that will benefit the clients we serve. challenges. And I was supposed to go back to work? my partners. I now know this is the biggest mistake I made. Going in, I couldn’t see a way to resume my professional responsibilities I did not ask for what I needed. I was lucky. Lisa offered it anyway. and meet the expectations I set for myself as a mother, wife and Here is the third thing Lisa did. She negotiated an open-ended lawyer. I didn’t want to feel like I was failing at everything all the maternity leave with quarterly check-ins. We agreed that if at any YOUR ADVANTAGE, time. I didn’t want to fail at everything all the time. point this arrangement stopped working for me or the firm, we’d in and out of the courtroom. I couldn’t find any options. I concluded I had to resign. So I revisit it and look for another resolution. But in the meantime, I got called Lisa Munro,3 one of the management partners at Lerners the room I needed to breathe. I took a second year out of the office,6 LLP, my firm at the time, and told her I needed a meeting. and by then I was itching to get back. Here is the first thing Lisa did. She dodged me for three weeks. She Here is the fourth thing Lisa did. On my return, she supported knew where this meeting was going, and she wanted to make sure I me in my reintegration into practice. This included making avail- had plenty of time to think about what I was doing before I met her. able marketing resources (consultants and funds) and other mea- Eventually, I walked into her office, resolute in what I had to do.4 I sures specific to my practice to get me up and running again. sat down and told her I had to resign. Immediately I burst into tears. The legal profession agonizes over the retention of women in Here is the second thing Lisa did. She asked me if I needed to practice. Lisa’s approach was simple and practical: The best way resign because I needed a hard break from the firm to sort things to stay in practice is to not quit. I am not trying to be funny as I 5 TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com out, or if I just needed more time. This question was important write this. What I mean is that the practice of law can be hard ... because, in her approach, Lisa did not minimize the pressures I and demanding. Sometimes it can be awful. Like that week you
THE ADVOCATES’ JOURNAL | FALL 2017 | 15 worked 80 hours and you missed your son’s for creative arrangements. Ask for what you need. You will not get it first-place cross-country finish, and your Work at creating a culture of teamwork in if you don’t.13 This one is so important, I’m daughter called you by her nanny’s name. your organization, where co-workers support going to repeat it: Ask for what you need. It can also be exciting ... and inspiring ... each other. An atmosphere where people look It’s not an overstatement to say that the day and rewarding. Like that big win you got out for each other is not only a great one in I nearly quit was a pivotal day in my career. Experience the future of CPD with which made all the difference for your cli- which to work, it also provides the depth for I’m grateful it unfolded as it did. When I think ent; or the day you found your daughter’s people to cover for each other when necessary. of the experiences I might have missed – both TM homework where she wrote about how you in practice and now in my judicial role – had I are her role model. or individual lawyers been derailed by the situational difficulty I Learning-by-Animation Here is the problem: It is hard to remem- Think long and hard about the ob- faced, I feel like I dodged a bullet. But that ber the great side of practice when all you are ligations you need to take on. What is what staying in practice is all about. It’s not feeling is the grind. It is hard to feel inspired Fcan you delegate? Can you outsource your realistic to expect lawyers won’t ever be un- when you feel like you are drowning. If you laundry and your meals? What can your as- happy or overwhelmed. Retention of lawyers feel like you are drowning, the temptation to sistant or clerk or articling student or nanny in practice is about hanging on through those Preparing for Examination-in-Chief: leave practice can be overwhelming. do for you that you are currently doing your- difficult periods until you get to the other side. New Animated Interactive Advocacy Course Here is the trick: In those moments of self? Your goal should be to pare down your Long-term relationships have bumps in the overwhelm, the only thing you have to do obligations so that you are doing only the road; so do long-term careers. If we can un- to stay in practice is not quit. That’s it. You things you need to do. Your kid does not need derstand that those trying periods are normal can quit tomorrow if you have to, but you you to fold her laundry or push her stroller; over the lifetime of a career, perhaps we can Engage in our new animated advocacy course, Preparing for Examination-in-Chief. can’t un-quit tomorrow if you quit today. she needs you to be present in her life. Make cope with them better when they come. So don’t quit today. sure your time with her is meaningful. Make There are any number of creative ways Learn in an interactive environment at your own pace. This ground-breaking You don’t have to love practice. You don’t your time meaningful all the time. of getting through difficult periods in your platform will combine the magic of animation with practical techniques. even have to not hate practice. You just have Make yourself valuable. It was easier for practice. Don’t quit before you figure out to hold on and not quit, because it will get my partners to offer me an open-ended the solution that works for you. It might not Register for this innovative and easy to use animated course. better. It really will. leave because I had already built goodwill be easy, but it really is that simple. Lisa knew the trick. She got me to hold on a through hard and competent work. little longer. Just long enough to be able to get Downgrade your expectations of yourself. back to my practice in a way I could manage. There was a time I sent my kids to school with Notes Topics Include: I know my single anecdote is not data, but spelt muffins that had to be homemade.11 1. Online:
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Be business-minded. Lisa approached their macaroni and cheese that much better sense. They may not always. It doesn’t mean A 2017 Professional Excellence, coming first overall in the technology category our discussions like a discussion between than yours?” she asked me. (It’s not. And, your policies are bad. It may mean they don’t TM two businesspeople looking to make a mu- more to the point, even if it is, who cares?) respond to the situation you are faced with. for “Preparing for Examination-in-Chief” Learning-by-Animation course. tually beneficial deal. This approach might Be flexible. If your firm or organization is 9. This solution works best if the lawyer is mean worrying less about policies7 and more willing to work with you on an alternative flexible about how those targets are about what makes sense.8 arrangement, remember it’s a business deal- achieved and there is a fair, honest and Eligible CPD Hours: Be creative. Any number of arrangements ing. You need not be obsequiously grate- transparent approach to compensation. 1.25 CPD Hours might work in a given situation, like putting ful for it. Presumably it is offered because 10. Many of these ideas are not applicable a lawyer in a litigation solicitor role, re- you have some value to your organization. to small firms, where the challenges (0.5 Professionalism; 0.75 Substantive) ducing billable hour targets,9 encouraging But you aren’t entitled to it either. Law is are heightened; but some of them are a lawyer to work remotely or to work odd not a charity. It’s not even only a profession. applicable or can be adapted to small firms. hours, or moving a lawyer to a more sup- It is also a business. If you have an alternative 11. I know. I can almost laugh at myself now. portive working group.10 If you educate arrangement, make it work, even if it is some- 12. Sorry, goop. To register or learn more visit your senior people about the cost of train- times inconvenient for you. If your arrange- 13. Unless you have a Lisa, but you can’t count ing – and losing – good people who may be ment stops working for your firm or employ- on that. www.advocates.ca in a period in their lives that they just need er, it stops working. So do your level best to to get through, you will get more support keep it working ... without resentment.
16 | FALL 2017 | THE ADVOCATES’ JOURNAL APPELLATE ADVOCACY
How to lose an appeal in the Court of Appeal: The next generation
The Honourable Justice David M. Brown
lmost a generation has passed since Justice Marvin Catzman published his groundbreaking article, “The Wrong Stuff: How to Lose Appeals in the Court of Ap- Apeal.”1 In it he offered, in seven succinct tips, surefire ways to lose an appeal. His advice still rings clear and true: (1) Always file an in- comprehensible factum. (2) Never begin at the beginning. (3) Never start with your strongest point. (4) Never say the magic words. (5) Always make a speech for the jury. (6) Never answer a question directly or, better still, at all. And (7) Never keep your promises. Several years’ experience on the Court of Appeal has demon- strated to me the enduring legacy and power of Catzman’s seven tips for losing an appeal. However, I have slowly realized there are other ways to successfully drive down the road to appeal failure. This article offers some additional losing tips that counsel can use at each stage of an appeal.
Tip #1: Appeal to the wrong court The fastest way to lose an appeal is to file your client’s appeal in the wrong court. The novice litigator might be forgiven for thinking that choos- ing the right appellate court is a straightforward matter: If the civil order of a Superior Court judge is final, the loser trots off to the Court of Appeal; if it is interlocutory, off one goes to the Divisional Court. On its face, a distinction of great simplicity. But “final” means “final” only to the uninitiated.2 Those better versed in the labyrinth of appellate jurisdictional jurisprudence know they must consult Hendrickson and Ball, Final or Interlocu- tory? Theory, Practice and Frustration, the definitive three-volume VANCOUVER Clear Information. Solid Advice. work on the topic.3 CALGARY And why the insistence of judges that litigants must pass this Resolving complex disputes requires a skilled team. With more than 75 professionals threshold existential test of final or interlocutory before present- again.” The judge below did not accept the credibility of your cli- EDMONTON across the country, MNP’s Valuations, Forensics and Litigation Services team has the ing the merits of their appeal to an appellate court? The answer ent’s witnesses? No problem. The beauty of an appeal court is the SASKATOON people and the expertise you need. We take the time to understand each client and their lies in the tactile nature of the remedy granted by an appellate judges don’t see your witnesses. Problem solved. REGINA unique issues, providing you with thorough analysis, insightful reporting and credible court when an appellant, instead of choosing Door Number Ignore the whole notion of appellate standard of review. WINNIPEG One for appeal, wrongly chooses Door Number Two. When that Housen v. Nikolaisen?4 So passé. Palpable and overriding error? testimony. Clear information leads to solid advice. TORONTO occurs, the appeal is quashed. And “quash” is such a viscerally An incomprehensible phrase; best to let it go. MONTREAL Contact Greg Draper, MBA, DIFA, FCPA, FCGA, CFE, CFF, ICD.D, National Leader, satisfying word for a judge to write. Few words in the judicial lexi- Keep your game plan simple: Argue that every minor mistake con exude onomatopoeia like “quash.” One can both hear and feel or misstatement by the judge below calls out for appellate inter- HALIFAX Valuations, Forensics & Litigation Support at 1.877.500.0792 or [email protected] the terminal nature of the remedy, writing “quashed.” And when vention or else the world will come to an end. Argue the non-material one’s colleagues ask how the day has gone, what more satisfying and irrelevant in painstaking detail. For justice lies in the irrele- answer can one give than to say, “We started our day by quashing vant minutiae of a case, not in the big picture. an appeal.” So, go ahead. Make our day. Tip #3: Use James Joyce as your model for writing your factum Tip #2: Forget review and correction – treat appeals as second James Joyce developed the stream of consciousness writing style kicks at the can into a High Art Form, so you should follow his style of writ- Embrace the old saying: “If at first you don’t succeed, try, try ing when putting your factum together, because there is nothing
THE ADVOCATES’ JOURNAL | FALL 2017 | 19 judges enjoy more, when reading a factum, than participating of consciousness factum-writing to work its obfuscating magic. in an author–reader relationship that incorporates the elements of the High Art Form, even though it may make it difficult for the Tip #7: Talk to the court, not with the court reader to follow the thread of your argument, but the beauty of the Court of Appeal judges have time built into their schedules to High Art Form, at least in the postmodern world, is that the reader prepare for the oral hearing. They use it. They come prepared to really doesn’t matter as much as the writer, and the satisfaction a hearing with specific questions about specific issues. They want in writing a factum lies not in crafting an argument persuading to focus on those questions and issues. They want to talk with a judge to your client’s point of view on an issue, but in showing counsel about them. the judge you can use the High Art Form and, as such, should be Rebuff the panel. Stick to your script. Talk to the court, not regarded as a cutting-edge, postmodern advocate, even though you with the court. Remind the panel that your client was allocated a don’t end up communicating a single idea to the judge, but only put certain amount of time for oral argument and you want to use it the judge to sleep – no doubt a well-earned sleep – by ensuring that as you see fit. Stick to your guns on this point. Don’t relent. Your each page of your factum manifests, exquisitely, the High Art Form, client is entitled to no less. and avoids the tainted, bourgeois, but strangely understandable, style associated with the now thoroughly discredited It-Was-Bluebell- onclusion Time-in-Kent School of Clear Legal Prose.5 Let me finish by repeating Justice Catzman’s final piece of advocacy wisdom: “I hope that you will find these Tip #4: Turn your factum into a fun game of Where’s Waldo? Ctips helpful in significantly lowering your batting average in the Reject the requirement in the rules that your factum contain a Court of Appeal. If they do, console yourself by remembering that concise overview statement, describing the nature of the case and winning isn’t everything.” of the issues, as well as a statement of each issue raised, immedi- ately followed by a concise argument. Adopt, instead, the Where’s Waldo? approach to factum-writing. A losing factum, like a Where’s Waldo? book, buries the object of Notes the quest in gloriously distracting detail. Where an appeal involves 1. Justice Marvin Catzman, “The Wrong Stuff: How to Lose Ap- a single issue – a legal error made by the judge below – write so that, peals in the Court of Appeal,” in 19:1 The Advocates’ Society like Waldo, the error-at-issue merely pokes its head out of the gro- Journal (Summer 2000). cer’s store window, lost in the riot of the hundreds of people shown 2. Watch the Monty Python “Argument Clinic” sketch on YouTube, Legal know-how milling about the town’s marketplace. substituting the word “final” for “argument,” and “interlocu- Judges read factums carefully in advance of oral hearings. tory” for “contradiction.” They enjoy the time it takes to find the “Waldo” issue. Where 3. Hendrickson championed the School of Simplicity: A final or- means turning an a factum is an especially fine example of Where’s Waldo?– writ- der finally disposes of the rights of the parties. Hendrickson ing, judges delight in showing their colleagues the factum, so all v Kallio, [1932] OR 675 (CA) 680. By contrast, Ball championed uphill climb into a can enjoy the fun in trying to find the “Waldo” issue and com- the Issue-by-Issue School, which enjoys multiple trips up to paring their guesses. the Court of Appeal during the life of a lawsuit. For Ball, final downhill run. orders include those that finally dispose of an issue raised by Tip #5: Overstate your case the defence, even if they do not finally dispose of the rights of In your written and oral arguments, choose hyperbole and exag- the parties. Ball v Donais (1993), 13 OR (3d) 322 (CA) 324. geration over accuracy and balance. Spin the findings of fact be- 4. [2002] 2 SCR 235 at paras 8, 10, 23, 36. low into alternative facts. Ensure the responding party can never 5. From the judgment of the master of the style, Alfred Lord Den- accept your statement of facts as accurate. And assert that a case ning, in Hinz v Berry, [1970] 2 QB 40 at 42. stands for a binding proposition of law which will defy discovery 6. Justice John Laskin, “Forget the Wind-up and Make the Pitch: upon an actual reading of the case. Some Suggestions for Writing More Persuasive Factums,” in ™ Sweep the (inevitable) weaknesses in your client’s case under 18:2 The Advocates’ Society Journal (Summer 1999). Available Practical Law Canada the rug. Pretend they are not there. Or bury them in an obscure online on the Court of Appeal website:
20 | FALL 2017 | THE ADVOCATES’ JOURNAL CRIMINAL ADVOCACY
After Jordan: The fate of the speedy trial and prospects for systemic reform
Matthew R. Gourlay
n July 27, 1843, Captain Thomas As I’ll explain, I think Jordan has been a alone – lengthy delays remain common. This Kinnear and his housekeeper, force for good insofar as it has shaken poli- reality has long rankled many lawyers who Nancy Montgomery, were mur- cymakers out of complacency and spurred had increasingly come to see section 11(b) as Odered at Kinnear’s farm in Richmond Hill, some productive debate about systemic re- a largely toothless remedy against delay. Ontario. Servants Grace Marks and James form. I’m less sanguine about Jordan’s sta- Constitutional provisions come in two McDermott were arrested for the murders tus as sensible judicial doctrine, however. varieties. Some – a minority – are specific, and, in early November of that year, put Lower courts, and probably the Supreme leaving relatively little room for judicial on trial. Convicted after a trial lasting two Court itself eventually, will have to figure elaboration. Section 11(f) provides a right days, McDermott was hanged on Novem- out how to deal with the unanswered ques- to a jury trial “where the maximum pun- ber 21, less than four months after the kill- tions that lie in between Jordan’s ostensibly ishment for the offence is imprisonment for ing. (Marks spent much of the rest of her bright lines. More importantly, policymak- five years or a more severe punishment.” life in the Kingston Penitentiary.) Margaret ers are going to have to think creatively This is pretty clear.5 Most other provisions, Atwood wrote a fascinating novel based about what the criminal justice system can like the section 8 guarantee against “un- on these events and their aftermath.1 and should be engineered to achieve with- reasonable” search and seizure and the In 2008, Barrett Richard Jordan was in these newly imposed constraints. But section 7 affirmation of “fundamental jus- structure to the analysis. Quantitative guidelines of tolerable insti- neutral justice on the facts of a given case.12 It’s also inescapably charged with drug trafficking. His trial did that is mainly good news, in my opinion. tice,” trade in majestic generalities, leaving it tutional delay were developed, leading to a post-Askov avalanche of arbitrary. Choosing round numbers like 30 months and 18 months not conclude until February 2013. It took an- As I’ll explain, I see it as an opportunity to up to the courts to put meat on the bones. stays. Attempting to mitigate the damage, Morin8 stressed that these reduces the appearance but not the reality of arbitrariness.13 other three and a half years for the Supreme go beyond procedural tinkering and define Usually the courts do this in common-law guidelines were not limitation periods or fixed ceilings, inaugurat- While there is some virtue in the candour with which the Jordan Court of Canada to conclude that his trial had what we really want and need the criminal fashion, elaborating principles and guide- ing the highly fact-dependent and prejudice-focused approach that majority embraced its inevitably legislative role, it seems to me that taken too long. Unless Samuel Beckett is re- law to do. And we need to go about that lines that constrain judicial discretion to a held sway until Jordan. their approach also highlights the difficulties that can arise when the stored to life, there will be no novel written task with an awareness that a “speedy tri- modest degree but leave the precise divid- The Jordan majority, led by Justice Moldaver, decided that the court goes too far in that direction. The majority assures us that it about any of this.2 al” is a means to an end – namely, a fair and ing line between the constitutional and un- flexible Morin approach had contributed to a “culture of delay and reached its conclusion by “conduct[ing] a qualitative review of nearly Between these two extremes, surely there accurate disposition of a charge – and not constitutional to be settled on the facts and complacency towards it.”9 The application of Morin was unpredict- every reported section 11(b) appellate decision from the past 10 years, is a happy medium to which the Canadian an end in itself. equities of the individual case. able and subjective. Lack of actual prejudice to the accused was and many decisions from trial courts.” They didn’t show their work, justice system in 2017 can aspire, and may- Section 11(b), which guarantees trial with- routinely used to justify delays that were objectively astronomical. however, so we have little idea what this review entailed. be even achieve. What does section 11(b) require? in a “reasonable” time, was for obvious rea- Section 11(b) arguments were dominated by retrospective quib- More importantly, why should we expect some notional aver- In R. v. Jordan, decided last July, a majority As the first example cited above suggests, sons almost universally understood to be a bling over which side was responsible for each period of delay. age of delay across all cases to yield a meaningful assessment of of the Supreme Court decided to do what it delay in criminal justice is not in itself a provision of this latter variety. It was hard- Litigation over delay had become, ironically, a source of over-com- reasonableness in any particular case? I know of no reason why could about this reality.3 It took direct aim bad thing. Striking while the iron is hot is ly necessary to defend the proposition that plexity and delay in itself. In the majority’s view, the section 11(b) a one-witness sexual assault case should be expected to take the at the “culture of delay” that in its view had not a recipe for measured and disinterest- permissible delay varied with the nature of doctrine had become part of the problem; the judges therefore same amount of time from charge to verdict as a multi-accused taken hold of the system. The Jordan de- ed justice. I think it’s safe to say that, his- the case. A particular amount of delay might took it upon themselves to offer a radical new solution. drug conspiracy or financial fraud. To state the obvious, some cision established “presumptive ceilings” torically, speedy trials have exacted a much be perfectly reasonable for a large-scale drug The majority’s gambit, of course, was the creation of new numeri- cases are vastly more complex than others. Some cases require beyond which delay will be unreasonable greater toll on accused persons – especially conspiracy case but totally excessive for an cal ceilings beyond which delay would be presumptively unreason- counsel to digest thousands upon thousands of pages of disclo- and require a stay of proceedings absent a innocent ones – than have postponed and impaired driving charge. able: 18 months from charge to end of trial in provincial court, 30 sure to understand a complex series of commercial transactions. showing of exceptional circumstances. As protracted trials. But in modern Canada, Early on, the Supreme Court made two months for trial in superior court.10 Micro-counting and prejudice Others turn almost entirely on a 25-minute videotaped statement cases are stayed and various policy changes nobody is at risk of being tried and sen- crucial doctrinal decisions: first, that a stay of are now out the window. If the net delay – total delay minus any of a sexual assault complainant. Just as importantly, cases vary are proposed, we are only now beginning tenced before the ink is dry on the indict- proceedings was the only appropriate reme- delay caused or waived by the defence – exceeds the ceiling, it’s up greatly in their time-sensitivity – from the perspective of the ac- to understand the implications of this juris- ment. Barrett Jordan’s case may have been a dy for unreasonable delay;6 and second, that to the Crown to justify it based on exceptional circumstances.11 cused, the victim and the public at large. Cases where the accused prudential shift. The court’s follow-up deci- bit extreme, but multi-year delays to trial in unreasonableness should be assessed on an It’s worth pausing to consider how unusual a move this was in is in custody, or where the key witnesses are very young or very sion in Cody, released this June, confirmed superior courts are very much the norm. A open-ended four-factor test borrowed from terms of constitutional doctrine. Reading a bright-line rule into an old, are examples of where a speedy trial is a particularly press- that the court is not backing down; all of us quarter century after the Supreme Court’s the United States. Early cases like Smith7 and open-ended constitutional guarantee is generally embarrassing for ing objective. A document-heavy case where the accused is on a in the system are going to have to adjust to landmark decision in Askov4 – which led Askov adopted a four-factor test (with a num- courts. It highlights their legislative role, undermining the notion non-restrictive form of release may require less urgency from both this new reality. to 50,000 charges being stayed in Ontario ber of sub-factors) to provide a modicum of that they are just “interpreting” the constitution and administering the prosecution and defence perspectives. Any system, no matter
22 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 23 how well resourced, requires some form of triage or prioritiza- Jordan and 333 being dismissed.16 or professional misconduct to count as “ille- Quick fixes? can observe the strengths and weakness- tion. It seems to me that the unreasonable delay doctrine needs The apparently modest uptick in successful 11(b) applications gitimate” in this context. Some obvious things come to mind. One es of their case, which can lead to a more to recognize this reality. Justice Cromwell made many of these stands in tension with the near-panic with which policymakers No one can reasonably take issue with thing the federal government could have focused trial or avoid the need for a trial points in his eloquent dissent. – both legislative and judicial – have greeted Jordan. It’s possible the principle that the defence can’t man- done immediately was to fill the dozens of altogether. Guilty pleas and withdrawal No doubt, Justice Moldaver and his colleagues would reply that that the six-month statistics just quoted understate the real impact ufacture its own unnecessary delay, then vacancies then existing in the federally ap- of charges are both common consequenc- the ceilings are not intended to be targets for delay in particular of Jordan; the “transitional” provisions have a limited lifespan, expect to reap the windfall of a stay. My pointed courts. The shortage of judges is a es of a prelim. Often both the Crown and cases, but outside limits on what can generally be considered rea- and soon we’ll start to see the “ceilings” operate with full vigour. concern, however, is with the court’s en- completely unnecessary, self-inflicted prob- defence are satisfied with hearing one or sonable. And they would point to the “exceptional circumstances” And it’s also possible that Jordan’s most significant impact will be couragement to trial judges to invoke “case lem. While I understand the Liberals’ desire two key witnesses. This can also suf- safety valve as a mechanism by which the particular demands of in kind rather than number of cases stayed: At the time of writ- management” powers to summarily dismiss to reform the appointments process, there fice for the prelim judge to provide in- individual cases can be given effect, to the advantage of either the ing, three murder cases have been thrown out17 – understandably defence motions and applications deemed was no intelligible justification for largely put to the parties at an “exit JPT (judicial prosecution or defence. But too much case-sensitivity in either di- more of a concern to policymakers than the equivalent number of insufficiently meritorious. While this pow- refusing to make new appointments until pre-trial)” – an increasingly used (and rection would threaten the integrity of the rule itself and re-intro- impaired driving or shoplifting charges. Under the flexible Morin er has been recognized for some time,22 it the new system was up and running, giv- one that perhaps ought to be encouraged duce the Morin malleability for which Jordan’s rigid limits were framework, trial judges usually did their best to avoid granting has tended to be invoked sparingly – for en that it has had from day one a deep pool or become the norm) process that helps supposed to provide the cure. stays in the most serious cases. Jordan leaves little such leeway. good reason. Sometimes success depends of perfectly qualified candidates to choose the parties identify early on issues that Doctrinally, Jordan naturally raises a lot of further questions that will on convincing the court of a novel legal from. The failure to act was irresponsible, in will be a focus at trial, and at times re- The aftermath need to be answered by the trial and appellate courts. Among them: theory. Sometimes it depends on eliciting my judgment. The recent flurry of appoint- solve matters entirely. The Jordan majority explicitly crafted its decision to avoid an Askov-like · How does the framework apply to accused persons denied bail evidence from police witnesses in cross-ex- ments has likely mitigated the problem for To my knowledge, however, no one has tsunami of stays. It provided for a “transitional exceptional circum- pending trial, given that “prejudice” is no longer part of the test?18 amination that may or may not materialize. now, but a lot of unnecessary damage was managed to systematically measure these stance” applicable to cases already in the system when the decision · Does a lower presumptive ceiling apply to Youth Criminal Jus- While it’s fine to say the defence can’t bene- done in the meantime. benefits and compare them to the costs of a was released, intended to blunt the impact of the new time limits and tice Act cases? If so, what is it?19 fit from delay caused by litigation steps that Other rather straightforward measures prelim in terms of resources and delay. If such account for reasonable reliance on the previous delay jurisprudence.14 · How does the framework apply to multi-accused trials? If one turn out to have been ill-conceived, sum- to reduce delay come to mind. In my expe- data were available, we could have a produc- Initial indications are that the transitional provisions have accused retains counsel who is not available within the Jordan mary dismissal has the potential to unfair- rience (and probably everyone else’s), the tive and informed debate about whether any avoided an Askov deluge. A study by Dalhousie professor Steve time frame, is the co-accused entitled to severance? Or does one ly stifle promising avenues of defence in production of Stinchcombe disclosure from delay caused by prelims is worth the benefit Coughlan of section 11(b) applications in the six months before co-accused somehow become bound by the other’s waiver?20 individual cases and hinder development the police to the Crown and then from the to the accused and to the system in general. and after Jordan showed only a modest uptick in the number and It remains to be seen whether the bright-line Jordan frame- of the law more broadly. After all, many of Crown to defence is one of the main bottle- In the absence of such information, we’re just percentage of stays granted: 26 out of 69 applications (38 percent) work will be able to address these and other relatively nuanced the court’s own landmark decisions, in the necks that ends up causing delay on the path shooting in the dark. While I think we should in the six months before Jordan, and 51 out of 101 (50 percent) in questions without producing a Byzantine sub-jurisprudence of Charter realm especially, originated in tri- to resolution or trial. A better, standardized resist the impulse to cling to familiar pro- the six months after.15 A more recent accounting shows 204 11(b) its own. al-level applications that must have seemed process for delivering disclosure in useable cesses and procedures just because they’re applications being granted across Canada in the 12 months after quixotic at the time. digitized format would cut down markedly familiar, I think we should also demand that R. v. Cody: No turning back The court’s emphasis on the trial judge’s in the time required to make critical deci- reform be based on a transparent cost-benefit In R. v. Cody, 2017 SCC 31, a unanimous seven-member panel of duty to take an active role in moving cases sions about the case – including the main analysis rather than gut instinct. We need to the court declined a series of entreaties from provincial attorneys forward also carries real risks of misuse, in decision of whether to have a trial at all. remember that reducing delay is a means to general to soften some of Jordan’s hard edges. While the panel did my view. For example, Cody suggests that a So far, one of the most prominent propos- an end – namely, a more just criminal justice not include Jordan dissenters McLachlin C.J. and the now-retired court should consider denying an adjourn- als floated by politicians and even members system – and not an end in itself. Cromwell J., it’s worthy of note that Wagner and Gascon JJ. did sit ment request that “would result in unac- of the judiciary has been the abolition of pre- on Cody and signed on to the per curiam decision. ceptably long delay, even where it would liminary inquiries (or “prelims”). The basic The bigger picture: More resources? Fewer Like Jordan, Cody was an unexceptional drug case that took be deductible as defence delay.” Presum- idea, as I understand it, is that the prelim charges? five years to get to trial. And likeJordan , the record revealed no ably, even Crown consent would not be de- adds months to the overall process without Participants in the justice system like to particular sense of urgency from any quarter – Crown, defence or cisive in the face of this overriding judicial doing much to serve its two main objectives, say that delay is mainly a problem of insuf- judiciary – to get things moving. Notably, Cody featured some de- imperative to get on with it. My concern is case screening and discovery. The thresh- ficient resources. More money – for more fence conduct that could be seen as having contributed to the de- that foisting such an active management old for committal to trial is low (“some ev- judges, courtrooms, prosecutors and legal lay. But the Crown did little to get the proceedings back on track. role on the trial court may sacrifice some idence”) and most cases easily pass the test; aid – would keep the trials running on time. 3E Service for Canada’s Highest Court The court therefore declined to enter into a detailed accounting of of the benefits of party autonomy – that is, further, full disclosure of the Crown’s case No doubt that’s partly true. I believe that responsibility for various periods of delay. The total “net” delay of control of the case by those who know it has been a constitutional requirement since expanding legal aid eligibility and increas- With experienced Supreme Court Advisors and 36.5 months was well above the presumptive ceiling; the case was best and who have a direct stake in the out- Stinchcombe was decided in 1991, reducing ing the rates paid to counsel would make Ottawa Agents, we provide a range of expeditious, not particularly complex; and the Crown could not demonstrate come. While people other than the accused the need for in-court discovery. the system more efficient by improving effective and efficient services ranging from full reliance on the pre-Jordan state of the law. The court therefore rein- – victims, most obviously – share an inter- That’s all true. But the problem is that we the quality of defence representation and agency work to co-counsel representation. stated the stay of proceedings entered by the trial judge. est in speedy trials, the Crown as minister don’t have any clear understanding of wheth- reducing the number of unrepresented ac- The decision featured a silver lining for the Crown, however, in of justice is generally best positioned to be er and to what extent prelims are a net cause cused. Building more courtrooms in locales For more information, please contact: at least two respects. First, the court emphasized that for “transi- the guardian of those interests. Courts of delay overall. Two realities suggest to me whose population growth has outstripped David Debenham,* Co-Chair, tional” cases, seriousness of the offence remains a crucial consider- should be slow to second guess the parties’ that the connection may be overblown. First, judicial infrastructure would cut down on Supreme Court of Canada Practice Group t: 613.232.7171 Ext. 103 e: [email protected] ation in determining whether the balance of interests favours a stay. joint judgment on the best way to bring the a preliminary inquiry takes place in a low institutional delay. This can be read as an implicit signal that the stays of proceedings matter to trial. percentage of cases. Most cases go straight But this is only part of the story. And we *Member of the Advocates’ Society since 1996 entered in transitional homicide cases to date may be particularly These reservations notwithstanding, Cody to trial in provincial or superior court. Sec- need to be careful what we wish for. The vulnerable on appeal by the Crown. Second, the court came down confirms that Jordan is the reality with which ond, while relatively few cases are judicially parliamentary budget officer has estimated hard on “illegitimate” defence conduct, which it described as lit- we are going to be living for the foresee- terminated at the preliminary inquiry stage, that, as of 2011–2012, Canada spent about igation that is either meritless in substance or pursued in an inef- able future. While doctrinal kinks can be the prelim often serves as a useful dry run $20.3 billion on criminal justice, about the McMillan LLP | Vancouver | Calgary | Toronto | Ottawa 21 23 Montréal | Hong Kong | mcmillan.ca ficient manner. While denying any intent to diminish to make worked out in the case law, the more press- (typically with a shortened slate of witness- same as it spends on its military. This full answer and defence, the court also emphasized that the defence ing issue is: What can the system do to ad- es and thus by no means of a similar length works out to about 1.1 percent of its GDP. conduct in question need not rise to the level of unethical behaviour just to its demands? as the prospective trial) where both sides The same report found that costs had risen
24 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 25 significantly over the prior decade, even as a readily remediable cause of delay and to only limited after-the-fact review. The Notes though crimes rates had been consistently a source of unnecessary expense and hard- system has been subject to a number of 1. Margaret Atwood, Alias Grace (Toronto: McClelland & proceedings, and (2) the case took markedly longer than whom we usually imagine to be in control of the system. in decline. I would be skeptical, to say the ship (for the system and for accused people) criticisms, upon which I’m not informed Stewart, 1996). it reasonably should have”: Jordan, supra note 3 at para 82. Canada’s aversion to elected judges and prosecutors least, of any suggestion that Canada should in its own right. enough to adjudicate.29 But it seems to have 2. I do not rule out a film by Antonioni. And the court made clear that it expected this to be rare. and its more tempered approach to incarceration as a spend more of its money on prosecuting and Notably, in 2014/2015, only 54 percent produced two very good outcomes which 3. R v Jordan, [2016] 1 SCR 631, 2016 SCC 27. 12. Even Antonin Scalia, whose originalist methodology criminological panacea has, in my judgment, blunted the imprisoning people. I would think most of cases in Ontario resulted in a finding of other provinces will want to consider care- 4. R v Askov, [1990] 2 SCR 1199. was purportedly meant to constrain judicial discretion ill effects of the systemic dynamic Stuntz describes. But people knowledgeable about the system, in guilt. This compares to 72 percent in Brit- fully: reducing impaired driving fatalities,30 5. But see R v Peers, 2017 SCC 13, aff’ing R v Peers, 2015 ABCA in interpreting open-ended constitutional provisions, the effects are still there. the long term at least, would like to see us ish Columbia and 73 percent in Quebec.26 and reducing court backlogs. Early reports 407, where the enterprising claimant argued that a wasn’t immune to this tendency: Maryland v Shatzer, 25. Ministry of Attorney General, “Offence Based Statistics – spend considerably less. Criminal punish- Not coincidentally, both those jurisdictions indicate that British Columbia, despite be- potential penalty of five years less a day in prison 559 US 98 (2010). There, Scalia J (writing for the court) All Criminal Cases”; online:
26 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 27 VIEW FROM THE BENCH
The unsettling truth about settling: Part II
The Honourable Joseph W. Quinn
Portions of this article formed the basis of an oral presentation by the Honourable Joseph W. Quinn, Superior Court of Justice (retired), at the annual general meeting of the Canadian Defence Lawyers Association in Toronto on June 8, 2017. The article is a sequel to “The unsettling truth about settling” (Advocates’ Journal, Winter 2016).
nce upon a time, in a Kingdom he urological connection a Life in Politics, Rae wrote: “It was better to far away, I was a lawyer. I recall One lawyer I knew was well on his have [Peter] inside the tent pissing out than that 99 percent of my professional way to Wellman numbers. outside the tent pissing in. The problem was Oheadaches were caused by fewer than 5 TPeter Kormos was called to the Ontario that he ended up inside the tent pissing in.”2 percent of my files. A friend of mine referred bar in 1980. He quickly developed a large So, now we know the magical combination to those problem files as “movers.” He would criminal practice in the Niagara area. Pe- needed to produce a try-them-all counsel: an stack them on a corner of his desk and, every ter was an avowed anarchist. In keeping anarchist with a urological disorder.3 week or so, move them to a different corner. with that trait, he took all his cases to trial. Although you probably need not worry Even today, when I am asked what it takes to Every one. His goal was to create chaos in about whether you try too many cases, there be a trial lawyer, I reply, “A big desk with as the courts by tying up the Crown’s office is room for concern about whether you settle many corners as possible.” with cascading trials. Peter did not sleep too many cases. I am particularly interested Is there anything more satisfying than much and, for him, cigarettes were a food in why you settle and the influence of pre- settling a problem file without a trial and group. Thus, he was able to juggle trials in trial conferences in the settlement process. being paid a nice fee for doing so? What circumstances where others would require about taking some of those files to trial and an intravenous drip. he education imperative lawyer to mediate a motor vehicle claim? What about a judge with Rosenberg had been appointed to the bench only several weeks getting a successful result? Realistically, if His try-them-all approach likely would Counsel must always be aware the same pedigree? Welcome to your pre-trial. Enjoy.4 before the trial; (2) he had not previously been part of, or witnessed, you are light on courtroom experience, a not work in a civil practice, where there are of the need to educate their judge. In 2000, I received a letter in circumstances that cannot be a criminal trial; and (3) he had never even been present at the trial is unlikely to happen. incessant interlocutory proceedings and TThis is particularly important on a pre-trial conveniently summarized here. It was from the Honourable Mr. selection of a criminal jury. Are you content being a trial lawyer who often crushing disbursements. But it is quite conference. At trial, you might have several Justice Alvin Rosenberg. He died in 2013 at the age of 87. He was To complete the picture that I am attempting to paint, the letter does not do trials? Really? If, on a golf possible in a criminal practice,1 which in weeks during which you will be able to appointed to the Trial Division of the High Court in 1983. As you from Justice Rosenberg continued: course, you hit every green in regulation general is not as labour intensive and lends educate your judge on the legal principles know, that was a circuiting court and, at one point, he was sent I had been advised when I was appointed that all of the figures but then pick up your ball and itself to a freewheeling, shoot-from-the-lip relevant to your case. However, on a pre-trial, out from Toronto to preside at a murder trial in Napanee. Three members of the High Court and the Court of Appeal were walk to the next tee because you do not approach where the task is not so much neither you nor the judge has the luxury of prisoners, serving sentences in Millhaven, were accused of killing ready to assist whenever a problem arose. I took advantage of know how to putt, are you still a golfer? to prove your case but to find a crack in the time. A judge could have six or more civil a third inmate with a baseball bat. Justice Rosenberg gave this this situation and was in touch with John Brooke of the Court Just asking. opposing case. pre-trials in one day; and you are restricted background in his letter: of Appeal almost hourly for advice [Justice Brooke sat on the Fortunately, for the Crown, in 1988 Peter to what you can fold into a pre-trial brief. When the preparations were made for the hearing it became Court of Appeal from 1969 until 1999]. My calls were frequent, ithering heights was elected to the provincial parliament as Educating your judge over the course of a obvious that there were real dangers involved in that the alleged even to his home when he was not in court. I once received a Advocacy skills are withering a member of the Ontario New Democratic multi-week trial is one thing, but having to do murders were the result of an Anglophone–Francophone message from John while I was on the bench advising me that because trials (in particular, civil Party. From 1988 until his retirement from so within the confines of a pre-trial conference confrontation in Millhaven. There was concern that the he was going out to the supermarket for an hour or so and Wtrials) are an endangered species headed politics in 2011 (a period during which he is almost impossible unless your case is Francophones would attempt to [avenge] the murder of their that if I had a problem that arose while he was out, to stall for for the Canadian Museum of History. Even never lost an election), Peter brought that blessed with one or two very narrow issues leader by having outside friends assassinate the accused. There a while as he would be back shortly. worse, those skills are not being developed in same talent for courtroom chaos to the halls (and, then, only if those issues fall within an was also concern that friends of the accused would attempt And you probably thought that the only reason for frequent the first instance. There is nothing to wither. of government. He died in 2013 at the age area of the law for which the pre-trial judge to help them escape while they were being transferred to the short adjournments in a trial was a weak judicial bladder. Well, How many lawyers can expect to match of 60, proving that anarchy is destructive has some expertise). courthouse in Napanee. The result was that the prisoners were now you have a second working hypothesis: Your judge is seeking the trial experience of, say, Francis L. Wellman on more than one level. I was a generalist judge sitting in a gen- brought to the courthouse in a snow plough which it was felt advice. On a regular basis judges preside over trials and pre-trials (1854–1942), a New York attorney who, it It takes a certain personality to try all eralist court, which meant that, as each could break through any barrier that was erected to try to stop covering areas of the law in which they are less knowledgeable is estimated, examined or cross-examined one’s cases. Who does such a thing? We are year passed, I knew less and less about the safe transport of the prisoners to the courthouse. There than counsel. 15,000 witnesses during his courtroom given a hint by former Premier Bob Rae. more and more until I reached the point were helicopters hovering overhead and guard dogs used to Surely the minimum requirement for an efficient and dependable career? If one were to arbitrarily assume an With mixed feelings about doing so, Mr. where I knew very little about an awful lot. assist in escorting the prisoners. legal system is to have judges who know at least as much law as the average of 10 witnesses per trial, it would Rae appointed Peter as Ontario minister When you have a case privately mediated, Almost every complication that can arise in such a criminal lawyers who appear before them. Those unfamiliar with our courts mean Wellman participated in 1,500 trials. of consumer and commercial relations when you properly pick a mediator with the appro- case arose in this trial, from the selection of the very first juror would be shocked to learn how often this minimum requirement Raise your hand if you are on track to reach the NDP came to power in 1990. In his book, priate knowledge of the law for your case. until the verdict and sentencing. is not met. In the Superior Court of Justice, this requirement, in that number. From Protest to Power: Personal Reflections on Would you ask a family lawyer or a corporate With that background, let me add three facts to the story: (1) Justice my opinion, is consistently satisfied only in four instances: (1) the
28 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 29 Family Court branch; (2) class proceedings where certain judges key issues and evidence within the confines of a pre-trial brief? were starting a motor vehicle trial tomorrow. “What medical training do you have?” the conference; and, if you settle your case have been designated to handle such cases; (3) matters on the And how can the pre-trial judge, in one hour or so, fairly and And, if the trial included accident benefits she asked, still horrified. Good question. on that basis, shame on you.15 Commercial List in Toronto (established in 1991 for the hearing of reasonably address the resolution of those issues (even assuming issues, one ladder would not be enough. I explained to her the tabula rasa (“blank actions, applications and motions involving issues of commercial the judge has expertise in the relevant area of the law)? In addition to the usual pressures pre- slate”) approach to judging. She was not Forceful, but still not well-informed law); and (4) some criminal cases heard by judges with a particular paring for trial, why should you have the impressed and remained horrified to the The fact that your pre-trial judge may ex- expertise in criminal law who seem to sit only on criminal tri- Thanks, Your Honour, but no thanks extra burden of my education to worry point of distraction. Can you blame her? press his or her views forcefully is irrel- als. The rest of us are engaged in on-the-job training. I never saw my judicial role in a pre-trial conference to be one of about? That will always be a problem with The only other occupation where people evant. I know of one judge who adopted The fact that Justice Rosenberg survived his experience and went actively seeking a settlement between the parties.5 Frankly, I was generalist judges; and the problem is com- routinely obtain serious employment for the motto, “Sometimes right, sometimes on to enjoy a long and distinguished judicial career does not flatter thoroughly disinterested in whether the case was settled.6 I gave pounded by the limitations presented by a which they have no previous experience, wrong, but never in doubt.” the system. He succeeded despite the system, not because of it. to counsel my views on the issues in dispute and how I thought pre-trial conference. learning as they go, is politics.13 those issues would be decided at trial. Counsel could figure out for The epitome of futility re-trial conferences and detrimental reliance themselves what weight to give to my views and what compromises abula rasa: A poor business model Well intentioned, but not well informed Perhaps there is some room for argument In civil actions, some lawyers seem to think they have ful- they were prepared to make. They did not require a judge to You are well aware (but too polite If it is your plan to hide behind the recom- over what I have said so far. However, this filled their duty to a client with completion of the pre-trial determine a midpoint between two positions. Thanks, Your Honour, to mention) that lawyers who never mendations of a pre-trial judge, always be point is inarguable: Certain issues do not Pconference. It is not so. but no thanks. Anybody with a calculator or a pencil and a scrap of Tsaw, say, a family file or a personal injury mindful of the need to educate the judge lend themselves to a pre-trial, with the re- paper could fulfill that function. file in their law practices are appointed to by outlining the legal principles and case sult that the conference is as productive as A crutch or a tool? the bench and preside over such matters. law at play in your action so that you re- Question Period in the House of Commons. Are your pre-trials an excuse for settling or a reason for settling? All right, show me yours if you wish – but I might not show you mine Imagine if this same business model were ceive informed recommendations. As but I will give two examples. In other words, do you use pre-trials as a crutch or as a tool? When I was in practice, I knew a tough and experienced Welland found in the health care system; we might one example, claims for loss of competitive First, liability in a motor vehicle case or Civil pre-trials are valuable if they are treated as a tool to counsel7 who once complained to me that he disliked pre-trials have the following conversation between advantage are common in personal injury in a slip-and-fall case is an issue that the uncover weaknesses in your case of which you were unaware. because often the judge would identify the weaknesses in his a hospital nurse and a doctor recently ap- actions. In your pre-trial conference briefs, janitor at your courthouse is as equipped They become a crutch where you blindly rely on the settlement opponent’s case and either suggest cures or at least alert the opponent pointed as head of cardiology: I would like to see you set out the basic gov- as a judge to resolve. Second, credibility is- recommendations of the pre-trial judge so as to avoid a trial. I hold to the need for a cure.8 I see nothing wrong with that mindset. As I Nurse: Congratulations on your ap- erning principles found in the leading cas- sues are a poor fit with a pre-trial. Apart to the heretical view that lawyers should not be unduly influenced have mentioned, for very good lawyers, pre-trial conferences are of pointment. es. No counsel ever did this in any personal from the difficulty of conveying sufficient in- by a pre-trial. Very good lawyers know their case far, far better debatable utility. They are merely thumb-twiddling, time-wasting Doctor: Thank you. Those years of bake injury pre-trial conference over which I pre- formation to the pre-trial judge, why would than does the pre-trial judge. Such lawyers do not materially money burners. In a pre-trial conference with a skilled lawyer on sales and fundraising for the hospital sided. Surely, from the 858 cases that came you telegraph at a pre-trial how you intend to benefit from a pre-trial. Typically, lawyers have lived with a file for one side and a mediocre counterpart, a pre-trial judge effectively paid off for me. up in my last CanLII search under “loss of discredit a party at trial, thereby giving that two or more years before it reaches the pre-trial stage. If your case becomes co-counsel for the latter. Nurse: The patient in Room 312 is com- competitive advantage” (at the trial and party months to prepare and rehearse? is scheduled for a 10-day trial, can you meaningfully address the Why would you reveal your full case on a pre-trial? According plaining of arrhythmia, palpitations, appellate levels in Ontario), some are use- If your pre-trial presents those issues, to Article 17 under the Geneva Conventions of 1949, a prisoner of light-headedness and chest pain. What ful. If your judge finds all this education to adjourn the conference and go bowling. war is required to provide only his name, rank, serial number is your diagnosis? be pedantic and demeaning and says, “You and date of birth. There are some pre-trials where you should Doctor: You’re asking me? Before I was must think that I am an idiot,” your reply layers and pretenders adhere to Article 17. “Tactics” is not a four-letter word. Litigation appointed head of cardiology last Tues- should be, “No, Your Honour, but we were You cannot always validly excuse is war with rules.9 day, I was a urologist. But, gosh, it told that Justice Quinn would be hearing your avoidance of a trial by say- sounds serious. My neighbour had the this pre-trial conference.” Ping that the case was settled in accordance Beware the ambiguity of inscrutable silence same symptoms. He was a nice man. I Judges are not any smarter than you are with the recommendations of the pre-trial As a lawyer, I assumed judges possessed more knowledge of the miss him. and although, in an efficient legal system, the judge. It is only where those recommenda- law than I did.10 Why? It was because they sat in inscrutable silence Nurse: Do you have any idea about a judge would always know the law at least as tions reflect the true merits of the case, and throughout the case and appeared all-knowing. How wrong could diagnosis? well as counsel, the fact is that, in many where the judge has sufficient expertise, I be? Very wrong, it turns out. When I became a judge and sat in Doctor: It sounds like the heart. cases, I knew less about the law than you that the excuse is valid. silence, it was because I was not comfortably familiar with the area Nurse: That’s it? Can you be more pre- knew. I was more well-intentioned than Some counsel are players and some are of the law in issue. Why would I ask a question and expose my cise? well-informed. In what other field of en- pretenders. You cannot be a player if you Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES ignorance? On those occasions when I interrupted and sprayed Doctor: I’ll have to telephone someone. deavour do the latter take guidance from settle all your cases. A bank loans manager counsel with questions, it was because I thought I knew something. Do you have the number for Dr. Michael the former? who boasts a zero percent default rate would (The exceptions were criminal trials, where I always sat mute. If a DeBakey?12 When you step into a courtroom or con- be fired for not taking sufficient risks. Litiga- What do your clients need? fire were to have broken out at the front of the courtroom, I would Nurse: What if something happens to ference room, educate the judge and you tion is all about risks. They must be assessed, have remained silent for fear that to do otherwise might upset the the patient in the meantime? will have a best friend forever. Should you reassessed, managed and, sometimes, taken. The means to move on. carefully crafted strategy of one of the parties.) Doctor: Not to worry. There is a pan- not want to bother doing so, but still re- You cannot become a competent counsel ™ el of three doctors to whom the patient quire a judicial opinion, bring darts, dice while camped in your office. Guaranteed . How does your judge perform on a muddy track? may appeal, posthumously if necessary. and a Ouija board. Do not fear losing a case. If you win a Thoroughbred handicappers have the Daily Racing Form as their Nurse: But aren’t two of those doctors It is a silly system that appoints people to high percentage of your trials, I suspect you Baxter Structures customizes personal injury resource for researching the past performances of racehorses also former urologists? do work for which they have no experi- are selling many clients short because you settlements into tax-free annuities that can under varying conditions. Lawyers have Quicklaw and CanLII for Doctor: Good point. And the third used ence. It is stressful for the judge,14 it unnec- obviously are not litigating the tough cas- help your clients be secure for life. doing the same in respect of the judges before whom they appear. to be a dermatologist. essarily complicates the life of counsel and es. Most high-profile counsel in the United How do you gauge the past performance and expertise of your I once accompanied my wife on a visit it can be a disservice to the litigants. There- States and Canada lose more often than judge? Research. For example, if you checked up on me you would to a medical specialist. When the nurse fore, whether you have a favourable or un- they win. Losing is a part of advocacy – a Need more information? find, I think, that I last presided over a motor vehicle trial in 2003.11 who did the pre-appointment prep-work favourable pre-trial conference, it could be big part. Your willingness, if not eagerness, Contact us at 1 800 387 1686 (This was not by design. It was simply the way the docket unfolded. I learned that I was a judge and, as part of immaterial. If your pre-trial judge is inex- to go to trial is the most effective weapon in or baxterstructures.com had many motor vehicle pre-trial conferences since then, but no trials.) my duties, actually presided over medi- perienced in the relevant area of practice, your advocacy arsenal. Imagine the learning ladder that I would have to climb if you and I cal malpractice cases, she was horrified. you might as well have a urologist conduct Lawyers avoid going to trial for various
30 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 31 10197_Baxter_QuarterPage_AdvocateJrnl.indd 1 2017-01-20 3:50 PM reasons. It is important that you honestly identify the basis for a mystery. I dreaded having my first jury trial. Nothing in my legal and I can only assume I was wearing shoes. I must have looked like your avoidance of the courtroom, because there are both good education and training had prepared me for a jury trial. And the a clown school freshman. The presiding judge did not criticize my and bad reasons for doing so. A good reason would be one that written precedents of the day (both civil and criminal) were utter physical appearance, but he did chastise Nick Borkovich,23 a well- Notes takes into account the risks associated with a trial. A bad reason garbage compared with the excellent material now available. known Hamilton lawyer (10 years my senior) who was in court 1. And in a family practice. would be fear.16 The only basis for fear is inexperience, and there is I did everything possible to avoid getting stuck with a jury that morning, for wearing a somewhat sporty outfit, and sarcasti- 2. Bob Rae, From Protest to Power: Personal Reflections on a Life in a foolproof cure for inexperience. Another bad reason is laziness. trial. It was a foolish decision, for my anxiety rose to an irrational cally asked him when he was due at the yacht club. Much later, Politics (Toronto: Penguin, 1996), 134. Unfortunately, there is no known cure for laziness. crescendo. I was drowning in fear.18 I have no memory of my first Nick was appointed to the bench and, when I subsequently joined 3. Lyndon Johnson is quoted in The New York Times (October 31, jury trial, much like the lone survivor of a plane crash from whose him, he never missed an opportunity to complain that it was me 1971), when speaking about keeping J Edgar Hoover (1895– hy try (cases, that is)? conscious thought the body blocks out all the gory details. Given the motions judge should have criticized. It was not until I went to 1972) as FBI chief: “It’s probably better to have him inside Try some cases. Be a player. a second chance, if I were called to the bar on Monday I would the bench and discovered an urge to be protective of young, inexpe- the tent pissing out, than outside the tent pissing in.” I assume you do not want to be in the position of arrange a jury trial for Tuesday. rienced counsel that I realized the motions judge humanely wished 4. This does not mean I am opposed to lawyers from a general Whaving to obtain a Google map to find your way to the courthouse. Because advocacy can be learned, it makes sense that watching to send a message to me about proper courtroom attire without practice being appointed to the bench. After all, I was such Apart from that, why should you try cases? I offer several other counsel argue a motion or try a case will be beneficial. In scarring me for life. His Honour had correctly concluded that Nick a lawyer. My concern is with continuing as a generalist once reasons. Although they are obvious, it might be helpful to hear fact, watching bad lawyers19 is as enlightening as observing good was better able to shoulder the criticism and it was better to annoy on the bench. them mentioned out loud. ones. I rarely see young lawyers linger in motions court after Nick than to scar me.24 5. I was not appointed to the Superior House of Mediation. their matter has been heard, and it is equally uncommon to spot Young lawyers should have trials early and often, when judicial 6. I was not employed on a piecework basis. A professional trifecta such a lawyer serving as a spectator in a trial involving experienced empathy abounds. 7. Earle A Blackadder, Q.C. By trying cases with reasonable frequency, you achieve a professional counsel. These are missed opportunities to add to your courtroom 8. His complaint came after a mutual pre-trial wherein the judge trifecta. You (1) enhance your reputation; (2) protect the interests toolbox. In 1972, I should at least have sat in on a few jury trials. I he you-should-know-better phenomenon had suggested a cure for a flaw in my case in circumstances of your client; and (3) preserve your mental health. have no idea why that did not occur to me at the time. Running a trial is not like riding a bicycle (except for the where I had not even noticed the flaw, let alone crafted the How can you call yourself a trial lawyer if you do not do trials? falling-down-and-getting-banged-up part). You can forget. cure (and Mr. Blackadder had been aware of both). What does that do to your professional reputation? And how can Taste-test your judgment and analysis TSenior counsel do not enjoy the same level of tolerance from the 9. Please. Enough with the raised eyebrows. that be in the best interests of your client? A settlement that does Another reason for taking trials is to periodically test your assessment bench as that available to junior counsel. It actually is sad to see a 10. Okay, okay, there were one or two notorious exceptions. not reflect the risks reasonably associated with taking a case to of what constitutes a reasonable settlement. In doing so, you are hon- senior lawyer conduct a trial in circumstances where his25 ad- 11. Mercier v Royal & Sunalliance Insurance Co of Canada, 2003 trial probably is an unreasonable settlement. ing your judgment and analysis for future settlements. If a chef vocacy skills have atrophied. It produces a curious phenomenon: CanLII 21638 (ON SC); aff’d (2004), 72 OR (3d) 94 (CA), in Fear snowballs. The longer the gap between your trials, the greater never taste-tests the food, how does he or she know the dishes are a lawyer who makes mistakes and commits protocol faux pas but which I commented that anyone able to understand the the apprehension and even the fear that results.17 palatable and the correct recipe is being used? A trial is the best does so with the panache of someone who does not know what he world of statutory accident benefits should be entitled to I was called to the bar in 1972. Although I had tried several cases way to taste-test your work. does not know. claim bilingual status. in Small Claims Court as an articling student, jury trials were 12. Dr. Michael DeBakey (1908–2008) was a Lebanese-American Try steering the bus for a change ome final words cardiac surgeon, scientist and medical pioneer. Occasionally, a case will present a novel legal issue. What personal Imagine we are on opposite sides of a case. Do you actually 13. And how is that working out? price are you prepared to pay to advance the case law and become think you will get a reasonable settlement offer from me if 14. If you want to witness pure fear, look into the eyes of a part of the jurisprudence in your field? Do you not feel even a small SI know you are an inexperienced or anxious litigator? The truth is judge on the morning of his or her first jury trial (civil or duty to your profession? Sorry to hear that. that, in fulfillment of the duty to my client (and in furtherance of my criminal). Are you merely along for the ride? Why not try steering the bus predatory nature), I will try to take advantage of your inexperience 15. I have just noticed that urology has assumed a curious from time to time?20 or anxiety. I will take your lunch money every chance I get (but with prominence in this article. I will look into that. Good news – you are not as important as you think a kind word, a smile and civility throughout). 16. Are you uncomfortable hearing that word? Pity. Inexperienced or otherwise poorly prepared counsel create dis- Most counsel do not have enough trial experience. You can 17. To this point, I have used the word “fear” six times. organization and sometimes chaos, but it is difficult to lose a case attend pre-trial conferences on an hourly basis until you die, but 18. Seven times. where the facts are on your side. Injustice is likely to result only that will not advance your skills as a trial lawyer. 19. In this article, I am using “lawyer” and “counsel” where an important witness is not called or a relevant document Trial lawyers try cases. Trial lawyers who settle all their cases interchangeably. is not tendered in evidence. are social workers. 20 . The overuse of metaphors is a criminal offence. My Justice John Sopinka once estimated the importance of counsel Declare war on fear.26 Try your brains out. sentencing hearing is tomorrow. to the outcome of a case as follows: at trial, up to 50 percent; on Get courtroom experience, even if you must take cases to 21. See The Advocates’ Society Journal, March 1990 at 3. appeal to the Court of Appeal, about 25 percent; and, in the trial for little or no fees (pick those cases carefully; but pick 22. Eight times. Supreme Court of Canada, 10–20 percent.21 Thus, you proba- them). Do not view all your files from a financial perspec- 23. (1935–2017). bly are not as important to the case as you think. tive.27 Treat some as educational opportunities that will ad- 24. Today, if you were to walk into my clothes closet you would A strong case likely will offset your inexperience. Facts should vance your reputation as counsel and may lead to profitable think you had suffered detached retinas because my defeat fear.22 future files. wardrobe consists of all blacks and greys. Too late. I must tell you that the quality of advocacy is falling. Although 25. I have not used the pronoun “her” because I have never he young offender grace period there still are top-notch counsel to be found, they are becoming encountered an inexperienced senior female counsel. Putting yourself in a position to get early trial expe- fewer and the number of mediocre counsel is swelling. Counsel 26. Nine times. rience means you will be doing so at a relatively young today are as intelligent as their predecessors, but they lack the 27. I am aware that litigation is expensive for clients. “I was Tage. Judges, even curmudgeons, generally are kind and sympa- training and experience to be effective in court. never ruined but twice: once when I lost a lawsuit and once thetic to young, inexperienced counsel. I was presiding in motions court in St. Catharines a few years when I won one”: Voltaire, pseudonym of François-Marie In the 1970s, the world of fashion suffered a nervous breakdown ago when a lawyer approached the counsel table as his case was Arouet (1694–1778). and I was a willing victim. One morning, I was in motions court in called. He addressed the court by saying, “Hi.” How can that 28. I suppose it could have been worse. He might have greeted Hamilton. I had been a lawyer for about 12 minutes. I was wearing happen? How can it possibly happen?28 Looking back I like to me with, “Hi, dude.” a green blazer, an orange shirt and a tie that might have glowed in think that, maybe, I was mistaken and he was not a lawyer. the dark. Mercifully, I have no memory of the colour of my trousers Perhaps he was a urologist.
32 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 33 CIVIL ADVOCACY
If we can’t trust witnesses, can we trust trials?
Matthew Milne-Smith
rials are overrated. Heresy, I know – particularly so when appearing in The Advocates’ Journal. But hear me out. TA growing body of scientific research indicates that human beings are not very good lie detectors. Drawing on this research, Paul Fruitman persuasively argued in the Summer 2017 issue of this Journal that “[o]ur system trusts that witnesses who testify credibly and confidently are telling the truth. It appears that trust is misplaced.” Nor is this problem limited to intentionally untruthful witnesses. Even well-inten- tioned witnesses who take seriously their oath or affirmation to tell the truth fall prey to reconstructing the past to fit their desired narrative. Every counsel can certainly recall the client or witness who forcefully and credibly insists on a particular version of events, only to be contradicted by contemporaneous documents or physical evidence. It is difficult to overstate the significance of this problem for our adversarial system of justice, founded as it is on parties leading oral evidence from witnesses, and triers of fact making assessments of credibility based on that evidence. If cases can turn on credibility assessments, and human beings’ ability to assess credibility is poor, what does that say about the quality of justice? Unless triers of fact have an innate or acquired ability to assess credibility that far exceeds that of the population at large, the implications are troubling. There is, of course, an alternative means of adjudicating civil disputes on their merits: summary judgment. Traditionally, the bench and bar have been extremely reluctant to de- cide cases by way of summary judgment, wary of denying litigants their proverbial day in court. Summary judgment was perceived as a less desirable form of justice reserved for cases so obvious that a proper trial was unnecessary. Trials were necessary for anything but the easiest cases. However, if trials are in fact overrated as a means of determining the
34 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 35 truth and providing justice, our veneration The jurisprudence on summary judgment cut and thrust of the adversaries, and hears of them may be misplaced. reflected the skeptical approach embodied in the evidence in the words of the witnesses.”6 As a trial lawyer, I do not want to see tri- the Rules. While Justice Henry’s suggestion The Court of Appeal was just as deferen- als become even less frequent than they in Pizza Pizza Ltd. v. Gillespie that the motions tial to the role of trial counsel. The court already are. Trials are to litigators what the judge was to take “a hard look at the merits” noted that the order in which witnesses are stage is to actors. All the grinding work of gave hope to proponents of summary judg- called, the manner in which they are ex- preparation is directed to being ready for ment,1 those hopes were relatively short-lived. amined and cross-examined, and how the trial, or at least to the superior bargaining Eight years later, in Aguonie et al. v. Galion Solid introduction of documents is interspersed We know position that comes from being ready for tri- Waste Material Inc., the Court of Appeal held with and explained by the oral evidence, al. For most of us, trial advocacy is no small that, on a motion for summary judgment, “the is of significance. This “trial narrative” may part of why we chose to become litigators. court will never assess credibility, weigh the have an impact on the outcome.7 Moreover, the difficulty of training young evidence, or find the facts.” Rather, the court’s The poetry of the trial process was juxta- lawyers in trial advocacy has become almost role was limited to “assessing the threshold posed with the prose of summary judgment: trite. It grows more difficult by the day. issue of whether a genuine issue exists as to The deponents swear to affidavits typ- With all that said, trials are dreadful for cli- material facts requiring a trial.”2 ically drafted by counsel and do not tax litigation ents. They are expensive, lengthy speak in their own words. Al- and risky. It can take years to get though they are cross-examined to trial. Our civil justice system and transcripts of these exam- is perpetually short of judges, inations are before the court, the courtrooms or both. The capaci- motion judge is not present to ty of the civil system to try cases observe the witnesses during inside and out in a timely manner is likely to be their testimony. Rather, the mo- strained even further by the de- tion judge is working from tran- mands of the criminal justice sys- scripts. The record does not take tem in light of the Supreme Court of Canada’s ecent reforms encouraging sum- the form of a trial narrative. The parties decision in R. v. Jordan. mary judgment do not review the entire record with the In 2007, former Associate Chief Jus- motion judge.8 long-standing reluctance to embrace Rtice Coulter Osborne released his report on Taking these factors into account, the summary judgment making the civil justice system in Ontario court concluded that summary judgment The historical rules and jurispru- more accessible and affordable. One section was available beyond the traditional cate- Adence surrounding summary judgment re- of his report was dedicated to summary gories only where “the full appreciation of flected the veneration of trials as a means of judgment and made a series of recommen- the evidence and issues that is required to Osler, Hoskin & Harcourt LLP is pleased to announce resolving civil disputes. Before 1985, sum- dations that were ultimately incorporated make dispositive findings can be achieved that David Jacyk has joined our firm as Head of our mary judgment was available to plaintiffs into the 2010 amendments to the Rules of by way of summary judgment.”9 only on enumerated claims for a debt or liq- Civil Procedure. Chief among these amend- Vancouver-based Tax Litigation practice. uidated demand. A defendant could never ments were ones specifically empowering a he Supreme Court reinvigorates seek summary judgment, no matter how judge hearing a motion for summary judg- summary judgment In today’s changing litigation landscape, access to strategic spurious the case. ment to (1) weigh the evidence; (2) evaluate The Court of Appeal for Ontario’s and experienced tax law counsel is critical to helping The 1985 amendments to the Rules of Civil the credibility of a deponent; and (3) draw Tdecision was short-lived. On appeal, the Su- companies mitigate the impact of tax controversies. Procedure implemented a modest expansion of any reasonable inference from the evidence.3 preme Court of Canada overturned the “full summary judgment. Rule 20 permitted defen- Critically, however, the motions judge was appreciation test” as being too restrictive David brings to the Osler team his deep and extensive dants as well as plaintiffs to seek summary not to exercise those powers where it was and recognized that summary judgment experience litigating tax cases for the Crown. Having argued judgment, but only where the motions judge “in the interests of justice for such powers to could be “a proportionate, more expeditious was satisfied that there is no “genuine issue” be exercised only at a trial.” and less expensive means to achieve a just numerous cases before the Tax Court of Canada and at all for trial with respect to a claim or defence. While the initial jurisprudence under the result than going to trial.”10 levels of Canadian courts, he is well-versed in controversies The key words were “genuine issue” for new Rule 20 adopted a more liberal approach While the result was welcome, the decision affecting corporate taxpayers and offers clients the advantage trial. Summary judgment was not conceived to summary judgment, the Court of Appeal still represented only a limited and condition- of his unique insight and perspective. The addition of David as a true alternative to trial. Rather, reflect- quickly reversed that trend with its decision al embrace of summary judgment that em- ing the traditional skepticism of summary in Combined Air Mechanical Services Inc. v. phasized its expediency and cost-efficiency, to Osler further strengthens our tax litigation expertise in judgment, it was a measure available only Flesch (“Combined Air).”4 The court’s interpre- not its accuracy. The Supreme Court framed our Vancouver office and our National Tax Practice as we where a trial would essentially be a waste tation of whether it was “in the interests of its decision by adopting The Advocates’ grow to meet the evolving needs of our clients – wherever of time. There are not many cases where justice” to require a trial was extremely broad Society’s submission that, given the cost of they do business. there is no genuine issue for trial. Even in cas- and traditional. Echoing the Supreme Court trial, “the trial process denies ordinary peo- es that turn on the interpretation of a contract, of Canada’s paeans to the trial process in stan- ple the opportunity to have adjudication.”11 which one might expect would lend them- dard of review cases such as Housen v. Niko- Notably, the Supreme Court continued selves to summary adjudication, it is relative- laisen,5 the court noted that the trial judge “is to presume a “tension between accessibility ly easy to generate a genuine issue for trial a trier of fact who participates in the dynamic and the truth-seeking function.”12 The more Osler, Hoskin & Harcourt given the evolution of the law to recognize of a trial, sees witnesses testify, follows the tri- expansive (and expensive) procedures associ- Vancouver Toronto Montréal Calgary Ottawa New York | osler.com that contracts must always be interpreted in al narrative, asks questions when in doubt as ated with a trial were presumed to be superior light of their surrounding circumstances. to the substance of the evidence, monitors the at serving courts’ truth-seeking function.
36 | FALL 2017 | THE ADVOCATES’ JOURNAL The Supreme Court’s judgment in Combined Air was a welcome of witnesses’ self-serving interpretations of of worldwide assets would be permissible, can determine what actually happened, corrective to the Court of Appeal’s veneration of the trial process. contracts entered into years or even decades Justice Newbould emphasized that the rele- and who did what. In commercial cases, Welcome as it was, the Supreme Court’s decision still did not accept earlier. Even less helpful were cross-exam- vant evidence was “clear beyond peradven- the documents are the most important summary judgment as a co-equal method of adjudicating cases inations that consisted largely of lawyers ture,” and “clear and uncontested”.21 thing, and the documents are presented alongside trials. Rather, summary judgment was effectively ac- arguing with witnesses concerning their In the result, Justice Newbould and just as well by summary judgment as they knowledged as merely being “good enough” in light of the goals of interpretations of the documents. Judge Gross agreed on a pro rata allocation are by traditional trial. Indeed, one might proportionality and efficiency. Typical of Justice Newbould’s frustration that was not even advocated by any of the argue they are better presented by sum- with witnesses giving evidence about their three main debtor groups; rather, it was mary judgment, without the distracting ot just “good enough” interpretations of the relevant agreements advanced as a primary argument only by spectacle of witnesses putting their gloss My suggestion is that, in many civil cases, summary was the following description of the parties’ counsel representing Nortel’s UK pension- on the documents. judgment is not just “good enough”; it is “as good as,” position on the Master R&D Agreement ers. No witness gave testimony indicating Nor “better than,” for at least three reasons. (MRDA), the interpretation of which was that a pro rata allocation was required by process already begun First, as Paul Fruitman’s article pointed out, human beings central to the dispute: the agreements between the parties; rather, The move toward summary judg- (which, last I checked, included judges) are not nearly as good as we There was a great deal of evidence led the evidence led in support of this outcome ment–style procedures has in fact think we are at assessing credibility. By placing so much weight on by the U.S. and EMEA interests as to the was simply that nothing precluded a pro Aalready begun in various forums. On the assessments of credibility, trials are prone to turn not on which side’s subjective views of the witnesses, most- rata allocation, and it was a just solution in Commercial List, it is now routine for ev- witnesses are in fact truthful, but on which are successful in pro- ly tax personnel, regarding the rights of the circumstances. idence-in-chief to be given principally by jecting truthfulness. These two are often not the same thing. the parties under the CSA or MRDA or Given this result, it raises the question way of evidence-in-chief.22 Parties never Second, particularly in commercial cases, the contemporaneous what the witnesses understood the lan- of whether the extensive trial and pre-trial waste time proving documents through documentary record should usually be far more important than guage to mean, or in one case as to the procedures in Nortel were even necessary. witnesses; a document brief is routinely witnesses’ recollections (or, more cynically, their post hoc rational- witness’s understanding of what others The deposition transcripts were barely re- agreed on in advance of trial. izations). This is most obviously true in contract cases, where the understood the documents to mean. ferred to at trial or in the judgments. Even Arbitration is another forum where sum- witnesses for each side miraculously just happen to recall that Apart from the latter being inadmissible the trial evidence was typically relied on mary judgment–style procedures have be- the factual matrix was most consistent with their preferred in- hearsay, all of this evidence was not only where it was uncontroversial or uncon- come routine. Parties routinely submit ev- terpretation of the contract. These post hoc rationalizations are far admissible as it amounted to subjective tradicted. Far more important were the doc- idence by way of affidavits, with minimal less probative than what the relevant parties actually said and did views as to the meaning of an agreement. uments themselves, and the judges’ overall cross-examinations in court. Rare is the in the contemporaneous documents. Nor was it admissible under the factual assessment of what was fair in all the cir- commercial litigator who has not tried any Third, the role of counsel in drafting affidavits is a feature, not a matrix rule permitting objective sur- cumstances in light of the relatively undis- number of cases in this manner. bug. It is hard to reconcile the Court of Appeal for Ontario’s distaste rounding circumstances at the time of puted underlying facts. Summary judgment Finally, the leave-to-proceed test for se- for this aspect of summary judgment with its praise for coun- the execution of the agreement to be would likely have achieved the same result curities misrepresentation cases under Part sel’s role in crafting a “trial narrative.” The fact is, the skill of counsel considered, and I do not consider it. For I believe the same is true in many com- XXIII.1 of the Securities Act is, in essence, a will play a role whichever method of adjudication is chosen. If any- example, what Mr. Henderson thought mercial cases. The evidence of the witness- summary judgment test. While it of course thing, however, the ability of skilful counsel to win a losing case about the rights under the CSA license, es is rarely probative of anything unless is just a test for whether a case can actually is somewhat mitigated in summary judgment, where the focus is that he copied from an earlier version supported by the contemporaneous doc- proceed to a trial, if the defendant prevails, properly on the documents rather than on the witnesses. of the CSA, or what others thought the uments. Commercial cases are not like, it is the final adjudication on the merit of a MRDA meant or what they thought the for example, personal injury cases where claim on behalf of, typically, thousands of n extreme example of a case for summary judgment intent of it was is not to be taken into only the disputed evidence of eyewitnesses class members. The expanded approach to summary judgment that I account. See Sattva, supra, at para. 59.14 propose is not limited to straightforward cases involving a Throughout the trial and again in his Rea- Ahandful of documents. It could and should be used in even complex sons, Justice Newbould repeatedly referred to commercial cases. For example, one of the more prominent trials in the parties’ subjective views of the evidence as Notes LEADERS IN 15 recent years was the so-called “allocation dispute” arising out of the being inadmissible or irrelevant. Ultimately, 1. (1990), 75 OR (2d) 225 at 237 (Gen Div). 15. Ibid at paras 120–121. insolvency of Nortel. Debtor groups from Canada, the United States Justice Newbould’s conclusion was that he did 2. (1998), 38 OR (3d) 161 at 173 (CA). 16. Ibid at para 157. FUTURE CARE and EMEA (Europe, the Middle East and Asia) were fighting over “not consider the surrounding circumstance 3. Rules of Civil Procedure, Rule 20.04(2.1). 17. Ibid at para 166. the allocation of approximately $7 billion in proceeds from the sale of or factual matrix evidence to provide much 4. 2011 ONCA 764. 18. Ibid at paras 174, 176. Nortel’s worldwide assets.13 clear assistance in construing the meaning 5. 2002 SCC 33. 19. Ibid at para 196. ANALYSIS Nortel was a unique trial. It was tried in a joint session of the of the terms in the MRDA.”16 Even expert evi- 6. Combined Air, supra note 4 at para 47. 20. Ibid at para 230. Superior Court of Justice, Commercial List in Toronto and the dence was occasionally criticized as being an 7. Ibid at para 48. 21. Ibid at paras 222, 223. While Justice New- US Bankruptcy Court for the District of Delaware. Justice New- “inadmissible subjective view as to how the 8. Ibid at para 49. bould did not order a substantive consol- AND COSTING 17 9. Ibid at para 50. idation or conclude that it was necessary bould presided in Toronto, and Judge Gross in Delaware. As a re- MRDA license should be interpreted.” OUR REGULATED HEALTH PROFESSIONALS sult of the joint nature of the proceedings, the parties engaged in Where Justice Newbould did give effect 10. Hryniak v Mauldin, 2014 SCC 7 at para 4. to effect the resolution of the case, he did ARE SPECIFICALLY CREDENTIALED IN THE American-style depositions, conducting more than 125 depositions of to the evidence of witnesses, it was usual- 11. Ibid at para 24. find that, if his order did amount to a sub- AREA OF LIFE CARE PLANNING. fact and expert witnesses located around the world over a span ly on relatively uncontroversial subjects, 12. Ibid at para 29. stantive consolidation, it was permissible. of several months. This was followed by a 21-day trial and then such as the fact that the MRDA was driven 13. The author acted as Canadian counsel to the 22. Re Nortel Networks Corporation (Re), 2015 ONSC three days of argument. The parties submitted evidence-in-chief by tax concerns,18 that Nortel assigned all EMEA Debtors. 2987; The Catalyst Capital Group Inc v Moyse, at trial principally by way of affidavits, with brief oral examina- worldwide patents to one corporate entity 14. Re Nortel Networks Corporation, 2015 ONSC 2016 ONSC 5271; Husky Injection Molding LEARN MORE HERE: tions-in-chief followed by full cross-examinations. as a matter of best practices19 or that the ma- 2987 at para 119. Systems Ltd v Schad, 2016 ONSC 2297. At the end of all of this litigating, most witnesses proved to jority of Nortel’s bonds were issued without CBAFUTURECARE.COM be of little assistance. Much of the evidence at trial consisted, to guarantees.20 In addressing the important the obvious and understandable frustration of the trial judges, issue of whether a substantive consolidation 1.866.314.7335 THE ADVOCATES’ JOURNAL | FALL 2017 | 39 REGULATORY ADVOCACY
Internal investigations and privilege: Encouraging voluntary provision of impressions, explanations and interpretation of events
Alexander M. Gay and Kenneth Jull The views expressed in this article are those of the authors and do not necessarily represent those of Mr. Gay’s employer, the Department of Justice, or those of Gardiner Roberts, where Mr. Jull is counsel, or those of the Competition Bureau, where Mr. Jull is presently on an interchange.
n this article, we propose a dichoto- have failed in their due diligence by miss- Act (OHSA) requirement to carry out an mous approach to privilege in internal ing red flags. Moreover, timeline analysis investigation and prepare a report, certain investigations by a corporation. The is important to evaluate when senior officers information and records created or collect- Iproposed dichotomy respects the division be- became aware of the non-compliance and ed during the investigation were protected tween factual evidence versus impressions, what steps they took and when. by litigation and legal advice privilege. explanations or interpretation of events. Our proposed approach would take a In Suncor, an employee was killed in a If the company chooses to reveal the re- broad view of privilege as covering the im- workplace accident. On the day of the ac- sults of the internal investigation to the au- pressions, explanations or interpretation of cident, Suncor reported the incident under thorities, it may benefit from this disclosure events by individuals interviewed in internal the OHSA. It also began an internal inves- by way of a deferred prosecution agreement investigations by legal counsel. tigation under the direction of in-house in the United States, or a reduced sentence in We recognize that privilege claims may be counsel. Occupational Health and Safety Suncor had taken deliberate steps to cloak documents and On July 4, 2017, the Alberta Court of Appeal upheld the privilege Canada. The government benefits from the overbroad. Document review by junior law- (OHS) staff also conducted an investigation, information collected in the process of the investigation with found in Suncor and endorsed the mechanism of a referee, but resources spent by the corporation on the yers who have little experience may result in during which they collected records and the garb of privilege in anticipation or contemplation of litigation. required a more detailed document by document analysis and review: investigation, which saves the government overbroad claims, as younger lawyers may err interviewed approximately 15 witnesses. Denying Suncor its entitlement to claim litigation privilege The chambers judge erred in finding that the dominant purpose money. In some cases in the “zone of non-dis- on the side of caution by claiming privilege. Under the OHSA, Suncor itself had a statu- over information created and/or collected during an inves- of the internal investigation was in contemplation of litigation covery,” the government benefits from dis- In some rare cases, corporations may attempt tory obligation to “carry out an investigation tigation, because of an overlapping statutory obligation to in- and therefore every document “created and/or collected” during covery of the event itself. For this process to hide embarrassing documents or emails by into the circumstances surrounding” the ac- vestigate and report, would prejudice Suncor’s right to defend the investigation is clothed with legal privilege. Suncor cannot, to work, it is essential that the investigation claiming litigation privilege or attempting to cident and prepare a report outlining these itself against any potential civil actions, criminal prosecutions or simply by having legal counsel declare that an investigation has be thorough and that it explore the causes cloak them with solicitor– client privilege by circumstances and the “corrective action, if regulatory claims. That result would defeat the policy justifi- commenced, throw a blanket over all materials “created and/or of non-compliance and alternative versions copying counsel routinely. Accordingly, our any, undertaken to prevent a recurrence.” cation and purpose of the law in relation to litigation privilege. … collected during the internal investigation” so as to clothe them or explanations for it. Privilege allows for proposed approach would take a much strict- Notwithstanding the furnishing of the report [Italics in original.] with solicitor-client or litigation privilege. Where a workplace a comprehensive and objective investigation. er stance in evaluating claims of privilege as- to OHS and the provision of the names of all With respect to legal advice privilege, the court found that Suncor accident has occurred, and the employer has statutory duties When serious non-compliance or viola- sociated with factual evidence and documen- persons interviewed as well as those making demonstrated it sought and received legal advice from internal and under sections 18 and 19 of the OHSA and simultaneously un- tions of the law are discovered internally, the tary evidence, including emails. up Suncor’s internal investigation team, OHS external counsel. In considering whether the specific records over dertakes an internal investigation, claiming legal privilege over simple fact is that the reason for the violation In our view, the mechanism of a third-par- demanded additional records from Suncor, which Suncor asserted litigation and legal advice privilege were in all materials derived as part of that investigation, an inquiry is is often not that simple. There are often com- ty referee to assess the records, who would including copies of witness statements and fact protected, given the volume of records at issue, the court ordered properly directed to a referee under Rule 6.45 to determine the plex reasons and potential alternative views then report to the court, is a good hybrid records taken or collected by Suncor’s inves- Queen’s Bench case management counsel to act as a referee in assess- dominant purpose for the creation of each document or bundle of the reasons for the non-compliance or even solution that balances the values underlying tigative team. Suncor refused, citing litigation ing the records. The court would then consider the referee’s recom- of like documents in order to assess the claims of legal privilege. debate about the legalities of the issue. To take privilege but at the same time ensures that and legal advice privilege. mendations in finally adjudicating on the records. Moreover, the Court of Appeal required that Suncor must inde- a hypothetical example, suppose the expen- claims for privilege are not overbroad or not The court held that Suncor could assert that In our view, the mechanism of a third-party referee to assess the pendently distinguish the nature of the legal privilege claimed, diture of $5 million for a capital project is a substantiated by the proper legal tests. the “dominant purpose” for the collection of records, who would then report to the court, is a good hybrid solution and the evidentiary basis for the claim, and granted Alberta the smokescreen for a bribe to a foreign public of- information was to prepare for litigation, stat- that balances the values underlying privilege but at the same time en- right to make submissions before the referee. ficial. It is easy to see this is an illegal act. What anadian cases on privilege in ing at paragraphs 45–46: sures that claims for privilege are not overbroad or not substantiated A quick review of Canadian cases reveals a balancing test applied may be unclear is whether senior officers in internal investigations: Grey areas [A]lthough Suncor has a statutory ob- by the proper legal tests. Law firms will typically assign more junior to individual fact situations. Canadian courts have been reluctant to the organization were aware it was a dis- The Alberta Court of Queen’s ligation under the OHS Act to conduct lawyers to perform document review and claims of privilege, with recognize a self-audit privilege. With respect to solicitor–client advice guised bribe, or whether they were unaware CBench ruled in Alberta v. Suncor Energy an investigation and prepare a report elevation to senior lawyers only at later stages. The process of review in the context of business decisions, the Canadian courts have devel- of a scheme to hide the bribe by those with- Inc. (Suncor) that an internal investiga- on the Accident for the Ministry/OHS, by a court ensures that the proper legal tests are being applied in a oped a balancing test as set out in Pritchard.1 Each case is of course in the organization who created the scheme. tion into a workplace accident was privi- that obligation does not foreclose or transparent manner. factually driven, but in some cases Canadian courts have protected Complex levels of analysis are required to leged, and thus protected from disclosure. preclude Suncor’s entitlement to litigation Commentators have argued that Suncor broadens and strength- lawyers’ interview notes as created for the dominant purpose of antic- determine corporate criminal liability and The court found that, notwithstanding privilege for all purposes, particularly ens the ability of companies to keep internal investigations privi- ipated criminal litigation, such as reviewed in the Dunn case.2 The On- to determine whether senior officers may an Alberta Occupational Health and Safety if the evidence demonstrates that leged, even in the face of a statutorily mandated investigation. tario Court of Appeal reaffirmed the importance of solicitor–client
40 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 41 privilege in reports prepared in anticipation of litigation in the 1987, the SFO issued notices against ENRC and various other third Category 4: Documents referred to in a letter ENRC and the communications between significant consequences for the manner case of R. v. Bruce Power Inc.3 parties to compel the production of documents. On receipt of the sent to the SFO, including forensic accountant ma- the individuals and ENRC’s external le- in which such investigations are carried The grey areas of interpretation of privilege are a temptation notices, ENRC contended that four categories of documents were terials as outlined in Category 2 and two emails gal counsel were not communications in out going forward.9 to suggest a bright-line test that would be easier to apply. The UK privileged and would not produce them. between ENRC’s head of mergers and acquisitions the course of conveying instructions to If counsel’s work product and interview courts have recently attempted to create a bright-line test that has Category 1: Interview notes prepared by ENRC’s external legal counsel of (M&A) and senior ENRC executives. The head counsel on behalf of the corporate client. notes in an internal investigation will become created some considerable controversy. interviews of numerous individuals, including former and current employ- of M&A was a qualified Swiss lawyer. ENRC · Regarding the communications in- public, this development will create a new ees of ENRC, and the officers of ENRC and its subsidiaries and suppliers, claimed that litigation privilege applied to volving ENRC’s head of M&A, at the risk dynamic. A company may decide it is not ecent developments in the UK relating to the events being investigated. The notes were created before the forensic accountant materials and that the time these documents were created, worth doing an internal investigation if the On May 8, 2017, the English High Court of Justice handed the SFO began the criminal investigation in April 2013. ENRC claimed head of M&A, as a qualified lawyer, was act- he was acting as a “man of business” results are automatically turned over to the down judgment in The Director of the Serious Fraud Office v. these documents were subject to litigation privilege, as the dominant ing in the role of a lawyer and therefore sub- as opposed to a lawyer. Substantial authorities. On the flip side, the government REurasian Natural Resources Corporation Ltd (“SFO v. ENRC”), which purpose of the interviews was to enable ENRC’s external legal coun- ject to legal advice privilege. weight was put on the nature of the may offer fewer deferred prosecution agree- could significantly limit the application of litigation privilege in sel to obtain relevant information to advise ENRC in connection with The court held that privilege applied only head of M&A’s role, which was primar- ments if it can obtain information of internal criminal investigations.4 The judgment is the first judicial consider- the anticipated adversarial criminal litigation. Alternatively, ENRC to the Category 3 documents, which were ily focused on strategic planning and investigations without making that offer. In ation of litigation privilege in the context of voluntary disclosures to claimed the documents could be characterized as lawyers’ work prod- subject to legal advice privilege. ENRC’s oth- the execution of transactions, as op- short, the decision in SFO v. ENRC may put the Serious Fraud Office (SFO). Commentators have warned that, if uct, and disclosure of such would reveal the trend of legal advice be- er claims of privilege were rejected. posed to being legally focused. a chill on dialogue with the regulator, which upheld and broadly applied, the judgment could significantly limit ing provided to ENRC. The judgment in SFO v. ENRC has gener- we think would be unfortunate for both in- the circumstances in which a company conducting an internal in- Category 2: Documents generated by forensic accountants during the Litigation privilege ated a lot of discussion. Commentators have dustry and the government. vestigation prior to initiation of formal criminal proceedings could same period as part of a books and records review that sought to identi- In rejecting ENRC’s claims for litigation predicted the judgment could have a dramat- Other Canadian commentators have successfully claim litigation privilege over work product generated fy systems and controls weaknesses and potential improvements. ENRC privilege, Justice Andrews considered the ic impact on the practice of internal investiga- viewed the decision in SFO v. ENRC from the during the investigation.5 claimed the documents were protected by litigation privilege as early stage of the investigation such that a tions in the UK, particularly those undertak- lens of the government regulator.10 A prose- Between August 2011 and April 2013, the SFO and Eurasian Natural the “dominant purpose of the reports was to identify issues which mere suspicion of a potential compliance en to address whistle-blower allegations or cution cannot be started unless and until the Resources Corporation Ltd (ENRC), a multinational natural resources could likely give rise to intervention and prosecution by law en- problem, even where the company has opt- compliance concerns absent a formal inquiry prosecutor is satisfied there is a sufficient company headquartered in the UK, were engaged in a dialogue over forcement agencies, with a particular focus on books and records ed to engage external experts to conduct an from an external regulator.6 evidential basis for prosecution and the pub- allegations of fraud, bribery and corruption in Kazakhstan and an offences, and to enable ENRC to obtain advice and assistance in internal investigation, is insufficient to give Some Canadian commentators7 have de- lic interest test is met. The challenge for the African country. During this period, ENRC was conducting internal connection with such anticipated litigation.” rise to a reasonable contemplation of prose- scribed the decision in SFO v. ENRC as “both prosecution as it relates to litigation privilege investigations and transactional due diligence into the allegations un- Category 3: Documents indicating or containing the factual information cution. At this early stage, the court was of surprising and of concern to corporations is in establishing the date on which it can be der the supervision of an external law firm. In April 2013, the SFO presented by ENRC’s external legal counsel to the ENRC board in relation the view that it cannot be concluded that the who may find themselves subject to potential said it had sufficient evidence to begin a pro- terminated the discussions and began a criminal investigation into to the investigation. ENRC’s primary case was that these documents real risk of an investigation translates to a regulatory investigation.”8 ceeding.11 It is speculated that corporations the activities of ENRC. Under section 2(3) of the Criminal Justice Act were subject to legal advice privilege. real risk of a prosecution. The documents generated during inves- may decide to wait until there is an actual The court rejected the argument that tigations of ENRC included notes from in- criminal prosecution before conducting an litigation privilege should extend to terviews of 85 individuals undertaken by internal investigation in order to receive the third-party documents created to obtain ENRC’s counsel. Best practice for companies benefit of litigation privilege. legal advice on how best to persuade the that become aware of allegations of wrong- There is some recognition in Canadian SFO to decline prosecution. doing has long been to conduct an internal courts of the need for a “zone of privacy” Moreover, the court held that, even if investigation into the allegations. Canadi- when a party or parties are facing an inves- ENRC could satisfy the requirement that an commentators have noted the distinc- tigation in a regulatory context where the prosecution had been reasonably in contem- tion between facts and lawyers’ notes with potential penalty is an administrative mon- plation, the documents over which litigation privileged information: etary one. This point was made in TransAlta privilege was claimed were not created with In Canada, most legal experts who pur- Corporation v. Market Surveillance Adminis- the dominant purpose of being used in the sue internal investigations on behalf of trator,12 where the Alberta Court of Appeal conduct of the litigation. clients agree that facts learned or doc- held there is an obvious need for legal advice uments gathered in the course of an and a zone of privacy contemplated by liti- Legal advice privilege investigation are not privileged even if gation privilege, when a party or parties are Justice Andrews accepted that, regarding the investigation is pursued by counsel. facing an investigation that could result in an the Category 3 documents, the presentations However, lawyers’ contemporaneous administrative monetary penalty (AMP). Forensic Engineering prepared by ENRC’s external legal counsel notes and work product that contain or for the specific purpose of giving legal ad- reflect bona fide privileged information dichotomous approach We provide world-class engineering and consulting expertise in: vice to ENRC were privileged, even if they ought to be protected. For this reason the In this section, we propose a di- referred to factual information or findings. way an investigation is structured at the chotomous approach to privilege • Civil/Structural • Fire & Electrical Investigations However, in rejecting ENRC’s claims that le- outset, and the purpose for that setup, Ain internal investigations. The proposed di- • Geotechnical • Environmental Health and Safety gal advice privilege applied to the other dis- is crucial. The High Court’s decision chotomy respects the division between factu- • Construction Claims • Materials Failure/HVAC puted documents, Justice Andrews honed is currently under appeal. Companies al evidence versus impressions, explanations • Personal Injury and Biomechanical • Renewable Energy in on the factual nature of the investigation, and practitioners (both in the UK and or interpretation of events. • Collision Reconstruction • Transportation Safety in the following respects: Canada) will be monitoring the decision · Fact-finding interviews by external closely on appeal. Should it be upheld, The need for candid impressions, expla- legal counsel were not part of the con- companies will have to be prepared nations or interpretation of events The last word in forensic engineering fidential lawyer–client relationship. for the possibility that their counsel’s One of the authors of this article has expe- www.30fe.com · There was no evidence that any of the work product in carrying out internal rience with internal investigations that may people interviewed were authorized to investigations may make its way into provide insight into the process. seek and receive legal advice on behalf of the public record. This could have If senior officers or employees fear that
42 | FALL 2017 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2017 | 43 everything they say in an internal inves- The risk of documents being hidden under consider the referee’s recommendations tigation interview will be provided to the the cloak of privilege in finally adjudicating on the records. The authorities, they are not likely to volunteer We recognize that privilege claims may be challenge is in devising a mechanism where impressions, explanations or interpretation of overbroad. Document review by junior law- a third-party referee will be able to assess events. They may discuss the bare facts, but yers who have little experience may result in the documents without necessarily waiv- they may not volunteer nuances or their own overbroad claims, as younger lawyers may ing privilege. A court may order a party to thoughts and impressions that are important err on the side of caution by claiming priv- provide the information to an independent for providing insight into the reasons for a ilege. More senior lawyers are not immune judge of the same court, who will then be failure of non-compliance. from pressures from clients to make broad able to report to the presiding judge on the During a corporate internal investiga- claims of privilege and force government bona fides of the claims. The parties may tion, employees will be advised that the regulators to challenge those claims. In some also come to an agreement, with the bless- interview is privileged, but the privilege is rare cases, corporations may attempt to hide ing of the court, to allow a third party to held by the corporation (or audit committee) embarrassing documents or emails by claim- review the documents for privilege claims, performing the internal investigation. The ing litigation privilege or attempting to cloak without destroying privilege claims. A limit- privilege protects communications between them with solicitor–client privilege by copy- ed waiver to serve a specific requirement client and lawyer, but does not protect the ing counsel routinely. is always possible. The challenge for coun- STARTING A NEW FIRM? facts underlying the communications.13 Accordingly, our proposed approach sel is in devising a process that will allow The employee is told the corporation (or au- would take a much stricter stance in evaluat- the privilege claims to survive the review. TAKE THE COMPETITION dit committee) may choose to waive this priv- ing claims of privilege associated with factual Also, counsel has to keep in mind that ilege and disclose the results of the investiga- evidence and documentary evidence, includ- there are some privilege claims, such as tion to authorities. This warning is commonly ing emails. Regulators should not be afraid to cabinet confidences or national security BY STORM. referred to as an “Upjohn” warning.14 challenge claims of privilege in a court. There claims, that cannot be viewed by the court If employees or senior officers believe must, however, be a transparent mechanism and for which a third-party referee may the results of internal interviews will be to ensure that the court is not tainted by the not be a solution. turned over to the authorities, it is likely privilege review. In our view, the mechanism of a referee to they will be much more circumspect in assess the records, who would then report interviews or may seek legal advice and A referee to the court, is a good hybrid solution that choose not to co-operate at all. As noted, in Alberta v. Suncor Energy Inc.16 balances the values underlying privilege Any good investigator knows that a basic the court ordered Queen’s Bench case man- but at the same time ensures that claims for version of the facts tells only the first layer. agement counsel to act as a referee in as- privilege are not overbroad or not substanti- Multiple layers and explanations arise only sessing the records. The court would then ated by the proper legal tests. from insight into subjective factors such as motive, personality, opportunity and self-re- flection. The truth may require an employee Notes For the first time, LexisNexis Canada has bundled our industry-leading or senior officer to be critical of persons in -au 1. Pritchard v Ontario (Human Rights Always Apply to Internal Investigations?” thority above them, or of the systems in place Commission), [2004] 1 SCR 809 at para 19. (19 May 2017) CBA National Magazine. solutions at a simplified, affordable price exclusively for new firms. in the organization. If early impressions, 2. R v Dunn (2012), 101 WCB (2d) 264, 2012 ONSC 11. Ibid. thoughts and insights into these factors are 2748 (Ont SCJ). 12. TransAlta Corporation v Market Surveillance not privileged in an internal investigation, it 3. R v Bruce Power Inc (2009), 245 CCC (3d) 315 (Ont CA). Administrator, 2014 ABCA 196 (CanLII) at ® ® ® is not likely individual officers will be forth- 4. Gary DiBianco & Elizabeth Robertson, “English para 40. Each bundle includes Lexis Advance Quicklaw and PCLaw . coming. The result will be an incomplete pic- Court Questions the Application of Litigation 13. Grace M Giesel,“Upjohn Warnings, the ture of what really happened. Privilege in Criminal Investigations,” Skadden Attorney–Client Privilege, and Principles of The new firm gets to select the Lexis Advance Quicklaw subscription that A contrary argument might be that em- Arps Slate Meagher & Flom LLP (London, Lawyer Ethics: Achieving Harmony,” 65:109 ployees will be reluctant to tell the whole truth UK: memorandum, 17 May 2017). (Serious University of Miami Law Review at 127. meets its specific research needs, and the option to add a Lexis Practice once they hear the Upjohn warning and real- Fraud Office (SFO) v Eurasian Natural Resources 14. Ibid. ® ize it is not their decision about whether priv- Corporation Ltd [2017] EWHC 1017 (QB).) 15. In the “Yates Memo,” the US Attorney Advisor Canada Module. ilege may be waived. It might be asked, from 5. Ibid. General stated that, absent extraordinary the employees’ point of view, what is the dif- 6. Ibid. circumstances, no corporate resolution will ference between the notes being turned over 7. Lawrence E Ritchie, Kevin O’Brien & Malcolm provide protection from criminal or civil Ready to build your bundle? to authorities voluntarily by the company and Aboud, liability for any individuals: United States the notes being compellable and available to “UK Court Holds Counsel’s Interview Notes Department of Justice, Office of the Deputy Contact us for a quote at 1-877-851-7661 or for more details the authorities? The answer, in our view, is During Internal Investigation Are Not Attorney General, “Individual Accountability that a deferred prosecution agreement may Privileged”; online:
Verdict Ad.indd 1 2017-05-25 4:09 PM BOOK REVIEW CHOOSE FROM CANADA’S TOP MEDIATORS AND ARBITRATORS More tough crimes
Julianna Greenspan
William Trudell and Lorene Shyba, eds.; foreword by Hon. Patrick LeSage More Tough Crimes: True Cases by Canadian Judges and Criminal Law- yers (Calgary: Durvile Publications, 2017)
ore Tough Crimes is an apt title for this collection since it is a follow-up to the riveting essays found in Tough Crimes, published in 2014 and edited by C.D. Evans and LoreneM Shyba. As if the first book’s crimes weren’t tough enough, the publisher had to come up with a sequel. I am in a uniquely compli- cated position because my father authored a chapter in Tough Crimes and my uncle authored a chapter in More Tough Crimes. Therefore, I cannot criticize either book and I cannot say one is better than the other, lest I be accused of sabotage. So although my comments are essentially meaningless in any constructive way, I offer the reader who chooses to continue reading this review a few observations. More Tough Crimes, edited by William Trudell and Lorene Shyba, provides yet another collection of some of Canada’s infamous crim- inal cases and includes chapters by prominent lawyers and judges with first-hand knowledge of them. Each author offers insights into a renowned case previously interpreted only by the mass media. For example, the personal experiences of James Lockyer and Don- ald Bayne, lead counsel in the Truscott appeal and Duffy affair, -re spectively, provide reflections on cases of national attention. Until Q.C. this book, those important insights had not been heard. W.A. Derry Millar H. Michael Kelly No theme unites the chapters, other than the obvious – they all deal with tough cases addressing tough criminal justice issues au- thored, in most instances, by those directly involved. The broad range of topics keeps the reader’s interest. Chapters include the Derry has over 40 years of legal Michael is a mediator, dangers of Mr. Big investigations, authored by Mona Duckett; and neutral experience. His arbitrator, and former Master, Clayton Rice’s and Breese Davies’ chapters involving the profound chapter references a different intricacy of our judicial system and tensions between mental health and the criminal justice system il- calls on the reader to appreciate the importance of viewing facts expertise includes commercial, Superior Court. Michael lustrated by the prosecution of Rice’s client Kristen Budic for mur- and circumstances from different perspectives. aviation, estates, environmental, specializes in personal injury, der and the inquest into the death of Ashley Smith; the frailties Not all cases in the sequel are familiar to the non-legal public, of expert evidence in the murders of lawyer Lynn Gilbank and but the authors have written More Tough Crimes to be more acces- insurance, product liability, property and casualty insurance her husband, Fred, authored by Alan Gold; and Brian Greenspan’s sible to a broader audience than the original volume. Like the first chapter involving the complex transborder prosecution of Alan Ea- book, this volume is still replete with legal jargon, but the se- intellectual property and real claims, and commercial gleson. Other landmark cases include Brian Beresh’s account of quel is more consumable for both lawyers and non-lawyers. Legal estate matters. disputes. the tragedy of Dina Dranchuk, the last woman to be sentenced terms that may be second nature to those with a law degree are to death in Alberta in a case that had all the elements of battered explained for readers without one. It is in its accessibility that More woman syndrome before it was an understood and accepted de- Tough Crimes has progressed from its predecessor, while still pro- fence and was held in the wake of damning media coverage before viding riveting reading for the legal community. judicial recognition of the necessity of juror screening; and the One example of the way this collection covers important legal is- 416.362.8555 | 1.800.856.5154 | [email protected] | adrchambers.com key expansion of the self-defence provision in the Criminal Code sues in an accessible writing style is Jonathan Rudin’s “The Death in cases involving death, authored by the Honourable James Ogle, of Reggie Bushie and the Eight-Year Inquest.” Rudin writes of the involving his successful defence of Steven Kesler for murder. Each unique troubles faced by Indigenous Peoples in setting up an inquest
THE ADVOCATES’ JOURNAL | FALL 2017 | 47 into the unexplained death of a First Nations youth. Though the up what is the essence of every aspect of our criminal justice sys- body of Reggie Bushie was found in 2007, the inquest was de- tem: maintaining hope despite a continual confrontation with layed for nearly eight years while attempts were made to properly enormous challenges. include First Nations citizens on the jury roll. Tragically, during In his foreword, the Honourable Patrick LeSage reminds us of this period, the bodies of six more First Nations teenagers, all of the ever-present human element in Canada’s criminal justice sys- whom had been attending the same high school in Thunder Bay, tem – one that is, and will always be, subject to error and bias: “We We can help you find the were discovered in the same river as Bushie. A Commission of in Canada are the beneficiaries of a framework for justice in which Inquiry into the presence of First Nations residents on the jury roll I have faith,” LeSage writes. “While in some instances justice is in Kenora District of Northern Ontario was established and, elusive at least for a time, for the most part our system functions in 2013, Justice Frank Iacobucci, chair of the Commission, re- well. To paraphrase Winston Churchill, our criminal justice leased an important report setting forth 17 recommendations system is a human one and not a perfect system. Nevertheless, Paul M. Iacono,Q.C. to improve the treatment of Indigenous Peoples. The inquest even with its blemishes, when compared to others throughout the that ultimately investigated the deaths of all seven young Ca- world, our system is remarkably sound and workable.” Peter Braund nadians, made up of a jury that included a First Nations juror, We are fortunate to have a legal system that, despite its inev- Harvey Spiegel, Q.C. found the cause of all the deaths to be undetermined. In his itable frailties, seeks to be just, righteous and good. The chapters chapter, Jonathan Rudin makes the following observation about in this book are about the indomitable people who never cease Ernie Eves, Q.C. the unique events: “This story shows there is reason for hope, but striving to ensure our justice system protects us all. More Tough also that there are huge challenges the country must be willing Crimes continues to give us hope that such people do exist in our Helen Walt to confront.” This comment crosses all chapter topics, summing criminal justice system. Charles Harnick, Q.C. Douglas Cutbush Margaret Rees Tony Baker
C Fred Sampliner M Alicia Kuin Y David Smith, C.A. CM
MY Cindy Winer CY John Beaucage “We cannot hope to be great CMY John W. Makins K advocates without learning from Derek Sarluis John R. Wilson the masters of our craft.” Richard McLean, Q.C.
- Sonia Bjorkquist, President, The Advocates’ Society To arrange a mediation, arbitration or appraisal please call our ADR Coordinator or book online. (416) 866-2400 The Advocates’ Society has a new website that features an online mentoring portal where members can connect quickly and easily. Intermediate and senior Society members are encouraged to make themselves available as a mentor to lend an ear and offer some support and guidance. Simply sign in to your member profile and opt-in to be a mentor. Voila! You are now ready to make a difference as part of our mentoring community for members. To volunteer as a mentor visit www.advocates.ca NOW SERVING SOUTH-WEST ONTARIO
130 Adelaide Street West, Suite 701, Toronto, Ontario M5H 2K4 T 416-866-2400 TF 1-844-967-5782 F 416-866-2403 www.yorkstreet.ca 48 | FALL 2017 | THE ADVOCATES’ JOURNAL CREDENTIALS MATTER
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