Thursday, May 31, 2012

Diversity Strengthens Public Confidence in Administration of Justice

Critics of racial diversity among Ontario's judiciary overlook the profound and positive impact which such diversity has in terms of its positive impact on public confidence in the administration of justice.  Race is not important they argue.  What is important is that we appoint the best people to the bench.  From the point of view of these critics the best people for the job is simply maintaining the status quo. The appointment of persons other than men of European descent means that standards are being lowered.  The fact is that a judiciary made up almost exlusively of men of European descent in today's Ontario communicates on a certain level that our public policies with respect to multiculturalism and equality of opportunity is nothing more than political correctness void of truth or substance.  Appointing judges from a cross-section of the community conveys the important message of inclusiveness and affirms our commitment to equality and the rule of law. How could this possibly be a bad thing ?

This little debate brings back fond memories of my trip to San Francisco some years ago.  I wandered into an Irish Pub and was conversing with some lads when suddenly I exclaimed - "My where are the black folk around here ?  I understood that San Francisco was progressive."  The pub was packed and I was the only person of African descent in the place.  One of the lads at the bar looked at me in an appologetic manner and said, "you know that point had never occurred to me."  It had never dawned on him that the races were in fact very much segregated in San Francisco.  I suspect that in much the same way that the lad at the pub was oblivious to the racial divide around him so to are the critics of racial diversity among Ontario's judiciary.

Saturday, May 26, 2012

A Practical and Economical Approach to Resolving Family Law Disputes

In recent years policy makers, jurists and family law lawyers have commented on the significant and profound problems in our courts with respect to family law matters.  Delay and the ever increasing cost of the litigation of these type of legal problems has resulted in a situation where more and more individuals have resorted to self-representation.  This ever increasing incidence of self-representation understadably contributes to the inefficiency both in terms of the lenght of time these disputes take to resolve themselves and in the quality of outcome which the parties obtain from the process. An ever increasing number of family law litigants are finding that the aftermath of the resolution of their family law disputes is a significant decrease in their networth.

Litigation is a poor method of dispute resolution of any form of dispute but is especially ill-suited for family law disputes.  Litigation by its very nature is adverserial and concerned primarily with asserting and establishing an entitlement to something - be it a right under an insurance policy or the right to compensation for the improper use of a trade name.  In each of these examples there are two generally unconnected parties asserting a right against the other. The dispute is generally transactional in nature - meaning other than the dispute that is the subject of the litigation they do not share any relationship of possible contining social or familial ties with each other.  The family law dispute is not transactional in nature but involves the resolution of a conflict that understandably evokes strong emotions of unfairness, hurt, hatred, revenge and the like.  Litigation should be the exception rather than the norm for the resolution of these types of disputes.  Many will rememember the hollywood movie - The War of the Roses.  That movie - while a tat extreame - shows how litigation of these diputes can take on a life of its own !

Importance of party control
over the process:

In order for parties to a family law dispute to derive maximum satisfaction from its resolution it is vitally important that they - as much as possible - have control over the process.  It is this lack of control which makes litigation ineffective for the resolution of these types of disputes.  Many family law litigants that I have spoken to have expressed this sentiment.  I have spoken to a few who were not even aware that they could negotiate a settlement of the dispute.

Offer to Settle:

A party that is interested in bringing a family law relationship to an end would be better served by initiating the process by seeing a lawyer and delineating their needs and interests and putting forward a formal offer to settle to the other party.  The parties could then speak between themselves in an effort to narrow the issues or the other may elect to seek legal representation with a view to negotiating a resolution to their differences.  Settlement and agreement is the vehicle throught which these type of disputes resolve themselves with maximum satisfaction for the parties.  Critics may say that this apporach is simplistic but those critics lose sight of the fact that an offer to settle is a vehicle to initiate a dialogue and immediately focus on the issuess which separate the parties.  The sooner in the process this is done the more likely the parties will reach a mutually agreeable settlment.

No doubt there will always be cases that warrant litigation.  However, the solution to the problems with family law litigation in Ontario ought to start with a recognition that conventional litigation and the adverserial model is not an effective tool for the resolution of these types of disputes. 


Thursday, May 24, 2012


  A Law Society of Upper Canada Appeal Panel chaired by Mark Sandler set aside the disbarment of prominent African-Canadian lawyer, Karen Cunningham on May 16th, 2012.  The panel allowed the appeal against findings that Ms. Cunningham knowingly assisted in mortgage fraud and failed to be honest and candid with lender clients.  The LSUC will have to determine whether it would be in the public interest to proceed to a new hearing in light of all the circumstances the Panel ruled.


Saturday, May 19, 2012

Is Florida's Stand Your Ground Law Constitutional ?

Trevon Martin was shot and killed by George Zimmerman recently.  Mr. Zimmerman contends that he shot Trevon in self-defence and relies upon the State of Florida's Stand Your Ground Law(SYG) which allows individuals who believe their lives to be in danger to use deadly force to preserve themselves. While some of what transpired that night may be unknown the facts that we do know exposes a very serious problem with respect to the constitutionality of this state law - especially as it impacts on the lives of African-Americans like Trevon Martin. Trevon Martin was returning to his father's home following a walk to the corner-store to buy pop and candy for himself and his younger brother. He was unarmed and conducting himself within the law at all times. Mr. Zimmerman upon noticing Trevon actually called police and reported him behaving in a strange manner. Police expressly advised Mr. Zimmerman not to confront Trevon and they would attend to look into the matter. Phone records and evidence from Trevon's girlfriend indicate that he mentioned to her that someone was following him. Some minutes later Trevon is lying dead as a result of a bullet wound in the heart area from Mr. Zimmerman's gun. Mr. Zimmerman contends he was "attacked", engaged in a fight and he shot Trevon in self-defence to preserve his own life.

The Stand Your Ground Law passed by Florida State lawmakers has a litany of legislative defects which seriuosly call into question its constitutionality. On a practical level the law allows one individual to take the life of another based soledy on that individual's subjective belief in their need for self-preservation and without regard to who initiated the aggression and where.  Assuming that the objective of SYG law is to enable victims of crime to defend themselves in the face of grave danger the current law as it stands is arguably suffering from vagueness and over-breath issues.  The law as it currently stands is silent on delineating clear criteria to assess and evaluate the killer's fear.  In addition, it is one thing to be on the receiving end of an unprovoked, armed confrontation in one's home where one takes steps to preserve one's life and another matter where one initiates the violence in the public sphere and the victim is unarmed and a minor.  In the latter scenario the victim is deprived of life under color of law in circumstances where the state itself could not deprive the said individual of life.  The state would be subjected to the 4th Amendment requirements of due process with respect to seizures and security of the person. A state actor's use of force in the circumstances under which Trevon lost his life would most likley be determined to be excessive force and a violation of the 4th Amendment. 

Saturday, May 12, 2012

Jury Secrecy Needs a Re-think

The pratice of keeping jury deliberations secret in Canada needs to be reevaluated and in my view changed. The process by which jurors arrive at their decisions can provide us with a wealth of useful information which can be of assistance in ensuring that justice has been served. As one who has been involved in both civil and criminal jury trials I have often felt that jurors may have been more interested in going home to their families and the like than to ensuring that justice is done. By my way of thinking if a jury which has been sitting on a case for six weeks plus decides that it has had enough and convicts a defendant on all charges merely to be able to go home, such conduct ought to be of interest to anyone who is truly interested in justice. According to one popular legal maxim justice must be seen to be done. The delegation of such an important part of the adjudicative process in the absence of safeguards to ensure soundly arrived at decisions and the avoidance of wrongful convictions seems more concerned with legitimizing results through community involvement rather than seeing that justice is done. Verdict Inquiry by Trial Judge: In the same way that trial judges now conduct a plea inquiry to ensure that a defendant is acting voluntarily - trial judges ought to be granted the authority to perform some form of inquiry into the jury's decision-making process. The sole purpose of this inquiry would be to ensure that jury decisions and especially criminal convictions are arrived at in accordance with law rather than whim. I envision each juror being asked some questions - where counsel for the parties would have input on the questions - and their responses would be made in open court and reported by a verbatim reporter. This process would be open to the public and the media. Note: This piece is written for the sole purpose of drawing attention to an issue of public importance.

Obama's Support of Gay Marriage Brings America Forward

History shows us that America has been slow to live up and bring to fruition for all of its citizens the constitutional rights that have made it the envy of the world to many. It was not very long ago indeed that African-Americans were subjected to aparthaid-like conditions in the south. Images of police, firefighters and other state and local para-military officials violently repressing peaceful and unarmed African-Americans with dogs and water-canons are permanently imprinted in the consciousness of many of us who observed them. How could such repression be taking place in country that has such an advanced legal system with a written constituion which speaks to equality and the rule of law asked many observers the world over. However, America's history also shows us that it is engaged in a continous process of self-evaluation and change. Where legalized segregation of the races was the norm yesterday, such state sanctioned laws are now seen by most to be inconsistent with the gurantees of equality guranteed by the constituion. President Obama's recent support of gay marriage is a splendid example of this continous process of self-evaluation and change. Clearly, there is no justifiable reason for the state to prohibit gay marriage. President Obama's support of gay marriage strengthens America by showing the world that America practices what it preaches - Change ! It is a difficult task to bring change to the rest of the world when you are incapable of self-evaluation and change.

Sunday, May 6, 2012

Employer Duty to Investigate Alive and Well

Lawyers representing employers have jumped on a narrow reading of the Court of Appeal's decision in Canac (supra)to suggest that an employer does not owe a duty of care in negligence to conduct a fair and thorough investigation of allegations of discriminaton, harassment or other employee misconduct in their workplaces. In Correia v. Canac Kitchens 2008 ONCA 506 the Court of Appeal refused to recognize a duty of care in negligence on the employer with respect to damages suffered by an employee they terminated based on a negligently conducted criminal investigation. The investigation in Canac (supra) was a criminal investigation and it was not conducted by the employer but by an investigation firm hired by the employer to investigate criminal activity in its warehouse. In coming to the conclusion that a duty of care was not appropriate on policy grounds in Canac supra the Court of Appeal relied upoon the following salient facts: 1. the conduct to be investigated was outside of the employer's business expertise; 2. the employer in fact hired a company with expertiese in the area to conduct the investigation; 3. the employee named the investigation company and the police in the action; 4. the employer acknowledged that in the circumstances they had no cause for dismissal and in fact offered the employee reinstatement. Accordingly, the Court of Appeal's holding in Canadc supra with respect to a duty of care on the employer for negligent investigation is arguably limited to the narrow facts of that case. An employer with published anti-harassment policies who receives a complaint and carries out an investigation of such complaint using their own managerial staff would clearly seem to be outside of the Canac holding. The fact that the prohibited behaviour is regulated by the employer in that their policy prohibits it, defines it and provides a vehicle to employees to complain along with a procedure for investigation and prescribed penalties for the violation of the policy makes it part and parcel of the employer's business and arguably a term of the contract of employment. Indeed, there are compelling public policy reasons to support a duty of care in negligence on employers with respect to investigations of this nature. Since human rights legislation is remedial in nature and has been recognized by the Supreme Court of Canada as being "quasi-constitutional" the absence of a duty of care in negligence on the employer with respect to such investigations would render the right of employees to be free from discriminaiton and harrassment in employment illusory. In Robichaud v. Canada(Treasury Board) 2 S.C.R. 84 the Supreme Court of Canada held that an employer is liable for the acts of discriminaiton and hasrrament of its employee. The court reasoned that the remedial objectives of the Act, in that case the Canadian Human Rights Act, could not be acoomplished in the absence of such liability on the employer since only they can remedy the undesirable effects of discrimination and only they can provide a healthy work environment. In this remedial context the employer is for all intents and purposes the "gate-keeper" of the enforcement of human rights in the workplace. At the same time an employer can cause serious and lasting harm to an employee's reputation by improperly branding them as a sexual harasser or racially intollerant and therby adversely impacting the employee's future employability. On the other hand a proprly conducted investigation can be used by an employer to defend itself against false claims by employees. A duty of care on an employer to conduct a fair and thorough investigation in this context would tend to be supported by public policy and is distinguishable from the Canac supra scenario. Totally aside from allegations involving conduct prohibited by human rights legislation, Ontario courts have recognized an obligatin on employers to conduct a fair and thorough investigation in circumstances where they embark on such investigations to justify cause for dismissal involving fraud or other moral terpitude. Two cases involving the Canadian Imperial Bank of Commerce come to mind on this point, namely, Ribero v. CIBC (1989) 24 C.C.E.L. 225 and Francis v. CIBC. 1994 CanLii 1578 (ON CA) In both of those cases the court was highly critical of the "shoddy investigation" carried out by the bank's investigator where they relied upon the improprly conducted investigation to support allegations of moral terpitude against the employee. While those cases were not advanced on theories of negligent investigaiton, the court clearly reviewed the substance of the investigation and in both cases punitive damages were awarded against the employer. In Francis supra the Court of Appeal for Ontario increased the punitive award from $20,000 to $40,000.

Wednesday, May 2, 2012

A. G. must address concerns over police testimony

The recent announcement by the Attorney General of Ontario to conduct an inquiry into police lying under oath in criminal trials is long overdue. Over the years a number of judges have in fact made such findings in their judgments. The fact that the Ministry of the Attorney General for Ontario or any other ministry does not have any rules or procedures to prosecute officers for such conduct is unacceptable and inconsistent with the rule of law and the Charter. Some years ago I defended an individual in a criminal proceeding who testified at a bail hearing to having worked at a particualr place and the Ministry of the Attorney General for Ontario took decisive action in followng-up on that testimony and ultimately laying a charge of perjury. While it is true that a judicial finding of fact in the absence of other corroborating evidence will not necessarily support grounds for perjury or fabricating evidence, it is clear to me that there is currently a lack of interest in prosecuting such cases when they involve police officers. This is not right. If the Ministry of the Attorney General for Ontario is serious about this issue they need to take the following action: 1. Expand the jurisdiction of the SIU or a similar body to investigate such claims; and 2. Establish and publish a policy requiring their prosecutors to act on such claims. Note: This piece is written for the sole purpose drawing attention to an issue of public importance.