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Canada clearly needs a combined federal and province-backed, comprehensive inquiry to set change in motion

Canada’s horrendous justice system needs an outside inquiry to recommend reform


By —— Bio and Archives--March 7, 2019

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Canada’s horrendous justice system needs an outside inquiry to recommend reformAccountability is a buzzword of our time—except for Canada’s lawyers and judges. But things can change. Making it happen requires concerted pressure on politicians at all levels. Only they have the power to impose the collective will of citizens against collective resistance in the justice system.

Judges in the Supreme Court of Canada said this about good-faith dealing, in Bhasin v. Hrynew: “Commercial parties reasonably expect a basic level of honesty and good faith in contractual dealings. … A basic level of honest conduct is necessary to the proper functioning of commerce.” But lawyers’ and judges’ own operations echo too often the famous saying by Lord Acton that power tends to corrupt and absolute power corrupts absolutely. Even senior judges protect rogue colleagues when they can—as in any other trade union.

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I know someone who kept a diary of phone calls with her lawyer. He billed 20 minutes for calls lasting 5 minutes and for calls that never happened. Confronted with the diary, the lawyer admitted to mistakes, and he reduced the bill by two thirds. Incidents like this happen all the time. If you want to contest a lawyer’s bill—guess what!—another lawyer, sometimes a retired judge, conducts the review. In his book Lawyers Gone Bad, lawyer and former law school dean Philip Slayton explains what happens:

Once the practice of law meant giving good counsel about justice and fairness, but now it is a big business in which billable hours, take-no-prisoners victories and the bottom line are the principal ends. … Over-docketing is tolerated, if not encouraged, by firms that value profit above all else. … The longer it takes a lawyer to solve his client’s problem, the greater his income. 

Justice Michael Tulloch said in his report on policing in Ontario: “There is almost universal agreement that the current system for adjudicating disciplinary matters is broken and does not have the confidence of either the public or the police. … A fair and effective public complaints adjudication system demands greater independence and impartiality.” The same can be said for Canada’s justice system.

The system doesn’t have to be above the law

In her book Life Sentence, Christie Blatchford tells at length of Justice Paul Cosgrove’s abusive handling of a murder case. After Ontario’s attorney general referred his case to the Canadian Judicial Council, the Superior Court Judges Association and the Criminal Lawyers Association objected even to an evaluation of Cosgrove’s conduct. It took four years to unseat him from his dais. Not even a judge can get a speedy decision in Canada.

A rare case of accountability finally ended the right way—sort of. The Quebec Bar Association had allowed a lawyer known to be dishonest to stay in business. Christina Finney claimed to have lost hundreds of thousands of dollars.  When she sued the Bar Association in 1999, Justice Normand in the Superior Court said they were not accountable for her losses. Eventually, the Supreme Court of Canada confirmed an award from the Quebec Court of Appeal for “moral damages” but only for $25,000. The Federation of Law Societies representing all provincial and territorial law societies intervened in support of their right, in effect, to be incompetent and dishonest.

As posted online, the CBC Fifth Estate’s Mark Kelley found that between 2010 and 2015 law societies disciplined more than 200 Canadian lawyers, 71 of them in Ontario, for stealing about $160 million of clients’ money. Kelley identified criminal prosecution of less than 10 percent of the lawyers disciplined. Why so few?

If you sell your house in Canada and your lawyer absconds with the money, you may end up with no house and no money to pay another lawyer. That’s happened. Why doesn’t every lawyer file an independent auditor’s report every year with their respective law society? Ongoing neutral assessment of how lawyers handle clients’ money is vital for accountability. 

The Law Society of Ontario incorporated its own insurance company to pay for defending claims against its members. It aims to keep premiums low by stonewalling claims on principle. If a rogue lawyer can’t pay what a court awards, the fallback is the Law Society’s compensation fund, subject to unjustifiable limitations and utmost resistance. The ceiling for payouts is $500,000 although losses may amount to millions.

Following the Report by Sir David Clementi, an accountant and formerly Deputy Governor of the Bank of England, legislators in England ended self-regulation and set up a credibly and independent, if still imperfect, body to process complaints about lawyers. Likewise, Canada’s lawyers and judges need to be credibly accountable.

Process can change for the better

A case about the firing of a First Air pilot lasted nine years and cost the two sides half a million dollars between them, with the claimant bankrupted on the way. A case involving a university professor lasted ten years, with the union financing the claimant’s costs that went through the roof. By contrast, England’s low-cost and efficient employment tribunals encourage self-representation. There’s primary reliance on written submissions and inquisitorial adjudicators employed by the state take command of the process. A three-person appeals tribunal, if required, comprises a lawyer and two non-lawyers familiar with the issues.

 

England’s inquisitorial model would be readily adaptable for matrimonial disputes which, so often, are protracted and ruinous. A key element is for the adjudicator to take charge rather than having a judge sit like a bump on the log while lawyers bring obstructive motions and battle it out. The adjudicator can say, “That’s not relevant. This is what I need to know.”  It’s also imperative to have the adjudicator appointed by the state. Private-sector arbitrators claim to deliver fast, efficient and cost-effective service. Even at its best, it’s still an adversarial process. From someone who articled at the Supreme Court of Canada, I have reports of some lawyers not doing arbitration any more because they couldn’t have it on their conscience to continue—because of lawyers’ make-work tolerated by arbitrators who also bill by the hour.

The criminal law disaster

The criminal law’s capacity for wasting taxpayers’ money and brutalizing people is almost unlimited. Crown prosecutors clog the courts with their own culture of make-work. A classic example was the murder charge against African Canadian Eric Morgan. He spent three and a half years in prison awaiting trial. The case went through some 20 motions before a judge finally said his innocence was obvious at the outset. A competent and independent disciplinary body needs to hold crown prosecutors accountable.

Charlotte Gray relates in her book The Massey Murder how the system worked in bygone times. Carrie Davies was arrested on Monday February 8, 1915 right after shooting Bert Massey, a member of the prominent family. She went to trial before a jury on Friday February 28, asserting the defence of unsolicited sexual advances and self-defence. The next day the jury returned a verdict of not guilty. It took less than three weeks from the killing to the verdict.

The imprisonment of a young Indian, Adam Capay, is among the worst of many horror stories involving First Peoples. Initially picked up, aged 18, for a minor offence, he killed another inmate in a scuffle. With people awaiting trial comprising a high proportion of the prison population, why doesn’t Canada use GPS tracking bracelets more frequently? Prison conditions may have been partly responsible for inducing Capay’s frustration and anger. After the killing, he was transferred to a federal pen in Thunder Bay, where he awaited trial in solitary confinement for 52 months. The lights were never turned off in the cell, and he didn’t even have a TV. He just sat there for 23 hours a day for more than four years. The United Nations defines more than 15 days of solitary confinement as torture. When Winston Churchill was in charge of prisons in England more than a century ago, he wrote, “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.” Canada fails Churchill’s test.

By contrast, Germany and the Netherlands, prisons provide education and skills training for employment to inmates expected to rejoin the labour force. When prisoners are treated like human beings, there are few murders and suicides, and guards have a rewarding job. The cost to taxpayers is lower than in Canada, and the repeat-offender rate is lower.

Conclusion

Canada clearly needs a combined federal and province-backed, comprehensive inquiry to set change in motion. It needs to deliver recommendations for credible accountability for lawyers and judges, and for the appointment process for judges. Also essential is an implementation plan for overhauling court processes and conditions in hell-hole jails.

US Supreme Court judge Louis Brandeis once wrote, “If we desire respect for the law, we must first make the law respectable.” The term honest lawyer shouldn’t be a contradiction in terms.

Colin Alexander is working on a book about horror stories in the justice system, and how to fix it. A shorter version of this article is posted on the blog site of the University of Windsor’s law faculty. At the website change.org, there’s a petition calling for the inquiry into the administration of justice suggested in this article. https://representingyourselfcanada.com/wheres-the-accountability-in-canadas-justice-system/


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Colin Alexander -- Bio and Archives | Comments

Colin Alexander was publisher of the Yellowknife <em>News of the North and the advisor on education for the Ontario Royal Commission on the Northern Environment. He lives in Ottawa and has family living in Nunavut. <em>


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