THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH
DEAN’S FORUM Preparing Law Students for the World of Practice | 14
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IN THIS ISSUE FEATURE COMMENTARY Dean’s Forum Prepares Law Students for the World of Practice ...................................... 14
Update from the Law Reform Commission of Saskatchewan ............................. 9 Dr. Strangebrew ........................ 11 The St. Thomas More Lawyers’ Guild of Saskatoon Inc. .......... 13 Enforcement of Municipal Bylaws: A Primer ...................... 17 PRO BONO SPOTLIGHT Breaking the Mold ................... 21 POSTCARD FROM A LAWYER Ireland in Ten Days .................. 22 STUDENT CORNER
The Jordan Principle ................ 25
Meet the Executive .................... 4 President’s Message .................. 5 COMMENTARY The Led Zeppelin Plagiarism Trial ...............................................7
Photographs: Cover and second page are provided courtesy of The College of Law, University of Saskatchewan.
ITEMS OF INTEREST Call for Nominations ............................................................................................. 18 Gown to Gown Lawyers’ Charity Gala .............................................................. 25 Save the Date: 2017 Mid-Winter Meeting ....................................................... 26 Calendar of Events ................................................................................................ 27 Moved Offices? ....................................................................................................... 27
EDITORIAL BOARD ASHLEY SMITH Editor Saskatoon Police Service SCOTT BELL MacPherson Leslie & Tyerman LLP KATE CRISP Scharfstein Gibbings Walen & Fisher LLP TRISTAN CULHAM MacPherson Leslie & Tyerman LLP JARED EPP Robertson Stromberg LLP JACKIE FRANCIS Francis & Company LEAH HOWIE Law Reform Commission of Saskatchewan LINDSAY HJORTH University of Saskatchewan AMJAD MURABIT WMCZ Lawyers MICHAEL SCHERMAN Blake, Cassels & Graydon LLP ALIXANDRA STOICHEFF MacPherson Leslie & Tyerman LLP JAMES STREETON Wardell Gillis HANNAH ZIP Knott den Hollander BRENDA HESJE Executive Director CBA Saskatchewan
LAYOUT & DESIGN Kayla Stuckart BarNotes is a quarterly publication of CBA Saskatchewan. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel. CBA Saskatchewan represents more than 1,200 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice. BarNotes is published 4 times per year and circulated to over 1,200 legal professionals. If you are interested in advertising, please contact Brenda Hesje, Executive Director, email@example.com. © CBA Saskatchewan 305,135 - 21st Street East Saskatoon, SK S7K 0B5 www.cbasask.org
Fall or Winter? ASHLEY SMITH | SASKATOON POLICE SERVICE
ith the recent snow we experienced throughout the province, I felt like this editor’s message should be for the winter issue as opposed to the fall issue. As we all put on our winter tires and pull out our winter jackets, hopefully you will enjoy a few minutes of escape with our most recent issue of BARNOTES.
The feature of this issue is the Dean’s Forum on Dispute Resolution and Access to Justice at the University of Saskatchewan College of Law. Student working groups enrolled in this course at the College of Law research, consult with justice system stakeholders and develop policy discussion papers and presentations on their respective topics. Students provide participants with their papers in advance and present their findings to the Forum. This past year included over two dozen justice system stakeholders from across the province. In this issue, students and others involved with the Forum share their thoughts about this exciting initiative. Thanks to Brea Lowenberger and Sarah Trefiak at the College of Law for helping make this feature happen. I hope you enjoy reading Shawn Moen’s story of his journey from lawyer to beer brewer. Shawn’s Saskatoon brewery, 9 Mile Legacy Brewing Company, is definitely worth the visit. Kurt Dahl discusses the recent trial over Led Zeppelin’s “Stairway to Heaven”. Even if you don’t practice entertainment law, any music lover will enjoy reading about this case.
LETTERS TO THE EDITOR
If you would like to dream of a getaway for a few moments, Dean Stanley tells you about his recent trip to Ireland. Nothing like a little inspiration for your 2017 vacation planning! This isn’t all, as there are many other exciting articles which await you in this issue!
Lastly, I would also like to acknowledge some recent changes to our editorial board with two new additions. Please welcome Lindsay Hjorth and Leah Howie.
We are always looking for your article submissions and feedback, so please do not hesitate to contact me with any inquiries or questions. On behalf of the BARNOTES Editorial Board, happy reading!
Lindsay Hjorth discusses the recent R v. Jordan case from the Supreme Court of Canada. Knowledge of this case is a must, even for the non-criminal law practitioner, given its importance to the justice system.
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MEET THE EXECUTIVE | 2016/2017
NEIL ROBERTSON, QC
MERCHANT LAW GROUP LLP Ph: 306-227-2222 firstname.lastname@example.org
MCKERCHER LLP Ph: 306-565-6526 email@example.com
SHARON PRATCHLER, QC
Legislation & Law Reform Chair
SASK. MINISTRY OF JUSTICE Ph: 306-787-5584 firstname.lastname@example.org
TROBERT LAW Ph: 306-634-2616 email@example.com
SASK. MINISTRY OF JUSTICE Ph: 306-787-8207 firstname.lastname@example.org
Ph: 306-535-3139 email@example.com
The CBA Saskatchewan Executive Committee is responsible for the regular activities, planning and administration of the Branch. CHRISTOPHER WEITZEL
Professional Image Chair
SASK. GOVERNMENT INSURANCE Ph: 306-775-6432 firstname.lastname@example.org
CBA SASKATCHEWAN Ph: 306-244-3781 or 1-800-424-8288 email@example.com
You are invited to contact any member of the Executive Committee with questions, concerns or suggestions.
PRESIDENTâ€™S MESSAGE NEIL ROBERTSON, QC
s incoming President, I want to first pay tribute to the Past Presidents, especially the immediate Past President Sharon Pratchler, QC, who is taking a well-deserved sabbatical with her husband Tom Irvine, QC, and son Graeme. The Past Presidents and many other CBA volunteers are responsible, along with our valued staff, for producing the many events and publications, which all of us enjoy over the year. Sharon played a key role at the National Board of Directors in accomplishing a major reform of the CBA National Governance structure. That reform was the outcome of the CBA Re-Think Initiative over the past few years, which involved other CBA Saskatchewan members, including Past Presidents Gail Wartman, QC, and Kylie Head, QC, who served on the CBA Re-Think Steering Committee. The proposed alternative models resulting from that process were controversial. Sharon then chaired a group which was able to achieve consensus on a compromise model. This model was adopted by the National Council in Ottawa this past August during the Resolutions section of the CBA Legal Conference, which was ably chaired by Bryan Salte, QC. The changes, which take effect next year, will reduce the size of the National Board and abolish the National Council. Those bodies had grown in size, likely seeking to provide more representation of different interests, but became unwieldy.
The National Board will be elected by a body comprised of the National Board, National Section Chairs and Branch Presidents, with regard to skills and diversity criteria. The National Board will be reduced in size from 23 voting members to 14 voting members. Members will serve staggered two year terms. These changes are intended to provide more effective governance and reduce the expense of national governance. This will be also the last year that the Branch Presidents serve on the National Board. Each provincial and territorial Branch will continue to have representation on the National Board, along with a representative from the Canadian Corporate Council Association. The plan is to appoint the National Board from outside the Branch Executives to allow the National Board members to focus on their role and duties as National Board members, while continuing to provide representation from across Canada. While the choice has been made, there remain many details to work out over the next year before its implementation. These reforms should provide a structure more conducive to proper governance and future success of the CBA.
CONTACT THE PRESIDENT Ph: 306-535-3139 firstname.lastname@example.org
The changes, which take effect next year, will reduce the size of the National Board and abolish the National Council. Those bodies had grown in size... but became unwieldy.
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THE LED ZEPPELIN PLAGIARISM TRIAL KURT DAHL | MURPHY & COMPANY
he line between inspiration and plagiarism is a fine one. Everyone from Shakespeare to Beethoven to the Beatles has been accused of stealing ideas from those that came before them. As poet T.S. Eliot famously wrote: “Immature poets imitate; mature poets steal.”
Rock legends Led Zeppelin were recently under the microscope for apparent plagiarism in their classic “Stairway to Heaven,” largely considered one of the greatest rock songs of all time (and apparently the most played rock song in the history of radio). The song they were accused of plagiarizing is a rather obscure instrumental called “Taurus” by an American band called Spirit, released in 1968. “Stairway” was written in 1970 and released in 1971. While the statute of limitations for civil copyright infringement under U.S. law is three years, courts have often read that as only restricting back royalties to the previous three years, not barring old infringements. Which is why this case could be brought 45 years after the release of the song.
The case was brought by Spirit’s bassist Mark Andes on behalf of Spirit’s guitarist, Randy Wolfe (aka Randy California), who wrote the guitar segment that the two songs allegedly have in common. Mr. Wolfe drowned in 1997 in the Pacific Ocean while trying to save his drowning son.
Wolfe’s lawyer was seeking a songwriting credit for his client, and was willing to settle for $1 if the songwriting credit was given. The $1 offer would, however, come at a much larger price: Mr. Wolfe’s estate would share in all future songwriting revenues from the song. As of 2008, “Stairway” had reportedly earned $562 million, and could be the single most profitable song in rock history. Needless to say, there was a lot riding on the jury’s decision.
“When the Levee Breaks” Plagiarism Trials Becoming More Prevalent
This trial is the second high-profile jury trial to make headlines in the last two years, a trend that some industry experts say may open the floodgates to more infringement lawsuits.
In 2015, a Los Angeles court awarded more than $7.4 million to the family of R&B legend Marvin Gaye after finding that the Robin Thicke and Pharrell Williams hit “Blurred Lines” had copied elements of Mr. Gaye’s 1977 song “Got to Give It Up.” The judge later reduced that amount to about $5.3 million, and the case is now on appeal. In the last year, plagiarism suits have been brought against Kanye West, Jay-Z, Beyonce, Justin Bieber and Ed Sheeran among others. In short, there has been a major increase in ambulance chasers in the music business since the Thicke verdict.
“Good Times Bad Times” The Legal Test for Plagiarism
The law states that anything that reflects a “minimal spark” of creativity and originality can be copyrightable, including melody, chord progression, rhythm and lyrics. In the event of a trial, the person claiming infringement must prove two things: Access and Substantial Similarity.
Wolfe’s legal team first had to prove that Page and Plant had heard, or could reasonably be presumed to have heard, “Taurus” prior to writing “Stairway.”
“Stairway” was recorded between December 1970 and January 1971, and was first performed in March 1971, according to court documents. Before that, Zeppelin and Spirit toured the same venues and played at the same festivals on the same day at least three times between 1968 and 1970. At trial, both Plant and Page testified that they did not remember meeting the members of Spirit or hearing “Taurus” at any time, despite the fact that the Spirit album was found in Page’s (admittedly vast) record collection.
There was also an amusing anecdote from a Spirit member involving rounds of drinking and snooker with Plant after a Spirit gig in 1970, but Plant testified that he only remembered his car crash on the way home, not hearing or meeting Spirit that night. While the car crash story would FALL 2016 7
seriously undermine the credibility of a witness in most trials, I think it actually endeared Plant to the jury in this rock and roll trial, and the issue of access wasn’t as clear cut as I thought it might be. (Author’s note: singers get away with everything!).
2) Substantial Similarity The real question in this trial was whether the two songs were substantially similar to the average listener. The more elements that the two songs have in common, the more likely they are substantially similar. In other words, “sounding alike” is not plagiarism; there must be many similar elements that combine to create an egregious violation of the copyright in the other song. The jury ruled that the elements of “Taurus” that were original and therefore copyrightable were not substantially similar to “Stairway,” and the parts that were similar were not unique or original.
And therein lies the rub. The elements of “Taurus” that were used in “Stairway” were not unique and original. To quote legendary guitarist Joe Walsh: “The Stairway claim was based on the four chord descending progression at the beginning of the song…Randy California came across [it] and used [it] for the Spirit piece - he didn’t write it. He used it. The Grandfather of these progressions is: C, Am, F, and G. Starting in the early 1950’s, there are probably 500 of these songs, all with those four chords - but each with different melodies and words. THAT should be the criteria for claims…”.
To paraphrase Joe Walsh: you can’t copyright a chord progression, but when original lyrics and vocal melodies are added, something changes. The fact is, many songs remind you of a song you’ve heard before, and that’s what makes them catchy. CBC Radio examines these similarities daily with their “Distant Cousins” feature, which apparently has listeners sending in dozens of songs a week that sound “substantially similar.” Now, are the two songs similar? Without a doubt. But similarity does not equal plagiarism; “sounding alike” doesn’t violate a copyright. There must be many similar elements that combine to create an egregious copying of one song by another.
The major similarity between “Taurus” and “Stairway” is a descending chord progression. Musicologist Alex Ross devoted a chapter of his book Listen to This to the history of what is often called the basso lament – a bass line that descends chromatically (i.e. a half-step at a time) from the tonic note to the dominant. The basso lament arose in operatic music of the early 17th 8 BARNOTES
century, and is incredibly common in Baroque music. The progression became less common in the Romantic period, but returned to fashion in pop music of the twentieth century, particularly in 1960s and 1970s folk and rock. The pattern can be found in everything from Bob Dylan’s “Ballad of a Thin Man” to the Eagles’ “Hotel California” to “Chim Chim Cher-ee” from “Mary Poppins.” This so-called basso lament can be found in thousands of songs around the world, many of which share the same chords as “Taurus” and “Stairway.” Zeppelin’s lawyer was keen to point this out, and successfully so. For me, this was the argument that won the day – that you can’t copyright a chord progression, and a chord progression is what this case was all about.
“Bring it On Home” How This Verdict Affects You and I
The jury came back with the right verdict. As much as my personal biases lead me to root for David in a David vs. Goliath battle (and Page and Plant were surely Goliath in this case), this was the right decision for a number of reasons. First, it will slow down the ambulance chasing that has been happening in the music industry these last few years.
Second, the verdict is a good thing for creativity and art. Artists of all kinds, especially songwriters, need to be allowed some measure of borrowing. It’s asking an awful lot of musicians to clear their heads of everything that they’ve heard when writing a song…to come at it with a clean slate. The tradition in rock, blues, jazz and many other genres is one of borrowing bits and pieces here and there from the giants that have come before you. The modern-day insistence on clear-cut originality reflects a misunderstanding about the nature of creativity. It’s the second part of the T. S. Eliot quote above that I love and is often overlooked: “a good poet welds his theft into a whole of feeling which is unique.” In other words, all inspiration is borrowed from what has come before, but can be turned into something entirely novel. That is the alchemy of art and of songwriting: taking the common metal around us and turning it into gold. This is the alchemy performed by Bach and Mozart, Shakespeare and Tarantino, the Beatles and the Rolling Stones.
This verdict reaffirms the creative rights of songwriters to be songwriters. Demanding that our geniuses create art in a vacuum is not only unrealistic, it would in fact kill the creativity that copyright aims to protect. www.lawyerdrummer.com
UPDATE FROM THE LAW REFORM COMMISSION OF SASKATCHEWAN LEAH HOWIE | LAW REFORM COMMISSION OF SASKATCHEWAN
he Law Reform Commission has recently posted two consultation papers for comment on its website.
The Commission has undergone an extensive review of The Intestate Succession Act, 1996, and in the Reform of The Intestate Succession Act, 1996: Consultation Paper, the Commission outlines several aspects of the Act that could be reformed. Since 1996, the other Western provinces have all extensively revised their intestate succession legislation. The consultation paper raises the following questions: • Is the spousal preferential share in the Act in need of reform? • Is the treatment of separated spouses under the Act in need of reform? • Is the treatment of common-law spouses under the Act in need of reform? • Should children conceived posthumously with the deceased’s genetic material, stepchildren and informally adopted children be able to inherit from an intestate? • Should the doctrine of advancement be abolished or reformed? • Should next of kin be determined by the parentelic system of distribution? • Should the Act contain provisions for determining which law applies to immovable property located in Saskatchewan if the intestate is domiciled outside of the province? • Are there any cultural practices relating to intestate succession that should be incorporated or referenced in the Act?
sk.ca), fax (306-966-5900), or in writing (Room 185, College of Law, 15 Campus Drive, Saskatoon SK S7N 5A6). Alternatively, comments can be provided via a survey located on the Commission’s website. The deadline for commenting is October 31, 2016. After reviewing the comments received during the public consultation, the Commission will release a final report with recommendations to the Minister of Justice for reform of the law. The Commission is always open to receiving proposals for potential law reform projects from members of the Bar. Both of these current projects arose from suggestions received from Saskatchewan lawyers. If you have an idea for a new project that falls under the Commission’s legislated duty to “keep under review all the law of the province, including statute law, common law, and judicial decisions, with a view to its systematic development and reform, including the codification, elimination of anomalies, repeal of obsolete and unnecessary enactments, reduction in the number of separate enactments and generally the simplification and modernization of the law”, please get in touch with Leah Howie at firstname.lastname@example.org.
The Commission undertook a more limited review of The Homesteads Act, 1989. The Reform of The Homesteads Act, 1989: Consultation Paper looks at two issues. The first is whether section 6(4) of the Act, which prevents a person acting under a power of attorney from consenting to a disposition of the homestead, should be reformed. The second is whether the Act should be clarified to either specifically include or exclude mines and minerals from the homestead. The Commission relies on public participation in order to inform its recommendations for reform. Comments from members of the Bar are greatly appreciated. Comments can be sent by email (director@lawreformcommission.
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HOW I LEARNED TO STOP PRACTICING LAW AND EMBRACE BEING A LAWYER SHAWN MOEN | 9 MILE LEGACY BREWING
tanley Kubrick’s legendary Dr. Strangelove: Or How I Learned to Stop Worrying and Love the Bomb is a great satirical look at what happens when a decision is made within a system and a series of safeguards conspire to make an outcome unavoidable. Dr. Strangelove almost needs no introduction. Set in the height of Cold War tensions, an insane base commander initiates several nuclear bombing missions into Soviet Russia. Code words, silos of authority and diplomatic niceties all operate as “safeguards” that prevent “Flight Plan R” from being called back. The eventual intervention is ultimately too late – once the war room is finally able to call back the lone remaining American bomber, the communication equipment on the plane has been destroyed by an errant Soviet missile. The movie ends with the iconic shot of Slim Pickens riding the H-Bomb into glory complete with a waving cowboy hat, triggering the Soviet Doomsday device and setting off a nuclear apocalypse of sorts. Hilariously, grim stuff. It has been almost a year and a half since my long-time friend and I opened the doors of Saskatchewan’s smallest brewery – 9 Mile Legacy Brewing. (Obligatory sales plug: you can find us in Riversdale beside the Farmers’ Market, on the web (www.9milelegacy.com) and at some of Saskatoon’s finest dining establishments and watering holes!) For a long time, our brewery was a work in progress. Garrett and I first started brewing together in roughly 2007 and I made the decision to “take the plunge” and leave my corporate law gig at MLT back in 2013. We
started out as many homebrewers first take to the hobby – in our garages, backyards and kitchens. The dream of “owning our own brewery” first took shape almost a decade ago. For me personally, the seed of owning my own business and pursuing our dream was likely planted even further back – during my first days at the College of Law. We are told early on as law students that our law degrees are keys that can unlock a host of career opportunities and that our legal training carries with it one of the most versatile skill sets that anyone can hope to enjoy. I have always fervently agreed with both points.
Then, we graduate and are admitted to the bar. The circumstances of practice and complexities of law encourage us to specialize, continue down traditional career paths and often limit our opportunities as lawyers. This is generally with good reason.
We are expected to be “experts” and provide advice upon which clients deserve to unwaveringly rely. We both need and want job security, financial success and career achievement. All of those aims are legitimate and laudable and require specialization. However, they also create a series of safeguards that can prevent us from wavering from our mission of having a typical career as a “lawyer”.
It would be a stretch to describe my legal career as having been typical. I bounced around - not just from job to job, but from practice area to practice area, private to public (and back to private) and from practice to academia to corporate counsel. I started as a litigator and ended up as a solicitor. Experience in one subject matter informed practice in another. I became the guy that caught the files with legal problems that didn’t fit neatly into a practice area. It became a role in which I took pride and hopefully added value for my
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clients. But it certainly would not be considered specialized.
I have always viewed my law degree as allowing me the versatility to explore the profession, stretch my intellectual legs and contribute to my community in a host of different ways. I worked hard to avoid what I saw as the unavoidable. I didn’t want to end up down a path that limited other paths, though it may have been accompanied by financial reward, security and accolades. I didn’t want to end up being Kubrick’s bomber that couldn’t be called back from a mission. This approach required that, as a young lawyer, I was conscious of developing and preserving optionality. I had to make hard decisions and abrupt career detours. It is open for debate whether those decision or detours would be considered “the right ones” by everyone, but they were the right ones for me at the particular time. In retrospect, this approach also
made my departure from traditional conceptions of the profession all but inevitable. From day one, I have been Kubrick’s bomber – I just hadn’t yet identified my flight path.
To me, being a “lawyer” has always been about much more than giving legal advice. None of what follows is novel. Like few other professions, we develop the ability to solve problems, keep secrets and avoid disaster. We bring people together and we protect people when they are divided. We care about and serve our communities and have a good idea as to what is “fair”. Our unique role and skills can flourish whether in traditional or nontraditional settings. Just a couple of years into business, 9 Mile Legacy is only learning to crawl. I still have a pile to learn about how to effectively lead our business through its day to day challenges and biggerpicture strategic development. Despite those challenges, my time with the law
has equipped me with unique tools for my role. I have experience dealing with conflict and difficult people, engaging with our regulators and analyzing risk. I can think a few more steps ahead and hopefully guide our team through the turbulence before it hits. We are rarely caught by surprise. I also have a good sense about how we, individually and as a business, should fit within our community from a commercial, social and ethical perspective. I am confident we would not have the same foundation, serve the same role in our community and enjoy the same opportunities without my having been a lawyer and experienced practice in its several different iterations. I am also confident that adapting my legal training and practice experience to the pursuit of our business, and deciding to take a swing at making beer for a living, has made me a better and more satisfied lawyer.
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THE ST. THOMAS MORE LAWYERS’ GUILD OF SASKATOON INC. MARIE STACK | MCKERCHER LLP
he St. Thomas More Lawyers’ Guild of Saskatoon Inc. was incorporated by a group of Saskatoon lawyers in June of 2002. The Guild was modeled after similar non-profit organizations in cities throughout Canada and the United States. The membership of the Guild has grown significantly since its inception and is not restricted to individuals of Catholic faith.
The Guild was created to enhance appreciation for, and the observance of, integrity and the highest ethical standards in the practice of law and in the administration of justice, as demonstrated by its namesake. The Guild also strives to promote fellowship and spiritual growth throughout the legal community. In pursuit of these purposes, the Guild organizes and supports various events and activities. The Guild partners with St. Thomas More College and the Canadian Bar Association to bring nationally-renowned speakers, such as former Chief Justice Donald Brenner of the B.C. Supreme Court, Federal Court of Appeal Justice Denis Pelletier, Mr. Phil Fontaine, former Supreme Court Justice Ian Binnie and, most recently, physician and author Dr. Gabor Mate to the CBA Saskatchewan Mid-Winter Meeting to deliver the John Stack Lecture on Ethics and Civic Responsibility.
With the invaluable support of St. Thomas More College, the Guild hosts the annual Red Mass and Banquet. The Red Mass has a rich history, most likely dating back to the 13th Century when it officially opened the Fall term of the courts for most European countries. The name “Red Mass” became a tradition because of the red robes worn by the judges and the red vestments worn by the priests. At the Red Mass, we publicly invoke God’s blessing upon those entrusted with the administration of justice, and upon all public officials who serve the common good. The Red Mass is followed by a Banquet with a notable guest speaker. Some of the speakers at past Red Mass Banquets include former Chief Justices E. Bayda and J. Klebuc of the Saskatchewan Court of Appeal, former Chief Justice F. Gerein of the Saskatchewan Court of Queen’s Bench, Chief Justice M. Popescul of the Saskatchewan Court of Queen’s Bench, former Chief Judge G. Seniuk of the Provincial Court of Saskatchewan, former Ministers of Justice and Attorneys General Frank Quennel and Don Morgan, former Deans Sanjeev Anand (now Judge Anand of the Provincial Court of Saskatchewan), Beth Bilson and Brent Cotter of
the College of Law of the University of Saskatchewan and Rabbi Claudio Jodorkovsky.
The Red Mass and Banquet will be held this year on October 13, 2016. The Honourable Chief Judge J. Plemel of the Provincial Court of Saskatchewan is our guest speaker. The Red Mass Banquet typically attracts a great number of Catholics and non-Catholics, from both inside and outside the legal community. Invitations to those who have attended the Red Mass and Banquet in the past will be going out closer to the event. If you have never attended the Red Mass and Banquet and are interested in doing so, or would like to become a member of the St. Thomas More Lawyers’ Guild, please contact me at email@example.com.
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DEAN’S FORUM PREPARES LAW STUDENTS FOR THE WORLD OF PRACTICE BREA LOWENBERGER | COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
tudents who have participated in the Dean’s Forum on Dispute Resolution and Access to Justice at the College of Law are now preparing to begin, or have recently began, their legal careers. We asked students and alumni who have been involved in the Dean’s Forum project how they think the program has prepared them to be a “lawyer of tomorrow.” Here is what they had to say:
JD’14, Crown Counsel, Justice Innovation Division, Ministry of Justice “The way the Dean’s Forum prepared me to become one of tomorrow’s lawyers is by giving me a voice and a seat at the table alongside leaders of our justice system. Those behind the Dean’s Forum recognized that reimagining the justice system to address the access to justice crisis is the type of challenge that can benefit from broad perspectives, including those of tomorrow’s lawyers and leaders. In this way, rather than simply provide me with theory and tools to contribute at some future time, the Dean’s Forum gave me a voice now and embraced me as a vital member of the justice system of today.”
JD’16, Student-at-law Clerk, Provincial Court of Saskatchewan “Participation in the Dean’s Forum was an exceptional experience for me. As someone who has and continues to enjoy working with the public, “Putting the Public First” is a great initiative for me to help out with and one that continues to shape my work as an articling student and will carry on through my work as a young lawyer. Access to justice remains a large issue, and there are a number of organizations across the city, too numerous to name, that continue to provide these services. We had the fortune of learning this through our participation in the Dean’s Forum, but must continue to make the public aware of 14 BARNOTES
these services in order to expand the reach of access to justice initiatives. Equally as important is the ability to work within the community from the perspective of those most affected by existing gaps in the system.”
Third Year Student, 2016 Dean’s Forum Participant -”Putting the Public First” Group “The Dean’s Forum taught me that just being aware of issues in access to justice is not enough because fixing these major problems is not a passive process. It will take a real shift in the way future lawyers think and I hope to be at the forefront of that change. Participating in the Dean’s Forum made me feel like I was taking my first step away from passive learning and my first step towards active learning and being able to actually impact how people think about access to justice.
Law is not insulated from the rest of the world. It is interconnected with everything we do and is a major part of our communities. Learning that law does not just belong to lawyers will always affect the way I practice”
Third Year Student, 2016 Dean’s Forum Participant - “Accessibility to Queen’s Bench Court and Court Procedures” Group “You can read the Cromwell Report or the CBA’s Equal Justice Report and appreciate, intellectually, what the access to justice problem is about. But being part of an initiative formed in response to the many calls to action in those reports is truly an enlightening and gratifying experience. I was able to witness first-hand what justice reform can look like, and most beneficially, this happened before I entered the profession myself.
I valued being able to use and develop my communication and teamwork skills through my work on the Dean’s Forum,
and I was even able to take major strides forward in feeling like I “belong at the table.” Grappling with the access to justice problem whilst still a student will undoubtedly aid me in appreciating client needs, and even those of the public, once I am a practicing lawyer.”
Access to Justice Coordinator and Facilitator of the Dean’s Forum course on Dispute Resolution and Access to Justice “As Access to Justice Coordinator, I have the privilege of facilitating the Dean’s Forum course and observing how the experience prepares students to be a “lawyer of tomorrow.” I also have the privilege of collaborating with stakeholders to implement ideas that arise from the Dean’s Forum program that will improve access to justice for Saskatchewan residents.”
THE HONOURABLE MR. JUSTICE CROMWELL
Recently retired Justice of the Supreme Court of Canada and Chair, National Action Committee on Access to Justice in Civil and Family Matters
One of the most exciting outcomes of the Dean’s Forum, however, is the creation of a centre for access to justice research. This centre will be used as a focal point for research and analysis that will help in implementing access to justice initiatives on an even larger scale. By working collaboratively, we can and we will improve access to justice for everyone in Saskatchewan.”
The inaugural Saskatchewan Access to Justice Week will be held October 18-25, 2016. The objectives of the week are to engage the public, law students, and members of the justice system in the access to justice conversation; and to highlight access to justice related programs, initiatives, and resources.
The week will conclude with a public lecture delivered by the Honourable Mr. Justice Cromwell, recently retired Justice of the Supreme Court of Canada on the topic of access to justice. The event is being hosted by the board of editors for the Saskatchewan Law Review and will take place on October 25, 2016 at 7:00pm in the Neatby-Timlin Theatre, Room 241, Arts Building, U of S campus. All are welcome.
LEARN MORE: law.usask.ca/deansforum
“As part of my 2014 crosscountry tour as Chair of the National Action Committee on Access to Justice in Civil and Family Law Matters, I attended and participated in the first Dean’s Forum meeting in which students were involved. I would like to say how impressed I was by the Forum in bringing together such a wide cross-section of key players and tapping into the energy, enthusiasm and skill of law students. The Dean’s Forum has helped to build a strong foundation for future research and initiatives related to Access to Justice in Saskatchewan, and that is something the participants can be tremendously proud of.”
MARTIN PHILLIPSON Dean, College of Law
“We are really proud of the Dean’s Forum initiative at the College of Law and the very unique opportunity it provides our students to work alongside justice stakeholders in Saskatchewan.
Note: Copyright of the photograph of Mr. Justice Cromwell is held by the Supreme Court of Canada with credit given to photographer Philippe Landreville.
FALL 2016 15
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ENFORCEMENT OF MUNICIPAL BYLAWS: A PRIMER JAMES STEELE | ROBERTSON STROMBERG LLP1
Few laws affect our ordinary lives more than municipal ordinances. From complaining of a dog’s incessant barking to walking through harmoniously-developed neighbourhoods, we see the necessity and effect of these bylaws every day. Enforcing these laws is an important function of local governments. With over 700 municipalities in Saskatchewan, it is also an area many litigators will encounter at one point or another. This paper, therefore, seeks to provide a brief introduction to the process and practicalities of bylaw enforcement.
Jurisdiction to enact Bylaws:
The Municipalities Act, SS 2005, c M-36.1 (the “Act”) provides the legislative framework for most of Saskatchewan’s municipalities to legislate over broad spheres of jurisdiction including peace, order, safety and welfare, as well as specific matters such as nuisances, vehicle use, businesses and animals.2
Within these realms, municipal powers will be interpreted generously. As the Supreme Court has held, local governments’ “closeness” to the members of the public who live, or work, on their territory make them more sensitive to the problems experienced by those individuals”.3
Municipal Discretion in Enforcement:
A municipality possesses discretion when deciding whether to enforce
its bylaws.4 The mere passing of a bylaw does not cast any legal duty on the municipality to see to its enforcement.5 As a result, local governments may determine to prosecute some residents for breaches of a bylaw, but not others.6 Perceived inequality of enforcement will offer no defense to an accused.7
The rationale for this discretion was explained by the Ontario Court of Appeal in Toronto v. Polai: Municipal council has a discretion as to when it will prosecute for a breach of or sue to enforce the provisions of the zoning bylaw. To deny the discretion in municipal council would be to place the most technical breach of the by-law beside the most blatant and to remove from consideration the harm done to the offender and the value to the community of the proposed proceedings when considering when they ought to be taken. The discretion when to prosecute or when to sue which rests with the municipal corporation or the comparable discretion which rests with public authorities charged with the responsibility of enforcing the rights of the public when they are violated, is one of the great strengths of our system of justice.8 [emphasis added].
That said, exceptions to such discretion include: •
Instances where mandatory enforcement
is required by the bylaw itself; or Bad faith considerations underlying the decision not to prosecute. 9
Once a municipality has chosen to enforce, it becomes subject to the usual requirements of operational care in carrying out such decision.
The Enforcement Process:
Bylaw enforcement will typically involve four steps: • Receiving and investigating a complaint; • Demanding compliance by the offending party; • Inspection, seizure, or, prosecution; and • Rectification.
Once a municipality has investigated a complaint, its first step may be a written warning, or immediate service of a notice of violation. If the problem persists, section 8(2) of the Act offers a number of remedies to a municipality. These include: • • • •
Imposing fines or other penalties; Inspecting for contraventions; Moving, seizing, impounding, immobilizing or selling of property; Seizing, impounding, immobilizing, selling or otherwise disposing of vehicles to deal with vehicle offences.
FALL 2016 17
CALL FOR NOMINATIONS
Preparing for Prosecution:
In many cases, a violation can be dealt with through inspection or another self-help remedy. Other cases may, however, call for nothing less than proceeding to court. In such case, you should begin by carefully reviewing the bylaw at issue. Is it within the jurisdiction of the municipality? Is the offence clearly drafted, and free of ambiguity or vagueness? Is there an express mechanism already prescribed for enforcement? The limitation period of two-years will rarely be a problem. Some defendants attempt to rely on section 4(3) of The Summary Offences Procedure Act, 1990, SS 1990-91, c S-63.1, which at first appears to mandate a six-month limitation: 4(3) If, in the applicable Act or regulation relating to a particular offence, no time limit is specified for laying an information or issuing a summary offence ticket, the information shall be laid or the summary offence ticket shall be issued within six months from the time when the matter of the complaint or information arose unless the prosecutor and the defendant agree to waive the six-month limitation [emphasis added]
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However, such an interpretation overlooks the words, “if, in the applicable Act…no time limit is specified. This phrase refers us to section 386 of the Act, which clearly specifies a two-year time limit: Prosecutions 386 No prosecution for a contravention of this Act or a bylaw may be commenced more than two years after the date of the alleged offence.
Once evidence is gathered and witnesses interviewed, you will issue and personally serve the formal document summoning the offender to court. The Summary Offences Procedure Act, 1990, SS 1990-91, c S-63.1 (“SOPA”) governs prosecution of municipal and provincial offences in Saskatchewan. For municipal bylaw prosecutions, two processes are available: • The summary conviction provisions of the Criminal Code, R.S.C. 1985, c. C-46.; or • The summons ticket procedure contained within Part III of SOPA itself.
This paper cannot substitute for a close reading of SOPA. However, the basic process consists of: • Service of a summons, informing the defendant of the alleged offence;
• An initial appearance before a justice of the peace. A plea will be entered and a trial date set; and • The trial following a few months later.
The trial itself will be governed by normal procedural and evidentiary rules. All prosecution documents and intended witnesses should be disclosed to the defendant before trial, and the Crown must be prepared to prove all elements of the bylaw offence beyond a reasonable doubt. In most smaller centers, the matter will usually be heard before a justice of the peace. The prosecution may be responsible for arranging both a clerk and a stenographer for the proceedings. Be sure to also bring a certified copy of the relevant bylaw to enter into evidence. More than one prosecution has failed at the outset due to this simple oversight. If a conviction is entered, the defendant will be ordered to pay the imposed penalty sum, as well as a victim surcharge pursuant to The Victims of Crime Act, 1995, S.S. 1995, c. V-6.011. Beyond a fine, many situations will also see a municipality seek an order requiring compliance.
Dangerous Animal Complaints
Before concluding, one type of municipal proceedings deserves special mention.
Dangerous animal complaints result when an animal has attacked or threatened another person or animal. These complaints often do not involve bylaws at all, but can proceed under section 375 of the Act. The test for a dangerous animal order is simple:
Declaration of dangerous animal
375(1) On hearing a complaint that an animal in a municipality is dangerous,
a judge may declare the animal to be dangerous if the judge is satisfied on reasonable grounds that: (a) the animal, without provocation, in a vicious or menacing manner, chased or approached a person or domestic animal in an apparent attitude of attack; (b) the animal has a known propensity, tendency or disposition to attack without provocation, to cause injury or to otherwise threaten the safety of persons or domestic animals; (c) the animal has, without provocation, bitten, inflicted injury, assaulted or otherwise attacked a person or domestic animal; or (d) the animal is owned primarily or in part for the purpose of fighting or is trained for fighting
Any individual can seek a dangerous animal declaration. However, local governments will often fund these proceedings in order to deal with a notorious animal in the community. Orders seeking euthanasia are rare, and a first-time offending animal will generally receive the terms in section 375(5) of the Act, i.e. fencing, leashing, muzzling, signage, etc.
Bylaws are the instruments by which municipalities further the safety, health, and well-being of their citizens. While no local government welcomes the time and cost of court proceedings, a council must be ready to enforce its laws. Prompt and decisive action will: • •
Avoid future problems through proactive enforcement, lest a situation worsen over time.
For those who may interact with this area in the future, I hope the above offers a general introduction of the process involved. 1
I am grateful, with the usual caveats, to
Monique Lambert-Wignes and M. Kim Anderson Q.C. for offering their insights.
Cities and northern municipalities possess
R. v. Guignard,  1 SCR 472, 2002 SCC 14
Freitag v. Penetanguishene (Town) (2005), 202
their own statutes.
(CanLII) at para 17.
O.A.C. 227 (Ont. Div. Ct.), at para. 13.
5 Kent v. Laverdiere, 2011 ONSC 5411 (CanLII) at para 145. 6
Ian MacF. Rogers, The Law of Canadian
Municipal Corporations, loose-leaf (2004-15) 2d ed (Toronto: Thomson Carswell, 2015) at 485. 7
R. v. Joy Oil Co. (1963), 1963 CarswellOnt
 1 O.R. 483, 8 D.L.R. (3d) 689 (C.A.),
17 (Ont. C.A.).
aff’d  S.C.R. 38, 28 D.L.R. (3d) 638, cited in R. v. Geransky Bros. Construction Ltd., 2011 SKQB 88 (CanLII), 376 Sask R 83. 9
See Re Cosentino and the City of Toronto (1934)
O.W.N. 715. See also Lester v. Smith, 1990 CarswellOnt 4297 (Ont. Gen. Div.)
Ensure that all citizens are held to the same standards as their neighbours; Demonstrate that a municipality takes its public enforcement role seriously; and
FALL 2016 19
PRO BONO SPOTLIGHT
BREAKING THE MOLD CARLY ROMANOW | PRO BONO LAW SASKATCHEWAN
n August 2, 2016, the Liberal government announced an overhaul of the process for selecting Supreme Court justices in Canada. Normally the words “change in process” leads to a glazing over of the eyes or the dull throb of the inevitable headache from forgetting the “old” process and learning the “new” process. However, the recent changes from the Liberal government to the appointment process appear to invoke a small twitch of the cheek reminiscent of a smile or even a slight sense of optimism.
Canada currently has a prevailing and prevalent lack of diversity within the judiciary. A study released in May of this year provided the eye-opening statistics stating that of the 2,160 judges in the provincial superior and lower courts only 1 per cent are aboriginal and 3 per cent are racial minorities.1 This trend can also be witnessed in Saskatchewan with an aboriginal population making up roughly 16% of the population yet only 2 aboriginal people represented on the bench in the province.2
Despite the doom and gloom of yet another depressing statistic, the federal government’s new appointment process for the Supreme Court creates an interesting and, by appearance, more inclusive system.
An independent and non-partisan advisory board has been created to identify worthy candidates, review all applications and make recommendations. The advisory board is comprised of seven members, four nominated by the legal community and three appointed by the government, including at least two non-legal individuals.3 Some notable board members are former Prime Minister Kim Campbell (appointed by the government) who will chair the board, Jeff Hirsch, president of the Federation of Law Societies of Canada (nominated by the legal community) and Lili-Anna Peresa, president of Centraide4 of Greater Montreal (appointed by the government).5
The federal government has committed to promoting transparency to the process by allowing public access to the assessment criteria, the questionnaire that applicants must answer, and answers that don’t include personal information of the eventual nominees.6 Finally, once a nominee is selected, the nominee will attend a questionand-answer session where MPs and senators have the
opportunity to question the nominee about how they meet the criteria for the job.
It appears as though this selection process seeks to bring light to the old ways of back door deals and politicking. The new process may not be the end-all solution to the problem of lack of diversity in the judiciary, however, the fact that the federal government is making a concerted effort to make change and to propel the Supreme Court, and by effect the legal system, to evolve to become open, transparent and diverse, is a positive and encouraging step. This process change may be a drop in the access to justice bucket, but effect of its ripple has huge potential. This change in process will optimistically result in the decision makers of our legal system to accurately reflect the population in which they are mandated to serve. As Prime Minister Trudeau stated, “…a diverse bench brings different and valuable perspectives to the decision-making process, whether informed by gender, ethnicity, personal history or the myriad other things that makes us who we are”. 1 http://news.nationalpost.com/news/canada/advocates-call-forminority-judges-as-figures-show-judiciary-of-whiteness 2 Ibid. 3 http://www.theglobeandmail.com/news/politics/ottawaoverhauls-process-for-selecting-supreme-court-justices/ article31222331/ [Ottawa Overhauls Process for Selecting Supreme Court Justices] 4 Centraide is the Montreal equivalent of United Way Canada 5 Ottawa Overhauls Process for Selecting Supreme Court Justices, supra note 3. 6 Ibid. 7 http://www.theglobeandmail.com/opinion/why-canada-has-anew-way-to-choose-supreme-court-judges/article31220275/
FALL 2016 21
POSTCARD FROM A LAWYER
IRELAND IN TEN DAYS DEAN STANLEY | MCKERCHER LLP
his past year my father determined our Stanley ancestors came to Canada from Ireland, not England as we had always assumed. So, last September my fiancé Kelsey O’Brien—whose ancestry is as Irish as boiled potatoes—and I took a trip there. We only had about ten days, so our trip focused on Dublin and County Donegal, as a member of the McKercher LLP’s support staff hails from that scenic county and gave great advice on the best places to see.
We landed in Dublin at about 7am local time, and were driven to our hotel by the friendliest cab driver I have ever met. He explained to us which touristy things to avoid and which were worth doing. For example, we decided not to tour the Leprechaun Museum after he clarified for me there were no actual leprechaun bones on display there. He told us the Guinness factory tour would be full of American tourists, who we agreed are the worst, so we scratched that off the list too. He pointed out sites where members of
the 1916 Rising fought, lived, or were buried, showing genuine reverence for their sacrifice that sparked the war of independence.
After checking into our hotel, we needed breakfast if we were going to stay awake for more than a few hours longer. Like most lawyers, I am unable to function in the morning before ingesting an unhealthy amount of caffeine. So the added jet lag meant I was not lucid at all when I ordered the “Full Irish” breakfast and took a bite from a round brown disc on my plate that I assumed was a sausage patty. It was instead black pudding, which is a vile concoction of pig’s blood, salt (as if pig’s blood is not salty enough), and oatmeal. The rest of the “Full Irish” was delicious, particularly the beans, grilled tomato, and mushrooms, so I overcame the black pudding ordeal.
We spent our first couple of nights in the famous Temple Bar district, which features live music in pubs that have existed for centuries. The music ranges from traditional Irish groups, to sometimes just a lone dude with a guitar singing Radiohead covers, but overall it’s great. After a couple nights
we did become sick of the obnoxious British “hen” parties that invade the Temple Bar district to wreak shrill, screaming havoc.
Ireland’s national food, Guinness, tastes way better in Ireland than in Canada. I realize saying a given food or beverage tastes better in its country of origin is as much a travel cliché as a Canadian going to Australia then talking ad nauseum about surfing, but the difference was really noticeable. The bartenders varied widely as to why Canadian Guinness tastes like carbonated molasses while Irish Guinness is magically delicious. Their explanations included differences in water to hilarious allegations that North American pub owners don’t know how to clean their equipment properly. Another mystery is the Irish and British love for spray-tans. They inexplicably seem to range in shade between Donald Trump and Oompa Loompa. One pub advertised tickets to a Rugby match between the Irish and Welsh national teams. I had never seen pro rugby in person, and I was excited about potentially witnessing European sports hooliganism, so we bought the tickets despite my suspicion this was an obvious scam. The tickets were real, which makes me feel guilty for doubting the kindly owner of Peadar Kearney’s Pub.
Kids outside Aviva Stadium collected donations in buckets marked “Injured Players Fund”, illustrating the brutal after-effects of pro rugby. Their speed means that most times when a player kicks the ball forward the player who catches it gets crushed. The lack of padding creates an off-putting smush instead of the familiar pop of plastic
POSTCARD FROM A LAWYER
colliding heard in Canadian football games. We also watched the game go on for at least a minute while a player lay motionless on the pitch. The match was finally blown dead when the play veered toward the fallen player, just before he was trampled. Harshness of the sport aside, the crowd and pre-game songs were inspiring. Rugby is the only sport where the Republic of Ireland and Northern Ireland field a unified team. So the rugby team has its own anthem, to which virtually the entire stadium sang along. As the Jumbo Tron camera panned across the Irish players, arms around each other, all belting out the lyrics, a few of them shed tears. The crowd of around 50,000 became especially loud for the ending:
Ireland, Ire-land, Together standing tall, Shoulder to Sho-o-ulder, We answer Ireland’s call!
It was moving to see how emotional the Irish became over this unified team, even if for just one sport. Perhaps it’s a sign they are slowly moving past their long history of
conflict. Sadly, there was no hooliganism to be seen. The crowd was fun, and the locals graciously clarified various rules for us. I especially enjoyed a drunk old man behind us screaming “COME ON, LADS!” throughout the match. The crowd politely applauded the victorious Welsh team at the end of the match, rather than tearing Aviva Stadium apart in vengeance. We toured Trinity College the following morning, which holds the Book of
Kells, one of the oldest books in the world. The architecture of the library is amazing. Dublin Castle provided fascinating history surrounding the 1916 Rising and subsequent war of independence.
The drive to County Donegal showed the Irish countryside’s remarkable scenery, and our stops included friendly welcomes in the towns along the way. Driving on the left side of the road was an easier adjustment than I anticipated. A five-minute delay at our check-in at the Harvey’s Point hotel on the banks of Lough Eske resulted in the staff upgrading us to a suite at no charge because Irish hospitality is amazing. The bathroom in this suite played classical music when we turned on the light. We felt a bit guilty after checking out and realizing the delayed check-in was because of our own booking error, not any fault of the hotel staff, but I did enjoy showering to Flight of the Valkyries regardless. Lough Eske has rolling hills with beautiful old cottages along roads so narrow they would be walking paths in Canada. It is lush, green country that is perfectly relaxing to explore. The town of Donegal has a central square with pubs and shops, right next to the ruins of Donegal Castle. One of the pubs held an Irish storytelling night FALL 2016 23
POSTCARD FROM A LAWYER
with folklore, ghost stories about the nearby Barnsmore Gap, and local “yarns”. The best yarn involved the townsfolk faking a Lough Ness-type monster in Lough Eske to bring more attendees to the Donegal Town Festival. They had to publicly confess their prank after attracting international media attention, and dive teams of biologists. The local storyteller asked everybody where they were from, which led to a musician from Regina introducing herself to us. Her Irish friend was satisfied with an O’Brien claiming Irish lineage, but not pleased with a Stanley claiming the same, despite my explanation that my family came to Canada from County Tipperary. This otherwise pleasant lady sternly corrected me: “You are not Irish then. You are Anglo-Irish.” We bought Donegal tweed work
clothes, toured the castle ruins, and hiked the Cliffs of Slieve League, which are higher than the more famous Cliffs of Moher. We walked up a winding road alongside a stream, as sheep hung out watching the tourists go by. The summit of the cliffs provided a view of a mountain lake and coastline, with the ruin of a medieval lookout tower in the distance.
in Donegal, an Irish descendant and an Anglo-Irish descendant, with a fondness for our ancestral country. We thoroughly enjoyed Ireland but were happy to return to Canada where the Guinness may not be as good, but our breakfast is generally free of pig’s blood.
Our final tour was Glenveagh National Park, which features a newer Downton Abbey-esque castle. We took backroads rather than the highway back to Harvey’s Point, through some huge rolling valleys. The backroads in Ireland are so narrow, hilly, and winding that they are like Mariokart tracks—minus the little cloud guy with the fishing rod to place your car back on the road. We flew home after our relaxing stay
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THE JORDAN PRINCIPLE LINDSAY HJORTH | COLLEGE OF LAW, UNIVERSITY OF SASKATCHEWAN
n July 2016, the Supreme Court of Canada overturned the Morin precedent and established a new principle for unreasonable judicial delays, the Jordan principle. In R. v. Jordan, the accused was charged in December 2008 with his trial ending in February 2013. The accused’s delay was over fours years from the date of charge and the end of trial; which can easily be argued as a Charter infringement. The objective of the newly implemented Jordan framework is to address unreasonable delays within the justice system in hopes of expediting judicial processes and decreasing delays. The Jordan principle applies a numerical ceiling to determine whether there has been a s. 11(b) Canadian Charter of Rights and Freedoms infringement [to be tried within a reasonable time]. Contrary to the Morin [1992, SCC] framework, which did not adopt a numerical ceiling to measure whether a delay was reasonable but rather various determinants were used to measure the delay.
Setting a numerical ceiling to measure what is a reasonable delay is controversial which is likely why the Jordan decision was not unanimous; it fell as a 5/4 split. The majority argued a numerical cap persuades participants in the judicial processes to take preventative measures to address the culture of delay. And, the minority argued that judicial delays should not be measured by a numerical cap because factors vary case by case and are case specific.
The majority held that the Morin framework is “too unpredictable, too confusing, and too complex”. According to the majority, if the presumptive ceiling, as indicated in Jordan, is applied then this will lead to a more timely process. Again, the majority argues the objective and rationale of the Jordan framework is to address the culture of delay and help achieve reasonable, efficient judicial processes which can be achieved with a numerical cap.
Despite the majority’s justification, the minority disagreed a numerical cap would address the culture of delay. The minority in Jordan agreed with the factors set out in Morin. Rather than simply reducing reasonableness to a numerical ceiling, they recommended a reformation of the Morin factors because they argue reasonableness is multi-factored. Jordan differs from Morin in that the delay is measured numerically. In Morin various factors were considered to determine whether the delay was reasonable. Such as the length of the delay; waiver of time periods; reasons for delay including: case specific time requirements, actions of the accused and the Crown, institutional resource limitations, etc.; and, prejudice to the accused. As held in Morin, determination of whether there has been a s. 11(b) breach should not be a mathematical formula but rather a combination of the noted balancing interests in the case. However, the majority found this method of measurement convoluted and favoured a standardized method to measure delays. So, the Jordan scheme determines whether the time from a charge to the end of trial was a
FALL 2016 25
reasonable amount of time by a predetermined ceiling cap. The presumptive ceiling set is 18 months for cases being tried in provincial court and 30 months for cases being tried in superior courts. If the ceiling is exceeded then the burden is on the Crown to establish whether the delay was exceptional. If there have not been exceptional circumstances in the delay and the case exceeds the ceiling then the delay is presumed to be unreasonable, and a stay of proceedings will follow. Exceptional circumstances are circumstances that fall outside of the Crownâ€™s control. The majority of exceptional circumstances fall within two categories, either discrete events or particularly complex cases. Because not all exceptional circumstances will fit within these categories the determination ultimately lays with the trial judge. If the circumstance is found to be exceptional then delay time will be found reasonable and the time determined as exceptional will be subtracted from the presumptive ceiling. Particularly complex cases do not require analysis and will simply be found to be reasonable delays. The burden to show the circumstances were exceptional is on the Crown. However, the burden to establish the delay was unreasonable is on the defence. The defence must establish meaningful steps were maintained to expedite the proceeding and that the case took markedly longer than it reasonably should have. If these circumstances are not met then the s. 11(b) application will fail.
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Defence counsel now have a tool to ensure clients are being tried within a reasonable amount of time. However, for the Crown this also means there will likely be an increase of stayed proceedings because of a numerical cap. Whether you support the newly implemented Jordan principle, or favour the overturned Morin principle, there is merit to both.
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