Sunday, December 30, 2012


I'm currently assisting a number of clients with "peace bond" problems. These are orders under s. 810 of the Criminal Code that can subject you to "keep the peace and be of good behaviour for any period that does not exceed twelve months,  and comply with such other reasonable conditions prescribed in the recognizance" such as prohibiting you from being at or within a specific distance of a place, or prohibiting you from communicating directly or indirectly with a particular person. 

A justice of the peace (or judge) can impose a peace bond on you when a person demonstrates that he or she has reasonable grounds to fear that you "will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property." A mini-trial is actually held by the court to determine if the peace bond should be imposed - that's why you really need legal counsel to defend you if you receive a notice that someone is seeking a peace bond against you. 

Being subject to a peace bond is a lot like being on bail. Peace bonds make conduct illegal that was previously perfectly legal. Like sending an e-mail or text to someone. Or attending at that person's place of work or home. 

Breach of the peace bond can lead to serious criminal consequences. There's some debate among Canadian criminal lawyers over exactly which punishment provisions apply to peace bond breach, as s. 810 of the Criminal Code doesn't itself stipulate any specific punishments, but up to 2 years imprisonment seems a definite possibility for peace bond breach pursuant to s. 127 of the Criminal Code, which is a catch-all punishment provision for disobeying a court order. 

Refusing to enter into the peace bond recognizance, after it has been ordered by the court, can also get you up to 12 months in jail. 

The fact you have been ordered to enter into a peace bond (even if you consented) also winds up on police databases, potentially for the rest of your life. No, it's not a "criminal record," but it does at times convey the impression that you were up to no good, and thus the peace bond was ordered to protect someone from you. 

Pace bonds are serious business, so you need to know when you should and should not be thinking of voluntarily entering into them. 

When voluntarily entering into a peace bond can be a good idea: if you are being prosecuted for criminal offences under the Criminal Code, and instead of the Crown proceeding with the prosecution you are offered the alternative of voluntarily entering into a peace bond, such an offer is usually a good deal that you should jump at. 

Do get some legal advice before consenting in such a situation. Even if you are representing yourself on the charges to which the peace bond is an alternative, "duty counsel" at the court house may be able to give you some summary advice. Here the peace bond is way better than being convicted of a criminal offence after trial, and also way better than receiving an absolute or conditional discharge as a sentence. 

When voluntarily entering into a peace bond can be a bad idea: if you aren't facing any kind of criminal charges, and instead have a peace bond application dropped on you by your neighbour/ co-worker/ family member. In these cases, there has been no government filter (like the police or prosecution service) involved in deciding whether a peace bond application should proceed. Instead, this is essentially a private prosecution which might have no basis in reality whatsoever, and where you can essentially be found guilty on a balance of probabilities standard, not on a proof beyond a reasonable doubt standard. 

If you aren't facing other court proceedings that will be halted by a peace bond, you shouldn't consent to it just to avoid the hassle of a court hearing on the bond. The whole peace bond hearing will probably only take somewhere between 1/2 a day and a day in court, you will get to agree on the hearing date set for several months in the future, and most importantly you are entitled to written disclosure of the factual allegations which supposedly support the peace bond. Obtaining disclosure gives you a chance of preparing a defence to the allegations through gathering together your own evidence to present to the court - including the calling of your own witnesses who can explain why the allegations just aren't true. 

The moral of this story is that peace bonds are tricky contradictory creatures, part of the criminal process, but granted on a civil standard of proof, heard in the criminal courts, but usually pursued by a private individual rather than a government prosecutor. Some people steadfastly refuse to consent to peace bonds even when it is in their best interests to consent, and other people readily consent even though it is unlikely any court would grant peace bonds against them because of the shoddy evidentiary foundations upon which the peace bond allegations are based. The first type of overly refusing people should take more seriously the advice their lawyers are trying to give them; the second type of overly consenting people should seek out legal advice before agreeing to something that could have a significant future impact on their lives. 

Wednesday, December 26, 2012

And the winner of the first ever Public Law Advocacy Blog contest is ...

... DOGMOM. As picked out randomly from qualifying entries by Natalie, my most charming and incorruptible Director of Client Relations. Rest assured, the highest standards of lottery entry security were adhered to.

Surely all of my faithful followers remember my announcement a wee bit of time ago (okay, it was quite a while ago) of a contest. Interestingly enough, the contest announcement post has proved to be my fourth most popular post ever in terms of page views, shockingly enough beating out such catchy posts as "Seven Reasons Why I Love Tax Law" (which is nonetheless ranked at number 6 in all time post popularity parade).

The lucky contest winner will be receiving by way of Canada Post: No Distant Millennium - The International Law of Human Rights, written by John Humphrey (one of the Universal Declaration of Human Right's drafters and my prof at McGill) and published by UNESCO; The Charter of Rights and Freedoms - A Guide for Canadians (a surprisingly good booklet I acquired during one of my many government gigs); and Learning Canadian Criminal Procedure, by profs. Ron Delisle and Don Stuart at Queen's, two of the leading academics in the Canadian criminal law world.

For those extremely disappointed contestants, who were betting on winning so that they would have something to fascinating to read on the beach during a tropical vacation this winter, I suppose you can always fall back on some John Grisham.  

Thanks to all who entered, and keep those comments coming.

Also, for those who haven't yet liked my Facebook page or signed up to my twitter feed @gsclawfirm (, I invite you to do so, where you will experience a little less law (though certainly there's still a strong legal theme), and a little more of my day to day law firm life in the countryside of Canada.

Happy holidays to all my readers.

Wednesday, November 21, 2012

Do I Have to Consent to a Police Request to Search?

Police search vehicle in South Korea; photo credit: Korean Confederation of Trade Unions

"No." That's the simple answer to the ever important question: "do I have to consent to a police request to search?" Unlike others of my "maybe" lawyerish answers that some might consider not totally helpful in their lack of definitiveness, consent to search is clear cut - at least in Canada. 

Police questioning is totally different from polices searches as to whether you have a choice or not in responding. Sometimes you must answer police questions, depending on what they are asking about. And sometimes it's in your best interests to answer police questions in an attempt to clear up suspicions and avoid being charged, even if you aren't obliged to answer. But never do you have to consent to a search.

Either the police have powers and grounds to search, or they don't. It's only when they don't have grounds that they might ask you a question after a highway speeding stop like: "you mind if I take a look in your trunk?" And sometimes if you do say "no", you might get a response like "hey, if you don't have anything to hide, why would you say no?" Your best response is to remain firm and polite in your "no." At the very least, call a lawyer for advice. 

Sometimes, the police might even pull out a form for you to sign, which says that you've been told: (1) you don't have to consent, (2) that you can withdraw your consent at any time, and (3) anything found during the search can later be used against you as evidence in court. Now reading this, you might be thinking: "Why would anyone consent? I would certainly never consent! I'm not that stupid!"

But thousands of people a year throughout Canada (and in other countries with similar constitutional protections against unreasonable search and seizure, like the United States) do just that, and consent to searches where the police have no grounds to search. Some even carefully read those forms, do understand them, but sign anyway. Why?

It seems to be something to do with people feeling that: (1) they have no choice, (2) they have nothing to hide, or (3) even though they do have something to hide, the police won't find it, and this is the best way to get rid of them. These "yes" men and women are wrong on every count. 

First, you do have a choice if the police ask if you mind if they do a search. Be it a search of your vehicle, a search of your house or office, a search of a bag you are carrying, or a search of your person, just say that you do mind. Be polite about it. You can even ask whether the police will go ahead without your consent, because they have some kind of other authority. 

Sometimes the police will already have - or have sufficient grounds to obtain - a search warrant to search your vehicle, house or office. If they do, then your consent is irrelevant. Don't try to stop the police from executing a warrant (or otherwise conducting any kind of search), unless you want to be charged with obstructing justice. But they must get the warrant from a judge or justice before conducting a search, or have some other kind of lawful power to search without consent. 

Sometimes the police will already have grounds and powers to search without a warrant incident to arrest. Again, if they do, then your consent is irrelevant. But they must have first arrested you, told you what you are being charged with (unless it is an emergency), and not exceed the limits of the search incident to arrest power (usually limited to your person and what you are carrying - though occasionally it might extend to a vehicle you are in; it will never extend to your whole house or office). 

Sometimes the police will be able to invoke exigent circumstances to search without a warrant or arrest if there is an emergency situation, where the search just can't wait. Again, your consent will be irrelevant. Though be aware that true exigent circumstances searches are very rare, since the police do have investigative detention powers to hold you, your vehicle, or even your home or office for a reasonable period of time pending the arrival of a search warrant. 

If my police powers to search explanation is starting to sound a bit complicated, that's because it is complicated. Lawyers and judges disagree frequently about when particular powers exist, and well intentioned police officers can certainly get it wrong if the judges are having trouble getting it right. Though throughout the training I still do for police officers, the best mantra to repeat is: "if in doubt, get a warrant." 

If you are the subject of a police search, and something incriminating is found that leads to you being charged, my recommendation is to consult a lawyer about your prospects for challenging the search in court. You can challenge a consent search as well. I'm not saying you are guaranteed success on such a challenge, but in my experience most people never challenge police searches. Sometimes a search will be completely legal, and sometimes it won't be. But only by involving a lawyer will you be able to find out which category your search falls into. 

While serving as a Federal Prosecutor, I once was involved in a case where a BMW speeding along the TransCanada Highway was stopped by police for a traffic violation. The stopping officer only had grounds for a traffic violation, but his suspicions were quite appropriately aroused. The occupant of the fancy car seemed overly polite when stopped. And overly nervous, constantly shiftig in his seat, eyes darting about, hands tightly gripping the steering wheel. Plus the vehicile had out-of-province plates, and the conscientious officer remembered from his training that fast food wrappers strewn about a car might be a sign that the occupants were driving non-stop over a great distance for illicit purposes. So, after giving him a speeding ticket, the officer asked the driver if he minded if the officer took a look in the trunk. This officer was very well trained, and made it clear to the driver that he didn't need to consent, that he was free to go, and that anything he found could be used against the driver in court. The officer even pulled out a consent form for the driver to sign. Now what the officer definitely didn't know in advance was that the driver had 10 kilos of coke and $100,000 in cash in the trunk. And what do you think that driver did: he signed, and popped the trunk!

Sunday, October 28, 2012

Nine Ontario Small Claims Court Tips & Tricks

The Small Claims Court in Ontario is part of the Superior Court of Justice,
one of three Canadian courts with its own coat of arms.  
1. COSTS TIP - You can receive back in legal costs up to 15% of the claim value if you hire a qualified professional to represent you, and only a minor ($500) appearance fee if you represent yourself. Generally you will receive the highest level of costs if your retain a lawyer, given the higher fees involved. This 15% is based on the total value of the claim, not the amount ultimately awarded by the court. So if you claim $25,000 against someone, use a lawyer, and ultimately are awarded $12,000, you will be entitled to a maximum of $3750 in costs (15% of the $25k, not the $12k). Thus for larger value claims, you may be able to recoup most of your legal costs if using a lawyer, rather than representing yourself - though ultimately costs awards are discretionary to the court, and will depend largely on your degree of success in making or defending against a claim.

2. PLAINTIFF'S CLAIM AND DEFENCE DRAFTING TIP - In describing the facts and law of your case, you aren't limited to the amount of space given to you in the standard Plaintiff's Claim or Defence forms, nor do you need to add supplemental forms. You can use an Appendix "A" where you set out by consecutively numbered paragraphs your story, explaining why the claim should succeed or fail.

3. WHAT CAN BE CLAIMED TIP - In Ontario Small Claims Court (and many other small claims courts), you can only make a claim for money or the return of personal property, not exceeding a value of $25,000. That $25,000 limit only went up from $10,000 a couple of years ago, and has made it a lot more attractive to involve lawyers in Small Claims Court legal proceedings, because more is at stake, and more can be recovered in legal costs. But the money or personal property limitation means that if you want to force someone to do something (like comply with the conditions of a contract beyond just paying money), or to not do something (like creating a nuisance on a neighbouring property), then you must head to the full blown Ontario Superior Court of Justice (not the Small Claims Court division), and institute a civil application or action. Different rules of procedure apply, it becomes more difficult to appear there without a lawyer's help (though not impossible, unless you are a corporation), and the process is generally more expensive because of the procedural steps required to get to trial.

4. SERVICE TRICK - Although a Plaintiff's Claim needs to be served personally or by a permitted alternative to personal service, you may serve your Small Claims Court claim by the quite reasonably priced means of registered mail, rather than hiring a process server. However, in order for your service by registered mail to be effective, the person being served actually needs to pick up and sign for the registered letter. If that person chooses not to sign, you are back to looking at other means for service provided for in the Rules.

The best news for defendants is that you don't need to do anything to serve a statement of Defence. The Court serves it for you. Just show up at the Court counter with three copies of the Defence. They will all be stamped as to date filed, one copy will be placed in the Court file, one will be sent out to the Plaintiff, and one will be returned to you.

5. PLAINTIFF'S TIMING TIP - The sooner you serve and file a Plaintiff's Claim, the better, because there are all sorts of civil limitation period laws out there waiting to trap the unwary. In Ontario two years from the time of the event/loss is a common limitation period, but some limitations can be shorter, and some occasionally longer. You might also have to provide notice prior to filing a claim, such as for claims against certain governments. Limitation periods can get quite complicated even for the lawyers, so legal advice here can be really useful.

6. DEFENDANT'S TIMING TIP - Defendants only have 20 calendar days (not Monday to Friday working days) from the day they are served to file a Defence. Even in this day and age of rush, this isn't a whole lot of time. Although I might be stating the obvious here, don't be late in your defence, or bad things will happen. Like a default judgment against you. There are ways to beg the Court's forgiveness is filing late, but you will need a good excuse other than "I had other things to do." Especially if you are going to hire a lawyer, the lawyer will need most of that 20 days to discuss the case with you, conclude a retainer agreement, and construct a coherent defence within a timeframe which might see the lawyer in court ever day of the Monday to Friday week on other cases.

7. PROCEDURE TRICK - Asking for a full day trial may best ensure you get heard on the day you want to get heard. If you share your day with other cases, there's a chance your case may never get reached if the court runs out of time. However, you will need to justify to the trial coordinator why your case needs a full day, such as because of the large numbers of witnesses you intend to call or exhibits you plan to introduce, or due to the complexity of the legal argument you will make.

8. EVIDENCE TIP - Although the procedure of Small Claims Court may be less formal than in other courts, the normal rules of evidence still apply to any trial. These rules can get very complex, as lawyers themselves have trouble with them from time to time. The most important rule to remember is that generally speaking, hearsay is inadmissible. This means that you and others can't testify about things you didn't personally see or hear, nor can you testify about documents or other exhibits you don't have personal knowledge of. So, for example, if you are claiming that your neighbour regularly trespasses on your property because another neighbour has told you so, you will need that other neighbour as a witness.

9. APPEAL TIP - You have a right to appeal any Small Claims Court judgement to a single judge of the Ontario Divisional Court, which is another division of the Ontario Superior Court of Justice, for any judgment exceeding $2500 in value (excluding costs). But you will only have 30 days in which to serve and file the Notice of Appeal. Even if you didn't use a lawyer at trial, you might want to consider hiring one for the appeal since appeals are more technical in nature than trials, and tend to involve a largely paper process where a written factum of argument, case on appeal book (containing the exhibits and other records), transcripts and book of legal authorities are files. An appeal usually still involves an oral in-person hearing before a judge, but it is not a rehearing of the trial.

Wednesday, September 26, 2012

Line-ups: Are They Just Like in the Movies? And Am I Required to Participate in a Line-Up?

1995 Neo-Noir Film - photo credit: Gramercy Pictures
I don't know about you, but I find the tensest, most dramatic time of many a police thriller to be the scene where the fearful witness is squinting out of the gloom through one-way glass into a brightly lit box, set up like a carnival side-show, with a half dozen or so denizens of the underworld arrayed in front of a wall with height markings, each character shifting uncomfortably from foot to foot, side to side, arms fidgeting, heads trying to look anywhere than directly at the reflective glass wall in front of them.

Suddenly, over a tinny speaker set high in the ceiling, they hear an echoey, authoritative voice - a cop voice - call out: "NUMBER 5, STEP FORWARD. NUMBER 5. YES, YOU. MOVE IT. TURN TO THE RIGHT. OKAY, TURN TO THE LEFT. STEP BACK." 

This side show cast can hear murmurs of voices on the other side of the opaque glass, but not make out any words. All are desperate to return to their former activities. Some, awaiting release from the drunk tank. Others, a return to duty as undercover police officers. And one, to a segregated cell awaiting a final decision as to whether murder charges will be laid against him. 

Unlike some movie fantasies that have always been fantasies, the live line-up scene is grounded in recent past reality, with occasional gusts of current reality. 

What you need to know about movie-style line-ups is that they are unreliable, and possibly violate the protection against self-incrimination rights of suspects. That's why most police services have now moved to photo-pack line-ups. That way, no one is possibly coerced into participating in any activity other than posing for a photo when first arrested. And there are always lots more photos out there to draw upon in arranging a fair line-up of similar photos, than there will be live bodies available to stand beside the prime suspect awaiting identification in a live line-up.

Prior to the days of wide-spread photography live line-ups were the only investigative option. But today, there's really no excuse as to why fair photo line-ups aren't administered everywhere. 

Still, live-ups are not completely dead. And even photo line-ups can be contaminated by the person administering them consciously or unconsciously suggested the "correct" result to the witness reviewing the photos. That's why the even the person running the line-up shouldn't know which photo the police are focussed on. Just like drug studies where the doctors themselves don't know who is getting the placebo, and who is getting the real drug. 

Misidentification has time and time again been identified as the prime suspect in the majority of wrongful conviction cases. The police have always known that some evidence of i.d. greater than in-dock identification - the old, yes your honour, that man sitting over there in the locked courtroom box, wearing the handcuffs, I'm sure he did it, even though I only saw him for two or three seconds in a dark alley three years ago - and thus the line-up was born. 

The best identification evidence will always be that which carries with it a certain scientific weight which is not subject to the frailties of human memory, like DNA or fingerprint or other physical evidence. But human memory need not be completely discounted - its accuracy just needs to be sufficiently tested. Line-ups are a good test of memory, but only with photos, and only if properly arranged and administered. 

If you're ever asked to participate in a live line-up, you should speak to a lawyer first before agreeing to do so. Likely your lawyer will tell you what I tell my clients: don't do it. 

Do give the police your correct name, do pose for a photo, and do permit your fingerprints to be taken - these are usually all legal requirements if you are charged with a serious offence - but self-incrimination will never be a requirement. Sometimes there will be some benefit to telling your side of the story to the police, but there would never seem to be any benefit to going into a line-up. You run a great risk of being misidentified, and likely won't be set free simply because a single witness didn't pick you out from the bright lights and height markings. 

Friday, September 14, 2012

Do Lie Detectors Lie? And If They Do, Why Do We Love Them?

Photo credit: Limestone Technologies Inc., Creative Commons License
In the Simpsons (Fox Broadcasting Company) episode "Who Shot Mr. Burns", Moe (the bartender of the show) is administered a lie detector test which actually works:

Officer: Do you hold a grudge against Mr. Montgomery Burns?

Moe: No!

(Lie detector buzzes, red light flashes)

Moe: I didn't shoot him
(Lie detector dings, green light flashes)

Lie Detector Operator: Checks out, sir. You're ok sir, you're free to go.

Moe: Good, cause I got a hot date tonight.
(Lie detector buzzes, red light flashes)

Moe: A date.
(Lie detector buzzes, red light flashes)

Moe: Dinner with friends.
(Lie detector buzzes, red light flashes)

Moe: Dinner alone.
(Lie detector buzzes, red light flashes)

Moe: Watching TV alone.
(Lie detector buzzes, red light flashes)

Moe: All right! I'm gonna sit at home and ogle the ladies in the Victoria's Secret catalog!
(Lie detector buzzes, red light flashes)

Moe: Sears catalog.
(Lie detector dings, green light flashes)

Moe: Would you unhook this already, please?! I don't deserve this kind of shabby treatment!
(Lie detector buzzes, red light flashes)

The reality of lie detector (also known as polygraph) accuracy is starkly different. Even though they've been around for close to a hundred years, proper science has never proved their accuracy. But their fans continue to make use of them in the firm belief that they are in fact accurate.

Over 35 years ago, Justice Donald Morand in The Report of the Royal Commission into Metropolitan Toronto Police Practices (Toronto: Queen's Printer, 1976) wrote:
The polygraph examiners had many opportunities to answer the problems and criticisms suggested by psychiatrists and physiologists. Unfortunately, their response was invariable that the criticisms were not valid because, in their expeirence, the test worked. I have come to the conclusion that I must accept the evidecne of the psychiatrists and physiologists, which is consistent with both my common sense and my personal experiences, that all indviduals do not react in identical ways in a given situation.
Over 25 years later, the Supreme Court of Canada wrote in R. v. Oickle, [2002] 2 S.C.R. 3 at para. 95: 
I agree that the police exaggerated the accuracy of the polygraph. As many sources have demonstrated, polygraphs are far from infallible: see, e.g., D. T. Lykken, A Tremor in the Blood: Uses and Abuses of the Lie Detector (1998); J. J. Furedy, “The ‘control’ question ‘test’ (CQT) polygrapher’s dilemma: logico-ethical considerations for psychophysiological practitioners and researchers” (1993), 15 Int. J. Psychophysiology 263; C. J. Patrick and W. G. Iacono, “Validity of the Control Question Polygraph Test: The Problem of Sampling Bias” (1991), 76 J. App. Psych. 229. Similarly, this Court recognized in R. v. Béland, [1987] 2 S.C.R. 398, that the results of polygraph examinations are sufficiently unreliable that they cannot be admitted in court.
Academic authors have gone further, with some calling polygrahs "a dangerous erosion in our system of justice and democracy," others who "affirm the polygraph's ineffectiveness, and one who "compares control question testing to the reading of tea leaves" (see R.J. Marin, Admissibility of Statements, 9th ed (Aurora: Canada Law Book) at paras. 9.369-9.371 for a summary of opinions). 

Personally, I don't rule out the possibility of future technology achieving a deception detection accuracy of better than chance - voice tremor analysis and infrared facial heat measurement being two promising fields - but there needs to be independent, verifiable and scientific confirmation of results. 

So why do we love these machines that go beep if they really don't work? 

First, because of wishful thinking. The "wow, wouldn't it be great if science could solve all our human problems, including the problem of human deception" kind of thinking. 

Second, because of some of the people who are so convinced that they work are in fact those who submit to taking the test. Thus, if they think they can't beat the machine, they tell corporate employers, government security screeners, or the police the truth, the whole truth and nothing but the truth. In this sense, polygraphs can be a useful questioning tool - though this effective coercion of the truth is another reason courts exclude their results from evidence.

In applying for some jobs, you might not be given any choice but to submit to a lie detector test.  Take some solace in the fact that whether you pass with flying colours, or flunk out, may have little to do with whether you told the truth.

However, when you do have a choice over submitting to a polygraph, don't be drawn in by the "well, if you're telling the truth, you've got nothing to fear" argument. The truth won't necessarily stop that electronic box buzzing its disapproval with a blinking red light. 

Thursday, September 6, 2012

Top Ten Ways to Stop Disputes Within a Business Before They Arise

All may be well in the early days, when your business partnership doesn't amount to much more than a somewhat dated cell phone, a rack of really outdated CDs, and a happy computer face coffee mug.  But later, when things really get going ...              Photo credit: Ian Britton, Creative Commons License. 

Media attention often focuses on business struggles between competitors, like the apocalyptic patent litigation between Apple and Samsung. I suppose the popular allure of such disputes at least in part is the same as the allure of athletic contests: conducted in public, among relative equals, with the perception that winner takes all.

Less talked about are disputes within businesses and among their members, be they childhood friends who have tossed in some money to open a small restaurant, professional partners, or larger corporations undertaking some kind of resource exploration joint venture. These internal business disputes are likely more preventable than the external ones, with a bit of early planning, and perhaps a little legal advice. While the type of dispute prevention will vary according to the type of business, and the parties involved in the business, there are a few fundamental principles that can help everyone prevent internal disputes from ruining externally successful business endeavours.

1. Plan for some business dispute DIY prevention at the same time as you plan out how you are going to dominate your market segment with your new business. Dispute prevention works best in reverse. Meaning, figure out in advance the most likely areas of dispute a month, year or decade down the road among the members of your business, and then work backwards to establish contingency mechanisms to resolve at least some of those disputes. Like, what happens if a co-owner wants out before the business if profitable? 

2. Put you business agreement in writing. It doesn't have to be a lengthy document. One hundred pages won't necessarily give you any more certainty than two pages. Seriously. A complex and prolix document may only give partners more language to fight over in the future, and likely won't be well understood at the time it is signed. But the writing is key, otherwise even two people who trust each other implicitly will tend to develop differing recollections of exactly what was agreed upon as time passes after the establishment of the business relationship. I'm not saying every single action needs to be fully documented, but at least be clear on the basics. I see a lot of disputes where very reasonable people who completely trust each other go into business with very different understandings of what has been agreed upon.

3. Be clear on the businesses legal structure. This isn't something you necessarily need a lawyer for. You can probably figure it out from Internet information. But a lot of people don't know how their business is legally established, which can have lots of consequences when it comes to ownership, debt liability, taxes and sharing of business control. Your main options are as a sole proprietor, as a partnership, or as a corporation. But things can get tricky when these three basic forms get combined. Like two people who believe they are each sole proprietors, when in fact the law deems them to be a partnership. Not only small businesses can run into trouble in this area, sometimes large multinational corporations get together to jointly pursue some kind of business opportunity, and wind up in an accidental partnership which they hadn't intended.

4. Be clear on who owns what. Putting everything in one party's name, with a verbal understanding that the other parties actually have ownership rights because they are contributing capital to purchase assets, is one of the best ways I can think of to later wind up in court.

5. Be clear on who is contributing to or paying for what. When people get together in informal ways, and start contributing money to get a business going, and later continue contributing money to keep the business going, they often don't divvy up expenses by percentage. One pays the rent. Another pays the electricity. A third pay for the inventory. Although perhaps initially convenient, this way of financing a business becomes difficult to track, and can lead to later disputes over who contributed more or less to the business.

6. Be clear on how the profits will be utilized or divided. Whether there are any profits, and whether they will be reinvested into the business or taken out to pay the personal expenses of the owners, may quickly become an issue if business parties don't agree on a strategy in advance.

7. Be clear on who is responsible for the debts. Just because you didn't sign a loan guarantee, doesn't mean that you aren't on the hook for any debts of the business.

8. Be clear on the overall purpose of the business. A successful business that starts out manufacturing and wholesaling shoes may not make an easy transition into the electric car design field. Possible, yes. Easy, definitely not. If more than one person controls the business, they will need a common vision. Sometimes putting that vision in writing up front will help remind everyone of business' purpose if vision drift starts to affect performance later on.

9. Be clear on how disputes will be resolved. It is not possible to foresee and address all manner of future business disputes, even in the most complex of written agreements. However, the parties might be able to agree on a few basic points. Like that majority vote of the partners will be decisive on certain issues. That binding arbitration will be used for other issues. Or at least that a courts of a particular jurisdiction will be the place to settle disputes through litigation.

10. Be clear on how the business will be wound up or sold if one of the owners doesn't want to continue with it. People get tired. So do businesses. Sometimes it's better just to call it a day, and start one or more new businesses, rather than continue to fight to save or control an existing business. But every business needs an escape hatch, to avoid the captain(s) and crew becoming trapped in a sinking or fighting ship.

Wednesday, August 15, 2012

Why Canadian Criminal Justice Statistics Are Your Friend

Statistics Canada 2011 Police-Reported Crime Statistics in Canada: 
Attempted Murder and Homicide:

I used to not pay all that much attention to stats. They seemed to involve tricky math and fine print qualifying their results. And they didn't always cover the exact topic I was looking for, often because the data was too difficult or expensive to collect. Plus, until the last few years, stats could be fiendishly difficult to hunt down.

Most of us don't want or need stats because we're writing some kind of thesis, but rather just because we "wonder." As in – after hearing a news story – "I wonder what the real stats are on that?"

True, not everyone is going to wonder about stats, but even for those of us who do, we'll never get past the "wonder" if there's no easy way to find the answer to the question.

In my own previously stat-deprived wasteland, I was often drawn in by and repeated to others those famous stats hoaxes.

"Hey," I would interject at that boring moment of the dinner party, hoping to score me some table cred with my witty repartee and knowledge of the useless but fascinating stat, "did you hear how a woman over the age of 40 has a better chance of being killed by a terrorist than of getting married?"

"Oh, really?" my (I hoped) fascinated listeners would reply. (For the debunking of this particular stat see which largely blames Newsweek, whose writer probably didn't mean it literally in any case, though TV shows and movies then popularized variations of the stat which began to be believed as gospel).

Since becoming a criminal lawyer, I've increasingly come to appreciate the vital contributions stats play in informing all future justice policy decisions, from where to deploy a single police patrol car in Cornwall on a cold wintery night to whether national offender rehabilitation programs are working. I've thus started to make a little more effort in tracking reliable stats down.

Coincidentally to my becoming a criminal lawyer, a little thing called the Internet was invented. This was soon followed by the people who produce all those fascinating stats increasingly posting them online, slowly at first and then with increasing gusto. Now you can find most government-produced statistical agency reports in full text online (rather than being buried in some inaccessible downtown reference library), and you're even starting to see some of the raw stats data being made freely available online for those with the tools to manipulate the data.

And in case you're wondering about the crime stats behind all those new stories, the trend in Canada is down down down.

Violent crime: down.

Property crime: down.

And unreported crime? Well, there could be unreported Martians and ghosts too!

Sure, some crime unfortunately goes unreported – especially domestic-related crime – but that's always been the case. If anything, reporting for domestic crime is likely trending upwards, since the system now takes this sort of crime much more seriously.

So unreported crime? Likely down as well.

The cool thing about justice stats is that any member of the public can get something out of them. You'll already have heard of most of the crime categories under which the stats are organized. You'll know a bit of the geography within which they are also organized. And you may have heard of some of the policy debates which they inform.

Who isn't interested in whether their city has more crime than the next city to the west or the east? Or what kinds of crime are popular?

And so where do you find those wonderful justice stats? In Canada, Statistics Canada is the main collector and purveyor of data, which is perhaps not too surprising. What you might be surprised by – at least I was – is just how well organized, presented and available all that data now is through free online access.

The Stats Canada Uniform Crime Reporting Survey may be the most comprehensive of the annual surveys, with the report on 2011 crime across Canada recently released.

Juristat is one really fascinating product that could best be described as a monthly (more or less - sometimes there are several issues in a month) crime stat magazine, that gives readers detailed justice statistics analysis by topic.

For instance, the 12 April 2012 Juristat issue addressed "Police-reported Hate Crime in Canada, 2010". From that report, one learns all sort of things that we might not have assumed, like that there were 1401 reported hate crimes in Canada in 2010 (did you think the number would be lower?) And that Ontario had by far the highest rate of hate crimes per capita (did you think it would be some smaller or less diverse province?) And that Guelph was Canada's hate crime capital (did you think it would be a bigger city?)

The Canadian Centre for Justice Statistics (part of Stats Can) also produces a "Profile Series" which focuses primarily on victim-related statistically-based reports.

The Department of Justice Canada also has its own research division which produces reports.

The Correctional Service Canada likewise has a research branch which produces reports mainly devoted to managing and rehabilitating inmates.

Without these kinds of stats, none of us could possibly know how well-founded or baseless our fears of crime really are. Or whether the programs on which our governments are spending our tax dollars are really accomplishing anything to address crime.

Happy reading.

Monday, July 9, 2012

Voluntary Disclosures to the Canada Revenue Agency

Keypunching tax data at the CRA (hopefully with newer computers since this photo was taken).
Photo credit: Government of Canada.
As a tax lawyer, and a taxpayer, I know there is lots of fear and mistrust implicit in the relationship between Canadians and the Canada Revenue Agency. This is unfortunate, because the relationship between the CRA and those it serves is not fundamentally adversarial.

Now I'm not at all trying to sound like a cheerleader for the CRA, but what you need to understand is that its employees have a very different mandate and relationship with Canadians than do the police. The fundamental purpose of the CRA is tax administration, collection, compliance verification, and lastly - and this is a distant last - enforcement. The fundamental purpose of the police is law enforcement. Sure the police have other purposes, like crime prevention and community safety, but if it comes down to competing resources, enforcement needs come first for the police. Thus the police will often be interacting with two classes of Canadians: victims and suspected offenders. Not true with the CRA - they are almost always interacting with "taxpayers."

Taxpayers constitute an enormously bigger class of people than the victim/offender classes. Taxpayers can included all Canadians with a taxable income. Even those who don't owe any tax! So the CRA exists not just to squeeze you for tax, but also to make sure you receive all the deductions and refunds you are entitled to in a timely manner. However, you can only receive those deductions and refunds if you file returns, and you are honest about what you disclose on those returns. I've actually come across cases where individuals think that by not filing returns, they are saving thousands in tax, whereas in reality the government would owe them money if they had been filing. 

The CRA's Voluntary Disclosures Program (sometimes known informally as a "tax amnesty") is a great way to come clean on your taxes, so long as you make the disclosure prior to the CRA initiating any compliance action against you. You can cure HST/GST irregularities, as well as Income Tax deficiencies, through the program. You might not need to even pay any kind of penalty on such a disclosure, only any amount in unpaid tax that is owing (which sometimes can be a lot less than you thought it would be) plus interest running from the time that tax payment was due. If you make your voluntary disclosure about taxes due within the last ten year, the CRA might even waive some or all of the interest owing!

Better still, you can make the Voluntary Disclosure initially on a no-name basis where you can get a preliminary opinion from the CRA on the tax consequences of making such a disclosure, and only then decide if you want your name to be revealed in order to proceed to a final determination by the CRA of your tax position.

A tax lawyer may be in the best position to negotiate a tax amnesty for you, as once you have retained such a lawyer solicitor-client privilege will generally protect all your communications with your lawyer for the purpose of seeking or receiving legal advice, including information implicating you in tax non-disclosure. To be fair, your accountant may also be able to assist you with this process, but solicitor-client privilege doesn't exist for accountants. While you can also try to engage in DIY with the CRA, a no-name voluntary disclosure would be very difficult to achieve if you are directly conducting CRA negotiations yourself.

Monday, May 21, 2012

Demystifying Immigrating to Canada

A good ten minute overview of immigrating to Canada. 
Video credit: Citizenship and Immigration Canada

You'd think it would be simple. You send in some personal details. The government looks them over. Then gives you a yea or a nay. But life always seems to be a bit more complicated than it should be.

The immigration systems of the countries of the world were all established with essentially the same aim: permanently let into your country those whom you believe will make good lasting contributions to your society, temporarily admit those who are unlikely to do any harm (perhaps giving some of them study or work permits), and keep out those whom you deem undesirable.

The challenge for immigrating permanently to Canada or even for coming temporarily as a visitor, student or worker is that instead of one simple form on which you write some personal details, and check off a couple of boxes for what kind of status you are seeking in Canada, there are reams of forms with obscure numbers, names which aren't self-explanatory, and a host of choices that must be made for the best application type and route. In this post, I'm going to demystify the process for you by distilling it all down to basics.

1. The three main factors that keep people out of Canada relate to: (a) criminal history, (b) health condition, and (c) financial capacity. If you haven't committed criminal offences in the past, are healthy, and have money, Canada will probably let you inside its borders - at least on a temporary basis.

If you do have a shortcoming on one or more of these grounds, you need to carefully study the Citizenship and Immigration Canada website and perhaps speak with an immigration lawyer to determine whether you will be excluded from Canada, and if there are any ways to get around that exclusion.

2. The three main ways to temporarily enter Canada: as a (a) visitor, (b) student, or (c) temporary worker.

Citizens of a small number of preferred countries don't need visas to enter Canada as visitors, and can just show up at the border - passport in hand - and usually get a stamp permitting a stay of six months. It's then possible to apply to extend that stay for additional time. You'll still be subject to those three factors which exclude people from Canada, but they won't be as strictly applied if you're only a visitor.

Everyone else in the world will need to apply for a visitor visa in advance. From some places, these visas are very fast and easy to get. From other places, they are almost impossible to obtain. The difference largely rests on how many people want them, how much staff is devoted to issuing them, and Canada's assessment of how likely you are to return home at the end of your visitor period.

You'll need to be able to qualify as a visitor in order to additionally get a study or work permit. Study permits aren't too difficult to obtain if you are able to prove admission to a legitimate education institution in Canada (you need to carefully check out in advance the status of the school and program you will be attending - there is lots of misinformation out there) and the financial means to support yourself while studying in Canada.

Work permits are more difficult to obtain because of the way employers who wish to employ foreign workers must demonstrate that they can't find a Canadian for the job. Clients frequently come to me who are legitimately in Canada on visitor visas, want to work legally here, but have become very frustrated when employers who are favourably disposed towards them can't obtain foreign worker authorizations because they don't understand the system for obtaining what's known as a favourable Labour Market Opinion from Human Resources and Skills Development Canada.

3. There are two main ways to permanently enter Canada: (a) through an independent/economic application or (b) through a family class application.

Although there are various schemes going by different names where independent/economic applications are concerned, and increasingly the provinces have their own schemes (though provincial program applications are still largely processed through the federal government) the fundamental distinction in permanent resident routes is betweenthese two classes.

The family class is mostly for spouses and dependent children. There are a few exception that could extend sponsorship to other relatives, but generally this class has been getting more and more narrow - for instance, Canada will no longer process application to sponsor parents and grandparents.

The independent/economic classes generally require that you have work skills that are in demand in Canada, or money to invest in starting a business in Canada. There are lots of options here, and even if you don't qualify when you first examine the possibility of coming to Canada independently, it's worth checking again in a year or two to see if there might be new programs that you could more easily fit into.

4. As a Canadian immigration lawyer, the best tip I can offer to anyone reading this posting who is interested in spending an extended time in Canada (or who wishes to enable a relative to do so), is don't become overly fixated on obtaining permanent residency at the cost of ignoring much quicker and easier temporary residency routes.

For example, sometime foreign student or temporary foreign worker programs in Canada can offer an easier path to permanent residency. You'll get to Canada much more quickly than waiting years for a permanent residency application to be processed, you'll be able to learn whether Canada really suits you before you making a permanent commitment to it, and your permanent residence application may receive preferential treatment after you've worked or studied for a number of years in Canada (depending on the type of work and level of completed studies).

The same goes for bringing parents or grandparents to Canada. If they're already in their 70's, obtaining a ten year temporary residence supervisa for them, where they can continuously remain in Canada for up to two years a a time, might have a much better practical outcome than waiting years for a permanent residence sponsorship application to be processed.

Tuesday, May 15, 2012

Do I Qualify for Legal Aid? And What Are My Options if I Don't Qualify?

Photo credit: Philippines Legal Aid
Most Canadians have heard of legal aid. Most don't know what it covers, or who can benefit from it, unless they've been put in the position of really needing a lawyer but had difficulty affording one. Official "full service" legal aid where your own personal lawyer takes on your case from start to finish is unfortunately only available to Canadians with the lowest of low incomes who are facing very serious legal consequences. However, there are alternatives for the many Canadians who make too much to qualify for legal aid, or don't have a problem that is considered serious enough to merit a lawyer being assigned.

While legal aid rules vary slightly by province or territory in Canada, I don't believe the income cut-offs and services covered vary all that much from place to place. However, in this post it's the Ontario situation that I'll directly talk about. And regardless of what you read in this post, since the rules can be a bit technical you should always check with an official legal aid office before deciding you won't qualify. Most notably, some local community legal clinics devoted to subjects like landlord and tenant law, and some duty counsel offices located in court houses which provide summary legal advice on criminal or family matters (but not full representation for all aspects of a case) don't have the same stringent income cut-offs.

I've had clients making $50,000 per year quite reasonably ask me if they might qualify for legal aid, since paying thousands of dollar in legal costs would be difficult; the answer is no, even with a large family to support. I've had clients making minimum wage even more reasonably presume that they would qualify for legal aid, since paying 25% to 100% of their annual pre-tax income on legal fees is just not possible; again the answer is no, unless they have some dependents. Lastly, I've had clients who are in receipt of social assistance ask if they would qualify for legal aid after being charged with a relatively serious first criminal offence like an impaired driving charge; yet again the answer is no, however here the "no" is not because of their financial position, but because it is unlikely they'll be sentenced to jail.

As a single Ontario resident, you need to make less than $10,800 per year gross (before taxes or other deductions) to qualify. Working full time at a minimum wage job will earn you almost double that amount! Thus even many part-time jobs will out-earn the cut-off. Really, if you're single and aren't on social assistance or disability, it's unlikely you'll qualify. And even with dependents to support (a spouse and/or children), you can't be making much above minimum wage if you hope to qualify. On top of it all, most legal aid funds go to criminal cases, so if you have a family or other civil law case you may be out of luck - regardless of how little you make. There is some funding for family, civil and administrative cases - like where child custody or refugee status is in issue - but not much.

This post isn't about demanding increased legal aid funding (although I certainly think that would be a good idea), as even if funding was to double the vast majority of Canadians still wouldn't be covered. England and Wales have the world's best funded legal aid system at an unsustainable cost of two billion pounds per year, with assistance extending its reach into the lower middle class, but still only about 29% of residents qualify; coverage there could shrink dramatically as budget cuts sweep the public sector. Rather, this post is about facing realities of who is covered, what is covered, and what are your options if you aren't covered by legal aid in Canada.

So if you're not covered, what are you to do?

1. Consider Retaining a Lawyer if You Can Stay Out of Court, or Minimize Your Time in Court. 

As you probably know, most lawyers charge by the hour. The charges tend to be proportionate to how long it took them to become lawyers (for me it was nine years of post-secondary training), the geographic area they practice in, and to a lesser degree their area of specialization. In the professional fees spectrum, they charge less than doctors who usually spend longer than lawyers in school, but more than accountants or engineers who may have spent less time in school. In Canada we don't see our doctor bills, so lawyers tend to be perceived as the top billers, but really the medical professions earn (and deserve) more.

One hour of a lawyer's time could be the best few hundred dollars you'll ever spend, since the advice you obtain through that hour could completely put your mind to rest over all your legal worries. However, one thousand hours of a lawyer's time slogging away at an apocalyptic court case involving motions, trials, appeals and retrials is unaffordable for most of us, lawyers included! It's usually not the lawyer advice or document drafting that gets expensive, it's the going to court because of the way court sucks in the time of a lawyer, somewhat like the all-consuming nature of the event horizon of a black hole. But you might be able to limit total lawyer court time, depending on the litigation strategy you adopt.

Even if you are already in court representing yourself, consider retaining a lawyer to negotiate a settlement for you - be it a criminal plea or dropping of charges, or a civil agreement to pay some nominal damages or share child custody. Settle, and fees could be very affordable.

Yes, I know it seems unfair, and I'm definitely not saying you should agree to some kind of ridiculous settlement - it's your lawyer's job to avoid that and get you a good deal - but courts were not created as fora devoted to proving points, they are there so that the inhabitants of our society can achieve some modicum of justice they can live with - maybe not be happy with, but at least be kinda content with - and move on with their lives.

2. Seek Out Free or Law Cost Non-Legal Aid Representation. 

If you live in a city with a law school, the school might have a law student clinic - I used to run the McGill Legal Information Clinic - where students might be willing to represent you in court on minor matters (their ability to do so will depend on the local bar rules and mandate of the clinic), or at least point you in the right direction of how to proceed.

There are some pro bono lawyer organizations that can occasionally provide legal representation without charge, but do understand that many lawyers don't take pro bono cases, and even those who do might limit themselves to one pro bono case at a time, so finding pro bono representation can be extremely difficult unless you have some kind of particularly novel, newsworthy, and meritorious test case.

There are also sometimes community legal clinics which are funded by legal aid to provide specialized types of legal services to particular client groups (like the elderly, Aboriginals, the disabled, or those from particular cultural communities), but which apply more flexible financial means tests. Although you'll need to live in an area where one of these clinics exist - usually a big city.

3. Do-It-Yourself. 

DIY law may be easier said than done, but there are now lots of online resources to help you. There are two fundamental requirements to succeed here: (a) you must have a reasonable grasp of the language you are proceeding in (in Canada, English or French); (b) you must be wiling to use the Internet to get help. If you're reading this post online, you probably meet both the requirements.

In the old, dark days of legal research - circa the 1980's - you could spend days, even weeks, lost in the dusty stacks of a cavernous law library looking for the holy grail of legal knowledge that is applicable to your case, only to find once you locate the blank space on the shelf in which it used to be lodged that it had been sent out for rebinding, and might be returned in another 3 to 6 months - if you were lucky.

Now, everything is different. And trust me, I'm not stating the obvious here, it's really, really different.

The full searchable text of all laws are online ( for example, federal laws can be found at: ) The full searchable text of all recent cases are online ( Law books (written mostly by academics, and occasionally by me) aren't online, but can be purchased online (sometimes at great cost, or occasionally - as in the case of my own books which I am shamelessly promoting, see the right hand side bar of this blog - at reasonable cost).

On top of all that, there are online community organizations devoted to explaining the law to the public. In Ontario, the most notable site is, which cover a lot of areas of the law in lots of detail, and sometimes in more languages than just English and French.

So to take the DIY example of conducting your own litigation, you will usually find all the court forms you need online on the court's web site, you can research the applicable legislation by doing keyword searches through the applicable law, and likewise pull relevant caselaw by searching through the over one million (!) cases on the Canadian Legal Information Institute's website.

Tuesday, April 10, 2012

Do I Need a Lawyer for a Professional Discipline Hearing?

Photo credit: Lis Feria, 2012.
It's common to think of getting a lawyer to represent you when faced with criminal or civil court proceedings. The stakes are high, the rules of procedure and evidence complicated, so a lawyer seems the natural choice. But what about hearings that aren't in a court of law? Are lawyers needed there? When should legal advice be sought for these non-court hearings, or during the investigations that lead up to them ?

I know there's some legitimate hesitation over involving lawyers in all aspects of human life, even though the law permeates our lives. Some private matters - like minor disputes between neighbours - might be best sorted out without lawyer escalation. The stakes are low, there is no imbalance of power between the parties, and the risk of legal errors is minimal. But in disputes where the stakes are high, there is a power imbalance, and a legal error can lead to a very bad outcome, you really should consider involving a lawyer as soon as possible.

One of the areas of legal practice I engage in is professional discipline, where I represent individuals either being investigated or prosecuted for professional misconduct offences. Just because the prosecution can't lead to jail doesn't mean it isn't serious. Permanent termination of your professional livelihood could have a far more devastating effect on you and your family than perhaps even a criminal conviction in a court of law.

The challenge with professional discipline matters is that they can creep up on you, where one moment you are working with your regulator to achieve voluntary compliance on routine regulatory requirements, and the next you are being dragged before a hearing tribunal accused of misconduct. With the police, you might be on guard from the start with respect to what you say, know that you generally don't have any duty to assist the police with most investigations, and realise that the police require prior judicial authorization in order to demand and seize records from you. Not so with professional regulators.

In exchange for the privilege - not right - of practicing your profession, you've explicitly or implicitly agreed to be subject to all sorts of rules and intrusive information gathering powers. The quite reasonable goal is protecting the public from the few shady professionals out there who would take advantage of their professional positions in order to abuse the trust of the public, secure unreasonable financial advantage for themselves, or flaunt the ethical rules governing the profession. The tricky part for every professional is navigating the interface between the rules and the public, which usually takes the form of a professional regulatory body and could also manifest itself through an employer like a hospital.

To take the example of physicians, if you are asked about your conduct concerning the care of a patient a host of legal questions could arise.

  • Who are your required to respond to? 
  • What information must you provide? 
  • What are the consequences of not responding or not providing all requested information? 
  • What could be the consequences of your disclosing facts which could lead to an investigation into your own actions or the actions of others? 
  • What should you do if accused of professional misconduct? How can you best demonstrate your innocence? 
  • What kind of settlement with your professional regulator might be negotiated? 
  • What kind of evidence is admissible before a professional discipline tribunal, and are the rules different from those applicable in a court of law? 
  • What kind of rules of procedure govern discipline tribunals? 
  • What sort of rights of appeal do you have if convicted of professional misconduct by a tribunal?
These are all questions that a lawyer may be best placed to answer.

If you're looking for a lawyer to assist you with professional discipline matters, make sure you seek out one with a background in these kinds of cases because they straddle the criminal and civil litigation realms - not all criminal or civil litigators will be willing to undertake or be familiar with the work. Unlike criminal investigations, you may actually be required by law to provide information to a professional misconduct investigator, however unlike most civil matters there can be penal consequences for failing to cooperate.

Rules of procedure and evidence before professional discipline tribunals can be quite unique to each tribunal, and are generally less formal than those you will find in a court. But as a regulated professional you still have rights, including rights to an investigation and hearing process that operates in a manner  consistent with principles of natural justice.

While professionals being taken before a discipline tribunal may be more able to afford legal representation than the general public when dragged into a criminal or civil court, professionals should not underestimate the potential resources required to mount a vigorous defence to professional misconduct allegations. Hearings can be lengthy and complex, and appeals can extend proceedings. Legal Expense Insurance is available in Canada at reasonable cost to cover legal representation in many professional discipline situations, especially for healthcare and education professionals.

Involving a lawyer as early as possible during the investigative - rather than formal hearing - stage of a regulatory professional misconduct inquiry is likely the best strategy for minimizing your legal fees, as the lawyer will be able to guide you on which information you do and do not have to provide to regulators, and might be able to negotiate a settlement of your matter prior to it going before a formal tribunal.

Friday, April 6, 2012

Should I Appeal?

Osgoode Hall, 1856 (currently home of Ontario Court of Appeal, Divisional Court and Law Society of Upper Canada); photo credit: Library and Archives Canada, creative commons licence

Lately, lots of clients and prospective clients have been asking me the very brief but important question: "Should I appeal?" Wrapped up in those three words are all sorts of hopes, fears and realities, at least some of which I'll try to sort out for you in this post.


First the hopes. The fundamental hope is that the appeal will improve upon the results at trial. When clients ask me what their chances are on appeal, I officially need to tell them: "it depends." Depends on the law and facts at their trials, on which judges they draw on appeal, and perhaps in which directions the judicial appellate winds are blowing in Canada during a particular year for the legal issues which can be best contested on appeal.

But statistically, I can tell them that about 1/3 of criminal appeals succeed, and about 1/4 of civil appeals are successful. That criminal appeals have a higher rate of success is quite consistent with the courts wanting to do everything possible to protect the rights of the accused from wrongful convictions, or serious rights violations. These factors don't come into play in civil appeals. But even a one in four chance still isn't bad odds. In fact, your odds on appeal may be as good or better as your odds at trial.

One does need to be realistic about the likely outcome of even a successful appeal. Here the civil outcomes may be better than the criminal outcomes. In the criminal world for successful conviction appeals the outcome is likely the ordering of a new trial. Not really such a bad result, because the conviction is overturned, but you need to be prepared both psychologically and financially for another trial. The Crown won't always proceed with a new trial, but you need to be prepared just the same.

Successful sentence appeals in criminal matters are more to the point: either the court of appeal will substitute an appropriate sentence itself, or less commonly will send the case back to the trial judge for resentencing based on the correct legal principles. A new sentencing will, in any case, still be a relatively quick process compared to a new trial.

It is rarer for a court of appeal to overturn a criminal conviction and enter an acquittal itself - rather than letting the trial court reconsider if an acquittal is justified during the course of a new trial - but it does happen. Retaining a skilled and experienced appellate lawyer will ensure you maximize your chances of an acquittal on appeal.

On the civil side of appeals you don't see these same tendencies towards ordering retrials. New trial orders do occur, but courts of appeal dealing with civil matters seem more open to correct the errors of lower courts through proactive action in order to bring some finality to proceedings.


Next the fears. You might wonder: could things get worse if I appeal? Probably not. At least in criminal matters. Starting an appeal can always invite a cross-appeal from the other side - either in retaliation for daring to appeal the trial judgment, or because your opponents figure that if they are going to be paying legal fees to respond to your appeal, they might as well appeal themselves which might not require expending much more in the way of legal fees that just responding without cross-appealing.

This appeal in retaliation or because you're going to be there anyway decision process generally doesn't come into play in criminal proceedings, where the Crown's decision making is governed by what is in the public interest. So appealing your conviction or sentence will usually mean at worst that you are stuck with the trial result if you lose, not that you'll get convicted of extra offences or have your sentence increased.

Unless you can negotiate some kind of binding agreement with the parties after trial where all agree not to appeal, I tell clients not to base their appeal decisions on what the other parties might or might not do. If everyone has 30 days to appeal, you can't wait until the 29th day to determine if an opposing party will appeal before deciding on your own appeal. Sound appeal decision making needs to start on the day of judgment, so that you have the full 30 (or fewer) days to assess your appeal prospects, grounds, and the resources you will use to pursue the appeal.


Lastly the realities. An appeal will cost you more money, after you may have already spent quite a bit on your criminal defence or civil claim at trial. It might cost less or more than your trial cost, depending on the length of your trial as well as the complexity and number of the issues to be appealed. Plus you'll need to budget for transcript costs, which can be in the range of $500 or so per day of trial (you usually need 5 copies to be ordered if proceeding to a court of appeal - but depends on how many judges will be sitting on your appeal, and the local rules of court).

The upside is that appeal costs are much easier to predict in advance than trial costs. Most lawyers (at least criminal lawyers) will usually quote you a flat fee for their fees on an appeal, so you can assess in advance if it's worth it to you. You'll be faced with the age old dilemma: I've already spent so much at trial, how can I possibly stop fighting now when I do have a reasonable chance of success on appeal? - versus - should I just cut my losses and stop fighting now?

One way to resolve this dilemma is to retain a lawyer just to give you an opinion about your prospects of success on the appeal, before committing to a full blown appeal. However, because that lawyer will often need to see the trial transcripts in order to give you an opinion, and your notice of appeal will usually need to be filed within 30 days of the trial judgment, you might be best off just hiring someone for the whole appeal in order to avoid transcript delay and having to file a protective basic notice of appeal.

So, should I appeal? I would say the answer is definitely "YES" if your case isn't totally hopeless (these are rare) and there was a big downside to the trial judgment (getting a criminal record when you never had one before, having to serve a long prison sentence or pay a large fine or large award of damages in a civil case, or you lost an important argument on a point of principle).

You should canvass appellate lawyer fees before deciding you can't afford an appeal. Because you may be able to receive a fixed price quote, and the only significant disbursement may be the transcript costs, an appeal could actually be more affordable than you thought it would be.

For instance, I'm often able to conduct appeals for clients across Canada at rates that are competitive to local counsel. I don't charge clients any extra for travel costs because appeals represent a significant investment by a client for which I will devote quite a bit of time, appeal hearings usually take less than a day (unlike trials that can drag on for weeks), and certain preliminary matters like bail pending appeal applications or other motions can be dealt with before a court of appeal by way of video or teleconference. For Federal Court and Tax Court matters, hearings are held throughout Canada so there can be some choice as to where a case proceeds. Plus my office is close to the Supreme Court of Canada, if you're considering an appeal from the judgment of a court of appeal (usually you can attempt two appeals - each to a higher level of court - and sometimes three appeals are possible).

But in getting a fair answer to the question "should I appeal?" make sure you consult counsel with appellate experience. For example, I have appeared as appellate counsel several times before the Supreme Court of Canada, and many times before provincial and federal appellate courts.

The appeals process is quite different from the trial process, and legal rather than factual arguments predominate. Your lawyer needs to understand what appeal judges want to read in the extensive written arguments which are filed, how to craft trial facts based on the trial evidence transcripts and exhibits in the way which most persuasively supports your legal argument, how to pitch nuanced points of law to the appeal court, and how to present an oral argument that removes any doubts which remain among the appeal judges about the correctness of your written submissions which they'll have received long before the hearing of the appeal.

The wide (but not unlimited) availability of appeals within Canada means that being a party to litigation (whether as an accused, a civil plaintiff or defendant, or in administrative proceedings involving government) involves being prepared for more of an endurance race than a sprint.