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Lawyers Looking for Leads? Some Upcoming Legal Networking Opportunities

7/23/2018

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Referrals from other lawyers are a great source of new business for law firms. Attending legal events and meeting other lawyers in-person is one key way to building your personal network and finding those potential referral sources.

Sometimes, however, lawyers can get too busy to research potential networking events so we’ve done that for you! Below is a list of some networking opportunities coming up for July to October 2018. (While most CLE/CPD events contain some element of networking, our list focuses on networking-only or mainly social events):

CANADIAN/ONTARIO BAR ASSOCIATION
OBA Women Lawyers Forum - Mix and Mingle: September 12, 2018 at the Metropolitan (20 Victoria Street, Toronto) at 5:30pm. No registration fee, regular food/drink rates apply. 

OBA Canadian Corporate Counsel Association, Ontario Chapter Event - Fall Social: September 20, 2018 at Jump Café & Bar, Toronto. Free for members of the CCCA but must register before September 6, 2018.

OBA Young Lawyers Division – Kick-Off Social Event: Monday September 24, 2018 at CRAFT Beer Market, Toronto. No charge for CBA Members and CBA Students. Non-Member charge of $15.00

TORONTO LAWYERS ASSOCIATION

TLA Summer Patio Pub. Wednesday August 29, 2018. Location: The Porch, 250 Adelaide St.W. Members: free Non-Members: $20. Must pre-register online.

HAMILTON LAW ASSOCIATION

New Lawyers’ Meet n’ Eat, Lunch. 12:30-2:00pm.  August 15, 2018. 7th Floor John Sopinka Courthouse, Hamilton. $5.00 - at the door or in advance.

Commercial Litigation Dinner, October 4, 2018. The Spice Factory, Hamilton. $95.00.

COUNTY OF CARLETON LAW ASSOCIATION

Annual Golf Tournament & BBQ (Kanata). August 21, 2018. Golf, cart and reception $140.00 (plus HST) before August 1, 2018.

Opening of the Courts, September 26, 2018. Courtroom #37, 3rd Floor, Ottawa Courthouse. 

WOMEN’S LAW ASSOCIATION OF ONTARIO

WLAO/CAWEE 17th Annual Deb Snead Memorial Golf Event, Toronto. September 17, 2018. Member: $155.00, Non-Member: $180.00

THE ADVOCATES’ SOCIETY

Big Mingle (Montreal): Young Advocates’ Standing Committee invites Montreal articling students to stop by the Bar Don B Comber on July 26, 2018. 

Big Mingle (GTA): Young Advocates’ Standing Committee invites GTA articling students and summer students to drop by on August 15, 2018. Exclusive to law students and articling students only. 

Young Advocates Pub Night (Toronto). September 6, 2018. Hot House Restaurant and Bar. Your business card is your ticket.

Breakfast with Tiffany’s (London). Networking breakfast for women advocates on September 13, 2018. Members: $40 (plus hst), Non-Members: $65 (plus hst).

1st Annual Montreal Gala on September 20, 2018 at the Hotel Le Mount Stephen. Hear from Canada’s Chief Justice. Members: $200.00 (plus tax), Non-Members: $250.00 (plus tax).

Young Advocates’ Standing Committee Fireside Chat (Toronto) with Justice Cynthia Petersen and Sandra Barton. October 4, 2018. Members: FREE, Non-Members: $30.00 (plus tax).

Breakfast Near Tiffany’s VII (Toronto). Beyond Mentoring: A Dialogue on Sponsorship for Women Advocates. October 10, 2018. Four Seasons Hotel. Members Only Event, $75.00 (plus tax).

YOUNG WOMEN IN LAW
Articling Student Drinks on August 29, 2018. At Batch, 75 Victoria Street, Toronto. Free for articling students, must register online.

Know of any other upcoming social or networking events? Let us know! And we hope to see you at some of these events soon.

(Please double-check dates/times/location/prices directly on the associations' website as this information may change).

*Photo by Jens Johnsson on Unsplash
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What We Learned at the “LSO Solo and Small Firm Conference: Top Tips for the 21st Century Lawyer”

6/12/2018

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Did you miss the Law Society of Ontario’s solo and small firm conference this year?

We’ve attended this conference every year for the last four years and each year we are impressed with the topics and programs. This conference is always appropriately geared toward issues that solo and small firms face and provides great networking opportunities throughout the day. As freelance lawyers, we are all technically “sole practitioners” (although we are not really sole practitioners, see our blog post on why that is, here) and face the same issues solos/small firms face, so it is a great program for freelance lawyers as well.

This blog post will provide some of the highlights of this year’s conference, in case you missed it!

The title for the conference was: Solo and Small Firm Conference 2018: The 21st Century Lawyer. The chairs were, once again, Kathleen Erin Cullin and Allan Oziel, this year joined by Barbara Hicks.
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The opening plenary was by Jack Newton of Clio and was called Using Data to Deliver a Better Client Experience. Jack provided quantitative data (U.S. based) to show how consumers find their lawyers and how lawyers are failing (or succeeding) in delivering legal services (are we capturing all of our time? Are we being efficient? Are we using technology to cut down on inefficiencies?) Our only feedback on this session is that it was too similar to last year’s opening plenary.

After that, we attended a session by Noel Semple called Enhancing Profitability while Increasing Access to Justice. While this topic seems like a bit of an oxymoron, Noel spoke about finding the “Sweet Spot” for personal plight lawyers (lawyers who deal with family law, criminal, and estates, etc. where personal problems and emotions are involved rather than corporate issues) between providing quality and professional services, making a profit, and offering accessible legal services. One possibility was to provide unbundled legal services or working on a limited scope retainer. Another tactic was to learn to delegate or outsource legal work. We wholeheartedly agree with this, outsourcing certain tasks (legal research, drafting, court appearances, blog post drafting) to freelance lawyers (who often charge out at a lower rate) means you can pass those savings on to your client and free up your time.

Megan Cornell, the Founder and CEO of Momentum Law next spoke on using technology to scale your firm or practice at the session Scaling Your Practice: Make More Money with Better Technology and Processes. I wish I had taken more notes during this session as it appears her presentation and slide deck are not in the provided material (unless it has now been recently added?) Megan spoke about doing more with less and getting rid of inefficiencies in your office. For example, she spoke about the “Two Scoop Solution” that her law firm embraces. This came from their use of a coffee machine that required 8 scoops of ground coffee for the perfect pot of coffee. The problem was it took a long time to scoop out 8 scoops. So, they found a larger scoop and figured out two of the larger scoops equalled 8 of the smaller scoop, reducing their time spent on making coffee in the morning. Anything that reduces redundancy and helps with efficiencies improves the overall practice of law and makes for a better client (and lawyer) experience. Megan spoke about some of the technology she uses to automate her practice as much as possible (including Clio, Office 365, Lexicata, Athennian, Closing Folders, LawPay, Typeform, etc.)

We learned how to “cherry-pick” our clients in a session by Marni MacLeod, the Vice President of Skunkworks Creative Group Inc. Marni suggested using “client personas” to target the right audience. What is a “client persona”? It is basically a composite sketch that includes realistic characteristics for a segment of your clients or a new client group you want to attract. Who is your ideal client? A starting point is to look at the clients you already have and look for patterns you can identify, for example clients with a specific legal problem, clients who came from the same referral source, etc. Marni then took us through an exercise to help us start our client personas, so we could target our marketing correctly.

Finally, we attended a session by Brooke MacKenzie of MacKenzie Barristers Professional Corporation, who spoke about 10 Ethical Issues to Watch Out for in Practice. These included the new rules on marketing and marketing restrictions, joint retainer issues, referral fees, conflicts etc.

There were several other sessions happening concurrently that included sessions on the new tax rules; a guide to working with expert witnesses; building a practice that fits your life; disability and accommodation issues in your practice; running your practice as a business; etc. (We unfortunately missed the closing plenary on “Becoming a Blockchain Lawyer” as we had to sneak out early to prep for The Advocates’ Society End of Term dinner.)
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Another bonus for conference attendees were unique workshops that were available to those who signed up in advance. The topics for these workshops were: Building Your Professional and Personal Brand on LinkedIn, Using Storytelling Techniques to be more Memorable, Effective Negotiation Principles and Strategies, and Growing your Practice through Equity and Inclusion.

Networking opportunities happened throughout the day (and the night before at the Treasurer’s Dinner at Osgoode Hall), which is always a great way for solos and small firm lawyers to make connections with other lawyers in their areas of practice or to find referral sources. These breaks also gave us a chance to visit the exhibitors’ booths and learn about new technology and services geared toward solo and small firms. Or you could wander over to the “ingenious bar” where you could speak to representatives from various LSO associations: Homewood Health, LawPro, Law Society Referral Service, Practice Management Helpline, Spot Audit, the Action Group on Access to Justice, etc.
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We look forward to attending next year’s Solo Small Firm Conference and hope to see you there! 
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Double Booked for Court? How Freelance Lawyers Can Help

5/1/2018

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Many lawyers are aware that freelance lawyers can assist other lawyers and law firms with legal research, drafting, due diligence and other “behind the scenes” legal work. However, that is not all we do. Freelance lawyers can also assist with in-person court appearances, discoveries, cross-examinations, mediations, etc.

Often sole practitioners, or lawyers at smaller firms, do not have the luxury of asking the lawyer down the hall to step in for them should an emergency arise, or when they are double-booked. Flex Lawyers can be the lawyers you turn to, to act as your agent. Below are just some of the examples of how our Flex Lawyers have assisted other lawyers and law firms in the past:
  • attended all-day discoveries where the client was a minor party and the lawyer wanted to keep costs down;
  • assisted as second chair on an appeal where the sole practitioner did not represent the client at the trial and needed assistance getting up to speed quickly;
  • attended case conferences;
  • argued adjournment motions;
  • argued motions for substituted service;
  • appeared on consent matters;
  • appearance to vary an order; etc.
  • We also have experienced trial lawyers who are ready to assist!
Litigators love to be in court, we get it, we are litigators too. But sometimes it does not make sense for some lawyers to sit in court all day for a minor appearance. The costs are just too high and the time commitment can be significant. Hiring a Flex Lawyer to step in for you frees up your valuable time and you can pass those cost-savings on to you client.
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Contact us to learn more about our court appearance services in Toronto. 
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Toronto Lawyers: Have You Volunteered with the Pro Bono Ontario Hotline, Yet? by Erin Cowling

4/10/2018

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We all know there is a real “access to justice” issue in Canada; but not all of us know what steps we can take to change this. There is now one simple and rewarding way for you to help: volunteer with Pro Bono Ontario’s Free Legal Advice Hotline.

This service was launched in September 2017 and is a call-in hotline that provides real legal advice, as well as assistance with drafting letters and court forms, at no charge for people without access to legal representation. Because it is a hotline, the volunteer lawyers can help a significant number of individuals who cannot access traditional legal services due to geography, disability, childcare obligations or inflexible work schedules.

I volunteered a day of my time in early March. The call centre is easily accessible for volunteers and is located a short distance from the Eglinton subway station. Volunteers arrive at 9:00 am for a quick tutorial on how to use the phones and the intuitive Salesforce platform. Do not worry, if you forget how to use the program, they have very helpful and knowledgeable staff on hand all day to assist. Volunteers then answer phone calls from 9:30 am to 4:00 pm with a lunch break. The calls are limited to 30 minutes, so you are able to assist several individuals all across Ontario in one day.

I found it to be a very rewarding experience and quite fun. I answered a variety of questions and provided advice on possible causes of action, serving and filing deadlines, and warning of potential limitation period issues, just to name a few. While you might be wondering how you can really assist someone in just 30 mins you would be surprised to learn how much can be accomplished in this short period of time. Being immersed in the law and legal procedures on a daily basis, lawyers often forget how inaccessible the law can be for those without legal training. Volunteers can easily assist someone in moving their case forward by directing them to the correct form to fill out or by simply explaining what a “tort” is.  

Volunteers can choose the areas of civil law they wish to service (no family law or criminal law): civil procedure, employment, consumer, housing, corporate law for small businesses, charities and non-profits and creating powers of attorney. Pro Bono Ontario also has a great knowledge management database with articles and other resources to help you if you are not fully up to speed on a certain area of law.

Also, in addition to helping a great cause, you get to meet other lawyers who are volunteering their time. It is an effective networking opportunity.

I would highly recommend volunteering and encourage all lawyers to consider signing up to volunteer a day of your time. All you have to do is fill out the simple online application form here. Then the next time the topic of access to justice comes up, you will know that you have taken at least one step in solving this widespread problem.

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Some U.S. Law Firms Offering "Unbundled" Legal Services Facing Pushback from Courts: Is Canada Faring Better?

3/5/2018

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In a growing number of jurisdictions lawyers may choose or agree to take on part, but not all, of a client’s legal matter with the client’s consent. These agreements are often called ‘limited scope retainers’ or the provision of ‘unbundled legal services’.

The Law Society of Ontario (formerly the Law Society of Upper Canada) amended the Rules of Professional Conduct in 2011 to explicitly allow lawyers to enter into limited scope retainers and clarified the requirements when doing so, such as having the retainer in writing and signed by the client.

Limited scope retainers can cover a wide variety of situations, including when a lawyer ‘ghostwrites’ pleadings (or a factum or motion material, etc.) for a self-represented litigant, but does not appear in court on their behalf or become solicitor of record. The number of lawyers offering this type of service in Canada continues to increase. Also, in addition to unbundled services, some lawyers are also offering legal "coaching" which involves coaching or mentoring self-represented litigants through their cases.

There are many reasons why the LSO and other regulators would allow such retainers, including, most importantly, tackling the access to justice problem our society faces and providing an affordable option for litigants who cannot pay for full legal representation. While most lawyers get paid for their limited scope retainers, it can also encourage lawyers to take on manageable and limited pro bono assignments.

However, some have questioned (and I would argue unnecessarily) whether such unbundled services are ethical, especially in the context of ‘ghostwritten’ pleadings. These critics argue that the judiciary or opposing counsel may be misled by the material presented, or the clients may not understand what was written by the lawyer or their legal position. Also, some argue that these purportedly unrepresented litigants may take advantage of the courts’ tendency to overlook defects in unrepresented court filings. The main concern, however, seems to be that if a lawyer’s identity and involvement are not revealed, they may not be held accountable for potential violations of the Rules of Professional Conduct or for solicitor negligence (see the American Bar Association's Formal Opinion 07-446, which looks at, and dispels, some of these criticisms).

Just last week it was reported that a Florida law firm is facing push back from the courts for assisting pro se (self-represented) litigants. The Florida Bar's Rules of Professional Conduct allow limited representation so long as the attorneys provide clear notice of their participation. Specifically, a lawyer can draft and not sign documents for an unrepresented litigant, but must add language to show the filing was "prepared with the assistance of counsel". It appears that judges are reacting negatively when they read this on pleadings and believe that something "suspicious" is going on behind the scenes. One judge, after noticing the line saying "prepared with assistance of counsel" on a pro se litigant's document,  ruled against the pro se litigant and ordered him to reimburse the plaintiff for an hour's worth of legal fees and ordered the firm to either step aside or become solicitor of record. The law firm in question believes that the issue is ignorance of the limited scope retainer rules and that instead of being "lauded or praised" for their initiatives, they are being "castigated" for their attempt to help pro se litigants. 
 
In 2015, the top court in Rhode Island examined the practice of ghostwriting pleadings for self-represented litigants after three lawyers had been sanctioned by a lower court. In FIA Card Services, N.A. v. Pichette, No. 2012-272-Appeal (R.I.2015) the Rhode Island Supreme Court concluded that a lawyer may not ‘ghostwrite’ or otherwise assist a self-represented litigant with the preparation of pleadings, motions, or other written submissions unless the lawyer signs the document and discloses his or her identity and the extent of his or her assistance. However, the lawyer may also indicate that they are not the attorney of record.  

In its decision the RI Supreme Court stated that until they are persuaded otherwise, full disclosure of a lawyer’s involvement is the better practice. A lawyer who prepares such documents must still be held to the same standards as a solicitor of record. However, the Court also asked for comments from members of the bench, bar, and public on the subject of limited scope representation in general and the practice of ghostwriting in particular.

What was concerning for the Court in the Rhode Island case was that the self-represented litigants did not understand their legal positions or the material that had been drafted by the ghostwriting lawyers. They also thought that the drafting lawyers were their retained attorneys of record. This suggests that the lawyers did not do a good job of explaining their limited scope retainer or the legal work that they provided.

Has this type of pushback occurred in Canada? What are the best practices for Canadian lawyers who provide unbundled services?  

The Rules of Professional Conduct are silent on the requirement of a lawyer to reveal his or her identity and involvement in assisting a self-represented litigant and no Ontario court appears to have commented on this particular issue. The Rules of Civil Procedure (Rule 15.01(4)) and the Family Law Rules (Rule 4 (1.3)), specifically allow a lawyer to enter into a limited scope retainer and not become a solicitor of record (a party represented by a lawyer under a limited scope retainer is considered to be acting in person unless the limited scope retainer includes the lawyer acting as solicitor of record). However, with that being said, if a self-represented is asked by the court if they are receiving assistance from a lawyer, they should answer honestly. 

The concerns raised by critics of unbundled legal services can all be managed with proper procedures put in place by lawyers with their clients. Having the limited scope retainer in writing, clearly communicating with the client the scope of the retainer(especially at the intake meeting), working within your expertise, being careful of clients with hidden motives or unrealistic expectations, explaining the content of the documents you draft, and using a clear fee agreement, will all help avoid any ethical issues. 

Ultimately, the benefits of providing unbundled legal services and legal coaching far outweigh the negatives if the proper consideration and steps are taken. Lawyers starting their own practice can quickly build a client base due to the unmet need for affordable legal services, especially in the family law context. For more information on offering unbundled legal services in Ontario see the following resources:

LawPro - PracticePro - Limited Scope Retainer Resources
Law Society of Ontario - "Unbundling" of Legal Services
National Self-Represented Litigants Project - The Nuts and Bolts of Unbundling: A NSRLP Resource for Lawyers Considering Offering Unbundled Legal Services 

This post was written by Erin Cowling. While Flex Legal does not offer unbundled legal services to self-presented litigants (we work for other lawyers and law firms), we support this type of practice and are happy to assist our lawyer and law firm clients who do provide these services.
If you are a lawyer who needs assistance with your overflow legal work, please contact us to learn how we can help you free up your time to focus on what is important to you (family, exercise, travel, or even bringing in more billable work).  We are lawyers helping lawyers. 
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Ontario Lawyers: Are You Aware of Your New "Equality & Inclusion" CPD Requirements?

2/23/2018

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In September 2017 the Law Society of Ontario introduced changes to the continuing professional development requirements for lawyers (and paralegals), based on recommendations in the Final Report on the Challenges Faced by Racialized Licensees Working Group.

The LSO now requires the completion, between January 1, 2018 and December 31, 2020, of at least 3 Professionalism Hours that focus on advancing equality and inclusion in the legal profession. For each following year only 1 equality and inclusion hour must be completed. These hours also count toward the general CPD hours requirement.

This new requirement was implemented as part of the LSO’s ongoing “commitment to advance equality, diversity and inclusion in the legal profession and address barriers faced by racialized licensees”.

The LSO has adopted a “flexible and iterative approach” to the equality and inclusion professionalism hours and have outlined three objectives 1) inclusive legal workplaces in Ontario; 2) reduction of barriers created by racism, unconscious bias and discrimination; and 3) better representation of racialized licensees, in proportion to the representation in the Ontario population, in the professions, in all legal workplaces and at all levels of seniority. Programs that advance equality and inclusion or support these objectives will qualify for equality and inclusion professionalism hours.

How will lawyers know if a program is accredited for these new professionalism hours? You will see the new logo on the program marketing materials and agendas.
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For more information on this new CPD requirement, please see Frequently Asked Questions about the CPD Equality and Inclusion Requirement.

3 hours over the next 3 years, does not seem like an onerous commitment at all and hopefully all lawyers and paralegals can quickly and happily fulfill this requirement. We look forward to some educational and interesting programs! 
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Law Society of Ontario Releases Results of Articling Survey

2/15/2018

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​The Professional Development and Competence Committee of the Law Society of Ontario commissioned a survey to research the experiences of articling students as part of its licensing process review. The survey was aimed at lawyers who had completed their articles between 2014 and 2017. A summary of the results was recently released. 

The Law Society reported that while the survey was undertaken as part of the review of the licensing process, one section of the survey related to sexual harassment and racial and gender discrimination. The Law Society decided to make the report public to “add to the current conversations around harassment and discrimination, and to help facilitate a wider discussion and champion a necessary culture shift”.

One of the questions asked was:  “At any time in your articling process, do you feel that you faced any comments or conduct related to your age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation that was unwelcome?”

21% of the 1471 respondents of the survey answered “Yes”.

When asked: “At any time in your articling process, do you feel that you faced any unequal or differential treatment related to your age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation?”

17% of the respondents answered “Yes”.

These numbers are not insignificant.

Other information in the survey revealed that while most of the respondents were paid above $40,000.00 (36% were paid between $40-60K and 32% were paid more than $60k) there are still articling students who are paid nothing (4%) or who are paid less than $20k (8%) for their articles. With 64% of the respondents indicating that they articled in costly Toronto or the GTA, it is hard to imagine how they can survive financially on no income or less than $20k.

A summary of the survey results can be found here. 
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Flex Lawyer Caitlin Beresford Authors Article on the Destruction of Indigenous Residential School Records

1/8/2018

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On October 6, 2017, the Supreme Court of Canada ruled, unanimously, that the collection of documents for the independent compensation assessment process (IAP), a part of the Indian Residential School Settlement Agreement, should be destroyed unless survivors choose to have their records preserved. The Court found that the IAP process was meant to be a “confidential and private process” that claimants and alleged perpetrators could confidentially rely on.

Read Flex Lawyer Caitlin Beresford's thoughts and legal analysis of the case in her article "Indigenous residential school records can be destroyed, Supreme Court rules....but should they?" 

Caitlin started her freelance lawyer practice in 2017 and she assists lawyers and law firms in the areas of Aboriginal law, environmental law and criminal law. Prior to freelancing, Caitlin articled at the Ministry of Aboriginal Affairs, conducting historical, archival, and legal research on various topics, such as land claims, the duty to consult, flooding, Métis, and Treaties, among others. She participated in land claim negotiations and community meetings, and provided litigation support. Once called to the Bar in Ontario, Caitlin moved to Yellowknife, Northwest Territories and worked as a senior legislative advisor, providing expert advice on federal, provincial, and territorial legislation and legal affairs relating to Aboriginal land claims and issues, parks and tourism, mining, access to information and privacy, and the arts.  Since her return to Ontario, Caitlin has worked with a community legal clinic on Aboriginal family law and with the legal services branch of the Ministry of Education, providing legal advice to clients on Aboriginal law, the duty to consult, child care, education, administrative, and public law.

Contact us if you have questions about the paper or if you would like to hire Caitlin to assist your law firm or legal practice. 
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Erin Quoted in Law Times Article on Issues that Can Arise when Lawyers Represent Themselves

12/1/2017

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Erin Cowling was quoted in a recent article "Judge strikes lawyer's claim against firm" by Alex Robinson of the Law Times. The article discusses the case of Sachedina v. De Rose where a lawyer sued his former law firm for wrongful dismissal and chose to represent himself in the proceedings.  The law firm brought a motion to strike the Statement of Claim as it contravened the Rules of Civil Procedure and breached solicitor and client privilege.

Ultimately the Court struck the 87 paged, 259 paragraphed Statement of Claim in its entirety with leave for the plaintiff to deliver a new Amended Statement of Claim within 30 days. The Law Times article addresses some takeaways from the case, including why it is rarely a good idea for lawyers to represent themselves, and the importance of protecting solicitor/client privilege in wrongful dismissal claims brought by lawyers against their former firms. 
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Living in Transitional Times: R. v. Picard

10/2/2017

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By Heather Cross

“May you live in transitional times” could be the modern criminal defence bar’s equivalent of the ancient Chinese curse, “May you live in interesting times.” 

The Ontario Court of Appeal’s decision in R. v. Picard illustrates the level of uncertainty that exists and will continue to exist in the criminal justice system while the “transitional exceptional circumstances” set out in R. v. Jordan remain in play.  Jordan was a Supreme Court of Canada decision released last summer that reworked the framework for determining Charter applications for stays of criminal charges based on unreasonable delay.

Under the transitional regime, courts dealing with cases that were in the system prior to the release of Jordan have to apply both Jordan and Morin, the leading case prior to Jordan. If the court determines that it was reasonable for the Crown to have relied upon the law as it existed under Morin in regard to the delay in question, the delay will not count against the Crown.

Picard was a case that got caught between Morin and Jordan. While the trial judge dismissed the first-degree murder charge against Mr. Picard on the basis of unreasonable delay, the Ontario Court of Appeal overturned the decision, finding that the trial judge erred in her application of Jordan’s “transitional exceptional circumstances.” While conceding that the charges would have been stayed under Jordan, the Court of Appeal found they would not have been stayed under Morin, and it was reasonable for the Crown to have relied on Morin.

Incarcerated for nearly four years, released for nearly nine months after the charges were stayed, re-incarcerated after the Court of Appeal decision and now facing a trial set for April 2018, it has been a long road for Mr. Picard. 

However, the general public likely has little sympathy for this “accused killer”, as he is referred to in the media. It is amazing what a difference the type of crime involved makes to people’s attitudes. When I was working on the Supreme Court of Canada case of R. v. Cody, most people immediately wanted to know what charges Mr. Cody was facing. After they discovered that Mr. Cody had been charged with relatively low-level drug dealing, they were ready to at least entertain the argument that the charges against him should be dismissed due to delay. However, their attitude changed when discussing charges for violent crimes. While they could understand the import of speedy trials, they could not accept people “getting away with murder” on a “technicality” like delay.

I understand the sentiment; however, it is important to recognize that it is sentiment, not logic. Logically, the level of Charter protection applied to a case should not depend upon what the accused individual has been accused of doing. When people read “accused killer”, they too often skip over the “accused” part and focus solely on the “killer” part, forgetting that accused people, whether they have been accused of shoplifting or murder, are legally innocent.

While the Court of Appeal’s decision focused primarily on other factors, the seriousness of the offence was certainly one of the factors it considered:

First degree murder is the most serious offence in the Criminal Code. Given the serious nature of the alleged crime, there is a heightened societal interest in a trial on the merits. The trial judge appears to have interpreted the Supreme Court of Canada’s decision in Williamson as standing for the proposition that the seriousness of the offence was neutral. As a result, she failed to take this interest into account. In Cody, the court makes it clear that, when doing the Morin analysis in the context of the transitional exceptional circumstance, the seriousness of the offence remains a significant consideration: paras. 70-71.This passage highlights what I consider to be one of the most positive changes made by Jordan: whereas under Morin, the seriousness of the offence could be taken into consideration as part of the 11(b) analysis, under Jordan it cannot. 

In my opinion, if anything, 11(b) of the Charter should be applied even more strictly in cases involving serious crimes than those involving lesser crimes:
  •  Firstly, individuals accused of serious crimes are often not released on bail and thus remain incarcerated until trial, with the result that legally innocent are held in jail for years. 
  • Secondly, the victims and family members of the victims of serious crime deserve to receive a degree of closure through receiving a verdict in a reasonable amount of time. 
  • Thirdly, given the severity of the sentences and the high level of stigma faced by individuals charged with serious crimes, it is simply merciful to ensure that the charges be resolved as soon as possible, rather than being left to hang over the the individual’s head.

Unfortunately, Mr. Picard’s case has been caught in the transitional maelstrom.* However, the Court of Appeal’s statement that the charges would have been dismissed under Jordan provides a ray of light for defence counsel bringing 11(b) applications in murder and other serious cases under Jordan. Now that the seriousness of the offence can no longer be considered, hopefully 11(b) will be applied equally to all charges. Whether we are dealing with an “accused killer” or an “accused shoplifter,” the focus should remain on the “accused” part.


* Word on the street (and in CBC News) is that Mr. Picard will be applying for leave to appeal to the Supreme Court of Canada. It will be interesting to watch how this plays out.

Heather Cross is a Flex freelance lawyer who assists other lawyers and law firms in the area of criminal law (drafting facta, appeal books, legal research and drafting) and assists with Supreme Court of Canada agency work.
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