Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.
This week’s summaries concern:
Real Property Tax – Criminal Law – Evidence
Saskatoon (City) v. North Ridge Development Corp. 2015 SKCA 13
Real Property Tax
Summary: The City of Saskatoon applied for leave to appeal two decisions of the Assessment Appeals Committee pursuant to s. 33.1 of the Municipal Board Act. Both decisions concerned the same land owned by North Ridge Development Corp. in the City, but pertained to two tax years: 2011 and 2012. The Saskatchewan Court of Appeal, per Jackson, J.A., dismissed the application. …
R. v. Hancock (A.R.) 2015 NLPC 1313A00983
Criminal Law – Evidence
Summary: The accused was charged with assault while using a weapon (Criminal Code, s. 267(a)). He argued that the fight was consensual and that he acted in self-defence. The Newfoundland and Labrador Provincial Court convicted the accused. …
R. v. Araya (N.) 2015 SCC 11
Summary: The accused was charged with second degree murder after a shooting in a park. He was found guilty of manslaughter on the basis of party liability under s. 21(2) of the Criminal Code, and sentenced to eight years in prison, less credit for the equivalent of 15 months’ pretrial custody. He appealed against both his conviction and sentence. The Ontario Court of Appeal, Strathy, J.A., dissenting, allowed the appeal against conviction and ordered a new trial. In the …
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : L’incompétence manifeste de l’avocat de l’accusé, qui porte atteinte à la présomption de compétence généralement reconnue aux avocats, fait en sorte que la tenue d’un nouveau procès s’impose.
Intitulé : Agnant c. R., 2015 QCCA 465
Juridiction : Cour d’appel (C.A.), Montréal, 500-10-004555-106 et 500-10-004672-109
Décision de : Juges François Pelletier, Marie-France Bich et Martin Vauclair
Date : 13 mars 2015
PÉNAL (DROIT) — procédure pénale — procédure fédérale — appel — nouvelle preuve — décision disciplinaire — incompétence de l’avocat — radiation provisoire — connaissance du dossier — connaissance des règles élémentaires du droit criminel — obligation de suivre des cours de perfectionnement — tenue d’un nouveau procès — agent des services correctionnels — trafic de drogue — organisation criminelle.
PÉNAL (DROIT) — garanties fondamentales du processus pénal — droit à un procès juste et équitable — agent des services correctionnels — trafic de drogue — organisation criminelle — incompétence de l’avocat — connaissance du dossier — connaissance des règles élémentaires du droit criminel — nouvelle preuve — décision disciplinaire — radiation provisoire — obligation de suivre des cours de perfectionnement — tenue d’un nouveau procès.
DROITS ET LIBERTÉS — droits judiciaires — audition publique et impartiale par un tribunal indépendant — droit à un procès juste et équitable — agent des services correctionnels — trafic de drogue — organisation criminelle — incompétence de l’avocat — connaissance du dossier — connaissance des règles élémentaires du droit criminel — nouvelle preuve — décision disciplinaire — radiation provisoire — obligation de suivre des cours de perfectionnement — tenue d’un nouveau procès.
Requête pour preuve nouvelle et appel d’une déclaration de culpabilité. Accueillis.
L’accusé était agent des services correctionnels dans un établissement de détention lorsqu’il a été arrêté et accusé de plusieurs infractions reliées au trafic de drogue, le tout en association avec une organisation criminelle. Il a été déclaré coupable à la suite d’un procès devant jury et condamné à une peine d’emprisonnement totale de 96 mois. L’accusé se pourvoit à l’encontre tant du verdict que de la peine. Il recherche la permission d’invoquer l’incompétence de son avocat en première instance et de présenter une nouvelle preuve composée de diverses décisions disciplinaires prononcées à l’égard de ce dernier, de même que son affidavit et son contre-interrogatoire. Quant à l’appel du verdict rendu, d’une part, l’accusé allègue avoir été privé d’un procès juste et équitable en raison de l’incompétence de son avocat, lequel a été l’objet d’une radiation provisoire à la fin de celui-ci. D’autre part, il fait valoir des difficultés relatives à la traduction officielle de conversations téléphoniques interceptées, étant d’avis que le tout devait déboucher sur un arrêt définitif des procédures, ce qui lui a été refusé.
Le second moyen de l’accusé doit être rejeté sommairement puisque la preuve au dossier ne permet pas de conclure que la juge aurait commis une erreur révisable en refusant l’arrêt des procédures. Il y a toutefois lieu d’admettre la nouvelle preuve et de faire droit au premier moyen de l’accusé étant donné qu’il s’agit d’un cas exceptionnel où il est possible de conclure que le verdict a été obtenu au terme d’un procès au cours duquel l’avocat de la défense était manifestement incompétent, ce qui a d’ailleurs suscité, tout au long du procès, plusieurs commentaires de la part tant de la juge que du ministère public. Ainsi, l’avocat n’avait pas pris connaissance du dossier, même de la façon la plus élémentaire, et il a agi de manière préjudiciable à l’accusé, à la fois par ses propos devant le jury et par sa prestation générale. En outre, ses admissions contraires aux intérêts de l’accusé et incriminantes de même que son ignorance marquée et généralisée des règles élémentaires du droit criminel ont irrémédiablement saboté la défense de son client tout en facilitant la tâche du ministère public. Un juré aurait d’ailleurs remis en question le caractère juste et équitable du procès en raison de cette performance. La nouvelle preuve démontre par ailleurs que le Barreau du Québec avait imposé à l’avocat de suivre des cours de perfectionnement, vu ses lacunes en droit, et de s’engager à n’accomplir aucun acte professionnel sans la supervision d’un maître de stage, ce qu’il n’a pas fait. En l’espèce, l’avocat n’avait tout simplement pas le droit d’accepter la représentation de l’accusé dans ce procès. Dès lors, la présomption de compétence généralement reconnue aux avocats est singulièrement atteinte. Il y a lieu d’ordonner la tenue d’un nouveau procès.
Le texte intégral de la décision est disponible ici
For the next while the Friday Fillip will be a chapter in a serialized crime novel, interrupted occasionally by a reference you might like to follow up. Both this chapter of the book and the whole story up to this point can be had as PDF files.
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“Aren’t you going to write any of this down?” Her name was Gladys Tremaine, Mrs. Gladys Tremaine, thank you very much — Mr. Harold Tremaine had died almost twenty years ago — and she was a taut, trim old woman with sceptical dark eyes and a no-nonsense, steel grey bob.
Rangel smiled. “I have a pretty good memory,” she said.
“Hmph. I’ve kind of had it with ‘pretty good.’ I need something really good, not the next best thing.”
Rangel nodded, serious now. “I’m really good. At remembering, certainly.”
Mrs. Tremaine narrowed her eyes. “Eidetic?”
“Something like that. But you didn’t come to talk about my memory, surely.”
“Bet you didn’t figure I knew that word, hmm? Used to be the town librarian. Back when we had a library. And books.” She looked around her in the motorhome. And then at the laptop computer on the table. “No books. Heard about the fire.”
“How may I help you, Mrs. Tremaine?”
“Someone out to get you?”
Rangel leaned back as far as was possible in the bench seat. “I sincerely hope not. I’m planning on being around and functioning for quite a long time, if that’s what you’re concerned about.”
“No, I mean I’m not planning on being around for much longer.” Rangel frowned. “I’m eighty-three. And I’ve had a premonition.”
“Ah,” said Rangel, who could see amber warning lights flashing in the distant reaches of her mind. But premonitioner or not, the woman was a possible client, creatures that had been thin on the ground recently.
“Yes, well. The thing is, I’ve left this . . . this business a little late. Got discouraged.” Mrs. Tremaine looked up defiantly. “It happens.” Rangel said nothing. There was a pause. Then the other woman spoke in a rush. “I’ve been cheated out of some land. Well, not me, strictly speaking, but my nephew. Actually he’s a grand-nephew, I suppose. Great-nephew, some people would say. The son of my niece Margaret. Jared, his name is Jared. And the thing is I don’t know for certain if he’s still alive. If names mean anything he should be, because the Jared in the Bible lived 962 years. How horrible that must have been. But I feel that Jared is still alive. I would know in my bones if he had died. I’m certain of it. Like I told you, I have a premonition that I’m about to die, so there’s some urgency. It’s nothing specific. No disease or anything the doctor can find. Just an intuition that my time has come. Anyway, our whole family has been . . . winnowed, you might say, and it’s only Jared and I who have survived the whirlwind. We’re the last of the St. Michael Tremaines. That’s where we’re from, St. Michael, for generations and generations. Damaged Jared and barren me, that’s the last of us, the stuff at the bottom of the barrel.” Tears forced themselves out of her eyes and angrily she whipped out a handkerchief and blotted them up.
Rangel stayed still, attending.
Mrs. Tremaine opened her mouth to continue, but couldn’t make anything come out. She blinked a few times and tried once more. This time it worked. “It’s funny how that happens. Some families prosper. They multiply. The Dennisons, they did that. Lord, what? Twelve children and each of them fertile as a field. There must be near a hundred of them living at this very moment, all from the unprepossessing stock of Janice and Willard Dennison. I should know. We were in school together. You would have figured them for a pair of life’s losers. Unprepossessing, like I said. Good word, that. They wouldn’t have known it. And there was Harold and me. He was a fine figure of a man. Handsome, muscular, brave, and smart as a whip. But. As the saying goes, ‘Man proposes, God disposes’.” Here she stopped and drew a long breath.
“I’ve been a fool,” she said. “I let them push me around and I just retreated. Now it may be too late. But I can’t die without trying, even at this late date.” She glared at Rangel and banged her small fist down hard on the table. “I want my land back. Our land. Mine and Jared’s.”
“Right,” said Rangel, sitting up straight. “I have some questions. Would you prefer me to wait until you’ve told me more, or may I ask them now?”
With just a bit of guidance, the story emerged with some clarity. Sixteen years ago, Margaret Willoughby, the daughter of Gladys Tremaine’s younger sister, Ethel, was dying of a heart condition. Margaret had one child, Jared, who was fourteen at the time. Jared had a mental disability because of cerebral palsy, and although he was able to look after himself so far as his personal needs were concerned, he was unable to manage the affairs of the world with any confidence or competence. His father had abandoned the family long before and had not been heard of since. The boy’s grandmother, Ethel, was dead. After Margaret died, no one would remain to look after Jared other than Aunt Gladys.
Margaret had incurred some debts that she wished to see paid off before she died, and she wanted to put some money aside for the support of Jared. So she made an arrangement through a lawyer in St. Michael to dispose of the family farm in a way that might accomplish both objectives.
“It’s here,” she told Rangel, pulling a document out of her handbag and smoothing it out on the tabletop before sliding it over to Rangel, who ran her eyes down it. Property law and estates law had never been her favourite subjects in law school. She had preferred the more accessible dramas found in criminal law cases, and sometimes in torts law matters as well. Crimes and crashes. But practising in a small town had meant she’d been required to prepare dozens of wills and facilitate a great many transfers of land. These clients paid the rent, or had up until now. Still, her experience was limited to the routine case — which this was not.
The nub of the deed that she held was this: Margaret had sold the farm to one Lemuel Schantz, subject to a life tenancy. The curious thing, which Rangel read three times, was that the transfer of the life tenancy was made to Gladys Tremaine for the life of Jared Willoughby. The phrase from first year law school swam into her head: a life estate pur autre vie —which, translated from the Norman law French, meant the right to use and enjoy property for so long as another, identified person continued to live. But only for so long: when that person, the measuring life, died, so did the associated right.
“The thing was, Ethel could trust me, you see. She couldn’t leave the farm to Jared. He wouldn’t be able to manage. And if she’d left me the whole shebang, she wouldn’t have been able to raise some money to pay off her debts and make a small nest egg for Jared. Besides when Jared died, I wouldn’t need the farm anymore and neither would the person who came after me to take care of him. Mind you, with his CP they thought he might not live a full life. So this was a sort of . . . King Solomon solution that actually worked. Split the thing, you see.”
She reached to take the deed back from Rangel and then withdrew her hand. “You’ll need to keep this, I suppose,” she said.
“I’ll have a copy made and return the original to you,” said Rangel. She looked up at her strange new office on wheels. “As soon as I get a copier, that is.” And if I take the case, Rangel added to herself. If there is a case. Rangel frowned. “What happened? How did things go wrong?”
“Yes, of course,” said the other woman. “I’ve been avoiding it. The fact of the matter is that two things happened. First, Mr. Schantz sold his . . .”
“Remainder,” said Rangel. “His interest is called a remainder.”
“. . . remainder to Dean Nabel.”
“The Dean Nabel? The one who owns the gravel pit?”
“My gravel pit,” said Gladys Tremaine.
“Oh,” said Rangel, seeing the pieces fall into place in her mind. “Oh. And Jared?”
“Jared disappeared shortly after that.”
“Without a trace. He was living in the house on the farm. I’d go and see him every day, and the VON — the Victorian Order of Nurses, you know? — would send someone in once a week to attend to some of his needs. And then he wasn’t there. That was eleven, twelve years ago. I looked for him for years and years, reported him missing to the police, wrote everybody I could think of. Nothing. And then after seven years Nabel had him declared dead by the court and just took over the land. I tried to fight him, but I didn’t have the money and, to be honest, I didn’t have the stamina.” She considered whether she would need the handkerchief again, balling it up in a fist instead. “Courage. I didn’t have the courage.”
Rangel, her mind racing ahead, saw trouble. “Mrs. Tremaine,” she said. “I’m not clear what it is you would like me to do. Presuming Mr. Nabel followed proper procedure, the law, I don’t see how I might help you.”
“Oh,” said Mrs. Tremaine, “didn’t I say? I want you to find Jared. Alive.”
© Simon Fodden
All law, with the exception of animal cruelty laws, concerns the interaction of human social groups ranging in scale from the individual to the state, either for the purpose of regulating those interactions or providing remedies when things go awry. It’s the humanness of these interactions which makes the law as complex as it is, family law especially so; we are messy, irrational creatures with priorities, goals and emotions that are highly variable and difficult to predict.
It seems to me that the contortions into which family law twists itself largely result from efforts to address, accommodate and anticipate the vast array of psychosocial factors involved in family values and family breakdown. I wonder about the extent to which fault for these factors can be laid at the doorstep of certain social norms, especially the presumption that family relationships are enduring, fidelitous and either monogamous (a married relationship between two persons) or diamorous (an unmarried relationship between two persons). Specifically, I wonder about the extent to which the inability of existing processes to manage the process of family breakdown, and the difficulty of planning alternative processes, is attributable to the sequelae of conventional attitudes toward “family.” I further wonder whether changing those norms might resolve some of the more difficult aspects of adult conflict and promote a more child-centred approach to the resolution of their parents’ disputes.
In my previous posts on family justice, I have proposed changes to the justice system intended to better accommodate family law disputes; in this note I propose changing the family to better accommodate the justice system, or, to put it another way, to reshape conventional attitudes toward family to decrease the frequency and intensity of family law disputes. Implementing the ideas I discuss will of course require a significant cultural shift in some our most deeply embedded social values. Although I recognize that no government is ever going to attempt the change I propose, I should point out that our society has recently and successfully processed some fairly prodigious culture shifts. Consider, for example, the progress made in attitudes toward women’s economic and political equality in the last century, the change in the acceptability of smoking in the last twenty years or the change in attitudes toward same-sex marriage in the last ten years. Social change on a massive scale is possible.
Emotional Responses to Family Breakdown
Those practicing family law, or really anyone who’s experienced the loss of a serious relationship, can readily identify the problematic emotional responses to family breakdown. Common responses include anxiety, loneliness, sadness, anger and the emotional subsets described in the theories of grief variously popularized by John Bowlby, Elisabeth Kübler-Ross and Robert Emery. While these responses to separation are “normal,” so to speak, they can become problematic for those who get stuck in the grieving process. Other, less common emotional responses include:
- guilt and shame (about the end of the relationship or the performance of functions during the relationship);
- jealousy and possessiveness (about a former spouse’s new relationship, contentment with life or ease of transition from the old relationship);
- fear (about one’s future or the unknown steps a former spouse might take);
- aggression, hatred, rage and vengefulness (toward a former spouse or those associated with a spouse); and,
- disgust and disregard (toward a former spouse and the career, tastes, habits and preferences of a spouse).
These responses have the potential of becoming toxic for everyone involved in the breakdown of a relationship, particularly if the breakdown leads to litigation; they will most certainly be problematic if they occur in circumstances of:
- controlling, coercive relationship dynamics;
- efforts to isolate a spouse from friends and family;
- emotional, mental or economic abuse;
- substance abuse or mental illness; and,
- unusual economic, caregiving or social stress.
I suspect that there are a number of important interrelationships between toxic reactions to separation and the circumstances that aggravate those reactions, on the one hand, and, on the other, social norms which stipulate that committed relationships be monogamous or diamorous in nature, heteronormative stereotypes and certain social baggage relating to gender roles and inequality between women and men. There are, for example, specific cultural values that support imbalances of power in opposite-sex relationships (parenting norms, women’s economic inequality) and exacerbate fears of external interference with the family unit (inviolability of the family unit, hypersexualization of women), and thus promote feelings of jealousy, possessiveness and a need for dominance which in turn support coercive and controlling behaviour.
But what if we thought of “family” differently? What if, instead of the Norman Rockwell portrait of monogamous husband and wife, or their diamorous unmarried counterparts, “family” was a more flexible arrangement, in which spouses entered and departed the family unit as their inclinations and predilections took them, and “family” wasn’t necessarily monogamous or diamorous in nature, but could just as easily be polygamous or polyamorous? Is it possible that normalizing such a fluid conception of family might help empower women to insist on more equal roles in their relationships, curb feelings of guilt, shame, jealousy and possessiveness in general, and decrease the likelihood of coercive, controlling relationships and feelings of fear, aggression, vengefulness and disgust upon separation? If so, the dynamics presently associated with family breakdown could be dramatically improved and conflict significantly reduced.
An Alternative Conceptualization of Family
The traditional view of marriage as an exclusive, enduring relationship between two persons is a three-thousand-year old legacy gifted to Western society by most but not all major religions and the patriarchal social structures they support. Although counterexamples of polygamous and polyamorous cultures and religions abound, the more successful of which are typically found in matriarchal cultures, the standard of the monogamous relationship has stood the test of time and eventually influenced our ideas about the nature of unmarried relationships.
Thinking outside a box this deeply entrenched is somewhat of a challenge. Inspiration can be found neither from the fundamentalist Mormons positively depicted on TLC (Sister Wives) nor those negatively depicted on CBC (the residents of Bountiful, British Columbia), but from the consenting adults involved in polyamorous relationships today. Relationships like these aren’t entered into by happenstance. They require frank conversations negotiating the boundaries of the relationship and each partner’s needs, desires and limitations, none of which are commonplace in monogamous or diamorous relationships, and practical issues about sex, expectations of fidelity, children, parenting obligations and financial responsibilities must also be addressed.
In short, modern polyamorous relationships are intentional, consensual, planned and highly individualized. They are entered into with eyes wide open. Based on the personal experience of certain friends and clients, while fidelity is often expected, polyamorous relationships are entered into with none of the presumptions of permanence that are the particular hallmark of monogamous relationships; new partners may enter the family and old partners may leave.
It seems to me that the emotional maturity, forethought and egalitarian approach demanded for the formation of polyamorous relationships would be equally valuable to those contemplating a new monogamous or diamorous relationship, and might go an awfully long way to addressing the toxic emotional responses to separation I’ve described above. I can imagine, with an abundant surplus of hope and optimism, a culture in which:
- families are formed by two or more adults who voluntarily agree to cohabit in some manner after addressing themselves to the present and future makeup of the family, plans for children, plans for the sharing of household expenses and responsibilities within the household;
- families are assumed to be indeterminate and to evolve over time, as the membership of the cohabiting family changes;
- families include past members of cohabiting families, particularly when those families include children;
- the adults in the cohabiting family are assumed to be engaged in an ongoing process of open communication, each checking in with the others as to their emotional, social and financial wellbeing;
- each adult in a cohabiting family is equally empowered to make decisions, including the decision to remain in the cohabiting family and decisions affecting the family as a whole;
- each adult in a family is required to contribute to the needs and expenses of the family but is assumed to maintain financial independence;
- children are not viewed as personal property but a communal good; and,
- each adult in a family is required to contribute to parenting the children, regardless of the presence or absence of a genetic connection to a child.
A cultural attitude such as this strikes me as less likely to accommodate jealousy or possessive attitudes, power imbalances, controlling and coercive dynamics, or emotional, mental or economic abuse, in all families, whether diamorous or polyamorous. It would be more likely to promote a holistic view of parenting, and the other responsibilities involved in family relationships, while preserving the independence, self-determination and self-interest of the individual adults. It would be more likely to encourage child-centred thinking, ensure that an adult’s relationship with and obligations to a child did not end upon leaving the cohabiting family, and give children a critical continuity of care, regardless of how their family has changed. It would be more likely to promote positive communication skills and minimize the negative fallout when one or more adults leave the cohabiting family. It would be more likely to improve adults’ capacity for empathy, to improve conflict resolution skills and to reduce family members’ need to resort to courts to resolve family disputes.
(As an aside, it occurs to me that children might benefit enormously from being raised in the communal environment of a polygamous or polyamorous relationship. Imagine the benefits to a child of having a surplus of caregivers, being raised with an abundance of full- and half-siblings and growing up with adults modeling positive communication and conflict resolution skills.)
I suspect that whatever family law is needed to address conflicts arising out of the full or partial breakdown of family relationships such as these would look radically different than the court-based adversarial system we presently use. The social norms necessary to support these families would view separation as a transition rather than a sundering, and would understand that family obligations and family relationships do not end with the cessation of cohabitation. Arguments requiring legal intervention, which I expect would be significantly diminished from current volumes, may very well be confined to enforcing the caregiving and support responsibilities of former members of cohabiting families and sorting out property interests when the family members cannot resolve those issues themselves.
In fairness, the problematic treatment of family breakdown by the current justice system does not lie wholly at the feet of the monogamy and diamory, although much of the emotional responses that make family law so difficult can be laid at the feet of these social institutions. Other factors also contribute, such as: human nature; norms about gender, parenting roles, the distribution of labour in the home and the privileged insularity of the family unit; the impact of these norms on policy- and decision-makers; the stubborn persistence of women’s inequality; and, the lingering tendency to treat women and children as property. But if we are unable to redesign family law to improve the treatment of separating families, perhaps it’s the families that must change and not the legal system?
In this series of notes on family justice, I have explored a variety of alternatives, from shifting responsibility in family law disputes out of the courts and onto the families themselves, to a partially computerized system that would reserve court as a last resort, to an administrative model that would remove family law from the court system altogether. As I approach the point where I am exhausting the alternatives I can conjure up, I realize that the root causes of the justice system’s inadequacies might just lie in the dysfunctional way that we as a society handle family breakdown; exploring alternatives to how we restructure families is the point of this post, whether we’re prepared to contemplate social change of this magnitude or not. Regardless of whether my proposal finds fertile soil, it seems to me that ruminating on our emotional responses to family breakdown might offer some valuable insights toward the reform of our present management of family law disputes.
Recently, the Virginia State Bar Council voted to adopt changes to the Model Rules of Professional Conduct. The changes were based on the American Bar Association’s modifications to the Comments of Rule 1.1 respecting Competence (“…a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology…”) and Rule 1.6 respecting Confidentiality (“(c) A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.”)
What’s reasonable? The Comments go on to list relevant factors:
- the sensitivity of the information
- the likelihood of disclosure if additional safeguards are not employed
- the cost of employing additional safeguards
- the difficulty of implementing the safeguards
- adverse effect on the lawyer’s ability to represent clients
The Comments also make it clear that the client can demand more security or, with informed consent, accept lesser measures. This was not adopted by the VSB Council, but many states have adopted it.
As to the remainder of the changes, which were adopted and will now be sent to the Supreme Court of Virginia for its blessing before becoming final, there was quite a firestorm prior to the final vote adopting the proposed rules.
Even before the Council met, there had been comments received on the proposals, saying things like “I believe it is unreasonable to expect a lawyer to become an IT professional in addition to all of our other responsibilities.” This was echoed at the Council meeting.
This is a misunderstanding of the requirement. The change does not require a lawyer to become an IT professional – indeed, for most lawyers, dabbling in IT would be dangerous. They need outside or inside IT help in most cases – the small firms generally contract IT work to an outside IT service company. But all lawyers should be aware of the benefits and risks of technology to be a competent lawyer in the digital era. Hence, the change to Rule 1.1 makes good sense.
Another comment made the point that technology is the only form of competence specifically referenced in the proposed rule.
We are all accustomed to taking CLE each year to maintain our competence as attorneys in the fields of law in which we practice. However, it is uncontroverted that the most disruptive force we have ever seen in the practice of law is technology. It is pervasive – and becomes more so with each successive generation of lawyers. We have reached the point in time where a lawyer cannot effectively practice law without technology – which makes it an imperative that lawyers know something about the technology they use.
We live in a “breach-a-day” world which suggests even more strongly that we need to pay attention to sensitive client data. According to a 2013 Mandiant Threat Report, law firms and consultants constitute 7% of the targets of advanced attackers. This has come to mean that we are the easy route to getting the data of our clients. Cybercriminals and state-sponsored hackers alike have attacked law firms, large and small – and they are all too often successful because employees are not trained in safe computing, security patches and updates are not installed, out-of-support software (receiving no security updates) continues to be used, and they do not employ encryption.
All of this can be addressed by a competent IT professional. Are there costs? Yes, certainly, but they are a matter of scale. The costs will be far greater for a large firm than for a solo or small firm practitioner. The measurement of “acting reasonably” is obviously different depending on the size of the firm.
In spite of all the rhetoric about “small firms can’t afford this requirement” the truth is that many reasonable precautions cost nothing. Installing security patches is free – yet it is frequently not done. It costs nothing to encrypt a Word or PDF attachment with a password before sending it. Encryption is already a built-in feature of modern computers and smartphones – it may need to be enabled, but it is there.
You can encrypt e-mail easily these days with inexpensive products like ZixCorp, to name just one. A lawyer doesn’t need to understand the mathematics of encryption – only how to use the products. And they are fast and easy to learn. You don’t need to use encryption all the time, but when you are sending sensitive data, you probably should. You know what you have to learn? How to hit the “Encrypt and Send” button. That’s it.
Using the cloud to hold data is fine, so long as you understand the security precautions. Chiefly, if you encrypt the data before sending it to the cloud, your data is safe because only you hold the decryption key. Holding the encryption key yourself means the cloud provider has “zero knowledge” of the decryption key – and that’s the kind of cloud provider you want. There is no additional cost to this – you just have pick the right provider. As an example, SpiderOak is a “zero knowledge” file synching cloud whereas Dropbox holds a master decryption key and will, if given the proper paperwork, turn over your data to the authorities. We like SpiderOak and others that are moving in the “zero knowledge” direction, a far better solution for lawyers.
There is no cost to forbidding employees by policy from connecting to the law firm network with personal devices. Who knows what malware may exist on those devices? Large firms may choose to use sophisticated techniques to manage personal devices, but smaller firms are better off simply forbidding them to connect to the network.
There is a long list of free or reasonably priced safeguards for data, but that’s why attorneys should go to CLEs – to learn them and see that they are implemented by their IT provider. How about making sure lawyers use strong passwords (and not same password everywhere) and change them (especially their network credentials) regularly?
The changes to the Model Rules require only reasonable safeguards and give a host of factors to be considered in determining what is reasonable. In some cases, where lawyers hold HIPAA data or data containing personally identifiable information, they may be governed by state or federal law beyond the scope of the proposed rules, which is noted in the new comments to Rule 1.6.
So why all the hoo-ha at the Council meeting? Largely, we believe that there are fundamental misunderstandings about the changes and what they mean. There is also a mentality – so common in the legal profession – that “we’ve always done it this way.” One person actually said that lawyers shouldn’t be required to do more to protect data in the digital world than they were in the paper world? Say what? It defies belief that this sentiment has such a strong hold on so many lawyers, but it does. Perhaps the speaker didn’t realize that over 93% of documents are created electronically and that more than 50% of them are never printed.
One young lawyer took the microphone to point out that the digital world is a new one – and requires us to adapt. We might add “or face extinction.”
Taken as a whole, what we cannot do is turn a blind eye to the impact of technology on our profession. There was a time when protecting client data involved locked file cabinets in a locked office. Today, we must still “lock” the data – digitally. The new modifications to Rule 1.1 and 1.6 are a measured and technology-agnostic step toward applying old rules to the 21st century.
A Canada Revenue Agency employee’s moonlighting activities constituted a serious conflict of interest and, along with his subsequent insubordination, gave the employer sufficient cause to terminate the employee, the Public Service Labour Relations and Employment Board recently confirmed in Cavanagh v Canada Revenue Agency.
Facts of the case
Sean Cavanagh worked as a business valuator at the Canada Revenue Agency. As a chartered accountant (CA), a chartered business valuator (CBV) and a certified financial analyst (CFA), he was a member of the professional organizations governing all three professions and was subject to their respective rules and guidelines of professional conduct.
On February 16, 1999, in compliance with the CRA’s Conflict of Interest Policy and his governing boards, Cavanagh disclosed and filed a confidential report that as a CFA he might be involved in some outside activities that could give rise to a real or potential conflict of interest. At the time, he claimed he was not actually doing any of the things he listed as being “outside activities” but it was important to list anything he could be doing.
Normally, the report should have been reviewed by the director of the Toronto Centre Tax Services Offices (TSO) in order to determine whether the outside activity did not raise a conflict of interest or whether it had to be ceased or modified. However, the report was misfiled and was not discovered until June 2003. At that point, Cavanagh was asked by the current TSO director for clarification as to what exactly he was doing in his outside activities.
And so the story began…
Cavanagh’s first response was made on July 3, 2003, as follows:
“In general terms, I could be working on valuing shares, business interests and assets both tangible and intangible. I am a Chartered Accountant and Chartered Business Valuator and this profession extends far beyond CCRA and tax related issues. Actually, a CBV does not get involved in tax-related matters in most instances.
“Where I would be found to practice the profession would be in matters that involve matrimonial disputes where net family property has to be determined. I could be involved in bankruptcy proceedings that require corporate assets to be valued for liquidation. Cash-flow analysis for debt financing and refinancing. Inventory analysis, management and valuation involves the accuracy of reporting inventory amounts. Assistance in compliance with non-tax regulatory issues such as stock exchanges is also a function. The drafting of partnership, shareholder and other contractual agreements involve valuators. Valuing of business interests for sale or purchase.
“There is a myriad of activities that have no relation to tax or the interest of the CCRA that require the expertise I am qualified to offer. The above should provide a general overview that gives you a feel for the activities available that are not in conflict with my employment contract at CCRA.”
It depends what ‘could’ or ‘might’ mean
Cavanagh “emphasized that the fact that he ‘could’ do some of the activities he listed did not mean that he was actually doing them, at least at that time. He maintained that he listed activities that he ‘could’ or ‘might’ have been doing not because he was actually doing them but because his professional code of conduct as a CA, CFA or CBV required him to provide that type of disclosure.”
By 2003, Cavanagh’s outside activities had become substantial enough to require that they be conducted under a corporate umbrella, FS Capital Corporation (FSC), and have a website. He admitted to being a principal in the company but claimed that it was “just a title for one of the bosses,” none of whom he identified. He maintained and insisted that all the work he had listed and was doing was not tax-related.
After some back and forth, the director wrote to Cavanagh on November 5, 2003, and advised him that she had concluded that his outside activities had the potential for placing demands which could be inconsistent with his official duties and responsibilities, or could call into question his capacity to perform his official duties and responsibilities in an objective manner. To that end, she directed him to cease his outside activities by January 1, 2004. She required written confirmation that he had done so, and noted that a failure to comply on his part could result in discipline, up to and including termination.
One would think that this would be the end of the story. However, Cavanagh did not stop. The questions and answers continued for years and Cavanagh continued with his outside activities. In fact, at one point the director was replaced by another one, who continued the questions and continued demanding that Cavanagh stop these outside activities. Cavanagh had his name on websites and was clearly promoting himself performing these outside activities.
Cease and desist – or delay
By October 20, 2006, the director wrote to Cavanagh stating:
“This letter will serve as your final direction to cease these activities immediately and provide me with a written statement by October 27, 2006, confirming that you have done so. Failure to comply with this directive may result in administrative or disciplinary action up to and including termination”
But Cavanagh kept arguing, as noted by the board:
“That quote is representative of the grievor’s response throughout to the employer’s concerns. He provided information concerning his outside activities and then argued with or dismissed the employer’s decision that there was a real or potential conflict of interest. He refused to follow clear directions to cease the activity, arguing that such directions were confusing, lacked clarity or were incorrect because in his opinion, there was no conflict. Rather than follow the rule of ‘work now, grieve later,’ he failed to comply and then tried to negotiate a compromise that suited his purpose.”
This went on.
It was not until February 22, 2007, that Cavanagh was disciplined with a 10-day suspension without pay. The letter to Cavanagh indicated that he had been directed to cease his outside activities on the grounds that they constituted a conflict of interest. It also noted that a subsequent investigation had revealed that he had continued to engage in the outside activities.
However, Cavanagh continued to refuse to provide confirmation that he had stopped the activities. Eventually, the director advised that he was prepared to give Cavanagh until March 30 to reconsider his position and to confirm by that date that he would cease and desist his outside activities; failing to do so would constitute grounds for disciplinary action. Although some efforts were made to try to resolve the matter, they were unsuccessful.
On March 5, 2008 Cavanagh was suspended again without pay for 20 days, citing the numerous directions to cease and desist the outside activities and the refusal to do so. The letter concluded by stating that the director expected a written response on or before May 2, 2008, confirming the outside activities had stopped, and that if he did not receive such a response by that date, he would consider Cavanagh to remain in a conflict of interest situation and committing an act of insubordination warranting discipline up to and including termination.
On April 30, 2008, Cavanagh emailed the director and confirmed that he was not employed as a business valuator and he would not accept any employment as a business valuator while employed with the CRA.
Shut down the shell game
However, on May 1, 2008, the director responded and noted that his letter of April 24 had also directed him to shut down his website.
On May 6, 2008, Cavanagh emailed the director and apologized for the delay in response, citing he had back pain, and the pain medicine prevented him from being as attentive as possible. He continued to argue, asking
“On what basis do you have the authority to make me shut down the website.”
The director had to ask more than once for Cavanagh to shut down his business website. Cavanagh responded by saying he was surprised to receive this type of correspondence and that he was puzzled by the demands for information about his outside activities over the past two years. He also said he was scheduled for back surgery.
It was not until June 17, 2008, that Cavanagh received a letter terminating his employment because of the numerous issues involving his outside activities, the decisions that they constituted a conflict of interest with his duties at the CRA, and his repeated failure to comply with the cease-and-desist directions that had been given to him.
In response, Cavanagh brought grievances contesting each of these suspensions as well as the termination.
The CRA insisted that all three disciplinary actions involved Cavanagh performing outside work that was a conflict of interest, and his refusal to stop regardless of the several directions he received to cease and desist.
According to the board, it was unclear as to just what exactly he was doing during the period from 1999 to 2008 and when he did whatever it was he did.
“If this sounds confusing, it is because it was. The best I could make of the grievor’s testimony, both in direct examination and in cross-examination, was that a client would contract with the FSC (that is, Mr. Cavanagh, as principal) to provide one or more of the services being offered under its umbrella. The company (that is, Mr. Cavanagh) would then subcontract the service to—and ultimately pay—someone to perform the service in question. The stable of contractors (assuming there was more than one) would include Mr. Cavanagh.”
The adjudicator found that the CRA was fully justified in its concerns about Cavanagh’s outside activities and it was legitimate to view them as giving rise to both potential and apparent conflicts of interest. The CRA was entitled to direct Cavanagh to cease and desist the outside activities.
Cavanagh’s refusal to follow the direction constituted insubordination. A finding of insubordination required proof of four things:
- That the employer gave an order
- That the order was clearly communicated to the employee
- That the person giving the order had proper authority to do so, and
- That the grievor did not comply on at least one occasion
In this case, those conditions were met. Given that there was repeated insubordination, discipline was warranted. Both suspensions were appropriate. Given the prolonged and repeated refusals to comply with directions, it was necessary to provide a response in a progressive manner (10 days and 20 days).
As for the termination, in the arbitrator’s opinion it was appropriate. Given the five-year history of refusals and repeated opportunities to provide clarification of the outside activities, and failures to comply with the orders to cease and desist, the termination was justified.
Consequently, the grievances were all dismissed.
Note that an application for judicial review of this case is pending before the Federal Court of Canada (Court File T-295-15).
What can we take from this case?
Outside employment, otherwise known as “moonlighting,” presents a challenge to human resource professionals and employers, who worry—often legitimately as shown here—that moonlighting will lead to divided allegiance, time theft, conflicts of interest and poor job performance.
The main reason employees moonlight is to supplement income. For some, moonlighting is the only way to make ends meet.
Where an employee is moonlighting explicitly to augment her or his salary, employers may have substantial challenges on their hands, whether or not the second job is a conflict of interest. Is the employee’s salary sufficient to cover the costs of living? Does the employee have personal issues that are draining her or his income, like an addiction to alcohol, drugs or gambling? What about family issues like child support or health care not covered by the company benefits plan? Does the employee have substantial debt or trouble maintaining finances?
Employers will have to step carefully to address any of these issues, as they will risk invading the employee’s privacy. However, implementing a blanket prohibition on moonlighting could lead an employee to claim discrimination based on various human rights grounds, such as disability, family status or social condition.
Employers should consider restricting or curtailing moonlighting by identifying and evaluating specific employment settings and business-related concerns. These may include working for a competitor; industry sector; trade secrets or confidential or proprietary business information; image and reputation; normally scheduled work hours; size of the company, nature of employee relationships; agent of the company; solicitation, sales and marketing; compensation, work resources, equipment and benefits; and job performance; among others.
Once identified, the employer should address these concerns in a policy that is clearly communicated to employees and enforced in a uniform and consistent manner.
Employers should perform this analysis to determine whether an employee’s conduct or second job is tied to the employer’s legitimate business interest before acting to prohibit moonlighting. This prohibition should never be based on assumptions.
It’s also recommended to put a process in place so that employees know the need for disclosure and obtaining approval before they can accept or engage in outside work that may pose a conflict of interest.
As can be seen from this case, employers who find themselves in this type of situation and want to enforce their clearly communicated moonlighting policy are encouraged to:
- Document all communications with the particular employee
- Ensure the directions provided are clear, that there was authority to provide the directions, and the employee did not comply with the directions before acting
- Record all evidence, including issues with an employee advertising a conflicting business, so that it can be provided at a hearing
- Listen to the employee’s explanations for non-compliance with the policy and directions and provide a chance and period of time for the employee to comply with the directions
- In cases where an employee does not correct her or his non-compliance, use progressive discipline up to termination; document the use of progressive discipline with written warnings
In short, communicate clearly; be fair and objective; avoid assumptions; record everything; implement and apply good policy; and good luck!
When I taught a course on legal information last summer appropriate dress in a legal environment was a topic of some interest to those starting their careers. And as I find recent conversations about feminism and clothes to be quite interesting, I thought I would write out my thoughts in more detail.
There is reasonable concern about the different ways women and men are discussed and judged in relation to what they wear, and there are certainly biases observed in the ways they are treated. While I have observed that men do get a certain amount of the benefit of the doubt in this area, both men and women are judged by the way they dress.
One important difference is that we are more socially conditioned to talk about how women dress, but a man who dresses well and looks good in a suit does have an appreciable advantage in a professional career over those who don’t, whether people remark on it or not.
As evidence of men’s clothing choices being noticed, I will say that I have been to legal Christmas parties where broad jokes were made about the tightness of the pants worn by certain younger men in the office, while the younger women were not treated in this way. It makes me wonder if perhaps in this context it is less a problem that women’s clothing is remarked upon, than that traditional ways of enforcing the norms of dress in certain contexts through humour are not as easily transferred to women.
It is culturally more difficult to openly mock women’s clothing. The jokes may have been cringe inducing at the moment for the men involved, but if it helped them learn to dress in ways that advance their authority early in their careers, it may have been a kind of advantage to them.
The only women whose clothing I have ever heard joked about in legal circles are women who are very well established. From this I would argue that perhaps part of the problem for women is that the momentary embarrassment of mockery comes too late to make a great difference in their career outcomes.
Clothing is communication, and just as people are judged by their writing style, they are judged by their clothing. Highly paid professionals who don’t appear authoritative must work harder to be taken seriously, and dress is the easiest way to improve how authoritative one looks.
I have heard different views of how women should express femininity in business attire, with many women resisting pressure to wear only sombre colours. This short article from the Guardian is an excellent example of this. Notice the picture of Angela Merkel in black pants and a yellow jacket used to illustrate it. The article remarks on the uniform implied by Merkel’s black pants, but a quick image search shows that Merkel is drawn to wearing brightly coloured jackets. I was struck by Merkel’s yellow jacket in contrast with David Cameron’s dark suit.
Colour conveys meaning. Less saturated colours may be perceived as less powerful, and I have had it recommended to me to never wear pink to a job interview because it is a tentative colour. Consider Marie Antoinette in her muslin dress:
Pale, filmy dresses like this were perceived as subverting the authority of the state and her role as queen of France. There was even a book written about the impact of Marie Antoinette’s fashion choices in French history.
Contrast this with Elizabeth I’s projection of authority in her saturated colours:
Another issue is that some women don’t feel that feminine clothing expresses their identity. I don’t believe women need wear overtly feminine clothing to be taken seriously, but this may require a higher level of execution to get the same level of acceptance.
Extrapolating from my experience, part of sartorial empowerment is developing a willingness to walk out of a store that tries to sell something silly. The men in my family will simply turn around and walk away if anything is not to their liking.
In contrast, I remember asking what was wrong with the pants on the occasion of buying by first suit for job interviews and being told “all the pant suits come with capri pants this year.” When I asked about why the skirts were all so short I was told “all the skirt suits come with mini skirts this year.” It is a source of disappointment to me today that I didn’t walk out immediately.
It is frustrating to see the disparity between the ways women and men are treated, for example the Australian news presenter who wore the same suit for a year and no one noticed. I might refer back to my earlier point that people feel it is more appropriate to comment on women’s clothing, and there is a possibility that people did notice, but didn’t write in about it. Regardless the treatment is unfair.
Considering all the other things one does for ones career this isn’t more effort than many other things. Being a well dressed person is cultivated and learned, and is not many people’s initial view of their identity. I have observed successful people in the legal industry who were not generally well dressed, but they appear to have to be better at what they do to get the same respect.
If you’ve worked in a law firm long enough, you’ve probably been assigned work in a way that left you confused (if not annoyed). When it’s time to delegate your own work, it can be a mistake to default to the delegation style that you’ve become used to, assuming that it’s effective.
That assumption might be wrong if you’re working with new people, clients and/or matters. Try asking the following questions when you need to enlist help with a task. They involve people in taking responsibility for their work and they show respect for others’ expertise.
- What is the best or fairest way for me to delegate work to you?
- What might affect your ability to complete this task within the specified or expected time/budget/quality?
- What is the best way for everyone involved to communicate problems or progress?
- What additional and ongoing information do you need from me? What is the best way for me to share it with you?
Some lawyers ask everyone involved in a project to sign off on a communication protocol before work begins. This provides some quality assurance and promotes trust by reducing the likelihood of write-offs, missed deadlines, and miscommunication.
In the days of electronic access, judicial decisions (and sometimes other court records that have always been public in principle) no longer benefit from practical obscurity. Court have had to wrestle with the consequences of this, including tailoring the way decisions are written to reduce the amount of personal information they contain.
The Canadian Judicial Council has published material on this, as have the federal and state courts in the US.
Recently a US lawyer proposed that databases of court decisions should block search engines from indexing the decisions – a block that is very easy to implement, with a robots.txt notice put in the metadata of the site containing the decisions.
Is that a good idea? It would not bar access to those who know where to look (such as Can LII for Canadian decisions), but it would keep the casual searcher from stumbling upon potentially intimate, disputed or outdated information about people who may not have been voluntarily engaged in litigation.
Should Canadian court databases do this? What is CanLII’s policy?
New TLDs (top level domains) continue to become live. There are hundreds to choose from. Gone is the day that there were only a handful, and a business could tie them all up for their corporate name and brands.
Also gone is the day that they are all inexpensive. Some of the new TLDs command a premium price. A .lawyer TLD, for example, costs US$6500. A .guru domain is a bargain at US$29.
This Yahoo article talks about the .sucks TLD, which will be in the sunrise period on March 30, and generally available 60 days later. Some think brands should pay the US$2500 to secure their brand.sucks domain name to keep it out of the hands of others, while some think that’s a waste of time and money.
Most of the new TLDs would be irrelevant to businesses that are not in the niche intended for the TLD, such as .vacations or .guitars. But others, such as .sucks or .help are more generic and could be used by almost anyone. Businesses and celebrities have obtained their own names for TLDs that could be used for purposes that could be derogatory or contrary to their image simply to park them and prevent their use. And there might be merit in getting ones like brand.help for one’s own use.
But there is a limit to what makes sense and what is affordable.