The avarice of lawyers seems to be a widely-shared belief. Not in vain has the so-called legal profession received too many critiques around the world, being as they are often the most radical adversaries of the lower classes. I still remember a cartoon I once saw which said: “Little money… little law,” evidently suggesting (and dramatically describing) those who have money to pay fancy and well-trained lawyers will have greater chances of being satisfied in a trial. Are these unfair sayings?

Chile’s Bar Association (”El Colegio de Abogados”) recently filled a petition before the Constitutional Court, arguing the unconstitutionality of mandatory free legal advice (article 595 of the C.O.T.). According to a legal regulation which lasted almost 60 years - but which can be traced back in the Middle Ages, according to Fernando Orellana Torres - lawyers were bound to provide free legal assistance to people living in conditions of poverty who could not afford a private lawyer. Lawyers were designated by a lot conducted by the Judiciary and, once assigned, were “on duty” for a month - and were required to continue providing legal advice until the end of their client’s case. In practical terms, free legal advice never posed a serious demand on lawyers since it coexisted with the Legal Assistance Service - a government-rooted office, which also provides legal counsel to people who cannot afford a private lawyer. In this latter case, law students - who did not get paid - carried out most of the work. (In fact, this so-called “legal practice” lasts for six months, and is a necessary requirement to becoming a lawyer in Chile.)

Criminal cases (including those before military trials) might have presented a different situation; lawyers designated to their “on duty” role were normally consulted in criminal cases, while in labor and civil cases, people preferred to ask the Legal Assistance Service. Currently, free legal advice in criminal cases is assumed by a public office (“Defensoría Penal Pública”) - implemented with the reform to the criminal proceedings which started in 2000.
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The Supreme Court’s Engagement with s. 2(a)

The Supreme Court of Canada’s recent ruling in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, has already inspired much critical commentary, both in the mainstream media and on TheCourt.ca because of its atypically distressing outcome for rights claimants and dubious appraisal in a popular newspaper. What may prove of especial interest to academics, however, is the ruling’s brief engagement with the Charter’s fundamental freedom of conscience.

Despite the clear wording of the Charter promising everyone “freedom of conscience and religion”, the Supreme Court has only ever heard appeals which primarily engage the latter – that is, the freedom to exercise beliefs religiously motivated. It is still yet to hear a freedom of conscience challenge which does not also involve religion.

Indeed, duly appreciating that it may be seldom asked to do so, the Supreme Court has very rarely engaged freedom of conscience as functionally distinct from freedom of religion. Its limited comments on the subject have often come in minority judgments or otherwise in obiter. Although Alberta v. Hutterian Brethren does not officially endorse prevailing interpretations of freedom of conscience, I would argue that its decision does accord with the line of cases considering the content of our hitherto unexplored s. 2(a) guarantee.

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On June 12, 2009, the Alberta Court of Appeal released its much-awaited insurance cap decision in Morrow v. Zhang, 2009 ABCA 215. In 2004, the province of Alberta passed legislation, the Minor Injury Regulation, AR 123/2004 (MIR), which imposed a $4,000 cap on non-pecuniary damages for “minor injuries” as defined under the MIR. The Alberta Court of Appeal overturned the lower court decision concluding that when the MIR was assessed in light of the entire minor injury legislative scheme, it held up to constitutional scrutiny. This decision has long-term consequences for insurers and claimants in Alberta.

Background

Peari Morrow and Brea Pedersen, the respondents, were injured in two separate automobile accidents. Morrow suffered soft tissue injuries to her neck and upper back, which was diagnosed as a grade two whiplash associated disorder (WAD II). Pederson also suffered soft tissue injuries to her neck, shoulders, back and wrists. Despite treatments and medication, both respondents continued to suffer pain and discomfort in their everyday life and household chores.

During the trial, the judge noted that the respondents would have received non-pecuniary damages in excess of $4,000, if the legislation did not stipulate the $4,000 cap. The respondents challenged the constitutionality of the cap stating that it violated section 7 and section 15 of the Charter.
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The Court recently upheld the judgement of the Court of Appeal for Ontario in Nolan v. Kerry (Canada) Inc., 2009 SCC 39. The case involved the treatment of surplus in a pension plan. A usually obscure area of labour and administrative law, pension plans and pensions generally were weekly news during 2008 and 2009, and are shaping up to be a future election issue. This is because most (about two-thirds) Canadians do not have private, employer-sponsored pension plans, and those plans that do exist have had a very difficult few years.

The Kerry decision actually belongs to a previous era - the era of pension plan surpluses that broadly speaking began in the late 1980s and lasted until about 2001, when we saw the emergence of plan deficits. The issues in Kerry emerged during the era of surplus, and revolve around the role of trust law in pension plans.

In a nutshell, the question during this era was: to what extent can “exclusive benefits” language in a pension trust document preclude the use of trust assets for any other use? Several cases since 1987 have sketched out answers; Kerry is the most recent in this line of cases. The specific issues in Kerry were whether assets in the trust fund could be used to pay for expenses of the administration of the trust, whether they could be used to pay for employer contributions to a related pension plan, and whether the costs of bringing claims on both these issues should be paid out of the fund.

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Protecting Political and Conscientious Speech

Last month the Supreme Court released judgment in Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, ruling that the transit authority unjustifiably limited the claimants’ freedom of expression by prohibiting political advertisements from being displayed on the sides of buses. The case is a victory for civil libertarians, relieved to see s. 2(b) of the Charter withstand considerable incursion by the offending authority’s policies.

The facts of the case are well-known and described here by Chris Donovan for TheCourt.ca. For our purposes, I will provide a brief gloss of his excellent summary. The claimants attempted to purchase advertising on horizontal panels running along the sides of public buses operated by the appellant transit authority. One proposed ad, which was characteristic of the content and tone of the other impugned ads, featured a silhouette of a concert crowd with the caption “ROCK THE VOTE BC.com”.

The transit authority permitted ads which “communicate information concerning goods, services, public service announcements and public events,” although not those which are “likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy.” Ads which “advocat[e] or oppos[e] any ideology or political philosophy” or which “conve[y] information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office” are especially not permitted.

At issue was whether the transit authority could, in doing so, lawfully circumscribe the content of the claimants’ otherwise free expression in a public location.  By ruling that it could not, the Supreme Court deserves praise for protecting Charter rights from undue government intrusion. Just as pertinently, the SCC’s decision may pre-empt religious objections to atheist bus ads, since their contentious subject matter seems analogous to that of the voter recruitment ads permitted by Greater Vancouver.

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The Ontario Court of Appeal’s unanimous decision in Kerry (Canada) v. DCA Employees Pension Committee, 2007 ONCA 416, was welcome news for Canadian employers everywhere. Nevertheless, in light of the SCC’s decision to hear an appeal of the case, Canadian employers held their breath in preparation for possible changes to come. Many theorists had ruminated on the outcome of the appeal and the potential of additional costs to employers administering a pension plan. With such fatalistic prospects, employers can now breathe a huge sigh of relief at the SCC’s decision in Nolan v. Kerry (Canada), 2009 SCC 39, to dismiss the appeal and reaffirm the Ontario Court of Appeal’s finding.

The SCC supported three main conclusions. First, where the pension plan has an actuarial surplus, the company may use this surplus to pay “contributed holiday” obligations. Second, where the plan agreement is silent, reasonable pension plan expenses can be paid out from the pension fund. Finally, where the defined contributions portion was not part of a separate and distinct plan, the surplus from the defined benefit portion can be used to pay the defined contribution obligations. An analysis of this tripartite decision is detailed below.
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The Supreme Court’s recent decision in R. v. Suberu, 2009 SCC 33, is disappointing. In attempting to clarify an issue set forth in R. v. Mann,, 2004 SCC 52, the SCC has inadvertently demonstrated that the new reasonable person standard is not, in fact, entirely reasonable.

As the SCC sets out, in Mann it was held that not all police interactions with the public qualify as detentions, and in R. v. Grant, 2009 SCC 32, this was clarified so that detention would crystallize when a reasonable person in the subject’s position would conclude that he or she had been detained. These are reasonable positions to take, and this post does not seek to quarrel with them.

However, the theoretically objective nature of the Grant standard is one with the potential to be abused (presumably unintentionally) by judges unwilling or unable to consider that the reasonable person standard, when applied to interactions with the police, must address a shift in that standard when accounting for persons of certain races and classes predisposed to not trusting police officers or trusting them less.
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Defining the Criminal Standard of Proof

A few weeks ago, the Supreme Court released judgment in R. v. Layton, 2009 SCC 36, an appeal seeking definitive instruction on how trial judges should explain to juries the criminal standard of proof “beyond a reasonable doubt”. Although these words are commonly used in everyday parlance, they assume a specific meaning in the legal context that may not be intuitive to ordinary citizens.

Indeed, at which point does a jury’s doubt become “reasonable” enough to mandate an acquittal? Perhaps when a doubt is merely fleeting, so as to slightly compromise full confidence in an accused’s guilt? Or perhaps when a doubt is quite substantial, tipping the scales of probability in favour of an accused’s innocence?

The correct criminal standard falls somewhere in between. Navigating this amorphous territory is the leading case R. v. Lifchus, [1997] 3 S.C.R. 320, which provides model instructions on how to explain the meaning of proof “beyond a reasonable doubt”. In that case, Cory J. holds that a “reasonable” doubt is not farfetched or frivolous, nor is it based on sympathy or prejudice, but is one that logically arises from evidence relating to an essential element of the offence. The standard is much higher than that used in the civil context, proof on a balance of probabilities, and yet is slightly lower than absolute certainty, which is an impossibly high standard in any context. The correct criminal standard would seem to fall closer to the latter.

While the Lifchus terms are not a “magic incantation”, to quote Cory J., jury instructions modeled after them have proven unassailable. The issue in Layton, then, becomes whether a trial judge should provide any additional explanation of “reasonable doubt” in the event that the jury does not understand its initial Lifchus instructions.

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The accused’s right to make a full answer and defence as well as the right to full disclosure has been brushed aside by the SCC in its recent ruling in R. v. Bjelland, 2009 SCC 38. In a close 4:3 decision, the SCC supported the final view that the only real remedy available for late disclosure is adjournment. The SCC concluded that evidence could only be excluded in the “clearest of cases”. This ambiguous standard has been retained from its conception in R. v. O’Connor, (1995) 4 S.C.R. 411, without changes or updates.

In this decision, the SCC has given the prosecution unstated leeway in their timing for disclosure of information. The prosecution has the opportunity to introduce new evidence a few days before trial with the only remedy available to the accused being adjournment.

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