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Applying the Jordan framework: Are courts placing too much of the burden on the defence?
Applying the Jordan framework: Are courts placing too much of the burden on the defence?

In R v. Jordan, the Supreme Court put a hard cap on the duration of criminal trials — sending a thrill of panic through the justice system in the process. The ruling is roughly two and a half years old now. Time for the training wheels to come off.Now, that backlog of pre-Jordan charges has been largely cleared — the transitional period is over. But Crown and defence lawyers alike report that trial times aren’t speeding up; statistics cited in a recent Law Times article show that in the Ontario Court of Justice, average times to disposition and the number of court appearances have not diminished since Jordan. If the SCC intended the ruling as a salutary shock to the system, it didn’t work.So what happens now?

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Publication date : 2018-12-18
RCMP’s forensic firearm testing backlog adding delays to justice system

The RCMP’s forensics labs are taking nearly four times longer to analyze firearms than they did just four years ago, adding delays to a criminal justice system under pressure to speed up after a recent Supreme Court decision.

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Publication date : 2018-12-16
Court delays persist, despite Jordan
Court delays persist, despite Jordan

The Supreme Court of Canada decision in Jordanand the problems it tried to address are still top of mind in the criminal courts in Ontario nearly two-and-a-half years after it was released.

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Publication date : 2018-12-03
The performance pay saga reaches a settlement
The performance pay saga reaches a settlement

The issue is the prorating of performance pay in relation to pre-promotion period for the year in which lawyers are promoted. If a lawyer was eligible for performance pay and was promoted during the year, the Employer, rather than pay out a prorated performance pay for the period pre-promotion, paid out nothing at all regardless of your performance rating for the year. The AJC originally filed a grievance in 2011 and in response to that grievance, TB had conceded in the context of the adjudication hearing that pre-promotion service should be recognized. Unfortunately, the adjudicator originally disregarded TB's concession in his decision of 2015, requiring the AJC to file an application for judicial review, which eventually resulted on December 22, 2016 in a remedy limited to the right to pre-promotion performance pay for the year 2010-2011. Thus, the AJC filed another policy grievance on July 27th 2016. The hearing was scheduled for October 2018. We are pleased to announce that we now have a signed Memorandum of Settlement on this matter with TB.  

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Publication date : 2018-10-30
Not all Questions are Good Questions: Avoiding Discriminatory Interview Practices
Not all Questions are Good Questions: Avoiding Discriminatory Interview Practices

Much ink has been spilled over a recent decision by the Commission de la fonction publique (the "Commission") on the topic of discriminatory interview practices. In Association des procureurs aux poursuites criminelles et pénales et Directeur des poursuites criminelles et pénales[1], the Commission found that the plaintiff had been discriminated against when she was denied a position due to her pregnancy.

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Publication date : 2018-10-11
Federal government facing pushback over bill to transform justice system
Federal government facing pushback over bill to transform justice system

One thing that both the prosecution and the defence seem to agree on is that the federal government’s push to cut preliminary inquiries in most criminal cases will not solve the long-standing problem of delays in the criminal justice system.

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Publication date : 2018-10-01

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Bitter anniversary for Quebec government lawyers


Marc Dion says union members are still hoping for retribution in two ongoing legal actions against the Quebec government.


It was one year ago today that the Quebec government passed a law that forced the province’s 1,100 civil lawyers and notaries back to work after a four-month general strike, the longest in Canadian public service history.


But the head of the lawyers’ union says time hasn’t taken the sting out of the collective slap his members received when the law was passed following a marathon 24-hour debate in the National Assembly on Feb. 28, 2017.


Marc Dion says they are still hoping for retribution in two ongoing legal actions against the Quebec government, as well as a chance to voice their displeasure anew in this fall’s provincial election.


“Being treated the way we were leaves marks,” says Dion, a Quebec civil lawyer since 1989 — the last 20 in the attorney general’s office at the Montreal courthouse — and president of Les avocats et notaires de l’État Québécois. “Our members are living in a state of profound moroseness.”


Dion pointed to the results of a recent poll that found nearly three-quarters of LANEQ’s members have “perplexed feelings” with regards to their employer.


More than half of respondents said they would take a job elsewhere if the opportunity arose.


Only one third considered the government an “employer of choice.”


A similarly low 39 per cent expressed pride working for government, and only 43 per cent said they were “motivated in their work.”


One bright note, says Dion, was that nearly half of respondents said they felt closer to their colleagues as a result of picketing together outdoors during the cold fall and winter months.


“The strike brought us together like never before,” says Dion.


He also believes morale among his members will greatly improve if and when they win either or both of the two legal cases the LANEQ launched against the Quebec government following the strike.


One is a complaint for negotiating in bad faith that was filed with Quebec’s labour relations board, the Tribunal administratif du travail.


In its 40-page submission in that case, which has already had eight days of hearings, including an appearance earlier this month by former Quebec Treasury Board minister Pierre Moreau, the LANEQ contends that both the Quebec government and the province’s revenue ministry, which is a separate legal entity, acted in bad faith during negotiations before, during and after the strike.


The LANEQ is asking for repayment of both the $4 million it spent from its strike fund and an $8-million loan it took out during the strike, as well as a $15,000 punitive payment to each of its members.


In the other case, which is an application in appeal judicial review — Demande de Pourvoi en Controle Judiciaire — being heard before the Superior Court of Quebec in Montreal, the LANEQ is challenging the legality of the back-to-work legislation that came into effect on March 1, 2017.


A preliminary hearing was held in the case last week.


The union contends the law contravenes article 2d of the Canadian Charter of Rights and Freedoms and article 3 of the Quebec Charter of Human Rights and Freedoms.


“We are arguing that the law is illegal because it imposes conditions and does not allow discussions over the mechanisms of negotiations, which for us is the heart of the whole issue,” says Dion.


Though money was the main public focus of the lawyers’ contract demands (a pay increase of 10 per cent over four years, the same conditions an arbitrator awarded Quebec’s 450 Crown counsel), Dion says the real driver that triggered the civil lawyers’ strike on Oct. 24, 2016 — and fuelled their desire to stay out even after the LANEQ’s war chest was depleted and many members were in dire personal financial straits — was their indignation over the government’s refusal to grant them the same right to a binding arbitration process in exchange for the right to strike as they did to the province’s 450-member Crown attorneys’ union (the Association des procureurs aux poursuites criminelles et pénales).


That concession was made in 2011 following a six-day strike — the first by government lawyers in Canadian history — in which both Quebec lawyers’ unions walked off the job in protest over their wages, which were as much as 40-per-cent lower than what provincial lawyers earned in neighbouring barometer-province Ontario.


The Quebec government ended that strike through legislation, much of which was cut-and-pasted into the 2017 law. 


Since then, it has failed to repair the schism it created between the two lawyers’ groups in nearly two dozen bargaining sessions and many meetings with mediators.


Moreau only added salt to the civil lawyers’ wounds when he argued publicly in 2015 as treasury board president that they don’t require the same level of independence in the determination of their working conditions as Crown attorneys.


The desire to change their negotiation process — not wage parity — became the main demand and rallying cry for LANEQ members after their collective agreement expired in March 2015.


The rejection of five government offers and counter-offers led to an 84-per-cent vote in favour of the strike that began on Oct. 12, 2016.


“The signal from our members is clear,” the union’s then-president, Jean Denis, wrote in a statement following the vote. “The strike has become the only way to bring (government) back to the negotiating table.”


The strike proved to be both difficult and unsuccessful for LANEQ’s members.


Despite widespread public support from Quebec’s legal community and a mid-strike vote in which they rejected the government’s final offer by a whopping 97 per cent, the striking lawyers emptied their $4-million strike fund, took out an $8-million loan (which is currently being repaid through an increase in union dues to three per cent from 0.75 per cent of members’ salaries) and dropped strike pay to zero from the 60 per cent of members’ weekly salaries paid at the start of the strike.


But the government tabled its back-to-work legislation and brought in the special law that imposed a 105-day negotiating and mediation period on both sides — but notably excluded the issue of negotiation mechanisms from being discussed.


Not surprisingly, those discussions failed to reach an agreement and the Quebec government last summer imposed the first and lowest of the formal offers it made to LANEQ — a 5.25-per-cent increase over five years.


“The outcome was already dictated by law,” says Dion.  “The government had no incentive to be generous, and it wasn’t.”


The entire saga has left many Quebec legal observers both saddened and concerned.


“I don’t think it’s had an impact on the enthusiasm and the quality of the services that government lawyers provide on a daily basis,” says Patrice Garant, a professor emeritus of law at Université Laval in Quebec City.  “But it’s sad to see them so depressed and angry over the cavalier way they feel they have been treated by government.”