CRISTIN SCHMITZ OTTAWA
Once a newly detained or
arrested person has had a reasonable opportunity to obtain legal
advice before being questioned by
police, he or she may only “
re-consult” with counsel during the subsequent police interrogation in
limited circumstances, the
Supreme Court has ruled.
In an Oct. 8 trilogy of decisions
on the breadth of the s. 10(b) Charter right to counsel, the top court
firmly rejected the plea of the
defence Bar to recognize a new
American-style constitutional
right for detainees to have their
counsel present throughout police
interviews.
“We are not persuaded that the
Miranda rule should be transplanted in Canadian soil” since
“adopting procedural protections
from other jurisdictions in a piecemeal fashion risks upsetting the
balance that has been struck by
Canadian courts and legislatures,”
Chief Justice Beverley McLachlin
and Justice Louise Charron wrote
in joint majority reasons backed by
Justices Marie Deschamps, Marshall Rothstein and Thomas
Cromwell.
(The famous U. S. Supreme
Court decision in Miranda v. Ari-
zona, 384 U.S. 436 (1966), gave
those who are arrested or formally
detained the constitutional right to
have a lawyer present during police
interviews.)
“…adopting procedural
protections from other
jurisdictions in a
piecemeal fashion
risks upsetting the
balance that has
been struck by
Canadian courts
and legislatures.
Federal judicial vacancies in
Canada are at near-record lows
because the Harper government has
been appointing judges at an unusually speedy pace.
As of Oct. 14, there were 1,104
federally appointed judges (including
supernumeraries). According to the
website of the Commissioner for
Federal Judicial Affairs, that leaves
only 15 spots open: Federal Court of
Appeal (2); Federal Court (2); Tax
Court (1); B.C. Supreme Court ( 4);
Ontario Superior Court of Justice (2);
Ontario Family Court ( 3); and Quebec
Superior Court (1). The most recent
report of the advisory committees
who vet applicants for the Bench discloses that nearly two-thirds of the
463 would-be judges assessed during
the year ending Oct. 31, 2009 were
rejected (292 applicants). Only 171
applicants were rated “
recommended.” Sixty-eight people were
appointed judges during that period.
Negative billing
CONTENTS
NEWS
THE ALBERTA Law Society tackles
the legal aid shortfall....................1
A COURT extends spousal privilege
to common-law marriages.......... 11
QUEBEC’S BARREAU makes
recommendations on the judicial
nominations process ....................1
HOW TO minimize cross-border
travel restrictions for criminal
clients ........................................ 13
THERE IS no Charter right to have
a lawyer present during police
interviews, says the SCC .............2
Immigration Law
MANDATORY LANGUAGE testing
for immigrants is under fire ........ 14
A PENSION surplus need not go
with employees, says the SCC..... 3
VIEWING IMMIGRATION law
through a civil-liberties lens........ 15
THE ALBERTA law society targets
trust fund fraud ............................ 3
BUSINESS & CAREERS
MUSICIAN TURNED lawyer to
some of Canada’s top stars ......... 4
HST LEADS to disharmony in real
estate ......................................... 20
SOCIAL MEDIA policies can
reduce risk in workplaces........... 20
OPINION
THE ‘F’ factor— follow-up......... 21
JEFFREY MILLER ........................ 5
the Charter and, from the respond-
ent’s perspective, appropriately
balance the relevant competing
interests,” she explained.
Vancouver’s Gil McKinnon,
appellate counsel for Sinclair and
McCrimmon, said the “strong dissents” in Sinclair by Justices Ian
Binnie, Louis LeBel, Rosalie Abella
and Morris Fish, and in R. v. Singh,
[2007] 3 S.C.R. 405 (where the
same judges dissented on the scope
of the right to silence) have paved
the way for a future recognition of
the right to counsel during custodial interrogations.
“Although defence counsel
would have preferred a different
result, we should not be discour-
aged,” McKinnon told The Lawyers
Weekly. “We should use the analy-
sis in all three judgments in Sin-
clair to develop persuasive argu-
ments whenever the admissibility
of an accused’s statement is in
issue (i.e. the confessions rule).
Protections for an accused that are
not apparent today may eventually
be introduced through another
avenue. That is how our jurispru-
dence develops.”
Toronto’s Andras Schreck of
Schreck Presser, who represented
the intervener Criminal Lawyers’
Association with Candice Suter,
told The Lawyers Weekly the
majority has ventured further
down the path it took in Singh
Manitoba businesses that use
negative option billing now face fines
of up to $300,000.
Amendments to the province’s
Consumer Protection Act that kicked
in this month bar individuals and companies from using a consumer’s failure to say “no” to an offer of goods or
services as the person’s agreement
to pay for the product. For example, if
a consumer signs a one-year contract
for a service, the business cannot unilaterally renew the contract when the
term expires. The consumer instead
must be asked to renew, and must
agree to the extension. Additionally, if
the agreement is for the regular supply of goods or services, the business
cannot make a significant change
without the consumer’s consent. If a
contract is not clear, or the terms and
conditions are advertised in very fine
print or displayed so briefly that it is
not reasonable to read and understand them, it will be considered
negative-option marketing. Victims of
negative-option marketing have up to
one year to demand a refund, and the
supplier has 30 days to comply.
New NB Attorney General
FOCUS
Criminal Law
HOW DOES culture fit with the
‘ordinary person’? ......................... 9
DEPARTMENTS
THE IMPORTANCE of the SCC’s
dissent on police accountability in
Cornell ........................................ 10
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D. BRANT LATHAM, B. A.SC. B.SC. (CHEM. ENG.), LL.B.
DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B.
BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
NOVA SCOTIA’S top court orders
a new trial when jury information is
not disclosed.............................. 10
Careers . . . . . . . . . . . . . . . . . 21
Classified Ads . . . . . . . . . . . . 19
Lawddities. . . . . . . . . . . . . . . 11
Legal Briefs. . . . . . . . . . . . . . .2
Names in the News. . . . . . . . . 4
Weekly Digest. . . . . . . . . . . . 16
TRADE MARK AGENTS LEONARD GROVE (1930-2006)
MARTA TANDORI CHENG
2 BLOOR ST. EAST, SUITE 1800
TORONTO, ONTARIO M4W 3J5
TELEPHONE: (416) 961-5000
FAX: (416) 961-5081
E-MAIL: riches@patents-toronto.com
ESTABLISHED 1887
Marie-Claude Blais, a Moncton-area general practitioner and the sole
lawyer among 42 Progressive
Conservatives elected to New
Brunswick’s Legislative Assembly,
was sworn in Oct. 13 as the province’s Attorney General and Minister
of Justice and Consumer Affairs.
Blais, who hails originally from
Quebec, practised law for the past 12
years in New Brunswick, where she
was recently the executive director
and legal counsel to the provincial
Progressive Conservative Party.
Blais earned a common law degree
from l’Université de Moncton and a
civil law degree from l’Université de
Sherbrooke. Her practice included
defending youths in court.
