Hague
Continued From Page 3
tal freedoms) exceptions to the
mandatory return of the child.
n;By virtue of his or her status
as a Convention refugee, a
child’s s. 7 Charter rights to life,
liberty and security of the
person are engaged by a Hague
application to involuntarily
remove her to a country where
he or she has already been found
to face a risk of persecution.
Therefore the return of a
refugee child under the Hague
Convention must accord with
the principles of fundamental
justice. The child’s s. 7 Charter
rights mandate that the judge
deciding the Hague application
perform a risk assessment of the
existence, and extent, of any
persisting risk of persecution.
n;Judges deciding Hague applica-
tions must give adequate reasons.
n;Section 46 of Ontario’s Chil-
dren’s Law Reform Act (CLRA),
which incorporates the Hague
Convention into Ontario’s laws,
when properly interpreted, is
constitutional in the sense of
not conflicting operationally
with s. 115 of the federal Immi-
gration and Refugee Protection
Act (IRPA), which prohibits
refoulement.
n;A parent seeking the return
of an allegedly wrongfully
removed Convention refugee
child need not apply to vacate,
or rescind, the child’s refugee
status before making a Hague
application (the appeal court
rejected the contrary argument
made by the intervener Can-
adian Council of Refugees.)
Reasons: A.M.R.I. v. K.E.R., [2011] O.J. No.
2449.
We want to hear from you!
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Current system does not achieve objectives
Woolley
Continued From Page 8
ence really means.
Independence of the Bar
flows from lawyers’ ethical and
legal obligations. We do not
require independence in the air;
we require independence for
what we do, for what we are
mandated to do by law and ethics. As lawyers we should be
advocates for clients within the
bounds of the law. Independence means that lawyers should
not be subject to external pressures that will undermine the
accomplishment of either of
those obligations, which of
course don’t always run in the
same direction. The accomplishment of a client’s goals
might be more easily achieved,
for example, if a lawyer ignores
the law’s purposes and limits.
So regulation of lawyers consistent with the independence of
the Bar will aim to ameliorate or
reduce improper pressures that
might push lawyers to violate
their legal and ethical obligations to clients or to the legal
system. It will, as well, place
positive (or negative) incentives
on lawyers to encourage them to
do what they are supposed to do.
Our current regulatory sys-
tem does not achieve those
objectives as well as it ought to.
While the efforts and energy
devoted by lawyers to the regu-
lation of the profession are
remarkable and admirable, the
scope of regulation remains
narrow. The vast majority of
ethical obligations set out in
codes of conduct are subject to
little or no regulatory enforce-
ment. The only meaningful
regulatory incentives for com-
petent service arise from the
civil law obligations created by
the law of contract and tort,
incentives that provide neither
direction nor remedies other
than at the extremes.
“Radical changes
are not necessary,
and subordination
of lawyers to non-
lawyers would
be a mistake.
the lawyers were male, 52
appeared to practise alone or in
a small firm, and most appeared
to have been called to the bar
for a number of years.
We can do better. Radical
changes are not necessary, and
subordination of lawyers to
non-lawyers would be a mistake. Lawyers may indeed be
uniquely qualified to understand the competing legal and
ethical duties they are required
to fulfill, and to avoid weighing
one set of obligations in preference to the other. But we can
and should adopt reforms so
that our regulatory system can
better encourage lawyers to discharge their legal and ethical
obligations.
Specifically, clients in Can-
ada should be able to access
services similar to those pro-
vided by the legal ombudsman
in England and Wales. Those
services allow clients to easily
and cheaply obtain redress
where they have received inad-
equate services from their law-
yers. In addition, adjudication
of client service complaints, but
also of disciplinary matters
investigated and prosecuted by
the law societies, should be sep-
arated from the existing law
societies and performed instead
by an independent and impar-
tial regulator. The members of
that body would be paid, be
both lawyers and lay persons,
and be chosen by a committee
comprised of representatives
from the law societies and the
superior courts in the province.
And, finally, all provinces should
have an office similar to the
British Columbia Ombuds-
person which can provide some
constrained review and guid-
ance as to whether the law soci-
eties are discharging their pub-
lic interest mandate.
Alice Woolley is a professor of
law at the University of Calgary.
These thoughts are taken from her
paper Rhetoric and Realities:
What Independence of the bar
requires of lawyer regulation.
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