New procedural
protections, including
the right to counsel,
recognized
CRISTIN SCHMITZ OTTAWA
Ontario’s top court has recognized new procedural protections, including the right to
counsel, for Convention refugee
children whose parents claim
they were wrongly removed
from their homes and should be
returned to their foreign
habitual residences under the
Hague Convention.
In unanimous reserved reasons released June 2, Justices
Eleanore Cronk, Eileen Gillese
and Jean MacFarland explain
why they decided last April to set
aside a Sept. 21, 2010 order, made
under the Convention on the
Civil Aspects of International
Child Abduction, 1980 (Hague
Convention), which required a
13-year-old refugee living with
her paternal aunt in Toronto to
be returned to her mother in
Mexico: A.M.R.I. v. K.E.R.
The girl had previously been
granted refugee status in May
2010 by the Immigration and
Refugee Board (IRB) after the
board accepted her allegations
that she had been physically and
emotionally abused by her
mother, and therefore faced a
risk of persecution if she was
returned home to Mexico.
“Her views and
preferences were not
sought or obtained at
the hearing, nor…was
she represented by
counsel at the hearing.
judge faced with a Hague Convention application for the return
of a child who was previously
granted refugee status must treat
that child’s refugee status as giving rise to a “rebuttable presumption” that there is a risk of persecution, and hence a risk of harm
within the meaning of art. 13(b)
of the Hague Convention, if the
child is returned to his or her
country of habitual residence.
The court also holds for the
first time that a Convention
refugee child whose return to a
foreign jurisdiction is sought
under the Hague Convention is
entitled to procedural protec-
tions including the right to: (1)
receive notice of the application;
( 2) receive adequate disclosure
of the case; (3) a reasonable
opportunity to respond to the
case; ( 4) a reasonable opportun-
ity to have his or her views on
the merits of the application
considered in line with the
child’s age and maturity; and ( 5)
the right to representation.
New code of conduct for Nova Scotia lawyers to come in 2012
Mostly modelled on
Federation of Law
Society’s model code
DONALEE MOULTON HALIFAX
Lawyers in Nova Scotia will
usher in a new year — and with it
a new code of conduct. Effective
Jan. 1, 2012, the Nova Scotia
Barristers’ Society (NSBS) will
replace its Legal Ethics Handbook with a revamped Code of
Professional Conduct.
For lawyers in the province,
everything old will be new again.
While the organization of
material is significantly different
the substance of the rules is
essentially the same. “A code of
conduct reflects the ethical
norms of the profession. The
rules don’t move. They are largely
what is accepted by the profession. There is a comfort level,”
said NSBS Executive Director
Darrel Pink.
That comfort level is nationwide. The society’s new 121-page
code is, with few exceptions, an
adoption of the Federation of
Law Societies of Canada’s
Pink
national model
code. “We were
always working
with the lan-
guage of the
model code,”
said Pink. “The
goal has always
been for uni-
formity.”
“The [national] code does not
rearticulate legal ethics in Can-
ada,” he added. “It’s very much a
form issue.”
The NSBS code, in keeping
with the national format, has six
chapters. These will replace the
24 chapters in the existing
members’ handbook. The
reformatted code includes sec-
tions on marketing of legal ser-
vices and lawyers’ relationships
to clients. Several other chap-
ters deal with relationships as
well: to the administration of
justice; to students, employees,
and others; and to the society
and other lawyers. The first
chapter spells out the standards
of the legal profession. It has
only one subsection, which is
simply entitled “Integrity.”
The Federation’s Model Code
of Professional Conduct was
adopted in large part by its
council in October 2009. How-
ever, two rules remained out-
standing: the future harm
exception to the rule on confi-
dentiality and conflicts of inter-
est. At its March 17 meeting, the
council approved those two out-
standing rules, which opened
the door for the NSBS to move
ahead with its own formal adop-
tion of a new code.
“Whenever you attempt
to create a single
document for the
whole country you
realize how we all use
language differently.
There were, though, nuances
that first had to be addressed,
Pink noted. For example, the def-
inition of a “lawyer” under the
federation’s model code is essen-
tially someone who is a member
of a law society. In Nova Scotia,
there is a statutory definition for
a “lawyer” as someone who can
practise law in the province (even
if they are not a member of the
provincial society). “Whenever
you attempt to create a single
document for the whole country
you realize how we all use lan-
guage differently,” said Pink.
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