The Honourable J.E. Côté on Use of Precedent

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Oct 192016

The Honourable J.E. CôtéJunior lawyers and articling students are often asked to look up case law for use in court. Sometimes they go to court and persuade judges or masters with such case law. If you generate or consume such research, what aspects should you be looking for?

In today’s blog, the Honourable J.E. Côté shares his thoughts, answering this question and more.

Happy reading!

Fact Precedents

First, precedents should be about law. A previous case, which merely has similar facts to yours, is usually not very good. In theory it may be of little use because its ratio decidendi does not correspond. And case law holds that factual precedent is of little value. Even though buckets of such cases are often futilely cited in sentencing and personal injury damages cases. True, case on a similar fact situation is not always totally useless: some judges are comforted by seeing it – but some are not. So a case with the same facts is never never enough.

What Binds

Second, law schools do not emphasize the vital difference between binding and persuasive precedent. But courts do. Harvard does not teach the law of Massachusetts, and may teach the law of nowhere. But Alberta courts find and administer the law of Alberta. And in Alberta what binds is the Supreme Court of Canada (though rarely an old Privy Council case is on point and binds). And if the Supreme Court is silent or equivocal, then what binds is the Alberta Court of Appeal. Binding means not optional. If the ratio decidendi is on point, the judge or master today must follow the higher court’s ratio. Even if it is old or sounds old-fashioned or unsympathetic. Counsel can demand that the new court follow that precedent (phrasing the demand in as tactful terms as counsel can muster). It is reversible error not to follow it.

Dissents are not precedent. That sounds easy, except when the Supreme Court of Canada issues a decision where several judges write separate reasons. How to decide which judge is dissenting and which judge is part of the majority, can get tricky.

The ratios of all Alberta Court of Appeal decisions are binding except for sentencing memoranda of decision.

What Persuasive Precedent Really Persuades?

We all know that often there is no binding precedent. All there is, is a heap of persuasive precedent. Like fishing line, it is usually snarled and knotted. Which cases should one rely upon?

There is no absolute answer to that, because judges differ, both in their approach to case law in general, and in their life experiences and philosophy. For example, some judges think that the latest decision is the best, one 10 years old has a long white beard, and one 40 years old is a collectible antique, not law at all. Some may want to stick to Alberta (or Calgary) law. Others may be enamoured of certain courts or judges, and conversely have coolness toward certain other courts or judges. Counsel cannot know all those things (or in any event would have to know who their judge will be and then do a lot of peculiar computer research beforehand). So where all the case law is persuasive, it’s better to have 3 or 4 good cases, not just one.

Some provinces’ judges pay attention to precedent from other provinces. But judges in some provinces tend to ignore it.

Barring judges’ individual predilections, what other criteria should you use to sift persuasive precedent?


First, does the case really persuade? Does it review the countervailing arguments? Does it give convincing reasons to adopt one view and to reject the opposite one? Does the supposedly persuasive precedent contain any flaws in reasoning? If it is flawless and convincing, then the Court of Appeal of South Australia 30 years ago is a much better bet than a terse and superficial recent decision of a B.C. chambers judge.

Second, how thorough is the decision, and does the author of it seem to have looked up enough authority and thought about the matter? Did the author simply rely on authority binding on him or her, but not binding in Alberta?

Third, can that authority be distinguished (in a meaningful way, not a technical one)? Or does the author of that decision say the result could have been different if a certain fact differed? Or decline to decide a certain important issue (e.g. on procedural grounds)? Indeed does that case decide anything general, or just hold that the standard of appellate review is not met so deference is owed to a chambers judge below?

Fourth, are there any factors in Alberta which make law from that other place unsuitable? For example, is that decision founded on a different system of recording title to land? Or a different matrimonial property regime?

Fifth, has the other court issuing that precedent given any indications that its decision has smaller weight as precedent? For example, a brief “Endorsement” by the Ontario Court of Appeal? Or a sentencing memorandum from the Alberta Court of Appeal?


Never forget the delicate question of how far counsel must go to satisfy ethical requirements. You must cite any authority contrary to your position, to the court. The penalty is professional discipline or personal costs. Obviously you must cite all binding authority. Debatable or questionable grounds to distinguish do not remove that duty. Dicta of the Supreme Court of Canada should be disclosed. Whether Court of Appeal dicta should be disclosed is less clear. Some persuasive authority should be disclosed, especially if there is little or no binding authority. Not to disclose a unanimous line of persuasive Alberta decisions would be unthinkable. Conversely, a trial-level decision from Alabama in 1912 need neither be found nor disclosed. Nor a brief nisi prius decision from England in the 1840s. Where in between those extremes one draws the line is less clear.

If you are interested in submitting a blog post relevant to Alberta’s legal community, please contact Andrea Maltais, Communications Coordinator at

Weekly Program Feature: Microsoft® Excel & PDF Files for Lawyers and Staff

 Calgary, Edmonton, LESA Update, News, Upcoming Seminars  Comments Off on Weekly Program Feature: Microsoft® Excel & PDF Files for Lawyers and Staff
Oct 172016

Microsoft Excel for lawyers and Staff & PDF Files for Lawyers and Staff

Get the inside scoop on 2 fantastic programs running on November 15 (Edmonton) and 16 (Calgary).

Microsoft® Excel for Lawyers and Staff
PDF Files for Lawyers and Staff

Hone your skills and enhance your practice. Join instructor Barron Henley and discover how you can use Microsoft® Excel and PDF files more efficiently.

Microsoft® Excel for Lawyers and Staff

In a recent interview, program instructor Barron Henley gave us a sneak preview of what this program has to offer. Check out the Q & A below to find out more about why the Microsoft® Excel for Lawyers and Staff program is beneficial and unique, and discover what you’ll be taking back with you to the office!

What will attendees find beneficial about this program?

The best bang for your technology dollar is to learn how to use what you’ve already got. Almost everybody has Excel because it comes in every version of Microsoft® Office. This program will focus on how one might use excel in a legal environment for everyday tasks. You’ll find out when you should really be using Excel instead of using Word.”

What is unique about this program and what will be some of the main take-aways?

The printed materials are really fantastic and extremely detailed. The Microsoft® Excel manual will go over every single exercise that I’ll go over in the program so if someone can’t remember, they can track it down. There are also a lot of practical examples – all of the exercises deal with issues we’ve seen our clients face in Excel.”

What would you say to individuals who are considering attending this program?

You can go take a Microsoft® Excel class and 20% will be related to legal users and 80% will be unrelated . There’s no waste in this program – the relevancy is really high as compared to any other place where you may find this kind of content coverage.”

Register Online

Get practical information you can apply to your practice immediately in. Reserve your spot in Microsoft® Excel for Lawyers and Staff today.

Register to attend in Edmonton (November 15) or Calgary (November 16).

For additional information, including program times, prices, locations, and more, view the brochure.

PDF Files for Lawyers and Staff

Individuals often use PDF files under the impression that they are secure files that cannot be changed. However, without knowing the proper steps for securing a PDF document, lawyers may find themselves in sticky situations.

Join instructor Barron Henley for PDF Files for Lawyers and Staff. Learn various aspects of working with PDF files.

Barron gave us a sneak preview of what this program has to offer attendees. Here’s what he had to say.

PDF is the new currency when it comes to trading documents between law firms, lawyers, and clients, and there are risks and benefits associated with PDFs. My intent is not to focus so much on the tool one is using, but rather what one should know how to do. For example, PDFs can be manipulated and changed unless they are secured and locked down, which a lot of people don’t even know.”

We also found out what some of the main program take aways will be. Here’s what Barron told us:

The printed materials are completely legal specific. The PDF manual will go over what you need to know and illustrate how to do it in Acrobat. This program is really about the functionality.”

Register Online

Discover crucial aspects of PDF Files. Register to attend this program in Edmonton (November 15) or in Calgary (November 16). (View brochure)

Weekly Program Feature: Family Law Trial Fundamentals

 Calgary, Edmonton, Legal News: Alberta, News, Upcoming Seminars  Comments Off on Weekly Program Feature: Family Law Trial Fundamentals
Oct 112016

Family Law Trial Fundamentals

This November 17 (Calgary) and 22 (Edmonton), join program chair Heather McKay QC and expert panel for Family Law Trial Fundamentals. Learn effective trial advocacy from senior family law practitioners, understand best practices for retaining and using experts, and more.

Benefits of this Program

In a recent interview, we asked Heather what attendees will find beneficial about this program. Here’s what she had to say.

I think this program will appeal to everyone, including junior lawyers and lawyers who have not run a trial in a long time. It’s going to be very hands on. There will be demonstrations and  discussions from senior lawyers, a judge, and a lawyer who has run many provincial court trials.”

Heather also let us know why she thinks this program will be particularly unique.

I think that people learn not just by listening to people talk – especially when you’re dealing with the fundamentals of trial. A lot of people have never used or seen an opening statement, and many lawyers have never had the experience of cross examining or qualifying an expert. Having the experts there speaking to us will be beneficial.”

Faculty and Discussion Topics

Heather also gave us a sneak preview of what some of the other faculty members will be discussing.

Justice Horner will talk about effective advocacy from the bench’s perspective. Larry Fong Ph.D. has years of experience with bilateral custody assessments and litigation support. He is also a trained mediator and arbitrator and is going to talk about the things that counsel can do to effectively use their expert. Sharon Gray and Heather Askham are experts in the area of income determination and business valuations. They are going to give some tips for using your expert, including how to understand expert reports, and what questions to ask. We’ve also got Michael Kraus QC, who’s going to talk about summary trials, and Dustin Tkachuk, who’s going to speak on provincial courts.

Registration and Additional Information

Don’t miss this opportunity to explore each step of the family law trial process and deepen your confidence in your ability to run a family law trial. Register online to attend in Calgary (November 17) or in Edmonton (November 22).

For more information, view the program brochure.

Oct 042016

Monthly Upcoming Legal Events

September has come and gone, but this October is packed full of upcoming legal events. Find out what’s going on in Alberta’s legal community this month.

LESA Programming


Negotiations & Practice Fundamentals begins the week of October 31 in Calgary. This face-to-face session is a mandatory part of the CPLED Program.

Legal Community: News & Events


Practice Profile: Michelle Gallagher

 Legal News: Alberta, News  Comments Off on Practice Profile: Michelle Gallagher
Sep 232016


Michelle GallagherLESA greatly values the contributions of its volunteers. Recently, we spoke with Michelle Gallagher of Patriot Law in Onoway, Alberta. Michelle is a board member of LESA, a CPLED Evaluator, and has presented at several LESA programs.

Before pursuing law as a career, Michelle was an officer in the Canadian Armed Forces. Her background with the military has significantly contributed to her career. On a daily basis, she draws from this experience in 2 ways: through her highly developed planning skills, and through her diligence and attention to detail.

These skills have helped Michelle achieve success in the legal profession. Michelle notes, “We had a saying in the military, time spent on reconnaissance is seldom wasted.”

Michelle practices law at her small-town general practice with her husband. She enjoys practicing law in a rural community for many reasons, including the more relaxed office atmosphere and the friendly environment. As Michelle put it, “We get really well-embedded into our community out here.”

Community involvement is very important to Michelle, as evidenced by the fact that she is a director on several not-for-profit boards within her region. Currently, she sits on the local Chamber of Commerce Board, the Commissionaires, and is the Chair of the West Parkland Gas Co-Op. She enjoys her work with these organizations because it helps her stay connected to her communities and because it has given her, as she states, “Opportunities and opened doors that may or may not have existed if [she] hadn’t tried to make the leap and tried to find something to be involved in.”

Michelle first became involved with LESA by attending a seminar. Since that time, Michelle has been involved with LESA in several capacities: as a presenter, as a participant in seminars and on-line programs, as an evaluator for the CPLED program, and as a member of the Board of Directors.

Michelle’s involvement with LESA has enriched her practice in different ways. Presenting in seminars has provided an opportunity for Michelle to advance her oral advocacy skills, build her professional network, and ensure that she is adapting her practice to be in-line with best practices. According to Michelle,

[Presenting helps to] get some professional development for yourself at a deeper level, because I think you have to know the subject better than just a basic level in order to be able to stand in front of a group and talk about it.”

Michelle also attends many of LESA’s seminars and participates in online LESA training throughout the year to direct her own personal development as a lawyer. She also enjoys her work as a CPLED Evaluator with LESA, not only because it serves as a refresher for her own skills, but because it also provides gratification.

It’s nice to see that between law school and CPLED, you are bringing some really good people to the profession.”

As a member of the board, Michelle enjoys working with people from many areas of the legal profession and she appreciates that this position affords her the opportunity to take a look at bigger-picture issues facing the legal profession.

Part of what I enjoy about being involved with LESA is having the opportunity to step back and look at lawyer and legal issues on a much larger scale with a view to where things are going in the future.”

It is through the hard work and dedication of volunteers like Michelle Gallagher that LESA is able to provide such a diverse variety of programs to serve the educational and professional development needs of the legal profession throughout the province. Thank you for being our partner in continuing legal excellence.

What’s New in the LESA Library?

 LESA Update, News, Resource  Comments Off on What’s New in the LESA Library?
Sep 162016

Find out what’s new on the LESA Library.

We recognize that as your schedule fills, it can be difficult to attend all of the programs that LESA offers. As such, the LESA Library contains the materials and resources you need to stay up-to-date in your area of practice anytime, anywhere.

Gain access to seminar papers, practice manuals, and more, so you can stay up-to-date on topical issues and key information for your practice.

Seminar Papers

The cost of purchasing individual seminar papers can quickly add up. In the 2015/2016 educational year alone, more than $6,000 worth of seminar papers was added in the LESA Library.

With an annual subscription, you gain access to all of these seminar papers for no additional cost. Not only can you access the most current materials, but also hundreds of additional seminar papers dating back to 2010.

Below is a list of programs from our 2015/2016 educational year. If you are a current subscriber, click on each seminar title below and instantly access all of these materials right now.

Practice Manuals and Fundamentals Series

We haven’t just updated the LESA Library with new seminar papers; there are also updates to our other publications. If you’re a current LESA Library subscriber, click on any of the titles below and instantly access the PDF versions.

Practice Manual Series
Fundamental Series

Audio Recordings

The LESA Library also offers audio recordings of select seminars. Simply download the MP3 files and listen from your computer or, for added convenience, transfer the MP3s to a portable music device.

Audio recordings from our 49th Annual Refresher: Real Estate are exclusively available to LESA Library subscribers at no additional cost.

Get crucial updates and practical tips that will help hone your skills. Pair seminar materials with audio recordings and get an enriching continuing legal education experience.

Seminars on Demand: Now Available

We currently have 27 seminars available on demand. One of the benefits of being a LESA Library subscriber is the ability to access these seminars on demand at a discounted price.

Look at the seminars now available on demand, and take advantage of your LESA Library Subscriber discount today!

Subscribe Online

Take your continuing legal education to the next level. Access checklists, precedents, and other pertinent Alberta-specific legal content more conveniently than ever before. Get an individual annual subscription to the LESA Library, or subscribe for your entire firm.

For more details, visit

Which Side of the Road?

 Guest Blog, News  Comments Off on Which Side of the Road?
Sep 142016

The Honourable J.E. Côté

Why do some countries drive on one side of the road, others on the other side?

In today’s blog, the Honourable J.E. Côté shares his thoughts, delving into the origins of traffic law and changes throughout history.

A lot of things in the world become more uniform, such as the language of air traffic controllers. But one of the persisting and inconvenient differences remains. Some countries drive on the right side of the road, others on the left.

At the top of the Khyber Pass, in a wide gorge with steep walls, is the border between Pakistan and Afghanistan. Big signs warn northbound motorists to switch over from the left to the right side of the road. This may be the most dramatic of the few land boundaries in the world where drivers must switch sides. Even so, that certainty is apparently misleading, because now some areas of Afghanistan do drive on the left!


Some popular sources talk about which hand a knight carried his sword in. But some of the European countries which had the feudal system drove on the right, some on the left. Were all the knights in some countries left handed? Other popular accounts talk of which horse a postilion rode when he was driving a team pulling a wagon. But that was just custom or riders or horses, so the supposed origin is almost circular reasoning. And again, were postilions all left-handed in some countries?
I have often wondered about the shipping rules, such as two oncoming ships passing port to port. But though those rules were part of English Admiralty law, they more closely resembled modern North American rules of the road. Not English rules.

The English seem to have favored the left for a long time, and the French favored the right. Napoleon’s rule over the Continent converted a number of countries from left to right driving.

One might wonder whether road traffic copied railways. But that is doubtful. A country like Canada did not have many double tracks. And where there were double tracks in the U.S., some railways “drove” on the left track.

What was the Rule?

If we get to actual history, we see that our question, why one country always drove on the left or right side of the road, turns out to be somewhat misleading, even fictional.

In Canada there used to be few or no laws governing which side of the road to drive on. Let us consider Alberta. Maybe bylaws or special legislation governed driving in cities. But elsewhere, the Vehicles and Highway Traffic Act applied, and it governed driving on every road, street, lane, alley, … or public place. I looked at the version of that Act in RSA 1942 c. 275 s. 47(1), and the relevant amendments through 1954. That Act did not give any rule for what side of the road to drive on, except for meeting or passing. (The marked centre line and whether to cross it only came in into Alberta law in the early 1950s, and obviously could not apply to unpaved roads.)

For many years, the only rule was that when meeting an oncoming vehicle, a driver had to go to the right of the centre: s. 47(1). Not at any other time.

Anyone my age knows that in the 1940s and 1950s on ordinary country roads, no one drove on the right side. Everyone drove in the middle (even on a hill), and pulled over only to pass. There was only one set of ruts in the mud, gravel, or snow.

Lack of Uniformity

Nor is it true that the rules governing which side were uniform for a given country. For example, which side to prefer in Spain used to vary from city to city or region to region, even into the 1920s. The same was true of Austria into the 1930s. I have already mentioned Afghanistan. We will see that parts of modern China are different.

At one time (before automobiles), wagons and carriages in some American states drove on or pulled out to the left, not the right.

The same is true of Canada. Quebec and Ontario have always selected the right, maybe because they used to be a French colony. The Prairies also seem to have favored the right, though maybe no one knows why. But all the rest of Canada drove on (or pulled out onto) the left, long after the introduction of automobiles. The dates when the rest of Canada switched to the right side are as follows:
• British Columbia: beginning of 1922
• New Brunswick: end of 1922
• Nova Scotia: 1923
• Prince Edward Island: 1924
• Dominion of Newfoundland: 1947 (before Confederation) (but American military bases there always drove on the right!)

Outside Forces

Military occupation can produce sudden changes of side. Japan and Britain both used the left, and the Netherlands East Indies did too (though the Netherlands chose the right). So Japanese occupations in World War Two had little effect on side of the road. (I do not know what happened in the Philippines.) Britain, Canada, and the U.S. occupied Iceland, but the British and Icelanders prevailed and stayed on the left. But the Germans imposed right-hand driving on the occupied Channel Islands. So did the Argentines when they briefly occupied the Falklands. Patriotic Falklanders continued to drive on the left, to show their defiance.

So changes of occupier can produce double effects on which side a territory drives on. East Timor has changed the side at least four times within living memory!

Switching the Rule

Many countries have switched from left to right. A number of Central American and South American countries did so in the 1940s. So did China and Korea.

Sweden had a plebiscite in 1966, with over an 80% majority deciding to keep driving on the left (contrary to Norway and the rest of the Continent). Next year the government of Sweden switched it to the right! (I say nothing about Brexit.)

Iceland then also switched from left to right. Portugal and Brazil earlier on switched the same day, though Brazil had long since ceased to be a Portuguese colony. But the actual Portuguese colonies around the world did not switch.

Not all the switches were from left to right. Samoa, Okinawa, Namibia (an old German colony), and East Timor have gone from right to left. Doubtless the same was true of other former German colonies in Africa absorbed into British ones during World War One. Rwanda and Burundi are considering changing from right to left.

In the 1970s, Punch magazine reported that the impending switch from left to right in one populous country had invoked so many protests from truckers that trucks were given a 4-month extension before they had to switch sides! That was merely a bit of the magazine’s xenophobic humor, not a real moratorium.

The biggest problem with a switch is not drivers, but signage and vehicles’ equipment. I will return to that below.

Who is Left Today?

Most countries now drive on the right, but a very large and populous number still drive on the left. Who are they?

• Guyana;
• Suriname (former Dutch colony);
• the former British Caribbean colonies;
• Bermuda;
• the U.S. Virgin Islands;
• Ireland;
• the U.K.;
• Isle of Man;
• Channel Islands;
• Cyprus;
• Malta;
• South Africa and adjoining countries;
• most of East Africa;
• Maldives;
• Mauritius;
• Seychelles;
• India;
Pakistan (considered changing but did not);
• Nepal;
• Bhutan;
• Sri Lanka;
• Malaysia;
• Indonesia;
• Thailand;
• Japan;
• Hong Kong;
• Macau;
• Australia;
• New Zealand; and
• some Pacific island groups.

What Side Does the Driver Sit on?

Anyone who has driven here in a right-hand drive car, or in a left-hand drive car in the U.K., knows how difficult and dangerous that is. Even more difficult if there is no passenger to tell the driver when it is safe to pull out to pass (overtake).

That is why commonly left-hand drive vehicles are used where one drives on the right, and vice versa. But not always.

In the U.S.A., many early automobiles had right-hand drive, or centre drive. Henry Ford did not switch his products to left-hand drive until 1908.

One of Canada’s forgotten contributions to the Allies in World War Two was manufacturing enormous numbers of two models of Army trucks. They all had right-hand drive. Most were supplied to the U.K. and other Commonwealth countries, but not all. Some went to the U.S. or to Russia, and other places where one drove (or pulled out) on the right. A few used to be seen in Canada.

It is frightening to drive in the U.S. Virgin Islands. There one drives on the left on narrow roads. That is because the U.S. bought the islands from Denmark in 1917, and the Danish colony drove on the left, though Denmark by then drove on the right. All the vehicles in the U.S. Virgin Islands are big American left-hand drive cars. Similarly a lot of the vehicles in the former British colonies of the Caribbean are left-hand drive, though one drives on the left.

Nor is that phenomenon confined to that part of the world. The Japanese export a great many automobiles, and some of the inexpensive ones (possibly second-hand) are right-hand drive, being designed to drive in Japan. But they are bought and driven on the right side in various parts of Asia, including the eastern part of Russia!

If you are interested in submitting a blog post relevant to Alberta’s legal community, please contact Andrea Maltais, Communications Coordinator at

Sep 122016

This week we’re featuring 2 programs you may want to consider attending this fall:

We interviewed the program chairs to get details on what these programs have to offer attendees, including some sneak discussion topic previews and program takeaways.

 Estate Planning Essentials

Estate Planning Essentials

Join seminar chair Rhonda Johnson and other panelists for Estate Planning Essentials, and explore essential strategies for addressing common estate planning issues.

In a recent interview, we asked Rhonda what makes this program unique. Here’s what she had to say.

I think the panel itself is an excellent mix of practice interests and experiences.

Tiffany Franklin has done a lot of wills & estates litigation and drafting. Her perspective from the litigation side and understanding how we can learn from issues that have arisen on other files is really very practical in a day-to-day world.

Averie McNary, QC was instrumental in the writing of the new Wills and Succession Act, and she also spent years with the public trustee’s office. She’s also had a lot of experience dealing with disabled adults, so she will be giving practical tips and advice based on her years of carrying out disability trusts.

Timothy Kirby will be speaking from the tax perspective, which is something all of us lawyers are anxious about, and in this area of practice, is always in the background. He has done many, many estate freezes and he can really help alert us to some of the issues from the tax perspective.

Noel Xavier is with the Edmonton Community Foundation and doing really innovative work to help people who are wanting to do some gifting to charities. There isn’t a great deal of awareness in the public eye about the benefits, but it is really is one of those rare situations where you can have a plus, plus – there is a benefit to a charity but there isn’t a drain on the estate.

Finally, I’ve done a lot of work on will substitutes – the most popular in BC are the trusts. I’m doing more and more of those trusts for Albertans for different reasons: disabled adult children, second spouses, challenges with different family members, things like that. I’ll also be talking about some ways of helping clients with those issues, whether that’s through the use of trusts if they have property outside of Alberta.”

Register Online

View the brochure to find out more about this program. Register online to attend in Calgary (October 20) or Edmonton (October 27). Early Bird registration ends September 13, 2016.

Financial Disclosure in Family Law Matters
Financial Disclosure in Family Law Matters

This October, join seminar chair Karin Schwab and experienced faculty members for a full-day program, and learn to identify appropriate and adequate disclosure, effectively review disclosure, and more.

Ryan D. Anderson | Huckvale LLP
Wayne Barkauskas | Wise Schieble Barkauskas
Laura Bruyer | Gordon Zwaenepoel
Christopher A. Jackson | Jackson Law
Aaron D. Martens | Dunphy Best Blocksom LLP
Trevor Phillippon, CA, CBV | Pennock Acheson Nielson Devaney

In a recent interview, Karin gave us a sneak preview of the program. Here’s what she told us.

The whole issue about this new practice note, that isn’t a new practice note, has caused quite a stir in the family bar. The Honourable D.A. Yungwirth and the Honourable J.D. Rooke perceive it as a solution to a problem of too many steps required for the basic disclosure, which is what the note of disclosure is designed to prevent. I think the process they’ve created has been viewed in many different ways in the family bar. This program will allow people to have some input in terms of how they would have addressed this problem and the solutions that they have found in their practices. We all have our little tricks, and perhaps this will give us the opportunity to give some feedback to Justice Rooke and Justice Yungwirth about the pros and cons about what they’ve proposed.”

Not only will you get the chance to weigh in and provide their feedback, but you’ll also receive practical, useful takeaways that will allow you to enhance your practice and hone your skills. As Karin stated, attendees can expect to receive a checklist designed for practitioners of all vantages.

Register Online

Reserve your spot in Financial Disclosure in Family Law Matters. Attend in Edmonton (October 18) or Calgary (October 25). Early Bird registration ends September 13, 2016.

View the program brochure for more details.

A special congratulations goes out to Karin Schwab, who will be celebrating 31 years at the bar this Tuesday, September 13!

Practice Profile: Dr. Lund, Assistant Professor – U of A

 LESA Update, Volunteer Profile  Comments Off on Practice Profile: Dr. Lund, Assistant Professor – U of A
Sep 092016

As an organization, LESA depends greatly on the support of its volunteers. Recently, we spoke with Dr. Anna Lund, Assistant Professor at the University of Alberta Faculty of Law , about her career, her research in insolvency law, and her volunteer work with LESA.

Dr. Anna Lund, Assistant Professor - University of AlbertaDr. Lund’s interest in law began when she was awarded a Roger S. Smith Undergraduate Researcher Award during her Bachelor of Arts degree in Political Science at the University of Alberta to study the experiences of children in war zones. She came to see law as, “a very practical solution to significant social problems.” She became interested in insolvency law while pursuing her law degree at the University of Alberta. After graduation and a clerkship at the Court of Queen’s Bench of Alberta, she worked in private practice during the Global Financial Crisis which meant there were significant opportunities for her to pursue her interest in insolvency law. Dr. Lund then went on to complete her Master of Laws at the University of California, Berkeley and her PhD at the University of British Columbia.

During her undergraduate degree, Dr. Lund was influenced by professors who created dynamic, academically stimulating learning environments. Now, as a professor herself, the most rewarding part for Dr. Lund is engaging with students.

Law is such a flexible tool, seeing the sorts of ways people can use it is exciting.”

She enjoys when students ask questions or come up with issues that help her to think more deeply about a subject area.  Dr. Lund currently holds a research fellowship, funded by the Alberta Gambling Research Institute, to study disordered gambling and bankruptcy. This research examines the experiences of individuals, who make use of insolvency proceedings to address gambling-related debt, and asks what changes could be made to better support them.

Apart from her research and teaching, Dr. Lund finds many opportunities to give back through pro bono work and volunteering. Dr. Lund enjoys practicing pro bono law with the Edmonton Community Legal Centre (ECLC) and Pro Bono Law Alberta (PBLA) in part because, “it’s nice when I’m able to take these skills I’ve learned and help people who are in difficult situations.”

Dr. Lund first became involved with LESA when she and Pat Paradis co-chaired “The Constitution in the Insolvency Tool Box” seminar this past spring. She is also currently working on LESA’s Collections Fundamentals publication. One of the aspects she really enjoyed about taking part in the LESA seminar was that, “it was a really neat opportunity to bring practitioners and academics together to talk about some underexplored aspects of insolvency law.”

It is through the support of volunteers like Dr. Lund that LESA is able to provide a diverse array of programs to serve the educational and professional development needs of Alberta’s legal community.

Thank you for your continued dedication.

Unreasonable Delay

 Legal News: Alberta, News  Comments Off on Unreasonable Delay
Sep 072016

Recently, the Supreme Court of Canada decided a trio of significant precedents for determining unreasonable delay in criminal trials: R v Vassell,  2016 SCC 26, 130 WCB (2d) 597 [R v Vassell], R v Jordan,  2016 SCC 27, 130 WCB (2d) 596 [R v Jordan], and R v Williamson,  2016 SCC 28, 130 WCB (2d) 600 [R v Williamson]. The right to be tried for a criminal offence within a reasonable time is protected by s 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. In the past, this had been determined by applying the R v Morin, [1992] 1 SCR 771 at para 26, 12 CR (4th) 1 [R v Morin], framework which balances four factors in order to determine whether the delay was unreasonable. R v Jordan overrules the R v Morin framework and replaces it with a strict timeline that is supported and fleshed out by R v Vassell and R v Williamson.

The Framework

The framework developed in R v Jordan is dependent on the concept of the presumptive ceiling. The presumptive ceiling prescribed by the Supreme Court of Canada refers to a time limit for criminal cases from the charge to the actual or anticipated end of trial. If the presumptive ceiling time limit is exceeded, then the delay will be presumptively unreasonable (R v Jordan at para 49). Applicable across Canada, the presumptive ceiling is 18 months for provincial court and 30 months for superior courts.

In situations where the presumptive ceiling is exceeded, the burden shifts to the Crown to prove that there were exceptional circumstances outside of the Crown’s control that necessitated having a longer trial. To meet this test, the exceptional circumstances must be: (1) reasonably unforeseen or reasonably unavoidable, and (2) cannot be reasonably remedied (R v Jordan at para 69). The SCC further clarifies this test by considering how the nature of the exceptional circumstance plays a role in determining delay. If the delay arises from a discrete event, then the delay reasonably attributable to that event is subtracted from the total time calculation. If the exceptional circumstance arises due to the complexity of the case, then delay is reasonable. Proving that there was an exceptional circumstance that was of a discrete or complex nature is the only basis on which the Crown can justify exceeding the presumptive ceiling (R v Jordan at para 81).

If the defence seeks an 11(b) application when the time of the trial is still below the presumptive ceiling, then the burden is on the defence to demonstrate that the delay is unreasonable. In order to do this, the defence must meet two qualifications. First, the defence must show that they took meaningful steps to demonstrate a sustained effort to expedite the proceedings. Second, the defence must demonstrate to the court that the case took markedly longer than it reasonably should have taken (R v Jordan at para 82). This is not a matter of precise timelines, but of the trial judge’s assessment based on contextual factors such as complexity, jurisdiction, and their own experience.

The Impact on the Crown, Defence, and the Courts

In addition to determining the presumptive ceiling, R v Jordan also clarifies the responsibility borne by the Crown, the defence, and the court. The Crown bears a significant responsibility in ensuring that trials are held within the presumptive ceiling limit. In R v Vassell, the court firmly emphasized that the Crown must take an active role in ensuring that trials are completed within a reasonable time. Specifically, this case states that, “the Crown cannot close its eyes to the … inability of the system to provide earlier dates” (para 7), which indicates that the Crown bears a duty to mitigate systemic delays (R v Jordan at para 75). However, the Crown is not the only party responsible for ensuring the trial meets the presumptive ceiling timeline.

R v Jordan makes it clear that the actions of the defence are part of the solution (para 113). Although legitimate actions taken by the defence do not constitute delay, delays waived by the defence or caused solely by the defence will not contribute to the calculation of the presumptive ceiling (para 66). The reasoning behind this measure is that, “[s]ection 11(b) was not intended to be a sword to frustrate the ends of justice” (R v Jordan at para 21), and should not be used as a defence mechanism by counsel.

In addition, R v Jordan discusses how the courts must also play a significant role in ensuring the timely conclusion of trials (para 114). Trials do not take place in a vacuum (para 43), and the delays from one trial have a ripple effect throughout the justice system and contribute to the administrative delays that plague many jurisdictions. Courts must remain aware of the practical results of delays and therefore be conservative in their allowance of delays in trials (para 114).

Incorporating the Framework into the Current System

The new presumptive ceiling framework in R v Jordan applies to cases that are currently in the system, with two exceptions. The first exception is where there is a transitional exceptional circumstance for a case that exceeds the presumptive ceiling (R v Jordan at para 96). As demonstrated in R v Williamson, the transitional exceptional circumstance applies when the Crown can demonstrate that the time taken by the case would have been reasonable based on the previous law of the R v Morin factors. Of particular importance, a finding of guilt has absolutely no bearing on determining the outcome of the unreasonable delay application (R v Williamson at para 32). The second exception is for cases that fall below the presumptive ceiling. In such cases, R v Jordan holds that it is not necessary for the defence to have taken initiative to expedite matters for the period of delay preceding the decision in R v Jordan, because it was not required by R v Morin; however, defence initiative may be a persuasive argument in showing the delay was unreasonable (R v Jordan at para 99).

In addition, assessments of both exceptions are to be conducted in a contextual manner based on factors relevant to the particular case such as complexity of the case, behaviour of the Crown, and institutional delay issues in the trial jurisdiction.

Closing thoughts

Although these three cases focus on different applications of the law of unreasonable delay in criminal cases, they each focus particularly on increasing the Crown’s responsibilities in ensuring that the trial moves forward in a timely manner. R v Vassell requires the Crown to take a more active role in ensuring that cases are brought to trial in a reasonable time, and R v Jordan and R v Williamson mirror this theme. Given the significance of these decisions, it is likely we will see further developments in the case law relating to unreasonable delay in the future.