31 October 2011

Wait, that's not spam, you've been summoned for jury duty!

Bill 15, the Attorney General and Public Safety and Solicitor General Statutes Amendment Act, 2011, was tabled in the Legislature for first reading today. Among other things, the briefly-titled bill would amend s. 11(2) of the Jury Act to allow the sheriff to summon jurors for criminal trials by email.

Given the proliferation of phishing scams, it seems more likely than not that a potential juror would assume the sheriff's email was spam or a scam of some sort. Make a mental note: before you hit the delete key, double-check to make sure that the email isn't legitimate. You may be fined if you don't show up!

Read the Attorney General's press release on the new bill.

26 October 2011

Federal Government Cracking Down on Sham Marriages

The Globe & Mail today reports that Citizenship and Immigration Canada is working on a plan to reduce the number of marriages entered into for immigration purposes; the Globe article specifically mentions India and China as target countries where fraudulent marriage schemes are common. According to the Globe, regulations to be published later this year will allow Citizenship and Immigration to issue "a new 'conditional' immigration status," which I assume would be a conditional sponsorship approval, and limit sponsoring spouses to one new spouse every five years.

Marriage fraud has been on Citizenship and Immigration's radar for a number of years. Here's an extract from a speech delivered by immigration minister Jason Kenney at a golf club in India on 9 September 2010:

"We aim to reunite our citizens and permanent residents with family members and we recognize that most individuals who apply for family reunification are in genuine relationships.

"But we also aim to protect the integrity of our immigration system and uphold our laws by identifying and addressing fraudulent activity. This includes ensuring that fraudulent marriages are discovered and not used to circumvent our laws.

"Accordingly, if we find evidence during the sponsorship process that individuals are committing marriage fraud, we can and will refuse the application for permanent residence.

"Our officials at missions here and around the world are trained to assess relationships based on customs, traditions and practices of the specific cultures in which they work.

"I can assure you that the Government of Canada is working to limit abuse and fraud, and we will not be limiting immigration to Canada or the protection Canada provides to refugees."

Concerns like these led the ministry to undertake a series of public consultations later that year, the results of which have been published on Citizenship and Immigration's website and include recommendations for a conditional immigration status and limiting the frequency with which new spouses can be sponsored. Here is the summary conclusion drawn from the consultations, with emphasis added:

"In sum, those who participated in the consultation acknowledged concern about marriages of convenience. Most considered the issue to be a threat to the integrity of Canada’s immigration system, and the majority expressed a need for greater public education and awareness. A strong majority felt that the sponsor should bear considerable personal responsibility for ensuring that they were entering into a genuine relationship.

"Of the suggested measures proposed to address marriages of convenience, the leading option was for punishment of individuals found to be committing fraud (i.e. deportation, fines, legal action). Respondents also strongly supported increased investigative or screening measures, while just over half indicated that they were not prepared to tradeoff [sic] longer processing times for more investigations into potential cases of fraud. There was broad support for both the introduction of a sponsorship bar and for a conditional measure. For a conditional measure, the appropriate length suggested by most was for two years or less, followed by moderate support for a period of three to five years."

I have no doubt that marriage fraud is a problem for the federal government inasmuch as it undermines the coherence and public policy objectives of the immigration system. It's also a serious problem when the sponsoring spouse is unaware that the marriage was undertaken for ulterior purposes — the discovery of the other spouse's motives can cause no small amount of financial and emotional harm; see the 2006 case of Raju v. Kumar as an example of the harm which can be wrought.

Update: 1 November 2011

CBC has published an article on the enforcement side of this issue, and reports that through "Project Honeymoon" the Canada Border Services Agency has opened 39 investigations into suspected cases of marriage fraud since 2008, resulting in seven charges and three (count 'em, three) convictions.

Could it be that the rate of marriage fraud simply isn't as high as the immigration minister suggests? Or is it simply a problem of needing sufficient staff to address an problem which is inherently difficult to investigate? According to the CBC:

"... the internal border agency documents — disclosed under the Access to Information Act — acknowledge the cases require considerable resources, and many never make it to court."

19 October 2011

Court of Appeal Releases Decision on Standard of Reasons for Judgment

In a new decision, Shannon v. Shannon, the Court of Appeal discusses the adequacy of trial judges' reasons for judgment as a ground of appeal. "Reasons for judgment" are a judge's written decision about the facts of a case, the law which applies to the issues in dispute, and the judge's disposition of the issues in dispute by applying the law to the facts.

A judge's decision at trial can be appealed, however the appeal must establish an error of law or a gross misapprehension of the evidence to succeed; you don't get to appeal a decision just because you don't like it. In Shannon, the appellant claimed that the trial judge erred in law by "failing to provide adequate or sufficient reasons" for his valuation of an asset, and that in the absence of more fulsome reasons she could not assess whether the judge had made a mistake in his judgment.

The Court of Appeal dismissed the appeal after a thorough review of the applicable law. These are the highlights of the court's analysis, quoted directly from the decision:
> A trial judge has a duty to give adequate or sufficient reasons for his or her decision. Failure to give adequate or sufficient reasons for judgment is an error of law. (Willick v. Willick, [1994] 3 SCR 670; F.H. v. McDougall, 2008 SCC 53)

> The function of reasons for judgment is to explain what the trial judge has decided and why he or she reached that decision. (R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.); R. v. R.E.M., 2008 SCC 51)

> Reasons for judgment should demonstrate "a logical connection between the 'what' – the verdict – and the 'why' – the basis for the verdict," when they are read as a whole in the context of the evidence and the live issues at trial, and the submissions of counsel. (R.E.M.)

> In the civil context, the duty to give reasons is to:
  1. justify and explain the result;
  2. tell the losing party why he or she lost;
  3. provide for informed consideration of the grounds of appeal; and,
  4. satisfy the public that justice has been done.
(R. v. Walker, 2008 SCC 34)

> An appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor is a failure to give adequate reasons a free standing basis for appeal. ... Nor are reasons inadequate because in hindsight, it may be possible to say that the reasons were not as clear and comprehensive as they might have been. (F.H.)

> There is no free-standing right of appeal on the adequacy or sufficiency of a judge's reasons. Moreover, even where the logical connection between the evidence and the decision cannot be discerned ... appellate intervention will not be justified if the record itself permits meaningful appellate review. (R. v. Gagnon, 2006 SCC 17)
In Shannon, evidence about the value of the asset was available from the record of the Supreme Court proceedings in the form of an expert's appraisal and a rebuttal report prepared by another expert. Said the Court of Appeal:
"It is evident the trial judge was faced with a wide range of potential share values, calculated under two different valuation approaches... He understandably recognized his decision as to the value of the shares must be arbitrary to some degree, given the uncertainty associated with the Company's future. In choosing a fair market value of $500,000, it may be inferred that he began his analysis with [X]'s valuation of the shares as it was the only opinion before the court on that issue. However, he also appears to have preferred [Y]'s more optimistic portrayal of the Company's potential. This is evident in his finding that the Company would not be sold and had value as an ongoing concern. On the other hand, it is also apparent that he accepted that the unique features of this business and the uncertainties in the ... market limited its marketability and therefore its value as a going concern. In my view, the valuation of $500,000 takes into account these competing considerations. Thus while the 'why' for the trial judge's valuation of the shares could have been expressed more clearly, in my view it is adequately explained when examined in the context of the evidentiary record.

"The reasons for judgment in this case are to be distinguished from those considered by the Court in Crepnjak v. Crepnjak, 2011 BCCA 177... In Crepnjak, the necessary findings to support the chambers judge's conclusions could not be discerned from his reasons or the evidentiary record and, accordingly, the appeal was allowed and a new hearing ordered."
To boil this all down, the judge at trial has a duty to provide reasons for judgment which allow the parties and the general public to understand her decision and why she reached that particular decision. An appeal based on the insufficiency of reasons for judgment will only succeed where the reasons for a decision cannot be discerned from both the reasons for judgment and the record of the trial proceedings.

14 October 2011

Marriage and the Material Girl/Boy

The LA Times has reported on a study published in the Journal of Couple & Relationship Therapy, "Materialism and Marriage: Couple Profiles of Congruent and Incongruent Spouses," which found that "couples where both spouses are materialistic were worse off on nearly every measure." Says the Times:

"Statistical analysis of the research showed that couples who say money is not important to them score 10% to 15% better on marriage stability and other measures of relationship quality than couples who are openly materialistic.

"The study also found that couples in which only one partner is materialistic fare better than couples in which both partners are materialistic."

Well, they do say that money can't buy happiness, and that's certainly true during a relationship and after its collapse. I see some unusual things as a divorce lawyer, but it's always a surprise when I run into people who are more troubled by the potential damage to their material wealth than the prospect of losing contact with their children; what's not surprising at all is that people with this sort of attitude would have especially fractious marriages.

13 October 2011

CBABC Launches Legal Aid Campaign

The Canadian Bar Association, British Columbia branch has this morning launched a campaign (PDF) to pressure the provincial government to restore funding to legal aid. The newly-minted We Need Legal Aid website reviews some of the problems resulting from the cuts to legal aid and aims to build public support for the restoration of funding though social media.

The CBABC's effort follows up on the March 2011 release of the final report (PDF) of the Public Commission on Legal Aid, a joint project of the CBABC, the Law Society of British Columbia, the Law Foundation and other groups.

Legal aid in British Columbia is administered by the Legal Services Society, a non-profit organization funded primarily by the provincial government. The government began to implement a far-reaching series of budget cuts beginning in 2001 which have had a profound effect on the society's family law legal services (PDF), to the point where legal representation is only available where there is a safety risk, a denial of contact with a child or a risk that a child will be taken out of the province.

Please, read the commission's final report and take the time to visit the We Need Legal Aid website and get involved in the campaign.

Click on the "Legal Aid" label below for more information about the travails and tribulations of LSS over the last few years.

10 October 2011

Supreme Court Releases Decision on Vexatious Litigants

The Supreme Court has helpfully summarized the law on vexatious litigants in a new case, Vancouver City Savings Credit Union v. Randhawa.

In a nutshell, this issue has to do with the court's authority to control its own process and the parties before it. It can happen, but doesn't with great frequency, that a person will use the court system to initiate frivolous actions and applications seeking impossible orders without a real foundation in law. Sometimes these are the people whose make claims that the RCMP is attempting to control their thoughts through their toaster, and in the course of their claim against the RCMP also sue the Attorney General, Premier, Prime Minister and Queen for good measure. At other times, these are the people who have a legitimate grievance but lack the judgment to distinguish between the trivial and the substantive. Both sorts of litigant tend to appeal the judgments they don't like and appeal lost appeals, and their litigation gets stuck in an endless cycle of losing applications and losing appeals; these litigants lack the ability to understand that when the court says "enough," the court really means enough.

Section 18 of the Supreme Court Act provides an instructive gloss on the court's inherent jurisdiction to control its own processes and says the following, under the heading Vexatious Proceedings:
"If, on an application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court."
In other words, the court can require that a litigant not start an action, or bring an application in an action, without getting permission first.

For people stuck in endless meretricious litigation this can be a boon! Normally, you see, a litigant has the right to sue whomever he or she wishes, and, once the action is commenced, the right to apply for whatever orders strike his or her fancy whenever the moon is in the right phase. Normally, however, people exercise good judgment and are somewhat restrained by cost to bring only those actions and applications which are in fact meritorious.

In the Vancouver City Savings case, the credit union applied for a s. 18 order that the respondents:
"... be prohibited from initiating any legal proceedings, including but not limited to interlocutory applications, against VanCity, or any of its officers, agents or employees without leave of the court."
The judge began his analysis quoting from the 2010 Supreme Court decision in Holland v. Marshall (I've put the key elements in bold):
"[7] To succeed on an application pursuant to s. 18, the applicant must demonstrate:
1. that the proceedings are vexatious in the sense of having been taken in the absence of objectively reasonable ground; and

2. that proceedings have been brought habitually or persistently, such that the litigant has continued obstinately in the course of conduct, despite protests or criticism. (British Columbia) Public Guardian and Trustee v. Brown, 2002 BCSC 1152.
"[8] In Lang Michener v. Fabian ... the Ontario High Court described the characteristics of a typical vexatious proceeding:
(a) bringing one or more actions to decide an issue which has already been determined by a court of competent jurisdiction;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

(c) actions brought for an improper purpose, including the harassment or oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings;

(f) persistently taking unsuccessful appeals from judicial decisions; and

(g) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action."
After a relatively succinct review of the lengthy history of proceedings, the judge said this:
"It is as apparent to me ... that the respondents have persisted in bringing 'a raft of doomed applications'. They have done so in the face of clear judicial pronouncements, directions or advice explaining the lack of jurisdiction of this court to set aside final orders or to revisit issues that have already been decided. ...

"It is apparent to me that in the face of the judicial criticism, advice and direction the respondents will simply continue to bring applications in this proceeding which have no objective or reasonable basis. They are acting habitually and persistently in the face of judicial direction and criticism."
As you might expect from concluding comments like these, the credit union obtained the order sought.

03 October 2011

Family Law Act to Be Introduced This Fall

The text of the Lieutenant-Governor's Speech from the Throne has just been published, and, in the context of a discussion about improving access to justice, says this:
"The government will introduce the new Family Law Act during this session, to promote early resolution of family law problems."
There you have it; change is coming! Here's some background reading:

If the new bill looks anything like the white paper, the law of domestic relations in this province is going to undergo a stem to stern overhaul which will place British Columbia at the forefront of law reform in Canada.

Visit the Legislative Assembly's website at www.leg.bc.ca/39th4th/index.htm to track the introduction and progress of the bill through the legislature.

Update: 14 November 2011

Bill 16, the Family Law Act, was introduced in the provincial legislature today. I've summarized the new legislation in a new post, "Family Law Act Introduced!"

02 October 2011

Changes to Vancouver Chambers Practice in Effect Monday

Chambers practice in the Supreme Court's Vancouver registry has been extraordinarily difficult for some time now. "Chambers" is where applications for orders before trial and applications for final orders on affidavit evidence are heard, and on any given day in Vancouver there might be forty or more applications set to be heard by a master and a twenty or more applications, usually lengthy ones, to be heard by a judge. However, each day only one judge and one master are assigned specifically to chambers and there's only four and a half hours in the court day!

Long wait times are nothing new but it has been increasingly difficult to get dates for lengthy chambers applications in reasonable time, and the overflow list of applications set for a specific date that could not be put before a judge or master is itself overflowing. (The court's list of available dates is publicly available on the court's website.) Opinion among the bar is mixed as to the cause, but three theories have risen to the top of the pond:
  1. there aren't enough judges or masters;
  2. court services is underfunded and there aren't enough registry staff; or,
  3. the new Supreme Court Rules are somehow to blame.
Personally, I'm more inclined to number two; I know there are times in New Westminster and Vancouver where the court registry is drained of staff to serve as clerks in court and there still aren't enough staff!

Regardless of the ultimate cause, Chief Justice Bauman has announced (PDF) changes coming into effect in Vancouver on Monday 3 October 2011 intended to address these problems.
  1. Registry staff will automatically bounce all applications where an application record is not received before the deadline prescribed in the court rules — 4:00pm on the business day that is one full business day before the date set for the hearing — rather than have them bounced by the court clerk.
  2. Masters' chambers will be split into two lists, general civil and family law, and an extra master will be assigned to chambers when the list is full.
  3. All applications set for judges' chambers under two hours will be sent off to Courtroom 31 to be referred to other courtrooms as judges become available, rather than having everyone mill around in the court registry.
  4. Unscheduled applications, usually applications for short leave and for urgent orders, will go up to judges' or masters' chambers as before, but will be heard at the discretion of the presiding judge or master rather than automatically heard after short matters are heard.
I'm not sure what the practical results of 1, 3 and 4 will be, but I am excited about 2. This is the way things used to be until family and civil chambers were merged a number of years ago, and the assignment of an extra master will really help to clear the chambers lists.