December 22, 2009

Justice for All?

[Edited: The video is actually produced by the Access to Justice Coalition, rather than Access Justice.]

This brief video by the Access to Justice Coalition includes eye-opening interviews with lawyers and low income clients about the difficulty in accessing British Columbia's legal system and is worth a look:

December 18, 2009

What To Do When You Disagree with Your Lawyer's Bill

The best way to prevent disagreements between lawyers and clients about billing is to have a clear retainer agreement from the start, detailing exactly how you, the client, will be charged. It's also a good idea to have your lawyer contact you when the outstanding bill reaches a certain agreed upon amount or the work reaches an agreed upon stage, so that you can reassess the situation throughout the legal process, and avoid any sticker shock at the end.

But let's say its too late for all of that and you have received a bill from your lawyer that you think is inaccurate or unfair. The first step is to contact the lawyer and discuss it. Ask specific questions about how the bill was calculated and explain why you disagree with (parts of) it. Lawyers are used to clients griping about bills once the work is done, so its likely not enough to complain that it is generally "too high". What specifically do you disagree with? Which charges do you think are inaccurate? Most lawyers are more than willing to negotiate some items on a bill if it means that the client is happy and the lawyer is still being paid fairly for his or her work.

If you are not getting a satisfactory explanation or agreement about the bill from your lawyer, there are other remedies available to you as a client. The most inexpensive one is to use the Law Society of B.C.'s Fee Mediation Program, which brings the lawyer and client together with an experienced mediator and doesn't cost the parties anything. Mediation is worth a try since there is no downside to the parties, and it may be a cheap and fast way of resolving the problem.

If the mediation doesn't work, your last resort is to go to court to have the bill reviewed by the Registrar of the B.C. Supreme Court. Be aware that there are deadlines for having a bill reviewed; you usually need to file the court paperwork within three months of the bill being paid and within a year of receiving it if it is unpaid. These deadlines apply even if you use the Fee Mediation Program, so it is important to make sure that by mediating you are not letting time run out on the option of having a bill review before the Registrar later on.

You should also be aware that if the Registrar finds that the bill was fair, not only will you have to pay the full amount of the bill but you may also be ordered to pay the lawyer's fees and disbursements for preparing for the Registrar's hearing. For more information on how to have a lawyer's bill reviewed by the Registrar, click here.

November 3, 2009

Five B.C. Legal Aid Offices Closing

The Legal Services Society (LSS), which administers legal aid in British Columbia, has announced that it will be closing its offices in Surrey, Kelowna, Victoria, Prince George and Kamloops - essentially all of its regional offices outside of Vancouver.

There are also reports that LSS will be closing LAWline, a free service providing legal advice over the telephone, the value of which I wrote about earlier this year. Both of these developments will severely limit access to justice in rural areas of the province, which are already underserved by lawyers and courts.

The cuts are in addition to those announced in January when the LSS terminated a variety of services, including legal aid for those charged with breaches of bail or probation. While the cuts are the result of decreased funding from non-governmental sources, the Canadian Press notes that the British Columbia government has reduced its funding of legal aid from $96 million in 2001-2002 to $74 million today.

This is despite the fact that in the intervening years, British Columbia's population has grown substantially, while an economic recession and the increasing cost of legal services has made getting legal representation and advice unaffordable for most low to middle income residents.

October 29, 2009

Wrongfully Convicted of a Criminal Code or Drug Offence?

Many people are unaware that the federal Minister of Justice in Canada has the power, under sections 696.1 to 696.6 of the Criminal Code, to review convictions under federal legislation or regulations (including the Criminal Code and the Controlled Drugs and Substances Act) to determine whether there is new evidence indicating that a person might have been wrongfully convicted.

A ministerial review is not like going to the court of appeal; the Minister will not second-guess the court's decision or substitute his or her opinion of the evidence or the arguments already considered by the court. Also, a person must first exhaust any available appeals or judicial reviews of their conviction before applying for a ministerial review.

The Minister also does not decide if a convicted person is guilty or innocent. That role is assigned to the courts. However, the Minister will intervene in exceptional cases where a person presents new and significant information that casts doubt on the correctness of the person's conviction. In these cases, the Minister will refer the case back to the court to reconsider the conviction in light of the new evidence or information.

The applications for ministerial review are sorted, reviewed and investigated by an arms-length body which makes recommendations to the Minister about the merits of the applications.

The Department of Justice publishes a booklet explaining the process for applying for a ministerial review as well as what is considered "new and significant information".

Applying for a ministerial review does not require a lawyer, and can be done by filling out an application form, available online here. If you need assistance in filling out the form or advice about how to gather the evidence to support your application, you might want to consider making an appointment with a volunteer lawyer at a legal assistance clinic. A list of free legal services is provided on the right-hand side of this website.

October 22, 2009

The Pro Bono Map of BC: Like a Google Map for Free Legal Services



Yesterday I stumbled upon a great tool for low-income litigants trying to figure out where to get free legal advice and representation. The Pro Bono Map of BC allows you to search for the kind of help you need (legal representation, advice, referrals) in the area of law you need it (employment, small claims, immigration, etc.) where you happen to live (locations all over the province). The search results provide you with the name, contact information and map location of the clinics that can help you with your problem in your area.

The integration of these search criteria lets a user cut through confusion about which pro bono organization can help with a particular problem and helps people access legal services as close as possible to where they live (an important factor for low-income clients who may not have ready access to transportation).

October 15, 2009

Merger of Pro Bono BC + Access Justice = Good News for Low-Income British Columbians

There are three organizations providing the bulk of free legal services for low-income British Columbians who do not qualify for legal aid; Pro Bono BC, Western Canada Society to Access Justice and the Salvation Army Pro Bono Program.

Fuelled by volunteer lawyers, these organizations operate a variety of programs and clinics to meet the ever-increasing demand for access to legal services in British Columbia. However, as someone who has volunteered for all three, I can tell you that while each organization is effective and well-run, there is a significant amount of overlap between the mandates of the three bodies. This leads to duplication of services in some areas and a complete vacuum in other areas.

Also, because of the limited sources of funding for the organizations, there has been inevitable competition for financing from government, foundations, law firms and individuals.

Finally, both the legal community and low-income clients are often confused about the differences between the three bodies, and do not know how to properly refer or get referred to the organization that can best serve the needs of the client.

For all of these reasons, it is very good news that Pro Bono BC and Access Justice have announced a merger, to become effective in December of this year. This move will allow the new, stronger organization to more efficiently use funding and volunteers to expend the scope and level of service it provides.

The executive directors of Pro Bono BC and Access Justice, Jamie Maclaren and Allan Parker, should be congratulated for their vision and hard work in making this merger a reality.

September 17, 2009

Guidebooks for Preparing Your B.C. Supreme Court Trial

The Courts of British Columbia website has become increasingly user-friendly for self-represented litigants and members of the public interested in knowing about court processes and cases. One especially helpful section of the website is called Guidebooks where users can download do-it-yourself guides on everything from preparing affidavits to chambers records. The publications seem to have been prepared by various legal assistance groups and vary in length and detail. Nonetheless, they are a great starting point those needing to prepare for court.

August 21, 2009

Do the Homeless Face Discrimination in Court Applications for Legal Funding?

I posted in April about the cuts to the Legal Services Society, including predictions from lawyers that slashing legal aid funding would simply lead to an increase in Rowbotham applications, where a person denied legal aid can apply for a court order requiring their legal costs to be paid by the government. As I wrote then, "The test in a Rowbotham application is whether the accused is in jeopardy of going to jail, whether they have unsuccessfully sought legal aid and whether they have funds for their own defence."

Speculation in April was that an increase in Rowbotham applications would lead to increased costs and clog up courtrooms. Now, some Vancouver lawyers are accusing the Attorney General's office of opposing Rowbotham applications depending not on the need of the accused, but rather on the accused's chance of making a coherent application. Making a Rowbotham application is certainly more complicated than filing out a form or two. It requires gathering and presenting written and oral evidence that the person meets the test for court-ordered funding.

Critics allege that the AG is opposing Rowbotham applications brought by indigent, unrepresented people. However, where someone is represented by counsel, often acting pro bono, the AG will more often consent to the Rowbotham application or the Legal Services Society will change its mind and provide legal aid funding to the accused.

Vancouver lawyer Phil Rankin points to a recent case of his to illustrate the problem:

"In this case, Olivia Edgars, 27, who was charged with four counts of breach of probation, was initially denied legal aid. Rankin appealed that decision and the Legal Services Society confirmed no funding would be provided.
...
Like so many, Edgars is addicted to heroin, collects $230 a month from welfare, occasionally turns tricks to feed her habit and suffers from mental health issues.

She has at best a Grade 6 education.

Edgars is like most of the chronic offenders who get caught in the revolving
door of these minor charges tied to their addictions and homelessness. She has
no fixed address so there is no place to send Crown disclosures or to contact
her. And, let's be honest, she's incapable of understanding the nature of a
criminal trial and the issues at play.

Surprisingly, however, on the eve of her Rowbotham hearing (with Rankin in her corner), the attorney-general authorized funding.

'This came as surprise to me,' the lawyer said, 'as the LSS had twice denied funding and because the LSS has a policy of not funding category one offences unless a person suffers from a serious mental or physical disability.'

The society says it has approved 70 cases under its disability exemption so far.

Rankin figured Edgars received funding because the government knew it was about to lose -- as it would in similar, competently prepared cases -- and he thinks that stinks. Few of these individuals can produce a competently prepared case or properly defend themselves.

'Making the unrepresented accused jump through these hoops is too onerous and the AG is abusing the process and litigants by paying off those who can do a proper Rowbotham application,' he said.

'Ironically, the time and preparation and defence [of Rowbotham applications] is costing the taxpayer tens of thousands of dollars to prevent [the needy] getting legal aid which would be much less expensive.'"

August 14, 2009

The Non-Lawyer Agent: Can My Friend Represent Me In Court?

The short answer is maybe. While someone is entitled to represent themselves in court or be represented by a lawyer, there is no automatic right to have a friend or family member act on your behalf. (See R. v. Dick, a 2002 decision of the B.C. Court of Appeal.)

This is because the court is concerned that people are represented by someone competent and ethical.

The court's preoccupation with whether a person is well-represented may seem absurd to someone who can't afford a lawyer and can't represent themselves; surely almost anyone would be an improvement in that case.

The problem, however, is that if a lawyer does not provide competent legal advice, the court will often intervene to prevent a miscarriage of justice. Also, the Law Society regulates lawyers to make sure they are competent and ethical, and takes disciplinary measures when they do not meet this standard.

However, no one will make sure your cousin is doing a decent (and honest) job on your behalf. If a friend or family member is incompetent, the court will not intervene, since the friend/family member is viewed as your agent, and therefore you are treated as though you are representing yourself.

This means that someone who chooses to be represented by an agent gives up the legal right to effective assistance by a lawyer. (See R v. Romanowicz, an Ontario criminal case which likely also applies to civil matters.)

That said, the court may permit someone to act as an agent so long as there is no evidence that the person is dishonest or unethical. This is a discretionary decision by a judge and so should not be considered an automatic right. In deciding whether to permit someone to act as an agent the court will consider a number of factors, including whether the proposed agent:
  • Has been shown to be incompetent
  • Would damage the fairness of the hearing or trial
  • Is facing criminal charges involving dishonesty or the administration of justice
  • Has been convicted of crimes of dishonesty
  • Has otherwise demonstrated a lack of good character that would bring the administration of justice into disrepute

While it is good to be aware of the disadvantages of using an agent, the reality is that for people who can't afford a lawyer and are ineligible for pro bono legal representation, but who also face barriers to representing themselves in court (such as literacy or language skills), finding a trusted friend or family member to act as agent may be an imperfect but necessary alternative.

July 31, 2009

Advocate Article: "No Rights and No Review: How Housing Cooperatives Have Circumvented Procedural Fairness"

Susan Mossing, a colleague of mine, and I co-authored an article in this month's issue of The Advocate about some rules adopted by cooperative housing boards that enable them to expel cooperative members without triggering the extensive procedural fairness provisions mandated by the Cooperative Association Act . We also review how these rules circumvent statutory provisions designed to protect cooperative members' rights.

The paper examines the courts' reactions to these expulsions and proposes legal recourse which may be available to cooperative members confronted with this expulsion.

We hope that the article will help cooperative housing members better understand and enforce their rights and that legislative change addressing these problems will soon follow.

A link to the article can be found here.

July 28, 2009

Globe and Mail on the Legal Aid Strike: A Pox on Both Your Houses

In the wake of news that another 26 Ontario lawyers are boycotting legal aid work in protest of the dismal compensation for legal aid cases, an editorial in today's Globe and Mail condemns the Ontario government's failure to adequately compensate legal aid defence lawyers, "The Ontario government owes its lawyers recognition for the often gruelling work they do. More importantly, it owes all Ontarians what inequitable funding denies them: the right to a fair trial."

However, the editors have equally harsh words for the lawyers withholding their services in protest, "A boycott...is not the answer. It is unconscionable for these legal practitioners to leave their clients in the lurch. There are now hundreds of would-be clients without recourse to legal advice or representation."

The boycott has been gathering steam in the past months, as various Ontario lawyers' groups have joined the call for better compensation for legal aid cases. While its easy for the Globe and Mail to say "a pox on both your houses", the editors do not explain how exasperated lawyers should deal with this entrenched and long-standing problem, which because of the boycott has received extensive media attention for the first time in years. While the boycott may hurt those charged with criminal offenses in the short-term, the government's long-standing failure to act has put the entire legal aid system in jeopardy.

July 21, 2009

Indigent Status Only Grants Relief from Court Fees - Not Other Appeal Costs

I have written before about applying for indigent status with the courts in order to avoid paying court fees, which for a trial can amount to thousands of dollars. The phrase "indigent status" is a stigmatizing and somewhat misleading name for what is often a simple issue and it is worth noting that the applicant does not in fact need to be indigent or homeless to successfully make an application.

The court applies a two-part test in determining whether to grant indigent status; whether the financial position of the applicant is such that requiring her to pay the fees would deprive her of the necessaries of life or effectively deny her access to the courts and whether there is some merit in the appeal (this test was set out by the B.C. Court of Appeal in Duszynski v. Duszynski).

Now a new decision of the B.C. Court of Appeal, Pavlis v. HSBC Bank Canada, has confirmed that indigent status in the Court of Appeal only permits an appellant to avoid paying court fees. The appellant must still pay the cost of ordering transcripts and preparing an appeal book and appeal record. This is significant because the cost of ordering transcripts is can be enormous. Here is one quote from a transcript company:

$7.50 per page x average of 20 pages per hour of court time = $150 per hour of court time
$150 per hour x 6 hours per court day = $900 per court day

If the trial lasted for several days, the cost of transcripts could amount to thousands of dollars. One way of minimizing this cost may be to reach an agreement with the other party about which extracts of the transcript are really necessary for the appeal, and only order those parts.

July 17, 2009

Salvation Army Pro Bono Program: Volunteer Lawyers Needed

The following is a request for assistance I received from the Salvation Army Pro Bono Progam. I have worked with this organization in the past and would recommend it to lawyers looking for a chance to do some valuable pro bono work. The commitment is only 2 hours a month and there is no obligation to represent the clients beyond giving summary advice at clinics.

The Salvation Army Bro Bono Program program is facing a shortage of lawyers and a significant increase of clients (due to legal aid cuts). Currently, The SA pro bono program needs lawyers in all areas of law. The commitment: 2 hours once a month to provide needy individuals with summary advice only. Here are the details:


The Salvation Army – Belkin House
Pro Bono & Justice Services
555 Homer Street
Vancouver, British Columbia
V6B 1K8
Telephone: (604) 694-6647
Fax: (604) 681-3005
www.probono.ca


· Lawyers usually hold a 2-hour-legal-advice session (“legal clinic”) once a month, and see approximately 4 clients (30 minutes each). Lawyers inform us of the date and time they will be available to hold clinics

· Lawyers provide summary advice only; lawyers do not represent clients (unless they want to provide a greater amount of assistance)

· Lawyers inform us what sort of cases they are willing to advise clients. Our staff will only refer cases related to requested matters

· Lawyers are linked to clients through our legal clinic staff. Clients call our program for appointments and for follow-up appointments (when necessary)

· Before seeing a lawyer, clients are screened so that clients present problems within the lawyers’ field of expertise

· Our staff provide our volunteer lawyers with a list of clients, opposing parties and counsels to assist lawyers in preventing conflicts

· Volunteer lawyers are covered by professional liability insurance coverage in providing legal services to our pro bono clients. This includes full insurance coverage with waived deductibles and surcharges to members in good standing with the Law Society of British Columbia. (We encourage lawyers to contact the Lawyer’s Insurance Fund for details). It is worth mentioning though that we have not had any claims whatsoever since our pro bono program started in 1998

· Clinics may be held in different locations. For example, clinics may be held at:

o Belkin House (555 Homer St)
o Robson Square (800 Hornby St)
o Provincial Criminal Court (222 Main St)
o Salvation Army (3213 Fraser St)


Please direct inquiries to:

Regiane Garcia, LL.B., LL.M
Pro Bono Development Coordinator
The Salvation Army Pro Bono and Justice Services
555 Homer Street Suit 104
Vancouver BC V6B 1K8
Tel.: (604) 694 6622 or (604) 681 3405
E-mail: regi_garcia@telus.net

July 13, 2009

Top Ten Tips for Appearing in Civil Chambers

Much of the work of a court happens everyday in civil chambers, where applications are heard on a variety of matters including bankruptcies, foreclosures, family law issues and injunctions to name just a few. Chambers applications used to happen in the judge's office or chambers, but nowadays chambers applications are heard in an ordinary courtroom, full of lawyers waiting their turn to speak to the judge or master.

For people representing themselves in court, very often their first time in a courtroom will be in front of a judge or master in chambers. The experience can be a bit intimidating, especially because the lawyers all seem to know a mysterious protocol and language, and lay people can feel a bit lost. Remember that as a self-represented litigant, you have as much right to be in chambers and be heard as anyone else.

That said, there are some ways to help the judge or master hear you more effectively in British Columbia civil chambers:

1. Arrive early. When you locate your courtroom, go to the front of the courtroom and look at the list of all the different applications which will be heard by the judge or master that day. Find your matter on the list and let the court clerk know that you are present. Give your name and confirm how long you expect your application to take.

2. Depending on the kind of application you are making, your matter may be decided by a master or a judge. The name of the master or the judge should be on the top of the list, or you can ask the clerk. Judges should be addressed as "My Lord" or "My Lady" and masters are called "Your Honour".

3. Take your seat and wait for the court clerk to call your matter. When it is called, go to the front of the room. You and the other lawyer or party (if there is one) will introduce yourselves. The person making the application introduces him or herself first. Each party uses the following format, "My name is John Smith," and then spells their last name. Then say; "I am the applicant (or respondent) in this application".

4. It is very helpful for the judge or master to have a written outline of what it is you are trying to do in your application. Do not make it more than five double-spaced pages. Do include a bit of background, what order you would like the court to make, the reasons you think the order should be made, and any cases or legislation that support making the order. Bring at least four copies; you need to give one to the judge or master, one to the court clerk, one to the other lawyer or party, and one for you to use.

5. If you are the one making the application, prepare a draft order in advance using the court form provided by the registry or available online. Bring your draft order to the registry to have them approve the format of the order. This is called having the order "vetted" by the registry. You might want to do this a day in advance so that if there are major changes to make, you can go home and retype the draft order and get it approved on the morning before the chambers hearing. During your application you can hand up the vetted order to the judge or master. This process saves you from having to type up the order later and have it entered by the registry - a process that can take some time.

6. The court will usually have little or no background information about your application. Start with a 30 second summary of the kind of application you are making and what kind of order you would like the court to make. For example, "This is an application in a family law case. I am seeking an interim child support order for my son and daughter." You can then explain any other relevant details.

7. Never interrupt the other party. This makes you look defensive and the judge or master will just tell you to sit down and wait your turn, so it really doesn't do any good. Each side gets their turn to speak. A useful thing to do while you are waiting for your turn is to take good notes of what the other party is saying so that you can be sure to address all the necessary points when it is your turn.

8. Make sure that you have good authority for your position on the application, besides your opinion that you are right. You don't need many cases (in fact, the judge or master will rarely have time to look at more than a couple), but it is worth finding at least two cases that support your position. There are a number of free online databases where you can search for cases listed on the right-hand side of this blog. Don't forget to bring at least four copies of every case you bring to court (see number 4 above). If you are relying on legislation, make sure you have copies to give to the judge or master as well, since they likely won't have the legislation in the courtroom.

9. Never argue with the judge or master about the terms of the order that they make. This will almost never work, and just aggravates the court. If you disagree with the result of the chambers application, investigate your right of appeal.

10. Lastly, but very importantly, read Rules 51A and 52 of the Supreme Court Rules, which deal with chambers applications. This will help you understand chambers procedures and the kinds of applications which can be heard.

Good luck, and remember that help with civil chambers applications is available through the Pro Bono Civil Duty Counsel project, which provides advice and representation by Vancouver lawyers.

June 22, 2009

Ontario Lawyers Boycott Legal Aid Cases

Experienced criminal lawyers in Ontario are boycotting legal aid cases to protest the provincial government's refusal to raise the tariff, which currently pays $77 to $98 an hour depending on the lawyer's experience level, with caps on the number of hours paid. The boycott involves lawyers of more than five years' experience and applies to all murder, guns and gang cases.

An association of top litigators called The Advocates' Society has added its support to the boycott, pointing out that the citizens of Ontario can no longer afford the cost of a legal aid system that pays so poorly only the least-experienced lawyers are willing to accept cases.

"The adage, which applies to this market as well, is you get what you pay for," said Marie Henein, vice-president of The Advocates' Society. The rate of pay for legal aid lawyers has only increased by 15% since the 1980s, which is well below the increase in the cost of living in that time.

Though British Columbia has a problematic legal aid system of its own, which I have written about most recently here and here, the striking lawyers would like to see one aspect of the B.C. system adopted in Ontario.

In B.C., experienced lawyers are eligible for a higher tariff of $125 an hour when a case is deemed sufficiently lengthy or complex. This increased tariff was recommended in a report to the Ontario provincial government last November. The authors of the report – Patrick LeSage, former chief justice of Ontario's Superior Court of Justice, and former law professor Michael Code, who was recently appointed a judge – said raising the tariff to levels that would bring seasoned lawyers back to legal aid work is a solution to runaway trials.

June 4, 2009

Free law advice at summer clinics

A number of Law Students' Legal Advice Clinics (LSLAP) are offering free legal advice to low income residents through summer clinics. UBC law students volunteer for the program and can help people dealing with some criminal, residential tenancy and small claims. The students work under a supervising lawyer who offers assistance when needed. There are clinics open throughout the Lower Mainland all summer. The clinics are open every Tuesday between 3 and 7 p.m. For more information visit www.lslap.bc.ca.

I supervise one of the LSLAP clinics and I can tell you that the students offer an excellent service; they listen carefully, they think critically about legal problems and they leave no stone unturned in looking for a solution to their clients' legal problems. If you are on a fixed income and need legal advice, I would highly recommend giving LSLAP a call.

May 8, 2009

Clicklaw

The Courthouse Libraries of B.C., with funding from the Law Foundation of B.C., has started an innovative online service providing legal information, assistance and education through a website called Clicklaw. Clicklaw is easy to use and contains a wealth of information about all kinds of legal problems. Here are some of the things Clicklaw can help with:

This fall, Clicklaw also plans to create a feature called HelpMap, which will use Google Maps to help people find pro bono clinics, legal aid offices and courthouses where they live.

May 5, 2009

What's Your Legal Conundrum?

Do you ever watch legal dramas on television or at the movies, and wonder whether the outcome in U.S. courts would be the same here in Canada? Have you read about a court decision in the newspaper where the result just puzzled you? Or maybe you've just thought about a weird situation and wondered what the legal ramifications might be. Of course, I can't give you legal advice on your particular situation - you would need to see a real, live lawyer for that, but if you type in your hypothetical legal question in the comments, I'll try to answer it.

April 20, 2009

When does a Step-Parent Have to Pay Child Support?

It's a common misconception that only biological parents have a child support obligation when a relationship breaks down. Rather, the law states that where a step-parent or common law partner of someone with a child has been standing in the role of a parent, known as in loco parentis, the court will order that person to pay child support, even though they are not biologically related to the child.

However, child support will only be ordered where the person is found to be a "parent", which is a defined term under the Family Relations Act:

A "parent" includes
(a) a guardian or guardian of the person of a child, or
(b) a stepparent of a child if
(i) the stepparent contributed to the support and maintenance of the child for at least one year, and
(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child;

Section 1(2) of the Act states:

(2) For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child
(a) are or were married, or
(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.

So to summarize, the court will only order a step-parent to pay child support where three conditions are met.

The step-parent:
  • was either in a marriage-like (common law) relationship with the child's parent for at least two years OR married to the child's parent for any length of time; AND
  • contributed to the child's support or maintenance for at least one year; AND
  • last contributed to the child's maintenance or support within one year of the date that the child support claim was filed with the court.

This last point means that if the biological parent starts a court action for child support more than a year after the step-parent last contributed to the child's maintenance, the court will almost certainly dismiss the case because it is after the limitation date in the Act.

April 16, 2009

Free Family, Wills and Consumer Protection Law Classes Next Week

The People’s Law School provides public legal education to all residents in British Columbia and whenever possible, they also provide public legal education to people in British Columbia’s immigrant communities in their own languages. The People’s Law School is an independent, non-profit, non-political society whose purpose is to provide British Columbians – especially those with particular legal needs – with reliable and impartial information about the law. They accomplish this by means of speakers, training workshops, publications, theatre, and special events.

For more information, please visit www.publiclegaled.bc.ca.

The following classes have been arranged through the Speaker Request Program at the People's Law School. Attendance must be confirmed for a minimum of fifteen people before the class can go ahead.

Family Law
Tuesday, April 21, 2009 - 7:00pm to 8:30pm
Surrey Public Library, Guildford Branch
15105 – 105th Avenue, Surrey
RSVP: Johanne Walesch, 604.598.7366

Speaker: G Creighton Scott, Peterson Stark Scott

Wednesday, April 22, 2009 - 7:00pm to 8:30pm
Surrey Public Library, Whalley Branch
10347 – 135th Street, Surrey
RSVP: Ilona Sachura, 604.598.7428

Speaker: David Halkett, McQuarrie Hunter LLP

Thursday, April 23, 2009 -2:00pm to 3:30pm
Surrey Public Library, Semiahmoo Branch
1815 – 152nd Street, Surrey
RSVP: Ilona Stachur, 604.598.7428

Speaker: Renee Aldana,Greig, Wilson & Rasmussen

Immigration Law (in Punjabi)
Monday, April 20, 2009 - 7:00pm to 8:30pm
Surrey Public Library, Fleetwood Branch
15996 – 84th Avenue, Surrey
RSVP: Harjinder Thind, 604.598.7346

Speaker: Barinder Sanghera, Sanghera Law Group

Saturday, April 25, 2009 - 10:00am to 11:30am
Surrey Public Library, Strawberry Hill Branch
7399 – 122nd Street, Surrey
RSVP: Tania Tong, 604.501.5839

Speaker: Ajeet Kang, Kang & Company

Scams to Avoid
Saturday, April 25, 2009 - 9:30am to 10:45am
Alma Van Dusen Room
Vancouver Public Library
350 West Georgia Street, Vancouver
RSVP: Caroline Wilson, 604.331.5412

Speaker: Simone Lis, Better Business Bureau

Also offered in French
"Méfiez-vous des arnaques!"
Saturday, April 25, 2009 - 2:00 to 3:00pm
At AJEFCB
227- 1555 West 7th avenue, Vancouver
Information: 778.373.3931

Speaker: Lloyd Duhaime

Wills and Estates
Monday, April 20, 2009 - 7:00pm to 8:30pm
Surrey Public Library, Cloverdale Branch
5642 – 176A Street, Surrey
RSVP: Laurie Cook, 604.598.7326

Speaker: Richard Wenner, Hamilton, Duncan, Armstrong & Stewart Law Corporation

Monday, April 20, 2009 -10:00am to 11:30am
Surrey Public Library, Ocean Park Branch
12854 – 17th Avenue, Surrey
RSVP: Eva Wilson, 604.502.6449

Speaker: Kim Karras,Brawn, Karras & Sanderson

Tuesday, April 21, 2009 - 3:30pm to 5:00pm
Burnaby Public Library
6100 Willingdon Avenue, Burnaby
RSVP: Yail Waisman, 604.436.5400

Speaker: Donald Drysdale, Drysdale Bacon McStravick

Saturday, April 25, 2009 - 11:15am to 12:30pm
Alma Van Dusen Room
Vancouver Public Library
350 West Georgia Street, Vancouver
RSVP: Caroline Wilson, 604.331.5412

Speaker: Ken Kramer, KMK Law Corporation

Also offered in French
"Testaments et successions"
Saturday, April 25, 2009 - 4:00 to 5:00pm
At AJEFCB
227- 1555 West 7th avenue, Vancouver
Information: 778.373.3931

Speaker: Lloyd Duhaime

[Source: Canadian Bar Association, B.C. Branch]

April 14, 2009

Vancouver Law Day - April 25, 2009

Law Day 2009, an annual event put on by the Canadian Bar Association - B.C. Branch provides the public with the opportunity to learn about the law, the legal profession and the legal institutions that form the cornerstones of our Canadian democracy.

On Saturday, April 25th from 10am to 3om all residents of the Greater Vancouver area are invited to come down to the Central Vancouver Public Library, located at 350 West Georgia Street (between Homer, Hamilton and Robson Streets). At Law Day, the public can learn what the justice system is doing to keep us safe on the streets and in our homes while upholding the rights of all Canadians under the Charter of Rights and Freedoms.

Some events which may be helpful for those needing legal advice are:
  • "Scams to Avoid", a free law class from 9:30am - 10:45am in the Alma Vandusen room at the Vancouver Public Library.
  • "Wills and Estates", a free law class from 11:15am-12:30pm, also at the Alma Vandusen room at the Vancouver Public Library.
  • "Dial a Lawyer", Lower Mainland residents are invited to call 604.687.3221 between 10:00 am and 2:00 pm to speak with a lawyer for up to 15 minutes at no cost.

More information about Law Day is available from the Canadian Bar Association (B.C.).

April 8, 2009

Free Advice From a Lawyer Over the Phone

Recent cuts to the Legal Services Society (LSS) have meant that fewer people qualify for legal aid. One alternative still provided by LSS is LawLINE "a free phone service of the Legal Services Society (LSS) designed to help people who don't qualify for a legal aid lawyer to represent them. LawLINE provides legal advice and information to people who qualify financially and have a legal issue" that LawLINE covers. LawLINE actually covers quite a bit:

Debtors' assistance
Bankruptcy
Bill disputes
Credit card debts
Debt collection
Foreclosure
Loans, including student loans
Tax debt and related issues

Employment law issues
Employment insurance
Harassment
Termination
Family law issues
Access
Child and spousal support
Child protection
Custody
Divorce
Guardianship
Property division

Health, estates law, and seniors' issues
Adult guardianship
Estate administration
Intestacy (where a deceased person has not left a will or a valid will)
Long-term care
Patients' rights
Powers of attorney
Probate / letters of administration

Housing law related issues
BC Housing
Co-op disputes
Disputes on reserve
Foreclosure
Residential tenancy
Strata matters where you may lose your housing

Income security law related issues
Child tax & disability benefits
Canada Pension Plan / Old Age Security / pensions
Victim assistance disputes
Welfare

LawLINE does not cover:

buying or selling a home (conveyancing matters)
consumer rights
criminal law matters
defamation claims
human rights
immigration and refugee matters
incorporating a company or shareholder disputes
medical malpractice claims
neighbour disputes
pardon for a criminal conviction
personal injury claims
property tax assessment disputes
representation in court or other hearings
veterans benefits
wills
workers’ compensation claims

After the initial screening, LawLINE will transfer the caller to a lawyer or paralegal to provide legal advice. While services are conducted in English, interpreters can be arranged. Callers can also access recorded messages about LSS services in six languages: Cantonese, English, French, Mandarin, Punjabi, and Spanish.

To contact LawLINE, please call the Legal Services Society at:

604-408-2172 (in the Lower Mainland)
1-866-577-2525 (no charge, outside the Lower Mainland)
9:00 a.m. – 3:30 p.m. (Monday, Tuesday, Thursday, and Friday)
9:00 a.m. – 2:30 p.m. (Wednesday)

April 5, 2009

How Funding Legal Aid Keeps You Free

The Legal Services Society's cuts to legal aid, announced last January, mean that as of last Wednesday, people charged with breaches of bail or probation conditions no longer receive legal aid, and instead get a few minutes with a duty lawyer prior to their trial.

This has a number of criminal defense lawyers warning that legal aid cuts in the short term may end up costing us a lot more in the long term, as people charged with these breaches are advised to tell the judge that they have not been provided with access to a lawyer, contrary to section 10(b) of the Charter. Section 10(b) provides that on arrest or detention, everyone has the right to retain and instruct counsel without delay and to be informed of that right.

David Hopkins, a Vancouver criminal lawyer says he expects that "many people will be advised by the duty counsel to argue in court that under the Charter of Rights they have a right to a lawyer and to demand a stay of proceedings. That's going to be a real drain on the system. We can certainly expect a dramatic increase in the amount of court time that is going to be devoted to those cases."

Clint Sadlemyer, a Nanaimo criminal lawyer, agrees, anticipating that the courts will be hearing many more Rowbotham applications, where people apply to court for an order that the province pay for their legal defense. The test in a Rowbotham application is whether the accused is in jeopardy of going to jail, whether they have unsuccessfully sought legal aid and whether they have funds for their own defence. Sadlemyer's view is that "it's fair game to apply for legal aid, and when refused to apply for a stay of the charge until the state will pay".

Alongside the backlog and expense these applications would bring, there is a deeper cost to cutting representation for those charged with probation or bail violations, which carry penalties of up to six months in jail. Our legal system's highest value is that individuals should only be deprived of their liberty in accordance with the rule of law. Integral to that concept is the right to have someone who understands the law represent your interests in court.

Toying with this right in circumstances where liberty is at stake sets a dangerous precedent, not only for those accused of offenses, but for all of us. The rights we count on as average, law-abiding people, including that we will not be taken by the police and thrown in jail except by the rule of law, are not won in legislatures and universities. They are fought for everyday in the dingy, embattled courtrooms of 222 Main Street by underpaid legal aid lawyers on behalf of often less than exemplary clients. The fights that happen there force the police, and the state at large, to respect the Charter which safeguards liberty for all of us.

April 1, 2009

More Accountability...(May be) Coming Soon to a Strata Council Near You

On March 27, 2009 the B.C. government introduced a bill amending the Strata Property Act to increase strata council accountability and make it easier for strata owners to resolve their disputes. Unfortunately, the legislature adjourned yesterday and so the bill is set to die on the order paper, possibly to be revived after the next election. This is too bad, since the amendments offered some very valuable changes to the cumbersome and gap-filled provisions currently in the Act. The proposed changes include:

  • Mediation and arbitration provisions to avoid having to go to court for relief against the strata corporation;

  • Allowing strata owners to bring their claims in Small Claims Court, where its easier to represent yourself, rather than in the B.C. Supreme Court as the Act currently requires;

  • Rules for strata counsel members who are in a conflict of interest;

  • Enabling owners to force the strata council to call a meeting for the purpose of hearing the owner's complaint;

  • Making more strata records available to owners and tenants upon request; and

  • Increasing the strata council's financial accountability though more rules and better disclosure.

No matter who is elected in May, let's hope that the legislature passes these long awaited changes to the Act so that strata owners have better corporate governance over their own homes.

March 27, 2009

The Court Appointed Lawyer in Criminal Appeals

In some cases, the Legal Services Society will not provide a legal aid lawyer to represent an accused where a criminal matter is appealed to the British Columbia Court of Appeal. The reasons for this vary, but the most common one is where the LSS determines that the accused has little chance of success on appeal. However, there is another way to obtain free legal representation.

Under section 684 of the Criminal Code, a court may appoint a lawyer to act on behalf of a self-represented party in a criminal appeal where a two-part test is met:
  1. it is in the interests of justice that the accused should have legal assistance, and

  2. the accused has not sufficient means to obtain that assistance.

In deciding if the test is met, the judge will consider the merit of the appeal as well as the following factors, summarized recently by the BC Court of Appeal in R. v. Butler:

  • the accused’s ability to pay for a lawyer
  • the availability of legal aid
  • the seriousness of the offence and the penalty imposed
  • the accused's education
  • the accused’s written and spoken language skills
  • the accused's ability to present the appeal effectively without legal assistance; and
  • how complicated the appeal is and whether a lawyer is necessary to present the evidence and argument.

If appointed by the court under s.684, a lawyer is paid either by legal aid or by whichever Attorney-General is the opposing party in the appeal.

The Criminal Code does not set out the procedure for applying for a court-appointed lawyer, however the case law indicates that this can be done by bringing a Notice of Motion for the appointment of a lawyer under section 684 of the Criminal Code. The Court of Appeal Registry will be able to provide further advice on how to prepare and serve a Notice of Motion.

In preparing your application for a court-appointed lawyer it is important to have evidence of your financial situation, including your most recent tax returns, pay stubs, rent receipts, as well as other evidence of your income, any assets (like a car or house) and expenses (for example, child support). This evidence will need to be attached to an affidavit, sworn by you.

March 25, 2009

Legal Aid Cuts Hurting Abused Women

In January, the Legal Services Society announced cuts to family and criminal legal aid services in British Columbia, due in part to decreased contributions from private sources such as the Notary Foundation. Now the Vancouver Rape Relief and Women's Centre is worried that cuts to legal aid and family law services in Vancouver pose a risk to women in abusive relationships. Daisy Kler, the spokesperson for Vancouver Rape Relief is worried; "I'm concerned women are getting less and less access to legal services. The people who access services of family law are predominantly women, and this is going to negatively effect their access to justice."

According to Kler, women with little or no money who don't have access to legal aid will often remain in abusive relationships because they have no choice. Kler added a partner or husband will often threaten loss of custody as a way to control a woman attempting to flee an abusive relationship.

The demand for family law advice at pro bono clinics is enormous - far more than the capacity of volunteer lawyers to provide it. Giving women the legal resources to obtain financial and physical security, both for themselves and their children, is a modest short-term investment with a tremendous long-term dividend for our society.

[Source: Vancouver Courier]

March 24, 2009

The End of Lawyers?

The title of Richard Susskind’s new book reads like the end result of every lawyer joke, but he doesn’t mean it. He does, however, believe that the way lawyers and law firms deliver legal advice and services will change profoundly in the coming years. The billable hour will be out, since it rewards lawyers who take on a sluggish and inefficient pace, and a web-based, fee-for-product system will be in. While commentators have prematurely predicted the death of the billable hour for decades, there is some reason to think that Susskind knows something we don’t. A few years ago, he prognosticated that email would invade the legal workplace and surpass communication by mail or fax. Many scoffed, but today most lawyers conduct the vast majority of their work via Outlook.

So what is the soothsayer predicting now? In The End of Lawyers: Rethinking the Nature of Legal Services, he argues that:
  • General legal advice and standard documents will be provided by law firms over their websites;
  • Small, specialized law firms will be pushed out by bigger, technology-based firms;
  • Large law firms will take a more holistic approach to client problems by having different experts, including lawyers and accountants available to tackle issues from various angles;
  • Basic legal services will be outsourced to quasi-professionals and provided through retail kiosks and online; and
  • Corporate clients will collaborate with their competitors on regulatory issues to reduce costs;

While many of Susskind’s predictions are driven by the changing needs of larger corporate clients, there are some benefits to this futuristic legal system for the average person with a legal problem. Having legal advice accessible online would bring some competition and access to isolated rural areas where finding a lawyer can be challenging. Having some certainty as to the amount you will pay for legal services, and what you can expect in return, will also benefit those on a budget. Finally, the technology which is being developed to allow the provision of legal advice and documents over the internet may also provide the platform for the better provision of online pro bono legal advice one day. So probably not the end of lawyers, but maybe the start of better legal advice.

March 18, 2009

How to Write a Demand Letter

A demand letter is a formal, written notice demanding that the recipient perform some legal obligation, most often, the payment of a debt. In many cases, a demand letter is all that is necessary to convince the other party to do what they are legally required to do. But even where a demand letter is ignored, it can serve a useful purpose by proving in court that the other side had notice of the claim and chose not to respond.

At a minimum, a demand letter should concisely set out the facts which led to the claim as well as the specific actions you are asking the other side to take in order to resolve the matter. Beyond that, here are some tips for writing an effective demand letter:
  1. Imagine you are writing to a judge...because that’s who may end up reading your letter. In some cases, demanding payment from the other side is a prerequisite for bringing a claim, so your demand letter may be evidence that you fulfilled this requirement. Also, in many cases, the demand letter is useful evidence that you told the other side of the problem and gave them an opportunity to rectify it. Since the letter may end up in court, keep the language and tone of your letter firm, professional and unemotional. Be careful to consider whether you are admitting anything in the letter which may be used against you by the other side in a trial. Write the letter on a computer rather than by hand, and keep it to a page or two at the most.
  2. Include details. While it is important to keep the letter brief, you should still set out the history of the dispute, including all the important details, such as the dates of a contract, exact dollar amounts owing, details of building deficiencies, etc.
  3. What do you want? Set out specific actions that you want the other person to take; “I demand that you pay me the $1,234 owing to me for fixing your car.” or “I demand that you repair my fence which you damaged with your lawnmower.”

  4. When do you want it? Set a deadline, but make it reasonable. Two or three weeks is generally a good time frame, since it allows time for the other person to get the letter through the mail and make arrangements to remedy the situation.

  5. Or else what? Include consequences for failing to perform the legal obligation. For example, “If I am not in receipt of a certified cheque in the amount of $1,234 by August 14, 2009 then I will commence an action in Small Claims Court (or the British Columbia Supreme Court, depending on the type of claim and the amount) without further notice to you.”

  6. Contact information should always be included, along with your name and signature. Make sure that the other person has a way to get in touch if they would like to discuss the claim or settlement with you.

  7. Send it by registered mail. Registered mail costs less than $10 and allows you to get a receipt proving that the other side received the demand letter. Keep this receipt as evidence in case you eventually go to court.

March 13, 2009

Conditional Sentence vs. Conditional Discharge

Many people are confused about the difference between a conditional sentence and a conditional (or absolute) discharge. The confusion may arise because in both cases, the accused avoids going to jail. However, there are important differences between a conditional sentence and a discharge which can affect a person's criminal record as well as future employment and travel opportunities.

Conditional Sentences
A conditional sentence is given when someone is convicted of an offence, and the court allows the person to serve the sentence in the community, rather than in jail, as long as they obey some conditions (hence the name). These conditions may include a curfew, keeping the peace, and not being in possession of weapons, drugs or alcohol, among others. If a person breaches any of these conditions he or she is usually sent to jail to serve out the rest of the sentence. Conditional sentences are only available where the sentence is under two years and where the offence has no minimum mandatory jail term. A conviction resulting in a conditional sentence is still a conviction and will appear on a person's criminal record.

Conditional Discharges
A conditional discharge occurs when a person is found guilty but the judge enters a discharge instead of a conviction. There are two kinds of discharges; conditional and absolute. A conditional discharge comes with requirements such as probation, counselling, etc. which must be fulfilled before the conviction is discharged, whereas an absolute discharge is immediate. If the conditions are not fulfilled, then the person is convicted of the original offence and sentenced accordingly.

Unlike convictions, discharges do not appear on a person's criminal record. Also, a person who receives a discharge can honestly say that they have never been convicted of a criminal offence, which can be very helpful in an employment or immigration context.

While a guilty person should always consider asking the court for a discharge, the court will only grant a discharge where the test, set out in section 730 of the Criminal Code, is met:

The discharge:
  • must be in the accused person's best interests; and
  • must be not contrary to the public's interests.

Discharges are granted most often where the offender has no criminal record, the offence is minor and the offender has taken steps to ensure that he or she will not re-offend in the future.

March 10, 2009

A Judge's View of "The Bitter Realities of Family Court"


In his new book, Tug of War (A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court), Judge Harvey Brownstone of the Ontario Court of Justice has a thing or two to say about the family law system to couples considering divorce.

And he should know - before being appointed to the bench, Judge Brownstone worked with the Ontario Legal Aid research facility, where he focused on family law, and later the Minister of the Attorney-General as director of the Family Support Plan, a branch which is responsible for administering child support and spousal custody orders.

Last week, the Globe and Mail hosted an online discussion with Judge Brownstone, prompting an overwhelming number of questions and comments from the public. So much so that the Globe added a second online discussion today. The online discussion is worth reading, both because it is full of helpful advice and practical tips, but also because the kinds of questions themselves indicate how confusing, expensive and time-consuming family law proceedings can be. In his book, and online, Judge Brownstone addresses a number of issues, including common myths about custody issues, when to hire a lawyer, and how to increase visitation and access rights.

February 27, 2009

Low Income Litigants May Avoid Court Filing Fees

Court filing fees can be very expensive. Just filing the documents to start a claim, a Writ of Summons and Statement of Claim, costs $208 at the B.C. Supreme Court. It's another $208 to file a Notice of Trial and a minimum of $312 for each day of the trial. Add to that the filing fees for any motions or applications before the trial and filing fees alone can easily top $1000.

In limited circumstances, the court will give permission for a party not to pay filing fees if they can show that they have little or no income, and that their claim (or defence) is reasonable. In order to get this permission from the court, you need to make an application for indigency status. The Legal Services Society has put together an excellent, step-by-step guide on how to make an indigency status application. The guide is in the context of a family law application, but the steps are the same no matter what your legal issue.

I have two quick points to add to what is contained in the guide.

First, it may be that your court procedure does not require court fees to be paid. Check the list of court fees before you go to the trouble of preparing an indigency status application.

Second, the court will ask a person applying for indigency status detailed questions about their income, job prospects and assets. The hearing takes place in Chambers, a courtroom designated to deal with a number of shorter applications. Chambers courtrooms are often crowded with lawyers, especially in the morning session. If you are concerned about privacy, ask the registry to set down your application for the afternoon Chambers session, when there are generally very few people left in the courtroom.

February 25, 2009

How to Fight a Strata Fine

For tenants or owners facing a fine for violating a strata rule or bylaw, it can feel like the council plays the role of police, judge and executioner. Although the strata council does have a lot of discretion to issue fines, an owner or tenant who feels that a fine is unfair has rights and remedies under the Strata Property Act. Section 135 of the Act states that before a strata council can impose a fine, the following four conditions must be met:
  1. the council must have received a complaint about the bylaw or rule violation;
  2. the council must have given the owner or tenant the details of the complaint, in writing, and a reasonable opportunity to answer the complaint, including a hearing if requested by the owner or tenant,
  3. if the person is a tenant, the council must have given notice of the complaint to the person's landlord and to the owner.
  4. if the tenant or owner has provided a written explanation of the complaint, or made arguments at a hearing, the strata council must provide the owner or tenant with written notice of its decision to issue the fine.

If the strata council does not follow these procedures in issuing a fine, then arguably it has violated the provisions of the Act, and acted outside its jurisdiction. So what then?

If the strata council has skipped one or more of these steps, or if you believe that the council's final decision is still unfair, section 164 of the Act give the owner or tenant a broad right to apply to the court for help.

Section 164 allows the court to make any order it considers necessary to "to prevent or remedy a significantly unfair action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant". There are two important points about section 164:

  • An owner or tenant does not need to wait until the strata council actually issues the fine, or takes other action. Any threat by the strata council to issue a fine is sufficient to bring a court application. That being said, the court will not be impressed if an owner/tenant runs off to court without first writing to the strata council to explain their side of the story.
  • Second, the court will only intervene if the strata council's action is "significantly unfair". This means that not every unfair action by the council will be addressed by the court - the consequences of the unfair action must be significant. In addition, the filing fees and time required to bring a court action should be considered when deciding whether it would be cheaper and less stressful to simply pay the fine.

Whatever your choice, its good to know that owners and tenants do have procedural fairness rights which will be enforced by the court, if necessary.

February 18, 2009

Simplify Your Trial, Judge Judy Style

Have you ever watched the Peoples' Court or Judge Judy on television and wished you could solve your court case in only an hour?

You may be able to do just that, thanks to a Small Claims Court pilot project underway at the Robson Square and Richmond Small Claims courts. The project requires that all claims under $5000 (with a few exceptions, including personal injury) must be determined using a simplified trial process under Rule 9.1 of the Small Claims Rules.

A simplified trial is a one-hour streamlined trial before a justice of the peace who acts as an adjudicator. The process starts like any other Small Claims action; the claimant files a Notice of Claim and then the defendant files a Reply.

Each party must then file a document called a Trial Statement in Form 33 at the registry at least 14 days before the simplified trial and serve it on each of the other parties at least seven days before the simplified trial. The Trial Statement must include:

  • a statement of facts in the order in which they occurred

  • a calculation of the amount claimed

  • copies of the relevant documents

  • and a list of witnesses with a brief summary of what each witness will say

The benefits of a simplified trial for non-lawyers include the following:

  • the adjudicator does not have to apply the usual rules of evidence and procedure, so you don't have to have any legal knowledge to state your case. No one will be able to yell, "Objection! Hearsay!" like they do on television. (Rule 9.1(20)(a))

  • There is usually no formal examining and cross-examining witnesses (Rule 9.1(20)(b))

  • There aren't any delays caused by documents going back and forth between the parties. Everything is in the Trial Statement, which gives you all the information you need about the other side's case.

  • Since the hearing usually lasts only an hour, the amount of disruption to your work and other obligations is minimal.

  • The process is generally less formal, and therefore less intimidating, than appearing before a judge in an ordinary court case.

If your claim is over $5000, the benefits of the simplified trial may be so great that it may be worth abandoning any amount of your claim which is over the limit just so that you can use the simplified trial process. This is allowed under Rule 5.1(5) - all you have to do is state on your Notice of Claim that you are abandoning any amount of your claim over $5000.

The adjudicator has a lot of discretion about how the hearing will proceed, and he or she will often ask questions of the parties and witnesses in order to get all the information necessary to decide the issue in a short period of time.

Kind of like Judge Judy, only without the finger-pointing.

February 9, 2009

Can you be arrested and charged for possession of marijuana?

The short answer is yes, you can be arrested and charged for possessing marijuana because despite several controversial court decisions, possessing pot remains a criminal offense in Canada under the Controlled Drugs and Substances Act.

The uncertainty about whether pot posession is legal in Canada stems from the fact that court decisions in several provinces have found Canada's marijuana possession law to be unconstitutional for failing to provide adequate exceptions for medical marijuana users.

Here are a couple of the key cases which struck down Canada's marijuana laws: R. v. Parker (2000 Ontario Court of Appeal), Sfetkopoulos v. Canada (2008 Federal Court), R. v. Masse (2003 BC Provincial Court).

Sometimes A law isn't THE law

These cases held that Canada's marijuana laws were unconstitutional, and therefore they were of no force and effect. A declaration that a law "is of no force or effect" means that that law is no longer the law, and since someone can't be convicted of breaking a non-existent law, the accused in those cases were acquitted.

It is now up to Parliament to redraft the law to make it constitutional, and some of this redrafting has been done. In the meantime, the police can arrest and charge you for possessing marijuana and it would be up to the judge to determine whether the revised law you were charged under is constitutional.

While Vancouver has had a reputation of leniency towards pot smokers in recent years, more recent statistics indicate that the VPD is cracking down on possession, "In all, 200 people were charged with simple possession of marijuana in Vancouver in 2006 -- up from 133 a year earlier."

According to Crown prosecutors, people are rarely charged for possession without some other aggravating factors. For instance, if the police suspect someone of trafficking, but can only prove possession, then that lesser charge may be laid. Vancouver still has one of the lowest criminal charge rates for marijuana in the country, but there remains a small risk of criminal charges for those possessing marijuana for personal use.

Decriminalization vs. legalization

Much of the debate about marijuana laws involves talk of decriminalization. Decriminalizing marijuana would mean that possessing it would no longer be a criminal offense. This doesn't mean it would be legal, but possession would result in a ticket and fine (like a parking ticket), instead of a criminal charge with the possibility of a criminal record and jail time. Many politicians and activists are calling for the decriminalization of marijuana, arguing that those who simply possess the drug for their own use should not be subject to the stigma and loss of liberty inherent in criminal charges.

Decriminalization or legalization. What do you think?

February 1, 2009

Pardon Me? Why you don't need a lawyer to discharge your criminal record

Pardons, pardons, pardons!!! We will not be undersold!!!! Every pardon must go, at incredible bargain basement prices!!!!!

Ads for companies selling pardon services are everywhere, from the back of buses to flashing internet ads. The companies capitalize on the embarrassment people feel in having a criminal record, the urgency of removing it for employment, travel or immigration reasons, and the fear and confusion caused by dealing with legal paperwork.

What these companies don't tell you is that obtaining a pardon on your own is a relatively straight-forward, inexpensive process which does not require a lawyer or any pardon company. In Canada, pardons can only be issued by the National Parole Board ("NPB"), which has published a step-by-step guide for applying for a pardon. This means that pardon companies are charging you a hefty fee for filling out the same government paperwork which you can get yourself for free online.

But don't just take our word for it - even the NPB says there's no advantage to using a lawyer or pardon company:

You do not need a lawyer or a representative to apply for a pardon. The pardon application guide includes step - by - step instructions on how to apply for a pardon, as well as the pardon forms. The NPB gives equal consideration to all pardon applications received - whether they are submitted by an individual or by a representative from a private agency. Submitting your pardon application through an agency or lawyer will not improve your chances of being granted or issued a pardon. The NPB is not affiliated with any pardon agencies.

What about companies which "guarantee" I'll get my pardon?

Because the NPB is the only organization in Canada which can issue paroles, no company or lawyer can "guarantee" you will get your pardon. Whether you are eligible for a pardon depends on whether you have 1) completed all sentences and 2) waited a certain period from the completion of all sentences.

1. When is a sentence completed?

  • When a person has paid all fines, surcharges, costs, restitution and compensation orders in full;
  • When a person has served all of his/her time, including parole or statutory release; and
  • When a person has satisfied his/her probation order.

2. What is the waiting period?

  • For convictions under the Criminal Code and other federal statutes:
    - Three years for summary convictions; and
    - Five years for indictable offences.

The NPB will also consider whether you have demonstrated that you a law-abiding person of good character. If you do not meet these criteria, you will not be eligible for a pardon, and will have to wait one year to re-apply.

What about companies that say I'll get a "fast" or "expedited" pardon?

Some pardon companies claim to offer an "expedited" or "rush" service for an extra fee. Be wary of these claims because the NPB treats all pardon applications the same way, and there is no way to get expedited or rush service.

You can expect the process to take between 12 and 18 months. It may take longer if paperwork is not filled out correctly. Pardon companies may be able to help you fill out the paperwork correctly, minimizing delays due to incomplete information, but they have no special connection or power to put your application at the front of the queue.

If you carefully follow the step-by-step guide, proofread your application, and have a friend double-check the paperwork for you, you can avoid these delays without having to pay a pardon company to review your work for you.

What about the "special discounts" these companies offer?

Pardon companies can charge anywhere from $500 to $800 or more for preparing your pardon application. By comparison, if you apply for a pardon yourself your only costs (aside from postage) will be a $25 fee to the RCMP for a certified copy of your criminal record, the cost of obtaining a set of fingerprints from the RCMP, which is about $45, plus a $50 fee for the NPB to evaluate the merits of a pardon request. The total for a do-it-yourself pardon is likely less than $150.

The important thing to remember is that the application process for a pardon is designed for ordinary people to do themselves, without the help of a lawyer or company. With a little organization, you can save hundreds of dollars by applying for a pardon on your own behalf.

January 31, 2009

How to Prove Your Case: Rules of Evidence

There is a great free seminar for those of you with upcoming court cases called How to Prove Your Case: Rules of Evidence, put on by the People's Law School. No, its not some fly-by-night internet law school advertised on late time television. The People's Law School is a non-profit organisation dedicated to educating people about the law. The group was founded by some UBC law students back in 1972, and has grown considerably over the past 30 years. Here are the details for the seminar:

Tuesday, February 24, 2009
6:00 p.m. - 8:00 p.m.

People's Law School
150 - 900 Howe Street
Vancouver, BC
Registration Phone #: 604-331-5412
Language of Presentation: English

Check the website for other free seminars on topics including wills and estates, starting a small business, and ICBC and personal injury law.

January 28, 2009

Free Law Textbooks

The common law in Canada has developed from a painstaking process of parsing long court decisions and extracting key principles which are then applied in the next case. For self-represented litigants, finding these principles can seem like looking for a needle in a haystack.

Wouldn't it be nice if someone had already taken the trouble to assemble the basic principles on a legal issue and summarize them for you in a few pages? Legal textbooks do just that, and they are an excellent starting point for lawyers and non-lawyers.

The problem is that legal textbooks are hard to find, especially for you live in a rural area. Because law textbooks are so specialized, they are rarely found in public libraries and bookstores. They are also extremely expensive when they are offered for sale, often costing hundreds of dollars per book (just ask any disgruntled law student in her first week of classes).

However, thanks to Google, the legal textbook you need may be available for free online. Simon Fodden, a blogger at Slaw.ca, has created a library of Canadian law books at Google Books. A convenient feature of Google Books, which gives it an edge over "real" books, is that you can enter search terms to take you to the exact page you need. The downside is that some of the books have a limited preview which means that only a portion of the book is available. Still, if you only need a few pages on a particular topic, you may be in luck.

If the book you need is not available on Google Books, you have some other options. If you live in the Lower Mainland, the B.C. Courthouse Library has an excellent collection of textbooks which are available for use by the public in the library. The reference desk staff are extremely helpful and patient and you can photocopy the pages you need.

You can also buy legal textbooks at the UBC Bookstore or the UVic Bookstore. A better option may be Irwin Law, which publishes summaries of many legal topics in easy-to-read, plain language, relatively affordable softcover books available for purchase online.

However you find them, legal textbooks are an excellent starting point for understanding your legal issue and pointing you to the case which will hopefully help you win yours.

January 26, 2009

How to Swear an Affidavit for Cheap

Many family and civil law applications require evidence in the form of affidavits, which are sworn statements containing a person's evidence. As affidavits are essentially testimony in written form, they must be sworn under an oath which is similar to the one used by witnesses in court. The problem is that only certain people can adminster the oath for swearing an affidavit. In British Columbia, these people are most commonly lawyers and notaries who charge anywhere from $24.99 to $69.99 per affidavit. If you have a few affidavits from various witnesses, these charges can add up quickly.

Fortunately, the British Columbia Supreme Court Registry has certain staff members who are able to swear affidavits without charge. This service may also be available in the Federal Court of Canada. Note that the Registry staff will not be able to draft the affidavit for you, or provide you with legal advice. The Registry staff must also check your identification, so remember to bring at least two pieces of ID, one of which should have your photograph.

UPDATE: Thanks to some helpful comments, it appears that the BC Supreme Court Registry is now charging $31 to swear an affidavit. This may still be a worthwhile option, since $31 is still cheaper than the average rate among lawyers and notaries.

For an excellent guide to preparing your own affidavits check out Drafting Affidavits: A Lay Person's Guide published by the Community Legal Assistance Society.

January 23, 2009

Getting ALL the Information About Your Criminal Charge

In R. v. Stinchcombe, the Supreme Court of Canada made it a requirement for Crown prosecutors to disclose to a person charged with a criminal offense all relevant information about their criminal charge - whether or not the Crown intends to introduce it into evidence and whether or not it tends to prove that the accused is guilty or not guilty. Generally, Crown will provide an accused with a disclosure package at their initial appearance, or shortly afterwards.

While the disclosure package usually meets the requirements in R. v. Stinchcombe, for whatever reason, important information is sometimes omitted which could affect an accused’s chances of being acquitted at trial. That’s why it is important to review the Crown disclosure package carefully to see if anything is missing. Look for omitted page numbers, police reports, and witness or complainant statements.

Even if nothing is obviously missing, you may want to write what’s known as a Stinchcombe Letter to the Crown Counsel office asking for further disclosure. The following is an example of some disclosure requests commonly made in a Stinchcombe letter:
  1. A copy of any police reports or notes made on or about [DATE OF OFFENCE] with respect to the accused not already disclosed. In particular, legible and unredacted copies of [CONSTABLE #1234 SMITH’S] police notes (Note: this last part would apply where portions have been blacked out);


  2. An unredacted copy of the Criminal Justice Branch Narrative, Report ID: ABCD1234 (Note: again, this would apply where portions of the report have been blacked out);


  3. Any audio or video recordings of any conversations of [THE ACCUSED] with the police during his arrest and detention on or about [DATE OF OFFENCE/DATES OF DETENTION];


  4. Any audio or video recordings of the conversations of [WITNESS/COMPLAINANT NAMES] on the night of the alleged incident and any audio tapes of [WITNESS/COMPLAINANT NAME’S] call to the police which led to the arrest;

  5. A copy of the criminal record of the complainant, [COMPLAINANT’S NAME];


  6. A copy of the criminal record of any proposed witness;


  7. Copies of any photographs taken by police of [THE ACCUSED] or [THE COMPLAINANT] or the scene of the alleged incident on or after [DATE OF OFFENCE];


  8. Inspection of anything that the Crown proposes to introduce as an exhibit and, where practicable, production of copies thereof;


  9. Where not protected from disclosure by the law, the name and address of any other person who may have information useful to the accused, or other details enabling that person to be identified; and


  10. Any other material or information known to the Crown not previously disclosed and which tends to mitigate or negate the accused's guilt or which would tend to reduce his punishment therefore, notwithstanding that the Crown does not intend to introduce material or information as evidence.

Contact information for the Crown Counsel office responsible for an accused’s file is usually found on the cover letter of the Crown disclosure package. However, if you don’t have this information and want to know where to send your Stinchcombe letter, you can call the Vancouver Crown Counsel office at (604) 660-4353 to find out which Crown prosecutor is responsible for your file.

Here is some more information about the role of Crown Counsel.