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.