ARCTIC OBITER
Arctic Obiter - May 2010 - Law Society of the Northwest Territories
Arctic Obiter - May 2010 - Law Society of the Northwest Territories
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<strong>ARCTIC</strong> <strong>OBITER</strong><br />
MAY 2010 V OLUME XIV, ISSUE 5
2 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
THE LAW SOCIETY<br />
OF THE NORTHWEST TERRITORIES<br />
Main Floor<br />
5004 – 50 th Avenue<br />
P.O. Box 1298<br />
Yellowknife, NT<br />
X1A 2N9<br />
TEL: (867) 873-3828<br />
FAX: (867) 873-6344<br />
info@lawsociety.nt.ca<br />
www.lawsociety.nt.ca<br />
P.O. Box 1985<br />
Yellowknife, NT<br />
X1A 2P5<br />
TEL: (867) 669-7739<br />
FAX: (867) 873-6344<br />
cbanwt@lawsociety.nt.ca<br />
www.cba.org/NorthWest<br />
EXECUTIVE DIRECTOR<br />
Linda Whitford<br />
linda.whitford@lawsociety.nt.ca<br />
PRESIDENT<br />
Shirley Walsh<br />
VICE-PRESIDENT<br />
Michael Hansen<br />
SECRETARY<br />
Erin Delaney<br />
TREASURER<br />
Sheila MacPherson<br />
LAY MEMBER<br />
Maureen Crotty Williams<br />
PRESIDENT<br />
Janice K. Walsh<br />
VICE PRESIDENT<br />
Elaine Keenan Bengts<br />
SECRETARY / TREASURER<br />
Malinda Kellett<br />
PAST PRESIDENT<br />
Sheldon Toner<br />
ELECTED VOTING MEMBER<br />
Betty Lou McIlmoyle<br />
NON-VOTING MEMBER<br />
Sheila MacPherson<br />
INSIDE<br />
6<br />
8<br />
9<br />
10<br />
12<br />
Protecting Solicitor-Client Priviledge<br />
Glenn D. Tait<br />
Mysterious Trust Fund Deposits<br />
Deborah E. Gillis, QC<br />
What the Dickens?<br />
Chief Judge Patrick Curran<br />
The New Rules of Pricing<br />
Jordan Furlong<br />
Creating Value for Clients:<br />
Flat-fee Billing in Family Law Cover<br />
Lonny Balbi, QC<br />
3 President’s Message<br />
4 Executive Director’s Message<br />
5 Membership News<br />
15 NWT Decision Digest<br />
15 NWT Legislative News<br />
16 Notices<br />
17 Supreme Court of Canada<br />
Update<br />
18 Upcoming Events<br />
19 Lawyers’ Assistance<br />
ADMINISTRATION &<br />
MEMBERSHIP INQUIRIES<br />
Amy LeBlanc<br />
amy.leblanc@lawsociety.nt.ca<br />
EDUCATION &<br />
COMMUNICATIONS<br />
Ben Russo<br />
ben.russo@lawsociety.nt.ca<br />
Arctic Obiter is a joint publication of the Law Society of<br />
the Northwest Territories and the Northwest Territories<br />
Branch of the Canadian Bar Association. It is published<br />
on a monthly basis to keep lawyers practicing in the<br />
NWT informed of news, announcements, programs and<br />
activities. Comments, articles and photos for<br />
consideration can be submitted to Ben Russo. Past and<br />
current issues are available on the Law Society website.<br />
FROM THE EDITOR<br />
Everyone has, by now, had some exposure to the hot topic<br />
of the billable hour. In this issue, we bring you two articles<br />
that introduce you to a world without billable hours.<br />
First, Jordan Furlong has published many commentaries<br />
on the subject, including his dose of reality on page 10.<br />
Then, on page 12, Lonny Balbi, QC, offers his perspective<br />
on how to make the change. His tried-and-true tactics have put him in a<br />
unique spotlight, and we are pleased to welcome him to talk to our members<br />
in June. You will not want to miss this one.<br />
Cheers,<br />
- Ben
MAY 2010 | 3<br />
PRESIDENT’S MESSAGE<br />
Oh, Let the Sun Shine In!<br />
It finally appears as though summer is right around the<br />
corner. The ice and snow are gone (for the most part) and<br />
the trees are starting to show signs of life. Best of all, the<br />
sun is shining and the temperatures are rising! This time<br />
of year never fails to recharge me after a long cold dark<br />
winter and I am so excited for the boating<br />
and camping and deck time that the next<br />
few months will bring.<br />
The next few months will also be<br />
bringing some very interesting seminars<br />
from the Law Society and the CBA.<br />
As you have no doubt seen in our weekly<br />
update email, on June 8th Lieutenant<br />
Colonel James MacMillan, Deputy Judge<br />
Advocate in Yellowknife, provides an<br />
overview of the law of armed conflict,<br />
including the foundations of the Geneva<br />
Convention and common media<br />
misunderstandings. This is sure to be a<br />
Shirley A. Walsh<br />
very interesting talk, and I hope many of our members<br />
attend.<br />
We recently had the chance to welcome back Ross<br />
McLeod, Practice Advisor with the Law Society of<br />
Alberta, for a refreshing info-session on Client<br />
Identification and Verification. As always, his in-depth<br />
knowledge of these new measures (both locally and<br />
nationally) eased many minds and cleared much of the<br />
confusion associated with our new rules. With this<br />
seminar, Ross also provided an overview of billing<br />
practices now being seen in the profession. The talk<br />
opened some members’ eyes with the possibilities for<br />
successfully evolving their practice into an alternative<br />
billing system.<br />
On June 18th, the Law Society is sponsoring another<br />
interesting speaker to talk about alternative billing.<br />
Lonny Balbi, QC, a Calgary-based lawyer and a frequent<br />
guest on various television shows, will discuss<br />
alternatives to the current norm of billable hours.<br />
The case for a new model of billing will<br />
not be going away anytime soon. I’d like<br />
to thank both Ross McLeod and Lonny<br />
Balbi for speaking to our membership and<br />
opening the doors to this subject.<br />
The CBA has, as always, some very useful<br />
seminars planned on subjects such as the<br />
Effective Use of Prior Inconsistent Statements<br />
and Spousal Support & Matrimonial<br />
Assessments. All of these are opportunities<br />
not only to add to your knowledge and<br />
skill sets, but also to ensure you will meet<br />
the Law Society’s requirement for CPD<br />
hours.<br />
Of course, we are also looking forward to the annual<br />
Court of Appeal Barbeque. This year the barbeque will be<br />
on Tuesday, June 15, 2010, at the Yellowknife Racquet<br />
Club. It’s always lots of fun with great food, I look<br />
forward to seeing a large turnout.<br />
To all of our members who at the beginning of what is<br />
likely a very busy summer of outdoor activities and<br />
relaxing vacations, have fun and be safe!
4 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
THE DIRECTOR’S CHAIR<br />
Protect Your Photocopied Information<br />
I’ve spent a lot of time over the last couple of weeks<br />
addressing an issue brought to light in the United States by a<br />
CBS investigative news story on digital copiers. In the event<br />
you did not happen to either see the story or receive it in an<br />
e-mail circulation from a colleague, the long and the short of<br />
it is this: CBS News went with a<br />
representative from Digital Copier Security<br />
to a warehouse in New Jersey, to see how<br />
hard it would be to buy a used copier<br />
loaded with documents. As it turns out,<br />
...it's pretty easy.<br />
They picked four machines based on price<br />
and the number of pages printed. In less<br />
than two hours their selections were packed<br />
and loaded onto a truck at a cost of about<br />
$300 each. The previous owners of the<br />
machines were unknown to the<br />
investigative team, but it did not take long<br />
for them to find the information. While in<br />
one case documents had been left on the<br />
scanning bed, in the others they simply<br />
Linda G. Whitford<br />
retrieved the copier’s hard drives and using forensic<br />
software available for free on the Internet, scanned the<br />
drives and downloaded tens of thousands of documents in a<br />
very short period of time that contained no end of<br />
confidential and/or personal information.<br />
As you can well imagine, the story has everyone who has<br />
ever traded in their copier for a newer model [us included]<br />
scrambling for answers. In the wrong hands, the<br />
information found on these copiers could be used with<br />
catastrophic results.<br />
We put the question to our own Xerox representatives. They<br />
have assured us that the hard drive from our recently traded<br />
machine was erased and/or disposed of when delivered back<br />
to their distribution facility. They further advised that their<br />
customers have four options:<br />
Do nothing and allow Xerox to dispose of the equipment<br />
being returned through their normal disposal process.<br />
All equipment in the disposal process is destroyed. All<br />
electrical components are shredded which includes all<br />
memory chips and hard drives.<br />
Use image overwrite feature which<br />
erases the hard drive after every<br />
impression.<br />
Have their service technician go into<br />
your Xerox account and erase the hard<br />
drive (there is a fee for this service); or<br />
Have their service technician remove the<br />
hard drive and leave with you. There is<br />
also a fee associated with this process.<br />
While Option 1 (where the company<br />
removes and disposes of the equipment -<br />
thus destroying the confidential<br />
information) may be the most economical,<br />
does it meet your obligation to hold in strict<br />
confidence all information concerning the<br />
business and affairs of your client?<br />
If you cannot convince yourself that it does, you may want<br />
to consider Option 4 - remove the hard drive before the<br />
machine leaves the premises. Until we develop an<br />
appropriate practice advisory with the assistance of the<br />
Legal Ethics and Practice Committee, you will have to use<br />
your best judgment when assessing the situation. For those<br />
of you using copiers other than Xerox, contact your customer<br />
service representative for their policy and process on this<br />
subject.<br />
By the way, for the weather buffs, the temperature in<br />
Yellowknife is +15 heading for the 20’s. The sun rose at 4:06<br />
am this morning and it will set tonight at 23:05.<br />
Life is good.
MAY 2010 | 5<br />
MEMBERSHIP<br />
and Malakoe’s genuine care for each<br />
of his clients, together with the<br />
sentiment that the Bench’s (and<br />
public’s) gain is a also a loss to the<br />
Bar, left many searching for tissues.<br />
“Mrs. Malakoe,” directed Katherine,<br />
“you should be truly proud of your<br />
son.”<br />
Judge Malakoe and Chief Judge Gorin listen to welcoming speeches from members of the Bench & Bar.<br />
Malakoe Appointed to Fourth<br />
Seat on Territorial Bench<br />
On April 30, the Hon. Chief Judge<br />
Gorin opened court for the official<br />
induction into office of the Hon. Judge<br />
Garth E. Malakoe.<br />
“This is a relatively unusual sort of<br />
proceeding to be having here in<br />
Territorial Court,” began Chief Judge<br />
Robert Gorin in his opening<br />
statements.<br />
He was foreshadowing<br />
the open laughter, tears, applause and<br />
flashing cameras abundant in the<br />
cramped courtroom.<br />
It was a standing-room-only session<br />
with many of Malakoe’s colleagues,<br />
friends and family present.<br />
Among<br />
those to speak were the Hon. Jackson<br />
Lafferty, Minister of Justice; Shannon<br />
Smallwood, on behalf of the PPSC;<br />
CBA-NT President Janice Walsh; Law<br />
Society Treasurer Sheila MacPherson;<br />
former colleague and partner<br />
Katherine Peterson, QC; and the Hon.<br />
Mme. Justice Louise Charbonneau.<br />
Following Judge Malakoe’s swearing<br />
in, the Minister of Justice began the<br />
felicitations.<br />
In his warm welcome,<br />
Lafferty noted that Malakoe has “a<br />
reputation for his intelligence and<br />
strength of character.”<br />
All speakers took turns in<br />
congratulating the new Judge and<br />
a d d i n g t o t h e b a r r a g e o f<br />
complimentary, and well deserved,<br />
adjectives.<br />
One comment among<br />
many was MacPherson’s conviction to<br />
Malakoe’s “very human touch and a<br />
very human approach to dealing with<br />
files”.<br />
Peterson’s recant of their partnership<br />
Judge Malakoe followed the speakers<br />
with his own remarks. What began as<br />
a list of regrets for leaving the Bar and<br />
distancing himself from community<br />
service ended with his discovery of a<br />
new world with new challenges and<br />
responsibilities.<br />
“I am confident that I will be able to<br />
fulfill my self-perceived responsibility<br />
to serve the community by doing my<br />
job as a judge,” he said. “After all, as<br />
a judge, service to the community and<br />
to the public is our greatest role.”<br />
NEW MEMBERS<br />
CHARLES B. DAVISON<br />
ABBEY HUNTER DAVISON - EDMONTON, AB<br />
ELAINE B. CAIRNS<br />
CABOTT & CABOTT - WHITEHORSE, NT<br />
JACEK JANCZUR<br />
PPSC - OTTAWA, ON<br />
MEMBERSHIP STATS<br />
Active Residents: 131<br />
Active Non-Residents: 230<br />
Inactive Members: 83<br />
Total Membership: 444<br />
(Restricted Members: 70)
6 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
Protecting Solicitor-Client Privilege<br />
By Glenn D. Tait, Chair, Discipline Committee<br />
What happens when a lawyer’s office is searched by law<br />
enforcements authorities as part of an investigation into<br />
alleged criminal conduct by the lawyer? How do the<br />
interests of the law enforcement authorities reconcile with<br />
the protection of solicitor-client privilege? Every member of<br />
the bar can learn from a recent situation in Ontario.<br />
Law enforcement authorities were executing a search<br />
warrant that had been issued for a lawyer’s office. The<br />
allegation was that the lawyer, who engaged in a criminal<br />
defence practice, was in possession of child pornography.<br />
As part of the search, eight computers belonging to the<br />
lawyer and located at his house and office were seized by<br />
police. The computers were sealed in a police storage locker<br />
“until ordered opened by a judge of the Superior Court of<br />
Justice.” The Law Society of Upper Canada (LSUC) was not<br />
contacted by law enforcement authorities about the search,<br />
and was not present when the lawyer’s office was searched.<br />
The LSUC became involved after the seizure of the<br />
computers. The LSUC was seeking to ensure that there was<br />
no possibility of breach of solicitor-client privilege. There<br />
was solicitor client information on at<br />
least one, and as many as all eight, of<br />
the computers.<br />
The Crown’s initial position was that there was no reason for<br />
the LSUC to be involved. An officer of the Ontario<br />
Provincial Police was prepared to provide the court with an<br />
undertaking setting out how solicitor-client privilege would<br />
be protected when the OPP reviewed the material found on<br />
the computers. As the lawyer was engaged in a criminal<br />
defence practice, having the OPP reviewing all the material<br />
of the lawyer’s computers created grave concern for LSUC.<br />
As well, the position which the OPP was going to take<br />
would also appear to conflict with the 2002 Supreme Court<br />
of Canada decision of Lavalée. There, the Court set out ten<br />
guidelines to instruct and inform those who were required to<br />
search law firms:<br />
1. No search warrant can be issued with regards to<br />
documents that are known to be protected by solicitorclient<br />
privilege.<br />
The Law Society of the NWT cordially invites all members to the Annual<br />
Court of Appeal<br />
Barbeque<br />
Tuesday, June 15, 2010 - 5:30pm<br />
The Yellowknife Racquet Club<br />
4002—49th Avenue<br />
Tickets: $25.00<br />
(includes a complimentary beverage)<br />
Tickets are limited and available until Friday, June 11. Special dietary<br />
requests will be accommodated if possible —please inform us in advance.<br />
Contact the Law Society for more information or to purchase your tickets.
MAY 2010 | 7<br />
2. Before searching a law office, the investigative<br />
authorities must satisfy the issuing justice that there<br />
exists no other reasonable alternative to the search.<br />
3. When allowing a law office to be searched, the issuing<br />
justice must be rigorously demanding so to afford<br />
maximum protection of solicitor-client confidentiality.<br />
4. Except when the warrant specifically authorizes the<br />
immediate examination, copying and seizure of an<br />
identified document, all documents in possession of a<br />
lawyer must be sealed before being examined or<br />
removed from the lawyer’s possession.<br />
5. Every effort must be made to contact the lawyer and the<br />
client at the time of the execution of the search warrant.<br />
Where the lawyer or the client cannot be contacted, a<br />
representative of the Bar should be allowed to oversee<br />
the sealing and seizure of documents.<br />
6. The investigative officer executing the warrant should<br />
report to the justice of the peace the efforts made to<br />
contact all potential privilege holders, who should then<br />
be given a reasonable opportunity to assert a claim of<br />
privilege and, if that claim is contested, to have the issue<br />
judicially decided.<br />
7. If notification of potential privilege holders is not<br />
possible, the lawyer who had custody of the documents<br />
seized, or another lawyer appointed either by the Law<br />
Society or by the court, should examine the documents<br />
to determine whether a claim of privilege should be<br />
asserted, and should be given a reasonable opportunity<br />
to do so.<br />
8. The Attorney General may make submissions on the<br />
issue of privilege, but should not be permitted to inspect<br />
the documents beforehand. The prosecuting authority<br />
can only inspect the documents if and when it is<br />
determined by a judge that the documents are not<br />
privileged.<br />
9. Where sealed documents are found not to be privileged,<br />
they may be used in the normal course of the<br />
investigation.<br />
10. Where documents are found to be privileged, they are to<br />
be returned immediately to the holder of the privilege,<br />
or to a person designated by the court.<br />
A series of protracted negotiations between the LSUC and<br />
the Crown ensured. In the end, the LSUC and the Crown<br />
agreed to a protocol, which was subsequently confirmed by<br />
court order. That protocol provided for:<br />
1. Appointment of a Referee by the Court<br />
2. Appointment of an Independent Computer Forensic<br />
Examiner (ICFE) by the Court<br />
3. Creation of all forensic images of the computer by the<br />
ICFE<br />
4. All searches of the computers for information relevant to<br />
investigation of child pornography conducted by the<br />
ICFE<br />
5. Costs of both paid by the Crown<br />
6. Seized computers moved to the custody of the Court<br />
Why am I telling you this?<br />
Remember, solicitor-client<br />
privilege is as close to absolute as possible, to maintain<br />
public confidence in lawyers and the legal system, and to<br />
retain its relevance. We all have a duty to maintain solicitor<br />
client privilege, at all costs.<br />
In the unhappy event that your law office is subject to a<br />
search under a search warrant, a production order, or a<br />
demand letter (for example from the Canada Revenue<br />
Agency), it is important that you take all possible steps to<br />
ensure that solicitor-client privilege is protected. Do not say<br />
or do anything which could be seen as a waiver of solicitorclient<br />
privilege.<br />
None of us expect that our offices will ever be searched.<br />
Spending a few moments thinking about the prospect now<br />
may be time well spent, in the unhappy event that the<br />
unexpected search occurs.<br />
Glenn Tait is Chair of the Discipline Committee and a Partner of<br />
McLennan Ross LLP, Yellowknife.
8 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
Mysterious Trust Fund Deposits<br />
WHAT SHOULD YOU DO IF FUNDS ARRIVE INTO YOUR TRUST ACCOUNT<br />
WITH NO EXPLANATION?<br />
By Deborah E. Gillis, QC, Risk and Practice Management Advisor<br />
A Halifax law firm called me last week regarding a<br />
significant deposit made electronically into its trust<br />
account the night before. The firm had received a call from<br />
a mortgage processing company saying that it had<br />
deposited the funds in error and asking that the firm write<br />
a cheque back to the company to remedy the error. The<br />
firm refused to do this.<br />
NEVER write a cheque back or otherwise automatically<br />
repay a company or individual who calls and tells you<br />
that they have deposited monies to your account in error.<br />
Rather, it is recommended that you immediately contact<br />
your bank and ask that it fully investigate the deposit and<br />
report to you on:<br />
who originated the deposit;<br />
how tile deposit was made;<br />
whether the funds came into your account on an<br />
irrevocable basis; and<br />
if the funds came into your account on a revocable<br />
basis when. if ever, the deposit is considered<br />
irrevocable,<br />
Follow up any verbal communication with a confirmatory<br />
letter summarizing your instructions, conversations and<br />
advice received from the bank.<br />
Any transfer into your account, other than a wire transfer<br />
sent via the LVTS (Large Value Transfer System –<br />
www.cdnpay.calfaqs/lvts.asp#1), is revocable and can be<br />
pulled back from your account. Not all electronic deposits<br />
are sent via the LVTS. For example, a bank-to-bank<br />
transfer (often referred to as a wire) is not normally sent<br />
via the LVTS and can be revoked.<br />
If funds have been deposited in error, it should be the<br />
sender who deals with the issue through his/her/its bank,<br />
with your bank, to remedy any problem.<br />
You do not want to be in the position of having funds<br />
withdrawn from your account and then finding out that<br />
the deposit was no good. You want to be clear with the<br />
bank that if it withdraws the funds from your account<br />
based on the deposit, it must be satisfied that the initial<br />
deposit was good. This risk and responsibility should be<br />
that of the bank, not you. Confirm your discussions with<br />
the bank in writing and ask that the bank confirms its<br />
advice to you in writing.<br />
Make sure the bank keeps you advised as the investigation<br />
progresses and writes a letter to you confirming what has<br />
happened. You should keep this letter with your trust<br />
account reconciliations and also notify the [Law Society of<br />
the Northwest Territories] of the incorrect deposit and<br />
how the bank dealt with it.<br />
From a risk management perspective, it is also extremely<br />
risky to allow clients to deposit cheques or drafts directly<br />
into your trust account, as you have no opportunity to<br />
assess the authenticity of that cheque or bank draft.<br />
I would appreciate hearing from any lawyers who may<br />
have had funds deposited directly into their account,<br />
without their knowledge or consent, and who may have<br />
been asked to directly reimburse the funds, I would like to<br />
monitor any trends that may be developing in this area.<br />
Deborah E. Gillis, Q.C., is the Risk and Practice Management (RPM)<br />
Advisor for the Lawyers’ Insurance Association of Nova Scotia. She writes<br />
and speaks regularly on various risk and practice management topics.<br />
This article was originally published in Nova Voce (LSNS, v.28,n.3, Spring<br />
2010)
MAY 2010 | 9<br />
What the Dickens?<br />
By Chief Judge Patrick Curran, Nova Scotia<br />
On August 12, 1900, my great-great-grandfather was killed<br />
by a passerby in front of his house on Queen Street in<br />
Halifax. Before the end of August there had been a police<br />
investigation, an inquest, a murder charge laid, a<br />
preliminary inquiry before a stipendiary magistrate and a<br />
manslaughter trial in the County Court, along with a great<br />
deal of family angst.<br />
A lifetime later, in Judge Martin Haley's court in Dartmouth<br />
in 1970, accused persons arraigned on Monday had their<br />
choice of trial dates on Tuesday, Wednesday, Thutsday or<br />
Friday - of the same week.<br />
Whatever else might be said about it, criminal justice in<br />
Nova Scotia before The Charter was certainly not delayed. It<br />
makes you wonder what "they" were worrying about when<br />
they adopted Section 11 (b): "Any person charged with an<br />
offence has the right ... to be tried within a reasonable<br />
time ..."<br />
In 1982, that was a solution in search of a problem.<br />
In 2010, we've found the problem, but we no longer seem to<br />
have an effective solution for it - in part because The Charter<br />
itself is a main cause.<br />
On average these days, no one gets into court the first time in<br />
the month during which they are charged. When they do<br />
finally reach the courthouse steps, they have little need to<br />
memorize their surroundings. They will use the same<br />
walkways, doors and hallways many more times before their<br />
cases are finished. Delays to get a lawyer. Interminable<br />
delays to get disclosure, review disclosure, obtain further<br />
disclosure of things referred to in, but inexplicably not<br />
included with, the earlier disclosure. When, out of<br />
exhaustion, the accused does enter a plea, that is only the<br />
end of the beginning.<br />
Trial backlogs force courts to schedule new trials for the 11th<br />
of Never. To a large extent, backlogs exist because of cases<br />
which will never go to trial. Prosecutors have not yet met the<br />
witnesses, some of whom saw little,<br />
recall less and have no intention of<br />
ever showing up. Defence counsel are "waiting to see the<br />
whites of their eyes" before giving their ultimate plea advice<br />
to clients, some of whom have no intention of ever showing<br />
up. Lawyers on both sides apply the "every dog is entitled to<br />
its first bite" rule and happily agree to their counterpart's<br />
initial adjournment request. Trial judges, with worried looks<br />
over their shoulders at appeal courts, hesitate to impose their<br />
will on consenting counsel. Everyone pretends not to know<br />
that countless trial spots will have become available before<br />
the newly scheduled case gets its day in court.<br />
As the old baseball manager Casey Stengel once said,<br />
"Doesn't anybody around here know how to play this<br />
game?"<br />
Jarndyce versus Jarndyce has come to a criminal court near<br />
you.<br />
The Hon. Patrick Curran is Chief Judge of the Nova Scotia Provincial<br />
Court. He was first appointed to the Provincial Court in August of 1981,<br />
then as Chief Judge in 2003. He earned his BA from Saint Mary’s<br />
University in 1965 and his B.Ed in 1966. He graduated from Dalhousie<br />
Law School in 1970 and was called to the Bar in that same year.<br />
WHAT’S NEW ON<br />
CBA PRACTICELINK<br />
Top 10 Ways Lawyers Win Referrals<br />
What In-House Counsel Really, Really Wants<br />
Law Firm Lessons of the Great Recession<br />
Find it all here:<br />
www.cba.org/PracticeLink
10 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
The New Rules of Pricing<br />
By Jordan Furlong, Law21.ca<br />
Recently, I’m told, several GCs and senior lawyers of large<br />
law firms gathered in London for a high-level conversation<br />
about new billing mechanisms. One noteworthy observation<br />
to emerge from the meeting was the law firms’ insistence<br />
that whatever new mechanism was developed, it had to take<br />
into account chargeable time invested in the work. I wasn’t<br />
there to see the clients’ reaction, but if a few eyes were<br />
rolled, it wouldn’t surprise me.<br />
Lawyers are going nowhere in this new marketplace unless<br />
they can lose this obsession with the effort-based valuation<br />
of work. At the heart of lawyers’ billable-hour infatuation,<br />
even beyond the attraction of low-risk pricing and the<br />
enablement of perfectionism, lies the basic belief that the<br />
harder you work, the more you should get paid. “It took me<br />
ten hours to do this, so I should be paid twice what another<br />
task took five hours to do.” The nature of the work, its<br />
relative simplicity or complexity, the knowledge resources it<br />
did or didn’t require, and the value or relative lack thereof to<br />
the client — all these variables are considered incidental to<br />
the effort exerted, the expenditure of the lawyer’s precious<br />
time, to accomplish the work.<br />
Very few marketplaces, however, base price directly on<br />
effort and time. Avatar cost 20 times what The Hurt Locker<br />
cost to make and took years longer to complete, yet my ticket<br />
to watch either Oscar contender costs the same. One real<br />
estate agent might make ten times more effort at finding the<br />
right buyers for a home than another, yet they both get the<br />
same commission upon sale. I can<br />
go to a global craft show and buy a<br />
beautiful hand-made shawl that an aged, arthritic,<br />
Guatemalan woman spent a painful three days to create for<br />
less than a family dinner at the local pizza joint will cost that<br />
same night. Price differences can emerge from expertise, or<br />
from quality, or from brand assurance, or from customer<br />
value — but they don’t emerge from how hard someone had<br />
to work to make something.<br />
Clients truly don’t care what it costs lawyers, in time and<br />
effort, to do their jobs. All they care about is the price, and<br />
the aptness of any price is ultimately judged by the<br />
purchaser against the value that the purchase delivers. Price<br />
is what the buyer will pay; cost is the resource drain on the<br />
seller to make the product or service. Lawyers conflate the<br />
two and base their price on their costs in time and effort.<br />
Clients are saying: your time and your effort are not relevant<br />
to the value of your service to me. What the current<br />
unprecedented drive towards fixed fees for legal work really<br />
signifies is a marketplace slowly but steadily shifting from<br />
supplier-based pricing to customer-based pricing.<br />
Lawyers are having a very difficult time with this, for three<br />
reasons. One, as stated, is the realization that their time and<br />
effort has little market value. A second is the subsequent<br />
realization that they now need to understand and control<br />
their own internal costs to a degree never before required,<br />
and at many law firms, that’s a nightmare scenario. But the<br />
News<br />
Events<br />
Publications<br />
Forms<br />
www.lawsociety.nt.ca<br />
It’s all online.
MAY 2010 | 11<br />
third reason is likely the hardest of all to accept, a<br />
traumatizing underlying premise to the whole conversation:<br />
the value of lawyers’ work isn’t really for lawyers to decide.<br />
Ultimately, the price of a lawyer’s services is not something a<br />
lawyer can control — and loss of control is not something<br />
most lawyers can abide.<br />
A lawyer without a client or a file has no marketplace value<br />
— that value exists only once the lawyer is engaged on a task<br />
brought forward by the client, delivered to the client and<br />
paid for by the client. Given that fact, it’s neither surprising<br />
nor unnatural that price should be determined by the client<br />
as well. A lawyer can exert a great deal of influence on her<br />
price if she possesses extraordinary skills or experiences, and<br />
perhaps if her talents are so scarce and in great demand, she<br />
really can name her price. But 98% of lawyers are not in this<br />
position. And the days when they can dictate their price<br />
unilaterally, and base that price on their level of exertion, are<br />
ending.<br />
That’s why the legal profession is struggling — it’s trying to<br />
come to grips with an entirely new pricing paradigm. It’s<br />
going to take a long time, and many lawyers won’t grasp the<br />
reality of the new environment until it’s too late. The longer<br />
a lawyer holds on to the idea that time and effort translates<br />
into value in the legal marketplace, the greater the chances<br />
that he or she will be one of them.<br />
Jordan Furlong is a partner with Edge International, a senior consultant<br />
with Stem Legal, and an award-winning blogger at Law21: Dispatches<br />
from a Legal Profession on the Brink (http://law21.ca), from which this<br />
article is reproduced.
12 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
Creating Value for Clients:<br />
Flat-fee Billing in Family Law<br />
By Lonny L. Balbi, Q.C.<br />
THE PROFESSION IS IN TROUBLE<br />
Clients often complain of legal bills because they are not sure<br />
of the amount, the timing, outcome or how a final price is<br />
achieved. Even knowing that lawyers charge based on time,<br />
the complaints often result in a feeling of being “nickel and<br />
dimed to death”.<br />
We share a mentality that, as lawyers, “we sell our time”. But<br />
clients are not buying time. They want their fears addressed,<br />
your experience and results.<br />
Lawyers have traditionally had a monopoly on the business of<br />
divorce. Our Law Societies protect us by saying that only<br />
lawyers are allowed to give legal advice. Anyone trying to do<br />
our job is either embarking in the unauthorized practice of<br />
law or is not serving the client properly.<br />
Competition is coming. There are already several<br />
organizations who guarantee clients a settlement within 120<br />
days for a fixed fee known to the client in advance. The<br />
lawyers are involved only at the end of the process to<br />
“complete the paperwork”. These types of businesses will<br />
flourish in the future.<br />
WHAT IT LOOKS LIKE TO THE CLIENT<br />
The client comes in to see the lawyer and the lawyer explains<br />
the law, the options for settlement, and gives advice to the<br />
client on how to resolve the matter. When it comes to setting<br />
the fee, the lawyer advises that it depends on many factors,<br />
including how long it will take, the reasonableness of the<br />
parties, the complexities of the issues and whether or not<br />
research may be required. The lawyer might tell the client that<br />
there is a “ball park” fee available, but it just depends on too<br />
many factors.<br />
The client is then asked to retain the lawyer, trusting that the<br />
lawyer will be honest and not bill too much. In essence, the<br />
lawyer is asking that a blank cheque be written by the client,<br />
and the lawyer will fill in the amount later. This does not<br />
sound like a very positive experience for any client.<br />
A NEW BUSINESS MODEL<br />
Most other businesses do not equate time with value. For<br />
example, Merv Griffin wrote the theme song for Jeopardy in<br />
about one minute. To this day, he receives $7 million dollars<br />
per year for that theme song. The value of his idea was not at<br />
all based on time.<br />
Another example can be found in the airline industry. The<br />
American airline industry was deregulated in 1978. The<br />
pricing became an extremely sophisticated process. It is<br />
always interesting to look at what each person pays on any<br />
particular flight. The cost to fly the plane from one point to<br />
another is the same. But most people pay a different price<br />
based on several factors.<br />
The airlines have learned that a major factor in determining<br />
price is to look at when the flight was booked. The closer that<br />
a flight is needed to departure, the less price sensitive the<br />
customer is and the more the airline can charge. Similarly,<br />
airlines understand that if someone else is paying for the<br />
flight, such as the company on a business flight, then there is<br />
less price sensitivity and a higher price is warranted. The<br />
customer paying for his own flight may be much more price<br />
sensitive and look for the best deals.<br />
Airlines have determined that why a person is travelling can<br />
affect pricing. For example, the mother of a family trying to<br />
book a vacation for five people may stay up all night looking<br />
on the internet for the best possible flight deals for booking.<br />
PRINCIPLES<br />
There are several principles that can be gleaned from looking<br />
at other businesses and how they have dealt with the pricing<br />
model:<br />
1. CUSTOMER HAS FIXED PRICE UP FRONT<br />
Most solid business models are not based on time. The risk<br />
was shifted from the customer to the business. In many cases,
MAY 2010 | 13<br />
the customer was willing to pay a premium for that shift.<br />
2. A SERVICE THAT IS NEEDED IS WORTH MORE THAN A SERVICE THAT<br />
IS DELIVERED<br />
Most lawyers understand this concept, but do not use it in<br />
practice. The more that a client needs the service you are<br />
willing to provide the more it is worth prior to the delivery of<br />
the service. Once the service has been delivered, that is when<br />
problems result in collection and complaints.<br />
3. FOCUS ON CUSTOMER, NOT COST TO PRODUCE<br />
The value equation to the customer is the most important<br />
aspect in pricing. The cost to produce the good or service is<br />
not important to the customer. Focus on the customer’s needs,<br />
wants and values in order to determine an appropriate price.<br />
include costs, security, fear, social status, speed and delivery<br />
etc. It is important to dig down and discover what the<br />
customer really wants in order to deliver the best value to that<br />
customer. Determine the value the customer is looking for,<br />
and then exceed those expectations.<br />
Family Lawyers actually have a large advantage in<br />
determining the client’s values. At the first interview, the<br />
lawyer tries to understand the client, focusing in on the fears,<br />
hopes, dreams and desires before setting a price.<br />
Lonny Balbi, QC, is a Family Law lawyer and founder of Balbi & Company<br />
Law Centre, in Calgary, Alberta. He has lectured extensively throughout<br />
North America on Flat-Fee Billing and creating value for clients.<br />
4. LOOK AT VALUE TO THE CUSTOMER<br />
Each customer has different value propositions. These may
14 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
NWT DECISION DIGEST<br />
COURT OF APPEAL<br />
Lafferty v. Tlicho Government<br />
2010 NWTCA 4<br />
The Honourable Mr. Justice Peter Costigan<br />
The Honourable Madam Justice Marina Paperny<br />
The Honourable Madam Justice Patricia<br />
Rowbotham<br />
Counsel for the Respondent (Appellant): R. S.<br />
Maurice<br />
Counsel for the Applicant (Respondent): A. Pape<br />
The Respondent applied to dismiss the<br />
appeal on the ground that it has become<br />
moot. The issue was the constitutional<br />
validity of the Future Chiefs Executive<br />
Council Meetings Law, 2007, relative to<br />
the Tlicho Constitution.<br />
Finding: Appeal dismissed. "The<br />
appeal is moot… As the impugned law<br />
has ceased to exist, there is no longer a<br />
live controversy between the<br />
parties…." (at para. 9) "Should a<br />
challenge to the constitutionality of<br />
some future law arise, that challenge<br />
will have to be considered on its own<br />
facts. Damage to reputation is<br />
irrelevant to the issues raised in this<br />
constitutional challenge. … there is no<br />
public interest to be served by hearing<br />
the appeal." (at para. 11)<br />
CASES CITED<br />
Lafferty v. Tlicho Government, 2009 NWTSC 35,<br />
[2009] 3 C.N.L.R. 141<br />
Borowski v. Canada (Attorney General), [1989] 1<br />
S.C.R. 342, 57 D.L.R. (4th) 231<br />
R. v. McPherson<br />
2010 NWTCA 3<br />
The Honourable Mr. Justice Peter Costigan<br />
The Honourable Madam Justice Marina Paperny<br />
The Honourable Madam Justice Patricia<br />
Rowbotham<br />
Counsel for the Applicant/Appellant: B. Latham<br />
Counsel for the Respondent: B. Nordin<br />
Applicant for a second appeal pursuant<br />
to s. 684 of the Criminal Code.<br />
Application denied. "In our view the<br />
applicant has not made a clear and<br />
compelling case that would justify the<br />
exercise of our discretion to re-open the<br />
appeal.<br />
Finality in this case is<br />
determinative. McPherson is seeking to<br />
take advantage of a clarification in the<br />
law that occurred five years after his<br />
designation as a dangerous offender<br />
and three years after the dismissal of his<br />
appeal." (at para. 7)<br />
CASES CITED<br />
R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357<br />
R. v. Francis, 2008 ABCA 407, 446 A.R. 200 at<br />
para. 23<br />
R. v. Hummel, 2003 YKCA 4, 174 C.C.C. (3d) 1<br />
R. v. Brown, [1993] 2 S.C.R. 918, 105 D.L.R. (4th)<br />
199<br />
R. v. Rhingo, [1997] O.J. No. 1110, 115 C.C.C. (3d)<br />
89<br />
R. v. Gargan<br />
2010 NWTCA 5<br />
Publication ban: no information may be<br />
published that may identify the complainant,<br />
and no information may be published on the<br />
contents of the application for the publication<br />
ban.<br />
The Honourable Madam Justice Carole Conrad<br />
The Honourable Mr. Justice Peter martin<br />
The Honourable Mr. Justice J. D. Bruce<br />
McDonald<br />
Appellant represented himself<br />
Counsel for the Respondent Crown: B. Nordin<br />
Application for counsel.<br />
Application<br />
granted: "… we are of the opinion that<br />
counsel should be appointed at this<br />
time for the limited purpose of<br />
reviewing the matter and reporting to<br />
The Canadian Legal Information Institute<br />
Making Canadian law accessible for<br />
free on the internet.<br />
www.canlii.org<br />
the court as to whether there is a viable<br />
ground of appeal."<br />
SUPREME COURT OF<br />
THE NORTHWEST<br />
TERRITORIES<br />
CIVIL<br />
Lawson v. Jackson<br />
2010 NWTSC 32<br />
Justice L .A. Charbonneau<br />
Counsel for the Applicant: K. Winton<br />
No one appeared for the Respondent<br />
Application to vary an Order of the<br />
Alberta Court of Queen's Bench made<br />
on September 20, 2001, for child<br />
support, retroactivity, and quantifying<br />
section 7 expenses so that NWT's MEP<br />
office could enforce. The only evidence<br />
of the Respondent's earnings is from a<br />
2005 T4. Despite an order to do so, the<br />
Respondent failed to produce proof of<br />
earnings.<br />
"His failure to disclose<br />
financial information is blameworthy<br />
conduct that militates in favour of a<br />
retroactive award." Decision: imputed<br />
annual income based on the T4, ordered<br />
payment of section 7 quantified<br />
expenses, and made both orders<br />
retroactive to January 1, 2006.<br />
CASES CITED<br />
D.B.S. v. S.R.G..; L.J.W. v. T.A.R.; Henry v. Henry;<br />
Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231<br />
MacGregor v. Munroe<br />
2010 NWTSC 30<br />
Justice V.A. Schuler<br />
Counsel for the Designated Authority: E.<br />
Delaney<br />
No one appeared for the Applicant<br />
The Respondent appeared on her own behalf<br />
Application pursuant to Part 3 of the<br />
Interjurisdictional Support Orders Act to<br />
lower child support from $700 per
MAY 2010 | 15<br />
month to $200 per month and to reduce<br />
to zero arrears of over $46,000, as of<br />
September, 2009. The Applicant resides<br />
in British Columbia; the Respondent<br />
and the child live in Yellowknife. The<br />
Respondent does not oppose some<br />
reduction in the amount of child<br />
support but opposes the reduction of<br />
the arrears.<br />
The Applicant did not explain why he<br />
left gainful employment in Yellowknife<br />
and did not explain the efforts made in<br />
recent years to obtain employment that<br />
would allow him to meet his child<br />
support obligations. He also failed to<br />
explain how he supported himself in<br />
the years where his declared income<br />
was in the range of $700 to $7,000 per<br />
year.<br />
Decision: child support lowered<br />
retroactively to (i) $385 per month for<br />
the period January 1, 1999 to April 30,<br />
2006 and (ii) $421.00 per month from<br />
May 1, 2006 and arrears recalculated<br />
accordingly. Also ordered the<br />
Applicant provide to the Respondent a<br />
copy of his filed income tax returns and<br />
any notices of assessment by July 1st of<br />
each year starting July 1, 2010 for the<br />
2009 taxation year.<br />
CASES CITED<br />
Saunders-Roberts v. Roberts (unreported)<br />
S.C.N.W.T. 6101-02603<br />
Haisman v. Haisman, [1004] A.J. No. 553 (C.A.)<br />
CRIMINAL<br />
R v. Paulette<br />
2010 NWTSC 31<br />
Ban on publication of the identity of the<br />
complainant/witness<br />
Counsel for the Crown: T. Nguyen<br />
Counsel for the Accused: N. Homberg<br />
The accused pled guilty to sexual<br />
assault, just before the scheduled jury<br />
(CONTINUED ON PAGE 16)<br />
NWT LEGISLATIVE NEWS<br />
by Mark Aitken, Director of Legislation Division, GNWT Justice<br />
NOTE: THE NWT LEGISLATIVE NEWS IS<br />
NOT A COMPREHENSIVE REPORT OF<br />
LEGISLATIVE ENACTMENTS. ONLY<br />
ITEMS CONSIDERED TO BE OF<br />
INTEREST TO THE BAR ARE LISTED.<br />
ELECTIONS AND PLEBISCITES<br />
ACT<br />
Bill 7, amending the Elections and<br />
Plebiscites Act, received Assent on May<br />
20, 2010. The amendments, which<br />
will be brought into force on order,<br />
implement recommendations of the<br />
Standing Committee on Rules and<br />
Procedures following upon its review<br />
of the Report of the Chief Electoral<br />
Officer on the Administration of the<br />
2007 General Election. Significant<br />
changes include expanding voting<br />
opportunities, restructuring offence<br />
provisions and providing that the<br />
Chief Electoral Officer may enter into<br />
compliance agreements with persons<br />
who have contravened the Act.<br />
MISCELLANEOUS STATUTE LAW<br />
AMENDMENT ACT, 2010<br />
Bill 3, entitled the Miscellaneous Statute<br />
Law Amendment Act, 2010, received<br />
Assent and came into force on May<br />
21, 2010. Schedule A corrects<br />
inconsistencies and errors and makes<br />
amendments of a minor, noncontroversial<br />
and<br />
uncomplicated<br />
nature in 39 statutes of the Northwest<br />
Territories. Schedule B provides for<br />
the repeal of provisions that have<br />
ceased to have effect in a further 31<br />
statutes.<br />
IT’S ALL ONLINE!<br />
Find Certified Bills, Consolidations of<br />
Acts, Regulations and Court Rules, and<br />
the Northwest Territories Gazette at the<br />
GNWT website:<br />
http://www.justice.gov.nt.ca/<br />
Legislation/SearchLeg&Reg.shtml<br />
PUBLIC HEALTH ACT<br />
The Reportable Disease Regulations were<br />
amended by regulations made on<br />
May 20, 2010 and registered as R-043-<br />
2010, to clarify that the Chief Public<br />
Health Officer (CPHO) may issue an<br />
order under section 25 of the Public<br />
Health Act requiring a person who has<br />
been exposed to an infectious<br />
reportable disease to adopt measures,<br />
which may include isolation, without<br />
the CPHO first being required to issue<br />
a similar direction under section 14 of<br />
the Reportable Disease Regulations.
16 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
(CONTINUED FROM PAGE 15)<br />
trial. Accused is 38 years of age, from<br />
Fort Resolution and Lutsel K'e. He had<br />
a high school education, and traditional<br />
and cultural knowledge and skills. He<br />
was employed for the past three to four<br />
years, and has three children, aged 1, 2<br />
and 4. He has extensive family support.<br />
The accused had a lengthy criminal<br />
record, including five previous<br />
convictions of violence. Aggravating<br />
factors - the complainant was under the<br />
age of 18, "… this was a brutal and<br />
egregious act of violence, a predatory<br />
offence, where the accused displayed<br />
total disregard for the personal and<br />
bodily integrity of [the] 16-year old<br />
[victim]." Mitigating factor - the guilty<br />
plea. Accused had served 10 1/2<br />
months on remand. Sentence: (joint<br />
submission by counsel): time served,<br />
probation of 3 years including no<br />
contact with any female under the age<br />
of 18 (except for his children) unless in<br />
the presence of a sober adult; not to<br />
possess or consume alcohol; firearms<br />
prohibition but authorization for a<br />
license to possess a firearm for<br />
sustenance hunting only; sex offender<br />
registration under the Sex Offender<br />
Information Registration Act for 20<br />
years; DNA order.<br />
CASES CITED<br />
R. v. Wust [no citation given]<br />
NOTICES<br />
The Supreme Court of the Northwest Territories<br />
Court of Appeal of the Northwest Territories<br />
SCHEDULING NOTICE<br />
TO MEMBERS OF THE BAR<br />
PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT<br />
GENERAL CRIMINAL LIST WILL BE CALLED ON:<br />
Thursday, September 2, 2010 at 14:00 hrs<br />
NOTE:<br />
AT YELLOWKNIFE NT<br />
IN COURTROOM #1<br />
1. All Counsel (Crown & Defence) with pending matters are to attend the<br />
Calling of the List, either personally or by agent.<br />
2. For those pending matters in which the Accused person has elected trial<br />
by Judge and Jury, counsel (both Crown & Defence) are to advise the<br />
presiding Judge at the time of, or prior to, the Calling of the List whether<br />
the matter will indeed be proceeding as a contested Jury Trial and, if so,<br />
the estimated duration of the Jury Trial.<br />
3. For those with Summary Conviction Appeals, please be reminded of<br />
Rule 117 of the Criminal Rules of the NWT.<br />
NOTICE TO MEMBERS OF THE BAR<br />
PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE<br />
GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON<br />
Thursday, September 2, 2010 at 15:00 hrs<br />
at Yellowknife NT<br />
IN COURTROOM #1<br />
for the Court of Appeal Assize commencing<br />
October 19, 2010<br />
COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING<br />
DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:<br />
CIVIL APPEALS and CRIMINAL APPEALS<br />
a) Appeal books must be filed not later than 12 weeks from the date on<br />
which the notice of appeal was filed.<br />
b) Appellant’s Factums must be filed within 60 days of filing of the appeal<br />
book or within 7 months of the notice of appeal whichever date is<br />
earliest.<br />
c) Respondent’s factum must be filed within 30 days of being served the<br />
appellant’s factum.<br />
d) Only those appeals that have been perfected as at September 2, 2010<br />
will be set for hearing at the October 19, 2010 assize.
MAY 2010 | 17<br />
S.C.C. UPDATE<br />
HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW<br />
WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF<br />
LAW YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH<br />
THE DATE THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU<br />
WANT TO TRACK AND CHECK OUT THE C.A. JUDGMENT.<br />
APPEAL JUDGMENTS<br />
ABORIGINAL & ENVIRONMENTAL<br />
LAW: FEDERAL & PROVINCIAL<br />
ASSESSMENTS<br />
Quebec (Attorney General) v. Moses<br />
(Que. C.A., April 24, 2008) (32693)<br />
2010 SCC 17 (LexUM) | May 14, 2010<br />
In the context of the Cree and Inuit<br />
communities having signed the James<br />
Bay and Northern Québec Agreement<br />
with the governments of Quebec and<br />
Canada in 1975, the S.C.C. held that if<br />
the mine project here is approved<br />
pursuant to the Agreement, the<br />
proponent may not proceed with the<br />
work without an authorization under<br />
s. 35(2) of the Fisheries Act, and that<br />
the issuance of any such authorization<br />
is to comply with the Canadian<br />
Environmental Assessment Act<br />
in<br />
accordance with its procedures, as<br />
well as the Crown's duty to consult<br />
with the Cree in relation to matters<br />
that may adversely affect their rights<br />
under the Agreement.<br />
ASSAULT CAUSING BODILY HARM<br />
R. v. Szczerbaniwicz<br />
(Court Martial Appeal Court, May 5, 2009)<br />
(33189)<br />
2010 SCC 15 (LexUM) | May 6, 2010<br />
A subjective belief about what force is<br />
required is relevant, but the subjective<br />
belief must be based on reasonable<br />
grounds, that is, it must be based on<br />
grounds that are objectively<br />
reasonable in the circumstances.<br />
CRIMINAL LAW: VETROVEC<br />
WARNINGS<br />
R. v. Hurley<br />
(Sask. C.A., August 5, 2009) (33301)<br />
2010 SCC 18 (LexUM) | May 14, 2010<br />
The trial judge below did not point<br />
out to the jury that they should be<br />
cautious with regard to the evidence<br />
of a particular witness because of his<br />
possible motive to lie in order to get<br />
some advantage for himself in his<br />
own legal troubles or to collect a<br />
reward. While it is debatable that this<br />
omission was sufficiently serious in<br />
the context of this particular trial as to<br />
require appellate intervention,<br />
because of new forensic testing and<br />
DNA analysis, a new trial was<br />
necessary.<br />
FREEDOM OF THE PRESS:<br />
CONFIDENTIAL SOURCES<br />
R. v. National Post<br />
(Ont. C.A., February 29, 2008) (32601)<br />
2010 SCC 16 (LexUM) | May 7, 2010<br />
While the courts should strive to<br />
uphold the special position of the<br />
media and protect the media's secret<br />
sources where such protection is in<br />
the public interest, this case here is not<br />
the usual one of journalists seeking to<br />
avoid testifying about their secret<br />
sources. This is a physical evidence<br />
case. It involves what is reasonably<br />
believed to be a forged document. The<br />
media claim to immunity from<br />
production of the physical evidence is<br />
not justified in the circumstances of<br />
this case, even if the end result proves<br />
to be information that may lead to the<br />
identification of the secret source(s).<br />
LEAVES TO APPEAL<br />
GRANTED<br />
NONE<br />
Eugene Meehan, Q.C., is a Litigation Partner<br />
at Lang Michener, Ottawa. His primary area<br />
of work is with the Supreme Court of Canada,<br />
mainly assisting other lawyers in taking cases<br />
(both Leave to Appeal and Appeal). He also<br />
does Public Law generally. For previous<br />
summaries, and to keep up-to-date with all<br />
SCC appeals and leave to appeals, contact<br />
Eugene at emeehan@langmichener.ca.<br />
Eugene Meehan, QC,<br />
returns to Yellowknife<br />
in September for an<br />
exciting lecture.<br />
Watch the Obiter and weekly<br />
bulletins for details.
18 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
UPCOMING EVENTS<br />
NOTE: REGISTRATION FEES MAY APPLY. SEE THE WEEKLY BULLETIN FOR EVENT DETAILS<br />
STAY CURRENT<br />
Find events on the Law Society website:<br />
www.lawsociety.nt.ca/membership/<br />
calendar.html<br />
REGISTER EARLY!<br />
Avoid hassles and secure your seat at any<br />
event by registering now. Registration<br />
information can be found in the Weekly<br />
Bulletin.<br />
THE EFFECTIVE USE OF PRIOR<br />
INCONSISTENT STATEMENTS<br />
FRIDAY, JUNE 4, 2010 - 12:00pm<br />
Champagne Room (Yellowknife)<br />
The successful use of a prior<br />
inconsistent statement can be a key<br />
aspect to your ultimate success at trial.<br />
Unfortunately, failure to correctly put<br />
a prior inconsistent statement to a<br />
witness can not only result in<br />
frustration, but a successful objection<br />
for your opponent and a potential gap<br />
in your overall trial strategy. Justice<br />
Charbonneau and Justice Schuler of<br />
Supreme Court of the NWT will<br />
present a lunch & learn CLE on the<br />
procedures related to the use of prior<br />
inconsistent statements in crossexamination<br />
of witnesses.<br />
ARMED CONFLICT: DETAINEES<br />
AND VICTIMS OF WAR<br />
TUESDAY, JUNE 8, 2010 - 12:00pm<br />
Champagne Room (Yellowknife)<br />
The evolution of law in international<br />
war has seen a increase in media<br />
attention, particularly with regard to<br />
prisoners and victims of war. In this<br />
special Lunch & Learn event,<br />
Lieutenant Colonel James MacMillan,<br />
D e p u t y J u d g e A d v o c a t e<br />
(Yellowknife), provides an overview<br />
of the law of armed conflict, including<br />
the foundations of the Geneva<br />
Convention and common media<br />
misunderstandings.<br />
A FAMILY LAW EVENING:<br />
SPOUSAL SUPPORT & THE<br />
MATRIMONIAL ASSESSMENT<br />
THURSDAY, JUNE 17, 2010 - 5:00pm<br />
Champagne Room (Yellowknife)<br />
Join Calgary-based Family Law<br />
Lawyer Lonny Balbi, QC, for this<br />
two-part evening event:<br />
1. Spousal support is one of the most<br />
complicated and conceptually difficult<br />
areas of the law. A careful reading of<br />
the Divorce Act does not clarify very<br />
much. Judges are left with so much<br />
discretion that case law is unhelpful to<br />
most practitioners. The Spousal<br />
Support Advisory Guidelines<br />
introduced a new way of thinking<br />
about spousal support. Learn how to<br />
argue the relevance (or the<br />
irrelevance) of the SSAGs and<br />
u nderstand how t hey were<br />
developed.<br />
2. Most Family Law lawyers are<br />
willing to give away the advice which<br />
is most crucial to clients. The first<br />
meeting a client has with a lawyer is<br />
probably the most important meeting<br />
that client will ever have with his or<br />
her counsel. There are some excellent<br />
strategies to provide Family Law<br />
clients with excellent value for that<br />
first meeting and, additionally, allow<br />
the lawyer to charge appropriately for<br />
it.<br />
ALTERNATIVE BILLING:<br />
REPLACING TIME WITH VALUE<br />
FRIDAY, JUNE 18, 2010 - 12:00pm<br />
Champagne Room (Yellowknife)<br />
The profession is in trouble! Clients<br />
are complaining that lawyers are<br />
simply too expensive. Very few<br />
people leave a lawyer's office feeling<br />
that it was a positive experience.<br />
Many of the negative feelings come<br />
from the way we charge.<br />
Charging by the hour is a concept that<br />
is old and fragile. Buying a car or<br />
booking a flight can cost the same as<br />
legal services, and yet the experience<br />
is completely different. Lawyers could<br />
do a much better job by learning how<br />
to charge a flat fee and provide better<br />
value to clients.<br />
MEETINGS<br />
CRIMINAL LAW SECTION<br />
JUNE 2, 2010 - 12:00pm<br />
Law Society Boardroom<br />
LEGAL ETHICS & PRACTICE<br />
COMMITTEE<br />
JUNE 9, 2010 - 12:00pm<br />
Law Society Boardroom<br />
WOMEN LAWYERS FORUM<br />
JUNE 15, 2010 - 12:00pm<br />
Law Society Boardroom<br />
CBA-NT ANNUAL SUMMER<br />
MEETING<br />
JUNE 2, 2010 - 12:00pm<br />
Law Society Boardroom
MAY 2010 | 19<br />
Dear CBA Members:<br />
It’s that time again. Time to relax and unwind with some good food and<br />
great company.<br />
The CBA-NT would like to invite ALL CBA MEMBERS AND THEIR<br />
FAMILIES to the:<br />
Annual Summer Barbeque Picnic<br />
Tuesday, June 29, at 5pm<br />
Fred Henne Territorial Park, Yellowknife.<br />
This year, we’re excited to welcome National<br />
President Kevin Carroll, QC, National Treasurer<br />
Annette Horst, and Alberta President Gillian<br />
Marriott, QC.<br />
Look for your invitation in your inbox.<br />
Be sure to RSVP before June 25.<br />
We look forward to seeing you and<br />
your family there!!<br />
Practice Advisors<br />
The Practice Advisors from the<br />
Law Society of Alberta are<br />
available to discuss legal, ethical and<br />
practice concerns, and personal matters<br />
such as stress and addiction. Members<br />
are invited to contact the Practice<br />
Advisors at any time:<br />
Ross McLeod (Edmonton)<br />
Tel:<br />
780-412-2301 or<br />
1-800-661-2135<br />
Fax: 780-424-1620<br />
ross.mcleod@lawsocietyalberta.com<br />
Nancy Carruthers (Calgary)<br />
Tel:<br />
403-229-4714 or<br />
1-866-440-4640<br />
Fax: 403-228-1728<br />
nancy.carruthers@lawsocietyalberta.com<br />
Mentor Program<br />
Members from Northwest Territories and<br />
Nunavut are invited to call the office of<br />
the Practice Advisor and ask for the<br />
Mentor Program. Please be advised that<br />
not all of the mentors may be totally<br />
familiar with NT statutes and practice.<br />
There is no cost.<br />
1-888-272-8839<br />
LAWYERS’ ASSISTANCE<br />
The Legal Profession Assistance<br />
Conference (LPAC) of the Canadian Bar<br />
Assocation is dedicated to helping lawyers, judges, law students<br />
and their families with personal, emotional, health and lifestyle<br />
issues through a network of Lawyer Assistance Programs, a<br />
national 24-hour helpline and Provincial Programs. If you need<br />
assistance, please call the helpline or visit their website.<br />
1-800-667-5722<br />
www.lpac.ca<br />
The Law Society of the NWT and the CBA-NT<br />
Branch have partnered with Human Solutions to<br />
offer members free, private and confidential professional<br />
counseling and consultation for the resolution of personal issues or<br />
work related difficulties.<br />
This service is available 24 hours a day, 7 days a week. Call any<br />
time.<br />
1-800-663-1142