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Justice minister mandated to review Ottawa’s litigation strategy

Lawyers hoping for changes to mandatory minimums, new positions on appeals
|Written By Neil Etienne

With this fall’s changing of the guard in Ottawa, lawyers are hoping for legal reforms with the new justice minister charged with reviewing the federal government’s litigation strategy.

The government needs to balance the costs of its appeals against the potential gains to society, says Sarah O’Connor.

Newly elected Prime Minister Justin Trudeau gave some hints during the election campaign that the Liberals would bring a different approach to legal matters. The first of the changes came on Nov. 16 when the government formally withdrew an appeal to the Supreme Court of Canada of a ruling dealing with its attempt to ban the niqab at citizenship ceremonies.

Just three days earlier, Trudeau sent mandate letters to each of the new ministers. In his letter to Justice Minister Jody Wilson-Raybould, the priorities include a review of the government’s litigation strategy.

“This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values,” wrote Trudeau.

Toronto lawyer Omar Ha-Redeye says Wilson-Raybould’s mandate to review the government’s litigation strategy is a big job for the rookie minister. He says the philosophical swing from a Conservative government led by a former Reform party MP to the new Liberal regime will likely bring significant change to Ottawa’s legal approach.

Ha-Redeye says that while the niqab debate was certainly a polarizing one during the election campaign, it was one that affected only a small portion of the population. He says its prominence in the election is most likely why the government dealt with it so quickly but he suggests there are far more significant areas for Wilson-Raybould to review.

“There are going to be substantive changes in terms of a new majority government coming into place. They announced that [nibaq decision] early on in this new administration because they wanted to signal very clearly the new type of approach they are going to be taking toward issues,” he says. “But in terms of the justice system, this has a fairly negligible impact and there’s much bigger issues at stake.”

Ha-Redeye says one issue the Canadian Bar Association and many lawyers are particularly keen on seeing action on is  the approach to mandatory minimum sentencing.

“Irrespective of political ideology, there has been widespread and near-unanimous opposition in the legal community against those measures,” he says, adding he expects the government to appeal some of the laws and withdraw from some of the litigation they’ve spawned.

“From a justice prospective, I think that is probably the most pressing issue and the cases that will have the greatest impact on the population.”

It’s an issue civil litigator Sarah O’Connor of O’Connor Richardson PC sees as a priority along with significant changes to Bill C-51.

In her view, the government needs to balance the costs of its appeals against the potential gains to society. She says the Conservative government’s appeal of the nibaq ruling was a good example of wasted funds on a case that had little chance of success and ultimately affected only a very small part of the population.

“[Government] appeals based on trying to draw political support or to fear monger do little good for the administration of justice,” she says.

O’Connor hopes the review includes a solid look at the former Conservative government’s 2014 attempt to appeal a B.C. ruling that would reinstate a program to guarantee lifelong disability payments for injured veterans.  

Hugh Scher of Scher Law PC expects the new government to approach the review from a philosophy of furthering rehabilitative policies and dispute resolution over adversarial stances. He also expects certain discretionary powers to swing back to judges.

“There will be certain cases around aboriginal rights where there’s ongoing appeals, particularly in regard to land claims or other aspects of aboriginal justice where I can see an attempt to move toward a more conciliatory and negotiated resolution process and to even put in place a form of dispute resolution that would otherwise take these matters out of the courts,” he says.

In the short term, Ha-Redeye says the government should focus on reviewing elements of Bill C-51, legislation he says is akin to “medieval” law.

“As unfortunate as they were, I don’t think the attacks in Paris should deter us from moving in this direction. We need to go back to being an open society,” he says.

“I don’t see how it’s a just approach and I think it’s contrary to public policy. Of course, it’s still an open debate and there’s a lot of discussion in the legal community as well as within the [Liberal] party about how much is going to be retracted.”

O’Connor says she, too, wants a thorough review of the bill but hopes the government is careful to also provide for greater oversight around refugee claims.

“It’s going to divide society if we don’t have proper background checks,” she says. “Parts of the bill are mind-boggling, but I think what’s happening [in Paris] is going to create some public fears they’re going to have to be very aware of and address through their reviews.”

In general, Ha-Redeye says there will likely be a significant philosophical change to the government’s approach to litigation matters. “It may not be evident to the public already, but we’re turning back toward an evidence-based justice system,” he says.

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