Transition period
LSBC vs. legal regulation reform (Round 1). Plus the SCC's latest decision about Crown appeals and this week's pressing legal news.
Dylan Gibbs
July 18, 2024
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“It’s just one of those weeks” I tell myself, having picked a career that does not seem to have the other type of week.
— Jacob Spiegel (@jacobroyspiegel)
12:45 AM • Mar 10, 2022
— Dylan Gibbs
TODAY'S DOCKET |
Challenging BC’s new legal regulator
The narrow scope of acquittal appeals
Saskatchewan’s garnishment settlement
Assaulting articling students
AI authorship
LEGAL PROFESSION
No injunction against BC’s new legal regulator
LSBC v BC, 2024 BCSC 1292
The Law Society of BC lost the first round of its challenge to the province’s new legal regulator yesterday. Justice Gropper of BC’s Supreme Court denied an injunction that would have halted the government’s reform efforts.
Catch up: The LSBC (and a few others) are beefing with the government over the Legal Professions Act, which consolidates provincial regulation of lawyers, notaries, and paralegals. The LSBC says the structure of the new regulator—a 17-member board with only nine lawyers—undermines the bar’s independence from government.
The LSBC also takes issue with the new regulator’s power to investigate lawyers’ mental health, impose practice conditions, and conduct warrantless searches.
Why no injunction? Justice Gropper’s main point was that it’s just too early. Most of the Legal Professions Act won’t take effect until after a transitional planning process. An interim board needs to appoint the CEO of the new regulator, develop the regulator’s first set of rules, and appoint a chair for the new disciplinary tribunal.
Legal regulation won’t change until the transitional process is complete—which will likely take 18–24 months. And the Court can probably decide LSBC’s constitutional challenge on the merits by then. So, the LSBC was asking for an interim suspension of legislation that is already suspended in the interim.
If the government starts the full-blown restructuring sooner than expected, the LSBC can reapply for an injunction.
The transitional provisions do not threaten the existence of the Law Society. Its participation in such a process is vital in order to protect the independence of the bar, and ensure that its initiatives concerning access to justice and reconciliation are considered in the transitional planning process…
I am not convinced that requiring the Law Society to participate in the transitional planning process creates any harm, and certainly not irreparable harm.
What’s next: The LSBC expects to argue its constitutional challenge in early 2025. But if past court battles over the legal profession’s independence are any indication, the case will likely make its way up the Supreme Court of Canada over several years.
HEARSAY ROUNDUP
Canadiana
💸Saskatchewan dodged garnishment. As neat as a multimillion-dollar intergovernmental asset seizure would have been, the federal government is no longer going after Saskatchewan to collect on its carbon tax debt. If you’re keen on the carbon tax fight, don’t worry—that’s still happening. The two governments just agreed not to fight about enforcement.
Saskatchewan still says it can exempt natural gas from the carbon tax because the federal government exempted home heating oil.
But the province gave a letter of credit—promising to pay up if the courts don’t agree.
🧑💻Companies can get sued for failing to safeguard against cyberattacks. The BC Court of Appeal said reckless data handling can be a “wilful” invasion of privacy, expanding liability under the province’s privacy legislation (and arguably in other jurisdictions with similar statutes).
[U]nless data collectors are motivated to protect [the information they collect], almost all informational privacy interests in the digital world could eventually be lost.
I have confidence in the ability of trial judges to determine claims against data custodians under the Privacy Act not by the standard of perfection but by what is reasonable in all the circumstances.
But you’ll get a different result in Ontario, where there’s no statutory breach of privacy tort.
The Ontario Court of Appeal is firmly of the view that the reckless storage of personal information cannot itself be an “intrusion upon seclusion” because it sees the “invasion” of privacy being limited to the action of the independent hacker who entered the database without permission.
I differ from the Ontario Court of Appeal’s view as to the interpretation of wilfully in the context of BC’s statutory privacy tort.
🤖AI authorship is headed to the Federal Court. An application challenging the copyright registration for an AI-generated image asks the Court to rule that copyright protection extends only to human-created works.
🦺Size matters—at least for occupational health and safety. The Ontario Court of Appeal upped a regulatory fine from $7,500 to $40,000 because lower courts treated a multi-location franchise operator like a mom-and-pop.
A 16-year-old high school student suffered a spinal injury while working at a summer job at a Dairy Queen restaurant... The injury occurred when the employee’s hair became entangled in the rotating spindle of the restaurant’s Blizzard machine.
[I]n order to achieve specific and general deterrence, the amount of a fine imposed on a corporate defendant must be sufficient that the fine will be “felt” by the corporation and not merely a “slap on the wrist”.
[Sentencing judges usually need to consider] the corporation as a whole, not just the location where the offence occurred.
The corporate respondent operates seven Dairy Queen stores employing a total of 84 full-time equivalents.
[A] fine of $40,000 is appropriate in the circumstances…
SCC
Chokehold danger is for trial judges, not appeal courts
R. v. Hodgson, 2024 SCC 25
If your practice involves chokeholds or criminal appeals, the Supreme Court’s latest decision is a good one to have on hand.
What happened: Daniel Hodgson removed an unruly guest from a party using a chokehold. The chokehold didn’t last long, but the party-goer, Bradley Winsor, died from his injuries. Police charged Hodgson with second-degree murder.
The trial judge accepted Hodgson’s evidence and acquitted him.
Hodgson wasn’t guilty of murder, because he used the chokehold to calm Winsor down and didn’t think it was dangerous.
And he wasn’t guilty of manslaughter, because he may have been acting in self-defence.
But the Nunavut Court of Appeal took issue with both of those conclusions.
According to the Court of Appeal, the trial judge should have mentioned the inherent danger of choking someone to the point of unconsciousness. And she should have considered whether a reasonable person would have used a chokehold to defend themselves—instead of focusing on Hodgson’s subjective beliefs.
At the SCC: The Court restored the trial verdict. The Court’s reasons stress the narrow scope of Crown appeals.
The Crown can only challenge an acquittal if there’s a legal error.
The limit comes from the Criminal Code. But the point is to prevent double jeopardy—allowing fact-based appeals would effectively let the Crown retry an accused for the same offence.
That might seem strict, but it’s actually pretty generous. Many jurisdictions don’t let prosecutors appeal acquittals at all.
The limit in action: The Supreme Court said the Court of Appeal overstepped. Instead of identifying a legal error, the Court of Appeal interfered with fact-based conclusions about Hodgson’s use of a chokehold.
Appeal courts need to be “vigilant” about the limits on Crown appeals by precisely articulating errors of law before overturning an acquittal. The Court of Appeal didn’t do that.
And there’s no legal rule about the danger of chokeholds, so the Court of Appeal couldn’t have reached a purely legal determination without calling the trial judge’s fact-finding into question.
[There is no] general legal proposition that a chokehold is always an inherently dangerous act.
The dangerousness of a chokehold can vary based on factors such as its nature, force and length. [E]ach case must be assessed on its own facts.
The trial judge had the benefit of Mr. Hodgson’s testimony that he did not think the chokehold was dangerous and that he did not intend to kill or harm Mr. Winsor. [T]here was no need for her to consider the common sense inference [that choking someone to the point of unconsciousness intentionally causes bodily harm where the natural consequence is death].
THINGS NOT TO DO
Don’t assault your articling student. The Manitoba Law Society went along with a jointly recommended 6-month suspension for David H. Davis, who sucker punched his student in the groin. On top of the suspension, Davis is banned from supervising articling students for the next two years.
Given that Davis has a disciplinary record that includes sexually harassing a client, some find the penalty lenient.
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