11 April 2014

ANIMAL LAW 101 PART III: CONTRACT DISPUTES CONCERNING PETS

Yes, you can indeed adopt a recuse pot belly pig from the SPCA,
but such an adoption still involves contract law. This is Ophelia. 
One of our core courses in first year law school was contract law, because making, breaking and enforcing agreements is at the heart of what makes our economy tick. Animals are as much implicated in contract law as they are in any core area of law, even when they are being “adopted” rather than being bought and sold. There are principally two types of contracts to know about where animals are concerned: (1) contracts for purchase, sale or lease of the animal itself that involve a full or limited transfer of property rights, and (2) contracts for services or goods concerning the care or use of the animal. It helps to understand some of the basics of contract law in order to understand your rights in making, breaking and enforcing animal contracts. 

For the first type of contract involving full or partial ownership transfer, you need to understand that animals are fundamentally moveable property, subject to the same rules as other moveable property (sometimes called chattels) like furniture. A lot of us think of our pets as a lot more than property, and indeed animal cruelty and protection laws increasingly require that those looking after animals meet particular standards of care, but fundamentally every animal can be bought, sold or leased like other moveable property unless some law prevents such a transaction. There are lots of special rules governing contracts for the buying and selling of immoveable property (real estate) in order to make sure that everyone understands who owns what piece of land. But moveable property buying, selling and leasing terms are mostly left up to those concluding the contract — so watch our for what you are agreeing to when you are thinking about any kind of animal transaction.

Contract Principle #1 - MAKING THE CONTRACT: You need an offer, acceptance of the offer, and consideration in order to achieve a binding contract. The way this would work in animal terms could be:

BUYER: “I will buy your Norwegian Fjord horse team from you (the offer) for $4000 (the consideration from the buyer).”
SELLER: “I will sell you my Norwegian Fjord horse team (the consideration from the seller), for your offered price of $4000 (the accepted offer).” 

This may seem simple, but the contract making process can bring lots of grief to both buyer and seller if there is no real meeting of minds on what is being exchanged, an offer expires before acceptance, or what is thought to be acceptance is really a new counter offer (because a new condition has been added). 

Contract Principle #2 - CAN IT BE A WRITTEN OR ORAL CONTRACT?: An oral contract is fully enforceable, but can be difficult to prove without witnesses, and may lead to misunderstandings. Notwithstanding that I’m a lawyer who earns my living by drawing up written contracts for people, I can tell you there’s nothing wrong with the “handshake deal” for most moveable property so long as you cover off the basic requirements for a contract. Probably writing down the basic provisions of the offer, acceptance and consideration, dating the document, and then having the parties sign the document, would be a better practice to avoid future misunderstandings

Contract Principle #3 - ALL ANIMAL EXCHANGES ARE SUBJECT TO CONTRACT LAW: Even a rescue animal adoption is subject to contract law principles. If the rescue animal you welcome into your home just shows up on your front porch, with a pathetic mewing sound, contract law isn’t engaged so long as it is clear the animal doesn’t belong to anyone else. But if someone “gives” it to you, or you get it from a shelter, contract law is working its magic, even if you don’t see that magic. Someone giving you the animal likely has acquired some property rights in it, which they will be transferring to you.

The reason to be aware of contract law principles even when a "free" animal is involved is for situations involving questions like what if the people giving you the animal decide they want it back? What if they decide later that they want to be paid for it? What if they decide later that you aren’t a fit animal adopter, and they demand that you turn the animal over to an animal shelter? What are your rights in such cases? What if you are the person making the demands — can you do that to the person to whom you’ve given the animal? The answers lies in the terms of the contract for the transfer of animal ownership. 

If the transfer was made with no conditions attached to it, you’re probably in the clear. However, if you only have an oral contract for transferring ownership, and the other party claims there were conditions, you might be put in the unenviable position of proving there weren’t conditions. Sure, if the matter went to court the burden of proof would rest on the party claiming there were conditions, but what would happen if that party produced two witnesses to claim there were conditions, and you had no witnesses? A simple (even handwritten) transfer on paper (even by e-mail) without conditions would be your best defence to future claims of breach of contract. 

If there were conditions attached to the transfer, and you agreed to them (usually by signing a contract), you’re probably stuck with the conditions, unless you can demonstrate that they are “unconscionable.” That term doesn’t mean that you simply don’t like them. Or regret to agreeing to them. Or that most people wouldn’t have agreed. It comes down to something incredibly oppressive, and even then a court might uphold the terms if you voluntarily agreed, and it was clear enough what you were agreeing to. If, however, the wording of the contract is unclear, then that is a completely different situation where some legal advice might help discover what the reasonable interpretation of the contract should be. 

Contract Principle #4 - BUYING A PIG IN A POKE MUST STILL LEAD TO A PIG: Commercial animal sales or leases are also subject to basic contract principles, including fitness for purpose. This means that if you are purchasing a dairy cow where all parties understand the purpose of the cow will be to produce milk, and that cow fails to produce milk, or you are purchasing what is claimed to be a fully trained horse suitable for riding, and in fact the horse is far too wild for anyone to ride, then your vendor has breached the contract by not providing the thing sold. It would be insufficient for a vendor to claim that the contact was only for a living cow, or a living horse, if in fact the contract (and the higher amount of consideration paid) was for an animal for a specific purpose. 

Contract Principle #5 - ALL CONTRACT BREACHES ARE FROWNED UPON: Just because you believe the other party has breached its side of the contract doesn’t necessarily give you the right to breach your side of the deal. So if you’ve contracted to acquire an animal within the next week, and the animal is in fact delivered in two weeks, you can’t refuse to take the animal and honour your side of the deal, unless it was made very clear in the original contract that the contract would be terminated if the animal could not be delivered within a week. You might be entitled to some modest damages, but not to just walk away from the contract. 

Contract Principle #6 - CAREFULLY CONSIDER REMEDIES FOR BREACH: The best contracts stipulate the remedies for breach right in the contract terms, like a return of the animal or a refund of the purchase price Some animal contract disputes will wind up in small claims court, depending on the amount of damages sought. But be aware that small claims courts usually can only award damages, and not force the transfer of an animal from one person to another person. Such a transfer will usually require the intervention of the superior court of justice, which can become a quite expensive proposition. 

Family law issues can become intertwined with contract law remedies involving animals where a domestic contract (sometimes called a prenuptual agreement) stipulates what happens to family animals upon the break down of a relationship, but one or both parties aren't happy with the contractual outcome, and thus wind up seeking resolution from a superior court. 

Contract Principle #7 — CONTRACTS FOR SERVICES OR GOODS INVOLVING ANIMALS SHOULD BE SPECIFIC: If you are contracting for something that is not unique, you may need more details in the contract specifying the precise details of the thing that is the subject of the contract. Thus while a contract for transfer of ownership of a particular animal may be sufficient by naming the animal (and its purpose, if any), a contract for “dog walking” will likely need to be quite particular as to how many dog walks are being purchased, when those walks will take place, the locations of the walks, and any other details that are important to one or both of the contracting parties in order to develop and maintain a mutually harmonious contractual relationship. 

In the end, contract law is all about fostering harmonious human relationships, based on people keeping their word to each other, and giving them places to go in the form of the courts to obtain fair resolution to disputes, rather than having to take the law into their own hands. 


24 February 2014

MUST I GIVE OUT MY SOCIAL INSURANCE NUMBER (SIN) TO A PRIVATE BUSINESS?

Canada's Just Retired Privacy Commissioner, Jennifer Stoddart.
Photo Credit: Office of the Privacy Commissioner of Canada. 
Social Insurance Numbers (SINs) used to be tossed around like middle names. Everyone had one, and although you had to ask people in order to find out what their number was, no one really thought much about sharing them. In fact, in a lot of places they were even used an an identification number. When I was in the Canadian Forces, we had to write our SINs on the top right corner of all of our tests - it seems the military had thrown out the "serial number" and replaced it with what something it thought was more efficient. How times have now changed.

Every Canadian's SIN is part of his or her core biographical data. Someone who already has your name, date of birth and address might only need your SIN to get up to all sorts of mischief on the identity theft front. The Office of the Privacy Commissioner of Canada goes to so as to suggest that you never provide your SIN to a private sector organization, unless it is required by law to collect it. And there's only one reason it legally needs it: income reporting, such as when you open an interest bearing bank account.

It's actually contrary to Canadian law for a private business to demand your SIN as a condition of providing you service, unless it is collecting the number for income reporting purposes. Certainly some parts of the private sector like collecting SINs as part of personal identification and to increase credit score searching accuracy, but they CANNOT demand your SIN, unless it is for income reporting.

So the next time someone demands your SIN, ask: why? If the answer isn't income reporting, then just politely decline. If you are then told you won't be provided with the service unless your provide your SIN, call their bluff. Tell them they will be violating Canadian law (the Personal Information Protection and Electronic Documents Act - PIPEDA) if that is the sole reason you won't be provided service.

I know it isn't easy to hang tough on an issue like this. I had to recently call the bluff of a large company on this very issue. First, they claimed I had to provide my SIN to get service. I said "no" and told them that they would be violating Canadian law to refuse. They then came back, and demanded two years of audited financial statements (something even more personal, and costing big bucks) as an alternative to providing my SIN. I again said "no" and insisted that such a demand was likewise contrary to Canadian law, because it was effectively a denial of service. Two weeks later they caved: no SIN, no audited financial statements, just my signature at the bottom of a form agreeing to a credit check. But hey, even me, the privacy lawyer, felt the pressure. So you'll need especially steely resolve to resist simply caving on the SIN front.

Service Canada has put together a useful FAQ on the topic at the following page: http://www.servicecanada.gc.ca/eng/about/reports/sin/cop/section4.shtml

02 January 2014

WHY A REAL ESTATE TRANSACTION IS THE SECOND BEST BARGAIN YOU'LL EVER RECEIVE IN LEGAL SERVICES

If you read my last post on wills being the best bargain you'll ever receive in legal services, you might be wondering why I rank real estate transaction as the second best bargain - instead of perhaps the first best bargain. There are a few reasons.

First, you don't have a choice in Ontario (where I mostly practice) over using a lawyer for a real estate transaction. Other places you can use non-lawyers to close a transaction, but not in Ontario. By comparison, for wills DIY is an option (though not a very good one). 

Second, real estate transaction legal fees will often cost more than wills in absolute terms. Still not much, but more. However, strangely enough people don't seem to complain about real estate transaction legal fees. Perhaps because they are buying or selling a very expensive thing, because real estate agent commission fees will be many times greater than the lawyer's fees, or because they may be making a tidy profit off the real estate sale (if selling) or getting their dream home (if buying), and thus relatively modest legal fees don't seem to them to be a big deal. 

Third, but real estate transactions remain a great bargain in legal services. In fact, real estate lawyer fees haven't gone up in decades! We're not just talking about fees adjusted for inflation, we're talking about real dollars fees. The $1000 transaction fee in 1971 is still the $1000 transaction fee in 2013. Amazing, isn't it. Whereas other legal fees have risen significantly, for various reasons real estate transaction legal fees have not. Notwithstanding house prices have increased many times over. 

It's beyond the scope of this post to explain why these fees haven't gone up, just enjoy the fact that they haven't. And that there isn't any risk of them rising appreciably for the foreseeable future. 

But just like when shopping for a lawyer to do your will, shopping for a real estate lawyer should not generally be a cheapest is best exercise. Lots can go wrong in a real estate transaction. Quite a bit of personal care and attention is required on a lawyer's part to make sure a transaction closing goes smoothly. If you simply go with whomever is cheapest, you stand a good chance of not getting much attention from the lawyer, not because the lawyer is a "bad" lawyer, but rather because with prices that low s/he simply can't afford to give much time to clients when overheads are so high.

Even for those of you reading this post who aren't in Ontario, you should still seriously consider using a lawyer for your real estate transaction. Sure, the advent of "title insurance" has meant that a number of the inquiries lawyers used to routinely make are no longer absolutely necessary, but we all know that insurance coverage often doesn't turn out to be as good or as comprehensive as we initially had hoped it would be. Better to prevent problems in advance through a lawyer conducting diligent inquiries, rather than having to fall back on insurance to compensate you (but not fix the underlying problems) later.

With fees so low, why does any lawyer even bother anymore practicing real estate law? I'll give you perhaps a surprisingly idealistic answer to this one: because many of us believe it to be an important public service. Plus many of us enjoy the client interaction in an area of "happy law" where both buyer and seller are excited by the prospect of the life-changing potential that a real estate sale or purchase brings with it. For many clients, a real estate transaction may be the only involvement they ever have with a lawyer (should they ignore my last blog post, and not consult a lawyer for a will). Sure, the legal fees earned from real estate transactions can also help pay the bills in a law office, but people need to realize what a great bargain real estate legal services are compared to the amount of legal work involved in closing a real estate transaction. 


The purpose of post this isn't to somehow invoke your pity for the poor, overworked, underpaid real estate lawyer. Lawyers are grown up guys and gals who are old enough to make the decision to get out of real estate law if they decide the work isn't worth the earnings. Law is both a business and a profession, and needs to be practiced as such. Clients do us a great favour in trusting us with their legal work, and not the other way around. But a public who increasingly hears horror stories of astronomical legal fees often driven by apocalyptic litigation strategies (like in commercial or family court), needs to realize that there are legal bargains still out there where everyone can feel good at the end of the day that they were able to afford professional legal services at a very reasonable cost, which made their lives better. 

26 December 2013

WHY A WILL IS THE BEST BARGAIN YOU'LL EVER RECEIVE IN LEGAL SERVICES

One of the understandable realities of private legal practice is clients wanting to know how much a legal service is going to cost. Unlike buying a television, usually clients don't ask "how much?" so that they can shop around for the best price, because no two lawyers or the services they provide are exactly alike. Rather, clients seem to ask about price to see if they can afford the service, or to determine if hiring a lawyer to do the work is worth it to them, instead of trying to do the work themselves, or not seeking a legal solution at all to their problem. 

From what I hear, rather than focusing primarily on price, picking a lawyer will often involve people coming up with answers to questions like: (1) who do I trust?; (2) who do I think is most skilled and experienced?; (3) who responds best to my needs, like quickly replying to my questions or at least returning my phone calls or e-mails?; and (4) who is most convenient, either because the lawyer offers services through the Internet so that geographic location isn't a factor, or because the lawyer happens to be physically located close to where I live or work? 

Picking a lawyer solely on price may be false economy. If you're retaining a lawyer on an hourly basis, hiring one who charges 30% less per hour, but ultimately bills you 50% more time, will cost you more in the long run. 

Likewise, if you're hiring a lawyer based on a block/fixed fee, which is common in many solicitor matters like the preparation of wills or the conduct of real estate transactions, picking based on price (with a preference for low over high) might mean that you have little personal contact with the actual lawyer because s/he simply can't afford to give you a lot of face time due to the very low fees which mean that in order to pay for a high overhead and still turn a slight profit, a very large amount of business needs to run through the practice that inevitably will be mostly handled by non-lawyers under the overall supervision of the lawyer. 

I've been fortunate that people never decide not to hire me because of fees (hopefully because they value my experience and responsiveness to their needs), except in one area of law: wills. I often conduct litigation on behalf of clients where the bills can unfortunately mount up because of the multiple court appearances and painstaking drafting of voluminous submissions that can be required in court actions, but those clients seem very satisfied with the value for money that they receive. Perhaps because I stay engaged with them to keep them informed of court progress, and collaborate with them on overall strategy. 

However, when it comes to wills, I've found people occasionally choke on cost. It doesn't happen that often, but it does happen. The unfortunate part of the price aversion is that wills are likely the best value and often the least expensive of the legal services that I offer. 

I sometimes counsel prospective clients not to hire me for litigation, even though that's how I mostly earn my living, because the amount in dispute is so small that my fees could exceed their potential exposure to liability. I believe I have a public duty not to profit from people's desperation when being dragged into court, and only take on cases when it seems I can provide value to clients that outweighs the legal risks they are exposed to. 

But going to a lawyer for a will is going to always pay off in the long run. The risks of not seeing a lawyer for your will include hundreds of thousands and sometimes even millions of dollars not going where you intended it to go after your passing. Relatives could fall to infighting over your assets. The government could wade in to impose heavy taxes and fees. Everything could get tied up in court for years. 

I haven't conducted any kind of survey to determine what people expect to pay for a will. But in my personal opinion (not speaking as a lawyer, but as a person who needs a will himself), a lawyer doing your will is probably the best bargain you will get in the legal services world. While the price of a will can vary depending on its complexity, they start at just a few hundred dollars. And that's not just my fees, but many lawyers' fees. Adding in powers of attorney for property and personal care will only slightly raise the price, and there is usually a significant discount for two spouses who have wills done at the same time (in Ontario, spouses always need separate wills). 

To be frank (and I try to be as frank and open as possible with my clients and on this blog), I too prior to becoming a lawyer used to think wills were super simple things that one could whip up all by yourself on a Saturday afternoon when watching a football game on television. But then in law school I started to read about all the will disasters when things hadn't been executed properly, or important clauses had been forgotten, or unhappy relatives whom had been intentionally forgotten decided to initiate decades-long court battles worthy of a Dickens novel to overturn a will that they perceived as unjust. 

Then, when I started drafting up wills in private practice, and reviewed voluminous legal texts on just how I was supposed to do that, I increasingly appreciated all the skill and care that need to go into a properly drafted will or power of attorney. The lawyer needs to learn about and understand your life. That can't happen in a ten minute meeting that is mostly comprised of the phrase: "sign here." Often more than one lawyer-client meeting will be required, the lawyer may need to carefully review a several of your financial documents, and some legal research could even be justified to ensure you get the will you deserve, that is ideally custom-crafted to your own personal circumstances. Not just to the circumstances of some "fill in the blanks" "model client" who doesn't really exist. 

We all know there is an increasing litigiousness in our society. We also know that we are all passing away richer than ever. Now, if you own a home without a mortgage (or at least plan to be mortgage free in the future), you will be passing away rich by historic standards. Now, more than ever, it's vital that your assets go where you want them to go. Plus, with fewer and fewer people getting legally married, common law spouses will not necessarily have the same rights to assets/insurance/pensions of a deceased as would a legally married spouse. 

So see a lawyer about your will. And don't be put off by the cost. It'll be the best bargain you'll ever receive in legal services! Trust me. I'm a lawyer. 


18 November 2013

What's the Difference Between A Barrister and a Solicitor? Inquiring Minds Want to Know!

Barrister in Traditional Court Attire (Canada has now dispensed with wigs)
Photo credit: Wikipedia

I'm frequently asked the question: "what's the difference between a Barrister and a Solicitor?" It's definitely a good question, since Canada is one of the only places in the world to still commonly use both terms, but not pigeon hole lawyers into one class or another. 

In the United States (and a great deal of the rest of the world) there are only "lawyers," who are occasionally known by different names, like counsellors (a term we don't use in Canada, though we do use "legal counsel" or "Crown counsel").

The U.S. also likes the term "attorney." Canada has attorneys too, but they generally aren't lawyers. Rather, attorneys in Canada are people acting with "power of attorney" for someone else. Which is really where the U.S. term comes from, although technically the term in the U.S. should always be "attorney-at-law" to distinguish lawyer-attorneys from other kinds of attorneys. However, strangely enough in Canada we still like the terms Crown Attorney and Assistant Crown Attorney for our provincial prosecutors, though not for federal prosecutors who (I practiced as one for many years) tend to use the term counsel (or senior counsel or general counsel) to refer to themselves. 

And to additionally add to the confusion, lawyers in Quebec who advertise in English tend to translate the French term Avocat as "Attorney," rather than as lawyer, or barrister, or solicitor. 

More confused now than when you started reading this post? Well, let me sort things out for you then. 

In England and Wales, where most of the legal traditions in both Canada and the United States (and a whole lot of the rest of the world) originated, there has been for centuries a distinction between Barristers who go to court, and Solicitors who don't go to court but rather draft/register documents for clients and retain Barristers on behalf of their clients to argue cases in court. 

It can take English and Welch Barristers many years of additional training to qualify in their profession than it does for Solicitors to qualify in England and Wales. It's true that being a Barrister may seem more glamorous to some than the life of a Solicitor, but reality often doesn't match fantasy since Barristers there depend on Solicitors to pay them for their services, whereas in Canada Barristers like me can be retained directly by clients. 

In North America that traditional distinction between Barristers and Solicitors never really took hold, perhaps due to a shortage of Barristers, and perhaps due to the great geography involved where small town Solicitors would have had to have continually called on big city Barristers to travel out at great expense to argue local small town cases. 

The one place in Canada that a formal Barrister-Solicitor distinction seems to live on is Quebec, which has Avocats and Notaires, however the distinction is not directly analogous to the one in the U.K. Quebec's civil law traditions originally imported from France should have included Avocats (effectively Barristers arguing cases in court) and Avoués (effectively Solicitors), however Quebec like the rest of Canada wound up with fused professions of both Barristers and Solicitors simply being referred to as Avocats, some of whom go to court, and some of whom handle out of court matters. 

However, Quebec also has the separate profession of Notaires (Notaries) who are capable of drawing up and registering notarial acts, and effectively handle quite a bit of the work that Solicitors handle outside of Quebec. Both Avocats and Notaires go to the same law schools in Quebec (I had a number of students in my class at McGill who chose to become Notaires), but then do different bar schools and write different qualification exams. You'll have to trust me that there are good reasons why everyone doesn't just want to be an Avocat. 

The powers and training of Quebec Notaries should not be confused with those of Notaries in the other provinces of Canada. Notaries outside of Quebec possess very limited powers mostly concerned with certifying particular types of documents and don't need to be lawyers . Their role is similar to (though not identical to) Commissioners of Oaths. Thus on my bilingual business card in Ontario, on one side it reads Barrister & Solicitor, but on the other side it simply reads Avocat since the French translation of Solicitor is still Avocat.

Whether lawyers outside Quebec use the term Barrister, or Solicitor, or both terms, is largely a matter of personal preference and practice focus. Some lawyers who only go to court (doing either civil or criminal cases) will simply put the term Barrister on their letterhead. They're trying to send a message that court is the only thing they do. Other lawyers (even the ones who mostly go to court, like me), will put both Barrister & Solicitor on their business cards, to let the public know that we have both kinds of qualifications (even though in truth there is only one qualifying process), and to also convey that we from time to time do out of court work like drafting documents for clients. 


In Canada, Solicitor is also often used as a synonym for counsel or lawyer, but never for Barrister. As in, we speak of the "Solicitor of Record" in a court case (even though he is really practicing as a Barrister) and in Ontario lawyers are governed by the Solicitors' Act (but not by the Barristers' Act, which is almost entirely devoted to who get to speak first in court - seriously). Unlike in England, I've never heard anyone in Canada say (like in Coronation Street): "after I have a pint at the pub, I'm popping around to see my Solicitor." Rather, we always go to see a Lawyer. 

Now, I know by this point you may be sorry about ever having thought of asking a loquacious lawyer like myself the difference between a Barrister & Solicitor. But hopefully now you'll understand a bit of why the answer lies in a mix of history, politics, and simply how professional folks like to present themselves to the world.



19 September 2013

What's Solicitor-Client Privilege, and Can I Use it to Protect My Documents or What I Tell Other People?


There are lots of legal information privileges out there. Spousal privilege. Informer privilege. Even priest-penitent privilege (in Quebec).

The thing all those privileges have in common is the restriction of the disclosure or introduction as evidence into the legal system of what someone has said or written to another person, because public policy believe that fostering confidentiality within that kind of relationship is more important than exposing what is communicated, even when that communication might become important evidence in court.

In essence, legal privilege is supposed to foster frank and complete openness and honesty between certain persons. So that spouses can whisper secrets to each other, without the risk that one spouse will be hauled into court and forced to spills all the secrets the other spouse has whispered to him. Or so that informers can whisper secrets to their police handlers, without worrying too much that they might later get injured or killed because their identity will be shielded from court and public view.

Solicitor-client privilege is another variation on those various information privileges, which encourages the client to tell his lawyer the truth, the whole truth, and nothing but the truth, without fear that the lawyer will later be forced to tell a court what he was told by the client. But even solicitor-client privilege has its limits.

For instance, you can't hand over all your most incriminating pre-existing documents to your lawyer, in the hope that the mere act of handing them over will protect them from later police search and seizure. Writing a new letter to your lawyer explaining your situation and seeking advice might be privileged, and creating documents for your lawyer to assist with ongoing court litigation might be privileged, but it is the communication process that is the key part of the privilege creation, not the mere fact that the lawyer is now holding the smoking gun.

Law offices can be subject to search warrants, just like other physical locations. There are all sorts of special rules governing such law office searches which seek to protect client confidentiality. When serving as a Federal Prosecutor I used to spend a lot of time in court arguing about the admissibility of business records that had come into the possession of lawyers. But there is no absolute bar on such admissibility - just certain presumptions that might shift the burden of proving admissibility one way or the other.

And while honesty with your lawyer may be the best policy, and generally will be protected by privilege, you need to realize that your lawyer later in your case won't ethically be able to tolerate you giving a completely different story to the court. Confessing three murders to your lawyer might be protected by privilege, but later getting on the stand and denying under oath that your committed any of the crimes will likely cause your lawyer to withdraw from your case because she can't ethically support your perjury. So make sure that whatever you do tell your lawyer under protection of privilege remains your story later on, unless you have a very good reason for changing your story - like because you later remember important new details about a case.

The most positive angle to solicitor-client privilege is that it may by the strongest of the legal information privileges, and is the most widely supported by the courts, legislators and the public. By contrast, there is serious talk of trying to eliminate spousal privilege!

Thus the courts will be very, very cautious before ordering disclosure of anything you tell or have given to your lawyer. While other professions like medical doctors or accountants may have duties of confidentiality to their clients, and court will respect client "privacy" to the degree reasonably practicable, those are not "privileged" relationships, such that those professionals can be legally compelled in court to disclose what you have told them, and to produce records created based on information you have shared with them.




14 September 2013

New Public Law Advocacy Headquarters

The New Public Law Advocacy Headquarters. Photo credit: Natalie Rowe. 
Yes, I know, I know. No new posts for two months. I've not be providing my reading public the ongoing quality legal information they've come to expect. But there is a reason. The new Public Law Advocacy Headquarters!

Yes, that's right, I've bought an office building and have been doing a bit of decorating, plus installing a few essentials like proper air conditioning. Well, maybe the glass block wall wasn't an essential, but it sure looks good. 

You, my clients and readers, have loyally supported my Internet presence, but I thought a bit more of a physical presence could be a good thing. It's conveniently located adjacent to a Highway 401 exit (Exit 814), in the town of Lancaster. 

Yes, as in War of the Rose House of Lancaster. Producer of Henry the IV, V and VI of England (and II of France). I'm told its namesake town in England comes from Loncastre, meaning fort on the River Lune, and among its claims to fame on Wikipedia include producing "the all-girl punk-rock band Angelica." Maybe they never made it across the pond? 

I've also hired an articling student, the most talented Matt MacLean, to assist you better in French or English. For those not in the know, think of articling a bit like the position of clerk Bob Cratchit in the employ of Scrooge in Charles Dickens' a Christmas Carol. Except I'm hopefully a very benevolent post-ghost visit Scrooge. Articling students have finished all their legal studies (in Matt's case degrees in both common law and civil law, as well as an undergraduate degree, in addition to bar school), but need to do a practical work term of 10 months to fully qualify as a barrister and solicitor. 

The new PLA Headquarters will be having an open house later in October or in early November, so that all our old and new friends can come by to check things out. Stay tuned for news of it on the blog. 

Here are a couple of additional views of the view of the still unfinished new digs.

Photo credit: Natalie Rowe

Photo credit: Natalie Rowe
Also on my list of recent happenings was attending with my friends from the Mohawk Nation at Akwesasne at their annual Akwesasne International Powwow, held last weekend on the 7th and 8th of September on Cornwall Island, which is the Ontario part of their very inter-provincial and international community which also includes territory in Quebec and the United States, all bordering the beautiful St. Lawrence River. Akwesasne means "Land Where the Ruffed Grouse Drums," and it remains a great area for wildlife as well as for Aboriginal culture, which was well on display last weekend with dancing, singing and drumming competitions, great artist vendors and great food. 

For lunch I had an Indian Taco expertly and tastily made by folks from the Shubenacadie Indian Brook First Nation, who travelled all the way from Nova Scotia where I used to live and work, and served for a time as Canada's lead negotiator with the Mi'kmaq and Government of Nova Scotia under the Tripartite Forum negotiations process. Here's a link to a recipie and a few photos of a similar Indian Taco at Hilah Cooking.

We bought some art from the talented Jordan Thompson, brother of Kelly Thompson of the Aboriginal Rights and Research Office of the Mohawk Council of Akwesasne which I am working with on a constitutional test case. You can see his art over at Mohawk Art and Design

And we also enjoyed the dancing, singing and drumming competitions, which have various rules and prizes

I urge all of you in Eastern Ontario, Western Quebec, and North-Western New York state to consider coming out to the Powwow next year, usually held at the start of September. You'll find a warm welcome, and have a rich experience that you might not have thought possible so close to home.