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| An Introduction to Canadian Law |
| Natalie Fraser for The Lawyers Weekly |
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What is the nature of the lawyer/client relationship?
Which laws are federal, provincial and municipal?
What is the Department of Justice?
Going to Court
What are cases and statutes?
What are the differences between criminal and civil law?
The Canadian Charter of Rights and Freedoms
Representation in Legal Matters
Legal Aid in Canada
A Guide to Legal Bills
Complaints Against Lawyers
What is the nature of the lawyer/client relationship?
Lawyers must promote and protect their client's interests. This requires free and open communication between them, and a relationship based on trust and confidence.
Lawyers maintain this confidence through a special legal rule, called solicitor-client privilege. By this rule, lawyers cannot disclose any communication they receive from their clients, unless the client gives permission for the lawyer to do so. The rule doesn't include communications involving criminal conduct on the part of the lawyer.
With solicitor-client privilege, clients can speak freely and fully with their lawyers, without fear of having their discussions exposed in court. By gaining a complete understanding of their clients' situation, lawyers have the ability to defend their clients from every possible angle. The rule of solicitor-client privilege allows lawyers to fulfill their role as champion of their clients' interests.
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Which laws are federal, provincial and municipal?
The Constitution Act creates a federal system of government in Canada. This type of government divides the authority to make laws between the federal government in Ottawa, and the provincial governments in every province. Canadas two territories have territorial councils with some powers to pass laws.
Generally, the Constitution gives the federal government the power to make laws in areas that affect Canada as a whole. These include unemployment insurance, criminal law, the postal service, national defence, marriage and divorce, and currency, as well as many others. The federal government has jurisdiction to make laws in the specific areas assigned to it under the Constitution, and those laws are valid throughout Canada.
The Constitution gives the provincial governments power to make laws of a local nature, in areas such as education, property, prisons, hospitals, and provincial court systems. Each province has jurisdiction to make its own laws in these areas, but the laws are only valid within the borders of that province.
Provinces also have the power to create municipalities within their borders. The provinces delegate some of their law-making powers to the municipalities. Most provinces have a Municipal Act setting out the law-making powers delegated to the municipalities, in areas such as transportation, waste management, public utilities, parks and licensing matters.
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What is the Department of Justice?
The Department of Justice (DOJ), a branch of the Canadian government, has a mandate to provide Canadians with a fair, accessible and efficient justice system. It assists the government in developing policy issues, and in drafting and reforming laws when necessary. Another major role involves the provision of legal services and counsel to the departments and agencies of the federal government. The DOJ acts as the law firm of the federal government.
In acting as the federal governments legal adviser, the DOJ assists all government departments in developing, updating and interpreting laws. For example, since all new laws must be consistent with the Canadian Charter of Rights and Freedoms, the DOJ must examine every law on this basis. The DOJ assists the government with every aspect involved in the creation of new laws, from Cabinet approval to the drafting of bills to enactment by Parliament, and ensures that the laws meet all legal requirements. Another duty of the DOJ involves assisting with the drafting of the regulations that accompany new laws to ensure they are legally valid.
In providing legal services to the government, the DOJ must act to defend the government when it becomes involved in a lawsuit. As well, it provides legal advice as needed to other federal departments and agencies. Although the provinces carry out prosecutions under the Criminal Code, the DOJ carries out prosecutions under all other federal laws, including drug offences.
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Going to Court
What does jury duty involve?
The jury trial - a trial by one's peers - represents a cornerstone of the justice system. This requires the selection of a jury of twelve people from the community.
Each province determines its own method by which citizens are selected for potential jury duty, often a random selection of names from voters' lists. Jurors must have Canadian citizenship and residency in the province in which the court is located, and must have reached the age of nineteen years. Special circumstances can allow potential jurors to be exempted from jury duty, such as ill health, student status or limited ability to understand the language.
Potential jurors form a 'jury panel.' Members of the panel attend at court on a designated day. The clerk of the court selects names at random from a box or drum containing the names of the jury panel. Either the prosecutor or the lawyer for the accused may refuse to accept the juror whose name has been drawn. If both accept the juror, he or she becomes part of the jury for an upcoming trial.
During the trial, jurors must make up their minds about the truth of the testimony given at trial. Once both sides of the court case have called their witnesses and presented arguments, and the judge has instructed the jury on the relevant law, the jury meets in a room and makes its decision.
All jurors must agree on the verdict. If they can't agree, the judge may discharge them and order the selection of a new jury. After the trial, jurors cannot tell anyone about the discussions that took place in reaching the verdict.
Testifying in court
People having information relevant to a case being tried in court may be called on to give evidence during the trial. They may have seen an offence happen or have a document that will shed light on contested issues. People called upon by subpoena (see subpoena section) to testify have a legal obligation to do so.
"Expert witnesses" also give testimony. Their knowledge about a particular topic can assist the court in understanding an issue being argued within the trial.
Witnesses give evidence under oath or by affirmation. This means that they swear to tell the truth, either on the basis of religion or solemn belief. Witnesses must answer all questions they are asked, unless the judge declares otherwise.
Subpoenas
A subpoena is a judicial order requiring a person to appear in court at a certain place and time in order to give evidence in a court proceeding. The person receiving the subpoena may have to take the stand and testify personally, or may be required to produce documents related to the court proceeding that are in his or her possession.
Judges, justices of the peace or in some circumstances, court clerks may issue subpoenas. Judges or justices of the peace must believe that the person receiving the subpoena can provide the court with 'material evidence'. This means that the evidence is required in order to make a determination in a court proceeding, or relates directly to the issues in dispute.
The witness usually receives the subpoena personally from a court officer. But it can also be left at the witness's home with anyone appearing to be at least sixteen years old. If the witness does not attend at court as required by the subpoena, the court may issue a warrant for his or her arrest.
If a witness shows up in court but refuses to testify, the presiding judge may order that the witness be jailed for contempt of court.
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What are cases and statutes?
Statutes
Canada's central or federal government has a Parliament to enact laws for all of Canada. Each province has a legislature to make laws dealing with local matters, and has municipalities with law-making abilities delegated to them. The territories have territorial councils to enact laws.
Laws created by any of these bodies are called statutes, or legislation. When Parliament, or any of the provincial legislatures, municipalities or territorial councils pass a statute, it takes priority over judge-made law as ruled on by the courts.
Cases
Court cases, in which two parties resolve a dispute in court, usually end with a judge's decision. These decisions form the basis of what is known as 'common law', a system of rules based on 'precedent'. The doctrine of precedent requires judges to follow earlier decisions made in cases dealing with similar issues. Rather than being written out as rules, the common law exists only in past decisions. This allows it to adapt to changes in society.
Although under common law judges follow earlier decisions in cases dealing with similar issues, government-made laws have priority and judges must follow these first.
Canada has a common-law system, except in Quebec. Quebec has a civil-law system, in which a Civil Code contains a comprehensive statement of rules. Modification of these rules occurs as required. In Quebec, judges ruling on court cases refer to the Code, and then examine earlier cases for consistency.
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What are the differences between criminal and civil law?
Criminal Law
Criminal law punishes behaviour that offends society as a whole, although only one victim may have suffered. If someone breaks a criminal law, the state acts to punish that individual. In Canada, the Criminal Code and other statutes enacted by the federal government set out offences that are considered criminal. Three types of offences exist in the criminal court system:
1. Indictable offences these consist of serious offences, punishable by jail terms of two, five, ten or fourteen years or a life sentence (an example: murder).
2. Summary Conviction offences less serious offences with punishment consisting of a fine and/or six months in jail.
3. Hybrid offences offences of this type can be prosecuted as indictable or summary offences, in the discretion of the Crown Attorney. The offence is presumed to be indictable until the Crown elects otherwise.
The type of offence determines which procedure the court will follow in hearing the matter. For example, it will determine the kind of judge with jurisdiction to hear the case.
A criminal matter generally begins with an investigation by a peace officer, followed by an arrest. After this, the officer will either detain the accused in jail or release the accused with a notice requiring an appearance in court at a later date.
The peace officer in charge of the matter must then swear an information before a judge. The information is a document sworn under oath, which sets out the criminal allegations against the accused. The judge will decide whether to proceed with the matter based on the facts set out in the information.
If the accused has been detained in jail, the court must hold a bail hearing on his or her behalf within 24 hours, or as soon as possible. At the bail hearing, the judge decides whether the accused will remain in jail until trial, or be released with or without conditions and required to appear at the next court date, based on the evidence presented by the Crown and the accused.
Indictable offences require a preliminary hearing. At this hearing, the judge decides whether the Crown has sufficient evidence to result in a conviction, and if so, orders the accused to stand trial. If not, the accused is discharged and released.
If the accused is committed for trial, the court sets a trial date. The trial begins with the Crowns presentation of evidence, and the defence responds with its own evidence, although the accused need not testify. The Crown must prove the case beyond a reasonable doubt in order to succeed in a finding of guilt. If the Crown succeeds, the accused may appeal the decision to a higher court.
Civil Law
Civil law deals with disagreements between individuals in society. It involves private disputes in areas such as business contracts, property ownership and obligations owed to family members. A civil action or lawsuit occurs when one person, the plaintiff, sues another person, the defendant, regarding a private dispute. The plaintiff must prove the defendants liability to the judge or jury on a balance of probabilities, a lower level of proof than that required in criminal court. If the plaintiff proves his or her case, the court usually orders the defendant to pay the plaintiff a sum of money as compensation for the losses the plaintiff suffered.
A document called a writ or Notice of Action indicates the commencement of a lawsuit. The plaintiff files the Notice with the court and all of the parties named in the suit. The plaintiff also files pleadings with the court and other parties, containing the allegations and claims the plaintiff has against the defendant. The defendant replies to these claims by filing a statement of defence with the court and other parties, within a specified time.
Parties generally hold examinations for discovery next. These examinations allow each party to find out the details of the opposing partys case by asking the other party as well as his or her witnesses questions which must be answered under oath. This clarifies the case for both parties and encourages settlement before trial.
Most provinces allow the judge to call a pretrial conference at this point, presided over by the judge and usually held in chambers. The parties discuss the dispute, and the judge attempts to find out whether the parties can come to an out-of-court settlement. If not, a trial date is set.
At the trial, held in court, each side presents arguments and evidence and can call witnesses. The trial may be held before a judge, or judge and jury. At the end of the trial the court makes its decision. The losing party has the right to appeal the decision to a higher court.
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Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms, enacted in 1982, forms part of the country's Constitution. As part of the Constitution, the Charter is the supreme law of Canada. It protects the rights and freedoms of everyone in Canada.
When other laws conflict with the Charter, the courts may declare those laws invalid. However, the federal or provincial governments can pass legislation that limits the rights provided for in the Charter, if they can show that the limit is reasonable and justifiable. This concept recognizes that in Canada, a free and democratic society, rights and freedoms cannot be absolute. For example, disallowing the spread of hate propaganda represents a reasonable and justifiable limit to the guarantee of freedom of expression.
The Charter protects fundamental freedoms in Canada. Canadians may practice the religion of their choice, and assemble with whomever they choose. They may speak out on any issue as long as they dont infringe the rights of others. The Charter guarantees the right of the media to print and broadcast the news.
The Charter provides democratic rights to Canadians, including the right to vote and seek election, except in the case of minors, which legislators considered a reasonable limit to these rights. The Charter also confirms that Parliament must meet at least once a year, so that it can perform its duties and remain accountable to Canadians.
The Charter protects mobility rights, giving citizens and permanent residents the right to live or work anywhere in Canada. Legal rights stated in the Charter include the presumption of innocence until proven guilty in a fair and public hearing, and the right to life, liberty and security of the person. As well, everyone has the right to protection from unreasonable searches and seizures. Even when police have legal authority to undertake a search and seizure, they cannot use excessive force.
The Charter grants Canadians the right not to be detained arbitrarily. Police cannot arrest a person without reasonable grounds to do so. Another legal right guaranteed in the Charter gives Canadians the right to consult a lawyer without delay upon arrest and the right to a trial within a reasonable time. Under the Charter, Canadians receive protection from cruel or unusual punishment.
The Charter guarantees equality to every individual regardless of race, religion, national or ethnic origin, colour, sex, age or disability. While this guarantee prevents discrimination, it doesnt mean the government cannot set up programs to assist the disadvantaged in society. This represents a reasonable limit to the guarantee of equality.
The Charter recognizes aboriginal rights, including Indian, Inuit and Metis. These protect the treaty rights of the Aboriginal people and act to ensure the protection of their cultures, languages and traditions.
The rights enshrined in the Charter only form a part of the rights Canadians are entitled to. Federal and provincial statutes and the common law provide many other important rights. But unlike the rights created by statute or common law, the rights guaranteed by the Charter form part of the supreme law of Canada.
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Representation in Legal Matters
Self-representation
People can represent themselves in any legal matter. The law does not require the hiring of a lawyer, for example, when charged with a criminal offence or to settle issues in a divorce. But since legal issues generally have a high impact on people's lives, they usually seek legal representation in order to protect themselves from costly errors.
Self-representation eliminates many of the benefits provided by legal representation: an objective viewpoint, advice regarding the consequences of legal action, and knowledge of the full range of options available.
Paralegals as Legal Assistants
Paralegals, as legal assistants, perform basic legal tasks that require knowledge of legal concepts. They generally work for lawyers or in government agencies. By working in conjunction with a lawyer, paralegals can help keep legal costs down for clients, since they perform routine legal tasks on behalf of a lawyer at a less expensive rate.
The paralegal as legal assistant usually has formal training and often belongs to a parent organization of paralegals. Law societies in Canada recognize the validity of these paralegals as support staff within law firms. In this setting, paralegals offer a valuable contribution to the legal system.
Paralegals as Legal Agents
An agent is a person authorized to act on behalf of another. Many laws allow agents to act in legal matters. Paralegals sometimes act as legal agents, offering their services directly to the public rather than working as assistants within law firms. Although they do not require legal training, these paralegals provide services in certain areas of law practiced by lawyers. Examples of areas in which this type of paralegal provides services include traffic violations, criminal pardons, uncontested divorces, and immigration.
Each jurisdiction sets limits as to the kind of services that legal agents can provide. Should they overstep these limits, they may be charged with practicing law without a license. Since paralegals of this type do not require legal training or liability insurance as protection in the event of a mistake, using their services carries a risk. Untrained and uninsured representation can lead to major losses for clients.
Barristers and Solicitors
In Canada, lawyers call themselves barristers and solicitors, excepting notaries in Quebec. The distinction, in which only barristers went to court and only solicitors dealt in contract-related law, no longer applies. However, lawyers usually work in only one of these areas.
Lawyers have extensive training requirements before being allowed to practice law. Students who wish to become lawyers usually have a university degree before attending law school. Following three years at law school, students 'article' at a law firm - a form of internship - before completing a series of final exams. Each province has a law society which recognizes qualified lawyers once they have completed these requirements.
Lawyers must have errors and omissions insurance in order to practice law. This means that in the event of a lawyer's mistake, the client will receive compensation from the lawyer's insurance company. This invaluable protection allows clients to avoid the major personal losses that they may suffer by choosing uninsured representation.
Many lawyers choose to specialize in a particular area of law. Clients seeking legal assistance in a complex matter or a matter in a unique area of law should consider hiring a specialist. Other clients may prefer a lawyer with a general practice, who will have a broad range of knowledge in a variety of areas, and whom they can consult regularly as legal issues come up.
Notaries
In Quebec, both notaries and lawyers practice law. Notaries focus on contractual matters such as real estate, and don't appear in court except in non-contentious matters.
Another form of notary, the Notary Public, performs the role of administering oaths. Business-related and other documents often require 'notarization', in which the person completing the form must appear before a Notary Public and swear as to the truth of the statements made in the document. The person then signs the form, as does the Notary Public, who also applies his or her seal. Lawyers become Notaries Public by virtue of their status as qualified practitioners.
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Legal Aid in Canada
Duty Counsel
Many provinces provide duty counsel lawyers for people appearing in court without a lawyer, particularly in the areas of criminal and family law. Duty counsel will advise criminal clients of their rights and help them in applying for bail. They may assist clients in entering guilty pleas or with sentencing, but for serious matters such as these often request an adjournment to allow the client to seek some form of legal representation. In family court, duty counsel assist clients in preparing and reviewing documents, offer representation at motions and hearings, and help negotiate settlements.
By assisting people who appear in court without a lawyer, duty counsel ensure that anyone involved in a court matter receives legal advice.
Legal Aid Certificates
People who cant afford to pay a lawyer can apply for representation through legal aid. Legal aid operates under different authorities from province to province, generally run by either the government or the provinces law society.
Applicants for legal aid must provide proof that they dont have the financial resources to pay a lawyer. As well, the legal aid plan must cover the matter for which they require assistance; coverage differs among provinces. If these two conditions are met, applicants usually receive a legal aid certificate. They may then choose a lawyer one who accepts legal aid certificates to act on their behalf. The province pays the lawyer to represent the client, based on a set tariff.
Rather than assigning a lawyer to the client, legal aid certificates provide the benefit of allowing clients to select a lawyer of their choice to act for them.
Legal Aid Programs
Some provinces offer special legal aid services in addition to providing certificates. These community clinics and programs generally provide assistance to low-income people or special groups of people. They offer help in areas such as tenant rights, government pensions, immigration, and employment and human rights. Programs for special groups include services for aboriginals, seniors, and the disabled.
Lawyers and legal workers at community clinics and legal aid programs provide information and legal advice in their particular area of law, and some offer legal representation. Clinics may also offer services in the area of public service law, by engaging in test cases, and providing public legal education and community awareness.
Student Legal Aid Clinics
Legal aid societies at many law schools across Canada offer assistance to people who cant afford a lawyer. Students, supervised by practising lawyers, provide representation to clients in areas such as minor criminal or traffic charges, small claims court matters, tenant issues, and workers compensation.
Although students cannot represent people on major legal issues, they offer valuable legal assistance to people who otherwise could not retain a lawyer, and assist clients with issues that often have a significant impact on their lives.
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A Guide to Legal Bills
Disbursements
Lawyers bills include both fees and "disbursements". Disbursements are expenses incurred by a law firm on behalf of a client in order for the firm to proceed with that clients matter. The law firm pays a third party for these expenses. For example, in a personal liability case, disbursements might include the cost of expert medical reports or private investigator reports. In most matters, disbursements also include costs such as photocopying, postage, and courier expenses.
Disbursements only represent expenses incurred on behalf of a specific client. They do not include the operational costs of a law firm such as rent or the receptionists salary. The lawyers bill should clearly state the nature of the disbursement, its exact amount and the date it was incurred.
Fees
Recognizing the different ways lawyers charge their fees can help clients understand their lawyers bills. Lawyers base their fees on a number of different arrangements, usually determined by type of case involved.
Hourly rates represent the most common fee arrangement. A large range of hourly rates exists among lawyers, based on experience, expertise and ability. Clients should receive an estimate of the full amount required to complete the matter as well as being advised of the lawyers hourly rate.
Lawyers may charge block fees for their services for straightforward, easily defined matters. For example, a lawyer may charge a set fee for the preparation of a basic will. When comparing block fees from one law firm to another, clients should find out exactly what the fee includes to ensure they are making a fair comparison.
In some jurisdictions, lawyers can charge contingency fees for certain matters. This means that clients only pay if their lawyers succeed with the claim being pursued. A percentage of the money awarded to the client by the court represents the lawyers fee. Contingency fee arrangements should clearly state the method by which the fee is calculated.
The amount lawyers charge within a given fee arrangement varies significantly. Many factors contribute to determining the amount, including time, effort and the level of difficulty involved in a case, as well as the results achieved. Lawyers in urban areas usually charge more than those in small towns, and lawyers with more experience or a high profile will also charge higher fees.
Prepaid Legal Plans
Prepaid legal plans are available in some areas of Canada. Membership in these plans usually involves paying a monthly fee. This allows members to receive certain legal services as needed. Legal services provided by the plan usually include such matters as preparation of wills and powers of attorney, fighting traffic tickets, and seeking compensation for defective products, and may also include certain areas of family, real estate and tax law. When members have legal problems covered by the plan, they contact the company managing the plan, which refers them to a law firm that can handle the matter on their behalf.
Middle-income families who dont qualify for legal aid but cannot afford to pay private lawyers fees may find prepaid legal plans very useful.
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Complaints Against Lawyers
Fee Disputes With Lawyers
Clients may find their lawyers bills confusing, and higher than expected. Often communication difficulties have created a misunderstanding, so clients should start by discussing their concerns with their lawyer. Asking for a full explanation of the bill and requesting the lawyer to provide a more detailed bill may resolve the problem.
Clients may wish to discuss a payment plan with their lawyers if they find themselves unable to pay the bill within the required time. Most lawyers have provisions for such arrangements.
Formally Reviewing Bills
If clients remain dissatisfied with the amount of a bill after discussing it with their lawyer, they may contact the law society in their province for assistance. Law societies generally offer various options for clients to review their lawyers bills.
Some law societies offer mediation services to resolve fee disputes. In this process, a neutral third party acts as a mediator between the lawyer and the client. The mediator encourages communication between the parties, helping them to consider and develop a resolution to the problem. Generally, the decisions resulting from mediation do not bind the parties. If either party remains dissatisfied, they may proceed to a formal review.
Clients begin the formal review process by contacting the appropriate office of the relevant superior court in their province. Deadlines for requesting an assessment may be short; for example, in Ontario, clients have one month from the time their lawyer sent them the bill to start the assessment process.
Most reviews have three steps. The first involves setting a date for the hearing. Clients must attend at the court office with the bill to be assessed, and pay a fee in order to get a date. The second step involves delivering to or serving the documentation regarding the hearing on the lawyer. Generally service can be by registered mail, or delivered personally.
The third step of the process involves the hearing itself. Although procedure at the hearing is informal, clients may retain a lawyer to represent them if they wish. Each side presents their case, and both parties can ask questions and bring witnesses. At the end of the hearing, the official in charge may make a decision immediately, or may reserve judgment till a later date. The official can decide that the lawyers bill was fair, or too high, and if so reduce it. Factors influencing his or her decision include fee arrangements made with the lawyer, the amount of time the lawyer spent on the case, the level of expertise involved, the amount of money involved, the success or lack of success on the matter, and the amount of money already paid towards the bill.
Clients who remain unhappy with the amount of the bill after review can appeal the decision in a higher court.
Law societies in every province and territory have the responsibility of ensuring that lawyers practice law both competently and ethically. Should lawyers fall below the required standards, their law society can discipline them.
Hiring a New Lawyer
Dissatisfied clients should try discussing their concerns with their lawyer, since problems often arise through a lack of communication. Clients who continue to find their lawyers performance unsatisfactory may wish to retain a new lawyer. However, they will remain responsible for the full amount of their lawyers bill up to the time of dismissal.
If clients wish to retain a new lawyer after their court action has commenced, they may have to convince the judge that a good reason exists to do so, since dismissing the lawyer and hiring a new one will substantially delay the action.
Reporting Unethical Behaviour
Clients who believe their lawyer has acted unethically should report their concerns to the law society in their province. This generally involves filing a complaint with the law society providing details of the clients concerns.
Most complaints involve the service a lawyer has provided to his or her client. The law society will follow up on this type of complaint by working with the lawyer and client to find a resolution. More serious cases require an investigation. If the results of the investigation suggest the lawyer has acted unethically, the matter will proceed to a hearing by a discipline committee. At discipline hearings, usually both the law society and the lawyer can present evidence and call witnesses. If the committee finds the lawyer has violated the rules of professional conduct, possible penalties include fines, reprimands, suspensions or disbarment.
Bringing a Malpractice Action
Clients who believe their lawyer has acted incompetently should consider commencing an action for legal malpractice. Successful malpractice claims usually prove that a lawyer acted negligently. This requires evidence that the lawyers work didnt reflect the standard of care expected of a competent lawyer for the type of matter involved. Examples include missing a limitation period or attending at court unprepared. To win compensation in a malpractice action, the client must prove that he or she suffered financial losses due to the lawyers negligence.
Lawyers in Canada must carry insurance to cover any errors or omissions they make while practising law. Before bringing an action, legal malpractise lawyers will want to ensure the lawyer being sued held this insurance with sufficiently high coverage at the time the malpractise occurred. Clients can then collect any compensation awarded by the court through the lawyers insurance company.
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Natalie Fraser practised law in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly. |
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