Thursday, January 08, 2015

PS v Ontario, 2014 ONCA 900 - Changes coming to Civil Mental Health Law?

Citation
PS v Ontario, 2014 ONCA 900

Background

P.S. is a 56-year-old male, who lost his hearing before developing language skills. He is of average intelligence, but had a traumatic childhood, and in the 1990s was convicted of the sexual assault of a minor. At the expiry of his sentence he was civilly committed to a maximum-security mental health facility as a paedophile likely to cause harm to others, and he remained in that facility for 17 years.

His doctors agreed that a maximum security facility was both unnecessary given his risk, and also unhelpful to his treatment.

Patients who are civilly committed are subjected to periodic reviews of their status before panels which have the authority to discharge them if they no longer meet the legal tests for civil commitment.  In Ontario, the panel is referred to as a "Consent and Capacity Board."  Under the Mental Health Act, RSO 1990, c M7 the CCB has the authority to cancel certification, and to transfer patients to other facilities.  It has no other powers.

The Application

P.S. challenged the constitutionality of his detention on a large number of grounds.  The two grounds addressed by the Court were whether his rights to due process under section 7 of the Charter had been violated, and whether he had been discriminated against in contravention of section 15 of the Charter by virtue of not having received appropriate interpretation services to allow him to receive appropriate treatment.

The Court's Findings

The Ontario Court of Appeal held that P.S.'s constitutional rights had been violated by the failure of the institution to provide adequate interpretation services for him to receive treatment.  The Court also held that the legislative scheme itself was unconstitutional and violated the section 7 rights of "long term" patients (those held in psychiatric facilities longer than 6 months).  As a remedy, the Court severed the section of the MHA that allows patients who have been certified for 6 months to have their certification renewed, effectively making it impossible to hold a person in the civil system for more than 6 months.  The Court stayed this remedy for one year to give the Government of Ontario the opportunity to rewrite the legislation to provide greater procedural protections for long term participants in the mental health system.

Analysis

The Ontario Court of Appeal hung its hat on the idea that the Supreme Court of Canada jurisprudence that has evolved surrounding the treatment of criminally accused who are deemed unfit to stand trial or not criminally responsible by reason of mental disorder should be applied in the civil context also.  That analogy has not consistently been adopted by the courts in the past, but the Ontario Court of Appeal argued that the risk to the liberty interests of a person who is held potentially indefinitely in psychiatric care is sufficiently analogous to that of the criminally accused that this jurisprudence should apply.  Given the very limited authority of the CCB, the Court found that legislation did not adequately protect the interests of long term patients, and was unconstitutional.

Implications

As a person who works in both the civil and criminal mental health areas, albeit in Alberta, I have to express some satisfaction that the Ontario Court of Appeal has suggested that patients held in psychiatry facilities should not have fewer protections for their liberties by virtue of not having been accused of crimes.

It remains to be seen whether Ontario will challenge the decision to the Supreme Court of Canada. But if the case is confirmed at the Supreme Court, or is upheld as persuasive authority in other provinces, it can be expected to result in considerable changes to the mental health review legislation in many provinces. Civil review tribunals can expect to receive additional powers, giving civilly committed individuals more control over their care.  Perhaps more significantly, however, the increased procedural fairness requirements on these tribunals will likely result in increased cost and complexity.  This will in turn require more in order to ensure that these patients, who are generally disadvantaged in terms of being able to represent themselves in legal proceedings, are afforded every opportunity to assert their rights.

Mental health legislation is typically the only legislation in Canada that allows a person to be held against their will, indefinitely, without any guarantee of appearing before a judge of a Court of Law.  The inordinate amount of power given to psychiatric hospitals under this legislation, and the risks to individual liberties arising from the exercise of that power, justify doing more than is done now to protect the liberty interests of involuntary psychiatric patients.  Whether provinces get the balance right is likely to be a subject of additional litigation, much of which will be based on the Ontario Court of Appeal's willingness in PS v Ontario to extend the analogy between the criminal and civil mental health systems.  That analogy will also likely be the foundation of a number of other civil challenges to the procedural fairness of mental health tribunals across the country.

Monday, December 01, 2014

Monthly Admin of a Solo Law Firm

One of the things that I want to do with this blog is to share with people who are considering running their own solo practice what it is really like.

Today is the first business day of the month, and I book it in advance to do administrative work for the firm.  Here's what the agenda looks like for the monthly admin work:
  1. Update the software on my website, laptop and phone to keep it secure.
  2. Export data from the various systems that I use to the other ones that can use that data, like from my client management system to my phone and document generation systems.  As time goes on, I'm hoping for more of this to be automated with tools like Zapier.com.
  3. Grab online bank statements, do bank reconciliations, store them according to law society record-keeping requirements.
  4. Accounts Payable - run a report to see who the firm owes money, and write some cheques, send some interac email payments, etc.
  5. Pay off the firm credit card.
  6. Review the work-in-progress reports to see if there are any files for which I should issue bills, and issue those bills.  If there are any bills to be paid from funds in trust, I make the trust transfers and record them according to law society requirements.
  7. At this point, I take a look at the firm's financial statements to figure out what my paycheque is going to be for that month.  This is either the best part of my day, or the worst part of my day, depending on how far away I am from my next professional liability insurance payment.
  8. Review the accounts receivable reports to see if there are any outstanding bills where my clients need to be reminded to pay me.  I require payment in advance for the vast majority of my files, so this tends to be a short list.
  9. Find all of the files that have been finally closed over the course of the month, print off the required closing documentation for the Law Society, file it, and set them to closed in the practice management and accounting software.
  10. Do the trust reporting and general financial reporting required by the Law Society of Alberta, and file it according to the Society's record-keeping requirements.
I've been running the firm full time for almost three years now, and I've got it to the point that I can take care of all of these requirements in about one full working day, assuming there are no problems with the book keeping.

Thursday, November 27, 2014

It sounded like a lawyer joke, but then I saw the report. It's real, and it's horrifying.

They started out with the best of intentions.  Law firms have the worst time holding onto talent.  Around 50% bail within 5 years.  In Alberta, the half-life of a private practice lawyer is 8 years, but that's not anything to brag about.  And it's a giant waste of money for big law firms.  They, being a lawyer placement firm and an HR psychometrics firm, decided to do a study and propose a way to save some of that money.

They started with the premise that the way lawyers are recruited is in essence a failed match-making system.  The wrong people are ending up in the wrong firms types, the wrong specific firms, and the wrong practice areas.

But could they prove it? Are there actually noticeable differences between those lawyers who love their work (which for the purpose of testing we will equate with lawyers still doing it), and those who do not (which, for the purpose of testing we will equate with lawyers who left).

The answer they got was yes.  Yes, there is a big difference between people who stay and people who go.  One group is more resilient, has more initiative, is more sociable, and has more empathy. The other group are still lawyers.

No, that was not a lawyer joke.  That is exactly what the study says.
Non-fit for law evidently means good person.  Taken from here.

The study is available online. This one finding, which seems more significant than anything else in their paper, doesn't make it into the conclusions section.  Because, telling lawyers that they lack resilience, initiative, sociability and empathy isn't going to convince them to hire you.  Fair enough.  But apart, perhaps, from the finding that people in the smallest firms have the highest job satisfaction with regard to social benefit and work-life balance, there is nothing in the results more striking.

And how deeply striking it is.

Not so much for what it says, as about whom it says it.

If the resilient, empathic, sociable, high-initiative people are leaving, it is not because they are "unfit."  It is because they are the only ones that escape.

But that doesn't stop the authors from suggesting that we ought to test people before they enter law school to determine if they will be successful in law, and if so in which fields.  A questionable argument in the first place.  But considering the evidence they have, a disgusting, irresponsible suggestion.

It is as if a match-maker was trying to advise a client whose relationships keep failing, and came to the conclusion, "You need to find people with low self-esteem, no resourcefulness, and no supports in the community, because you drive everyone else away."

As opposed to, you know, "Stop being abusive toward your partners."

What law firms should take from this report is not, with all due respect to its authors, that they need to hire people to do psychometrics to improve their hiring.  Maybe that's true anyway, I don't know.  But what they should really take away from this report is "It's not them, it's you. And if you don't do something about the way you treat your people, they will leave for greener pastures, including non-law pastures.  You will be left only with those people lacking the qualities they need to save themselves from you."

The profession needs, desperately, all the most empathetic, sociable, resilient, and high initiative lawyers we can get.  That what the profession needs, and that's what the public needs.  The fact that biglaw can't keep those people is not an indictment of the lawyers, it's an indictment of the firms.

Friday, November 14, 2014

@RoundTableLaw's To Do List for the New Benchers #law #alberta

The Law Society of Alberta has announced the results of the 2014 bencher election.  The results can be viewed here.

Congratulations to the winners, and to those of you were unsuccessful this time around, thank you for putting your name forward.

I'd like to give the winners a short to do list for your term:

First, a shift in focus from reactionary discipline of lawyers to proactive support for ethical, sustainable practice.  The Law Society of Alberta is already moving in that direction, your job is to make sure the shift gains momentum.

Second, a commitment to evidence-based regulation. Do something only because it is either proved to help, or it is capable of being proved to help, and require the proof.  Stop doing what doesn't work, or can't be known to work. Because every additional rule and regulation has a real cost for lawyers, particularly solo practitioners, and must be justified with a real, as opposed to imagined, benefit for the public, because what is bad for sustainability of solo practice is bad for the public.

Third, take a technology-neutral position with regard to law firm administration. Eliminate mandated software that is expensive and complex.  Get out of the way of lawyers who are trying to use technology responsibly to be efficient and convenient.

Fourth, declare that there is an attrition crisis in the legal profession, that it is disproportionately affecting women, that it bad for our profession and for the public, start tracking retention as a key performance indicator, and make enhancing the availability to junior lawyers of sustainable solo practice a strategic objective.

Good luck, and thanks for your service.

Monday, October 27, 2014

Ask RoundTableLaw: Are things like @CheckStopEdm criminal? #shpk #yeg

What follows is legal information for the education of the public, not legal advice with regard to a particular situation.  If you need legal advice, obtain it.
@CheckStopEdm is a twitter handle that reports the location, and advice for avoiding, check stops in the Edmonton area.  A Check Stop is a police operation designed to randomly stop drivers to check for impaired driving and other offenses.

In fairness to @CheckStopEdm, they assert on their twitter profile that their service is for people whose blood-alcohol content is below the legal limit to operate a vehicle.  I'm not sure that proclaiming your avoid-the-police service is intended only for non-criminals actually helps in any regard, but there you have it.

Someone on Facebook asked the question, if a drunk driver were to read and follow the @CheckStopEdm advice and injure someone on the alternative route would @CheckStopEdm be liable for those injuries?

That is an interesting question, but to me, it's the wrong question.  The more immediate question is this: Is publicizing the location of a police check stop, causing a drunk driver to avoid it, an obstruction of a peace officer in the performance of their duties in contravention of the criminal code?

Note that this question doesn't require the drunk driver to hurt anyone.  It just requires the drunk driver to exist, and to avoid detection.

There is a case from BC in 1971 in which two undercover police officers were attempting to arrest pan handlers.  I apologize, but I don't have a publicly available link to the case.  After arresting one pan handler, and being observed doing so, they were followed around as they patrolled the area on foot by two individuals who repeatedly pointed the two police officers out to everyone around as undercover police.  Those two were charged with obstruction of a police officer in the performance of their duty.

The judges in British Columbia Court of Appeal carefully considered the history of cases regarding warning people about speed traps, and decided that yes, making yourself an early warning system for an undercover police officer constitutes an obstruction of justice.

The BCCA decided a crucial issue was whether by virtue of the obstructive action the police were deprived of evidence that they would otherwise have obtained.

Extending that logic, if interfering with undercover cops by announcing their presence is obstruction, and warning people who are actually speeding of a speed trap is obstruction, then it seems at least plausible that warning an actual drunk driver of a check stop is obstruction.

These things always depend on the individual facts of the case.  I can't say for certain generally, and I remind you that this is not legal advice for any particular person.  But if someone came to me saying they wanted to start doing this, I would advise them against it.

Violations of section 129(a) of the Criminal Code carry a punishment of up to two years in prison.