Civil Litigation May Change the Criminal Justice System:
For few people, especially lawyers with a progressive bent, will 2016 will go down as their favorite year. There’s a pretty clear consensus that 2016 was, to paraphrase, John Oliver, less than stellar, from the perspective of geopolitics and entertainment, all of its losses of battles, elections and cultural icons. Further, while there have been some reports about this for a long time, 2016 was the year that public awareness of how difficult, arduous, and crushing it can be to work as a lawyer in private practice really surged into mainstream awareness, through articles like this one describing the mental health struggles and advocacy work of Past CBA-President Michele Hollins.
A New Hope:
However, here’s a perspective from an intersection of criminal law and civil litigation that suggests something to be hopeful about. The year 2016 marked a new high water mark for the potential uses of civil litigation to hold the criminal justice system and its actors accountable. Of course, civil lawsuits are private claims, but damage awards ordered for civil liability are intended to effect change to defendants' future conduct and the broader social fabric as a result. Indeed, I would argue that as change agents working to indirectly improve the criminal justice system, civil litigators ended 2016 showing great promise.
For the beleaguered amongst us, and with thanks to those clients, advocates and litigators fighting hard in the litigation trenches working gruelingly long hours to bring matters forward in challenging, high-risk, expensive circumstances, with long odds against, here are three reasons civil litigation offers hope that we, in Canada, can move towards a better criminal justice system in 2017:
Solitary Confinement Class Action:
A class action lawsuit initiated by the John Howard Society and Civil Liberties Association, brought on behalf of Christopher Brazeau and Davd Kift by lawyers Kirk Baert and James Sayce of Koskie Minsky LLP was certified December 12, 2016. It was adjourned December 16 to summer 2017 on the consent of the parties pending promised legislative change that may make the concerns moot. The lawsuit alleges that the rights of tens of thousands of mentally ill inmates have been violated by Canada’s use of solitary confinement in their custodial conditions as well as with respect to the government's failure to provide them with adequate access to medication. The plaintiffs' claim alleges breaches of sections 7, 9, and/or 12 of the Canadian Charter of Rights and Freedoms. In 2017, we will see how the claim proceeds from certification forward towards litigation or settlement. The case, and the pressure the case has put on government to reform the law in advance of its hearing, has the potential to influence significant change to how CSC deals with offenders who have diagnosed with mental health issues.
My former Lerners LLP colleague Andrew Murray is plaintiff counsel in a case Harris v. Ontario, 2016 ONSC 4641. The case is a personal injury action in which damages are claimed in relation to the death of Jonathan Dew, who died while a prisoner at the Windsor jail. In the case, Justice Pamela Hebner of the Ontario Superior Court of Justice ruled in favour of the plaintiffs on a Rule 21 special case brought to determine this question of law:
"Are claims for recovery of legal expenses incurred in connection with the inquest conducted into the death of JD potentially recoverable in law as against the defendants, pursuant to section 61(1) of the Family Law Act, or are such expenses excluded claims which are not potentially recoverable at law?"
Justice Hebner confirmed the situation constituted a proper case for invoking Rule 21 of the Rules of Civil Procedure and therefore that, at least in Ontario (under section 61 of the province's Family Law Act), legal expenses incurred in connection with a family's participation in an inquest are potentially recoverable in a companion civil action against a tortfeasor. The Harris case is under appeal. If upheld, this decision has the potential enable surviving next-of-kin access and engage in inquest processes.
RCMP Class Action :
If you have been following this case, you know that hundreds of female RCMP officers are suing the force for gender-related workplace harassment. Thanks to the work of civil litigator David Klein, and the team at Klein Lawyers LLP, who act for representative Plaintiff Janet Merlo, and the official apology of the RCMP issued in October 2016, proposed settlement has been reached in the RCMP Gender-Based Harassment and Discrimination Class Action. The proposed settlement is subject to judicial approval. In 2017, a a judge in the Federal Court will hear the application for certification of the class action and have occasion to approve the Notice to be sent to potential class members regarding the proposed settlement. In late 2016, it was announced that male officers are bringing their own class action. It remains to be seen in 2017 how that case proceeds These workplace harassment class action cases have the potential to influence the RCMP to move forward to a changed police culture.
Justice Strikes Back:
And so, perhaps, while many amongst us are quite happy to see the end of 2016, we can take heart: while these developments in civil cases aren't final victories, and don't exactly translate into glad tidings of great joy, they do offer reasons to hope, raise a glass of eggnog, and continue to work, for a better Canadian criminal justice system in 2017.