Electronic Travel Authorization (eTA) Confidential: An Immigration Lawyer Tells You What You Need to Know to Not Be Refused Entry to Canada

Shocked you’ve suddenly got to fill out something called an Electronic Travel Authorization (eTA) in order to come to Canada by air, even though you’ve entered many times before Visa-free? Not sure how to answer the eTA questions? Refused entry to Canada because of an eTA, even though you've been welcomed many times before? You’re not alone.

What is an Electronic Travel Authorization (eTA)?

It’s been less than a year since the Government of Canada in November 2016 imposed the eTA requirement on nationals of all Visa-free entry countries (over 50 states), other than Americans. Although the Government seems to have promoted eTAs as not a big deal, in many ways these are mini-Visas, with all the attendant risks, hassles and delays that Visas entail. Supposedly 3.5 million people a year will be applying for eTAs. Previously, only a tiny fraction of those were asked the eTA's probing questions after arriving at a Canadian air port of entry. 

Canada Border Services Agency Officers have the right to ask foreigners seeking entry to Canada all manner of probing questions, but airports are busy places, and most people never were asked questions about things like prior arrests. Now, all foreigners (other than Americans) get asked through the eTA.

While you don’t need to apply for an eTA if arriving in Canada by land or sea, how many people actually do that other than Americans? Canada is not an easy place to get to unless you fly. 

What's the Difference Between a Visa & an eTA?

The main difference between an eTA and a Visa, other than cost and waiting period, is that the eTA is a self-reporting tool that is computer screened. Only if an applicant answers YES to particular questions, or is otherwise flagged in an electronic database, will the eTA application be escalated to human review. By comparison, all Visas supposedly get some human attention (some more than others). 

What's Risks Do eTAs Pose for Travellers?

While the Government of Canada rightly points to the fact that eTAs are only screening for the admission criteria that always applied to any foreigner seeking entry to Canada and which were already tested for in Visa applicants, detailed screening of another 3.5 million people a year is sure to result in thousands of additional refused entries to Canada.

While the government touts the huge numbers of eTAs successfully issued, what is not focussed on is the number of people refused entry because of an eTA. The most common reason for refusal is likely because of disclosure of minor criminal records that the Government of Canada would not otherwise have known about were it not for the eTA questioning. But refusal for health reasons, for being unable to financially support yourself while in Canada, or for being unlikely to leave Canada all also pose refusal risks.

How Should I Answer the eTA Questions?

If you only had to fill out your name, birthdate, address and purpose of visit, the eTA would be easy. But instead, you’re faced with questions like “Do you have a serious health condition for which you are receiving regular medical treatment?”

ou might be wondering, what qualifies as “serious” and what is meant by “regular” or even “treatment"? Good question! There are a lot of important nuances in that one question alone. You don't want to minimize a condition, and then be accused of lying. But you don’t want to unjustifiably exaggerate a condition, and then be refused entry when in fact your condition wasn’t all that serious, and your treatment wasn’t particularly regular. 

In future blog posts, I’ll deconstruct the ways to approach each questions. 

The Government of Canada has produced a 22 page guide on how to fill out the ETA: 

http://www.cic.gc.ca/english/pdf/eta/english.pdf

While the guide is helpful, in some ways it raises more questions than it answers, like in response to the medical question it states: "Select YES if you are receiving regular, ongoing medical treatment for any mental or physical condition.”

But note that the guide's "clarification" isn’t using the same question that was asked in the eTA. The word “serious” has disappeared. The word “ongoing” has appeared.” And mental as well as physical conditions have now been added, leaving one to wonder does taking a low dose anti-depressant need to be disclosed? To me, it certainly doesn’t qualify as “serious health condition” and “regular medical treatment,” but it might qualify as ongoing treatment for a mental condition, especially if some psychotherapy in thrown in. My take would be to follow the wording of the actual question, and not the wording of the guide. But you can hopefully see how confusing this can get, and how easily it might lead to misunderstandings leading to entry to Canada problems.

Three Guiding Principles for Filling out eTAs

For now, I offer you three guiding principles for completing an eTA:

  1. Don’t Lie - a "misrepresentation" can bar you from visiting, working or studying in Canada. The misrepresentation may be considered to be far more serious by the Government of Canada than the thing you were trying to hide. Even if you think the government will never find out, you can't be sure about what database access the government might have. I worked for the government for years, and I was never sure. You can be sure that eTA applicants home countries will share more data with Canada than will Visa-required countries, because the eTA countries tend to be close allies of Canada.
  2. Don’t Answer Yes Without First Obtaining Legal Advice - these are all loaded, legal questions. If you're asked one of them in person at an airport, you aren't going to be able to have the opportunity to obtain legal advice. But with an eTA, you can talk to a lawyer. A lawyer local to where you live won't be much good to you, because it's unlikely he or she will be qualified to give advice on Canadian law. 
  3. Don’t Book Travel Prior to Obtaining an eTA - they’re good for five years, and only cost 7 dollars. So this should be the first step of your trip planning. 

We offer “eTA Quick Legal Consults” (eTA QLC) for those faced with filling out an eTA, and who have concerns about how questions should be answered based upon their personal facts. And on how to resolve eTA refusals. 

The Government of Canada hasn’t changed any of the entry rules to Canada. Reasons for refusal remain the same as they have been. But with eTAs they’ll now have a lot more information on everyone, so you need to treat the eTA document as seriously as you would a Visa application to another country or a passport application in your own country. 

 

 

Claiming Birthright Canadian Citizenship: Top 3 Application Errors to Avoid

It might not be all that surprising in the current climate, but my law firm continues to see a surge of applicants seeking to confirm their own or their children's Canadian citizenship. Confirmation of citizenship is quite different from applying to become a citizen. For those seeking confirmation they're already all citizens, but have never previously had a reason to seek out official confirmation from the Government of Canada that they have a right to work, study and live in Canada on an unlimited basis, including carrying a Canadian passport and voting in Canadian elections if they've reached the age of 18.

A lot of the people who retain us to help them with Canadian citizenship confirmation have already tried to apply for confirmation, but the government returned their applications unapproved because of failure to fulfill the requirements. Sometimes those applications have been returned multiple times, leading to many months - perhaps even years - of frustration.

Yes, there's a DIY guide to citizenship confirmation. And yes, you can do it yourself. But if speed, an error free application, and lack of frustration is important to you, you should give serious consideration to using a citizenship lawyer. The cost is pretty reasonable as compared to some other legal services, and is less expensive even than many other immigration law services.

The top three citizenship confirmation errors we've lately seen in our practice relate to birth certificates, translation of documents, and photographs. All seem deceptively simple things to provide to the government. And yet, the government finds fault again and again with what is submitted because the government won't hold your hand, won't coach you through the standards, and applies a standard of perfection. 

1. BIRTH CERTIFICATE ERRORS

a. Not understanding what is a certified copy

A certified copy isn't just a photocopy. And you can't take a copy into someone qualified to make certified copies without also bringing along the original, so that person can compare the original to the copy. That's what certified means: someone trustworthy has seen the original, carefully compared it to the copy, and then stamped and written on the copy, in the customary manner applicable in the territory the certification is being made in, that the copy is "true" to the original.

In Canada, notaries, commissioners of oaths and lawyers can usually create certified copies wherever your live. There may also be other officials like bank managers or school principals who are authorized to do so.

Overseas you should probably stick with a notary who can create a "Notarial Copy" which is generally even better than a certified copy.

Family members can't certify other family members' copies.

b. Attempting to use documents issued in Quebec prior to 1994

In Quebec, you might need to apply for a new birth certificate prior to applying for citizenship confirmation, even if you've already got a birth certificate or baptismal certificate. The Federal Government doesn't like those Quebec documents if they were issued prior to 1994.

Who knows why. I did two law degrees in Quebec, and I don't know why, though I suppose I could find out. You've just got to accept that that's the way it is, and apply for a more recent document. 

2. TRANSLATION ERRORS

In Canada we all know there are only two official languages: English and French. Other than those pesky documents from Quebec mentioned above, the Government of Canada does not have any firm rules on document standards from a country which has produced the documents you might be submitting, but it does require that they be in English or French, otherwise the Canadian government worker processing them won't be able to read them. The government won't translate your documents for you, you've got to pay to do it yourself.

The documents can be translated either in Canada or overseas. Probably in Canada is easiest, since then it's easier to prove you've used a certified translator; make sure you submit that proof. If done by someone who isn't certified in Canada, you'll need to submit a separate affidavit from that person attesting to not only the accuracy of the translation, but also the fluent proficiency of the translator in both the language being translated from and the language being translated to.

The government will NOT take your word on the accuracy of translations without an official translation.

3. PHOTOGRAPH ERRORS

You'd think photos would be the easiest thing of all to provide. We've all now got camera phones that take great pictures. I often try to justify my overpriced new phone to myself by thinking that I actually bought a really great camera, with a phone thrown in for free. But the Government of Canada has yet to enter the digital photo age.

When I went to get my United Kingdom passport (I'm a dual citizenship), they were more than happy to accept the $3 mall photo booth strip of photos I had procured. Not so with Canada. Mess up the photos, and your application will get returned, sometimes with little explanation as to what went wrong.

Photos have a mere 15 requirements to qualify as acceptable (as quoted from the IRCC website):

  • Photographs must be printed on quality photographic paper.
  • Provide the name of the photographer or the studio, the studio address and the date the photos were taken on the back of the photos
  • Print the name of the person on the back of the photos.
  • The photographs must be identical and taken within the last six months. They may be either black and white or colour.
  • The photographs must be clear, well defined and taken against a plain white or light-coloured background.
  • If the photographs are digital, they must not be altered in any way.
  • Your face must be square to the camera with a neutral expression, neither frowning nor smiling, and with your mouth closed.
  • You may wear non-tinted prescription glasses as long as your eyes are clearly visible. Make sure that the frame does not cover any part of your eyes. Sunglasses are not acceptable.
  • A hairpiece or other cosmetic accessory is acceptable if it does not disguise your normal appearance.
  • If you must wear a head covering for religious reasons, make sure your full facial features are not obscured.
  • The frame size must be 50 mm x 70 mm (2″ x 2 ¾″).
  • The photographs must show the full front view of the head, with the face in the middle of the photograph, and include the top of the shoulders.
  • The size of the head, from chin to crown, must be between 31 mm (1 1/4″) and 36 mm (1 7/16″).
  • Crown means the top of the head or (if obscured by hair or a head covering) where the top of the head or skull would be if it could be seen.
  • If the photographs do not meet the specifications, you will have to provide new photographs before your application can be processed.

Don't staple the photo to the application - a paperclip is the most severe form of attachment tolerated.

So to avoid errors, especially as to size, just go to a passport photo place. Drug stores often do this. For about $10 or $15 dollars, you'll get your two photos. The Government of Canada is really picky about its photos.

Succeeding in your citizenship confirmation application involves not just adhering to the letter of the law, or the letter of government policy, but also the letter of the minute application instructions. Misinterpret those instructions, and you'll be receiving a return to sender envelope from Immigration, Refugees and Citizenship Canada. 

Bucket List of Top 5 Legal Things You Should Do Before You Die

I like those bucket list books as much as anyone. 100 places to see before you die. 100 foods to try before you die. 100 adventures to have before you die. 

We might like the lists as much for proving to ourselves we've actually done a few (maybe very few) of those things, as we do for their giving us new ideas of places, food and things to do! 

I've never heard of a bucket list of legal things to do before you die. So I'm giving you my top five legal things you should do before you die list. And unlike those other lists, for these you really do need to get through all of them - even if it takes you a few years. It's never too late. 

1. Make a Will

Even if you don't think you've got much in the way of property or dependants, no one knows better how things should be taken care of after you pass than you do. Everyone needs a will. And I do mean everyone. 

2. Make a Continuing Power of Attorney for Property

With people living longer and longer, there's an ever increasing risk that you might become mentally incapable long before you die. You need someone other than the government who is empowered to look after your property, including being able to use your assets to pay for your care.

3. Make a Power of Attorney for Personal Care

You know best what kinds of medical decisions you would like to be made about your life, and a power of attorney for personal care in Ontario (sometimes called by other names elsewhere) is the only way to pass on those wishes if you're incapacitated.

4. Update Your Life Insurance Beneficiaries

Contrary to what many people think, life insurance does not pass through a will if you've named particular beneficiaries in an insurance policy. If you're younger, life insurance might be your greatest asset, but your personal circumstances could have changed from the time you originally named beneficiaries. Make sure the person(s) you wish to receive your insurance payout really are the ones named in the policy. 

5. Ensure Someone Knows Where all Your Legal Documents Are  

While a few smart places (like Quebec) have government registries for wills, most (like Ontario) don't. So it won't matter how many of these things you've crossed off your bucket list if no one can find the documents you've created!

Ideally, you'll leave them with the lawyer who drafted them. But lawyers get old just like everyone else, and the documents could be difficult to track down. So make sure someone you trust - preferably your executor - knows where to find the documents, and absolutely don't leave them in a safety deposit box because no one may be able to access it without possession of the documents that you've locked in the box. 

Top 5 Things Never to Do in a Property Dispute

I’ve devoted much of my legal career to attempting to demystify the law for people. To convince them that lawyers don’t hold all the secrets to the black letter law arts, and that everyone can read and interpret the law - though getting a lawyer’s advice is always helpful. 

But there are unfortunately some areas of law that are a lot more impenetrable than others, usually because of two factors:

  1. the amount of time the area of law has been in existence;
  2. a lack of legislative codification.

Meaning 500 years of cumulative law is a lot more difficult to figure out than 50 years of law, and a well organized 500 pages of law that has been recently refined by the legislature is much easier to deal with than 50 separate statutes passed over the last 100 years

Real property law unfortunately falls into the just really complicated category of law that’s been around a very long time, and is spread over an awful lot of statutes. It’s especially too bad for it to be so complicated, as a very large number of Canadians will have reason to be involved with it over the course of their lifetimes in buying or selling property, as compared to other more niche areas of the law which might be easier to figure out, but where few people will ever need to understand them.

I find disputes over real property all too common, and they tend to take on a nasty tinge that only neighbours who aren’t related to each other, but are still stuck coexisting side by side, seem to be able to develop for each other. Perhaps it's the helpless feeling of being stuck next to someone, and perhaps even seeing them every day, but not being able to interact with them to resolve the issues involved.

Some of these disputes can be resolved without going to court, though I find some lawyer involvement is usually necessary to figure out what each party's rights truly are. Occasionally only a court can sort out who has which real property right, and what's the appropriate remedy to enforce those rights. 

Here are my top five things to never do in a property dispute. 

1. Lack evidence

In almost any legal dispute, the burden of proof is on the party making the argument for the remedy. So if you think you have a right to cross your neighbour’s backyard in order to get to your garage because all owners of your property for the past 40 years continuously have been doing just that, you better be sure of your evidence. Knowing you’re right, and being able to prove it, are not the same thing. 

2. Fail to get a survey

It's easy to think you know where the boundaries of your land are. But do you really?

Just because you think the property line is where the fence is, if you don’t have a recent survey prepared by a licensed surveyor, you need to get one done. Surveys are endlessly useful, not just in establishing boundaries, but also for determining where easements sit, how far an encroachment cuts into your property, or just generally as an aid to later selling your house because buyers can have confidence in knowing exactly what they are buying.

3. Fail to get a title search

It's also easy to think that you have absolute ownership over your property, but in fact none of us does other than the Crown. At best, we own “fee simple” which still means Crown title underlies our land (thus making things like expropriation possible). And sometimes there could be all sorts of other rights or charges registered on our land that we don’t know about. 

Only an up to date and probing title search, carried back sufficiently in time (rather than just looking at the last transaction) will truly tell you about the rights hovering over (and under) your property. 

4. Fail to make a title insurance claim

Title insurance is increasingly common, and could pay all your legal fees or damages if you wind up with a previously unknown title problem to your land after you’ve closed a purchase for which you bought residential or commercial title insurance at the same time.

There's a lot of paper produced at the time you buy real property, so it's understandable you might not have poked into that thick reporting package envelope your real estate lawyer sent you all those months or years ago. But go take a look. 

You might discover a few pages mentioning that you did indeed agree to buy a policy from one of the major providers like First Canadian Title or Stewart Title. There's no guarantee (like any insurance policy) that they'll cover your loss, but there is no downside to making a claim. 

My personal experience is that sometimes you'll get coverage, and sometimes you won't, with the results really depending on your factual situation as compared to the wording of your policy. It's often helpful to retain a lawyer to assist you in making a claim because of the complexity of property law, but it's not required. 

5. Fail to get legal advice prior to acting

A couple of hours of legal advice from a lawyer is a bargain compared with the dozens or even hundreds of hours that can be burned through in a court case if you proceed to do something on your land that it later turns out you had no right to do, like block a laneway, cut down trees, or erect a fence. 

I offer you this suggestion not out of self-interest - I make more off court cases than I do legal opinions - but rather because of the unfortunate real property difficulties I see people get themselves into time and time again, that can be very costly to dig out of, and that are completely avoidable with a little advice.

The Top Reason to Never Do Your Own Separation Agreement or Divorce & It's Not Because Lawyers Need All Your Money

The vast majority of family separations and divorces are settled out of court. Only about 1% of family cases in Canada actually get to trial. But building a solid family law settlement is somewhat analogous to building a sound house: you've got to start with a good foundation, and while you might be able to do a bit of wiring and plumbing yourself, foundations are best left to the professionals. 

DIY agreements live in the moment

Many of the family law cases I assist clients with in court as a barrister started years before I got involved. Couples with good intentions, full of emotions surrounding a separation, worked out agreements that seemed reasonable at the time, and committed them to paper. 

Usually those agreements took up only one or two pages for the couples to draft the key points that were important to them at the time. Sometimes they validated the agreements through obtaining consent court orders, and were reassured that because there was a court seal on their agreements, they must be legal and binding for all time. Sadly, they couldn’t be more wrong. 

If there’s something to potentially fight over you need a lawyer

If separating couples have no children, truly no assets, and very modest incomes, they may not need a lawyer because there really isn’t anything to fight over. Everyone else needs legal advice, and a lawyer to draft their separation agreement. Trust me on this. I’m a lawyer. Would I lie to you?

After the separation agreement is done, you might be able to do your own divorce (though the additional the cost of doing a divorce at the same time as the separation agreement is negligible). But it’s the separation agreement that’s the foundation for the post-marital house the former spouses will both be stuck inhabiting for a long time to come.

And the top reason is ...

The top reason to never do your own separation or divorce is because your mutual no-lawyers agreement won’t resist future discord between you and your former spouse. It won’t be resilient. And it won’t stand up in court. 

So long as you and your former spouse will get on well for decades to come, the DIY agreement may be just fine. But if you got on really well as a couple, you probably would not have split up to start with. Thus just as with marital relationships, post-marital relationships (including post-common law relationships) will have their ups and downs. I know I’m stating the obvious, and I’m not a psychologist, but my goal is to explain what I observe on a daily basis as part of my practice to be the adverse legal consequences of those ups and downs. 

When you’ve got an up, both parties might honour a DIY agreement, though its lack of detail may cause tensions because children’s holidays, or expenses, or division of family property really weren’t sorted out in sufficient detail after all. When there’s a down, the entire agreement may be repudiated, with one of the ex-spouses now claiming retroactive child support, retroactive spousal support, and a redivision of the family property right back to the time of separation. And they might win.

Beware current online separation agreement tools

As Canada’s former Director of E-Business Development, I love technology. I believe it to be the future of legal practice, and the best hope for improving lawyer-client engagement and court efficiency. But current online technology is decades away from being a substitute for sound legal advice from a licensed lawyer. 

There are now some amazing online family law tools available, most notably www.maysupportcalculator.ca/calculator which is great for figuring out likely amounts of child and spousal support; it’s a giveaway from the software creators of DivorceMate that all lawyers use. But online fill in the blanks separation agreements just won't cut it until artificial intelligence advances greatly.

If you wouldn’t dream of taking out your own appendix, then you shouldn't be trying to do your own separation agreement. DIY for either has huge risks of future complications, even if you survive the initial process. 

5 Things to Never Do if You Want to Avoid Family Feuds Over Your Estate

In the "good old days" (which often weren't so good), most of us died relatively poor, and there wasn't a whole lot left to divvy up among those who survived us. With recent significant increases in home ownership equity, if you die owning a mortgage-free house you now often die rich. Plus there may be life insurance and investments to distribute. This is all great for one's survivors, but not so great if family relationships are already a little strained at the time of your passing. 

In the old days, even if beneficiaries of estates were inclined to squabble over who got what, they did not often retain legal counsel since the legal fees would outweigh the money in dispute. But now "lawyering up" prior to estate distribution is becoming much more common. 

In my estate litigation practice, I consistently find the disputes far nastier and more intractable than the conflicts in my family law practice. 

Here I offer you five things to never do if you want to avoid family feuds over your estate.

1. Have No Will or a Very Outdated Will

It continues to amaze me how many smart, hard working people - including even lawyers I know - have no wills! Or they last updated their wills 40 years ago when they had far fewer assets, and their family members were far less numerous. It's got me thinking about what an unpleasant thought mortality is for many of us. 

The default operation of the law is a very poor guide as to where your estate should go, and for who should be appointed to administer it. Wills are quick and relatively inexpensive to have professionally prepared, and a carefully drafted will minimizes later family beneficiary conflict - you need one. 

2. Appoint Several Simultaneously Acting Executors

Picking the right executor for your will may be more important than picking the right beneficiaries. People often spend months debating who should or should not receive that prized china tea cup in a will, but take about five minutes (literally) to determine who should act as executor and estate trustee in a very onerous and complex role. 

Your executor is THE key player who will determine whether your estate is distributed hassle free, or with acrimony and litigation lawyer involvement. While many think that appointing several people to simultaneously act as executor will permit spitting the workload and ensure all those important to them have the “honour" of being executor, the reality is that being executor is a thankless job where nothing may get done if it proceeds by committee. 

Picking someone (and only one person) who is relatively impartial (and ideally not a major beneficiary, but who is compensated for his or her effort), has some financial abilities, and has people skills, is the usually the best strategy. 

3. Appoint No Alternate Executors

No where else in the legal world do we draft binding documents that only take effect many decades in the future, when factual realities may have changed dramatically. Thus planning for changing contingencies means having one or more backup executors. The person you name today might be dead, or incapacitated, or unable to be located, or just plain not willing to act 30 years from now. So you need a backup. And all executors you name should preferably be younger than you are to hedge your bets that you won’t run our of executors.

4. Distribute your Actual Assets Rather than Shares

As much as you might want to leave your house to one person, and everything else to another person, be aware that the legal result of you not having that house 20 years down the road when you die will be that the person who was supposed to get the house will receive nothing, and the person who you intended to receive everything else will receive 100% of your estate, including possibly all of the proceeds of sale of your house if you invested the money! 

So try not to give “specific bequests” in your will of anything more than nominal value, just use “shares” where you split up your estate into slices of the same pie. Some can receive a bigger slice than others, but this way everyone gets dessert. 

5. Completely Exclude Anyone who is Deserving from your Will

The more people you "cut out" of your will who might usually be expecting a gift, the more you heighten the chances of one of them challenging the will. You definitely don't need to treat everyone equally (at least under Canadian common law in Ontario), but if you have three children, and you give two of them $100,000 each, and the third one nothing, you are asking for trouble. Even if you have good reasons for doing so. 

If you are planning to cut someone out totally, don’t leave them the insulting $1 of times gone by, just explain briefly why you are doing it so they don’t later claim you simply forgot them, or had a clouded mind at the time of your will drafting. But do anticipate that even with these good reasons, you might be creating a lot of hassle for your executor and beneficiaries because of the estate litigation risk that is being created. 

Far better to give someone substantially less than others similarly placed - like $25,000 rather than $100,000 - because it will blunt the litigation urge. 

5 Things to Never Do if Stopped by Police on a Highway

Most of my criminal defence practice covers about 300 kilometres of Canada’s busiest highway, running from the Quebec-Ontario border in the east to Belleville in the west. While my work often involves helping individuals who live in the communities like Cornwall, Brockville and Kingston that are arrayed along that Eastern Ontario stretch of the Highway 401 (is there anyone who actually calls it by its official Macdonald-Cartier Freeway name?), it’s especially common for me to assist those who who were just passing through - often on their way to or from Montreal or Toronto, and points further east and west. They might get stopped by police along that all so busy corridor for one minor reason or another, but then things escalate.

If you’re ever stopped, I can offer you my top 5 things to never do if stopped by police on the highway. 

1. Lie to the Police

Yes, I know this one seems obvious. But police stops are stressful experiences. We can all do stupid things. We might not be thinking clearly. Often, you’ll have done nothing wrong, but lying to police can constitute the criminal offence of obstructing justice. So don’t give a false name. Don’t give a false birthdate. Don’t lie about where you are going, or what you are doing. 

2. Volunteer Information

No one has a legal duty to help the police, beyond providing very limited information mandated by law. If the police ask you about your name, you likely need to give it to them. If you are driving, you need to provide a driver’s licence, registration, proof of insurance, and limited other driving-related information if asked. But the police generally can’t force you to talk, regardless of whether you are the target of an investigation, a witness to an event, or just someone they casually encounter. 

3. Refuse to Provide Driving-related Information if Driving

Because driving a motor vehicle is a privilege, and not a right, the police can force you to talk about your driving. Beyond providing documents, if you’re involved in an accident the police can demand your side of the story. For regulatory purposes, there’s no right to remain silent. This rules also applies to other regulated activities, like when a regulatory agency is investigating your fishing activities, your hunting activities, or your income tax return.

A regulatory investigation can’t gather information compelled from you predominantly for the purpose of incriminating and charging you. But that can be the end result. Federal and provincial legislation creates many “information demand” powers in the regulatory context, but not in the criminal context. So a lawful drug manufacturer can be forced to talk, but an illegal drug dealer can’t. 

4. Refuse to Provide a Breath Sample

Even if you’ve been drinking, you very well might not be over the legal limit of alcohol in blood concentration, or otherwise impaired. But if you refuse a police demand to provide a breath sample, what your blood-alcohol level really was becomes irrelevant. Refusing to provide a sample is as serious of an offence as impaired driving or over .08.

There is a mandatory minimum fine upon conviction for refusing to blow, meaning you’re guaranteed to acquire a criminal record. So don’t worry about whether the demand for a sample is legal or not - let your lawyer worry about that later - just cooperate. That advice applies to all police activity. A search could be illegal, an arrest could be illegal, these are all things your lawyer might be able to raise later at your trial, and the illegality might very well lead to your acquittal. But don’t try to figure them out the lawfulness at the time of the events. Just let the police do their thing. 

5. Agree to a Search of Your Vehicle or Person

I get that there can be lots of psychological pressure to agree to a polite request “to take a peek in your trunk, just for a minute” even if you have 10 kilos of neatly packaged powder cocaine sitting in that trunk (true story, it happened on the Trans Canada Highway, and the driver did indeed say something to the effect of “No, I don’t mind of all, go ahead”). Either the police have the power to search, or they don’t. Sometimes they can lawfully search incident to arrest for evidence related to the offence they have reasonable and probable grounds to arrest for. At other times they will need a search warrant to conduct such a search. You should never try to obstruct their searching; but you shouldn’t consent to it.

5 Things to Never Do if you Hope to Successfully Appeal Your Income Tax Assessment

Every year around this time, I receive an increasing number of calls from prospective clients who have received assessments, requests for further information, or notices of audit from the Canada Revenue Agency. While all this correspondence needs to be dealt with in a timely manner, it's the assessments and reassessments that are the most sensitive because of the strict rules on how they can be challenged. Here are my top five things you should never do you if you hope to successfully contest your income tax (re)assessment.

1. Be Late in Objecting to the CRA

You only have 90 days from the date of the Canada Revenue Agency's Assessment or Reassessment to file an objection. While under exceptional circumstances you might be able to get an extension of that time, you can’t just ignore the deadline, or wait until you have gathered together all the information you think you might needed. Even if your objection is imperfect, file it anyway. You can always add additional information later. 

2. Miss Your Appeal Deadline with the Tax Court of Canada

If you lose your internal objection to the CRA, you’ll only have another 90 days within which to file your appeal to the Tax Court of Canada. The Court is completely independent of the CRA (unlike the internal objection procedure), but there are still strict (but different) rules on how you must craft, present and file your dispute of your (re)assessment. 

3. Hope Your Accountant or Tax Preparer Can Represent you Before The Tax Court

While you can appoint an accountant or tax preparer to represent you at the objection stage with the CRA, only a lawyer can represent you before the Tax Court. It can be any lawyer in Canada - there is no special sub-class of tax lawyers - but be aware that very few lawyers do work before the Tax Court because it has its own rules of procedure that are different from all other courts in Canada. The judges even wear purple sashes, which are very distinct from the usual red sashes of most courts in Canada. 

4. Fail to Sufficiently Explain Why the CRA is Wrong

As the taxpayer, the Income Tax Act puts the full burden of proof and argument on you to dispute any CRA assessment or reassessment. The CRA is presumed to be right, and it is up to you to prove them wrong. This burden is completely the opposite of criminal proceedings, where the burden always falls on the police and Crown. It doesn’t matter if you think this unfair, this is the way Parliament set up the tax system. 

5. Fail to Produce Compelling Evidence to Prove Your Case

Talk is cheap. What courts and the CRA objections branch like to see are documents. So saying you’re entitled to all sorts of deductions without any proof of your expenses, or saying all that money that flowed through your bank account isn’t taxable income even though you have no alternate explanation of where it came from, or arguing that your 10 million dollar mansion was acquired just by clipping coupons, without any proof of where you got the money to pay for it, won’t fly without hard proof.

Survive Working with a Barrister in Canada: 4 Things You Need to Know

In Canada, barristers are simply lawyers who go to court. Unlike in England, they're part of the same law societies as solicitors. While we've never worn white horsehair wigs unlike many other commonwealth jurisdictions - I've heard they were too difficult to obtain in Canadian colonial times - we do sometimes wear black robes that have a habit of getting caught on door handles as we attempt to swish imperiously in and out of rooms. 

Your life working with a barrister can be productive, or it can be miserable. In this post I'll explain to you the four steps you need to follow to make the relationship the former, and not the latter.

It doesn't matter if you're being dragged kicking and screaming to court in response to a criminal charge, are embroiled in a small claims or Superior Court of Justice civil suit, are trapped in family law proceedings, or maybe you need to initiate a court application to clarify your rights over real estate or the interpretation of a will. Unless you're planning to do the case yourself - and in over two decades of practice I've seen few positive outcomes for those who try the DIY route - you'll be stuck working with a barrister.

Step One - Be Sure You Need a Barrister

Clarify at the start of the relationship why you need the barrister. Many people come to see me thinking they might benefit from a lawyer, but aren't quite sure what the lawyer can do for them. I always tell my clients that a little legal advice can be a bargain. But going to court unless you absolutely have to go is never a bargain. 

When you do speak to the barrister, explore upfront exactly how he or she might be able to help you. Don't accept vague answers from a barrister about his or her plans to help you. Instead, push the barrister to explain step by step what his or her plan is for you. 

You might not really need a barrister. And it could be worth a free five minute phone call or a one hour paid consultation in order to find that out. Even if you pay up front for a bit of advice on your matter, possibly including asking the barrister to write you a formal legal opinion about the likely prospects of success of your case in court, it will still be way, way cheaper than spending money on court legal fees once litigation has started.

You might need a psychologist or family therapist or credit counsellor or accountant more than a barrister. If you have a neighbour dispute, you should weigh the expense of a real estate agent versus a barrister. Family counsellors for marriage troubles are definitely cheaper than family lawyers. I'm not suggesting other professionals can definitely fix your problems, but they might provide a more graceful exit to them than would litigation.

However, sometimes going to court will be the only option. 

Step Two - Clarify the True Cost of the Barrister

Demand up front from the barrister a fair assessment of fees for your matter, and in turn be prepared and realistic about your ability to fund those fees. Push the barrister for a block flat fee if possible, even if it's only for specific stages of a case, as that will best control and predict your costs. 

If fees need to be hourly, make the barrister explain why. And don't make the mistake of thinking a lower hourly rate will necessarily lead to a lower cost of the case, since a cheaper by the hour barrister might have less experience, and consequently wind up spending more time on your case. 

Also don't be shocked by barrister fees. Many solicitors actually take home more money than barristers, but people don't complain about their seemingly "smaller" fees which are based on volume and where much of the work is being done by trained clerks. By comparison, barristers will be doing most of your work themselves, and court cases tend to suck up an enormous amount of lawyer time as compared to a simple real estate transaction which a lawyer might only personally spend one or two hours working on. 

If you can't afford the fees, tell that to the barrister upfront. There may be less expensive ways of proceeding available, even if they're not the preferred ways of proceeding. Don't mislead yourself about being able to afford a potentially very costly case because you think it will settle. You always need to plan for the worst case scenario when it comes to litigation. 

Regardless of whether the fees are block or hourly, don't let the barrister be vague about how extras like "disbursements" can drive up those fees. Establish at the start if there are likely to be significant disbursements like transcript costs, expert witness fees, or printing and binding fees. 

A rule of thumb is that criminal cases tend to be cheaper than civil cases - even small claims - because they simply take up less barrister in-court and preparation time, settle at earlier stages, and involve fewer pre-trial proceedings. You'll usually be able to get a block fee from a barrister for a criminal case, but civil cases will usually be hourly because they're less predictable. 

Costs of appeals for civil or criminal cases depend upon the complexity of the trial; a four week trial with 500 exhibits is going to cost more to appeal than a one day trial with five exhibits. But you may be able to get a block fee quote for an appeal - all the appeals I take on are done as block fees. 

Step Three - Work Collaboratively with the Barrister

Press the barrister from the start of the relationship on what he or she needs from you. You giving the barrister appropriate help from the get go will make the relationship far more successful and cheaper for you. 

Does the barrister want a factual chronology? A list of witnesses together with their addresses and phone numbers? Copies of possible court exhibits, including photos? You won't be able to anticipate all barrister needs, so ask. If you're having trouble getting direct answers on needs from the barrister, press the barrister's law clerks for what kinds of things they usually collect for cases. You need to work collaboratively with the barrister. 

Your physical health is a collaborative endeavour with your family doctor. Same with your legal health where your barrister is concerned. 

If the barrister seems completely disinterested in your opinions, and your collaboration, find another barrister. 

Don't make the mistake of thinking that your only obligation in working with a barrister is paying the bills. Really your barrister is more of an interpreter, and negotiator and intermediary between you and the court; your barrister isn't your replacement or doppelgänger. Making your barrister relationship the most result and cost effective possible requires your full participation in the case.

Step Four - Continuously Evaluate What Would be an Acceptable End Result

Evaluate in advance of retaining the barrister, and continuously reevaluate during the course of your barrister-client relationship, what would amount to an acceptable court result or end game for you. Don't enter the relationship with vague notions of "total victory" as even if your barrister gets you to that point, you might might no longer be capable of recognizing what victory looks like after you've been in the court process for too long. So be realistic in your court outcome expectations, and continually examine the options you're presented with for getting off the litigation treadmill. 

I'm not saying you can't aim higher than the minimum acceptable result, just that you need to consider your options from the start. It might take you weeks of careful reflection to figure out what result you really want. You'll have the necessary time to reflect if you consider things from day one of the barrister-client process. You might only have 24 hours to decide on a deal once a firm offer is made. If you really didn't "do it" in a criminal case, then make clear up front to your barrister that the only acceptable result to you is full exoneration. That way he won't waste his time trying to negotiate a deal for you, but rather will first try to convince the Crown to drop the charges, and second will simply prepare to take your case to trial. 

In civil cases, an acceptable result might be more intangible. One crucial factor you must consider is that you don't want to spend more on barrister fees than you save in settlement payments. As much as you don't want to give the other side a penny of your hard earned money, a good barrister will be frank with you about when your legal costs will outweigh your potential civil windfall.

For instance, if you hire a lawyer to sue someone in small claims court for $5000 in damages, get a judgment for $4000, get $750 in court costs, and pay $5000 in legal fees, and you'll be $250 poorer than when you started. But get a judgment for $20,000 with $3000 in court costs, and you'll be $18,000 ahead on that same $5000 amount of legal fees. So for civil matters, you need to be really careful in evaluating how much your case is worth - regardless of whether you're the plaintiff or defendant. 

If any barrister you're considering retaining seems reluctant or evasive to ballpark what kind of legal fees you might be facing at different stages of your case, and will only reveal his or her hourly rate, find another barrister.

But there are things worth fighting for, even if fees climb. For the control and survival of your business. To be able to continue to practice your profession. For the custody of your children. Just be realistic about what result you can live with, based on asking your barrister about the likely outcomes. But because your barrister may have hundreds of clients, don't expect him to be able to pry out of you what you really want, and to read your mind, if you don't tell him. 

HOW TO CLAIM CANADIAN CITIZENSHIP BY BIRTH OR DESCENT - A GUIDE ESPECIALLY OF INTEREST TO AMERICANS

In 2017 I’ve seen a huge uptake in potential client enquiries, especially from Americans, about confirming their proof of Canadian citizenship.

Canada has one of the world’s more liberal citizenship regimes, where you can be eligible for Canadian citizenship and acquire proof of that citizenship primarily by way of: (1) location of birth in Canada; (2) at least one parent being a Canadian citizen; or (3) by a naturalization application process after being accepted as a permanent resident.

THE SIMPLICITY OF CANADIAN BIRTHRIGHT CITIZENSHIP - JUS SOLI (RIGHT OF SOIL)

Lawyers love Latin, and citizenship law is no exception. Jus Soli is the technical legal term for citizenship acquired through birth. Only about 30 countries in the world - almost all of which are in North and South America - unconditionally grant citizenship to anyone born within their territories.

Lex Soli is the term used for the body of law governing if and how Jus Soli applies. Canada does have a narrow exception to Jus Soli in that if neither parent is a Canadian citizen or permanent resident, and either was employed at the time of birth by a foreign government or international organization in Canada, then you’re not entitled to Canadian citizenship even if you’re born in Canada. This is more than a theoretical exception, as Canadian-born Deepan Budlakoti found out when he was effectively rendered stateless through this process. 

A certified copy of your birth certificate from a Canadian province or territory is the main document you’ll need to submit with your application to claim Canadian Birthright Citizenship.

THE COMPLEXITY OF CANADIAN CITIZENSHIP BY DESCENT - JUS SANGUINIS (RIGHT OF BLOOD)

Citizenship by Descent - also known as Jus Sanguinis for Latin lovers - gets more complicated than Birthright Citizenship. There are several exceptions to Jus Sanguinis in Canada, and not just who you were born to but also your date of birth can be very important.

Generally the Citizenship Act grants Canadian citizenship to those born outside Canada to at least one Canadian parent, but the Act was recently changed to limit that citizenship by descent to one generation, meaning the children of children who so acquired citizenship by decent won’t also become Canadians automatically. Thus you’re a Canadian if one parent was a Canadian, but not if only a grandparent was a Canadian. 

However, and this is a BIG however, the "first generation rule" only came into force on 17 April 2009 and is not retroactive. So if you were born prior to 17 April 2009 when the new rule came into effect, you’re in luck and can still claim Canadian citizenship regardless of how many generations back your Canadian direct ascendents were born in Canada (subject unfortunately again to some exceptions). This is especially important for Americans, who may be descended from Canadians who moved to the United States for economic reasons a number of generations ago.

For proof of citizenship by descent, in addition to a copy of your birth certificate from the country in which you were born listing the names of your Canadian parent(s), you’ll also need proof of at least one of them being Canadian such as their own birth certificates or their citizenship certificates. If you’re hoping to prove a higher generation of descent, you’ll need birth certificates and proof of citizenship up the chain of descent. 

You’ll also need certified translations of any documents in languages other than French or English. 

Unlike Birthright Citizenship, Citizenship by Descent can get very complicated. I often recommend a consultation with an immigration lawyer for those hoping to claim Citizenship by Descent in order to avoid frustration and disappointment over (mis)assumptions and the proof required.

WHY YOU NEED TO APPLY AS SOON & AS COMPLETELY AS POSSIBLE FOR PROOF OF CANADIAN CITIZENSHIP

Current Government of Canada processing times for proof of citizenship range from five months to a year, depending on the complexity of your application. Even the slightest error in the documents you submit can result in your application being returned and you having to completely restart the process. Thus you should apply as soon and as completely as possible. You’ll find all the required government application forms online, including an estimate calculator for current processing delay times.

Obtaining proof of citizenship is something I tell my clients they can do for themselves. But if success on the first try and in as rapid a means as possible is important to you, consider using an immigration lawyer. Our fees (and the fees of most other lawyers who handle citizenship) aren’t especially high as compared to other kinds of more complicated immigration processes.

Another option most lawyers will offer is a consultation on eligibility for citizenship, when you are thinking that you may or may not want to undertake the application yourself, but wish to definitely confirm before doing so whether or not you’ll qualify. Canadian citizenship through birth or descent isn’t discretionary - either you’ll qualify, or you won’t. 

NO FEAR FAMILY LAW: TOP 3 TIPS ON HOW TO PREDICT FAMILY LAW COURT RESULTS

I'm not a fortune teller. I can't predict the future. But I can often predict family law outcomes, because the legal principles are so simple.

That's not true with every area of the law. Some practice areas are terribly complex. But not family law. It's the facts that get complicated - decades long decontructions of relationships - not the law.

"No Fear" Family Law aims to take away the fear of the unknown, and empower clients with knowledge of likley outcomes that usually aren't as bad as they fear. Here are three of my top likely outcome tips.

1. Shared custody - Custody will probably be shared if that is what the parents want, with no child support being payable. There are exceptions, but you may have a major fight on your hands to convince a court to give you an exception because of the fundamental principle that the best interests of the child involve maximizing contact with both parents.

Even where child support is payable, it will be according to a fixed table amount created by the legislature. Plug in numbers of children and parental income, and it spits out a number. Simple. What are known as "special and extraordinary expenses" - dentist, soccer, summer camp - are split as a percentage between the parents according to their respective incomes, even where no child support is being paid.

2. Equal split of property - Matrimonial property will be split evenly, except for property that was brought into the marriage. Again, there are some exceptions, but for long term relationships, splitting things down the middle is the norm since usually most of what couples have was acquired jointly, or at least shared jointly. Owning a business could introduce some complexity to this split, especially where both spouses have involvement in the business.

3. Spousal support depends on income disparity and length of relationship - Spousal support will only be payable where there is significant income disparity, and then only for about 3 years, unless it is a long term relationship in which case lifetime support may be payable, subject to a change of circumstances where the recipient spouse is later earning enough for self-support.

Unlike child support, there’s unfortunately no simple math formula for spousal support. Often about 20 to 25% of the payor’s pretax income is ordered in spousal support, but those payments will be tax deductible in the payor’s hands, and taxable in the recipient’s hands (child support is the opposite: taxed in the payor’s hands and not taxable in the recipient’s hands).

The major challenge in determining a fair level of spousal support is that income must be fairly established, as the claimant may focus on that one year with a very high income in the past, and the payor's income may have fallen dramatically because of the family breakup.

Although you might be hoping for different outcomes than my top 3 predicted family law outcomes, you'll have to fight very, very hard, have very compelling facts, and have considerable legal resources to achieve dramatically different results. But definitely details on how these results are implemented are very important to negotiate or have a court decide upon, and can vary greatly from case to case.

Read More About "No Fear" Family Law.

OVERCOMING CRIMINAL IMMIGRATION INADMISSIBILITY TO CANADA & SECURING YOUR WORK OR PLEASURE TRAVEL OR IMMIGRATION

We all make mistakes. Occasionally, for some of us, a mistake leads to some sort of “conviction.” A conviction could be the consequences of parking too long in a one hour parking zone, exceeding a highway speed limit, getting in a bar fight, shoplifting some sunglasses, up through more serious offences.

I’ve had clients enter Canada dozens of time, only to be told by the Canada Border Services Agency (CBSA) on their 57th arrival after landing at a Canadian airport, or crossing at a land border, that they’re inadmissible due to criminality. They’re put back on the next return flight from where they just arrived, or told to head their vehicles back in the opposite direction and not return. These are clients who might mostly earn their livelihoods in Canada as sales reps, or have close family in Canada. They’re understandably shocked at being refused entry, especially because some of them have been previously welcomed to Canada so many time with open arms. The thing they all share in common is one or more “convictions” somewhere in their pasts, sometimes decades previously, and sometimes for acts that aren’t even considered “criminal” where they come from.

THE LAW

Section 36 of the Immigration and Refugee Protection Act governs criminal inadmissibility, explaining rather cryptically:

A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

The problem is that it can be very difficult for those visiting (or moving to) Canada to know: (1) whether the thing(s) they’ve done in the past are caught within the criminal inadmissibility drag net, and (2) even if they are caught up in inadmissibility, can they be considered to be rehabilitated?

One of the most problematic offences is impaired driving (DUI). In some countries, it's considered a regulatory highway traffic offence, and not a criminal offence. And even where it is a criminal offence, a person might not have been formally “convicted” of it. And further confusingly, while DUI is usually prosecuted in Canada as a summary conviction offence, because at the Crown’s election it can also be prosecuted by indictment it means that a single DUI can make you criminally inadmissible.

THE FIX

But there is a fix to all of these problems: criminal rehabilitation. It’s an application process which demonstrates to the Canadian government that because of the passage of time since your conviction, and because of your having stayed out of trouble since that time, you shouldn’t be excluded from Canada. It’s akin to an immigration criminal pardon! I’ve also found that unfortunately sometimes the CBSA makes mistakes, and declares criminally inadmissible people who don’t at all fall within that category, but you may still need a lawyer to correct that mistake.

While there are certainly some immigration procedures that you might try to undertake yourself, I urge you to retain a lawyer to assist with criminal rehabilitation. You might even need two lawyers - one from your home jurisdiction where the offence was committed and one in Canada - to deal with the translation of the foreign conviction into Canadian legal terms. This isn’t always necessary for countries having similar legal systems to that of Canada, like the United States, but your Canadian immigration lawyer can discuss the precise procedure with you depending on your circumstances.

THE PROCESS

Generally the rehabilitation process involves you gathering together your prior conviction information, having criminal record checks done in every jurisdiction you’ve lived for a significant time, and then a Canadian lawyer will present your rehabilitation application to the Canadian government. Some applications are more straight forward than others, depending on the number and severity of prior convictions, and how much time has passed since those convictions. You’ll usually be barred from Canada until your application has been reviewed, so the sooner you undertake the rehabilitation process, the faster you’ll have a chance of reentering Canada.

And don’t wait until you’ve been barred from Canada to start this process. If you have an upcoming visit to Canada, and have prior convictions, consult a Canadian immigration lawyer prior to your visit about whether a criminal rehabilitation application might be necessary. Even if you've been entering Canada repeatedly without a problem, don’t be lulled into a false sense of security as I’ve had clients who haven’t had entry problems for years who suddenly are banned from Canada for a year or more while we sort out the inadmissibility issue. Just because the CBSA hasn’t stopped you yet doesn’t mean that a new officer won’t take a different view of your past, and doesn’t mean that the CBSA won’t sign a new information sharing agreement giving it greater access to foreign criminal background data which might include your name.

Neither the CBSA nor the Department of Immigration, Refugees and Citizenship can give you legal advice on criminal inadmissibility. It’s one of the most complicated areas of immigration law because of the need to compare two different legal systems to see how a conviction in one system might match up with available offences in another system. So I do urge you to consult a lawyer prior to travelling to Canada so that you aren’t frustrated in work, family or tourism trip where you will have invested lots of time, planning and money. I likewise frequently refer Canadians to U.S. immigration lawyers to deal with criminal admissibility when travelling south.

Top 10 Ways to Stop Dead Internal Disputes Within Your Business Before they Arise

Media attention often focuses on business struggles between competitors, like apocalyptic patent litigation between Apple and Samsung. The popular allure of such disputes seems at least in part to be the same as the allure of athletic contests: conducted in public, among relative equals, with the perception that winner takes all.

Less talked about are internal disputes within businesses and their owners, be they two childhood friends who have tossed in some money to open a small restaurant and now can't agree on the menu, three professional dentist partners who disagree over how practice profits should be split, or four large corporations undertaking an oil and gas resource exploration joint venture who can't settle on where to drill. These internal disputes are likely more preventable than the external ones with a bit of early planning, and perhaps a little legal advice. While the type of dispute prevention will vary according to the type of business and the parties involved in the business, there are a few fundamental principles that can help everyone prevent internal disputes from ruining otherwise successful business endeavours.

Tip # 1: Plan for some business dispute DIY prevention at the same time as you plan out how you are going to dominate your market segment with your new business. Dispute prevention works best in reverse. Meaning, figure out in advance the most likely areas of dispute a month, a year or a decade down the road among the owners of your business, and then work backwards to establish contingency mechanisms to resolve at least some of those disputes. Like, what happens if a co-owner wants out before the business is profitable?  

2. Put you business agreement in writing. It doesn't have to be a lengthy document. One hundred pages won't necessarily give you any more certainty than two pages. Seriously. A complex and prolix document may only give partners more language to fight over in the future, and likely won't be well understood at the time it is signed. But the writing is key, otherwise even two people who trust each other implicitly will tend to develop differing recollections of exactly what was agreed upon as time passes after the establishment of the business relationship. I'm not saying every single action needs to be fully documented, but at least be clear on the basics. I see a lot of disputes where very reasonable people who completely trust each other go into business with very different understandings of what has been agreed upon.

3. Be clear on the businesses legal structure. This isn't something you necessarily need a lawyer for; you can probably figure it out from Internet information. But a lot of people don't know how their business is legally established, which can have lots of consequences when it comes to ownership, debt liability, taxes and sharing of business control. Your main options are as a sole proprietor, as a partnership, or as a corporation. But things can get tricky when these three basic forms get combined. Like two people who believe they are each sole proprietors, when in fact the law deems them to be a partnership. Not only small businesses can run into trouble in this area; sometimes large multinational corporations get together to jointly pursue a business opportunity, and wind up in an accidental partnership when in fact they had intended a joint venture.

4. Be clear on who owns what. Putting everything in one party's name, with a verbal understanding that the other parties actually have ownership rights because they are contributing capital to purchase assets, is one of the best ways I can think of to later wind up in court fighting over assets.

5. Be clear on who is contributing to or paying for what. When people get together in informal ways, and start contributing money to get a business going, and later continue contributing money to keep the business going, they often don't divvy up expenses by percentage. One pays the rent. Another pays the electricity. A third pays for the inventory. Although perhaps initially convenient, this way of financing a business becomes difficult to track, and can lead to later disputes over who contributed more or less to the business. 

6. Be clear on how the profits will be utilized or divided. Whether there are any profits, and whether they will be reinvested into the business or taken out to pay the personal expenses of the owners, may quickly become an issue if business partners don't agree on a strategy in advance.

7. Be clear on who is responsible for the debts. Just because you didn't sign a loan guarantee, doesn't mean that you aren't on the hook for any debts of the business.

8. Be clear on the overall purpose of the business. A successful business that starts out manufacturing and wholesaling shoes may not make an easy transition into the electric car design field. Possible, yes. Easy, definitely not. If more than one person controls the business, they will need a common vision. Sometimes putting that vision in writing up front will help remind everyone of business' purpose if vision drift starts to affect performance later on.


9. Be clear on how disputes will be resolved. It's not possible to foresee and address all manner of future business disputes, even in the most complex of written agreements. However, the parties might be able to agree on a few basic points. Like that majority vote of the partners will be decisive on certain issues. That binding arbitration will be used for other issues. Or at least that a courts of a particular jurisdiction will be the place to settle disputes through litigation.

10. Be clear on how the business will be wound up or sold if one of the owners doesn't want to continue with it. People get tired. So do businesses. Sometimes it's better just to call it a day, and start one or more new businesses, rather than continue to fight to save or control an existing business. But every business needs an escape hatch, to avoid the captain(s) and crew becoming trapped in a sinking or fighting ship.

TO BLOW OR NOT TO BLOW, THAT IS THE QUESTION

You’re on your way home, coming back from watching a hockey game at the local sports bar with friends. You’re two blocks from your residence when you make that last right turn only to meet a lineup of vehicles, with blue and red flashing lights in the distance. The police are conducting a RIDE program. Soon after a uniformed officer walks up to your driver’s side window. The officer asks you a few basic questions on your whereabouts this evening. You comply and answer his questions. The officer then informs you that he has reason to suspect that you’ve been drinking and driving and ask you for a breath sample.

Do you have a right to refuse the officer's demand?

Although the officer cannot physically force you to provde a breath sample, refusing to comply with the officer’s demand is an offense, under section 254 of the Criminal Code, with serious consequences. In fact, the penalties are essentially the same as if you had failed the Breathalyzer test. Furthermore, a conviction may affect your livelihood, your ability to travel abroad and will likely increase your insurance rates.

Generally, lawyers will tell their clients provide a breath sample, because it’s usually only after having reviewed the disclosure that a lawyer can determine what types of defence have a reasonable chance of success.

What must the prosecution prove?

When someone refuses to comply with an officer’s demand of a breath sample, the prosecution must prove beyond reasonable doubt the element of actus reus, namely that a reasonable demand was made by the officer and that you failed or refused to provide the required breath sample. The prosecution must also prove the element of mens rea, namely that understood the officers demand and that the refusal was a conscious act.

For many people accused of refusing to provide a breath sample, this may bring feelings of embarrassment, helplessness and guilt, which in return may lead them to plead guilty and just get it over with. Although there is an incentive to pleading guilty early, namely within 90 days of the offense, before doing so, consulting with a criminal lawyer as soon as possible is highly recommended. Drinking and driving offenses are very complex and the defences will vary according to the facts of your case, therefore we welcome you to call for a free initial contact with one of our criminal lawyers.

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.

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.

FIVE THINGS TO NEVER DO IF YOU WANT TO SUCCESSFULLY APPEAL AN ADVERSE JUDGMENT

There comes a time in all our lives when we receive some kind of official pronouncement that we disagree with. Being rejected for a licence or permit. Being told that we don’t have the rights we thought we had. Losing in a civil money dispute, in family court, or even at a trial for a criminal or regulatory offence.

We might find the result hurtful and unjust. We might be outraged. And we might remain firm in our convictions over the justness of our cause!

Some will just swallow the defeat and move on. But others will want to continue the fight.

Most of the world’s legal systems have created fairness check mechanisms on first level decisions, regardless of who is making the decision or what subject the decision relates to. The buck almost never stops with the government desk officer, the hearing tribunal, or the trial judge. At least one level of appeal of an adverse decision is almost always possible if you look hard enough for an appeal route.

A psychologist could probably give you a helpful take on the emotional toll that fighting on entails, and what kind of person is more likely to continue to fight rather than throw in the towel. But my professional focus is solely on whether and how the continued fight can be won.

In the over two decades I’ve been helping clients with appeals (and watching others by necessity or choice represent themselves), I’ve seen lots of missed opportunities for winning appeals because of deadly but completely avoidable mistakes that people make shortly after receiving that decision they want desperately to overturn. Here are a Canadian appellate lawyer’s insider tips for five things you should never do (and I frequently see done again and again) if you want to continue the good fight, which should help you out regardless of where you live.

  1. BE LATE TO THE PARTY. It doesn't matter how great your arguments might be; if you're late on an appeal, you're almost always out of luck. And some appeal filing periods can be crazy short. Like 7 days from the decision. Usually you've got 30 days; occasionally as long as 90 days. In that time, you’ll need to find a lawyer (or figure out the process yourself), get a copy of the decision and the materials that were reviewed in making it (you might need to order transcripts or request government records), draft plausible grounds for appeal, track down the responding party to serve the appeal notice on, and file the notice with the office, tribunal or court hearing the appeal.

  2. GET LOST FINDING THE PARTY. There are more places out there to appeal to than you might expect. In federations like Canada or the U.S., you need to figure out if you’re going to a provincial, state or federal appeal body. You might also need to determine if you’ve got a final order or interlocutory (interim) order, as believe it or not their respective appeals might go to different places. After being late, appealing to the wrong place is probably the most common completely avoidable reason for failed appeals. I’ve seen enough lawyers get the appeal route wrong. Sometimes, even the courts themselves disagree over which one of them should be hearing an appeal!

  3. THINK IT'S SIMPLY ANOTHER KICK AT THE SAME CAN. The time to make your best pitch is with the first instance official, tribunal or court. Appeal bodies love the word “deference” to lower officials, and will liberally use that word against you if you don’t give them very good reasons why they should overturn a lower decision. You can’t usually appeal errors of fact, only errors of law (though it’s possible to turn big enough factual errors into errors of law). So it’s deadly to try to appeal on the basis that you think a decision is merely wrong, stupid, or misguided. Even if the person you’re appealing to is inclined to agree with you, she can’t simply substitute her own decision for the decision of the lower official. There has to be some kind of significant legal error you point out that is worth interfering with.

  4. ASSUME YOU'VE GOT AN EVEN SHOT. Casino gamblers and appeal gamblers both sometimes suffer from magical thinking on odds not rooted in reality. And while its easy to get stats on roulette with a double zero having a 5.26% house edge, it’s a lot more difficult to pin down precise odds on appeals. They’re definitely less than 50-50. Your best shot at winning is always at first instance - when you originally submit that government form or appear before that tribunal or trial court - not on appeal. In Canada, the odds of getting some kind of remedy out of an appeal are probably somewhere between 1 in 3 and 1 in 4, based on available appellate court data. If the stakes are high, those aren't such bad odds. But if you're fighting about a minor issue, you need to reflect on whether the financial and emotional cost is really worth it.

  5. ONLY MAKE ONE ARGUMENT. You might think you've found that one killer, slam dunk argument for an appeal. The one that no one could reject. But not everyone sees the world as you do. So even if a reviewer has sympathy for your cause, she may not buy your one argument wonder. Come up with more. I often come up with a dozen or more possibly viable grounds of appeal for clients. Sometimes we whittle that number down a bit for the actual appeal argument, but which of those arguments appeal officers and judges seize on as the winning strong argument continues to surprise me, so it never pays to limit your arguments other than eliminating the ones that stand no chance of success.

THE RIGHTS OF MOTHERS AND FATHERS IN CHILD PROTECTION CASES: THE NEED FOR EVIDENCE TO ARGUE FOR CHILDREN'S BEST INTERESTS

Everyone agrees the "best interests of the child" test trumps all in child protection proceedings. However, the innumerable child protection court cases which reveal five versions of children's best interests - the Children's Aid Society (CAS) version, the Office of the Children's Lawyer (OCL) version, the father's version, the mother's version, and the court's version - demonstrate the often highly subjective nature of children's best interest assessments. Child protection law is more "art" than "science." Which is why expert reports, while helpful, are never definitive in presenting the one ideal plan of care that will be in the children's best interests.

If one even looks at basic children's law principles like children are generally better off residing with their parents, parental contact should be maximized in access situations, and wishes of older children should be taken into account when making best interests assessments, competing views of best interests quickly turn the conversation into a quagmire if CAS insists neither parent is fit, both the mother and father insist it is the other parent who is unfit, and the OCL expresses the children's views that they want to live equally with each parent.

The demand you hear most often from child protection judges is for more evidence of best interests. Judges don't want to guess, they want to decide on facts. So if you - whoever you are - are putting forward a particular plan of care for a child, you're going to need some cold, hard facts to back up why that plan is feasible, rather than just wishful thinking.

Rules of evidentiary admissibility are pretty loose in child protection, so you don't need to get too hung up on legal formality. Letters written by relatives, or social workers, or medical professionals, or addiction counsellors can all work, though usually they should be appended as exhibits to someone's affidavit sworn to present the overall version of the facts. But each of those people don't need to file their own affidavits, and usually would not be required to attend court to testify. Getting your own expert witness would be best of all, but don't make the mistake of hiring an expert, and then rejecting his findings.

Showing up in court asserting your rights as a father or mother, arguing that a particular plan is in your children's best interests, and having no evidence whatsoever to back you up other than your own promises, usually isn't going to cut in in the face of conflicting CAS sworn evidence.

As a lawyer who represents fathers and mothers in child protection proceedings, I firmly advocate for my client's rights, and their views of what is in their children's best interests. However, my clients need to give me evidence that permits me to sell the court on the correctness of their arguments. So as soon you as father or mother learn that CAS is showing interest in your family, you should start compiling evidence that will assist you and your children in court much later.

FOUR INSIDER TIPS TO SURVIVING A DRUG CHARGE IN CANADA

Although the media is full of talk about the imminent legalization of the possession of small amounts of marihuana in Canada, the reality is that we may still be at least a couple of years away from legislation coming into force, that growing or selling your own marihuana will probably remain offences, and that courts will continue to be clogged with those accused of possessing, selling, producing or importing a host other recreational pharmaceuticals.

Being investigated, charged or going through the court process for a drug offence can be a very stressful life event. I served for many years as a Federal Crown drug prosecutor, and now defend those being investigated for or charged with drug offences. I've trained the police on how to properly draft and execute drug search warrants and wiretaps, make drug-related arrests and take statements from those implicated in drug offence. I've even published a series of books called The Investigator's Legal Handbook related to these issues. Being well informed is your best defence to a drug charge. Here I give you the four tips you need to follow to survive a drug charge or investigation.

Tip 1 - Say Nothing other than Identifying Yourself

Don't say anything to the police, other than giving them your correct name. And if you're driving, you're going to need to produce a driver's licence, vehicle insurance and registration documents.

Don't try to talk your way out of the situation. Don't deny anything. Don't admit to anything. Don't agree to let the police search anywhere. But follow their directions and be polite to them.

Whatever you say will be used against you later. Even if you deny everything, that could later be used against you. Trust me. I've seen it all before.

Regardless of whether you're walking along the street, driving in a vehicle, or sitting at home watching television, when the police come knocking, say nothing. Follow this tip, and the police will only be left with evidence of what they find or don't find. What others say or don't say about you usually doesn't count for anything in a criminal court drug trial, unless it's a police agent or police officer who is testifying. But what you personally have told the police counts for a lot.

Don't think even if the police aren't making a recording of what you're saying, or aren't writing it down in a little black notebook, that it can't later be used against you. Say nothing. That's your right, so take full advantage of that right.

However, don't try to obstruct the police in doing their jobs. If they've got a warrant to search your house, let them get on with their job of searching. Let your lawyer later figure out if it was a valid or invalid warrant. But you don't need to point anything out to the police. Resist identifying items for the police, even if the police tell you that will save on their messing up your house.

Same thing in a vehicle - no need to hand anything over. If they're going to search your vehicle, they will search. Nothing you say or don't say will change things, as tempting as it might be to say something.

Likewise if you're walking down the street. Don't become trapped by the "have you got anything on you that you shouldn't have?" question. And its companion request: "if you do, hand it over." Many of my clients assume that by being cooperative, the police will just let the matter drop and send them on their way. But often what happens is that they've dug themselves into a self-incrimination hole and get charged with drug offences. Whereas if they had said and done nothing (other than giving their names), the police may have had no legal authority to search.

Tip 2 - Talk to a Lawyer ASAP

In some personal disputes, lawyering up early on only aggravates the dispute. But being criminally investigated or charged is a completely different situation. There, you'll want to consult a lawyer as soon as possible.

A little bit of legal advice can be a bargain in protecting your rights. That advice might mean a police investigation goes nowhere, that less serious charges are laid - for instance possession instead of possession for the purpose of trafficking - or if a court case does proceed that you haven't helped the police make the case against you.

You shouldn't wait to talk to a lawyer until you've been charged. Some drug investigations take a while, and there may be things you can do to protect your rights at an early stage of the investigation. Your lawyer might talk to the police for you to ask about the scope of their inquiries. Your lawyer might be able to work out a deal for you to avoid you getting charged with anything. Your lawyer might be able to get some charges dropped. Or your lawyer might go to court for you to get back seized money or other assets.

Tip 3 - Be Personally Informed About Drug Laws

Informing yourself in a basic sense about drug laws is the best way you can make intelligent decisions about your legal defence. There's a lot of clutter - like hundreds of years of the common law of evidence and dozens of years of constitutional rights law - that makes it seem really complicated, and for which you definitely need a lawyer. But I can sum up the basics for you quickly.

There are principally 5 types of drug offences (all under what's wordily known as the Controlled Drug and Substances Act): possession, possession for the purpose of trafficking, trafficking, production, and importation. The type of drug involved might make the penalties for any of these offences more severe, but mostly don't alter their inherent character. "Conviction" for any of them will gives you a criminal record, and could cause you a lifetime of hassles crossing the U.S. border and applying for jobs within Canada until you are able to obtain a pardon (now unpoetically called a "record suspension"). So you really, really, really want to avoid a conviction.

There are three ways to do that.

One, convince the Crown to drop the charges. Good defence lawyers are capable of doing this. It might not happen that often, but it's usually your best shot to make everything go away.

Two, plead guilty and convince a judge to give you what's known as a "discharge." It's a finding of guilt, but no conviction is entered. So if you're later asked by anyone, "have you ever been convicted of a criminal offence," you can truthfully say "no." Again, a good defence lawyer might be able to obtain this for you - but it will depend on the type of offence and type of drug you are pleading to.

Three, take your case to trial. You might have a viable defence, because the burden of proof beyond a reasonable doubt is entirely on the Crown. You have to prove nothing. The Crown has to prove knowledge and control and possibly other elements. You might even have a Charter of Rights defence if your rights were violated. There sometimes isn't much downside to taking a drug case to trial other than the legal fees if the sentence imposed after trial isn't much different than the sentence you would have received after a guilty plea. A good drug defence lawyer will not be afraid to take your case to trial so long as there is some viable defence to present.

TIP 4 - Don't Plead Guilty if You're Not Guilty

I often have clients stuck in the system. They're understandably stressed out by their drug charges hanging over their heads for months on end. They want the process over with. They have a good defence, but they can't take the waiting anymore. So they tell me, "look Gordon, I didn't do it, but I want to plead just to get it over with." But it's not ethical for any lawyer to help you with such a plea. Lying to the court is an offence. If you didn't do it, you just need to hang in there. You'll be stuck with a conviction for life, so ultimately waiting a year to have your trial day in court is worth it. Trust me, I'm a lawyer.

SMALL CLAIMS COURT OR SUPERIOR COURT OF JUSTICE: WHICH SHOULD YOU CHOOSE FOR YOUR CIVIL CLAIM IN ONTARIO?

The first - and perhaps most important - decision anyone is faced with when contemplating pursuing a civil claim against someone else is: which court should I be proceeding before? If life and the law were simple, there would only be one court that would deal with all problems.

But unfortunately as most of us have discovered by adulthood, life is never as simple as our younger selves hoped it would be. And those who need to brave the court system likewise soon discover that there are a complex multiplicity of courts and tribunals out there, any one of which might be "the place" you're supposed to go to seek a solution to your particular legal problem. Showing up at the wrong one can be like arriving at the wrong birthday party, where you're told there's no cake for the likes of you!

Although Ontario also has criminal and family courts in addition to a plethora of administrative tribunals, for the purposes of any "civil" claim the sole choices are between the Small Claims Court and the Superior Court of Justice (unless the claim is one of the few going to the Federal Court). Confusingly, the Small Claims Court is actually an arm of the Superior Court, but where "Deputy Judges" preside over a less complex procedure involving less risk for the losers and also lesser rewards for the winners.

The key things to know about the Small Claims Court are that:

  1. You can only demand damages up to $25,000. You can still bring a claim worth potentially much more than that before the Small Claims Court, but you'll be required to "abandon" the excess.

  2. You can only demand the return of property up to a value of $25,0000.

  3. You can't demand any other kind of remedy, like declaratory or injunctive relief, meaning you can't ask the court to force another person to do or not do something, or declare that something is or is not the case - like that a law is unconstitutional.

  4. You can only obtain "costs" (sometimes awarded to the winning party) of 15% of the value of all claims pending before the court, even if you spent much more on legal fees.

  5. Your legal fees charged by a lawyer will be much, much cheaper in Small Claims Court than in the Superior Court of Justice, because of the simpler and quicker procedure involved.

What this means to choosing between civil courts is that if you're definitely seeking a remedy other than money or property, you've got no choice - you're going to the Superior Court of Justice. If you're seeking money or property worth less than $25,000, then again the choice is a no brainer - you're going to the Small Claims Court.

The zone of claims where the choice gets tricky is for those worth a bit (though not a massive amount) over $25,000. My rule of thumb is that any claim worth under $40,000 should choose to go to the Small Claims Court, since you're probably going to spend at least another $15,000 in legal fees going to the Superior Court of Justice. Even claims up to $50,000 might wish to consider cutting their numbers in half to go to Small Claims.

Over $50,000, and Superior Court of Justice is likely the way to go. If you claim $100,000 or less there, you're entitled to take advantage of what's known as a "simplified procedure" - though it's still a lot more costly and time consuming than Small Claims Court procedure.

But before you settle on the Superior Court of Justice route for what you're convinced is your very valuable claim, get some legal advice about claim valuation. You might very legitimately believe that you've suffered a great injustice at the hands of the plaintiff, but the burden rests solely on you as plaintiff to present proof on a balance of probability of quantification of damages. This means proof of what you've lost, and what is a fair amount payable by the defendant to "make you whole" again.

Figuring out damages numbers is easiest when you're fighting over a thing - like a vehicle - with a well known value. Damages are more difficult to quantify for less well agreed upon numbers, like the value of a broken arm. Damages can become very difficult to put a number on when they are intangible - like damage to reputation due to defamation.

You definitely don't want to "win" after a lengthy and expensive trial, only to be awarded $1 - or any figure that is less than the amounts you've spent on pursuing the case.