Why Sexy Arbitration Clauses in Commercial, Family & Employment Contracts Aren't So Sexy: What Every Businessperson, Consumer, Spouse & Employee Needs to Know

That going to court is expensive, takes a long time, and can lead to unfair outcomes seems agreed upon by most who have had to go to a court to resolve some kind of civil dispute, be it of a commercial, family or employment nature. These vexing problems with courts have persisted for centuries. The result of court outcomes that no one could afford, or wait for, or was happy with, naturally led to a search for alternatives.

Why Did Arbitration Become So Sexy?

Like many longstanding problems that people are desperate to solve, it’s not surprising that a theoretically sexy and exciting solution - alternative dispute resolution (ADR) - was seized upon as a “cure all” to clogged costly courts, starting slowly in the early 20th century, then picking up steam in the 1980s and 90s. What you need to understand, however, is that there’s a big difference between voluntary and binding forms of ADR, and that statistics show binding ADR is not necessarily cheaper, quicker or fairer than the courts.

What’s the Difference Between Voluntary & Binding ADR?

Voluntary ADR usually takes the form of mediation. Even if that mediation is forced upon you (like for larger civil disputes in Toronto, Ottawa and Windsor), it remains voluntary in not forcing you to accept the result. It just facilitates talking among the parties. The worst outcome of voluntary ADR like mediation is that you spend some time and money talking through a problem - often leading to naming settlement numbers - and get nowhere.

Binding ADR - usually in the form of arbitration - is totally different, in that you’re supposedly stuck with the result, even if you don’t agree with it. Arbitration is often the result of some clause of an agreement you signed in the past - perhaps quite knowingly in a domestic co-habitation contract, or perhaps unwittingly in the smallest of print of online terms and conditions you clicked okay to - which forces you out of the local court system for disagreements.

And so what’s so bad about that, you might be thinking? Isn’t arbitration always cheaper, quicker, and fairer? Unfortunately the reality can be exactly the opposite of the theory.

Why is Arbitration Not All it’s Cracked Up to Be?

The downsides of arbitration compared to the courts can be:

1. Higher Costs Because You’re Paying for More than Just Lawyers - While everyone understandably complains about court litigation costs, really the only thing they’re complaining about is the cost of their own lawyers. Court fees (at least in Canada) are extremely modest. So you’re not really paying for the judge, or the courtroom, or the court staff. In arbitration, you’re paying for everything: arbitrator(s), hearing location, document filing systems, plus you’re still paying for the lawyer(s).

   Might a quick single arbitrator hearing based on narrow issues that everyone agrees upon, where no one challenges the arbitrator’s jurisdiction, or result, and everyone voluntarily complies with enforcement, possibly be cheaper than a court-based process? Maybe. But that’s still questionable, since while you might (just maybe) save on lawyer fees, you’ll still be paying arbitration fees, and in such a case where everyone agrees on most of the issues, and no high conflict is involved, even lawyer court fees could be quite manageable as the parties could agree to an expedited court hearing on limited evidence and issues.

2. Longer Timelines Due to Collateral Attacks on the Arbitration - Yes, I know this is heresy to say arbitration can take longer than the courts, but I read a lot of cases, and continually see parties engaging in pitched court battles over the arbitration process itself, rather than at least having those court battles on the substantive issues they want someone to settle for them. Thus imagine fighting in court for years over whether an arbitration will even be held, or over the justness of the outcome of the arbitration?

   Don’t believe me? How about a pitched commercial battle where a contractual clause said each party to a dispute would appoint one arbitrator, and then those two arbitrators would appoint a third arbitrator, but one of the parties simply refused to appoint an arbitrator, frustrating the entire process, then dragging out over several years through superior and appellate courts: TransAlta Generation Partnership v Balancing Pool, 2019 ABCA 318.

   Or perhaps you’d prefer a family law example, where an arbitrator settled all the issues between the parties, but then one of the parties launched a superior court appeal, and the parties each brought motions for fresh evidence, essentially trying to pointlessly relitigate all the arbitrator issues, but where the superior court judge ultimately upheld the decision of the arbitrator on all points: Veneris v. Koh Veneris, 2018 ONSC 4164.

   Or an example from the employment law context, where an employee was bound by an arbitration clause, then challenged the clause in superior court, and then further challenged the clause in an appellate court, losing both times but expending considerable time and money in doing so: Ferrari v. University of British Columbia, 2014 BCCA 18.

   However, see exactly the opposite result in the very important decision of the Court of Appeal for Ontario in Heller v. Uber Technologies Inc., 2019 ONCA 1 where all Uber drivers in Canada had supposedly agreed to arbitration of all disputes with Uber under the law of the Netherlands by one arbitrator sitting in the Netherlands (!). The court calculated the demanded upfront administrative fee component of that process (according to the contract imposed on the drivers) as $14,500 US, not including lawyer, mediator and arbitrator fees, and noted the applicant before the court earned a gross income of about $20,000 to $30,000/year. The court struck down the mandatory arbitration clause as "unconscionable and therefore invalid.”

3. Less Not More Acceptance of Fairness of Results - While one of the advantages of arbitration is often touted as letting the parties choose their dispute settlement decision maker (as opposed to some random draw of a judge), even where the parties picked a very specific means of arbitration by very particular people consistent with their mutual preferences, there are numerous examples of the system breaking quickly breaking down and everyone yet again winding up in court fighting over process rather than substance of the core issues at dispute. In Gerstel and 2102503 Ontario Inc. (Harold the Jewellery Buyer) v Kelman and Mortgage Maven Inc., 2017 ONSC 214 one of the parties to an arbitration agreement to refer a dispute to a rabbinical court made up of three Rabbis “became unhappy with the means and manner” of the arbitration, and sought to remove the arbitrators and return the matter for decision to the court. The court refused that relief, but still cautioned:

   There is nothing in what I have said that allows the Beis Din to do whatever it wants. In particular, in this case the arbitration agreement imposes real limitations on the Beis Din. The agreement that there cannot be and has not been any contracting out of the requirement that it abide by section 19(1) of the Arbitration Act, 1991 (the parties be treated equally and fairly) is one. Presumably there is some flexibility in what this may mean in any particular case. Having said this I point out that if the process adopted by the Beis Din ignores or fails to respect these limitations it does so at the risk that this matter will be returned to the Court.

Does Arbitration Work Better for Transnational Disputes?

Now don’t get me wrong. I’m not suggesting arbitration can never work, or be cheaper, or be quicker, or be fairer. Especially for transnational disputes, where there are a mess of competing national laws, and all sorts of enforcement for foreign judgment problems even if a party manages to get a judgment under one legal system but then needs to enforce it in another legal system, everyone picking a arbitration process in one spot, using a single legal system, will usually have huge advantages over competing court-based litigation.

Nation states have a long history of successfully resolving their transboundary disputes through agreed upon arbitration, where a lot of riding on results, and thus cost of the process is of little concern. But because of the costs of these transnational arbitration processes, they won’t always be appropriate for lower value disputes - as confirmed by the Ontario Court of Appeal in the Uber case. Though international arbitration could be worth exploring even in family law cases, where the international stakes are high. and litigating in one country rarely gets ideal easily enforceable results in other countries.

How Do I Avoid the Problems with Arbitration?

In order to avoid getting trapped into arbitral processes that could be more expensive, take longer, and lead to less accepted results than court processes:

1. Consider the Pros and Cons of Arbitration Prior to Agreeing to or Commencing Arbitration - if there’s no obvious advantage to arbitration as compared to court resolution, you should be asking why you are going to participate in it. If you’ve already contractually agreed to it, there’s no reason you couldn’t approach the other party to voluntarily agree to get out of it, as you might not be the only one with concerns.

2. Get Legal Advice Before Agreeing to an Arbitration Clause - while I know this isn’t practical for a $100 software licence agreement, it’s imperative for contracts as important as family law co-habitation or separation agreements, or complex commercial joint venture or purchase agreements. Contractual arbitration clauses might on their face look all warm and fuzzy, until those clauses actually gets triggered and you find out you’re locked out of a court process and trapped in unknown costly arbitration territory.

3. Get Legal Advice Before Commencing and During an Arbitration - lawyers are just as useful in an arbitration as they are in court. The Gerstel case above makes clear that courts will intervene in unfair arbitral processes, but you’re going to need a lawyer to help you assess how fair the process is, and how you escape from it if you do have concerns.

Gordon Scott Campbell assists clients with domestic and international arbitrations and court-based litigation of civil disputes, including family disputes. He has served as a professional negotiator of high value claims, litigated commercial and family claims before the Ontario Superior Court of Justice, the Divisional Court, and Court of Appeal, and represented Canada internationally with UN, OECD, APEC and WTO bodies. Learn more at www.acmlawfirm.ca and www.nofearfamilylaw.com.

Why Every Professional & Businessperson Needs to Fear & Guard Against White Collar Crime Allegations

American criminologist Edwin Sutherland coined the term “White Collar Crime” in 1939, which he defined as “crime committed by a person of respectability and high social status in the course of their employment.” Eighty years later, respectability and social status may not be what they once were, but the term still encompasses those with education working in a business or professional environment pursuing offences usually for financial gain motives. The reason for the fear is that although “accidental crimes” might sound like an oxymoron, it’s a lot easier than you might think to accidentally become ensnared in a white collar crime scheme that puts you under investigation or even leads to you being charged with a criminal offence.

Because white collar crimes are mostly “paper” cases (even though the paper is now digital), there are no smoking guns to seize, and rarely any eyewitnesses to all aspects of the events. Instead, investigators draw circumstantial inferences from the paper: who signed the documents, who authorized the money transfers, who was copied on the emails or text messages, and who said what during compelled or voluntary statements. Sometimes advanced investigative techniques are used to determine what incriminating evidence was found where (if there are search warrants) or who spoke to who on the phone about what (if there are wiretaps).

While you might be thinking: “hey, I’ve got nothing to fear if I did nothing wrong!” think again. Your name could be linked into a white collar crime case without you ever knowing about the transactions being investigated. You could even wind up being charged as a co-conspirator without any direct involvement in the offences, or any benefit received, because an investigator decided that that a piece of paper, or a phone call, or a signature, or an email, links you to facilitating the offences in some way.

So what kinds of white collar crimes do you need to worry about?

During my service as a Federal Crown Prosecutor focussing on white collar crime, I observed a long list of ways to get in trouble with the law, so here’s my top eleven list (because I just couldn’t stop at ten):

a. tax evasion & other tax fraud;

b. corporate misconduct & corporate fraud;

c. securities insider trading & securities fraud;

d. real estate fraud including fraudulent conveyances;

e. price fixing, big rigging & other competition offences;

f. bribery & corruption of public officials;

g. money laundering;

h. bank & insurance fraud.

i. accounting fraud including financial misstatements;

j. customs & trade fraud including smuggling;

k. employee theft.

Many of these offences are facilitated by other offences, like forgery or uttering false documents. Pretty much all of them ultimately qualify as financial offences, as motivation is usually financial gain by at least some of the players in the scheme.

So what kinds of punishments should you be afraid of?

Many find it odd (me included at times) that some of these white collar offences attract much greater penalties than crimes of serious violence like sexual assault. Penalties seem motivated at least in part by deterrence, because some of the crimes are so difficult to detect, and many could be considered “victimless” (like tax evasion) in that it’s the public who ultimately pays the price, rather than having a live victim available to report the crime to the police. Some more cynically suggest it’s because laws are written by the rich for the rich, and these crimes risk making the rich less rich; even though ironically it’s the relatively rich often committing them.

Whatever the reason, you risk getting walloped on a first offence conviction for anything on the above list. How walloped? Try a four year stretch in a federal penitentiary and up for a major financial fraud. Sentences of 5, 6 or 7 years aren’t uncommon. Together with a fine in lieu of forfeiture and a restitution order in the millions that you’ll likely have hanging over you for the rest of your life.

But it gets even worse if the Canada Revenue Agency then comes after you to tax you on all your supposedly ill gotten gains, at 52% tax, even though there might be no proof that you actually received anything. And unlike the criminal fine or restitution, that civil tax assessment will immediately and retrospectively start accumulating interest, so that you probably won’t even be able to keep ahead of interest only payments, far less pay down the principle.

And don’t get to thinking that bankruptcy will let you escape all these debts - it doesn’t work that way, otherwise everyone would do it. Oh, and did I mention the bonus criminal record for life (unless you manage to eventually get a pardon which they refuse to now call a pardon) which will restrict your employability and ability to travel, thus crimping chances you might have of paying things off?

So what can you do to protect yourself?

1. Preserve Documentary Evidence. Anytime you do get a premonition that things are perhaps not as they should be in your profession or business, even though you’ve got no involvement, and aren’t even sure anything improper is happening, you should save whatever evidence you can to later protect yourself. Emails, documents, financial records. They might mysteriously disappear later.

Because you may have professional or business obligations concerning those records, you definitely shouldn’t leak them, or be careless about saving them, or essentially misappropriate them, or you could get accused of a civil or criminal offence yourself. But if you’ve lawfully come into possession of the records, there may be nothing stopping you from at least saving and segregating what could later be life saving documents.

2. Don’t Make Secret Audio Recordings. Technology has now sufficiently advanced that pretty much anyone anywhere can secretly record the conversations of others, be they on the phone or in person. But don’t do it. As smart as you might think such recordings are in protecting yourself, you might even be committing an offence if you secretly record conversations you’re not a party to, and at the very least you’ll come off looking like the bad guy or gal.

The reason such strong wiretapping laws exist in the Western world (special judges, special authorizations) is to protect everyone’s verbal privacy. Yes, I know this is a long way from now typical practice of everyone saving and later producing compromising text or social media messages where according to the courts there appears to be little in the way of privacy protections. But that’s just the way the law currently is. Essentially, wiretap laws were not invented until almost 50 years after the popularization of the telephone. So who knows where things will go in the long term with Internet communications protections.

3. Get Early Legal Advice. Just as it’s much easier and cheaper for a plumber to fix a dripping faucet than a burst pipe, so too with lawyers giving a little early advice on potential professional or business liability exposure, rather than immediately needing to wade into court to defend you on criminal charges. Early legal advice will help guide you on what to do and not do with your continuing professional and business obligations. Early advice will teach you when to talk or not to investigators, including when you might be legally obligated to spill the beans, as compared to when it’s truly a voluntary statement.

I’m not suggesting you need to pass every waking hour of your work day in total paranoia that there’s going to be a knock on your overly thin office door or cubicle wall to haul you off to jail. Rather, I’m suggesting that in 24 years of doing this, just when I think I’ve seen every way people can secretly rip each other or the government off, I see something new.

Most of the schemes are surprisingly simple. Many are way more profitable than I could ever imagine such simplicity would generate. And some lives get destroyed in the wake of their undoing even though they didn’t originate or benefit from the schemes. Be proactive, and don’t let yourself be one of those unlucky people.

Gordon Scott Campbell served as a Federal Crown Prosecutor with the Department of Justice Canada, is author of The Investigator’s Legal Handbook (Carswell/Les Editions Yvon Blais) series of books, and defends professional and business clients against criminal and regulatory allegations - including allegations of professional misconduct - throughout Canada. Learn more at www.acmlawfirm.ca, www.proconductlaw.com, and www.defenceeast.com.

Ever Wondered if it's Possible to Enforce a Foreign Judgment in Ontario? Here are the Top 5 Principles for 2019 of Getting a Foreign Order Recognized

A perfect, though perhaps more boring, world would have one single legal system, where you could go to any court, get justice, and then seek to apply that court’s justice anywhere else in the world. Get judgment on a debt, and then enforce collection. Get judgment on child custody, and then collect the children. Get an order to stop someone from going something - like publishing libellous statements on the Internet - and then make that person stop.

But of course the world’s far from perfect. And infinitely complicated. So complicated that there are not only hundreds of legal systems, but potentially thousands of co-existing systems if all the world’s states and provinces within countries are accounted for. Even Canada has 13 different legal systems accounted for by each of the provinces and territories.

Sure, many of those systems are similar. But being similar isn’t enough if they aren’t identical for the purpose of judgment enforcement. Thus getting a court judgment from one system doesn’t mean you can waltz over to another system and automatically enforce it. You’re going to need a court order from the second system, giving its stamp of approval to the first order.

Showing up at a court counter with a stamp unfortunately isn’t the way it works. But enforcing a foreign judgment doesn’t need to be impossible.

A very useful new case in Ontario for 2019 evocatively called Dead End Survival, LLC v. Marhasin, 2019 ONSC 3453 sums it all up, as it was penned by Mr. Justice Perell, long a leading writer and teacher on Ontario civil procedure. He created what can be summed up as 5 principles for foreign judgment enforcement in Ontario.

Principle #1 - Foreign Debts will Be Enforced Absent Fraud, Natural Justice or Public Policy Violation - “At common law, a foreign judgment is, in effect, a debt that can be enforced by a cause of action to claim payment of the debt, and absent evidence of fraud or of a violation of natural justice or of public policy, the enforcing court is not interested in the substantive or procedural law of the foreign court that granted judgment.”

Principle #2 - Defendant May Not Relitigate Foreign Trial Issues - “In an action to enforce the foreign judgment, the Ontario court will not relitigate the underlying litigation that gave rise to the judgment, and if the foreign judgment is proven and is final, the Ontario court will enforce the foreign court’s judgment with a judgment of its own.”

“Given that the domestic court will not relitigate the substantive merits of the foreign judgment and although the creation of new defences is possible, there is only a small list of defences to the enforcement of a foreign judgment.”

Principle #3 - Foreign Non-Monetary Judgments Also Enforceable - “Foreign non-monetary judgments, including judgments for equitable relief, such as specific performance or an injunction are also enforceable. For a foreign non-monetary judgment to be enforceable, it must have been rendered by a court of competent jurisdiction and must be final, and it must be of a nature that the principle of comity requires the domestic court to enforce it. The domestic court retains the discretion that underlies equitable orders and may exercise that discretion in deciding whether to enforce a foreign equitable order.”

Principle #4 - Must be Attornment to Foreign Jurisdiction or Real & Substantial Connection to Dispute - “Subject to the defences, a Canadian court will enforce a foreign judgment if the defendant attorned to the jurisdiction of the foreign court or if the foreign jurisdiction had a ‘real and substantial connection’ to the dispute. The real and substantial connection is the overriding factor in the determination of the jurisdiction of the foreign court, and once it is determined that a foreign court properly assumed jurisdiction, a foreign judgment is prima facie enforceable.”

Principle #5 - Foreign Judgment Need Not Be From Most Real and Substantially Connected of All Possible Jurisdictions - “In deciding if the dispute had a real and substantial connection to the foreign jurisdiction, the domestic court must find that a significant connection existed between the plaintiff’s cause of action and the foreign jurisdiction. In determining whether there is a real and substantial connection, the domestic court should consider the connections between the subject matter of the action, the alleged wrongdoing, the place where the damages are suffered, as well as with the transactions of the parties and with the action.The connection must be real and substantial but not necessarily the most real and substantial connection of all possible jurisdictions that might have a connection to the dispute. The real and substantial connection test is not a rigid test, and must ultimately be guided by order and fairness, as opposed to a mechanical counting of contacts and connections.”

Simple, eh? Well, maybe not really, But at least you don’t have to start over from square one.

The increasingly clear message of Ontario courts is that they’re fed up with plaintiffs getting legitimate judgments from legitimate courts, only to have defendants in Ontario try to relitigate every last issue again in Ontario just to avoid enforcement, because the people, or money, or activities happen to be in Ontario and thus it’s only here that they’ve now decided they want to put up a huge fight that’s really already been lost elsewhere.

So no matter what kind of judgment or order you have, and no matter from which body it was issued, it may be worth attempting to enforce it in Ontario, and you may well avoid having to repeat the whole painful process of getting the judgment or order in the first place.

Gordon S. Campbell is an Ontario Barrister who enforces the judgments of other countries, states and provinces throughout Ontario, especially working with judgments from the United States of America and Quebec. He practiced transnational and international law with the Department of Justice Canada and served with Global Affairs Canada. Learn more at www.acmlawfirm.ca.

So You've Just Been Found Guilty of Professional Misconduct & Sanctioned or Dismissed From Employment? Top 5 Strategies on How to Successfully Appeal

Probably what all professionals dread most is a formal finding that they’ve committed some form of misconduct, or are otherwise not fit to continue to continue in their profession. We’ve all invested a lifetime in getting to where we are professionally. Losing a job is bad enough, but one might be able to recover as there are other jobs out there. However you might never truly recover from losing a profession.

While it’s nice to think that professional conduct or employment proceedings should turn out as they should if you truly didn’t do anything worthy of serious sanction, we all know that’s not always going to be the case. Every decision maker brings personal biases to conduct hearings. And not every hearing has the full evidentiary picture before it. Thus it can be hard to predict whether or not there will be a finding of misconduct, and what kind of sanction might flow from such a finding, if you’re facing allegations brought before a professional regulator or employer.

You might be defending yourself before a professional conduct board or an employer’s tribunal (which could even just be your professional boss), hoping your reasonable explanations will carry the day, only to learn that you’ve not only lost the hearing, but also lost your professional position and perhaps even your entire profession. What’s to be done?

Rest assured you’ve got options. But you’ll need to act fast in pursuing them.

STRATEGY #1: ACT QUICKLY IN APPEALING A PROFESSIONAL OR EMPLOYMENT SANCTION, YOU’LL LIKELY ONLY HAVE 30 DAYS OR LESS

Being timely in an appeal is much more important than getting the grounds of appeal perfect. You might be trying to find a lawyer to help you with an appeal, but are having trouble raising the retainer, or even getting an appointment. Unfortunately none of these are excuses for being late with an appeal. You can file a two page handwritten appeal if need be, so long as it gets filed on time.

What amount to “on time” will vary greatly depending on what your’re trying to appeal, and where you’re trying to appeal to. Usually the longest you ever have to appeal anything under Canadian law is 30 days. There’s no magic to the 30 day limit (in theory it could be longer), but this just seems to be a common rule that has developed. So not matter what kind of appeal it is, if you’re getting close to 30 days from the time of decision it’s time to worry.

But some appeals can be shorter than 30 day limits. 15 days is also a common limit, though much less common than 30 days. And sometimes it can be as short as 10 or even 7 days, but both those brief limits are rare.

So don’t guess over how much time you have to appeal. Figure out where the appeal goes to, and ask someone there what the time limitation is. It won’t be a secret.

STRATEGY #2: CAREFULLY ASSESS WHO HAS JURISDICTION TO HEAR THE APPEAL

Who can hear a professional conduct or employment appeal can be a lot tricker to figure out than the question of how much time is available to appeal. The usual options for where an appeal goes are:

1. to an internal appeal body run by the professional regulator or employer;

2. to a court capable of hearing a judicial review, such as the Ontario Divisional Court or the Federal Court;

3. to a court capable of hearing a civil action, such as the Ontario Superior Court of Justice or the Federal Court;

4. to an appellate court, capable of hearing an appeal from a lower court, like the Ontario Court of Appeal or the Federal Court of Appeal (usually only after you’ve been in a lower level court for a first crack at an appeal).

STRATEGY #3: DETERMINE YOU BEST GROUNDS OF APPEAL TO INCLUDE IN A NOTICE

Appeals aren’t just another kick at the original hearing can. To win an appeal, you’ve usually got to find an error of law or mixed fact and law or jurisdiction. Possible appeal winning angles include:

1. a denial of procedural fairness and natural justice;

2. so serious a misapprehension of the facts as to amount to an error of law that could have affected the outcome of the hearing;

3. bias by the decision maker (which doesn’t need to be intentional and conscious);

4. an error of law serious enough to have affected the outcome of the proceedings.

STRATEGY #4: TAKE PROCEDURAL STEPS NECESSARY TO GET APPEAL HEARD

Being on time, before the right body, with good grounds, still won’t do you any good if you don’t have the necessary follow through to create and file all the required documents to have your case listed for an appeal hearing. Among the documents you may need to create or order and file include:

1. Notice of Appeal;

2. Transcripts of Hearing (not all conduct boards or employers will create transcripts out of hearings);

3. Exhibits from Hearing, compiled with other materials into an Appeal Record;

4. Factum of Legal Argument on Appeal (essentially a legal brief explaining the facts and law and why you should win, usually 30 pages or less).

STRATEGY #5: PARTICIPATE IN APPEAL HEARING & RESPOND TO PROFESSION/EMPLOYER MATERIALS

Some professional conduct or employment appeals will be paper processes, meaning there is no oral hearing and physical appearance before decision makers. Others will actually involve an in-person appearance to make oral argument and respond to questions.

Especially if there isn’t an in-person hearing, plan to file a brief written reply with the appellate decision maker to the responding submissions of the regulator or employer, as that might be your only chance to come to grips with the argument opposing your submissions.

Gordon S. Campbell is a professional conduct lawyer practicing throughout Canada who has argued cases up to the level of the Supreme Court of Canada. His representative works includes defending government executives, teachers, accountants, engineers and law enforcement officers on professional misconduct, medical, administrative, criminal and civil proceedings before conduct boards, appeal tribunals and in provincial and federal courts. Learn more at www.proconductlaw.com.

Why Being in Both Family & Criminal Courts Simultaneously is Hell: Top 8 Tips on How to Survive Concurrent Family & Criminal Proceedings

There’s no question that being dragged into a court proceeding is among life’s most stressful events, regardless of what kind of proceeding it might be. But what about if you’re stuck in two simultaneous proceedings, in two different courts having completely different rules, requiring different lawyers and different court dates?

One of my “things” seems to have evolved as helping clients with simultaneous family and criminal court proceedings. Usually it’s the criminal case that starts first. Though it might be the family case. Sometimes one spouse is charged with something. Sometime they’re both charged. The result can be absolute spousal non-communication for any purposes bail orders, combined with prohibitions on seeing children.

But the non-communication - even through lawyers - means family court disputes over children, property and support can get frozen for many months in an ice age of criminal procedure, where your lawyer can’t even find out if your spouse has hired a family lawyer, as that enquiry could itself be a breach of a criminal no contact order. The inevitable result is a great big intractable legal mess, even when both parties want to make some progress resolving the family law issues.

Here are my top 8 tips on how to make progress in surviving concurrent family and criminal court proceedings.

1. REQUEST RELEASE CONDITIONS AT TIME OF ARREST OR BAIL HEARING PERMITTING INDIRECT SPOUSAL CONTACT THROUGH COUNSEL FOR PURPOSES OF FAMILY PROCEEDINGS

You might think you’ve got no leverage to negotiate anything at the time of being arrested, but you could be surprised at what you can get from an arresting officer or a court if you ask nicely. Even if you think family law proceedings are unlikely in your case, if your charge has anything potentially to do with “domestic violence” you need to anticipate that family law might later get involved. So ask the arresting officer or justice of the peace in bail court for an indirect contact exception through legal counsel with your spouse for the purposes of family law separation or court proceedings.

That indirect contact through counsel exception dealt with up front might save you months of misery trying to later get a consent bail variation through the court. The Crown (and courts) will often favour a “cooling off period” for any subsequent contact between spouses after a domestic charge is laid, making immediate negotiation of a variation a challenging process. Addressing the indirect contact issue up front with the arresting officer will so simplify things.

2. AVOID INDIRECT CONTACT TEMPTATIONS

Don’t under any circumstances try to indirectly contact your spouse to deal with family law proceedings, or to respond to his/her initiation of those proceedings, without a no contact order exception if you’re bound by criminal release conditions requiring no contact. There is no “necessity” exemption to no contact.

3. RESOLVE CRIMINAL PROCEEDINGS ASAP

As slow as it might seem, generally the criminal justice system moves a lot faster than the family justice system, due to guaranteed rights like trial within a reasonable time. Rather than fight a war on two fronts simultaneously, it’s going to be easier for your to mentally and financially deal with one battle at a time. Thus usually the best approach is to try to resolve criminal proceedings as soon as possible so that you can move on with family proceedings.

Very few criminal cases ever proceed to trial, thus you should assume resolution is possible. And even if your case is one of those to go to trial, since criminal trials are often set up to a year in advance because of court backlogs, the sooner you set that criminal trial date, the more breathing room you’ll have to deal with family proceedings while awaiting criminal trial.

4. REMAIN SILENT IN FAMILY PROCEEDINGS IF NECESSARY

While you’ve only got a right to remain silent in your criminal and not your family law proceedings, practically you don’t want to do yourself in on the criminal side by blabbing on the family side. Don’t admit to anything in family proceedings that might prejudice your criminal case.

If a CAS investigation is ongoing, explain to CAS that you can’t discuss the matters related to your ongoing criminal proceedings. Same with a custody and access assessment.

Now I know you might be thinking keeping custody of your children on the family proceedings side is far more important than potentially risking a little jail on the criminal proceedings side, plus you’ve done nothing wrong so you don’t have anything to worry about on the criminal side anyway. However, you need to attempt to avoid giving any evidence in the family proceeding so as to preserve your criminal trial right to remain silent, and not risk an attempt by someone to use any family court evidence against you in the criminal proceeding.

Practically speaking there is a balance here in giving evidence that you need to speak to your lawyer(s) about, since insisting on absolute silence in family proceedings in the face of multi-year criminal proceedings won’t be a tenable position. However, staying silent for a few months while criminal proceedings are expeditiously resolved could be more viable.

5. FOCUS FAMILY PROCEEDINGS ON ISSUES AVOIDING CRIMINAL ALLEGATIONS

If family proceedings can’t be put off pending conclusion of criminal proceedings, try to avoid any talk of criminal proceeding events in family court and instead focus on (a) property division, (b) spousal support, and (c) child custody/access/support, in that order. While property division might initially be the lowest priority, it is also likely the safest issue to openly discuss as it is not dependent on conduct of the parties. While spousal support has some conduct implications that might require the parties to give evidence, it is less evidence heavy than issues involving children which can require a wall of facts to deal with.

6. BUDGET FOR MUCH MORE MONEY ON THE FAMILY THAN CRIMINAL PROCEEDINGS SIDE

In budgeting, generally your criminal proceedings are likely to cost far less in legal fees than your family proceedings, even if you take your criminal charge to trial, simply because criminal cases usually involve much less court and preparation time than family cases, which can get very document intensive, involve complex financial calculations, and have many substantive court appearances that stretch out over months and years: case conferences, settlement conferences, trial management conferences, motions, as well as trials.

It is possible if you take a complex criminal case to trial, but amicably settle your family case, that the family court proceedings could cost less than the criminal proceeding, but that will be a rare scenario.

Now you might be tempted to think you can only afford a lawyer for one legal battle, and are wondering if you should deploy the lawyer on the criminal or the family side? My suggestion is that such choices are impossible to make. Losing either could ruin your life. Better try to stage and sequence proceedings, meaning criminal first which should wrap up within 12 months (unless a very serious case) and family after.

The specifics on true costs? Many criminal charges can often be resolved for under $5,000 in legal fees. Many less complicated criminal trials can be run for $10,000 to $15,000 if they only involve a couple of days in court, plus preparation time.

By comparison, a full blown family law trial can top $100,000 in fees (and some can top $200,000 if there are motions and appeals). Rather than being measured by total days in court (start to end), family law proceedings can be measured by weeks in court, stretching out over many years. There are certainly ways to reduce the total expense, but even the most efficient family proceeding, where spouses agree on most of the issues, is still going to cost more than most criminal cases.

7. PLAN FOR MUCH MORE TIME ON THE FAMILY PROCEEDINGS SIDE

I’ve seen family law cases regularly go for over 5 years. With criminal, you’re usually at the one to two year level at worst, and sometimes it will only be a few months if the matter can be resolved.

Again, there are ways to speed up family cases, but you can almost always bet on a simultaneous criminal case getting to the finish line first before the family proceeding.

8. CONSIDER ONE LAWYER TO REPRESENT YOU IN FAMILY & CRIMINAL COURT

Consider hiring a lawyer that can deal with both your family and criminal proceedings. But be very careful in considering the potential for one versus two lawyers, as the main advantage will be that you’ll have a common point of contact, and there can be better coordination in presenting strong legal cases for you in both courts. This won’t necessarily save you money as the type of work required for each kind of case is quite different. And you don’t want to wind up with a lawyer who knows a whole lot about one type of law, but almost nothing about the other.

In my experience, there aren’t a lot of lawyers who do an equal amount of criminal law and family law, though a few of us do exist, perhaps because we started in one area of the law (in my case criminal law where I served for many years as a Federal Crown Prosecutor), prior to moving into the other area. Certainly some judges in Canada are expected to be equally knowledgeable about criminal and family law, if they are to try both kinds of cases, so balanced family and criminal knowledge is possible on the lawyer side. Just choose carefully.

Gordon S. Campbell equally practice both family law and criminal defence law throughout Ontario. He has appeared on family and criminal trials and appeals in the Ontario Court of Justice, Ontario Superior Court of Justice, Ontario Divisional Court, Court of Appeal for Ontario, and at the Supreme Court of Canada. Learn more at www.nofearfamilylaw.com and www.defenceeast.com.

What the Central Park 5 Can Teach Us All About Police Questioning: Why Exercising the Right to Remain Silent is in Your Best Interests

Netflix sometimes teaches us things beyond the fact that you can now get a whole lot of quality viewing for not much money every month. The popular When They See Us show about the Central Park Five teaches us that, given the right circumstances, people will tell the police what they want to hear, and you’re never doing yourself any favours in doing so.

In my 24 years involved in criminal law, I’ve never come across anything in Canada like the Central Park Five false confession confession convictions, and I hope I never do. But make no mistake that there is a lot police officers can do in Canada that is completely lawful to get you to talk.

The police certainly might tell you that if you just tell the truth, you can go home. That’s essentially what the Central Park Five were told.

The police also might suggest to you what the truth is, and ask you to agree. Again, that’s what happened to the Central Park Five.

No one can beat you. No one can deny you medical care. No one can deny you food and water. But when it comes to how much questioning is too much, there can be judicial disagreement.

Now you might be wondering: “If I just say I didn’t do it, isn’t that going to help me?” In short, no.

Nothing wrong with identifying who you are to the police. They might not let you go until you do that, and there is some conflicting caselaw out there saying you might have a positive duty to identify yourself. But that’s about it.

You have no duty to help the police on criminal matters, except in some very, very limited circumstances like providing information under the Automobile Insurance Act about an accident. If in doubt, ask if you’re required to answer.

Most people seem to believe they have a legal (or at least moral) duty to help the police by telling all, even if they are the ones facing criminal jeopardy. Or at least they think that by telling the police a long convoluted story that they might have trouble keeping straight - as true as it might be - they are doing themselves a favour. They couldn’t be more wrong.

Why You Need to Resist the Urge to Talk

I find almost all people - regardless of levels of education - have an urge to talk at length to the police, even if it’s just to deny everything. They all seem blind to the fact that those denials can later be handily used against them. They’ll do things like:

1. pin themselves down in one location at the time of the offence;

2. identify the people they were and weren’t with at the time of the offence;

3. offer justifications as to why they couldn’t possibly have done anything wrong;

4. voluntarily produce documentary evidence - like an entire lifetime on a cell phone;

5. identify other people for the police to talk to - including speculating that they may have “done it”;

6. voluntarily offer to provide blood samples, or take lie detector tests, or accompany the police to particular locations;

7. voluntarily offer to permit the police to search a vehicle or a residence.

You’ve got to realize, that by producing negatives, you’re really offering positives which you can later be tripped up on. Even if you’re completely innocent, those trip ups can make you look guilty.

Why You Effectively Have No Right to Silence if You Feel Obliged to Talk

The key point is that everyone has a fundamental rights to remain silent under the Canadian Charter of Rights and Freedoms. It’s not especially different from the Central Park Five’s “Miranda Rights” as they’re often called in the US after a famous case. But if you’re not exercising that right in an informed way, then you’ve really got no right at all.

Thus everyone needs to be absolutely certain that speaking to the police is a choice, not a duty. They also need to know that in questioning suspects, the police will employ various techniques to encourage a voluntary spilling of the beans, including potentially lying to you. The police can’t coerce you. Your statement needs to be voluntary, meaning its free of threats, promises or an atmosphere of oppression. But there can often be a fine line - and disagreement among judges - over how the police can encourage statements.

Unlike in the United Kingdom, but exactly like we saw with the Central Park Five, recordings don’t start the moment witnesses enter police interview rooms in Canada. Likewise the police mostly don’t wear body cameras in Canada. So various things can be said to you by police prior to any recording being started, just like in the Central Park Five. You shouldn’t let those things influence your willingness to give a statement.

Why This Post is Police Positive

I don’t make the rules. It was Parliament in the Constitution Act, 1982 which decided to constitutionally entrench the right to silence under Canadian law.

In part of my practice, I actually do a lot of work with law enforcement officers, including prosecuting cases, as well as representing them on administrative matters. So long as they obey the law, I’ve got nothing to criticize about their techniques in getting people to talk as part of an investigation. It’s their job to get you to talk. Some are quite good at it.

My stressing potential Canadian parallels to the Central Park Five is only meant to underline that you could effectively wind up in their situation even without being a youth and without the police impropriety involved in that case just by an officer lawfully continually asking you the same questions, and you feeling like you should be helpful, because that is likely the best way to enable you to go home.

Avoid Turning a Witness Interview Into a Target Interview

If it’s very clear to you - and you clearly ask police - that you are only a witness, and not a subject of investigation, you might be tempted to speak to them. There’s nothing wrong with assisting the course of justice so long as you’re not going to pay for providing that help. But before doing so, you absolutely need legal advice, since you’ll recall that the Central Park Five were initially told they were only being spoken to as witnesses, not as targets of investigation.

Like the Central Park Five, everyone just wants to go home. They hope that by talking, the police will believe every word they say, and give them that coveted get out of jail free card. They fail to appreciate that the police can lawfully withhold information from them, and even lawfully lie to them in order to adduce information.

Identify yourself, call a lawyer, and wait for the questioning to end. It lawfully could take a while. The police are just doing their jobs.

Gordon S. Campbell practices criminal, civil and family trial and appellate litigation throughout Ontario. He’s author of The Investigator’s Legal Handbook (Carswell 2006, 2014; Yvon Blais 2010) series of books and has appeared on precedent setting cases up to the level of the Supreme Court of Canada.