Canadian Lawyer

30 M A R C H 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m date, I expect us to deliver on all of our commitments," the prime minister stated. Nearly two-and-a-half years after the federal election, the Liberal government has followed through on pledges to legal- ize the possession of small amounts of cannabis and established the inquiry into Missing and Murdered Indigenous Women and Girls — although its work has been plagued by delays and resigna- tions of senior staff. In many other areas, though, especially with respect to reforms to the judicial system and increased transparency, the promised changes are moving along very slowly or, if there is ongoing litigation, there exists a seeming disconnect between public statements by politicians and what government lawyers argue in court. Even small changes such as restoring the Court Challenges Program have not yet been fully implemented. In areas such as family law, reforms and modernization of relevant statutes still appear to be on the backburner. Given that the Liberals have a major- ity government and are well over half- way through their mandate, the apparent inaction is disappointing, says Michael Lacy, a Toronto defence lawyer and presi- dent of the Criminal Lawyers' Association of Ontario. "The Liberals put forward a proactive agenda for criminal justice reform. But there does not seem to be a lot of action," says Lacy, partner at Brauti Thorning Zibarras LLP in Toronto. The focus instead has been on discus- sions with interested parties and seeking feedback from the public through consul- tations posted on government websites. "Consultation is obviously laudable. But at some point, the government of the day has to make decisions," Lacy says. One of the areas where there has been significant consultation is whether to rescind changes to the record suspension (pardon) process made by the former Conservative government that increased fees and retroactively doubled the period before an individual could apply. In the meantime, the British Columbia Supreme Court ruled last year that the retroactive changes violated the Charter. In a similar challenge in Ontario after the B.C. decision was issued, the federal gov- ernment conceded the invalidity of this part of the legislation. Until the federal government enacts a new law, though, the existing provisions apply everywhere in the country except B.C. and Ontario. Lacy, who acted for one of the individuals in the Ontario litigation, says ensuring the rules are the same across the country should be a priority. "Why would you require applicants [in other provinces] to go through the necessity of a Charter challenge?" he asks. T he pledges included in the mandate letters issued by Prime Minister Justin Trudeau included the expansion of the unified family court system. The first unified family court was initiated as a pilot project in Hamilton in the late 1970s. There are now seven provinces with unified family courts in a total of almost 40 municipalities. Given the shared jurisdiction over family law, the unified model is aimed at streamlining the process for couples who are separating or in divorce proceedings. Last fall, the chief justice of the Superior Court of Ontario called on the federal gov- ernment to support the expansion of the unified family court model in the province. So far, though, there is very little movement on this issue or other areas of concern to the family bar in the country, says Wayne Barkauskas, partner at Wise Scheible Barkauskas in Calgary. "I don't think there is any political reason. It is just not on their list of priorities," says Barkauskas, a past chairman of the family law sec- tion of the Canadian Bar Association. "Unified family courts pop up their head every few years," he notes. While the concept is widely praised, there is likely going to be a debate between the provinces and the federal government over who is going to pay, he says. A spokesperson for the federal Department of Justice says it is "working with" provinces and territories to gauge the interest in expanding the number of these courts. Any expansion, though, would require an agreement on a "funding formula" and amendments to permit the appointment of more judges. Modernizing the federal Divorce Act should also be a priority, says Barkauskas, noting that there have been no substantial amendments to the statute in more than 30 years. The most significant and pressing issue in Alberta in the family law field, how- ever, is not the creation of new courts or statutory reform but filling up the existing vacancies on the Court of Queen's Bench. The provincial government and even senior members of the judiciary in Alberta have repeatedly called on the federal government to move more quickly to fill vacan- cies. The website of the Office of the Commissioner for Federal Judicial Affairs indicates that there were 12 vacancies in the province as of Jan. 1. "They say it is Alberta yelling again. There is a reason we are yelling; the delays are egregious," says Barkauskas. A date for a seven-day trial, which is not unusual if there are custody issues, is now being set for the spring of 2021. "People with money are having disputes heard by arbitrators. This is two-tiered justice," he says. FAMILY LAW REFORM "THE LIBERALS PUT FORWARD A PROACTIVE AGENDA FOR CRIMINAL JUSTICE REFORM. BUT THERE DOES NOT SEEM TO BE A LOT OF ACTION…CONSULTATION IS OBVIOUSLY LAUDABLE. BUT AT SOME POINT THE GOVERNMENT OF THE DAY HAS TO MAKE DECISIONS."

• Cover