Political controversy is brewing in Canada following an announcement by the federal government earlier this summer to make changes to the national census next time around in 2011. The government would continue to send a short, mandatory census form to every household. However, under the proposed changes, it would no longer be obligatory for about 20% of Canadians to fill up a “long-form” census. During the last census of 2006, about 2.54 million long forms were distributed in Canada with a 93% return rate, or about 2.37 million long census forms.

According to the government minister responsible for the census, the Honourable Tony Clement, approximately 160,000 persons returned incomplete long-format census forms last time, even though theoretically they could have faced prosecution for doing so. He claims this illustrates that many Canadians do not feel comfortable telling the government their religious affiliation, how many toilets are in their home, and similar private data.

Under the changes, the obligatory long-form census would be replaced in 2011 with a voluntary National Household Survey (NHS). This would be distributed to approximately 4.5 million Canadian households, and would contain the same questions as would have been included in the long-form census.

The change to the NHS appears reasonable to this writer. With all the intrusion into our privacy these days, from private industry and government alike, why not make the detailed questioning voluntary? There are all kinds of people who actually enjoy answering surveys. Hundreds of thousands of them will surely fill the darn thing up.

Political posturing

What has been the reaction of the leaders of Canada’s opposition political parties? Before answering that, it should be noted that Canada’s national government, formed from the Conservative party, has a minority in Parliament.  This is what is termed a “hung Parliament” in the U.K.  The Canadian government could be forced to resign at any time if it loses an important vote in the House of Commons. Naturally, the opposition is constantly testing the waters to find some rallying point in public opinion so it can pull the plug on the government and force an election.

One would expect that politicians of all stripes would want to be seen as protecting private data.  Surprising at it may seem, judging by the reaction of opposition party leaders, you would think the Canadian government was proposing to abolish motherhood. Liberal party leader Michael Ignatieff, who wants to be Canada’s next Prime Minister, has been vociferous in encouraging opposition to the census reform. He has vowed to “save the census”, and by implication to save the country from the Conservatives.

Representatives from many private interest groups, which groups have often benefitted from government grants, and who seem to feel the Conservative government is out to get them, are decrying the changes. They claim that the government’s plans will result in inadequate data leading to social disaster, and less money for groups such as themselves. The Conservatives must be stopped from attacking our public transit systems, daycare, local schools, services to seniors, and everything else imaginable, they contend.

Are the media doing their job?

Coverage by the media in Canada has been less than objective. News reports all summer long have emphasized criticisms of the changes. Take one of many examples. On 23^rd August, Tim Naumetz authored a piece published on the Hill Times website called “Conservatives’ census decision could affect party’s outreach to ethnic Canadians”. Among the unanimously negative viewpoints cited in the article were those of a professional pollster, Frank Graves:

“It’s not just the multicultural programs, the whole question of  employment equity in the workforce, which is a huge issue, is based on analysis of this [census data], things like legislated employment equity, they’re talking billions of dollars in economic activity, if this isn’t properly understood, and it won’t be anymore,” Graves is quoted as saying.

Problems with the criticisms

This quote (if accurate) seems bizarre coming from a pollster, since they normally operate entirely on the basis of voluntary information.  Not only that, but pollsters claim with straight faces that opinion polls on key issues in Canada are accurate within about 3.5%, 19 times out of 20, and this with a survey pool of only 2,300 people or so nationwide. Such polls are often the fodder for alarming editorials in the media, and are used frequently by political leaders to base their decisions. But judging by the comments attributed to Graves above, all opinion polls must be complete garbage, given their tiny sampling.

But even taking a response rate of only 50% for the proposed 2011 NHS (a rate presumed by many critics) there would be about 2.25 million completed NHS forms returned to Statistics Canada in 2011. Adding it all together, the difference would thus be 2.25 million forms (presuming only 50% participation with the NHS in 2011) vs. 2.37 million long-forms returned last time (long-form census in 2006).

We ask what is the accuracy differential with a survey based on 2.25 million respondents (NHS) vs. 2.37 million respondents (2006 long-form census) vs 2,300 respondents (opinion polls)?

Moreover, as reported in The Economist on July 15^th, many democratic countries around the world are moving away from census-taking as an outmoded and highly expensive way of gathering information.

Democracy is fragile

This writer doubts that the media slant in Canada would have been the same on this issue if similar changes had been proposed by the Liberal or New Democratic Party opposition leaders. The media have failed miserably in keeping before the public’s mind the key point that the proposed NHS would have a huge potential survey pool of 4.5 million homes. As far as the opposition politicians themselves are concerned, the question to be answered is: how far are the opposition parties prepared to go to seize upon or even manufacture a crisis to help bring down the government?

In a democracy, the media and politicians have a duty not to distort reality on issues that are important to public policy. When mistruths are circulated, whether deliberately or due to simple shoddy reporting, emotion replaces rational debate. The public is entitled to accurate information to participate fully in our society and make educated decisions. Emotion and mistruths are the oldest weaknesses of democracy, as reported long ago by Thucydides in his great work The Peloponnesian War, a book which Mr Ignatieff and Canada’s journalists should take out of the library.

Sources:

http://www.statcan.gc.ca/survey-enquete/household-menages/5178-eng.htm

http://www12.statcan.ca/census-recensement/2006/ref/about-apropos/coll-eng.cfm

http://www.statcan.gc.ca/cgi-bin/imdb/p2SV.pl?Function=getSurvey&SDDS=3901&lang=en&db=imdb&adm=8&dis=2#b4

http://hilltimes.com/page/view/censusdecision-08-23-2010

http://www.economist.com/node/16590962?story_id=16590962.

Sometimes in life better results can be achieved by using counterintuitive thinking.

For example, when playing violin, by accident I may bow on a second string in addition to the string intended. So instead of playing F# on the D string, my bow ends up touching (and playing) the G string at the same time, resulting in the wrong note.

To improve my accuracy, Elizabeth Adams, my violin teacher at the McGill Conservatory, suggested I begin my practice sessions playing double stops—two strings at the same time—controlling my bow to ensure I avoid playing only one string while doing so. Then, she said, practice the pieces I am working on and it will be easier to hit the (single) notes I am supposed to be playing.

I have been following this recommendation for about two weeks now and my bow strokes are definitely becoming more accurate. Who would have thought that you should practice what you are supposed to be avoiding (playing two strings at once) to get better at playing one string?

Counterintuitive thinking seems to be behind new, important changes to Canada’s federal Immigrant Investor Program.

Changes to Canada’s Investor Program

As announced by the Minister of Citizenship and Immigration, the Honourable Jason Kenney, “Under these proposed changes those applying as Investors would need to have a personal net worth of $1.6 million, which is double the current level of $800,000 and these applicants would also have to double the investment they bring to Canada from the current $400,000 to $800,000.”

Will this change improve the success of Canada’s program?  We have to wonder.  For example, if you were considering purchasing a particular vehicle, and overnight the dealer doubled its price, would you go back and order this same automobile?

Minister Kenney obviously thinks so, considering the Canadian product.  He believes that Canada’s Immigrant Investor Program has been underpriced in the world marketplace.  Mr. Kenney argues that Canada had no shortage of applicants under the old rules.  The investment required under Canada’s program was significantly lower than those under programs offered by the U.S.A. and the U.K., for example.  These changes will only bring Canada’s qualification rules in line with those of other countries, he says.

Choosing Canada:  a smart decision

The big advantage of the Canadian Immigrant Investor Program, points out the Minister, is that the candidate obtains Permanent Residency for the Investor as well as his or her dependent family members immediately upon acceptance. This compares very favourably with other countries whose Investor programs do not offer permanent status or, if they do so, only after certain conditions have been fulfilled over long delays.

Thus Mr. Kenney feels confident that Canada will remain a desirable choice for Investors since, as he says, “we’re offering the best product, if you will, in the world.”

We must concur that Canada is surely a great immigration destination. In many respects, Canada is the star of the G20 nations. Just a few days ago, it was announced that our national unemployment rate has dipped to 7.9%, while in the month of June 2010 alone, 93,000 new jobs were created. (See our recent Tweet.)

Canada’s deficit—even with government stimulus expenditures—is under control, and the Canadian banking system is very solid, in fact ranked #1 worldwide by institutes such as the World Economic Forum.

Reality of the international marketplace

This is great news, but has the Canadian Immigration Minister misread the international marketplace?  Obviously, potential applicants under the Immigrant Investor Program are coming from outside Canada. And contrasted with Canada, many other countries continue to have economic woes.  There are numerous businesspersons worldwide who lost much of their net worth through the market downturn.  Businesspersons everywhere seem reluctant to open their wallets to hire or commit to major projects, despite heavy stimulus spending by many governments.

Given this apparent lack of cash, will these same persons be willing to commit to a five-year, non-interest yielding investment of $ 800,000.00 in exchange for Canadian permanent residency? (Or to pay the approximately $ 220,000.00 required to finance a loan for $ 800,000.00, if they choose not deposit the actual $ 800 K.)

With this current business reality, one would think it will be less likely for Canada to attract Investor candidates under the new, tougher rules. It might seem to make more sense to consider easing the qualification rules for a period of time, or at least not to increase them until the world is clearly out of this recession.

The next steps

Only time will tell if the Minister is correct despite his apparently counterintuitive approach to selling Canada’s Immigrant Investor Program in the world marketplace. My feeling is that this bold move will pay off. Once past the first year of implementation, the new rules will end up attracting more desirable candidates than ever before. We will keep you posted on developments.

While the changes are being fine tuned, Canadian embassies are not accepting new Investor applications.

However, the Province of Quebec, which has the power to select immigrants destined for that province, is continuing to accept Investor applications under the old rules. Quebec will likely change its own Investor program to mirror the federal changes at an as yet unannounced date later this year.

Of course, you are welcome to contact Fogarty Law Firm for further details on any of these issues.

“In view of the nature of the risks involved and the grave consequences of an erroneous determination, it is essential that asylum-seekers be afforded full procedural safeguards and guarantees at all stages of the refugee status determination procedures.”

- UNHCR brief on Bill C-11

On Tuesday, June 1^st, 2010, a committee of the House of Commons of Canada is scheduled to begin voting clause by clause on Bill C-11, the Canadian government’s proposed Balanced Refugee Reform Act. Although this proposed legislation has many strong points, it contains some serious flaws which require rethinking prior to adoption.

Ensure realistic and fair timeframes to determine claims

The first major area of concern is the speed with which refugee claims are to be determined.  Citing long delays in the past, the Conservative government, when announcing the proposed changes, vowed that the refugee determination process would become more efficient.  That, in itself, appears quite laudable.

An often heard legal saying is “justice delayed is justice denied”. For example, if judicial procedures take too long to get to the hearing date, a person may have difficulty in remembering and testifying about past events, as well as finding witnesses or evidence. No refugee advocate wants that. Or, as stated by the government ministers announcing these changes, persons making false refugee claims can live in Canada for many years prior to their removal from the country. In some cases this can amount to an abuse of Canada’s generosity.

However, a corollary of the “justice delayed” principle is that when a legal system imposes unrealistically short deadlines to finalize cases, fairness may lose out in favour of administrative efficiency. The result may be termed a “rush to judgment”.  This second type of situation is hardly better than the first one.

Under the proposed new Canadian refugee determination rules, according to many published sources, an individual coming to Canada to seek recognition as a refugee would have a meeting with a government official within about eight days after arriving in the country. This would be to collect documents, data and information relevant to their refugee claim.

About 60 days later, flowing from what is established at the first meeting, the refugee claimant will then undergo a hearing with another government official. This will be the first-stage determination of their claim at the Immigration and Refugee Board of Canada (“IRB”).  If accepted at that stage, in most cases the individual would be allowed to stay in Canada.

This looks good in the abstract. But in practical terms, the delays are far too short.  Remember that genuine refugees are fleeing persecution in their home countries. In many instances, they have to exit quickly and will not be in possession of all necessary documents to back up their claim or to corroborate their identity. Often it will not be possible to obtain everything from their home country in 68 days. In addition, a refugee claimant will usually want to seek assistance from a lawyer. This time frame is not adequate to find a lawyer, learn how to organize one’s evidence (even presuming all of it is available), and how to testify properly at a refugee hearing.

So the officials who hold the first-level refugee determination hearings will be faced with the very difficult job trying to decipher the truth and apply the legal criteria all the while faced with inadequately prepared refugee claimants and incomplete information.  Surely that cannot be what the Canadian government had in mind to reform the refugee system.

A delay of 180 days to hold the first-level hearing would still provide for speedy determination as well as a reasonable period of time for refugee claimants to present their cases. That would be a fair compromise.

Ensure the independence of decision-makers

A second area of concern expressed by many in the Canadian legal community has been over the fact that the first-level refugee hearings will be conducted by a government official or civil servant, rather than a so-called “independent” commissioner, as is currently the case.

In my own experience of 23 years as a lawyer, plus some three years prior to that working at the Canadian Parliament, I have gained sufficient faith in the Canada’s public servants that they will be capable of undertaking their duties in a fair manner.  It is also noteworthy that under the proposed changes, the only persons eligible to sit on first-level refugee determination hearings would be employees of the independent IRB. So persons working for either of the federal government departments charged with immigration matters (CIC and CBSA) would not be eligible to do so. That makes good sense.

However, I believe an additional safeguard could be made to increase the credibility of the system. It is often the case that government employees are appointed on short-term contracts of six months or one year. To ensure complete fairness in the process, only career public servants with the IRB should be permitted to hold a first-level refugee determination hearing. That means only persons who have permanent contracts. In my view, this would eliminate the fear expressed by some commentators that the officials charged with the first-level determination hearings might think they have to curry favour by rejecting a high percentage of claims.

This brings us to the third major area of concern.

Reconsider the proposed appeal restrictions

If, following the first-level determination, the claim is rejected, some refugee claimants will be permitted to access the newly constituted Refugee Appeal Division of Canada’s IRB.

The resurrection of the Refugee Appeal Division (“RAD”) of the IRB is a very positive step by Canada’s Conservative government. The former refugee legislation, which was brought in by the then Liberal government during 2001-02, provided for the RAD. However, that part of the legislation was never brought into force during the eight years since.

This is a very good reform since by having access to the RAD, most refugee claimants will have an automatic right of appeal. If successful at the RAD, they will be recognized as refugees. This will be a big improvement on the current system, whereby all failed refugee claimants have no effective option for redress except through the Federal Court of Canada. That process is cumbersome, since permission must be obtained to attack the decision, the applicant must demonstrate that the impugned decision has no reasonable basis (a very difficult task), and, even if successful, the most the Court can do is award the applicant with a new hearing. The Federal Court does not have the power to declare that an individual is a refugee.

Unfortunately, once again there is a big problem with the proposed legislation.  Under the new rules, refugee claimants coming from a list of so-called “safe third countries” would not have access to the RAD. Remember that all refugees will be expected to finalize their first-level hearing within about 68 days of landing in Canada. Given such time restraints, erroneous decisions are bound to take place. If the Canadian government is to eliminate RAD appeal rights for persons arriving from safe third-countries, the first-level determination process must be given a more reasonable time period to ensure full and fair treatment of claimants.

If the short deadlines are to remain for the first-level determination hearings, any and all failed refugee claimants must have access to the RAD. To do otherwise would be simply unfair, given the likelihood of errors at the first stage.

Mr Nagano gave his entire speech switching back and forth between English and French, often in mid-sentence. This was quite a feat, for an individual who began his presentation apologizing for his limited proficiency in French, noting that when he became head of the OSM in 2006, his French was quite limited.

After listening for a very short period of time, it was obvious that that Mr Nagano’s remarks flowed from his own considerable reflections on art and culture in modern society. We were being treated to the insights of a serious intellect. His remarks were as far removed as one can get from puffy, media-aimed “sound bites” now common in the corporate and political worlds.  (Interestingly enough, several days after this Blog was first posted, an official from the Board of Trade mentioned to this author that she had never heard the lunch crowd so attentive during a speech. The business audience was evidently unaccustomed to hearing remarks of this depth.)

Also interesting was Mr Nagano’s manner of delivery.  He was clear, calm and one might say respectful throughout. One had the feeling that he not only respected his audience, but the importance of his subject-matter.

Mr Nagano spoke about a recent meeting with an aspiring, young classical music conductor who was seeking practical advice on his career. “Should I even consider trying to make a living as a classical music conductor?”, the protégé asked. Given all the economic and other uncertainty, the young conductor worried, “Will there be an orchestra to conduct in 20 years?”

Without wishing to draw a direct causal relationship, Mr Nagano maintained there was at least anecdotal evidence to suggest that neglect of the arts goes hand in hand with social decline.  A Californian by birth, Mr Nagano gave the example of the city of Oakland, California, which brought in major cutbacks to the arts at the same time as increasing expenditures to renovate the stadium which housed its NFL team. Cultural institutions suffered, including the local orchestra which had to lay off its staff. Meanwhile the crime rate rose and illegal drug use soared in the community.  A few years later, the Raiders football team left town anyway.  To lure the team back again, Oakland made enormous public expenditures to build a new stadium. The arts were remained neglected, with no improvement in sight on the crime front.

Mr Nagano contrasted the example of Oakland with Montreal, which he commended for its vitality and quality of life. There was no finer illustration of Montreal for Mr Nagano than its new symphony concert hall designed specifically for the requirements of classical music, scheduled to open in the downtown core during September 2011. He remarked that with the new facility in place, Montreal would join the elite of the world’s great cities, each one of which has just such a facility.  This was fitting, he stated, considering that the symphony orchestra is one of humanity’s greatest cultural achievements, being seen as the collective instrument through which may be expressed the highest levels of human creativity, emotion and even freedom.  For the crowing achievements of the greatest composers such as Beethoven are recognized to be their symphonies.

Mr Nagano noted that historically, ancient Greece and Rome had important cultural venues at the heart of their cities and daily life. Although the upcoming inauguration of the new concert hall in Montreal is a reason to celebrate, we must all remain vigilant in our efforts to promote the arts in years ahead, he added.

“Will there be an orchestra to conduct in 20 years?”, Mr Nagano asked his business audience pointedly.

The temptation to make cutbacks in the arts is stronger now than ever, given the continuing world-wide economic instability, including most recently the enormous problems being faced by the cradle of democracy, Greece. Mr Nagano’s speech helps us to keep in mind that the arts require proper venues in which to achieve their full expression.  After all, if music and the other arts cannot flourish, human creativity and ultimately liberty will become precarious.

From a business point of view, it makes no sense to be wasteful. Addressing the environmental impact of how we conduct business is also being a good neighbour. Most of us would not throw our garbage on our neighbour’s doorstep. Similarly, all of us must recognize that actions taken in one part of our planet can have effects across the globe. The recent eruptions of the Eyjafjallajökull volcano in Iceland, whose volcanic ash has fallen from the skies over Europe and beyond, has had significant effects on international travel and world trade. These eruptions also illustrate that the Earth is really one organic whole.

This Earth Day 2010 coincides with the Millennium Summit in Montreal. Notable guest speakers include Al Gore, a former U.S. Vice-President. No doubt Mr Gore and other speakers will spread the gospel of climate change and urge all participants to action. Everyone will leave the conference feeling buoyed by the atmosphere. (Sorry for the pun.)

Enough with the hypocrisy

While any reasonable person would admit that Mr Gore makes some interesting points, is it too much to expect of our environmentalist luminaries that their own actions approach their words? Must they travel everywhere on land by limousine? Of course, they cannot be expected to take sailboats across the Atlantic. But can’t one of them take the subway to work once in a while, rather than to stage a photo op? Well, at least Mr Gore took the subway in Oslo, Norway, to collect his 2007 Nobel Prize. Of course, the fact he did so on that particular day was entirely coincidental. Will Mr Gore take the subway to the 2010 Millennium Summit? After all, Montreal’s convention centre, location of the event, is right on top of a Metro station.

In the city of Montreal, Mayor Gerald Tremblay urges everyone to take public transportation, and makes it increasingly difficult and costly for persons who wish to travel by private vehicle to park and do business in the city. But the mayor himself parades around town from event to event in a chauffeur-driven vehicle.

Indeed we looked pretty hard on Google but could not find even one photograph of Montreal’s Mayor Gerald Tremblay travelling anywhere in the city on a bus or on the Metro. That’s right, not even one picture! The closest we got were a few photos of him attending at a ceremony to open some Metro stations. But did Mr Tremblay deign to ride the Metro as a passenger and mix with the public that one time? It would appear not. Show me proof that I may come believe he took public transportation, as doubting Thomas might have said.

The contrast between the mayors of Montreal and of New York City could not be greater. While both leaders encourage citizens to take public transit, Michael Bloomberg, New York’s boss, actually takes the subway to work quite often. To be fair to his Montreal counterpart, Mr Bloomberg has received some flak from the New York Times and other media outlets since he sometimes has a city vehicle pick him up at home to take him part of the way, instead of getting on at his local station. It appears this is to enable Mr Bloomberg to catch an express train further along the line. But even with such limitations, Mr Bloomberg is known to be a frequent passenger on the subway. I suppose that, unlike the mayor of New York City, the mayor of Montreal is just too busy to take public transit.

What is to be done?

On this Earth Day, let us not get too discouraged about the hypocrisy of some of our leaders. We should demand higher standards from them. If we insisted that they actually take public transportation, our leaders could learn its weaknesses first-hand and work to lessen them, all the while relating to the real-life experiences of the citizenry. Maybe the result would be improved public transportation that is actually preferable to travel by private vehicle.

And all of us should lessen our use of resources where feasible, whether through simple gestures like turning off the lights at home when leaving a room, to buying energy saving vehicles, to more complex steps like adopting a strategy to make our workplaces more efficient. We will all benefit. At Fogarty Law Firm, we have taken steps to lessen the environmental footprint of our law practice. We invite you to read about it at the We are Green tab of our website and to contact us with any suggestions.

And on this, I wish a happy Earth Day to one and all.

Our previous Blog article was called How to prepare for your first meeting with a lawyer. We strongly recommend that you read that Blog post first.

Now that you have arrived at the law firm, what can you expect? Well, you are probably seated in the reception area, sipping a coffee or a glass of water. The lawyer comes to greet you. Let’s start the meeting!

Confidentiality of legal services

• Depending on where you have lived in the past, you may have some suspicions about lawyers and the extent to which they can be trusted with your private information.
• It is important to note that even your first consultation with a lawyer in Canada is protected by strict rules of professional secrecy. We will not repeat your details to other persons without your consent, unless obliged to do so by law. (Note that an obligation for a lawyer to disclose information occurs in only the rarest of circumstances. For example, if you tell me you intend to kill your wife, I will be obliged to inform the authorities.)

What will happen at the meeting?

• Do not be surprised if you are shown into a conference room, rather than to the lawyer’s office. Some law firms have a policy against client meetings in attorneys’ offices, or perhaps the lawyer feels his or her office is not tidy enough to receive you. So do not worry yourself about it.
• Once you sit down to start the meeting, after a few pleasantries, the lawyer will likely ask to see your identity cards and request that you put your documents on the table so they are at hand.
• The lawyer will then indicate that the documents you sent prior to the meeting have been reviewed, and will begin the main part of the meeting with an open question, such as, “Would you like to tell me about your problem?” or “What can I do for you?”
• The reason for posing such an open question is to allow you to feel at ease so you are ready to highlight your main concerns and objectives.
• At this point, you will be glad you have prepared your list of concerns and questions so you can discuss them and start looking for a solution to your situation.
• If you are part of a group meeting with a lawyer, do your part to make sure your spokespersons deal with all the issues the group wanted to discuss, and that the discussion does not go off track.
• During your meeting, describe all the facts as best as you can. If you believe there are weak points on your side of the issue, or if you know you failed to follow some rule or requirement related to your situation, do not hide these points. Be honest. You do yourself no good to try to “test” the lawyer to see if he or she can guess what you are hiding. This is not the way to assess a lawyer’s abilities.
• Remember that misleading your lawyer will only result in incomplete and inaccurate legal advice. In turn, this will lead to further problems and increased expenses down the road.
• Do not be afraid to ask questions. The lawyer is expecting you to do so. If there is anything you do not understand about what the lawyer has told you, or about what might happen next in your situation, this is the time to find out.
• Similarly, if it becomes obvious that your problem cannot be solved at the first meeting, you should ask the lawyer about his or her qualifications to handle your type of file through to its conclusion.
• For example, if your case is likely to go to court, and the lawyer has not stood up in a court room for the last five years, you might want to consider using a different lawyer. If the lawyer you are meeting with has a website, you would have been able to obtain relevant information about his or her qualifications prior to your meeting. You can then fine tune what you have learned during your meeting with the lawyer.

Retainer agreement (mandate) and legal fees

• If you decide that you want to use the lawyer for your entire case, do not be surprised if he or she suggests you sign a retainer agreement (sometimes called a “mandate”).
• The bar associations of all Canadian provinces encourage lawyers to enter into a retainer agreement with their clients for many types of cases.  With such an agreement, you and the lawyer each understand your own responsibilities.  In addition, there will be no confusion as to the object of the legal services (example, a first application rather than an appeal).
• If any part of the retainer agreement is not clear to you, the lawyer should explain it to your satisfaction before you sign it. This is especially true regarding fees.
• Depending on the type of file, some lawyers might suggest a set fee (sometimes called a “flat” fee) for your type of case, while others might suggest billing by the hour. What is the lawyer’s estimate either way? How will you be required to pay? In what delay? Can you pay by monthly instalments? Can you pay with a credit card? If fees are charged on an hourly basis, are there different rates depending on who will do each part of the work (lawyer, paralegal, law student)? Are there different hourly rates depending on where the services are performed (at the law firm, at an out of office meeting or in court)? These are the types of questions you will want to ask.
• You will also want to discuss how expenses will be handled. Expenses typically could include court or other government filing or processing fees, photocopies, fees for preparing transcripts, messenger fees, translation fees, and possibly travel expenses if your case requires work out of town. You are well-advised to ask questions such as: What dollar figures are likely for expenses in your kind of file? Will you have to make a deposit against foreseeable expenses? Will you be consulted regarding expenses beyond a certain dollar figure?

After the meeting

• If you have decided to continue with the lawyer, normally the next meeting will be to sign the retainer agreement or, if already done, to start working on the file.
• If you are still not sure what you want to do at the conclusion of your first meeting, do not despair. Most lawyers will not mind answering a reasonable number of follow-up questions during the days after your first meeting.
• A suggestion: if you think it likely you will have several such questions, write them down in a list so you can ask the questions in one phone call or email rather than making separate inquiries every time you think of something. This will be more efficient both for you and for the lawyer, and will help cement a positive lawyer/client relationship if you decide to retain the lawyer’s services for the rest of your case.

If you follow these suggestions, you will get the most benefit possible from your investment in legal fees for your first meeting with a lawyer. You will be able to concentrate on the important issues and obtain informed and expert legal advice.

In a coming Blog article, we will look at how to work with your lawyer after signing the retainer agreement through to the end of your case.

Until then, kind regards.

Stephen Fogarty

Fogarty Law Firm

In my career as a lawyer which spans more than 23 years, I have met with thousands of clients.  I am pleased to share my insider’s knowledge with you so can make effective use of professional legal services.

So let’s get going.

Whether you like it or not, eventually you will probably need the services of a lawyer.

There may be a variety of reasons behind your decision to seek legal advice.  Typically clients will schedule a meeting to obtain a legal consultation.  They may want to do something and are not sure about the legal issues involved, or they need help to decide what to do about a problem which has already arisen.  Alternatively, clients may be interviewing several lawyers before deciding on choosing one for their case.  Still another reason might be to follow a recommendation from a friend who has used or heard about the lawyer you are going to meet.  In the latter example, you are predisposed to choosing that lawyer but are mostly seeing if you and he or she will be a good “fit”.

Whatever your situation, the first meeting you will have with the lawyer is very important and might be a little unnerving for you.

But you do not need to be anxious.  Meeting with a lawyer is not as complicated as you might think.  With a little preparation on your side, you can make the experience quite painless.  You will likely find the meeting interesting and even (surprise) quite enjoyable.

So just how should you prepare for your first meeting?

Clarify your legal problem for presentation to the lawyer

• If your situation involves consideration of a document or series of documents such as a contract, or of a legal notice or decision you received, send a copy to the lawyer before the meeting.  This will increase efficiency.  You will obtain more complete legal advice for the fee you are paying.
• Put the original document (s) in your bag or folder you are bringing to the meeting.  The copy you sent might not be clear.  As well, the lawyer needs to verify the date and signatures on the original document, among other aspects of it.
• Prior to the meeting with the lawyer, make notes and a summary of the points and questions you wish to discuss.  This will help you to highlight your concerns clearly.
• It is a good idea to review your notes and discussion points with your spouse or a friend who is familiar with your situation.  They may be able to help you see issues you overlooked as well as helping you to clarify your discussion points.
• If your situation involves a dispute with another person, or if you have problems with the government, you should assume a settlement may not be possible in your case.
• Therefore, it is advisable to work on a detailed written statement to explain your situation.  Do this as soon as possible.  Time clouds the memory.  It is human nature to forget details, but small details can win a case at trial.  Your written statement will serve you well in the future if the matter leads to court or other proceedings.
• Type your detailed statement if possible.  It is a good idea to number each paragraph for ease of reference and discussion.  You can send it to the lawyer in advance of the meeting.
• Keep in mind that your detailed written statement is confidential for use of your lawyer only.  In addition to serving to preserve your current recollection of events, it will help the lawyer to understand your case.  The lawyer is not expecting a Nobel Prize winning composition.  The fact you have taken the time to make detailed notes will be appreciated highly by the lawyer.
• In addition to making sure to bring with you every key document and your detailed written statement (if any), do not leave home without any other documents that are connected with your problem.
• It is very frustrating for an attorney to schedule a meeting and find that a new client has left relevant documents at home.  Let the lawyer decide if a particular document is “not important”.  We need to see your papers and cannot offer an opinion on items you fail to bring with you.
• If your problem is group related, get together as a group first, decide on your list of concerns, and choose one or two spokespersons.  It is not practical for every member of a large group to give their own versions of events and pose their own set of questions at a first meeting with an attorney.

Practical issues:  money, getting to the office, bringing other people along

• On the money side, the usual practice is that initial meetings are not invoiced for payment at a later date.  Therefore, unless the lawyer has agreed to a free initial consultation, make sure you find out the exact total fees due for the meeting.  Be prepared to pay that amount.  Find out in advance the mode of payment accepted by the lawyer’s firm.  Do not presume a post-dated cheque or a particular type of charge or debit card will be accepted.  Similarly, if you have some form of legal services insurance, make sure the law firm will accept it.  A receipt will be issued to you.
• Obtain directions to the lawyer’s office before the meeting and allow yourself sufficient leeway to get there on time.
• It is best to phone the law firm to find out its exact location, and to obtain relevant details for the public transit service or, if you are driving, traffic and parking information.  Do not depend on GPS navigation systems which are not yet perfected.  You may end up in a completely wrong part of town which happens to have the same street name.  If you call 20 minutes late for your meeting claiming you are “lost”, do not be surprised if the lawyer will have to cut time off your consultation meeting so as not to inconvenience other clients.
• What does it mean to “arrive on time”? Try to arrive 5 or 10 minutes prior to your appointment.  The receptionist will inform the lawyer you have arrived.  Contrary to the belief held by some, arriving 30 or 45 minutes early will not earn you extra “free” consultation time on top of the period set aside for your meeting.  Most lawyers are very busy and will be doing other work right up to the time reserved to meet with you.
• Locate your identity documents and put them in your wallet or purse to bring with you to the meeting.  A passport is considered the best identity document.  Other photo IDs such as a driver’s license are good.  If you do not have any photo ID documents, bring a birth certificate and if possible a letter from a government agency or service provider showing your name and address.
• Why the concern about ID documents?  Lawyers are required by changes in our rules of professional conduct as well as the Canadian Criminal Code to know who we are meeting with.  We are not allowed to advise phantom clients.  Similar rules now exist in most countries around the world.
• Let the lawyer know how many people will be accompanying you.  You should not show up at your meeting with your entire family or a group without advising the lawyer in advance.  Even large law firms have limited meeting facilities and valuable time will be wasted scrambling to find a bigger room.
• Note that if you bring along a person who is not a party to your case, in some jurisdictions you may be considered to have given up your right to lawyer confidentiality regarding what will be said at the meeting.  You might want to clarify that issue with the lawyer before bringing other people along with you.

We hope this article has helped you to discover some issues you may not have thought about.  If you look after these issues, the lawyer you meet with will be impressed, and you will have started on the road to a beneficial professional relationship with him or her as your case develops.

In our next article in this series, we will bring you inside the meeting room to look at how to get the most out of your first session with a lawyer.  See you there.

“The first thing we do, let’s kill all the lawyers.”

These famous words from the English poet Shakespeare are often quoted by journalists and other social commentators to reflect perceived disdain for the legal profession. For example, such a commentator might cite that quote during his speech, glance at the audience with an air of sophistication, and pause for what he expects will be laughter and applause.  From his smug manner when delivering this “joke”, the speaker might give the impression he believes he is first one to have discovered Shakespeare’s writings.

No group of lawyers is criticized more vigorously by such commentators than criminal defence attorneys. Defence lawyers are portrayed as a dishonest breed representing clients, all of whom they know to be guilty, using technicalities to get them off, while often putting the victim on trial.  Or so the story goes.  (After criminal defence lawyers, lawyers defending big corporations against lawsuits win the silver medal of derision, followed by divorce lawyers who many commentators feel deserve the bronze.)

Of course, there have been instances of misconduct among some lawyers, but the percentage of Canadian attorneys engaged in malfeasance is very small.  No system is perfect.  However in most instances, if a person has problems dealing with the authorities or with his employer, or even a dispute with a neighbour, he or she is likely to contact a lawyer for help.  That is because lawyers tend to stand up for the rights of their clients, to do so fearlessly, and in the vast majority of instances to do so in a fair a reasonable manner, using arguments, not force.

Canada and the Rule of Law

What distinguishes Canada from many other countries is that it is governed by the “rule of law”. Simply put, what this concept means is that the law binds not only individual citizens, but also the various levels of government and their agents, including the police and security forces. To continue living in a free society, the law as clarified and decided upon by our courts must be the supreme authority, not some vague notion of the “will of the people” or religious precepts or the dictates of a particular leader or political party.

When some commentators denounce lawyers for using tricks or technicalities, they are really showcasing their own ignorance.  These so-called “technicalities” are actually legal principles resulting from laws enacted by the legislature as interpreted and applied by the courts.  Thus the rule of law has special importance in areas touching upon the individual’s interaction with government.

For example, in the area of  legal practice known as administrative law, for a democratic country like Canada, the interests of an individual can be protected by applying to a court to review the action or decision taken by the government official.  (We note that such court applications would be unknown in many non-democratic countries.)

To give a couple of examples, a decision might be thrown out by the court if the government body concerned did not follow its own rules in making its decision, or if the government was not fair because it did not consider fully the submissions made by the individual citizen. This latter example would involve arguments concerning natural justice or the legal obligation to “hear the other side” – audi alteram partem, as this principle is stated in Latin.

Such judicial review proceedings are a type of court procedure which can be used to contest negative decisions in Canadian Immigration or Citizenship matters.  Such applications are a specialty of the Fogarty Law Firm.

Regarding criminal accusations in Canada, the rule of law is crucial because it means the state must respect basic rules and procedures.  Here are three of the main implications:

1. A person is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial court.  Note the general requirement that trials be open to any member of the public.  Secret trials and democracy do not live very well one with another.  The same goes for ensuring that judges are appointed with security for their employment so they may consider a case neutrally and not be fearful of reprisals by government or other officials for making decisions unfavourable to the authorities.
2. A person has the right not to incriminate him/herself, whether when arrested or at trial.  As a general rule, a person suspected or accused of wrongdoing is not to be required to provide information or statements against his own interests.
3. A person has the right to life, liberty and security of the person, including not being subjected to arbitrary detention, imprisonment, search of his/her person or residence, or seizure of his/her property.  An individual must not have to fear invasion of his home or intimidation against his person by police or security officers unless there is a valid reason.

Muzzling lawyers muzzles freedom

If you look at recent history, it is evident that among the first things a dictator will seek is to muzzle the legal community.  When Hitler took power in Nazi Germany during the 1930s, it was not long before he imposed strict controls over the legal profession.  Jewish persons were forbidden to practice law.  Other so-called “undesirables” were rooted out of the profession as well.   Association with the Nazi party became a prerequisite.  Intimidation and brute force were the order of the day.  The system became so distorted that judges were called upon to decide legal trials taking into account what the “Fuhrer” Hitler himself would want the outcome of a case to be, rather than applying legal principles.

Shakespeare’s quote about lawyers explained

By the way, the Shakespeare quote above is from Henry VI, Part 2, written around 1591. Certain conspirators were discussing the steps needed to take over the state. If the lawyers were eliminated, they reasoned, there would be no obstacles to imposing a new regime based on their whims and personal advantage, rather than having to deal with obstacles that could be imposed on their new regime by the law and lawyers.  So this is the real reason why they wanted lawyers eliminated.  The rule of law would be swept aside.  You can look it up.

Lawyers:  an essential profession for a free country

These great principles of freedom discussed above should be cherished by everyone.  The rule of law is not a bunch of mere technicalities. These principles have developed slowly and carefully over the years, and are necessary to protect everyone regardless of whether or not the person charged is ultimately shown to be guilty or himself a victim of false accusations. They have been recognized in many rights declarations in various countries, and by the United Nations itself.  It is the lawyer’s job to ensure these principles are upheld, even if to do so might be controversial or unpopular in a particular case.  Remember, one day even you might face false charges or other problems with government authorities.  Who would you turn to for help, if not a lawyer?

The fact that Canada has such a strong tradition of respecting the rule of law and an independent, open system of criminal justice is one of the reasons this great country is chosen as a new home by more than 250,000 people each and every year.  And one of the reasons Canada is viewed as a free and democratic country the world over is the ongoing work undertaken by our lawyers, who actively participate in and defend the rule of law.

You can depend on us to discuss major concerns in the fields of Canadian Immigration and Citizenship Law.  We will be publishing articles taking into account the viewpoint of our clients.  We will keep you informed about key developments, including changes to the laws, policies, procedures and government fees.  We will also comment on important Court decisions, since these can affect legal rules and how they are applied as much as changes made by the lawmakers.  We trust that you will find these legal articles interesting.

But we decided that it was time to offer more than what you might expect from a typical blog run by lawyers.  We want to do something unique on the Internet.  This is why we have called ours the “Immigration, Citizenship, and Culture Blog”.

We are taking the word “Culture” in its broadest sense.  Therefore, do not be surprised to see articles about music and art, about education, social developments, politics, the economy, families, sports, and even fine cuisine.  We want to discuss Canada in all its aspects to attract your interest if you have never been to our country, or have been living here already for the last ten years.  We believe that immigrants to our land and citizens, whether new or Canadian born, all wish to participate in and contribute to the ongoing, living process which we call “Culture”.

If you like, you can subscribe to our Blog either through your regular email program, or through RSS feeds.

So here we go.  We would be pleased to have you join us regularly.  And while you are at it, why not refer a friend or two along for the ride!

With warm regards,

Fogarty Law Firm

P.S.:  You can also choose to follow us on our Twitter page, where many of our Blog posts will be referenced as well as consideration given to other topics.  Follow our tweets at: www.twitter.com/StephenFogarty