Legal Feeds Blog
Fresh off a victory in having a disciplinary hearing go ahead against an Edmonton officer alleged to have improperly targeted a local defence counsel, two lawyers have launched a complaint against a sergeant whose text messages to his colleague played a key role in the case.
“I do think it’s a big deal when lawyers are getting arrested because they’re not well-liked by the police,” says Erika Norheim, who’s counsel for Chady Moustarah, the defence lawyer allegedly targeted by police, and Aleksandra Simic, another lawyer present at the time of the 2011 incident.
In the latest development, Norheim has filed a complaint on Simic and Moustarah’s behalf against Edmonton Police Service Sgt. Dana Donald, who was among a group of lawyers gathered at a lounge in Edmonton on April 9, 2011.
According to the complaint sent to police Chief Rod Knecht this month, Donald sent a text message that day to Const. Adam Woodburn advising that Moustarah had been drinking and was about to drive away from the lounge. Woodburn had arrested and charged Moustarah with obstruction of justice a few years earlier for giving someone advice on his right to silence. The Crown had stayed that charge in December 2009.
After getting Donald’s text messages, Woodburn, who was working undercover at the time, tracked down Moustarah at another venue, arrested him, and took him to a police station for a breath test. He didn’t administer a roadside alcohol-screening device and ultimately chose to forgo the breath test at the station. Instead, Woodburn issued the lawyer a roadside licence suspension under the Traffic Safety Act.
In 2014, Knecht dismissed a complaint about Woodburn’s actions. Simic appealed to the Alberta Law Enforcement Review Board, which earlier this month ordered police to conduct a disciplinary hearing on charges of unlawful or unnecessary exercise of authority and discreditable conduct.
Now, Moustarah and Simic are complaining that Donald’s actions in 2011 amount to engaging in corrupt practice.
“Sgt. Donald did not, and could not, have sincerely believed that Mr. Moustarah was driving while intoxicated,” Norheim wrote in the complaint. “Rather, we submit that it is apparent that Sgt. Donald made these statements to Cst. Woodburn to tease or otherwise provoke Cst. Woodburn rather than because he held a sincere belief that Mr. Moustarah was about to commit a criminal offence. . . .”
The complaint cites the fact there was no suggestion Donald made any attempt to see if regular patrol officers were available to make a traffic stop rather than someone working undercover, such as Woodburn.
“The personal advantage in this case was for Sgt. Donald’s own entertainment or amusement or, alternatively, retribution on the part of Cst. Woodburn,” wrote Norheim, citing Donald’s alleged motivation.
The letter notes that during an interview, Donald expressed an opinion that Moustarah had had four or five drinks that evening. Woodburn, however, had at one point said Donald told him in the text messages Moustarah had had six drinks.
“If Sgt. Donald did indeed inform Cst. Woodburn that Mr. Moustarah had consumed six drinks, this would amount to ‘deceit’ . . . as it was a false, misleading or inaccurate statement made willfully or negligently,” wrote Norheim in the complaint.
Norheim says there are other troubling aspects to the case, including what she alleges was the apparent destruction of the text messages exchanged between the two officers.
“Woodburn was never even asked for them.”
She notes in her letter she was able to proceed with the more recent complaint following information revealed in Knecht’s disposition letter on the complaint against Woodburn in 2014 and says another set of allegations are in the works over what happened to the text messages.
She says in regards to information received as part of the record in Simic’s appeal to the Law Enforcement Review Board, she believes she’s no longer subject to an implied undertaking and can move forward with the additional complaint now that the appeal body has released its decision.
Norheim says the case is reminiscent of the famous Overtime case in Edmonton in which police officers landed in hot water for attempting to target a local newspaper columnist and the chairman of the police commission in an impaired driving sting. The incident led to a series of lawsuits, disciplinary hearings, and appeals.
“It’s very similar to Overtime,” says Norheim, saying the case involving Moustarah and Simic has flown under the radar.
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A Brampton, Ont., lawyer and former MPP has voluntarily surrendered his licence to practise after admitting in a disciplinary hearing to professional misconduct.
An order summary released last week by the Law Society Tribunal granted John Carman McClelland “permission to surrender to the law society his licence to practise law in Ontario.” The tribunal also ordered him to pay costs of $10,000.
According to the order summary, the tribunal found McClelland had, among other things, borrowed money from clients, including a loan of $25,000 from the mortgage proceeds of a client; filed annual reports that were misleading or inaccurate; failed to serve clients in mortgage transactions and the purchase of a commercial property; misapplied funds and mishandled money held in trust for clients; failed to keep proper records; and failed “to be on guard against becoming the tool or dupe of unscrupulous clients and/or third parties while acting for the vendor on a sale transaction.”
In the agreed statement of facts filed with the tribunal, McClelland “admits that these facts establish that he engaged in professional misconduct.”
“There was an agreement by Carman that he had made a number of errors and there was a joint position on penalty that was accepted by the panel,” says McClelland’s lawyer, William Gilmour. “It was an appropriate resolution under all the circumstances.”
According to an article in the Brampton Guardian, McClelland’s licence was already suspended earlier this spring, when more allegations against him surfaced, including “an accusation from Bank of Montreal surrounding a $437,000 cheque the financial institution suspects was ‘counterfeit’, and a complaint lodged by McClelland’s sister, who accuses her brother of taking advantage of their ailing mother.”
McClelland, according to the article, has called those accusations “absurd and defamatory” but didn’t contest the proceedings that resulted in the suspension of his licence.
That suspension, Gilmour says, was on an interlocutory basis and not on a finding of culpability.
Leslie Maunder, who represented the law society during the hearing, said the law regulator would have suggested suspending McClelland’s licence for two years if he hadn’t given it up voluntarily.
McClelland, according to Gilmour, has also been struggling with crippling mental-health issues.
“He suffered some psychological torment and paralysis which interfered with his ability to practice law and he has taken an opportunity to carry on and heal himself as he gets on with the rest of his life,” he says.
McClelland was an MPP for the Liberals from 1987 to 1995, representing Brampton North. In 2007, he ran unsuccessfully as a Progressive Conservative candidate. He was named president of the Brampton Board of Trade in 2008.
According to the agreed statement of facts, McClelland was born in Angola and raised in Brampton. He worked for 10 years as a counsellor for youth in conflict with the law before obtaining his law degree at the University of Windsor.
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The appearance of discrimination isn’t evidence of discrimination. That’s the gist of today’s Supreme Court of Canada ruling in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), in which the court set a high burden of proof for racial profiling cases.
|‘The difficulty — and it’s always a difficulty in discrimination cases — is that you never have direct proof of discrimination,’ says Catherine McKenzie.|
At the time, tensions following the Sept. 11, 2001, attacks were running high, and the United States had instituted enhanced security measures for the aviation industry. It was in this environment that U.S. authorities denied Latif security clearance.
Latif proceeded to seek training at Bombardier’s Montreal facility, but the company refused to train him in Canada, citing its policy of adhering to U.S. national security directives.
Latif filed a complaint with the province’s human rights commission, which then launched a proceeding at the Quebec Human Rights Tribunal. The tribunal sided with Latif and ordered Bombardier to disregard U.S. decisions on security clearance.
That decision, however, was overturned on appeal, a finding upheld today in a decision written by justices Richard Wagner and Suzanne Côté on behalf of a unanimous Supreme Court.
The Supreme Court decision reiterated the appeal court’s finding that the plaintiff had failed to prove that, on a balance of probabilities, the U.S. security decision was discriminatory, something that was a virtually impossible task given laws in the United States that prohibit non-citizens from accessing the reasons in such cases.
The court stated: “It cannot be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group is necessarily based on a prohibited ground under [Quebec’s Charter of Human Rights and Freedoms]. In practice, this would amount to reversing the burden of proof in discrimination matters.”
Catherine McKenzie, one of the Irving Mitchell Kalichman LLP lawyers who represented Latif, says she’s disappointed with a decision she believes makes it much harder to prove racial profiling.
“The difficulty — and it’s always a difficulty in discrimination cases — is that you never have direct proof of discrimination,” she says.
“People don’t admit that they do things for discriminatory reasons, so you’re always looking at circumstantial evidence. And so by setting that bar at balance of probabilities . . . I think that the likely result is that it could be harder to prove discrimination in the future.”
With no official reasons for the U.S. security decision, McKenzie says she had to resort to bringing in an expert on discrimination and a professor who had looked at racial-profiling statistics for similar U.S. security programs.
“The argument that we were making was that, given that the U.S. had many programs, all with the same aim, and that these were all in fact discriminatory, it would be surprising to think that [the aviation screening] program, for which there was no oversight at all, wasn’t discriminatory.”
Bombardier’s counsel countered with their own expert and argued that the plaintiff, in order to prove his case, needed to provide statistics on the program or some other concrete evidence.
The court did, however, stress that its decision doesn’t give corporations licence to “blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the Charter.”
McKenzie calls that the “silver lining” in the rulings. She figures corporations will have to conduct their own investigation before applying foreign policies that may be discriminatory. “There might be a civil claim against somebody for not doing an appropriate investigation,” she says.
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While class action lawsuits have become more common following a data breach, ashleymadison.com may not see its 37 million customers racing to put their name forward as members of a class.
|The hack of ashleymadison.com is ‘not your everyday data breach,’ says Catherine Beagan Flood.|
"This is not your everyday data breach."
The company's cheeky brand took a hit on Monday when it was hacked by a group that says it has private information about its users including names, photos, and credit card data.
While there has been a trend toward certification in class actions over data breaches, they haven't proven to be a very profitable venture for class action lawyers, says Barry Sookman, a senior partner and technology lawyer at McCarthy Tétrault LLP.
"Often, there are suits started, but it's really undetermined what the damages will be. This is an interesting case because the kind of mental distress that might be caused is directly associated with the fact there was a very high expectation that information would be confidential," says Sookman.
"If the information is disclosed, there will be a lot of distressing conversations that could end up also having financial losses. Consider what would happen if it precipitated 10,000 divorces of monetary settlements of $1 million each?"
The company declined a request for interview with Legal Feeds, but Toronto-based Avid Life Media Inc., which owns ashleymadison.com issued a statement apologizing to its customer base, saying it's offering the option to fully delete their personal information for free.
"We have always had the confidentiality of our customers' information foremost in our minds, and have had stringent security measures in place, including working with leading IT vendors from around the world," the statement said.
The statement went on to explain the company had secured its sites and closed the "unauthorized access points."
"Any and all parties responsible for this act of cyber–terrorism will be held responsible. Using the Digital Millennium Copyright Act (DMCA), our team has now successfully removed the posts related to this incident as well as all Personally Identifiable Information (PII) about our users published online."
The statement added that the paid-delete option offered by ashleymadison.com does remove all information related to a member's profile and communications activity. The process involves a hard delete of a requesting user's profile, including the removal of posted pictures and all messages sent to other system users' e-mail boxes.
"I expect they are making a careful assessment of the scope of what personal information has been taken by this hacker group and considering what information they can and should make public for purposes of their customers taking appropriate steps," says Beagan Flood.
The question for the company will be how best to notify its customer base without further breaching privacy.
"You need to make sure that giving notice doesn't make the situation worse and in many cases that can be by using a compromised security system, for example. This is a rather unusual situation in which any specifically targeted notice may only exacerbate a data breach," she says.
The cost of dealing with the breach will be high, says Sookman, in terms of legal fees and the brand.
"For a service like this in which people have an expectation of a higher level of security, the damage to the reputation might well be very difficult for them in the short term until consumer confidence is restored," he says.
"They will want to notify individuals if there actually has been disclosure but they probably won't want to notify 37 million people if their information has not been compromised," he says.
And given the 37 million customers include people from different countries, the company will have to comply with the mandatory disclosure laws in those jurisdictions and retain law firms there.
Even if a class action is launched, Beagan Flood says it's difficult in privacy cases to assess what the damages are, particularly where they're not financial in nature.
"This is one of the circumstances in which quantification of damages would be difficult," she says.
She says the Ashley Madison hack is an example of how identify theft and fraud aren't the only motivations for breaches of security safeguards.
"That means companies that may not have thought they were likely to be targets or thought putting significant safeguards on their financial data would be enough may need to rethink that because the rationale for the hack and type of information that is particularly sensitive isn't related to financial motivations," she says.
Howard Simkevitz of Simkevitz Law says if they aren't doing so already, companies will be paying more attention to data breaches and looking into insurance for cyber extortion.
"Data has become such a critical part to any business. The reality is you're going to have a data breach at some point. It's very difficult for an organization to go unscathed. You need to be prepared for that," he says.
While changes to the federal Personal Information Protection and Electronic Documents Act include the addition of data breach rules, they're not yet in force. They would require organizations give notice to the privacy commissioner and individuals affected and fines could be levied. Right now, only Alberta has mandatory breach notification.
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Winnipeg lawyer Sidney Green, a senior member of the Manitoba bar, doesn’t think he needs a course to teach him how to be persuasive.
|Manitoba lawyer Sidney Green says the law society should not require him to attend courses that are of no use to him.|
That’s one of the courses offered as part of mandatory continuing professional development for lawyers in his province, says Green, who has practised law for more than 60 years and was a bencher of the Law Society of Manitoba for eight years. After the Manitoba Court of Appeal dismissed Green’s application to declare that requirement illegal, he says he’s taking his fight against the Law Society of Manitoba to the country’s top court.
“I don’t believe I should attend programs which are of no value to me,” says Green. “I’ve been practising for over 60 years. I have never had a complaint against me by the law society, nor have I ever had a complaint of being incompetent.”
He adds: “If it’s useful for somebody, let them go. I have gone to these programs when they have been of value to me. I have not only gone to them, I have been a presenter. But I don’t believe I should attend when I believe they have no value to me or for the public.”
Green says he continues to attend programs he believes add to his knowledge. But the mandatory nature of the program, which requires lawyers to accumulate a certain number of points, is effectively forcing some lawyers to spend time and money on attending useless courses or risk having their licence suspended, he adds.
“Most of the lawyers that I know feel exactly the same way, but they’ll go to the programs in order to get points. They won’t listen to what’s being said or they won’t even stay. They’ll register just to get the required points,” says Green, adding he personally chose “not to make a mockery of their programs.”
When he fell short of his required credits, the law society sent him a suspension notice, but the suspension isn’t yet in effect while the matter is still before the courts. “The legislation does not specifically indicate a suspension of a lawyer who has never been found to be dishonourable and never found to be incompetent,” says Green.
“The suspension provisions in the act are for people who are incompetent or dishonourable.”
Manitoba lawyer Sidney Green says the law society should not require him to attend courses that are of no use to him.
But early this month, the Manitoba Court of Appeal found the law society has the power to make continuing professional development courses compulsory in order to remain a practising member of the bar.
“Having the power to make it mandatory, the law society clearly has the power under s. 65 to also make rules establishing the consequences — a suspension for failing to meet the requirement,” wrote Justice Marc Monnin on the court’s behalf. “A rule allowing the chief executive officer to suspend until the requirement is met is also within the law society’s powers as set out in the statute.”
Green’s lawyer, Charles Huband, says he'll seek leave to appeal the decision at the Supreme Court of Canada.
“We don’t think they were correct in the interpretation of the act. They took a general [rule-making] power and then said, ‘Well, that’s enough to make rules mandatory the attendance at classes and suspension for non-compliance,'” says Huband.
Huband says s. 4 of the act, "which simply says they can pass rules for the purposes of the law society," was never intended to mandate a situation where there are involuntary actions such as attendance at lectures with the consequence of a suspension for non-compliance.
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