An appeal court judge ordered a new trial in a road rage conviction Thursday after finding the accused was served ineffectively by his legal counsel, who did not allow him to testify in his own defence.

Linofiel Eroma was charged with possession of weapon for a dangerous purpose and aggravated assault after a road rage incident in Toronto, according to the ruling. He was convicted in April 2010, and sentenced to a 90 days in jail to be served intermittently with a three-year probation.

Eroma appealed his conviction, claiming despite his wish to do so, his lawyer Paul Slocombe did not allow him to testify at trial. His testimony would have challenged the complainant’s credibility and the account of eyewitnesses, said Eroma.

“In the absence of some explanation or response from the appellant’s trial counsel, which has not been forthcoming through no fault of the appellant, the appellant’s claim that he instructed his counsel throughout that he wished to testify and that he was effectively prevented from doing so by his counsel stands uncontradicted,” the appeal court ruled in R. v. Eroma, adding “the presumption of trial counsel’s competency is of greatly diminished force.”

Slocombe, has since been disbarred by the Law Society of Upper Canada as a result of other clients complaining about his conduct, part of which was his failure to follow their instructions.

“There is no doubt that the appellant’s decision whether to testify in his own defence was his alone to make,” said Justice Janet Simmons, writing for a panel including justices Eleanore Cronk and Eileen Gillese.

“Based on this record, we are satisfied that the appellant has established on the balance of probabilities that he wished to testify at his trial and that his instructions to counsel in this regard were ignored or overridden by the appellant’s trial counsel.

“There is every possibility that the appellant’s trial representation occasioned a miscarriage of justice,” added the court, which ordered a new trial.

The accused, who needed a Tagalog interpreter throughout his trial, also said he didn’t understand what was going on at times, especially when his lawyer and the trial judge spoke simultaneously.

The appeal court urged the Crown to proceed with a new trial “having regard to the unique and most unfortunate circumstances of this case.”

An Ontario judge has cast doubt on the common practice of determining estate trustee compensation and legal fees on the basis of fixed percentages.

An Ontario judge found it’s not always proper to follow fixed percentages. (Photo: Shutterstock)

In Hooke Estate, a beneficiary challenged the amounts claimed by lawyer William George Jeffery for his work as estate trustee and solicitor. After handling the estate of Mary Hooke according to her wishes, Jeffery sought compensation of almost $22,000 and applied to pass the accounts.

Jeffery later reduced his claim for executor’s compensation to about $10,300, but beneficiary Lynne Johnson objected nevertheless. In particular, she argued against his claims for 2.5 per cent of the capital receipts and capital disbursements. She also objected to his claim for legal fees of $6,000 given the estate matter was a fairly simple one involving a primary asset valued at $425,000.

According to Superior Court Justice Irving André’s endorsement in Hooke this week, a practice has developed in Ontario of awarding compensation on the basis of 2.5 per cent of the capital receipts, capital disbursements, revenue receipts, and revenue disbursements. Jeffery, in fact, justified his amounts based on fee recommendations by the York Law Association, André noted. But the judge found it’s not always proper to follow fixed percentages.

“In my view, given the quantum and nature of the work involved in fulfilling his work either as trustee or counsel, reliance on these 2.5 percentages in this case is unwarranted,” wrote André.

“Such reliance results in compensation that is unfair and unreasonable. They cannot be applied just because, as Mr. Jeffery asserts, they have been the York Law Association’s recommended percentages for trustees and lawyers involved in this type of work. In certain cases, they may well be justified but not in every case as Mr. Jeffery seems to suggest.”

Jeffery also used the association’s recommendations for fixed percentages when it came to his legal fees of about $6,000, according to André, who found the amount “cannot be held to constitute fair and reasonable compensation.”

In the ruling, the judge cut the executor’s compensation to almost $9,000 and the legal fees to about $4,100. “This was, by all accounts, a relatively uncomplicated estate to administer,” he wrote, noting the matter wasn’t one that required great skill and ability.

Canada

Ontario judge speaks harshly about 'useless' sentencing report from Quebec that 'flouted' language requirements, The National Post

New law requires greater financial transparency from First Nations governments, Calgary Herald

Elections Canada wants tough new laws to curb robocall incidents, Toronto Star


United States

Banks ask for intervention from appeals court in FHFA lawsuits, Reuters

Judge tough on law firm in discrimination suit, Reuters


International

South Korean bank sees lawsuit against Citigroup dismissed, Reuters

Chinese IT equipment bought by U.S. government to be restricted by 'quietly passed' funding law, Reuters 

Criminal lawyers in British Columbia have been given free access to an online sentencing tool accessible via their smartphones.

Rangefindr.ca is being made available through Courthouse Libraries B.C., to which all the members of the province’s law society have access.

The move demonstrates the increasing range of digital products aimed at legal research, and the way in which law libraries are seeking ways to supplement traditional services.

Rangefindr.ca allows users to click on tags such as “addiction,” “financial difficulties,” and “injured due to offence” to see the types of sentences imposed.

Founder Matthew Oleynik, a Toronto-based research lawyer with a criminal law background, says the tool started as a “personal project” after he become “annoyed” at the limited information available on sentencing.

Rangefindr.ca was launched last year and is available to lawyers across Canada, primarily through their firms. It normally costs around $30 a month per lawyer user.

Courthouse Libraries B.C. decided to link up with the tool as part of its new criminal practice portal. Alex McNeur, manager of web development for Courthouse Libraries B.C, said, when the library spoke to lawyers in the course of developing the portal, many said they needed access to a sentencing tool.

“Whether you’re at your desk, in your home, or in the elevator, the tools you need are with you,” says McNeur.

Oleynik says another province is interested in rangefinder.ca and that the number of users per month is currently in the “hundreds.”

“That might not sound a lot, but the number of criminal lawyers is also in the hundreds,” he says.

David Whelan, manager of legal information at Osgoode Hall’s Great Library, says libraries’ ability to provide online apps and tools to users can be restricted by licensing rules and finances. But he sees plenty of opportunity for developers to market niche products that build on data available through existing databases such as CanLii.

“The challenge is finding information that’s available and [concentrating on areas of law] where there are similarities between the types of cases coming out,” he says. Family law is one potentially untapped area, he believes.

Canada

SCC ruling expected to clarify police access to texts, The National Post

Maple Leaf Gardens sex abuse scandal continues as Stuckless arrested on new charges, Vancouver Sun

Halifax amends downtown land-use bylaw, removes 'stumbling block' for developers, Chronicle Herald


United States

Knox case sees extradition treaty challenge U.S. position on double jeopardy, Reuters

Former lawyers at DLA Piper made attempt at 'humour' in legal fee e-mail controversy, Reuters


International

British government loses latest legal battle to deport radical cleric, Reuters

Saudi prosecutor wants death penalty for cleric whose arrest led to deadly protests,  Reuters

The Ontario Court of Appeal says the province can “take up” land for mining and forestry without conducting separate consultation with the federal government.

On March 18, in Keewatin v. Ontario (Natural Resources) the Ontario Court of Appeal confirmed that in exercising its rights and powers as beneficial owner, Ontario is not subject to federal consent when taking up Crown land for resource projects.

However, it is obliged to ensure its actions on behalf of the Crown are consistent with the promises made by the Crown to First Nations, which is to ensure the duty to consult and s. 35 rights.

“I think it’s a good decision in the sense that it provides greater certainty to everyone, essentially — to resource developers, government and First Nations. I think it’s positive in that sense,” says Terri-Lee Oleniuk, a lawyer with Osler Hoskin & Harcourt LLP in Calgary.

Oleniuk called the judgment “persuasive and well reasonsed” and likely to broadly apply in other jurisdictions in cases involving interpretation of the Constitution and treaties. It is only binding in Ontario.

At the Ontario Court of Appeal, opponents from companies such as Goldcorp appeared as well as other First Nations from different treaty areas.

“Of interest to us were the Treaty 6 First Nations intervening and making submissions to the nature resources transfer agreements and how it might apply out here,” says Oleniuk.

At issue in Keewatin was whether Ontario had the right to take up the Keewatin lands and thereby limit treaty harvesting rights without first getting federal government approval.

In 2005, the Grassy Narrows First Nation commenced an action to set aside approvals Ontario had granted to Abitibi-Consolidated Inc. to carry out forestry operations in the Keewatin lands governed by Treaty 3. For various reasons, the trial judge found Ontario did not have the right to take up the Keewatin lands within the boundaries of Treaty 3 without receiving authorization from the federal government.

In its decision, the Ontario Court of Appeal noted the trial judge “made many errors” stating the original interpretation did not take into consideration that a two-step process involving consultation by both the province and the federal government is unnecessary, as the treaty right is protected.

. . . the trial judge’s interpretation produces a process that is unnecessary, complicated, awkward and likely unworkable. The two-step process is unnecessary to protect the Aboriginal Treaty harvesting right because when the Crown, through Ontario, takes up land, it must respect the Treaty right. When Ontario stepped into Canada’s shoes by virtue of the process of constitutional evolution, the legal standard that binds the Crown did not change and the Treaty right is fully protected. To require both levels of government to be engaged in a two-step process is, on its face, complicated and awkward. It is difficult to see how the process of consultation, which is required when the Treaty harvesting right is affected by taking up, would be improved by involving both levels of government.

The court also noted, “leaving meaningful constitutional space for the exercise of provincial jurisdiction . . . without federal control . . . fosters direct dialogue between the province and Treaty 3 First Nations. Such dialogue is key to achieving the goal of reconciliation.”

Canada

Judge rules Alberta infrastructure minister had right to OK controversial power line, Edmonton Journal

Leaked letters raise concerns over B.C. auditor’s carbon neutrality report, Globe and Mail

Provinces differ on how broadly to define ‘bullying,' Globe and Mail


United States

U.S. Supreme Court take up gay marriage for the first time, Reuters

AP win against Meltwater could impact online news aggregation, Reuters


International

Italian court orders Knox retrial for Kercher murder, Reuters

Rebel leader dissolves Central African Republic constitution, CBC

Juanita Westmoreland-Traoré

A scholarship in honour of trailblazer Juanita Westmoreland-Traoré has been established at the l'Université du Quebec à Montreal.

The scholarship will be awarded to a first-year law student in the faculty of political science and law at UQAM, who has “demonstrated excellence in the use of the law as a tool for social change and who has been involved in activities that promote human rights, social justice, and the right to equality of the underprivileged and racialized minorities.” The student will receive $3,000 for each year of the program.

Westmoreland-Traoré, who retired from the Court of Quebec last year, was the first black woman to become a judge in Quebec when she was appointed to the bench in 1999. Prior to her appointment, Westmoreland-Traoré practised at the law firm Mergler Melançon in Montreal and then worked as a law professor at the Université de Montréal and UQAM. In 1996, she became the first black dean of a law school at the University of Windsor.

Westmoreland-Traoré has served as a commissioner for the Canadian Human Rights Commission and the Employment Equity commissioner of Ontario. She was also made an officer of the National Order of Quebec.

She is best known for her contributions to human rights, social justice, right to equality, and her commitment to the community.

There will be a reception at UQAM today at 5:30 p.m. to launch the scholarship.

(Photo: Heather Gardiner)

The Supreme Court of Canada will hear six appeals this week, including Toronto businessman Robert Hryniak’s appeals that question the summary judgment procedure.

March 25 — Nova Scotia — Sable Offshore Energy Inc. v. Ameron International Corp.

Civil procedure: Sable Offshore Energy and others sued several defendants as a result of paint failures on their offshore and onshore facilities. Some of the defendants entered into proportionate share settlement agreements, which allowed them to withdraw from the litigation, and left the remaining defendants responsible for their share of the loss. The defendants sought disclosure of the settlement amounts but the motions judge refused. The Court of Appeal allowed the appeal and ordered the amounts to be disclosed.

Read the N.S. Court of Appeal’s decision.

Other related news articles:

Toward an Even Playing Field: The Supreme Court of Canada to Rule on Disclosure of Amounts in Pierringer Settlements Prior to Trial, Canadian Appeals Monitor
Canadian Supreme Court will rule on disclosure of settlement amounts sums in multi-party cases, Gowlings Knowledge Centre

March 26 — Ontario — Hryniak v. Mauldin and Bruno Appliance and Furniture Inc. v. Hryniak

Judgments and orders: After Rule 20 of the Ontario Rules of Civil Procedure was amended, there was controversy as to whether it’s appropriate for a motions judge to use the new powers to decide an action based on the evidence presented on a motion for summary judgment. To provide guidance to the profession, the Court of Appeal convened a panel of five judges to hear five appeals from decisions under the amended rule. It also appointed five amicus curiae to provide submissions on how the amended rule should be interpreted and applied. One of the appeals was Robert Hryniak’s motion to set aside the summary judgment ordered by the Superior Court of Justice based on the amended rule. The Court of Appeal dismissed his appeal. In the second related case, the Court of Appeal allowed the appeal and ordered a new trial.

Read the Ontario Court of Appeal’s decision in Mauldin v. Hryniak.
Read the Ontario Court of Appeal’s decision in Mauldin v. Cassels Brock & Blackwell LLP. 

Other related news articles:

Supreme Court of Canada to hear Robert Hryniak appeals, Financial Post
Ontario Court of Appeal appreciates the power of summary judgment, Financial Post 
Fraud ruling a legal first; Ontario judge awards US$2M damages at preliminary stage, Financial Post 

March 27 — British Columbia — Vu v. R.

Charter of Rights and Freedoms: Thanh Long Vu was charged with production of marijuana and possession for the purpose of trafficking after the police obtained a search warrant to enter a location on the suspicion of hydro theft and discovered a grow-op in the basement. Vu was acquitted after the trial judge determined that evidence obtained from the search of a laptop and cell phone was inadmissible due to an unreasonable search and seizure. The Court of Appeal allowed the Crown’s appeal and ordered a new trial.

Read the B.C. Court of Appeal’s decision. 
Read the B.C. Supreme Court’s decision. 

Other related news articles:

Top court to rule on search, seizure of electronic devices, Advocate Daily 
Police search of Langley grow-op upheld, Langley Times 

March 27 — Quebec — Buzizi v. R.

Criminal law: Didier Buzizi was convicted of second-degree murder after stabbing a man to death in a Montreal club. He was sentenced to life in prison with no chance of parole for 12 years.

Read the Quebec Court of Appeal’s decision.

Other related news articles:

Child actor-turned-rapper Buzizi gets life sentence for murder, CTV News
Procès de l'ex-acteur Buzizi: ‘Je n'ai pas voulu le tuer,’ La Presse

March 28 — Nova Scotia — Amaratunga v. Northwest Atlantic Fisheries Organization

Public international law: Tissa Amaratunga worked for the Northwest Atlantic Fisheries Organization from 1988 until 2005 when he was dismissed. Amaratunga sued Northwest for wrongful dismissal. Northwest claimed immunity as an international organization. The Supreme Court of Nova Scotia dismissed Northwest’s motion and determined that the matter could go to trial. The Court of Appeal allowed the appeal, stating that the Supreme Court had no jurisdiction to adjudicate this matter.

Read the N.S. Court of Appeal’s decision.

Canada

Ford weighs in on radio show about ongoing Kachkar trial, to defence lawyer's surprise, Toronto Star

Canadian Forensic Mental Health Network to appeal to Parliament to change tough laws for mentally ill offenders, Vancouver Sun

Toronto district fire chief facing charges of sexual assault, human rights complaints, The National Post


United States

80M class action settlement to go ahead in Madoff feeder fund case: judge, Reuters

Lawyers for companies that frequently file for patents need to educate on new disclosure rules, Reuters


International

Leading human rights lawyer released on bail by Zimbabwe court, Reuters

Amnesty's Moscow offices searched by Russian prosecutors, Reuters