Legal Feeds Blog
May 14 — Federal Court — Callaghan v. Chief Electoral Officer of Canada
Administrative law: This case relates to expenses during the 2006 federal elections. The chief electoral officer wouldn’t reimburse certain expenses submitted by some Conservative party candidates because he was concerned that the party might have incurred the advertising costs but then transferred them to the candidates since it had almost reached its spending limit. The candidates successfully challenged the officer’s decision before the Federal Court but the Federal Court of Appeal allowed the appeal.
May 15 — Ontario — R. v. Cole
Charter of Rights and Freedoms: Richard Cole was a computer science high school teacher. One of the school’s information technologists found naked photos of a female student on Cole’s computer, which he had accessed through another student’s email account. He was charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. At trial, the judge determined that Cole’s s. 8 Charter rights had been violated and excluded the evidence. The Court of Appeal then allowed the appeal and remitted the case for trial. There is a publication ban in the case.
May 16 — Nova Scotia — Aucoin v. R.
Charter of Rights and Freedoms: Brendan Aucoin was convicted of possessing cocaine for the purposes of trafficking. On appeal, he argued that his s. 8 Charter rights had been violated when the police officer conducted a pat-down search, which the majority of the Court of Appeal dismissed.
Suspects charged in Montreal métro smoke bomb, The Gazette
Ont. man seeks return of abducted sons from Poland, Toronto Star
Ottawa bus driver charged after pedestrian collision, Ottawa Citizen
Anonymous blogger summoned to N.Y. court, Reuters
Fisherman sues cruise line for passing disabled boat, The Washington Post
Justice minister to speed up Italy's legal system, Reuters
Polish court upholds competition watchdog's ruling, Reuters
- Ruling says appeal court went too far in assessing evidence
“Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they ‘cannot be supported on any reasonable view of the evidence,’” wrote Justice Marie Deschamps in quoting from R. v. Burke.
The case, R. v. R.P., hinged in large part on the evidence of two witnesses: the complainant M.L. and her sister G.L., who was also the accused R.P.'s wife. M.L. was 13 years old at the time of the assaults, which occurred more than 30 years before R.P.’s trial. Among M.L.’s allegations were that R.P. sexually assaulted her while babysitting for the couple when G.L. was about to leave for the hospital to give birth to their second child. But G.L. testified that M.L. didn’t babysit on that occasion. Instead, she said she brought the first child to stay with her mother. M.L., the court noted, didn’t contradict G.L. Instead, she could only say repeatedly: “I have no idea. I don’t know.”
Nevertheless, the trial judge believed M.L.’s testimony. It was clear, Deschamps noted in this morning’s decision, that he took into consideration the weaknesses of the complainant’s testimony and found they weren’t determinative given that the incident had taken 34 years before the trial and given M.L.’s young age at the time.
“The trial judge’s approach was coherent and was also supported by the evidence,” Deschamps wrote on behalf of the majority that included justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis. “It did not justify the intervention of the Court of Appeal.”
Key to the ruling was the question of how far the Court of Appeal should have gone in considering the evidence.
“It is now well established that where a trial judge draws inferences or makes findings of fact that are contrary to the evidence, he or she engages in an ‘illogical or irrational reasoning process’ that invites appellate intervention,’” wrote Justice Morris Fish in his dissenting opinion that referenced R. v. Sinclair.
The inconsistencies in the case, including the evidence related to the assault around the time of the birth of the second child, made the trial judge’s findings unreasonable, Fish concluded.
“In short, the complainant testified that she was abused by R.P. while babysitting when G.L. was in the hospital giving birth to their second and third children,” wrote Fish in a dissenting opinion supported by Justice Louis LeBel. “G.L. testified that the complainant did not babysit on either occasion. The complainant’s evidence was that R.P. again abused her ‘practically every time’ she babysat during the five years covered by the indictment. G.L. testified that R.P. was rarely home without her and that, when home, she had an unobstructed view of the scene of the alleged abuse during much of the relevant period.
“It thus seems to me unreasonable, if I may say so with respect, to find that G.L.’s testimony does not ‘interfere with’ ― or tend to contradict or render implausible ― the evidence of the complainant, M.L.”
SCC to hear cases involving RCMP drug dogs, The Vancouver Sun
Jury in Rafferty trial in first full day of deliberations, The Gazette
Woman arrested in connection to babies' deaths in U.K., CBC News
Muslim Americans challenge no-fly list, Reuters
Landmark foreclosure lawsuit in Fla. court, Reuters
Indian court orders probe into iron ore mining, Reuters
South African court grants leave to appeal in mining case, Reuters
|Federal government lawyer Thomas Vincent makes his argument for the LSUC to change its name to the Ontario Law Society last night. (Photo: Omar Ha-Redeye)|
“I didn’t expect the motion to go forward. But I do think it was important to have that discussion,” says Omar Ha-Redeye, a family lawyer in Toronto and one of the few who supported Vincent’s motion. “From my impression of the debate, the vote wasn’t actually based on merits but rather on tradition, which is disappointing, given lawyers are trained to debate issues on their merits. “
The formal motion to change the law society’s name to the Ontario Law Society was brought by Vincent last month and has been a hotly contested issue among members of the bar ever since.
Vincent argued the law society’s current name created confusion among the public and needed to be modernized to reflect Canada’s current geography.
“Typically law society members are dealing with highly educated and sophisticated individuals and so they may not be aware of people in the general public who might be confused by the name,” says Ha-Redeye. “In this case, I would say the absence of information doesn’t lead to a conclusion and we should study the issue further to see if there truly is a problem and then find the best way to address it.”
Still, Alan Heisey, a lawyer at Papazian Heisey Myers who has been following the debate and opposes the name change, says he was encouraged by the debate.
“I thought the debate was very healthy and it was encouraging to see so many people who knew about the law society’s history,” says Heisey. “I learned quite a bit and I think those who were dissatisfied with the name perhaps didn’t know the law society had such a history. Maybe there should be a component in the bar admission course related to that.”
A formal vote was not taken at the annual general meeting, however, of the more than 50 members who attended, three supported the motion. Those three were Vincent, Ha-Redeye, and past Ontario Bar Association president Lee Akazaki.
During the meeting, it was estimated the cost to the law society to change its name would be between $1.4 and $1.5 million — a figure that would likely come have to come from increases to member’s annual fees.
See Monday’s issue of Law Times for more on this story.
Update: 4:39 p.m. - Clarify that Alan Heisey was not at the LSUC meeting.
|Ontario’s Attorney General John Gerretsen says expanding the unified family court is key to his plans for improving the justice system.|
The federal government is responsible for judicial appointments to the unified court, and speaking this morning at the Law Society of Upper Canada’s Sixth Annual Family Law Summit, Ontario’s Attorney General John Gerretsen told the audience of that expanding the UFC is key to his plans for improving the justice system.
“I have started discussion with the federal minister of justice Rob Nicholson, as well as other members of the federal cabinet, and there seems to be a willingness to expand the unified family court process across this province on an incremental basis,” said Gerretsen.
Gerretsen said his own time as a sole practitioner in Kingston, Ont., where he did some family law work before he went into politics, gave him an insight into people’s troubles with the current division of powers in most locations.
The Ontario Court of Justice deals with custody, access, child and spousal support, adoption, and child protection applications, but not divorce or division of property matters. The Ontario Superior Court of Justice can decide disputes involving divorce, division of property, child and spousal support, and custody and access, but not child protection or adoption matters.
“If there was one thing people could never understand, it was why they had to go to two different courts to get their family situations dealt with,” Gerretsen said. “I must admit that when I came into the ministry, since we’ve had a unified family court in the Kingston area and most of eastern Ontario since the late 1990s, I had assumed a unified court was pretty well standard across the province.”
The UFC has been a hot topic at previous years’ summits. In 2011, then- attorney general Chris Bentley, LSUC Treasurer Laurie Pawlitza, and Chief Justice Warren Winkler all teamed up to demand its immediate expansion.
“We’ve studied the UFCs enough,” Winkler said in 2011. “We need to spread that right across the province.”
With a 35-year wait already behind them, Gerretsen warned attendees at the summit that their well-exercised patience could be tried further in the future.
“We are currently experiencing a challenging fiscal climate and given that, province-wide expansion may take longer, and may be done in incremental fashion,” he said. “There is no doubt there will be many challenges as we unify more court sites, but the important thing to remember is the unified family court system will allow us to focus on the goal of providing what’s best for the people who are using it.”
|‘The lack of treatment for mentally ill women . . . is to me, still really quite shocking,’ says report author Renu Mandhane (Photo: Heather Gardiner)|
“Smith’s death was a direct result of the interaction between her mental health issues and the prison environment, and the failure of the Correctional Service of Canada to respond appropriately to her mental health needs,” states the report.
IHRP director Renu Mandhane, along with 2L students Elizabeth Bingham and Rebecca Sutton, set out to prove that Smith’s case was not an isolated incident. They met with female prisoners at Grand Valley and found they also faced the same kind of “inhuman” treatment.
According to their research, at least one in three federally sentenced women suffers from a mental-health issue and close to half have attempted to harm themselves. Corrections Canada’s treatment of these women is discriminatory and violates the rights to liberty and security of person, health, access to justice and information, says the report.
“The lack of treatment for mentally ill women, especially in light of Ashley Smith’s in-custody death, is to me, still really quite shocking,” Mandhane tells Legal Feeds. “We’re five years out from her death and I can’t believe that things have not significantly changed.”
Mandhane says one of the problems is that the public doesn’t hold Corrections Canada liable. “Corrections tend to operate outside of the public view. They aren’t accountable in the same way as some of the other parts of the justice system,” she says. “[T]here’s so little public understanding of what goes on in our prisons that we don’t hold the government to the same standard as we do in terms of the protection of rights of, for example, accused people in criminal court.”
She is hopeful that the report will spur Corrections Canada to be more accountable to the public for its treatment of mentally ill prisoners, but she’s not overly optimistic.
“[G]iven what I’ve learned through the researching of this report, I really don’t think that the correctional system can be adequately fixed to house mentally ill women without violating their rights,” she says. “If it could, Ashley Smith’s death would’ve prompted that, and the fact that it hasn’t just gives me no faith in their commitment to protection of the human rights of these women.”
B.C. mushroom farm owner tells inquest 'I'm a victim, too', The Globe and Mail
Lawyer defends firm that allegedly charged 'criminal rates', The Province
46 arrested in massive debit and credit card scam, Winnipeg Free Press
Second masseur accuses John Travolta of sexual assault, Reuters
Jury begins deliberations in Jennifer Hudson family murders, Reuters
EU court rules against French fund tax regulation, Reuters
Radical cleric Qatada loses European appeal bid, Reuters
Photos: Gail J. Cohen
Launched in 2007, the Federation of Asian Canadian Lawyers has grown substantially from its first meetings in a local Toronto Chinese restaurant.
Thierry Ntumba and Mariott Gilpin from the Royal Bank of Canada join in the festivities at Hart House.
Former FACL president Jason Leung of Ridout & Maybee LLP, Jennifer Leung, Neil Kothari of RBC, and visiting National Asian Pacific American Bar Association executive member Jin Hwang of Verizon Wireless in New Jersey.
Law Society of Upper Canada Bencher Raj Anand of Weir Foulds LLP, Heydary Green managing director Michael Cochrane, and Ontario Superior Court Justice Faye McWatt.
A little light entertainment.
More members of the RBC legal team: Mahira Mohtashami and Karen Sladden.
Patrick Gervais from Blaney McMurtry LLP, and Paliare Roland’s Manpreet Dhaliwal and Gregory Ko.
Some of the organizers of the FACL gala: Rosa Kang of Bennett Gastle PC; Jazz Li from Cappell Parker LLP; Andrea Yau of Koskie Minsky LLP; Cynthia Aoki of Jones Harley LLP; and mylawbid.com founder Jeffrey Fung.
Law Society of Upper Canada benchers Linda Rothstein and Janet Minor.
Vanessa Lam of Macdonald & Partners and Landy Marr Kats LLP’s Anna Wong.
Alwin Kong of Cancer Care Ontario; Brendan Wong from Borden Ladner Gervais LLP, Janet Chong from Osler Hoskin & Harcourt LLP, and Rogers Communications’ Trung Lam.
Ontario Attorney General John Gerretsen.
Keynote speaker Justice Linda Lee Oland of the Nova Scotia Court of Appeal. Her advice for the crowd was: “Don’t self select out” of applying for judicial positions.
Bill 44, the civil resolution tribunal act, introduced in the provincial legislature earlier this week, promises a 60-day dispute resolution process, compared with the 12 to 18 months it can currently take for cases to wind their way through the province’s Small Claims Court.
The government claims the tribunal, planned for launch in 2013 or 2014, will cut legal fees and travel costs for parties.
“Both individuals and business owners will find this a convenient and affordable way of reaching agreements,” B.C. Attorney General Shirley Bond said in a statement. “Few people want to go to court to solve a legal dispute, which can be costly, intimidating and time consuming. A tribunal offers an innovative alternative to settling a dispute in a faster, more amicable way.”
The tribunal will be available for disputes worth up to $25,000 where both parties agree to participate, leaving open the alternative of going to court. However, the government has said the process could be mandatory for strata corporations in certain property disputes.
Strata property disputes covered by the new legislation include non-payment of fees or fines, unfair actions by strata corporations, arbitrary by-laws, and financial responsibility for repairs. Matters that affect land, such as those involving liens and phased strata plans, will continue to be heard in the supreme court, as well as other more serious matters, like the appointment of an administrator or liquidation.
Tony Gioventu, the executive director of the Condominium Home Owners’ Association of British Columbia, welcomed the government’s move.
“The introduction of the Civil Resolution Tribunal Act is the first of several steps forward in developing new dispute resolution alternatives for strata corporations” he said. “The next step will be developing the rules and regulations which are vital to the success of a tribunal. We look forward to continuing our partnership with government to ensure the establishment of a tribunal that benefits the strata community.”
According to the B.C. government, the new tribunal would progress in four stages, with participants progressing to the next stage only if they were unable to reach agreement:
- An interactive dispute resolution guide, with information, tips and templates to help the parties reach a settlement.
- Party-to-party negotiations, using online tools to make contact and exchange information, with the tribunal monitoring discussions and intervening if necessary.
- Case manager contacts the parties by phone or online to discuss the issues and attempt a facilitated settlement.
- Tribunal hearing, with a tribunal member discussing the issues with parties online, by phone, videoconference or occasionally in person, and giving a binding decision on the dispute.
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Gail J. Cohen