Legal Feeds Blog
Halifax police search for three suspects in attack of elderly woman, Canadian Press
Police investigate video by Halifax councillor yelling, 'Chinese fire drill', Canadian Press
Man dies of injuries following construction site accident in Toronto, Canadian Press
More Democrats oppose Trump's U.S. Supreme Court pick, Reuters
Two Miami police officers shot in ambush-style attack: police, Reuters
China calls for explanation after Paris police shoot dead Chinese man, Reuters
Austria says wants exemption from EU migrant relocation system, Reuters
|Hugo Alves says a reported move by the federal government to formally legalize recreational marijuana use has led to ‘an uptick in activity in what’s already a very busy space.’|
Hugo Alves, partner with the corporate commercial practice group at Bennett Jones LLP and co-founder and head of the firm’s cannabis practice group, says the move should lead to more activity in the sector.
“I think from a legal perspective, what it means for lawyers or our clients now, is that clients who may have had one toe in, in terms of wanting to get involved in the space, or timing the execution of their business plans to coincide with a non-medical adult use market, now have a better indication as to timelines, and we should see an uptick in activity in what’s already a very busy space,” says Alves.
Alves says, however, how changes will roll out is still unclear.
“Long-term what it means, we don’t know,” says Alves. “We don’t really know [if] that April date means legislation. . .or whether that means a fully-operating system, which will require something beyond legislation,” that could take longer to unspool.
Markets have responded positively to the news, noted Alves.
“I think it will make our clients happy,” he says.
Cheryl Reicin, chair of the life sciences group at Torys LLP, says seeing a lot of influx of financing from the United State and Israel.
“You know there’s been a tsunami of financing, and [you] just see that heating up, because some of the uncertainty will be going away,” says Reicin, who is based in the firm’s Toronto and New York offices.
Eileen McMahon, who leads the drug regulatory and IP practice in Torys LLP’s Toronto office, says a task force that looked at cannabis legalization led to important recommendations that industry watchers were expecting to be implemented. She says Canada is “setting the benchmark for how this might evolve in other countries, as well.”
“I would say that is not surprising that this is happening so quickly, because we know that representatives of the federal government have been working in the evenings to get this done,” she says. “So they have really been striving to meet the Prime Minister’s objective of introducing the draft legislation this spring, and we’ve actually seen that as we work with them on various issues.”
A spokeswoman for federal Justice Minister Jody Wilson-Raybould did not provide a comment on the issue by deadline.
March 27 – Quebec – Barreau du Québec v. Attorney General of Québec
Administrative law: Before the social affairs division of the Administrative Tribunal of Québec in proceedings between the Minister of Employment and Social Solidarity and individuals (the respondents) dealing with the granting of social assistance, the Minister filed motions for review with the ATQ that had been prepared, drawn up, signed and filed by an official of the Ministère de l’Emploi et de la Solidarité sociale. The respondents concerned filed motions to dismiss those proceedings on the ground that they had not been drawn up by a member of the Barreau du Québec.
Read the Québec appellate court decision here.
Related legal briefs:
Le Barreau s’en va-t-en Cour suprême; Droit-Inc.
March 28 – British Columbia – British Columbia Human Rights Tribunal v. Schrenk
Human rights, employment law: The applicant, Mohammadreza Sheikhzadeh Mashgoul, is a civil engineer who represented a consulting engineering firm on a road project and supervised work of a construction company where the respondent, Edward Schrenk, worked as foreman. Schrenk made derogatory statements about Mashgoul’s place of origin, religion and sexual orientation. Mashgoul filed a complaint with the B.C. Human Rights Tribunal alleging discrimination with respect to employment; Schrenk and his employer argued that the complaint was not within the jurisdiction of the Tribunal and did not constitute “discrimination in employment” within the meaning of s. 13(1) of the Human Rights Code because of the limited nexus between the conduct and employment.
Read the British Columbia appellate court decisions here.
Related news stories:
Employers told to pay attention as sexist, racist, discrimination cases increasing; The Province
Honour killings to voting rights: Hot-button issues coming up at Supreme Court; The Globe and Mail
March 29 – Quebec – Desjardins Financial Security Life Assurance v. Émond and Foisy
Insurance law: In 2009 the applicant issued an accident insurance contract in the name of the late Sébastien Foisy, which provided, inter alia, for the payment of $56,000 if he died as a result of an accident. The succession of Foisy was the beneficiary of that payment. The day after the insurance contract was issued, Foisy was intercepted while riding his motorcycle at a high speed and died as a result of the ensuing police chase. The accident insurance contract stated there was no entitlement to payment under the contract “if the accident occurs while the insured is participating in any indictable offence or any act related thereto,” and the insurer refused to pay the indemnity to the succession of the deceased.
Read the Québec appellate court decision here.
March 30 – Quebec – Commission des normes, de l’équité, de la santé et de la sécurité du travail v. Caron
Employment law, Charter rights: The respondent, Alain Caron, developed a case of epicondylitis in the course of his work as an instructor, and was subsequently reduced to contract status which was terminated three years later. The CSST declared the respondent fit to return to his old job, but the employer successfully challenged that decision. Caron’s union argued that he was a person with a handicap within the meaning of section 10 of the Charter, but the CSST eventually concluded that the principle of reasonable accommodation could not be applied to disputes under the Act respecting industrial accidents and occupational diseases because the provisions of that statute are accommodation measures specific to employment injuries. The Commission des lésions professionnelles confirmed the CSST’s decision and dismissed the respondent’s application to subject the employer to a duty of accommodation under the Charter.
Read the Québec appellate court decision here.
Related legal briefs:
An important decision of the Court of Appeal of Quebec changes the way the employer’s duty to accommodate applies to employment injuries; Lavery Lawyers
Supreme Court of Canada 2016 Year in Review; Supreme Advocacy LLP
March 31 – Quebec – Savard v. R.
Criminal law: Jean-Louis Savard was convicted of several counts of indecent assault and one count of gross indecency for acts committed against his nephews and his niece in the 1960s. He appealed the convictions, alleging that the trial judge had handed down an unreasonable verdict and made several other errors. The majority of the Court of Appeal dismissed the appeal. Chamberland J.A., dissenting, would have allowed the appeal and ordered a new trial.
Read the Québec appellate court decision here.
Related news stories:
Jean-Louis Savard renter au pénitencier; Le Journal de Québec
Le prédateur sexuel Jean-Louis Savard remis en liberté; Le Quotidien
Remote B.C. community in mourning after four found dead in rural home, Canadian Press
Advocates back in B.C. court pursuing charges in dam collapse, Canadian Press
Montreal mayor backs plan to reform police force, Canadian Press
Trump to sign order on Tuesday easing energy regulations: officials, Reuters
United Airlines bars teenage girls in leggings from flight, Reuters
Russian opposition leader jailed for 15 days over protest, Reuters
Family of slain U.S. tourist says he would have forgiven attacker, Reuters
|Chief Justice Robert Bauman says the goal of Access to Justice BC is to bring about a culture shift by aligning stakeholders in a collaborative approach.|
In an announcement issued on Tuesday, The Law Society of BC and Law Foundation of BC agreed to contribute $150,000 each to the fund.
“Access to Justice BC is not about supporting a prescribed set of actions or an intellectual concept. The aim is to bring about a culture shift by aligning justice system stakeholders in taking user-centred, collaborative and evidence-based approaches to access to justice innovation,” said Chief Justice Robert Bauman in a statement.
Bauman is chairman of the group. “It is about producing the kind of collective impact that will transform users’ experiences with the justice system,” he said.
Established in 2014, Access to Justice BC consists of a board of 30 members and aims to improve access to justice for family, indigenous and civil law for all communities in British Columbia. The group has expanded its efforts over the years, which is why it needs the monetary assistance to help build its infrastructure.
Access to Justice BC will receive $100,000 per year over the three years to fund initiatives.
The funding will specifically help cover costs associated with the group, such as the cost of a part-time strategic co-ordinator, communications, ways of engaging stakeholders and supporting them to bring about access to justice.
“The law society has a deep commitment to improving access to justice for British Columbians because it is a fundamental pillar for upholding the rule of law,” Herman Van Ommen, president of the Law Society of BC said in a statement. “The work of Access to Justice BC is critical as it brings together many stakeholders to work collaboratively to tackle challenges we face.”
Currently, initiatives Access to Justice BC supports include: an unbundling of legal services project, a family justice hub initiative and a presumptive Consensual Dispute Resolution initiative.
In 2008, the benchers approved 17 recommendations that would make it easier for lawyers to provide unbundled services to clients.
Some factions of the legal profession, such as family law practitioners belonging to Mediate BC, have embraced unbundling. Mediate BC offers an online tool kit on unbundling to help its members in the practice of family law.
“But unbundling can be used in every area of the law,” van Ommen told Legal Feeds in December. “The key to it is being clear what the lawyer will do and what they will not do.”
Keystone XL pipeline gets U.S. presidential permit: TransCanada, Reuters
Complaint filed after comments by B.C. judge hearing sexual assault trial, Canadian Press
Toronto man charged in theft of custom gold jewelry from Shelburne, Ont. home, Canadian Press
Chicago police officer charged with 16 new counts in shooting case: media, Reuters
Food startup Eatsa sued for not making kiosks accessible to blind, Reuters
British-born London attacker was criminal who wasn't seen as threat, Reuters
Egypt's Mubarak freed after final charges dropped, Reuters
|Vice Media lawyer Iain MacKinnon is concerned police may use search orders and production orders more frequently against journalists in the wake of the production order being upheld.|
“The protection of society from serious criminal activity is equally important to the maintenance of a functioning democracy. Those fundamental societal concerns can come into conflict. When they do, it falls to the court to resolve those conflicts. In this case, claims based on the freedom of the press and those based on effective law enforcement collide at two points.”
In R. v. Vice Media Canada Inc. those two points were, first, a production order obtained by the RCMP requiring production from Vice Media of the communications materials between reporter Ben Makuch and a source, Farah Shirdon. The communications arose from a story Makuch wrote in 2014 about Shirdon joining to fight with the terrorist group Daesh, also known as Islamic State of Iraq and the Levant. Shirdon is believed to have left Canada in 2014 and was subsequently charged with six offences in absentia.
“The appellants argue that the production order undermines their role as the eyes and ears of the community by effectively conscripting them into the ranks of law enforcement,” the court noted. “The police respond that they need the information referred to in the production order to effectively investigate serious crimes.”
The second point of collision was the attempt by the appellants, Vice Media, to gain access to the information the police had relied on to obtain the production order. The appellants argued that the press must have access to information on which police rely to obtain coercive court orders; the police responded that such access would compromise the investigation of serious crimes.
The applications judge rejected the appellants’ application to quash the production order, and placed a temporary non-publication order on the unredacted information in the police material, which had been under a sealing order. The appellate court found that some information should remain redacted where it named an individual, but that other information should be made public.
The appellants and their interveners, including the Canadian Civil Liberties Association, Canadian Journalists for Free Expression and the CBC, argued the state’s ability to compel production of information from the media should be more strictly limited; the appellate court disagreed, calling “reasonableness … the constitutional litmus test.”
The application judge had concluded that the same quality of evidence against Shirdon was not available from any other source than Vice Media’s reporter, and the material sought, in the form of screen captures of text messages, provided the best evidence of what Shirdon said, which favoured making the production order.
Also a factor in this case, as the Public Prosecution Service of Canada commented by email, was that it did not involve a confidential journalistic source. “As the Court of Appeal noted, there was an absence of any requests for confidentiality, and Mr. Shirdon was ‘anxious to tell the world about his beliefs and conduct.’ ”
Iain MacKinnon, a partner at Linden & Associates in Toronto, who represents Vice Media, told Legal Feeds that complicated the case for the media outlet. “That made it a more difficult argument for us; for a confidential source, courts … may be more sympathetic in preventing police from seizing material.”
But, says MacKinnon, in this case “we’re not trying to protect a source; we’re trying to protect a larger principle of journalists not being an easy target for police seizure.
“My concern would be that police may use search orders and production orders more frequently against journalists. It may cause people to be wary in speaking to journalists if they know that anything they say, any material may have to be handed over to police. People sometimes speak to journalists because they don’t want to talk to the police. They may not want to expose themselves to potential harm, danger, or be identifiable, [or] they may not want to get involved in a criminal prosecution as a witness.”
The Canadian Civil Liberties Association said in a statement that it “remains concerned about the impact this ruling will have on freedom of the press in Canada, particularly in the contemporary climate. For instance, while we welcome Quebec’s recent decision to strike a provincial Commission of Inquiry on the Protection of the Confidentiality of Journalistic Sources, the many reports of police surveillance of journalists in Quebec that gave rise to the Commission are a reminder that Canada still faces substantial challenges in its efforts to protect a free and independent press.”
MacKinnon says his biggest concern “ is the potential chilling effect: people maybe not wanting to talk to the media, and the risk that [production orders] may become a more common tool … for police to get information”; he likewise notes incidents in Quebec of police wiretapping journalists’ phones. “This is another example of police using journalists to further their investigations.”
MacKinnon says that he has no formal instructions yet to appeal the decision to the Supreme Court of Canada, though Vice Media has suggested it intends to do that in public comments.
And whether the decision of Ontario’s highest court has a “chilling effect” on the media or more demands for production orders remains to be seen, though the Public Prosecution Service of Canada noted that “the following quotation from the decision of the Court of Appeal appears to be of significance: ‘.. when a proposed production order targets the media, the court must exercise its discretion with care, to avoid compromising — if the police were to compel the media’s information too easily — the unique and important role the media plays in society.’”
Supreme Court of Canada to rule on bail issue in Oland murder case, Canadian Press
Man who crashed vehicle into pole in Vaughan died of gunshot wounds: police, Canadian Press
Surrey RCMP say one woman dead after van crashes into several vehicles, Canadian Press
U.S.-Israeli man arrested in Israel over bomb threats to Jewish centres, Reuters
Hospitals delay projects, hiring due to uncertain fate of Obamacare, Reuters
British-born UK attacker had been investigated over extremism concerns, Reuters
Belgium arrests man trying to drive down shopping street at high speed, Reuters
|Gregory Wylie says the budget is 'best described as fairly light on tax measures.'|
“Subject to transitional provisions,” Adrienne Oliver, a tax lawyer at Norton Rose Fulbright Canada in Toronto, explains, “for taxation years beginning on or after Mar. 22, 2017, the budget proposes to eliminate the ability of such designated professionals to elect to use billed-basis accounting. This will affect law firms that do not use the full accrual method of determining their income.”
Gregory Wylie, a tax lawyer at Osler Hoskin & Harcourt LLP in Toronto, also highlights the elimination of bill-based tax accounting for purposes of computing income, but says “the Budget is best described as fairly light on tax measures. There are no major policy announcements or changes.”
“The government continues to modestly pursue its agenda announced in the 2016 budget to focus on perceived fairness issues,” says Wylie, “including closing so-called loopholes, and targeting perceived inefficient or ineffective tax measures. In this regard, it is notable that Budget 2017 announces the government will in the next few months release a paper on tax planning using private corporations to reduce personal taxes. We may see future changes announced with the pending October 2017 federal government economic statement.”
Oliver describes this as a “a wait and see budget, reflective of the government’s concern about U.S. tax reform and the potential border adjustment tax, as well as its limited spending capacity.”
Other changes to the tax system include measures to:
• prevent the avoidance or deferral of income tax through the use of offsetting derivative positions in straddle transactions;
• extend to Registered Education Savings Plans and Registered Disability Savings Plans anti-avoidance rules similar to the ones applicable in connection with Tax-Free Savings Accounts and Registered Retirement Savings Plans,
• clarify the intended meaning of "factual control" under the Income Tax Act for the purpose of determining who has control of a corporation in order to prevent inappropriate access to supports such as the small business tax rate and the enhanced refundable 35-per-cent Scientific Research and Experimental Development Tax Credit for small businesses.
• prevent the avoidance of tax on income from the insurance of Canadian risks by extending the foreign-affiliate base erosion rules to foreign branches of Canadian life insurers.
• replace the Caregiver Credit, Infirm Dependant Credit and Family Caregiver Tax Credit with a single new credit — the Canada Caregiver Credit — non-refundable credit
• modify the tax treatment of successful oil and gas exploratory drilling to maintain their effectiveness.
• Increase excise duty rates on alcohol products by two per cent effective the day after Budget Day, 2017.
• amend the definition of a taxi business under the Excise Tax Act to level the playing field and ensure that ride-sharing businesses are subject to the same GST/HST rules as taxis.
For more information go to Taxnet Pro’s summary of the budget with analysis from tax lawyers from McCarthy Tétrault LLP.
- LSUC rules registered sex offender is of 'good character'
A former lawyer from Florida, who spent two years in prison for a child pornography charge, is one step closer to acquiring a licence to practise law in Ontario.
|The Law Society of Upper Canada’s hearing tribunal has determined that Ronald Davidovic has proven he took the necessary steps to rehabilitate himself.|
Davidovic was imprisoned in a federal penitentiary and registered as a sex offender after he pleaded guilty to a count of “receiving material containing the visual depiction of minors engaging in sexually explicit conduct,” according to the decision.
In 2004, police executed a search warrant at Davidovic’s home and seized his computers. He subsequently admitted to police and to his wife at the time that he had viewed child pornography since 1998. He was originally sentenced to five years in prison, but his sentence was later reduced.
He was also originally charged with a count of possessing child porn, but that was dropped when he pleaded guilty to the other charge.
Benchers Raj Anand and Jan Richardson, who served on the panel, decided to grant Davidovic’s application.
“The applicant's conduct in the years preceding 2004 was reprehensible, but it is not an automatic or permanent bar to his admission, given the evidence and positions of the parties, and in light of the applicant’s determination to be an ethical and productive lawyer,” said Anand and Richardson. Bencher Paul Cooper held the lone dissenting opinion on the split three-member panel.
The tribunal used what is called the five “Armstrong factors” in determining whether Davidovic was in present good character. These factors include the nature and duration of the misconduct, whether the applicant is remorseful, the rehabilitative efforts that have been taken and their success, as well as the applicant’s conduct since the misconduct and the amount of time that has passed since.
Anand and Richardson determined that Davidovic had made repeated statements of remorse and that the risk he would reoffend was very low.
They also noted that there is no evidence of recurrence or subsequent bad behaviour on Davidovic’s part in the 13 years since he was charged.
“The applicant’s attempts to rehabilitate himself have gone beyond steps that might be regarded as inward-looking: treatment, counselling and self-assessment,” Anand and Richardson said.
Davidovic says he was very excited and pleased with the decision.
“I’m very fortunate to have an opportunity to be able to practise my chosen profession again,” he said in a phone interview from Florida.
“I’m pleased that the country of Canada, or at least the law society, recognizes that an individual can rehabilitate themselves and I hope that this decision gives hopes to others that there is a light at the end of the tunnel, and if they do what they’re supposed to do, there is a possibility to return to a meaningful life after having been convicted of an offence.”
Davidovic provided the tribunal with a number of reports to support his application, which were written by a reverend who served as his therapist, a social worker who conducted a court-ordered treatment program and a doctor who conducted a psychological evaluation and risk assessment of Davidovic in 2013. The tribunal also received transcripts of recent interviews an LSUC investigator conducted with those who wrote the reports.
The law society’s counsel in the matter, Amanda Worley, did not oppose Davidovic’s application after he provided testimony.
In his dissenting opinion, Cooper found that Davidovic had failed to prove he was rehabilitated.
He found the reports from the social worker and the reverend were dated, anecdotal and not scientific and that testimony given by Davidovic lacked reliability.
“The lack of proper diagnosis together with the risk of re-offending in this case illustrates the applicants’ failure to satisfy his burden,” Cooper said in his dissent.
“He chose to provide dated reports, none of which addressed the simple and present context needed to explain whether paraphilia remains a concern.”
Cooper said he also remained unconvinced that Davidovic “fully comprehends victim empathy or remorse.”
“The seriousness of Mr. Davidovic’s misconduct cannot be bootstrapped by conditions when residual concerns linger about his present good character,” Cooper said.
“The Law Society, as the regulator, has an obligation to maintain high ethical standards in the public interest and to maintain the public’s confidence in the legal profession and its ability to self-govern and regulate. The practice of Law in Ontario is a privilege, not a right.”
Davidovic says Cooper’s opinion reflects the bencher’s own personal bias toward the offence.
“I think it’s inconsistent with the empirical evidence that’s out there on these types of offences,” he says.
Toronto lawyer Lee Akazaki, who was not involved in the proceedings, says the decision was born out of the ambiguity the bar has in its definition of good character. He says the standard for lawyers is much higher than that applied to a non-lawyer who has come out of incarceration rehabilitated.
“Character is something that is intrinsic within us. It’s not like a psychological condition and it’s not like a management of impulses such as anger. Character very much has to do with one’s ethical centre in the deliberation in one’s thinking,” he says.
Akazaki adds that it is difficult to come to the conclusion that Davidovic has sufficiently met the good character requirement, given the facts of the case and the nature of the crime committed.
“Just on the basis of the facts, he established on the evidence that he’s probably a reformed citizen, a rehabilitated citizen, but whether he has the good character requirement to be a member of the bar altogether, I don’t think the facts show he has the good character requirement,” he says.
“It’s difficult in this type of case to see how somebody with this particular background and the type of crime he committed can ever satisfy that requirement.”
In 2004, Davidovic petitioned the Florida Supreme Court for a disciplinary resignation and was granted permission to resign from the Florida bar with leave to appeal in five years. He did not reapply in Florida, but in 2015, he applied to the LSUC for a licence to practise in Ontario, as he plans to move to Toronto where he has family.
Davidovic says he chose to apply in Ontario because there are all sorts of impediments in Florida that make it difficult to live day to day for someone convicted of such an offence.
Before his conviction, Davidovic had practised in estate and financial planning in his early career before going on to act as general counsel for a large telecommunications company.
He says he plans to pursue criminal law in Ontario, as he has a unique perspective that will give him more empathy for those who have made mistakes in their lives.
Davidovic is still an applicant in the licensing process.
A spokeswoman for the law society said it is policy not to interpret or comment on decisions made by the tribunal hearing panel.
Updated March 24, 2017: A previous version of this story stated that the Law Society of Upper Canada’s hearing tribunal granted a licence to Ronald Davidovic. The tribunal decided that Davidovic was of good character, a requirement of the licensing process. He is still an applicant in the licensing process and has not yet been granted a licence to practise law in Ontario. Legal Feeds regrets any confusion caused.
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