Canada

Following public pressure, international attention, Nova Scotia Premier commits to review of Rehtaeh Parsons investigation, The Globe and Mail

Mother who strangled 'promiscuous' daugher attended court on a stretcher, cancer too advanced for trial to proceed lawyer argues, Winnipeg Sun

Quebec appeals court upholds ruling that frees 31 Hells Angels because of trial delays, Vancouver Sun


United States

San Francisco gets 17 lawyer healthcare litigation boutique, Reuters

Proposed class action filed by physicians over military healthcare payments, Reuters


International

Germany's antitrust authority says mergers can be approved within 2 days, with just 5-10 pages of documentation, Reuters

Protest leader faces trial after demonstrating against Putin, Reuters 

Canadian in-house counsel feel they provide the most value to their organizations when managing or reducing risk but often feel they are weighed down by the daily grind, according to this year’s In-House Counsel Barometer Survey.

Jodi Shanoff, Fred Headon, Air Canada, and spoke on the panel about the Barometer Survey. (Photo: Jennifer Brown)

When it comes to how in-house counsel feels they provide value the majority of respondents (72 per cent) cited risk management, followed by helping achieve strategic and operating objectives (45 per cent) and providing strategic advice (43 per cent) as the key form of value their legal department provides their organization.

Created in conjunction with Vision Critical, the Canadian Corporate Counsel Association and Davies Ward Phillips & Vineberg LLP’s 2013 In-House Counsel Barometer Survey polled 236 members of the CCCA. The annual survey looks at current attitudes and options of Canadian in-house counsel.

“There’s also an aspect of mitigating costs and controlling costs for the employer as well,” said Jodi Shanoff of Vision Critical, who presented the research from report as part of a panel discussion at the CCCA’s 25th anniversary Spring Conference in Toronto today.

About one third of those surveyed believe their department has grown over the past year and the same number feel their staff will increase over the next three years. That is a distinct shift from views presented in 2008-09 when in-house were more pessimistic about future growth. The positive outlook is partially due to necessity, with half of the respondents reporting their legal department is not adequately staffed.

When it came to questions around alternative fee arrangements there was “muted enthusiasm” from those surveyed, and an admission that these models are not readily understood by in-house counsel across Canada. It seems in-house like the idea but don’t always understand them, said Allan Fineblit, CEO of the Law Society of Manitoba who spoke on the panel about the survey.

“There are a variety of models out there but we’ve traditionally as lawyers looked at hourly rates as the basis for billing — and criticism abounds — but there are models where retainer agreements build in a bonus systems where the firm gets to share in the success of the case. The feeling from those who employ them is that they are an opportunity for the firm to get some skin in the game and motivate the firm to be efficient,” said Fineblit.

And while the in-house bar has led the idea of focusing on value, the next challenge is looking internally, said Fred Headon, assistant general counsel with Air Canada who spoke on the panel.

“Clients feel they should be able to engage with us in the same way they engage with everyone else in their lives and that means they don’t necessarily want a five-page memo. That is going to be a challenge not only for law firms but us too,” he said.

“I see it within Air Canada where people’s interaction with their lawyers mirrors other interactions with others in their lives and that often involves a message of 140 characters. It’s going to be important that clients feel they are being properly served.”

The survey found there is no expectation in-house will be working with fewer primary law firms but one third said there would be more insourcing.

When it came to the adoption of legal project management techniques it seems project management has not taken hold. Just 23 per cent of legal departments use project management and only five per cent have hired a project manager or trained someone to be a legal project manager.

“It’s not at all widespread yet,” said Shanoff. “Of those who had experience the value is evident. It seems to be finding traction in larger companies but despite what we understand to be a fairly wide push in-house the uptake is still fairly limited.”

New topics introduced to the survey this year included alternative dispute resolution, however use of ADR methods is low across the board — 43 per cent said they had received no training in this area.

“In-house counsel in Canada who have used ADR have generally reported a positive experience but is quite limited and not getting much traction yet,” said Shanoff.

While a large majority of in-house counsel say they would recommend the in-house career path (93 per cent), however when asked about satisfaction with the position, there was a drop off to 53 per cent who said they are satisfied with their position as in-house counsel.

So what’s bringing in-house down?

• Daily operation work leaves little time for providing strategic value, according to 42 per cent of those who answered.
• 36 per cent say there are insufficient opportunities for promotion.
• 32 per cent say internal business units do not seek timely advice from the legal department.
• 40 per cent say securing approval for additional resources is a challenge.

Despite Ontario judge’s complaints, Quebec officials have no duty to provide Ontario courts with presentence reports in English, the Quebec Public Security Ministry says.

According to ministry spokesman Clément Falardeau, Quebec government employees are to use French with professionals such as judges and lawyers as per provincial policy. “Therefore, there’s no obligation to provide a translation in English,” said Falardeau in response to questions stemming from a recent Law Times story detailing Ontario judges’ complaints about presentence reports from Quebec.

Nevertheless, Falardeau noted Quebec officials do their best to have reports translated upon request for one in English.

In the meantime, Ontario’s Ministry of Community Safety and Correctional Service says it’s reviewing Ontario Superior Court Justice Deena Baltman’s recent decision ordering it to fix problems she found with a recent presentence report coming from Quebec. “The Ministry is reviewing the direction from Justice Baltman and is in discussions with our counterparts in Quebec,” said ministry spokesman Brent Ross, who directed questions about Quebec’s practices to officials in the neighbouring province.

The responses shed light on some of the bureaucratic buck-passing that can lead to situations that frustrate Ontario judges who, besides complaining about the language used, receive presentence reports that arrive late and lack the required information from Quebec. In R. v. McPherson, Baltman expressed outrage about a “useless” presentence report that “made disparaging remarks about the offender’s behaviour” instead of addressing factors such as the offender’s age, maturity, character, behaviour, attitude, and willingness to make amends as required by the Criminal Code. The report, which involved an offender from Montreal, arrived so late that Baltman said she would have reduced the sentence if there was further delay.

As a result, Baltman blasted Quebec authorities for flouting requirements she noted all jurisdictions are subject to under the Criminal Code. She went on to note the Ontario government also has to ensure reports meet the requirements of the law and ordered it to address any deficiencies. But as the two ministries’ responses indicate, neither is indicating any concrete action. For Quebec’s part, Falardeau noted the government does its best to respect the timelines imposed by the courts but said delays in producing presentence reports can vary according to the complexity of the file and the number of requests made.

As for concerns expressed by Ontario Superior Court Justice Casey Hill about Quebec’s inability to produce a Gladue report for an offender in R. v. Knockwood, Falardeau said the correctional service can tap an external provider to prepare one. That, however, didn’t seem to apply to Kathleen Knockwood. Quebec officials, according to Hill, reported they didn’t do Gladue reports and wouldn’t be preparing one for Knockwood. When Knockwood moved to get one on her own in Montreal, she learned she’d have to pay for it herself, Hill noted. After significant delay, however, the Ontario ministry helped her get one through Aboriginal Legal Services of Toronto.

The Supreme Court of Canada starts its spring session today. The court will hear six appeals this week.

April 15 — British Columbia — Conseil Scolaire Francophone de la

(Photo: Heather Gardiner)

Colombie-Britannique v. R.

Civil litigation: At the heart of this matter is a language dispute. Conseil Scolaire Francophone de la Colombie-Britannique and others brought an action against the Province of British Columbia and the minister of Education over linguistic rights under the Charter of Rights and Freedoms in order to protect French-language education and culture in B.C., and sought a declaration to have the French-language exhibits it submitted be considered by the court without a certified translation.

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

Other related news articles:
Documents en français acceptés devant un tribunal de C.-B.? Radio-Canada

April 16 — Quebec — Lévesque v. R.

Criminal law: The appeal in this case relates to instructions to the jury. Pierre Lévesque and an accomplice had planned a theft involving weapons to be used only to secure the victims and conduct the theft. A jury found Lévesque guilty of first-degree murder after two victims were found murdered. In dispute is whether the Court of Appeal erred in minimizing the extent to which the jury’s deliberations and verdict were affected by the absence of additional instructions regarding the knowledge element of being an accessory to murder.

Read the Quebec Court of Appeal’s decision.

Other related news articles:
La Cour suprême entendra Pierre Lévesque, Le journal de Québec

April 16 — Nova Scotia — Murphy v. R.

Criminal law: Matthew James Murphy was convicted of conspiracy to commit murder and attempted murder. Several people in the Halifax drug trade had conspired to kill a rival and Murphy was in a car with one of the co-conspirators at the scene of the crime. Murphy testified at trial that he had no knowledge of the conspiracy. The majority of the Court of Appeal dismissed his appeal except for one judge who would have acquitted him.

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

Other related news articles:
Man gets bail pending appeal of IWK shooting convictions, The Chronicle Herald

April 17 — Quebec — Régie des rentes du Québec v. Canada Bread Company Ltd.

Legislation: In April 2008, the Court of Appeal reversed a decision of the Régie des rentes du Québec and ruled that certain clauses of a private pension plan that allowed the employer to reduce pensions after shutting down were unlawful. The Régie sought leave to appeal. In June 2008, the Quebec legislature enacted a statute that imposed the Régie’s interpretation of the statute and the application for leave to appeal was dismissed. In August 2009, the Régie made its new decision and applied the statute. The employer challenged the decision, claiming the case was no longer pending when the statute came into force.

Read the Quebec Court of Appeal’s decision.

Other related news articles:
How Clear Must the Legislature Be to Set Aside a Final Judgment? Canadian Appeals Monitor

April 18 — Ontario — AIC Ltd. v. Fischer

Civil procedure: A group of mutual fund managers were investigated by the Ontario Securities Commission for “market timing,” which caused long-term investors to lose money on their investments. The managers settled with the commission and were required to pay more than $200 million to investors. Some of those investors sought certification of a class action for the same conduct. The various courts did not agree on whether it should be certified. The main question is what are the temporal, procedural, and substantive elements that a court can consider in relation to the preferable procedure criterion?

Read the Ontario Court of Appeal’s decision.

Other related news articles:
Supreme Court Will Hear Appeals on Issues of Settlement Privilege, Test for Class Certification and Test for Summary Judgment, Osler Hoskin & Harcourt LLP
CI Mutual, AIC lose market timing scandal appeal, The Financial Post

April 19 — Ontario — Wood v. Schaeffer

Right to counsel: In June 2009, the Special Investigations Unit was asked to investigate the conduct of two police officers involved in two separate incidents where civilians had died at the hands of police. In both cases, the subject officer and the witness officers were told not to make notes until they had spoken to counsel and not until the end of their shift. In November 2009, the families of the civilians asked the court to interpret the regulatory regime of the rights and duties of police officers involved in SIU investigations, but their application was dismissed. The Court of Appeal allowed the appeal and made a declaration about the parameters of the regulatory regime.

Read the Ontario Court of Appeal’s decision.

Other related news articles:
Family of Peterborough man shot by OPP returning to court next week to appeal ruling on SIU investigations, Peterborough Examiner
Police notes questioned after man fatally shot, Toronto Star

Canada

Today marks beginning of text, tweet ban in Quebec courtrooms, Toronto Star

Protesters call for justice for bullied teen despite RCMP saying no evidence for charges, Calgary Herald

Canadian in custody in Mauritania for ties to terrorist recruitment: official, The National Post


United States

$720M in fees sought by lawyers in $7.25B credit card settlement, Reuters

Top U.S. court to weigh patentability of human genes, Reuters


International

Italian prosecutors continue to push for trial of Costa Concordia officers, Reuters

Pianist in Turkey who tweeted 'insults' of religious values given suspended sentence for blasphemy, Reuters

When Phillip Coffey was charged with impaired driving in August 2010, it left a bad taste in his mouth.

The judge ruled only a possibility, not a certainty, of a breath test malfunction was enough to drop charges. (Photo: Shutterstock)

The Mono, Ont., man has acid reflux, a condition that sends a bitter fluid up his throat once in a while. He had such an episode just before his breath alcohol tests were taken on the evening a police officer pulled him over. In a recent decision, Ontario Court Justice Douglas Maund dropped charges against Coffey, ruling his acid reflux resulted in two false breath test results.

Even though Coffey only had three glasses of wine that evening, the regurgitated alcohol meant the breathalyzer picked up more alcohol than would normally be in his mouth, a toxicologist testified.

The expert’s opinion was that “the potential presence of mouth alcohol could have a dramatic effect and could produce abnormally high and false readings,” the judge said.

Another expert said this scenario would be very unlikely, but couldn’t rule it out.

In his verdict, Maund said scientific certainty is not needed to satisfy the requirement of reasonable doubt.

“What is necessary is to establish a realistic scientific possibility,” he said. “A reasonable doubt must be raised on the basis of credible evidence tending to show that the instrument was malfunctioning. I find that the evidence before me has established such a reasonable doubt as required by section 258(1)(c)(iv).”

Coffey had also told the court that he hadn’t taken his medication on the day of the incident.

“I find that I accept Mr. Coffey’s evidence that he was actually experiencing acid reflux symptoms during the breath tests. I found his evidence credible and he was unshaken in cross-examination,” the judge said.

“Having come to this conclusion, I find that it has been established that there was a real possibility that some alcohol may have been in Mr. Coffey’s oral cavity when the tests were taken. There was therefore a real potential for false readings from the instrument.”

Canada

Temporary foreign worker program will be reformed: Harper, The Globe and Mail

Mississauga mayor testifies in conflict of interest case, points finger at Brampton mayor, Toronto Star

Blackberry urges securities commissions to probe into 'false, misleading' analysis report, The National Post


United States

Outgoing AMR chief will not get $20M severance: judge, Reuters

Lead lawyer chosen for meningitis case, Reuters


International

Guatemala reaches deal in labour dispute, Reuters

Human Rights Watch says Yemen 'shake-up' positive but could shield officers from the law, Reuters

 

A woman charged with impaired driving has been granted a new trial after the judge “usurped the role of the Crown.”

Amanda Lahouri was tried before Ontario Court Justice Bruno Cavion on number of drunk driving charges from June 2010.

The provincial court trial was a blended proceeding, with the Crown leading its evidence to establish the commission of the alleged offences, and with the Lahouri seeking to establish an alleged violation of her constitutional rights so as to potentially exclude the results of the analysis of her breath samples under ss. 8 and 24(2) of the Charter of Rights and Freedoms.

At the conclusion of the trial, Lahouri was acquitted of the impaired driving charge, but convicted of an “over-80” charge.

Referred to in the Superior Court judgment a “straight-forward case,” the trial involved questioning of four witnesses including police officers.

On June 12, 2010, Lahouri was found in her parked car by a tow truck driver in the early morning hours on the shoulder of a highway north of Toronto. When the tow truck driver’s efforts to get Lahouri’s attentions failed, he called 911. A police officer who arrived at the scene testified to the various indications of impairment he observed and arrested Lahouri at the roadside and demanded samples of her breath for analysis. A qualified breath technician later took two breath samples from her. A certificate from police established she had blood-alcohol concentrations of 180 and 160 mg of alcohol per 100 ml of blood at 2:06 a.m. and 2:30 a.m. on that day.

The trial judge questioned one of the police officers regarding what he did, saw, and heard, intervening “. . . frequently with questions of clarification.” On one occasion, he told the officer to “talk in English.” The judge examined the officer this way for what amounted to 17 pages of transcript.

Lahouri appealed her conviction on two grounds — first arguing the trial judge intervened to such an extent in the examination of witnesses that the appearance of fairness in the trial was compromised. Secondly, she argued the trial judge failed to provide legally adequate reasons for judgment in dismissing her Charter motion and in convicting her on the over-80 charge, by failing to reconcile the conflicting testimony of two police officers who testified as to her indicia of impairment.

In his review of the summary conviction on April 9, in R. v. Lahouri, Superior Court Justice Kenneth L. Campbell wrote:

“Based upon a full review of the transcript of the examination-in-chief of Cst. Humphries, it must be said that it was the trial judge, not the Crown, who conducted this examination. . . . Indeed, virtually every significant piece of evidence provided by the testimony of Cst. Humphries was elicited by the trial judge. There is no gainsaying the reality that the trial judge usurped the role of Crown counsel in the examination of Cst. Humphries.”

At various points during the course of the trial, defence counsel for Lahouri raised objections with the trial judge as to how he was unfairly intervening in the proceedings to the overall detriment of the appellant

In addition, Campbell wrote: “In short, the nature and frequency of the interventions of the trial judge compromised the necessary appearance of fairness in these trial proceedings, such that the conviction of the accused cannot stand. There must be a new trial.”

By usurping the role of the Crown, the “appearance of fairness” was compromised from two perspectives — that of the accused and of the Crown.

Lahouri’s conviction was set aside, and a new trial was ordered on that charge.

Late last week, British Columbia Supreme Court Chief Justice Robert Bauman was awarded the 2013 Bench Award by the Trial Lawyers Association of British Columbia. He took the opportunity to make some pointed comments about laywers having to “pull together” during this time of significant challenges both and in the profession and the justice system — not only in terms of access to justice but in failing confidence of the public in their legal representatives.

‘Now is the time, I suggest, for all of us to wake up, speak up, and shake up,’ says B.C Supreme Court Chief Justice Robert Bauman.

He offered a call to arms: “Now is a time for all of us to pull together; to remind our neighbours and our greater neighbourhoods that we are lawyers, members of a proud and caring profession. We are a critical profession in our respective communities.

He went on to say: “The willingness of government and the public to abandon lawyers and the courts as the dispute resolvers of choice is startling and disturbing.

“As a profession if we are not accessible and accountable and importantly, seen to be, we risk the possibility of losing all relevance.”

He also said: “Now is the time, I suggest, for all of us to wake up, speak up, and shake up.

• Wake up to the realities of these challenges;
• Speak up about our value and our critical relevance in the lives of ordinary Canadians; and
• Shake up our attitudes towards lawyering.”

Bauman’s full remarks have been posted to the court’s web site here.

Canada

Public outcry prompts case of suicide victum allegedly raped, bullied to be reopened, The National Post

Peterborough man may have staged his own drowning to avoid trial: police, Toronto Star


United States

Study says lawyers matter when it comes to trademark applications, Reuters

Lawyer who lied to officials about N.Y. corruption scandal suspended for 6 months, Reuters


International

Egyptian president drops legal complaints filed against journalists, Reuters

Arab citizen indicted by Israel for joining Syria's insurgency, Reuters