Legal Feeds Blog
Supreme Court to weigh in on victim surcharges, Canadian Press
Deal reached in meat recall lawsuit, Canadian Press
Rule on new voter ID rules challenge expected today, Canadian Press
EU steps up citizen surveillance, Reuters
Far from mitigating violent crime, cultural beliefs leading to violence should, if anything, be an aggravating factor supporting a harsher sentence, the Ontario Court of Appeal ruled yesterday in striking down the inadequate sentence of a lower court.
The ruling in R. v. H.E. involves an Iranian immigrant convicted of raping his wife repeatedly and beating her along with his children. The assaults were routine, occurring three or four times a month, and the wife never thought to contact police because, according to her, such domestic abuse was common in Iran.
Indeed, the victim seemed shocked when it became clear to her that her husband could go to prison. Despite terrible abuse suffered over years, neither she nor her children wanted the man jailed.
The Crown sought a prison term of four years, but Justice William Gorewich of the Ontario Court of Justice handed down a much lighter sentence — 18 months plus probation — reasoning that there was no risk to reoffend and there were “no injuries” requiring medical attention.
Gorewich also took it upon himself to weigh cultural considerations despite the fact that none were offered as a defence: “In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The accused’s wife] testified in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence those cultural differences moved with them from Iran to Canada. It is only a factor in my deliberations, and not a sentencing principle.”
On appeal, Associate Chief Justice Alexandra Hoy, on behalf of a unanimous court, took great exception with the notion that one’s cultural background could excuse violent criminal behaviour. “Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value,” the decision states.
“All women in Canada are entitled to the same level of protection from abusers. The need to strongly denounce domestic violence is in no way diminished when that conduct is the product of cultural beliefs that render women acceptable targets of male violence. If anything, cultural beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing.”
Hoy’s decision also cited errors with the lower court’s explanation that “no injuries” were suffered because medical attention was never sought. “The sentencing judge commented that medical attention was not sought. This does not mean there were no physical injuries.”
Finally, the appeal court found errors with the lower court’s assumption the accused posed no risk to reoffend. Much to the contrary, it found, the convicted man expressed no remorse for his actions and may continue to hold beliefs that his criminal behaviour was acceptable. “Given the lack of remorse, what then was the evidence that there was no risk to reoffend? . . . The respondent, in his late forties, was found guilty of routinely raping his wife over many years, and of physically attacking his own children. These offences were not isolated incidents. By nearly all accounts, the respondent had difficulty controlling his anger. This engaged an inference that the respondent was a risk to re-offend.”
The appeal court decision imposed a sentence of four years with no parole. Counsel for both the Crown and the respondent declined to comment on the decision.
Mountie charged with assault, Canadian Press
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- Litigants posting of Crown’s disclosure materials online leads to judge restricting access
In a digital world, sharing information online comes as second nature to many people, but if you’re a party to a court case and post disclosure materials on the Internet, don’t be surprised when a judge decides to restrict your access to those files.
|The court restricted access to disclosure files after a litigant posted Crown material on the Internet.|
Windsor law professor Julie Macfarlane, who studies the experience and phenomenon of self-representation in Canada, says the ruling is “a fascinating example of how much the courts may sometimes be in denial of the impact and reach of the web.”
“How can they expect to police this?” Macfarlane asks. “While lawyers would hesitate to post and use information in this way, there is no real reason to assume the unquestioning co-operation of the rest of the public. The presence of so many SRLs is highlighting many of our collective tacit understandings in legal practice, which they [self-reps] do not necessarily share.”
Kelly, who appealed his conviction for harassing a police officer and sabotaging a planned undercover investigation, was told he could access the materials by attending the Crown’s offices, viewing the files in private, and taking notes if he wished. He was also permitted to access the disclosure in the courtroom any time while the court was in session, as well as before and after the court was in session. In addition, he received copies of the transcripts as they were produced.
In a recent decision, the Alberta Court of Appeal found that restriction was not unreasonable.
“With respect to the limitation placed on the appellant’s access to some of the Crown’s disclosure, the limitations were reasonable and were the direct consequence of the appellant’s misuse of prior disclosure,” the court said.
“The appellant was found to have been inappropriately publishing previously-provided Crown disclosure on the Internet.”
According to Macfarlane, using the Internet to share information is now “completely normative” for many self-represented people.
“If the courts believe that this type of dissemination of information already provided to a litigant — and often in the public domain — is inappropriate, it is important to explain this to litigants and also to explain why,” she says.
“This judgment does not appear to consider either of these questions and runs the risk of being regarded as another means of imposing new rules and restrictions on SRLs without explaining why.”
The case is another example of the “serious challenges” posed by unrepresented litigants as the courts try to ensure they’re treated fairly yet uphold the rules of the court, says Toronto lawyer Harvin Pitch.
“That balance is delicate,” says Pitch. “The same balance is required by the Crown in a criminal case. The accused must be given the same rights as counsel in receiving disclosure yet must not be allowed to abuse that right by publicizing that disclosure.”
According to the court, Kelly harassed a police office for the better of a decade because his complaints to police about a local soccer federation and one of its officials did not result in charges being laid.
“While no direct threats were made, the repeated communications and threatening conduct were found by the trial judge to have caused the police officer to fear for his safety and that of his family,” the court said.
Toronto residents charged in immigration fraud case, Canadian Press
Human body preservation law challenged in B.C. court, Canadian Press
Second-degree murder charge dropped against B.C. officer, Canadian Press
Lawyers and staff at the offices of Norton Rose Fulbright Canada LLP were watching the Pan Am Games a little more closely Monday as Adam van Koeverden crossed the finish line to a bronze medal in the men’s K1 1000 metre kayak race in Welland.
|Adam van Koeverden won a bronze medal in the men’s K1 1000 metre yesterday at the Pan Am Games. (Photo: Jeff Swinger-USA TODAY Sports)|
The Olympic gold medalist is one of several Canadian Pan Am Games athletes sponsored by the law firm and providing much needed support, says van Koeverden, adding such sponsorships can beneficial for both parties.
“It’s an example of one of the small ways the private sector can get involved and make a big impact on Canadian amateur athletics,” van Koeverden tells Legal Feeds. “I’m a really strong believer that sponsoring a Canadian athlete shouldn’t be philanthropic. A good sponsorship strategy from a company, law firm, or bank can provide significant value on both sides.”
Norton Rose is supporting Canadian Pan Am athletes at the games in cycling, kayak, mountain bike, squash, and waterskiing.
One of the firm’s senior litigation partners, Michael Tamblyn, drove the sponsorship push and knows several Pan Am athletes.
The firm’s chief operating officer says he doesn’t see the support as “charity” but a way for the firm to boost interest in the games and create a relationship that also benefits their organization.
“It makes our people feel good about the support we’re giving to the community and helping these athletes who are so dedicated to these sports,” says Chris Jackson, COO at Norton Rose Canada.
Van Koeverden spoke to senior managers of the firm in Montreal recently and they held an event with several of the athletes in the Toronto office. He says it’s the first time he’s had sponsorship from a law firm.
Training for events like the Pan Am Games takes full-time dedication, says van Koeverden and while many consider the athletes of the Pan Am Games “amateur” he says there is nothing part-time about training for such an elite level of sport.
“Every sport has to be professional now, you can’t have a full-time job and do the kind of training any sport requires you to do at the Olympic level,” he says.
Corporate sponsors also help with distribution of event tickets to their clients for business development and ensure the games are well attended, which is also important to the success of the games.
“It’s critical,” says van Koeverden. “I don’t think you’d ever sell the number of tickets available just to families or couples. It’s important companies get behind it and encourage their people to go for a variety of reasons.”
Kyle Douglas of the Scott-3 Rox Racing, a North American male-female cross country mountain bike race team says the sponsorship helps with not only making sure they are “one of the top teams in Canada” but pushes them to an international platform.
Douglas says while there has been much grousing about the impact the games have had on traffic in the GTA, it’s important to see the bigger picture.
“It really makes us an elite sporting community where before Toronto and the GTA was not an elite community. Now we have all these facilities where athletes can train and there’s a legacy because of it,” he says. “The short-term pain is for some long-term gain.”
The team’s Derek Zandstra of Trenton, Ont., finished fourth Sunday in the men’s cross-country mountain bike event at the Hardwood Mountain Bike Park in Oro-Medonte.
Quebec City man has been charged with murder of French tourist, Canadian Press
Saskatoon man to be sentenced for stabbing person at a bar, Canadian Press
A Quebec judge rejected Canadian Pacific Railway Ltd.’s challenge to a settlement for victims of the Lac-Mégantic crude-by-rail disaster on Monday, clearing the way for compensation payments
|An emergency worker stands on the site of the train wreck in Lac Megantic, July 16, 2013. (Photo: Reuters)|
Forty-seven people were killed and the downtown core of the town was destroyed following the derailment of a train carrying Bakken crude oil.
CP transported the tank cars of oil involved in the accident to Montreal before handing them over to the now insolvent Montreal Maine & Atlantic railway, which was operating the train at the time of the crash. CP has argued that it should not be held responsible for the tragedy.
Unlike other companies targeted by a Lac-Mégantic-related class action lawsuit, CP did not agree to the settlement and challenged the provincial court’s jurisdiction in approving the deal. CP also asked the Quebec court to shield it from future litigation.
In his judgment, Quebec Superior Court Justice Gaetan Dumas dismissed CP’s motion as a “not so subtle attempt” to disrupt a settlement that called for $430 million in compensation for victims of the rail tragedy.
Although CP is not part of the fund and thus would not be on the hook for any of the promised funds, it is being threatened by a separate lawsuit.
A spokesman for CP said the company is currently reviewing the judge’s decision and has no further comment at this time.
Can family lawyers include a provision in their retainer agreements giving themselves discretion to withdraw from the case for non-payment of legal fees?
That was one of the issues in a Law Society Tribunal case in which the panel made findings of professional misconduct against a Whitby, Ont., lawyer who acted for a client in her matrimonial dispute. At the very least, a lawyer must advise the client about obtaining independent legal advice, the tribunal found.
In this case, the retainer included a provision noting that the lawyer, Matys Rapoport, “in his discretion may withdraw from acting on my behalf” for reasons including non-payment of an account. “
“I expressly give Max Rapoport permission to sign a notice of change in representation on my behalf should he deem same necessary,” stated the retainer agreement signed by the client in 2010.
With the client not having paid accounts totalling $23,027.52 by September 2011, Rapoport began expressing concern about the outstanding amounts and told her that fall that he’d no longer act for her unless she began making payments, according to the tribunal’s July 7 decision.
In November 2011, the lawyer sent a letter saying he’d continue to act if she signed two consents to judgment. She signed them but with the issues over payment continuing, he sent another letter in March 2012 saying he’d remove himself as solicitor of record unless he received $34,000 towards the outstanding account within 10 days, according decision written by panel chairwoman Susan Opler.
Rapoport ended up filing a notice of a change in representation on the client’s behalf, Opler noted. The client responded with an e-mail calling the lawyer’s withdrawal as “unfair” and “unfortunate.”
For his part, Rapoport noted his reliance on the retainer agreement as a “precedent form retainer agreement that several counsel (unidentified) rely upon in his jurisdiction,” wrote Opler.
But in considering whether his actions were acceptable, Opler compared them to another case in which a family lawyer’s retainer agreement contemplated a client giving up his right to an assessment under the Solicitors Act.
The client in that case had essentially contracted out of the Solicitors Act, she found, noting Rapoport had achieved a similar result by obtaining the consents to judgment and serving a notice of a change in representation.
“This latter appropriation of the client’s right to terminate the relationship ‘at will’ meant the Lawyer effectively bypassed the procedural safeguards that apply to counsel of record established in the Family Law Court Rules, which protect the client and safeguard the process. In our view, both the assessment process and the right to end the solicitor client relationship ‘at will’ . . . are consumer protection provisions designed for the protection of the public which should not be appropriated by the Lawyer,” she wrote.
Opler highligted the power imbalance at issue and the importance of advising on the need for independent legal advice “as a lawyer treads closer and closer to the line of encroaching on existing client rights in favour of strengthening his own economic position.”
The decision continues: “Suffice to say that in this case, where no acknowledgment of the inherent conflict is included in the agreement nor is there guidance given to the client to seek independent legal advice, we find that the Lawyer was in an impermissible conflict of interest when he advised the client to hand over to him all control over service of a Notice of Change in Representation — a right that properly belonged to her pursuant to Rule 4(10).”
While the panel made the misconduct findings, it must still reconvene to consider the penalty.
Rapoport’s counsel Ted Spong declined to comment as the case is still before the tribunal.
Man charged for assault at Calgary Stampede, Canadian Press
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