The Ontario Court of Appeal was correct in overturning a sexual assault guilty verdict this week that would have been “a dangerous conviction to uphold,” a Toronto criminal lawyer says.

‘The last thing the Court of Appeal wants is judges to apply general rules of credibility of witnesses,’ says Daniel Brown.

The appeal court ordered a new trial for a man accused of repeated sexual assaults against members of his family after finding the trial judge believed the complainants for the wrong reason.

A passage in Provincial Court Justice Alan Cooper’s ruling suggested that since the complainants are the accused’s nieces and great niece, their evidence is by default more credible than it would have been had they not been related to him.

Cooper’s faulty statement reads the complainants “had to testify about a family member, which in my view makes their allegations more credible than a complaint against a non-family member.”

The appeal court said this line of thought is “clearly improper.”

“The impugned passage expresses the view that, because of the difficulties in family relationships that sexual allegations often create, allegations of sexual misconduct made against a family member are inherently more credible than allegations of sexual misconduct made against a non-family member,” the Court of Appeal ruled.

“Such an approach is clearly improper and, standing alone, requires that we set aside the convictions and order a new trial.”

But the decision doesn’t mean the complainants’ family ties with the accused are irrelevant, says criminal lawyer Daniel Brown.

“In some cases you say, ‘Why would this person make up a lie that would essentially tear their family apart?’” he says. “The problem in this case is that the judge seemed to premise right from the start that in cases where complainants testify against their own family members, they’re automatically more credible.

“You have to look at the family context and the family dynamics in each particular case as opposed to having a general premise that complainants who testify against family members are automatically more credible in the same way police officers are more believable than other witnesses.”

The Crown had argued the trial judge was simply pointing at the lack of motive in the case and not setting a general principle. But the appeal court read the words differently.

“Although we agree that the passage must be read in context, we are unable to accept the Crown’s submission,” the court said.

Despite the problematic statement, the conviction would have had a better chance of standing had there been more corroborative evidence, says Brown.

“Sometimes judges make mistakes like that and it may not affect the outcome of the case. But this case was particularly unique because it wasn’t what we might call an overwhelming Crown case,” he adds.

“The last thing the Court of Appeal wants is judges to apply general rules of credibility of witnesses instead of looking at it in a particular case by case basis.”

Canada

 Federal Court OKs $887M class action settlement for veterans, The Globe and Mail

First to face trial for Vancouver Stanley Cup riot found guilty on three charges, Vancouver Sun

LAO funding cuts would leave refugees form 'safe' countries without lawyers, Toronto Star


United States

Justice Department to pay $39M to military members for violations of Servicemembers Civil Relief Act, Reuters

Wal-Mart trespass lawsuit against protestors demanding better conditions in stores a 'coercive tactic', Reuters


International

Ecuador judge denies bribery allegations in Chevron case, Reuters

Court postpones testimony of Spain's princess in her husband's corruption probe pending High Court ruling, Reuters

Osgoode Hall Law School students left Gowlings Hall Thursday afternoon with an array of insight into what the Conservatives have done wrong since coming to power.

Guest speaker and former interim Liberal Party leader Bob Rae discussed the imbalance of power in the current government and answered questions from students on everything from immigration, to abortion, to Idle No More.

Departing interim Liberal leader Bob Rae hit on many areas of the government and the rule of law at Osgoode yesterday. (Photo: Anastasia Moskvitina)

He said tensions are caused within attempts to “limit power, define power, share power, and protect the rights of the individual.”

Rae believes the Harper government is not on the right track to resolving these tensions.

“The Reform Party believes that Parliament should be sovereign and that should be the end of it. If Parliament decides that a horse is a donkey, a horse is a donkey and it doesn’t matter what anybody else thinks. And that’s very problematic from the point of view of the rule of law,” he said.

Rae reflected on his time in Sri Lanka, where he met a Japanese government official who inquired about the location of power in the government of Canada.

“He said power has to be in one place,” said Rae, replying, “If it’s only in one place you’ve got a problem because if power is only in one place it tends to be abused. And it’s this problem of abuse that I want to focus on.”

He believes Prime Minister Stephen Harper is central to the current imbalance of power in Canada.

“How do we control the power of the first minister who picks the cabinet, picks the representative of the Crown, picks judges, picks senators, and the only people that the prime minister doesn’t pick are the members of Parliament,” but he still has to approve every candidate?

Rae concluded, “I think that gives a huge amount of power to the leader of the party, a huge amount of power to Mr. Harper. The only effective way to deal with this is for the parties to essentially give up some power and secondly for the prime minister to give up some power.”

That said, Rae does not agree with assertions that Canada is becoming more conservative.

“I’d have to say the most dramatic change that’s taken place is our view about sexual identity,” he said, “In the 1980s the defence of people who were homosexual was based entirely on the rights to privacy. But now we’ve gone from [tolerance] and acceptance to celebration.” He added that our country remains liberal on issues surrounding marijuana, and that “when Prime Minister Chrétien didn’t send our troops to Iraq the support was huge. So, I don’t buy the view that we’ve suddenly become more conservative.”

Rae pointed out, “A lot of Mr. Harper’s dissenters are coming at him from the left as well as from the right,” especially on the issue of abortion. “He basically made a deal with the Canadian people saying ‘give me a majority and I promise you that I will not bring in the abortion debate again.’ So he feels a sense of personal obligation to make sure that he lives up to that. But there was nothing Harper could do about the recent backbench motion to create a committee to determine when life begins and “everybody knew what that was code for,” said Rae.

This led to a question about allegations of Harper silencing his caucus on issues such as abortion.

Rae said, “Does Mr. Harper have a problem within his own caucus? I think he does . . . you have dozens of members who are in favour of new criminal legislation in Canada to deal with the issue of abortion.” Rae said we should not be afraid to reopen the debate, but “a significant majority of Canadians do not believe that this is an area that is appropriate for the criminal law.”

Rae’s critcism wasn’t all for the Conservatives. The increased popularity of the NDP is not based on changes being made within the party, he noted.

“I think people made a big mistake if they read too much into what happened in that last election. I think the last election was particular to the last election. I think there was a deep wave of affection for Jack Layton,” said Rae.

“On the trade agenda,” he went on, “they’re still basically hostile to most motions of markets being more open and markets being freer. The rhetoric is still very much ‘corporations — bad guys; unions — good guys, and ‘what’s your problem?’ This is not a very satisfying recipe for being a potential government. It may be an effective way of being in opposition for a while, but I think even that has its limitations.”

He defended his liberal perspective on the economy, saying we should raise taxes instead of borrowing money.

“The orthodoxy of the Conservative party,” he said, “is that it’s more moral to borrow — this year $25 million — than it is to add a point or two to the GST. I have a real problem with that. I think that the issue of intergenerational equity also has to do with how much debt we’re transferring to future generations.”

Another hot topic of the question period was immigration and Canada’s role on the world stage. He said the Conservative’s reform to immigration law are “going to fail in court.”

He said, “we’ve been too laisez-faire” in dealing with immigrants. “We’ve allowed ourselves to believe that everyone will just make their way,” but at the same time, “we’ve all had experience with people who come to the country believing that something good’s going to happen and it didn’t happen.”

He raised the question of “is it first come, first served? Is it based on ‘we actually want to recruit some of these people and more of these skills than those skills?’ My sense is that we are as a country moving a bit more to the second rather than the first.” But that is also problematic.”  

Rae added, “This government does not like the United Nations. They don’t like it as an institution. They don’t even like it as an idea. I think if they could pull out of the UN they would.”

In terms of our own cultural diversity in Canada, Rae called the Idle No More movement “an expression of frustration,” but was quick to point out that aboriginal protesters need to determine “to what extent this new movement takes on a stronger, keener sense of what the objectives are beyond simply that of protest” because “protest movements eventually have to turn positive and have a series of practical objectives that are very focused and very achievable. Otherwise they tend to evaporate.”

In short Rae doesn’t agree the areas of law the Conservatives have focused on. He said they are too concerned with following popular opinion. For instance, Rae said the current version of the Criminal Code is probably three times the size of what it was when he was in law school.

“I think they only way we’re going to be able to deal with the mess that’s been made with the Criminal Code is to have some sort of a law reform commission on the whole Criminal Code.”

University of British Columbia president and vice chancellor Stephen Toope announced yesterday he will step down from his post at the end of the 2014 academic year to pursue his interests in international law.

Toope, who has an extensive legal background, said in a release that his decision to resign is “personal and relates to my desire to work over the next few years in a role more closely connected to my academic and professional interests in international law and international relations.”

Stephen Toope says his misses writing and being in the classroom.

When asked what that international law work will entail, Toope said he isn’t quite sure yet.

“I do not know what work comes next. I only know that I miss being able to write as much as I would like in my areas of international law, and I miss being in the classroom,” he told Legal Feeds.

Toope became president of UBC in March 2006 and began his second five-year term in July 2011. From 1994 to 1999, he was dean at the McGill University Faculty of Law, where he also obtained his common law and civil law degrees.

Considered an international law scholar, Toope continues to write in the areas of international human rights, dispute resolution, and international environmental law. In addition, in 2010 he co-authored a book on international legal theory titled, Legitimacy and Legality in International Law: An Interactional Account.

Toope also represented Western Europe and North America on the UN Working Group on Enforced or Involuntary Disappearances from 2002 to 2007.

Following public outcry over the $6-million payout in the BC Rail case, Toope was asked to conduct an investigation into the B.C. government’s handling of the case. His 2011 report said it was highly unusual for the government to pay the massive legal bills of former political aides Dave Basi and Bob Virk after they pleaded guilty to breach of trust. He also made several recommendations to help prevent similar payouts from happening in the future.

“As president, I have not been able to do the kind of work that I have done in the past, including chairing the UN working group and advising government,” said Toope. “I may look for more opportunities in those fields, but not until after I finish as president in 2014.”

Canada

Class action lawyer Tony Merchant put $1.7M in offshore tax havens, CBC

B.C. sex workers want voices heard in June SCC case to determine constitutionality of prostitution laws, Vancouver Sun

Canada's foreign service workers say they are in legal position to strike, Chronicle Herald

Ottawa police sergeant not guilty of sexual assault, could still face charges under Police Services Act, The National Post


United States

Eve of new law sees patent office receive record number of applications, Reuters

AAR Corp. has case brought by shareholders tossed by judge, Reuters


International

Ecuador group accused of fraud in Chevron rainforest pollution case, Reuters

Delta sues bank over loan guarantees for foreign airlines, Reuters

The government is planning to cut federal funding for programs aimed at increasing access to justice and developing court efficiencies by 20 per cent by 2015-16.

(Photo: Shutterstock)

Detailed figures contained within Department of Justice documents released late last week shed further light on the impact of the March 21 federal budget.

The long-term projections reveal the department will reduce its overall spending by nine per cent, to $943.8 million in 2015-16 from a forecast $1.04 billion in 2012-13.

But spending on “grants and contributions,” which fund many provincial programs, will be cut by a disproportionate 19 per cent in the same period. Operating costs are dropping by 13 per cent.

Grants and contributions are described on the Department of Justice’s web site as programs that “play a role in the work of the department by testing various approaches to improving Canada’s justice system; by contributing to developing policies; and by supporting the department’s mission of a more accessible, equitable and efficient justice system.”

Organizations that have benefited from the funding stream in the past year include the Canadian Bar Association, which received $28,000 to develop a tax toolkit for family lawyers. The National Judicial Institute, which develops educational programs for judges, received $268,345 from the grants and contributions pool.

Another relatively large grant, of $194,322, was given to McGill University’s Paul-André Crépeau Centre for Private and Comparative Law, for a project to produce “linguistic and legal tools intended to contribute to improving access to justice in English in Quebec” for jurists, law students and translators.

The Canadian Institute for the Administration of Justice was given $25,000 to hold a national conference on the changing role of the courts. Other recipients include non-profit bodies covering areas such as aboriginal justice, victim support, domestic abuse and child protection.

Lesley Jacobs, executive director of the Canadian Forum on Civil Justice, says: “The budget has significant implications for vulnerable groups. These organizations are very dependent on year-to-year contributions.”

Grants and contributions are a “soft” area for the federal government to cut due to a lack of transparency over allocation decisions and the negligible impact on votes of withholding the funds, he says.

Under the 2013-14 Department of Justice budget plan, grants and contributions cuts will start this fiscal year, which is 12 months later than the 2012-13 budget envisaged. But then the spending reductions will go faster and further than previously set out, falling by 11 per cent during this fiscal year and a further 8.5 per cent in 2014-15, to $312.5 million.

This is $36.3 million lower than the figure predicted in last year’s report and is due to drop again, to $309.2 million, in 2015-16.

The Canadian Resource Centre for Victims of Crime has been allocated a $100,000 federal grant to maintain services up to 2013-14. Executive director Heidi Illingworth says she and her colleagues were “very disappointed” about the planned cuts to future available funding.

“While we understand that the federal government is making cuts across departments as part of the debt-reduction plan, our agency largely depends on grants and contribution monies to stay open,” she says.

Without federal funding, “the centre will likely be forced to close, as we do not charge our clients for services and only receive a small amount of corporate and personal donations on an annual basis. This is worrisome news,” she adds.

As part of the government’s efficiency drive, the Department of Justice has committed to achieving savings of $67.5 million over three years.

A Department of Justice spokeswoman said federal funding for several initiatives was due to end in 2014-15, including $16 million for the Supporting Families Initiative, $13.2 million for the delivery of immigration and refugee legal aid in provinces and territories, and the management of court-ordered counsel in federal prosecutions. In 2015-16, $500,000 was being cut from refugee legal aid funding.

“The sunsetting of initiatives is a regular part of the parliamentary budgetary cycle, which allows the review programs and initiatives to ensure these continue to meet government objectives and remain aligned with priorities,” she says.

The 2013-14 budget has set aside funding for the Aboriginal Justice Strategy and the Access to Justice in Both Official Languages, she adds.

Vancouver police are seeking information on a cold case involving the daughter of a retired Vancouver lawyer, which has eluded them for more than 20 years.

Jillian Blatchford Fuller’s murder remains unsolved after two decades. (Photo: VPD)

“Every couple of years we review these cases with a fresh set of eyes,” said Vancouver Police Department media officer Sgt. Randy Fincham, adding it is now the 20th anniversary since the murder in South Vancouver’s Marpole area occurred. The hope is someone will remember something about the night 28-year-old Jillian Blatchford Fuller, daughter of retired lawyer George Fuller, left the Fraser Arms Hotel March 4, 1993.

Only hours later, firefighters were called out at 5 a.m. to a fire at 8770 Granville St. where they discovered the Fuller’s slain body in her apartment. Police investigators found she had been assaulted and the fire used to cover the homicide. Police are not revealing the details of how she died. There were no signs of forced entry to the apartment.

Reports issued at the time indicated she had been seen leaving the hotel with a man, approximately 28 or 29 years of age, olive complexion, of average height, dark brown hair, and thick dark eyebrows. He as wearing a blue shirt.

The Fraser Arms property, recently renovated and in 2012 renamed Luminaire Plaza, was only a short walk from where Fuller lived near the foot of Granville at the cross-street of W. 72 Ave. The hotel is located at 1450 S.W. Marine Dr., just east of Granville and the Arthur Laing Bridge, en route to the Vancouver International Airport.

The 50-year-old hotel, especially the pub and restaurant, was a popular gathering spot for a wide clientele as it offered good food and drinks at reasonable prices. The hotel attracted locals from the mixed-use area near the Fraser River that included mill workers, car salesmen, commercial shops, and residents from the area’s higher-end homes and multi-family apartments. The hotel also is on a main arterial to the University of British Columbia and the Musqueam reserve. In 1991, the Musqueam Indian Band purchased the hotel and its property to prevent it from redevelopment as it sits on the site of the band’s historic village, the Marpole Midden, and part of its burial grounds.

While police have made a public appeal for more information, Fuller’s name has been kept alive through an endowment fund set up in 1993 by her family at the Emily Carr University of Art + Design, with an annual bursary. It is provided to a woman who may be marginalized in the community or who may struggle with a mental illness, said Eve Bouchard, the university’s fund and alumni relations officer. Although Fuller was an accomplished pianist, she did not attended Emily Carr. Bouchard said Fuller’s father George is in his 80s and living in a care facility while her mother, a Vancouver physician, is deceased.

Vancouver police, at the time of the murder, questioned several individuals who may have been considered suspect, but no charges were ever laid. Anyone with information is asked to contact the Vancouver homicide department at 604-717-2500 or Crime Stoppers.

Canada

Elections Canada looking for donors who gave over legal limit in campaign donations, Vancouver Sun

Court rules much disputed painting by famous Canadian artist authentic, The Globe and Mail

Alberta SPCA makes rare move, has RCMP lay criminal charges on man with out of province license who abused puppy, Calgary Herald


United States

Tech company becomes first to cite Supreme Court Comcast ruling making it harder for plaintiffs to sue as a group, Reuters

Nation's biggest public pension system and bondholders ready to fight in court, Reuters


International

Argentine bondholders must address payment plan: court, Reuters

Intellectual property issues in China to be highlighted at conference, Reuters

Despite the departure recently of 13 lawyers from its mining group in Canada, Dentons’ head in Canada says he doesn’t expect to see more lawyers looking to leave.

The new sign in Dentons’ Toronto office. (Photo: Dentons)

“We don’t anticipate further departures, but we developed as part of our strategic review and analysis of the opportunity the possibility of these kinds of changes,” says Chris Pinnington, Dentons’ Canada CEO. “Notwithstanding the departure of our colleagues in Toronto, we continue to have a very robust mining practice across our offices in Canada and marrying it with the depth of expertise in other regions we do continue to offer our clients a compelling proposition and afford potential recruits an interesting opportunity in building the new Dentons.”

Formed by the combination of international law firm Salans LLP, Canadian law firm Fraser Milner Casgrain LLP, and international law firm SNR Denton, Dentons officially launched today. The firm now consists of 2,500 lawyers and professionals in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the U.K.

Joe Andrew, global chairman with Dentons, tells Legal Feeds it’s not unusual for large combinations to losing lawyers, citing Hogan Lovells which lost hundreds of lawyers, DLA Piper, and Norton Rose, whereas Dentons is looking at a net gain.

“We have lost a couple of lawyers in Toronto and two in New York and a couple in Paris, but unlike all the other big combinations we have a net gain across the globe from our announcement date to the launch date,” says Andrew, noting there was a high percentage vote at FMC in favour of the combination.

“We think our lawyers understand the strategy of the firm, they’ve bought into the strategy of the firm and those who have had the opportunity to walk out the door anytime they want to aren’t doing so,” he adds

The Canadian office is also being approached by potential lateral recruits who even a few months ago would not have seen a difference between the former FMC and its competitors.

“I’ve been heavily involved in recruiting activities over the past few months and we have a new and very compelling proposition for partners who feel in the world of globalization and dynamic shifts in the legal market what we are doing offers an opportunity to get in at the beginning of a new global law firm,” says Pinnington.

While mergers can also result in some lawyers losing clients due to issues of conflicts or referral business, he doesn’t see it being a problem for Canadian lawyers of the firm.

“To date we have not seen any erosion of those sources of work or any other client erosion attributable to the combination. On the contrary, we have seen some incredible new matter and new client opportunities that would have been out of reach,” says Pinnington.

The first weekend after the merger was announced, Pinnington says the firm heard from the former general counsel of a client in the U.K. which FMC had been pursuing who was now at a different company. He indicated his company was looking to set up operations in Canada.

“They had noticed the news about the firm joining with Dentons, which led to an introduction and engagement to develop a relationship,” says Pinnington, saying it was a client in the infrastructure sector that was “on the horizon but just out of reach.

“It was a prospect we in Canada had a desire to engage with and the result is we have a new and very satisfied happy client.”

Andrews says general counsel of large companies are becoming the “foreign relations office” of large corporations and looking for broader representation. He points to research from the Acritas’ U.S. Law Firm Brand Index Report, a survey of purchasers of legal services, which shows general counsel of companies small to large are drawn to firms with global reach even if they don’t have global needs.

“It changes the brand of the firm and is perceived to be more contemporary and responsive to the needs because there are very few businesses in Canada and other countries that don’t have aspirations to sell in countries other than the ones they are in today,” he says.

Pinnington says he has been contacted by clients from the three legacy firms wanting to discuss ‘but for opportunities’ that previously would have been out of our reach either because of geographic footprint or sector or industry practice.

When it comes to the value proposition, Andrew says in many cases global firms can offer lower costs than national firms due to having a broader roster of talent.

“With the broader base and more people who know narrow technical areas you’re more likely to get what you want and quicker, which will be less expensive.”

Canada

Confusion over Chinese medicine crackdown made worse by legal challenge, Toronto Star

RCMP investigating allegations two Canadians were behind terrorism attack in Algeria, Vancouver Sun

Criminal case accuses fertility consultant of forging egg donor profiles, The National Post


United States

Antitrust claims take a hit after judge dismisses Libor case against world's major banks, Reuters

Flagstar liability bumped to $106.5M in mortgage case, Reuters


International

German bank faces new gender discrimination case, Reuters

Italian envoy allowed to leave country after Indian court lifts ban, Reuters