Legal Feeds Blog
SCC sides with lab workers in workplace cancer case, Canadian Press
A recent Court of Appeal decision clarifies the law around how the courts handle self-defence cases, say lawyers.
The Ontario Court of Appeal has ordered a new trial for Valter Cunha, who was convicted for shooting another man twice, but claimed he was acting in self-defence.
In R. v. Cunha, Justice Peter Lauwers said the court found that the trial judge’s analysis was deeply flawed as it “paid little regard to the overall evidence, but focused excessively on whether Mr. Cunha was a credible witness.”
Cunha made a split-second decision to shoot the man after an altercation in his building, according to the decision. The man had his back to Cunha, who had told the man to freeze. The man began to turn around and Cunha shot him.
The trial judge dismissed Cunha’s testimony where witnesses could not verify his account, but Lauwers said this analysis was unreasonable. In the appeal decision, he stated:
The court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.”
Lauwers said the trial judge “artificially separated out the sequence of events.”
Cunha’s defence lawyer, Michael Dineen says the way the trial judge scrutinized Cunha’s statements and analyzed the events was unfair.
“That’s just the wrong way to look at this,” says Dineen.
“People in that sort of life-and-death situation have to be given some leeway before we’re going to impose criminal liability on them for split second decisions.”
Dan Stein, a criminal defence lawyer says it is important for trial judges and juries to put themselves in the shoes of the accused.
“It reaffirms that people who are in a position where they feel they have to defend themselves aren’t required to take absolutely every step in a very measured way,” Stein says of the decision.
“There’s some understanding that in the heat of the moment, people will do what’s necessary to defend themselves, which in retrospect might not be reasonable simply because at the time they were afraid for their lives.”
Lauwers found the trial judge also made inconsistent findings with respect to Cunha’s state of mind.
Cunha had said he did not know whether the man was armed, but feared he was. The trial judge said he was left with a reasonable doubt about whether Cunha felt afraid that the man was armed, but then later said that Cunha did not believe the man was using or threatening force against him.
Lauwers said that overall the trial judge failed to take into account the situation from Cunha’s perspective and that he artificially separated related events.
“This case reaffirms the principle that life has to be analyzed as a flowing narrative that can’t be reduced to a freeze-frame analysis,” says criminal trial lawyer Sam Goldsmith.
RCMP lay charges three years after robbery at B.C. shopping mall, Canadian Press
Paul Schabas has been elected to become the next treasurer of the Law Society of Upper Canada.
|Paul Schabas was elected treasurer of the Law Society of Upper Canada today.|
Schabas is a partner and senior trial and appellate lawyer at Blake Cassels & Graydon LLP and an adjunct professor at the University of Toronto, where he teaches media law. He is credited with arguing many substantial cases before the Supreme Court of Canada that have had implications for defamation and equality rights law.
In his first meeting as treasurer, Schabas outlined a list of the five priorities he wants the LSUC to focus on under his watch.
Among them as addressing how the law society can take a leadership role in enhancing access to justice.
“The law society can’t fix the access to justice challenges on its own but it can be more active in working with government, the courts, Legal Aid Ontario, and others, and pushing for changes and improvements in how legal services are delivered in Ontario,” he said.
“We have a critical role to play here to improve access to legal services.”
Other priorities Schabas mentioned included governance issues, operations, as well as licensing and competence. He also spoke about the need to develop a strategic plan to better engage member lawyers and paralegals, as well as members of the public.
The outgoing treasurer, Janet Minor, congratulated Schabas and thanked Convocation before leaving the meeting, as tradition dictates.
Schabas said the five priorities are just a snapshot of what he hopes the law society will focus on, and he is committed to having robust and wide open debates and discussions during his term as treasurer.
“We are all here for the same reason — to improve our profession and act in the public interest — and together we can achieve results we are proud of at the end of our time here,” Schabas told Convocation.
“So let’s get to work.”
The Supreme Court of Canada ruled today that police do not need a warrant to collect DNA from a male suspect’s genitals, potentially making it easier for authorities to secure sexual assault convictions.
|‘[A] penile swab is in some ways less invasive than taking dental impressions,’ said the SCC majority’s ruling. (Photo: Gail J. Cohen)|
Police have greater search powers when dealing with people who are arrested, and a penile swab, which seeks a complainant’s DNA and not the suspect’s, would be a reasonable part of that, the court ruled.
“A penile swab does not fall within the scope of R. v. Stillman,  1 S.C.R. 607,” says the majority decision penned by Justice Richard Wagner. “First, a penile swab is not designed to seize the accused’s own bodily materials but rather, the complainant’s. Accused persons do not have a significant privacy interest in a complainant’s DNA. Second, a penile swab is in some ways less invasive than taking dental impressions and the forcible taking of parts of a person. Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNA degrades over time. In sum, a penile swab implicates different privacy
The court also laid out a series of factors to guide police in conducting penile swabs. They include:
• Conducting the swab at a police station;
• Being authorized by a senior officer;
• Giving the accused the option of taking the swab himself or having a trained officer or medical professional do it with minimal force;
• The officer taking the swab should preferably be of the same gender as the accused;
• Conducting the swabbing in a private area;
• Doing it as quickly as possible; and
• Keeping a proper record of the reasons for and the manner in which the swabbing was conducted.
The court ruled against a man from the western province of Alberta whose sexual assault conviction was based on DNA evidence from a penile swab done without a warrant.
Ali Hassan Saeed was accused of sexually assaulting a female acquaintance in 2011. While in custody, he was asked by a police officer to “wipe his own penis with a swab while the officer watched,” according to the Supreme Court.
After his conviction, Ali unsuccessfully raised the issue to the Ontario Court of Appeal.
The Supreme Court ruled that while the swab violated his privacy, it was not done in a humiliating way and did not “fundamentally violate his human dignity.”
However, Justice Rosalie Abella dissented, saying a warrant was necessary and the evidence from the swab should have been thrown out.
“The deliberate failure to consider a warrant in the absence of exigent circumstances is, at its best, careless; ignoring the legal possibility that under Canadian law the police were not even entitled to take a penile swab, is fatal,” she wrote.
With files from Reuters.
In a case that raises questions about the professional obligations of an articling employer, a law student is suing Legal Aid Ontario and the Law Society of Upper Canada after being terminated two weeks into his term.
|Andrew Sudano says, in his experience, employers will stick it out with their articling students, even if problems arise.|
He claims the law society, too, was negligent in allowing the breach to occur.
Polanski’s lawsuit relies entirely on a provision within the Lawyer Licensing Policies that states “a Candidate or principal may terminate articles where problems arise between the candidate and the principal that cannot be resolved to the satisfaction of both the candidate and the principal.”
According to Polanski, Scharfe violated her professional duties by failing to specify “unresolvable issues.” Unfortunately for him, the statement of claim lacked any information about reasons for the termination.
Ontario Superior Court Justice Edward Morgan, reviewing a motion to strike the claims for lack of cause, seems utterly bewildered by the dearth of useful information.
“I do not know what happened to abort the Plaintiff’s articles,” writes Morgan in his decision. “One can read and re-read the rather brief Statement of Claim, but nothing will reveal why the Plaintiff was fired.
“To make a short story long, the pleading does not disclose what led to the unfortunate situation in which the Plaintiff now finds himself and what, if anything, he did to deserve having his career cut short at such an early stage. Nor does it reveal why his employer, LAO, dismissed him, what steps Ms. Scharfe as articling principal took or did not take culminating in the termination of his articles, or what LSUC as regulator did or did not do in response to this situation, etc.”
Morgan starts by striking out the claim against the law society. He suggests that Polanski has misunderstood the role of the law society as a professional regulator, and not a service administrator that can be held to account for failing to carry out its mandate.
In a clever analogy, Morgan says that “LSUC no more administers an ‘articling program’ or provides a ‘service’ for licensees than Canada Revenue Agency administers a ‘taxation program’ or provides a ‘service’ for taxpayers. That is simply not the function of the regulatory body.”
Even if LSUC could be considered a service provider, Morgan writes, the law society has a statutory immunity from these claims, which can only be bypassed by a claim of gross negligence.
Morgan then goes on to strike the claim against Scharfe, although he suggests that it’s at least arguable that an articling principal has obligations to the student. He has given the articling student, by definition inexperienced, 30 days to amend his claim to resolve certain defects.
For example, the claim is directed against his supervisor but not LAO — a fatal flaw given that Scharfe herself was only an employee and not the “directing mind” of the organization. Regardless of the merit, Scharfe personally cannot be held responsible for the organization’s decisions.
More importantly, the judge insists any amended statement of claim contain actual information about an instance of negligence or malicious intent.
“Ms. Scharfe’s breach of duty is asserted as a bald fact,” writes Morgan, “with nothing further to indicate what she did to allegedly fail to fulfill her professional duties or to fall below the requisite standard of care.”
Family lawyer Andrew Sudano, at Shawyer Family Law in Toronto, has been on both sides of the issue in recent years. Called in 2012, he articled with his current firm, and then just this year acted as articling principal for the first time.
Sudano says that he feels for the plaintiff: “When we interview with the students, they are, generally speaking, very vulnerable, because they have a lot of debt and they don’t know what they want and they don’t know what to expect.”
While there simply isn’t enough information in this case to speculate as to what might have caused the termination, Sudano says, in his experience, employers will stick it out with their articling students, even if problems arise.
“You’re making such a commitment to that person,” he says. “And this person is going to become a lawyer in their own right, and we may be working together for 30 or 40 years, so it’s important you look at things in the long term and try to not alienate too many people.”
The reality, however, is that some articling students, regardless of their grades or educational credentials, may not be the right “fit” for an organization, he says — a problem that could constitute an “unresolvable issue.”
Practically speaking, Sudano suggests employers and articling students draft an employment contract with clear expectations.
“It’s always good, particularly for students, to put it in writing,” he says. “What are the expectations? What am I explicitly required to do, so this way there’s no mystery and they’ll at least have a better sense of what they’re getting into.”
Counsel for both defendants declined comment pending a revised statement of claim. The plaintiff could not be reached in time for this article.
The Law Society of British Columbia has fined a Smithers criminal lawyer $6,000 for challenging his client to a physical fight and later sending that client’s confidential information to Crown counsel.
|‘The respondent’s incivility is worthy of rebuke,’ notes an LSBC discipline panel in fining a lawyer for picking a fight with his client.|
“Upon hearing this derogatory remark, the respondent turned and walked back toward the client. He stood very close to the client, and although he does not recall the exact words he used, the respondent admits he used words that challenged the client to a physical fight,” said the law society’s panel.
“The respondent admits his voice was raised and his tone abrasive and unpleasant. The respondent had a briefcase in each hand when he challenged the client to a fight. They then went their separate ways.”
The client had been charged with assaulting his brother, uttering threats, and assaulting a peace officer. According to an agreed statement of facts, McCarthy and his client got into an argument because the client had not retained a civil lawyer to deal with his civil dispute with his brother as McCarthy had advised.
“The respondent suggested that the client could have, and should have obtained some employment, which would have provided him with funds to retain a civil lawyer to handle the civil dispute,” the ruling said.
McCarthy had also told the client he would withdraw as his counsel.
The lawyer presented the law society’s panel with 10 letters of reference that spoke to his character and integrity. The panel acknowledged McCarthy’s remorse and his understanding of why challenging his client to a fight was inappropriate conduct. It also acknowledged he had no prior discipline record and didn’t benefit from this particular infraction.
“However, the respondent’s incivility is worthy of rebuke,” the panel said. “As his counsel stated, ‘we are supposed to rise above it and typically do.’ In this case the respondent did not rise above it. His incivility to the client was disrespectful, embarrassing and negatively reflects on the legal profession as a whole.”
After the courthouse incident, the client sent McCarthy a fax requesting the lawyer return all materials he received from the RCMP, Crown counsel, or himself in his case. The client said the package could either be mailed to him or left with the courthouse registrar.
Instead, McCarthy forwarded the package to Crown counsel. He told the law society it had been a rush decision to do so and he didn’t turn his mind to the fact that there were notes on some of the documents, hand-written by the client, which may be subject to solicitor-client privilege.
“Although it did not, the respondent’s breach of solicitor-client confidentiality had the potential to seriously prejudice the client in his criminal proceedings,” the panel said.
Terence La Liberté, McCarthy’s lawyer, says his client fessed up to his errors from the get-go.
“He fully accepted his responsibility from the outset. There was never an issue about what he did — it was a question of how to resolve it,” says La Liberté.
The penalty for breach of confidential client information ranges from fines to suspension. Fines for this infraction could be anywhere between $2,500 and $7,500, the panel said, while fines for incivility cases typically range from $1,000 to $3,000. McCarthy proposed he pay $6,000 in addition to $1,236 in costs, a deal the discipline committee accepted.
Woman found dead at Ontario military base residence, Canadian Press
Christian doctors challenge Ontario’s assisted-death referral requirement, The Globe and Mail
NRA opposes measure to ban terrorists from buying guns, The Guardian
- B.C. benchers use recent retreat to build stronger ties with aboriginal community
The recent Law Society of British Columbia benchers’ retreat in Penticton was used to build stronger ties with the indigenous community and gain a broader awareness of the issues underlying the Truth and Reconciliation Commission’s call to action and its 94 recommendations.
|First Nations lawyer Ardith Walkem says the bencher retreat had a positive and ‘different feeling at the start.’|
There are, for example, a disproportionate number of aboriginal children now in government care in Canada and a disproportionate number of native men and women filling our jails. Not to mention the numbers of missing women and affected families because of domestic violence.
Bluntly speaking: Can the legal community bring them home?
LSBC president David Crossin acknowledges that the justice system fell far short of protecting an earlier generation of aboriginal men and women and the children forced into residential schools, many of whom now lie in unmarked or unknown graves.
“The justice system really fails the indigenous population, particularly as it relates to the residential school protocol that was put in place. The legacy of those schools is horrible,” says Crossin.
It is the legacy that the justice system now deals with. In the fall of 2015, the LSBC and its benchers adopted a position to embrace the TRC report recommendations.
“The LSBC felt it was one of the most important justice issues of our lifetime,” says Crossin.
The Penticton retreat was a forum for delving deeper into key issues such as indigenous children in custody, criminalization of aboriginal people and their incarceration, and domestic violence.
It also highlighted what many have already known about Canada’s justice system.
“The justice system does not fit with [native] culture and we have to address that. We can’t ignore it,” he says.
“This is not something that will take weeks or months but rather, years,” says Crossin, who is also a member of a Federation of Law Societies of Canada committee formed to address the call to action recommendations.
Crossin quotes TRC chairman Justice Murray Sinclair, who when speaking of the report, said: “We have described for you a mountain. We have shown you a path to the top. We call upon you to do the climbing.”
The Penticton forum did not focus on the socio-economic and political problems surrounding the aboriginal Canadians, which are complex, but more on how to climb the slope.
Crossin says: “It really relates to how the LSBC will lead the legal profession on this path and on this road to reconciliation.”
He says there needs to be more public dialogue on the issues.
“It is a challenge to appreciate how to best heal these relationships. It is our task and our desire to start that process. It starts with personal relationships. It starts by sitting there and looking people in the eye and speaking the truth to one another and going forward. I truly believe we must begin this and that it is a process. It is not going to happen overnight that we come to a collaborative plan with the aboriginal community going forward.”
Crossin adds: “We will be working with the Aboriginal community to formulate a specific concrete plan of action and going forward.”
While the Penticton forum drew in mainly aboriginal representatives from the legal community, Crossin says there is a need for feedback on a broader level.
“The justice system is not just the domain of the lawyers and judges,” he says. “Our mandate is to look after the public interest and that includes thousands within the Indigenous community.”
Ardith Walkem, a First Nations lawyer with Cedar & Sage Law Corp., says an important aspect of the forum was “the different feeling at the start” as those attending expressed a curiosity and openness to explore issues.
“There was a willing to discuss issues and ask the legal profession to respond to them,” she says, as the members looked both “inward as well as outward.”
“The TRC said the law in the past had played a role in the colonization of the Indigenous people,” says Walkem. That role should be examined in the context of how the law is formed and acted upon in society, not just by the law societies but by all Canadians.
Resolving the issues in the Indigenous community will require action on many different fronts, albeit social, political, or legal. “But it is important that the Indigenous people drive it,” she says, adding the Indigenous people want “nothing about us, without us.”
The retreat, which drew in benchers and guests from Nova Scotia, Manitoba, and representatives from other law societies, was more of a discovery process for individuals participating, says bencher Dan Smith, who commented as a First Nations member. Smith, who has worked for government, says they are slow to change.
“There are often systemic and attitudinal barriers that prevent change,” he says. “The system to date requires a change and initiating change within government is very difficult.”
Smith says there is a need for “recognition of being inclusive” in Canadian society. That need translates into native voices breaking through societal barriers and to “be included in the development of policy and regulation. . . .”
Walkem calls this inclusion challenge “one of the greatest human rights questions of our time.”
And, for the legal community, the questions may all simply render down to that - protecting human rights and freedoms, the underpinning of the legal community’s past failure to protect another generation of Indigenous people. That failure now looms as an opportunity to bring the current generation of aboriginal people home on their own terms and definition.
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