Legal Feeds Blog
Quebec to appeal injunction against assisted-dying law, Canadian Press
Sentencing arguments to begin in Guy Turcotte case, Canadian Press
Jury resumes deliberations in Dennis Oland trial, Canadian Press
A 16-year-old boy, the youngest on trial for terrorism offences in Canada, has been found guilty by a Quebec youth court judge of committing a robbery in association with a terrorist organization and planning to leave Canada to join a jihadist group abroad.
His conviction for trying to leave Canada to participate in terrorist activities abroad is the first under federal anti-terror laws passed in 2013.
"It is a first, it is a new infraction and it is the first conviction," Crown Marie-Eve Moore told reporters.
The teen, who was not identified because he is a minor, admitted to robbing a convenience store in 2014 when he was 15, but pleaded not guilty to trying to use the stolen money to travel to Syria.
Youth Court Judge Dominique Wilhelmy said evidence showed the teen’s radicalization began when he was 13.
“This sad story is that of a young boy submerged by the messages of violence, of vengeance and of war issued by the Islamic State,” Wilhelmy said.
The boy's father, who emigrated from Algeria with his family in 2003, reported his own son to police in October 2014 after discovering a bag hidden behind their home containing a mask, knife and cash.
Montreal police alerted the RCMP when they found he had become radicalized.
A meeting to discuss the boy's sentencing will be held on Jan. 5.
The Ontario Court of Appeal has set the stage for a major ruling on bankruptcy protection after striking down a lower-court decision that sought contempt proceedings against a defendant who had already declared bankruptcy.
|Michael Jaeger says federal provisions under the BIA offer broad protections from creditors as well as unnecessary court proceedings.|
The case stems from a $105,000 award for which the defendant was liable to the plaintiff. A couple of years later, the plaintiff, who had still not been paid, sought examination of the defendant’s finances in court.
The defendant failed to show up for the first examination and then declared bankruptcy one day before the second examination. The plaintiff filed a motion for contempt, and months later the judge issued his decision that, regardless of the bankruptcy, the contempt motion should proceed.
In his decision, Superior Court Justice John Harper wrote:
“I am of the view that the motion for contempt before me is one that goes directly to the issue of the court’s ability to enforce its judgments. The order I made was an order that called for the defendants to do certain things. Whether he did them or not cannot be caught up in his choice of the timing of his filing for bankruptcy.”
Defence counsel appealed the motion, insisting that the Bankruptcy and Insolvency Act provides for an automatic and all-encompassing stay of proceedings, and that only compelling reasons, such as allegations of fraud, can be used to lift the stay. Here, no such allegations were presented.
Plaintiff counsel argued that the decision to set a date for a proceeding was not a “final” decision but rather an interlocutory one, and therefore could not be appealed. Defence counsel, meanwhile, insisted that his client’s bankruptcy was being ignored and that he was being denied a substantive defence.
The OCA last week sorted things out, siding with the defendant. In its decision, court writes:
“ . . . the only question before Harper J. — and it was a question of law — was whether Houghton could still be liable for contempt though he had declared bankruptcy. Harper J. decided that question. . . . Houghton has potentially been deprived of a right or defence that would have ended the proceedings against him. For this reason, Harper J.’s judgment is a final order.”
Having determined that the appeal can proceed, the court will now turn its attention to the merits of the appeal, and whether contempt proceedings can commence against a defendant who has already declared bankruptcy.
Defence counsel Michael Jaeger says the Superior Court judge may have been annoyed at his client’s refusal to obey court orders, but federal provisions under the BIA offer broad protections not only from creditors, but from all unnecessary court proceedings.
“Section 69 [of the BIA] says no creditor has any remedy against an insolvent person or shall commence or continue any action, execution or other proceeding,” says Jaeger. “I’m saying that’s really wide, and you can drive a bus through it, and it applies to contempt proceedings. It’s any remedy.”
While Jaeger says he can understand the judge’s desire to have orders obeyed, he argues that the authority of the court in civil matters stems from the pursuit of a financial award, which bankruptcy has now taken completely off the table.
“He’s got no assets,” says Jaeger. “So the practicalities of being able to ask him questions . . . I ask, to what end? If they were asking questions because he defrauded their client, that might be a different thing, for which you would need leave [to lift the stay]. But there’s no allegation of fraud here.
Woman stabbed in Toronto financial district dies in hospital, Canadian Press
Judge orders WhatsApp blocked in Brazil for 2 days, Associated Press
When Asad Ansari was sentenced in October 2010, he had “no reason to appeal it,” says his lawyer John Norris.
|John Norris says he is seeing more clients looking for help as they learn about the possibility of losing their citizenship due to convictions and sentences.|
But in 2014, nearly four years after his sentencing, the federal government sent a letter to Ansari notifying him his citizenship may be revoked in accordance with the newly passed Bill C-24. The controversial bill, passed under the government of Stephen Harper, gives the minister of immigration powers to strip Canadian citizenship from dual citizens convicted of terrorism and sentenced to at least five years in prison.
Ansari had long missed the deadline to appeal his sentence, but yesterday, the Ontario Court of Appeal extended that deadline due to the retroactivity of the citizenship law, which Ansari was not aware at the time of his sentencing.
“. . . The collateral consequences — loss of Canadian citizenship — are of such magnitude as to render it unjust to deprive the applicant of the opportunity to seek a variation of the sentence to remove himself from the reach of the amendment,” the unanimous bench said, adding “the interests of justice favour the extension” of the appeal window.
“To refuse the order, a substantial injustice may occur, wrought by legislation not in force or within the reasonable contemplation of any of the participants in the trial process, but made retrospective by an enactment passed years later,” said the court.
Ansari was convicted of participating in the activities of a terrorist group. He was found to have gone camping with members of the Toronto 18 near Washago, Ont., and participating in marching and simulated combat exercises, some of which were videotaped. Later, he helped produce a video for the leaders of the group to use for recruitment purposes.
Ansari already tried, unsuccessfully, to appeal his conviction.
“If his conviction had been overturned, then that would [have been] the end of his exposure to potential citizenship revocation. But the act also requires that you’ve received a sentence of five years or more for that conviction,” says Norris. “So even if that conviction stands, if he only deserved a sentence of less than five years, that would also get him out from under the provisions.”
Norris says his practice is seeing more and more cases of clients looking for legal help as they learn about previously unknown immigration and citizenship consequences of their convictions and sentences.
“This ruling isn’t going to encourage people to do one thing or another; it’s these other changes [in the law] that are giving people reason to come to court,” he says. “And now this ruling gives a very nice framework for analyzing whether they should get an extension or not.”
Norris says his client is also challenging the constitutionality of Bill C-24 at the Federal Court. It’s unclear what would happen to that challenge, given the Liberals’ election promise to repeal the law.
“If that happens, then of course there would be no reason to pursue the constitutional challenge but until that happens, that challenge remains before the Federal Court,” he says.
Two men killed in car crash near Barrie, Ont., Canadian Press
Woman killed in car crash in Toronto, Canadian Press
The Ontario Divisional Court has dismissed three applications for judicial review from a University of Windsor law graduate and ordered her to pay costs of $17,500 for matters that began over a decade ago.
Dating back to April 2005, Anica Visic had filed multiple human rights complaints against the University of Windsor, two of her former articling principals, and the Law Society of Upper Canada.
Last Thursday, the Divisional Court heard and dismissed three applications for judicial review in which Visic sought to set aside decisions of the Human Rights Tribunal including Visic v. HRTO and Elia Associates P.C., Visic v. HRTO and University of Windsor, and Visic v. HRTO and Law Society of Upper Canada.
Visic had previously been declared a vexatious litigant in 2012 after her fourth failed attempt to take action against the University of Windsor for including her failed first year of law school on her official transcript.
Visic made her first complaint against the university after she failed her first year of law school in 2000 due to a medical condition. She suffered from myofascial pain syndrome, which causes shoulder, arm, neck, and upper-body muscle spasms, and limited her ability to write for extended periods of time. However, she did not identify herself as having a disability. Visic was readmitted to law school on medical grounds in 2002 and graduated in 2005.
Despite her repeated efforts, the university would not remove her failed first-year marks from her transcript. Visic argued this was discrimination as she would be forced to reveal her past disability to employers requesting her transcript.
Her complaint was ultimately rejected along with a similar complaint against the university, which was dismissed by the Human Rights Tribunal of Ontario in 2010.
In July 2007, Visic started articling for Elia Associates P.C. and when her articling principal Patricia Elia found out about her dispute with the University of Windsor, she requested a full transcript. On Nov. 28, 2007, Elia Associates gave Visic written notice of dismissal effective Dec. 14, 2007.
Visic claimed that violated her human rights because she was forced to reveal her disability and therefore her termination from the firm was discriminatory.
In June 2011, the HRTO dismissed all of Visic’s allegations against the law firm. Elia said the litigation process cost the firm nearly $100,000.
In Visic v. Elia Associates P.C., Visic was ordered Dec. 10 to pay Elia Associates $10,000 in costs.
“In these circumstances, it is neither fair nor reasonable that Ms. Visic should not pay costs to Elia and Associates for this proceeding. The only real issue is whether those costs should be on a substantial indemnity basis. I have not found Ms. Visic to be impecunious. However, her financial liability as a result of these many unsuccessful legal proceedings will be considerable, and I do accept that she is a person of limited financial means.”
In the case against the HRTO and University of Windsor, the adjudicator had dismissed Visic’s complaint of discrimination against the university because she had also commenced a civil action against the school about the same matter and based on the fact her complaint was filed more than a year after the incident the complaint related to.
In Visic v. HRTO and University of Windsor the court ordered costs to the university of $7,500. The university had requested costs on a substantial indemnity of $13,000.
Writing for the panel, Justice Anne Malloy stated:
“I do not doubt that Ms. Visic honestly believes in the righteousness of her cause. What she fails to understand is that just because she believes herself to be right, does not mean she actually is right. Her persistent efforts to pursue the University on this issue, despite numerous rulings against her, are simply not reasonable. I see no basis from excusing her from the normal rule that the costs follow the event. She has been completely unsuccessful and is liable to the University for costs.
In Visic v. HRTO and Law Society of Upper Canada the LSUC and HRTO did not seek costs.
Man accused of killing Tina Fontaine to appear in Winnipeg court, Canadian Press
The Law Society of British Columbia wants all its member lawyers to read the Truth and Reconciliation Commission of Canada report, says LSBC president Ken Walker.
|The LSBC hopes to have a plan in place by early 2016.|
Integral to the report is the role police and lawyers played in responding to complaints of abuse of children in residential care, but it also argues for greater intervention to reduce over-represented numbers of youth in custody and in the foster care system, the victimization of indigenous people, a national inquiry into missing and murdered indigenous women, and the over-represented numbers of First Nations people in prisons.
“The benchers unanimously agreed in October that addressing the challenges of the report was one of the most important and critical obligations facing the country and legal system today,” says Walker. “Two of [the recommendations — 27 and 28 —speak specifically about the legal profession, but we realize the need to go beyond those recommendations.”
Recommendation 27 calls for the Federation of Law Societies of Canada to ensure lawyers receive cultural competency training (history, treaties, aboriginal rights, indigenous law, and the UN Declaration of Rights for Indigenous Peoples) plus skills training in intercultural competency, conflict resolution, human rights, and anti-racism. Recommendation 28 calls for all law schools to bring forward courses addressing all of these competencies.
Walker says he is hopeful the LSBC benchers will have an action plan ready early in 2016. “We will be seeking the viewpoint of the aboriginal community,” he says.
Walker says he has been in contact with deans at all three B.C. law schools and was pleased to learn they all either have existing courses on aboriginal law and culture or are in the process of providing them. “So, I can say that the legal education community is taking the report seriously,” says Walker.
The LSBC has already existing programs in place encouraging aboriginal lawyers. It offers a province-wide mentorship program for aboriginal law students and articling students using either aboriginal or non-aboriginal lawyers. It also awards a $12,000 scholarship annually to an aboriginal graduate student in the field of law. The goal is to support the development of indigenous leaders and role models in the legal academic community, in addition to retaining aboriginal lawyers in the profession. The latest winner was Darcy Lindberg, a graduate student in law at the University of Victoria.
The report, in recommendation 50, calls for the federal government to fund indigenous law institutions to promote the understanding, development, and use of indigenous law and access to justice in accordance with the unique cultures of aboriginal people in Canada.
The role of traditional justice is slowly becoming part of the mainstream. Community courts throughout the province have made use of First Nations elders in their sentencing, while Gladue rights encourage judges to take a restorative justice approach to sentencing if the individual is native. These initiatives are a departure from the traditional legal system that has been taught for generations in law schools, Walker says, but they provide answers to some of the TRC report’s concerns.
“We will be looking at what we can learn from all this and how we can move forward,” he says. Ultimately, the decision will lie with the federal government on what changes it makes to the judicial system.
Oland murder trial to hear defence closing arguments today, Canadian Press
Grenada police charge man in death of New Brunswick woman, Canadian Press
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