Legal Feeds Blog
Lawyers donned wacky, colourful wigs at the Law Society of Upper Canada yesterday all in the name of access to justice. It was part of the Flip Your Wig for Justice initiative, a quirky campaign with a serious purpose: raising awareness about the lack of access to justice in Ontario and bringing all parts of the justice system together to help solve it.
“We’re thrilled. We are overwhelmed by the staggering level of support and enthusiasm there’s been for the campaign this year,” says Nikki Gershbain, who is one of the organizers and the national director of Pro Bono Students Canada.
No one institution can solve the access to justice problem in Ontario, Gershbain also says, adding there’s a need for “an organizing mind.” The profession is recognizing this need, according to Gershbain, who cites the law society’s access to justice initiative, known as TAG, as an example of that recognition. TAG creates a forum for the legal and justice sectors to foster teamwork on the access to justice front.
Law Times and Canadian Lawyer are proud to be the media sponsors of Flip Your Wig. Read more about the efforts law firms and other partners are involved in the FYW digital magazine.
Woman who provided illegal buttock enhancement injections to be sentenced, Canadian Press
Calgary bank employee charged with committing identity theft and fraud, Canadian Press
Quebec judge refuses to hear woman's case because she wouldn't remove hijab, Canadian Press
U.S. military court at Guantanamo Bay assesses military influence, Reuters
Teen pleads guilty to conspiring to support Islamic State militants, Reuters
Swedish mobile telecom company Ericsson is suing Apple for patent infringement, Reuters
Pakistani militants on trial for murder of foreign climbers escape prison, Reuters
|Mike Taylor says N.S.’s legal aid system is already so stretched it may need more resources just to produce the reports being suggested.|
The recommendations broadly demand accountability reports from all government agencies, going as far as to suggest if agencies won’t comply voluntarily, an expansion of the Finance Act to mandate such reports may be warranted.
With respect to the Nova Scotia Legal Aid Commission, the auditor general is recommending the creation of annual business plans, with quantified goals and deadlines. Outcomes from the plan would then be measured against a separate accountability report.
“The Department of Justice should require that the Nova Scotia Legal Aid Commission prepare an annual business plan,” the auditor general’s report states. “The business plan should include goals for the upcoming year and targets to achieve these goals. The Department should require the Commission’s annual report reflect progress toward achieving these goals.”
While legal aid is not statutorily required to provide an official business plan, it has in the past issued what it calls a “strategic business plan” that provides a general outlook without hard targets or deadlines. The auditor general says that’s not adequate:
“There are statements [in the strategic business plan] associated with each area of focus, but only one statement has a stated target. . . . The report also includes testimonials regarding the high quality of services delivered during the year. . . . If such methods are used in the future to gather this information, the full statistics of number of respondents and range of satisfied to dissatisfied clients should be noted.”
Mike Taylor, a litigator at Pressé Masson in Bedford, N.S., and past president of the Nova Scotia Criminal Lawyers Association (and a former legal aid lawyer himself), says it’s a shame that legal aid was one of the agencies targeted in the auditor general’s reports. The recommendations, he says, may strike some legal aid workers as “insulting.”
“I would expect that, once all of the answers are provided, they’re going to see that there is no fat to trim,” says Taylor. “Legal Aid has done amazing work with the money that’s been provided over the years, and they’ve cut wherever they could.”
Indeed, Taylor says the province’s legal aid system is stretched so thin already, it may need additional resources just to produce the accountability reports being suggested.
“I know that when we’re talking about cutting expenses and trying to save money, it may be counterintuitive to say that we need more money to produce reports so we can save money,” he says. “But I expect that the burden of creating a business plan will be something that requires a significant amount of work. So hopefully additional resources will be provided to allow them to do that.”
As for the subtle reference to an expansion of the Finance Act to mandate business plans and accountability reports, Taylor calls it “a nice little threat. . . . It tells me that it’s probably going to come, one way or another. Either do it, or we’ll legislate.”
Military police arrest member of Armed Forces over allegations of inappropriate comments posted online, Canadian Press
Appeal panel ruling ends long-running trade dispute between Saskatchewan and Quebec, Canadian Press
Montreal to withdraw charges against demonstrators accused of violating protest law, Canadian Press
Patients sue Olympus Corp. maker of devices used while infected with 'superbug', Reuters
Driver of truck hit by commuter train to appear in court, Reuters
European court says military deserter needs evidence of involvement in war crimes to seek asylum, Reuters
Egyptian policemen in custody over allegations of killing a lawyer, Reuters
“The sentencing judge did not err in finding the sentence proportional to the gravity of the offence,” said the three-judge panel in its decision in R v. Wesslen, released yesterday.
The Crown was seeking a term of 12 to 18 months in jail to be imposed against Allen Wesslen, following his conviction for aggravated assault and assault with a weapon.
The 90-day sentence and two years probation was an appropriate sentence, given all the circumstances, says Jillian Williamson, who represented Wesslen at the Court of Appeal.
“A lengthy period of incarceration is not always the answer,” says Williamson, a lawyer at Der Burgis in Calgary.
Sentencing must address the twin goals of rehabilitation and of protecting society as the Supreme Court of Canada has said, she notes.
The appeal court heard that Wesslen attended a house party in Calgary in November 2012 and had consumed a substantial amount of alcohol.
His ex-girlfriend was at the party and after opening the door to a room in the house, he saw her in bed with another man. Wesslen started to close the door, but after hearing what he thought was laughter or a “snarky comment,” he went back inside and grabbed a plastic CD stand. Wesslen hit the man on the head and struck his former girlfriend when she tried to intervene.
The man in the bed had to undergo several surgeries and a plate was later inserted into his skull. He was left with nerve damage and the court heard it is estimated that it will take at least five years to fully recover from his injury.
Wesslen pleaded guilty at an early stage and was classified as a low risk to re-offend. Provincial Court Judge John Bascom listed other mitigating factors such as the fact that the assault was spontaneous and Wesslen was not armed with a dangerous weapon, such as a broken bottle or knife.
The “provocative scene” that he found his ex-girlfriend in, and Wesslen’s belief he was being laughed at, caused him to “snap” and feel “heartbroken,” Bascom concluded.
The Court of Appeal stated the trial judge properly applied the principles of sentencing. It described the assault as “spontaneous” and carried out with a weapon that was only a “weapon of opportunity.”
The Crown’s argument that the domestic violence context of the assault was not properly considered, was rejected by the appeal court panel of Justices Ronald Berger, Patricia Rowbotham, and Brian O’Ferrall.
“In this case there was not evidence that the respondent and his former girlfriend were in a domestic relationship,” said the panel.
The ex-girlfriend suffered minor injuries in the assault. The Court of Appeal said the trial judge was correct in not spending much time on this part of the offence.
“That assault was part of the assault upon the complainant as it occurred when she chose to come to his defence,” the panel stated.
The terms of probation included an order for counseling and a 10 p.m. curfew for the first 12 months
Two people charged in death of Loretta Saunders due in court for pre-trial hearing, Canadian Press
Former sports catering CEO pleads guilty to animal cruelty charges, Canadian Press
Montreal police investigating spray-painting of swastikas on cars as hate crime, Canadian Press
Lawyers representing Bill Cosby plan to ask defamation lawsuit be dropped, Reuters
Georgia to execute woman for first time in 70 years, Reuters
Allegations suggest Japan's education minister may have received illegal funds, Reuters
Chinese court sentences writer to prison after he criticizes propaganda chief, Reuters
|Lawyer Kristine Robidoux says SNC Lavalin Group shouldn’t be shocked the RCMP hit the company and some of its units with corruption charges.|
A statement from the RCMP said it had charged SNC-Lavalin, SNC-Lavalin Construction Inc., and SNC-Lavalin International Inc. with offering $47.7 million in bribes to Libyan officials between 2001 and 2011.
It also charged the three companies with defrauding Libya of $129.8 million over the same time period.
SNC said the charges were without merit and that it would vigorously defend itself and plead not guilty.
“The charges stem from the same alleged activities of former employees from over three years ago in Libya, which are publicly known, and that the company has co-operated on with authorities since then,” said SNC chief executive Robert Card in a statement.
SNC’s former chief executive, Pierre Duhaime, resigned in 2012 following the discovery of $56 million in missing funds and was later arrested. He was among several executives accused of fraud and other criminal offences in a scandal that stretched from Montreal to Tripoli.
The company said if charges are appropriate, they should be applied against the individuals in question and not the company.
“I’ve been very interested to see, in the coverage to date, that there seems to be some degree of surprise that SNC corporately was charged and there have been some writings that have started to stir the debate over whether or not corporate charges are appropriate in these circumstances or not,” says Kristine Robidoux, a partner with Gowling Lafleur Henderson LLP in Calgary.
Robidoux was the lawyer who represented Griffiths Energy International in 2013 when the company was fined $10.35 million on a corruption charge for bribing the ambassador for Chad.
That company did its own investigation and came forward with a voluntary disclosure, all factors that led to an outcome of a fine that was five times the amount of the original bribe.
So what could be the potential fine be against SNC? There is no maximum described in the Criminal Code and the closest precedent is the Griffiths case.
“They had the model reaction of voluntary disclosure and ended up with a fine that was a multiple of five of the bribe. Apply that multiple to the $48 million SNC has alleged to have paid in one country and you see the potential,” says Robidoux.
The Criminal Code provides that criminal liability is attributed to the company for the actions of a senior officer if that senior officer acted at least in part to benefit the organization.
“While I have no doubt that SNC will mount a rigorous defence to this, I find the statement that the charges are wholly without merit to be a bit of a difficult one for them to make,” says Robidoux. “A senior representative of the company has already admitted to engaging in the wrongdoing at least in part to benefit the corporation.”
Last August, former SNC-Lavalin executive Riadh Ben Aissa signed a deal with prosecutors in Switzerland on charges of money laundering, fraud, and corruption.
“There may be an excellent triable issue such as Riadh Ben Aissa may not satisfy the definition of senior officer in the Criminal Code or he did not act even in part to benefit the organization,” says Robidoux.
“If either are accepted by the court, then criminal liability is not attributed to the company and they are not guilty, but the term senior officer is very broadly defined.”
The definition includes someone who has an important role in the establishment of the company’s policies or someone responsible for managing an important aspect of the organization’s activities. In past cases, individuals with titles such as vice president, country manager, sales manager, and regional sales manager have satisfied that definition.
“I think from a legal perspective there is a very tough road ahead for SNC,” says Robidoux. “From a philosophical and policy perspective is where I think the argument gets really interesting. Essentially, they are saying they have paid enough of a price.”
Robidoux says she views the ethics and compliance program put in place by SNC since the scandal first broke as being “gold standard,” but that doesn’t mean it should evade corporate charges.
“Any organization that is caught having engaged in this kind of activity we should expect they would take remediation seriously. Since they have done that, should it be a reason to back off on charging the corporation? That’s where the interesting policy discussion comes into place.”
Retired judge to review appeal of B.C. police officer charged with professional misconduct, Canadian Press
Woman acquitted of human trafficking charges suing RCMP, Canadian Press
Alberta government challenges lawsuit filed by province's former chief medical officer, Canadian Press
Court halts execution of murderer after petition claims wrongful conviction, Reuters
Lawmakers attempt to increase penalties for possessing date-rape drugs, Reuters
Men convicted of attempting to join al Qaeda and planning attacks in Afghanistan sentenced to prison, Reuters
MI-5 officers testifying in court to be portrayed with blank faces in courtroom art, Reuters
|An appeal panel has upheld the exoneration of two Torys LLP lawyers in relation to transactions involving the Hollinger group of companies.|
He continued: “We agree with the law society that it is inappropriate to make a general distinction between legal and commercial interests as the hearing panel did. Whether there is a serious or substantial risk of an adverse effect on duties to the client or former client depends on the context, the particular retainer and the work done for both parties. We reject the suggestion that commercial lawyers merely ‘document’ an agreement and that in doing so they can always avoid any conflict between clients or former clients.”
The comments deal with conflict of interest allegations against Torys’ Darren Sukonick and former partner Elizabeth DeMerchant, both of whom were key lawyers on the sale of Hollinger newspaper assets in the early 2000s and who led the firm’s Hollinger work.
As the appeal panel explained, at issue was a related-party transaction involving a dominant figure such as an executive or a controlling shareholder who stands to profit in a different manner from public shareholders, who in this case held shares of Hollinger Inc. Hollinger International Inc., and Hollinger Canadian Newspapers LP. In general, related-party transactions require the approval of independent directors, Wright noted.
Some of the allegations related to the infamous non-competition payments paid by CanWest Global Communications Corp. as part of the deal to buy Hollinger assets. While the deal didn’t spell out the allocation of the $80 million CanWest was to pay, all of it ended up going to Hollinger executives such as Conrad Black as well as the private company, Ravelston Corp. Ltd., in which he held 60 per cent of the shares. Hollinger and Hollinger International received no payment from their participation in the non-competition agreements.
The allegations against Sukonick and DeMerchant included acting while in a conflict of interest by advising on whether the non-competition payments could be non-taxable; providing advice on how to characterize the payments in the books of the related companies; and participating in the preparation of a memorandum to the audit committee after the closing that addressed the fact the initial approval had been improper and recommended approving them again.
On the tax issue, Sukonick at one point suggested it might be possible to split the $80 million for internal purposes to include both the non-competition amount and a break fee to Ravelston.
The law society, Wright noted, argued “that advice on the tax treatment affected the commercial arrangements between the parties on the related party transactions because the tax treatment of the non-compete payments would have affected the bargaining between the parties on the amounts to be attributed to the different entities.”
Wright, however, rejected that allegation, finding the lawyers weren’t in a solicitor-client relationship with the executives.
“The tax advice did not create a solicitor-client relationship between the executives and Torys. The lawyers were representing HI and HII in the transaction,” he wrote.
“There is no evidence or finding that either the lawyers or the executives intended that the lawyers agreed to render legal services for them as individuals, nor that the individuals reasonably concluded they had done so in all the circumstances. They could not have expected that Torys would keep their information confidential or that it would have an equivalent duty to look out for their personal interests as for those of HII. Rather, all of the circumstances suggested that they were giving information about the tax treatment of the payments as part of their retainer to act for HI and HII,” he added.
Wright also noted lawyers may give advice to a company that affects it and its executives as long as they make it clear they’re doing so on behalf of the company rather than the individuals.
In fact, Wright found the two lawyers had taken a strong stance against one of the executives, Jack Boultbee, in regards to a plan to offset debt among the companies that the law society alleged could have resulted in Hollinger International having to pay it twice.
While the law society argued the lawyers acted against Hollinger International in drafting a promissory note, the appeal panel found otherwise and suggested they had, in fact, advised against undertaking the debt offset unilaterally.
“On this transaction, the lawyers strongly stood up when an executive attempted to take actions that impaired the interests of the public shareholders of HII,” wrote Wright.
“It was largely through their insistence that the offset proposal was placed before the HII audit committee, as was required. They held firm against the resistance of Mr. Boultbee and kept a proper focus on the interests of the companies and their shareholders as opposed to the desires of those instructing them.”
While the appeal panel has dismissed the law society’s appeal, still at issue is the LSUC’s appeal and the lawyers’ cross-appeal of the hearing panel’s order of partial costs against the regulator. Last year, the hearing panel ordered $250,000 in costs to each lawyer despite their submission for $4 million.
Jason Moyse and Aron Solomon put together an "unconference" looking at New Law and the Legal Lean movement. The LegalLean conference was a small but sold-out affair held at the MaRS Discovery District in Toronto.
As the organizers noted, technology is "leveling the playing field on access to knowledge and subject domain expertise, much of what lawyers actually "do" has come under scrutiny" and so far, "the bar for innovation in law has been painfully low but the shift is happening."
"The mashup of startup and Six Sigma concepts are part of the #NewLaw 'revolution' and therefore an appreciation of both the theoretical and practical aspects of 'lean' models is therefore a must."
It was a tech savvy group and the story of the event is best told through the tweets of the participants.
Subscribe to Legal Feeds
Gail J. Cohen