Legal Feeds Blog
Edmonton M&A lawyer Shawna Vogel has been named one of five new global vice chairpersons for Dentons.
|Edmonton M&A lawyer Shawna Vogel has been named one of five new global vice chairpersons for Dentons.|
“It is very exciting; things have come a long way when I reflect on it on,” she says. “There were not that many women partners when I graduated. I think women in our class accounted for 40 per cent so it was a decent percentage but from my graduating class, in terms of transaction lawyers, there is essentially myself and one other classmate still practising who happens to be at Dentons as well.”
While Vogel noted there are a number of women from her graduating class serving on the bench, in government, and in specialized boutique practices, there are not that many still practising in transactions or in top-level management.
“The good news is I see a lot of women becoming partners every year and a lot of women associates so I see a real growth and change since 1984. A lot of the milestones we were trying to break through — I feel like we’ve achieved them,” she says. “There is still a ways to go, but I’m proud of it.”
With more than 30 years of experience, Vogel’s practice is focused on mergers and acquisitions, corporate reorganizations, financing, and international trade. She is also recognized as a leading lawyer in sports law. Based in Edmonton, Vogel is the presiding member of the Dentons Canada Region Board.
Vogel says she thinks women are staying longer in private practice and efforts to consider women for opportunities and improve processes have helped encourage more women to stay in the practice of law.
“One of the problems I’ve come to realize in getting any kind of diversity involved in the upper levels — whether it’s more women or younger people — it’s very much about looking at the process used to fill those positions and if we’re going to improve our diversity it means changing the process.”
Historically in law firms, she says, people have risen into management not by election but through discussions among partners who are influential. Consensus is reached on an informal basis, which has not provided as much opportunity for women.
A few years ago, Dentons put a nominating committee process in place for when there is a management position. Each partner is asked if they are interested and to also suggest who they think might be a good candidate.
“It’s disrupted a traditional process of boards and management replicating itself by confining its discussion of who would be appropriate to just a small group and I think that’s made a big difference,” says Vogel.
In her duties on the global board, Vogel will be travelling every two months to the regions Dentons operates in including Australia, which she visited in January, and China next month.
The global vice-chairperson position is for a one-year term.
Trial begins for man accused of killing Alberta couple, Canadian Press
Erin Andrews awarded US$55 million in lawsuit over nude video, Canadian Press
Harper Lee's will sealed by Alabama judge, Canadian Press
If a drunk person falls asleep in a parked vehicle, is it impaired driving? It might depend on who you ask, and which province you’re in when the incident happens.
|A recent Ontario decision found a drunk man sleeping in a running car was not guilty of any criminal offences. (Photo: Shutterstock)|
The ruling last week in the Ontario Court of Justice, R. v. Toyota, should help lawyers handling impaired driving offences. The decision addresses the risk-of-danger element of care and control of a vehicle in the Criminal Code.
Justice Alan D. Cooper ruled that defendant Ryan Toyota was not guilty of a crime for falling asleep in a parked vehicle outside a housing complex in Burlington, Ont. in February 2015, with the engine running and the exterior lights on. Court heard Toyota was drunk but planned to stay at a friend’s house, and only slept in the vehicle because he was locked out of the home.
The ruling focuses on a section of the Criminal Code in which the presumption of care or control of a vehicle is established. Cooper’s ruling refers to case law established by the Supreme Court of Canada in R. v. Boudreau “that the risk of danger is an essential element of care and control.”
“In the opinion of this court, the cumulative defence evidence has satisfied me on a balance of probabilities that Mr. Toyota had no intention of driving his vehicle home that night. He was sleeping in his car, with the engine on to get heat, only because his homeowner friend had passed out and had locked Mr. Toyota out,” said the ruling.
“The clear plan was for the defendant to spend the night inside that residence so he would not have to drive home. The presumption of care and control has been rebutted.”
According to the case history outlined in ruling, police arrived at the housing complex and found Toyota sleeping in the vehicle, in below-zero temperatures. After the officer opened the car door and smelled alcohol within the vehicle, the officer asked Toyota to step out.
The officer noted Toyota was groggy, and had glassy eyes and slurred speech. Police arrested Toyota and took him to a police station for testing.
Cooper indicates in his ruling that the police gave evidence “the car as parked properly, and there is no evidence that it would be a danger to anyone by virtue of where it was located.”
“It is necessary to consider whether a realistic risk of danger still existed because Mr. Toyota, in his inebriated state, might have changed his mind and driven somewhere, or might have unintentionally set the vehicle in motion,” said the ruling.
Cooper goes on to say “although the defendant’s blood-alcohol readings were 160 and 160 milligrams of alcohol in 100 millimetres of blood, it is my view that once awake, it is very unlikely that he would have changed his mind and driven home. I also find it unlikely he would have unintentionally set his vehicle in motion in his intoxicated condition. To set the car in motion he would have had to put his foot on a brake, push a button, and pull the gear lever back.”
Therefore, Cooper concludes the Crown didn’t prove its case that Toyota presented “a realistic risk of danger in the particular circumstances.”
It’s not the first time cases have emerged on how drunk driving is defined, or prosecuted, under the Criminal Code. Last month, media reported that the Royal Newfoundland Constabulary charged a 33-year-old man with impaired driving and other offences after finding him asleep in his vehicle.
The Edmonton Sun also reported in 2013 on a case where a woman as charged for falling asleep in her vehicle after drinking, and expressed displeasure with Alberta’s impaired driving laws.
He called the approach “Draconian” and said the law “mandates an immediate three-day impoundment of an offender’s vehicle and three-day suspension of his or her licence on first offence. No trial, no appeal, not even a chance to call your lawyer.”
Two Canadians killed in car crash in Dubai: report, Canadian Press
Convicted murderer Dennis Oland back in court to try to win bail, Canadian Press
A Toronto-based tax lawyer disbarred in California for moral turpitude is hoping for a different result after appearing in front of the Law Society of Upper Canada’s disciplinary tribunal to oppose an interlocutory motion to suspend his Ontario licence.
LSUC counsel Leslie Maunder brought the March 2 motion on the grounds there is significant risk to the public if sole practitioner Joel Allan Sumner is allowed to continue to practise during a conduct unbecoming investigation against him for allegedly sending threatening and harassing e-mails and phone calls.
“I think what’s most important is that the prosecutors no longer abuse their power,” says Sumner, who was self-represented at the LSUC hearing.
“I think I got the message to the tribunal about what these guys did to me down in California,” he adds. “They turned the justice system into a racket; obviously I don’t particularly want to get suspended, but I think if I cause a change, it’s worth it.”
Sumner made a motion to the tribunal panel, chaired by Malcolm Mercer with Sophie Martel and Andrew Oliver, to exclude the e-mail evidence against him on the grounds the statements it contained were made as a result of “torture and/or cruel, inhumane or degrading treatment or punishment.”
The motion to exclude evidence was dismissed by the panel and it reserved its decision on the suspension motion.
Sumner was disbarred in California in December 2014 when he failed to participate in the disciplinary proceeding there for sending threatening e-mails.
He was found to have committed moral turpitude after sending intimidating and threatening e-mails to San Bernardino County Chief Deputy District Attorney John Kochis and others about Kochis when he did not appear at the hearing to respond to the allegations.
According to the LSUC factum, Sumner is still facing 27 criminal charges with an outstanding warrant in relation to those emails in California.
“The threats underlying the criminal charges and disbarment occurred prior to the respondent obtaining his license to practise here in Ontario,” the factum states.
It goes on to say Sumner began sending threatening e-mails to Kochis as early as 2011, leading to criminal charges in February 2012 and his disbarment in 2014. He was called to the Ontario bar in January 2012.
Those e-mails include statements like: “When I go to California next I will arrest [sic]. If you resist I will kill you [sic] accordance with the law!!”; “You should die”; “I intend to arrest him and if he resists, I will kill him”; “I authorize the Hells Angels to act as my agent and arrest chief deputy district attorney John P. Kochis. If he resist [sic] the Angels may use all lawful force to secure the prisoner, including lethal force if allowed under the law.”
The factum states in early January of this year the LSUC obtained a phone call recording from the sheriff’s dispatch centre in San Bernardino County “of someone believed to be the respondent” making further explicit threats against Kochis.
The LSUC received another recording from the sheriff’s call centre from February with the caller stating it was Sumner, declaring Kochis under arrest, and “threatening to use all necessary force to effect the arrest, including lethal if lawful.”
Sumner says Kochis conspired to extort him, causing him pain and suffering through abuse of his public office position and leading to his e-mail responses.
“I signed this release involuntarily; he [Kochis] threatened me that if I don’t sign this release he’s going to withhold an official act and oppose my motion,” Sumner says, alleging Kochis sent him threatening e-mails as well.
“He engaged in all the elements of torture as I understand it.”
Sumner argued because the e-mails were sent as a result of his torture, the e-mail evidence should not be allowed.
According to the summary of facts, Sumner had been charged in California in 2007 with battery and vandalism against a roommate. Sumner signed an agreement of compromise, settlement and mutual release in 2010 releasing himself and the roommate from any further claims arising from the 2007 altercation. He was granted a declaration of factual innocence in 2010 after signing the mutual release.
According to the summary, at some point after signing the release, Sumner came to the conclusion that Kochis “knew” the allegations against him were based on lies and he had been coerced into signing the release. Sumner then began to accuse Kochis of criminal offences, including coercion and extortion, and sent e-mails to him or about him to others that eventually lead to his California disbarment.
Sumner argued he was effectively kidnapped by police when wrongfully arrested in 2007 with Kochis engaging in extortion and torture “by insisting on the settlement/release before agreeing to the Deceleration of Factual Innocence.” He says Kochis extorted him when Kochis forced him to sign the release in exchange for not opposing the motion for declaration of innocence.
While the LSUC states Sumner has practised in Toronto without apparent incident or complaint “at the same time, he faces serious criminal charges in California — for which he would be arrested if he returned — has been disbarred and is currently being prosecuted by us for making threats against Mr. Kochis and the prosecutor of the discipline charges in California.”
The additional tape recordings of phone calls secured by the LSUC earlier this winter include similar threats against Kochis.
Sumner also sent an e-mail to LSUC disciplinary counsel Maunder on Feb. 19 stating: “You are taking or withholding an official act for the purposes of comforting or insulating an extortionist who used coercion and crossed the line between public and private beneficiaries. Mr. Kochis is under arrest, if he so much moves an inch, I will consider my life to be in danger and I will pop two shots into the side of his head!”
The LSUC declined to comment as the decision is still under reserve.
Sportscaster Erin Andrews' case may soon be decided by a jury, Canadian Press
- Schmidt considering appeal after Federal Court reaffirms low standard for constitutional review
A former senior Justice Department lawyer who is challenging Ottawa’s constitutional review process says the rise of the Trudeau Liberals will not influence his decision on whether or not to seek an appeal after the Federal Court yesterday dismissed his case.
|‘[I]f your standard is an argument, it’s virtually no standard, in my view,’ says Edgar Schmidt.|
“If the minister were to say, ‘We are going to amend these examination provisions to ensure that in the future more rigorous examinations are conducted’ . . . that would make an appeal sort of unnecessary,” Schmidt tells Legal Feeds.
Schmidt, who is now retired, was suspended without pay in 2012 after launching a court challenge in which he alleged that the government had been ignoring its statutory obligation to report potential constitutional inconsistencies to Parliament when tabling legislation.
Though the current government decided last week to launch a study of how constitutional issues are flagged in Parliament, Justice Minister Jody Wilson-Raybould has yet to commit to a higher standard of review.
Under the Conservative regime, Ottawa was accused of playing politics by passing tough-on-crime legislation that, according to civil servants like Schmidt, had virtually no chance of passing muster with the judiciary. Many of these laws were ultimately struck down by the Supreme Court of Canada.
This exercise in political brinksmanship — daring the judiciary to strike down popular laws — led to years of growing animosity between the executive and judicial branches of government, and it’s one of the key reasons why, according to Schmidt, the constitutional review process should be more meaningful.
“If this truly is the law, that ministers and government are free to act in ways that they themselves believe is unconstitutional, I think that creates a context for unnecessary tension between the branches of the state.”
Schmidt’s arguments, however, were dismissed yesterday at the Federal Court by Justice Simon Noël, who issued a 146-page decision that reaffirmed a low standard for constitutional review and left it to the minister of justice alone to decide whether any “credible argument” can be made in favour of constitutional consistency.
Noël’s decision, moreover, suggests that Parliament intended for a weak standard for constitutional review, and that the minister of justice should not be constrained by the reports of civil servants.
“The Minister of Justice is not Atlas, carrying the world of guaranteed rights on her shoulders,” the decision states. “The legislator aimed to promote consistency with guaranteed rights but did not impose on the Minister of Justice the onerous and most likely impossible responsibility of guaranteeing inconsistency-free legislation.”
Schmidt says he believes the decision is flawed and that Parliament would not have created a review process that could be so easily circumvented by concocting an argument in favour.
“I find it very hard to imagine any law for which you can’t come up with some argument,” he says. “So if your standard is an argument, it’s virtually no standard, in my view.”
In his submissions to the court, Schmidt says he and his counsel drew a parallel with fiduciary duties held by corporate directors and officers — where directors and officers are compelled to serve the interests of the entire organization, regardless of the stake held by any shareholder.
Similarly, he says, public servants must not be forced to serve the interests of government at the expense of the state.
“When I was suspended without pay upon filing this claim, the allegation of the department was that I was acting disloyally. Well, you have to know to whom you were supposed to be loyal before you can conclude whether there is disloyalty, right? And my view is that public servants are state employees.
“Citizens have a right to expect that their government and their Parliament will comply with the most fundamental decision of the Canadian state — that’s the Constitution. They have the right to expect that Parliament and government and ministers will act in ways that they honestly and reasonably believe are consistent with the Constitution.”
Despite the initial impression that Noël’s decision is wrong, Schmidt says he hasn’t decided whether to pursue an appeal.
“I’ll have to consider with counsel whether an appeal is warranted, and whether or not we can stay with that initial impression.”
Judge to meet privately with lawyers on Kalamazoo shootings, Canadian Press
Hulk Hogan privacy case enters second day of jury selection, Canadian Press
Dissidents to flee Thailand over fears of deportation to China, Globe and Mail
- Consistency of tribunal decisions in investor dispute cases needed as area plagued by discrepancies
New provisions under the EU-Canada Comprehensive Economic and Trade Agreement will bring “crucially important” changes to arbitration involving states and foreign investors, a lawyer says.
|Greg Tereposky says the changes will improve the quality of decisions and eliminate bias some arbitrators show to party that appointed them.|
Gregory Tereposky, an international trade and investment lawyer at Borden Ladner Gervais LLP, says this will create much-needed consistency of tribunal decisions in investor dispute cases, an area now plagued by discrepancies. It will also improve the quality of decisions and eliminate the bias some arbitrators show towards the party that’s appointed them, he says.
Traditionally, the investor and the respondent government would appoint one arbitrator each, and a third party would select the third arbitrator.
“You think it shouldn’t happen, but you do have situations where . . . arbitrators can be very biased towards the party that appointed them. And this works both for governments and investors,” he says.
According to Tereposky, it’s also not uncommon to see arbitrators, selected from a global pool, get the law flat out wrong.
“Not all arbitrators are versed to the same level in the law and not all take a similar approach to the law,” he says. “As legal counsel on these cases, it’s very frustrating when arbitrators clearly get the law wrong but you can’t challenge them. The only time you can challenge them is . . . when there is a manifest misuse of power.”
Thanks to additional changes to CETA, lawyers can now challenge the decision of arbitrators through a newly formed appellate body.
“It will create a much more detailed and consistent body of law,” says Tereposky. “When you look at it from a systemic perspective, it’s a very positive thing.”
The changes will make the dispute resolution system work like an international court, according to EU Trade Commissioner Cecilia Malmström.
“I’m delighted with this result,” Malmström said in a press release. “CETA takes on board our new approach on investment and its dispute settlement. By making the system work like an international court, these changes will ensure that citizens can trust it to deliver fair and objective judgments. We can confidently say that we’ve met the expectations of both the member states and the European Parliament.”
Tereposky says a preamble in the updated agreement may be used to provide governments with what he calls “regulatory space.” It says the provisions will protect investors and their investments “without undermining the right of the parties [EU and Canada] to regulate in the public interest within their territories.”
This seemingly innocuous language will have “a very big effect,” says Tereposky.
“These types of provisions have already been interpreted in the [World Trade Organization] context to provide regulatory space for governments to regulate in a way which isn’t sanctioned by agreements,” he adds.
Ezra Levant hearing before Law Society of Alberta today, Canadian Press
Calgary woman carries out doctor-assisted death in B.C., Canadian Press
Subscribe to Legal Feeds
- Jennifer Brown
- Patricia Cancilla
- Gabrielle Giroday
- David Dias
- Yamri Taddese
- Gail J. Cohen
- Mallory Hendry
- Jim Middlemiss
- Karen Lorimer