Legal Feeds Blog
The Supreme Court of Canada has a busy week ahead of it, with seven hearings relating to real estate, medical malpractice, and evidence at murder trials. In addition, the court will hear two court martial appeals, one of which challenges the National Defence Act for violating the defendant’s right to prosecutorial independence.
April 25 – Federal – R. v. Cawthorne
Criminal law: Ordinary Seaman Cawthorne was convicted by a court martial of possession of child pornography. The porn was found on Cawthorne’s lost cellphone by someone trying to identify the owner of the phone. The respondent admitted to possessing the images, but claimed to not realize they were of underage children. The respondent successfully argued on appeal that the evidence was inadmissible. One judge was in dissent. The SCC will review the admissibility of such evidence at court martial.
Read the Court Martial Appeal Court decision
April 25 – Federal – R. v. Gagnon
Charter of Rights: Warrant Officer André Gagnon and Corp. A.J.R. Thibault are members of the armed forces who were charged with the sexual assault of a subordinate officer. They were acquitted at trial. When the complainant, former corporal Stephanie Raymond sought an appeal, the respondents filed a motion to dismiss on grounds that the National Defence Act infringes on the defendant’s right to prosecutorial independence. The Court Martial Appeal Court found the relevant provisions invalid but suspended the ruling until June 21, 2016. The SCC will review whether the Charter infringement is reasonable.
Read the Court Martial Appeal Court decision
Canadian soldier acquitted of sexually assaulting subordinate, The Globe and Mail
April 26 – British Columbia – Musqueam Indian Band v. Board of Review
Aboriginal law: The Shaughnessy Golf and Country Club operates its golf course on land belonging to the Musqueam Indian Band, for which it pays property taxes. The Musqueam Indian Band is appealing a decision by its board of review that set taxes based on the value of the land as a golf course. The band argues that the land is much more valuable given its potential for residential development. On appeal, the court reasoned that Shaughnessy’s use of the land is restricted and therefore the value of the land must also be limited.
Read the British Columbia Court of Appeal decision
Related news story:
Musqueam Indian Band golf course case heads to Supreme Court of Canada, CBC
April 27 – Ontario – Royal Bank v. Trang
Privacy law: Phat and Phuong Trang own a property that makes up part of a judgment awarded to Royal Bank of Canada. The sheriff, however, refuses to sell the property without a mortgage discharge statement. However, the mortgage provider, Bank of Nova Scotia, says it cannot produce the statement without consent due to provisions within the Personal Information and Electronic Documents Act. RBC is challenging the use of PIPEDA to block the sale of a property that is the subject of a court award.
Read the Ontario appeal court decision
April 28 – Quebec – Benhaim v. St-Germain
Medical malpractice: The applicants Albert Benhaim and Michael O’Donovan are physicians who lost a medical malpractice suit against Cathie St-Germain, a woman who argued they neglected to spot a nodule appearing in the X-rays of her spouse, who then died of cancer. The Superior Court held that the physicians were at fault in this case but that causation had not been proved. The appeal court set aside the decision.
Read the Quebec appeal court decision
Family of non-smoker awarded $1.7 million, Law in Quebec
April 29 – Saskatchewan – Shaoulle v. R.
Criminal law: John Thomas Shaoulle was convicted of first-degree murder by a judge sitting without a jury. The evidence against him was circumstantial but the judge found it sufficient to convict. The judgment was upheld on appeal, with one judge in dissent. The SCC will review the weight of circumstantial evidence in such matters.
Read the Saskatchewan Court of Appeal decision
Related news stories:
Prince Albert murder case may go to Supreme Court, Prince Albert Now
Wollaston Lake man found guilty of first-degree murder, Prince Albert Herald
April 29 – Quebec – Laliberté v. R.
Criminal law: Pierre-Olivier Laliberté was convicted of first-degree murder and attempted murder. His DNA was found under the fingernails of the surviving victim. At trial, the judge denied attempts to bring into evidence statements by the victim that she did not know the assailant. The judge also instructed the jury that they could disregard the appellant’s alibi if they felt it was fabricated. The conviction was upheld on appeal, with one dissent.
Read the Quebec appeal court decision
Pierre-Olivier Laliberté perd sa cause en Cour d’appel, Radio-Canada
La Cour suprême entendra Pierre-Olivier Laliberté, Radio-Canada
The life of part-time employees may be getting even more precarious based on “on-call” practices Canadian retailer DavidsTea is using in certain U.S. states.
|Employment lawyers in Canada say nothing prohibits on-call practices here; it is a a sign of these precarious employment times. (Photo: Shutterstock)|
Schneiderman and officials from eight other U.S. jurisdictions notified the retailers — including Coach, Forever 21, and Payless ShoeSource — that he wants more information about their use of a scheduling practice that asks employees to call in before a shift to find out if they are needed to work.
If a worker isn’t required to work, they aren’t paid for the day, even though the person was required to be available for work that day and forgo other opportunities.
Many provinces in Canada have legislation that mandates a minimum period of pay at minimum wage when an employee shows up and gets sent home early (in Ontario, for example, it is three hours). In New York, the requirement is to pay for a minimum of four hours.
The approach taken by some of the U.S. retailers is more like having a roster of casual workers where the worker is not actually required to report in to the premises before his or her shift is cancelled.
Schneiderman said on-call shifts are not fair to workers because unpredictable shifts make it hard for employees to arrange childcare and otherwise conduct their lives. Employers who received similar communication from the state last year ended the use of on-call shifts.
“On-call shifts are unfair to workers who must keep the day free, arrange for childcare, and give up the chance to get another job or attend a class — often all for nothing,” said Schneiderman in a press release. ”On-call shifts are not a business necessity, as we see from the many retailers that no longer use this unjust method of scheduling work hours.”
Employment lawyers in Canada say there is nothing prohibiting that kind of practice here — it is merely a sign of the times in the realm of precarious employment.
“The potential conflict would arise if an employee was terminated for not being available when called,” says Nasha Nijhawan, of Nijhawan McMillan Barristers in Halifax.
“Unfortunately, in the context of a minimum wage/part-time employment relationship, all the employer would have to do in that case is pay out any applicable statutory minimum notice period to escape liability,” says Nijhawan.
It would still probably be “worth it” to the employer from a cost of doing business perspective.
“This is a reflection of the power dynamic of minimum-wage employers in a depressed job market — they don’t need to offer stability where their employees don’t have options for other jobs,” she says.
“On-demand” scheduling may be a sign of a difficult labour market, but it is not unlawful in Ontario, says Danny Kastner, of Kastner Law in Toronto.
Kastner says it is a feature of the new precarious employment landscape.
In Ontario, the ongoing provincial Changing Workplaces Review is considering how the Labour Relations Act, 1995 and Employment Standards Act, 2000 could be amended to best protect workers while supporting businesses in a changing economy. The goal is to tailor employment law to more specifically address the emerging issues that arise when non-traditional models aren’t used.
“If it were going on here, it’s the kind of issue the province would be looking at because it highlights how traditional labour and employment laws are out of date when it comes to new models of employment,” says Kastner.
Kastner points out that those who work for temp agencies get what is effectively “on-call work,” but he adds it can be “hugely problematic” in terms of the havoc it can create in the lives of employees.
“Some employees might prefer this approach and prefer it to the 9 to 5, but there is something inherently troubling about the kind of just-in-time supply chain logic that Wal-Mart uses being applied to workers,” says Kastner.
Last year, the New York state attorney general’s office sent letters to 14 major retailers seeking information on on-call shifts. Several recipients indicated they were not using such shifts, while others agreed to stop the practice.
|Senator Mike Duffy leaves the courthouse after being cleared of bribery and fraud charges. (Photo: Chris Wattie/Reuters)|
Duffy, a former television journalist, had faced 31 criminal charges related to roughly $90,000 in expenses he charged after former Conservative Prime Minister Stephen Harper appointed him to the Senate, the upper chamber of Parliament, in late 2008.
The trial started last August, shortly after Harper had launched an election campaign.
The court heard that Harper's chief of staff, Nigel Wright, had pressed Duffy to repay the expenses, even though Wright felt they were most likely legal. Evidence also showed Harper's team had given orders to the Senate, which is supposed to be independent.
Duffy chose to be tried without a jury. In a 308-page ruling, Ontario Court Judge Charles Vaillancourt said he found the senator to be a credible witness and strongly criticized Harper's aides for their behavior.
As the case progressed amid enormous media coverage last year, polls showed the Conservatives starting to lose support. Justin Trudeau's Liberals won a majority in the federal election on Oct. 19.
- Canadian Judicial Council recommends Quebec judge not be removed
One day after the Canadian Judicial Council issued its recommendation to not remove Justice Michel Girouard from the bench — despite a suspicious video of an alleged drug deal — a legal academic is pointing to a glaring lack of independence for judicial misconduct and a possible double standard.
|Allan Hutchinson suggests that the process for dealing with judicial misconduct is broken.|
Yesterday, in the case of Quebec Superior Court Justice Michel Girouard — who admitted to meeting regularly with a man later convicted of trafficking — the CJC rejected the majority opinion of its own inquiry committee to remove the judge from the bench.
“What is he doing dealing with these people anyway? Whether he bought the cocaine or not?” says Allan Hutchinson, the Osgoode Hall law professor and member of the Canadian Association for Legal Ethics.
“She did nothing illegal, but she ended up getting suspended and then retiring. So there's a bit of a double standard going on there. She ends up off the bench because this whole thing about the woman's sexual activity — well they don't deal well with that well, to put it mildly.”
The Girouard scandal, meanwhile, first surfaced in 2012, when as part of a drug-trafficking investigation, an informant told police he had sold Girouard nearly $100,000 of cocaine in the years leading up to his judicial nomination in September 2010, and that Girouard would sometimes exchange legal services for cocaine.
The investigation produced a closed-circuit video of one alleged transaction, in which Girouard is seen in the backroom of a video store with former client Yvon Lamontagne. The video has no sound, but Girouard is seen handing money to Lamontagne for what appears to be a small packet.
Both Girouard and Lamontagne (who was later convicted and sentenced to 10 years) deny that the transaction involved drugs. Lamontagne testified that he handed him a receipt for a debt repaid; Girouard testified that it was a document related to a tax settlement, and that he regularly met with Lamontagne to get new video releases.
An inquiry committee, comprising two chief justices and a Quebec barrister, was struck to investigate the allegations. The committee reviewed the police evidence and heard testimony from 13 witnesses, including Girouard’s cardiologist and law partner, both of whom stated that they observed no evidence that Girouard had ever exhibited evidence of drug abuse.
In November 2015, the majority of the committee found that, despite a lack of evidence on the balance of probabilities, Girouard should be removed from the bench because his implausible testimony suggested a deception.
The third panelist, Manitoba Chief Justice Richard Chartier, offered a dissenting opinion. He argued that any perceived ambiguities in Girourd’s testimony could be attributed to the passage of time.
Yesterday, the CJC sided with Chartier’s interpretation. In its final report, the council explained its decision to disregard arguments around implausibility, given that they were separate from allegations of drug trafficking and that Girouard had not been given the opportunity to respond to them:
“The Council takes this approach because the judge was not informed that the specific concerns of the majority were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.
“Not only had a great deal of time (about 25 years) passed since the events, thereby weakening the quality of the evidence available, but there was also no evidence confirming the drug trafficker’s allegations. There was, however, evidence to the contrary in the Judge’s denial and the evidence of family, friends and professional colleague.”
Hutchinson, for his part, has no opinion on the evidence against Girouard or the implausibility of his testimony, but he suggests that the process for dealing with judicial misconduct is broken.
“The whole thing doesn’t look good,” he says. “Judges judging judges, right? I understand the need for independence and all that kind of stuff, but it’s not good enough. People will be suspicious that the judges are closing ranks, so they need a better process.”
Ruling expected today on Mike Duffy charges, Canadian Press
- Court decides successful lawyer to receive costs as if counsel for his own firm
If a partner at a law firm successfully represents his own firm, will his costs be evaluated as if he were counsel for the firm or a self-represented litigant?
That was part of the question in a recent cost endorsement by an Ontario Superior Court judge who decided the successful lawyer, James Herbert of Chappell Bushell Stewart LLP, will receive costs as if he were counsel for his own law firm.
Justice Heather McGee ordered costs against Peter Cozzi, another Toronto lawyer, after finding that he brought “unnecessary, unfounded and potentially damaging allegations” against Chappell Partners LLP.
Cozzi’s lawyer Steven Benmor had argued that the hourly rate for Herbert, who is a partner at Chappell Bushell Stewart, should be assessed as if he were a self-represented litigant and not counsel for the law firm. The court rejected that argument.
“The applicant did not bring this motion against Mr. Herbert in his personal capacity. Mr. Cozzi served a motion on CP per Rule 14 (3) seeking an order to remove or extinguish a collateral mortgage secured by CP as security for fees during an active retainer. CP answered through counsel — the counsel who had carriage of the file,” McGee said.
Benmor says Herbert appeared in court not as counsel for Chappell Partners but as a member of it. “In this case, the judge basically said that even though the party was Chappell Bushell Stewart and even though James Herbert appeared not as the lawyer for Chappell Bushell but as a member of the firm, he should still get his costs paid based on what he would have charged the firm if he were the lawyer to the firm,” Benmor says.
“In effect, James is the firm and the firm is James. And more importantly, there is no bill from James to the firm,” Benmor adds.
How the value of litigants’ time in court is assessed is important as the majority of people in the family law system now appear on their own behalves, Benmor says.
“If I am a neurosurgeon and I make half a million dollars a year, do I get different costs than if I work at Tim Hortons and take an hour or two hours off work to go to family court?” he asks.
Herbert says he cannot comment on the case as it’s before the courts. Lee Akazaki, professional responsibility lawyer at Gilbertson Davis LLP, says what the court did in this case in fact makes sense.
“If the lawyer is representing his own law firm in court, that’s time he could [have spent] representing a paying client in court,” Akazaki says, adding there’s also precedent for compensating in-house counsel for their time in court even though they are on salary at the companies for which they work.
In this case, Cozzi is ordered to pay $5,518.50 for the one-hour motion, an amount McGee said is “reasonable” for a motion of such complexity.
Hebert and Chappell Partners LLP had represented Cozzi’s former common-law spouse in a family law matter. Cozzi sought an order to remove a collateral mortgage secured by Chappell Partners as security for fees during an active retainer with his former common-law spouse after suggesting the scheme contained a couple of “badges of fraud.”
“Unnecessary, unfounded and potentially damaging allegations were made against CP. None were demonstrated,” McGee said. “CP did nothing more nefarious than to earnestly and prudently provide legal services to Mr. Cozzi’s — a lawyer himself — former spouse.”
Toronto police arrest suspect in sexual assault, Canadian Press
Man dead, another seriously injured in Halifax shooting, Canadian Press
Officer hit by SUV during investigation in Richmond Hill, Canadian Press
The Barreau du Québec has added its voice to a growing chorus of legal groups calling for more public funding and radical reforms to help reduce what they say are ridiculously long court delays that are hindering access to and making a public mockery of the province’s court system, particularly in regards to criminal justice.
|Claudia Prémont notes delays and budget cuts are ‘bad news for the administration of justice’ in Quebec.|
She goes on to list a series of complaints, ranging from delays of up to three years for criminal trials to be heard in Montreal at the Superior Court level, and two years in Quebec Court.
The barreau said those delays, together with a recent $5-million cut in the budget of Quebec’s Directeur des poursuites criminelles et pénales office “spells bad news for the administration of justice.”
The Quebec bar is notably calling on the Liberal provincial government to provide the necessary resources (i.e. a big cheque) to Justice Minister Stéphanie Vallée that will permit her “to remedy this problematic.”
The barreau’s public sortie comes just days after the former head of the Superior Court of Quebec, Justice François Rolland, made headlines for slamming the trial delays in the province’s court system in a Senate hearing in Ottawa.
The former chief justice notably decried the fact that criminal cases by jury are currently being scheduled for 2019.
“Delays are bad for the accused, extremely bad for the victims, and extremely bad for Canadian society and the credibility of our judiciary,” Rolland told the committee, which is examining questions related to court delays and their effects on penal justice across the country.
According to Rolland, changes have to be made to make delays more reasonable like they were before 2009, the year Quebec started invoking mega trials to deal with biker gangs.
“If we don’t do anything we are going to hit a wall, and once that happens we can’t back up,” he said.
Rolland added that when he joined the bench in 2004, jury trials were always set within a year, usually seven to nine months.
“At the time I’m saying this,” he said, “you can’t get a [Superior Court of Quebec] date for a trial set in Montreal before 2017. For 2018, there are a few dates available, and they’re already booking dates in 2019. The situation is similar in Quebec City.”
In addition to the mega trials, he said the rising use of electronic communication of evidence, increased resources in police investigations, and even the increase in Crown attorney hirings have created a massive uptake in demand that the static numbers of judges and courtrooms can’t handle or accommodate.
A few weeks ago, another judge, Quebec Court Judge René De La Sablonnière, also made headlines for a pilot project he’s instigated that aims to reduce delays in criminal court cases.
Calling delays “the cancer of the judicial system,” De la Sablonnière pointed to a sexual touching case he threw out in March, nearly four years after charges were laid.
“These delays erode witnesses’ memories of events, unfairly prolong preventative detention of accuseds, and undermine the credibility and legitimacy of the institution,” the judge told Quebec City’s Le Soleil.
He gave the interview to publicize a pilot project that he and Crown prosecutor Sabin Ouellet have teamed up on.
The unique Quebec-first project aims to increase the number of negotiated settlements in cases by four per cent a year.
Currently, 93 per cent of the 6,600 criminal cases that are opened every year in Quebec are settled without a trial.
In roughly half of those cases, guilty pleas are entered after several delays.
The judge says he and Ouellet plan to steal a page from British Columbia’s approach, in which accused are offered the most lenient punishments possible in exchange for a guilty plea, and given 120 days to consider it.
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