Joseph Arvay represented PHS Community Services Society in the case.

Canada’s top court has ruled that Vancouver’s supervised injection site for drug addicts should be exempt from federal drug laws.

In a unanimous decision, the Supreme Court of Canada dismissed the appeal in Canada (Attorney General) v. PHS Community Services Society and ordered the minister of health to grant an immediate exemption to the safe injection facility.

Insite has been in operation since 2003, offering a supervised environment for drug users without the fear of prosecution. In 2008, the federal government refused to extend Insite’s exemption from criminal laws outlined in the Controlled Drugs and Substances Act. The SCC ruled that the minister of health’s refusal to extend the exemption was in violation of the Charter of Rights and Freedoms.

Joseph Arvay, who represented PHS Community Services Society, expects the ruling will pave the way for other supervised injection sites in Canada.

“In so far as there is a similar need in other parts of Canada and in so far as the supervised injection sites are going to be operated in the same excellent way that Insite has been operated, there’s no reason for the government to deny an exemption,” he tells Legal Feeds.

In the decision, Chief Justice Beverley McLachlin wrote: “The notion of a supervised injection facility, although politically contentious in North America, has precedent elsewhere. Supervised injection sites have been used with success to address health issues associated with injection drug use in other parts of the world. . . .These sites are evidence that health authorities are increasingly recognizing that health care for injection drug users cannot amount to a stark choice between abstinence and forgoing health services.”

The Attorney General of Canada was hoping that the top court would overturn the British Columbia Court of Appeal’s ruling on the case, which upheld the trial judge’s decision that Insite should be exempt from federal drug laws.

Most importantly, says Arvay, the ruling means that lives will be saved.

McLachlin agreed. “Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation,” she wrote.

“The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.”

Canada

Harper gov't cracks down on digital piracy in Canada, The Globe and Mail

Deliberating jury returns with 3 requests in Ariana Simpson trial, The Vancouver Province

Supreme Court set for landmark ruling on Vancouver safe injection site, Winnipeg Free Press

United States

U.S. court vacates "Don't ask don't tell" ruling on gays in military, Reuters

U.S. judge dismisses Toyota bellwether case for lack of jurisdiction, Reuters

International

UN court acquits two former Rwandan ministers of genocide, Reuters

Prosecutor says Amanda Knox killed her roommate 'for no reason', Reuters

A Quebec judge will not have his day in court after the Supreme Court of Canada dismissed his application for leave to appeal last week in a case where he was accused of judicial misconduct.

On June 20, 2007, Claude Provost, a Court of Quebec judge, was presiding over a preliminary inquiry in a case involving assault charges against a police officer. During the hearing, Provost said he didn’t believe the testimony he had previously heard from the complainants. One of the complainants, Roland Plante, stood up and addressed the judge without being asked and thanked him in what the judge considered a sarcastic tone.

Provost had Plante taken into custody but did not cite him for contempt and released him at the end of the hearing. Plante filed a complaint with the Conseil de la magistrature du Québec and an inquiry committee was established. The committee found that the judicial code of ethics had been violated and therefore allowed Plante’s application.

The Conseil reprimanded the judge based on the committee’s findings. Provost filed a motion for judicial review at the Quebec Superior Court alleging his judicial independence had been breached. The Superior Court dismissed the motion for judicial review and on Oct. 21, 2009, the Quebec Court of Appeal upheld that decision.

François Grondin, a partner at Borden Ladner Gervais LLP, represented Provost. He says the case questioned the boundaries of power that judges have in the courtroom. “I will readily admit that sometimes the boundaries are difficult to identify clearly, but we felt that this was a case where [Provost] was acting in accordance with recognized legal powers and which powers are designed exactly to deal with those exceptional situations,” he tells Legal Feeds.

“I thought it would have been a good occasion for the Supreme Court to sort of clarify . . . which boundaries are not clear and not agreed by all the provincial judicial councils,” he adds.

According to Grondin, several judges he spoke to about the issue asked: “If we cannot discipline our courts, who will?”

He proposes a happy medium. “I’m certainly not suggesting that judicial independence can protect judges from doing anything [or] from saying whatever they feel like.”

However, “there’s not one model judge for all judges,” he says. “You also have to respect their individuality and differences in personality and respect their discretion and judgment.”

Canada

Cdn lawyers exempt from money-laundering laws, CBC News

Ont. farmer convicted for distributing unpasteurized milk, The Globe and Mail

N.S. condom saboteur found guilty of sex assault in 2nd trial, The Chronicle-Herald

United States

More psychiatric care for Ariz. shooting suspect: judge, Reuters

Gov't bailout program paid suspicious legal fees: watchdog, Reuters

International

German court upholds ban on online gambling, Reuters

Australian newspaper found guilty of breaching race laws, Reuters

The Supreme Court of Canada will not hear an appeal from a Quebec company that sued the lawyers involved in a tax dispute over gaming machines.

From 1985-1992, Revenu Québec imposed sales tax on the use of gaming machines, such as ones used to play poker.

In 1989, 2731-9359 Québec Inc. was established to receive mandates from the companies distributing these gaming machines. It argued it should be reimbursed for the taxes paid, claiming about $15-20 million, at which time it retained the services of the defendants.

This was the first time the Quebec government was being challenged for taxing the gaming machines and as a result had to change the laws.

There was a series of administrative challenges to the assessments for 1985-89 and a test case. After the Quebec Court of Appeal ruled in favour of the test case in 1995, new claims were filed for 1991-92.
 
Due to disappointing results and financial losses, in 1998 Québec Inc. and others decided to sue the lawyers who were involved in the case for about $13 million, alleging professional misconduct.

Pierre Cantin of Lavery, de Billy, who represented the defendant lawyers, was surprised when the applicants filed for leave to appeal to the Supreme Court since the defendants had won the arguments at the Quebec Superior Court and Quebec Court of Appeal.

He says Québec Inc. and others obtained some reimbursement from the provincial government, but “the government plays hard ball in a case like that so they decided because of that the lawyers should be responsible. The courts said, ‘No way.’”

Canada

Judges should get tougher on sex offenders who use Internet to lure kids: Ont. court, The Globe and Mail

Accused B.C. kidnapper to return to Alberta court in December, The Globe and Mail

Alberta girl who murdered family granted release into community, The Vancouver Sun

United States

Judge asked to order more drugs for Jared Loughner, Reuters

Florida to execute man on Wednesday for 1978 police killing, Reuters

International

High Court judge refuses to let brain-damaged woman die, Reuters

Australia newspaper and columnist broke race laws: court, Reuters

Michael Bruni says he wishes more lawyers would get involved with Hockey Canada at the higher levels of the organization.

Lawyer Michael Bruni is the new chairman of Hockey Canada.

The new chairman of Hockey Canada, which represents minor hockey programs and Canada’s national hockey teams, says the largely volunteer organization faces significant issues in the future and could benefit from those who better understand governance and the importance of following through on due diligence.

“We don’t want a lot of lawyers, but we need more lawyers,” says Bruni. “In my history I’ve run mini law firms, done the in-house role, and know that lawyers can provide a real value-add.”

Bruni, who was general counsel at the Alberta Energy and Utilities board, stepped down for the special assignment with the organization when the province was developing a new regulatory regime. He is now a special adviser to the Alberta Energy and Utilities board, in addition to doing his two-year term with Hockey Canada, which is not a paid position (he receives an honorarium).

He says Hockey Canada is very conscious of the potential liability that could come down the road from players taking severe hits during games.

“We see that head hits could evolve into dementia, depression, a quality of life that is very different and we’re seeing it at a very young age. I prompted our people in the insurance end of the business that we have to keep our heads up and exercise due diligence for that reason,” he says.

In particular, Bruni says he is watching the Steve Moore-Todd Bertuzzi case which could have implications for the sport at all levels.

“I’ve said to our people that we’re going to lose our regulatory autonomy to either the politicians or the judicial system if we don’t exercise due diligence. I’ve really tried to impart that,” he says. “Our game is becoming much more complicated from an administrative perspective. I said years ago that hockey is a multi-billion dollar business run like a ma and pa operation and it really is in a lot of ways.”

Bruni points out that there are several leaders in the NHL with legal backgrounds now — Brian Burke, Peter DeBoer, and Pat Quinn to name a few.

“One of our [Hockey Canada] officers is a lawyer from Montreal and when I discuss things he gets it right away,” says Bruni. “When you get to our level you don’t need to understand the game that much but the administrative processes and how to deal with people is important. It’s always great to understand the implications legally of what might happen.”

From a governance perspective, Bruni says it’s about understanding what the role of a policy-driven board is; understanding what a board member’s role is — and to not make sure they don’t get caught up in the operations of the organization.

“Many volunteers are parents and they go through the local community, then the provincial body, and then some arrive at the national scene and don’t always see the big picture, whereas lawyers can look at the big picture of governance more quickly,” he says.

“We’re looking at the governance of the organization from the policy/board perspective because our board is just too large,” he says. “We’re somewhere in the number of 30 people and it’s too large to conduct business efficiently. We are a multi-million-dollar organization and even though it’s not-for profit we’ve been fairly successful in our events.”

Canada

CBC to battle information commissioner in court, The Globe and Mail

N.S. court approves $25M compensation for immigrants, The Chronicle-Herald

Evidence unchallenged as man found guilty of woman's murder, The Vancouver Sun

United States

Law firm sued for not returning $5.5M to client, Reuters

Idaho woman wins court order against abortion law, Reuters

International

Ukraine ex-PM's trial resumes after break, Reuters

Zimbabwe to investigate foreign firms over ownership law, Reuters

An Ontario Superior Court judge made some interesting remarks on the proportionality rule, lawyers’ fees, and the courts’ stone-age approach to technology last week.

A ruling in a battle over the College Square shopping centre has produced some pointed remarks about the justice system from the judge.

Ruling in Harris v. Leikin Group, Justice David Brown considered the cost motion of one of the defendants, First Capital Realty Inc., following its successful bid for summary judgment. The case centred on a bid process for College Square in Ottawa. The plaintiffs alleged the bid process was a sham and took several parties, including First Capital, to court.

Brown ruled there was no basis for the claim against First Capital, which sought $437,000 in costs, including $333,000 in fees and $62,000 in disbursements. The plaintiffs responded with several criticisms:

1. First Capital wasn’t entitled to costs for participating in four unsuccessful summary judgment motions by the other defendants.

2. The hourly rates claimed by First Capital’s lawyers were too high.

3. Counsel for First Capital spent too much time on certain steps.

4. First Capital’s costs would violate the principle of proportionality because they’d amount to more than 50 per cent of the substantial indemnity costs of $709,000 incurred by the plaintiffs in defending all five summary judgment motions.

But perhaps the most interesting aspect of Brown’s decision is his analysis of First Capital’s claim for $30,000 in disbursements for electronic document production and database management.

While the plaintiffs didn’t oppose recovery, Brown carefully considered the fees in light of the court’s direction that lawyers follow the Sedona Canada principles for e-discovery. He accepted them but then engaged in a fairly harsh diatribe about the court’s seemingly hypocritical stance in ordering parties to use the Sedona principles in relation to e-discovery when they themselves can’t accept electronic documents.

“At conference after conference, judges and masters of this court exhort counsel to educate themselves in the Sedona Canada principles. Yet, can we as a court accept the work product derived from parties nicely organizing and exchanging their litigation-related documents in electronic format? We cannot. As I have stated in previous decisions, the Superior Court of Justice of Ontario labours in the Dark Ages of document management.”

Brown then went on to note a “most dangerous disconnect” that exists “between what we as a court are telling litigants to do in managing their electronic litigation documents and what we as a court can accept from those who litigate before us.”

The situation, he noted, is unacceptable. “It is now apparent that those who manage this court’s document intake system do not intend to introduce e-filing in the foreseeable future. . . . In an age when those who use our courts create electronically the documents by which they conduct their business and personal affairs, for a court such as ours to continue in its inability to communicate with its users by electronic means risks creating a serious gap between the public and their courts, thereby endangering the legitimacy of our court system.”

Interestingly, in a previous ruling in the same case in August, Brown set down clear rules for managing the Leikin Group file. “I see no reason why the trial should take more than one week,” he wrote in a decision that, among other things, set stringent time limits for cross-examination of witnesses.

In the heart of the Harris ruling, and addressing the first criticism mentioned above, Brown ruled First Capital’s counsel had some basis for attending the other defendants’ summary judgment motions but said the extent to which it did so was “slightly excessive.” Accordingly, he reduced the costs by almost $11,000.

On the question of the legal fees, he accepted that some of them were too high given the lawyers’ years of call. In one case, he noted that one lawyer identified as S. Perri, a 2005 call, billed at an actual rate of between $385 and $540 per hour. First Capital sought a substantial indemnity rate of $300 an hour and a partial indemnity rate of $200 per hour.

“I think a partial indemnity rate of $200/hour for a six-year call in a downtown Toronto firm is too high, especially in this case where it is only $80/hour less than the senior lawyer who has twice the expertise,” Brown wrote, instead reducing the amount to $175 per hour.

On the third question, Brown rejected the plaintiffs’ submissions that counsel for First Capital spent too much time on certain steps. In addition, he rejected the plaintiffs’ argument about proportionality, noting that after his reductions, the total recoverable substantial indemnity fees would amount to $282,000 or about 45 per cent of the substantial indemnity fees the plaintiffs claimed they had incurred.

“The plaintiffs seem to suggest that where five separate motions for summary judgment are brought against it, an unsuccessful plaintiff should not be responsible for more than one-fifth of its own substantial indemnity costs to any one successful party,” Brown wrote. “I see no merit to that claim. That is not the way litigation works. A plaintiff must reasonably expect that the greater the number of defendants it brings into a lawsuit, the more likely it will be that the resulting costs of all defendants will exceed significantly the costs incurred by the plaintiff.”

It’s clear that on at least this case, then, Brown is taking strong stances.

Canada

N.S. court approves $2.3M payout to NewPage mill creditors, The Chronicle-Herald

Alleged gangster Jamie Bacon appeals firearms conviction, The Vancouver Sun

Woman sues Russell Williams, OPP for $7M over sex assault, Toronto Star

United States

States consider judicial elections, Reuters

Government ramps up fight against mafia, Reuters

International

6 charged with terrorism offences in U.K., Reuters

Israeli court awards family $430K for Palestinian girl's death, The Guardian