Legal Feeds Blog
- Crown prosecutors must be proactive to ensure swift justice
In a surprisingly cut-and-dried decision, the Supreme Court of Canada wasted little ink — just 12 paragraphs — in overturning an appeal court decision out of Alberta that ignored the defendant’s right to be tried within a reasonable time.
|‘The lesson for Crown prosecutors is that institutional problems are no excuse for rights violations,’ says Graham Johnson.|
The appeal stems from a bungled prosecution for drug trafficking. The appellant was charged with six other defendants, and Crown prosecutors opted to join the allegations under a single indictment.
That was their first mistake. Logistical problems — but, importantly, not ones caused by the appellant — led to multiple delays, and ultimately only Vassell could be tried.
Throughout the proceedings, the respondent and his counsel proactively sought a speedy resolution, but the trial was rescheduled twice due to adjournments resulting from the unavailability of counsel on specific dates.
Ultimately, the defendant waited three years for a three-day trial. Defence counsel then applied for a stay of the proceedings due to the delay, which was denied. The appeal was also dismissed, with O’Ferrall’s dissent.
Today, the SCC reverses that decision with a ruling that backs the dissent, while criticizing the Crown for its failed prosecution and the lower courts for failing to see what was a clear violation.
“[W]hen a violation is raised, courts must be careful not to miss the forest for the trees. . . . The forest in this case is plain as day. At every opportunity, Mr. Vassell attempted to move his case to trial. But in the end, as O’Ferrall J.A. observed, he ‘waited three years for a three-day trial,’” writes Moldaver.
“Despite Mr. Vassell’s best efforts, his trial became bogged down as a result of a series of events over which he had no control and for which he bore no responsibility. The Crown was required to be more proactive in light of Mr. Vassell’s consistent efforts to obtain a speedy trial . . .”
Graham Johnson, an Edmonton lawyer at Dawson Duckett Shaigec & Garcia, represented the defendant. He says when constitutional challenges of this nature are dismissed, it’s often because trial judges fail to hold Crown prosecutors to account for the institutional failings of the state.
“Any delay that is not clearly the fault of the Crown prosecutors’ office just kind of gets excused,” he says. “You know, they’ll say that the fact that no trial time was available for a year is not the Crown’s fault. The fact that co-counsel are not available for a certain amount of time is not the Crown’s fault.
“But what I tried to argue before the Supreme Court is that any delay that is not the fault of the accused is the Crown’s fault, meaning the state. It’s the job of the state to get an accused to trial. The Crown, meaning the state, is the one responsible for putting resources or lack thereof in our courts. And accordingly they own the consequences of institutional delay.”
Johnson says he was surprised by the trial judge’s decision to deny his client’s application for a stay, but he was even more surprised that the appeal court denied the application.
“They were just so incredibly dismissive,” he says. “If you look at the majority judgment, it’s maybe half the length of the dissent. There isn’t much of a legal analysis at all. They were just incredibly dismissive of the whole issue, so it was nice that the Supreme Court took some time to write something on this in reversing the Alberta Court of Appeal.”
While the Supreme Court’s decision reinforces the right to swift justice, the lesson for Crown prosecutors, says Graham, is that institutional problems are no excuse for rights violations.
“They have a proactive responsibility to make sure the thing gets moved along, and if that means they have to sever [the indictment] to protect someone’s s. 11(b) rights, then that’s what they have to do.”
Motorcyclist killed in head-on collision in Welland, Ont., Canadian Press
Once again, Trinity Western University has received a firm “no” from the courts in its bid to have its proposed law school accredited by the Law Society of Upper Canada.
|Trinity Western University will seek leave to appeal to the Supreme Court of Canada.|
To be granted admission to the school, every TWU student must sign the covenant, which requires that among other things, members refrain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”
“My conclusion is a simple one: the part of TWU’s Community Covenant in issue in this appeal is deeply discriminatory to the LGBTQ community, and it hurts,” said appeal court Justice James MacPherson, who wrote on the court’s behalf.
The case, which started with the law society’s 28-21 vote to reject the law school’s accreditation in 2014, pitted religious freedom against equality rights. Today, the Court of Appeal found the LSUC’s decision not to accredit the law school was a breach of religious freedoms, but a justifiable one because the law society exercised a balancing act to reach its decision.
“Taking account of the extent of the impact on TWU’s freedom of religion and LSUC’s mandate to act in the public interest, the decision to not accredit TWU represents a reasonable balance between TWU’s 2(a) right under the Charter and the LSUC’s statutory objectives,” wrote MacPherson.
“While TWU may find it more difficult to operate its law school absent accreditation by LSUC, the LSUC’s decision does not prevent it from doing so,” the judge added. “Instead, the decision denies a public benefit, which the LSUC has been entrusted with bestowing, based on concerns that are entirely in line with the LSUC’s pursuit of its statutory objective.”
In a press release, Trinity Western University said it plans to take its appeal to the Supreme Court of Canada.
“The court correctly found an infringement of TWU’s rights,” said Earl Phillips, the executive director of TWU’s proposed school of law. “However, we are most disappointed that the court found the infringement to be justifiable. That finding is a serious limitation to freedom of conscience and religion under the Charter of Rights and Freedoms.”
TWU spokeswoman Amy Robertson called the decision “a loss for all Canadians.”
“Freedom of conscience and religion is the first of the fundamental freedoms mentioned in the Charter,” said Robertson. “It is deeply compromised by this decision, and everyone in Canada, religious or not, should be concerned.”
The LSUC said in a statement: “We are pleased that the court recognized the law society’s role in preventing and removing discriminatory barriers to access to the legal profession and, as the court put it, 'the desirable goal of promoting a diverse profession.'
"As the court said, 'one of the LSUC statutory objectives is to ensure the quality of those who practice law in Ontario.' Quality is based on merit, and merit excludes discriminatory classifications,” said the LSUC.
Paul Jonathan Saguil, counsel for Out on Bay Street and OUTLaws, interverners in the case, argued in favour of rejecting the appeal.
“We’re obviously delighted with the decision,” he says.
The appeal court released its decision unusually fast, just a few weeks after the case was heard on June 6-7. Saguil says there’s reason to suspect the timing was intentionally aligned with Pride celebrations in Toronto and elsewhere.
“We’re surprised to be honest that [the ruling] came so quickly but I guess the court had it in their mind that something is going on this month and they wanted to be part of the action,” Saguil says with a laugh.
“Obviously on the heels of what happened in Orlando, the community can use good news like this,” he adds.
At the Divisional Court, TWU argued the law society “ignored a binding precedent” in the Supreme Court’s 2001 decision in Trinity Western University v. British Columbia College of Teachers.
That ruling reversed the college of teachers’ decision not to accredit the university due to its covenant’s requirement that students refrain from gay sex. But in its ruling, the Divisional Court said the law society, unlike the teachers’ college, has a wider mandate involving “a much broader spectrum of considerations with respect to the public interest.”
Six other law societies — Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island, and Newfoundland and Labrador — have granted accreditation to Trinity Western’s law school. Meanwhile, appeal court decisions are pending in Nova Scotia and B.C.
Update 2:45 pm: Comments added from LSUC.
No stranger to controversial jobs in government, Mark Johnson is taking on the role of general counsel at the embattled Toronto Community Housing Corp.
|Mark Johnson is excited by the challenges of the general counsel and corporate secretary role at Toronto Community Housing Corp.|
A report issued in January by the TCHC task force appointed by Toronto Mayor John Tory listed 29 recommendations to address the crisis facing the organization, which has a $2.6-billion repair backlog and ongoing turmoil at its headquarters.
Johnson says he has a certain appetite for taking on tough jobs in the public sector — he served as interim general counsel at eHealth Ontario in 2009, and led its legal team during a difficult time of restructuring.
“I like the action,” he says with a chuckle. “People have commented on that and I just say from a lawyer’s perspective and being part of the turnaround operation it’s interesting. Would you rather be sitting around bored? No, that’s why I like this challenge.”
The legal team at TCHC consists of about nine lawyers as well as procurement and insurance/risk management personnel who report up to him. The entire team is about 50 people.
Johnson has a range of expertise in corporate law and has provided services to startups as well as large corporations such as Deutsche Bank, IBM, Nike, and Visa. For the last five years he has been general counsel at the global software consulting company Infusion, where he worked on commercial transactions, governance, employment, intellectual property, and regulatory matters.
Johnson says he was looking for a new challenge when he saw the position and was drawn back to the public sector by the idea of working at TCHC.
“I have a strong community service bent to me and the challenges in the organization appealed to me. I liked the public service component to it. Once you are bitten by working in the public sector, you do want to go back,” he says. “The work the organization is doing is extremely important to the city.”
His first goals are to educate himself about the inner workings of the organization and some of the challenges it faces.
“Legal’s priorities are set by the other departments and naturally we’ll have some department-building initiatives but most of what we do is client-serving work,” he says. “I’ll be out in the weeks ahead figuring out how we can better serve our clients and ultimately serve the residents better.”
Johnson says that may include assisting in the procurement of maintenance services or forming strategic partnerships with other community organizations and companies.
“The work the team does here is quite fascinating; everything from huge multi-billion dollar development projects to landlord-and-tenant matters and everything in between,” he says.
He will have a dual reporting relationship to the board of directors and to the president and CEO of TCHC.
Johnson is also the founder of a line of men’s clothing called Kovalum.
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Three Toronto Police Service officers are suing the Attorney General of Ontario after they say accusations made by an armed robbery suspect he’d been beaten by police went unchallenged in court by the Crown.
|'This is, indeed, a rare kind of case,’ says David Robins.|
If the officers win the case, one lawyer says it could be precedent-setting.
“This is, indeed, a rare kind of case,” says David Robins, a partner with Sutts Strosberg LLP.
The lawsuit relates to allegations made by a man involved in an armed robbery at a crane supply company. During the robbery, the suspects carried a gun and zip-tied a victim before taking off with $389,000 worth of copper tubing.
Months later, police arrested the suspects and their statements were video taped. However, one of the suspects, Randy Maharaj, alleged police had beaten him during the arrest.
During court proceedings against Maharaj, he alleged he’d suffered serious rib injuries because of physical damage caused by the officers — an allegation police said is false and was allowed to stand in court proceedings, thereby greatly harming them. Maharaj was convicted in connection with the robbery, but judges involved in the case as it wended its way through the courts had harsh words for police.
The lawsuit names three Crown attorneys, Sheila Cressman, Frank Armstrong, Amy Alyea, and other agents of the Crown as participating in a “negligent and unlawful act.”
A later investigation by the Special Investigations Unit concluded that allegations made by Maharaj were not substantiated by evidence like the video-taped statement he gave after his arrest.
The lawsuit alleges “had Ms. Cressman, Mr. Armstrong, Ms. Alyea, and other Crown law officers conducted a reasonable and lawful prosecution the resulting irreparable damage to the officers’ livelihood and reputation never would have occurred.
“Any careless, negligent and/or unlawful decisions made by a crown attorney, during the course of a prosecution, could result in irreparable harm to the livelihood and reputation of the investigating police officers. The prosecution is conducted under the sole discretion of the crown attorney, and a police officer is powerless to ensure that there is no injustice to themselves or to the administration of justice,” said the lawsuit, filed in the Ontario Superior Court June 22.
“As a result, this foreseeability and proximity established a prima facie duty of care that the crown attorney has to the investigating police officers.”
According to court documents, the officers are seeking $500,000 in general damages for “negligence and misfeasance in Public Office” and $250,000 each for “aggravated, exemplary and punitive damages.”
Robins says, the lawsuit asserts “the Crown owes a duty of care to investigating officers to ensure that there is no injustice in the prosecution of a case to those investigating officers or to the administration of justice.”
“I believe that there will be a real debate concerning whether the Crown owes a prima facie duty of care to investigating police officers,” he says.
He adds, he doesn’t believe there is “a wide body of jurisprudence in which the issue of whether the Crown owes a duty of care to investigating police officers has been thoroughly canvassed.”
“In the event that the Crown is imposed with a duty of care by the court to investigating police officers, I do believe it will set a new precedent,” says Robins.
Murray Klippenstein, founding principal of Klippensteins Barristers and Solicitors, says, “the facts as set out in the statement of claim do raise some significant questions about certain parts of the evidence about police brutality, and whether a rib injury allegedly due to police action was in fact that.
“However, the alleged rib injury was not the only evidence of mistreatment by police, so the claim by the police may itself be focusing on only a small part of the picture, and leaving some important things out. It’s hard to tell at this point,” he says.
SCC sides with lab workers in workplace cancer case, Canadian Press
A recent Court of Appeal decision clarifies the law around how the courts handle self-defence cases, say lawyers.
The Ontario Court of Appeal has ordered a new trial for Valter Cunha, who was convicted for shooting another man twice, but claimed he was acting in self-defence.
In R. v. Cunha, Justice Peter Lauwers said the court found that the trial judge’s analysis was deeply flawed as it “paid little regard to the overall evidence, but focused excessively on whether Mr. Cunha was a credible witness.”
Cunha made a split-second decision to shoot the man after an altercation in his building, according to the decision. The man had his back to Cunha, who had told the man to freeze. The man began to turn around and Cunha shot him.
The trial judge dismissed Cunha’s testimony where witnesses could not verify his account, but Lauwers said this analysis was unreasonable. In the appeal decision, he stated:
The court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.”
Lauwers said the trial judge “artificially separated out the sequence of events.”
Cunha’s defence lawyer, Michael Dineen says the way the trial judge scrutinized Cunha’s statements and analyzed the events was unfair.
“That’s just the wrong way to look at this,” says Dineen.
“People in that sort of life-and-death situation have to be given some leeway before we’re going to impose criminal liability on them for split second decisions.”
Dan Stein, a criminal defence lawyer says it is important for trial judges and juries to put themselves in the shoes of the accused.
“It reaffirms that people who are in a position where they feel they have to defend themselves aren’t required to take absolutely every step in a very measured way,” Stein says of the decision.
“There’s some understanding that in the heat of the moment, people will do what’s necessary to defend themselves, which in retrospect might not be reasonable simply because at the time they were afraid for their lives.”
Lauwers found the trial judge also made inconsistent findings with respect to Cunha’s state of mind.
Cunha had said he did not know whether the man was armed, but feared he was. The trial judge said he was left with a reasonable doubt about whether Cunha felt afraid that the man was armed, but then later said that Cunha did not believe the man was using or threatening force against him.
Lauwers said that overall the trial judge failed to take into account the situation from Cunha’s perspective and that he artificially separated related events.
“This case reaffirms the principle that life has to be analyzed as a flowing narrative that can’t be reduced to a freeze-frame analysis,” says criminal trial lawyer Sam Goldsmith.
RCMP lay charges three years after robbery at B.C. shopping mall, Canadian Press
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