Legal Feeds Blog
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
Paul Schabas has been elected to become the next treasurer of the Law Society of Upper Canada.
|Paul Schabas was elected treasurer of the Law Society of Upper Canada today.|
Schabas is a partner and senior trial and appellate lawyer at Blake Cassels & Graydon LLP and an adjunct professor at the University of Toronto, where he teaches media law. He is credited with arguing many substantial cases before the Supreme Court of Canada that have had implications for defamation and equality rights law.
In his first meeting as treasurer, Schabas outlined a list of the five priorities he wants the LSUC to focus on under his watch.
Among them as addressing how the law society can take a leadership role in enhancing access to justice.
“The law society can’t fix the access to justice challenges on its own but it can be more active in working with government, the courts, Legal Aid Ontario, and others, and pushing for changes and improvements in how legal services are delivered in Ontario,” he said.
“We have a critical role to play here to improve access to legal services.”
Other priorities Schabas mentioned included governance issues, operations, as well as licensing and competence. He also spoke about the need to develop a strategic plan to better engage member lawyers and paralegals, as well as members of the public.
The outgoing treasurer, Janet Minor, congratulated Schabas and thanked Convocation before leaving the meeting, as tradition dictates.
Schabas said the five priorities are just a snapshot of what he hopes the law society will focus on, and he is committed to having robust and wide open debates and discussions during his term as treasurer.
“We are all here for the same reason — to improve our profession and act in the public interest — and together we can achieve results we are proud of at the end of our time here,” Schabas told Convocation.
“So let’s get to work.”
The Supreme Court of Canada ruled today that police do not need a warrant to collect DNA from a male suspect’s genitals, potentially making it easier for authorities to secure sexual assault convictions.
|‘[A] penile swab is in some ways less invasive than taking dental impressions,’ said the SCC majority’s ruling. (Photo: Gail J. Cohen)|
Police have greater search powers when dealing with people who are arrested, and a penile swab, which seeks a complainant’s DNA and not the suspect’s, would be a reasonable part of that, the court ruled.
“A penile swab does not fall within the scope of R. v. Stillman,  1 S.C.R. 607,” says the majority decision penned by Justice Richard Wagner. “First, a penile swab is not designed to seize the accused’s own bodily materials but rather, the complainant’s. Accused persons do not have a significant privacy interest in a complainant’s DNA. Second, a penile swab is in some ways less invasive than taking dental impressions and the forcible taking of parts of a person. Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNA degrades over time. In sum, a penile swab implicates different privacy
The court also laid out a series of factors to guide police in conducting penile swabs. They include:
• Conducting the swab at a police station;
• Being authorized by a senior officer;
• Giving the accused the option of taking the swab himself or having a trained officer or medical professional do it with minimal force;
• The officer taking the swab should preferably be of the same gender as the accused;
• Conducting the swabbing in a private area;
• Doing it as quickly as possible; and
• Keeping a proper record of the reasons for and the manner in which the swabbing was conducted.
The court ruled against a man from the western province of Alberta whose sexual assault conviction was based on DNA evidence from a penile swab done without a warrant.
Ali Hassan Saeed was accused of sexually assaulting a female acquaintance in 2011. While in custody, he was asked by a police officer to “wipe his own penis with a swab while the officer watched,” according to the Supreme Court.
After his conviction, Ali unsuccessfully raised the issue to the Ontario Court of Appeal.
The Supreme Court ruled that while the swab violated his privacy, it was not done in a humiliating way and did not “fundamentally violate his human dignity.”
However, Justice Rosalie Abella dissented, saying a warrant was necessary and the evidence from the swab should have been thrown out.
“The deliberate failure to consider a warrant in the absence of exigent circumstances is, at its best, careless; ignoring the legal possibility that under Canadian law the police were not even entitled to take a penile swab, is fatal,” she wrote.
With files from Reuters.
In a case that raises questions about the professional obligations of an articling employer, a law student is suing Legal Aid Ontario and the Law Society of Upper Canada after being terminated two weeks into his term.
|Andrew Sudano says, in his experience, employers will stick it out with their articling students, even if problems arise.|
He claims the law society, too, was negligent in allowing the breach to occur.
Polanski’s lawsuit relies entirely on a provision within the Lawyer Licensing Policies that states “a Candidate or principal may terminate articles where problems arise between the candidate and the principal that cannot be resolved to the satisfaction of both the candidate and the principal.”
According to Polanski, Scharfe violated her professional duties by failing to specify “unresolvable issues.” Unfortunately for him, the statement of claim lacked any information about reasons for the termination.
Ontario Superior Court Justice Edward Morgan, reviewing a motion to strike the claims for lack of cause, seems utterly bewildered by the dearth of useful information.
“I do not know what happened to abort the Plaintiff’s articles,” writes Morgan in his decision. “One can read and re-read the rather brief Statement of Claim, but nothing will reveal why the Plaintiff was fired.
“To make a short story long, the pleading does not disclose what led to the unfortunate situation in which the Plaintiff now finds himself and what, if anything, he did to deserve having his career cut short at such an early stage. Nor does it reveal why his employer, LAO, dismissed him, what steps Ms. Scharfe as articling principal took or did not take culminating in the termination of his articles, or what LSUC as regulator did or did not do in response to this situation, etc.”
Morgan starts by striking out the claim against the law society. He suggests that Polanski has misunderstood the role of the law society as a professional regulator, and not a service administrator that can be held to account for failing to carry out its mandate.
In a clever analogy, Morgan says that “LSUC no more administers an ‘articling program’ or provides a ‘service’ for licensees than Canada Revenue Agency administers a ‘taxation program’ or provides a ‘service’ for taxpayers. That is simply not the function of the regulatory body.”
Even if LSUC could be considered a service provider, Morgan writes, the law society has a statutory immunity from these claims, which can only be bypassed by a claim of gross negligence.
Morgan then goes on to strike the claim against Scharfe, although he suggests that it’s at least arguable that an articling principal has obligations to the student. He has given the articling student, by definition inexperienced, 30 days to amend his claim to resolve certain defects.
For example, the claim is directed against his supervisor but not LAO — a fatal flaw given that Scharfe herself was only an employee and not the “directing mind” of the organization. Regardless of the merit, Scharfe personally cannot be held responsible for the organization’s decisions.
More importantly, the judge insists any amended statement of claim contain actual information about an instance of negligence or malicious intent.
“Ms. Scharfe’s breach of duty is asserted as a bald fact,” writes Morgan, “with nothing further to indicate what she did to allegedly fail to fulfill her professional duties or to fall below the requisite standard of care.”
Family lawyer Andrew Sudano, at Shawyer Family Law in Toronto, has been on both sides of the issue in recent years. Called in 2012, he articled with his current firm, and then just this year acted as articling principal for the first time.
Sudano says that he feels for the plaintiff: “When we interview with the students, they are, generally speaking, very vulnerable, because they have a lot of debt and they don’t know what they want and they don’t know what to expect.”
While there simply isn’t enough information in this case to speculate as to what might have caused the termination, Sudano says, in his experience, employers will stick it out with their articling students, even if problems arise.
“You’re making such a commitment to that person,” he says. “And this person is going to become a lawyer in their own right, and we may be working together for 30 or 40 years, so it’s important you look at things in the long term and try to not alienate too many people.”
The reality, however, is that some articling students, regardless of their grades or educational credentials, may not be the right “fit” for an organization, he says — a problem that could constitute an “unresolvable issue.”
Practically speaking, Sudano suggests employers and articling students draft an employment contract with clear expectations.
“It’s always good, particularly for students, to put it in writing,” he says. “What are the expectations? What am I explicitly required to do, so this way there’s no mystery and they’ll at least have a better sense of what they’re getting into.”
Counsel for both defendants declined comment pending a revised statement of claim. The plaintiff could not be reached in time for this article.
The Law Society of British Columbia has fined a Smithers criminal lawyer $6,000 for challenging his client to a physical fight and later sending that client’s confidential information to Crown counsel.
|‘The respondent’s incivility is worthy of rebuke,’ notes an LSBC discipline panel in fining a lawyer for picking a fight with his client.|
“Upon hearing this derogatory remark, the respondent turned and walked back toward the client. He stood very close to the client, and although he does not recall the exact words he used, the respondent admits he used words that challenged the client to a physical fight,” said the law society’s panel.
“The respondent admits his voice was raised and his tone abrasive and unpleasant. The respondent had a briefcase in each hand when he challenged the client to a fight. They then went their separate ways.”
The client had been charged with assaulting his brother, uttering threats, and assaulting a peace officer. According to an agreed statement of facts, McCarthy and his client got into an argument because the client had not retained a civil lawyer to deal with his civil dispute with his brother as McCarthy had advised.
“The respondent suggested that the client could have, and should have obtained some employment, which would have provided him with funds to retain a civil lawyer to handle the civil dispute,” the ruling said.
McCarthy had also told the client he would withdraw as his counsel.
The lawyer presented the law society’s panel with 10 letters of reference that spoke to his character and integrity. The panel acknowledged McCarthy’s remorse and his understanding of why challenging his client to a fight was inappropriate conduct. It also acknowledged he had no prior discipline record and didn’t benefit from this particular infraction.
“However, the respondent’s incivility is worthy of rebuke,” the panel said. “As his counsel stated, ‘we are supposed to rise above it and typically do.’ In this case the respondent did not rise above it. His incivility to the client was disrespectful, embarrassing and negatively reflects on the legal profession as a whole.”
After the courthouse incident, the client sent McCarthy a fax requesting the lawyer return all materials he received from the RCMP, Crown counsel, or himself in his case. The client said the package could either be mailed to him or left with the courthouse registrar.
Instead, McCarthy forwarded the package to Crown counsel. He told the law society it had been a rush decision to do so and he didn’t turn his mind to the fact that there were notes on some of the documents, hand-written by the client, which may be subject to solicitor-client privilege.
“Although it did not, the respondent’s breach of solicitor-client confidentiality had the potential to seriously prejudice the client in his criminal proceedings,” the panel said.
Terence La Liberté, McCarthy’s lawyer, says his client fessed up to his errors from the get-go.
“He fully accepted his responsibility from the outset. There was never an issue about what he did — it was a question of how to resolve it,” says La Liberté.
The penalty for breach of confidential client information ranges from fines to suspension. Fines for this infraction could be anywhere between $2,500 and $7,500, the panel said, while fines for incivility cases typically range from $1,000 to $3,000. McCarthy proposed he pay $6,000 in addition to $1,236 in costs, a deal the discipline committee accepted.
Woman found dead at Ontario military base residence, Canadian Press
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