Legal Feeds Blog
A rec hockey player in Ottawa has been granted a new trial after a judge was found to have erroneously applied speculative reasoning to her decision that convicted him of blindsiding another player.
|A rec hockey player in Ottawa has been granted a new trial after the judge was found to have erred in convicted him of blindsiding another player. (Photo: Shutterstock)|
At the centre of the determination of guilt at trial was whether an on-ice collision involving MacIsaac and another player was an unavoidable accident or a deliberate blindside hit.
On Monday, the Ontario Court of Appeal in R. v. MacIsaac allowed the appeal and ordered a new trial, saying MacIsaac did not have a fair trial because the judge “engaged in impermissible speculative reasoning in reaching her verdict.”
On March 15, 2012, MacIsaac’s team the Tiger-Cats was playing in a senior no-contact men’s hockey league in Ottawa against the Pirates. During the last 47 seconds of the game, with the Pirates up by two goals, MacIsaac collided with Pirate Drew Casterton.
Casterton was knocked to the ice on his back and suffered lacerations to his face, a concussion, and the loos of two front teeth. MacIsaac was charged with one count of aggravated assault.
The court heard from 11 witnesses as well as a referee and various members of both teams. The Crown held that MacIsaac deliberately delivered a blindside hit to the left side of Casterton’s head.
The goalie on the Pirate’s team testified he saw MacIsaac leap off the ice, raise his arms, and hit Casterton in his shoulder and head area. He said MacIsaac’s arms hit Casterton’s head and that his facemask may have hit Casterton’s face.
The defence’s position was that the incident was an accidental, unavoidable, face-to-face collision.
At trial, Ontario Court Justice Diane Lahaie said most the witnesses showed “a clear bias depending on which of the two hockey teams he belonged to.”
She found the referee, was the sole “completely neutral” witness and that his evidence was credible and reliable. While his account of MacIsaac’s and Casterton’s positions on the ice — with the pair heading towards the puck behind the net — differed from that of the other witnesses, she accepted the entirety of his evidence aside from his testimony regarding a tripping incident earlier on the same play.
Lahaie also accepted all of Casterton’s testimony. The injuries to the left side of his face were consistent with his testimony about where he was looking and supported the conclusion that this was not a “face to face ‘head on’ collision.”
Lahaie rejected the evidence of one of MacIsaac’s teammates. She was “not prepared to find beyond a reasonable doubt” that the teammate had been on the ice at the time of the incident because it was “not logical” for three Tiger-Cats defencemen to be on the ice with the team down by two points and with so little time left in the game.
“Mr. MacIsaac intended to deliver a blindside hit to Mr. Casterton’s head and knew of the risks associated with head shots. He delivered it anyway as his frustration and desire for revenge took over,” she said.
She rejected MacIsaac’s claims that he left his usual position as a defenceman in an effort to steal the puck from Casterton and score a goal, that Casterton made an unpredictable turn rendering a collision unavoidable, and that MacIsaac did not have sufficient control over his speed to avoid hitting Casterton.
On the issue of consent, Lahaie found the hit amounted to a marked departure from the conduct expected in a no-contact hockey league that “consent to such conduct cannot be given.” As for mens rea, she held that MacIsaac foresaw the risk that his actions would cause serious bodily harm, but nonetheless chose to take that risk.
In a case where the circumstances are not proven or the inferences are not reasonable, or both, the factual inference drawn would be described as “speculative” or “unsupported” and if material to the outcome would not withstand appeal, says Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP.
“The criminal standard was being applied in this case. Perhaps an inference that is more of a stretch might be accepted in a civil context but you couldn’t do it in a criminal context where you might be putting someone in jail,” says Virc.
MacIsaac’s lawyers said Lahaie misapplied the law of consent and failed to consider whether MacIsaac had an honest but mistaken belief in consent.
He thought players in the league consented to any type of bodily contact that was foreseeable in a game, including deliberate blindside checks. The fact defence counsel did not raise the issue did not relieve the trial judge of her obligation to turn her mind to the defence and whether it was applicable in the circumstances.
The appeal court considered whether the trial judge engaged in impermissible speculation and, did she reverse the onus of proof? It also considered whether Lahaie erred in failing to consider the defence of “honest but mistaken belief in consent?”
Writing for the Court of Appeal, Justice C. William Hourigan wrote: “I agree with the submission of the appellant that the trial judge engaged in impermissible speculative reasoning in rejecting the evidence of the defence witnesses. This impaired the appellant’s right to a fair trial. On this basis, I would order a new trial. It is unnecessary, therefore, to consider the other issues raised by the appellant.”
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With a big focus on the Ashley Madison hack, law firms are showing increased anxiety around external threats to their computer systems, a new report has found.
|Perceived greatest security threats (Source: Digital Defense)|
“I think they’re very applicable to the Canadian market as well,” says Meg Grant, a vice president of Digital Defense, of the study’s findings. Her company provides businesses with security software and consulting services.
According to the report, external threats such as hackers have replaced malware as the biggest perceived security threat. As for law firms’ top information security concerns, they range from employee negligence to phishing attacks and viruses.
Despite the concerns, the study found 65 per cent of the law firms that participated have no staff devoted to information security, with 31 per cent of them reporting budgets for the issue in the range of $10,000 to $50,000. The study covered a range of law firm sizes with 36 per cent of them employing less than 150 people.
In terms of law firms’ actions to deal with security threats, the study noted a couple of areas of concern. The biggest is around vendor management, in particular the lack of an evaluation process. According to the study, 63 per cent of respondents don’t use a vendor evaluation process.
|The most concerning threats including the top three: 1. employee negligence, 2. phishing/sishing, and 3. virus, worm, and malware threats. (Source: Digital Defense)|
“I would say that would be something that firms would really want to evaluate,” she adds, citing the need to ensure vendors meet criteria around issues such as access to law firms’ networks and information.
When it comes to firms’ responses to security threats, the most common one is information security training for employees followed by encryption and intrusion detection.
“That’s a positive trend because that’s a big target for hackers,” says Grant of the vulnerabilities around employees.
Firms commonly conduct such training once a year or when hiring new employees. A further 11 per cent of respondents have no training programs around information security.
While the Ashley Madison hack is the big issue of the day, of course, Canadian law firms have suffered significant breaches in the past. In April 2011, hackers attempting to access sensitive documents targeted four Canadian law firms by posing as partners who were working on an acquisition of a Chinese company.
Overall, Grant says she has seen some improvements in law firms’ responses to the issue but notes what’s key is dealing with the issue on a regular basis.
“You have to have a program in place,” she says.
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It won’t be just Marc Rosenberg’s brilliance that his former colleague, former chief justice of Ontario Warren Winkler, will remember. It will also be his smile.
|Marc Rosenberg passed away Aug. 27 after a battle with brain cancer.|
“You know, I was interrupting his work, but it never mattered. It was a big smile, and he’d turn around and the conversation would start like it had never ended from the last time you saw him.”
Winkler is one of many members of the Canadian bar and bench mourning this week. Rosenberg, a former judge of the Court of Appeal for Ontario and one of the country’s foremost experts in criminal law, died on Thursday after a battle with brain cancer. To many of those who worked with him, Rosenberg was not just a colleague but a dear friend.
“He was just one of those people who had an impact on many, many people in different areas, and he wasn’t one dimensional by any stretch of the imagination,” says Winkler. “People he came in contact with, he made a mark on them. He just had that way about him, because he was a person with a huge amount of depth but he also wasn’t reclusive — he was a warm person.”
Born in 1950 to Ethel and Morris Rosenberg, he was called to the bar in 1976 after graduating from Osgoode Hall Law School. He practised criminal law at Greenspan Rosenberg and Buhr for nearly two decades until 1995, then served as a Court of Appeal judge for almost two decades more, retiring earlier this year. He also served as assistant attorney general for the ministry’s Public Law and Policy and Civil Law divisions.
Rosenberg’s accomplishments were many. He was a director of the Criminal Lawyers’ Association from 1987 to 1991, and was a non-bencher member of the Law Society of Upper Canada’s legal education committee. He served as editor of Martin’s Annual Criminal Code and wrote many articles on criminal law and the Canadian Charter of Rights and Freedoms.
"Justice Rosenberg had a decades-long association with Canada Law Book, and later with Carswell, as author/contributor to numerous prominent publications, including the highly-regarded Martin’s Annual Criminal Code and Martin’s Ontario Criminal Practice. It was both a pleasure and a privilege to work with him. He will be missed," said Rachel Francis, the vice president, legal and regulatory, at Carswell.
Rosenberg served as consultant on a number of influential commissions, including the Law Reform Commission on Electronic Surveillance and on the Powers of the Attorney General, the Donald Marshall Inquiry, and the Government of Ontario’s Justice Review Project, according to a biographical note on the Court of Appeal web site. He also taught at Osgoode, and around the world as a judicial associate with the National Judicial Institute.
Winkler’s friendship with Rosenberg began, he says, soon after he himself became a judge.
“He was one of what I call my ‘have-coffee-with people,’ because I would go in in the morning early, he would go in in the morning early, and we would either go out for a coffee or we’d sit in his office and have a coffee and just talk about general things,” he says.
Rosenberg’s many achievements, says Winkler, stemmed not only from his widely recognized brilliance but also his work ethic.
“He was a tireless worker, and a perfectionist,” says Winkler. “So everything that he did reflected that.
“From my point of view as the chief, if I needed anything done at all by way of extra things, for him to help with, he was always a volunteer. . . I could go to him and he’d take on any sort of task or job no matter how busy he was, and you didn’t have to worry about it — he’d get it done.”
Rosenberg was also a passionate teacher.
“Whenever he wasn’t sitting and doing his judicial work, every other spare moment he spent teaching both across Canada and internationally to both lawyers and other judges. And he did that through the judicial council or through anybody who asked him, frankly.
“I always used to kid him about his air miles . . . because he was always on an airplane going somewhere, to the Orient or Europe or the U.S. to teach, because he was so good at it and so popular.
“He was in great demand, and he would be all over the world, appearing at conferences and teaching other judges and they loved him. Everybody loved him because he was a very good teacher, he was very clear and he simplified everything down so that everybody could understand it,” Winkler says.
Rosenberg was predeceased by his wife Martha, whose death a few years ago dealt him “a huge blow,” says Winkler. He is survived, according to the Court of Appeal web site, by his partner Priscilla Platt and two children, Debra and Daniel.
“I call him a dear colleague but also a dear personal friend,” Winkler says. “And I say I’m going to miss him immensely.”
Toronto criminal lawyer Brian Greenspan, brother of Rosenberg’s late partner in private practice, says he was very well described in the funeral notice written by his family.
“They said he was a man of great integrity, intelligence, and judgement, and of unfailing humility and grace,” says Greenspan. “Knowing Marc as I did for over 40 years, I think he would have smiled and told them ‘well done,’ because I think that probably most aptly describes who he was, the type of person he was, and the type of lawyer and judge he was.
“It’s a great loss to the community and a great loss to the law.”
The notice is viewable on the web site of Benjamin’s Park Memorial Chapel, site of Rosenberg’s funeral this afternoon.
Anthony Moustacalis, current president of the Criminal Lawyers’ Association, knew Rosenberg when we worked in private practice alongside Eddie Greenspan.
“He was at the time, I would say, the leading criminal appeal lawyer in Canada,” Moustacalis says.
As a legal scholar, Moustacalis says, Rosenberg “had the uncanny ability to synthesize contradictory legal cases and explain how they all fit together, which was always quite remarkable.”
As a judge, he recalls, Rosenberg “was always someone who on and off the bench was very soft-spoken, but a very incisive thinking person,” whose decisions were referred to by “all other courts in Canada, at all levels.”
Among his most influential decisions, Moustacalis says, was in R. v. Priest, 1996, in which Rosenberg argued against custody for a young first-time offender.
In a prepared statement, Ontario Attorney General Madeleine Meilleur said: “I was greatly saddened today to learn of the death of the Honourable Marc Rosenberg, a respected and influential figure in the Canadian legal community. . . . Today my thoughts and prayers are with Justice Rosenberg’s family, many colleagues and friends. I join with them in mourning his loss. He will be missed.”
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Plaintiffs’ lawyers pursuing a class action for a global price-fixing conspiracy will have to get formal opt-in from class members abroad, if yesterday’s jurisdictional decision stands in Airia Brands v. Air Canada.
|Charles Wright says he disagrees with the court’s analysis on jurisdiction.|
Despite a possibly “real and substantial” connection to Canada — the test established in the Supreme Court of Canada’s Club Resorts Ltd. v. Van Breda decision — defence counsel successfully argued that Ontario’s courts had no jurisdiction to include in the proceeding foreign class members who had not specifically opted in, defined as “absent foreign claimants.”
Armed with reams of expert opinions, lawyers for the airlines convinced Leitch that foreign courts in many of the 100-plus countries from which plaintiff class members derived would not respect the Van Breda test giving Canadian courts jurisdiction.
As a result, nothing would prevent a class member in one of those other countries from re-litigating the matter and subjecting the defendants to double jeopardy.
As the decision states: “I am satisfied that jurisdiction over class members can only be established if they are present in Ontario or have consented in some way to the jurisdiction of this court. I therefore, find that this court does not have jurisdiction simpliciter over absent foreign claimants.”
It’s a decision that stands in sharp contrast to Van Breda, where Canadian courts were able to claim jurisdiction, for a case involving injuries on a Cuban resort, based on a test establishing “real and substantial connection” to Canada.
Charles Wright, the Siskinds LLP lawyer who launched the class action in Canada, says he disagrees with the court’s analysis on jurisdiction, which finds that the plaintiffs connection to Canada is not strong enough to account for the possibility of double recovery.
Wright says that the decision essentially shuts the door to the most likely avenue for justice for foreign claimants on the off chance they might pursue an alternative, and highly unlikely, avenue for justice.
“We believe our courts in Canada follow the rules of law and provide justice,” he says, “and if other courts abroad, some other day, choose to find that that’s not so and won’t respect the judgment, that’s really a decision for them to make and that doesn’t impact on whether this court properly takes jurisdiction.”
Wright says the decision on jurisdiction will most likely be appealed. Even if it’s upheld, though, it will not prevent plaintiffs’ lawyers from sending out notices to potential foreign claimants to get formal opt-in from them.
Jurisdictional issues aside, Wright suggests the defendants’ real strategy — one that has proven successful so far — is to drag the case on and make it more difficult for class members to participate, in the hopes of reducing liability for their clients.
“Our argument was that this was a fairly clear effort to avoid liability to these people. It wasn’t really about the potential for double jeopardy or that they shouldn’t have to face a multiplicity of lawsuits. It was about the desire to not have to compensate some people at all.
“The defendants hope is that maybe people won’t see or understand the notice and won’t respond to it, and therefore won’t opt in,” says Wright. “So the real hope is — which is what we argued and what we will argue on appeal — is that they will avoid any liability to those people.”
Ultimately, however, Wright says the court’s decision on jurisdiction may backfire on the defendants:.
“If, in fact, the result of this decision is a notice that goes out that causes people to see them in 20 different jurisdictions, and they have to obtain counsel in all of those places and defend themselves, it’s not actually a good result for them.”
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- But higher penalties may not be the best deterrent for securities offenders
The sanctions levied against a former Bay Street lawyer for insider tipping are part of a bigger trend of awarding higher penalties for securities transgressions, a Toronto lawyer says.
|Prompt prosecution coupled with strong market prohibitions, can have a far greater deterrence effect than steep fines, says Shawn Irving.|
Finkelstein also received a 10-year-ban from trading and acquiring securities, with the exception of doing so for select registered accounts.
“There seems to be a general trend at the OSC and other securities regulators to order greater [amount] of administrative penalties and cost awards particularly in the last five years,” says Osler, Hoskin & Harcourt LLP partner Shawn Irving.
In March, an OSC panel found Finkelstein had tipped his friend, an investment adviser at CIBC, about impending takeover deals. That friend, Paul Azeff, then purchased shares associated with those deals and recommended his friends and family do the same, the commission found.
“As the instigator of the subsequent insider trading by others in disregard of his duties of confidentiality and of the high standard of probity towards the capital markets expected of a mergers and acquisitions lawyer, Finkelstein’s transgressions must be considered to be at the upper end of severity,” wrote commissioners Alan Lenczner and AnneMarie Ryan.
Securities regulators are “certainly of the view that the imposition of administrative penalties and significant cost awards can serve an important deterrent role,” Irving says, but “I’m not convinced of that.”
An approach that focuses on getting securities offenders off the streets sooner is a better approach, Irving adds.
“In so many of these cases, years and years and years pass between when the alleged breach is alleged to have occurred and when there’s ultimately a hearing and then a decision,” he continues. “All the while, the alleged offenders are able to continue to act.”
Irving adds the impact of prompt prosecution on the personal and professional reputation of transgressors, coupled with strong market prohibitions, can have a far greater deterrence effect than steep fines.
In Finkelstein’s case, OSC enforcement staff had sought a lifetime trading ban, a lifetime exclusion as a director and officer of a reporting issuer, and an administrative penalty in the amount of $1.5 million. The ultimate award reflects the panel’s attempt to strike a balance, according to Irving.
The panel was also cognizant of the respondents’ personal situation, says Irving.
“In the case of Mr. Finkelstein, the panel certainly took into account his age, that he had a young family, the significant professional and reputational damage the proceeding and the decision had on him, and the fact that it was unlikely he’d ever work in a major law firm again and therefore he would have a significantly diminished earning potential,” he says.
Finkelstein’s lawyer Gordon Capern did not immediately respond to a request for comment but reports say his client plans to appeal the OSC panel’s findings as well as the sanctions.
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