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After almost two years since allegations were first raised, members of an inquiry investigating the conduct of Quebec Superior Court Justice Michel Déziel has decided he should not be removed from the bench.
On Monday, the inquiry committee formed in late 2013 to investigate the conduct of Justice Déziel submitted its 59-page report to the Canadian Judicial Council.
The allegations date back to the 1997 municipal election campaign in Blainville, Que., when Déziel was a lawyer and organizer for the sitting mayor. Charbonneau Commission witness Gilles Cloutier alleged Déziel gave him $30,000 with instructions to find people to pose as donors to the campaign, converting the money into contributions of $750 each.
Cloutier, who worked for an engineering firm, made the allegations in 2013 during testimony at the provincial inquiry into widespread municipal corruption in Quebec.
Déziel denied the allegations but said he acted as an intermediary in transferring the money to an engineering firm.
The committee, chaired by New Brunswick Chief Justice Ernest J. Drapeau, outlined how they answered the question of whether Déziel’s conduct was “so manifestly and profoundly destructive to the concept of impartiality, integrity and independence that public confidence would be so undermined as to render the judge incapable of remaining in office.”
In a statement, a spokesman for the CJC said:
Having considered the matter fully including that the infractions were non-criminal and sanctioned by a fine of $100, the time elapsed since their commission, and numerous other mitigating factors including Justice Déziel’s irreproachable career as a judge, his apology and the unequivocal support expressed by the judge’s chief justice and associate chief justice, the Inquiry Committee concluded that Justice Déziel’s conduct was not so serious as to warrant removal.”
The report states: “In the present matter, the Independent Counsel is convinced that there is no risk of reoffending and that Justice Déziel’s sincere apologies are sufficient to reassure the public in this regard.”
The committee also noted that some of the events put forward in the allegations were found to be “incompatible with the facts and the credibility of certain witnesses in doubt.”
Therefore the inquiry committee found a recommendation for removal was not warranted. The report and its recommendation that Déziel be returned to his position will soon be considered by the CJC.
The CJC will report its conclusions and submit the record of the inquiry to the federal minister of Justice.
Déziel was appointed in November 2003 to the Superior Court to preside in Laval. He could not be reached for comment.
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|The Crown’s comments ‘ were made on purpose in order to paint a very negative opinion of the accused,’ says Elliott Willschick.|
In this case, Haiden Suarez-Noa had conceded he had stabbed his wife with a knife, according to Reid. But in open court and with the jury absent, defence counsel suggested he expected to raise a defence of provocation, Reid noted. Following the opening address and reading of an agreed statement of facts, however, the defence brought an application for a mistrial.
In the opening address, the Crown made references to personality traits the could disguise “deep uncontrolled rage” and went on to note that most people are able to push back against their instincts given “the norms of our society.” She then discussed an older movie, Impulse, in which people return to their “most feral instincts” due to a water supply issue in a small town.
“That ladies and gentlemen, is what this trial is about: the difference between reasonable human beings and animals,” prosecutor Kimberly Rogers told the jury.
“That characterization of the accused was both highly improper and was of such a nature that it could not be erased from the minds of the jurors even with a significant correcting instruction,” wrote Reid.
“The fairness of the trial process was irremediably compromised.”
Toronto criminal defence lawyer Elliott Willschick agrees.
“The Crown’s comments were beyond inflammatory and prejudiced the trial considerably. There is no way the jury could forget such inflammatory comments,” he says.
“Normally, the Crown makes their opening address to the jury so that they can outline the case and explain how the process works,” he adds, suggesting the situation in Suarez-Noa wasn’t necessarily an isolated incident.
“Inappropriate comments do arise and the courts accord leniency to those who make them,” says Willschick, distinguishing this case from another one in which the court found a reference to “Mr. Guilty” to be inadvertent.
“The comments in R v. Suarez-Noa were made on purpose in order to paint a very negative opinion of the accused,” says Willschick.
Reid’s other big concern was Rogers’ reference to the fact Suarez-Noa would raise the defence of provocation and her instruction to the jurors that they must consider whether the facts “accord with the accused’s version of events or belie it.”
“It may be that the accused will rely on the defence of provocation,” wrote Reid.
“It also may be that the accused will testify or call evidence in his defence. However, those are decisions for the accused to make in due course. It is highly inappropriate for Crown counsel to advise the jury of the defence position without a prior agreement, and particularly implying to the jury that the accused will testify.”
In the end, Reid found “the combination of rhetorical over-zealousness, personal opinion, argument, negation of the accused’s right to silence and implied reversal of the onus of proof combine to make a mistrial the only available option. The fairness of the trial was irreparably damaged beyond the possibility of redemption through a correcting instruction.”
Charn Gill, one of the defence counsel for Suarez-Noa, says the Crown’s actions left him “dumbfounded.”
“I’ve never seen a Crown go so far astray from what they’re supposed to do in an opening statement,” says Gill, who notes he quickly moved forward with the mistrial application after hearing the opening address.
Gill calls the situation a “colossal waste of resources” given the one month set aside for the trial. The goal now is to try to find time in November, he notes.
“I’m surprised the Crown attorney’s office is allowing the Crown to continue,” says Gill, suggesting that while inappropriate comments sometimes arise in opening statements, the accumulation of circumstances in Suarez-Noa was rare. “I think it was a rare thing that you’d make that many mistakes,” he says.
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|Defering to Parliament is problematic when you have the possibility of people being arrested or even jailed for a law that has already been declared unconstitutional, says Nader Hasan.|
Whereas the British Columbia Court of Appeal would have given Parliament one year to broaden its Marihuana Medical Access Regulations to include baked goods, the Supreme Court offers an immediate remedy by striking down provisions that exclude baked marijuana.
The problem is the MMARs are “too narrow, or under-inclusive,” the decision states.
“We conclude that the appropriate remedy is a declaration that ss. 4 and 5 of the [Controlled Drugs and Substances Act] are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.
“To suspend the declaration would leave patients without lawful medical treatment and the law and law enforcement in limbo.”
Medical marijuana users may have the Criminal Lawyers Association to thank for the court’s immediate declaration of invalidity. The CLA intervened in the case, specifically challenging the appeal court’s determination that a suspended declaration was the appropriate remedy.
“[The courts have] done it seemingly on this theory of deference to Parliament,” says Nader Hasan, a litigator at Ruby Shiller Chan Hasan who represented the CLA before the SCC.
“There’s nothing wrong with wanting to defer to Parliament, but it’s problematic in criminal cases where you have the possibility of people being arrested, charged, prosecuted, and perhaps even jailed for a law that has already been declared unconstitutional.”
Hasan notes that the issue of suspended declarations was dealt with in Schachter in 1992, where then chief justice Antonio Lamer suggested the implications of preserving an unconstitutional law — even temporarily — demand that suspensions be used rarely.
In Schachter, Lamer lays out three exceptions where courts may be justified in suspending their declarations of invalidity:
(1) where an immediate declaration would pose a danger to the public;
(2) where an immediate declaration would threaten the rule of law; and
(3) where an immediate declaration would result in the deprivation of benefits from deserving persons without benefitting the individual whose rights have been violated.
While the appeal court may have put stock in Crown arguments that marijuana-infused pastries may appeal to children and therefore are a danger to public safety, Hasan thinks the suspended declaration had more to do with a trend towards deference to Parliament.
He notes that, since the early 1990s, the SCC has often suspended its declarations of constitutional invalidity, referring the matter back to Parliament — as it did when it struck down Canada’s prostitution laws in Canada v. Bedford. (Parliament has since passed new amendments that are also likely be deemed unconstitutional.)
“This is a court that has always been very sensitive to the important dialogical relationship between Parliament and the courts on constitutional matters,” says Hasan.
One indication of just how “sensitive” that relationship has become — particularly after controversial tit-for-tat public remarks — may be the fact that the SCC offered no detailed explanation or framework for when deference to Parliament is warranted.
Today’s decision, for instance, makes no mention of the principles laid out by Lamer in 1992.
“The court may have been cautious in writing about suspended declarations of invalidity because it is no doubt aware that it has strayed from the Schachter criteria over the years,” says Hasan.
“I suspect the Supreme Court of Canada will want to proceed with caution and move incrementally when revisiting the concept.”
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|Dan Brodsky says the key wasn’t so much what the accused said during the interview but her demeanor while being interrogated.|
Lawyer Dan Brodsky, one of Liard’s defence counsel, says his general rule is to tell clients to exercise their right to remain silent when being interrogated by police. That’s because while incriminating statements can be used against the accused later in court, the general rule is the accused cannot “bootstrap” their testimony with consistent statements they made to police, says Brodsky.
“If Michelle Liard had exercised her right to remain silent, she may not have prevailed at the trial,” he says.
He adds: “Now when somebody calls and says, ‘I’m innocent, I’m innocent, I’m innocent,’ you may well decide in the circumstances of the case to say to the client, ‘I’m going to put the phone down, you go tell that to the police and make sure they’re videotaping it.’”
Liard’s boyfriend Rafal Lasota stabbed and slashed Firgan-Hewie to death in his bedroom in 2008. Liard, who was 19 at the time, was in the home, but not in the bedroom when the murder took place. She was acquitted of first-degree murder in 2012
At trial, Liard said she was in a state of shock when she found out Lasota killed Firgan-Hewie, and admitted to washing blood-stained clothing and lying to Lasota’s sister that Firgan-Hewie was OK and had gone home. She wanted to hide the murder because she loved Lasota, said Liard, but denied ever planning the killing with him.
Superior Court Justice David Corbett found Liard’s videotaped statements to police, in which she asserted her innocence, depicted the “real Michelle Liard” more so than her testimony in court and entered the footage into evidence.
Brodsky says the key wasn’t so much what Liard said during the interview but her demeanor while being interrogated.
“What the person says is less important than how they said it and what the jury can see about the state of mind of the person saying it,” he adds.
The exception to the rule of excluding exculpatory statements made outside of court existed before Liard, but Brodsky says the Court of Appeal’s decision makes it easier to meet the test for that exception.
To put into evidence a previous exculpatory statement, an accused must meet three requirements: The accused must testify, the statement must be made when the accused was arrested or when first accused of committing a crime, and the statement must be spontaneous.
In Liard, the Crown argued the accused did not meet the second and third requirements. The videotaped police interview is not the first time Liard was accused of the crime, the prosecutors said, arguing she was first confronted by Lasota’s sister and mother.
The Court of Appeal disagreed. Lasota’s sister and mother had asked what had happened instead of confronting Liard with an accusation, appeal court Justice John Laskin wrote.
The Crown also argued Liard’s response during her interview with police wasn’t spontaneous since 13 hours had passed since the murder and Liard had already written a note to her grandmother about what happened, something the Crown said shows she had a chance “to think things through” before the police interview.
Again, the court disagreed.
“The trial judge expressly considered the gap of 13 hours between the time Lasota killed Aleksandra and the time Liard began her police interview, and he expressly considered that before her interview Liard had a chance to ‘think things through’ and write a self-serving note to her grandmother,” Laskin said.
“Yet the trial judge found Liard’s reaction during his police interview, and particularly to the charge of murder, to be spontaneous. That was a reasonable finding and is supported by several considerations.”
Those considerations include the fact the trial judge had the advantage of watching Liard’s trial testimony and comparing it to her police interview, the court said.
Initially, police interviewed Liard as a witness before accusing her of a crime later in the interview. Part of the Crown’s argument was if the video statements are admissible, only the portion of the statements that show Liard’s reaction after being accused of the crime should be entered into evidence. The court, however, felt context was important for jthe jury.
Brodsky says it’s likely that wrongful conviction inquiries and the reports that follow have altered “the judicial consciousness” around the importance of exculpatory statements made by individuals when they’re first accused of a crime.
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In fact online is where in-house are doing much of their information gathering these days with 83 per cent saying they use the Internet to consume legal information on a daily or weekly basis. And 75 per cent said lawyer-authored articles and speeches influence their hiring decisions, according to those surveyed as part of the 2015 Canadian Legal Digital Interaction Survey, conducted at the end of 2014 by fSquared Marketing in Vancouver.
However, the No. 1 factor influencing in-house when they need to hire a lawyer remains referral from a trusted source, with 100 per cent saying that was the most important criteria.
The focus of the research was traditional digital interaction, web, and social media engagement and related areas such as content marketing, client feedback programs, electronic billing, client portals, and directories.
Of those surveyed, 68 per cent of participants (41 counsel responded to the in-house survey of 500 invited to participate) were from corporations with more than 1,000 people, and 61 per cent were with companies that have annual revenues of more than $1 billion.
When asked if they are using LinkedIn for professional reasons, respondents said they use it to connect with colleagues and outside counsel whether they work with them or not, and as a platform to share news and information.
The findings resonate with Julia Shin Doi, general counsel and secretary of the board of governors with Ryerson University.
“LinkedIn and Twitter have both been instrumental in my connecting with the legal community about corporate counsel events, sharing news, and celebrating special moments,” says Shin Doi who is active in a number of associations including the Canadian Corporate Counsel Association.
“I also think LinkedIn is a wonderful way to build a connection with a new acquaintance and maintain a connection with old friends and colleagues. I know that connection is real when I see them live and there is already a shared sense of what’s happened, what’s new, and what’s important.”
Shin Doi says lawyers who regularly post on LinkedIn or tweet on Twitter, stay “top of mind when one is grappling with an issue.”
LinkedIn is the social media platform of choice for in-house with 24 per cent of respondents using it daily, while just under 50 per cent use it at least once a week. Specific uses include connecting with other in-house colleagues (39 per cent) and connecting with business or industry leaders (41 per cent). Following much further behind was Twitter (10 per cent) and Facebook (seven per cent).
About 40 per cent say they find legal news, and business and industry information from LinkedIn and 20 per cent pointed to Twitter.
When it comes to social media, in-house counsel don’t necessarily post information, they choose instead to “listen” as a way to stay informed of the latest news and conversations on topics of interest.
All total, 75 per cent of in-house counsel are using social media in their professional life and 54 per cent access content from their outside counsel firms through new media tools including Twitter feeds, blogs, firm-branded mobile apps, LinkedIn and Facebook pages.
New media services are gaining credibility with 54 per cent of those surveyed saying they read legal blogs, and 54 per cent use online lawyer listing services.
The research showed that 54 per cent of in-house counsel use lawyer-authored blogs to research potential outside counsel.
• Lawyer bios rule – 78 per cent use lawyer bios to research potential outside counsel.
• Client feedback programs are lacking — More than 50 per cent of the in-house counsel who responded reported that few or none of their law firms had asked them for feedback. Only 68 per cent of in-house counsel who were asked felt their feedback was heard and acted upon by their outside legal counsel.
• Electronic billing is not the norm — 46 per cent said their counsel offers little or no electronic billing options. Of those that do have the option, 41 per cent only use it to a limited extent.
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