Canada

Halifax cancer victim seeks damages over firing, The Chronicle-Herald

B.C. lawyers set to rally for more legal aid funding, The Vancouver Sun

Man. couple who hosted party fined over teen's death, CBC News

United States

Ala. official loses apppeal to overturn corruption conviction, Reuters

Investment group can't sue law firm over Dreier fraud: court, Reuters

International

Australian court overturns competition watchdog's decision, Reuters

Ivory Coast ex-president charged with crimes against humanity, Reuters

A well-communicated and detailed anti-fraud program that comes from the top may help curb white-collar crime in the workplace, but few organizations are providing training on areas such as cybercrime, according to a new study.

“When senior management takes an active interest in fraud within their organization and takes strong disciplinary action towards the perpetrators, the right ‘tone at the top’ is established,” says Steven Henderson, national forensic services leader at PwC in Canada. “A corporate culture that clearly stresses the importance of integrity, where executives are seen as walking the talk and that has a well-communicated and comprehensive anti-fraud regime, is less likely to be victimized by economic crime.”

When it comes to what kind of fraud is of most concern, the perceived risk of cybercrime to Canadian organizations is on the rise according to a new PwC report on economic crime.

The 2011 Global Economic Crime Survey ranks cybercrime as one of the top four economic crimes (23 per cent), slightly behind accounting fraud and bribery, and corruption (24 per cent). Theft is the top crime, reported by 72 per cent of organizations around the world that were victims of economic crime in the past year.

Overall, 32 per cent of the Canadian respondents from business and government said they were victims of some form of economic crime during the past 12 months, a decrease of 24 per cent from PwC’s 2009 survey. “Canada has historically reported higher instances of white-collar crime than our global counterparts but the 2011 results show that we are now reporting fewer instances,” says Henderson.

This could be happening for a few reasons such as better diligence in implementing anti-fraud regimes within companies, the Canadian economy being stronger over the past two years than other countries, resulting in an environment with less visibility of fraud which normally arises during a downturn, or the fact that cybercrime or collusion between parties are still being committed but are inherently more difficult to detect.

When it comes to cybercrime, 38 per cent of Canadian respondents believe the perception of its risks has increased and the majority (57 per cent) think the greatest threats are coming from outside their Canadian organizations and abroad. Globally, countries reported as the top five most likely places that cybercrime originates from are: Hong Kong and China, India, Nigeria, Russia, and the United States.

“Cybercrime is global in nature and traditional geographic borders do not provide protection,” says Henderson. “Organizations should have a clear understanding of current and emerging cybercrime threats, and management needs to understand the risks and opportunities that are inherent in a cyber world.”

However, while companies may recognize the significance of protecting and investigating cybercrime incidents, only 36 per cent of the Canadian respondents said they have in-house capabilities to investigate cybercrime and less than half have access to forensic technology investigators who can create effective response mechanisms and policies.

In addition, nearly half of the Canadian organizations reported that they had not received cyber security related awareness training in the past year. Only 21 per cent said that senior executives review the risks that cybercrime presents on an annual basis, further supporting the more “reactive culture” to crime prevention found in the survey results.

More traditional types of fraud such as theft are most often being committed within the company, by employees (56 per cent), while external fraudsters were the main perpetrator 40 per cent of the time, according to global respondents.

The typical internal fraudster was profiled to be male (77 per cent), between the ages of 31 and 40 years old (43 per cent), a first-degree graduate (37 per cent) and had been employed with the organization between three and five years (30 per cent). In addition, 39 per cent of the perpetrators were classified as junior staff, 41 per cent as middle management, and 18 per cent as senior management.

“Crimes by senior management tend to be more sophisticated, larger in dollar value, and more difficult to detect,” says Henderson. “This could be a factor in why frauds committed by senior management were not identified nearly as often as those committed by more junior staff.”

When employees have been identified as committing economic crimes, they are most often dismissed from their jobs (77 per cent). Forty-four per cent of the time law enforcement is involved and in 40 per cent of the incidents, civil action is taken.

The 2011 survey was completed by 3,877 respondents from 78 countries. Of the total number of respondents, 52 per cent were senior executives, 36 per cent represented listed companies and 38 per cent represented organizations with more than 1,000 employees.

This year’s Canadian report is divided into two sections: cybercrime and awareness of the crime, how it impacts organizations, and what actions are taken to address risks; and fraud, the fraudster, and the defrauded, including the types of fraud committed, who is committing them, how they are detected, and actions taken by organizations in response.

Canada

B.C. court dismisses couple's snake case, Toronto Sun

Mining company, First Nation seek injunctions, The Globe and Mail

Mother accused of killing baby claims Crown withheld key evidence, The Globe and Mail

United States

Court delays AT&T-T-Mobile merger hearing, Reuters

Judge rejects proposed Citigroup-SEC settlement, orders trial, Reuters

International

Irish court orders ex-tycoon to pay back 1.7B euros, Reuters

Norwegian mass murderer found insane, could avoid jail, Reuters

A judge who’s calling escalating prices on the court’s time has given the parties in a bankruptcy proceeding just two weeks to file a joint litigation plan after he took over aggressive management of the case.

Superior Court Justice David Brown says charging higher fees will make litigants more thoughtful as to the use of court time. Photo: Gail J. Cohen

Ontario Superior Court Justice David Brown made the order in Atlas Holdings v. Vratsidas last Thursday. It stemmed from the 2007 bankruptcy of Canaclean Building Services Inc., from which Atlas Holdings is seeking $251,000 in outstanding claims. According to the ruling, George Vratsidas and his family allegedly diverted Canaclean customers to a numbered company and later First Maintenance Solutions Ltd. that they had incorporated in the meantime.

But the dispute has since become bogged down in disputes over document production. In June, for example, the court ordered the defendants to provide information about its customers within 10 days of an Ontario Court of Appeal ruling in the case. The appeal court issued written reasons dismissing the appeal on Sept. 6, but First Maintenance and Vratsidas have only partially complied with the court order given their concern that the plaintiff is a competitor, Brown noted. In his ruling last week, Brown, citing the plaintiff’s agreement to restrict access to the documents to its own counsel, said the defendants had breached the court’s order.

In response, Brown threatened to strike Vratsidas’ and First Maintenance’s defences. But instead, he granted the plaintiff access to the materials in question subject to the proposed restrictions. In doing so, he ordered the parties to meet by Dec. 7 in order to come up with a discovery plan, detail any motions they’re considering, address any unpaid costs awards, and come up with a date by which they’ll be ready to set the matter down for trial. At the same time, they must file a joint litigation plan by Dec. 9.

In issuing his ruling, Brown referred to strongly worded comments he has made about civil litigation in the past, including a paper he wrote in May on the sacred cows of the justice system he believes it’s time to do away with. Among his proposals, he would institute pricing for judicial time. In a wrongful dismissal action, for example, parties would have the right to one motion before trial. If they want to bring a second motion, they’d have to pay a higher filing fee. At the same time, he’d introduce incentives to move things along by granting priority in getting hearing dates for parties who agree to follow the rules.

“At the present time, the Superior Court of Justice is operating under conditions of scarcity of judicial resources relative to the demands generated by litigants in the system,” Brown writes in Atlas. “Just as when the price of gasoline increases, those who drive cars think a bit more carefully about how much to use the car and take some care in mapping out more efficient routes to follow when they do drive, so too, if the fees for hearings increase in proportion to the length of hearings, I have no doubt that litigants and their counsel will think more carefully about how to use hearing time.

“Under the present fee structure, they can essentially treat judicial time as free, and we are now witnessing chronic waste and misuse of judicial time by those who use the civil court system.”

Canada

Lansdowne Park development case in Court of Appeal, CBC News

B.C. farm owners fined for toxic leak that killed 3 workers, Metro

N.B. court upholds police program for driver drug impairment, Telegraph-Journal

United States

Wyclef Jean misused Haiti relief money: report, The Gazette

Syracuse basketball coach fired amid sex investigation, Reuters

International

UAE pardons activists who insulted leaders, Reuters

Kenyan court orders Sudanese president's arrest, Reuters

Articling students hosted Give A Night to World AIDS at the Devil's Martini on Nov. 24 and raised over $19,000 for the Stephen Lewis Foundation and Dignitas International. The event supports Give A Day, which recognizes World AIDS Day on Dec. 1.

All photos by Heather Gardiner.

Canada

SCC clears way for government to fine U.S. Steel, Reuters

Top court to hear appeal in B.C. malpractice lawsuit, The Vancouver Sun

Supreme Court refuses to hear appeal of cheese rules, The Globe and Mail

United States

Egypt releases 3 U.S. students arrested in protest, Reuters

Suspect arrested in fatal shooting of woman at hospital, Washington Post

International

Ex-Italian PM's bid to block trial hearing rejected, Reuters

ISPs can't be forced to monitor users, EU court rules, Reuters

A British Columbia judge has awarded special costs to a food distribution company after finding its governmental opponents engaged in conduct that was “reprehensible and deserving of rebuke or reproof.”

The Los Angeles Salad Company had sued the Canadian Food Inspection Agency and the Attorney General of Canada over an allegedly negligent investigation into a 2007 food scare that identified baby carrots it distributed as the possible cause of illnesses in the Calgary area.

During the course of litigation, government lawyers acting for the defendants raised concerns about an affidavit filed by one of the food company’s lawyers, Tina Mihoc of Davis LLP. They moved to have the affidavit struck, alleging it offended professional conduct guidelines because it contained inaccurate assertions of evidence on disputed facts.

Mihoc filed a responding affidavit to answer the charges and a two-day hearing followed on the admissibility of both affidavits, where Saskatchewan-based Justice Canada lawyer Scott Spencer persisted with his argument that the facts in them were spun or incomplete “when it was obvious that the statements in issue were true,” wrote B.C. Supreme Court Justice David Harris in his Nov. 17 judgment.

Harris added that there was no foundation for calling into question Mihoc’s professionalism and integrity, and noted that she had actually drawn the “disputed” facts from the defendants’ own evidence. He also dismissed Spencer’s argument that the second affidavit was a tactical litigation decision, saying the allegations levelled against Mihoc “could not go unanswered.”

“On a number of occasions, defendants’ counsel reiterated that he was not suggesting that the faults he found with the affidavits were the result of intentional conduct by Ms. Mihoc. He said he was not impugning her professional integrity or raising a matter of a disciplinary nature. No more did Mark Anthony intend to praise Caesar when he came to bury him,” Harris went on.

“If their objections were valid and drained of any suggestion of impropriety, the best that could be said for Ms. Mihoc was that she was a thoroughly incompetent counsel who, among other failings, could not distinguish between giving opinion evidence she was unqualified to give and evidence of fact. She inadvertently prejudiced her own clients’ case by binding them to evidence against their interest. In my view, even drained of any suggestion of impropriety, these allegations are damaging to a counsel’s reputation. The damage is even greater to a young counsel making her way in the profession and attempting to build a career on the strength of her professional competence and reputation.”

Harris did, however, say that he understood Spencer’s concern about seeing “barrister room discussions” quoted back at him in Mihoc’s affidavit and said he was unclear about why they were necessary. He also said it was “apparent that relations between counsel were strained even before” the affidavit objections were raised.

Taken together with Spencer’s refusal to accept a “reasonable” compromise suggested by Mihoc’s co-counsel to get around the admissibility of the affidavits, Harris found the defendants’ conduct crossed the “reprehensible” threshold necessary for a rare special costs order.

The hearing on special costs came in October 2011, several months after Los Angeles Salad’s claim was dismissed when Harris determined the firm was not owed a duty of care by the defendants.

Canada

First Nation loggers, protesters head to B.C. court, Victoria Times-Colonist

CBC president testifies after losing access dispute, CBC News

Teens face robbery, murder charges in death of senior, The Chronicle-Herald

United States

Deadlocked jury leads to mistrial in N.J. murder case, Reuters

Judge dismisses class action against Netflix, Wal-Mart, Reuters

International

Italy sued over shipping tax exemption, Reuters

Israeli court jails Palestinians over U.S. missionary's death, Reuters

British Columbia Supreme Court Chief Justice Richard Bauman upheld the country's 120-year-old ban on polygamy, ruling the harm it causes to women and children outweighs any infringement of religious freedoms.

Amicus curiae George Macintosh leaves court with the weighty polygamy reference in hand. Photo: Ben Nelms/Reuters

“I have concluded that this case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage,” said Bauman.

In a landmark reference case to decide if the polygamy law should be struck down, Bauman ruled that the Criminal Code’s s. 293 prohibition on multiple marriages is consistent with the Canadian Charter of Rights and Freedoms and should remain. While it does contravene s. 2(a) religious freedoms, it is justified under s. 1 of the Charter due to the harm it can cause.

“I accept that for some, especially fundamentalist Mormons, the interference with a sincerely held belief represented by the prohibition in s. 293 is very significant. Still, I acknowledge the point made by the Attorneys General that some fundamentalist Mormons do choose to live monogamously without sacrificing their religious beliefs. And as we have seen, polygamy in Islam is not mandated, although it is permitted by the Qu-ran,” writes Bauman.

But at the same time, the chief justice ruled that the section shouldn’t be used to prosecute teenagers married into polygamy.

He notes, “s. 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it includes within its terms, children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time.”

It was not within his purview to suggest a remedy but suggests in his disposition that “one alternative is to read into the law an exclusion of the problematic application. Here, I would do so in respect of the noted group of potential accused persons.”

The case was brought by the British Columbia government, which wanted to test the constitutionality of the law before taking legal action against members of a breakaway Mormon sect that practises polygamy at their Bountiful settlement in the southeast of the province.

Authorities have been wary of prosecuting members of Fundamentalist Church of Jesus Christ of Latter-Day Saints out of fear the 19th century anti-polygamy law ran afoul of more recent civil rights protections and would not hold up in court.

A central issue in the case has been the question of whether the practice of polygamy involves the potential for abuse of women and children in polygamous communities.

The FLDS says it is exercising its religious freedom. The group’s critics say it subjugates women, requires underage girls to marry older men, and creates other social ills, including forcing young unmarried boys onto the streets.

Bauman said lawyers for the B.C. and Canadian governments had demonstrated “a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy.”

If the court had overturned the current law, it would have meant Canada would be the only western country allowing polygamous marriages.

— with files from Reuters