Fresh off a victory in having a disciplinary hearing go ahead against an Edmonton officer alleged to have improperly targeted a local defence counsel, two lawyers have launched a complaint against a sergeant whose text messages to his colleague played a key role in the case.
“I do think it’s a big deal when lawyers are getting arrested because they’re not well-liked by the police,” says Erika Norheim, who’s counsel for Chady Moustarah, the defence lawyer allegedly targeted by police, and Aleksandra Simic, another lawyer present at the time of the 2011 incident.
In the latest development, Norheim has filed a complaint on Simic and Moustarah’s behalf against Edmonton Police Service Sgt. Dana Donald, who was among a group of lawyers gathered at a lounge in Edmonton on April 9, 2011.
According to the complaint sent to police Chief Rod Knecht this month, Donald sent a text message that day to Const. Adam Woodburn advising that Moustarah had been drinking and was about to drive away from the lounge. Woodburn had arrested and charged Moustarah with obstruction of justice a few years earlier for giving someone advice on his right to silence. The Crown had stayed that charge in December 2009.
After getting Donald’s text messages, Woodburn, who was working undercover at the time, tracked down Moustarah at another venue, arrested him, and took him to a police station for a breath test. He didn’t administer a roadside alcohol-screening device and ultimately chose to forgo the breath test at the station. Instead, Woodburn issued the lawyer a roadside licence suspension under the Traffic Safety Act.
In 2014, Knecht dismissed a complaint about Woodburn’s actions. Simic appealed to the Alberta Law Enforcement Review Board, which earlier this month ordered police to conduct a disciplinary hearing on charges of unlawful or unnecessary exercise of authority and discreditable conduct.
Now, Moustarah and Simic are complaining that Donald’s actions in 2011 amount to engaging in corrupt practice.
“Sgt. Donald did not, and could not, have sincerely believed that Mr. Moustarah was driving while intoxicated,” Norheim wrote in the complaint. “Rather, we submit that it is apparent that Sgt. Donald made these statements to Cst. Woodburn to tease or otherwise provoke Cst. Woodburn rather than because he held a sincere belief that Mr. Moustarah was about to commit a criminal offence. . . .”
The complaint cites the fact there was no suggestion Donald made any attempt to see if regular patrol officers were available to make a traffic stop rather than someone working undercover, such as Woodburn.
“The personal advantage in this case was for Sgt. Donald’s own entertainment or amusement or, alternatively, retribution on the part of Cst. Woodburn,” wrote Norheim, citing Donald’s alleged motivation.
The letter notes that during an interview, Donald expressed an opinion that Moustarah had had four or five drinks that evening. Woodburn, however, had at one point said Donald told him in the text messages Moustarah had had six drinks.
“If Sgt. Donald did indeed inform Cst. Woodburn that Mr. Moustarah had consumed six drinks, this would amount to ‘deceit’ . . . as it was a false, misleading or inaccurate statement made willfully or negligently,” wrote Norheim in the complaint.
Norheim says there are other troubling aspects to the case, including what she alleges was the apparent destruction of the text messages exchanged between the two officers.
“Woodburn was never even asked for them.”
She notes in her letter she was able to proceed with the more recent complaint following information revealed in Knecht’s disposition letter on the complaint against Woodburn in 2014 and says another set of allegations are in the works over what happened to the text messages.
She says in regards to information received as part of the record in Simic’s appeal to the Law Enforcement Review Board, she believes she’s no longer subject to an implied undertaking and can move forward with the additional complaint now that the appeal body has released its decision.
Norheim says the case is reminiscent of the famous Overtime case in Edmonton in which police officers landed in hot water for attempting to target a local newspaper columnist and the chairman of the police commission in an impaired driving sting. The incident led to a series of lawsuits, disciplinary hearings, and appeals.
“It’s very similar to Overtime,” says Norheim, saying the case involving Moustarah and Simic has flown under the radar.
Can family lawyers include a provision in their retainer agreements giving themselves discretion to withdraw from the case for non-payment of legal fees?
That was one of the issues in a Law Society Tribunal case in which the panel made findings of professional misconduct against a Whitby, Ont., lawyer who acted for a client in her matrimonial dispute. At the very least, a lawyer must advise the client about obtaining independent legal advice, the tribunal found.
In this case, the retainer included a provision noting that the lawyer, Matys Rapoport, “in his discretion may withdraw from acting on my behalf” for reasons including non-payment of an account. “
“I expressly give Max Rapoport permission to sign a notice of change in representation on my behalf should he deem same necessary,” stated the retainer agreement signed by the client in 2010.
With the client not having paid accounts totalling $23,027.52 by September 2011, Rapoport began expressing concern about the outstanding amounts and told her that fall that he’d no longer act for her unless she began making payments, according to the tribunal’s July 7 decision.
In November 2011, the lawyer sent a letter saying he’d continue to act if she signed two consents to judgment. She signed them but with the issues over payment continuing, he sent another letter in March 2012 saying he’d remove himself as solicitor of record unless he received $34,000 towards the outstanding account within 10 days, according decision written by panel chairwoman Susan Opler.
Rapoport ended up filing a notice of a change in representation on the client’s behalf, Opler noted. The client responded with an e-mail calling the lawyer’s withdrawal as “unfair” and “unfortunate.”
For his part, Rapoport noted his reliance on the retainer agreement as a “precedent form retainer agreement that several counsel (unidentified) rely upon in his jurisdiction,” wrote Opler.
But in considering whether his actions were acceptable, Opler compared them to another case in which a family lawyer’s retainer agreement contemplated a client giving up his right to an assessment under the Solicitors Act.
The client in that case had essentially contracted out of the Solicitors Act, she found, noting Rapoport had achieved a similar result by obtaining the consents to judgment and serving a notice of a change in representation.
“This latter appropriation of the client’s right to terminate the relationship ‘at will’ meant the Lawyer effectively bypassed the procedural safeguards that apply to counsel of record established in the Family Law Court Rules, which protect the client and safeguard the process. In our view, both the assessment process and the right to end the solicitor client relationship ‘at will’ . . . are consumer protection provisions designed for the protection of the public which should not be appropriated by the Lawyer,” she wrote.
Opler highligted the power imbalance at issue and the importance of advising on the need for independent legal advice “as a lawyer treads closer and closer to the line of encroaching on existing client rights in favour of strengthening his own economic position.”
The decision continues: “Suffice to say that in this case, where no acknowledgment of the inherent conflict is included in the agreement nor is there guidance given to the client to seek independent legal advice, we find that the Lawyer was in an impermissible conflict of interest when he advised the client to hand over to him all control over service of a Notice of Change in Representation — a right that properly belonged to her pursuant to Rule 4(10).”
While the panel made the misconduct findings, it must still reconvene to consider the penalty.
Rapoport’s counsel Ted Spong declined to comment as the case is still before the tribunal.
- Tragedy also strikes law office in Terrebonne, Que.
|Winnipeg police have charged Guido Amsel in connection with the bombing that seriously injured lawyer Maria Mitousis.|
Police, in fact, told the news conference they were investigating another scene at a Canada Post depot this morning and have issued a warning for people to watch for other incidents. The package turned out to contain only DVDs, reported the Winnipeg Free Press.
“Police are concerned that other packages could have been sent out to other legal counsel or justice officials who have dealt with Amsel,” the Winnipeg Police Service said in a news release yesterday.
“Police are asking those individuals to be aware and diligent in alerting police to any suspicious packages or items that may be addressed to them.”
The warning follows Friday’s explosion at the law offices of Petersen King on River Avenue that left lawyer Maria Mitousis, 38, with serious injuries to her hands, throat, and stomach. Police said this morning she remains in hospital and noted her condition had stabilized and she has been able to speak to officers.
Police investigated a second explosive device on Saturday as well as a third at the law firm Orle Barkman and Davidson on Stradbrook Avenue yesterday.
Police had earlier called the original bombing an isolated incident but have since charged Amsel, 49, with two counts of attempted murder, one count of aggravated assault, and a number of counts related to the possession of explosive devices. They are suggesting he has targeted his ex-wife as well as legal counsel who have represented either her or himself in the past.
Response and support from the bar both in Winnipeg and across Canada has been overwhelming says Sofia Mizra, president of the Manitoba Bar Association. Mizra says friends and family say Mitousis is recovering very well but her injuries are quite serious.
Members of the bar in the city are staying alert and looking carefully at packages before they open them, she says, noting the MBA offices were also evacuated on Friday in one of the other bomb scares.
According to police, the devices discovered so far have had distinct packaging and “unique” block lettering. Due to the Canada Day holidays last week, police believe any further packages will likely emerge in the next day or so.
Mizra emphasizes that issues of threats and potential violence are not new to many lawyers who are often involved in very emotional circumstances with their clients, but the situation with the bombings is obviously extreme. Lawyers and judges, particularly in the area of family law, are often on the receiving end of the anger from unhappy parties.
“When litigants hear something they don’t want to hear, they can take matters into their own hands,” she says, adding, “We have some brave lawyers in our community.”
According to Manitoba court records, Mitousis had represented Iris Amsel in family litigation against Guido that dates back to 2004 as well as a separate case filed in 2010 dealing with a numbered company. Mitousis is a family lawyer who had joined family law boutique Petersen King in 2014. Manitoba court records show Guido has also faced other small claims litigation matters over the years.
According to the CBC, police on Sunday deployed the bomb unit as part of the their investigation to two businesses, including EuroTech Auto Body. That business is among the defendants, along with Guido, named in the lawsuit launched by Iris involving the numbered company.
The incidents follow another tragic situation involving members of the legal community in Quebec. According to the CBC, lawyer Benoït Côté, 51, and notary Marie-Josée Sills, 30, died in hospital Saturday after a shooting at a law office in Terrebonne, Que., on Thursday.
Côté had once represented Michel Dubuc, a man found dead in his home on Friday along with the bodies of his two sons. Côté had been facing a $1.2-million lawsuit filed by Dubuc, the CBC reported.
Longueuil police spokesman Tommy Lacroix told the Canadian Press the timeline of events and motives behind the shooting had yet to be established but that autopsies were going to be conducted.
Canadian Bar Association-Manitoba members Laurelle Harris and Kelli Potter have set up a donation page on gofundme for those looking to support Mitousis in what will likely be a long recovery. In two days, it has raised more than $25,000.
|Lakehead law dean Lee Stuesser has resigned after less than two years in the role.|
Calling resignations a “personal matter,” Stuesser declined to speak about his decision yesterday. The faculty has named Osgoode Hall Law School’s Lisa Philipps to take over the role of interim dean as of today. An expert in tax law and fiscal policy, she’s taking leave from Osgoode, where she has been a member of the faculty since 1996.
Whitney Donnelly, president of the Lakehead University Law Students’ Society, says she learned of Stuesser’s resignation on Friday. “Students were definitely his passion,” she says, noting Stuesser would always have the new students over at his house for a barbecue at the beginning of the year. “It was nice to see the dean being accessible and down to earth,” she says.
Donnelly also notes Stuesser was a strong advocate for Lakehead’s unique integrated practice curriculum and credits him with ensuring a strong link between the law school and local practitioners, including by having lawyers from around Thunder Bay, Ont., come in as tutors and guest speakers. “He made sure that the law program was really immersed in the Thunder Bay legal community,” says Donnelly, adding that those links helped a lot of students, including herself, land summer jobs in the area.
“I am grateful for the opportunities I’ve had to cut the ribbon, open the doors, and grow this faculty of law from day one,” said Stuesser in announcing his departure.
Stuesser’s accomplishments include helping get the student legal clinic off the ground as well as helping raise $3.5 million in capital and student support funding, according to Donnelly. “He laid the foundation,” she says of his legacy. “He turned a 100-year-old high school into a professional faculty.”
With Stuesser’s departure, the university said it had begun the search for a new dean and would convene a committee soon. The move comes as a number of law schools across Canada are looking for new deans, including the University of Windsor following Camille Cameron’s decision to join Dalhousie University’s Schulich School of Law in September, the University of Saskatchewan College of Law, and the University of New Brunswick Faculty of Law.
|Brian Gover says there was strong agreement among the various parts of the bar on what needs to change to improve practices for civil trials.|
Last week, the organization released the best practices document as part of an effort to boost efficiency in civil matters across Ontario. It launched the task force following Ontario Superior Court Associate Chief Justice Frank Marrocco’s challenge to the organization to study the issue and seek a better way forward. The task force then undertook research into best practices and, in January 2015, The Advocates’ Society held a symposium on civil trials that included more than 100 members of the bench and bar.
According to the principles underlying the recommendations, the best practices are to go beyond the minimum standards of the Rules of Civil Procedure. They also suggest lawyers “should seek to cooperate with one another in the interests of keeping the civil process as fair and efficient as possible.”
According to Gover, there was strong agreement among the various parts of the bar on what needs to change. “I’d say there were differences of opinion on minor points but we did reach agreement on so much,” he says.
The specific best practices cover case management, trial planning and management, the use of documents and technology, and expert evidence. On case management, they urge fixing the trial date and length as early as possible in order to focus the parties and narrow the issues; setting reasonable and meaningful deadlines with consequences, included costs, for missing them without adequate justification; and avoiding having a case management judge who conducts the trial also handle settlement conferences. Other recommendations include allowing judges and masters to assign matters to case management of their own accord with counsel also able to request it unilaterally. As for timelines, the best practices say a case management conference should be available within 30 days of a party requesting one. They also encourage flexibility through options such as holding the case conference via phone or video.
The focus on case management, according to Gover, reflects the negative attitude the task force heard from many judges about the usefulness of motions. “That’s why we had to reboot case management,” he says.
When it comes to trial planning and management, the best practices raise the idea of having equal fixed time allocations per party within the trial with limits for both oral opening and closing submissions. In addition, they suggest the court should assign a trial judge to the case at least 60 days in advance of the first day of trial who should then conduct a trial management conference as soon as possible.
The best practices for documents and technology include allowing potential out-of-town witnesses to testify via video if possible. And on expert witnesses, the guidance looks down on the idea of waiting until the trial to challenge expert qualifications. “I think we have to realize that we’re front ending a lot of the work,” says Gover, who expresses confidence about the feasibility of the practices overall. “I think it is realistic,” he says. “It’s dependent on judges holding lawyers to the best practices,” he adds, citing the potential for cost consequences.
“We have been told that the court is strongly supportive of this initiative,” says Gover, who suggests the best practices may be useful for lawyers’ and law firms’ marketing efforts. “It may even be an effective marketing tool for lawyers.”
|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.
|Virtually all the changes come into effect today and those that don't will be retroactive, says LAO's Thomas Nye.|
“Virtually all of them come into effect immediately,” he says of the changes, noting the only exception involves the changes with respect to bail matters.
“However, they will be retroactive to June 8,” he adds.
With the Ontario government pumping more than $96 million into LAO over three years, the agency is moving ahead with an expansion of certificate coverage to provide assistance in a greater range of areas. This is in addition to the series of increases to the income eligibility threshold that started taking effect last year.
In criminal law, for example, LAO will now issue certificates based on criteria besides the loss-of-liberty test that considers an applicant’s likelihood of going to jail. Under the changes, certificates will be available to those meeting the income eligibility criteria who are facing secondary consequences of a criminal conviction such as a risk of deportation; immediate loss of public housing; or a significant impact on access to family and child custody.
In addition, LAO will expand coverage for those meeting the income criteria with no prior criminal record in situations where the Crown is seeking a conviction or discharge and the defendant is First Nation, Métis, or Inuit; has a mental illness; or is a victim of domestic violence charged with an offence related to a partner.
When it comes to bail, the changes include providing for enhanced certificates for reviews that will expand the number of hours lawyers have to challenge bail orders and improper conditions imposed on those released.
In the area of family law, the changes will expand coverage for complex cases. According to Thomas, they refine the definition of complexity to deem certain matters, such as those dealing with applications under the Hague Convention on the Civil Aspects of International Child Abduction, to be “presumptively complex.”
As well, they’ll include provisions for what Thomas calls “client complexity criteria” to define complexity on the basis of client characteristics such as literacy issues or language barriers.
Additional changes will provide for certificates in mental-health proceedings to assist those meeting the income eligibility criteria who wish to bring guardianship applications before the Consent and Capacity Board or the Superior Court.
In addition, the changes provide for expanded coverage in refugee matters and domestic violence cases. They’ll also provide for targeted services for aboriginal clients and expand LAO’s public-interest criteria for test cases that address systemic issues affecting the poor.
“The old test-case criteria were pretty narrow,” says Thomas, noting it will now be possible to provide a certificate in a test case with significant implications for the poor even if the representative client doesn’t meet the financial eligibility criteria.
“We are growing the program to match the funding,” says Thomas, adding there may be further changes as the funding continues to grow — including another $67 million announced by the province in its spring budget for 2017-18 — and LAO assesses the impact of the expanded services so far.
“The fact of being an American citizen is not an automatic bar to release from the station,” wrote Ontario Court Justice Mara Greene in R. v. Sabatini, a case involving a charge of intoxicated driving against C. Sabatini.
As part of her consideration of whether police actions had breached the s. 9 protection in the Charter of Rights and Freedoms against arbitrary detention, Greene looked at the provisions for release under s. 498 of the Criminal Code.
It provides that if the someone isn’t ordinarily resident in the province or doesn’t reside within 200 kilometres of where he or she is in custody, police shall “release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.”
In Sabatini’s case, she had been living in Toronto for six years and had two jobs and a valid work permit ending in October 2016 when police charged her on March 15, 2014. She had no prior record and wasn’t displaying any overt signs of impairment, according to Greene.
Instead of releasing her from the station, police placed her in a cell next to someone “who was screaming at the top [of] his lungs” for a half hour, Greene noted. When taken to the courthouse the next day, she had to wait for hours next to a backed-up toilet for the court to address her matter.
It’s clear from the case that police had varying perspectives on whether they could release a non-citizen. One officer testified his understanding was there was a Toronto police policy to hold anyone who’s not a Canadian citizen or, as he later clarified, those who aren’t from Ontario. A detective not directly involved with the case, however, testified there was no policy to hold those who are in Toronto on a work permit.
In considering the Charter breach, Greene found the officers had failed to consider the factors under s. 498 for releasing someone.
“In fact the officers did not even discuss Ms. Sabatini’s long standing residence in Toronto or whether or not this person, with no criminal record, would attend court,” wrote the judge. “I therefore find that when Ms. Sabatini was held for a show cause hearing, entirely because she is an American citizen who was ordinarily a resident of Toronto, her section 9 rights were violated. The detention was unlawful and arbitrary.”
Leo Adler, a lawyer who dealt with a similar issue involving a defendant from another province, says he has seen this type of situation arise before.
“Certainly, for drinking and driving offences . . . there’s no room for this type of shenanigans,” says Adler, a partner at Adler Bytensky Prutschi Shikhman who represented a Montreal resident in R. v. Doyon earlier this year.
He considers police actions in these types of cases to be a significant Charter breach.
“Also, as a Canadian, we have one Criminal Code and it doesn’t make sense to subject people to different standards just because they come from different parts of the country,” he adds.
In deciding as to whether to grant a stay of the proceedings in Sabatini, Greene found the personal prejudice suffered by the defendants in other cases where police had improperly failed to release them was greater than in Sabatini’s. However, she did note a significant concern about police practices in regards to the issue in general.
“In the case at bar . . . there is actual evidence of a systemic problem within the police force as it relates to understanding the longstanding laws relating to release,” she wrote.
“In reaching this conclusion, I note that firstly, this is not the first case where a non-citizen has been held for a show cause hearing because the police improperly understood section 498 of the Criminal Code.”
Noting the concern about “a systemic training issue that impacts individual’s liberty,” Greene granted the stay.
“Balancing all these factors, I am satisfied this is one of the clearest of cases where a stay should be granted,” she wrote.
|Quebec City lawyer Lu Chan Khuong is the newly elected president of the Barreau du Québec.|
A lawyer since 1997, Khuong began her career in business law, specifically in bankruptcy and insolvency. Since 2000, her practice has largely focused on administrative law. She has spent most of her legal career at Bellemare Avocats since finishing her law degree at the University of Quebec in Montreal in 1996. She has also had many years of involvement with the barreau, including serving as vice president of the executive committee since 2014.
There was some controversy during the election campaign that wrapped up Friday over excessive partisan e-mails that prompted outgoing barreau president Bernard Synnott to make a video plea for moderation a few weeks ago.
That may be the reason Quebec lawyers voted in greater numbers than Ontario lawyers did during the recent Law Society of Upper Canada bencher elections. Turnout in Quebec was more than 44 per cent compared to 34 per cent in Ontario.
“I thank all of the candidates for their participation in the democratic life of our professional body and I congratulate the newly elected,” said Synnott in announcing the results.
Among the issues emphasized in Khuong’s election platform were the needs of young lawyers. A former president of the Young Bar Association of Quebec City, Khuong has vowed to give young lawyers greater representation on the barreau’s committees. She has also called for a review of practice fees, lowering the president’s salary, and redefining the barreau’s mission.
In addition, Khuong has questioned the level of insurance coverage for Quebec lawyers, which she says is 10 times higher than elsewhere in Canada, and is calling for a more inclusive profession.
Besides electing Khuong, Quebec lawyers also voted in several people to serve as members of the barreau’s board of directors. They include Louis-François Asselin, Antoine Aylwin, Thomas Davis, Rima Kayssi, Jamilla Leboeuf, Claudia Prémont, and Nathalie Vaillant. Maryse Dubé, Pierre Lévesque, Robert Poitras, and Christian Tanguay. All won by acclamation. While Deshaies lost to Khuong, seven of the new directors were among the slate of candidates he put forward.
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