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.
In the raft of coverage regarding the not guilty verdict against Jian Ghomeshi for four counts of sexual assault and one of choking, one Toronto lawyer weighed in with an interesting take.
|Jian Ghomeshi leaves court after an Ontario judge found him not guilty on five charges last week. (Photo: Jenna Marie Wakani/Reuters)|
“Certainly, as it regards the Crown and police, I think there was every reason for them to initiate the prosecution of Mr. Ghomeshi given the information they had from the complainants.
“However, as the trial proceeded and further information came to light, it seems to me the Crown and police should have taken a very hard look at the matter and asked whether there was still a reasonable prospect of conviction,” he says.
“Damaging contradictory information was being given to the Crown and police by one or more of the complainants while their evidence was underway, and there was of course the very damaging cross-examination. I think it was incumbent on the Crown to re-evaluate the situation and decide whether they could still safely proceed.”
Rouben says during the trial prosecutors and police were getting more information from the complainants that “contradicted or elaborated on information” they had already received.
“Of course, during the cross-examination a lot of additional information came out of that, in the form of e-mails that it appears the Crown didn’t have. When they kept getting this new information, and it became clear the police and the Crown hadn’t been given full information by the complainants, I think there was an obligation on them to . . . take a step back and consider whether there was still a reasonable prospect of conviction.”
In his controversial ruling, Horkins said the value of one complainant’s evidence suffered “irreparable damage” under cross-examination.
“Defence counsel’s questioning revealed inconsistencies, and incongruous and deceptive conduct. L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly,” said the ruling.
Of the second complainant, Lucy DeCouture, he said she “proceeded to consciously suppress relevant and material information, despite an oath.”
And of the third complainant, Horkins says she “was clearly ‘playing chicken’ with the justice system.”
“She was prepared to tell half the truth for as long as she thought she might get away with it,” he said. According to the 2009 Supreme Court of Canada ruling, Miazga v. Kvello Estate, “malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution.”
“To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect,” said the ruling.
Rouben says he is not advocating for a malicious prosecution claim by Ghomeshi.
“There’s grounds for it in [the judge’s] decision, whether it’s a wise course of action is a different issue,” says Rouben.
Not all malicious prosecution cases are against the Crown or police. In 2014, the Ontario Superior Court awarded damages to a man who falsely accused another of criminal actions in Drainville v. Vilchez.
The union representing federal prosecutors is considering whether an appeal is in order after a recent decision that, despite stipulations to the contrary, may amount to a “blanket prohibition” on public prosecutors running for office.
|The Federal Court upheld the firing of former federal Crown Emilie Taman over her decision to run for office.|
“If somebody of Ms. Taman’s position is not permitted to run for office, I do fear that there’s a blanket prohibition,” says MacKay, “but the decision clearly states otherwise, that it’s not a blanket decision.”
Taman, a former prosecutor in the regulatory and economic prosecutions and management branch of the Public Prosecution Service of Canada, submitted a request in November 2014 to the Public Service Commission for an unpaid leave of absence while she sought the NDP nomination.
That request was denied after the commission considered Taman’s arguments as well as those of her employer. While the PPSC argued that the perception of Taman’s impartiality as a prosecutor would be irreparably damaged if she were allowed to run for office, Taman argued her Charter rights to engage politically must be accommodated if at all possible.
Indeed, in her submissions to the PSC, Taman lays out a number of ways in which she might be able to return to her job without jeopardizing the impartiality of the prosecutors’ office, including “firewalls” that would prevent her from dealing with a matter in the rare instance that it’s politically sensitive.
Despite failing to get permission, Taman decided to run anyway — which led the PPSC to fire her on administrative grounds. Taman then issued a grievance with her union, the Association of Justice Counsel, which also backed her application to have the Federal Court set aside the PSC’s decision.
This week’s ruling by Justice Catherine Kane upholds the PSC’s denial and consequently the PPSC’s termination order, which has left the AJC considering its options.
“I can tell you that the AJC and counsel for Ms. Taman are looking at the decision and reviewing it for the possibility of an appeal,” says MacKay. “Certainly if you have a panel of three appellate-level judges, then I suspect you’d get a better look at the issues at hand.”
The union president says that, while he saw no glaring error in Kane’s decision, he found it frustratingly myopic in that it focused on provisions within the federal Public Service Employment Act while ignoring the fact that provincial statutes currently allow public prosecutors to run for office.
“They simply deflected those arguments by saying, ‘Well that’s not under the PSEA. We’re only considering this act.’
“If all the other provinces think it’s okay for public prosecutors to run for office, how could that be completely irrelevant?” asks MacKay.
While he acknowledges that political expression must be limited for civil servants, he wonders whether a prohibition on running for office — which he calls the “ultimate political expression” — crosses the line.
“I think you should be able to pursue just about any political action you want, if you’re no longer working for the government. If you’re willing to take that step, to take a leave of absence from your employment without pay and detach yourself from that position, you should be free to do things politically, including running for office.”
A week after winning the NDP nomination for Ottawa-Vanier, former federal prosecutor Emilie Taman was in Federal Court Tuesday, asking for a judicial review of the Public Service Commission of Canada’s decision not to grant permission for her to seek nomination as a candidate in the federal election.
|Emilie Taman says many consituents in the Ottawa-area riding she is running in reached out to her.|
In early July, Taman vacated her office, beginning what she called “an unauthorized leave of absence” to enter the contest for Ottawa-Vanier’s NDP nomination.
She had applied for a leave of absence last year, but the Public Prosecution Service of Canada refused, arguing her ability to return to work after the political race would be “impaired or perceived to be impaired.” After receiving a series of warning letters, Taman was fired weeks after leaving her office.
“I received I think it was three warning letters which basically indicated that I was to return to work immediately or face termination for abandonment of position,” she says. “I followed up by saying I don’t have an intention to abandon my position, and could you please just wait until my judicial review hearing.”
But the PSC, she says, replied that “despite my representations it had been determined that I had abandoned my position.”
Even if the judicial review is successful, it won’t result in her being reinstated, says Taman. Although she hopes a favourable ruling would help her termination grievance.
Above all she’s hoping it results in clearer guidelines for politically minded federal prosecutors in the future.
The PSC is declining to comment on the case, given that it is currently before the court. In addition, “The Public Prosecution Service will not comment on personnel, past or present,” a spokesperson told Legal Feeds.
The nomination battle appears to have been tightly contested. Although the party doesn’t release the number of votes each candidate received, the vote, which involved four candidates, went down to the wire with three ballots.
“It was a long night,” she says.
The media attention around her fight with the PSC likely helped her, she says.
“The riding obviously has a lot of public servants living in it, so a very large number of people reached out to me directly to express their unhappiness with how I’d been treated,” she says.
Party members may also have liked her family background. She is the daughter of Louise Arbour, the former Supreme Court of Canada justice and UN High Commissioner for Human Rights.
Now Taman finds herself up against someone she concedes is a formidable opponent: Liberal incumbent Mauril Bélanger, who has held the seat for 20 years. The riding has a solid history of Liberal dominance, both federally and provincially.
Nevertheless, Taman says she’s excited and hopeful about taking on Bélanger.
“The party has a huge amount of momentum right now,” she says. “I feel that I have momentum as a candidate, and based on how things went [on nomination night], I feel really confident, and I look forward to engaging with him and seeing where that goes.
“I appreciate it’s an uphill battle and I’m facing an adversary who’s experienced, but I’m attracted to what the NDP’s trying to do and I think I’m going to do a good job in pitching it to constituents.”
Update Sept. 18: To clarify Taman's judicial review is regarding the Public Service Commission's refusal to allow her to run for office and that she was terminated by her employer, the Public Prosecution Service of Canada.
Far from mitigating violent crime, cultural beliefs leading to violence should, if anything, be an aggravating factor supporting a harsher sentence, the Ontario Court of Appeal ruled yesterday in striking down the inadequate sentence of a lower court.
The ruling in R. v. H.E. involves an Iranian immigrant convicted of raping his wife repeatedly and beating her along with his children. The assaults were routine, occurring three or four times a month, and the wife never thought to contact police because, according to her, such domestic abuse was common in Iran.
Indeed, the victim seemed shocked when it became clear to her that her husband could go to prison. Despite terrible abuse suffered over years, neither she nor her children wanted the man jailed.
The Crown sought a prison term of four years, but Justice William Gorewich of the Ontario Court of Justice handed down a much lighter sentence — 18 months plus probation — reasoning that there was no risk to reoffend and there were “no injuries” requiring medical attention.
Gorewich also took it upon himself to weigh cultural considerations despite the fact that none were offered as a defence: “In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The accused’s wife] testified in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence those cultural differences moved with them from Iran to Canada. It is only a factor in my deliberations, and not a sentencing principle.”
On appeal, Associate Chief Justice Alexandra Hoy, on behalf of a unanimous court, took great exception with the notion that one’s cultural background could excuse violent criminal behaviour. “Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value,” the decision states.
“All women in Canada are entitled to the same level of protection from abusers. The need to strongly denounce domestic violence is in no way diminished when that conduct is the product of cultural beliefs that render women acceptable targets of male violence. If anything, cultural beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing.”
Hoy’s decision also cited errors with the lower court’s explanation that “no injuries” were suffered because medical attention was never sought. “The sentencing judge commented that medical attention was not sought. This does not mean there were no physical injuries.”
Finally, the appeal court found errors with the lower court’s assumption the accused posed no risk to reoffend. Much to the contrary, it found, the convicted man expressed no remorse for his actions and may continue to hold beliefs that his criminal behaviour was acceptable. “Given the lack of remorse, what then was the evidence that there was no risk to reoffend? . . . The respondent, in his late forties, was found guilty of routinely raping his wife over many years, and of physically attacking his own children. These offences were not isolated incidents. By nearly all accounts, the respondent had difficulty controlling his anger. This engaged an inference that the respondent was a risk to re-offend.”
The appeal court decision imposed a sentence of four years with no parole. Counsel for both the Crown and the respondent declined to comment on the decision.
|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.
|AJC president Len MacKay is pleased this decision has cleaned up what was a patchwork of practices across the country.|
In a decision this month, adjudicator George Filliter found in part in the union’s favour.
“In my view, this confirms the requirement of the employer to pay any and all fees necessary for the student to be enrolled as a law student or an articling student in their respective law society,” he wrote, citing the language in job postings that refer to the different articling provisions of the respective law society.
“This demonstrates that membership in a law society is a professional qualification ‘required by the employer for the performance of any duties and/or responsibilities assigned,’” wrote Filliter.
At issue was s. 28.01 of the association’s collective agreement that says the government will reimburse lawyers for their membership in a professional organization when it’s necessary to maintain a professional qualification required by the employer. The collective agreement also notes the term “lawyers” also includes articling students.
In 2013, the government denied the union’s grievance on the issue, arguing articling students don’t have to maintain a professional qualification as they’re in fact candidates rather than members of a law society.
While Filliter ruled in favour of the union on the issue of law society membership fees, he rejected the proposition that the government should also cover the costs of bar courses and examinations.
“In my view, clause 28.01 of the collective agreement cannot be interpreted to impose such an obligation on the employer,” he wrote. “Again, looking at the posting notices, students apply for these positions with the full knowledge that these fees are not going to be reimbursed by the employer and that they are therefore responsible for the payment to the professional association.”
“That’s by far the largest fee,” says Len MacKay, president of the union.
MacKay notes there has also been a patchwork of practices across the country on that issue as the government uses payment of the course and examination fees as a recruiting tool for individual candidates.
“It’s an individual, sort of applicant basis,” he says.
The union did win another partial victory on whether the government must cover articling students’ fees for their call to the bar.
“When students are not offered employment post-articles by the employer, the employer is not required to pay bar fees,” he wrote. “However, in those instances where a law student is offered a permanent position with the employer as counsel, I reach a different conclusion, as such call to the bar fees would be necessary for the employee to maintain his or her recently acquired professional qualification.”
MacKay welcomed that aspect of the decision.
“Outside of that, we’re also happy that they sided with us on the hire backs,” he says.
Besides the fee issues, Filliter’s ruling also included some noteworthy facts on the government’s cuts to its articling program. In statistics on the number of articling students across the country, Filliter showed it has made significant cutbacks since 2010.
At the Ontario regional office, for example, the number of positions in 2013 was nine, down from 18 in 2010. At the northern regional office, there were no positions in 2013 versus two in 2010. At the prairie regional office, the number of positions fell to six in 2013 versus 14 five years ago.
“That’s one of the programs that have suffered,” says MacKay, referring to the government’s general climate of budgetary and staff cutbacks in recent years as it made efforts to eliminate the deficit. While he notes articling is often an easy target for cuts, he says he has heard there’s an intention to return hiring to previous levels.
Filliter’s decision comes as law students in Ontario are celebrating another victory on the financial front. In a news release today, the Law Students’ Society of Ontario noted the Law Society of Upper Canada had relented on its plan to provide licensing materials in electronic format only, something the group said would mean an estimated $100 in required printing costs.
According to the law student group, the law society has now said it will provide hard copies to students who request them.
“This is great news for law students across Ontario, and the LSSO commends the law society for its reconsideration of this decision,” said Ryan Robski, president of the law students’ society.
The actions of Mark Poland “fell well below the standard expected of Crown counsel,” said the court in ordering a new trial for a Kitchener-area man convicted of orchestrating a plan to have his three children kill his estranged wife.
“The Crown in this case engaged in multiple instances of prosecutorial misconduct,” wrote Justice Mary Lou Benotto. “His remarks were inflammatory, vindictive, sarcastic and ridiculing of the appellant,” added Benotto, with justices John Laskin and Katherine van Rensburg concurring in the decision issued Feb. 2.
The failure to provide a corrective instruction was an error in law by Superior Court Justice James Ramsay and rendered the trial unfair, the appeal court panel added.
A spokesman for the Ontario Ministry of the Attorney General says it is “carefully reviewing the decision. As the matter is currently within the appeal period, we have no further comment,” says Brendan Crawley.
The appellant, who can only be named as A.T. to protect the identity of his children, was convicted by a jury in March 2010 of attempt to commit murder and conspiracy to commit murder.
During the trial, the jury heard testimony from the children that their father told them to kill their mother by drowning her in the bathtub. An attempt was made, but the mother survived, the court heard. The father, a devout Mennonite, had a previous conviction for domestic assault.
His religious views became a central issue during the trial. The Crown displayed passages from the Bible on a screen in the courtroom and questioned the defendant about them during cross-examination.
Poland, who is now the senior prosecutor in Dufferin County, northwest of Toronto, was “fixated” on the religious beliefs of the defendant instead of “what, if anything, he had told the children,” said the Court of Appeal.
To support the notion that an individual can be influenced to commit murder, the Crown asked the jury to consider the Jonestown massacre in 1978 and the killings committed by followers of Charles Manson. References were also made to suicide bombers and the Nazis.
Poland told the jury he was not using the examples to liken the defendant to Jim Jones, Manson, or Adolf Hitler. However, after a brief “self-correction,” the Crown “immediately continued on with his comparative rhetoric,” wrote Benotto.
The Crown ended his closing with a reference to an integral part on a helicopter that is referred to as the “Jesus nut” because of the consequences if it comes off. Poland told the jury the “Jesus nut” of the defence was that the children were conspiring against their father.
“When [defence counsel] offers you a ride in his helicopter, my suggestion is you say, no thanks, that Jesus nut looks a little loose to me,” Poland stated.
The analogy “was no innocent metaphor,” noted the appeal ruling. “It is evident that he was calling the appellant a Jesus nut.”
Jill Presser, who represented A.T. in his appeal but not at trial, says the decision sends an important reminder about the long-standing recognition by the courts of the prosecution’s duty to act with moderation and impartiality.
“It re-emphasizes the role of the Crown and the trial judge in ensuring fair trials. The line of rhetorical excess is crossed when there is actual prejudice to the accused,” says Presser, a Toronto defence lawyer.
A spokeswoman for the Law Society of Upper Canada declined to say if it will investigate the Crown’s conduct. The regulator does not comment on any specific matter, or if it is investigating, “unless and until a matter has resulted in formal discipline, which would be public,” says Susan Tonkin.
The Court of Appeal ruling was issued the same day the Ontario Divisional Court upheld a suspension and costs order against Joe Groia, for incivility in his successful defence of former Bre-X executive John Felderhof on insider trading charges.
The Divisional Court upheld a one-month suspension and $200,000 costs order against Groia, ordered by a Law Society of Upper Canada appeals tribunal. Arguments by the law society that a court’s comments about a lawyer’s conduct are proof of misconduct, were rejected by the Divisional Court. However, it said comments or findings may be admitted as evidence at a disciplinary hearing.
Although the main dispute (termination from the home position) has not yet been arbitrated and is scheduled to be heard later in 2015, an arbitrator ruled on a preliminary motion brought by the Association of Law Officers of the Crown on behalf of the discharged articling student.
At issue in that motion was: Assuming, for the purposes of the argument, that MOH had just cause to terminate Speck’s employment, is that sufficient by itself to satisfy both the just cause provisions of the ALOC collective agreement and the requirements for articles of the Law Society of Upper Canada?
For six years, Todd Speck worked as a program analyst for the Ministry of Health and Long Term Care. He took an educational leave of absence from September 2008 to May 2010 to get his law degree. He continued to work for MOH.
On Feb. 19, 2013, Speck was informed he was being suspended with pay pending an investigation against him under the Workplace Discrimination and Harassment Policy and Workplace Violence Prevention Policy.
While under the non-disciplinary suspension from MOH, Speck got an articling job with MAG, to serve at the Financial Services Commission of Ontario. A temporary assignment agreement was concluded between MAG, as the receiving ministry, MOH, as the releasing ministry, and Speck in July and August 2013 so Speck could work as an articling student.
On July 29, 2013, Speck started working at FSCO as an articling student and his disciplinary suspension ended. He was alerted to the potential jeopardy to his articling student position as a consequence of the MOH investigation in to his alleged misconduct.
The period of the secondment to MAG/FSCO was from July 29, 2013 until May 30, 2014, to allow Speck to complete his articles. During this period, he was to be under a fixed-term contract. He signed a fresh Conflict of Interest Attestation, completed a fresh Oath of Office and a fresh Oath of Allegiance. That done, his articles officially began July 29, 2013, for 10 months.
While working for MAG at FSCO Speck was subject to the collective agreement between Association of Law Officers of the Crown and the province. Article 5.1 gave just case protection to him. He could be fired only “for just and sufficient cause.”
On Feb. 3, 2014, Speck was advised in writing by MOH that it had completed its investigations determined that he had breached the WDHP policy in various ways. MOH informed him it had concluded his conduct had given just cause for his dismissal and that he was being fired for cause. He was told that he ceased to be employed by the Crown.
ALOC, supported by the Association of Management, Administrative and Professional Crown Employees of Ontario, argued it was not sufficient; the Crown argued it was.
In the decision, arbitrator Christopher Albertyn stated: “There is no suggestion that Mr. Speck engaged in any culpable conduct as an articled student to give his principal or FSCO or MAG just cause to terminate his articles. It is common cause that his articles were terminated only because his employment with the Crown was terminated by MOH. In fact, Mr. Speck was given unqualified letters of commendation for his work as an articling student by his principal and other lawyers he worked for.
However, Albertyn concluded: “Accordingly, on the assumption of just cause for the termination at MOH, that is sufficient to satisfy the just cause provisions of the ALOC collective agreement.”
Albertyn said he rejected the suggestion Speck’s conduct at MOH is akin to off-duty conduct with respect to his employment at MAG.
“MOH and MAG are sections of a single employer. His conduct in one section is directly relevant and germane to his conduct in the other. That is why, under s. 40 of the Act, if there is just cause to dismiss a public servant in any section, in any ministry, the individual is dismissed from the Crown.”
Update Feb. 10, 2015: Story amended to clarify that the arbitrator in the matter was ruling on a preliminary motion only. Legal Feeds regrets any confusion caused, and wishes to apologize to Mr. Speck.
Court of Queen’s Bench Justice Chris Martin made the remarks in R. v. Harper after a man initially accused of eight armed robberies faced an 82-count indictment.
“Not to be unduly critical to Crown counsel here, this is not an isolated approach to charging. Over-charging is an increasing trend — one which has little if any utility. It needlessly complicates and distorts a case, and distracts from the core issues,” said Martin.
The judge, who sentenced Winnipeg resident Jamie Harper for 8-1/2 years in prison, dedicated a good portion his ruling discussing issues that have delayed the proceedings.
“Two things were readily obvious — one, that a plea resolution should have been reached and, two, Crown and defence counsel were at loggerheads in large part because of the sheer size of the 82-count indictment and the huge gap in positions respecting sentence,” said Martin.
He added: “Why is all this important? Because over-charging and unrealistic sentencing positions blocked counsel from reaching a plea arrangement, an arrangement they should have reached within months of Mr. Harper’s arrest. As a result, scarce judicial resources were wasted through countless remands, conducting a three-day preliminary inquiry, and keeping Mr. Harper in remand custody for 30 months.”
Winnipeg criminal lawyer Gary Stern doesn’t see a trend in Crown counsel overcharging people and says it was unfair for the judge to make those comments given the duty prosecutors have to the public.
“The bottom line is it may be a trend to lay all these charges but at the end of the day, if there is an accusation someone committed a crime, shouldn’t they be prosecuted?” Stern asks. “If it’s your ox being gored. Wouldn’t you want the offender to be prosecuted?”
The prosecutor is justified in pursuing all charges if they have evidence to support them, Stern adds.
“You can’t sweep it under the rug; if there’s an allegation someone committed a crime, they’ve got to be prosecuted.”
While he’s sympathetic to the concern about court resources that go into addressing a pile of charges, the solution is to increase them and not to tell Crown to lower the number of charges, according to Stern.
In another observation, the judge also lamented the time Crown and defence counsel wasted trying to come to an agreement on what’s an appropriate sentence. The need to arrive at such an agreement is mostly “illusory,” according to Martin.
“Legitimate disagreements as to an appropriate sentence will always exist. But the benefit, and perhaps psychological need, of agreeing or even greatly narrowing a joint recommendation or sentence range for the judge before a plea is arranged, is illusory,” he wrote.
“That should not usually prevent a guilty plea, where the realistic likelihood of conviction is present anyway. Lawyers are advocates. Sentencing judges do not freelance; we are bound by sentencing principles, rules, and precedents. Lawyers must have the confidence to advocate their position on sentence, without undue delay, and to trust that the sentencing judge will get it right or otherwise know that an appeal may lie.”
Marin emphasized the issue wasn’t unique to the case before him.
“Again, moving away from this case, increasingly, disagreements between counsel respecting sentencing matters are too often an excuse leading to delay, by putting off the tough call until another time,” he wrote. “This style of practice must be discouraged.”
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