A couple who lost $3.6 million lawyer Javad Heydary disappeared are entitled to garnishment from his liability insurance policy — but will have to renounce any claims against three lawyers formerly employed by him, the Court of Appeal for Ontario ruled yesterday. They will get well under the $3.6 million they lost.
In November 2013, Heydary disappeared after claims were filed by Hasan and Samira Abuzour, a Mississauga couple, for $3.6 million he had been holding in trust for them. Heydary was later declared dead. Soon after his disappearance, the Abuzours successfully obtained two court orders requiring the payment of the funds from the trust account held by Heydary’s company, Heydary Hamilton. But the money was not forthcoming, and Heydary and Heydary Hamilton were found in contempt of court.
In March, 2014, the Abuzour’s lawyer sent a demand letter to three lawyers formerly employed by Heydary — Jeff Landmann, Darren Smith, and Yan Wang — threatening to sue them “unless a resolution is reached” regarding the missing funds.
Last October, Superior Court Justice Michael Penny awarded the sum remaining in Heydary’s $1-million coverage under LawPRO’s innocent-party insurance to the Abuzours. According to the terms of the policy, LawPRO is entitled to use some of the money to investigate and defend claims that might arise against a lawyer ensured by it.
The three lawyers then filed a motion to set aside or vary the order, arguing the payout would leave them without coverage in case the Abuzours sued them.
But in February, Penny ruled against the motion.
The lawyers appealed the decision, and in April LawPRO successfully obtained an order to stay the garnishment order pending a decision in the lawyers’ appeal.
In yesterday’s ruling, the three-member Court of Appeal panel ruled to allow the appeal and vary the motion judge’s order, adding a requirement that the Abuzours “should provide a release as a condition of the payment to them of the garnished insurance policy limits.”
Explaining the panel’s decision, the ruling states: “This situation is unusual in that the initial orders for payment out of the Heydary Hamilton trust accounts were not based on negligence, omissions, errors or fraud covered by the policy. It is the failure to comply with these orders which arguably gives rise to an insured loss.”
But the most important factor in the panel’s decision, the ruling states, is that, despite their refusal to release the lawyers from future claims against them for the missing money, the Abuzours were unable to provide any grounds for a possible lawsuit against them.
“The respondents at oral argument were unable to articulate any basis upon which the respondents might advance a claim against the appellants relating to the money which has vanished,” wrote Justice Gladys Pardu for the panel.
“I am left with the impression that the respondents’ refusal to execute a release in favour of the appellants is a tactical one, designed to extract funds from innocent parties who do not have the means to defend themselves. The losses suffered by the respondents must be devastating, but there is no basis shown to visit Heydary’s misconduct on the appellants.”
Commenting on the decision, Brian Radnoff, counsel for the three lawyers, says, “My clients, who were also innocent victims of Mr. Heydary, are pleased they will not lose their insurance coverage for a claim that was asserted against them.”
The Abuzour’s lawyer could not be reached for comment.
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.
|Anne Jacob is appointed to the Superior Court of Quebec.|
In several instances the appointments are said to be filling new positions created by Bill C-31.
Guy R. Smith, a sole practitioner in Ottawa, was appointed a judge of the Tax Court of Canada to replace Justice Joe E. Hershfield, who elected to become a supernumerary judge as of June 1, 2015.
Smith had been a sole practitioner since 2014. Previously, he had been the judicial affairs adviser for the federal Minister of Justice and Attorney General of Canada from March 2009 to July 2014. He practised administrative law, constitutional law and litigation with Perley-Robertson Hill & McDougall LLP from 1997 to 2005 and as a sole practitioner from 1991 to 1997. He was called to the Ontario bar in 1988.
Alberta Provincial Court Judge Robin Camp has been appointed to the Federal Court to replace Justice Yves de Montigny, who has been elevated to the Federal Court of Appeal.
Camp received his law degree in South Africa and successfully completed challenge exams to re-qualify to practise in Canada in 1998. He was appointed a judge of the Provincial Court, Criminal Division, in 2012. Prior to his appointment, he had been a lawyer at JSS Barristers from 2004 and a managing partner from 2008 to 2012. His main area of practice was commercial litigation. He was called to the Alberta bar in 1999.
E. Susan Elliott, a lawyer with Good Elliott Hawkins LLP in Kingston, Ont. has also been appointed to the Federal Court. She replaces Justice Mary.J.L. Gleason, who has been elevated to the Federal Court of Appeal.
Elliott was called to the Ontario bar in 1981. She had been at Good Elliott Hawkins (formerly Good & Elliott) since 1981, and during that time she had been general counsel, legal line of business, Teranet Inc. She also served as treasurer of the Law Society of Upper Canada; as well as hearing commissioner, part time, for the Rent Review Commissioner of Ontario and a smalls claims court judge since 2009.
Sylvie Roussel, a lawyer with the Security Intelligence Review Agency in Ottawa, is appointed to the Federal Court as well, replacing Justice Marie-Josée Bédard, who was appointed to the Superior Court of Quebec.
Roussel was called to the Ontario bar in 1987. She had been senior general counsel with the Security Intelligence Review Agency since 2007. Previously, she had practised with the firm Noël & Associés, s.e.n.c.. Her main areas of practice were public/constitutional law, criminal law, Charter Law and human rights law.
Fredricton’s Ann Marie McDonald, a lawyer with McInnes Cooper LLP, is also headed to the Federal Court. She replaces Justice R.T. Hughes, who elected to become a supernumerary judge, effective Sept. 1, 2015.
McDonald was called to the bar of New Brunswick in 1994. She became an associate with McInnes Cooper in 2000 and a partner in 2002, practising primarily in the areas of commercial litigation, employment law, administrative law and general litigation.
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|Newly appointed Ontario appeal court Justice Bradley Miller has some controversial views on same-sex marriage.|
Miller, a former law professor at Western University, has been vocal about what he perceives as an attack on those who reject same-sex marriage in Canada.
Last year, while he was still a law professor, he wrote to the Law Society of Upper Canada in support of Trinity Western University’s bid for accreditation.
“If LSUC determines that the acceptance of a particular form of marriage is in fact a pre-condition to participation in public life, we must consider what consequences there will be for those existing member of LSUC who cannot, in good conscience, affirm that conception,” Miller wrote.
“Is LSUC prepared to impose statements of belief on its membership? The condemnation of TWU’s code of conduct would end, logically, in the code of belief to be imposed on the LSUC membership,” he added.
The LSUC voted not to accredit TWU due to its community covenant that effectively bans sexual intimacy between same sex couples. The university is challenging that decision at the Divisional Court.
Miller has written in other places saying the rejection of same-sex marriage has been likened to bigotry, which he said harms freedom of expression.
“The formal effect of the judicial decisions (and subsequent legislation) establishing same-sex civil marriage in Canada was simply that persons of the same-sex could now have the government recognize their relationships as marriages. But the legal and cultural effect was much broader,” he wrote in a 2012 essay.
“What transpired was the adoption of a new orthodoxy: that same-sex relationships are, in every way, the equivalent of traditional marriage, and that same-sex marriage must therefore be treated identically to traditional marriage in law and public life.”
Although Miller has spoken out in this area, Toronto appellate lawyer Allan Rouben says there’s nothing to suggest the appointment was ideologically motivated.
“The assumption appears to be that the appointment is ideologically motivated,” Rouben says. “There are a whole range of factors that go into the judicial appointment process. He had an impressive academic career and there’s nothing to say that isn’t the predominant factor in the first place,” he adds.
In Quebec, Superior Court Justice Jacques Fournier, who has been the court’s associate chief justice has been appointed its chief justice.
Fournier, who became associate chief justice in 2013, is replacing Justice François Rolland. He was appointed as puisne judge of the Court of Appeal of Quebec in 2011 and judge of the Superior Court of Quebec in 2002. Fournier was also an instructor at Université du Québec à Montréal and the Université de Montréal.
Justice Eva Petras becomes the new associate chief justice, effective June 30. She was first appointed to the Superior Court of Quebec in 2006.
Before becoming a judge, Petras practised family law and litigation at Eva Petras law firm. Prior to launching her own firm, she practised at MacKenzie Gervais from 1981 to 1986 and Lapointe Rosenstein from 1986 to 1990. She has also been a lecturer in family law at McGill University’s Faculty of Law.
Earlier in the month, New Brunswick Justice Raymond French, a judge of the Court of Queen’s Bench was appointed to the province’s court of appeal, He replaces Justice B. R. Bell, who was appointed to the Federal Court.
French was first appointed to the Court of Queen’s Bench in 2007. Before his appointment, he was a lawyer with Patterson Palmer in Saint John.
Replacing French on the Court of Queen’s Bench Trial Division is Richard Petrie. Prior to his appointment, Petrie worked as a lawyer with Stewart McKelvey in Fredericton.
|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.
|‘The reason there’s been confusion is that often, it’s not an either or,’ says Monique Jilesen.|
“The claim asserted seeks to recover solely for wrongs done to a public corporation, the thrust of the relief sought is solely for the benefit of that corporation, and there is no allegation that the complainant’s individualized personal interests have been affected by the wrongful conduct,” wrote Justice Robert Blair on the court’s behalf.
In Rea v. Wildeboer, the appellants, including Rea Holdings Inc., brought an oppression claim under s. 248 of the Business Corporations Act alleging misappropriation of funds from Martinrea International Inc. They sought to recover those funds for the corporation.
The ruling brings some clarity around the murky area of whether a complaint qualifies as an oppression claim or must proceed as a derivative action. It’s an area made even more complex by overlaps between personal and corporate interests, according to Monique Jilesen, a partner at Lenczner Slaght Royce Smith Griffin LLP.
“The reason there’s been confusion is that often, it’s not an either or,” says Jilesen, noting the court acknowledges that uncertainty.
“The court is saying in some cases there will be an overlap and we’ll have to look at those on a case-by-case basis,” she adds. “But where the allegations are only in respect of a [party] being a shareholder and every other shareholder has suffered the same damage, you have to proceed by way of a derivative action.”
Derivative actions are a harder step to take, as they require leave of a court, she says.
In Rea v. Wildeboer, the court said the jurisprudence has been “inconsistent” about how to treat cases where there is an overlap of interests, and the topic is cause for a lot of discussion among members of the legal profession.
“While this debate is interesting, it is not necessary to resolve it here,” wrote Blair.
“On my reading of the authorities, in the cases where an oppression claim has been permitted to proceed even though the wrongs asserted were wrongs to the corporation, those same wrongful acts have, for the most part, also directly affected the complainant in a manner that was different from the indirect effect of the conduct on similarly placed complainants,” he added.
“And most, if not all, involve small closely-held corporations not public companies.”
Oppression claims are a lot more common in family businesses, says Jilesen.
“So sister says, ‘Yes, I’m a minority shareholder but I have a reasonable expectation in this closely held family company that I will be part of management, that will receive the same kind of remuneration as everybody,” she adds.
Those complaints could be about being excluded where others are having meetings the complainant is not invited to, Jilesen also says.
While the rules have been clarified, it’s not hard to understand why someone who holds significant shares may want to bring an oppression claim, continues Jilesen.
“Yes, of course, you’d feel personally aggrieved, given your substantial shareholding and the loss that a company suffered as a result of, in this case, the unproven conduct.”
|The Ontario Court of Appeal noted numerous violations of a defendant's right to have a bilingual court proceeding.|
“Costs awards in a criminal case remain rare,” wrote Justice Paul Rouleau. “In this case the facts are indeed exceptional in many respects. The prosecution failed in several ways to respect the appellant’s language rights. Additionally, the treatment it afforded to the accused who exercised their right to have their preliminary hearing held in English was distinctly superior to the treatment if afforded to the accused who chose French,” Rouleau concluded.
The decision was released May 5 in both French and English by a panel with justices Robert Sharpe and Gladys Pardu concurring. Final decision on the exact cost order is still to come.
Munkonda was one of eight people charged in 2010 with offences related to allegations of cocaine trafficking. Six of the accused chose to be tried in English. Munkonda and another defendant, who was eventually discharged, chose to have their preliminary hearing in French.
The Criminal Code requires a judge to order that a proceeding be held in both of Canada’s official languages under certain circumstances, such as when there are two or more accused who speak either English or French. Section 530 of the code includes other requirements, such as a bilingual judge and prosecutor and that all court documents are in both official languages, including transcripts at the preliminary hearing.
“In conceptual terms, a bilingual trial or preliminary inquiry is a merger of a proceeding in French and a proceeding in English,” explained Rouleau. “To the extent possible and provided that it is reasonable, the language rights of each of the accused must be respected.”
Jean Richer, who represents Munkonda, says the ruling is very clear about the requirement to respect the statutory language rights of defendants.
“The court is sending a message. Stop ignoring these sections. They are mandatory,” says Richer, who adds that they are not “ideals” but provisions that must be followed.
Even the appeal was hampered by delays in obtaining transcripts in French, the Ottawa defence lawyer points out.
The Court of Appeal highlighted several examples where the bilingual requirements were not met during the 20-day-long preliminary hearing before Ontario Court Justice Robert Fournier.
More than one thousand conversations in four different languages were filed into the court record.
“All of the transcripts were in English, even where the conversation or text was in another language, because everything had been translated into English by the Crown. The original version of the texts of conversations in French was not included in the transcripts,” noted Rouleau.
Two of the three federal prosecutors, including the lead counsel, were not bilingual. The court reporter transcribing the testimony was unilingual English.
A francophone police officer from Montreal was questioned in English by one of the anglophone Crown attorneys, although he was ordered by Fournier to speak French when he was quoting from his notes.
The preliminary hearing judge denied a defence motion to replace two of the Crown attorneys and the court reporter, stating that he would like to do it in a “perfect world” but he did not want to avoid “undue delay” in the proceeding.
Munkonda was committed for trial on charges of trafficking and possession for the purpose of trafficking.
Superior Court Justice Robert Maranger agreed on a certiorari appeal that there were several violations of the defendant’s rights, but refused to stay the proceedings or award any remedy to Munkonda.
“The result was that no sanction was applied to the Crown for the violations of the appellant’s language rights,” wrote Rouleau.
The Court of Appeal also rejected the Crown’s suggestion that as long as one of the prosecutors in a proceeding is bilingual, that would be sufficient. As well, “in this case, the two unilingual prosecution counsel handled virtually the entire case,” said the court.
The Court of Appeal also criticized the preliminary hearing judge and said Fournier “bears a large share of the responsibility” for the failure to respect the rights of the defendant.
The Court of Appeal did not stay the charges but suggested that Munkonda might be successful if he seeks one in a lower court under s. 11(b) of the Charter for unreasonable delay.
|Justice Marianne Rivoalen is the new associate chief justice of the Manitoba Court of Queen’s Bench (Family Division).|
Rivoalen was appointed a judge of the Court of Queen’s Bench for Manitoba (Family Division) in 2005. Prior to that, she was a senior counsel and team leader of aboriginal law services with the Department of Justice Canada as well as the indian residential school litigation counsel as well as a long-practising litigation lawyer with Aikins,MacAulay & Thorvaldson in Winnipeg. She has also been an arbitrator with the Manitoba Labour Board, deputy chief commissioner of the Residential Tenancies Commission in Winnipeg, and a litigation lawyer with Pitlabo & Hoskin in Winnipeg.
Richard F. Southcott, vice president and general counsel at Irving Shipbuilding Inc. in Halifax, has been appointed to the Federal Court to fill a new position created by Bill C-11.
Southcott was called to the bar in 1993, then joined Stewart McKelvey in Halifax as an associate, practising marine law and commercial litigation. He became a partner in 2001, and was the regional managing partner from 2008 until 2013, when he joined Irving Shipbuilding.
Also from Halifax, R. Lester Jesudason has been appointed to the Supreme Court of Nova Scotia, Family Division. He replaces Justice R. James Williams, who elected to become a supernumerary judge as of April 18.
Jesudason was called to the bar in 1997, then joined Blois Nickerson & Bryson LLP in Halifax as an associate, practising civil litigation and insurance law. He became a partner in 2002. He has been chairman of the Nova Scotia Police Review Board and active with various bar associations.
In Saint John, N.B., Marie-Claude Blais is the newest judge of the Court of Queen’s Bench of New Brunswick, Trial Division. She replaces to replace Justice Peter Glennie who went supernumerary April 22.
Blais was called to the bar of Quebec in 1995 and New Brunswick in 1998. She was appointed Queen’s Counsel in 2010. She has been counsel with McInnes Cooper since 2014. Prior to that, she had been minister of education and early childhood development for the province of New Brunswick. She was also the first woman to serve as attorney general and minister of justice and consumer affairs for New Brunswick. She was also a lawyer with LeBlanc Maillet, where she practised corporate and business, family, and real estate law.
In Ontario, Superior Court Justice Lois B. Roberts has been elevated to the Court of Appeal. She fills the spot left when Justice George Strathy was named chief last June.
Roberts was appointed to the Superior Court in 2008. Prior to her appointment, she was a lawyer with Genest Murray LLP and Cassels Brock & Blackwell LLP, practising commercial litigation, employment law, and human rights law.
Toronto lawyer Kenneth G. Hood fills Roberts spot on the Superior Court. He was called to the bar in 1982 and was a certified specialist in civil litigation.
Hood was counsel with Schneider Ruggiero LLP since 2010. Prior to that, he was worked with firms Lawrence Lawrence Stevenson LLP in Brampton, Ont., Glaholt LLP in Toronto, Dingwall McLaughlin and Woolley Dale & Dingwall (later changed to Dale and Dingwall).
“The trial judge erred in law by holding that the common law defence of duress was not available to persons charged as parties to a murder,” says the appeal ruling in R. v. Aravena.
“Choosing to aid in the murder of another will not always amount to choosing an evil greater than the evil threatened,” wrote justices David Doherty and Gladys Pardu for the panel also including Justice David Watt.
“For example, a person may be presented with a choice between taking the life of an innocent third party and the killing of her own child. The putative victims are equally innocent. Surely, the harms flowing from either choice are ‘of comparable gravity.’”
The appeal court, however, was careful to point out duress is not a justification, but merely an excuse that would be take into consideration.
“The person excused from criminal liability is not said to have accomplished a greater good, but is rather said to have had no realistic choice but to act as she did,” said the ruling.
In the same ruling, the court commented on an exception in s. 17 of the Criminal Code, which bars the use of duress as defence for murder.
“The constitutionality of the murder exception to the duress defence in s. 17 of the Charter is not before the court. However, it follows from this analysis that, subject to any argument the Crown might advance justifying the exception as it applies to perpetrators under s. 1 of the Charter, the exception must be found unconstitutional.”
Toronto lawyer James Morton says the decision clarifies the law around this issue significantly.
“There was a question whether [the defence of duress for murder] existed in common law. Some judges and some legal commentators thought it didn’t exist in common law,” says Morton. “This decision makes it pretty clear that for Ontario anyway . . . it does exist at common law and it manages to clarify that it also exists in the statute.”
In reaching its conclusion, the court looked at previous cases and also undertook a philosophical analysis. To kill another person due to threat to one’s own life is to value one’s life over another, the court said, but to disregard duress as defence for killing someone is to value the life of the victim over the life of the person who killed under duress.
“The availability of the defence of duress cannot be settled by giving automatic priority to the right to life of the victim over that of an accused. Instead, the right to life of the victim must be factored into the proportionality assessment as part of the broader moral involuntariness inquiry,” the judges wrote.
Morton adds the ruling suggests it may well have been a valid defence for convicted killers like Karla Homolka, the wife and accomplice of serial killer Paul Bernardo, to argue they participated in the killings because they would have been killed otherwise.
But that defence did not work in the case before the court. In Aravena, members of the notorious Bandidos biker gang appealed their murder conviction arguing, in part, that they participated in the massacre of the Toronto chapter of the gang in 2006 because they feared for their lives.
The appeal court found there was “no air of reality” to this claim.
Morton says while the availability of the defence of duress is established, the court is making it clear it’s not “a get-out-jail card for people.”
|There has been confusion from the first moment the rules to weed out ‘hired guns’ were updated in 2010, says Lou Ferro.|
Experts retained by a non-party, such as statutory accident benefit insurer, are also exempt from the rule, according to Westerhof v. Gee Estate.
“I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where: the opinion to be given is based on the witness’s observation of or participation in the events at issue; and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events,” wrote Justice Janet Simmons on behalf of the court.
If participant experts or non-party experts proffer opinion evidence extending beyond these limits, they must comply with rule 53.03 for that portion of their evidence, Simmons said.
The decision is an appeal-proof clarification on an issue that has been a thorn in the side of the personal injury bar, says personal injury lawyer Lou Ferro, who with Jane Poproski represented appellant Jeremy Westerhof.
“There was a confusion from the first moment” the rules were updated in 2010 to ensure expert witnesses don’t simply act as “hired guns” for the party paying their bills in litigation, says Ferro. “It was gratifying to see it clarified.”
In Westerhof, the Court of Appeal heard two separate cases arising from car accidents that were linked by the same nagging question: whether evidence of treating physicians should be admitted if it did not comply with rule 53.03.
The trial judge took a restrictive approach and threw out a lot of evidence. In the other case, the issue was whether a trial judge admitted too much evidence that did not comply with rule 53.03.
Trial judges’ reading of the rules ranged widely since the amended rules took effect in 2010, says Ferro, who blames the issue on drafting.
“The rule was poorly drafted, frankly, and it failed to take into account the complexity of the relationships in a motor vehicle world,” adds Ferro. “Had the rules committee consulted with the profession that had interest in the rule, none of the confusion that arose would have happened.”
Four of five cases have so far been decided going either way, says Ferro, who adds this is a long-awaited decision from the court of appeal.
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