The Supreme Court of Canada will hear the following appeals this week including the highly anticipated R. v. Cole, about a high school teacher who was charged after nude photos of a Grade 10 student were found on a laptop issued to him by his regional school board. The photos were ruled inadmissible by the Ontario Court of Appeal a year ago on the principle that Cole had a right to expect his personal files on the computer’s hard drive would remain private.

May 14 — Federal Court — Callaghan v. Chief Electoral Officer of Canada

Administrative law: This case relates to expenses during the 2006 federal elections. The chief electoral officer wouldn’t reimburse certain expenses submitted by some Conservative party candidates because he was concerned that the party might have incurred the advertising costs but then transferred them to the candidates since it had almost reached its spending limit. The candidates successfully challenged the officer’s decision before the Federal Court but the Federal Court of Appeal allowed the appeal.

May 15 — Ontario — R. v. Cole

Charter of Rights and Freedoms: Richard Cole was a computer science high school teacher. One of the school’s information technologists found naked photos of a female student on Cole’s computer, which he had accessed through another student’s email account. He was charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. At trial, the judge determined that Cole’s s. 8 Charter rights had been violated and excluded the evidence. The Court of Appeal then allowed the appeal and remitted the case for trial. There is a publication ban in the case.

May 16 — Nova Scotia — Aucoin v. R.

Charter of Rights and Freedoms: Brendan Aucoin was convicted of possessing cocaine for the purposes of trafficking. On appeal, he argued that his s. 8 Charter rights had been violated when the police officer conducted a pat-down search, which the majority of the Court of Appeal dismissed.

The Supreme Court of Canada has restored the indecent assault conviction in a case that dates back more than 30 years after concluding the Quebec Court of Appeal went too far in assessing the evidence at trial.

“Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they ‘cannot be supported on any reasonable view of the evidence,’” wrote Justice Marie Deschamps in quoting from R. v. Burke.

The case, R. v. R.P., hinged in large part on the evidence of two witnesses: the complainant M.L. and her sister G.L., who was also the  accused R.P.'s wife. M.L. was 13 years old at the time of the assaults, which occurred more than 30 years before R.P.’s trial. Among M.L.’s allegations were that R.P. sexually assaulted her while babysitting for the couple when G.L. was about to leave for the hospital to give birth to their second child. But G.L. testified that M.L. didn’t babysit on that occasion. Instead, she said she brought the first child to stay with her mother. M.L., the court noted, didn’t contradict G.L. Instead, she could only say repeatedly: “I have no idea. I don’t know.”

Nevertheless, the trial judge believed M.L.’s testimony. It was clear, Deschamps noted in this morning’s decision, that he took into consideration the weaknesses of the complainant’s testimony and found they weren’t determinative given that the incident had taken 34 years before the trial and given M.L.’s young age at the time.

“The trial judge’s approach was coherent and was also supported by the evidence,” Deschamps wrote on behalf of the majority that included justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis. “It did not justify the intervention of the Court of Appeal.”

Key to the ruling was the question of how far the Court of Appeal should have gone in considering the evidence.

“It is now well established that where a trial judge draws inferences or makes findings of fact that are contrary to the evidence, he or she engages in an ‘illogical or irrational reasoning process’ that invites appellate intervention,’” wrote Justice Morris Fish in his dissenting opinion that referenced R. v. Sinclair.

The inconsistencies in the case, including the evidence related to the assault around the time of the birth of the second child, made the trial judge’s findings unreasonable, Fish concluded.

“In short, the complainant testified that she was abused by R.P. while babysitting when G.L. was in the hospital giving birth to their second and third children,” wrote Fish in a dissenting opinion supported by Justice Louis LeBel. “G.L. testified that the complainant did not babysit on either occasion. The complainant’s evidence was that R.P. again abused her ‘practically every time’ she babysat during the five years covered by the indictment. G.L. testified that R.P. was rarely home without her and that, when home, she had an unobstructed view of the scene of the alleged abuse during much of the relevant period.

“It thus seems to me unreasonable, if I may say so with respect, to find that G.L.’s testimony does not ‘interfere with’ ― or tend to contradict or render implausible ― the evidence of the complainant, M.L.”

The Supreme Court of Canada will hear the following appeals this week — all from Nova Scotia:

May 7 — Nova Scotia — Chehil v. R.

Charter of Rights and Freedoms: RCMP officers found a large stash of cocaine on Mandeep Singh Chehil when he was searched at the Halifax airport. He was charged with possession for the purpose of trafficking but the Supreme Court of Nova Scotia ruled the search violated his Charter rights and Chehil was acquitted. The Court of Appeal allowed the appeal and ordered a new trial.

May 8 — Nova Scotia — Annapolis County District School Board v. Marshall

Procedural law: Johnathan Marshall, 4, was playing outside his home located along a highway when he was hit by a school bus and suffered serious injuries. When he turned 19, he filed a lawsuit against the bus driver and the Annapolis County District School Board. The Supreme Court of Nova Scotia dismissed the case after the jury found no negligence on the bus driver’s part. The Court of Appeal allowed the appeal and ordered a new trial.

May 10 — Nova Scotia — A.B. v. Bragg Communications Inc.

Procedural law: A girl applied for a court order to require Bragg Communications Inc. to disclose the identity of the person who used a particular IP address to create a fake Facebook profile of her. She also requested to be identified by initials and ban the public from knowing the words in the fake Facebook profile. The judge granted the disclosure order but not the ban on the fake profile. The Court of Appeal upheld that decision. There is a publication ban and sealing order in the case.

At 9:45 a.m. on May 11, the SCC will also release its ruling in R. v. R.P. (Que.).

After practising for 37 years, Winnipeg lawyer James Richard Smith lost his final bid to re-enter the profession after the Supreme Court of Canada today dismissed his application for leave to appeal.

Smith was disbarred after a routine audit in 2007 revealed that he had swindled clients out of thousands of dollars.

One client, a woman identified as C.B., designated Smith the sole executor and trustee of her estate, which included a house valued at $90,000. Her two sons and the Winnipeg Humane Society were named as beneficiaries.

Following C.B.’s death, her sons sought to distribute the estate’s cash. Smith informed them that he had found an investor who was willing to buy the house for $50,000. He told them that selling the house on the open market would be time-consuming and various fees and costs would reduce their profits. So the sons agreed to the private sale.

But Smith left out one major detail — the investor was his wife.

He also did not inform the Humane Society of the sale.

In the case of another estate — that of a man identified as J.T., C.B.’s common-law husband — there were unpaid students loans of $4,600 and the estate only held $2,200 in assets. In a letter to Social Development Canada, Smith claimed that the estate assets “were applied to final expenses,” when in fact the money was in his firm’s trust account.

Smith also used money from C.B.’s estate to retain counsel following the Law Society of Manitoba’s investigation.

The LSM discipline hearing panel found Smith guilty of seven counts of professional misconduct. He was disbarred and ordered to pay $24,500 to the law society. The Manitoba Court of Appeal upheld the penalty.

The law society found that Smith lacked integrity. “As the executor of the estate, Mr. Smith owed a fiduciary duty to the beneficiaries to act in their best interests. Instead, in his capacity as legal counsel to the estate, he wrote a letter that was misleading in order to obtain a financial benefit for his family,” the panel wrote.

“It is critical to recognize that Chapter 1 of the [professional code of conduct] demands of all lawyers a duty of absolute honesty, not only with justice system participants, but with the public at large,” states the ruling.

Throughout the proceedings, Smith maintained his innocence and insisted that his conduct was not improper. The Court of Appeal found this to be further justification for his disbarment.

“Had the appellant recognized that his conduct, especially regarding the sale of the property to his wife, was seriously improper and unprofessional, the sanction might well have been a suspension because the panel would not likely have had the concerns it expressed about future protection of the public,” Justice Martin Freedman wrote in Smith v. Law Society of Manitoba.

“But his insistence that his conduct was not improper, a position he maintained in argument before us, coupled with the finding of a pattern of dishonesty, led the panel to conclude that the public interest could only be protected in future by permanently removing the appellant from the practice of law.”

A long-running Canadian legal battle ended on Thursday when the Supreme Court of Canada declined to hear a challenge to a government decision to allow Globalive to offer wireless services in Canada despite its close ties to a foreign company.

The decision in Public Mobile v. Globalive Wireless Management Corp. was a setback for Public Mobile, a Globalive rival that also offers a low-cost wireless service, and Canada’s telecoms regulator, the Canadian Radio-television and Telecommunications Commission.

Public Mobile had contended Globalive was under the control of Egypt’s Orascom Telecom Holding SAE, making the upstart provider ineligible to operate in Canada, which currently limits foreign ownership and control of telecoms firms.

Orascom has since sold most of its assets, including its interest in Globalive, to Russia’s Vimpelcom Ltd.

In a seesaw battle, the government overruled the CRTC, the Federal Court overruled the regulator, and the Federal Court of Appeal overturned that decision last year, siding with Globalive and the government.

The case is close to being moot because of a government announcement on March 14 that it would soon allow non-Canadians to take control of telecoms carriers with a market share of 10 per cent or less. That would cover Globalive, which owns Wind Mobile, a newcomer to the wireless business.

Three carriers — Rogers Communications Inc., BCE Inc. and Telus Corp. — now dominate the Canadian wireless industry. The government is eager to encourage competition in Canada’s wireless industry, which boasts some of the world’s highest rates. It set aside airwaves for new entrants in the 2008 auction that brought in Globalive’s Wind Mobile, Public Mobile and third upstart Mobilicity.

Vimpelcom does not directly own shares in Globalive, but has a third of the voting shares and two-thirds of the equity in a holding company that the courts consider Canadian.

The Supreme Court of Canada set new guidelines for determining the law of jurisdiction in a trio of decisions yesterday.

Brian Radnoff notes the SCC has made it clear that courts should not consider non-objective factors.

In dismissing the appeals in Éditions Écosociété Inc. v. Banro Corp, Club Resorts Ltd. v. Van Breda, and Breeden v. Black, the top court established certain factors to consider when determining whether a Canadian can sue a foreign defendant in a Canadian court.

In Van Breda, Justice Louis LeBel wrote that in a case involving a tort, the court should consider these factors:
“(a) the defendant is domiciled or resident in the province;
(b) the defendant carries on business in the province;
(c) the tort was committed in the province; and
(d) a contract connected with the dispute was made in the province.”

Lebel also recognized that in the future other factors might pop up that should be added to his list and put forth some consideration to guide judges down the road:
"(a) the similarity of this new connecting factor with the recognized presumptive connecting factors;
(b) the treatment of the connecting factor in the case law;
(c) the treatment of the connecting factor in statute; and
(d) the treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity."


Brian Radnoff, a partner at Lerners LLP, says prior to this ruling, the courts recognized non-objective factors like fairness and justice but now the Supreme Court has made it clear that courts should not consider non-objective factors in determining jurisdiction.

Overall, Radnoff says he’s satisfied with the decisions. “The test is logical and shouldn’t be difficult to apply, and it should assist in giving parties to litigation more certainty and reducing disputes and costs regarding jurisdictional issues,” he says.

Radnoff notes that it’s imperative to know when Canadian courts will take jurisdiction over certain claims. “We have an increasingly global marketplace. And in this country itself, commerce and any business activity increasingly occurs beyond the borders of any particular province,” he says.

“The issue of when Canadians can sue defendants in other provinces, in the U.S., and other countries is going to be of increasing importance because of the way our economy works . . . there are going to be disputes arising all the time,” he adds.

Van Breda dealt with personal injuries in a foreign country while Éditions Écosociété and Black related to Internet defamation.

“[Internet defamation] is an issue that’s going to be increasingly important,” says Radnoff. “In terms of those decisions, I would say they’re fairly plaintiff-friendly. So long as information published over the Internet is accessed and downloaded in the province where the action is commenced, that should be sufficient to give that court jurisdiction.”

One of the decisions he’s referring to is Black, in which the court ruled that Conrad Black can pursue his libel lawsuits against the authors of a report that he claims defamed him in Ontario, as his reputation in Ontario would be most affected. Read more about the Black ruling here.

The Supreme Court of Canada ruled on Wednesday that former newspaper mogul Conrad Black is entitled to pursue libel suits in Ontario against the authors of a report that said he ran his U.S.-based media company, Hollinger International Inc, like a “corporate kleptocracy”.

Conrad Black and his wife Barbara Amiel leave federal court in Chicago, June 24, 2011. (Photo: John Gress/Reuters)

Black, 67, is currently serving a prison sentence in Florida for fraud and obstruction of justice and expects to be released next month. His spokesman Adam Daifallah said Black was delighted with the Canadian court’s ruling.

But an agreement to settle the defamation suits and other court actions, reached after the Supreme Court heard the case in March 2011, could render the ruling in Breeden v. Black moot.

Black has sought more than $2.3 billion in damages in his libel suits. The defendants are Richard Breeden, a former head of the U.S. Securities and Exchange Commission who spearheaded a 2004 Hollinger committee report on Black’s practices, along with three committee members, and other former Hollinger directors.

The report said Black, a former Canadian citizen who is now a member of the British House of Lords, looted publisher Hollinger International of hundreds of millions of dollars. Black denies the charge.

Hollinger used to own Britain’s Daily Telegraph, the Jerusalem Post, the Chicago Sun-Times and many other papers.

In a statement on Wednesday, Daifallah said Black and the defendants had entered into a memorandum of understanding to resolve these legal actions as well as others in the United States.

“The settlement remains subject to court approvals in Ontario and Delaware and, once approved, disposes of these actions notwithstanding the Supreme Court’s favorable decision today,” Daifallah said. No money has yet been exchanged.

Earlier, he characterized the agreement as enforceable and as one that would not be affected by the Supreme Court decision.

The defendants say their comments were justified, and they were doing what was required under U.S. securities law.

The Supreme Court dismissed arguments by the defendants that Black was a “libel tourist” who shopped for the easiest jurisdiction to win his case. Black had filed a number of libel lawsuits not connected to this case.

Black’s lawyers argued his reputation was more tied to Ontario than anywhere else, even though Black gave up Canadian citizenship. Black is now a British citizen.

The Supreme Court of Canada starts its spring session tomorrow. Here are the scheduled appeals for this week.

April 11 — Quebec — Personne désignée B v. R.

Criminal law: This case is central to the crackdown of an organized crime ring in Quebec. Ten people were arrested based on information from the applicant. In question is whether the applicant had police informer status. There is a publication ban and sealing order in the case.

April 12 — Manitoba — Robert Joseph Kociuk v. R.

Criminal law: Robert Joseph Kociuk was convicted of first-degree murder while committing a sexual assault. DNA profiling was used to convict him in this 1984 “cold case” murder. On appeal, Kociuk claimed that the trial judge did not adequately put the theory of the defence to the jury. The majority of the Court of Appeal dismissed the appeal.

April 13 — Alberta — Adrian John Walle v. R.

Criminal law: Adrian John Walle was convicted of second-degree murder. On appeal, he argued he should have been convicted of manslaughter, and his developmental delays and alcohol consumption should have been considered. The Court of Appeal dismissed the appeal.

The Supreme Court of Canada has agreed to hear the appeal in R. v. Criminal Lawyers’ Association of Ontario.

The case involves three separate criminal trials where the judges appointed amici curiae for the unrepresented accused, set their rate of pay, and ordered the Ministry of the Attorney General to pay them from public funds. The Crown argued the courts do not have the authority to set an amicus curiae’s rate of pay and only Parliament can decide how public money is spent.

The Criminal Lawyers’ Association, which originally intervened in the case and is now the respondent, argues that the courts should be able to determine the compensation for amicus curiae and they should receive fair payment.

“It’s our members who end up being appointed as amicus curiae in criminal trials and obviously our members have an interest in making sure we’re paid at a fair and reasonable rate,” says Andras Schreck, the CLA’s counsel in the case. “[T]he legal aid rate is not a fair and reasonable rate, it’s a grossly inadequate rate.”

For example, says Schreck, if the Crown retained him to prosecute a case, he would be paid $192/hour. However, the Crown argues that if the judge asks him to be on the case to assist the court, then he should be paid $106/hour. “That’s not reasonable,” he says.

A year ago, the Ontario Court of Appeal dismissed the appeal in R. v. Russel, ruling that the courts do have jurisdiction to appoint an amicus curiae and determine his or her compensation.

“Where the court concludes that it is necessary to appoint amicus, it is for the court, not the Attorney General or Crown counsel to set the terms of the appointment. . . . The jurisdiction to appoint amicus must necessarily include the power to set the terms under which amicus will function, including the rate of compensation,” wrote justices Marc Rosenberg, Stephen Goudge, and Robert P. Armstrong in the decision.

“The court could not fulfil its function to administer justice according to law if it could create the role of amicus where that was necessary, but had no power to ensure that the role was filled because it could say nothing about the rate of compensation. We therefore conclude that the jurisdiction to appoint amicus necessarily extends to fixing the rate of compensation,” the judges added.

Adds Schreck: “There are other problems with the Crown being able to unilaterally decide how much amicus curiae gets paid. This is someone appointed by the court to assist the court and the court should be able to determine who that is and what they get paid.”

Judges must carefully consider flexible sentences for Aboriginal offenders to avoid violating the law, the Supreme Court of Canada ruled in an anticipated Aboriginal law decision today, noting the principles established in R v. Gladue have not been met.

Releasing its ruling in R. v. Ipeelee, a pair of cases that explore the issue of differential treatment for Aboriginal offenders highlighted by the court in Gladue, the Supreme Court found factors like cultural oppression, poverty, and a history of abuse in the residential school system must factor heavily into sentencing Aboriginal offenders.

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190),” the Supreme Court of Canada ruled in a 6-1 majority. “To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.”

According to the Supreme Court, Gladue, a 1998 precedent-setting decision that was designed to take factors such as poverty and residential school abuse into consideration in sentencing and shift a disproportionate number of Aboriginal offenders out of prison, has failed to take hold in Canada’s justice system.

“Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate, section 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system,” the Supreme Court ruled. “Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.”

Ipeelee involved appeals by two separate Aboriginal offenders who were declared long-term offenders and had long-term supervision orders imposed. The central issue in each appeal involved the determination of a fit sentence for a breach of a long-term supervision order in the case of an Aboriginal offender, particularly in determining whether or not the principles of Gladue had any effect.

Manasie Ipeelee, a 39-year-old Inuk man, is decribed in the SCC decision as a lifelong alcoholic involved in a laundry list of thefts, assaults, and sexual assaults. He began drinking alcohol when he was 11 years old, his mother froze to death when he was five years old, and he has been out of jail or in detention since 1985.

Ipeelee was sentenced to six years for a recent sexual assault and a subsequent ten years with a long-term offender designation. The designation meant he could be returned to prison for breaching the designation’s terms.

“In my view, the courts below made several errors in principle warranting appellate intervention. First, the courts reached the erroneous conclusion that protection of the public is the paramount objective when sentencing for breach of an LTSO and that rehabilitation plays only a small role,” the Supreme Court ruled. “As discussed, while protection of the public is important, the legislative purpose of an LTSO as a form of conditional release set out in s. 100 of the CCRA is to rehabilitate offenders and reintegrate them into society. The courts therefore erred in concluding that rehabilitation was not a relevant sentencing objective.”

Frank Ralph Ladue, 49, a member of a small community in the Yukon Territory was 5 when he was sent to a residential school where he was allegedly physically, sexually, emotionally, and spiritually abused, was the appellant in the other case.

After Ladue was released from residential school, he began using drugs and drinking heavily, according to the Supreme Court’s decision. Ladue also amassed 40 criminal convictions, including a number of sexual assaults, and was sentenced to three years in prison for breaking and entering and committing sexual assault.

Ladue was released in 2006 from that sentence and has been jailed for several breaches of his long-term offender order since then.

“The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality,” the Supreme Court ruled.  “Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.”

The Supreme Court ultimately allowed Ipeelee’s appeal but dismissed Ladue’s appeal. Ipeelee was sentenced to one year in prison, while Ladue’s sentence of one year in prison was left untouched.