Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.
This week's summaries concern:
Race and mandatory minimum sentences / Cruel and unusual punishment and mandatory minimums:
R. v. Nur (H.) 2013 ONCA 677
Civil Rights - Discrimination – Race and national or ethnic origin – Criminal matters – Mandatory minimum sentences
The accused was charged with one count of possession of a loaded prohibited firearm and accessible ammunition (Criminal Code, s. 95(1)). The Crown proceeded by indictment, and the accused elected to be tried by judge alone. The accused eventually pleaded guilty to the charge. The matter proceeded to sentencing. The accused challenged the constitutionality of the mandatory minimum three year sentence imposed by . . .
R. v. McMillan (B.W.) 2013 MBQB 229
Civil Rights - Cruel and unusual treatment or punishment – What constitutes – Mandatory minimum and consecutive sentences
The accused pleaded guilty to a charge of intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was in that place (Criminal Code, s. 244.2(1)(a)). There was a mandatory minimum sentence of four years for that offence. The issue of sentencing was adjourned to allow the accused to pursue an application challenging the constitutionality of . . .
Chaque semaine, nous vous présentons un résumé d'une décision d'un tribunal québécois qui nous est fournis par la Société québécoise d'information juridique (SOQUIJ) et ayant un intérêt pancanadien. SOQUIJ relève du ministre de la Justice du Québec, et elle analyse, organise, enrichit et diffuse le droit au Québec.
Every week we present a summary of a decision by a Québec court provided to us by SOQUIJ and selected to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
Recours collectif: Le recours collectif intenté contre la Banque Royale du Canada par des personnes ayant perdu leurs investissements dans les fonds Olympus à la suite d'une fraude est autorisé.
Intitulé : Calder c. Banque Royale du Canada, 2013 QCCS 5296
Juridiction : Cour supérieure (C.S.), Montréal, 500-06-000435-087
Décision de : Juge Marc De Wever
Date : 30 octobre 2013 (jugement rectifié le 1er novembre 2013)
RECOURS COLLECTIF — procédure — autorisation — investisseurs — fraude — détournement de fonds — dommages-intérêts — banque — institution financière — scandale financier.
Requête pour autorisation d'exercer un recours collectif. Accueillie en partie.
La requérante désire être autorisée à exercer un recours collectif au nom des personnes qui, le 29 juin 2005, détenaient des parts de Fonds Olympus United Corporation. Elle allègue que les intimées Banque Royale du Canada et RBC Capital Markets Corporation ont sciemment et aveuglément pris part à l'établissement d'un stratagème frauduleux par le groupe financier Norshield alors qu'elles savaient ou auraient dû savoir que ce partenaire d'affaires escroquait des tierces parties, soit les investisseurs canadiens au détail. Elle allègue également que les intimées ont contribué à la crédibilité de la structure frauduleuse et ont permis le détournement de fonds, causant par le fait même des dommages équivalant aux investissements détenus par les membres du groupe dans les fonds Olympus.
Premièrement, les recours des membres soulèvent des questions de droit et de fait identiques, similaires ou connexes. Contrairement à ce qu'avancent les intimées, la requérante ne fait aucunement valoir qu'elle se serait fiée à de quelconques «faits et gestes» des intimées avant de prendre la décision d'investir dans Olympus. Elle prétend essentiellement que les intimées ont décidé de participer à un stratagème frauduleux avec l'objectif d'en tirer profit tout en sachant ou en ayant dû savoir que leur partenaire arnaquait de tierces personnes. Par ailleurs, la possibilité de petits procès à l'étape du règlement individuel des réclamations ne devrait pas être considérée comme un obstacle au recours collectif. Deuxièmement, les faits allégués paraissent justifier les conclusions recherchées. L'argument des intimées concernant l'absence d'allégation de faits concrets pouvant être qualifiés de fautes ne peut être retenu. Seule la preuve qui sera faite au procès permettra d'établir si les intimées savaient ou auraient dû savoir qu'elles participaient volontairement à un stratagème frauduleux. Quant à leur argument relatif à l'absence d'allégations concernant le fait que la requérante se serait fiée aux intimées, compte tenu de leur participation au stratagème frauduleux, il ne peut non plus être retenu puisque la requérante elle-même ne soutient pas cette affirmation. La requérante et les membres du groupe fondent leur recours sur le fait qu'ils ont été frauduleusement amenés à investir dans Olympus. Ils n'invoquent pas les contrats intervenus entre les intimées et Mosaic ni aucun autre lien extracontractuel entre les intimées et les autres entités impliquées dans la fraude. Troisièmement, la composition du groupe rend difficile ou peu pratique l'application des articles 59 ou 67 du Code de procédure civile. Quatrièmement, la requérante est en mesure d'assurer une représentation adéquate des membres. Elle a une bonne compréhension des faits pertinents du dossier. Durant les dernières années, elle a pris des mesures afin de présenter la requête en l'espèce, en dépit de nombreux revers et difficultés, sans compter sa capacité de se soumettre à des interrogatoires et de communiquer des réponses à des questions pertinentes. Quant au groupe, celui-ci devrait être d'envergure nationale. Il existe un lien réel et substantiel avec la compétence de la Cour puisque la fraude alléguée aurait été commise à Montréal, là où Norshield a été fondé et où la Banque Royale du Canada ainsi que les mis en cause Richter et Massi ont soit leur siège social, soit un domicile. Par ailleurs, la définition du groupe devrait exclure toute personne ayant eu ou ayant des liens avec John Xanthoudakis ou encore avec tout autre ancien directeur, administrateur, représentant ou employé du groupe financier Norshield.
Le texte intégral de la décision est disponible ici
The federal government's Bill C-13 has come in for a good deal of well-deserved criticism — principally for being in fact an omnibus bill and for increasing the power of authorities to invade our privacy. A recent critique of the bill by Peter Nowak in Canadian Business caught my attention because it reminded me that it's still illegal to publish a crime comic. The prohibition occurs in s.613 of the Criminal Code:
163. (1) Every one commits an offence who . . .
(b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic.
. . .
(7) In this section, “crime comic” means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially
(a) the commission of crimes, real or fictitious; or
(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.
There is a defence to the crime if "if the public good was served by the acts . . . "
Nowak's critique is slightly misplaced in that Bill C-13 doesn't amend s.163 (so far as I can judge), but it does amend subsequent sections dealing with authorities' powers that refer back to s.163 and that mention "crime comic" explicitly. So a reading of Bill C-13 has brought this peculiar provision into view, as it would have done for those planning and drafting the proposed amendments; and it might sensibly be asked why the government didn't take the opportunity while it was mucking about in the "corrupting morals" area of the Code to get rid of this archaism.
Crime comics became wildly popular in the U.S. and to a lesser extent in Canada during the latter part of the 1930s and during the 1940s. This wave of tawdry entertainment caused concern among those who worried that children would be corrupted by it. This improbable mischief was given a scientific gloss largely thanks to a Dr. Fredric Wertham. His 1954 book, titillatingly titled Seduction of the Innocent, is often seen as the root of the anti-comics movements, but in fact his campaign began much earlier. The publication of his 1948 symposium, "The psychopathology of comic books," is perhaps a better starting point. It was referred to in the 1949 debates in the House of Commons leading up to the passage of the original version of the Canadian prohibition:
. . . May I read to the house some of the words used by an experienced psychologist in discussing the type of thing with which I am dealing. I hold in my hand a book entitled “The Psychopathology of Comic Books", an extract of the symposium held by the association for the advancement of psychotherapy held in New York city and written by Frederic Wertham. The first paper was read by a Mr. Gerson Legman. I shall read from page 473 of the proceedings of the association. I read these words because they are a perfect description of the type of publication which I have in mind:
The comic books concentrate on aggressions which are impossible under civilized restraints—with fists. guns. torture. killing. and blood. The internalized censorship of both artist and child makes this attack respectable by directing it against some scapegoat criminal or wild animal. or even against some natural law like gravity, rather than against the parents. teachers. and policemen who are the real sources of the child's frustration and therefore the real objects of his aggression. At the same unconscious level that the child identifies himself with the heroic avenger. he may also identify whoever has been frustrating him with the corpse.
Violence displaced In this way from its intended object invariably appears in larger and larger doses, more and more often repeated. Twelve years ago, in 1936, there was not one comic book published in the United States. Today, at a conservative estimate, there are five hundred million yearly.
May I pause here to remark that that estimate is already out of date, because the last authoritative estimate in the United States is that 60 million of these publications hit the magazine stands in that country every month, or 720 million a year. I regret that I have not been able to obtain authoritative figures on the numbers which are circulating in Canada; but, as I have said, if any hon. member wants to see for himself the threat which they are he has only to go to any newsstand in any otherwise reputable magazine shop in this or in any other city.
It's pretty much all there, the trappings of a moral panic argument: emphasis on the vulnerable among us (whether young or ignorant or simply "innocent"), the allegation of insidious corruption working in ways that are out of the sight of the ordinary person, the confident assertions of the experts, the reification of the danger in print ("I hold in my hand a book . . . " , "I have here in my hand a list of 205—a list of names . . . ") and the use of very large (and rising) numbers that need only be tangentially related to the actual scourge . . .
Of course, nowadays, in an era of unbridled violence on television and in video games, this seems laughable. (For a look at the actual comics of the period, go to Comic Book Plus, which has a section on crime comics.) But it might be useful still as a reminder that today's moral panic, whatever it may be — terrorism, marijuana, crime rates — will in a relatively short while look just as ridiculous, and that there really is no substitute for skepticism, the cautious testing of evidence, and a genuine reluctance to become involved on a primarily moral basis with what citizens do.
We recently had the pleasure of serving on a Fairfax Bar Association CLE faculty which included Circuit Court Chief Judge Dennis Smith, and Circuit Court Judges John Tran and Jane Roush. Their panel offering their insights on e-discovery in state courts was warmly received.
Judge Smith got the ball rolling by talking about the difference between digital immigrants and digital natives, terms coined more than a decade ago by author, educator and lecturer Marc Prensky.
Digital immigrants didn’t grow up with technology and digital natives did. Many judges are digital immigrants. Some will “learn a new language” and immerse themselves in the new technologies — others never will.
Because of this, the panel of judge emphasized that it is important to explain e-discovery issues to the court in simple terms, avoiding acronyms and “geek lingo.”
Most state court judges have been educated by the Sedona Conference and seem particularly struck by the commentary on proportionality. They are anxious to hear about that in each case.
On the other hand, Judge Tran described the phrase “unduly burdensome” as immediately inducing sleep. We might have said narcolepsy. No words contain, in and of themselves, so little help. Explaining factually why something is unduly burdensome is much preferred by the court.
And Judge Smith offered the strict observation that if all your objections to discovery requests are pro forma, hide the ball, non-specific objections, it is likely that the court will grant a motion to compel.
As all three judges noted, some of their best education comes from prepared counsel who can ditch the geek-speak and explain to them what they need to know. Such counsel and their experts operate as instructors and the judges are avid pupils.
All the judge complained of fishing expeditions. As they noted, when they see a focused, narrowly tailored discovery request, they know the attorney is well-prepared.
Collaboration is another theme. Right from the start, judges prefer that the attorneys on each side collaborate and share search terms, bearing in mind that searches have to be defensible, tested and transparent. So often, discord in e-discovery seems petty to the judges, with both sides striving to portray themselves as the “good guys” who are reasonable and conciliatory. As Judge Smith noted, “this is a nuclear war you don’t want to have.” Far better to collaborate and have a joint plan.
While deciding these disputes is painful, John Tran (a recent member of the bench) notes that he prefers deciding those disputes to arguing them. All the judges lamented the scorched earth litigation they so often see. But they do acknowledge that some issues need airing – just not as many as come before the court!
Judge Roush noted how much evidence we create, with young people putting every stray thought in digital form. As she noted tongue-n-cheek, “technology has taken all the fun out of adultery.” The digital evidence is always there and comes out in discovery.
The state court judges are becoming used to rolling productions, which are sometimes needed by the sheer volume of evidence and which show continuing good faith to bring forth evidence as quickly as possible.
They have seen only a few predictive coding cases. They surmise that the document intensive cases, because of their subject matter, are more likely to be in federal court than state court. However, they have no objection to predictive coding and believe it is a logical advance in e-discovery, assuming that the costs become more affordable.
Perhaps most telling was Judge Smith’s reference to the old adage, “What’s good for the goose is good for gander.” If one side asks for something and gets it, the court is likely to be receptive to a reciprocal request by the other side. Plaintiffs are always bemoaning what defendants have not preserved or produced but the truth is, plaintiffs often neglect to preserve and produce themselves, no doubt feeling themselves the aggrieved parties.
While we delight in the stories from the federal judges, the tales from the state court judges have a more small town, homespun feel. Not every case is a megacase and we applaud the commonsense approach of state court judges to “e-discovery writ small.”
Mumbling covers a lot of sins. When you're abashed or ill-prepared or simply your usual fifteen minutes away from l'esprit d'escalier, mumbling could be the way to go. Broca's area has lost contact with ground control, yet utterance is obligatory: dive! dive! dive! And from somewhere deep in the reptilian part of your think gel come noises that sound so close to speech that some of the people some of the time can be fooled.
Lawyers don't get to mumble much, though. For one thing, it doesn't work very well in print (which is not to say it's impossible) and then there's the fact that clients and partners alike tend to frown on it. This denial of recourse to mumbling puts a great deal of pressure on lawyers, who as a result must never be ill-prepared or, indeed, caught out in any way and who must always have their wits within easy reach, however few of them there may be.
Some others, however, have learned to profit from mumbling. Lyrics of songs are notoriously hard to understand, and as a result in some cases performers have not bothered with the effort of using real words. Case in point: Piero Umilliani's Mah Na Mah Na -
And mumbling has the wonderful virtue of being a world-wide lingua franca — no need to translate from Korean to German, from English to French, etc. So long as actions speak loudly as words, you're home free. This is the genius of shows like Pingu, the children's program where penguins and other creatures burble and squeak at each other in all languages and none. Mr. Bean, the glorious creation of Rowan Atkinson, plays as well in Chile as he does in Chad thanks to the barest minimum of speech and some effective muttering.
Which is why I feel comfortable offering you French Roast, a French, eight-minute, animated film as the main feature today. You've no need to understand spoken French: what little there is is . . . well, mumbled. The action is all in the images, which are wonderfully drawn. Enjoy. (Pro tips: 1. use the full screen option, which is right before the Vimeo name; 2. stay for the pigeon beneath the credits at the end — oh, and the mumbling background singers.)
Each year on December 1st we open up Clawbies.ca for "nomination season", a month long process where online participants can highlight some of their favourite voices within the Canadian legal blogosphere.
This past Sunday we were pleased to carry forward that tradition once again – unbelievably for the 8th time! The website theme and award badges got their annual facelift, and the announcement post went live at 9:00 am eastern/6:00 pacific.
A handful of days later, and I'm happy to share our annual "good will project" is off to a great start (and not just Erik Magraken, who now famously releases his nominations just minutes after the announcement). Yes, we already have a handful of blog posts and a bunch more social media shares – which, of course, is where all the fun is! It's a fascinating exercise to watch as bloggers recognize their peers, and for lurking readers to reach out to their blogging colleagues and pat them on the back!
If you're interested in being involved, please do read the rules first. It's all very simple. Well, except for rule #1 (which gets broken each year ): don't nominate yourself!
Please link on over and read the post. In no order of importance, it references: a Roomba, animated gifs, Wallace Shawn, Richard Susskind, and a prediction for People magazine's Sexiest Man Alive (not Richard Susskind). The Clawbies are… uh… not losing their "fun" factor. :)
Please help us spread the word!
I don't know if Gmail and Google Calendar are much used within practice — I can think of a bunch of reasons why they shouldn't be — but I'm certain that many of us who work in the legal industry use these applications in our private lives. In either case, it's important to have control over your data. If you don't access your Gmail via IMAP, you don't have a local copy on your own machines. Now Google plans to let you simply download your mail data as they roll this ability out over the next month. Calendar data can be downloaded right away, according to the Official Gmail Blog announcement. This also lets you move the data to another service, should you want to leave Google.
You'll find the controls by going to your Account page, where you'll see the invitation to "Download your data."
Environmental regulators and tribunals bear substantial responsibilities and make important decisions regarding development in Canada. If they won't listen to opponents of a project, will they breach the Canadian Charter of Rights and Freedoms?
The issue has been raised before the courts recently regarding both a pipeline approval before the National Energy Board and regulation of ongoing fracking activities before the Alberta Energy Regulator. The AER replaced the Energy Resources Conservation Board (ERCB), and provides “full-lifecycle regulatory oversight of energy resource development in Alberta – from application and construction to abandonment and reclamation, and everything in between.”
The mandate of both bodies are set by their statutes. Often, they cannot consider all the issues that members of the public want to raise. Those adversely impacted by development often claim that the tribunals and regulators are not doing enough to protect them, and are overly concerned with approving development.
At the very least, many say, they ought to listen to what we have to say. Frustration with the restrictions on who can communicate with decision-makers, and how, lead to two recent claims that claimants right to freedom of expression under the Charter had been infringed.
Restrictions on communication with environmental regulators may violate the right to freedom of expression.
In 2011, Jessica Ernst launched a lawsuit against EnCana, the ERCB and the Alberta government for the contamination of her property and drinking water due to EnCana’s fracking program. A component of her claim against the ERCB was that by barring her from communicating with it through the usual public communication channels it breached her Charter right to freedom of expression.
Ms. Ernst voiced her concerns about the negative impacts of oil and gas development near her home and was also a vocal critic of the ERCB. She claimed that the ERCB “seized on an offhand reference to Weibo Ludwig … and used it as an excuse to restrict her speech by prohibiting her from communicating with the ERCB through the usual channels.” (Note: Mr. Ludwig was convicted of bombing and sabotaging well sites near his home in Northern Alberta. He was also investigated following a string of pipeline bombings in BC).
She was informed that all staff at the ERCB Compliance Branch had been instructed to avoid further contact with her, and that she had been reported to the Attorney General, the RCMP and the ERCB’s Field Surveillance Branch. Her letter requesting clarification was returned unopened. She was later directed to the ERCB Legal Branch, which informed her that the ERCB would not reopen communication until she agreed to raise her concerns only with the ERCB and not publicly through the media or through communications with other citizens. Her subsequent request to communicate unhindered with the ERCB, and to file a formal objection to oil and gas development under the usual ERCB regulatory process, received no response. Sixteen months later, she was again allowed to communicate freely with any ERCB staff.
Ms. Ernst alleged that the ERCB infringed her right to freedom of expression in two ways: 1) by “punishing her for criticizing the ERCB in public and to the media” and 2) by prohibiting and restraining her communication with the ERCB. She argued that this was not a claim to a positive right, as the ERCB suggested, but rather a claim against the ERCB’s arbitrary and punitive restriction on her communication.
The ERCB brought a motion to strike out this portion of her claim. The Alberta Court of Queen’s Bench found that, although this claim was novel, it was not necessarily “doomed to fail”, and did disclose a cause of action, and so should not be struck out on that basis.
But, statutory immunity applies to personal remedies under the Charter.
The ERCB also argued that Ms. Ernst’s Charter claim was barred by the statutory immunity provision found in Section 43 of the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA) (since repealed and replaced by the Responsible Energy Development Act, SA 2012, c R-17.3). In response, Ms. Ernst argued that the government could not legislate immunity to protect itself from legal action arising from its own Charter breaches.
Applying appellate and Supreme Court jurisprudence on the issue of whether a limitation period applies to a Charter claim, the Court distinguished between whether the claim is personal (for example, seeking damages for breach of an individual’s Charter rights) or general (for example, seeking to strike down legislation).
It concluded that where a party seeks a general remedy, a statutory immunity clause will not apply. However, where the claim is personal, it is barred by the provision; Ms. Ernst’s claim was therefore struck out.
Is there a right to participation in tribunal decision-making?
Forest Ethics Advocacy and Donna Sinclair, an individual who has family living near the controversial Line 9 pipeline, recently filed a Notice of Application to challenge new regulations restricting participation in the NEB’s public hearings. Under the new rules, the NEB is required to hear from those who are directly affected and may hear from those who have relevant information or expertise.
They claim that participation in the NEB hearings is a right that is guaranteed under s. 2(b) of the Charter and that the new regulations arbitrarily restrict participation to those who are directly affected and grants the NEB undue discretion to determine what is relevant information or expertise.
Further, they claim that the rules surrounding participation influence, or restrict, the content of the submissions. The requirement that those who wish to participate in the hearing, where such participation is not guaranteed, must complete a form creates a chilling effect on the applicant’s speech. The application form also advises applicants that the NEB “will not consider the environmental and socio-economic effects associated with upstream activities, the development of oil sands, or the downstream use of the oil transported by the pipeline.” This, they say, is an unjustifiable content-based restriction.
The Application has not yet been heard.
If not before the tribunal or regulator, then where?
These challenges reflect growing public frustration that environmental tribunals and regulators are not responsive to their concerns. Streamlining environmental decision-making comes at the cost of excluding information that many people consider relevant to the decision whether development is appropriate and responsible. Protestors recently succeeded in shutting down the NEB Line 9 hearings in Toronto, demonstrating that if the public concerns are not heard before the tribunal, they may be heard on the streets.
The November 2013 issue of Connected is now available online.
The bulletin covers news about the impact of social media on courts. Most of the items are about the United States, but there is occasional coverage of other jurisdictions.
The bulletin is published by the Virginia-based National Center for State Courts and the Conference of Court Public Information Officers.
In this issue:
- Michigan court to begin using social media to contact hard-to-reach parties
- Texas Judge bans social media use for child custody litigants
- How are governments using Instagram?
- Arizona Supreme Court launches new veterans' clearinghouse website
They laughed at me when I suggested that law firms should move to open concept offices for all lawyers with fun amenities like rooftop terraces.
Not possible! they yelled.
We could never get any work done! they sneered.
We need our offices! they pompously carolled.
We’re not techies working for Google! they laughed.
Now Australian law firm, Corrs Chambers Westgarth, with offices across Australia employing over 500 lawyers has proven them all wrong.
Walking into Corrs’ new Sydney office at state-of-the-art new office tower, 8 Chifley Place was like walking into a dream.
No private offices. None. Nada.
All lawyers and paralegals in work stations, additional workstations allow for hotelling of Corrs lawyers from other offices and for visitors/clients – there are even stand-up desks. Light flows deep into each floor from windows no longer blocked by private offices. Each desk has personal file storage and there are personal lockers on each floor and shared jacket storage near each desk. Local storage cupboards and coat cupboards area also located on each floor.
There are ample private rooms for meetings or sensitive calls.
And, wait for it….. a massive outdoor terrace (with BBQ) and a funky café area.
The entire office has gone wireless allowing lawyers to work anywhere they choose – including the terrace. And all employees use VOIP which also allows for desktop video conferencing.
The firm moved into the space in early November, 2013 – early feedback has been positive (and the cost-savings due to smaller space requirements significant) so it would not be surprising if other Corrs offices will follow suit as their leases come due.
Rumour has it that other Sydney law firms will be following suit as their leases come due.
Monica Goyal of Aluvion Law in Toronto says that working in an open office arrangement creates an energy and buzz among lawyers. It increases productivity and the exchange of ideas.
Say goodbye to the traditional "trappings" of law and welcome to a bright new future.
Gosh, I love being vindicated!