Tuesday, July 26, 2016

Parties have duty to supervise counsel

Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590 ONCA 590:

[22]        As part of its obligation to move its construction lien actions along, the appellant was required to take reasonable steps to supervise its counsel's work to ensure there would be an expeditious determination of the actions on their merits. On a motion to set aside a dismissal order, one would expect a commercial plaintiff like the appellant to file concrete evidence describing the steps it had taken to supervise its counsel's handling of its actions. The appellant did not do so. Given the absence of such evidence, it is understandable the motion judge was not prepared to accept that the assertions of the appellant's controller amounted to an acceptable explanation for a 13-year delay.

Sunday, July 24, 2016

Contempt - Spirit v Form

Chirico v. Szalas, 2016 ONCA 586 raises an interesting point. Contempt can be granted for a breach of the "spirit" of an order . This is hardly new but here the "spirit" has been defined quite broadly; specifically surrender of a dog to a different party was considered to be a breach because both parties were "authorities". The case will be useful for persons trying to enforce orders:

[52] The test for civil contempt is well established. The order must be clear and unequivocal, the failure or refusal to comply with the order must be deliberate, and the failure or refusal to comply with the order must be proved beyond a reasonable doubt: Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para 32.

[53] The test is not in issue. What is in issue is the manner in which the conduct of the alleged contemnor should be analyzed in relation to the requirements of the order.

[54] This court has rejected a formalistic interpretation of the relevant order. It is clear that a party subject to an order must comply with both the letter and the spirit of the order: Ceridian Canada Ltd. v. Azeezodeen, 2014 ONCA 656, at para. 8. That party cannot be permitted to "hide behind a restrictive and literal interpretation to circumvent the order and make a mockery of it and the administration of justice": Boily, at para. 58; Sweda Farms Ltd. v. Ontario Egg Producers, 2011 ONSC 3650, at para. 21.

Friday, July 22, 2016

An accused may discharge counsel at any time and the Court may not block such

It may be the trial will proceed without counsel but that's another issue. 

R. v. Chemama, 2016 ONCA 579:

[58]       An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court cannot interfere with this decision and cannot force counsel upon an unwilling accused: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9; R. v. Amos, 2012 ONCA 334, at para. 19. In exceptional circumstances, the court may appoint an amicus curiae to assist the court where this is necessary to permit the successful and just adjudication of a particular proceeding: Cunningham, at para. 9; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 44.

Of the Law Societies of Upper Canada and Nunavut 

Thursday, July 21, 2016

Retrospective Criminal Laws

R. v. K.R.J., 2016 SCC 31:

Section 11 (i) of the Charter  constitutionally enshrines the fundamental notion that criminal laws should generally not operate retrospectively. This constitutional aversion for retrospective criminal laws is primarily motivated by the desire to protect the fairness of criminal proceedings and safeguard the rule of law. Rules pertaining to criminal punishment should be clear and certain. To attract the protection of s. 11 (i), the new prohibition measures must qualify as “punishment”. In R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, this Court developed a twopart test for determining whether a consequence amounts to punishment under s. 11 (i): (1) the measure must be a consequence of a conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence; and (2) it must be imposed in furtherance of the purpose and principles of sentencing.

This test requires two clarifications. First, while not all measures imposed to protect the public constitute punishment, public protection is at the core of the purpose and principles of sentencing and is therefore an insufficient litmus test for defining punishment. Thus, sanctions intended to advance public safety do not constitute a broad exception to the protection s. 11 (i) affords and may qualify as punishment. Second, the s. 11 (i) test for punishment must embody a clearer, more meaningful consideration of the impact a sanction can have on an offender. Doing so enhances fairness and predictability in punishment and is consistent with this Court’s jurisprudence.

Accordingly, the s. 11 (i) test for punishment should be restated as follows: a measure constitutes punishment if (1) it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) it is imposed in furtherance of the purpose and principles of sentencing, or (3) it has a significant impact on an offender’s liberty or security interests. To satisfy the third branch of this test, a consequence of conviction must significantly constrain a person’s ability to engage in otherwise lawful conduct or impose significant burdens not imposed on other members of the public.

Police must take steps to ensure medical treatment for prisoners

R. v. Poirier, 2016 ONCA 582:

[82]        In my opinion, the police have a duty to take reasonable steps to ensure that the accused's safety and security of the person are not compromised as a result of the nature of the search. Reasonable steps can only be taken if the police inform themselves as to the risks of the procedure they are carrying out. 

[83]        I find support for my position in the jurisprudence. In Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 118, McLachlin C.J. and Major J. held that "delays in obtaining medical treatment which affect patients physically and psychologically trigger the protection of s. 7 of the Charter" since delays in medical treatment can result in serious physical pain, or even death.

Of the Law Societies of Upper Canada and Nunavut 

Friday, July 15, 2016

Inadvertent disclosure seldom amounts to waiver of privilege

 R. v. Ward, 2016 ONCA 568:

[31]        Communications between a lawyer and his or her client are privileged where they involve the giving or seeking of legal advice and where the parties intend them to be confidential: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837. The client, not the lawyer, holds the privilege and only he or she can waive it: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 37.
[32]        Where solicitor-client privilege has not been waived, the court may also consider whether privilege should yield in order to allow an accused to make full answer and defence: R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at paras. 5, 28, 45. However, solicitor-client privilege is almost absolute, and may be set aside only in very rare circumstances: McClure, at paras. 5, 35. As the Supreme Court stated in McClure, at para. 35: “[S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.”  
[33]        Here, the content of the letter and the context make it clear that trial counsel sent the letter to his own counsel in the course of seeking advice about how to respond to appeal counsel’s requests and how to comply with this court’s Protocol. I infer from this same content and context that trial counsel intended the communication to be confidential. Trial counsel is no less entitled to the benefit of solicitor-client privilege because he was attempting to comply with the Protocol.
[34]        The appellant concedes that the disclosure to appeal counsel was inadvertent, and that trial counsel did not waive solicitor-client privilege. This was an appropriate concession.
[35]        Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:
·       The way in which the documents came to be released;
·       Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
·       The timing of the discovery of the disclosure;
·       The timing of the application;
·       The number and nature of the third parties who have become aware of the documents;
·       Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and
·       The impact on the fairness, both actual or perceived, of the processes of the court.
See Airst v. Airst (1998), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and Chapelstone Developments Inc. v. Canada, 2005 NBCA 96, 191 C.C.C. (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.
[36]        Having considered the above factors, I conclude that solicitor-client privilege was not waived in this case.
[37]        Nor should it be set aside. In McClure, the Supreme Court held that solicitor-client privilege may only be set aside very rarely, “where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction”: para. 47. Under the innocence at stake test, the accused must first establish that the information sought from the solicitor-client communication is not available from any other source and that he or she is unable to raise a reasonable doubt as to guilt in any other way. If that threshold question is satisfied, the court will then consider whether there is an evidentiary basis upon which to conclude that a communication exists that could raise a reasonable doubt as to the accused’s guilt, and if so, whether the communication is likely to raise a reasonable doubt. See McClure, at paras. 46-51; and Brown, at paras. 4, 29.
[38]        There is no basis to abrogate the solicitor-client privilege here. Innocence is not at stake. The contents of the Letter are marginally relevant to the ineffective assistance of counsel claim, if pursued. The panel ultimately hearing the appeal will be able to come to its own opinion as to possible inferences a jury could have drawn from the evidence led at trial.