A blow against special interests

Bell Canada's victory at the Supreme Court on Friday should be seen as a major victory for shareholder's rights.

Others may still blow BCE's $42.75 a share takeover out of the water, but at least now we know it will not explode at the hands of a court reshaping Canadian corporate law.

The May 21 Quebec Court of Appeal's BCE decision was a time bomb from the minute it landed. In a bizarre crawl through legal history and jurisprudence, it essentially said that corporate directors of a Canadian corporation have some kind of higher or extra duty to "stakeholders" rather than primarily to shareholders.

Now the Supreme Court of Canada, in a major strike for shareholder rights, has overturned that decision.

Yesterday's decision, even if it turns out to be a narrow one, has a larger significance. It runs to the heart of the current debate over corporate ownership and the long-term future of Canadian corporate control.

More immediately, had the Quebec appeal court decision been upheld, Canadian corporate law would have been turned on its head.

Directors making takeover decisions, bankers making loans, CEOs setting strategy, shareholders valuing their holdings and making investment decisions -- all would have had to start looking over their shoulders, wondering which special interest -- bondholders, unions, local communities, environmentalists -- might jump forward to make a stakeholder claim.

If nothing else, at least now we know that Canadian law continues to support the highest principle of corporate governance, the primacy of the shareholder.

What we don't know is how deep that support runs, something we won't discover until the Supreme Court justices deliver their BCE reasons several months from now. It is unlikely the court will emerge as the Milton Friedman of Canadian jurisprudence.

The late Nobel economist once famously said, "Few trends could so thoroughly undermine the very foundation of our free society as the acceptance by corporate officials of a social responsibility other than to make as much money for their stockholders as possible."

It's a view that could easily be extended to corporate law and the stakeholder threat.

The Supreme Court won't go there, even if it should. The court is more likely, in its reasons, to stick to the narrow legal and factual issues it faced in the BCE case. The bondholders who brought the case to the courts are entitled to what their bond agreements give them, and no more.

The bondholders' claims that they deserve extra consideration beyond their legal contract, to compensate for the temporary loss in market value as a result of the takeover by Ontario Teachers' Pension Plan, have clearly been rejected by the highest court.

The general shareholder victory in the decision, and the victory for Canadian corporate governance and law, is not so much in how far the court entrenched what Jeffrey MacIntosh, capital markets law professor at the University of Toronto, describes as "shareholder primacy." The victory is in the fact that the Supreme Court did not extend the competing and destructive stakeholder theory to bondholders under takeover circumstances. The court had already inched in that stakeholer direction with a confusingly written decision in 2004 in the bankruptcy of Peoples Department Stores.

But BCE is not a bankruptcy, something the Supreme Court is certain to acknowledge. The BCE bondholders, moreover, are not on the brink of getting wiped out in a liquidation sell-off.

Also defused is the growing belief that there might be something to the idea that the business of a corporation is something other than making money for shareholders.

As Prof. MacIntosh put it in a recent Financial Post commentary, "The principle of shareholder primacy is, without question, an indispensable foundational element of the corporation's mission as the primary engine of wealth creation in our economy."

To undermine that foundation with legal burdens that force boards and CEOs to raise others -- bondholders or even employees -- to greater stature would threaten corporations as engines of wealth creation.

The BCE decision may even have a longer reach beyond BCE in unexpected ways.

Next week, Ottawa's Competition Policy Review Panel, led ironically by former BCE Inc. chief executive officer Lynton (Red) Wilson, will release its report.

One issue before the panel is what Canada should do to prevent the so-called "hollowing out" of Canadian business.

Should the law (or the courts) force Canadian boards and CEOs to take into account some national "stakeholder" interest in maintaining Canadian control? It's not something the Supreme Court had to decide in the BCE case.

In siding with BCE shareholders, the Supreme Court has allowed a Canadian company to take control of BCE by upholding the right of shareholders to maximum value within the law.

Would it do the same if a foreign buyer were paying maximum value at the expense of claims of national. stakeholders?

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Five foreign soldiers killed in two separate bombings in Afghanistan

"One can only hope for Canadian forces and their safety. jcm"

June 21, 2008

Stephen Graham, THE ASSOCIATED PRESS

KABUL, Afghanistan - Roadside bombs killed five foreign troops in Afghanistan on Saturday, military officials said, extending a series of daily attacks that have lifted the death toll for foreign forces this year to more than 100.

Officials also reported that two Afghan soldiers died in a bombing and several militants were killed in each of three separate clashes with U.S.-led coalition forces, including one close to the capital.
Violence continues unabated in Afghanistan, despite the presence of thousands of extra U.S. and NATO troops and fresh pledges of financial aid to the struggling government under President Hamid Karzai.

Last year, more than 8,000 people were killed in insurgency-related attacks - the most since the 2001 U.S.-led invasion - and violence has claimed more than 1,700 lives so far this year.

In Saturday's deadliest incident, a bomb killed four coalition troops and seriously wounded two others in the southern province of Kandahar, a coalition statement said. It provided no details.

To the east, a Polish soldier from the separate NATO-led force died when a bomb hit his patrol shortly after midnight in the Dila district of Paktika province. Jacek Poplawski, a Polish military spokesman in Warsaw, said four other soldiers were wounded, but their lives were not in danger.

The bombings cap a particularly bloody week.

NATO and Afghan troops backed by warplanes on Wednesday attacked up to 400 Taliban militants who had seized Arghandab, a strategic valley dotted with orchards within striking distance of the main southern city of Kandahar.

According to the Defence Ministry, 56 fighters and two Afghan soldiers died during the overnight operation, though the provincial governor put the militants' toll at over 100.

The swift military success was tempered by concern at how easily militants had infiltrated a region dominated by one of the region's strongest tribes, and forced NATO to mount a massive counter-operation.

It was also offset by a series of deadly attacks in the south and east.

Bomb, rocket and gun attacks had already killed four British soldiers, two American sailors, two U.S. Marines and one other member of the U.S.-led coalition this week.

Also Saturday, a roadside bomb hit a vehicle carrying Afghan army troops in the Sori district of Zabul province, killing two and wounding three others, provincial police official Faridullah Khan said.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

BCE Decision

The most significant Canadian business law decision was released a moment ago. I am in Ottawa presently. And...

The appeal is allowed with reasons to follow.

Which means that the BCE transaction will close.

OTTAWA (Reuters) - Canada's largest telecom company, BCE Inc. , won the backing of the Supreme Court of Canada on Friday to proceed with the world's biggest leveraged buyout.

The high court overturned a Quebec Court of Appeal decision which had said the C$34.8 billion ($34.1 billion) plan, to be funded partly by taking on new debt, did not take adequate account of the interests of existing bondholders.

It was a stunning victory for BCE, and analysts had said it would make the shares jump closer to the C$42.75 being offered by the Canadian-U.S. group of investors led by Ontario Teachers' Pension Plan for the deal, though banks involved in the deal are seeking better terms.

Hearsay -- Perhaps the traditional exceptions trump Wigmore?

The Superior Court decision in R. v. Petro-Canada, 2008 CanLII 29108 (ON S.C.) is curious and appears to contradict Supreme Court of Canada reasoning.

At issue was the admission of a letter. The trial judge noted the letter was being admitted to prove its truth and was hearsay. Everyone accepted that.

But the trial judge refused to admit the letter because, after a careful analysis, the two grounds to admit hearsay, necessity and reliability, were not met.

On appeal the letter was found admissible because it fit within a traditional exception to the hearsay rule. The Court held the traditional exceptions trumped the necessity/reliability principle.
The Court held:

"[23] In effect, the trial court held that the Khan case law has had the effect of narrowing the scope of previously recognized common law or statutorily admissible categories of hearsay, more significantly the admissibility of vicarious admission by an employee of a corporation, which stand on a different footing than the sort of hearsay admitted under the principled exception rule. "


Oddly the Court did not mention Starr which is subsequent to Khan and makes it clear that the only test for admission of hearsay is necessity and reliability. Some might suggest the decision was wrong. Wrong or not it may be useful.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Fatally Starving Autistic Sister Nets 9 Years

By BRIAN GRAY, SUN MEDIA


BRAMPTON -- A 33-year-old mother of three who deliberately starved her autistic sister to death was sentenced to nine years in prison yesterday.

Allison Cox dabbed her eyes and nose with a tissue as Superior Court Justice Joseph Fragomeni went over the facts of Tiffany Pinckney's "tragic, horrific and senseless death."

In February, Fragomeni found Cox guilty of manslaughter in the 23-year-old's death in 2005.
Pinckney was forced to live in a basement. At the time of her death, she was covered in feces and urine.

84 POUNDS
Her weight had gone from a high of about 200 pounds down to an astounding 84 pounds. She had not seen a doctor in five years.

"In this country of wealth and abundance, how can it be possible for a person to die from a lack of food, water or medical attention?" Fragomeni asked.

'EGREGIOUS BREACH'
He said a stiff sentence was warranted to represent the public's denunciation of such an "egregious breach of trust" that undoubtedly led to Pinckney's "slow and, no doubt, painful descent into death."

"The circumstances of this death are among the worst I have experienced as a trial judge," Fragomeni said.

"The sentence I impose will someday end. However, Allison will have to live with this tragedy for the rest of her life."

Cox's husband, Orlando Kass, pleaded guilty in March 2007 to criminal negligence causing death and received a conditional sentence so that he can care for the couple's children, aged 2, 4 and 7 years.

Imprisonment for contempt rare

Today's Superior Court decision in CIT Financial Ltd. v. Western Waste Recyclers Inc., 2008 CanLII 29104 (ON S.C.) makes it clear that imprisonment for contempt will be rare, if not unknown, for a breach of a civil court order where no public defiance of the court or repeated unrepentant acts of contempt occur.

The Court writes:

[6] The purpose of sentencing in contempt cases is to repair the depreciation of the authority of the court.... According to the Canadian Judicial Council, punishment for contempt in Canada has generally been quite moderate reflecting the courts' usual view that a conviction for contempt and a modest fine is usually sufficient to assert the courts' authority, to protect their dignity and to ensure compliance.... The CJC suggests that imprisonment should be imposed only in cases of serious disobedience, violence or willful interference with the course of justice....

[7] The CJC Contempt Guidelines, published in 2001, adopt the sentencing principles that were set out in Health Care Corp of St. John's.... Chief Justice Green of the Newfoundland Supreme Court listed ten principles that have since been cited by other Canadian courts as well.... Two of these sentencing principles have particular relevance in this case:

* It is the defiance of the court order and not the illegality of any actions which led to the granting of the court order in the first place, which must be the focus of the contempt penalty.

* Imprisonment is normally not an appropriate penalty for a civil contempt where there is no evidence of active public defianceand no repeated unrepentant acts of contempt.

[8] The submission by CIT that this case justifies a long-term custodial sentence is misguided in the extreme. In cases post-dating the CJC Guidelines, where jail terms of six to twelve months were imposed, there was either evidence of public defiance (as for example, in the Cornwall Inquiry...) or there were repeated unrepentant acts of contempt ... In Chiang, for example, the defendants had breached no less than six separate court orders. In breach of these orders, they refused to produce documents, transferred large sums of money to third parties, removed the contents of safety deposit boxes, swore false affidavits and refused to divulge the whereabouts of more than $8 million that they had wrongfully appropriated.

Gas Price Alert

Gas prices will be down sharply tonight at midnight across major markets.

In the GTA gas is down 3.5 cents to 129.7 and diesel will be down 3.8 cents to 136.4. In the Ottawa area, gas will be down 3.5 cents to 129.3 and diesel is down 3.8 cents to 138.3. In the Montreal area we will see the largest drop with gas down 4.2 cents to 142.7 and diesel down 5.3 cents to 151.1.

Waiting until the morning will be worth it today.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Vancouver Police Department wants 'super chronic' criminals to spend more time in jail

VANCOUVER (NEWS1130) - Vancouver Police Chief Jim Chu says B.C.'s criminal justice system isn't doing nearly enough about a 'plague of career criminals who infect our city'. Chu and the VPD are asking judges to protect the public by giving these 'super chronic' criminals significant prison time.



The VPD says it believes property crime in Vancouver is now the worst in the world, and Chu has a stack of statistics to back the claim up. The VPD says these 'super chronic' offenders--many with more than 100 criminal convictions-- primarily steal to feed expensive drug habits.



But Chu notes that around the point of their 30th conviction, sentences start to get shorter, not longer. "We say '30 strikes and you're out', which means that we are asking our judges to protect the public by giving these criminals significant prison time. Every day these chronic offenders are off the street many grateful victims are saved from having their homes broken into and their lives disrupted."



VPD Inspector Rob Rothwell says rehabilitation--or the lack of it--can no longer be the only consideration for judges. "When someone's exhibited an unbroken chain of criminality, they're completely incorrigible, and they're engaging in habitual offending, the primary consideration in sentencing has to become the protection of the public."



Vancouver Police say chronic offenders should be in jail for at least a year to get access to drug and alcohol treatment. Police will begin working more closely with Crown and appeal sentences they disagree with.



The VPD has made their complete report on chronic offenders available to the public on their website.

Manufacturing Delay

There is a constitutional right to a speedy trial.

That right is largely, but not entirely, for the protection of an accused (society too has an interest in speedy justice). That said, as the Court of Appeal made clear today in R. v. Fragoso, 2008 ONCA 483, where a delay, even a very long delay, of trial is caused by the actions of an accused, that delay cannot lead to a stay of proceedings because of a failure to have a speedy trial.

In Frangoso the accused was arrested October 14, 1999, the day of the last of the five robberies. He was not sentenced until almost five years later on July 26, 2004. Clearly, the passage of some fifty-six months raises the issue of delay.

The Court found, however, that the delays were attributable, mainly, to the accused and not stay was appropriate. The language of the Court is interesting::

[17] Counsel’s argument comes down to the claim that regardless of who is responsible for the delay in these proceedings, the delay was so inordinate that it must have infringed the appellant’s rights under s. 11(b). This submission misses an important distinction between delay that is excessive and potentially harmful to the administration of justice, and delay that results in the violation of an individual’s constitutional rights under s. 11(b).

[18] An accused cannot manufacture delay, using a waiver of his s. 11(b) rights as to secure that delay, and then argue that the delay produced a breach of those very same constitutional rights that he waived to secure the delay. On the trial judge’s findings, that is exactly what the appellant is trying to do in this case.

Non-Application Of Section 47 Mortgages Act Protection Where Mortgagee Does Not Take Possession

Under s. 47 of the Mortgages Act a residential tenant gets some protection if their landlord loses the property under a power of sale. The new owner is deemed landlord under the residential lease.

But if the mortgagee does not take possession it seems, according to last week's Superior Court decision in Bank of Montreal v. Smith, 2008 CanLII 28435 (ON S.C.), that the tenant is not protected.

The mortgagee can have the residential lease held void -- which may be seen as curious since such lease would be binding against a new owners buying the property from the mortgagee under a power of sale. (Quaere -- the declaration would "wash" the title and allow a purchaser under a power of sale to obtain vacant possession?)

An unspoken sub text to the case may be that the lease in Smith, while apparently valid, was grossly under market.

The Court writes:

[36] The Bank, in the case at bar, did not obtain title to the residential complex by foreclosure or power of sale. The issue therefore is whether the Bank is a mortgagee in possession. If the Bank is a mortgagee in possession, then the applicant is deemed by s. 47 of the Mortgages Act to be a landlord under the tenancy agreement.

[37] Falconbridge on Mortgages (5th ed., May 2007), at pp. 31-32, states that a mortgagee becomes a mortgagee in possession where the mortgagee:

... deprives the mortgagor of the control and management of the mortgaged property. A mere token taking of possession such as erecting a barricade is not sufficient to place the mortgagee in possession, especially where the mortgagee does not contemplate any advantage from the taking of possession.

[38] Mr. Smith asserts that because the Bank's agent attended at the property and attempted to secure any vacant units, the Bank has become a mortgagee in possession. The fact is, as Mr. Smith agreed in cross-examination, the locks have not been changed. There is no evidence that the Bank has interrupted or interfered with the mortgagor's control and management of the property by preventing the mortgagor from selling the property.

[39] Have the rents been attorned by the mortgagee? As Falconbridge states in the excerpt noted above, the mortgagee may if it is entitled to possession as between itself and the mortgagor take possession by requiring the tenant to pay the rents and profits to the mortgagee or its agent instead of paying them to the mortgagor. In this case, the Bank has not attorned rent. Mr. Smith, in his cross-examination, confirmed that he is not paying rent to the Bank.

[40] The cases relied on by Mr. Smith, namely, Premier Trust Co. v. Heckhausen, 37 R.P.R. (2nd) 165; Unican Development Corp. v. Settlers Savings & Mortgage Corp., [1984] A.W.L.D. 139, are all distinguishable. They are cases where the mortgagee attorned rents or otherwise asserted control over the lands and premises. Sun Life Trust Co. v. R., [1998] G. S.T.C. 63, another case relied on by the respondent, is a case decided by the Tax Court of Canada. Sun Life Trust Co. involved the appellant's entitlement to a tax credit which turned on whether the appellant mortgagee had taken possession of property before November 1990. If the appellant mortgagee was in possession prior to that date, it was not entitled to a tax credit. The headnote accurately and succinctly sets out the ratio of the case as follows:

Appeal dismissed. A mortgagee takes possession by taking such steps as are necessary to deprive the mortgagor of the control of the property. In this case, the mortgagee instructed its lawyers to take control of and manage the property to the exclusion of the mortgagor. That is, the mortgagee had intercepted the owner's right to manage its property by November 1990, which was before the window period during which subsection 183(7) could have provided a credit.

[41] In this case, there is no evidence that the mortgagee has taken out of the mortgagor's hands the control and management of the mortgaged premises. It has neither entered into actual occupation nor obtained the receipt of the rent of the mortgaged premises.

[42] I am satisfied on the evidence before me that the applicant mortgagee is not and has not been in possession. The cases noted and the authorities cited therein provide ample support for this conclusion.

[43] I therefore conclude that the applicant, not being a mortgagee in possession, is not deemed to be the respondent's landlord pursuant to section 47 of the Mortgages Act? The respondent's unregistered 10-year lease is not protected by virtue of s. 47 of the Mortgages Act.

PreTrial Judge Conducting Trial Not Error In Law

There is no doubt that a criminal pretrial judge ought not to conduct the trial of the case pretried (taking a plea and joint submission is a different matter).

That said, the Court of Appeal in R v Gregoire 2008 ONCA 459 has ruled that there is no reversible error arising simply because a pretrial judge has gone ahead and heard trial. Absent either a clear objection from a party or some demonstrable prejudice, a pretrial judge's decision to try the case itself is not an error in law.

Prison for Turkey book 'insult'

"One may recall Chancellor Hitler's comment, on being asked about any long term problems arising from German racial policies: 'who remembers the Armenians?' jcm"

A Turkish publisher has been sentenced to five months in prison for publishing a book by a British author about the mass killing of Armenians in 1915.

Ragip Zarakolu was found guilty of "insulting the institutions of the Turkish republic" under Article 301 of Turkey's penal code.

Mr Zarakolu is to appeal against the verdict

The controversial law was recently reformed under pressure from the EU to ensure freedom of speech in Turkey.

This is the first high-profile verdict to be handed down since then.

Mr Zarakolu's sentence seems to confirm campaigners' fears that changes to the law were merely cosmetic, says the BBC's Sarah Rainsford in Istanbul.

In April it became a crime to insult the Turkish nation, rather than Turkishness. But insulting the Turkish nation can still be punished by up to two years in jail.

Sensitive issue

Mr Zarakolu was brought to trial for publishing a book by British author George Jerjian on the mass killings of Armenians under the Ottoman Empire in 1915.

Turkey denies the killings were genocide and the issue remains highly sensitive.
Passing sentence, the judge told Mr Zarakolu he had insulted the Turkish republic and its founders. His own defence - that he had the right to criticise - was rejected.

Mr Zarakolu's case was not referred to the Turkish ministry of justice, as required under the reforms, and he has said he will appeal against the verdict, our correspondent reports.

His sentence will not be imposed until that appeal process is complete.

Outside the court, Mr Zarakolu said that such rulings had silenced many writers in Turkey but that he would continue to challenge the restrictions.

"I was partly waiting for this result. But it is a struggle for the truth and it will go on. I do not accept myself as convicted. This is a conviction for official history and for denialism," he said.

The justice ministry recently revealed that 1,700 people were tried under Article 301 in 2006 alone.

Source: BBC News; June 17, 2008

Withdrawing a Case from a Jury

Today’s Court of Appeal decision in R. v. Masterson, 2008 ONCA 481 serves as a strong reminder that a case is not to be taken away from a jury except in the clearest of circumstances.

The Court writes:

[5] The issue on the directed verdict motion was whether there was some evidence upon which a properly instructed jury could reasonably convict. For purposes of this case, that issue translated into the following question – was the evidence favouring the Crown capable of establishing, on the criminal standard, that the respondent was the person who killed Godin?

[6] In deciding that issue, the trial judge was to take the case for the Crown at its highest and in doing so, it was incumbent upon him to resolve competing permissible inferences in favour of the Crown. That he did not do. On the contrary, he addressed the evidence on a piecemeal basis, weighed the various inferences individually and ultimately resolved them in favour of the respondent as opposed to the Crown.

Just because he died doesn't mean I don't want him as mayor ...

Romanian villagers have voted to re-elect a dead man as their mayor, to prevent his living rival winning. Neculai Ivascu - who led Voinesti for almost two decades - died from a liver disease on Sunday, too late to cancel the contest. The village's loyal residents still gave him 23 more votes than his rival, Gheorghe Dobrescu of the ruling National Liberal Party. "I know he died, but I don't want change," one villager told Romanian TV. In a controversial decision, the electoral commission declared the runner-up and rival Mr Dobrescu the winner. Neculai Ivascu's party, the opposition Social Democrat Party, has said it will contest the decision. Some villagers have also called for a fresh vote.

*** IMPORTANT CHANGE TO LOCATION OF VESA FUNERAL***

Visitation Thursday, June 19 from 6-9pm
Chapel Ridge Funeral Home
8911 Woodbine Ave
Markham
Map: http://www.chapelridgefh.com/english/about3.htm
905-305-8508

*** IMPORTANT CHANGE TO LOCATION OF FUNERAL***
Funeral
Friday, June 20 @ 2pm
The Bridge
5440 16th Avenue
Markham, Ontario
L3P 3J5

Air Canada to cut 2,000 jobs

Tuesday, June 17 Russ Byth

The high price of oil claims more victims. 2,000 jobs will be cut across the board at Air Canada and some flights are being axed. The airline is struggling to remain a going concern while dealing with the record high cost of fuel.

Every $1 increase in the price of oil per barrel adds an estimated $26 million to Air Canada's annual fuel expense. Fuel is the carrier's single largest expense item, accounting for more than 30% of total operating expense.

Like many of its counterparts around the world, the airline is cutting back on flights, therefore needing fewer people. Air Canada plans to reduce domestic capacity by 2%, U.S. transborder capacity by 13% and international capacity by 7%. It will end Vancouver-Osaka service October 26th. No specific details of job cuts were released.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Noel Coward

Television is for appearing on, not for watching
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Svekla Sentenced

By Dean Bennett, The Canadian Press

EDMONTON - Thomas Svekla treated his murder victim like so much stuff - trussing her up nude, bending her like a pretzel and cramming her in a hockey bag - and for that he must pay, his sentencing judge said Monday.

Justice Sterling Sanderman ordered that while Svekla is automatically sentenced to life in jail for the second-degree murder of Theresa Innes, he can't ask for parole for at least 17 years.

"We don't treat the dead with the utter contempt and utter disregard that you exhibited to Miss Innes," Sanderman told Svekla, who sat intent but impassive in the prisoner's dock.

He also excoriated Svekla for repaying the hard work of his lawyer, Robert Shaigec, with "treachery" by making inappropriate comments behind his back questioning his ability to defend him.

"You should be ashamed of yourself," said Sanderman. Svekla remained impassive, boxed between a pair of armed guards in Court of Queen's Bench.

Svekla was convicted June 3 of killing Innes, 36, whom he befriended and with whom he did crack cocaine. He was also convicted of committing an indignity to her dead body, for which Sanderman sentenced him Monday to a concurrent term of four years.

At the same trial he was acquitted of murder in the death of another woman, 19-year-old Rachel Quinney.

Outside court, Innes's mother, Beverley, brushed past reporters. When asked if she was satisfied with the verdict, she replied tearfully, "Very much so. He won't hurt anybody again."

Svekla's case gained national headlines because it was set against the backdrop of a manhunt for a killer or killers responsible for a number of deaths of women working as prostitutes in and around the Alberta capital.

The 40-year-old mechanic was the first person charged by a joint police task force called Project Kare. Prior to trial, police told Svekla he was a suspect in other deaths, but he has never been charged.

Second-degree murder denies any request for parole for at least 10 years. But the judge can prolong that date up to a maximum of 25 years if the aggravating circumstances of the case demand it.

Earlier Monday, Crown Prosecutor Ashley Finlayson asked for the maximum 25, characterizing Svekla as a selfish, violent, self-loathing time bomb who hurts people for kicks and needs to be kept behind bars for as long as possible.

"Mr. Svekla is a very dangerous individual," said Finlayson. "It has become a recurring theme when you look at Mr. Svekla's history. He was putting others at risk in order to meet his own needs."

Svekla, he noted, has a criminal history dating back 25 years - drunk driving, possession of stolen property, uttering threats, sex assault. Each time Svekla was let go, Finlayson noted, he ignored probation rules and got back into trouble. He was addicted to crack and told friends he took drugs to ease the emotional pain of a violent past.

Shaigec said his client's behaviour warranted a parole eligibility date of 15 years, but no more. The maximum, he said, has been imposed in only the most extreme and horrific cases of abusing a body after death - as when someone has cut up a body or had sex with it.

"Mr. Svekla tends to pale in comparison (to those cases)."

Shaigec said while Svekla's criminal history is lengthy, most of the convictions didn't even result in jail time. He told Sanderman one can't assume Svekla kept the body for perverse pleasure - as Finlayson has suggested - or for any other reason, because none of that was established at trial.

Sanderman agreed: "I can't find the body was kept for some evil or sinister gratification."

Svekla was arrested in the spring of 2006 after he returned from High Level in northern Alberta to visit family in Fort Saskatchewan on Edmonton's northern outskirts.

He brought with him a heavy hockey bag he said was stuffed with compost worms. His sister became suspicious, opened the bag when he was not around and found Innes's nude body so tightly bound with wire clips, garbage bags, a shower curtain and an air mattress that it took the coroner well over an hour just to untie it.

Michael Innes, the victim's adult son, stood to read aloud a victim impact statement. He spoke of a mother who was trying to turn her life around but kept in touch, and never forgot a birthday or Christmas.

"She was not there to see me graduate. She will not be there to see me get married or see her first grandchild being born," said Innes, sobbing.

Innes's mother, in a statement read aloud by Sanderman, told Svekla: "There's a hole in our hearts that has never been filled. Mr. Svekla, you took a part of our family away, but you didn't destroy us."

Svekla appeared emotionless as the statements were delivered. When Sanderman asked if he wished to make a statement he replied softly, "I wish to say nothing at this time."

Svekla never testified at trial, but court heard through police interview transcripts that he believed someone else planted Innes's body in his truck to frame him. He said he didn't report the body because he thought police wouldn't believe him after the Quinney affair.

Two years before he was arrested for the Innes murder, he went to police to report he had stumbled across Quinney's naked, disfigured body in a field northeast of Edmonton. He was investigated and cleared at the time, but was charged with Quinney's death after he was arrested for the Innes murder.

Sanderman ruled there was no hard evidence to convict Svekla of Quinney's death. And he said statements by witnesses reporting incriminating statements and behaviour by Svekla relating to Quinney didn't ring true and appeared motivated by a zeal to convict.

Appeal judges extend sentence for kidnapper

ST. JOHNS (CBC) - An eastern Newfoundland man who kidnapped his former girlfriend and threatened with her a hatchet will spend more time in prison.le body

Clyde Newhook was sentenced in August 2007 to 23 months in jail, beyond the seven months he spent in a cell waiting for his sentence.

The Newfoundland Supreme Court of Appeal, though, has now extended that sentence to five years, on grounds that it better suits the severity of Newhook's actions.

Newhook, 42, pleaded guilty to a long list of offences, including kidnapping and assault with a weapon. Court was told how Newhook, a resident of the Trinity Bay community of Norman's Cove, attacked Lorraine White in December 2006, and then kidnapped her the following month.

White, who had repeatedly tried to break off their relationship, was able to escape from Newhook

Flocke's Daily Picture

The bear is still getting her nose into things ... .

Computer Hard Drives Not Producible In Specie

Last week’s Alberta Court of Appeal decision in Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 deals with the important issue of whether, as part of civil documentary disclosure, entire computer hard drives are producible in specie. Some have argued that the hard drives are “documents” in the same way as, say, a notebook is a document and so ought to be produced, at least for inspection.

The Alberta Court rejects this position noting that only certain parts of the hard drive have relevance and are producible. The party producing makes production of those relevant materials only and the hard drive itself is not producible.

The decision, while based on Alberta Rules, is relevant for its reasoning in Ontario.

Part of the Court’s decision follows:

Issue One - Did the chambers judge err in ordering production of the imaged hard drives in specie?

1. Were the imaged hard drives producible as records under Rule 186?

[28] “Record” is defined in Rule 186, which reads:

186 In this Part, “record” includes the physical representation or record of any information, data or other thing that is or is capable of being represented or reproduced visually or by sound, or both.

[29] The CHR argues that a computer hard drive is a single record containing relevant and material information and, therefore, it is automatically producible under Rule 186. Innovative disagrees and says that a computer hard drive is not a single record as that term is described in Rule 186 and is not producible in specie. Rather, says Innovative, a computer hard drive is merely an electronic filing cabinet containing many records, only some of which are relevant and material. It is Innovative’s responsibility to determine what is relevant and material and the CHR is only entitled to relevant and material information stored on the imaged hard drives, and not the imaged hard drives.

[30] To assess the merit of these arguments, it is necessary to consider the scheme of pre-trial discovery provided for in the Rules. Rule 187 requires parties to a lawsuit to prepare and serve an affidavit of records on all opposing parties. Rule 187.1(2) requires that the affidavit disclose all “relevant and material records” that are, or have been, in the deponent’s possession, custody or power. The party that prepares the affidavit must then allow the other side to inspect the relevant and material records still in its possession, provided there is no legitimate ground, such as privilege, to object to their production. It is also obliged to produce the records later at discovery.

[31] The Rules used to require the production of documents, rather than records, but this was changed in 1999 by amendments designed to dispense with the “implied formality” found in the word “document”, and to broaden the scope of discovery by making clear that information stored on a variety of modern media must be disclosed.^[4] In his annotations to the Rules, Mr. Justice Côté notes that use of the word “records” embraces most forms of information storage outside of the human mind. Thus, he advises, information stored on media such as computer discs and videotape are subject to production.

[32] Are computer hard drives, such as the imaged hard drives in this case, records which fall under Rule 186? The rule makes clear that the concept of “records” includes the “physical representation or a record of information, data or other thing”. Thus, it is arguable that where information is physically encoded on a disc or tape, the storage medium itself is a producible record.^[5] It must be remembered, however, that what is ultimately producible in the end is only the relevant and material information found on such a storage medium. A record of this sort, therefore, can only be subject to production, in specie, if everything on it is relevant and material to the lawsuit and its production is not barred by privilege or some other legal impediment.

[33] A computer hard drive is a computer disc, with a large storage capacity, upon which information is stored. It is, however, a mixed storage facility that contains such things as program files, metadata, and enabling software that allows the computer to run and to interpret the encoded data. By its very nature, therefore, a computer hard drive will inevitably contain a good deal of stored data that is neither relevant nor material to the lawsuit. Moreover, due to the ubiquitous nature of computers in modern society, the hard drive will often have a great deal of information or data stored upon it that is not only irrelevant and immaterial to the lawsuit, but information that is private or confidential and ought not to be produced. It follows that it will be an exceptional case when a computer hard drive is producible in specie.

[34] Mr. Justice Slade came to a similar conclusion in Roeske v. Grady, 2006 BCSC 1975 (CanLII), 2006 BCSC 1975, when he denied an application to compel the production of an entire hard drive. He found it was only the relevant information found upon the hard drive that was producible. In coming to this conclusion, he applied the following quotation from the master in Northwest Mettech Corp. v. Metcon Services Ltd. [1996] B.C.J. No. 1915, at para. 18:

In my view the plaintiff is not entitled to production of the hard drive itself. They are entitled to production of only the relevant electronic data which is resident on that hard drive. As I understand it, a computer hard drive is simply a medium on which data is stored on a semi-permanent basis in the form of electronic impulses. It may be thought of as an electronic filing cabinet which contains electronic files, each of which in turn contains electronic documents. The defendants are obliged to list all relevant documents of whatever form (including electronic documents resident on computer hard drives). In my view they are not required to list the entire contents of nor are they required to produce their entire electronic filing cabinet any more than a party is not required to list or to produce the complete contents of its steel filing cabinets which house documents which are in paper format. In my view the plaintiff has not shown any proper basis to require production of the actual hard drive. The plaintiff is entitled to know with certainty, however, that all relevant electronic data which is resident on the hard drive has been disclosed. ...

[35] This view accords with the traditional position articulated by this court with respect to the production of documents. In Lazin v. Ciba-Geigy, [1976] 3 W.W.R. 460 (Alta.S.C.(A.D.)), 66 D.L.R. (3d) 380, the court was asked to decide whether to uphold an order that the plaintiff produce her diary for discovery. The defendant argued the diary was a document and that it was entitled to review it in its entirety, even though the defendant acknowledged the diary might contain both relevant and irrelevant information. Mr. Justice McDermid addressed whether the entire diary could be considered a document. He referred to the decision of this court in Royal Bank v. Wallis, [1918] 2 W.W.R. 620, 13 Alta. L.R. 416, (1918) 41 D.L.R. 383, in which the court discussed whether a bank’s book of accounts was a “document” that was subject to discovery. The court noted in that case at 623:

It is apparent therefore that what a party is required to produce is any “document” relative to the issues. And the chief question is this: Is a ledger or other book of account admittedly containing accounts relating to transactions between the bank and many other individuals not connected with the issues in the case properly to be termed a “document” within the meaning of the rule, and the order based thereon?

It seems to me that this is not so. The whole book cannot be called a “document.” Rather it is a series of documents bound together for convenience.” (emphasis added)

[36] Mr. Justice McDermid then went a step further and concluded that even if the diary was a document the defendant was not entitled to see it in its entirety, as a matter of course, because the plaintiff was still only obliged to disclose those parts of the diary that were relevant to the lawsuit. His Lordship held, at 463:

In my opinion reference in the present Rule 188 to “what documents relating to the matters in question” means only the relevant portions of what might physically be called a document. If part only of a page is relevant then that is the document that must be disclosed in the affidavit. As stated in Williston and Rolls, Law of Civil Procedure (1970), vol. 2, at p. 898:

If only part of a document is relevant, the proper course is either to disclose only the relevant part or to disclose the whole document with a claim to seal up the irrelevant part, or the part which is not material may be covered up during inspection.

[37] As a final matter, the court went on to prescribe the appropriate procedure for separating the relevant from the irrelevant material when both kinds of material are found in the source. Mr. Justice McDermid stated, at 463-64:

When there is a contest as to relevancy a Judge must inspect the document and decide whether the disputed part is relevant or not.

The proper procedure is for the appellant to make a proper affidavit as to “what documents relating to the matters in question are in the possession or power of the party.” She does so after consultation with her counsel. If counsel is unable to decide he must seek expert advise as to whether a document is relevant. As stated in Williston and Rolls at p. 897: “The duty of determining the relevance of documents rests on the party making production, and he cannot avoid this responsibility ...”.

If the opposing party is not satisfied such party may be permitted by the Court to cross-examine upon the affidavit: Rule 194(3).

The opposing party may apply to the Court for a further and better affidavit if such party considers a relevant document has been omitted. In such an application the opposing party must satisfy the Court as to the relevancy of the contested document.

[38] I see no reason to depart from these general principles here merely because the Rules now speak of records rather than documents. The court’s reasoning is still applicable. A computer hard drive, being a mixed storage facility, like a diary, is not producible in specie. It is the duty of the party preparing the affidavit of records, however, to disclose all relevant and material information found on it. When a dispute arises as to relevance and materiality, the matter should be settled by the court. Where matters are particularly complicated, the court may want to appoint its own expert to examine the hard drive to assist it in determining what must be produced.

[39] Having said this, I acknowledge there may be cases where it is appropriate for a judge to order production of an entire hard drive for inspection by an expert, where it is apparent that one of the parties is deliberately trying to thwart the discovery process by not disclosing relevant and material information. There must be strong evidence of this, however, that goes beyond mere speculation. As the court noted in Nicolardi v. Daley, [2002] O.J. No. 595, when it considered this question:

It is not sufficient for a client to say in the course of a lawsuit, “I believe there are more documents,” or “it appears to me that documents are being hidden.” That would be no more than a fishing expedition. There must be specific evidence of non-disclosure (para. 33)

[40] A good example of the application of such logic is the decision of Madam Justice Veit in Spar. In that case, the defendants, who had previously worked for Spar, were accused of stealing information that enabled them to secure a maintenance contract from the Department of National Defence on behalf of their new employer. Spar seized the defendants’ hard drives, under an Anton Pillar order, and made duplicate drives. A chambers judge then ordered the defendants to make proper disclosure of the relevant and material records on the hard drive, failing which the plaintiff would be entitled to review the entire hard drive. Madam Justice Veit, when granting access to the hard drives, noted that the defendants had deliberately failed to disclose e-mails that had passed between them at the times relevant to the lawsuit, despite the chambers judge’s order. In addition, she noted that this was a multi-million dollar claim, the parties were extremely IT competent, the producing parties were former employees who had started to compete with Spar, and the facts had already justified an Anton Pillar order.^[6] On this basis, she granted access to the duplicate hard drives.

[41] While I agree with Madam Justice Veit’s decision, I would add a caveat. Even in circumstances where it is clear that a litigant is thwarting the litigation process, and the court deems it appropriate to order production of a hard drive, measures should be taken to protect disclosure of irrelevant and immaterial information which the producing party objects to produce. Although litigation confidentiality exists, many times that will not be sufficient to protect personal, confidential and private material. A judge should always hear representations as to how information that is neither material nor relevant can be protected from exposure, and frame any production order in the least intrusive manner.

[42] In this case, the CHR acknowledged, and the case management judge accepted, that the imaged hard drives contained material that was neither relevant nor material to the lawsuit. Indeed, the case management judge recognized this when he held, at para. 3 of his order, that: “The Defendant shall not print or make notes of any records on the computer imaged material that are not relevant and material to the within Action”. In addition, there was no evidence that Innovative was deliberately trying to hide relevant and material records that existed on either its office computer hard drives or the imaged hard drives in the box. In fact, what evidence that did exist indicated that Innovative had co-operated fully from the start by agreeing to have its office hard drives copied and put into court, along with the disputed hybrid files. Here the only issues of consequence between the parties, at the time of the chambers hearing, were whether the hybrid files had to be produced, a live issue given this court’s decision in Innovative One, and how the irrelevant and immaterial information could be weeded out.

[43] I conclude, therefore, that there was no basis upon which the case management judge could order production of the imaged hard drives. By allowing the CHR, as the party entitled to production, to determine what was relevant and material, the chambers judge turned the whole process of production on its head. It is for the producing party to decide what is relevant and material, and there was no basis to allow the CHR to look at all the stored information in its search for what was relevant and material.

Hear thunder? Get inside building or metal-topped car without delay: experts

June 16, 2008

Sheryl Ubelacker, Health Reporter, THE CANADIAN PRESS

Christina Wards could hear the thunder and knew a fast-moving storm was closing in, so she hustled her daughter Richelle and other teens practising baseball off the field towards their vehicles.

But as she and Richelle prepared to climb in their van, a bolt of lightning struck a nearby metal fence enclosing the sports field in their hometown of Dawson Creek, B.C. The flash travelled across the ground and engulfed the pair in a massive electrical jolt.

The force lifted Richelle off her feet and blew her across the van's interior, slamming her into the driver's side from the passenger door.

"She was screaming 'My feet, my feet,"' recalls Wards of that day last July. "My own arm was buzzing."

Richelle, now 16, had tingling, numbness and severe sensitivity in her feet and legs for a few days, but suffered no lingering effects.

As lightning strike survivors go, she was one of the lucky ones.

Each year, about 10 Canadians are killed after a close encounter with this dangerous weather phenomenon and an estimated 70 to 160 are injured, often severely.

A 29-year-old man was killed on the weekend after being struck by lightning while building a deck at his parents' Saskatchewan home. His mother was also hit and suffered serious burns.

For the roughly 10 per cent of those who don't survive a lightning strike, many die immediately from cardiac arrest - their heart stops beating from the shock of electricity surging through the body - or from devastating brain injury that can lead to death within days.

Those who do survive can sustain a range of injuries, from minor burns and broken ear drums to severe neurological trauma, says Dr. Mary Ann Cooper, a professor of emergency medicine at the University of Illinois in Chicago and a world-renowned expert on the medical effects of being zapped by lightning.

While most people survive the strike, they frequently have permanent health effects, including chronic pain, thought-processing difficulties and personality changes," Cooper writes in a section on the medical aspects of lightning posted on the U.S. National Weather Service's website. (Cooper was not available for an interview.)

"Patients have difficulty in all areas that require them to analyze more items of information than they can handle simultaneously," writes Cooper, noting that survivors may seem mentally slow, easily distracted and forgetful.

She says those walloped by lightning may initially experience intense headaches, ringing in the ears, dizziness, nausea and vomiting. Over time, they may become irritable and quick to anger because of damage to the brain's frontal lobe. Fatigue and depression are common among those who suffer physical disabilities as a result of a damaged nervous system.

And it's no wonder lightning injuries can be so devastating.

A bolt from the blue (or the grey, as the case may be) packs an incredible punch, with a median value of about 25,000 amps - hundreds of thousand of times stronger than the current in a typical house, says Ronald Holle, a meteorologist at Vaisala Inc., which operates lightning detection networks for the United States and Canada.

Lightning flashes travel from towering cumulus clouds to Earth at about 220,000 kilometres per hour. To put that into perspective, the world's fastest fighter jet reportedly has a top speed of about 2,100 km/h.

When lightning hits an object on the ground, its temperature can reach a sizzling 28,000 C.

"It's real hot," says Holle, with understatement.

About 25 million lightning bolts hit the United States and about two million strike Canada each year, mostly during the months of June, July and August, says Holle.

"The only thing that keeps people and things from being even worse impacted by lightning ... is that it only lasts a short time," he says. "It's only a few tenths of a second, a flash."

Holle said tall, isolated objects attract lightning. Contrary to popular belief, metal does not attract lightning but it does conduct it.

"The flash is coming down from the clouds and in a very simplified way it looks for the closest thing to hit when it gets close to the ground. And if it's a tree, it hits it, if it's a tower, it hits it, if it's a person, it hits it."

"And you cannot control, as a person you can do nothing, to absolutely control that path when you're outside. That's the underlying issue when it comes to safety."

Injury prevention experts have adopted an adage for the public: "When thunder roars, go indoors."

That means running to the nearest substantial building, like a house or store, or inside a fully enclosed metal-topped vehicle (no convertibles), Holle stresses.

"Those are the safe places. Everything else is not guaranteed, is not certain, and you cannot be sure that anything you do is going to work. It doesn't matter what you're wearing, carrying, holding or how you're standing."

Even huddling in an upright fetal position to make oneself as small a target as possible, as was once proposed for those caught outdoors in a thunder storm, is no guarantee of safety, he says.

But what if someone is on the sixth hole of a golf course and a storm suddenly blows in?

Holle won't even go there.

"We're stopping this 'what if' stuff and we're trying to get the point across that there are two really, really safe places" - a building or a metal-topped vehicle, he repeats.

That's not to say that being inside an automobile lambasted by lightning is a "happy place. It really can be quite bad."

In about half of cases in which vehicles are struck, the occupants emerge unscathed, while in the other half of cases, those inside come out with burns, numbness in their limbs and hearing loss.

The vehicle may not fare so well.

"Cars get a lot of damage," says Holle, who tracks lightning injuries. "Typically, what I found was the antenna was vaporized or destroyed or half-gone, the tires were blown. Good grief, 50,000 degrees (Fahrenheit) would take care of the tires."

Even inside a building, he advises people sheltering from a storm to keep away from plumbing and wiring and not to use corded telephones (cordless are fine).

"So when the house is hit - when, not if - you don't want to be touching the conducting parts," he warns. "Because the most likely thing is it won't hit the house directly, but it will hit a power pole outside and trace through the power lines and then it can leak into the phone lines and the plumbing in various ways."

"They're all made to conduct electricity. They're all water or metal and so you just don't want to be touching those when it hits because there are lots of people that happens to every year."

-

How to avoid getting zapped by lightning? 'When thunder roars, go indoors'

Some facts about lightning and tips to avoid getting struck:

WHAT YOU SHOULD KNOW:

-Lightning is attracted to tall, isolated objects like trees.

-Metal does not attract lightning, but is a prime conductor, as is water.

-Two-thirds of all lightning strikes occur in June, July and August; most occur in the afternoon.

-The average lightning flash packs enough power to light a 100-watt light bulb for more than three months.

-A large proportion of lightning deaths occur in, on or near open water. Many people also die sheltering under trees.

-Nowhere outside is safe from lightning.

WHAT YOU SHOULD DO:

-Heed the warning: "When thunder roars, go indoors!"

-Take shelter in a substantial building or fully enclosed, metal-topped vehicle. Avoid small structures such as beach cabanas or tents.

-When inside your home or other building, avoid using a corded telephone, except for emergencies. Cordless phones are safe.

-Avoid electrical appliances and plumbing. Don't wash dishes or take a bath or shower.

-Practise the 30-30 Rule: When you see lightning, count until you hear thunder. If it's 30 seconds or less, the storm is within 10 kilometres and dangerous. Seek immediate shelter. Wait 30 minutes after the lightning has stopped before going outside.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4

Paul Vesa -- Funeral Details

The Bar lost a good friend this weekend with the passing of Crown Attorney Paul Vesa.

Paul was past president of the Canadian Association of Crown Counsel (1997-1999) and was very active with the Ontario Crown Attorneys’ Association, serving on their executive and ultimately as President.

The visitation and funeral details for Paul are as follows:

Chapel Ridge Funeral Home8911 Woodbine AveMarkham
Visitation Thursday, June 19 from 6-9pm
Funeral Friday, June 20 @ 2pm

Map: http://www.chapelridgefh.com/english/about3.htm

905-305-8508

Sad News -- Death of a Good Crown

Paul Vesa, of the Scarborough Crown's office, died on Saturday, June 14th.

He had been hospitalized and diagnosed with acute leukemia about a week ago. This combined with organ failure led to his death.

Paul will be remembered by many defence counsel as a strong but fair and knowledgeable Crown. He was formerly a defence lawyer and for many years was active in the Canadian Bar Association, promoting work on civil liberties, law reform and education, including advocacy in the People's Republic of China. He was also head of the Crown Attorney's Association.

Details on a funeral or other service are not available at this moment.