LAWPRO’s practicePRO program maintains an impressive online collection of law practice management resources, including precedents, sample retainers, business plan templates, and yes – checklists.
Our most popular checklists include:
These tools help lawyers organize, prioritize and track the steps they have taken and the issues they have covered when dealing with a matter, whether it be a client file or an office management task. They are designed to be saved separately for each use, and filled out and filed for future reference.
If you don’t already use checklists in your practice, your excuse may be that you’ve been practising so long that you know the necessary steps in your work better than you know your home phone number… or that you could do these tasks in your sleep. But that’s exactly why the longer you’re in practice, the more important it may become to use checklists.
When studying how memory works, and specifically, why we forget the things we do, researchers like J.A. Bergström have suggested that when we create multiple similar memories – for example, when we complete the same task over and over for different clients – the overlay of similar memories makes it more difficult for us to retrieve the details of any particular instance from the cache. This effect is called the “interference theory” of forgetting. A lawyer may assert that she always reviews any provisions in an equipment lease relating to early termination penalties with lessee clients; but if asked to recall the details (when? In person? Over the phone? Did the client have any questions?) of this particular conversation with a particular client represented four or five years ago, she may draw a blank. Unless, of course, she can retrieve an annotated checklist from the file.
If you could do something in your sleep, your memories of having done it may fade like a dream… but the client, for whom the transaction may be unique or rare, stands a much better chance of remembering very clearly. In the event of a claim arising from the transaction, the way our memories work puts experienced lawyers at a disadvantage. Use a checklist!
Martine Reicherts, the Justice Commissioner for the EU, has little patience with those who express concern about the ‘right to be forgotten’ as imposed by the EU Court of Justice in May of this year (without actually using the expression itself). Here is her speech and a short but very direct summary at the outset.
As you probably know, the UK House of Lords recently issued a report describing the right as ‘misguided in principle and unworkable in practice’:
Who’s right? Will the EU hurt itself by insisting on putting internet intermediaries, especially those that do not organize content, to the task of evaluating thousands of requests for removal of links? Or will such a task clear the way to a brave new world of single-market efficiencies respectful of individual’s privacy rights?
I don’t believe anyone has yet come up with a potential right to be forgotten hidden so far undiscovered in PIPEDA or its provincial counterparts, as the CJEU found in the 1995 Privacy Directive. Please correct me if I’m wrong….
It’s been about two months now since the American Library Association held its annual meeting, this year in Las Vegas. Unfortunately I had to miss this event, which was disappointing because there was a fantastic looking pre-conference on linked data presented by the Library Linked Data Interest Group. Theodore Gerontakos provides a wonderful summary of what happened and I direct you there to read his overview.
What I wanted to focus in on today is the opening pre-conference presentation delivered by Dan Scott: “Structured Data for Libraries: RDFa and schema.org“. Scott is a self-professed “library geek” and is currently the Systems Librarian at Laurentian University in Sudbury.
Scott provides a nice introduction to RDFa* and the code samples help walk you through everything from simple HTML coding to a number of increasingly complex ways to incorporate RDFa into HTML. It is these code examples that I find to be a particularly valuable part of Scott‘s presentation.
Next he introduces us to the folks at schema.org who set out in 2011 to create “a single vocabulary for all things.” With its commercial roots it remains to be seen if schema.org will become the one vocabulary that rules them all, but it has become a popular resource with search engines like Bing, Google, Yahoo! and Yandex (not surprisingly since they are all contributors to the development of this schema).
Now nicely primed and ready to code Scott serves up some practical “codelabs” providing an opportunity to get our hands (or at least our fingertips) dirty. The exercises start with example web pages and demonstrate how to enhance them using the structured data that Scott has shown us in his presentation.
There is also a more advanced codelab that uses the Python programming language and shows how to capture the structured data found in the “sitemap” of a website. A sitemap is a method of informing search engines about the structure of the pages and the best path the search engine should use to crawl through the site.
This practical introduction to structured data deserves close attention and will help anyone trying to familiarize themselves with linked data concepts. It’s also useful to revisit Scott’s presentation at Code4Lib earlier this year which he writes about in the blog post Tales of a semantic web dropout (or what I meant to say at code4lib 2014).
Thankfully what happens in Vegas doesn’t always have to stay in Vegas!
* RDFa is short for Resource Description Framework in Attributes. For the visually inclined I also recommend this short video about RDFa by Manu Sporny RDFa Basics.
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Thoughful Legal Management
What is on Your Bucket List?
Having just returned from my summer vacation, I came across an article on Lifehack.org that struck a resonate chord deep within me. The article is entitled: The Ultimate Bucket List: 60 Things You Should Do Before You Die. Perhaps it was the all-too tragic death of Robin Williams. Perhaps it was my visit to Ground Zero this summer. Perhaps it was just the sense that life is passing by all too quickly. I do know that I wished I had written this article as I think that Thomas Mondel has done an excellent job and he should be justifiably proud of what he has crafted….
The Economics of Unanimity
It is often thought that judicial unanimity is a valuable commodity. Chief Justices bang heads, twist arms, and break legs in order to get their courts to produce more of it, but they don’t always succeed, and unanimity remains at least somewhat scarce on the U.S. and Canadian Supreme Courts (although more on the former than on the latter, which has been unanimous in judgment in between two thirds and three quarters of its decisions rendered since 2010). The unusually high output of the unanimity production line at the US Supreme Court this year has produced much commentary. But how much do we really know about the economics of unanimity? …
CLBC has recently reduced or discontinued some services and adjusted our staffing levels in response to an 18% funding cut from our primary funder, the Law Foundation of British Columbia. Because the majority of our current budget is devoted to two core areas (staffing costs and information resources), it is not possible to absorb a budget reduction of this size without affecting these two areas. After careful review, we have made the following adjustments…
Michael Geist’s attack on artists over Tariff 8
On May 16, 2014 the Copyright Board released its decision certifying Re: Sound Tariff 8 setting royalty rates for webcasting services in Canada. Re:Sound promptly filed an application for judicial review of the decision, calling it a “significant outlier in the world” that “greatly disadvantages the Canadian music industry in the globalized market place.” Re:Sound’s application was met with a blizzard of support when 70 music organizations released a joint statement publically denouncing the Copyright Board decision. They called it “a serious setback for the music community in Canada” and “for artists and the music companies who invest in their careers”….
En vertu de l’article 272 de la Loi sur la protection du consommateur, si un commerçant manque à une obligation que lui impose la loi, le consommateur peut demander des dommages-intérêts punitifs, dont les critères d’attribution sont prévus à l’article 1621 du Code civil du Québec. Récemment, dans l’arrêt Richard c. Time Inc.,la Cour suprême a rappelé que ces dommages-intérêts visaient notamment à décourager la répétition de comportements indésirables. Le tribunal doit également apprécier le comportement du commerçant avant et après la violation.
*Randomness here is created by Random.org and its list randomizing function.
On June 17, 2014, several environmental groups in New Brunswick circulated for comment a draft environmental bill of rights for children. Called “A Bill of Rights to Protect Children’s Health from Environmental Hazards,” it is the first of its kind in Canada. If passed, the law would confer on every child “the right to protection from environmental hazards,” meaning
a hazard that impairs or damages the environment or changes the environment in a manner that may threaten human health, including physical and mental well-being, and includes a “contaminant” as defined by the Clean Environment Act;
The teeth of the bill would come from section 5:
The Government of New Brunswick has an obligation, within its jurisdiction, to ensure it does not expose a child or allow a child to be exposed to an environmental hazard.
Any child whose right to protection from environmental hazards, as guaranteed by this Act, has been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Thus, the Bill would give children standing to sue the government of New Brunswick (via their parents or guardians) for money, or for other relief, if they suffer harm due to an “environmental hazard.”
Such a Bill would be a major departure from existing Canadian law, though not unusual internationally. Ontario has an Environmental Bill of Rights, 1993 (EBR) which recites that “the people of Ontario have a right to a healthful environment,” but the EBR only confers procedural rights, such as the right to access information and the right to participate in governmental decision-making. No Canadian jurisdiction now recognizes a human right to a healthy environment, or authorizes American-style citizen suits to enforce environmental rights.
The New Brunswick draft was prepared by the New Brunswick Environmental Children’s Health Collaborative, one of many children’s environmental health groups across the country. The legal backgrounder on the draft bill outlines its rationale. As is now well known, environmental contaminants can affect children more easily, but existing regulations are not always well designed to protect the special vulnerabilities of children. Sources such as the Canadian Medical Association and the United States Environmental Protection Agency frequently report that pollutants cost the health care system and society billions of dollars each year.
It is not likely that any Canadian government will quickly adopt a law of this kind, because of fears that such open-ended “rights” could cause economic and regulatory havoc, with an avalanche of litigation. Supporters of the concept say such fears are overblown.
As Saxe Law Office has previously reported, over 90% of United Nations member countries recognize the right to a healthy environment through their constitution or other laws. Specifically, 177 out of 193 U.N. member nations recognize a substantive right to a clean environment. Aside from Canada, the holdouts include the United States, Japan, Australia, New Zealand, China, Oman, Afghanistan, Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia. Of course, having such a law is by no means the same as having a healthy environment…
In 2012, Professor David Boyd, one of Canada’s leading academics on environmental law and policy, reviewed the constitutions and case law of the 193 U.N. member countries on this very issue. His conclusion was that “the incorporation of the right to a healthy environment in a country’s constitution leads directly to two important legal outcomes—stronger environmental laws and court decisions defending the right from violations.” Are these laws leading to a cleaner environment? Boyd posits that, “The evidence in this regard is strikingly positive. Nations with environmental provisions in their constitutions have smaller ecological footprints…are more likely to ratify international environmental agreements, and made faster progress in reducing emissions of sulfur dioxide, nitrogen oxides, and greenhouse gases than nations without such provisions.”
What about lawsuits overburdening regulators? Boyd argues that only the most egregious cases have led to awards against governments, and the amounts have been modest. He cites examples from Russia, Romania, Chile and Turkey.
The European Court of Human Rights (ECHR) provides two interesting examples. In both cases, the plaintiffs suffered serious distress, but could not prove that their health problems were due to pollution from a particular industry. In Tatar and Tatar v. Romania (2009), a company used sodium cyanide to exploit a gold mine near the applicant’s home, much as the Giant Mine did in Yellowknife. An environmental accident occurred, releasing cyanide-contaminated tailings. The European Convention on Human Rights (ECHR) recognizes (in its Article 8) a “right to respect for private and family life.” The ECHR observed that pollution could interfere with a person’s private and family life by harming his or her well-being, and that a state had a duty to ensure the protection of its citizens by regulating the corporations that emit it. The ECHR held that the applicant had failed to prove a link between his asthma and his exposure to sodium cyanide, but it did find that the Romanian authorities had “failed in their duty to assess, to a satisfactory degree, the risks that the company’s activity might entail, and to take suitable measures in order to protect the rights of those concerned”. The Court awarded the applicant 6,266 euros (EUR) for costs and expenses and dismissed his claim for damages.
In Fadeyeva v. Russia (2005), a Russian national sued her government because she alleged that the operation of a steel plant in close proximity to her home endangered her health. She relied on Article 8 of the ECHR. The Court found that the concentration of various toxic chemicals exceeded permissible levels near her home. The Court noted the possibility that the applicant had suffered harm from the chemicals: “Even assuming the pollution did not cause any quantifiable harm to her health, it inevitably made the applicant more vulnerable to various illnesses. Moreover, there can be no doubt that it adversely affected her quality of life at home.” The Court found fault with the Russian government because it failed to regulate the plant. The plant was alleged to be responsible for 95% of the overall air pollution in the region. The Court noted, however, that the applicant did not incur any expenses as a result of the violation of her rights, and was never deprived of title to her property. Her possible relocation by the government was only “one of many possible solutions.” In its final judgment, the Court ordered Russia to pay 6,000 euros (EUR) for her mental distress, as well as her costs and legal fees.
As these cases illustrate, it is exceptionally difficult to prove legal causation of a specific illness by a specific polluter. This is just as true in Canada as it is in Europe, and may be the major reason that there has been so little litigation on environmental rights in the countries that have them.
There is also a philosophical issue: would the courts do a better job of protecting the environment than elected governments do? More on this next month…
The event’s Website is at: http://legalsf.startupweekend.org/
The Twitter hashtag for the event was #legaltechSW
The Twitter account for the event was @LegalTech_SW
Here is a list of the projects presented at the event:
Here is a description of the event, from the event’s Website:
The intersection of law and technology presents unique challenges and exciting opportunities for growth and creativity. Recent years have seen a surge of answers to law’s need for innovation, such as e-discovery tools, contract generation apps, virtual firms, and websites changing the way we research. Myriad possibilities remain to integrate tech into solutions for attorneys, clients, businesses, and the government. SF LegalTech Startup Weekend will bring together legal professionals, policy geeks, programmers, and designers to disrupt the legal services market and bring it into the 21st Century – one solution at a time.’
The challenges will address:
(1) Access to justice for consumers
(2) Development and implementation of legal tech tools
(3) Open-sourcing the law
(4) Legal Education
SF LegalTech SW will:
(1) Leverage the knowledge of legal professionals and students to explore new directions for legal tech products, services, and resources.
(2) Foster positive relationships among Bay Area law schools and the local tech and legal communities.
(3) Provide the opportunity for people across industries to brainstorm, collaborate, design, and develop innovative products and services to address challenges facing the legal system. [...]
The event’s judges were:
The event’s organizers were:
For more resources related to this event, please see the comments to this post.
John J. Camilleri, Gabriele Paganelli, and Gerardo Schneider have published A CNL for Contract-Oriented Diagrams, in CNL 2014: 4th International Workshop on Controlled Natural Language, Galway, Ireland, August 20-22, 2014 (Springer, 2014).
Here is the abstract:
We present a first step towards a framework for defining and manipulating normative documents or contracts described as Contract-Oriented (C-O) Diagrams. These diagrams provide a visual representation for such texts, giving the possibility to express a signatory’s obligations, permissions and prohibitions, with or without timing constraints, as well as the penalties resulting from the non-fulfilment of a contract. This work presents a CNL for verbalising C-O Diagrams, a web-based tool allowing editing in this CNL, and another for visualising and manipulating the diagrams interactively. We then show how these proof-of-concept tools can be used by applying them to a small example.
Slaw Columnist Simon Chester recently tipped us off about another fascinating interview with Edward Snowden. Building on earlier interviews with the enigmatic NSA and CIA rogue, the Guardian’s editor-in-chief, Alan Rusbridger, and its intelligence correspondent, Ewen MacAskill, talked to Snowden a little over a year since his defection. The earnest 29 year-old is now an earnest 30 year-old, only seemingly much older and seemingly aging at an accelerated rate. A partway time-lapse to Noam Chomsky.
I’d watch the interview if for no other reason than to hear Snowden’s caution about the challenges facing the legal profession in this era that now carries his name. The woe-betide message for lawyers, and indeed for any profession tasked with protecting the privacy interests of their clients in this post-Snowden age, is on one hand simple: “unencrypted communications over the internet can no longer be trusted.”
On the other hand, deciding how to act in response to such a warning is difficult. Which encryption providers can we trust? What types of encryption are acceptable? What are the odds that any lawyer with less than a technical mastery of crypto systems might come up with a workable solution?
As the spooks have now been caught exploiting law firms, these are question we might ask our regulators.
A couple years ago a similar question came up on Slaw. It was around the time that cloud computing reports began exhorting practitioners to grab their bootstraps, roll up their sleeves, and start their due diligence.
Posts from Jack Newton on March 12, 2012 and March 19, 2012 questioned whether tasking individual lawyers and law firms to undertake a sophisticated audit would be truly effective or merely encourage cursory and inadequate efforts to comply. I suggested it could be worth it for law societies to perform due diligence for lawyers, and oversee a certification of cloud providers themselves. We had not heard the revelations about PRISM and the Five Eyes, and generally we lacked the basis for mistrust that we have now. And by basis for mistrust I mean to include mistrust of our own members’ individual abilities to determine what’s going on out there.
My thinking was—and still is—that a properly administered certification is not so much an indulgence for lawyers but a service to the public in recognition of the generally low technical literacy among lawyers.
We offer accreditation in the context of CPD providers. We don’t simply hand out the criteria and trust practitioners to accredit presentations and courses themselves. So why when risks to certain clients are even more pronounced, would accreditation of technology providers who host and transmit client data via digital means not be of equal, or perhaps even greater concern?
Endpoint vulnerabilities, VPNs, encryption… these are things few lawyers understand intimately. As this is widely known as an area of weakness, does it not make sense for regulators to be more proactive in the public interest?
Edward Snowden, if you accept his professed motives, is overwhelmingly driven out of concern for the public interest. It would surely be the altar of his martyrdom if they caught him tomorrow, and it certainly comes across in the way he talks. In reference to lawyers’ duty to use encryption, Snowden states:
“[W]e need new professional training and new professional standards to make sure that we have mechanisms to ensure that the average member of our society can have a reasonable measure of faith in the skills of all the members of these professions.”
He discusses technical literacy too. I do not think we can assume that those without the technical literacy will be able to meet the professional standards that Snowden is referring to. We are talking about a domain that morphs continuously, about companies and government agencies whose technologies impact the legal sector, but a domain the legal profession has done little to shape to suit its own needs.
If we present a unified front, by starting a regulator-driven cloud and encryption accreditation program, we might look to accomplish two things. Not only might we help lawyers answer the short term questions (e.g. how does this SaaS provider actually rank against my law society’s checklist? or, what can I do to send an encrypted email?), but we might eventually drive service providers, or maybe develop some services of our own, to make technology work better for own needs, especially solicitor-client privilege and compliance with regulations about record keeping.
Snowden talks about being proactive with technology. When asked whether technology and privacy are compatible, he says:
“Absolutely. Technology can actually increase privacy but not if we sleepwalk into new applications of it without considering the implications of these new technologies.”
Snowden has pointed out that properly implemented strong crypto systems are one of the few things that you can rely on. It is safe to say, however, that few lawyers could reliably tell you exactly what that means or looks like.
What do you think? Is now the right time for Canada’s legal regulators to convene and inform lawyers about ways they can harness technology in the post-Snowden era? Would a rating of some kind (like this one) be a benefit?
A couple years ago there was some concern that institutional inertia might mean, barring vociferous demonstrations by the Bar, there is little appetite for accreditation. No law society would want to stick its neck out on such an issue if it didn’t have to.
I guess my question is whether that is still the case, or have the words and warnings of America’s most controversial intelligence figure caught our attention? Are lawyers ready to be told the right versus the wrong way to keep client files safe from the Five Eyes?
I’ll leave you with this clip of Snowden speaking for a homegrown organization, BC Civil Liberties Association, when he presented his congratulations to the recent winners of the BCCLA awards for excellence in journalism.
We often speak of litigation coaching for clients as a form of unbundled services, as one of the new frontiers for providing cost-effective legal services. But I’ve also identified the challenges that young lawyers have in developing the practical skills in litigation, especially given the strong emphasis in the system to resolve issues outside of the courtroom.
At the Canadian Bar Association (CBA) Canadian Legal Conference in St. John’s, Newfoundland this weekend, I had the opportunity to speak in greater depth with some vendors and discovered a product of interest.
Taran Virtual Associations, a domestic legal outsourcing company who provides precedents, templates, and research services, also has a lawyer coaching service.
The litigation coaching is provided to lawyers by a retired judge of the Ontario Superior Court of Justice,
A highly respected former Justice of the Ontario Superior Court of Justice has joined TVA’s Legal Outsourcing Network. He is ready to review your submissions, hear your argument, and opine on the law and your chance of success before you make your appearance in court. His 20 plus years of experience on the bench can be harnessed on demand. (For example, he recently reviewed our client’s factum and provided suggested changes for under $2,000.)
The service has been available for some time, but it’s not one I’ve heard a great deal about from my colleagues. The opportunity to review oral or written submissions in front of an experienced judge is a cost-effective and low risk alternative to learning through trial by fire, and is a better way to protect client interests.
What may prove challenging with this service is justifying this as a disbursement to a client. Most clients expect lawyers to be fully proficient in all aspects of practice, even if a lawyer has been called for a day. In reality we know that skills are continually developed over a lifetime, and we all improve on our legal knowledge and skill sets through continuing education and training.
Judge-reviewed litigation training may be used as a way to mitigate risk of solicitor negligence claims. A judge can point out the flaws of a legal argument, or suggest how it can be improved. If a client refuses to modify the approach regardless, the service can be used to demonstrate that a lawyer has approach the file with competence and thoroughness. A judicial review can also lend credibility to the litigation strategy employed by counsel.
Cost-sensitive clients who look to hire junior or mid-level lawyers should understand there is a corresponding trade-off in litigation experience. A disbursement of a couple thousand dollars to benefit from the experience of the bench in my opinion a reasonable way to address any skills shortcomings and improve or fine tune a litigation approach.
On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, SupremeAdvocacyLett@r, to which you may subscribe.
Aboriginal Law: Harvesting Rights; Taking-Up Power
Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48
Ontario has the authority to take up lands in the Keewatin area so as to limit the harvesting rights set out in Treaty 3. By virtue of ss. 109, 92A, and 92(5) of the Constitution Act, 1867, Ontario alone has the ability to take up treaty land and regulate it in accordance with the treaty and its obligations under s. 35 of the Constitution Act, 1982.
Civil Procedure in Québec: ‘No Reasonable Chance of Success’ Dismissal
Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49
Although the proper administration of justice requires that courts’ resources not be expended on actions bound to fail, the cardinal principle of access to justice requires the power be used sparingly, where it is clear that an action has no reasonable chance of success.
Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53
The historical approach that contractual interpretation of a written contract is always a question of law should be abandoned. Contractual interpretation involves issues of mixed fact and law as principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix. Reasonableness, not correctness, is the appropriate standard for a review of the arbitrator’s decision on contractual interpretation in this case. The arbitrator’s decision (Leon Getz, Q.C.) was reasonable here, the B.C.C.A. being overturned (“with costs throughout”), and the arbitrator’s award reinstated.
Criminal Law: Dangerous v. Long-Term Offender Designations
R. v. Sipos, 2014 SCC 47
The S.C.C. took a somewhat narrower view of the role of fresh evidence in relation to the question of whether the sentencing judge’s legal error was harmless, and held the C.A. was correct to uphold the dangerous offender designation in this case.
Criminal Law: Hospital Right to Counsel
R. v. Taylor, 2014 SCC 50
The duty to inform a detained person of his or her right to counsel arises immediately upon arrest or detention, and the duty to facilitate access to a lawyer, in turn, arises immediately upon the request. The burden is on the Crown to show that a given delay was reasonable in the circumstances and whether a delay in facilitating access to counsel is reasonable is a factual inquiry. “An individual who enters a hospital to receive medical treatment is not in a Charter-free zone.”
Criminal Law: Mr. Big Confessions
R. v. Hart, 2014 SCC 52
The law as it stands today provides insufficient protection to accused persons who confess during Mr. Big operations, which raise three distinct concerns: reliability, prejudice, and the potential for police misconduct. Trial judges must have the tools they need to address these issues.
Criminal Law: Sexual Offences; Disclosure
R. v. Quesnelle, 2014 SCC 46
The “Mills regime” applies to police occurrence reports not directly related to charges against the accused. While the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.
Employment Law in Québec: Indeterminate Terms
Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51
Can an employer who receives a notice of termination from an employee terminate a contract of employment before the notice period expires without in turn having to give notice of termination or pay an indemnity in lieu of such notice – the S.C.C. says no.
Leaves To Appeal
Class Actions: Limitation Periods
Green v. Canadian Imperial Bank of Commerce, 2014 ONCA 90
What is the limitation period for a statutory claim and a class action claim.
Class Actions: Limitation Periods
IMAX Corporation, et al. v. Marvin Neil Silver et al., 2014 ONCA 90
Class Actions: Limitation Periods
Celestica Inc. et al. v. Trustees of the Millwright Regional Council of Ontario Pension Trust Fund et al., 2014 ONCA 90
Constitutional Law: Bilingual Statutes
R. v. Pierre Boutet et al., 2014 ABCA 71
What Alberta statutes, if any, are required to be in French.
Criminal Law: Failing to Provide Breath Sample
R. v. Goleski, 2014 BCCA 80
When can one refuse to provide a breath sample.
Military Law: National Defence Act/Criminal Code ‘nexus’
R. v. Moriarity; R. v. Hannah, 2014 CMAC 1
Is there a ‘nexus’ between the above two statutes.
Military Law: National Defence Act/Criminal Code ‘nexus‘
R. v. Private Alexandra Vezina, 2014 CMAC 3
B010 v. Canada (Citizenship and Immigration), 2013 FCA 87
Can a “people smuggler” be deported.
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered 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.
Pénal : Le juge du procès devait indiquer au jury la distinction à faire entre les effets des troubles mentaux induits par la maladie de l’appelant, un alcoolique chronique, et ceux qui pouvaient découler de son intoxication extrême par l’alcool le jour du drame; la tenue d’un troisième procès sous des accusations de meurtre au second degré et de tentative de meurtre est ordonnée.
Intitulé : Dow c. R., 2014 QCCA 1416
Juridiction : Cour d’appel (C.A.), Québec, 200-10-002549-108
Décision de : Juges Nicole Duval Hesler, Julie Dutil, Jacques J. Levesque
Date : 23 juillet 2014
PÉNAL (DROIT) — infraction — infractions contre la personne — meurtre — meurtre au second degré — tentative de meurtre — automatisme — troubles mentaux — alcoolisme chronique — intoxication extrême — intoxication volontaire — absence d’intention spécifique.
PÉNAL (DROIT) — procédure pénale — procédure fédérale — directives du juge au jury — meurtre au second degré — tentative de meurtre — moyen de défense — troubles mentaux — intoxication extrême — intoxication volontaire — alcoolisme chronique — tenue d’un nouveau procès.
Appel de verdicts de culpabilité. Accueilli; la tenue d’un nouveau procès est ordonnée sous les chefs d’accusation de meurtre au deuxième degré et de tentative de meurtre.
Le 13 mars 2004, en soirée, après qu’il eut bu pendant la journée près d’une vingtaine de bouteilles de bière, l’appelant s’est présenté chez la victime, un dénommé Russell Duguay, avec qui il était en conflit. Il a tiré à bout portant sur la victime et a tenté de poignarder son fils, Byron, qui se trouvait sur les lieux. L’appelant soutient que, ce jour-là, il a souffert de plusieurs pertes de mémoire en raison de sa consommation extrême d’alcool. Ce n’est que le lendemain, lorsqu’il s’est réveillé dans une cellule, qu’on lui a annoncé qu’il était en état d’arrestation, notamment pour le meurtre de Russell Duguay. En défense, l’appelant a prétendu qu’il devait être tenu non criminellement responsable de ses actes, étant donné que l’alcoolisme chronique, dont il souffre depuis plus de 20 ans, en plus de son intoxication extrême le jour du drame avaient provoqué chez lui un état d’automatisme avec troubles mentaux. À titre subsidiaire, il a invoqué l’insuffisance de la preuve quant à la possibilité qu’il ait pu former l’intention spécifique requise. Un jury a reconnu l’appelant coupable de meurtre au deuxième degré, de tentative de meurtre, d’utilisation négligente d’une arme à feu et d’agression armée. L’appelant allègue que ces verdicts sont déraisonnables en ce qu’ils ne sont pas supportés par la preuve et parce que le juge du procès a commis des erreurs dans ses directives au jury. Il réclame la tenue d’un nouveau procès. Selon la poursuite, bien que l’appelant se soit trouvé en période de black-out le soir du 13 mars 2004, cela ne prouve pas qu’il n’avait pas conscience de ses actes à ce moment-là. Elle soutient qu’il n’a pas démontré selon la prépondérance de la preuve qu’il souffrait d’une maladie mentale qui, outre son état d’intoxication, faisait en sorte qu’il se trouvait dans un état d’automatisme.
M. le juge Levesque: Le juge du procès, placé devant deux thèses opposées, a soumis au jury les défenses avancées par l’appelant, soit celles d’automatisme avec troubles mentaux, de troubles mentaux et d’intoxication. À l’égard de l’accusation de meurtre au second degré, il a toutefois exclu la défense d’intoxication extrême après avoir conclu qu’elle n’existait pas en droit. Ce faisant, le juge a invité le jury à rejeter carrément l’opinion de l’expert de l’appelant quant à l’état d’automatisme, ce qui laissait prévaloir l’opinion du témoin expert de la poursuite. Il s’agit là d’une erreur déterminante, compte tenu de l’état du droit sur la question. Par ailleurs, en ce qui concerne l’accusation de tentative de meurtre, les défenses d’automatisme avec troubles mentaux, de troubles mentaux et d’intoxication ont été présentées au jury. Lorsqu’il a abordé le deuxième élément de l’infraction, l’intention de tuer, le juge a alors invité le jury, comme il se doit, à tenir compte de l’état d’esprit de l’appelant au moment des événements. Or, après leur avoir rappelé sommairement les règles applicables à la défense de troubles mentaux, le juge a indiqué aux jurés que l’intoxication de l’appelant pouvait avoir fait en sorte qu’il lui était impossible de former l’intention spécifique de tuer Byron Duguay, ce qui pouvait permettre de l’acquitter sous l’accusation de tentative de meurtre. Ainsi, après avoir déclaré que la défense d’intoxication extrême n’existait pas en droit criminel, il a invité le jury à prendre en considération l’application de ce moyen de défense aux deux infractions à l’étude et de prononcer, le cas échéant, l’acquittement. Le juge devait, dans les circonstances particulières de la présente affaire, souligner au jury la distinction à faire entre les effets des troubles mentaux induits par la maladie de l’appelant et ceux qui pouvaient découler de son intoxication par l’alcool ce jour-là. Si l’analyse du jury s’était faite en fonction de cette distinction, celui-ci aurait pu parvenir à un verdict de non-responsabilité criminelle pour cause de troubles mentaux ou encore à accepter la défense d’automatisme sans troubles mentaux. Il n’est pas impossible non plus qu’il ait pu conclure à un homicide involontaire à l’égard du premier chef et de voies de fait armées à l’égard du second. Cette situation justifie, à elle seule, la tenue d’un nouveau procès.
Instance précédente :
Juge François Huot, C.S., Bonaventure (New Carlisle), 105-01-008096-047 et 105-01-007988-046, 2010-07-14.
Le texte intégral de la décision est disponible ici
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:
Courts / Insurance / Torts / Brokers / Criminal Law / Evidence
Courts – Insurance – Motor Vehicles – Statutes
Summary: The plaintiff, a farmer, was injured while driving an uninsured all-terrain vehicle (ATV) on a public road when he was struck from behind by a truck. The farmer and his family members (the plaintiffs) commenced an action against the driver of the truck, the truck owner and the farmer’s own automobile insurer (the defendants). The plaintiffs brought a pre-trial motion to determine whether their action was statute barred by s. 267.6(1) …Estabrooks v. New Brunswick Real Estate Association 2014 NBCA 48
Courts – Torts
Summary: The Discipline Committee of the New Brunswick Real Estate Association (NBREA) held that Estabrooks had engaged in professional misconduct. The Committee assessed costs against Estabrooks and imposed a fine. Estabrooks appealed. The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported at (2003), 261 N.B.R.(2d) 260; 685 A.P.R. 260, allowed the appeal, holding that the Committee lacked jurisdiction to hear the complaint against Estabrooks. In 2009, Estabrooks sued the NBREA for malicious prosecution. The New …Desjardins Securities Inc. v. Schellenberg 2014 MBQB 115
Brokers – Torts
Summary: Desjardins Securities Inc. (DSI), a discount electronic trading broker, liquidated a number of trading options accounts held by Schellenberg, a sophisticated options trader, for failing to deposit cash or securities as demanded by DSI to satisfy margin calls. DSI claimed the shortfall of $61,203.48. Schellenberg advanced a counterclaim against DSI and three of its employees. His damage claim exceeded $2 million for alleged breaches of duty that “resulted in the decline of the value of his …R. v. Bichsel (N.H.) 2014 BCCA 251
Criminal Law – Evidence
Summary: The accused appealed his convictions on one count of possession of child pornography (Criminal Code, s. 163.1(4)) and one count of making child pornography available (s. 163.1(3)). The charges arose after he downloaded, and consequentially shared with others by way of several file-sharing programs, files containing child pornography. The British Columbia Court of Appeal dismissed the appeal. The accused had raised a multitude of arguments concerning the trial court’s jurisdiction, the trial judge’s treatment of …
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Current and “wannabe” litigators practising (or hoping to practise) in the medical negligence area would do well to read, and consider, what happened, and why, in the just released Briante v. Vancouver Island Health Authority, 2014 BCSC 1511. Regardless of one’s position on the legal validity of the result, the result is a reminder (for those old enough to remember, or otherwise be aware of) of these statements and calls for reform (outside of the tort system) in cases such as Ferguson v Hamilton Civic Hospitals (1983), 40 OR (2d) 577, 1983 CanLII 1724 (ON SC) aff’d (1985) 50 OR (2d) 754, 1985 CanLII 2045 (ONCA).
The first quotation is from the Ferguson trial reasons (last page). The second is the complete text of the appellate reasons affirming the dismissal of the action.
I must add a personal note. In the conclusion to the reasons for judgment of Linden J. in Davidson v. Connaught Laboratories et al. (1980), 14 C.C.L.T. 251, there is to be found, in more or less precatory language, an eloquent expression of concern about the requirement of our law that fault exist as a condition precedent to the receipt of compensation in matters of this kind. I cannot leave this case without following Mr. Justice Linden’s example. I confess to a feeling of discomfort over a state of affairs, in an enlightened and compassionate society, in which a patient, who undergoes a necessary procedure and who cannot afford to bear the entire loss, through no fault of his and reposing full confidence in our system of medical care, suffers catastrophic disability but is not entitled to be compensated because of the absence of fault on the part of those involved in his care. While it may be that there is no remedy for this unfortunate and brave plaintiff and that this shortcoming should not be corrected judicially, there is, in my view, an urgent need for correction.
We can deal with this matter very shortly although that does not mean we have not given very serious consideration to the submissions made. As indicated by the trial judge this is a sad case and the result of the medical treatment has been a very unfortunate and unhappy one for the plaintiff.
At the opening of the appeal we were advised by counsel that the appellant, William Ferguson, has died since the trial and that an order of revivor has been made.
We are not in a position to review in a critical way the findings made by the experienced trial judge based on the evidence in this case. There was ample evidence to support his conclusion, in applying the objective test, that the appellant, as a reasonable patient in his position, would have chosen the medical procedure which had such unfortunate consequences. Nor are we persuaded that the failure to disclose the alternatives to that procedure fall within the meaning of “misrepresentation” as discussed by Chief Justice Laskin in Reibl v. Hughes, 1980 CanLII 23 (SCC),  2 S.C.R. 880, 114 D.L.R. (3d) 1, 14 C.C.L.T. 1. It should be noted that the suggested alternatives were, in reality, alternatives to the possible recommended surgical procedure if the investigative procedure, which had such tragic consequences, had confirmed the provisional clinical diagnosis.
Counsel for the appellant agreed that he could not rely on res ipsa loquitur on the facts of this case and he limited himself to the two submissions to which we have referred.
Accordingly, for the very full and thoughtful reasons given by the learned trial judge the appeal is dismissed. We would not want to leave this case without adding that we are in complete sympathy and agreement with the penultimate paragraph of the learned trial judge’s reasons. OHIP is the product of a socially conscious society, but we agree that in situations such as the instant one “an enlightened and compassionate society”, to use the words of the learned trial judge, should do more.
In the result, accordingly, the appeal is dismissed without costs.
It wasn’t the absence of fault that was the reason why the Briante action failed, but the statements in Ferguson are still applicable. I have written more about Briante, elsewhere, for those interested.