Friday, December 10, 2010

This Week At The Ontario Court of Appeal: 12-12-10

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

United States of America v. Michaelov. A Canadian resident indicted in regards to a number of improprieties in the operation of New York car dealerships, including tax evasion, Mr. Michaelov was here appealing his extradition order to the United States on the grounds that the evidence against him was not reliable enough to demand extradition, as per United States v. Ferras, - and specifically that the motor vehicle sale forms, some of which may have been signed by Mr. Michaelov which the district prosecutor alleged demonstrated tax evasion were not disclosed to him and that therefore the extradition hearing was unfair.

The Court disagreed, pointing out that Ferras does not demand that evidence actually be desmonstrated as reliable or that the case be evaluated for its relative strength, but merely that a threshold of potential criminality be surpassed, and further noted that Mr. Michaelov's argument that the lack of disclosure on the forms relied upon his own submission that he had not signed the forms, which did not particularly bolster his argument.

Mr. Michaelov also applied for judicial review of the surrender order made by the Minister of Justice, largely on the same basis that he challenged the extradition order. The Court, applying Lake v. Canada (Minister of Justice), stated that the Minister had made his decision reasonably, given the evidence at hand. Read-the-whole-case rating: 2 unless you really want to know more about extradition appeals.

R. v. Lekovic. Ms. Lekovic claimed that she fell in her apartment while pregnant, then later gave birth to a stillborn child in the apartment and put the body in a bag and abandoned it where it was later discovered. Forensic analysis could not determine whether the child died before, during or after birth. She was charged with concealing the body of a dead child under s.243 of the Criminal Code, but at trial the judge accepted the defense' Constitutional challenge that the wording of "child died before... birth" was too vague to not interfere with Ms. Lekovic's s.7 rights under the Charter, severed "before" from s.243, and found her not guilty as a result. The Crown appealed.

The trial judge's decision, which the respondent endorsed, was that in the absence of expert evidence about fetal viability and medical consensus about the meaning of the term "live birth," that the phrase "child died before... birth" was ambiguous, specifically expressing concern about the lack of definition for "child" in this context. He rejected a "chance of life" standard proposed by the prosecutor and stated that this was a subject best left for legislative bodies to decide rather than the courts. The appellant Crown argued that this was too severe a standard of vagueness, that providing fair notice of a criminally risky activity didn't require absolutely precise language, and that the mens rea component of the crime rendered the judge's concerns moot because it would allow inadvertent breaches of the law to not be criminalized. The Crown also argued that by not applying the chance of life standard from Berriman - where a fetus is considered a child once it might be born alive - the judge erred in suggesting the language was vague.

The Court agreed with the Crown's argument, criticizing the judge's argument for essentially nitpicking the law to make a point, and specifically stating that "[l]anguage is not a scientific instrument, an exact tool." Read-the-whole-case rating: 3.5 for in-depth Constitutional analysis and discussion of how said analysis should be performed.

Chidley-Hill v. Daw. Mr. Chidley-Hill was a lawyer acting as counsel for the Triple 3 family of pizza companies, one of which he was a vice president thereof. When franchisees successfully sued Triple 3 and some of its officers for fraudulent behaviour regarding their franchises, the trial judge found Mr. Chidley-Hill liable along with his clients on the basis that he shared a common financial interest with the defendants and that his actions had placed him in conflict with his duties as a result. The Court of Appeal overturned this decision, but the Toronto Star then published an article about the appeal which in Mr. Chidley-Hill's view was defamatory of him. He sued for defamation damages, but a motion judge granted partial summary judgement on the grounds that some of the paragraphs at issue were a "fair and accurate summary" of the costs endorsement made by the Court of Appeal. The rest of the article remained at issue. Mr. Chidley-Hill then appealed the partial summary judgement, arguing that the motion judge erred in dividing the claim and incorrectly assigned common-law privilege to repeat judicial proceedings to the defendants.

The Court of Appeal agreed with the trial judge in part. They accepted Mr. Chidley's argument that the trial judge should not have divided the contentious article into segments and assigned summary judgement to one but not the other, on the basis that the article was a substantially accurate account of what took place. Thus, the Court of Appeal then dismissed both halves of Mr. Chidley's defamation action, ordering costs to the respondents. Read-the-whole-case file: 2.5.
- Christopher Bird, Toronto
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