Friday, July 29, 2011

140 Law - Legal Headlines for July 29, 2011

Here are today's leading legal headlines from Wise Law on Twitter:
Have an amazing long weekend!
- Rachel Spence, Law Clerk

Visit our Toronto Law Firm website: www.wiselaw.net

Thursday, July 28, 2011

Anonymous Online Commenting Is Safe For The Time Being

This week's decision in Phyllis Morris' defamation case, where Justice Carole Brown ruled against forcing the identifiction of anonymous commenters on the Aurora Citizen's website, can only be viewed as a victory for civil liberties in this province. (The linked article refers to the commenters as "bloggers," thereby continuing the generalization of the term; the individuals in question were commenting on forums moderated by the site's managers.) Ms. Morris' action is against the Citizen, who she claims published comments that were defamatory towards her as Aurora's former mayor.

However, although Justice Brown rightly notes that
The public interest favouring disclosure [of the bloggers’ names] clearly does not outweigh the legitimate interests in freedom of expression and the right to privacy of the persons sought to be identified...
...what is somewhat troubling is that then she further qualifies her decision by pointing out that in addition to the interest of freedom of expression, Ms. Morris also didn't do all the legwork:
It is not the role of the court to parse the impugned articles and blogs before it to attempt to determine, by divination or divine inspiration, which statements it should assess in determining whether a prima facie case has been established.
While sarcasm aimed at a litigant whose pleadings are incomplete or insufficient is always welcome in this writer's eyes, one cannot help but feel that by including it the justice has in some way qualified her decision on a procedural level - allowing the question to be raised that, had Ms. Morris filed a more complete brief clearly identifying the comments she felt were slanderous, would the judge then have been more receptive to her motion. This offers an additional ground of appeal on the decision and one that allows others to call into question the free speech bonafides of Justice Brown's decision.

(This seems analogous in some ways to the BC case Crookes v. Newton, where a superior court-level decision stating that publishing a hyperlink to defamatory material was not itself publication of defamatory material in that instance, but left the question of whether or not hyperlinking itself could ever constitute republication of defamatory material to the eventual Court of Appeal decision. Which of course said that this is almost never the case.)

After all, if we are to look to existing precedent regarding anonymous online communication and how it is privileged as free expression, the United States can provide us with numerous (non-binding) precedents. Most notable in this instance is Anonymous Online Speakers v. United States Dist. Court for the Dist. of Nevada Reno, a Ninth Circuit Court ruling from 2010 that stated unequivocally that an author's decision to remain anonymous when publishing online was protected by the First Amendment.

Although the First Amendment is not exactly the same thing as section 2(b) of the Charter of Rights and Freedoms, protecting Canadian freedom of expression, there is a great deal of similarity between the two and Anonymous Online Speakers should certainly be given weight in any future decisions of this nature (such as the appeal Ms. Morris has already promised to pursue).

- Christopher Bird, Toronto

140 Law - Legal Headlines for July 28, 2011

Here are today's leading legal headlines from Wise Law on Twitter:
Thank you for clicking through our tweets! Have a great day.
- Rachel Spence, Law Clerk

Visit our Toronto Law Firm website: www.wiselaw.net

Wednesday, July 27, 2011

140 Law - Legal Headlines for July 27, 2011

I hope all of our readers are having a fantastic week so far! Here are the leading legal headlines from Wise Law on Twitter:

Tuesday, July 26, 2011

This Week At The Ontario Court of Appeal: 11-07-22

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

R. v. Roks. An appeal on convictions of second degree murder and conspiracy to commit arson, with Justice Watt as always providing the dramatic openings for which his decisions are known:
Things don’t always work out according to plan. Failures occur at different times and for different reasons. Sometimes, the flaw is in the plan. At other times, the execution is faulty.

The plan in this case involved arson, fraud and use of the proceeds of crime. The scheme was simple enough. Burn down a building after removing anything of value from it. Submit a claim to recover the proceeds of a policy of fire insurance on the building and its contents. And use the proceeds of the insurance claim to pay those involved in the plan and its execution, and to finance a new building on the same site.
Mr. Roks was a participant in the aforementioned scheme, which ended up causing the death of one of its participants. His share of the profit was to be part ownership in a nightclub which would be purchased with the proceeds of the scam, plus the opportunity to buy a unit at cost in a condominimum development that would be built on the property. He appealed his convictions on the grounds that the trial judge erred in her self-instruction, that the trial judge erred in admitting evidence of his other disreputable conduct, and that his second degree murder charge was unreasonable. He also appealed his sentence as being inappropriate for the offence.

On the appeals from conviction, the Court of Appeal reaffirmed the conviction on conspiracy to commit arson. Mr. Roks's complaints about the judge's instruction were in regards to the Vetrovec witnesses (witnesses whose evidence may be suspect); their evidence was insufficiently weighed and the judge's self-instruction did not emphasize their nature enough. Justice Watt pointed out that all of the Vetrovec witnesses agreed and testified that Mr. Roks had participated in the conspiracy, and further that Mr. Roks had not offered any evidence to support his defence that he had known about but not participated in the conspiracy, and then on top of that also pointed out that there was evidence beyond the Vetrovec evidence, including intercepted private communications, indicating Mr. Roks' guilt.

In regards to the evidence, the Court did not agree that the evidence of Mr. Roks was simply evidence demonstrating general bad character (and therefore inadmissible). The evidence of Mr. Roks' other acts was evidence that Mr. Roks had cooperated in fraudulent schemes with the principals in the arson scheme at trial, and was submitted to both shore up the credibility of the Vetrovec witnesses and to rebut Mr. Roks' defence that he only knew about the arson scheme and did not participate. Therefore, it was specific to the case in question and was admissible.

However, in regards to the murder conviction, the Court of Appeal decided to substitute it with a manslaughter conviction instead. Justice Watt explained that Mr. Roks did not start the fire, was not present at the time the fire was set, did not know how the fire would be set, believed that the store would be empty when the fire was set, and believed that someone knowledgeable about fire suppression would be setting the fire. In light of all these facts, that it was reasonable that Mr. Roks would not have in mind the likelihood of a potential death arising from the setting of the fire. Therefore, a murder charge was unreasonable. (Justice Watt specifically criticized the trial judge for relying too heavily on the "common sense proposition" that setting fire to things will naturally lead to death.)

In regards to the sentence conviction, the Court of Appeal reduced Mr. Roks' sentence from ten years to six, to be served concurrently with his sentence for manslaughter (sentence pending). They noted that the other participants in the matter had so far been convicted of six- and seven-year sentences, and felt that the prosecution's evidence that Mr. Roks had perhaps volunteered to perform violent debt collection for one of the other conspirators in the past to be irrelevant to this case: the sentencing principle of parity required that Mr. Roks' sentence be reduced. Read-the-whole-case rating: 3.5. Fairly straightforward, but Justice Watt's decisions are always a clean, enjoyable read.

R. v. Degiorgio. An appeal on a conviction of refusing to provide a breath sample. The appellant fell asleep in her car in front of a driveway with the motor left running; when police approached the vehicle, they noticed that her eyes were glassy and that there was a smell of alcohol. The office demanded a breath sample, but the appellant repeatedly stated that she was "not blowing into anything." After repeated warnings and explanations that the appellant was required to provide a sample under law, the officer arrested her and then released her on an appearance warning. At trial, the officer admitted that he did not have an approved screening device with him, but that he believed another officer who had been dispatched to the scene had one in his car, although he could not confirm this. The trial judge summarily convicted the appellant, noting that she did not have a reasonable excuse for refusing the demand and noting that the officer did not have a screening device. (This fact was not contested by the crown.)

Ms. Degirogio argued that since the officer did not have an approved screening device, she was therefore unable to to comply with the demand as the officer could not administer the test "forthwith," and therefore there was no legal obligation upon her to do so. The trial judge did not agree with this reasoning, and she appealed.

The Court disagreed and dismissed her appeal. After examining the use of the word "forthwith" and explaining that in this context it referred to the time period before the detained person could reasonably consult with counsel, the court then turned to the constituent elements of the offence: reasonable suspicion of impaired driving, the demand for a breath sample, the individual understanding the demand, the individual refusing to comply with the demand, and the individual not having a reasonable excuse for refusing. In this case, the Court pointed out, all of the elements were satisfied. That the officer did not have an ASH handy is of no import as Ms. Degiorgio had not known that this was the case: her conviction hinged upon her refusal to comply with the demand, and the Crown was not required to demonstrate that the screening device was present or would be readily available. Read-the-whole-case rating: 2.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

140 Law - Legal Headlines for July 26, 2011

Here are today's leading legal headlines from Wise Law on Twitter:
Thank you for clicking through our tweets! Have a fantastic day.

- Rachel Spence, Law Clerk

Visit our Toronto Law Firm website: www.wiselaw.net

Monday, July 25, 2011

140 Law - Legal Headlines July 25, 2011

I'm back from vacation and excited to update you with this weekends leading legal headlines from Wise Law on Twitter:
Thank you for taking the time to click through our tweets! Have a wonderful day.

- Rachel Spence, Law Clerk

Visit our Toronto Law Firm website: www.wiselaw.net

Sunday, July 24, 2011

NHL's Winnipeg Air Canadas Unveil Their Logo

How incredibly original. And come to think of it, it's high time that an NHL team had a maple leaf featured in its logo to celebrate our great nation, don't you think:











Trademark lawyers, care to chime in?

For a a glimpse at a few more interesting Jets logo concepts, see PuckDaddy.

- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Friday, July 22, 2011

This Week At The Ontario Court of Appeal, 11-07-15

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

R. v. Stevens. An appeal on five summary convictions of the appellant - four counts of careless storage of a firearm and one count of careless storage of ammunition. Mr. Stevens lived in an apartment from which he was evicted, despite an agreement that he would not be evicted that he made with his landlord. When sheriff's officers arrived to carry out the eviction order, Mr. Stevens was not at home and when the sheriff's officers entered the apartment (which the superintendent opened for them), they found two closed gun cases which they did not open. They contacted police, who did open the cases and found firearms that were not properly stored or locked. When Mr. Stevens arrived at the apartment, he was arrested, and police then obtained a search warrant and found additional firearms and ammunition.

Mr. Stevens was convicted and appealed his summary convictions on the grounds that the search was illegal and a violation of his s.8 rights under the Charter of Rights and Freedoms, an argument he unsuccessfully advanced at trial. The Superior Court judge who heard his summary conviction appeal approached her analysis from the starting point that the search was presumptively unreasonable since it was warrantless, but then decided that the search was reasonable because, although it was warrantless, the officers did not enter his apartment to search but only discovered the gun cases in the incidence of their duties. Mr. Stevens appealed again, and the Crown did not oppose the appeal; both the trial and summary appeal judges considered the factual situation as novel and introducing new issues to the common law, and the Court of Appeal agreed and granted leave to appeal.

Mr. Stevens' argument was that the searches conducted by the officers were searches of his home conducted unlawfully. and that there were no exigent circumstances that justified the police opening the gun cases before obtaining a warrant. They also argued that the gun cases were not in "plain view," and that therefore the evidence of the guns should be excluded.

The Crown argued that the officers entered the apartment pursuant to their statutory duty, and thereafter conducted a lawful search of the apartment to provide the landlord with possession of the apartment free of persons and pets. When the police entered the apartment and opened the gun cases, argued the Crown, the apartment had become the landlord's possession and therefore the police had the landlord's consent to open the gun cases. (The Crown conceded that before the police opened the cases, they did not have grounds to apply for a search warrant and were not engaged in a criminal investigation.) Finally, the Crown argued, in any event the admission of the evidence would not bring the administration of justice into disrepute.

The Court of Appeal, considering the case, first disagreed with the trial judge by stating that Mr. Stevens indeed had a reasonable expectation of privacy within the apartment. He had abided by the terms of his agreement with the landlord and the execution of the eviction was a mistake, according to the landlord. Therefore, even though Mr. Stevens did not take steps to rescind the eviction, he still had a reasonable expectation of privacy in his apartment.
The Court then considered whether Mr. Stevens had a reasonable expectation of privacy in his gun cases. Even if the landlord had had true possession of the apartment, it was not necessary to open the gun cases; the gun cases were Mr. Stevens' property and therefore he had a privacy interest in them. The Court also took pains to distinguish this case from R. v. Wint, where an inventory search of an impounded car did not violate s.8 of the Charter, on the grounds that the privacy interest of a person's items kept within an apartment home, even after an eviction, is stronger than the privacy interest of items within a car. The Court also felt that the plain view doctrine was not of assistance to the police in this case.

The Court then considered the conduct of the sheriff's officers and police. Although the Court agreed that the sheriff's officers did not breach Mr. Stevens' s.8 Charter rights, the same could not be said of the police, who in the Court's view conducted an unlawful search by opening the gun cases when there was no exigent circumstance or threat of breach of the peace. The Court also stated that there was not even a basis for the police to obtain a search warrant simply because there were gun cases present in the apartment, and thus concluded that the conduct of the police therefore breached Mr. Steven's s.8 rights.

Finally, the Court considered whether the evidence should be excluded under s.24(2) and decided that, since the police's behaviour was without lawful authority and that Mr. Stevens has a high degree of expectation of privacy in his home, and finally that although the offence involved guns but not actual gun violence, that therefore the evidence should be excluded. The Court therefore set aside the convictions and entered verdicts of not guilty on all of Mr. Steven's charges. Read-the-whole-case rating: 4 for a novel privacy rights issue intersecting somewhat with landlord/tenant law.

Loat v. Howarth. Mr. Loat was a minority shareholder in Storetech, a UK-based customer analysis and software service for retail businesses. Storetech was founded by Mr. Howarth. In 2006, Mr. Loat and Mr. Howarth entered into negotiations to expand Storetech into the North American market. Mr. Loat became the COO of Storetech Ontario, which was incorporated for this purpose, in 2007. Parts of his agreement of employment stipulated that his employment could not be terminated on less than three months' notice, that the agreement substituted for any prior agreements, and that the parties agreed to settle legal disputes relating to the agreement in Ontario courts on a non-exclusive jurisdictional basis. Prior to the 2007 agreement, the parties had entered into a shareholders' agreement agreeing that legal disputes would be under exclusive English jurisdiction.

In 2009, Storetech Ontario terminated Mr. Loat's employment without notice and allegedly for cause. Mr. Loat promptly commenced action against Mr. Howarth, Storetech Ontario and Storetech UK for wrongful dismissal and various oppression remedy-related reliefs. The defendants counterclaimed against the plaintiff, but did not contest the choice of forum. In 2010, Mr. Loat moved for partial summary judgement on the wrongful dismissal. The defendants brought a cross-motion, seeking leave to amend their pleading to invoke the forum selection clause in the shareholders' agreement and to dismiss or stay the Ontario action on those grounds. The motion judge dismissed Mr. Loat's motion and granted the defendants' stay motion on jurisdictional grounds. Mr. Loat appealed both decisions.

The Court of Appeal agreed with the trial judge in regards to the dismissal of the motion for partial summary judgement, stating that there were too many disputed facts surrounding Mr. Loat's dismissal, particularly his entitlement to unpaid wages, to judge the issue on a summary basis. However, the Court disagreed with the stay order granted by the motion judge. The clause in the service agreement stating that Ontario courts would have non-exclusive jurisdiction allowed Mr. Loat to commence action in Ontario. The Court of Appeal pointed out that Canadian law favours the enforcement of forum selection clauses, and that accordingly all Mr. Loat had to demonstrate was that the forum selection clause in the service agreement was triggered. The Court also noted that the defendants had advanced their own claims in the Ontario action and had delayed for almost one year after the commencement of the action before attempting to amend their pleading to get the jurisdictional stay, and these were relevant factors weighing against granting a stay as the defendants had attorned to an Ontario action. The Court therefore dismissed the staying order. Read-the-whole-case rating: 2.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

This Week At The Ontario Court of Appeal, 11-07-15

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

R. v. Stevens. An appeal on five summary convictions of the appellant - four counts of careless storage of a firearm and one count of careless storage of ammunition. Mr. Stevens lived in an apartment from which he was evicted, despite an agreement that he would not be evicted that he made with his landlord. When sheriff's officers arrived to carry out the eviction order, Mr. Stevens was not at home and when the sheriff's officers entered the apartment (which the superintendent opened for them), they found two closed gun cases which they did not open. They contacted police, who did open the cases and found firearms that were not properly stored or locked. When Mr. Stevens arrived at the apartment, he was arrested, and police then obtained a search warrant and found additional firearms and ammunition.

Mr. Stevens was convicted and appealed his summary convictions on the grounds that the search was illegal and a violation of his s.8 rights under the Charter of Rights and Freedoms, an argument he unsuccessfully advanced at trial. The Superior Court judge who heard his summary conviction appeal approached her analysis from the starting point that the search was presumptively unreasonable since it was warrantless, but then decided that the search was reasonable because, although it was warrantless, the officers did not enter his apartment to search but only discovered the gun cases in the incidence of their duties. Mr. Stevens appealed again, and the Crown did not oppose the appeal; both the trial and summary appeal judges considered the factual situation as novel and introducing new issues to the common law, and the Court of Appeal agreed and granted leave to appeal.

Mr. Stevens' argument was that the searches conducted by the officers were searches of his home conducted unlawfully. and that there were no exigent circumstances that justified the police opening the gun cases before obtaining a warrant. They also argued that the gun cases were not in "plain view," and that therefore the evidence of the guns should be excluded.

The Crown argued that the officers entered the apartment pursuant to their statutory duty, and thereafter conducted a lawful search of the apartment to provide the landlord with possession of the apartment free of persons and pets. When the police entered the apartment and opened the gun cases, argued the Crown, the apartment had become the landlord's possession and therefore the police had the landlord's consent to open the gun cases. (The Crown conceded that before the police opened the cases, they did not have grounds to apply for a search warrant and were not engaged in a criminal investigation.) Finally, the Crown argued, in any event the admission of the evidence would not bring the administration of justice into disrepute.

The Court of Appeal, considering the case, first disagreed with the trial judge by stating that Mr. Stevens indeed had a reasonable expectation of privacy within the apartment. He had abided by the terms of his agreement with the landlord and the execution of the eviction was a mistake, according to the landlord. Therefore, even though Mr. Stevens did not take steps to rescind the eviction, he still had a reasonable expectation of privacy in his apartment.

The Court then considered whether Mr. Stevens had a reasonable expectation of privacy in his gun cases. Even if the landlord had had true possession of the apartment, it was not necessary to open the gun cases; the gun cases were Mr. Stevens' property and therefore he had a privacy interest in them. The Court also took pains to distinguish this case from R. v. Wint, where an inventory search of an impounded car did not violate s.8 of the Charter, on the grounds that the privacy interest of a person's items kept within an apartment home, even after an eviction, is stronger than the privacy interest of items within a car. The Court also felt that the plain view doctrine was not of assistance to the police in this case.

The Court then considered the conduct of the sheriff's officers and police. Although the Court agreed that the sheriff's officers did not breach Mr. Stevens' s.8 Charter rights, the same could not be said of the police, who in the Court's view conducted an unlawful search by opening the gun cases when there was no exigent circumstance or threat of breach of the peace. The Court also stated that there was not even a basis for the police to obtain a search warrant simply because there were gun cases present in the apartment, and thus concluded that the conduct of the police therefore breached Mr. Steven's s.8 rights.

Finally, the Court considered whether the evidence should be excluded under s.24(2) and decided that, since the police's behaviour was without lawful authority and that Mr. Stevens has a high degree of expectation of privacy in his home, and finally that although the offence involved guns but not actual gun violence, that therefore the evidence should be excluded. The Court therefore set aside the convictions and entered verdicts of not guilty on all of Mr. Steven's charges. Read-the-whole-case rating: 4 for a novel privacy rights issue intersecting somewhat with landlord/tenant law.

Loat v. Howarth. Mr. Loat was a minority shareholder in Storetech, a UK-based customer analysis and software service for retail businesses. Storetech was founded by Mr. Howarth. In 2006, Mr. Loat and Mr. Howarth entered into negotiations to expand Storetech into the North American market. Mr. Loat became the COO of Storetech Ontario, which was incorporated for this purpose, in 2007. Parts of his agreement of employment stipulated that his employment could not be terminated on less than three months' notice, that the agreement substituted for any prior agreements, and that the parties agreed to settle legal disputes relating to the agreement in Ontario courts on a non-exclusive jurisdictional basis. Prior to the 2007 agreement, the parties had entered into a shareholders' agreement agreeing that legal disputes would be under exclusive English jurisdiction.

In 2009, Storetech Ontario terminated Mr. Loat's employment without notice and allegedly for cause. Mr. Loat promptly commenced action against Mr. Howarth, Storetech Ontario and Storetech UK for wrongful dismissal and various oppression remedy-related reliefs. The defendants counterclaimed against the plaintiff, but did not contest the choice of forum. In 2010, Mr. Loat moved for partial summary judgement on the wrongful dismissal. The defendants brought a cross-motion, seeking leave to amend their pleading to invoke the forum selection clause in the shareholders' agreement and to dismiss or stay the Ontario action on those grounds. The motion judge dismissed Mr. Loat's motion and granted the defendants' stay motion on jurisdictional grounds. Mr. Loat appealed both decisions.

The Court of Appeal agreed with the trial judge in regards to the dismissal of the motion for partial summary judgement, stating that there were too many disputed facts surrounding Mr. Loat's dismissal, particularly his entitlement to unpaid wages, to judge the issue on a summary basis. However, the Court disagreed with the stay order granted by the motion judge. The clause in the service agreement stating that Ontario courts would have non-exclusive jurisdiction allowed Mr. Loat to commence action in Ontario. The Court of Appeal pointed out that Canadian law favours the enforcement of forum selection clauses, and that accordingly all Mr. Loat had to demonstrate was that the forum selection clause in the service agreement was triggered. The Court also noted that the defendants had advanced their own claims in the Ontario action and had delayed for almost one year after the commencement of the action before attempting to amend their pleading to get the jurisdictional stay, and these were relevant factors weighing against granting a stay as the defendants had attorned to an Ontario action. The Court therefore dismissed the staying order. Read-the-whole-case rating: 2.
- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net