Thursday, April 21, 2011

Ontario Court of Appeal Increases Compensation for Court-Appointed Lawyers

The Ontario Court of Appeal on Tuesday issued an important ruling regarding public payment of legal fees:
Judges have the power to not only appoint lawyers to represent the interests of accused people, but to set the fees they’ll be paid from the public purse, the Ontario Court of Appeal has ruled.

In a unanimous decision Tuesday, a three-judge panel rejected arguments from Ontario’s attorney general that judges have no business setting compensation for court-appointed lawyers because only the Legislature can decide how to spend money from the province’s consolidated revenue fund.
The decision in R. v. Russel is in some ways a major step forward in public funding of unrepresented persons, which has been an issue in Ontario for several years now. In 2009, Ontario criminal lawyers boycotted Legal Aid cases on the grounds that Legal Aid was underfunded and did not give them the resources to effectively represent their clients until the province agreed to increase funding for Legal Aid.

In Russel the Court of Appeal seemed to at least partially recognize this sentiment by agreeing with the trial judge who assigned payment to the lawyers operating as amicus curiae on Mr. Imona Russel's behalf at rates well in excess of Legal Aid rates, on the basis that his case was complex and that the client had been exceptionally uncooperative with previous counsel, which was why he no longer qualified for Legal Aid. (The question of whether Mr. Imona Russel's lack of cooperation would have been so great an issue in a relationship with a more generously compensated lawyer is simply too hypothetical to answer, and one both hopes and expects that most lawyers would be as patient as possible with a fractious client regardless of their compensation.)

Now, amicus curiae are not, properly, counsel to the defendant; in a situation such as this they advance legal argument on his behalf, but are not in any sense his client and therefore are not obligated to take instruction from him. The Court of Appeal rejected the Attorney General's argument on appeal that this constituted an end-run around the Legal Aid limits:
This submission fails for three reasons. First, the Legal Aid Services Act does not apply to amicus. Second, amicus were appointed because, in part, the legal aid scheme could not adequately respond to these cases, in large measure because of the conduct of the accused. Third, amicus does not perform the role of defence counsel. For example, we agree with the reasons of Forestell J. that the task asked of amicus in Imona Russel #1 cannot simply be equated with defence counsel. It was not. It was to assist the court in very difficult circumstances, in part by performing some of the services of defence counsel for a completely uncooperative client but also serving the much broader interests of the administration of justice as described below.
Of course, if amicus are not defense counsel, but the nature of the case required that they be paid more than defense counsel being compensated through Legal Aid, this then demands that we ask why counsel for Legal Aid were not paid as highly in the first place. The Court states that the events in Russel are exceptional because of the defendant's conduct, but criminal defense lawyers working with Legal Aid clients frequently have to defend clients only marginally less difficult (many clients with mental illnesses wind up on Legal Aid rolls). Does not the difficult nature of that work, then, following Russel, demand higher compensation?

- Christopher Bird, Toronto
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Posted by Christopher Bird on Thursday, April 21, 2011 0 comments

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The (Deliciously) Legal Implications of Nutella

Ferrero SpA, the manufacturers of Nutella (in this writer's opinion, probably the peak of human inventive capacity) have launched a lawsuit against a Singaporean coffee chain for trademark violation:
Sarika Connoisseur Cafe Pte, owner of 30 coffee shop outlets in Singapore, is trying to pass off the Nutello drink as being associated with Nutella, Ferrero claimed in a lawsuit filed in Singapore High Court.
Sarika operates The Connoisseur Concerto chain of restaurant/cafes, and although the Nutello drink is not currently displayed on their website, if the Nutello drink's trademark is similar to their primary logo, Ferrero will have a legal battle on their hands, as their argument essentially will have to be that the word fragment "nutell-" in conjunction with any food product with both hazelnut and chocolate elements is a vital part of the Nutella trademark, which one expects Sarika will contest. Other than Nutella Snack And Drink (which is a divided cup with iced tea, Nutella and cookie sticks sealed apart from one another) Ferrero hasn't produced many spinoff products using the Nutella brand (something that would have strengthened the argument that the trademark should be associated with all types of hazelnut/chocolate food products).

(One also notes the existence of Nutello brand ice cream, produced by the Swedish company Lejonet and Bjornen, which is a vanilla ice cream with hazelnut/chocolate-cream globs in it. This writer was not able to find any evidence of Ferrero having launched action against these Swedes.)

The tort of passing off one's trademark is a serious one (as trademark valuations can extend into the tens of millions of dollars), and it's understandable that Ferrero would seek to defend their trademarks aggressively even if the suit is potentially likely to fail: the genericization of a trademark (such as "aspirin" or "yo-yo," both originally owned brands) is something most companies will always strive to avoid. In the case of Nutella, most other hazelnut/chocolate spreads have wildly dissimilar names and appearances so as to avoid attracting the tort of passing off.

- Christopher Bird, Toronto
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Posted by Christopher Bird on Thursday, April 21, 2011 0 comments

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Wednesday, April 20, 2011

140 Law - Legal Headlines for April 20, 2011

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- Rachel Spence, Toronto

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Posted by Rachel, Law Clerk and Office Manager on Wednesday, April 20, 2011 0 comments

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Tuesday, April 19, 2011

140 Law - Legal Headlines for April 19, 2011

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- Rachel Spence, Toronto

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Monday, April 18, 2011

140 Law - Legal Headlines for April 18, 2011

We hope that all of our readers had a wonderful weekend! Here are today's leading legal headlines from Wise Law on Twitter:

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Posted by Rachel, Law Clerk and Office Manager on Monday, April 18, 2011 0 comments

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Saturday, April 16, 2011

Davis v. Crawford: Ontario Court of Appeal on Lump Sum Spousal Support Awards

The Court of Appeal for Ontario's April 14 ruling in Davis v. Crawford, 2011 ONCA 294, appears to broaden the circumstances in which lump sum spousal support awards may be made by Ontario's courts.

The case is noted in our Court of Appeal Report this week, and it is certainly worthy of a further highlight, via this post.

Traditionally lump sum awards for spousal support have only been awarded in situations where the payor's ability and willingness to pay periodic support payments are of serious concern. The Court's previous approach was articulated in Mannarino v. Mannarino(1992), 43 R.F.L. (3d) 309 (Ont. C.A.), in which it held:
The law is clear that lump sum maintenance should be awarded only in very unusual circumstances, where there is a real risk that periodic payments would not be made. Such awards should not constitute a redistribution of family assets in the guise of support. See Jazenko v.Jazenko (1985), 46 R.F.L. (2d) 351 ( Ont. Dist. Ct.), and Zabiegalowski v. Zabiegalowski (1992), 40 R.F.L. (3d) 321 (Ont. U.F.C.).
Indeed, the Court's unanimous ruling in Davis affirms that these remain important consideration, both at common law and from s.33(9) of the Family Law Act. However, Davis affirms that judges' statutory discretion to order lump sum spousal support payments extends considerably beyond those historically-limited circumstances:
[51] We reject the appellant’s submission that Mannarino should be treated as restricting a court’s ability to award lump sum spousal support to situations “where there is a real risk that periodic payments would not be made” or to other limited and “very unusual circumstances”. To the extent that Mannarino has been interpreted in that way, in our view, that interpretation is incorrect.

[52] Both the Family Law Act, R.S.O. 1990, c.F.3 and the Divorce Act (1985, c. 3 (2nd Supp.)) contain provisions conferring a broad discretion on judges to make an award of periodic or lump sum spousal support, or to make an award comprising both forms of support...

[67] The advantages of making such an award will be highly variable and case-specific. They can include but are not limited to: terminating ongoing contact or ties between the spouses for any number of reasons (for example: short-term marriage; domestic violence; second marriage with no children, etc.); providing capital to meet an immediate need on the part of a dependant spouse; ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support, a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive spousal support.

[68] Similarly, the disadvantages of such an award can include: the real possibility that the means and needs of the parties will change over time, leading to the need for a variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.

[69] In the end, it is for the presiding judge to consider the factors relevant to making a spousal support award on the facts of the particular case and to exercise his or her discretion in determining whether a lump sum award is appropriate and the appropriate quantum of such an award.
Will we see more lump sum spousal support awards in the post-Davis family law environment? Certainly, the decision appears to recognize that a broad judicial discretion in this area may be utilized to effect appropriate outcomes in a broader variety of circumstances than was previously understood to be the case.

- Garry J. Wise and Christopher Bird, Toronto
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Posted by Christopher Bird on Saturday, April 16, 2011 0 comments

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Friday, April 15, 2011

This Week At The Ontario Court of Appeal: 11-04-15

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

Davis v. Crawford. An appeal regarding a lump sum spousal support award. Mr. Crawford and Ms. Davis had been in a common law relationship for 23 years before separating (he was 64, she 66). Both parties were retired, and their incomes were both solely generated by pensions. However, the sale of a cottage property had generated income, and Ms. Davis' application for support was for a lump sum equal to her share of the net proceeds of that sale.

The trial judge noted that Mr. Crawford's assets were difficult to quantify, due to his remaining part-ownership of his former business from which he had retired, a payment of dividends from his business to his daughter (which the trial judge characterized as him being the beneficial owner thereof), and the likelihood that Mr. Crawford was engaged in a business venture with his new partner of tearing down and rebuilding a cottage. She also noted that Ms. Davis made significantly less than Mr. Crawford, and ultimately awarded Ms. Davis a lump sum of $135,000 for support, which by the judge's figuring if invested would provide approximately $1000 monthly income for fifteen years.

Mr. Crawford appealed, arguing that the trial judge's conclusions about his assets beyond his pensions were speculative, and further that the decision was contrary to the principles set forth in Mannarino v. Mannarino about lump sum decisions only being appropriate in circumstances where there was risk that periodic spousal support payments might not be made, and suggested that the lump sum was an improper distribution of capital by the trial judge. He also pointed out that he had voluntarily paid Ms. Davis' living expenses for a time after the separation, and had also provided for her car payments and medical benefits.

The Court of Appeal dismissed the appeal. In regards to Mr. Crawford's assets, the Court found that the trial judge's findings went to his credibility given his lack of explanation why he gave so much money to his daughter or why he had not produced any recent financial statements of the company in which he retained a fifty-percent interest. (An attempt by Mr. Crawford to produce fresh evidence on appeal was also denied, as the Court determined none of the new evidence could be considered important enough or able enough to change the outcome of the case to overcome the failure to adduce it at trial.)

In regard to the appropriate use of lump sum payments, Justices Simmons and Lang noted that both the Family Law Act and Divorce Act provide authority to order a lump sum support payment as the court considered reasonable, and that the previous leading case, Mannarino, did not appear to fall in line with the legislative intent behind those two statutes. (This effectively overrules much of Mannarino, although the Court did allow that lump sum payments are primarily effective where periodic payments would be risky.)

Further, the Court also pointed out that any lump sum payment would have the effect of distributing capital; the important element would be what the intent of redistributing that capital would be, and in this case the Court felt that the trial judge's intentions were clear: she had both expressed concern that, given her belief as to Mr. Crawford's lack of credibility regarding his financial standing and his failure to make proper financial disclosure, there was a real risk he would fail to make periodic support payments, and had further explained her decision as to the amount by demonstrating - albeit with a lesser amount of detail than the Court would have liked - that it would provide for a monthly income for a defined period of time. Read-the-whole-case rating: 3.

R. v. Yadegari. Mr. Yadegari was tried and convicted of multiple offenses related to the export of two pressure transducers to an individual in Iran. Pressure transducers are instruments capable of measuring absolute pressure of a contained gas, and since they are an essential component of gas centrifuge enrichment of uranium, their sale and export to Iran is thus restricted under the United Nations Act, the Exports and Imports Permits Act, and the Nuclear Safety and Control Act.

Mr. Yadegari appealed on the basis that the trial judge improperly interpreted the portion of the regulations which defined how a pressure transducer would attract restriction under those statutes, and further appealed the reasonableness of his conviction and his sentence.

The Court dismissed the appeal on conviction. Mr. Yadegari's appeal on the technical properness of the conviction, based on his argument that a restricted pressure transducer's three pressure sensing elements would be constructed from sixty percent nickel by weight or greater, and in his case two of the three elements were made of 72 percent nickel by weight. The Court went to the listed Specifications which stated that "pressure sensing elements made of or protected by [a specified metal or metal alloy] with more than 60% nickel by weight," and decided that the trial judge's decision satisfied this requirement; "pressure sensing elements" did not necessarily mean all elements of the transducer. The Court also summarily dismissed an argument that the trial judge's findings as to the accuracy of the transducers was in error by demonstrating that the transducers did not satisfy the area of concern within the specifications.

The appellant also attempted to argue that his conviction on the count of knowingly exporting restricted goods to a person in Iran was improper, as the Crown had not proven the location of the purchaser nor his knowledge of that location, and had not proven that the transducers were to be used for a nuclear-related purpose. The Court agreed that the case against Mr. Yadegari on this count was primarily composed of circumstantial evidence, but pointed out that, viewed cumulatively, there was ample evidence to demonstrate that Mr. Yadegari knowingly attempted to export the transducers to a person in Iran, including emails that suggested that he send the transducers to "an embargoed country," e.g. Iran, and further that he informed one of his suppliers that his client was in Iran, and accordingly dismissed this line of appeal.

Mr. Yadegari also appealed his sentence. Although the Court was not sympathetic to his argument that his overall sentence was too harsh as it was based in part on United States sentence precedents (as Mr. Yadegari had not pled guilty and therefore attracted a higher sentence, and further his conduct was serious enough to merit his sentence), they did agree that since the trial judge had failed to find evidence that the transducers were to be used for a nuclear-related purpose, that his sentence on that count merited a slight reduction. Accordingly, they lowered his sentence on that count by three months. Read-the-whole-case rating: 1. Sounds like a sexy case; is not that thing at all.

R. v. Henry. An appeal by the defendant in a possession of cocaine for purpose of trafficking case. Mr. Henry's appeal was based on the fact that he felt his plea of guilty was not proper.

Mr. Henry pled guilty after his counsel heard a recording of police communications from a surveillance operation where Mr. Henry was not the target but was a person of interest. A police officer had claimed that he had seen Mr. Henry with a cellphone, which Mr. Henry was prohibited from having under an interim judicial release order. On the recording, counsel thought they heard one of the officers say that Mr. Henry had a cellphone, which would have provided the officers with the reasonable and probably grounds to apprehend him, which in turn gave them the opportunity to discover the cocaine he was carrying on his person. Trial counsel felt that this ended the possibility of a constitutional challenge against the apprehension of Mr. Henry and therefore advised their client to plead guilty.

However, Mr. Henry's counsel heard incorrectly: at no point on the recording did police mention that Mr. Henry had a cellphone. (They were not provided with a transcript when they heard the recording.) Upon listening to the recording, the Court of Appeal noted that not only did the police not say anything about seeing a cellphone, but further their utterances indicated that the police were aware that what they had seen did not so far give them reasonable and probable grounds to stop Mr. Henry.

The Crown argued that Mr. Henry did not have an absolute right to review every item of disclosure, and that his experienced counsel reviewed the communications and found that a defense was no longer viable and that therefore the plea should stand. However, the Court of Appeal disagreed, stating that a valid guilty plea demands that the plea be an informed one. As in this case, Mr. Henry was simply not properly informed about his potential options, as his counsel mistakenly told him he had no chance at a constitutional challenge. Therefore they upheld the appeal and ordered a new trial. Read-the-whole-case rating: 2.

- Christopher Bird, Toronto
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Posted by Christopher Bird on Friday, April 15, 2011 0 comments

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140 Law - Legal Headlines for April 15, 2011

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- Rachel Spence, Toronto

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Posted by Rachel, Law Clerk and Office Manager on Friday, April 15, 2011 0 comments

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Thursday, April 14, 2011

140 Law - Legal Headlines for April 14, 2011

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Have an amazing day!
- Rachel Spence, Toronto

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Posted by Rachel, Law Clerk and Office Manager on Thursday, April 14, 2011 0 comments

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Wednesday, April 13, 2011

The Ontario Marijuana Laws Ruling

An Ontario Superior Court judgment yesterday has struck down Canada's marijuana laws:
[Justice] Taliano declared the [federal medical marijuana] program to be invalid, as well as the criminal laws prohibiting possession and production of cannabis. He suspended his ruling for three months, giving Ottawa until mid-July to fix the program or face the prospect of effectively legalizing possession and production of cannabis.
What makes this ruling interesting is that most previous constitutional challenges to the Criminal Code provisions concerning possession/production of marijuana have emanated from the concept that criminal laws restricting its sale and use violate the principles of fundamental justice on the grounds that marijuana use does no harm to society or other people, and therefore criminal punishment for its use infringed individual s.7 rights to liberty under the Charter of Rights and Freedoms since a criminal law that is shown to be arbitrary or irrational will infringe s.7.

However, the courts have not been particularly impressed with this line of argument, as exemplified in R. v. Malmo-Levine, where the Supreme Court stated that marijuana can alter mental function and can lead to health risks as a result of its use, and that simply because Parliament has chosen to criminalize marijuana use and not criminalize tobacco or alcohol as well doesn't make the criminalization of marijuana arbitrary or irrational, as Parliament can pursue its public health goals at its own discretion.

What sets this case apart, interestingly, is the federal medical marijuana regime. The defendant in this case, Matthew Mernagh, used marijuana to treat his chronic pain resulting from a number of ailments, but could not find a doctor willing to help him apply for a medical marijuana license, so he grew his own and was arrested for it. Mernagh also presented a number of witnesses from across the country who testified to similar experiences in their inability to get medical licenses for marijuana use.

Justice Taliano stated that if legitimately sick people cannot access needed medical marijuana through legal means, that criminal punishment for them seeking marijuana through illegal channels cannot be proper. (Without having access to the decision itself, this seems to suggest that Justice Taliano found a criminal law that is applicable for the pursuit of legal activity to be an irrational or arbitrary one.) This is worth noting as it seems to flow from the Supreme Court's ruling in Chaoulli v. Quebec, and particularly, the assertions of Chief Justice Mclachlin and Justice Major that where the government puts a scheme in place to provide health care, that it must comply with the Charter in doing so.

Unlike in Malmo-Levine and previous marijuana challenges, however, due to the way this case was reasoned it seems likely that remedies exist to the federal government beyond simple legalization of marijuana: a different medical marijuana license application process, for example, or the government undertaking to provide doctors greater education on the benefits of marijuana as a prescription medicine and when it is appropriate to prescribe. Alternately, the government could simply decide that medical marijuana isn't a policy goal it wishes to pursue any further and discontinue the medical marijuana program entirely, and effectively reinstate those laws criminalizing marijuana possession and production.

Although this would be a harsh answer to the justice's concerns, it would likely comply with both the Charter and case law on the issue.

- Christopher Bird, Toronto
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Posted by Christopher Bird on Wednesday, April 13, 2011 2 comments

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Fodden Frowns on (Email Disclaimer) Footers

Slaw's Simon Fodden assesses the utility of lawyers' email disclaimer footers that purport to prohibit just about everything:
All in all, these things seem useless, only serving to perpetuate the stereotype of lawyers as wordy nincompoops. So suck it up and take it off. That’s my advice.
He includes a disclaimer of his own (of course), that shouldn't be missed.

And for what its worth, Walter Olsen at Overlawyered agrees: Legal boilerplate appended to email
- Garry J. Wise, Toronto
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Posted by @wiselaw on Wednesday, April 13, 2011 0 comments

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