Thursday, March 31, 2011

State Defiance of Court Orders In Wisconsin

Over the last few days in Wisconsin a bit of a legal crisis emerged as Wisconsin Governor Scott Walker's administration, in its attempt to implement an anti-collective-bargaining law, fell afoul of a court order.

What happened is as follows: the Republicans in Wisconsin's state government used some parliamentary maneuvers to pass laws restricting collective bargaining and other laws which would more tightly restrict the ability of labour unions to operate - including the ending of mandatory deduction of union dues.

Wisconsin Democrats responded by challenging the passing of the law itself, claiming that the law was processed incorrectly. Wisconsin county judge Maryann Sumi issued a restraining order preventing the state from implementing the law while she considered the case.

However, the State went ahead and began implementing the law regardless, halting the collection of union dues through salary deductions.

The State's argument was that although the act had not yet been published in the Wisconsin State Journal, which is the State's official newspaper for the purpose of publishing new laws, it had published the Act through the Legislative Reference Bureau and that therefore, since the law was published that way, it was in effect.

(The chief of the LRB went on record saying that he does not believe his agency's action implements the law.)

Judge Sumi was not amused.
"Further implementation of the act is enjoined," said Dane County Judge Maryann Sumi.

She noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi's earlier temporary restraining order.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear," she said.
Judge Sumi's reaction - and a energetic reaction from the media - led the Wisconsin administration to announce its intention to abide by the judge's order.

This puts the issue to rest, at least temporarily, but it doesn't address the interesting question of whether blatant disregard for a judicial order - had it continued - would have caused the state's Attorney General and other lawyers under him to be in violation of Wisconsin's Rules of Professional Conduct for Attorneys, which state that a lawyer in Wisconsin has the duty to "uphold legal process."

Some might argue not - after all, there is a long tradition in the United States of elected officials defying the judiciary, all the way back to President Andrew Jackson defying the U.S. Supreme Court's decision in Worcester v. Georgia, which of course led to the Trail of Tears. (One would both expect and hope that the consequences of what is happening in Wisconsin will of course be less dire.)

On the other hand, it's very hard to characterize what the State government did as anything other than blatant, if temporary, defiance of the court order, which would seem to be the antithesis of upholding the legal process. And then again, one could counter-argue that since the law only required the state to not do something, and therefore not imposing a positive duty, that by not collecting union dues they were not necessarily implementing the old law but instead merely failing to uphold the state's previously existing obligations. (This seems like a legalistic excuse to this writer, particularly in light of various state officials and lawyers saying that they were implementing the law.)

In any case, calmer heads have prevailed and it appears Wisconsin will now abide by the court order.

- Christopher Bird, Toronto
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140 Law - Legal Headlines for March 31, 2011

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Wednesday, March 30, 2011

140 Law - Legal Headlines for March 30, 2011

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Tuesday, March 29, 2011

140 Law - Legal Headlines for March 29, 2011

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Monday, March 28, 2011

140 Law - Legal Headlines for March 28, 2011

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Friday, March 25, 2011

This Week at the Ontario Court of Appeal: 11-03-25

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

R. v. Cole. Mr. Cole, a teacher, was charged with possession of child pornography when a computer technician at his school performing a virus scan remotely accessed his school-issued laptop's hard drive and found naked pictures of an underage student. The school then gave police the laptop. At no time was a search warrant obtained.

At his summary conviction trial, the trial judge found that Mr. Cole had a reasonable expectation of privacy in the contents of his laptop's hard drive, since the school board's policy was that teachers had exclusive use of their laptops and that they were permitted to load private material onto them. However, the summary conviction appeal judge disagreed, noting that Mr. Cole's terms of employment, wherein he agreed to his employer's right to monitor his email use and data, waived his right of privacy. The summary conviction appeal judge also felt that, since Mr. Cole was computer-proficient and in fact on the school's information technology committee in a supervisory role, and was thus aware of the school's capability to access his private data, his expectation of privacy was not objectively or subjectively reasonable.

The Court of Appeal set aside the decision of the summary conviction appeal judge, but did not agree entirely with the trial judge's opinion. In most respects, they agreed that Mr. Cole had a reasonable expectation of privacy in the use of his laptop: teachers used their laptops to store sensitive personal information, and the only privacy provision regarding the laptops was that technicians would attempt to get (but not necessarily require) permission of the using teacher before accessing the laptop for troubleshooting purposes. The Court stated that the fact that a technician could access the hard drive did not negate his reasonable expecation of privacy, and the police's failure to obtain a warrant was not negated by their reception of permission from the school board. Therefore, the laptop itself and the copies made of the files upon it were not admissible.

However, the Court also found that although the school's delivery of the laptop, where there was no warrant, did indeed violate Mr. Cole's privacy, the initial access of his hard drive by the technician did not violate his s.8 privacy rights.

The technician had valid reasons for examining the contents of the hidden file folder on Mr. Cole's computer which contained the pictures, and the Court of Appeal agreed that the technician was doing so for the purpose of maintaining the school's network. Therefore the technician's search did not violate s.8, and the evidence gained through that search (namely, the pictures themselves) was admissible at Mr. Cole's trial. Read-the-whole-case rating: 3.

R. v. Rivera. An appeal on a charge stemming from an impaired-driving inspection. Ms. Rivera was pulled over as part of a R.I.D.E. program check, and upon exiting the car was visibly unsteady. The constable attempted to get Ms. Rivera to perform a breath sample test, but after eighteen failed attempts on her part, he arrested her for failing to provide a breath sample. When she protested, he gave her another three chances to provide a sample, which she also failed.

At trial, Ms. Rivera claimed that she was suffering a panic attack and could not operate the breath sampling device. She called experts who both diagnosed her as suffering from a panic disorder. The trial judge, however, was not impressed, particularly given that Ms. Rivera lied to the constable, claiming she worked for the Ontario Provincial Police, which the judge took as a sign of rational thought. He also felt that the constable's testimony - wherein Ms. Rivera was not visibly panicking - was more credible than Ms. Rivera's. He convicted Ms. Rivera summarily. Ms. Rivera appealed. The summary conviction appeal judge agreed with the trial judge, and Ms. Rivera appealed again.

The Court of Appeal allowed the appeal after considering two separate grounds. They first stated that the trial judge had relied improperly on Ms. Rivera's statements made before she had counsel. The Court noted that although the initial stop did not constitute a detention, Ms. Rivera's extended series of tests certainly could. Thus, according to Canadian caselaw, her right to counsel depended on whether the questioning and its use by the crown remained within the narrow reasonable limit on right to counsel in roadside impaired driving investigations: namely, proving the elements of the offense. The Crown submitted that her comments constituted a denial, but the Court of Appeal disagreed, stating that her statements, and particularly the fact that she asked for another chance when arrested, did not constitute the actus reus of refusing to comply with a breath test.

The Court also stated that the appeal judge should have considered Ms. Rivera's rights under s.7 of the Charter of Rights and Freedoms. At trial, the judge felt that her failure to inform the constable about her panic attack harmed her credibility. Ms. Rivera argued that her right to silence made that issue one that should not have properly been considered. The Court cited multiple precedents where defendants who had had their silence considered as a failure to assert their innocence or excuse and therefore impinge upon their credibility were found to be improper, and agreed with Ms. Rivera that her right to silence had been compromised. Read-the-whole-case rating: 3.
- Christopher Bird, Toronto
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Ontario Human Rights Tribunal Digest- March 3-March 18, 2011

Each week, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.


In this case, the applicant, a farm worker, alleged she had experienced discrimination in the workplace due to race, colour, place or origin, ancestry, marital status and disability, contrary to the Ontario Human Rights Code.

Specifically, the applicant alleged that she was the only visible minority and single parent worker and was being picked on as a result; that she was physically the weakest worker yet made to perform the hardest physical tasks; that she was made to do work without proper health protection; and, finally, that she was laid off while other workers were retained based on her personal characteristics. Beyond this, the applicant provided very little support for her allegations of discrimination.

The Tribunal unequivocally rejected all of the applicant's allegations of discrimination. It found as follows:

  1. The Tribunal found that the applicant was not the only minority worker, there were many other racialized employees who worked for the respondent employer.
  2. The applicant was not the only sole support parent worker; a number of sole support parents had worked for the company over the years.
  3. The applicant failed to provide evidence that the work she performed was anymore physically demanding than the work performed by other staff. In fact, the Tribunal found that the time sheets indicated that work was evenly distributed amongst the respondent workers, including the applicant.
  4. The Tribunal noted that investigations conducted by the Ministry of Labour and the Workplace and Safety and Insurance Board found that the respondent employer was maintaining a safe environment in accordance with applicable law.
  5. The lay-off of the applicant was based on seniority: the fact that the applicant had been treated differently than others and felt this was unfair did not amount to "discrimination" on the basis of any Code-protected ground.


In this case, the Tribunal requested that the Applicant provide an update within thirty days as to the status of a grievance proceeding, which had resulted in a deferral of the applicant's discrimination claim before the Tribunal. Because the applicant did not respond to the Tribunal's request, the applicant was deemed to have abandoned the Application and the Application was dismissed.

(See the case below for more discussion of the topic of deferral of applications alleging discrimination before the Tribunal.)

In this case, the Tribunal considered whether to defer an application alleging discrimination in employment on the basis of disability. The applicant had previously filed a claim with the Workplace Safety and Insurance Board that had yet to be disposed of.

In deciding whether to order a deferral of the proceeding before it, the Tribunal noted:
The Tribunal may defer consideration of an application, on such terms as it may determine and on its own initiative (Rule 14.1) The Tribunal has stated that deferral is not automatically invoked simply because the parties involved are in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
The application was deferred, since before the discrimination claim on the basis of disability could be resolved, a finding by the Workplace and Insurance Board was required on whether the exposure to mould at the respondent employer's workplace had caused the applicant to suffer an occupational illness. The Tribunal held that only after WSIB had made this finding (which was within its expertise) could it adjudicate on whether the employer had failed to accommodate this illness.

In this case, the applicant alleged discrimination on a number of grounds including gender and ¨record of sex-related offences.¨

The Tribunal ruled that the only the claim on the basis of gender could proceed. For all the other claims, the applicant had not referred to any specific incidents of discrimination but had only made bald assertions.¨

On the question of when preliminary dismissal is appropriate, the Tribunal stated:
An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This has been established by the Tribunal’s jurisprudence. See Masood v. Bruce Power, 2008 HRTO 381 (CanLII), 2008 HRTO 381 (CanLII); Morin v. Alliance de la function publique du Canada, 2008 HRTO 58 (CanLII), 2008 HRTO 58 (CanLII); Hotte v. Ontario (Finance), 2008 HRTO 63 (CanLII), 2008 HRTO 63 (CanLII).

Having reviewed the Application I am of the view that the applicant has failed to identify an act of discrimination related to the ground of “record of offences” which is defined in the Code as a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect to any provincial enactment.
- Robert Tanha, Toronto

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Incompetent Conservation Officer Beats Hunter’s Malicious Prosecution Lawsuit

According to Justice R.E. Powers, Conservation Officer Aaron Kilback was “unskilled, uninformed, incompetent and careless,” as well as reckless and poorly trained. But that wasn’t enough for him to conclude that Kilback was guilty of malicious prosecution in two unsuccessful cases which Kilback brought on behalf of British Columbia’s Minister of Environment, against hunter Ken Olynyk.

B.C. Supreme Court decision Olynyk v. Kilback, rendered in Kamloops last December, dealt with the alleged vendetta that CO Kilback had against Olynyk, dating back to 2004, when the hunter first went afoul of the law. The basis for the malicious prosecution court case was CO Kilback’s alleged motivation and means by which he proceeded with consecutive prosecutions against Olynyk.

Ken Olynyk had been a hunter for approximately 25 years. He valued his right to hunt, and relied partially on hunting to provide food for his family. The first case against him arose after he shot a cougar which had killed his dog. The problem was that he subsequently purchased a tag which would allow him to hunt cougar. He knew it was wrong. CO Kilback showed up a few days later and issued Olynyk a ticket, a warning slip, and notice of potential cancellation of a hunting license.

CO Kilback forgot to endorse the original ticket with the date he served Olynyk, so contacted him and arranged for Olynyk to come to the conservation office to get a new ticket and notice. In error CO Kilback dated the offences 2003, instead of 2004.

It became obvious that the date on the ticket was wrong, so Olynyk was acquitted. CO Kilback was embarrassed and humiliated. He eventually admitted that he often issued a new ticket to correct an error in a ticket already issued.

In front of the Justice of the Peace, CO Kilback made it clear that he would lay the charge again. Olynyk told him he did not think it was appropriate as he had already been acquitted. Olynyk was a hunter, not a lawyer, yet he knew about double jeopardy. CO Kilback subsequently admitted that he had limited prosecutorial experience and had received neither training nor direction as to how to proceed with a trial.

Shortly thereafter, on Father’s Day, CO Kilback attended at the Olynyk residence with a new ticket for the same offences. My Olynyk protested but CO Kilback left the ticket, and while doing so allegedly spoke nastily to him. Olynyk paid a lawyer to have the proceedings against him stayed by Crown counsel. Crown counsel wrote to CO Kilback making it clear that a person could not be re-charged in such circumstances.

CO Kilback prepared a RAP sheet indicating the charges against Olynyk, and fine amounts. Even in the face of the acquittal, he never changed the RAP sheet, which remained on record.

The second case against Olynyk arose the following year, after he had shot a deer. He believed that he and the deer were on Crown land. However they were both on land owned by a neighbour. The neighbour complained, so CO Kilback and another conservation officer issued a ticket to Olynyk, charging that he hunted on cultivated land without permission.

CO Kilback knew that his fellow officer would not appear at the trial. It appears that it was the second officer who took all the photos of the land and boundaries in dispute, even though CO Kilback stated that he took some of them. The person who takes photographs should be the one putting them into evidence at a trial.

CO Kilback had received information that the neighbour might not show up at trial. Her evidence was needed to prove that Olynyk was on her land without permission. You cannot rely on hearsay under such circumstances, in terms of an officer stating that the landowner said the permission to hunt on the land had not been given. You need the landowner.

In this second prosecution it also appeared that documents had been altered by CO Kilback. During testimony, when the discrepancy about documents became apparent, CO Kilback was anxious and embarrassed that he might make a fool of himself in front of an RCMP officer and the Justice of the Peace.

In the end, Olynyk was acquitted in the deer incident because the neighbour did not attend. Regardless, the evidence was shaky, without the other officer in attendance, and with problems concerning the photographs and the documentary discrepancy.

Did CO Kilback have a vendetta against Olynyk dating back to his embarrassment and humiliation arising out of the cougar incident? Did he deliberately serve the second ticket on Father’s Day to embarrass Olynyk in front of family? Was he acting maliciously by issuing a second ticket when he should have known the double jeopardy rule? Did he proceed with the cougar trial out of malice, knowing that the photographs were problematic without his fellow officer present, and the likelihood of not having the neighbour in attendance as the key witness regarding lack of permission to hunt? And what about altering documents?

Olynyk sued CO Kilback and the province in civil court, claiming damages for malicious prosecution. Justice Powers reviewed the allegations and defence. He noted that the elements of malicious prosecution are:

  • the defendant was responsible for initiating and continuing proceedings against the plaintiff;
  • proceedings are terminated in favour of the plaintiff;
  • in instituting proceedings, the defendant acted without reasonable and probable cause, and;
  • the defendant in instituting and continuing proceedings, did so with malice or a primary purpose other than that of carrying the law into effect.

The judge had no difficulty with the first two elements, since they were proven; Olynyk was acquitted with respect to both incidents, the cougar prosecution because of the error regarding the date, and the deer prosecution because the Crown could not prove lack of permission by the neighbour.

Reasonable and probable grounds have subjective and objective elements; actual belief in the guilt of the accused, and the belief must be reasonable in the circumstances. If there are no reasonable and probable grounds, the plaintiff then must prove malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, inconsistent with the status of “minister of justice.” Malice cannot be inferred solely from a lack of reasonable and probably grounds.

The judge embarked upon a lengthy analysis of the two final elements, discussing the facts in light of the law. There were no reasonable and probable grounds for issuing a new ticket after the first acquittal. The judge concluded the CO Kilback was unskilled, uninformed, incompetent, careless and lacked training, but that lack of professionalism was not evidence of malice. Malice similarly was not proven as a result of other questionable and inappropriate actions of CO Kilback in the cougar case. Regarding the deer incident, after reviewing the evidence the judge once again was critical of CO Kilback, but was “not satisfied that he was acting out of malice so much as gross incompetence.” The judge was not satisfied that CO Kilback was prosecuting Olynyk for an improper motive.

Even though Ken Olynyk lost the civil case against Aaron Kilback and British Columbia, the judge did not award costs against him, stating that it was not surprising that CO Kilback’s actions appeared to be motivated by malice, given his lack of training by the Province of British Columbia.

As judges often do when they dismiss a lawsuit claiming damages, Justice Powers assessed the amount he would have awarded in favour of Olynyk had liability been proven in both incidents. The total payable would have been $35,548.01, plus interest and costs.

Counsel for Ken Olynyk has advised me that the plaintiff elected to not appeal the decision.

- Alvin Starkman, Oaxaca, Mexico

Alvin Starkman is a member of The Law Society of Upper Canada. However, this article is not intended to be and should not be relied upon as constituting legal advice or opinion. Alvin and Arlene moved from Toronto to Mexico in 2004. They operate Casa Machaya Oaxaca Bed & Breakfast ( Alvin also arranges small group Oaxaca culinary tours (


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