Wednesday, November 27, 2019

Life-Time Driving Ban Violates Ontario Human Rights Code

I sent the following communication to the Ontario Human Rights Commission today
requesting their intervention in a very serious complaint which I filed with the Human Rights Tribunal of Ontario on October 9th, 2019.  The complaint challenges the legality of the Ontario Government's life-time driving ban and refusal to accommodate persons who have been convicted of four alcohol related driving offences even if they are later rehabilitated. In our case, the Applicant was last convicted in 2006, served his five year court ordered driving prohibition and has been rehabilitated but is still banned for life. Why ?

From: ejguiste@yahoo.com

To:      legal@ohrc.on.ca

Date:   November 27, 2019, 11:46 AM EST

Rehabilitated Alcoholics are discriminated against on account of their historical
disability by being prevented from driving for life if they had four prior convictions.
Poor Mr. Heron had the misfortune of being convicted of four impaired related
driving offences more than 13 years ago but although rehabilitated today is
banned for life from obtaining a driving license not only in Ontario but Canada-wide.

This is discrimination.  The exclusion of Mr. Heron and other similarly situated persons in Ontario is not only contrary to the Human Rights Code but also the Canadian Charter of Rights and Freedoms.

I invite you to support Mr. Heron and other similarly situated Ontario residents in challenging this violation by intervention in his complaint.  A copy is attached.  I have also attached a case touching on some of the issues.

Feel free to call me to discuss if you wish.

Sincerely,

E.J. Guiste.
(416) 364-8908

NOTE:  This piece is published as a matter of public interest.  If you or someone you know is similarly situated to Mr. Heron I wish to learn about your experience with this issue.

Friday, November 15, 2019

Wrongly Accused of Domestic Violence or Victimized ?

   As a lawyer who handles both the defence of criminal allegations arising from domestic violence occurrences and prosecutes civil actions for malicious prosecution and negligent investigation arising from these allegations it is clear to me that countless numbers of innocent, hard-working individuals in Ontario are all too often wrongly charged with domestic-related criminal offences.

   We have all met and heard of individuals who have found themselves charged and removed from their homes for nothing more than restraining or otherwise seeking to avoid the commission of an assault on their person. It is not a crime to do this. One is entitled in law to defend one's person. The question is whether the response is reasonable and proportionate in the circumstances.  Included in this category of cases are cases involving what has come to be referred to as the Battered Spouse Syndrome defence.  The Battered Wife Syndrome involves a situation where a historically battered spouse  retaliates in self-defence - possibly killing the other spouse.

   Domestic violence in Ontario is a very serious issue. Public policy in Ontario has seen fit to pass clear and mandatory standards regarding how police services in Ontario are to investigate these cases.  The problem is these polices are more often than not disregarded by police officers and others in the criminal justice system.  Crown counsel instinctively refuse to produce such policies as Stinchcombe disclosure often resulting in non-production of what is relevant evidence to the defendant's ability to make full answer in defence of the allegation against him or her.

 
About the author:  E.J. Guiste deals with both civil and criminal domestic violence cases. If you have been charged or are a victim of domestic violence and want to know your rights with respect to civil redress for the harm caused to you call me for a consultation. Tel.(416) 364-8908 - E mail: ejguiste@yahoo.com

Monday, November 11, 2019

In Flanders Fields - John McCrae

   In Flanders fields the poppies blow
Between the crosses, row on row, 
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn saw sunset glow, 
Loved and were loved, and now we lie, 
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

By Lt Col John McCrae

Thursday, October 10, 2019

Huscroft J.A.'s dissent in Fleming Followed by SCC

   Poor Mr. Fleming, a Canadian man of European descent, decided to exercise his right of freedom of expression by waving a Canadian flag with a group called "Canadian Advocates for Charter Equality" in Caledonia where a group of Indigenous Canadians were occupying Crown-owned lands only to be forcefully arrested by OPP officers in order to avoid a breach of the peace.  Mr. Fleming had done no wrong known to law.  The police, supposedly acting on past experience and speculation, determined that Mr. Fleming's rights of expression should be denied in the name of preserving the public peace.

   Understandably, Mr. Fleming did not agree with this brand of justice and filed an action against the OPP officers and Her Majesty the Queen in Right of Ontario for unlawful arrest, excessive force(assault and battery) and violation of his rights Charter Rights. After carefully considering all of the evidence at trial the learned trial judge concluded that poor Mr. Fleming was unlawfully arrested and excessive force was used on him. She awarded Mr. Fleming $139,711.90 in damages plus costs.

    The police defendants appealed to the Ontario Court of Appeal.  Their argument that it was lawful for them to forcefully arrest poor Mr. Fleming even though he committed no offence in law and was merely exercising the most fundamental of legal rights in a democracy - the right of freedom of expression was well received by a majority of that court led by Nordheimer J.A.  Norheimer J.A. set aside the award of damages on the basis that the learned trial judge committed "overriding and palpable error"  and concluded that the police had the authority at common law to arrest poor Mr. Fleming.

Laskin C.J.Like Dissent:

   When it looked like the days when we once had powerful and well-reasoned dissent judgments from our appellate courts was all over along comes Mr. Justice of Appeal Huscroft.  Huscroft J.A.'s dissenting judgment takes us back to a time when another former academic named Bora Laskin penned dissents which often went on to make law thorough-out the Commonwealth.   Huscroft J.A., himself a former academic writes with a soundness, clarity and honesty that brings back memories of the dissenting judgments of the late Chief Justice Laskin. The dissent is noteworthy because Huscroft J.A. takes issue with the majority on very serious and fundamental points of law.  These points of law have the potential to impact the very substance of the fundamental rights which are often at stake when the rights of citizens and the state collide.  The points of law that Huscroft J.A. takes issue with Nordheimer J.A. on include the following: standard of review  and the role of the appellate court in reviewing findings of fact made by a trial judge - the lawfulness of the arrest and the right of political expression and when it can be denied.  The soundness of the decision is best demonstrated by quoting excerpts of it directly.

[76]   The primary issue raised by this appeal is whether the police were justified in arresting the respondent to avoid a possible breach of the peace.  My colleague Nordheimer J.A. concludes that they were.  With respect, I disagree.

[78]   My colleague defers to the police in their decision to arrest Mr. Fleming, rather than to the trial judge, whose decision came following an 11-day trial.  The trial judge found that Mr. Fleming's arrest was not justified in the circumstances.  In my view, there is no basis for this court to interfere in her decision.

[80]   The burden is on the appellants to demonstrated an error of fact or an error of mixed fact and law that is both palpable and overriding. It must be palpable, in the sense that the error is obvious or apparent without further inquiry or explanation.

(81)   In my view, none of the alleged errors identified by Nordheimer J.A. rises to this high standard.  As a result, it is not open to this court to substitute its view as to lawfulness of Mr. Fleming's arrest.

[89]   The trial judge found that the evidence was "clear" that the police intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag.  Not only did she accept Mr. Fleming's testimony that he left the shoulder because of the police vehicles, but she noted that Inspector Skinner conceded that the O.P.P. had pre-emptively decided to limit the rights of the Flag Rally participants and that, for him, public safety "[took ]priority over other rights such as the freedom of expression and the freedom to walk down the street."

   Huscroft J.A. spends a great deal of necessary time demonstrating how "My colleague characterizes things differently than the trial judge."...Mr. Fleming, he says, chose to leave the shoulder of Argyle Street for reasons that are unclear on the record....He then suggests that Mr. Fleming is the author of his own misfortune - that he might have avoided his problems by remaining at the side of Argyle Street."

[92]   With respect, it is not open to this court to recharacterize the evidence in this fashion and substitute its inferences for those made by the trial judge.  The trial judge made findings that were open to her on the evidence.  It cannot be said that they constitute palpable and overriding error.

[99]   ...Mr. Fleming was entitled to attend and participate in the Flag Rally regardless of its effect on the governments political goals at Caledonia or anywhere else, and, in particular, regardless of whether the Flag Rally was considered provocative by the government or the protesters.

[100]   Political expression will often be provocative, and so considered problematic, but there is no doubt that its protection is a core purpose of freedom of expression.

   Indeed, the key difference in the Huscroft J.A. dissenting reasons and that of the majority stems from the deference they accord to the findings of the trial judge. Huscroft J.A. accords her the deference called for in our law while the majority appears to go out of its way to interfere with her findings of fact.

[177]   I can see no basis to interfere with these findings or the trial judge's conclusion.  In my view, the deference my colleague accords to the operations decisions of the police is more properly due to the decision of the trial judge.

Supreme Court of Canada:

   "As there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others, the police in this case did not have lawful authority to arrest F.  The trial judge specifically found that F had not done anything unlawful before being arrested; there was no evidence before her that he had committed any offence in walking along the street, entering the occupied property or standing there with his Canadian flag. Nor was there evidence that he had himself been about to commit an indictable offence or a breach of the peace. The Province and the police have not sought to challenge that finding on appeal, nor have they cited or relied on any statutory power to arrest F.  They rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons - a power that does not exist.  In light of this conclusion, a new trial on the issue of excessive force is not necessary.  As the police were not authorized at common law to arrest F, no amount of force wold have been justified for the purpose of accomplishing that task." (Case Headnote - Fleming  v. Ontario 2019 SCC 45)


About the author:  E.J. Guiste is an lawyer of African-Canadian descent who represents individuals like Mr. Fleming in actions and appeals involving fundamental rights against police and other state actors.

Saturday, August 31, 2019

Does Crown Counsel Get a Pass on "Civility" ?


Background:

   After repeated requests to the trial judge to restrain Crown Counsel's aggressive and abusive cross-examination of an African-Canadian female complainant on a domestic violence trial in which Crown Counsel elected not to call the alleged victim as his witness to prove an alleged assault on her but to call the person she said assaulted her instead, I made the following off-the-cuff and passionate request to the trial judge:

The Plea:

   "Your Honour, my friend's being very disrespectful to this witness, and I don't know if it's on account of her race, or what it is, but can you please caution him to (sic) finish her narrative ?  He keeps interrupting, and bellowing like he's some big, bad-ass dog or something."

"Bellow"**:  1. roar like a bull; 2. utter loudly and angrily (Concise Oxford Dictionary)
If someone bellows, they shout angrily in a loud, deep voice.(Collins English Dictionary)

Immediate Apology on 
the Record:

   Within less than a minute of those words being uttered a frank and fulsome apology
was communicated to Crown Counsel in order to preserve the integrity of the record
and proceedings.  Crown Counsel rejected the apology and asked the trial judge for an
adjournment in order for him to bring a complaint before the Law Society of Upper Canada.

Trial Judge Denied
Crown Request:

   The trial judge denied the Crown's request.  She stated:

THE COURT:  I think that I would like for us to take a 15 minute break, and then for us to return and continue the trial.

MR. RINALDI:  I can tell Your Honour I'm not in a position to do that.  I - I - I - sic and to make some inquiries, and I've had enough of this.  He called me names on the record and if...

MR. RINALDI: ...Your Honour wants to put up with that, that's your perogative.  I'll come back to set a new date, but I intend on speaking to the Law Society about the comments that have been put on the record about me. They were completely slanderous and inappropriate.

   Crown Counsel walked out on the trial judge.

Complaint to LSUC 
by Witness in Court:

   A member of the public who was in the courtroom and observed Crown Counsel's conduct made a formal written complaint to the Law Society of Upper Canada.  Her complaint raised the following regulatory issues:

1.  Crown Counsel was disrespectful to the trial judge by refusing to comply with her order;

2.  Crown Counsel was disrespectful to the witness - badgering her and raising his voice at her**; and

3.  The witness, a member of the public, stated, "I sat in stunned disbelief at the disrespect that the Crown showed to Justice Brewer by going against her order to take 15 minutes break."

Law Society of 
Upper Canada Response
to complaint:

    "After reviewing the information your provided, we have found that the concerns you raise are not something that the Law Society can deal with.  We can only act on complaints that provide information suggesting a lawyer had done something contrary to our Rules of Professional Conduct. As you aware, Mr. Rinaldi is a Crown Attorney.  As it appears your concerns about him relate to the exercise of his discretion within the context of his position as a representative of the Crown, you may address your concerns to:  The Ministry of the Attorney General, 720 Bay Street, Toronto, Ontario, M5G 2K1."

   On the other hand, the Law Society of Upper Canada has sent Crown Counsel's complaint against defence counsel, E.J. Guiste, to a formal hearing some six years after the fact and counting.  The Law Society of Upper Canada Notice of Hearing asserts that defence counsel was disrespectful to the trial judge and Crown Counsel - even though the trial judge never made any such complaint and went on to acquit defence counsel's client.

Case outcome:

   I was fully successful in defending my client. Yes - not guilty !  The learned trial judge found that my client did not assault his spouse her sister assaulted her causing injury to her eye.  More than five years later I am forced to defend myself against this Crown Attorney's complaint against me to the Law Society of Upper Canada - as they were known then.

How is this in the public interest ?

Is the late Eddie Greenspan Right ?

   One of Canada's best criminal lawyers had the following to say about the regulators tendency to prosecute defence lawyers but not prosecutors:  "The Law Society does not enhance its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors. And such prosecutions will have a chilling effect on advocates." (Edward Greenspan
and L. David Roebuck, "The Horrible Crime of Incivility - Globe and Mail - August 2, 2012)




 

 
   

Wednesday, August 14, 2019

Is it "Professional Misconduct" for a Lawyer to Comment on a Judge's Unfairness ?


In Dore  v.  Barreau du Quebec [2012] 1 S. C.R. 395 the Supreme Court of Canada pronounced that:

"In dealing with the appropriate boundaries of civility for a lawyer, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter, and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular.  We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer's right to expression and the public's interest in open discussion."

The Supreme Court of Canada stated:  "Proper respect for these expressive rights may involve bodies tolerating a degree of discordant criticism.  The fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer's expressive rights under the Charter."


The Ontario Court of Appeal had the following to say in Amato  v.  Peske 2010 ONCA 708:

"There are times when trial counsel can be expected to raise objections, especially when they feel that a trial judge is exceeding the bounds of judicial propriety and taking up the cause of one of the parties.  Polite but firm objections, in these circumstances, are entirely appropriate.  Counsel should not feel constrained for fear of judicial censure. 

Prohibited Conduct

A licensee shall not engage in professional misconduct or conduct unbecoming a lawyer.

s.33  The Law Society Act

With the authorization of the Proceedings Authorization Committee, the Society may apply to the Tribunal for a determination by the Hearing Division of whether a licensee has contravened section 33.

s.34 The Law Society Act


The Conduct:

1.  "Well, your Honour, I think you should give some thought to what you are doing, because you're trying to derail me".

2.  "Your Honour, you've got to - you've go to do you job now.  She - he asked that, and she said, five times. I mean come on."

3.  "Your Honour, I would have thought that you would've intervened, as the trial judge, but what's the purpose of this ?

4.  "I don't think you're listening to me very carefully, so I'm going to be very precise."


The learned trial judge made no complaint in court.  The learned judge made no complaint to the regulator. The learned trial judge went on to fully exonerate my client.


Guarantees for the functioning of lawyers

Governments shall ensure that lawyers(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Basic Principles on the Role of Lawyers - United Nations



Friday, May 24, 2019

Corruption Allegations Force Province to Install an Administrator at Durham Region Police

   When police officers make reports of corruption against their chief and others this is a sign that there is something wrong in the service.  When the Ontario Government appoints an administrator to oversee the operation of a police service in Ontario this is a signal that there is a very serious problem which is interfering with the operation of that service.

    This is a matter that members of the public must watch closely.  Let us see how this unfolds for the Durham Region Police and their supporters.


NOTE:  In October, 2014 the writer served a subpoena on the Chief of Police or Designate seeking production of that services Domestic Violence Investigation Policy.   The writer was made to understand from the proceeding that Durham Region Police Service does not have a Domestic Violence Investigation Policy.   It simply uses the proposed guideline.  Anyone having information on this point kindly contact the writer. Phone: (416) 364-8908 - E mail: ejguiste@yahoo.com