Divisional Court Costs Award Against Pieters Excessive

     Public policy in Ontario has chosen to dispsense with the concept of indemification for costs in human rights matters.  Neither complainants or respondents are entitled to indemnification for the expenses they incure in prosecuting or defending human rights complaints.  Policy makers suggest that this departure from the general rule in civil litigation that the loser indemnifies the winner for the cost of the litigation creates an inexpensive avenue of redress to complainants.  The Divisional Court has often recognized and upheld this policy in its adjudication of judicial review applcations involving human rights matters. 

     This laudable public policy may have been overlooked in the case of Pieters  v.  Peel Law Associaiton 2012 ONSC 1048 when the Divisional Court ordered African-Canadian lawyers Selwyn Pieters and Brian Noble to pay costs of $20,000 to the Peel Law Association.  The quantum of costs awareded here is excessive when compared to like cases decided by the Divisional Court and when one considers that these costs were only to indemnify the successful party and not punish Mr. Pieters and Mr. Noble.  In Audmax  v.  OHRT 2011 ONSC 315 the employer successfuly sought judicial review of a Tribunal finding of religious discrimination and was awareded $10,000.  In Shaw  v.  Phips 2010 ONSC 3884  the Toronto Police Services Board and P.C. Shaw unsucessfuly sought judicial review of a Tribunal finding of liability for racial discrimination and a mere $2,000 was awarded to Mr. Phips.  In a further unsuccessful appeal to the Court of Appeal in Shaw  v.  Phips no costs were ordered "on the understanding of the parties." Indeed, a review of the Divisional Court jurisprudence on costs overall suggests that the parties are typically afforded an opportunity to agree on the issue themselves.

     Unlike the appeal of a trial matter, most judicial review applications have no transcript evidence and are very straight-forward.  Typically the application record for a moving party like the Peel Law Association consists of a Notice of Application.  The Tribunal is obligated to file its record with the Divisional Court.  Each party files a factum and a Book of Authorities.  There was no transcript of the proceedings before the HRTO.  Accordingly, based on my close to twenty years of experience in litigating matters like this a reasonable bill of costs on this application would be the following:


           1     Preparation of Notice of Application

                  - review evidence at hearing
                  - review decision - identify errors
                  - review case law
                  10 hrs

          2.     Complile application record
                   1 hr

          3.     Draft factum and Book of Authorities
                   15 hrs

           4.     Review opposing factum etc.
                   3 hrs

          5.     Prep for hearing -
                     2 hrs

          6.       Attendance
                      2 hrs     

Total:  33 hrs @ $300 = $9,900 + HST = $11,187


Commentary & Analysis:

      The adjudication of costs is an important matter.  The adjudication of costs on judicial review applications involving human rights is - in my view - an even more serious matter.  Because human rights legislation is remedial and quasi-constitutional courts must be very careful not to do anything that would make these remedial forums unaccessable to the people.  If public policy in Ontario has seen fit to depart from the standard costs model in human rights matters before the Human Rights Tribuanl of Ontario this purpose is defeated if courts do not carefully scrutenize the costs demands put forward by parties in judicial review applications involving those decisions at Divisional Court.  Based on the above-noted Bill of Costs the successful party ought reasonably to have expended approximately $10,000 on the proceeding.  An award of costs on an application of this nature ought to be on a party-party scale and not full indemnification.  The jurispurdence is clear that solicitor-client or substantial indemnity costs are for exceptional circumstances.  There was nothing exceptional from a costs perspective about this judicial review application.   The quantum of costs awarded appears to be enough to indemnify the Peel Law Association for the proceedings before the Tribunal as well.

Note:  This piece is written to draw attention to an issue of public importance, namely, the proper adjudication of costs in civil proceedings involving human rights claims and the fact that costs award can close the door to our courts to the people who fund them.



                   

Court of Appeal to hear Selwyn Pieters' Appeal

     I received a press release informing me that the Court of Appeal for Ontario has granted leave to appeal Pieters el al  v.  Peel Law Association 2012 ONSC 1045.  Readers may recall that this is the case in which the Human Rights Tribunal of Ontario found that the Peel Law Association violated the right of high profile African-Canadian human rights lawyer, Selwyn Pieters, to be free from discrimination based on race and found that he was singled-out for scrutiny on account of his race by a librarian while in the lawyers' lounge at the Superior Court in Brampton.  The Divisional Court overturned the Tribunal's decision and ordered Pieters to pay $20,000 in costs to the Peel Law Association.

     The case has gained notariety in the profession because Mr. Pieters maintains that he and his African-Canadian colleague, Mr. Nobel,  were "racially profiled" by the Peel Law Association staffer who approached them to verify that they were lawyers.  I agree and fully understand Mr. Pieters' sense of frustration and humiliation for being singled-out for scrutiny by Peel Law Association staff on account of his race.  I am satisfised that in this case the Tribunal made the correct decision and that this decision was denied the level of defference typically afforded such decisions by the Divisional Court contrary to their own jurisprudence.

     I am - however - troubled by the use of the word "racial profiling" to charcterize the nature of the discrimination in this case.  Racial profiling is a form of discrimination which arises where state actors - generally law enforcement personnel - who have the power to deprive one of fundamental rights such as equality, to be safe against unreasonable search and seizure and to be accused of criminal allegations - use race as a basis to enforce the law.  This I have argued elsewhere is a serious wrong amounting to a violation of the equality provisions of the Charter of Rights and Freedoms.  The discrimination in Pieters  v.  Peel Law Association is regular, good old-fashioned discrimination - nothing more nothing less.  Racial profiling on the other hand is racial discrimination perpetrated under colour of law.  To characterize the discrimination in Pieters  v.  Peel Law Association as "racial profiling" is to show a total misunderstanding of the term and the nature
and quality of the harm associated with its manifestation.  In fairness to the Tribunal and the Divisional Court they did not at any time use the term "racial profiling" to characterize the discrimination alleged in the Pieters case.  The specialized press and the mainstream media did.

     It is anticipated that the Court of Appeal for Ontario will find that the Divisional Court erred in law in applying the cases of Ontario Director, Disability Support Program  v.  Tranchemontagne 2010 ONCA 593 and McGill University Health Centre  v.  Syndicat des employees de l'Hopital General de Montreal  2007 S.C.C. 4 to the type of discrimination involved in Pieters.  Those cases deal with non-intentional adverse impact discrimination.  Pieters - like I said above - deals with regular, good old fashioned racial discrimination. 

      

Credibility vs. Racial Profiling/Denial of Equality ?

   Yesterday the Court of Appeal for Ontario released its decision on an application under section 684 of the Criminal Code of Canada for funding in R  v.  Kampe 2012 ONCA 558 - a case in which my client Mr. Kampe testified in his own defence that members of the Toronto Police Service targetted him on account of his race and in fact planted cocaine on his person and a digital scale in his car to secure his conviction for possession of a controlled substance for the purpose of trafficking.  Justice of Appeal Jurianz heard the application on September 27th, 2012 and dismissed it on December 5th, 2012.

   In this post I wish to review and analyse the Court of Appeal's decision denying this needy man funding for what I consider to be a meritorious appeal on an issue of public importance not only to African-Canadians but all residents of Ontario.  My objective in doing so is to contribute to the jurisprudence and to stimulate public discourse on the evolving concept of racial profiling/denial of equality. Readers may recall that, contrary to the conventional wisdom on the subject, it is my thesis that inherent in any act or omission of racial profiling is a denial of equality under section 15 of the Canadian Charter of Rights and Freedoms.

  Appellant's Argument:

   The Appellant's argument is clearly stated at p.4 of the Applicant''s Factum in the following words:

 "IT IS RESPECTFULLY SUBMITTED THAT the record reveals the following fundamental errors with the decision of the learned trial judge:

1.   A failure to apprehend and apply the evidence before her to the law set out in R  v. Brown etc.; and

2.   A failure to appreciate that the police failure to obtain the passenger particulars and or her statement was highly relevant to the defence raised.

The Law:

   In R  v.  Brown 2003 Canli 52142 the Court of Appeal ruled that racial profiling can rarely, if ever, be established with direct evidence because police officers will rarely admit to racial bias and as a result a trial judge faced with such a defence must assesss all of the circumstantial evidence and ask themself whether it raises an inference of racial profiling.

   In R  v.  W.(D) [1991] the Supreme Court of Canada set out the test for the assessment of credibility where a defendant testifies.  This case confirms that the assessment of credibility should not be a contest between the prosecution evidence and the defence evidence.  A defendant can be acquitted even where his or her evidence is rejected provided the evidence nonetheless leaves the trier of fact with reasonable doubt of a defendant's guilt.

   The learned trial judge in R   v.  Kampe did not subject the whole of the evidence to the scrutiny mandated by R   v.  Brown supra but instead made credibility findings against the Appellant and rejected his evidence without  making mention of R  v. Brown, supra.  One crucial piece of evidence in the case involved the failure of the police to investigate, charge and secure the identification of a European-Canadian woman who was in Mr. Kampe's vehicle with him during the incident and whom police witneeses acknowledged was at the very least a material witness.  This evidence of differential treatment on the part of the police I contend is circumstantial evidence of racial profiling and ought to have been factored into a R   v.  Brown analysis by the learned trial judge - not for the purpose of bolstering his credibility but as circumstantial evidence of a racial animus capable of raising a reasonable doubt in the trier's mind.

Court of Appeal's
Reasons on funding
application:

   The Court of Appeal ruled that there was no error on the part of the trial judge and hence no merit to the arguments raised above.  The court's representation of my arguement is not consistent with the very basic argument set out in my factum and recorded above.  I will copy them verbatim below and try to address them accordingly:

[14]   "He argues that, had the trial judge properly considered all the circumstantial evidence, she would have inferred that the applicant had been racially profiled and would have accepted his testimony."

[15]   "Counsel for the applicant also proposes to renew on appeal his argument that the trial judge should have drawn an adverse inference from the Crown's failure to call the passenger as a witness.  He submits that an important aspect of the circumstantial evidence is that, as the police witnesses acknowledged under cross examination, the passenger had material evidence to give.  The trial judge should have inferred that she would have corroborated the applicant's testimony."

[22]   "There is nothing in Brown that supports the contention that the trial judge erred in principle in failing to draw and adverse inference from the fact that the Crown did not call the passenger as a witness."

Analysis and Commentary:

   It is settled law that a trial judge can acquit even where they categorically reject a defendant's evidence.  The inquiry with respect to reasonable doubt of a defendant's guilt is not whose evidence do I accept - prosecution or defence.  The Court of Appeal for Ontario held in  R   v.  Brown a defence of racial profiling will rarely be proven by direct evidence.  It must be proven by inference drawn from circumstantial evidence.  As this case illustrates there is a real danger that trial judges can circumvent the holding in R  v.  Brown supra on the point of racial profiling by merely rejecting a defendant's evidence.  Is the Court of Appeal suggesting that an R   v.  Brown analysis is not warranted where the defendant testifies to police planting evidence ?   or is the Court of Appeal suggesting that evidence showing a clearly differential application of the law as between an African-Canadian man and his European-Canadian female passenger is not evidence of racial profiling which trial judges ought to consider in a criminal trial ?  With the greatest of respect, this is bad law.  It brings us back in time to a place and time when "the black man had no rights that the white man had to respect."  Racial profiling is by its very nature a denial of the right to the equal protection and application of the law without discrimination based on race.

Justice Andre Appointed to Ontario Superior Court

   Justice Irving Andre of the Ontario Court of Justice has been appointed to the Superior Court of Justice effective November 11th, 2012.  Justice Andre - who practiced both as a criminal defence counsel and a Crown Attorney brings with him a wealth of skill and knowledge beyond criminal law. He is one of few sitting judges to hold a doctoral level degree in law.

   Mr. Justice Andre joins a small class of judges including Justice Ian MacDonnell and Justice Gary Trotter who started their judicial careers in the Ontario Court of Justice and were elevated to the Superior Court.  Justice MacDonnell represented the Ministry of the Attorney General for Ontario in numerous cases before the Supreme Court of Canada.  Justice Trotter was a highly respected legal scholar and former Associate Dean at Queen's University Law School.

  

 

R v. Kampe: Was there a s.15 violation ?

   In R   v.  Kampe 2011 ONSC 5963 the trial judge after hearing viva voce testimony from the defendant that the police planted drugs on his person and a digital scale in his car to implicate him in a crime because of his race found the defendant guilty without any reference to R  v.  Brown  2003 Canli 52142 and most importantly without subjecting the whole of the trial evidence to the question of whether or not it raised an inference of racial profiling/denial of equality.  The trial judge went on to make the following rulings:

[22] "The constitutionality of the conduct of the police was not challenged. No applications were brought by Mr. Kampe alleging the violation of his rights under the Charter or related to the non-disclosure of the name of the passenger";

[30] "The officers denied Mr. Kampe's allegation that they targeted him because he was a black man, fabricated the story that he had crack cocaine in his possession, and produced crack cocaine and a digital scale that was not found on Mr. Kampe or in the car in order to substantiate their allegations.  Prior to November 16, 2009, the officers did not know Mr. Kampe."

[31] "I find the evidence of the police officers to be credible and reliable";

[37] "I do not believe the evidence of Mr. Kampe, nor does it leave me with a reasonable doubt. On the basis of the evidence I do accept as credible and reliable, I am satisfied beyond a reasonable doubt that Mr. Kampe was in possession of 5.06 grams of crack cocaine on November 16, 2009."

   In this follow-up piece I wish to further analyze the learned trial judge's ruling on this point in an effort to demonstrate that in the context of a racial profiling defence alleging evidence planting by the police that it is not mandatory to bring a preliminary Charter application seeking to exclude the allegedly seized items or to obtain the European-Canadian passenger's identification particulars.  The reason for this is simple.  The constitutionality of the police conduct is not engaged by the alleged seizure or the faiure to produce the passenger's idetification particulars.  Rather, the Charter is engaged by the defendant's testimony of the planting of evidence and the patently differential treatment between the African-Canadian driver and the European-Canadian passenger.  In the circumstances of this case both the driver and the passenger are parties to the offence of possession of a controlled substance.  The trial judge made the following finding of fact on possession:  [28] "The substance of the officers' evidence is that Mr. Kampe was sitting in a car with a woman with the interior light on looking at a piece of crack cocaine."

s.15 violation:   

   Accordingly to charge the African-Canadian driver and not the European-Canadian passenger is a prima facie violation of section 15 of the Charter since this omission in charging and obtaining her particulars is on its face a differential application of the law.  Clearly, no investigation was made into the crucial point - assuming the police theory to be correct - of whether the passenger was the seller of the substance and the defendant the buyer - both of which are serious crimes.  There is no onus on Mr. Kampe to find and bring her to court.

   By virtue of establishing this crucial differntial treatment in the application of the law the actions of the police were squarely under constituional scrutiny under section 15 of the Charter and the trial judge was duty bound to entertain the racial profiling/denial of equality defence in the manner mandated by R   v.  Brown supra.  The learned trial judge was required to recognize that according to the Court of Appeal racial profiling will rarely be established by direct evidence since no officer will admit that they were motivated by a racial animus in the execution of their duty and to ask herself whether the whole of the evidence raises an inference of racial profiling/denial of equality.  The trial judge's Reasons for Judgement are silent on this point.  Indeed the following statement by the trial judge supports the reasonable conclusion that she failed to appreciate the racial profiling/denial of equality defence advanced by the defendant:

[36] "Mr. Guiste asks me to draw an adverse inference from the fact that the woman in the car with Mr. Kampe was not called as a witness.  He asks me to infer that she would have confirmed Mr. Kampe's evidence about what happened that evening.  I agree with Mr. Guiste that P.C. Lee's failure to make a note of the woman's name that evening or investigate her further is unusual."   

Is Evidence Planting a Seizure
under s.8:

   The assertion that the police have planted evidence on a citizen is a very serious allegation.  The assertion that the police have so acted because they were motivated by a racial animus either intentional or systemic discrimination is even more serious.  In reading the learned trial judge's reasons for judgement in R  v. Kampe supra it is not clear on her reasons why and how she concluded that "The constitutionality of the conduct of the police was not challenged."  I can only guess that the learned trial judge felt that I ought to have brought a preliminary Charter application seeking to exclude the evidence as an unlawful search and seizure under section 8 of the Charter and by not proceeding in that fashion Mr. Kampe's right to life, liberty and security of the person under section 7 was spent.  Again, in light of the lack of particularity in the reasons for judgment I can only guess that the Crown's failure to ensure that the passenger's indentification particulars were disclosed to the defence was resolved in a similar fashion.  That is - because I did not bring a preliminary motion seeking relief for this omission then consequently Mr. Kampe's rights under section 7 of the Charter are spent.

    Some of my colleagues in the profession have suggested that a preliminary Charter application was necessary in this case. I love and respect my colleagues dearly but I have some serious difficulty with this position.  Firstly, what would this application look like ?  Let us assume I brought an application seeking to exclude the crack cocaine under section 8 of the Charter.  Is the planting of evidence by the police a seizure ?  What would my evidence on this application look like ?  The only evidence I can call is my client's.  The Crown would in turn call the three officers and my application would be denied.  The same would be true if I brought the application alleging a section 7 breach.  How about a preliminary section 15 application on the theory of differential treatment between Mr. Kampe and his passenger ?  Secondly, the onus would be on the applicant to establish the violation on a balance of probabilities.  I fail to see from a practical level how this could be done. The question I see flowing from the facts of R  v.  Kampe supra is did the trial judge err in law by not entertaining the section 15 Charter violation and in subjecting the whole of the evidence to R  v.  Brown scrutiny ?

   What do you think ?


  

  

Police Reports on Christie Pits Suspect Raises Questions

   According to media reports Toronto Police claim that prior to the arrest on or about October 22nd, 2012 they were monitoring the movements of the charged young person.  If this is true - it suggests that Toronto Police were aware of the suspect's age prior to his arrest.  In addition, media reports quote police sources as suggesting that Toronto Police Service officials were in contact with police officials in another jurisdiction in and around September, 2012 when the suspect is said to have made a visit there.  According to one media report of October 24th, 2012 Toronto Police officials "alerted" those police officials of the pending visit by the young person.  This news report seems to suggest that the purpose of the young person's visit was connected to his uncle - the person said to be responsible for the young person - telling him "to keep a low profile."

   The above noted information - which must have originated from the Toronto Police Service raises the following very important questions:

- When and how did Toronto Police officials first become aware of the alleged young person suspect ?
- What were the factual circumstances in which the female officers "put themselves in harms way" to bring
about the arrest ?
- Were female police officers used as "bait" and how far did they go to entice ?
- It is suggested that police alerted another jurisdiction about the young person.  This suggests they knew his name and particulars.  How did they get this and when - since the young person is said to have no crimimal record.
- The media report referenced above quotes the uncle as stating he told him to "keep a low profile".  What is the source of that information ?
- Assuming the police alert story to be true - was it lawful ?
- Why did police officials release the information regarding the "alert" story ?

Christie Pitts Rapist ? Sting Operation ?

   Listening to the mainstream media yesterday report and discuss the recent arrest of a 15 year old boy in connection with what police suggest was a series of sexual assaults on ramdom women in the Christie Pitts area I got the impression that the young person was already tried, adjudged guilty and awaiting sentencing.  The fact that this young person is supposed to enjoy the presumption of innocence under our law was totally lost in the reporting.  The cries of "innocense" and "set up" by individuals connected to the young person and reported in the mainstream press were reported as a mere afterthought.  The thrust of the reporting and discussion focussed on the young person's "perversion" as opposed to "alleged perversion"and the penalty he should receive.

   The purpose of this brief piece is to illustrate the short-comings of the mainstream media reporting on this very important case involivng a 15 year old child accused of very, very serious wrong-doing in circumstances that call for greater scrutiny and openness in the prosecution process. As it stands the public can not know the circumstances which led to this young person's arrest unless they attend court. The reality is that the police are in total control of all of the facts.

   Did the police employ a sting-type operation in the arrest and charge of this young person ?  A sting-type operation in the circumstances of a sexual assault charge is where the police effectively use an undercover officer to entice a person to touch them and charge them for so doing.  In 2002 I asked the Supreme Court of Canada to answer whether such sting operations were a violation of the Charter in the context of a gay sting operation carried out by Waterloo Region Police Service. The rationale underlying my thinking is that the offence of sexual assault is not amendable to this type of clandestine operation because sexual contact is not prima facie illegal unlike drug trafficking and soliciting for the purpose of prostitution.  For sexual contact to become a crime requires a lack of consent.  When the state invites sexual contact only to characterize the response as a crime this is clearly an abuse of process.  The National Post recognized this important point in their editorial on Webb  v.  Waterloo Region Police entitled Police Indecency some years ago. 

   My review of the press conference and the manner in which the 15 year old suspect was processed raises serious questions pointing in the direction that police employed a sting-type operation in the arrest of this young person.  Setting aside the constitutionality of these sting-type operations with respect to the offence of sexual assault, the more troubling question is the fact that - assuming this was the manner of capture - it does not necessarily follow that the suspect was involved in other offences.  The following are the facts as I have been able to gleen which support the contention that a sting-type operation may have been used:

- The history of the complaints.  They come immediately following public questions about public safety and police effectiveness flowing from the recent shootings.
- Vagueness in historical i.d.  What did the reports of i.d. suggest ?
- Use of the media.  Press conference at time of bail hearing.  The National Post's story was published befofre the bail hearing was concluded it appears.
- Bail denied to young person
- Chief Blair quoted as saying - "not a sting"
- Chief Blair quoted on the TPS website as "We had women in our organization who put themselves in harms way and went into that community and put themselves at risk knowing that, if they were successful in their mission, they could also be the victim of an assault."

Commentary:

   The offence of sexual assault is a very serious matter for victims and the whole of society.  History has shown however that it is often improperly used by police.  When police in Waterloo wanted to stop gay men from crusing in Kitchener's Homer Watson Park they sent in P.C.  Gillingham to play the role of a gay decoy and two men were arrested for sexual assaulting him and a press conferences was called soon after the arrests praising the good police work in "cleaning the park of homosexual activity."

   I had an uneasy feeling when I heard of the young person's arrest and my concerns have been become more serious in light of the words of Chief Blair and the very careful optics at the press conference and the very careful use of what I describe as "controlling the issue".  Controlling the issue means that the police are in total control of the facts on this story.  The victims in a sexual assault are traditionally shielded.  I suspect that this is likely the case here.  The fact that the suspect is a 15 year old means that the media's ability to scrutenize the facts and the story itself is almost impossible.  My dad always told me that all that glitters is not necessarily gold.  I see what daddy meant.  I just wish that others -especially our mainstream media were a little bit more vigilant in at least attempting to get the real story and not simply what they are fed by the police. It is my sense that the real story here has yet to be uncovered.  Is this an example of what the Toronto Police Service learned from the Jane Doe case ?     

   

  

ALERT - POLICE CLAIMS - LIMITATION PERIODS

In 2002 the Limitations Act, 2002 s.4 repealed the Public Authorities Protection Act, s.7 and allowed for a two year limitation period for actions against, amongst other public authorities, police services in Ontario.  Previously the limitation period was six months.

If you settled an action against a police service in Ontario involving claims discovered after December 31, 2003 you may wish to look into whether or not your settlement may have been entered into on the erroneous basis of the previous six month limitation period provided for by the Public Authorities Protection Act for a fraction of the value of the claim.  Of course, there is no gurantee that your settlement will be re-opened.  However, depending on the factual circumstances of your case you may wish to speak to a lawyer.

Racial Profiling/Denial of Equality: A Defence With a Constitutional Dimension

A few years ago I suggested that the term and concept of "racial profiling" as that term has come to be used in the criminal law jurisprudence in Ontario required some fine-tuning. I felt then that the term "racial profiling" failed to recognize the very serious constitutional dimension of the harm done to the victim and indeed the adminstration of justice by the act or omission. I suggested then that the term racial profiling/denial of equality better captured the full scope of the wrong and the defence. The rationale for my thinking rests in the fact that inherent in any act of racial profiling is a denial of the rights of equality before and under the law and the right to life, liberty and security of the person when the act is in the context of the enforcement of the criminal law.

The conventional wisdom seems to believe that the defence of racial profiling is limited to a preliminary procedural application to exclude evidence under section 24 of the Charter.  This is incorrect in my view.  Racial profiling is not limited to racially motivated car stops and preliminary procedural applications.  Racial profiling can indeed found the basis for a substantive defence when the defendant takes the stand and testifies for example that the police planted drugs on his person.  Accordingly, racial profiling includes circumstances where police officers actually fabricate allegations- including the planting of evidence in support of a crime while relying on the pretext of public safety, officer safety or the fact that the area they are policing is a "high crime area" knowing full well that their word carries more weight than that of the victim in our courts of law - i.e. courts will typically attach reasonableness to their acts and omissions.

In R  v.  Kampe 2011 ONSC 5963 I defended a man of African-Canadian racial background on criminal charges of possession of cocaine for the purpose of trafficking where the defence involved a racial profiling/denial of equality defence in that the defendant took the stand and testified that he committed no crime and that the police officers planted the cocaine on his person and a digital scale in his car.  In my submissions I specifically invited the court to take judicial notice of the fact of racial discrimination towards individuals of African-Canadian racial background in the Ontario criminal justistic system.  I pointed the court to the following legal authorities and even provided the court with copies:  R  v.  Spence [2005] 3 S.C.R. 458, R  v.  Williams [1998] 1 S.C.R. 1128, R  v.  Parks (1993) 84 C.C.C. (3d) 345, R  v. Brown 2003 Canlii 52142 and the Inquiry Into Discrimination into the Criminal Justice System in Ontario.  The trial judge found the defendant guilty and sentenced him to 15 months jail.(see R   v. Kampe supra)  She ruled that there was in fact no Charter issues raised by the defendant.  

Through a brief analysis of the reasons for judgment in R  v. Kampe supra I hope to shed some light on what I perceive to be some fundamental flaws in that decision and provide some guidance on this emerging line of defence in our criminal law.

Basic Facts:
(taken from the Reasons for Judgment)

[5]   Three police officers were involved in the events leading to the charges against Mr. Kampe - P.C. Fagu, P.C. Lee and P.C. Ahmed.  They testified at trial as follows.  On November 16, 2009 in the eventing, they were in uniform on general patrol in an unmarked police van in the north end of Rexdale.  The three officers were attached to the Community Response Unit of 23 Division, a unit that deals with community complaints.  Their duties as members of the Community Response Unit included patrolling "high crime" area within 23 Division.  These areas had a high incidence of drug trafficking, drug use, prostitution, noise and drinking.

[6]   At about 10:35 p.m., the officers drove into the parking lot of 121 Kendelton Drive, an area known to the officers as a "high crime" area.  They noticed a grey Chevy Malibu with its interior lights on backed in to a parking spot in front of 121 Kindelton Drive.  This drew the officers' attention.  Officers Fagu and Ahmed noted a male black driver and a female pasenger in the car.  Officer Lee noted a male black driver and a female white passenger in the car.  The officers drove their van past the front of the parked car, stopped, got out, and approached the parked car from the rear.  Officer Fagu approached the driver's side with P.C. Ahmed behind him.  P.C. Lee approached the passenger's side.

[7]   P.C. Fagu testified that while standing just behind the pillar between the driver's door and the rear passenger door, he saw the male looking down in his lap at a piece of what appeared to be crack cocaine.  He was able to observe this for a few seconds before Mr. Kampe noticed him.  Once Mr. Kampe saw him he closed his right hand and put his left hand on top.  P.C. Fagu ordered him to open his hand.  Mr. Kampe then moved his hand to the right side of his body and put it in his right pocket, according to P.C. Fagu.

[8]   P.C.  Lee testified that he heard P.C.. Fagu order Mr. Kampe to open his hand and saw Mr. Kampe put his clenched right hand in his jacket pocket.  P.C. Lee reached across the passenger and grabbed Mr. Kampe's wrist out of his jacket pocket.  Mr. Kampe's hand was empty.

[9]   Officers Fagu and Ahmed testified that they each took control of one of Mr. Kampe's arms and removed him from the car.  PC. Lee came around to the driver's side of the car, and whiel the other officers had Mr. Kampe's arms, he reached in to Mr. Kampe's right jacket pocket and removed a piece of crack cocaine that was wrapped and tied in plastice wrap.....[10] During the pat down, Officer Ahmed testified that he found a cell phone and $404.40 on Mr. Kampe.

[11]   Officer Fagu testified that he searched the car and found a silver digital scale in working order between the driver's seat and the centre console, and two pieces of plastic wrap on the floor of the driver's side.  The car had been rented from Avis.

Mr. Kampe's evidence:

[13]   Mr. Kampe testified and related an entirely different version of events than the officers.  He testified that he had just gotten into the car with a woman he had met earlier that day when an unmarked police car sped sped in front of his car and cut him off.  Three officers approached the car from the front and came to the driver's door.  The officers searched him.  P.C. Lee did not find crack cocaine in his jacket pocket.  None of the officers said anything about finding crack cocaine or a scale at the scene, nor did they show him any crack cocaine or scale at the scene.  He did not have any crack cocaine.  He had never seen the scale before being paraded before the Staff Sergeant 23 Division that evening.  The police have fabricated the story that the crack cocaine was found in his jacket and the scale was found in the car. The money and cell phone that were seized from him belonged to him.

[15]   Mr. Kampe testified that he has been the victim of harassment, arbitrary detention, humiliation, assaults, racial profiling and other violations at the hands of members of the Toronto Police Services.  He has made complaints about the conduct of the police to the Ontario Human Rights Tribunal.  The implication of his evidence that the police have fabricated these allegations is that this is a further example of racial profiling by members of the Toronto Police Service.  Mr. Kampe testified that,  prior to November 16, 2009, he had never had any dealing with the three officers who arrested him.

[16]   Each of the three officers denied Mr. Kampe's allegations that they targeted him because he was black and that they fabricated these allegations against Mr. Kampe.

The passenger

[17]   The defence made a great deal of the fact that the Crown has neither called the female passenger as a witness nor disclosed her identity to the defence.

[18]   Officers Fagu and Ahmed testified that they did not interact with the passenger at all that evening. Their focus and attention were on Mr. Kampe.

[19]   P.C. Lee testified that when he approached the passenger's side of the car, the female saw him immediately and opened the door.  He asked her who she was and why she was there.  She identified herself with an Ontario Health card.  She appeared intoxicated.  P.C. Lee called for a scout car and a female police officer.  Other officers arrived in a scout car and the female went with those officers.  P.C. Lee believes the other officers took her to a bus stop.  P.C. Lee testified that he did not make a note of her name in his notebook.  He did not believe he had grounds to arrest her.  He did not search her.  He agreed with Mr. Guiste that she would have heard the events that unfolded that evening.

[35]   Mr. Kampe spent a great deal of time during his testimony explaining that he had been the victim of police harassment on numerous occasions due to his race.  Mr. Guiste's final submission was that these charges were yet another example of racial profiling and tunnel vision on behalf of members of the Toronto Police Services. I do not accept this submission.  The fact that Mr. Kampe believes that the police have harassed him in the past does not lead to the conclusion that three officers, with whom he has never previously had any contact, would randomly target him, assault him and fabricate evidence of a serious criminal offence.

[36]   Mr. Guiste also asks me to draw an adverse inference from the fact that the woman in the car with Mr. Kampe was not called as a witness.  He asked me to infer that she would have confirmed Mr. Kampe's evidence about what happened that evening.  I agree with Mr. Guiste that P.C. Lee's failure to make a note of the woman's name that evening or investigate her further is unusual.  On the other hand, on the evening in question, Mr. Kampe knew the woman's name, her telephone number and her address.  P.C.  Lee testified that once he heard P.C. Fagu order Mr. Kampe to open his hand, his attention became focused on Mr. Kampe.  This makes sense to me.  I am unable to infer from the failure of the woman to testify that she would have supported either Mr. Kampe's version of the events or the police officers' version.  The absence of her evidence does not logically give rise to a reasonable doubt in this case.

[37]   I do not believe the evidence of Mr. Kampe, nor does it leave me with a reasonable doubt.  On the basis of the evidence I do accept as credible and reliable, I am satisfied beyond a reasonable doubt that Mr. Kampe was in possession of 5.06 grams of crack cocaine on November 16, 2009.

[39]   I find Mr. Kampe guilty of possession of cocaine for the purpose of trafficking.

Analysis and commentary:

The trial judge's Reasons for Judgment make it crystal clear that she did not take judicial notice of the phenomenon of racial discrimination in the criminal justice system as I requested and she did not subject the evidence before her to the scrutiny set down by the Court of Appeal for Ontario in R   v.  Brown 2003 Canlii 52142.  Instead the trial judge did exactly what I understood from R   v.  Brown supra that a trial judge ought not to do, namely, restrict their inquiry into the evidence to direct evidence and a credibility contest between the police version and that of the defendant.  The trial record is clear that the trial judge failed to consider whether the following facts invited a reasonable inference of racial profiling and thus raised a reasonable doubt:


              1.  Primia facie differential treatment between the defendant and his passenger;
              2.  Defendant is charged while she is not even though based on the police account
                   she was looking at the substance said to be in his hand;
              3.  Police do not obtain her name and address although they acknowledged under
                   cross-exam that she had material evidence to give;
              4.  Officers testified that they "snuck up" on the defendant's car from the rear
                   because he had the inner light on and this was suspicious.  In cross-examination
                   P.C. Fagu maintained that he would do the same thing - i.e. sneak up from the
                   rear - if he saw a car with an older white couple parked in the lot of the
                  O'Keefe Centre with its interior light on; and
              5.  The defendant testified that the police cut him off and more or less ambushed him.

I am troubled by the trial judge's declaration that the constitutionality of the conduct of the police was not challenged.  At paragraph 22 she wrote, "The constitutionality of the conduct of the police was not challenged.  No applications were brought by Mr. Kampe alleging a breach of his rights under the Charter, or related to the non-disclosure of the name of the passenger." 

The evidentiary record in this trial is clear from beginning to end that the crux of the defence to the allegations was that Mr. Kampe committed no crime and that the police planted drugs on his person and in his vehicle in order to implicate him on account of his race.  The fact that he lived in the area which the police characterized as a "high crime area" makes him a potential target of the racial profiling he testified to.  I can think of no greater constitutional wrong than for the state to wrongly implicate a man in criminality on account of his race.  In the context of our Charter this set of circumstances engages a multitude of Charter rights including the right of freedom of association, the right to life liberty and security of the person and the right to be safe against unreasonable seizure.  The nature of Mr. Kampe's testimony combined with the facts which flowed from the three police officers brought the conduct of the police officers squarely under constitutional scrutiny.  The courts are the guardians of the constitution.  A trial judge sitting on a criminal case is free to find constitutional violations where the evidence and the nature of the defence invites it.  It is their duty to so act.  In the case of Mr. Kampe I can not help but wonder whether the trial judge would have taken the same view of the failure of the police to secure the passenger's identification if Mr. Kampe had been accused of shooting and killing one of the police officers instead of merely possession of crack cocaine. Clearly the evidence of the independent witness(passenger) would be highly relevant if Mr. Kampe's position was that he did not kill the officer it was in fact his fellow officer who shot and killed him and planted the murder weapon on him. 

Note:  This case comment is written for the express purpose of drawing attention to an issue of public importance in the criminal justice system.

Obama: America's Saviour

     America is clearly not what it used to be in terms of economic efficiency and superiority.  Gone are the days when one landed a job following high school at Ford or General Electric and that job lasted for 30 or 40 years, allowed one to buy a modest home, raise a family and even have something they called a pension - which entitled one to income post retirement.  In today's America job security and retirement pensions have - like full-employment - become the target of self-proclaimed businesss-conscious leaders whose misguided ideas on economic efficiency and the operation of government have been a major contributing factor to America's steady economic decline. The vast majority of Americans can attest to the  growing sense of economic insecurity.  Media accounts are rampant with business failures and job loss.  Municipal governments, school boards, police forces and even state bar associations have been
the victims of bankruptcy.

     The human cost associated with the current economic reality in America is far from being evenly distributed among the population.  Lower and middle income Americans are suffering a disproportionate share of the associated human suffering.  Escalating cost of living and declining family income is the norm.  In many parts of America today if two spouses are working that is a blessing.  Disturbingly, the top 10 per cent of income earners in America are immune from this suffering.  Their incomes are steadily increasing at unprecedented rates.

     A government is not a business.  It can not be run like a business.  The recent experience with the near collaspe of the auto-industry is a splendid example to illustrate this point.  President Barack Obama acted decisively to shore-up this fundamental component of the American economy because the failure of these businesses transcended the financial interests of their owners.  Critics advocating the business model for the running of the government were highly dismissive of the wisdom of this policy at the time. It proved to be a sound governmental policy decision.  This is what retired General Motors Vice-Chairman, Bob Lutz who describes himself as a conservtive and a Republican had to say:

                                   "He just went in and he put the right team
                                    together and he got it done and the results
                                    are there for all to see, and I think you
                                    have to give credit where credit is due."

The American people who are suffering the brunt of the current ecomonic decline can not afford for America to go bankrupt.  They, unlike the 10% of the top-earners are unsecured creditors in much the same way as when the plants they work at go bankrupt and move to Mexico and the like.  They stand nothing to gain from a bankruptcy and everything to lose.  One may disagree on whether or not Mr. Obama lived up to expectations.  He may or he may not have.  The point is that amongst the current candidates he is America's best hope of regaining its economic position and avoiding economic ruin.  It is that simple.

  

      

Christine Sinclair - More Than an Elite Althlete

                              "Unthinking respect for authority
                                is the greatest enemy of truth."

    I published this post about Christing Sinclair in 2012.  Now that she has retired from international soccer it is fitting that it be republished.
                                        

     The above-noted quote from none other than Albert Einstein caputures the essence of why Christine Sinclair was a fitting candidate to be Canada's flag-bearer during the closing ceremony of the London 2012 Olympics yesterday.  Individuals who stand up and speak their mind on issues of fairness and social justice are rare.  History shows us that it is those individuals who are almost always the ones responsible for progressive social change.  Althletes who are prepared to speak up on issues of fairness and social justice are perhaps even rarer still.  The vast majority of us would prefer to go along with the status quo  however morally reprehensible that status quo may be because it is secure. It is that yearning for security that impeades us from standing up and taking action in circumstances like the Sandusky/Penn State affair.  The late Joe Paterno understood that bringing the crimes he had knowledge of to the attention of the authorities had a price.  For him and for most individuals in society that price is too high a cost for them to commit and do the right thing.

     Christine Sinclair - through the courage she displayed in speaking out on what she and many others around the world saw as a pattern and practice of unfair and questionable officiating in FIFA regulated soccer - has elevated herself to a class of elite human beings.  It is one thing to be on top of your game. Christine Sinclair is clearly on top of her game.  However, to be on top of your game and have the courage to stand up - speak one's mind - in an effort to bring about change - regardless of the cost - is what puts Ms. Sinclair in that elite class of human beings.   

Perdita Felicien Victim of Arbitrary I.A.A.F.Rule-Making

     Canadian track fans and Perdita Felician herself were both wronged when Ms. Felecian was banned from participating in the 2012 Olympics on account of one false start during the recent Canadian qualifying meet.  Ms. Felician who is clearly the most talented and accomplished female hurdler in Canada was awarded a false start during the Olympic qualifying event earlier this year.  In order to qualify for Canada's national team Ms. Felicien required a minimum third place in the qualifying race.  She ran the race under protest of the false start.  She came in third but on account of the false start she was disqualified and consequently not eligible to represent Canada at the London Olympics.

    I understand and appreciate the necessity for rules and regulations.  No one - including myself - would argue against the need for rules and regulations with respect to the governance of sports like track and field.  However, rules and regulations that make no sense and are arbitrary and oppressive have no place in sport or any other endeavor for that matter.  False starts in events like the event that Ms. Felicien was involved in are clearly a regular and normal occurence for which one ought not to be punished unless it can be shown objectively that the act was deliberate.

     A single involuntary or inadvertent act is not something that sports regulators  or decision makers ought to use as a basis to deny an athlete from participating in the Olympics.  How such a rule was passed and has yet to be challenged is something I find most disturbing.  Of course the I.A.A.F. and its supporters will point to the fact that none other than The World's Fastest Man - Usain Bolt has endorsed the rule.  However, I am not impressed by this.  The rule is arbitrary and oppressive on its face.  Inadvertence should never be the basis for disqualification.  Under the predecessor rule a warning was provided to the field and any subsequent false start resulted in disqualification.  I see the logic in that rule.  I fail to see any logic in this "new and improved" rule.  I just do not.  I am most curious to know whether or not Athletics Canada's hands were tied on account of this "disqualification".  If they were not so bound then they failed Perdita Felicien and Canadian track and field fans.

Olympic Games: "Have nations" vs. "Have not nations" - We can do better

     In years past I always looked forward to the Olympic Games - summer or winter.  They say that age brings knowldege and wisdom.  I don't know about you but I find that my overall interest and support for the Olympic Games is rapidly declining as I age.  Last nights opening ceremony left me with the feeling that the Olympic Games is no more than an event for the "have nations" or those who believe themselves to be "have nations" to compete and party lavishly among themselves. 

     Don't get me wrong.  I am an avid sports fan.  I love sport and competition.  As a young man I played hockey, soccer and I boxed competively until my first year at McGill University.  As a result of my exposure to compettitive sport I know perhaps better than the average person that developing high level atheletes is less a function of natural ability than a function of having the means to invest in training and development.  Germany, Japan, U.S.A., China and other "have nations" produce successful athletes because they have the economic means to do so.  Countries like Dominica and the Phillipines don't produce successful athletes because they do not have the means to. It is that simple. 

     The Olympic Games, the Olympic spirt and sports fans would be better served if the I.O.C. in collaboration with the "have nations" was to place greater emphasis on ensuring that the "have not nations" have the means to train and develop their athletes.  This little step would increase the level of competition and would ensure the continued survival of the Olympic Games.  Competition where the "have nations" win consistently and the "have not nations" are merely happy to be at the party is not what I thought the Olympic spirt was all about.  There is as far as I can see no justifiable reason why the I.O.C. and the governments of the "have nations" are unable to ensure that the "have not nations" are better able to train and develop their athletes. 

        

Gun Violence Linked to Absence of Equality of Opportunity

     Gun violence in Toronto will not stop through increased police presence.  Gun violence in Toronto will not stop with harsher sentences for those convicted of such crimes.  Gun violence in Toronto will not stop by the City of Toronto or any other level of government handing out a few dollars so that one or two individuals in the so called "high crime neigborhoods" can have a summer job for two months.

     Gun violence in Toronto is a manifestation of the poor policy decisions which our policy makers have continued to make in spite of the overwhelming evidence that there is a glaring absence of equality of opportunity for the vast majority of Toronto's African-Canadians.  Some months ago I wrote a post stating that I have never seen an African-Canadian firefighter in Canada.  Believe it or not this is a fact.  I have never.  Firefighting is a very stable and well paying job.  The reality is that these stable and well paying jobs are not available to African-Canadians.  A few years ago I encountered a young African-Canadian man working as a verbatim reporter at an Examiner's Office.  He informed me that he had a Bachelor of Arts Degree from York University and had been trying to join the Toronto Police Service first as a police constable and then as a court officer without success.  The fact is I personally know individuals of European descent without high school diplomas who are court officer supervisors.  Have you ever come across an African-Canadian paramedic in Toronto ?  I have never.  Within the past year I have come across at least three African-Canadians who have obtained their teachers certification in Ontario but for some reason are unable to obtain a position with any of the numerous school boards in the Greater Toronto Area.  As a lawyer of African-Canadian descent I am perpetually bombarded with applications from African-Canadian lawyers who inform me of their struggles in finding articling positions with law firms.

     The absence of equality of opportunity is not limited to employment.  There is a similarly glaring absence of equality of opportunity in terms of the resolution of both civil and criminal matters involving African-Canadians in our courts.  African-Canadians get tougher and longer sentences than anyone else even for the same crimes.  This is not E.J. Guiste's conclusion.  This was the conclusion arrrived at by the Ministry of the Attorney General for Ontario's own study entitled Report of the Commission on Systemic Racisim in the Criminal Justice System.   Have you ever heard of an African-Canadian being awarded compensation for the violation of their rights at the hands of the police in Ontario's Superior Court of Justice ?  I have been practicing law in this jurisdiction for close to twenty years now and I have never.  I have observed that from time to time the Human Rights Tribunal of Ontario has awarded compensation to African-Canadians on racial profiling cases.  However, when one considers the number of such claims which this tribunal dismisses without a hearing even the successes are insignificant.  How can it be that a group of people who public policy and case law in Canada has recognized are victims of discrimination and unequal treatment by police are somehow unable to accesss redress for the wrongs committed against them in the courts which their tax dollars help fund ? (see for example R  v. Brown - R  v. Parks - R  v. Spence)  Could it be that - assuming I am correct - that this reality effectively kills the spirit of these so called "at risk youth"and their parents and conveys to them that they can not trust the administration of justice to protect them ?

     The absence of equality of opportunity is not limited to employment and access to justice.  There exists a glaring absence of equality of opportunity in all levels of education but especially at the elementary and high school levels.  No intelligent person can argue that the quality of education which the so called "at risk" youth receive is anywhere equal to what the mainstream receive.  The quality and competence of the teachers is inferior.  The amount of access to extra-curricular activities is inferior.  Is there a link between the disproportionately high incidence of African-Canadian students dropping out of school and this absence of equality of opportunity in education ?  The fact is that young people who are out of school and have no marketable skills are more likley to turn to crime than those in school. 

     In conclusion, the decision by our policy makers to close their eyes and attention to this reality is unacceptable and is not in our collective best interests.  The Penn State/Sandusky-type approach being employed by our policy makers does not work.  In the same way that the now deceased Penn State head coach failed Mr. Sandusky's victims our policy makers are failing not only the so called "at risk" youth but all Canadians.  Equality of opportunity for all is the small price that we as a society must pay for a safe and just society.

          

Written Examination for Discovery:Economical & Effective

     While in California a few years ago I learned a most valuable little lesson.  I was introduced  to written examinations for discovery.   Rule 35 of the Ontario Rules of Civil Procedure provide for written examination for discovery.  I have since found that the time spent preparing for the oral discovery and then attending and asking the questions exceeded the time spent drafting the written questions. I can typically draft 100 - 150 questions within five hours or so.  Once those questions are drafted they are served on defence counsel and that is the end of my examination until I receive their answers in a sworn affidavit.  Compare and contrast this to the 5 hours plus of preparation for an oral discovery followed by additional 5 hours plus of oral discovery and add to this the examiner's attendance fee and the cost of the transcripts.  The written discovery can easily be done for under $1,500 while the oral discovery will easily cost double that plus the cost of the examiner's attendance fee and the cost of the transcript.  At the end of the day you are looking at $1,500 compared to a figure close to $5,000.  Of course,  this cost differential is nothing for lawyers representing defendants but significant when you are asserting the rights of individual against a corporate defendant or the state.

     Like any other aspect of trial preparation, written examination for discovery will only be successful if properly planned and executed.  Organize your questions into categories which relate to the material facts asserted in your statement of claim.  For example, under a category entitled "general backgroud" I like to ask questions going towards establishing the party that is being sued, insurance coverage for the claim and if it is an employment claim questions establishing the employer-employee relationship, tenure and the reason communicated for the dismissal.  Where the action involves one or more causes of action I will divide the questions into those causes of action.  For example, if it is negligence claim I will ask a series of questions under a subject-headed "negligence".  Where the claim involves negligence in terms of the acts and omissions of an employee or agent in conducting for example a workplace investigations or the like I make it a point to have the employer or their representative ask specific questions of the investigator.  It has been my personal experience that defence lawyers have a tough time with these type of questions and written examination for discovery generally.  It seems to make them work for their money and this is exactly what you want as a plaintiff lawyer. 

     The other bonus about written examination for discovery is that it is much easier and significantly more economical to prosecute undertakings and refusals since your answers are in the form of an affidavit and therefore you will not need to provide a transcript to the court, the defendant and for yourself.  Again, this is a huge saving for lawyers representing ordinary individuals.  In my experience, the cost of transcripts alone for such a motion can easily be $2,000.

    

The Right to Re-Examine Your Client on Discovery

     I can not count how many times I have sought to exercise my right to re-examine my client at a discovery only to be confronted by friendly and sometimes not so friendly resistance and a demand for authority for this right.  Surprisingly, most defence counsel that I have encountered in civil litigation in this jurisdiction are oblivious to this right provided by Rule 34.11(1) of the Ontario Rules of Civil Procedure.

     The right to re-examine on discovery is similar to but arguably broader than the right to re-examination in a trial setting.  While re-examination at trial is dependent on and limited to the content of the cross-examination, the right to re-examination on an examination for discovery should intuitively be broader for two reasons.  The first reason deals with the purpose and objective of discovery, namely, fact-finding.  It would be inconsistent with this objective to allow a party to limit its examination to those points which assist its case and effectively foreclose the other party's right or ability to bring out all of the relevant facts at the first opportunity to do so. The evil in such an approach is amplified by the fact that the Rules provide for the reading-in of another party's evidence from discovery at trial.  A proper re-examination can effectivly nullify any admission or gain by your oppent because you could argue that your opponent must read-in the entire examination. Accordingly, it is unlikely that your opponent will attempt to read-in at all.  The second reason flows from the fact that unlike trial you would not have had an opportunity to conduct an examination-in-chief on your client.

     Not surprisingly, there does not appear to be a wealth of cases touching on the scope of re-examination in discovery.  The one case I was able to find - Roumeliotis   v.   David 2004 CanLi 172093(Ont.S.C.) suggests that the proper scope of re-examination in the discovery context is limited to expanding and claryfying testimony from the other party's examination.  It is my sense that this holding may well be limited to the specific facts of that case.  In that case - which was a personal injury case - there appeared to be a single theory of liability or cause of action advanced.  In cases involving multiple theories of liability or causes of action that holding would arguably tend to be inconsistent with the over-all policy of seking the most cost-effective way of resolving disputes. In my experience the sooner the parties get to know the full extent of the case they have to meet the greater the chances of settlement. Hence, allowing a party to tell their full story can not hurt.  That party can not read-in its own evidence at trial.

Employers Beware of Punitive Damage Claims

     Employers who believe that they are  immune from an award of punitive damages flowing from the dismissal of an employee should re-evaluate their practices in light of Pate Estate  v.  Galway-Cavendish and Harvey Townships, 2011 ONSC 6620.  In Pate Estate the trial judge's initial award of $25,000 for punitive was sent back for re-trial on the question of the quantum of the award and was increaased to $550,000 by the trial judge following the re-trial.  The conduct on the part of the employer which resulted in such an award is something all employers ought to take serious note of and avoid.  This post is concerned only with this aspect of this significant decision.

 Basic Facts:

      John Gordon Pate worked as the Chief Building Official for the Township of Galway and Cavendish for roughly 9 years.  He subsequently worked as a building inspector for the amalgamated Townhsip of Galway-Cavendish and Harvey for some three months before being summarily dismissed from his employment on March 26, 1999.

False allegation of
criminal conduct:

     The employer told Mr. Pate that discrepancies had been discovered with respect to permit fees that had been paid to him but not remitted to them.  Mr. Pate was not provided with particulars; nor was he given an opportunity to respond to the allegations.  Instead, Mr. Pate was told that the matter woudl not be reported to the police if he resigned immediately.  Mr. Pate did not resign, the matter was reported to the police and charges were laid.  Following a four-day criminal trial Mr. Pate was acquitted of all charges.

Key Facts:

Withholidng exculpatory
evidence:

     Mr. Beaven, who was emplolyed by the employer, called the O.P.P.(Ontario Provincial Police) on April 14, 1999 and subsequently met with Officer Greg Stokes on April 19, 1999 and on April 20, 1999 Mr. Bevan provided Officer Stokes with statements he had prepared in relation to missing building permit fees.  At the criminal trial, evidence showed that Mr. Pate had in fact recorded receiving fees for one of the properrties under a name different from that of the property owner because he received the fees from the owner's son-in-law.  Mr. Pate had a note of this in a journal he kept.  However, Mr. Beaven seized the journal when Mr. Pate was terminated and did not forward it to the police.  Evidence led at the criminal trial also revealed that some of the property owners had in fact paid their fees at a satelite office operated by the employer prior to amalgamization and that many of the files for that office had been lost.  The employer was aware of these missing files but failed to inform the police of this crucial fact.  It also emerged during the criminal trial that in 1995 the employer had investigated one of the allegations and found no wrongdoing on the part of anyone.  This too was not revealed to the police.  Officer Stokes testified that had he known about the withheld information he would not have laid the charges.

Trial judge's rationale
for punitive damage award:

                         "I find that the actions of the Municipality in
                          withholding exculpatory evidence in this matter to
                          have been an arbitrary decision made by
                         one of its officers and which amounted to
                         reprehensible conduct.  Had the disclosure
                         been made, no criminal charges would have
                         been leveled against the Plaintiff in this matter. 
                         Such conduct, to this court, is a departure to
                         a marked degree from ordinary standards of
                        decent behaviour.  In ths case compensation
                        for wrongful dismissal does not answer the
                        fact that this Plaintiff's career as a municipal
                        official was destroyed as a result of the actions
                        of the Defendant.  The actions of the Defendant
                        were a contributing factor to the end of
                        the Plaintiff's marriage and perhaps even
                        to the business that he operated with his
                       spouse.  The Plaintiff suffered hummiliation in
                        the eyes of the public...." (supra at p.2)

Advice to employers:

     It does not pay to be arbitrary or high-handed in the manner of effecting a dismissal.  If you are going to assert cause you had better have the evidence to back it up.  Conducting any less than a fair and thorough investigation is always a bad idea - particularly when it is done by your employee(s).  Assisting the police in a criminal investigation is also not recommended.  If you as an employer are obligated by your rules or regualations to conduct an internal investigation before dismissal or calling in the police - it is not recommended that you state publicly that you discharged this duty when in fact you did not.  When it comes to avoiding punitive damage awards honesty and good faith is still the best policy. 
         

Note:  This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, punitive damages and how employers can curb their conduct to avoid them.

Mario Balotelli You're Now Welcome for Dinner !

     After scoring the two goals in Italy's 2-1 defeat of rival Germany recently Mario Balotelli is now welcome for dinner in the home of most Italians.  It is very likely that many an Italian father would now be proud to have his daughter date the new Italian hero.  By my personal observations and life experience many an Italian father has expressly told his son or daughter, "'never disrespect me or your grandfather by bringing home a moulie."  This is not to suggest that every Italian shares these views.  That is not my point.  Anyone who disputes this sentiment is ill-informed or unwilling to admit the truth or unable to handle the implications flowing from the truth.  The truth hurts sometimes. 

     As a rights litigation lawyer I am always fascinated by how the arts and sports has a way of causing us to bridge the racial divide and bring about orgasmic-type happiness.   It appears that the joy of the moment and the immense sense of national pride has the effect of - if not deleteing the feelings of discrimination and bigotry from our consciousness - at least intoxicating our spirts to the point where we overcome our fear and bigotry.

     Are there any life lessons here ?  Absolutely !   Mario Balotelli is no less Italian than any other player on the Italian team.  His race and colour are totally irrelevant considerations with respect to any assessment of his worth as a person.  The Italian father who believes that it would bring him disrespect for his children to marry a person of African descent needs to sit down and look inside himself and try to find out - why ?   Racial discrimination and bigotry are both morally and intellectully bankrupt.  That father should ask himself - would I feel the same way if Mario Balotelli asked for my daughter's hand in marriage today ?  I am not a scholar.  I am not an expert.  I am just a little guy who thinks a lot.  It is my sense from my life experience and observations that many, many Italian parents would now welcome Mario Balotelli home for dinner !

      

    

Justice Tulloch Elevated to Court of Appeal

     On June 22nd, 2012 the Canada's Justice Minister announced the appointment of Mr. Justice Michael Tulloch to the Court of Appeal for Ontario.  Justice Tulloch, who formerly sat on the Superior Court in Brampton, replaces Mr. Justice Harry Laforme. 

     The appointment of Mr. Justice Tulloch is noteworthy because in addition to his outstanding qualifications and experience as a criminal prosecutor, defence lawyer and as a trial judge in one of Canada's bussiest trial courts, he is a man of African-Canadian racial background originally from Jamaica.  To the best of my knowledge Mr. Justice Tulloch is the first person of African descent to sit on the Court of Appeal for Ontario.  Bora Laskin was the first Jewish Chief Justice of the Supreme Court of Canada.  History will show that some were critical of his appointment but that at the end of the day he went on to become one of the most influencial jurists not just in Canada but in the common law world.

Jews Yesterday African-Canadians Today: Diversity and Social Change in the Legal Profession

     Bora Laskin was one of the most talented and influencial jurists in the common law world by any standard.  He was also a highly accomplished legal scholar and labour arbitrator.  Bora Laskin possessed all of the skills and qualities which one would traditionaly expect of a lawyer. 

     However, with all of his skill and intellect Mr. Laskin had a very difficult time finding firms among Toronto's legal establishment in the 1930s who would hire him as an Articling Student -a mandatory practical placement which lawyers must complete as part of the licensing process. Mr. Laskin was Jewish.  In those days in keeping with the unwritten but well practiced policies Jews were for all intents and purposes not welcome in the legal profession.  In his publication entitled From Immigration to Integration: The Canadian Jewish Experience, Richard Menkis states, "In one glaring example just after WW II the Quebec Bar held its conference at a lodge that excluded Jews." One of the basis for exclusion of Jewish lawyers - especially among firms doing corporate commercial work - was that the clients were opposed to their hiring and they could not attract worthwhile corporate-commercial work.

     Jews were not alone in their exclusion from the legal profession.  Indeed, I recently came to learn that a group of Irish Catholics were forced to form their own firm, Holden, Day-Wilson as a direct result of their circumstances in the profession. 

     I do not profess to be an expert in these areas.  I will be the first to admit that I am no scholar and no expert.  History shows us that there are a wealth of other ethnic, religious and racial groups that have been similary excluded or discriminated against in the legal profession.  My goal here is simple and straightforward.  I wish to point out that discrimination and exclusion is not new to the legal profession.  It is not a phenomenon that has been thrust upon us by the advent of the increased numbers of African-Canadians, Asians and women who are joining the profession.  It has always been there.  The only difference is that the players or actors have changed.

Fast Forward to 2012:

     Today African-Canadian lawyers are disproportionatly unable to secure articling jobs of any sort and some observers have suggested that once qualified to practice law African-Canadian lawyers are disproporionately the subject of discipline proceedings.  Advocates for the status quo will argue that there are causes other than race for these phenomena.  On a micro-level there may well be deviations from the norm of exclusion or discrimination.  However, that arguement rings hallow in light of the historical experience of Jews and others in the profession.  Anyone who is unable to see the connection between the historical reality noted above and the current plight of lawyers of African-Canadian background in the profession today choses not to see it. 

     If anything - history shows us that the more things change the more they stay the same.  The reality is that Justice is not blind because the law deems her to be.  Justice can only be blind when we all believe in our hearts that all men are equal regardless of race and other irrelevant considerations such as race and religion.  The legal profession and the administration of justice is no more immune from discrimination than the rest of society.  Social change does not happen by accident.  Social change is the by-product of concerted and determined effort.  The reality is this.  Racial diversity in the legal profession and among our judiciary is a manifestation of social change.

Note:  This piece was written for the sole purpose of drawing attention to an issue of public importance and to enourage debate on that issue. 

    

Practical Tips for Retaining a Divorce Lawyer

The task of finding the right lawyer to handle one's divorce is a very challenging task.  Most individuals know very little about the myriad of laws which govern their family relationships and even less about how to go about finding the right lawyer to assist them.  The average family law litigant simply goes through the yellow pages or gets a refferal from a friend or family member.  Few family law clients think enought of conducting any research on the lawyer's approach and success rate.  The unfortunate result is that all too often family law clients end up in long, drawn-out and costly litigation with their assets substantially depleted along the way and all too often they end up representing themselves and being grossly disatisfied with the experience.  However, this unfortunate experience could be easily avoided.

Know your goals:

There is a myth that divorce and other family law disputes must be formally litigated.  Many family law litigants are quickly coming to understand that litigation is very costly and far from an effective dispute resolution method.  Accordingly, the first and perhaps most important thing that an individual seeking to go through a divorce or other family law issue ought to do is sit down and figure out what their goals and objectives are.  They can do this alone or they can do this with their spouse.  Ideally, it is best to do so with the other spouse.  This simple step can save one tens and often hundreads of thousands of dollars and the avoidance of needless stress and aggravation.  The client who has no awareness of their goals and objectives is more likely to end up in a long drawn out court battle when that likely could have been avoided if they took the time to identify their goals and develop a plan.

Research lawyers before
committing to one:

Like almost every other endeavour in life lawyering styles vary.  Some lawyers are skilled in litigation.  Some are not as skilled in litigation but may be skilled in dispute resolution and negotiation.  These are very different skill sets.  Hence, if what you are seeking is a collaborative approch to resolving your family law dispute it would make sense to seek out a lawyer who is skilled in this approach and has a reputation for a collaborative approach rather than a litigious one.  Do not be afraid to inform the lawyer of what you wish to accomplish, how you wish to accomplish it and inquire about their experience with a non-litigous and collaborative approach.


Consider the costs
financial and health wise:

More often than not family law litigants are ill-prepared for the staggering costs associated with their legal proceedings.  One of the reasons for this is rooted in their failure to first ascertain their goals and then take some time to seek out the proper lawyer for their case.  The norm is for each spouse to simply retain a lawyer and litigation is commenced.  In many  cases the actual cost of the litigation is deferred until family law assets are dealt with.  The cost differntial between a negotiated resolution and a litigation resolution is staggering.  It may be that what one really needs is a consent divorce and separation agreement rather than a muli-year, stress-filled and unpredictable court battle.  That is a decision that the client should make at the outset.

Bail System Unfairly Criticized

     The recent barrage of criticism of the bail system in recent weeks by the mainstream media is unfounded and has the potential to further erode the fundamental tenet of the presumption of innocenc and the right to one's liberty until proven guilty.  Every day hundreds and more likely thousands of individuals are granted bail in the Ontario.  It is abundantly clear that incidents like the Eaton Centre incident - namely - an individual on bail committing a serious crime is a rare occurrence.  Most individuals on bail comply with their conditions without incident.  The dilema here is much like the popular sayting that it is better that two guilty men go free than one innocent man be wrongly found guilty.  There is a price for having fundamental values and principles like the presumption of innocense and regretably as the Eaton Centre incident illustrates that price can be tragic and painfull.

     

Cunningham Successfully Appeals Disbarment at Appeal Panel: An Update

     Readers have expressed great interest in my series of posts on the fundamental importance that both the appearance and reality of impartiality plays in the legality of the decisions of both courts and tribunals.  Readers will recall that some time ago a Law Society of Upper Canada Hearing Panel disbarred Karen Cunningham and an appeal panel chaired by respected criminal lawyer, Mark Sandler overturned that decision.

     One of the grounds of appeal advanced by Ms. Cunningham's very able counsel, Mr. Andras Schreck, now Justice Schreck, was that the Hearing Panel showed a lack of independence when they simply "cut and paste" the bulk of Society counsel's submissions in their reasons. In the interest of clarity for all of my readers this is an allegation of a reasonable apprehension of bias.

     Mr. Sandler found that Hearing Panel's independence or appearance of independence was not undermined.  He also went on to say that it was unnecessary given his earlier finding that the Hearing Panel had committed legal error to determine whether the full-scale adoption of Society Counsel's submissions was legal error.

     It is clear from this decision that the fulsome adoption by a Hearing Panel of counsel acting akin to a prosecutor before them without any independent evaluation and analysis may constitute an act of reasonable apprehension of bias.

     Karen Cunningham was accused of the following particulars of misconduct in a Notice of Applciation dated March 6, 2008 in connection with 16 real estate transactions that closed between March 2002 and January 2006:

                     1.  (a)   knowingly assisting mortgage fraud,
                                 or

                          (b)  failing to be on guard against being duped;

                     2.        failing to be honest and candid with lender
                               clients;

                     3.        acting for parties with conflicting interests
                                (in repsect of 14 of the 16  properties);
                                and

                     4.        abdicating professional responsibility and
                                failing to serve lender clients.

Ms. Cunninghamn admitted to the following misconduct at her conduct hearing but steafastly maintained her innocense with respect to the counts alleging that she "abdicated professional responsibility with respect to the 16 properties and knowingly assisted mortgage fraud: 

 -   1.  (b)   failing to guard against being duped;

 -   3          acting for parties with conflicting interests in respect of 14 properties;
                  and

-    4.         failing to serve lender clients in respect of all 16 properties.

Following a very lengthy hearing in which she is said to have been cross-examined by counsel for the Law Society of Upper Canada(L.S.U.C.) for about ten days the hearing panel found that Ms. Cunningham had knowingly assissted mortgage fraud and disbarred her.

Appellant's argument on appeal:

     The Appeal Panel''s decision listed the following grounds of appeal advanced by Mr. Andras Schrek, Ms. Cunningham's counsel on the appeal attacking the lower panel's reasons:

(i)    the reasons are so inadequate as to prevent meaningful review;

(ii)   the reasons adopt the L.S.U.C's written submissions word-for-word in a
 way that is incompatible with an independent evaluation by hearing panel
  of the evidence; and

(iii)   the reasons demonstrate legal misdirection in deciding the issue of
 knowledge.

The Appellant did not challenge the lower panel's finding that she abdicated her professional responsibility in respect of all 16 properties.  The thrust of her position on appeal was that she never knowingly assisted mortgage fraud and that she did not fail to be honest and candid with her lender clients.

Hearing Panel Reasons found
to be fatally flawed:

     Ms. Cunningham testified at her conduct hearing and described her involvement and knowledge of each transaction with the trust of her testimony being why she did not know, suspect or advert to the risk that the transactions were fraudulent.  Counsel for the L.S.U.C. acknowledged in closing argument that she was not urging the panel to make a finding of actual knowledge and acknowledged material differences in Ms. Cunningham's level of involvement - "in some transactions the lawyer knew enough about the transactions that she was willfully blind or reckless as to the obvious signs of fraud...In the remaining transactions, the lawyer knew virtually nothing about the transaction only because she abdicated her professional responsibility to her staff...In some of the transactions she is guilty of both."

"The Hearing Panel accepts the submissions made by Ms. Rutherford that there is clear and cogent
evidence to support the finding of willfull blindness and or recklessness in respect to the specified 16 transactions and that accordingly, Ms. Cunningham knowingly assisted in the fraud and failed to
be honest and candid with her lender clients."

No analysis of distinctions in
knowledge and involvement:         

     The Appeal Panel found that the hearing panel engaged in no analysis of the very important distinctions noted above and this error was compounded by the panel's statement that it was accepting the L.S.U.C's submissions that there was clear and cogent evidence to support the finding of willful blindness and recklessness on every transaction when that was not their position at all.

Reasons not responsive to
key issues raised:
 
     Reasons must at least be responsive to the key issues raised noted the Appeal Panel.  They stated the following on this point:

"Of course, a hearing panel is not bound by the Society's concessions in closing argument.
 But when the appellant's testimony is dependent on the distinctions between the
transactions and the Society acknowledges that at least some of these transactions compel
a different treatment, the hearing panel must at least indicate what the appellant's
involvement was, and why it was able to find (despite both parties' positions) that the
appellant was willfully blind and/or reckless respecting every transaction."  (at para 20)

 "As for the "why", the hearing panel appears to find that the appellant was aware of the
"red flags" on every transaction (signalling to her that they were fraudulent) and, at the same
time, appears not to reject the appellant's position that she erroneously relied on 
others, and in most cases only became involved at the end of the file.  It is entirely
unclear what the hearing panel did or did not accept as the underlying facts.  As noted earlier,
given the positions of the parties, this was of critical importance.(at para 21)

Hearing Panel "cuts and pastes"
L.S.U.C.'s factum in
Reasons:

     The Appellant complained on appeal that the hearing panel effectively "cut and paste" word for word the L.S.U.C.'s factum in the portion of their reasons entitled "Submissions and Analysis".  The Appeal Panel noted that the hearing panels 40 page reasons incorporated the entire L.S.U.C's factum and that portion comprised 21 pages.  The panel also attached the L.S.U.C's  written outline of the evidence to its reasons as Exhibit "C" and indicates that it was helpful to the hearing panel in reviewing the evidence and preparing its reasons.

  "After careful consideration, we have concluded that the hearing panel's independence or the appearance of its independence was not undermined." ( at para 29)

"Given our earlier conclusion that the hearing panel's reasons disclose reversible error, it is unnecessary to decide whether the word-for-word adoption of the Society's 71 paragraph factum and 72 page outline of the facts constitutes reversible error." (at para 38)            

     In addition to adopting the the facts as put forward by the L.S.U.C. in their factum the hearing panel also adopted their legal submission that "The member's belief that he had not acted dishonestly and certainly did not intend to decieve anyone, has no bearing on the panel's determination of his subjective awareness."  The Appeal Panel found that indeed such evidence was highly relevant evidence on this issue and constituted legal error.

Order:

     The appeal is allowed.  The findings on particulars 1(a) and 2 must be set aside.  Since revocation of the appellant's license was tied, in large part, to those findings, the penalty must be set aside as well.  The findings on all other particulars are upheld.




Karen Rosalee Caroline Cunninghma    v.  The L.S.U. C. 2012 ONLSAP 15 (CanLii)