Friday, January 20, 2017

Criminal record cannot be used to explain behaviour of accused

R. v. Marini, 2017 ONCA 46 is an interesting example of how not to use a criminal record:

[19]        Essentially, the trial judge reasoned that, if the appellant were truly innocent and was in fact in the wrong place at the wrong time, his decision to remain was undermined by his "criminal past and life experiences" (i.e., his criminal record). In other words, if innocent, someone with the appellant's criminal record ought to have fled the scene. 

[20]        As acknowledged by the trial judge in his reasons, the appellant's criminal record could not be used as evidence of the appellant's propensity to commit the offences with which he was charged. The trial judge could simply have used the appellant's extensive criminal record, which included many entries for breaking and entering, in assessing his credibility and relied on it to reject his evidence. This use is permissible under s. 12(1) of the Canada Evidence Act, R.S.C., 1985, C-5 (CEA). In our opinion, however, the trial judge's use of the appellant's criminal record went well beyond the limited use permitted by the CEA. We are not persuaded that references made by the appellant in his evidence about his criminal past and having been to prison mitigated this error.

Of the Law Societies of Upper Canada and Nunavut 

Thursday, January 19, 2017

Offence Notice Can Be Varied Before Filing

When a police officer stops a motorist for a minor traffic offence, typically the officer will fill out the relevant information on a form called the "certificate of offence". Underneath the certificate is a carbon copy called the "offence notice". The officer gives the offence notice (commonly called a "ticket") to the motorist, and then files the certificate of offence with the court, which has the effect of commencing proceedings against the motorist.
Is the officer entitled to change the information on the certificate of offence after giving the offence notice to the motorist, but before filing the certificate with the court?
One would assume that any changes to the offence notice could only be made if the accused is told of the changes. In a surprising, at least to me, decision the Court of Appeal says amendments can be made without notice. If this prejudices an accused they can deal with the matter at trial or on appeal.
The Court holds in York (Regional Municipality) v. Wadood, 2017 ONCA 45:

[47] However, for the prosecution to achieve its goal of allowing officers to correct minor errors or omissions on a certificate of offence, it is not necessary to go as far as implying an amendment power in s. 90. In my opinion, officers are entitled to change information on a certificate of offence before filing with the court, even after serving a defendant with an offence notice. Nothing in the Act or the rules precludes officers from doing so. Proceedings against a defendant have not yet commenced. And neither the Act nor the rules requires that the information on a certificate of offence be identical to the information on an offence notice before it is filed with the court.
[48] Allowing an officer to correct the certificate of offence before filing it with the court furthers the purpose of the Provincial Offences Act and proceedings under it. The express purpose of the Act is set out s. 2(1):
2. (1) The purpose of this Act is to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences.
[49] This court and other judges have elaborated on this purpose. The Act is intended to permit judges to decide cases on their merits, to deal efficiently and inexpensively with the province's large volume of minor regulatory offences, and to avoid having proceedings invalidated because of technical objections or irregularities having no prejudicial impact on a defendant. See, for example, London (City) v. Young, per Doherty J.A. and Ontario (Ministry of Labour) v. Discovery Place Ltd., [1996] O.J. No. 690 (Ont. C.J.), varied on other grounds, [1997] O.J. No. 1887 (Ont. C.A.).
[50] If officers were not permitted to correct information on a certificate of offence before filing the certificate with the court, then many proceedings under ss. 9(1) or 9.1 would be quashed simply because the officer misspelled a name, left out a name of a municipality, or incorrectly wrote down the year of the alleged offence. In all of these examples – and many other examples of minor errors or omissions on certificates of offence – the defendant charged would not be misled. Quashing the certificate of offence because of minor errors that cause no prejudice would not promote the fair administration of justice in the provincial court.
[51] Defendants are protected if they were misled or prejudiced by a change to information on the certificate of offence that produced a variance between the certificate and the offence notice. Where a variance comes to light, s. 90 has an important role to play in promoting the purpose of the Act.
[52] A variance could come to light in one of two situations: (1) at a contested trial, where the defendant puts the offence notice before the court and invites the presiding judge to compare the information on the certificate with the information on the offence notice; or (2) as in the present case, on appeal, after a conviction is registered against the defendant under ss. 9.1 or 9(1) of the statute. In the latter situation, the appeal court has wide power under s. 136 of the Provincial Offences Act to receive further evidence, which presumably could include the offence notice, even though it was not before the justice of the peace in the default proceeding.
[53] The judge, either at trial or on appeal, faced with a variance, would have to determine its impact. If the variance had the potential to mislead the defendant, then the judge would be justified under s. 90(2) in adjourning the trial and even ordering the prosecution to pay costs. On appeal, the judge may be justified under s. 138 in reversing a conviction or varying a penalty, or if "necessary to do so to satisfy the ends of justice", ordering a new trial.
[54] In his judgment in R. v. Montone, 2007 ONCJ 251, [2007] O.J. No. 2230, at paras. 38-39, Lampkin J. gives a good example of a case where a defendant would be misled by a change to the certificate of offence and where a conviction would result in an injustice. An officer arrives at the scene of an accident and issues a certificate of offence for following too closely. The officer then calls in to report the accident to his staff sergeant who advises that the defendant should have been charged with careless driving, a more serious offence with a greater monetary penalty and more demerit points. The officer then changes the certificate of offence to record the more serious offence and files it with the court. The defendant, thinking he had been charged only with following too closely, does not dispute the charge; the justice of the peace, in the defendant's absence, examines the certificate, concludes it is complete and regular on its face, and convicts the defendant of careless driving. The defendant is notified of the conviction and appeals. As Lampkin J. notes, upholding the conviction on these facts would not be just; the defendant would have been convicted of an offence for which he received no notice whatsoever.[5]
[55] But against those cases – likely few – where the defendant has been misled or prejudiced by a change to the certificate of offence, are those many cases where the change may correct clerical errors or supply missing information, and the defendant is not misled or prejudiced at all. In these cases, s. 90 preserves the validity of the proceeding.

Friday, January 13, 2017

Discovery of a Non-Party

Discovery of a Non-Party

Discovery of a non-party is fairly common in the Uniter States.  So under the U.S. Federal Rules of Civil Procedure, Rule 30: 
A party may, by oral questions, depose any person, including a party, without leave of court ... .
In Ontario, of course, examination for dsicovery of non-parties is limited as recently described in Mancinelli v Royal Bank, 2017 ONSC 87.
Broadly stated, an order for discovery of a non-party is an exceptional order; such an order should be made only in exceptional circumstances: Morse Shoe (Canada) Ltd. v. Zellers Inc., 1997 CanLII 1573 (ON CA), [1997] O.J. No. 1524 (C.A.) at para. 19.  Non-parties are not generally subject to the discovery: Reichmann v. Vered, [1998] O.J. No. 3751 (C.A.) at para. 8; Kerr v. McLeod, [2002] O.J. No. 788  (Div. Ct.) at para. 2.  That said, when a non-party has information not otherwise available and fairness requires it, discovery can be available:  Rule 31.10.
The rule for the production of documents from a non-party requires that the information sought is relevant to a "material issue" in the action. This test of relevancy is higher than the "any matter in issue" standard for obtaining production from a party to the action: Lowe v. Motolanez (1996), 1996 CanLII 37 (ON CA), 30 O.R. (3d) 408 (C.A.) at p. 413; Tribax Management Ltd. v. Laswind Investment Ltd., [2006] O.J. No. 3439 (S.C.J.) at para. 5.
Disclosure and production of a document from a non-party will be provided as a matter of fairness and necessity. The court determines whether it would be unfair to require the moving party to proceed to trial without a document in the possession of a non-party, and balances that against the interests of the non-party, which include concerns about privacy, inconvenience, and exposure to liability: Lowe v. Motolanez, supra; Tetefsky v. General Motors Corp., supra at paras. 41-42; Fairview Donut Inc. v. TDL Group Corp., 2011 ONSC 247 (CanLII) at paras. 10-11. Although production can be ordered from a non-party, it is not routinely sought and the threshold for granting it is high: Olendzki v. W.A. Baker Trucking Ltd., [2006] O.J. No. 256 (S.C.J.).
In determining whether to allow dsicovery of a non-party the Court will consider (Mancinelli, supra):
"[47]            In making the determination whether to permit third party discovery of documents, the court may consider the following factors: (1) the importance of the document to the issues in the litigation; (2) whether production at the discovery stage as opposed to production at trial is necessary to avoid unfairness to the moving party; (3) whether the examination of the opposing party with respect to the issues to which the documents are relevant would be adequate to obtain the information in the document; (4) the availability of the document or its information from another source that is accessible to the moving party; (5) the relationship of the non-party from whom production is sought to the litigation and the parties to the litigation; and (6) the position of the non-party with respect to production: Morse Shoe (Canada) Ltd. v. Zellers Inc., supra; Ontario (Attorney General) v. Ballard Estate (1994), 26 O.R. (3d) 189 (C.A.); McGillivary v. Toronto Police Services Board, 2014 ONSC 865 (CanLII), 2014 ONSC 865 (Master); Durling v. Sunrise Propane Energy Group Inc., [2008] O.J. No. 5031 (Master); Chiarella v. Simon, [2007] O.J. No. 8 (S.C.J.); Colville-Reeves v. Gray, [2003] O.J. No. 1304 (Master); Boucher (Litigation Guardian of) v. Charles, 2013 ONSC 3120 (CanLII), 2013 ONSC 3120 (Master).

[48]           The test under rule 31.10 for the examination of a non-party involves four components, all of which must be established for there to be an examination of a non-party; namely: (1) there is reason to believe that the non-party has information relevant to a material issue; (2) the examining party has been unable to obtain the information from the examined party or from the non-party; (3) it would be unfair to the examining party to proceed to trial without the examination of the non-party; and (4) the examination will not unduly delay the commencement of the trial of the action, entail unreasonable expense for other parties, or result in unfairness to the person the moving party seeks to examine: Rothwell v. Raes, [1986] O.J. No. 2495 (Div. Ct.); Famous Players Development Corp. v. Central Capital Corp. (1991), 1991 CanLII 7202 (ON SC), 6 O.R. (3d) 765 (Div. Ct.); Din v. Melady, 2010 ONSC 4865 (CanLII), 2010 ONSC 4865 (Master); McDermid Paper Converters Ltd. v. McDermid, 2010 ONSC 5404 (CanLII); Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P., 2014 ONSC 2699 (CanLII). To satisfy the test under rule 31.10, the party requesting an order to examine a non-party for discovery must show that the party who was examined for discovery refused or constructively refused to provide the information sought from the non-party: Famous Players Development Corp. v. Central Capital Corp., supra."

As can be seen discovery of non-parties remains limited in Ontario

Tuesday, January 10, 2017

Think before you post!

An employee who tweeted her boss was a racist got fired; that firing was (probably) legally justified. 


As between an employer and employer there are two central obligations:


• trust and confidence; and


• good faith.


If something comes up at work – say a racist comment by your boss -- you have an obligation to try to resolve it directly with your employer.  Going online and complaining is not acting in good faith.  Even if what you say is true that may not be enough to save your job.


The obligations of trust and confidence (probably) gives an employer grounds to dismiss if there are derogatory online postings.


Think before you post!




Friday, December 16, 2016

Civil Contempt

Greenberg v. Nowack, 2016 ONCA 949:


[25]        The test for civil contempt was articulated by the Supreme Court in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 33-35:

1.    The order alleged to have been breached must state clearly and unequivocally what should and should not be done;

2.    The party alleged to have breached the order must have had actual knowledge of it; and

3.    The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels.

[26]        Each element of civil contempt must be proven beyond a reasonable doubt: Carey v. Laiken, at para. 32. A judge has discretion to decline to make a contempt finding where the three-part test has been met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: Carey v. Laiken, at para. 37.

[27]        In this case, at para. 48 of his reasons, the motion judge described the three-part as follows: first, whether the order clearly and unequivocally states what should and should not be done; second, whether the alleged contemnor disobeyed the order deliberately and wilfully; and third, whether the contempt was proven beyond a reasonable doubt. This is inconsistent with how the test is described in Carey v. Laiken. The question is not whether the alleged contemnor wilfully and deliberately disobeyed the relevant order. Rather, what is required is an intentional act or omission that breaches the order. "The required intention relates to the act itself, not to the disobedience; in other words, the intention to disobey, in the sense of desiring or knowingly choosing to disobey the order, is not an essential element of civil contempt": Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, 4th ed. (Toronto: Canada Law Book, 2015), at para. 6.190 (citations omitted). Requiring the alleged contemnor to have intentionally disobeyed a court order would result in too high a threshold: Carey v. Laiken, at para. 38.




Friday, December 9, 2016

Rectification in the Supreme Court of Canada

Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56:


Rectification is an equitable remedy designed to correct errors in the recording of terms in written legal instruments. It is limited to cases where a written instrument has incorrectly recorded the parties' antecedent agreement. In other words, rectification is not available where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement, but the agreement itself.


Where the error is said to result from a mistake common to both or all parties to the agreement, rectification of the instrument is available upon the court being satisfied that there was a prior agreement whose terms are definite and ascertainable; that the agreement was still in effect at the time the instrument was executed; that the instrument fails to accurately record the agreement; and that the instrument, if rectified, would carry out the parties' prior agreement.


 It falls to a party seeking rectification to show not only the putative error in the instrument, but also the way in which the instrument should be rectified in order to correctly record what the parties intended to do. The applicable standard of proof to be applied to evidence adduced in support of a grant of rectification is the balance of probabilities. A court will typically require evidence exhibiting a high degree of clarity, persuasiveness and cogency before substituting the terms of a written instrument with those said to form the parties' true intended course of action. On rectification, both equity and the civil law are ad idem, despite each legal system arriving at it by different paths — the former being concerned with correcting the document, and the latter focusing on its interpretation. This convergence is undoubtedly desirable.