Friday, September 16, 2016

Failure to comply with Rules can lead to personal liability for costs

Adlair v Nunavut 2016 NUCJ 23:\

Lawyers have an ethical and professional duty to ensure that the advice they give a client, and the actions they take, are proper. In other words, every lawyer has a duty to present the case for their client in good faith, according to the Rules of Court and the applicable law; in this case the laws of evidence. An affidavit may be the sworn evidence of the client, but it is the lawyer's duty to ensure that the affidavit is drafted and submitted according to the rules. In Canada, a lawyer who fails in this basic duty runs the risk that costs shall be imposed against him or her. 

Thursday, September 15, 2016

Interpretation of a Standard Form Contract not subject to appellate deference

Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 holds that the interpretation of contracts is a question of mixed fact and law and so an appeal court should be deferential to the decision below. 

Perhaps surprisingly, the Supreme Court in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 held this rule does NOT apply to standard form contracts and no deference is owed to the court below. 

The appropriate standard of review is correctness. The interpretation of a standard form contract should be recognized as an exception to the Court's holding in Sattva Capital Corp. that contractual interpretation is a question of mixed fact and law subject to deferential review on appeal. 

The first reason given in Sattva for concluding that contractual interpretation is a question of mixed fact and law — the importance of the factual matrix — carries less weight in cases involving standard form contracts. Indeed, while a proper understanding of the factual matrix of a case is crucial to the interpretation of many contracts, it is less relevant for standard form contracts because the parties do not negotiate the terms. The contract is put to the receiving party as a take‑it‑or‑leave‑it proposition. Factors such as the purpose of the contract, the nature of the relationship it creates, and the market or industry in which it operates should be considered when interpreting a standard form contract, but they are generally not inherently fact specific and will usually be the same for everyone who may be a party to a standard form contract. 

Moreover, the interpretation of a standard form contract itself has precedential value and can therefore fit under the definition of a pure question of law. In general, the interpretation of a contract has no impact beyond the parties to a dispute. While precedents interpreting similar contractual language may be of some persuasive value, it is often the intentions of the parties, as reflected in the particular contractual wording at issue and informed by the surrounding circumstances of the contract, that predominates. In the case of standard form contracts, however, judicial precedent is more likely to be controlling. Establishing the proper interpretation of a standard form contract amounts to establishing the correct legal test, as the interpretation may be applied in future cases involving identical or similarly‑worded provisions. The mandate of appellate courts — ensuring consistency in the law — is also advanced by permitting them to review the interpretation of standard form contracts for correctness. The result of applying the interpretation in future cases will of course depend on the facts of those cases.

Of the Law Societies of Upper Canada and Nunavut 

Why the Judge won't reply to a Facebook post

I was recently involved in a criminal case. The judge ruled on sentence and the defendant was sent to jail for a long time – longer than I suggested but not quite as long as the Crown asked for. It was a difficult and tragic case but the result sensible and fair.

But wow the criticism online was brutal.

No one attacked me or the Crown but the judge was given a real shellacking. People made some really ignorant comments about the judgment; it was quite clear they hadn't read the decision and maybe not even the article about the decision.

Another part of the problem was that people who just saw a news story about the case were not there to hear the evidence itself. And a decision based on evidence cannot give the full sense of the evidence. When a judge says "the defendant shows great remorse" it does not convey the heart felt tears that are obvious to everyone in the courtroom. Similarly, if a judge says "the defendant showed no true remorse" it may well be the smirk or rolling eyes of the defendant are unseen except to those present.

As I mentioned the decision in my case was fair and proper. It made sense and complied with the caselaw and precedent.

Judges seem to have a lot of power – and they do – but it is not an arbitrary power. Sentencing is based on earlier court decisions and the specific facts of the offence and the offender. If a judge makes a decision that is inconsistent with prior cases or the facts before the judge an appeal court will likely overturn the decision.

The judge in my case could have easily explained why the sentence was what it was – and yet the judge said nothing. The judge didn't go on Facebook or Twitter.

Why? Was the judge too lazy or maybe just didn't care?

Not a bit.

A lazy judge is an oxymoron and judges care a great deal about what is the public perception of justice.

The problem is judges are not allowed to respond to comments or attacks on line. Judges can and do comment on broader issues not related to specific cases – say the need for more judges and Court staff to speed up the trial process – but you will never see a judge discussing a decision of their own in the media.

A judge's formal decision is the only place a judge is allowed to speak about a case. A judge cannot comment about a decision or explain it further – a judge cannot say anything in reply to online criticism no matter how ill founded. This principle makes excellent sense because a judge's decision forms the record of the case and is the subject for an appeal. If the judge were seen to vary or to explain a decision by comments in the press or online it would be impossible to have a sensible appeal process.

Of course people are totally entitled to criticize a judge's decision or reasons. Canada is a free country and people are entitled (subject to the law of defamation) to say anything they like about a decision. But remember the judge won't reply on Facebook to explain what "really" happened.

Of the Law Societies of Upper Canada and Nunavut

Sunday, September 11, 2016

Requirement to make transcript or detailed notes of statement

Criminal disclosure often but not way includes transcripts or at least detailed notes of recorded statements. Such transcripts or detailed notes can form a basis for cross-examination of a witness – they do not govern but they can be put to a witness and if absolutely necessary the actual recording can be played.

But what if no transcript or detailed note is prepared? It appears counsel is required to prepare such transcript or note themselves. (I have had such transcripts prepared for years). Failing to produce such material can lead to a valid ineffective assistance claim.

The Court in R. v. R.S., 2016 ONCA 655 says:

[20] Trial counsel was provided with a CD of M.S.'s statement to the police. He watched the CD, but did not have a transcript of her statement prepared or make notes that would allow him to locate any particular part of the statement should the need arise during the trial. Counsel acknowledged in his cross-examination that he was not in a position to put any part of M.S.'s statement to her at trial should the need arise. Counsel's inadequate preparation effectively rendered M.S.'s statement to the police useless as a tool in her cross-examination. There were material inconsistencies between that statement and M.S.'s testimony.

Of the Law Societies of Upper Canada and Nunavut

Saturday, September 3, 2016

Improper to ask accused to provide theory of case

A witness is to testify as to facts - not to explain their theory of a case. 

R. v. Dhaliwal, 2016 ONCA 652:

[11]        This line of questioning was improper. It put an onus on the appellant to explain the allegations against him: R. v. S.(W.) (1994), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242 (C.A.) at 252; R. v. Vandenberghe (1995), 96 C.C.C. (3d) 371 (C.A.) at 373.

[12]        The point was made by the Alberta Court of Appeal in R. v. Kusk, 1999 ABCA 49, 132 C.C.C. (3d) 559, at p. 564:

This mischievous cross-examination wrongly suggests that the witness is advocating a certain view, indeed advocating corollaries of that view. See R. v. Baldwin, [1925] All E.R. Rep. 402, 18 Cr. App. R. 175 (Eng. C.A.), 178-79 (C.C.A.). That runs together the three roles of witness, accused, and defence counsel. When the accused testifies, he is a witness, not an advocate. The accused may try to cooperate in answering the forbidden question, or he may vaguely feel that something is wrong with it, but not one lawyer in 10,000, let alone a lay person, could say on the spot what that wrong thing was: R. v. Baldwin. Here the accused vaguely saw the point, and his answer (quoted above) stumbled toward what the Court of Criminal Appeal said in 1925. Yet counsel and the trial judge missed the valid point which he was groping to express, albeit incompletely. And the jury may have felt, as the Court of Criminal Appeal points out, that inability to answer substantively indicated concealment.

[13]        Asking the appellant, in front of the jury to provide his "theory" of the case or to explain the evidence against him undermined the presumption of innocence. Permitting the Crown to ask the question, and requiring the appellant to answer it, could only have led the jury to believe that he had some obligation to provide a "theory". The line of questioning should not have been permitted.

Of the Law Societies of Upper Canada and Nunavut