Creating a Successful and Resilient Law Practice

With the COVID-19 outbreak causing a near complete lockdown of the country, life has changed in a huge way. Businesses all over Canada are suffering after having been forced to close their doors roughly two months ago. In most respects, law firms are no different. COVID-19 has exposed the vulnerabilities of many law firms, both small and large, including their reliance on open courts for revenue. As a lawyer, it is easy to get lulled into a false sense of confidence regarding job security. Many people believe that since crime will always exist, criminal lawyers will always be needed. The COVID-19 outbreak and lockdown that has accompanied it has shown that this is not always the case. With courts shut down, even recession proof criminal lawyers have been without work. The pandemic has put into perspective how important it is as a lawyer or any business owner to control expenses and make regular investments in the business. Control Expenses Law firms can experience periods of rapid growth during a strong economy. However, without proper budgeting and planning, they can just as easily find themselves failing during periods of economic downturn. This is especially true when there is little to no notice, as was the case with COVID-19. With overhead expenses remaining and no new business, many law firms have found themselves struggling financially, in some cases, not being able to cover overhead expenses. The best way to avoid this is to consistently manage the firm’s expenses. These expenses include rent, insurance costs, support staff and technology. While it may be tempting to spend more on expenses when the economy is strong, it is important to have overhead expenses that may be managed for a period

Section 810 Peace Bonds

The ProcessThe 810 recognizance process begins with the swearing of the information, after which a summons for the Defendant/s is issued, and then the hearing itself (commonly referred to as a show cause hearing, as the Defendant is given an opportunity to show cause why the recognizance should not issue). Principles applicable to s. 810 applications English statute and common law conferred upon a justice of the peace a discretionary power to subject individuals to an order binding over an individual to keep the peace and to be of good conduct where the justice apprehended that these individuals would likely breach the peace.  In this one instance the English common law allowed a restraint on liberty of individuals where no offence had been proven.  This power was preventive rather than penal in nature; its purpose was to maintain order and preserve the peace.  Generally criminal law is penal in nature based upon proof of the offender having committed an offence.  Section 810 of the Criminal Code and its predecessor sections carry on the tradition of preventive justice.R. v. Soungie, 2003 ABPC 121 (CanLII), at para 5.Section 810 is preventive in nature protecting the applicant in appropriate circumstances from future harm to the applicant, the applicant's spouse, the applicant's common law partner, the applicant's children, or future damage to the applicant's property. In making an order under s. 810 the Judge is asked to restrain an individual because of likelihood of future harm.R. v. Soungie, at para 22.Laying the InformationTo lay an information, the applicant must swear that he or she has a fear that the defendant will cause personal injury to the applicant, the applicant’s spouse, the applicant’s common law partner, the applicant’s child, or damage

Sexual Assault in the Criminal Versus the Civil Context

In the civil context, sexual assault is a form of battery: the intentional infliction of unlawful force on another. The majority decision of the Supreme Court of Canada in Non-Marine Underwriters, Lloyd’s London v Scalera ,which considers the doctrinal dimensions of the tort of battery, is summarized succinctly by Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 10th Edition, [Toronto: LexisNexis, 2014], beginning at para 2.32:A person who proves that the defendant made direct physical contact with her person makes her case for battery. The onus then shifts to the defendant to establish that the contact was neither intentional nor negligent; or that the plaintiff consented to the contact or that a reasonable person would think she had consented. This nominate tort protects the interest in bodily security from interference by others. It is sometimes said that the contact must be harmful or offensive, but this is misleading. By definition, any contact beyond the trivial contact that is expected in the course of ordinary life is prima facie offensive if it is non-consensual. Every person ‘A body is inviolate. The tort protects the integrity of one ‘A person and does not require proof of further injury.Two very significant evidentiary rules differentiate the determination of sexual assault in the criminal versus the civil context. In a Civil Action the Burden to Prove Consent Rests with the DefendantFirst, in a civil action, the claimant does not have to raise the issue of consent, disprove consent, or prove that there was no reasonable belief in consent (a concept not relevant to a civil claim). The evidentiary burden is to adduce evidence of consent; the legal burden to prove consent, on a balance of probabilities, lies with the

Differences between Common Law Peace Bonds and Section 810 Peace Bonds

[Recognizances issued under section 810 of the Criminal Code are informally and regularly referred to as peace bonds, particularly by non-jurists. For ease of reference, I will refer to them here as 810 peace bonds.]A peace bond can be obtained through an information sworn pursuant to s. 810 of the Criminal Code or relying on the common law to require a person to enter a common law peace bond without reference to s. 810 of the Criminal Code.  Re:  Regina v. Shaben et al. (1972), 1972 CanLII 358 (ON SC), 8 C.C.C. (2d) 422.  The onus is on the applicant on the balance of probabilities.  Mackenzie v.  Martin 1954 CanLII 10 (SCC), [1954] S.C.R. 361 at 368.  Once the application is made the accused can either seek to show cause why he or she should not enter the bond, enter the bond as proposed or not show cause but contest one or more of the suggested terms.The applicant must persuade the application judge that he or she fears for his or her safety and the application judge must be satisfied that their fear is a reasonable one. This fear need not be specifically stated by an applicant as the court can infer it from the totality of the evidence received (see J.H. v. W.B. (2001), 2001 YKTC 502 (CanLII), 44 C.R. (5th) 39 (Y.T. Terr. Ct.)).Differences Between Common Law and Section 810 Peace BondsThe differences in the applications are that a s. 810 peace bond is based on a sworn information while a common law peace bond generally is not; a s. 810 bond can be for a period not to exceed 12 months while there is no maximum period for a common law bond;

The Use of Fabricated Out-of-Court Exculpatory Statements

 There is a distinction between an out-of-court exculpatory statement that is disbelieved and therefore rejected and such a statement found to be concocted or deliberately fabricated. The former has no evidentiary value. The latter can constitute evidence from which an inference of guilt may be drawn.In order to constitute a fabricated out-of-court statement, disbelief of the statement by the trier-of-fact is not sufficient; there will need to be independent evidence of concoction. In R. v. Hafeez, 2016 ONSC 769, for instance, the need for evidence of concoction was satisfied as the accused admitted in testimony that he told out-of-court lies to the police about material issues. The Disbelieved StatementIn analyzing the evidentiary value of a disbelieved statement, the court will need to have regard to the content of what it is that is disbelieved and the connection of the disbelieved statement to the offence charged. R. v. O’Connor, (2002) 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at paras. 17 and 18.The Deliberately Fabricated StatementAn out-of-court statement that is fabricated (and not simply disbelieved) is a form of after-the-fact conduct that merits a further specific instruction as to its use.It may constitute circumstantial evidence that assists the trier of fact in determining whether the charge has been proven beyond a reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events. R. v. Coutts, (1998) 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-552.The need for

Obtaining the Accused’s DNA through a Search Incident to Arrest

The police must obtain consent or prior judicial authorization in order for evidence of the accused’s DNA to be legally obtained.R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607. continues to govern the procedure for seizing the accused’s own bodily materials.  Police may dab or swab an accused’s hands incident to arrest to check for gunshot residue or to obtain a sample of blood visible on the accused’s skin See, for example, R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 139-45; R. v. Smyth, [2006] O.J. No. 5527 (QL) (S.C.J.)).  Either of these procedures might enable the police to obtain the accused’s DNA, but the police are not entitled to use them for that purpose.  Similarly, if an accused’s DNA is obtained through a penile swab and the swab was taken without a warrant authorizing such seizure, or the accused’s consent, the accused’s DNA cannot be used for any purpose.R. v. Saeed, [2016] 1 SCR 518, 2016 SCC 24 (CanLII), at para 48.

The New Framework to be Applied where a Breach of s. 11(b) is Alleged

On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan, in which it established a new framework to be applied in s. 11(b) Charter applications.  At the heart of the new framework is a presumptive ceiling beyond which delay —from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry).The New Framework SummarizedThe approach required by the new framework was recently summarized in R. v. Coulter,2016 ONCA 704 (CanLII), [2016] O.J. No. 5005 (C.A.) at paras. 34-40:·         Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).·         Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).·         Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).·         If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).·         Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).·         If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such

Does the Court of Appeal have the Inherent Jurisdiction to Hear an Appeal of an Interlocutory Order?

The Court of Appeal for Ontario has no jurisdiction to hear an appeal from an interlocutory order.In P.M. v. M.A., 2017 ONCA 6, the Court of Appeal rejected counsel’s argument that the Court had inherent jurisdiction or some type of residual jurisdiction to hear the appeal of an interlocutory order of the Superior Court.The concept of inherent jurisdiction has been described as follows:The inherent jurisdiction of the court is a virile and viable doctrine, and  has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particularly to ensure the observation of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them"The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 27-28. In Halsbury's Laws of England, 4th ed. (London: Lexis-Nexis UK, 1973 -) vol. 37,at para. 14The Court in P.M. v. M.A., 2017 ONCA 6 held that there must be a statutory basis for the Court to hear an appeal and counsel could not point to any.

The Car Ride to the Police Station

In R. v. Liew and Yu, 2012 ONSC 1826, the Superior Court of Ontario considered the question of whether an attempt on the part of the police to establish a rapport with the accused on the car ride to the police station breached the accused’s section 10(b) right.  The accused had been informed of his right to counsel upon arrest, but had not yet had access to counsel. The Court held that the attempt on the part of the police to establish a rapport with the accused on the car ride to the police station was the initial stage of an interviewing technique employed by police (akin to the Reid Technique, which involves the interviewer establishing a rapport and level of trust with the subject, then confronting the accused about the crime).   As such, it breached the obligation on police to "hold off" questioning a detainee until he/she has been given a reasonable opportunity to contact counsel.R. v. Liew and Yu, at para 75.

Disclosure of an Accused’s HIV Status by the Police

 In R. v. Gowdy, 2016 ONCA 989, the Court of Appeal for Ontario considered, in obiter, whether two provincial statutes authorized or permitted the police to release the accused’s private medical information (namely, his HIV status): ·         Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), ·         Police Services Act, (PSA) and Regulations passed under it.  The day after the arrest of Gowdy, Durham Regional Police had issued a media release announcing the arrest and disclosing the fact that the Gowdy was HIV positive.  Was Disclosure of the Accused’s HIV Status Authorized under the PSA?The PSA contains no express prohibition against disclosure of personal information. However, such a prohibition would seem to arise by necessary implication from s. 41(1.1), which authorizes the chief of police or anyone the chief designates for the purpose of the subsection to disclose personal information about an individual, provided the disclosure is in accordance with regulations passed under the PSA. The exception or exemption in s. 41(1.1) applies despite any other Act and is deemed to be compliant with s. 32(e) of MFIPPAand s. 42(1)(e) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. Disclosure under s. 41(1.1) of the PSA may be made for the purpose of protecting the public or victims of crime, amongst other purposes, when it is reasonably believed an individual poses a significant risk of harm to other persons: PSA, s. 41(1.2); O. Reg. 265/98, s. 2. The Court of Appeal was of the view that the PSAdid not authorize disclosure of the accused’s HIV positive status in the circumstances.The exemption in s. 41(1.1) of the PSAauthorizes a chief of police, or his or her designate, to disclose personal