The British Columbia Court of Appeal today released its decision on the appeal of Robert Pickton’s conviction in the gruesome mass murder case involving six women. At trial, the Crown Attorney had argued strenuously that Pickton was solely responsible for the murders, but after six days of deliberations the jury asked the judge to answer the following question: “When considering Element 3 [that Mr. Pickton was the person who killed the victim] on one or more of the counts, are we able to say ‘yes’ if we infer that the accused acted indirectly?” By its question, the jury seemed to be considering the possibility that others had been involved in the murders.

The trial judge had earlier instructed the jury that, to convict him of murder, the jury must find that Pickton “actively participated in the killing of the victim” but that it was “not necessary that you find that Mr. Pickton acted alone.” Faced with the question from the jury, the trial judge reiterated these instructions and corrected another part of his instructions to clarify that Pickton had to have “actively participated in the killings.” The Crown, sensing that its theory had not been accepted, was happy to go along with this.

In a 2-1 decision, a majority of the Court of Appeal agreed with the trial judge’s approach and dismissed the appeal. The dissenting judge said the trial judge failed to properly instruct the jury on alternative theories of liability, resulting in a miscarriage of justice warranting a new trial.

Without question, the prospect of a second trial to relive these terrible events was not relished by anyone. The dissenting judge acknowledged this. However, if a serious error of law was made which compromised the fairness of the trial, a new trial would be the inevitable result. Under the Criminal Code, where a judge of a Court of Appeal dissents on an issue of law, an appeal may be presented to the Supreme Court of Canada as of right. That is what happened here. The Pickton appeal will soon be dealt with by our nation’s highest Court.

There is an interesting decision reported in the most recent edition of the Ontario Reports, a weekly journal with important decisions from Ontario Courts. The case involved a conviction for money laundering by a lawyer and an appeal of the conviction and three year sentence. The lawyer, Simon Rosenfeld, was caught red handed when he agreed to launder funds for what he thought was a Columbian drug cartel. In fact, his contact was an RCMP agent posing as a front man for the organization. Lured by the prospect of enormous financial returns, Rosenfeld could be heard on intercepted communications bragging about his ability to launder large amounts of dirty money.

The Court of Appeal had no difficulty dismissing Rosenfeld’s appeal of the conviction. The interesting comments related to his status as a lawyer on the sentence appeal brought by the Crown.

“Those privileged to practise law take on a public trust in exchange for that privilege and the many advantages that come with it. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the profession. In the long run, that cynicism must undermine public confidence in the justice system.”

“Lawyers, for arguably valid reasons, are exempt from the reporting conditions applicable to other professions and financial institutions who deal in cash transactions. The communications between lawyers and their clients, also for valid reasons, are protected from disclosure by the client/solicitor privilege. This privilege attaches uniquely to lawyers and their clients. The wiretap interceptions and Majcher’s evidence demonstrate that the appellant appreciated the advantage to a money laundering operation of both the solicitor’s exemption from the reporting conditions and the client/solicitor privilege. He was ready and willing to abuse these specific privileges available to him because of his status as a lawyer to enhance his money laundering services. The appellant’s willingness to prostitute his legal services and abuse the special privileges associated with them are significant aggravating features of his conduct.”

Needless to say, the Court of Appeal did not look kindly on these circumstances. In delivering this important message, the Court increased the sentenced from three to five years.

There was much publicity a few years ago when claims began surfacing of unpaid overtime at Canada’s chartered banks. The spectre of a limitless number of claims made for interesting reading. On June 18, 2009, Justice Joan Lax of the Ontario Superior Court of Justice had occasion to consider the desirability of a class action in these circumstances. The stakes were high for everyone involved. The certification motion in the case of Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (S.C.J.) was argued over the course of five days and involved no less than ten lawyers. Unfortunately for the affected employees, Justice Lax decided that a class action was not an appropriate procedure for this type of claim. Barring a successful appeal, the decision may for practical purposes grind these cases to a halt, as it would likely not be economically feasible to pursue the claims individually.

In order to certify a claim as a class action, it is necessary to show that there are common issues involved in the proposed proceeding which are more suitable to be adjudicated on a class wide as opposed to an individual basis. The central allegation in the action was that CIBC had a systemic policy of failing to pay overtime to its employees. However, the evidence put forward by some twelve employees showed differing circumstances: one said that time spent using a breast pump should be counted towards her overtime entitlement; another said that smoking breaks should be counted; another arrived a half-hour early as she was driven to work by her husband and said that time should be counted; on cross-examination before the hearing, two part-time employees admitted they were paid for the hours worked and received the pay to which they were entitled.

Faced with these circumstances, Justice Lax said “In my view, that evidence does not provide a sufficient basis in fact to show the existence of systemic wrongdoing. What it shows is a number of individual circumstances that arise for disparate reasons and require individual resolution.” She added “The individual issues in this case are front and centre and it would be virtually impossible to embark on a trial of the common issues without engaging in an individual examination of the specific circumstances that underlie each class member’s claim. The court would be asked to determine systemic wrongdoing either in a factual vacuum or on the basis of an individual examination of each claim, which defeats the very purpose of a class action.”

Given the stakes involved, there will undoubtedly be an appeal of the decision. In the meantime, make no mistake: this is a big win for the banks.

Sadly, Justice Stephen Borins of the Court of Appeal for Ontario passed away on June 13, 2009. Justice Borins was appointed to the then County Court in 1975 and was highly respected throughout his career for the quality and thoughtfulness of his judicial writings, which were characterized by historical references and scholarly analysis. Justice Borins was elevated to the Court of Appeal in 1997 and continued to serve on the Court with distinction until his passing.

One of Justice Borins’ most interesting recent judgments was the 2006 dissenting decision in Cowles v. Balac, which involved the striking out of a jury in a personal injury claim. His reasons amounted to a love letter to the jury system and characteristically included a lengthy historical overview of the discretion of a trial judge to strike out a jury on grounds of complexity. Justice Borins wrote:

“In my experience as a trial judge, I presided over several very lengthy criminal jury trials involving difficult concepts, such as complicated conspiracy trials that involved the co-conspirator’s exception to the hearsay rule, and trials where self-defence had to be explained to the jury. Based on that experience, I have a high regard for the intelligence and common sense of juries. If a jury can deal with similar issues in the criminal context, logically a jury should be able to deal with them in a civil context notwithstanding that in criminal trials the trial judge has no discretion to strike the jury. Based on my experience on this court, I have a high regard for the ability of trial judges to explain difficult and complicated concepts of law and factual issues to a jury.”

“In reviewing the cases in which the court has considered whether to strike a jury on the ground of complexity, I was struck by the absence of any attempt to define what constitutes a case that is too complex to be trusted to a jury. In addition, I was struck by the absence of any analysis as to why some cases should not be tried by a jury and others should be, and by a similar absence of any analysis as to why a judge is presumed to be able to do a better job than a jury. Although juries have rendered fair and rational verdicts for centuries in very complicated criminal trials, why is it assumed that they are not capable of doing so when the same circumstances become the subject of a civil action? In reading the judicial opinions, it is difficult to escape the conclusion that decisions about the right to a jury trial in particular cases are informed more by intuition and assumptions about the relative abilities of juries and judges than by empirical knowledge. Stated somewhat differently, without the benefit of supporting empirical data, the hypothesis used to support striking a jury is that jurors, but not judges, are incompetent to deal rationally with complex civil cases. To this I would add, as it is accepted that a jury trial presents more management issues for a trial judge than a bench trial and requires the trial judge to prepare and deliver instructions to the jury, in my view judges must be careful to avoid subconscious bias in favour of a bench trial when confronted by a motion to strike the jury.”

Justice Borins also wrote a number of important judgments on the standard for the granting of summary judgment under the Ontario Rules of Civil Procedure, holding that it is not the function of a motion judge to make findings of fact on disputed evidence.

Justice Borins’ passion for law and justice were evident throughout his distinguished career.

In a revealing interview with law blog Bitter Lawyer, the distinguished investigative reporter Gerald Posner has some interesting comments on life at Wall Street firm Cravath, Swaine & Moore, where he practiced as an associate before becoming a journalist.

“Sweat shop with a capital ‘S.’ I billed over 3300 hours the first year and I was not the highest biller in the firm. You had no life but the firm. The partners loved their practice, but that’s the only way you can stay at a place like that. Divorce was almost viewed as though an associate had made the decision to stay with the firm rather than have a personal life.”

Posner was asked whether his legal training helped him as a journalist.

“Big time. The major thing is that I’m not afraid of documents, after getting used to them on the antitrust litigation against IBM while at Cravath. So when I approached the JFK assassination, reporters would say there are tens and tens of thousands of pages of docs. And I’d think, ‘So?’ Also, non-lawyers tend to be more impressed with a legal degree than they should – it helps open up doors.”

Posner also shared his insights into the reason for enduring conspiracy theories on issues such as the Kennedy assassination and 9/11.

“Conspiracies are so much more satisfying when a major accident or death takes place that shakes up our world.  We hate to think our lives can be changed by random acts of violence by sociopathic losers in life – like Lee Oswald or James Earl Ray.”

The decision released yesterday by Judge Redfield Baum of the U.S. Bankruptcy Court has received a lot of attention in Canada. Not surprising given that the case involves a request to move the Phoenix Coyotes hockey team from Arizona to Southern Ontario over the objection of the National Hockey League. The basic outlines of the story, however, do not capture the complex legal issues the Bankruptcy Judge had to contend with. A review of the decision reveals the following important points: (a) the agreement between the National Hockey League and member teams provides that a transfer of ownership or relocation can only be made with the consent and approval of the NHL; (b) the City of Glendale Arizona, having provided substantial funding for an arena, secured an agreement that Coyotes home games would be played in Glendale until 2035; (c) the NBA, NFL and Office of the Commissioner of Baseball filed a joint amicus brief in support of the position of the NHL that the league had the right to approve owners and franchise relocations, which could not be superseded by the provisions of the U.S. Bankruptcy Code.

Faced with these circumstances, Judge Baum stated that the case raised “novel and unique issues to the Bankruptcy Court” and that “No cases have been found that precisely or even closely fit this scenario.” The position put forward by the purchaser of the Coyotes was that Section 365(f)(1) of the Bankruptcy Code allowed the contract to be assigned “notwithstanding a provision in an executory contract or in applicable law that prohibits, restricts or conditions the assignment of such contract.” Against that, Section 365(b)(1)(c) of the Bankruptcy Code required that the assignment of a contract provide “adequate assurance of future performance under such contract.” The contract at issue here required that home games be played at the Glendale Arena. Judge Baum stated “It is basic bankruptcy law regarding the assumption and assignment of executory contracts that the asking party cannot assume only the benefits of a contract; rather, assumption is the entire agreement, benefits and burdens.”

The purchasers argued that the contractual provision was unenforceable as it was contrary to Section 365 of the Bankruptcy Code restricting assignment of the contract. Judge Baum concluded “Simply put, this court disagrees with the assertion by the Debtors and PSE (the purchasers) that the relocation request can be excised from the contract because it violates some portion of Section 365…The court concludes that either the requirement of adequate assurance of future performance or of compensation for any actual pecuniary loss resulting from a default dictates that this apparent economic right of the NHL must be appropriately resolved for the Motion to satisfy the requirements of Section 365.” In other words, the purchasers are required to go back to the drawing board and come up with a solution satisfactory to the NHL, perhaps in the form of a relocation payment that addresses the concerns of the parties involved.

While the decision has been portrayed by spokespersons for the purchasers as leaving the door open for the move – and it is true that their motion was dismissed without prejudice – it seems to me that the Judge’s reasoning has left little room for the dispute to be won in Court. The one bright spot may be the statement of Judge Baum that “The principal reason the Motion has been so carefully considered by the court is that it appears that the sale proceeds would most likely provide a material return to the general creditors.” Undoubtedly, we have not heard the last of this story.

Thirty three days into a murder trial in Windsor, Superior Court Justice Bruce Thomas declared a mistrial yesterday after it was revealed that police had searched databases and run background checks on potential jurors. The resulting information was then used by the Crown Attorney to assist in selecting the jury. Potential jury members suspected of being unfriendly to the police or those with young offender records, criminal charges without convictions or pardons were screened out, causing Justice Thomas to conclude that the practice was meant to provide the Crown with “an unfair advantage in selecting a jury favourable to the prosecution.”

The Canadian Charter of Rights and Freedoms provides in section 11(d) that “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Section 7 of the Charter of Rights provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

These ringing guarantees of the right to a fair trial are too precious to be jeopardized by the practices disclosed by Justice Thomas. It is to be hoped that a full accounting will soon be given by the Attorney General and that the improper vetting of jurors will now be brought to an end.

The Ontario justice system lost a leading light on May 17, 2009, when David Humphrey passed away at the age of 83. Justice Humphrey was a leader of the criminal bar for over 35 years and was known for his extraordinary cross-examination skills, his humour and story telling ability. For years, he held court in the lawyers lounge at 361 University Ave. telling war stories and mentoring young lawyers. Justice Humphrey was appointed to what is now the Superior Court of Justice in 1985 and promptly took to calling himself “Merciful Dave.”

The stories regarding Justice Humphrey are legendary. In a rape case in the 1970’s that he considered to be particularly weak, his entire closing argument consisted of “Ladies and gentlemen of the jury, if this case is rape, then I’m a monkey’s uncle and although the resemblance may be amazing, I ain’t.” The jury acquitted on all counts. One day in his law office, with partner and now Justice Hugh Locke, the office secretary called out in alarm “Mr. Humphrey, the law society auditors are here to audit your books. It’s a spot audit.” Without missing a beat, Humphrey replied “That’s terrific Patty. Order them a coffee and take it out of the trust account.”

His exploits extended outside of the courtroom. An opera lover, Humphrey was the only member of the audience to boo Maria Callas at a concert at Massey Hall. Watching from the sidelines at the 1957 Grey Cup game at Varsity Stadium, he stuck his foot out and tripped Hamilton Tiger Cat defensive back Bibbles Bawel who was running down the field with an interception.

Justice Humphrey was honoured by the Advocates’ Society in the wonderful book “Learned Friends” as one of the fifty greatest advocates of the period 1950-2000. And in November 2008, he received the G. Arthur Martin Award given out by the Criminal Lawyers Association in recognition of those at the very pinnacle of the profession. Justice Humphrey will be sorely missed.

I recently filed a post about a request for production of the contents of a party’s Facebook page in the context of a personal injury claim. It was only a matter of time before someone came up with the idea of circumventing this procedure by obtaining the same information by other means. In an April 2009 Advisory Opinion, the Philadelphia Bar Association was asked for guidance in the following circumstances: a lawyer proposed to have a third person approach a hostile witness in a case the lawyer was involved in; the third party would try to become a “friend” of the witness with access to the witness’s Facebook and My Space pages; if access was granted, the third party would promptly funnel information back to the lawyer for possible use against the opposing party and witness during the course of the litigation.

The Bar Association refused to give its blessing to this course of action, saying that it was deceitful and contrary to the lawyer’s professional ethics. The Opinion contains useful insights:

“Turning to the ethical substance of the inquiry, the Committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.

The fact that the inquirer asserts he does not know if the witness would permit access to him if he simply asked in forthright fashion does not remove the deception. The inquirer could test that by simply asking the witness forthrightly for access. That would not be deceptive and would of course be permissible. Plainly, the reason for not doing so is that the inquirer is not sure that she will allow access and wants to adopt an approach that will deal with her possible refusal by deceiving her from the outset. In short, in the Committee’s view, the possibility that the deception might not be necessary to obtain access does not excuse it.”

The lawyer’s argument that the proposed course of action was no different than the practice of videotaping a party to litigation was given short shrift:

“The inquirer has suggested that his proposed conduct is similar to the common — and ethical — practice of videotaping the public conduct of a plaintiff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents. The Committee disagrees. In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.”

The Criminal Lawyers Association has announced that members with more than ten years experience or the qualifications to represent clients in serious criminal cases will no longer accept legal aid certificates in cases of homicide or complex matters involving guns and gangs. This important effort is meant to highlight the woefully inadequate legal aid tariff and the discrepancy in resources between the Crown and defence in serious criminal cases which has been identified, most recently in the report of the Goudge Inquiry Into Pediatric Forensic Pathology, as a potential source of wrongful convictions. The consequences of this action will undoubtedly be watched with great care by officials at the Ministry of the Attorney General. Persons charged with serious offences and who cannot afford to hire a lawyer will be unable to secure representation, with the effect that they will either be unrepresented or, more likely, will have counsel appointed for them by a judge at rates well above the legal aid tariff. There will almost certainly be more news to come on this issue.