On February 2, 2010, the Court of Appeal for Ontario released decisions involving the jurisdiction of Ontario Courts for accidents occurring outside the Province. The decisions in Van Breda v. Village Resorts Limited and Charron v. Bel Air Travel Group Ltd., 2010 ONCA 84, involved a serious accident and death while the Plaintiffs were vacationing in Cuba. The question at issue was whether Ontario Courts could assume jurisdiction over the resulting actions, or whether the claims would have to be brought in Cuba. The issue is an important one. With the ease and frequency of travel, it is to be expected that some travellers will meet with injury while outside of their home jurisdiction. When the injured person returns home and is required to seek medical attention, the venue of a legal action can take on real practical importance.

The appeals in the two cases had been argued in April, 2009. While the decisions were under consideration, the Court decided that it would take the opportunity to revisit its earlier ruling in Muscutt v. Courcelles and four companion cases. The cases dating back to 2002, which had come to be known as the Muscutt quintet, set out an eight part test for deciding whether Ontario Courts should assume jurisdiction in cases involving accidents occurring outside the Province. As a result of academic criticism that the multi-factored test had created too much uncertainty and discretion, the Court of Appeal decided that a second look at the issue was required. The Court convened a five judge panel and the parties were invited to reargue the appeals, with particular attention to the continued viability of the Muscutt framework. I became involved in the matter at that point, as counsel for the intervenor the Ontario Trial Lawyers Association.

The resulting decisions were authored by Mr. Justice Robert Sharpe, who had also written the decisions in the Muscutt quintet. Justice Sharpe agreed that, after seven years in the litigation trenches and hundreds of similar cases, the Muscutt quintet was due for a “tune up.” He disagreed, however, with the overarching criticism that the decisions created too much uncertainty, stating “In my view, the submissions of the appellants exaggerate both the degree of uncertainty produced by Muscutt and the degree of certainty and predictability that would be achieved by adopting CJPTA.” (the Court Jurisdiction and Proceedings Transfer Act enacted in four Provinces) Justice Sharpe went on to propose “clarifications and modifications” to the Muscutt test which are designed to simplify the analysis, stating:

“The core of the real and substantial connection test is the connection that the plaintiff’s claim has to the forum and the connection of the defendant to the forum, respectively. The remaining considerations or principles serve as analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant.”

Regarding the criticism that considerations of fairness had created a test that was too discretionary, Justice Sharpe again clarified that:

“consideration of fairness should not be seen as a separate inquiry unrelated to the core of the test, the connection between the forum, the plaintiff’s claim and the defendant. Consideration of fairness should rather serve as an analytic tool to assess the relevance, quality and strength of those connections, whether they amount to a real and substantial connection, and whether assuming jurisdiction accords with the principles of order and fairness.”

The intent of these important decisions is to try and simplify this complex and difficult area of the law. It will be interesting to see how the decisions are applied in practice.

On December 22, 2009, the Supreme Court of Canada revolutionized the law of defamation by recognizing a new defence of responsible communication on matters of public interest. Henceforth, Defendants to a libel action will no longer have to prove the truth of the offending statements in order to avoid liability. Rather, the Court held that the constitutional guarantees of freedom of the press and freedom of expression enshrined in section 2(b) of the Charter of Rights and Freedoms mandate that breathing space be given to those who publish on matters of public importance. In other words, Defendants have the right to be wrong so long as their journalism is practiced responsibly.

The decision, Grant v. Torstar Corporation, 2009 SCC 61, arose out of a June 2001 article in the Toronto Star involving Peter Grant, a businessman and friend of then Ontario Premier Mike Harris. Grant was proposing to build a nine hole golf course on his lakefront estate and required approval of the Ministry of Natural Resources. Local cottagers were concerned about the development and believed that Grant’s political ties would lead to a perfunctory approval process. The headline told the story: “Cottagers teed off over golf course – Long-time Harris backer awaits Tory nod on plan.” One cottager was quoted as saying: “Everyone thinks it’s a done deal because of Grant’s influence, but most of all his Mike Harris ties.” The resulting lawsuit by Grant led to a jury verdict in his favour of $1,475,000, including a million dollar punitive damage award.

In allowing the appeal and ordering a new trial, the Court decided that the traditional defences to a libel action paid insufficient regard to the need to protect freedom of the press:

“Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. But to insist on court-established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.”

This reasoning is undoubtedly right, but in coming to its decision the Court slid over an earlier ruling on the same subject. In Hill v. Church of Scientology of Toronto, decided in 1995, the Court had stated that “defamatory statements are very tenuously related to the core values which underlie s. 2(b).” In balancing the right to freedom of expression against the protection of reputation, the Court in Hill came out firmly on the side of protecting reputation. The Court has now recalibrated the analysis in a way that more clearly takes account of constitutional rights.

Former Attorney General of Ontario Michael Bryant has been charged with criminal negligence causing death and dangerous driving causing death as a result of an incident involving cyclist Darcy Allan Sheppard in downtown Toronto on August 31, 2009. Not surprisingly, the story has received massive attention in the press. The prospect of a former chief legal officer of the Province facing serious criminal charges makes for interesting reading. Much of the commentary thus far has of necessity been based upon unnamed sources and speculation. The information relevant to this case will come out in due course during the trial process. What is worth examining at this point is the legal standard necessary to obtain a conviction and the possible range of sentence in the event that Mr. Bryant were to be found guilty.

Section 219(1) of the Criminal Code sets out the offence of criminal negligence. It states: “Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” Section 220 goes on to provide that a person who causes death by criminal negligence is “liable to imprisonment for life.” Section 249(1)(a) of the Criminal Code sets out the offence of dangerous driving. It states: “Every one commits an offence who operates a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.” Section 249(4) goes on to provide that a person who causes death by dangerous driving is “liable to imprisonment for a term not exceeding fourteen years.”

What these statutory provisions indicate is that decisions about guilt or innocence in this area of the law are based upon all the circumstances of the case. The Courts have fleshed out the general language in the Criminal Code and have held that, in order to secure a conviction, it is necessary to show that the conduct in question represented a “marked departure” from the norm of what could reasonably be expected of a prudent driver. In applying that standard however, judges or juries must take into account the facts which existed at the time of the offence and the defendant’s perception of those facts. Applying this to what we know now and have read about in the press thus far, Mr. Bryant may argue that he was faced with a terrifying set of circumstances brought on by the conduct of Mr. Sheppard and that he acted, perhaps out of fear or in the heat of the moment, consistent with what a reasonable person would have done in the circumstances.

This line of thinking is clearly nothing more than speculation at this point. Whether there is sufficient evidence to support such an argument, or whether there is evidence in the form of witness testimony or video recordings which would contradict such an argument, must await the trial itself. What is unarguable is that these are very serious charges, as shown by the maximum sentences set out in the Criminal Code. It is fair to say that, in the event Mr. Bryant were to be convicted, given the absence of a criminal record and his public service, he would not be facing a sentence of anywhere close to the maximum. The range of sentence ultimately depends heavily on the evidence at trial and the findings made by the Court on the circumstances supporting a conviction, however a range of eighteen months to three years would not seem to be out of line. In the event of a conviction, there would also be a lengthy prohibition on Mr. Bryant’s use of a motor vehicle. As there is likely to be a preliminary hearing before trial and the trial itself will take time, we will have to await the determination of these important issues.

In an interesting decision, the Court of Appeal for Ontario took the unusual step of overturning an acquittal by a jury on a charge of first degree murder. The decision in R. v. Abbey, 2009 ONCA 624, is noteworthy for the extended analysis by Mr. Justice David Doherty on the scope of expert evidence, in this case the evidence of a sociologist knowledgeable in youth gang culture. Mr. Abbey was charged with the 2004 murder of a member of the Galloway Boys crew in Toronto. He was an admitted member of a rival gang, which was in the midst of a violent turf war with the Galloway Boys at the time of the murder. A few months after the murder, Mr. Abbey had a teardrop tattoo inscripted on his face. Based on interviews conducted with gang members over a 25 year practice, the expert witness was able to testify that inscription of the teardrop tattoo could mean that the person with the tattoo had killed a rival gang member. The trial judge had excluded the evidence from consideration by the jury as he considered it was not sufficiently reliable. The Court of Appeal overturned the decision and ordered a new trial. In the course of the decision, the Court made the following important comments.

“It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert’s opinion as to the appropriate factual inference. Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently, expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities: Paciocco & Stuesser at pp. 184, 193; S. Casey Hill et al., McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2009), at para. 12:30.10.

The increased reliance on expert opinion evidence by both the Crown and defence in criminal matters is evident upon even a cursory review of the reported cases. Sometimes it seems that a deluge of experts has descended on the criminal courts ready to offer definitive opinions to explain almost anything. Expert evidence is particularly prevalent where inferences must be drawn from a wide variety of human behaviour: see, for example, R. v. McIntosh (1997), 35 O.R. (3d) 97 (C.A.), at pp. 101-103, leave to appeal to S.C.C. refused R. v. McCarthy, [1998] 1 S.C.R. xii [leave sought by second appellant in McIntosh, Mr. McCarthy]; David M. Paciocco, “Coping With Expert Evidence About Human Behaviour” (1999) 25 Queen’s L.J. 305, at pp. 307-308; S. Casey Hill et al. at para. 12:30.10; R. v. Olscamp (1994), 95 C.C.C. (3d) 466 (Ont. Ct. (Gen. Div.)), approved in R. v. Lance (1998), 130 C.C.C. (3d) 438 (Ont. C.A.), at para. 24; Ontario, The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (Toronto: Queen’s Printer, 1998), at pp. 311-24. As Moldaver J.A. put it in R. v. Clark (2004), 69 O.R. (3d) 321 (C.A.), at para. 107, a case involving the proposed expert evidence of a criminal profiler:

Combined, these two concerns [giving expert evidence more weight than it deserves and accepting expert evidence without subjecting it to the scrutiny it requires] raise the spectre of trial by expert as opposed to trial by jury. That is something that must be avoided at all costs. The problem is not a new one but in today’s day and age, with proliferation of expert evidence, it poses a constant threat. Vigilance is required to ensure that expert witnesses like Detective Inspector Lines are not allowed to hijack the trial and usurp the function of the jury. [Emphasis added.]

Despite justifiable misgivings, expert opinion evidence is, of necessity, a mainstay in the litigation process. Put bluntly, many cases, including very serious criminal cases, could not be tried without expert opinion evidence. The judicial challenge is to properly control the admissibility of expert opinion evidence, the manner in which it is presented to the jury and the use that the jury makes of that evidence…

“It is not surprising that Dr. Totten’s opinion could not pass scientific muster. While his research, and hence his opinion, could be regarded as scientific in the very broad sense of that word, as used in McIntosh, Dr. Totten did not pretend to employ the scientific method and did not depend on adherence to that methodology for the validity of his conclusions. As his opinion was not the product of scientific inquiry, its reliability did not rest on its scientific validity. Dr. Totten’s opinion flowed from his specialized knowledge gained through extensive research, years of clinical work and his familiarity with the relevant academic literature. It was unhelpful to assess Dr. Totten’s evidence against factors that were entirely foreign to his methodology. As Professors Sales and Shuman put it in their text, Experts in Court: Reconciling Law, Science, and Professional Knowledge, at pp. 74-75: ‘[f]or non-scientific expert testimony, scientific validity is an oxymoron.’

Scientific validity is not a condition precedent to the admissibility of expert opinion evidence. Most expert evidence routinely heard and acted upon in the courts cannot be scientifically validated. For example, psychiatrists testify to the existence of various mental states, doctors testify as to the cause of an injury or death, accident reconstructionists testify to the location or cause of an accident, economists or rehabilitation specialists testify to future employment prospects and future care costs, fire marshals testify about the cause of a fire, professionals from a wide variety of fields testify as to the operative standard of care in their profession or the cause of a particular event. Like Dr. Totten, these experts do not support their opinions by reference to error rates, random samplings or the replication of test results. Rather, they refer to specialized knowledge gained through experience and specialized training in the relevant field. To test the reliability of the opinion of these experts and Dr. Totten using reliability factors referable to scientific validity is to attempt to place the proverbial square peg into the round hole.”

As the decision of the Court of Appeal had the effect of overturning an acquittal, under the Criminal Code the accused now has the right to appeal directly to the Supreme Court of Canada. That Court will now be charged with the important responsibility of delineating the proper scope of expert evidence in the litigation process in Canada.

Clifton Williams of Will County, Illinois got alot more than he bargained for when he yawned at an inopportune time during a hearing into his cousin’s guilty plea to a felony drug charge. As reported in the American Bar Association Journal and Chicago Tribune, Judge Daniel Rozak sentenced Williams to six months in jail for criminal contempt for what the Prosecutor described as “a loud, boisterous attempt to disrupt the proceedings.” Williams’ father disagreed, saying “I was flabbergasted because I didn’t realize a judge could do that. It seems to me like a yawn is an involuntary action” and Williams’ cousin, the defendant in the case, weighed in and said that “it was not an outrageous yawn.”

The Chicago Tribune undertook a decades worth of contempt citations and found that Judge Rozak was responsible for issuing a third of them, usually for cell phones going off or shouting by spectators during the proceedings. As noted by the Tribune, criminal contempt in the face of the Court can occur where there are acts that embarrass, hinder or disrupt the Court in its administration of justice or lessen its dignity.

The situation was perhaps best summed up by Williams’ aunt, with whom he resides and cares for his 79 year old grandmother. “This is ridiculous – you’ve got all these people shooting up kids, and here this boy yawns in court [and gets six months]. It’s crazy. This could happen to any one of us.” Williams was eventually released by Judge Rozak after serving three weeks in jail.

Trial lawyers are constantly searching for those elusive qualities of clients and witnesses which will capture the attention of the Court and result in favourable treatment by a judge or jury. Opinions on the subject are frequently based on little more than gut reactions. In the recent case of Catholic Children’s Aid Society of Toronto v. Nikesha B., Madam Justice Heather Katarynych of the Ontario Court of Justice gave a helpful summary of her observations of the mother in that case, who was facing the loss of her child to adoption as a result of her battle with mental illness. Justice Katarynych’s moving tribute included the following:

“She [the mother] paid attention to her personal appearance and was unfailingly well groomed. There is a generosity of spirit about her. She presented herself throughout the trial, and in the face of difficult testimony, with great calm. She paid careful attention as the society unfolded its case against her. The only time she showed impatience and it was brief, occurred when society counsel was being particularly obtuse with her at one point in cross-examination of her. She displayed good understanding of the court’s task. She was thoroughly attentive to the witnesses, refrained from dialogue with her counsel or others when witnesses were in the midst of their testimony, refrained from body language designed to draw the courts’ attention to herself rather than the witness and was responsive to the courts’ directions. She displayed good stamina. Her own evidence was presented over the course of three days. She was articulate. Her answers to questions, whether posed by her own counsel or society counsel, were responsive and thoughtful. She displayed excellent listening ability and excellent ability to communicate her evidence, faltering only briefly when society counsel asked about the sorts of symptoms that indicated to her that her mental health was deteriorating. The question was appropriate cross-examination. It was nonetheless apparent that this concentration takes this mother to a place in her being that is quite raw.”

Although Justice Katarynych decided in favour of the society, it seems to me that her words of wisdom and insight into the qualities of a good witness extend well beyond the case before her.

On August 5, 2009, entertainment moguls Garth Drabinsky and Myron Gottlieb were sentenced to seven years and six years respectively for fraud in relation to their conduct of the business of Livent Corporation. The trial judge, Madam Justice Benotto of the Ontario Superior Court of Justice found them guilty of numerous manipulations of the accounting records and financial statements of the company, saying “Complex systems were in place at Livent to effect all these manipulations. Employees knew that entries in the books were being moved. One employee spent his entire time moving expenses from one place to another. He knew it was wrong but had a family to feed.”

The Crown asked Justice Benotto to impose a sentence of 8-10 years. The defence sought conditional sentences to be served in the community of two years less a day, which would include speaking tours by the Defendants with lectures “inspiring young people” and on “business ethics.” Justice Benotto correctly observed that in cases of large scale fraud, general deterrence must be a paramount sentencing goal. In summarizing the general principles of sentencing in such cases, she said:

“The business community must be put on notice that deception and dishonest dealing will be punished severely, whether the victims are the vulnerable and unsophisticated or well-resourced financial institutions driven themselves by a desire for profit. The members of the business community must understand that honesty is the currency in which they trade.”

In applying these important principles to the case before her, Justice Benotto concluded:

“Mr. Drabinsky and Mr. Gottlieb presided over a corporation whose corporate culture was one of dishonesty. Corporate fraud such as this results in tangible losses to employees, creditors and investors. It also results in less tangible, but equally significant loss to society. It fosters cynicism. It erodes public confidence in financial markets. The Court has a duty to strongly denounce such conduct. Those in business must know and the community must know that this will be the Court’s response to corporate fraud.”

The Youth known as M.T., who can now be identified as Melissa Todorovic, was sentenced to life in prison yesterday for her role in the callous murder of 14 year old Stefanie Rengel. The case was noteworthy for the instant messages introduced into evidence which demonstrated Todorovic’s complicity in directing her boyfriend to commit the offence.

The Youth Criminal Justice Act provides that an adult sentence may be imposed on a young offender if the Court is of the opinion that a Youth sentence would not be of sufficient length to “hold the young person accountable for his or her offending behaviour.” As the Act operates on the premise that young persons do not bear the same degree of responsibility as adults, the imposition of an adult sentence is very much the exception rather than the rule. This however was a particularly shocking offence, and the offender showed little remorse.

Faced with these circumstances, Mr. Justice Ian Nordheimer, an outstanding and careful judge, determined that an adult sentence was necessary for the protection of the public. In sentencing Todorovic, he said:

“I do not accept that Melissa has a reduced responsibility for this terrible act. A person who plans and orchestrates and directs another person to take the life of a human being is at least as morally culpable as the person who does the actual act. Put simply, the puppet master is not less blameworthy than the puppet. Indeed, I would suggest that the master is more culpable since he or she puts the wheels in motion and then stands back under a facade of disassociation while the scheme that they have created unfolds.”

The tragic death of Michael Jackson raises the question whether his physician Conrad Murray can be found criminally liable for Jackson’s death. It has been reported that, in interviews with the police, Dr. Murray has admitted to administering the drug Propofol to Jackson on the day of his death. Propofol is a powerful anaesthetic for use in a hospital setting. It is administered by way of an IV drip, and oxygen must be close at hand as the drug can depress breathing and lower the patient’s heart rate. It was given to Jackson at his home in order to help him sleep. In a carefully worded statement, Murray’s lawyer has said that his client did not administer anything to Jackson which “should have caused” Jackson’s death.

Liability for criminal conduct requires an intent to cause harm. No one would seriously argue that Jackson’s physician intended for his patient to pass away. The issue is the degree to which gross negligence or recklessness, if proven, rise to the necessary level to fix responsibility on Dr. Murray for Jackson’s death under the criminal law. This is not a simple question. Section 219(1) of the Criminal Code provides that “Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” Section 222(5) states that “A person commits culpable homicide when he causes the death of a human being (a) by means of an unlawful act, (b) by criminal negligence.”

Dr. Murray is reportedly under investigation for manslaughter. If it can be shown that administration of the Propofol was so outside the realm of responsible medical practice, and had the effect of causing Michael Jackson’s death, Dr. Murray might be facing very serious consequences.

On July 17, 2009, the Supreme Court of Canada released four decisions on the important  question of the circumstances in which evidence obtained by the police in a manner contrary to the Charter of Rights should be excluded from consideration at trial. Section 24(2) of the Charter states “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

The stakes involved could not be higher. On the one hand, the exclusion of evidence can result in the collapse of serious criminal cases. On the other hand, the rights guaranteed under the Charter must be enforced if they are to have meaning. It is left to the judgment of our Courts to strike the proper balance in individual cases.

The starting point is the language of section 24(2). It mandates the exclusion of evidence if, having regard to all the circumstances, the admission of it would bring the administration of justice into disrepute. In trying to give meaning to this broad and general language, the Supreme Court of Canada explained the purpose of section of 24(2) and the factors that judges must consider in deciding whether to exclude evidence obtained in violation of Charter rights:

“The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

The phrase “bring the administration of justice into disrepute” must be understood in the long term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.”