Law Times

March 10, 2008

The premier weekly newspaper for the legal profession in Ontario

Issue link:

Contents of this Issue


Page 0 of 15 What do over 2 , 500 Canadian law firms have in common? They all use to process their family law practice needs. McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM $3.55 • Vol. 19, No. 8 Covering Ontario's Legal Scene March 10, 2008 Law Times – Nightmare (Front Page Base Bar 1C) * Underwritten by Lawyers' Professional Indemnity Company (LAWPRO ® ). Contact LAWPRO for brokers in Manitoba, Saskatchewan and Alberta. ® Registered trademark of Lawyers' Professional Indemnity Company. Protect your clients. Recommend TitlePLUS ® title insurance. * TitlePLUS title insurance and you, together we make real estate real simple. Visit or call 1-800-410-1013 for more information SHE JUST FOUND THE HOUSE OF HER DREAMS. Unfortunately it comes with a $10,000 nightmare. TPLawTimes1CBlue fin 8/22/06 11:47 AM Page 2 Secretive police intercept power struck down A section of the Criminal Code that permits a "peace officer" to intercept private communications in emergency situations without prior judicial authorization has been found to be unconstitutional by a B.C. Su- preme Court judge. The potential impact of the ruling in Ontario and other prov- inces may be hard to determine, in part because of the secretive nature of some of the provisions within s. 184.4 of the code. The section permits a peace officer to intercept private com- munications when there are rea- sonable grounds that the "urgency of the situation" is such that an authorization could not "with reasonable diligence" be obtained under other parts of the code. The peace officer must be- lieve the interception is required to prevent an unlawful act that would cause serious harm to an- other person. As well, the inter- cepted communication must have a direct connection to the person suspected of the act likely to cause the harm. When the new powers were introduced in 1993, then-federal justice minister Pierre Blais sug- gested they were to assist police in "unusual circumstances" such as hostage-taking or hijacking in- cidents. Justice Barry Davies found s. 184.4 is unconstitutional because it violates rights, in s. 8 in the Charter, that protect against un- reasonable search and seizure. The decision, issued Feb. 22, is known as R. v. Six Accused Persons because it is a pretrial ruling in an upcoming jury trial in B.C. An excerpt of the ruling was made public because "the consti- tutional rulings in this case are, however, important not only to these proceedings but also to the administration of justice [and] the conduct of the police in any future use they may seek to make of s. 184.4 of the code," writes Davies. During lengthy submissions last fall by Crown and defence, the judge also heard evidence from se- nior RCMP officers and other po- lice services across the country. An affiant representing the To- ronto Police Service deposed that it intercepted communications "a few times a year" using s. 184.4 powers. Because of the lack of report- ing requirements, it is not clear how often the power is invoked by police. The court found only three other cases in Canada that interpreted the section and none assessed its constitutionality. The Crown argued that the provision is rarely used across Canada and that, in most cases, people who have had communi- cations intercepted will receive "de facto notification" as a result of the subsequent filing of criminal charges. Simon Buck, who represents one of the six defendants, says the Crown was asking the court to have "complete trust" that police will not abuse the power. "There is no requirement in law or policy that records are kept of its use. We simply do not know how many times it is used," says Buck, a law- yer with Wilson Buck Butcher & Clause averts knocking down mandatory minimums Sentencing debate still not settled OTTAWA — A Supreme Court of Canada ruling that upheld a mandatory minimum sen- tence for a Mountie convicted of manslaughter is unlikely to be a crucial precedent for a raft of new mandatory minimum laws, a leading Ottawa defence lawyer says. The recent ruling was hailed as a "landmark" judgment regarding mandatory minimum sen- tences, with news reports emphasizing the fact it came out a day after Royal assent for the Conservative government's controversial Tack- ling Violent Crime Act. But the SCC decision in fact centred on a judge's mistaken interpretation of jury consid- erations and his incorrect application of judi- cial discretion meant for entirely different cir- cumstances, notes Mark Ertel, president of the Defence Counsel Association of Ottawa. "I'm not sure that this settles it," Ertel tells Law Times. "It's still possible that mandatory minimums will be found not to be constitu- tional in a given case, depending on the cir- cumstances." The R. v. Ferguson decision on the Alberta Mountie's case was unanimous, written by Chief Justice Beverley McLachlin. Two trials ended with hung juries before a third resulted in the manslaughter verdict and subsequent appeals to the Alberta Court of Ap- peal and the Supreme Court of Canada. It all began after RCMP Const. Michael Esty Ferguson arrived at a tumultuous hospital scene in Pincher Creek, Alta. at 3 a.m. on Oct. 3, 1999. There had been a drunken brawl in a bar parking lot the previous night and Darren Varley — who would later that morning be shot dead by Ferguson in an RCMP cell — was at the hospital with his sister and several friends in the aftermath of the fight. The bar altercation began after Varley lost track of his fiancée in the bar and suspected she had gotten into a van with strangers. Still intoxicated at the hospital, Varley "insistently" demanded Ferguson find his fian- cée, the court history says. Instead, Ferguson grabbed Varley and punched him in the jaw, according to testimony from witnesses. Ferguson handcuffed Varley, placed him in an RCMP cruiser, and Varley kicked out one of its windows. Ferguson took Varley to the detachment and led him into a cell. An RCMP booking officer and an inmate in the adjacent cell, Herman No Chief, heard two shots. Ferguson later testified Varley had pulled his bulletproof vest over his head and face and grabbed his sidearm. He made a statement be- fore trial, which was supported by expert evi- dence and accepted by the trial judge, that he had regained control of the gun when the shots were fired. The first bullet went into Varley's stomach; the second, fatal shot sent a bullet into his head. The booking officer and No Chief later tes- tified they each believed up to three seconds passed between the two gunshots. That was crucial evidence for the Supreme Court judges, who ruled the trial judge erred in a sentencing inquiry, as he reached a deci- sion that the four-year mandatory minimum for manslaughter involving a firearm would be "grossly disproportionate." The Supreme Court ruled the trial judge erred in three ways: by attempting to go be- yond the sentencing issues he was required to deal with, by attempting to reconstruct the jury's logic, and by finding facts inconsistent with the jury's finding and the evidence. First, the judge erred by speculating that the jury concluded the first shot was fired in self defence, when in fact the verdict did not "unequivocally indicate" a particular character 'It's still possible that mandatory minimums will be found not to be constitutional in a given case, depending on the circumstances,' says Mark Ertel. Inside This Issue New Digs 5 Dion Steps Up 7 Focus On Immigration Law 9 Quote of the week "I am very keen to be able to bring students into a space that really makes them want to aspire to better and higher things. That's something that would really enhance the great education we offer here." — Mayo Moran dean, University of Toronto Faculty of Law see Hariri, page 5 BY TIM NAUMETZ For Law Times See Mountie, page 2 BY SHANNON KARI For Law Times See Parliament, page 2 *Page 1-16.indd 1 7/18/08 12:49:20 PM

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - March 10, 2008