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October 6, 2014

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Charge in Costco death raises interesting legal questions By yamri taddeSe Law Times here's an interesting criminal law question in a new charge police have added against the driver involved in a horrific London, Ont., crash that claimed the life of a young girl and, days later, that of her newborn sister. In July, Danah McKinnon- Bozek, who was eight months preg- nant, was with her two daughters at a Costco when a car slammed into the storefront and injured all three of them. One of McKinnon-Bozek's daughters died of her injuries and after she gave birth through an emergency C-section, the infant, too, passed away days later. Police have charged the driver on two counts of criminal neg- ligence causing death, but the charge related to the infant raises the question of whether police can lay a charge over the death of someone who wasn't, for the pur- poses of the Criminal Code, a per- son at the time of the incident. The Crown will likely evoke a little-known subsection in the Criminal Code that deals with cases like this. Subsection 2 of s. 223 of the Criminal Code reads: "A person commits homicide when he causes injury to a child before or during its birth as a re- sult of which the child dies after becoming a human being." It's an extremely time-sensitive and medically dependent section one lawyer calls a "glitch" in the system. "It highlights a very strange glitch in our criminal law, which is if the child dies before being born, you can't be charged with the death of a person," says Howard Rubel of Toronto law firm Heller Rubel. "I call it a glitch because at some point, it becomes very, very short term temporally as to whether the same action can lead to a ho- micide-type charge or no charge at all," he adds. "It's rather strange that so much legal consequence can be determined just by a f leet- ing few minutes on whether a child survives birth or not." Several Supreme Court of Can- ada decisions — R. v. Morgentaler, Borowski v. Canada (Attorney General), and Tremblay v. Daigle — have established that a fetus has no Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation )BSECPVOEȕ1VCMJTIFE'FCSVBSZFBDIZFBS 0OTVCTDSJQUJPOȕ- 0OFUJNFQVSDIBTFȕ- .VMUJQMFDPQZEJTDPVOUTBWBJMBCMF 1SJDFTTVCKFDUUPDIBOHFXJUIPVUOPUJDF]UPBQQMJDBCMFUBYFTBOETIJQQJOHIBOEMJOH CANADIAN LAW LIST 2014 :063*/45"/5$0//&$5*0/50$"/"%"Ȏ4-&("-/&5803, ȕ BOVQUPEBUFBMQIBCFUJDBMMJTUJOH ȕ DPOUBDUJOGPSNBUJPO ȕ MFHBMBOEHPWFSONFOUDPOUBDUJOGPSNBUJPO .03&5)"/"1)0/�, CLLdir_LT_Oct6_14.indd 1 2014-09-30 9:25 AM members leave CBa over Chevron case By yamri taddeSe Law Times ome members of the Canadian Bar Association are considering giving up their memberships after the organization decided to intervene in support of Chevron Corp.'s position in the oil company's up- coming legal battle against the indigenous Mayan people of Ecuador at the Supreme Court of Canada. E-mails obtained by Law Times show the CBA is mov- ing ahead with the intervention despite a recommendation from the aboriginal law section that it refrain from doing so. The e-mails suggest some executive members of the section have resigned as a result of the organization's decision. The thrust of the case against Chevron is that the com- pany caused extensive pollution in the Lago Agrio region of Ecuador. The Mayan villagers had obtained judgment for $9.51 billion in a local court against Chevron and they're now seeking to enforce it against the company's as- sets in Ontario. A lower court had tossed out the case against Chevron on grounds that there was no jurisdiction in Ontario to enforce the judgment, but the Ontario Court of Appeal reversed that decision. The CBA denies it's backing Chevron and says its position will simply clarify corporate principles, including the corpo- rate veil and the enforceability of foreign judgments in Cana- da. But some members, such as aboriginal section executive member David McRobert, say they fundamentally disagree with those principles. "We think corporations have too much power in so- ciety, and there are issues around accountability," says McRobert. McRobert says he's so unhappy with the CBA's decision to intervene that he's struggling with whether or not to ter- minate his membership. The concern for some members of the CBA is that the orga- nization has retained Blake Cassels & Graydon LLP for its inter- vention give n that the firm acts for Chevron in other matters. McRobert says the decision to intervene in the case is in- consistent with the CBA's approach to previous situations. Unlike the current case, he says the CBA often dives into mat- ters when they relate to the role of lawyers, such as issues of solicitor-client privilege, he says. The decision to advance corporate principles in this mat- ter gives the public an impression that lawyers are against the rights of aboriginal people, according to McRobert, who notes Chevron is a well-represented party in this matter and that entities other than the CBA could intervene without causing a controversy. "As a precedent for the CBA, I worry about what it signals," he says. Another member of the aboriginal law section, Judith diVerSitY StatS Lawyers want numbers for judges P3 LEGISLATIVE MESS Crime bills poorly drafted P7 FoCuS on Insurance Law P10 See Causation, page 2 See CBA, page 2 'It's rather strange that so much legal conse- quence can be determined just by a fleeting few minutes on whether a child survives birth or not,' says Howard Rubel. Photo: Robin Kuniski PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $4.00 • Vol. 25, No. 32 October 6, 2014 L aw TIMes L aw TIMes S Lawyers targeted at Queen's park Protesters demanded greater protections for the public from lawyers last week outside Queen's Park. The protest follows revelations in the case of lawyer Meerai Cho, who's facing fraud charges over condo buyers' missing deposits. See story on page 4. Photo: Yamri Taddese T FoCuS on Insurance Law e: ssoil@docudavit.com www.docudavit.com Litigation Support Our Document Management Services include: Scanning • Indexing • OCR (Optical Character Recognition) • Electronic Document Capture and More - Call Us, We Can Help! ntitled-1 1 2014-09-26 9:29 AM

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