Law Times

March 29, 2010

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Follow on Subscribe to Law Times And receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE $3.55 • Vol. 21, No. 11 Covering Ontario's legal Scene SCC sets landmark for searches, lawyer says Child-porn ruling sparks debate BY TIM NAUMETZ For Law Times OTTAWA — Th e Supreme Court of Canada's split decision overturning a child-pornography conviction because of misleading information used to obtain a search warrant sets strict ground rules for police as pressure mounts to curb child pornography, defence lawyers say. But federal Justice Minister Rob Nicholson is reviewing the judgment, at least in part given division within the court about whether a computer's stored cache of images from an illegal web site constitutes possession under Criminal Code provisions covering child pornography, an aide to Nicholson says. "Yes, the government is reviewing the deci- sion," Geneviève Breton, Nicholson's commu- nications director, told Law Times in response to a question about whether Nicholson is con- sidering a legislative amendment to clarify the status of a computer's cache in child-pornogra- phy prosecutions. "As indicated in the speech from the throne, we will be looking at increasing the penalties for sexual off ences against children," Breton said in an e-mail. "We also intend on reintroducing our government's legislation on the mandatory reporting of Internet child pornography." Th e comments and debate about the potential criminal status of a computer cache, although signifi cant for future investigations, was almost an aside compared to the scathing criticism Justice Morris Fish levelled at the information an RCMP constable swore to obtain a search warrant in the remote northern community of La Ronge, Sask. in order 'to establish possession, it is necessary to satisfy mens rea or fault requirements as well,' wrote Justice Morris Fish. "It is diffi cult to imagine a search more intrusive, extensive or invasive of one's privacy than the search and seizure of a personal computer," Fish wrote for the majority. "First, police offi cers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you," he said, adding police then "scour" its contents. "Th at is precisely the kind of search that was authorized in this case. And it was authorized on the strength of an information to obtain a search warrant that was carelessly drafted, misleading, and factually incorrect," Fish wrote at the outset of the decision in R. v. Morelli. Among other things, Fish slammed the in- vestigating offi cer for including false sugges- tions that a phone company technician had seen child pornography on a computer owned by La Ronge resident Urbain Morelli. Th e tech- nician, while installing a high-speed Internet connection, had actually seen only "favourites" icons for two child-pornography web sites and icons for adult pornography as well as an adult pornographic image on the computer. Th e information also included insinuations that a webcam near a child's play area in the home was linked to the two icons and related to child pornography as well as false suggestions that the technician had seen "Lolita porn" on the computer screen that had been removed when he visited again the next day. "Th e only pornographic image that [the technician] actually did see — an image on the accused's desktop or Internet homepage — was perfectly legal adult pornography," Fish wrote. Fish, among other comments, emphasized the distinction between a computer's cache of images viewed over the web and data that has been downloaded from a web site in his criti- cism of the information used to obtain the war- rant. Citing previous decisions and explaining computer functions during the process of ac- cessing web sites, he wrote that "the automatic caching of a fi le to the hard drive does not, See Court, page 2 sume the role of a powerful Toron- to lawyer, but a police investigator suggests the losses could have been much less had the Law Society of Upper Canada taken more aggres- sive action. "I personally have a lot of ques- LSUC should have stopped fake lawyer: police A BY ROBERT TODD Law Times man was jailed this month for a $150,000 fraud scheme that saw him as- tions about what was done on the law society's end to investigate the complaints that had come in early on," says Toronto police Det.- Const. Corey Jones. "Th ey were the fi rst ones to have been notifi ed about anything suspicious going on with this individual." Law society communications adviser Susan Tonkin responded that LSUC investigations are confi dential but wouldn't com- ment on the case. In an e-mail to Law Times, however, Tonkin said clients can verify a lawyer or paralegal's status through the law society's online directory. "If the person claiming to be a law- yer or paralegal licensee is not listed in the database or if there is a dis- crepancy with the person's address or other information, it is quite possible that he or she is a fraudster and/or engaged in the unauthor- ized practice of law or unauthor- ized provision of legal services," she said. Th e latest chapter in the case at hand began in late 2006 when Da- vid Villanueva, 48, fl ed Nova Sco- tia and set up shop in Toronto, says Jones. He obtained fake identifi ca- tion in the name of David Carter, forged tax returns, opened bank ac- counts, obtained credit cards, and took on the persona of a success- ful Miami lawyer. He hung out a shingle at the Toronto Star building in the city's downtown for a fi rm he called Carter Herzog, the latter name attributed to his purported lawyer-mentor from Miami who had died, says Jones. Villanueva then hired employ- ees, including an offi ce manager and an assistant. He also hired two actual lawyers, one of whom, Marc Charrier, said in a victim impact statement fi led in the case that the fraud by his boss left him depressed, caused him to lose weight, and put him in fi nancial distress due in part to not receiving $7,000 in pay. "It Gearing Up 7 Cutting Red Tape 8 Focus On Energy/ Environmental Law Quote of the week "It's often the in-house lawyer or environmental lawyer who can kick-start or assist the board of directors or senior management before an environmental event gives rise to liability." — Marc McAree, Willms & Shier Environmental lawyers llP See Directors, page 12 earlug.indd 1 March 29, 2010 11/10/09 11:20:32 AM Inside This Issue 5 has also caused me worry because, even though I know police and the law society know that I and other people in the offi ce did not do any- thing, I don't want my career to be torpedoed before it's really begun because of the actions of this man," Charrier wrote. Villanueva attempted to attract clients by advertising in ethnic media outlets and off ering services for those dealing with Workplace Safety and Insurance Board or im- migration matters. Clients were told he could help them land a massive settlement from the WSIB and charged a retainer of $500 to $2,000. On top of that, he told WSIB claimants they couldn't keep any settlement they had received if they hoped to appeal it and got See Staff, page 2 THERE IS A DIFFERENCE RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-5 1 Tel: 416-863-9543 Fax: 416-863-9757 3/23/10 11:35:15 AM Click here to subscribe today to LAW TIMES Includes a FREE digital edition! Go to:

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