Law Times

PAGE 2 NEWS March 29, 2010 • Law TiMes Court took 13 months to issue ruling Continued from page 1 without more, constitute possession." "While the cached fi led might be in a 'place' over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Th us, it must be shown that the fi le was knowingly stored and retained through the cache." Justice Marie Deschamps, with justices Louise Charron and Marshall Rothstein concurring, argued that despite the faults, the contents of the information could have given a justice of the peace reasonable grounds to believe there was child pornography in the computer. Phil Downes, a Toronto criminal defence lawyer, says Fish's ruling sets a landmark for computer searches in Canada. "He explains, it seems to me, why it's absolutely crucial that information to obtain search warrants be fair and accurate because of the incredible invasion of privacy involved," Downes tells Law Times. Frank Addario, past president of the Criminal Lawyers' Association, says that "search warrant practice in Canada has been getting progressively sloppier. Th e court took the opportunity in this case to correct that drift." But for some members of the public, Fish's goal of preventing the administration of justice from falling into disrepute rings hollow. Th e eventual search, four months after the technician visited Morelli's home, found child pornography on the computer. "It's upsetting, it seems very wrong," Heidi Illingworth, executive director of the Canadian Resource Centre for Victims of Crime, tells Law Times. Eugene Meehan, chairman of the Supreme Court practice group at Lang Michener LLP, noted it took the seven judges 13 months to produce a judgment after hearing the case in February 2009. "Generally, an ex- tended delay is a marker the court is having an extended problem coming to a decision." LT Staff left in lurch after fraudster skipped town Continued from page 1 them to give him the money to hold in a trust account, says Jones. But he had no trust account and placed those funds directly into bank accounts under the name of David Carter. In an eff ort to show clients he had completed work on their behalf, Villanueva would create fi ctitious letters pur- portedly sent to former employers or the Immigration and Refugee Board of Canada, says Jones. But as time went on and a growing number of clients saw no results stemming from their cases, they came forward with complaints starting in the middle of 2007 to the LSUC, says Jones. He says the law society dealt with those complaints through writ- ten correspondence to David Carter "basically telling him that he wasn't following the rules for foreign lawyers in Canada and in Ontario." Villanueva responded by saying he wasn't aware he was breaching the rules and promis- ing to hire lawyers from Ontario to perform services, Jones says. In the meantime, Jones notes that the two actual lawyers at the fi rm, both recent Ontario law graduates in their fi rst jobs out of school, were the only people at the operation to be doing bona fi de legal work. "In fact, it was one of them that began to see that nothing ever re- ally was coming of the work that Carter was supposed to be doing. Th at originated a complaint again with the law society, as well with the police themselves." By then it was the fall of 2007, and Villanueva began to see the young lawyer was catching on to the fraud. He proceeded to com- plain to police that the lawyer had stolen laptops from the offi ce, prompting the pair to part ways. "But it wasn't really until the end of 2007 when the whole house of cards started to fall apart," says Jones. Th ere were now several staff ers in the offi ce — the offi ce manager, a couple of researchers, an investi- gator, and two lawyers — and the fi rm had a reasonable client base. Th ose clients were eager to resolve their matters, says Jones. Meanwhile, Villanueva was running up debts with a car- rental agency and wasn't paying rent on a furnished condo, says Jones. "Clearly, he could see at this point that he was running a real risk of being found out. . . . It's known that he went around and viewed some $1-million homes with one of his employees who he'd convinced he'd buy the home and put it in her name." By the time Christmas of 2007 Inside you will find: • an up-to-date alphabetical listing of more than 57,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. More than a phone book Hardbound • Published February each year • On subscription $141 • P/C 0600140999 One-time purchase $157 • P/C 0600010999 • ISSN 0084-8573 CD-ROM • On subscription $214 • P/C 0600260999 One-time purchase $229 • P/C 0600210000 came around, Villanueva knew the game was over, Jones says. He threw a big offi ce party, gave his employees the week off between Christmas and New Year's Day, and disappeared after telling peo- ple he was leaving to visit his fam- ily. Th e employees and his clients never saw him again. "Everything collapsed, leav- ing the employees to pick up the pieces: the complaints from the clients wondering where their fi les were, what was happening with their cases," says Jones. "Th at's re- ally when the fl ood of complaints to the police came in." Villanueva received an eight- year jail sentence for convic- tions on three fraud charges, says Jones. It was a diffi cult scam to pull off , he notes, adding Villan- ueva is extremely intelligent and was able to create the persona of a powerful attorney. Meanwhile, aside from a let- ter that was sent, Jones says he didn't come across any additional indications that the public was protected by law society oversight in the Villanueva case. "Certainly, upon seeing this For a 30-day, no risk evaluation call 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping and handling. www.lawtimesnews.com CLL ad - new.indd 1 3/23/10 4:26:57 PM individual had no registration or history with the law society, cer- tainly investigators should have attended personally, and prefer- ably unannounced, to determine what was going on at that offi ce," says Jones, who suggests police and the law society could ben- efi t from better communication in general. "Really, I don't think it would have taken much in the way of eff ort to reveal this for the fraud that it was quite early on. Or, frankly, for that matter, if they couldn't investigate, contact the police to say, 'Can you look into this?'" LT

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