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November 30, 2015

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SCC zeroes in on penile swabs BY SHANNON KARI For Law Times he clash between the pri- vacy rights of a criminal suspect and the powers of police is once again before the Supreme Court of Can- ada. This time the court must de- cide whether police are permitted to force an individual suspected of committing a sexual assault to pro- vide a genital swab for the purposes of obtaining DNA evidence. The appeal, scheduled to be heard Dec. 1, stems from an in- cident in Alberta more than four years ago. A 15-year-old woman and a friend were at the apartment of Ali Hassan Saeed along with three other men, after an evening of drinking. Saeed, who was 26 at the time, was arrested after he alleg- edly sexually assaulted the woman at knifepoint. He was taken into custody by police, placed in a cell without water or a toilet, and hand- cuffed to a steel pipe attached to the wall, with his arms behind his back. About 90 minutes later, police or- dered Saeed to wipe his penis with a swab. The DNA evidence collected in the swab matched that of the com- plainant. The trial judge found that the search was unreasonable but ad- mitted the evidence under s. 24(2) of the Charter. A majority of the Alberta Court of Appeal found that a warrant should have been obtained first, yet it also upheld the conviction under s. 24(2). The other judge on the panel found that this was a legitimate search incident to arrest under the common law powers of police and a warrant was not necessary. Whether a genital swab without a warrant is appropriate should be governed by the same test the Su- preme Court set out in R. v. Golden for strip searches is the position of the Alberta Crown and the Ontario Ministry of the Attorney General, which is an intervener. A genital swab is no different than a test for gunshot residue on a suspect and it is not an intrusion on bodily integrity, said Alberta Crown attorney Maureen McGuire in written arguments filed with the Supreme Court. "Penile swabbing is the retrieval of something that does not belong to the suspect; the A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY CANADIANLAWYERMAG.COM/LEGALFEEDS FEEDS LEGAL POWERED BY LegalFeeds_LT_Dec1_14.indd 1 2014-11-26 9:44 AM Judges chide firm's fees and retainers Merchant Law Group under fire in Ontario courts BY NEIL ETIENNE Law Times ontroversial Saskatchewan class actions firm Merchant Law Group LLP took a bruising from the Ontario bench, as two justices in three November rulings had choice words for the firm's tactics. In Bancroft-Snell v. Visa Canada Corporation, Superior Court Justice Paul Perell pointed to what he said could possibly be an "illegal" fee-sharing agreement created by MLG when ruling it was unenforceable, and ordered the firm not to be compensated. MLG was also taken to task in McCallum-Boxe v. Sony for what Justice Edward Belobaba called the "antithesis" of what's in the best interest for the class, and in Kutlu v. Labo- ratorios Leon Farma S.A., where Perell held parts of a letter sent to class members was "offensive" because it suggested their counsel was acting "without instructions or improp- erly" on the class' behalf in delivering an opt-out notice. The cases have some lawyers saying a national class action regime would be one way to quell questionable tactics and keep matters moving in class actions. "The Canadian constitution assigns jurisdiction over property and civil rights to the provinces. Class actions must, therefore, proceed through the superior courts of each province," notes Jay Strosberg, oftSutts Strosberg LLP. "Unfortunately, some law firms in Canada have abused this structure in order to gain the upper hand in situations where carriage is an issue, and when it comes to the divi- sion of fees in the context of a class action settlement. Strosberg says "the situation has now reached a point of crisis," adding that in terms of jurisdictional issues and deciding carriage of a matter, "it's a crisis because it's caus- ing substantial delays in the prosecution of class actions. As the saying goes, if justice is delayed, justice is denied." He says it is unfair to class members who want their ac- tions prosecuted expeditiously, to defendants who want to be exonerated or pay to resolve the issues and move on, and to class counsel, who spend a great deal of time and money arguing carriage motions in multiple jurisdictions. It also places judges in an awkward situation of issuing potential- ly conf licting decisions. In Bancroft, Perell approved settlements, contingency fee agreements, and a class counsel fee of $3,384,571, but he ruled a fee-sharing agreement crafted between MLG and Camp Fiorante Matthews Mogerman was unenforce- able and ordered Camp not to pay any sums from the settlement proceeds or from any other source, ever, "on ac- count of the unauthorized and possibly illegal" fee-sharing agreement to MLG. The case involves interchange fees paid by merchants who accepted payment by Visa or MasterCard credit cards. Actions were launched in five provinces and, in August of 2014, class counsel, led by lawyers from Camp Fiorante Matthews Mogerman and the late-coming Merchant Law Group, attended a judicial dispute resolution conference that resolved an impasse for carriage in Alberta and Sas- katchewan when MLG agreed to stay its rival proposed class actions. Under that agreement, class counsel from Mogerman assumed the responsibility and cost of obtain- ing stays and they agreed to indemnify MLG for any costs claims in the stayed Alberta and Saskatchewan actions. Perell said not only did he find the agreement potential- ly illegal because it would have had class members in On- tario "pay a ransom fee in order to stay late-arriving rival CATASTROPHIC INJURY Insurer must pay 'special award' P2 RUSONIK SETTLES Firm ends suit with former employee P5 FOCUS ON The Business of Law P8 Justice Paul Perell writes 'there is a smell of ambulance chasing by the Merchant Law Group.' See Genital, page 3 See Perell, page 3 Genital swabs 'highly intrusive,' says Julian Roy. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 38 November 30, 2015 Follow LAW TIMES on L AW TIMES C T

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