Law Times

April 27, 2009

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www.SavewithGuthrieInsurance.com Online insurance quotes at For the best Auto Home Business Life & Leisure Insurance call McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com ckellar_LT_Jan14_08.indd 1 $3.55 • Vol. 20, No. 141/8/08 3:03:02 PM Inside This Issue 3 Web Site Photos 6 Curb Expert Bias 14 Focus On IT/ Telecommunications Law Quote of the week "I think it would be very positive if Ontario would lead the way [by telling] retailers to put a sign on their counter: 'Excessive game play may be Covering Ontario's Legal Scene Insurance Brokers Ltd 416-487-5200 1-888-310-SAVE info@guthrieinsurance.com Since 1962 - Our Goal is Your Financial Security uthrie_LT_Apr27_09.indd 1 SCC backs Civil Remedies Act Defence bar condemns decision BY ROBERT TODD Law Times edies Act, saying the province now has an easier route to punishing alleged offences after failed criminal proceedings. Toronto criminal defence lawyer Leora T he criminal defence bar is condemn- ing a Supreme Court of Canada de- cision backing Ontario's Civil Rem- Shemesh calls the CRA a form of "double punishment" for accused. "You go to court, the Crown knows full well that the charges are terrible and they can't make out their case because the search was horrible, so they withdraw the charge, and then they bring a Civil Remedies Act applica- tion to keep the money that they found on the accused," says Shemesh, who adds that she has at least two clients facing the prospect of losing their homes due to CRA applications. "It sort of leaves open the possibility that if police get things wrong, they can still make it right by taking people's monies, and homes, and cars, and so forth. So you're being pun- ished in the eyes of the law, or being criminal- ized, without actually being proven guilty." Adds Shemesh, "I just think the two sys- tems ought to work more efficiently together. And I just think they're on different railroad tracks, so to speak." The decision arises from Chatterjee v. On- hazardous to your health.'" Brad Dorrance, London chapter founder, On-line Gamers Anonymous See Deaths, Page 15 of unlawful activity and the items as instru- ments of unlawful activity. Chatterjee responded by arguing that the CRA is unconstitutional, saying it impinges on the federal criminal law power. The top court disagreed. April 27, 2009 4/21/09 11:07:03 AM "The argument that the CRA is ultra vires is based in this case on an exaggerated view of the immunity of federal jurisdiction in relation to matters that may, in another aspect, be the sub- ject of provincial legislation," the court stated. "Resort to a federalist concept of proliferat- ing jurisdictional enclaves . . . was discouraged by this court's decisions in Canadian Western Bank v. Alberta . . . and British Columbia (At- torney General) v. Lafarge Canada Inc. . . . and should not now be given a new lease on life." The court noted that the CRA was put in place to discourage crime and compensate victims. "The former purpose is broad enough that both the federal government (in relation to criminal law) and the provincial governments (in relation to property and civil rights) can val- idly pursue it," the court stated. "Crime imposes substantial costs on provin- Leora Shemesh has at least two clients facing the prospect of losing their homes due to Ontario's Civil Remedies Act applications. tario. Robin Chatterjee was arrested in March 2003 for breach of probation, according to the decision. Police searched his car during the ar- rest and found $29,020 in cash, an exhaust fan, light ballast, and light socket. Police said the items smelled of marijuana, but no drugs were found. Chatterjee was never charged with any crimes related to the money, items, or any activity related to drugs. The Attorney General of Ontario on May 13, 2003, was granted an order under the CRA to keep the seized money and equipment, and on May 16, 2003, applied under sections of the act for forfeiture of the money as proceeds ment that the CRA in rem remedy effectively adds to penalties pursued in the criminal pro- cess, thereby interfering with the sentencing regime created by Parliament. cial treasuries. Those costs impact many provin- cial interests, including health, policing resourc- es, community stability, and family welfare. It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot use deterrence to suppress it." The court disagreed with Chatterjee's argu- Lawyer's money laundering term lengthened T BY ROBERT TODD Law Times he Ontario Court of Ap- peal has lengthened a To- ronto lawyer's sentence for money laundering, citing his status as a lawyer a "significant aggravat- ing factor" that damages society's profession," wrote Justice David Doherty for the panel of judges also made up of Justice Eleanore Cronk and Justice Gloria Epstein. "In the long run, that cynicism must undermine public confi- dence in the justice system." Simon Rosenfeld, whose prac- tice has been restricted by the Law the appeal court decision. Rosen- feld was handed sentences total- ling three years, and ordered to pay a fine of $43,230. Rosenfeld appealed the convic- tions and sentence, and the Crown appealed the sentence. The appeal court sided with the Crown, length- ening the sentence to five years. Lawyers are duty bound to protect the administration of justice and enhance its reputation within their community. Criminal activity by lawyers in the course of performing functions associated with the practice of law in its broadest sense, has exactly the opposite effect. confidence in the legal profession. "Lawyers like the appellant who choose to use their skills and abuse the privileges attached to service in the law not only discredit the vast majority of the profession, but also feed public cynicism of the Society of Upper Canada, was convicted by a jury at the Superior Court of Justice in February 2005 of two counts of laundering the proceeds of crime and one count of attempting to possess money obtained by crime, according to ida, Rosenfeld met RCMP Insp. William Majcher, who posed as a front man for a big Columbian drug cartel, according to Doherty. In May 2002, Rosenfeld agreed to launder cash that Majcher said In March 2002 while in Flor- See Decision, page 4 were proceeds from the cartel's global cocaine trade. Majcher said the cartel brought in $3 million each month and needed the money laundered. Rosenfeld agreed to be paid eight per cent to provide the ser- vices required, wrote Doherty. In June 2002 in Toronto, Majch- er paid Rosenfeld $250,000, which he was told were proceeds of the cartel's cocaine operations. Rosen- feld then laundered the money by way of transactions and bank ac- counts under the names of shell cor- porations, and the funds eventually ended up in the Florida accounts of the supposed drug cartel. Weeks later, Majcher gave Rosenfeld US$190,000, which he laundered through a similar process, said Doherty. See Overwhelming, page 4 Maybe you need a better mousetrap. Tel: 416.322.6111 Toll-free: 1.866.367.7648 www.doprocess.com Industry leader in legal software for real estate, corporate and estates for over a decade www.lawtimesnews.com

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