Law Times

November 28, 2016

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Page 2 November 28, 2016 • Law Times www.lawtimesnews.com NEWS draft guidelines asked that the ministry not issue the guide- lines, and MAG complied with that request. The working group plans to meet with Attorney General Yasir Naqvi at a "min- ister's roundtable" discussion, which is set to take place Dec. 5. "They appear to be at log- gerheads on the issue of not just should prosecutorial guidelines be drafted but what the content of them should be, and it's my hope that this document being made public will help break that logjam," says McCann. Brendan Crawley, a spokes- man for MAG, said it would be inappropriate for the ministry to comment, as the Divisional Court's decision is still within the appeal period. LT the program manager had com- mon interests, which would have preserved solicitor-client privi- lege. The ministry said the com- mon interest was the reduction of harm and the protection of society, but the Divisional Court sided with the privacy commis- sioner, who said that interest was too broad and that the two enti- ties have very different practical mandates. "The Commissioner's rejec- tion of the common interest was reasonable. The result is justified, transparent and intelligible," Jus- tice Carolyn Horkins wrote in the Divisional Court decision, Ontario (Attorney General) v. Ontario (Information and Pri- vacy Commissioner), which was released on Nov. 15. It is not clear whether the provincial government plans to appeal the decision, but Mc- Cann says that if and once the document is released, it could help those being prosecuted in HIV-related cases understand how Crown prosecutors are ap- proaching these matters. For years, AIDS services or- ganizations have pushed the provincial government to de- velop an official set of guide- lines for prosecuting HIV non- disclosure cases, but with little progress. Between 1989 and 2013, around 155 people were criminally charged in Canada for not disclosing they had HIV and a majority of these prosecu- tions occurred in Ontario, ac- cording to the Canadian HIV/ AIDS Legal Network. Human rights lawyers say the problem with the lack of official guidelines for these HIV non- disclosure cases is that there is such a wide scope of charges de- fendants can face, some of which are very serious. Ryan Peck, the executive director of HIV & AIDS Legal Clinic Ontario, says those prosecuted in these cases often face aggravated sexual as- sault charges, which are used to prosecute serious forced sex acts. In 2010, a group called the Ontario Working Group on Criminal Law and HIV Expo- sure launched a campaign call- ing on MAG to create a set of prosecutorial guidelines. The ministry agreed to do so, but after years of consultations and delays, an official set of guide- lines has not materialized yet. "The current use of the crim- inal law is simply out of step with science and human rights," Peck says. A handful of lawyers, including Peck, on the working group were allowed to review draft guidelines in November 2014. It is unclear whether these are the same draft guidelines McCann requested, as the law- yers who reviewed the guide- lines are not permitted to dis- cuss their contents. The lawyers who viewed the Continued from page 1 Wide scope of charges possible for HIV non-disclosure to the principles to be applied as to when it's appropriate for an administrator to attempt to re- litigate the issues before a tribu- nal that have been previously de- cided," says Christopher Wirth, a partner with Keel Cottrelle LLP. Wirth was not involved in the case. The ruling concerned three CITT decisions the government appealed and the Federal Court of Appeal heard together. The two other decisions were Ever Green Ecological Services Inc. and Southern Pacific Resourc- es Corp. In all three cases, importers brought goods from the United States into Canada under a tariff treatment called most favoured nation. The importers later found their tariff classifications were incorrect, filed a correction and notified the CBSA of the change. They needed their goods to be changed from MFN to NAFTA, as they would otherwise have to pay duty. In all three decisions, the CITT "upheld the ability of im- porters to correct certain cus- toms declarations in order to obtain more favourable treat- ment," rejecting submissions by the CBSA, which argued that the MFN tariff treatment declara- tion on the goods could be con- sidered correct and, therefore, should not be changed. In its appeal of the tribunal's decision, the federal government — acting on behalf of the CBSA — argued that the abuse of pro- cess finding is inconsistent with the legal principle that one panel of an administrative tribunal does not bind others. Stratas, however, said that while tribunals are not bound by earlier decisions, they should try to follow them unless they have good reason not to. The court laid out two excep- tions for when earlier tribunal decisions should not be fol- lowed. The first is whether an ad- ministrator can show that the facts of their case are different and that the earlier decision, therefore, would not apply. The second exception is if an administrator can show that there is a "well-founded, bona fide concern that the earlier de- cision is f lawed and should not be followed." Patrizia Giolti, a spokes- woman for the CBSA, said the government is reviewing the de- cision. "It would be premature at this point to say whether leave to appeal will be sought from the Supreme Court of Canada," she said in an email. LT CITT's decisions upheld Continued from page 1 © 2016 Thomson Reuters Canada Limited 00238CY-84416-CE Drafting Assistant – Transactional also: • Flags discrepancies in defined terms, numbering, punctuation, and non- conforming phrases • Hyperlinks those flagged issues, allowing you to navigate to the exact location within your documents • Links key concepts such as cited sources and defined terms • Scans your document and quickly connects to other documents referenced in the transaction With Drafting Assistant – Transactional, you'll expedite the document review process and spend more time tackling the substantive, client-specific issues that matter most. 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