Law Times

Law Times • sepTember 10, 2018 Page 7 www.lawtimesnews.com Strange things can happen to the PIN BY JEFFREY LEM A lthough it is fairly well known to the Land Registry Office staff, clients can sometimes be mystified at the things they see when they open up their PINs (or, as we shall see, when they can't open up their PINs at all). I can explain to each land registry user the four "indicators" that they may find on their PINs when doing a title search and the implications of each. The first and perhaps most dramatic document indicator is the land registrar's investigation. It's commonly referred to by staff by its acronym, an LRI. An LRI on title means that the land registrar suspects the pos- sibility of a fraudulent instrument, either already on title or about to be registered, and the land registrar has decided to "freeze" the PIN so that no documents may thereafter be registered against the PIN. Now that's something to look for- ward to on the morning of closing. The LRI can be triggered in one of two ways. A "document LRI" is a ver- sion of the LRI that is triggered when the land registrar registers a land registrar's caution against the PIN. The PIN can be read, but no documents can be regis- tered. A "manual LRI" also makes regis- trations impossible and makes the PIN impossible to view as well. A manual LRI is triggered by the land registrar without a correspond- ing land registrar's caution (think of the manual LRI as being a virtual on/off toggle switch sitting in Teraview right in front of the PIN — the land registrar can simply f lip that virtual toggle switch and acti- vate a manual LRI to "freeze" the PIN). Typically, but not always, a manual LRI is trig- gered immediately as an in- terim interlocutory measure, followed by a document LRI in due course. There is also an indicator referred to as a no dealings indicator. This is commonly referred to by staff by its acronym, NDI. An NDI can arise in circumstances similar to those that give rise to an LRI — usually, the land registrar feels that there is some- thing amiss and there is some risk of a fraudulent instrument or an error on the PIN, but where the risk is not quite seri- ous enough to warrant the triggering of an LRI. Curiously, the NDI will not actually prevent the PIN from being viewed or prevent documents from being registered against the PIN. That's right; a PIN that has an active NDI can be pulled and reg- istered against like any other PIN. That said, anyone registering on a PIN with an activated NDI takes with constructive notice that something might be amiss on that PIN. Needless to say, ignoring an NDI is a sure way to get to know your LawPro representative on a very familiar basis. Don't worry about not seeing this type of NDI — it is almost impossible to miss. It will be identified in the qualifiers section of the PIN and there is a pop- up warning inside Teraview if you open a PIN that has an NDI activated thereon. The NDI, like the LRI, also comes in both a manual NDI and a document NDI model, but this is where it gets a little confusing. The NDI described above is what the Land Registry Office staff call a manual NDI, because it is activated by the land registrar throw- ing a virtual switch inside Teraview. The document NDI, however, is noth- ing at all like the corresponding docu- ment LRI. Not even close. As the name suggests, a document NDI arises from the registration of a document, but it is not a land registrar's caution or any document at all coming from the Land Registry Office. Instead, a document NDI is triggered by the registration of a client document — the most common ones being a caution land, application for inhibiting order, application to annex restrictive covenants and application for restrictions based on court order. If any of these documents gets registered on a PIN, Teraview activates a behind-the- scenes "block" on that PIN so that no reg- istrations may subsequently be registered thereon unless the subsequent applicant selects an appropriate statement to "un- block" the PIN. Let's take, for example, an applica- tion for restrictions based on court order. Once the restrictions based on court or- der get registered, Teraview automati- cally blocks the PIN so that no new docu- ments can be registered without the rel- evant "unblocking" law statement. In the case of restrictions based on court order, such "unblocking" statement might be: Statement 3756. "The registration of this document is not prohibited by registration number X" or, perhaps, Statement 3757. "In ac- cordance with registration number X, [Name] has consented to the registration of this document [import consent]"; in each case depending, of course, on what the terms of the original restrictions based on court order were. As always, details can be found in the Electronic Registration Procedures Guide, a guide available for download in the Teraview website. So, there you have it — the manual LRI (the "instant" PIN freeze); the docu- ment LRI (the PIN freeze triggered by the registration of a land registrar's caution); the manual NDI (the instant warning triggered by staff ); and the document NDI (an automatic blocking/unblocking protocol). On top of all these indicators, the Land Registry Office staff also have a general-purpose temporary PIN freeze option to stop all viewing/registration on the PIN pending a decision on the right course of action. LT uJeffrey Lem is the director of titles for the province of Ontario and an elected bencher for the Law Society of Ontario. This article reflects the personal views of the author alone. Shift discretion on mandatory minimums BY ANNE-MARIE MCELROY W hen the Liberal government came into power in 2015, there was a feeling among criminal lawyers of a shift in philosophy toward criminal justice. Under Stephen Harper, we saw a spate of reforms, usu- ally aimed at reassuring Canadians that they would be safe from the "criminals." The sunny ways of Prime Minister Justin Trudeau's government would replace the crime and punishment regime with a more sensible and evidence-based approach. Minister of Justice Jody Wilson-Raybould announced that the government would include examining mandatory minimum sen- tences, many of which were introduced under Harper's reign. In a way, the mandatory minimums were low- hanging fruit: Many had been deemed unconstitution- al and struck down, and there was growing evidence that such sentences did not ultimately deter crime. These changes have yet to come from the House of Commons. Instead, there is movement afoot from the Senate and from a bill proposed by Senator Kim Pate. While it may seem trite, it bears emphasizing that sentencing is a crucial part of the criminal justice sys- tem. A judge is tasked to consider not only the circum- stances of an offence but also the specific background of the accused person and the systemic factors that may have contributed to them coming before the courts. With jurisprudence to guide the appropriate ranges of sentencing, the judge weighs the aggravating and mitigating factors to come to a just sanction. However, when a mandatory minimum sentence applies, the judge does not have the same level of discretion. Their hands are bound by a sentence that has been deter- mined by Parliament as opposed to their own analysis. In taking discretion from judges, mandatory mini- mum sentences also serve to shift power to the pros- ecutors and defence lawyers, who may negotiate dif- ferent counts or offences in order to avoid a punitive mandatory sentence. The difficulty with mandatory minimums is that the one-size-fits-all approach often captures those who simply do not fit. A set of circumstances of a factual background means that the mandatory minimum sen- tence would be disproportionate or unjust. These sce- narios can be costly on a number of fronts. First, a man- datory minimum sentence can incentivize a person's desire to either go to trial to avoid that penalty, where they might otherwise plead guilty, or plead to a lesser offence. Otherwise, an individual might challenge the constitutionality of the sentence, arguing that it does not comply with rights enshrined in the Charter and, therefore, should be struck down. The reasonable hypotheticals are often not so far- fetched. Consider, for example, a young man who engages with a 14-year-old online but fails to take ad- equate steps to verify her age. Should this behaviour be punished by a year in jail for a man with no criminal record? These were the facts in the case of R. v. Mor- rison, where the Ontario Court of Appeal confirmed that the one-year mandatory minimum for child luring was grossly disproportionate and, therefore, unconsti- tutional. Or consider a naïve 24-year-old man with no criminal record who posts a photo of two girls who he believed to be 18 years old on an escort ad. This scenario was considered recently in the Ottawa Superior Court by Justice Colin McKinnon in R. v. Joseph. Here, the judge found that the one-year mandatory minimum sentences for both receiving a benefit from prostitution from a person under 18 years of age and making and possessing child pornography were unconstitutional. While these are individual examples, mandatory mini- mum sentences can also disproportionately affect those from marginalized communities that might most ben- efit from a more rehabilitative sentence. Bill S-251 proposes to amend the Criminal Code to give the court the discretion to vary a sentence where a mandatory minimum applies, as well as to decline to make a mandatory prohibition order, so long as it is just and reasonable to do so. Should this be the case, the judge must provide written reasons. The bill falls in line with the sentencing principle of restraint, inso- far as it demands that the court consider all available options prior to imposing a minimum punishment of imprisonment or parole ineligibility. The language proposed echoes the wording in s. 718(2)(e) of the Criminal Code, which requires a judge who is sentenc- ing an Indigenous offender to consider all other avail- able sanctions before imposing a custodial sentence. This wording may well have been intentional. In her speech to the Senate on May 31, Pate referenced the government's obligations to implement the calls to ac- tion of the Truth and Reconciliation Commission, par- ticularly that of number 32, which calls for the federal government to amend the Criminal Code to allow for trial judges to depart from mandatory minimum sen- tences and restrictions on the use of conditional sen- tences. Indeed, mandatory minimum sentences con- tribute to the over-representation of Indigenous people in Canada's jails where more community-based, reha- bilitative consequences are not available as a sentence. The bill essentially acts as an escape valve for judges who are faced with a situation where the circumstances of a case of background of an accused person are such that the mandatory minimum sentence would be un- just. In this case, they can bypass a constitutional chal- lenge or other litigation and deliver a sentence that would be fair. And, of course, if there is a question as to whether the sentence is outside of the appropriate range, then the decision can be reviewed by an appellate court. So, while we wait for meaningful criminal justice re- form from the Liberal government, Pate's bill proposes to provide an important change to our system that could dramatically impact the lives of many people who find themselves before the courts. In shifting dis- cretion back to judges who are best equipped to care- fully examine the circumstances of an individual, the courts will be in a better position to impose sentences that are appropriate, just and fair. LT uAnne-Marie McElroy is a sole practitioner, criminal defence lawyer and blogger based in Ottawa. u SPEAKER'S CORNER COMMENT The Dirt Je rey W. Lem Je rey W. Lem

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