Law Times

Law Times • January 28, 2013 Page 3 NEWS Substituting one accused for another lands Crown in trouble Judge orders costs after Hamilton company convicted without notice of liquor charge BY YAMRI TADDESE Law Times A n Ontario Court judge has ordered costs against the Crown and quashed the conviction of a Hamilton, Ont., bar found guilty in absentia of failing to abide by a liquor regulation because its principal never knew of the charge after the Crown substituted her company's name for another's. In R. v. 1820419 Ontario Inc., Ontario Court Justice Maria Speyer awarded costs of $4,500 to the bar. The bar's principal, Josie Di Trapani, only learned of the conviction for exceeding the authorized number of people on its premises when she received notice of a fine. She received the notice on March 6, 2012, two weeks after the conviction on Feb. 23 of that year. Di Trapani is principal of the Blue Mountain Bar, which changed hands after an officer of the corporation died in advance of the trial date. The deceased was aware of the charge against the bar. "The appellant was not given notice of the charge," wrote Speyer in her Jan. 15 ruling. "The information upon which the proceedings were based charged 1419664 Ontario Inc. of this offence. A summons was issued to this defendant. No one representing this numbered company attended on the day of trial. At the outset of the trial, the prosecutor sought an amendment to the information changing the name of the defendant to 1820419 Ontario Inc." As a result, Di Trapani's company received a fine of $5,000 after a justice of the peace allowed the amendment. "The appellant was convicted of a fairly serious offence under the Liquor Licence Act without ever receiving any notice of the offence or trial date," wrote Speyer. "A conviction under this act is no trivial matter." Law commission celebrates five-year renewal BY BREANNE NICHOLSON For Law Times T he Law Commission of Ontario celebrated in style after its renewal for another five-year term thanks to continued funding from program supporters. At a reception held at the Law Society of Upper Canada on Jan. 17, members of the legal profession showed their support at a ceremony marking the commission's past and present accomplishments in the area of law reform. Created in 2007, the commission provides recommendations to reform Ontario legislation in a number of areas in order to promote legal equality and accessibility for Canadians. The commission is Ontario's second law reform organization following the demise of its predecessor, the Ontario Law Reform Commission. It targets issues such as family legislation, violence against women, and legal equality for people with disabilities. According to Lorne Sossin, dean of Osgoode Hall Law School, one of the remarkable aspects of the commission is its efforts to analyze how legislation affects average people. For Sossin, this quality makes the commission "inspiring." "Two-thirds of non-profit organizations that are created die within the first five years," said Mark Sandler, chairman of the Law Foundation of Ontario's board of trustees. "It's extraordinary that this organization was founded and has grown and is sustainable and has every expectation to be a living, breathing entity that will affect our justice system only in positive ways in years to come." For nearly a decade, Ontario was without a law reform commission after the government of former premier Mike Harris slashed funding for the Ontario Law Reform Commission in 1995. But about 12 years later, the Law Commission of Ontario emerged with the financial support of the law foundation, the Ontario Ministry of the Attorney General, Osgoode Hall Law School, and the Law Society of Upper Canada. The commission says its main objectives include stimulating critical debate about the law, simplifying and clarifying the law to improve the administration of justice, using technology to enhance social justice, and recommending law reform measures to improve the legal system's overall relevance, effectiveness, and accessibility. The day after the event, a full-day symposium took place at the law society. It focused on disability and guardianship issues. "It's a never-ending job because that's the nature of law and that's the nature of law in life," said Camille Cameron, dean of the University of Windsor Faculty of Law. She also praised the commission for allowing law students to assist with legal reform projects. "It's a great aspect for them and it's great for the future because they will be the law reformers of tomorrow." LT For video of the law commission event, see lawtimesnews.com. According to Speyer, the Crown should have notified Di Trapani's company in advance. "A conviction may impact on the appellant's suitability to obtain or keep a liquor licence. Accordingly, the prosecutor had a duty to notify the appellant if it intended to charge it under the Liquor Licence Act." The prosecutor believed the rearrangement was merely a change to the name of the original defendant and not a switch in the corporate representative altogether, Speyer noted. " it turned out, As he was wrong," wrote Speyer. "At the very least, the prosecutor should have requested an adjournment of the trial to properly serve a summons or notice of trial on the appellant." As a result, Speyer dismissed the bar's conviction and awarded it $4,500 for its legal costs. Toronto criminal defence lawyer Jonathan Rosenthal says the prosecution's actions in the case were "pretty horrific." "They knew that the other company had been dissolved, which means they knew there was no one to prosecute, so to substitute someone else's name I think is really disgusting. Equally troubling is that the justice of the peace allowed that to take place," he adds. "Everyone would know, both the prosecutor and the judge, that if you charge Mr. Jones of an offence, you can't show up on a trial day and say we want to charge Mr. Smith, who is not here today." Although the Crown had argued Di Trapani was an officer of the Blue Mountain Bar at the time of the offence and knew about the charges, Speyer found there was no evidence to support that claim. In overturning the $5,000 fine, the judge said the bar "was convicted without ever being issued a summons or served with notice that it had even been charged. It had no opportunity to argue at trial whether it should have been named as a defendant or given an opportunity to defend the charge on its merits. "In addition, through no fault of its own, the appellant 'We obviously cannot have a system where persons or corporations are convicted of offences without any notice that they are facing a charge,' says Adam Weisberg. was required to retain counsel to bring this appeal to have the conviction quashed. In the unusual circumstances of this case, fairness demands that the appellant be relieved of the financial burden of the costs of this appeal and application." According to defence lawyer Adam Weisberg, Speyer's decision is the only silver lining in the case. She came to "the only fair result by reimbursing the appellant corporation its costs for bringing an appeal to clear its good name," he says. "We obviously cannot have a system where persons or corporations are convicted of offences without any notice that they are facing a charge." Rosenthal, who also applauds Speyer's decision, says the court was right not to hold the appellant responsible for the prosecution's actions. "Good for Justice Speyer to realize that the corporation should have never been charged, they should have never been convicted, and why should this cost them any money when it is the prosecution that acted improperly? The vast majority of justices of the peace are highly qualified and properly trained. It certainly appears in this case the justice of the peace missed this." As for the Crown, the Ministry of the Attorney General declined to comment last week. LT AVAILABLE ONLINE AND IN PRINT WIpN GACard le ift REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ting 500 Aepyour current lisnced a Upgrad or Silver enh 13 ld 20 to a Go by June 30, in. listing hance to w for a c r details $ lo See be w fo PLUS! Monthly draws from January to June, 2013 for a $100 Apple Gift Card just for asking how you can develop your business with an Annual Gold or Silver Enhanced Listing. Untitled-3 1 With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com Visit www.canadianlawlist.com for full contest details. www.lawtimesnews.com 13-01-08 1:26 PM

• Cover