Law Times

Page 6 May 27, 2013 • Law TiMes COMMENT u Editorial obitEr By Glenn Kauth Contract mess leaves pile of legal headaches W hile there's been vociferous criticism of the Ontario government's waste of hundreds of millions of taxpayer dollars through the gas-plant mess, the federal government has found itself having to shell out $40 million in damages and costs for a bungled relocation contract. It seems governments have a lot of trouble when it comes to relocating things, whether it be gas plants or employees. In Envoy Relocation Services Inc. v. Canada (Attorney General), the federal government landed on the hot seat for favouring Royal LePage Relocation Services over the plaintiff. Among other things, Superior Court Justice Peter Annis found Royal LePage Relocation Services had insider knowledge as the incumbent that gave it an advantage in its contract bid. As a result, the court deemed Envoy Relocation Services the successful bidder for the five-year contract to provide relocation services for federal employees and awarded it almost $30 million in damages. If that weren't bad enough, Annis added another $10 million in costs for the government's "reprehensible" actions in the case. Not only did the government act unfairly in awarding the contract itself, it made things worse through its conduct during the litigation, Annis found in his May 3 costs order. For example, it fought production requests for documents that "clearly should have been disclosed in the Crown's affidavit of documents," he wrote, noting it took a court order to get it to turn them over. "I disagree with the defendant's submission that there was no deliberate conduct on its part," Annis added. "The concealment of crucial evidence that played a major role in the outcome of the case and misled the court is grave misconduct. Moreover, this conduct was intended to conceal significant deliberate reprehensible conduct prior to litigation." The contract itself dates back to a time when the Liberals were in power. But the Conservatives, of course, have been running things since then and must therefore take responsibility for the aggravating conduct during the litigation. In the meantime, there are new questions about problems with a subsequent contract also awarded to Royal LePage Relocation Services in 2009 as well as an appeal of Annis' ruling by the government, the Ottawa Citizen noted recently. In addition, opposition MPs would like to know what the government plans to do to avoid problems with a future contract once the current one expires. They're all good questions that the government should answer as this isn't an old problem. As the case demonstrates, it's not just gas-plant relocations that trip up governments. The matter is evidence of yet another scandal that shows our government's capacity to add layer upon layer to its legal headaches. — Glenn Kauth Reminders for defence counsel on DNA orders W hile police can fingerprint and photograph clients upon arrest for most criminal matters, they can't take DNA samples unless they have a DNA warrant.  Without a warrant, clients shouldn't provide a DNA sample at that time unless, for example, counsel is confident it would exonerate them for a sexual offence. After conviction or discharge for certain offences or a finding of not criminally responsible, the judge has the authority to make an order for a DNA sample. The Criminal Code designates some offences as being primary for DNA and others as secondary. More and more offences have become eligible for DNA samples, but there's a third category for which the court can't order them. When negotiating which charge your client will plead guilty to and while making your submissions, it's vital to understand these distinctions. For example, if your client is facing a charge of assault causing bodily harm, the court will almost certainly order a DNA sample.  But if you negotiate a guilty plea to common assault, the offence becomes a secondary designated offence and you Law Times designated offence, the nature have a better chance of avoiding a DNA order. If your client is fac- A Criminal and circumstances of the crime, and the privacy and security of ing a charge of criminal harassMind the person. ment, that's a secondary desigOther offences that are neinated offence. But if you resolve ther primary nor secondary the matter as harassing calls, for which the court can't order which isn't a listed offence, the a DNA sample are the straight court can't order a DNA sample. summary conviction matters Primary designated offences such as communication for the are the more serious matters, espurpose of prostitution, food by pecially crimes against children and assaults that cause harm Rosalind Conway fraud, trespass by night or that glorious charge of pretending to such as aggravated assault.  The judge shall make the order but has a lim- practise witchcraft. Under the typical procedure, a police ited discretion with respect to ordering a sample under s. 487.04(2). The defence officer meets the client in the courtroom must establish that the impact on the cli- and takes the offender directly to a room ent's privacy and security of the person is where the sample of four drops of blood "grossly disproportionate" to the interests will be taken. While buccal swabs could be taken, that doesn't seem to be the practice. of the public and the justice system. Why is it important to oppose a DNA Secondary designated offences are ones for which the court may make a DNA or- order? Taking the sample is an invasion of der.  These include many indictable mat- privacy and information stored in DNA has ters, the more serious drug charges, and a privacy interest. Authorities will be able to certain less serious offences against the glean more information from DNA in the person such as criminal harassment, in- future. Supreme Court Justice Morris Fish timidation, and uttering threats. The criteria to consider include a previous record, a recognized the quintessential nature finding of not criminally responsible for a of genetic material in R. v. R.C. in 2005 Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . . . . . . . . . . . Sandy Shutt ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com when he wrote: "An individual's DNA contains the 'highest level of personal and private information.' Unlike a fingerprint, it is capable of revealing the most intimate details of a person's biological makeup. Without constraints on the type of information that can be extracted from bodily substances, the potential intrusiveness of a DNA analysis is virtually infinite." What if police use it to predict criminal tendencies, psychopathy or pedophilia? DNA is carried everywhere and having one's genetic material in the databank means the risk of a false arrest. Of course, DNA can exculpate but it can inculpate wrongly, too. If the court fails to consider making a DNA order, it isn't functus and it can commence a hearing during the next 90 days. Matters predating the DNA Identification Act, which came into force on June 30, 2000, can also be subject to DNA orders. On the plus side, after a successful appeal, you can request destruction of the DNA from the databank. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com advertising Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt...... sandra.shutt@thomsonreuters.com

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