Law Times

lAw Times • April 19, 2010 NEWS Crowns left without 'important facts:' judge Continued from page 1 entered on CPIC. A Crown prosecutor discovered the 11 convictions in court information that had been transferred to Toronto from Halton and York regions in the period between Horne's guilty pleas and Fairgrieve's sentencing decision. Th e circumstances of Horne's latest pursuit and capture, in which he drove a stolen van into oncoming traffi c while evading police, clearly off ended the judge. "In my view, there is nothing in this case that, had the Crown been prop- erly informed and exercised appropri- ate judgment, could have justifi ed a total sentence of less than three years in a penitentiary," he wrote. "In my view, that should have been regarded as the rock-bottom minimum appropriate to this case, even after giving appropriate weight to the guilty pleas. "While in our adversarial system, the defence cannot be faulted for tak- ing advantage of an unwittingly mis- taken position adopted by the Crown, I think that the suggestion that there is a judicial obligation to perpetuate the er- ror and ignore the truth would indeed cause a loss of public respect for the jus- tice system, at least in serious cases, like this one, where the accused's conduct clearly threatened public safety." Fairgrieve repeatedly admonished the unreliability of CPIC information, not- ing the Crown acknowledged a backlog of more than a year and a half's worth of data awaiting entry into the computer system maintained by the RCMP. "In the meantime, Crown attorneys and, ultimately, sentencing courts are from their court systems. But he didn't respond by press time to a request for a description or assessment of the CPIC backlog to date. Th e issue comes as public attention focuses on the CPIC system due to the recent controversy over a pardon given to Graham James, a convicted child molester and former hockey coach. Part of the concern stemmed In my view, there is nothing in this case that, had the Crown been properly informed and exercised appropriate judgment, could have justifi ed a total sentence of less than three years in a penitentiary . . . that should have been regarded as the rock-bottom minimum appropriate to this case, even after giving appropriate weight to the guilty pleas. left without some of the most impor- tant facts needed to make appropriate, informed decisions about the cases they must deal with," Fairgrieve wrote. RCMP Sgt. Greg Cox, a spokesman for the Mounties at their Ottawa nation- al headquarters, says the force relies on other police services across the country to enter convictions and sentencing in- formation into CPIC that they must get from a public perception that the par- don would erase James' convictions for abusing two of his former players. A report last week also highlighted how the RCMP is clamping down on access to CPIC and thereby making it harder for employers and organizations to do criminal record checks. But Cox provided Law Times with a lengthy description of the pardon system, including the fact that the crimi- nal history of an individual convicted of a sexually based off ence is retrievable by law enforcement agencies after a fi nger- print match has been conducted for the purposes of a "vulnerable sector" search on behalf of institutions such as daycare centres doing background checks on job applicants. Th e federal minister of pub- lic safety must consent to the disclosure. Th e individual also has to allow disclo- sure to the organization that requested the search. Th e statement from Cox included a description of a policy directive the RCMP issued last December that reiter- ates strict conditions under which police services may disclose any criminal record data from the CPIC system, including requirements for fi ngerprint matches to confi rm identities. "Th e RCMP was made aware [last fall] that certain police agencies are disseminating criminal record infor- mation obtained via the CPIC system that was in direct contravention of the Criminal Records Act, the Youth Criminal Justice Act, the ministe- rial directive on the release of criminal records, and CPIC policy," the state- ment said. LT Defendants allegedly warned by imam Continued from page 1 Brian Gray, a senior partner with Ogilvy Renault LLP who is representing the imam in the suit, provided an e-mailed state- ment from an Aga Khan spokes- person claiming the defendants had been cautioned numerous times to halt their operation, warnings that included personal pleas from the Aga Khan him- self and his brother. "Th e Aga Khan has taken this matter extremely seri- ously," the statement notes. "He would not have taken this course of action if there was an alternative. Th e only recog- nized legal way to stop them is through the courts." Th e Aga Khan traces his lin- eage back to Ali, the cousin of the Prophet Muhammad. Al- though he was born in Switzer- land, he lives in France and is a British citizen. Th e statement of claim says the imam's mandate is to interpret the faith for Is- mailis who live in more than 25 countries around the world. Colleen Spring Zimmer- man, a partner with Fogler Ru- binoff LLP in Toronto, says she has never seen a case like this one with a religious leader tak- ing on one of his own followers. Nevertheless, the statement of claim alleges Tajdin was asked to stop a similar operation in the early 1990s. Zimmerman says that piece of information could be cru- cial when it comes to decid- ing whether to award the Aga Khan the punitive and exem- plary damages he's looking for in the case. "Th ey're asking for broad sweeping relief against these de- fendants," Zimmerman notes. "Th e court has in the past grant- ed punitive and exemplary dam- ages in certain circumstances, but there has to be behaviour which goes beyond normal copying of a work, something that goes to the very root of misconduct. If a defendant was warned in the past not to do this and now they've done it again, the puni- tive and exemplary damages may come to bear." Th e religious dimension of the case makes the outcome much less predictable, she adds. Th at could explain why the Aga Khan is claiming a breach of moral rights. "It'll be interesting to see from a moral rights point of view whether the defendants have said anything to which he would object and to what extent he has the right to stop the reproduction and distri- bution of this work solely on the basis of moral rights rather than copyright," Zimmerman says. "I'll be very interested to see what the court has to say on that." Without seeing the materi- als herself, Zimmerman says it's hard to tell whether the Aga Khan's works have been amended but she's not the only one in the dark. Th e statement of claim says the Aga Khan himself hasn't verifi ed the ac- curacy of the infringing mate- rials but leaves the door open to a moral-rights breach by pointing out that "any act of omission that is contrary to the moral rights of the author is an infringement" of them under the Copyright Act. "As has been his systematic practice for many years, the Aga Khan often annotates and edits his texts in accordance with established criteria and well-established guidelines be- fore any publication of them," Ontario Planning Legislation 2010 Includes 33 regulations! Updated each year, Ontario Planning Legislation reflects the changes made during the past year, keeping you up to date and informed. Inside find information on local appeal bodies; prescribed matters including upper-tier community improvement plans; prescribed time periods; zoning by-laws; holding by-laws and interim control by-laws, plans of subdivision, and much more. Inside the 2010 Edition you'll find: • the completely updated ORDER your copy today Perfectbound • 312 pp. • May 2010 On subscription $61 • P/C 0812140000 One time purchase $71 • P/C 0812010000 Multiple copy discounts available ISSN 1910-3689 • a Table of Contents listing all sections and regulations with subject and page numbers to speed your access to the material • a detailed legislative history of the Act and regulations • a page layout that allows you to quickly identify the section you're looking for • a comprehensive and thorough subject index that streamlines your research the claim states. Zimmerman says the plain- tiff 's decision not to claim an independent copyright on the MP3 recordings was notewor- thy. Th e recordings are in the Aga Khan's own voice, but the claim alleges only that they breach his copyright inasmuch as they are "a copy in substan- tial part" of the Farmans and Talikas in the book. "So if there's any issue with the ownership of those liter- ary works, that's going to be a problem for the plaintiff ," Zimmerman says. In the e-mailed statement, the spokesperson for the Aga Khan explained he felt the is- sue of the sound recordings would unnecessarily complicate the claim. It also indicates that photographs in the book raise another question around per- sonality rights, another issue the plaintiff avoided in the claim. "It was hoped to keep the mat- ter simple by focusing only on the copyright in his written works," the statement says. "If necessary, these other matters may have to be asserted later." LT PAGE 3 LT0419 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Ontario Planning Legislation (LT 1-4x3) b&w.indd 1 www.lawtimesnews.com 4/13/10 3:59:59 PM Consulting Editor: Bruce Engell Planning Act

• Cover
• Restricted Mobility
• Paying The Piper
• Focus On ADR/Mediation