Law Times

Law Times • march 14, 2016 Page 5 www.lawtimesnews.com Suspension possible for alleged threats Lawyer disbarred in U.S. fighting to keep Ontario licence BY NEIL ETIENNE Law Times A Toronto-based tax lawyer disbarred in California for moral turpitude is hoping for a different result af- ter appearing in front of the Law Society of Upper Canada's dis- ciplinary tribunal to oppose an interlocutory motion to suspend his Ontario licence. LSUC counsel Leslie Maun- der brought the March 2 mo- tion on the grounds there is sig- nificant risk to the public if sole practitioner Joel Allan Sumner is allowed to continue to practise during a conduct unbecoming investigation against him for al- legedly sending threatening and harassing e-mails and phone calls. "I think what's most impor- tant is that the prosecutors no longer abuse their power," says Sumner, who was self-represent- ed at the LSUC hearing. "I think I got the message to the tribunal about what these guys did to me down in Califor- nia," he adds. "They turned the justice system into a racket; ob- viously I don't particularly want to get suspended, but I think if I cause a change, it's worth it." Sumner made a motion to the tribunal panel, chaired by Mal- colm Mercer with Sophie Martel and Andrew Oliver, to exclude the e-mail evidence against him on the grounds the statements it contained were made as a result of "torture and/or cruel, inhu- mane or degrading treatment or punishment." The motion to exclude evi- dence was dismissed by the pan- el and it reserved its decision on the suspension motion. Sumner was disbarred in Cal- ifornia in December 2014 when he failed to participate in the dis- ciplinary proceeding there for sending threatening e-mails. He was found to have com- mitted moral turpitude af- ter sending intimidating and threatening e-mails to San Ber- nardino County Chief Deputy District Attorney John Kochis and others about Kochis when he did not appear at the hearing to respond to the allegations. According to the LSUC fac- tum, Sumner is still facing 27 criminal charges with an out- standing warrant in relation to those e-mails in California. "The threats underlying the criminal charges and disbar- ment occurred prior to the re- spondent obtaining his license to practise here in Ontario," the factum states. It goes on to say Sumner began sending threatening e-mails to Kochis as early as 2011, leading to criminal charges in February 2012 and his disbarment in 2014. He was called to the Ontario bar in January 2012. Those e-mails include state- ments like: "When I go to Cali- fornia next I will arrest [sic]. If you resist I will kill you [sic] ac- cordance with the law!!"; "You should die"; "I intend to arrest him and if he resists, I will kill him"; "I authorize the Hells An- gels to act as my agent and arrest chief deputy district attorney John P. Kochis. If he resist [sic] the Angels may use all lawful force to secure the prisoner, in- cluding lethal force if allowed under the law." The factum states in early January of this year the LSUC obtained a phone call recording from the sheriff 's dispatch cen- tre in San Bernardino County "of someone believed to be the respondent" making further ex- plicit threats against Kochis. The LSUC received another recording from the sheriff 's call centre from February with the caller stating it was Sumner, de- claring Kochis under arrest, and "threatening to use all necessary force to effect the arrest, includ- ing lethal if lawful." Sumner says Kochis con- spired to extort him, causing him pain and suffering through abuse of his public office posi- tion and leading to his e-mail responses. "I signed this release involun- tarily; he [Kochis] threatened me that if I don't sign this release he's going to withhold an official act and oppose my motion," Sumner says, alleging Kochis sent him threatening e-mails as well. "He engaged in all the ele- ments of torture as I understand it." Sumner argued because the e-mails were sent as a result of his torture, the e-mail evidence should not be allowed. According to the summary of facts, Sumner had been charged in California in 2007 with bat- tery and vandalism against a roommate. Sumner signed an agreement of compromise, settlement, and mutual release in 2010 releasing himself and the roommate from any further claims arising from the 2007 altercation. He was granted a declaration of factual innocence in 2010 after signing the mutual release. According to the summary, at some point after signing the release, Sumner came to the conclusion that Kochis "knew" the allegations against him were based on lies and he had been coerced into signing the release. Sumner then began to accuse Kochis of criminal offences, including coercion and extor- tion, and sent e-mails to him or about him to others that eventu- ally lead to his California disbar- ment. Sumner argued he was effec- tively kidnapped by police when wrongfully arrested in 2007 with Kochis engaging in extortion and torture "by insisting on the settle- ment/release before agreeing to the Deceleration of Factual Inno- cence." He says Kochis extorted him when Kochis forced him to sign the release in exchange for not opposing the motion for dec- laration of innocence. While the LSUC states Sum- ner has practised in Toronto without apparent incident or complaint "at the same time, he faces serious criminal charges in California — for which he would be arrested if he returned — has been disbarred and is currently being prosecuted by us for mak- ing threats against Mr. Kochis and the prosecutor of the disci- pline charges in California." The additional tape record- ings of phone calls secured by the LSUC earlier this winter include similar threats against Kochis. Sumner also sent an e-mail to LSUC disciplinary counsel Maunder on Feb. 19 stating: "You are taking or withholding an official act for the purposes of comforting or insulating an extortionist who used coercion and crossed the line between public and private beneficiaries. Mr. Kochis is under arrest, if he so much moves an inch, I will consider my life to be in danger and I will pop two shots into the side of his head!" The LSUC declined to com- ment as the decision is still under reserve. LT NEWS FULLY ACCREDITED IN-CLASS PROGRAM & LIVE WEBINAR REGISTER BEFORE MARCH 25 AND SAVE $300 Course Leaders Wendy Baker, QC, Partner, Miller Thomson LLP Cathy Bate, Partner, Miller Thomson LLP The Food & Beverage Industry in Canada: The Regulatory Evolution FOOD & BEVERAGE LAWS ARE CHANGING, ARE YOU? ENVIRONMENTAL REQUIREMENTS | PUBLIC HEALTH MANDATES | RECALLS AND FRAUD Vancouver, April 26 • Toronto, April 19 • Webinar, April 19 www.lexpert.ca/cpdcentre Untitled-5 1 2016-03-02 1:19 PM SCC leave sought for 'racist' bequest BY DAVID DIAS For Law Times A daughter who alleges she was disinherited by her father for having a mixed-race child will seek leave to appeal from the Supreme Court of Canada, after the Ontario Court of Ap- peal earlier this week upheld testamentary freedom in supporting the man's will. The deceased, Eric Spence, was born in Jamaica and moved to England with his two daughters, Verolin and Donna. In 1979, when Eric immigrated to Canada, he brought Verolin with him and left Donna with her mother, eventually losing touch with them. Verolin claimed in her affidavit that her relationship with her fa- ther was close, and only soured after she told him that she was hav- ing a child fathered by a white man. Eric was emphatic over the years that her "white bastard son" would never set foot in his house. When Eric died in 2013, at age 71, he left a will that bequeathed his entire estate, worth $400,000, to his estranged daughter, Donna. The will was unambiguous: "I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as her father." Last year, Superior Court Justice Cory Gilmore set aside the will, finding that the "clear and uncontradicted" reason for disinheriting Verolin was based on a racist principle, and that the man's will "of- fends not only human sensibilities but also public policy." That decision, however, was struck down March 8 by the Ontario Court of Appeal, which found in Spence v. BMO Trust that testa- mentary freedoms were absolute — that neither the Human Rights Code, nor the Charter, nor public policy arguments are sufficient to override someone's final, private, legal bequest. "The court's power to interfere with a testator's testamentary free- dom on public policy grounds does not justify intervention simply because the court may regard the testator's testamentary choices as distasteful, offensive, vengeful or small-minded," the decision states. The decision also notes that, while third-party evidence points to an uncontradicted racist motive, the will itself contains no rac- ist statement, and inferring one would open the f loodgates to chal- lenges by disappointed beneficiaries. LT

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