Law Times

LAw times • August 6, 2012 Judge stymies Harper's mandatory minimums once again P COMMENT it' him and knock down his crime laws. Th e issue goes back a long way. He s judges who don't think as he does. Worse still are those who stand up to rime Minister Stephen Harp- er took another run at judges the other day in Oshawa, Ont. If there' s one thing he doesn't like, wasn't prime minister yet back in 1996 when the Supreme Court turned down his attempt to allow third parties to ad- vertise as much as they want at election time. But he never forgave the court and has been criticizing judges ever since, fi rst in 2004, then at a Conservative party rally in the spring of 2009, and again in his fa- mous speech in Sault Ste. Marie, Ont., on Sept. 2, 2009, in which he labelled judges and public servants as a bunch of "liberals" and "socialists." Harper has a good reason to hate judg- base but not with the courts. Th e government wrote the part on guns in a way that off enders can get three years in jail not just for having a gun but merely for saying they have one. Th is brings us to the Ontario The Hill Court of Justice case of Christo- pher Lewis, a drug dealer who pretended on four occasions last year that he had a .45-cali- bre revolver and kept off ering to sell it to a buyer who turned out to be an undercover drug offi cer. He was boasting about a gun in order to boost his importance and make a sale. He never had a gun and had no access to one. But under Harper' lent Crime Act of 2008, it's a major s Tackling Vio- es. As he complained in Oshawa on July 23, they're always "attempting to strike down" his "tough penalties." He was refer- ring to recent court decisions declaring his 2008 mandatory minimum sentences for gun crimes to be unconstitutional. Harper doesn't like judges telling him what' then, that judges have become a favourite target of his. Harper' s unconstitutional. It's little wonder, that invoked mandatory minimum pen- alties for gun crimes, drunk driving, and off ences related to the age of consent for sex were popular with his dog-whistle s sentencing changes in 2008 crime just to brag about having an imaginary gun, as Lewis was doing. Under s. 99 of the Criminal Code, there' a mandatory three years in jail for an off er to transfer a gun to somebody else. Lewis had already pleaded guilty s to trying to sell 53 grams of crack co- caine to when his lawyer, Jeff rey Mazin, stepped in. He told Justice Paul Bellefontaine his client shouldn't have to go to jail for three years for a gun he never had. Bellefontaine listened and decided that three years in jail for bragging about hav- ing an imaginary gun was a bit much. Bellefontaine said that amounted to "cruel and unusual punishment." the undercover cop. Th at's applied to his crime laws before. "I consider a three-year penal- ty to be excessive and dispro- portionate for Mr. Lewis," said the judge. He called it "uncon- stitutional. Harper has had that phrase Richard Cleroux time off ender, received a year in jail for boasting about the gun under s. 99 and three years for selling cocaine to the cop minus a year for time already served. Th e end result was two years less a day aſt er ac- counting for a year for time already served. We could probably hear Harper grind- again, the one Harper hates so much. Nevertheless, Lew- is was a drug off ender. So Lewis, a father and a fi rst- ing his teeth all the way from Ottawa. But it wasn't the fi rst time judges have chal- lenged his mandatory minimum sentences. Back case of Leroy Smickle before Supe- rior Court Justice Anne Molloy that went in Smickle landed in trouble aſt er cops found him sitting in his underwear on a sofa in his cousin' all the way around the world. was recording himself on a webcam while playing around with his cousin' handgun when the cops broke down the door and burst into the apartment. Dumping the gun, Smickle hit the fl oor immediately. Of course, the police s Toronto apartment. At the time, he s loaded February, there was the Th ere's that ugly word " stun grenade may have had an infl u- ence. Unfortunately for Smickle, pos- session of a prohibited fi rearm under Harper' Th at's a long time for playing around with s laws means three years in prison. a loaded gun in your underwear. Th e cops had him on a s. 95(1) charge of illegal possession but they couldn't prove he was the owner of the gun. Th e cousin had a veritable arsenal in the apartment and he was the guy the cops were really aſt er. Molloy listened and de- cided that sending the "foolish" fi rst-time off ender Smickle to jail for three years, even if that' damentally unfair, outrageous, abhor- rent, and intolerable. on the adjectives. As a result, Molloy invoked the Char- ter of Rights and Freedoms and struck down Harper' Harper must have groaned about the Charter again. He' cases on Charter grounds, one aſt er an- other. It must be maddening. Why can't those judges just do as he says? Th e Ontario attorney general has de- s mandatory minimum law. s always losing court s Harper's law, would be "fun- " Talk about laying PAGE 7 cided to appeal the R. v. Smickle case, so this thing isn't over yet. It will be interesting to see how it works out in the higher courts. Maybe Harper won't turn out to be a mod- ern-day Hamilton Burger aſt er all. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. BY MONTY VERLINT For Law Times ages to employees upon termination of employment. In this case, the court set aside a release signed by a T Avoiding pitfalls in structuring termination packages u SPEAKER'S CORNER he recent Ontario Superior Court deci- sion of Rubin v. Home Depot Canada Inc. provides useful guidance that' preparing and presenting severance pack- s critical to 63-year-old employee who had worked for the com- pany for 19 years and was then terminated. Th e termi- nation letter off ered 28 weeks of pay in lieu of notice and continuation of benefi ts, save and except disability benefi ts that continued only for eight weeks. Th e ter- mination letter indicated this exceeded the company' obligations pursuant to the Ontario Employment Standards Act even though it did so by only a few days. Of course, to obtain the benefi t of the off er, the s employee had to sign a release. While the termina- tion letter aff orded the employee one week to consider the off er, he immediately accepted it and executed the release. At the time, the employee wasn't aware of his common law and statutory rights under the act. Shortly aſt er the meeting, the employee realized he had made a mistake and sought legal advice. Th e employee brought a motion for summary 4. Other party knowingly taking advantage of this vulnerability. Th e court considered the criteria and made a num- lack of knowledge of the language of the bargain, blindness, deafness, illness, senility or other dis- ability. ber of fi ndings. With respect to the fi rst element, the court noted the employee was 63 years old with 20 years of service and moving to the end of his expected working life, fi red without cause for reasons related to a reorganization, and receiving only six months' notice of termination. Th e court found these circumstances were "far removed from what the community would accept" as reasonable. With respect to the second element, the employee liam F. Cooke Enterprises Inc., a case that pertained to the enforceability of a release executed in the context of a dismissal. In Titus, the Ontario Court of Appeal identifi ed four elements that are necessary to demon- strate that a release is unconscionable and, therefore, unenforceable: 1. Grossly unfair and improvident transaction. 2. Victim' judgment setting aside the release, a determination of the appropriate notice period, and damages. Th e employer argued the release should stand and that it in no way pressured the employee to sign it at the ter- mination meeting. In making its decision, the court cited Titus v. Wil- 3. Overwhelming imbalance in bargaining power caused by victim' suitable advice. s lack of independent legal advice or other s ignorance of business, illiteracy, didn't obtain independent legal advice and the termi- nation letter stated that before he was paid, he would have to sign a release. Th e employee didn't know that he was entitled to almost 28 weeks of salary under the act even if he didn't sign a release. Th e employer didn't explain these rights to him. Th e implication was that if he didn't sign a release within a certain time, he wouldn't get anything at all. With respect to the third element, the court found that could arise in preparing and presenting severance packages to employees. In my view, the facts in this case aren't uncommon and the reasoning in it provides use- ful guidance for counsel on a number of fronts. First, counsel should consider how much more than the min- imum standards under the act employers should off er in a severance package. A few extra days of termination pay may not be suffi cient, especially for a long-term em- ployee. Th is factor involves determining what would be adequate consideration for the release of all claims. Second, it' the release to be unenforceable. It proceeded to de- termine the common law notice period to be 12 months and assessed damages on that basis. I oſt en advise employers and employees in this area and this case only reaffi rms the pitfalls obtain or at least have an opportunity to seek indepen- dent legal advice. Having a sentence in the termination letter permitting independent legal advice isn't neces- sarily suffi cient. Rather, the employer should ask and may even require the employee to take the severance package home before signing the release. Th ird, the wording of settlement documents should s important to require the employee to that the plaintiff wasn't a high-level employee with pro- fessional training. Th e employer didn't advise him to take the time he needed to deal with the situation. As well, the ambiguous and misleading termination letter only exacerbated the problem. With respect to the fourth element, the termina- tion letter was constructed in such a way that signing the release was the employee' ployer off ered no negotiation and the employee was misled into thinking that accepting the package was his only option. Th e court found that this approach, taken as a whole, took advantage of the vulnerability of the employee. Based on all of these circumstances, the court found s only option. Th e em- www.lawtimesnews.com be clear in order to ensure no misunderstanding. For example, employers should advise employees at the termination meeting and in the letter that they'll still get the minimum employment standards amounts even without a signed release. Finally, the settlement documentation shouldn't come across in such a fashion that the employee's only choice is to accept the package without any opportu- nity to negotiate the terms. Taking note of those suggestions will go a long way in defending future claims by employees who have signed a release. Alternatively, counsel can use those considerations to advise employee clients as to how a release can be rendered unenforceable. Either way, this case is useful in understanding the pitfalls in preparing and negotiating severance agreements in employment terminations. LT uMonty Verlint practises labour and employment law at Kuretzky Vassos Henderson LLP.

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