Morton's Musings

From the Notebook of James C. Morton

August 27, 2008

Another Stiff Sentence Imposed at Trial Upheld on Appeal

R. v. T.J.F. 2008 BCCA 325 is an interesting example of an appeal court, yet again, upholding a stiff sentence imposed at trial.

Here an effective five year sentence was imposed for a charge of breaking and entering into a place and committing an assault therein upheld. A young person, the offender, and two others broke into apartment of a 97-year-old woman and assaulted her. Offender had youth convictions, and was then on bail for serious youth offences. Notwithstanding that prior to entering the apartment the offender did not know the premises was a dwelling-house, his conduct deserves considerable disapprobation.

The Court wrote:

[18] T.J.F.’s record and recent actions clearly demonstrates that he has little regard for the law, and is presently a danger to the safety of the community. Notwithstanding his age and his, hopefully, prospects of rehabilitation, this is a case in which the protection of the public is the primary consideration. Having regard to all of the circumstances, I cannot say that the sentencing judge imposed a sentence which is demonstrably unfit. There is, accordingly, no basis on which to interfere: R. v. M.(C.A.), [1996] 1 S.C.R. 500 at paras. 89 - 91.

August 18, 2008

Defective Crown Disclosure

Where the Crown has failed to make proper disclosure and the fact of the non-disclosure comes to light at trial some counsel seek to have evidence excluded or a stay entered. In general though, the appropriate remedy is to order disclosure and, if necessary, adjourn the case to allow the defence to conduct whatever further preparation or investigation may be necessitated by the disclosure. This may trigger a delay argument depending on the circumstances.

Today's Court of Appeal decision in R. v. Horan, 2008 ONCA 589 sets out this law well.

The Court held:

[30] Where a breach of the Crown’s disclosure obligation is made out to the extent that the accused’s s. 7 Charter right to make full answer and defence has been infringed, trial judges have at their disposal an arsenal of remedies ranging from a stay of proceedings in the most egregious cases, to ordering disclosure and subsidiary remedies such as ordering costs against the prosecution or adjourning the proceedings. Further, in an appropriate case, the trial judge has the power to give the remedy adopted in this case of excluding the undisclosed evidence: see R. v. O’Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) at para. 66, approving the use of innovative remedies as appropriate, including exclusion of evidence, as was done in R. v. Xenos (1991), 70 C.C.C. (3d) 362 (Que. C.A. ).

[31] Any remedy for breach of the disclosure obligation must be responsive to the breach; the remedy must, in the words of s. 24(1), be “appropriate and just in the circumstances”. In most cases, the appropriate remedy is to order disclosure and, if necessary, adjourn the case to allow the defence to conduct whatever further preparation or investigation may be necessitated by the disclosure. In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in-custody accused. In such a case, an appropriate remedy could be exclusion of the undisclosed evidence. However, the burden is on the accused to demonstrate that exclusion of the evidence was appropriate.

[32] Assuming there was a breach of the prosecution’s disclosure obligation, on this record, the remedy granted by the trial judge was unreasonable. The information the Crown sought to obtain from Dr. Reid was limited and relatively straight-forward. At the point where the issue arose there was no indication that a very brief adjournment or holding down Dr. Reid’s evidence until later in the trial would not have sufficed. If defence counsel was able to demonstrate that he required further time to investigate or that he could not obtain expert advice to meet Dr. Reid’s additional evidence, the trial judge would be in a position to consider whether the appropriate remedy was to exclude that part of Dr. Reid’s evidence. In making that determination, the trial judge would have to bear in mind the objectives of disclosure to which I alluded earlier. Was this remedy appropriate to prevent the respondent from potentially being deprived of his right to make full answer and defence? Put another way did the justice of the case require that this evidence be excluded because the accused was not able to address the issue on the basis of complete information of the case to be met?

August 18, 2008

Appeals from Justices of the Peace

Today's Court of Appeal decision in R. v. Horan, 2008 ONCA 589 makes it clear that appeals from Justices of the Peace are to be treated the same as appeals from any other judicial officer and allowed sparingly. Here a judge hearing an appeal from a Justice of the Peace, in effect, reconsidered the case and convicted where there had been acquittals.

The Court of Appeal held this to be an error.

The Court writes:

[1] This appeal under the Provincial Offences Act, R.S.O. 1990, c. P.33, raises a question of appellate procedure under that Act. The appellant Modern Niagara Toronto Inc. was acquitted by Quon J.P. on four charges contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. The justice of the peace found that the actus reus of two of the offences was not made out. He found that the appellant had made out the due diligence or reasonable mistake of fact defence to the other two offences.

[2] The Crown successfully appealed to the Provincial Offences Appeal Court. Lane J. found the appellant guilty on three of the counts and imposed a fine of $135,000.[1] On that appeal, the Crown was permitted to rely on a new theory of liability to overturn the acquittals. In addition, the appeal judge stated that she was raising two new issues that were dispositive of the appeal in favour of the Crown. The appellant first learned of these new issues when the appeal judge released her reasons.

[3] In granting special leave to appeal to this court, MacPherson J.A. stated: “There is a fundamental issue of fairness raised by the way in which the appeal judge heard and determined the appeal.”

[4] In our view, the appellant was denied a fair hearing of its appeal in the Provincial Offences Appeal Court. While the appellant raises other issues, the fair hearing issues are sufficient to dispose of the matter. We would allow the appeal and remit the matter to the Provincial Offences Appeal Court for a new hearing before a different judge.

August 17, 2008

Conflicts of Interest

In what is probably the most important action taken during the ongoing CBA Council meeting in Quebec City the Council considered and unanimously passed a resolution on Conflicts of Interest in legal practice.

The resolution provides practical tools to allow lawyers to determine when, and when not, they can act. Tactical conflict challenges will likely diminish or even disappear because the resolution makes clear where to draw the line on conflict.

The Taskforce considered conflicts around the common law world. The basis of the resolution is the 'substantial risk' of an adverse effect on a client because of a conflict. This excludes theoretical conflicts that may arise from unrelated matters.

The resolution considers that a lawyer's duty of confidentiality continues forever but the duty of loyalty ends with the retainer. So long as a retainer exists the lawyer may not act against a client's position or interest but once the retainer is over a lawyer may so act except where acting goes to the heart of the work contained in the prior retainer.

The practical result of this resolution is to clarify a lawyer's role with clients and makes the transfer of staff between firms less complex.

As a result clients will be less likely to have to change lawyers to ensure there is no conflict and legal services will be made easier to obtain.

See:

http://www.cba.org/CBA/gate/splash_alternate.html

August 15, 2008

Inadequacy of Reasons

Today's Court of Appeal decision in R. v. Prokofiew, 2008 ONCA 585 gives a good example of the unusual circumstance where a trial judge's decision is set aside because of inadequacy of reasons:

[26] I agree with the position of counsel for the appellants that the trial judge failed to provide sufficient reasons to allow for meaningful appellate review. In reaching my conclusion, I have found helpful the recent decisions of the Supreme Court of Canada in R. v. Dinardo, (2008), 231 C.C.C. (3d) 177 (Sup. Ct. Can.), and R. v. Walker, (2008), 231 C.C.C. (3d) 289 (Sup. Ct. Can.).

[27] In Dinardo, Charron J. reviewed the jurisprudence that requires a trial judge to provide meaningful reasons for conviction or acquittal, with particular emphasis on the leading decision in R. v. Sheppard, [2002] 1 S.C.R. 869. In the course of this review, Charron J. emphasizes that an appeal court reviewing the sufficiency of reasons should adopt a “functional approach”, examining the evidence as a whole and the submissions of counsel in the assessment of whether the reasons respond to the case’s live issues. She emphasizes that it is only where “the trial judge’s reasons are so deficient that they foreclose meaningful appellate review”, that the appeal based on insufficient reasons will be allowed: Dinardo at para. 25.

[28] At paras. 30 & 32, in comments relevant to this appeal, Charron J. concluded:

[T]here is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel (Braich, at para. 38).

…

This Court emphasized in Sheppard that no error will be found where the basis for the trial judge’s conclusion is “apparent from the record, even without being articulated” (para. 55). If the trial judge’s reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons for conviction are, in fact, patent on the record. This exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge. Where the trial judge’s reasoning is not apparent from the reasons or the record…the appeal court ought not to substitute its own analysis for that of the trial judge (Sheppard, at paras. 52 and 55). [Emphasis added.]

[29] The principles espoused in Dinardo are recognized as well by Binnie J. in R. v. Walker at para. 20, who also refers to Sheppard and the principle that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself”. Binnie J. also refers to Sheppard’s recognition of a number of broad policy reasons that underscore the importance of the duty to give adequate reasons at para. 19:

At the trial level, the reasons justify and explain the result. “Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render” (para. 15). The losing party is entitled to know why he or she has lost. Informed consideration can be given to grounds for appeal. “Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be” (para. 24). “Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts” (para. 15).

[30] It appears that the entire focus of the trial judge’s reasons in this case was whether the Crown had proved that the appellants were guilty of conspiracy. She understood the issues, which were whether the Crown had proved a conspiracy and whether the appellants were members of it. My main problem with the trial judge’s reasons is that she made so few findings of fact on her way to the conclusory finding that each appellant was guilty as charged – meaning guilty of conspiracy and the individual counts of fraud over $5,000 with which each appellant was charged. Consequently, the facts on which she based the convictions are lacking. Because reasons for conviction were not patent on the record, I am unable to determine the analytical path she followed in convicting the appellants. Consequently, the trial judge failed to provide sufficient reasons to allow for meaningful appellate review.

August 13, 2008

Loans Without Terms Not Necessarily Demand Loans

Is a loan made without specified terms a demand loan as a matter of law?

The recent Superior Court decision in Animal House Investments Inc. v. Lisgar Development Ltd., 2008 CanLII 39607 suggests not.

The Court writes:

[15] The applicant argues that numerous decisions compel the Court to conclude that the phrase “no specified terms of repayment”, and similar iterations, mean, as a matter of law, that the shareholder loan is payable on demand or within a reasonable period of time. I do not agree.

[16] This analysis skips a step. The issue of contractual interpretation always involves a determination of the intention of the parties. In the cases upon which the applicant relies, the courts did not impose an arbitrary rule in the manner he suggests. Instead, they concluded that the intention of the parties was that the loans would be repayable on demand or within a reasonable time, given the particular circumstances of each case.

[17] Accordingly, the fact that the loan agreements are described in the financial statements and elsewhere as having “no specified terms of repayment” does not necessarily mean that the loans are payable on demand.

August 11, 2008

Setting Aside a Guilty Plea

Today's reasons in R. v. Hanemaayer, 2008 ONCA 580 makes it clear that the Court retains the power to set aside a guilty plea even years after it was accepted and even if the plea is, on its face, proper.

The Court writes:

[19] Even though the appellant’s plea appears to meet all the traditional tests for a valid guilty plea, as pointed out by Doherty J.A. in T. (R.) at p. 519, this court retains a discretion, to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances that led to the plea and that demonstrate a miscarriage of justice occurred.

[20] As a necessary corollary of the power to receive fresh evidence in these circumstances, the court has the power to set aside the guilty plea in the interests of justice, even though many years have passed. This is obviously one of those cases. The fresh evidence proves beyond doubt that the appellant did not commit the offences to which he pleaded guilty. One miscarriage of justice would be compounded by another if this court had no power to intervene. As I have said, the Crown agrees that this is a proper case for setting aside the guilty pleas and entering acquittals.

August 11, 2008

Investigatory Detention

Today’s Court of Appeal decision in R. v. Nesbeth, 2008 ONCA 579 provides a good summary of when police may detain an individual for investigatory purposes.

[13] In R. v. Mann (2004), 185 C.C.C. (3d) 308 at para. 16, the Supreme Court of Canada noted that “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing”. This is a classic case of police officers faced with a rapidly evolving situation to which they attempted to respond quickly and effectively. In Mann, the court recognized a limited power of investigative detention to assist police in carrying out their duties in circumstances such as this. A police officer may briefly detain an individual for investigative purposes “if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary”: at para. 45. Such a detention will not violate s. 9. In this case, the trial judge found that when the police initiated the chase and gave the respondent the command to stop, they did not have the requisite reasonable grounds to detain and therefore violated his rights.

August 7, 2008

Validity of Restrictive Covenants

Yesterday’s Court of Appeal decision in H.L. Staebler Company Limited v. Allan, 2008 ONCA 576 contains a useful discussion of when restrictive covenants are enforceable:

[33]          There is no dispute about the legal principles that apply when determining whether a restrictive covenant in an employment contract is enforceable, as those principles have long been settled. Several decades ago in Elsley, the seminal Canadian case on this matter, Dickson J. described the principles as “well-established”. He stated the test in plain terms: such a covenant is enforceable “only if it is reasonable between the parties and with reference to the public interest”.

[34]          This test reflects the competing principles that must be balanced when a court is called on to decide the validity of such a covenant. On the one hand, there is the “important public interest in discouraging restraints on trade, and maintaining free and open competition unencumbered by the fetters of restrictive covenants”. Open competition benefits both society and the affected employees. Society benefits from having greater choice and employees benefit as they have greater employment opportunities. On the other hand, however, “the courts have been disinclined to restrict the right to contract, particularly when that right has been exercised by knowledgeable persons of equal bargaining power”.

[35]          While an overly broad restraint on an individual’s freedom to compete will generally be unenforceable, the courts must recognize and afford “reasonable protection to trade secrets, confidential information, and trade connections of the employer.” In the present case, there is no suggestion that trade secrets or confidential information is involved. It is Staebler’s “trade connections” that warrant protection.

[36]          Reasonableness is the mechanism by which a court decides whether a covenant is “overly broad” or is only that which is reasonably required for the employer’s protection. But how is a court to determine whether any given restrictive covenant is “reasonable”? Elsley offers a framework for making such a determination. The starting point is “an overall assessment of the clause, the agreement within which it is found, and all of the surrounding circumstances”. Thereafter, three factors must be considered. First, did the employer have a proprietary interest entitled to protection? Second, are the temporal or spatial features of the covenant too broad? And, third, is the covenant unenforceable as being against competition generally, and not limited to proscribing solicitation of clients of the former employer?

[37]            Before turning to an assessment of the Restrictive Covenant and a consideration of the three factors, two additional principles that operate in this area warrant mention.

[38]          The first such principle relates to the nature of the restrictive covenant. A restrictive covenant may restrain either competition or solicitation. A non-competition clause restrains the departing employee from conducting business with former clients and customers whereas a non-solicitation clause merely prohibits the departing employee from soliciting their business.

[39]          In Lyons v. Multari (2000), 50 O.R. (3d) 526 ( C.A. ) at para. 31, MacPherson J.A. explained the difference between the two types of clauses in these terms:

The non-competition clause is a more drastic weapon in an employer’s arsenal. Its focus is much broader than an attempt to protect the employer’s client or customer base; it extends to an attempt to keep the former employee out of the business. Usually, non-competition clauses are limited in terms of space and time.

[40]          Elsley makes it clear that a non-solicitation clause is normally sufficient to protect an employer’s proprietary interest and that a non-competition clause is warranted only in exceptional circumstances. At pages 925 and 926 of Elsley, Dickson J. wrote:

The next and crucial question is whether the covenant is unenforceable as being against competition generally, and not limited to proscribing solicitation of clients of the former employer. In a conventional employer/employee situation the clause might well be held invalid for that reason.

                                                …

Nevertheless, in exceptional cases, of which I think this is one, the nature of the employment may justify a covenant prohibiting an employee not only from soliciting customers, but also from establishing his own business or working for others so as to be likely to appropriate the employer’s trade connection through his acquaintance with the employer’s customers. This may indeed be the only effective covenant to protect the proprietary interest of the employer. A simple non-solicitation clause would not suffice. [Emphasis added.]

[41]          Similarly, at para. 33 of Lyons, MacPherson J.A. states, “Generally speaking, the courts will not enforce a non-competition clause if a non-solicitation clause would adequately protect an employer’s interests”.

[42]          In short, a general principle flowing from Elsley and reiterated in Lyons is that a non-solicitation clause -- suitably restrained in temporal and spatial terms -- is more likely to represent a reasonable balance of the competing interests than is a non-competition clause. An appropriately limited non-solicitation clause offers protection for an employer without unduly compromising a person’s ability to work in his or her chosen field. A non-competition clause, on the other hand, is enforceable only in exceptional circumstances.

[43]          The other legal principle that warrants mention is this: the fact that a clause might have been enforceable had it been drafted in narrower terms will not save it. The question is not whether a valid agreement might have been made but whether the agreement that was made is valid.

August 6, 2008

Sentence Appeals

The role of a court of appeal depends critically on what the court is doing. Sometimes the court will consider directly, as in an error of jurisdiction, whether the body appealed from was wrong. Other times the court will look more narrowly and ask if the decision below was unreasonable.

In considering a criminal sentence appeal the court's role is not to decide whether the sentence imposed was that the court of appeal would choose but rather whether the sentence was unfit.

An fit sentence may well differ from that which the court of appeal would have imposed at trial.

This point is illustrated in the recent British Columbia Court of Appeal decision in R. v. Godkin, 2008 BCCA 287. Here a very significant sentence was imposed on a remarkably inept robber (basically ten years although modified somewhat to reflect pretrial custody).

The tone of the Court of Appeal decision suggests some sympathy with the view the sentence was too high. That said, the Court found the sentence was fit and so the appeal was dismissed.

The Court held:

[11] I recognize that Mr. Godkin has expressed an intention to break his heroin use by participating in a treatment program, and it is very much to be hoped that he will do this as his offending is clearly related to his addiction. However, the issue before this Court is whether these sentences are unfit. As I have concluded they are not, the sentences must remain as they were imposed.

August 5, 2008

Engaged in Employment

The Superior Court decision in Collings v. Jew, 2008 CanLII 38259 (ON S.C.) deals with the interesting, albeit very narrow, issue of whether a person working out of town, on behalf of her employer, is engaged in her employment when driving from the day's work to the hotel she was staying at. The Court held she was saying:

[11] Accordingly, the narrow question to which I referred at the outset is whether the drive from the locale of the training session to the hotel contains the required connection or nexus to the employment of Christine Jew by Newell. I find that it does. It is not that the activities of Christine Jew while in Toronto were inexorably tied to her employment.