Today’s decision by the Supreme Court of Canada in R. v. Cole 2012 SCC 53 (S.C.C.) addresses the constitutional scope of the reasonable expectation of privacy based on unreasonable search and seizure under s. 8 of the Charter. By a 6-1 majority, the Court concluded that a warrantless search and seizure of laptop computer and disc containing Internet files breached the accused’s rights under s. 8 of Charter, but ought not to have been excluded pursuant to s. 24(2) of Charter. (more…)
Archive for the ‘criminal practice’ Category
Chilenye Nwapi (D. Phil. Candidate, University of British Columbia, Faculty of Graduate Studies (Law)) has published a doctoral thesis entitled: Litigating extraterritorial corporate crimes in Canadian courts [PDF] (September 2012). The abstract reads:
This study investigates whether and how Canadian courts may assume jurisdiction (both criminal and civil) over extraterritorial crimes/wrongs committed by Canadian corporations operating overseas. It examines the current state of international law to see whether there is any international legal rule prohibiting a state from assuming jurisdiction over conduct occurring outside its territory. It finds that no such positive rule is in existence, whether in customary international law or in treaty law, and that the only concern is the likelihood of diplomatic protests by states which believe that the jurisdiction sought to be assumed is a threat to their territorial integrity. It argues that although the type of jurisdiction envisaged in this study is not widespread among states, the absence of widespread state practice is not tantamount to prohibition, at least in principle. The study then looks at the Canadian domestic jurisdictional bases, both criminal and civil. On the criminal front, it finds that the real and substantial link test has enough flexibility to reach the extraterritorial conduct of Canadian corporations and that the expansion of the substantive bases of corporate criminal liability that occurred in Canada in 2003 bolstered the criminal jurisdiction of Canadian courts over extraterritorial corporate crimes. On the civil front, it finds that Canadian courts may assume extraterritorial jurisdiction under three distinct theories: the real and substantial connection test, necessity jurisdiction and the recently enacted Torture Victims Protection Act. It examines the bases for declining jurisdiction under the doctrine of forum non conveniens and calls for a reformulation of the doctrine to require a Canadian court to decline jurisdiction only when it finds that it is a “clearly inappropriate” forum, in contrast to the current rule that requires the existence of a “clearly more appropriate alternative” forum. The question of choosing the applicable law in tort cases is also interrogated. A call is made for the adoption of a rule that considers the nature of the conduct in litigation as an important element in the determination of the applicable law. On the whole, this study concludes that Canada holds prospects for transnational litigation.
UPDATED: Ontario Court of Appeal Judgment in R. v. Drabinsky and Gottlieb To Be Posted September 13thSeptember 8, 2011
An update on the Livent saga and the criminal trial of Livent’s former principals, Garth Drabinsky and Myron Gottlieb for fraud and forgery.
For a backgrounder on the civil proceedings, see my OBA article here, commenting on King v. Drabinsky, 2008 CarswellOnt 4489, 2008 ONCA 566, 58 C.P.C. (6th) 223, 295 D.L.R. (4th) 727, 91 O.R. (3d) 616, (Ont. C.A), Application for leave to appeal dismissed with costs (February 12, 2009.
The Court of Appeal for Ontario website has posted the following notice:
To be posted on Tuesday, September 13, 2011 at 11:00 am.
Notice: R. v. Garth Howard Drabinsky and Myron Irwin Gottlieb
Court of Appeal Docket: C50830 & C50831
On appeal from the convictions entered on March 25, 2009, and the sentences imposed on August 5, 2009, by Justice Mary Lou Benotto of the Superior Court of Justice, sitting without a jury, written reasons reported at (2009), 242 C.C.C. (3d) 449 and (2009), 246 C.C.C. (3d) 214.
The appellants were charged with two counts of fraud and one count of forgery. They were tried before Justice Benotto of the Superior Court of Justice at a trial lasting 65 days. On March 25, 2009, they were convicted on all counts. The forgery count was subsequently stayed pursuant R. v. Kienapple,  1 S.C.R. 729. On August 5, 2009, the trial judge sentenced Drabinsky to a term of imprisonment of seven years and Gottlieb to a term of six years.
The appellants appealed both their convictions and their sentences. The appeals were heard on May 2, 3 and 4, 2011 before a court composed of Justices Doherty, Goudge and Armstrong.
The decision of the Court will be released at 11 am on Tuesday, September 13, 2011. The judgment of the court will be posted on the court’s website at that time.
The Court of Appeal for Ontario has today upheld the fraud convictions against Garth Drabinsky and Myron Gottlieb. However, Drabinsky’s seven year sentence of imprisonment was reduced to five years and Gottlieb’s five year sentence was reduced to four years, each to be served concurrently.
Doherty, Goudge and Armstrong JJ.A. in a per curiam judgment conclude:
 On this record, while it can safely be said that the fraud was a factor in the bankruptcy, it cannot be said that the fraud caused the bankruptcy and the subsequent financial losses. Where the actual economic harm caused by a fraud is uncertain, the sentencing judge must give the benefit of that uncertainty to the accused. The trial judge should have approached this case as one in which the Crown had proved the ultimate inevitability of significant loss, but had not proved a fraud of a specific magnitude or that the insolvency was the product of the fraud.
 In describing the loss as we have, we do not mean to suggest that this was not a large scale and significant fraud. It clearly was. Nor do we take away from the non-economic harm caused by this kind of fraud. When prominent business leaders who are directors and officers of public companies engage in fraudulent activity, the public faith in, and the integrity of, the public marketplace no doubt suffers regardless of the actual financial loss suffered.
 In our view, when the nature of the economic loss proved by the Crown is considered with the other factors relevant to sentence, a sentence within the established range of sentencing for large scale frauds is still warranted. However, we would place the appropriate sentence somewhat lower in that range. In our view, sentences totalling five years would be appropriate.
 The trial judge drew a distinction between Drabinsky and Gottlieb for the purposes of sentencing. She imposed an additional year on Drabinsky to reflect her view that he played a more central role in the frauds. The trial judge lived with this case for a long time. As her reasons for conviction and sentence demonstrate, she had an impressive command of the evidentiary record and no doubt an appreciation for the dynamics of the operation of Livent that cannot be gained through a review of the transcript. We will defer to the distinction she drew between Drabinsky and Gottlieb for the purposes of sentence and will maintain that distinction in the sentences we impose.
Following up on my recent post: “Whither Malicious Prosecution“, an unanswered question is whether absolute or qualified immunity for prosecutors in the criminal justice system is legally and morally (if not ethically) justified in a modern society.
In the end, the U.S. Supreme Court decision in Connick v. Thompson slams the door on imposing any §1983 liability on local governments for civil damages arising from a wrongful conviction based upon an action pursuant to “official municipal policy”. Essentially, the U.S. Supreme Court, by a 5-4 margin, rejected establishing a negligence-based “failure-to-train” standard against prosecutors for failing to comply with the Brady v. Maryland, 373 U. S. 83 constitutional requirement of disclosure of exculpatory evidence to the defence.
“Why”, as one commenter, Ted Folkman asked “was the prosecutor who was the actual wrongdoer not liable?” Could not the plaintiff simply have sued the prosecutor who intentionally withheld the evidence of the crime lab report? Even Justice Scalia’s concurrence refers to the “miscreant prosecutor Gerry Deegan’s willful suppression of evidence…in an effort to railroad Thompson”.
The short answer is No. In Imbler v. Pachtman, 424 U.S. 409 (1976), the U.S. Supreme Court established absolute immunity for district attorneys or prosecutors from civil suits resulting from their government duties. See Mike Cernovich’s excellent summary of prosecutorial immunity here.
Some will argue that Imbler does not go so far, as prosecutors are subject to criminal prosecution or professional discipline by state bar associations for suppressing evidence or otherwise putting the administration of justice into disrepute.
No. Not really. (more…)