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From the Censorious Criminal Libel Files (Canada Edition)

December 11, 2012

 

 

Image via http://www.firstamendmentcenter.org

BCCLA demands watchdog investigate RCMP actions against critic | BC Civil Liberties Association.:

 

New information in unsealed court documents has the BCCLA demanding an investigation into the RCMP for seizing the computers of a man who says he was helping unhappy RCMP members post their concerns online. On August 18, 2012, Grant Wakefield’s computers and cell phone were seized in a joint RCMP Major Crime and New Westminster Police Department operation.

The RCMP has confirmed that Wakefield was the informant whose information and photographs started high profile code of conduct and criminal investigations into Port Coquitlam RCMP officer Jim Brown’s activities. Simultaneously, Wakefield was also anonymously assisting disgruntled members of the RCMP to run a blog called the “Re-Sergence Alliance” blog, a blog that posted alleged RCMP front line member concerns about RCMP management and policy online.

 

The BCCLA adds:

 

“We’re asked to believe the RCMP used the resources of their major crime section, computer forensics team, the Federal Department of Justice, and a search warrant, to investigate what amounts to conspiracy theories posted in the comment section of an erotic blog and a Twitter account with thirteen followers,” said Eby. “Defamatory comments are made every day on the internet, and the RCMP doesn’t send their major crime team to investigate. What makes this case unique is that the man who had his computers taken away by the police was using those computers to help unhappy RCMP members publish their concerns online.”

The BCCLA is demanding the Commission for Public Complaints investigate the entire RCMP operation against Grant Wakefield, and has written to them to file a complaint.

Click here to read the unsealed court documents >>

Click here to read the BCCLA’s letter to the Commission for Public Complaints >>

 

The decision of P. D. Gulbransen, J. partially unsealing the RCMP search warrant is reported at B.C. Civil Liberties Association v. Regina, 2012 BCPC 406 (CanLII).

 

Criminalization of defamation is a pernicious form of libel chill and is anathema to a free and democratic society.  It is high time for the archaic and illiberal criminal offence of defamatory libel to be relegated to the dustbin of legal history.

 

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Posted in BC Civil Liberties Association, BCCLA, blawging, Blawgosphere, blawgs, blog, Cpl. Jim Brown, criminal law, Criminal Libel, criminal procedure, defamation, Defamation Law, free speech, Freedom of expression, freedom of speech, Grant Wakefield, libel, Libel Chill, media, RCMP, social media | 1 Comment »

Cherry Picking at the Supreme Court of Canada: R. v. Cole

October 19, 2012

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…)

Posted in Canadian Charter, Charter of Rights and Freedoms, crime prevention, Criminal Code of Canada, criminal law, criminal practice, criminal procedure, evidence, fair trial, Supreme Court of Canada | 2 Comments »

Ontario appeal court: No reasonable expectation of privacy in using IP address to obtain customer info

October 3, 2012

In R. v. Ward,2012 ONCA 660, the Court of Appeal for Ontario has confirmed that that there is no reasonable expectation of privacy in identifying an internet user through his IP address in the course of a child pornography investigation.  (more…)

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Posted in Charter of Rights and Freedoms, Criminal Code of Canada, criminal law, criminal practice, criminal procedure, PIPEDA, privacy, prosecution | 3 Comments »

Chilenye Nwapi, “Litigating extraterritorial corporate crimes in Canadian courts”

September 26, 2012

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.

 

 

 

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Posted in Canada, civil jurisdiction, Civil Litigation, civil procedure, criminal law, criminal practice, criminal procedure, forum non conveniens, forum of necessity, International, international dispute resolution, international human rights, international law, international litigation, jurisdiction, jurisdiction simpliciter, private international law, real and substantial connection, tort, torts, torture, transnational litigation, universal jurisdiction | Leave a Comment »

UPDATED: Ontario Court of Appeal Judgment in R. v. Drabinsky and Gottlieb To Be Posted September 13th

September 8, 2011

Garth Drabinsky -via CP24.com All rights reserved

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, [1975] 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.

UPDATE

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:

[185]     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.

[186]     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.

[187]     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.

[188]     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.

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Posted in Criminal Code of Canada, criminal law, criminal practice, criminal procedure | Leave a Comment »

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