Wagner is new chief justice of SCC

Wagner is new chief justice of SCC
Richard Wagner will be the new Chief Justice of the Supreme Court of Canada. photo credit: Andrew Balfour Photography/SCC website

Richard Wagner, 60, has been named as the Supreme Court of Canada’s next chief justice.

Wagner, who built his career in Quebec as both a lawyer and judge, was first appointed as a justice of the SCC in 2012. He will replace Beverley McLachlin, who retires Dec. 15.

McLachlin had been in the role of chief justice for almost 18 years, and left a significant legacy in the role.  

Wagner, a graduate of the University of Ottawa’s Faculty of Law, was called to the Quebec bar in 1980. He practised at Lavery, de Billy SENCRL / LLP (formerly known as Lavery, O’Brien and Lavery, Johnston, Clark, Carrière, Mason & Associés), from 1980 to 2004, when he was appointed to the bench at the Quebec Superior Court.

“There is a great deal of respect for Justice Wagner in terms of what he’s done as a lawyer, his involvement in the community and his career as a judge. There was a lot of pride when he was appointed to the Supreme Court and all the much more so now that he’s appointed chief justice,” says Louis Charette, a partner at Lavery lawyers who worked with Wagner on construction and professional liability litigation files in the litigation team at the firm until Wagner was appointed to the bench in 2004.

Charette says Wagner brings a passion for the law but is more “reserved” in his approach than McLachlin.

“I think he’s going to bring the same passion and rigour that Justice McLachlin brought, I think that’s undeniable. In terms of his qualities he was passionate about what he did, he was rigorous and hardworking and that will continue. I think Richard is more reserved as a personality. Justice McLachlin had an ease with people and it was easy to speak with her. Justice Wagner is very reserved and perhaps that is a difference Canadians will see in terms of his approach in public speaking.”

Wagner served as a judge at the criminal division, civil division and commercial division until 2011, when he was appointed to the Quebec Court of Appeal. 

Wagner’s appointment ends months of speculation about who would take McLachlin’s place at the court. On Dec. 18, he will take an oath of office as chief justice.

“I have the utmost confidence in his ability to lead the highest court of Canada, an institution with a long and respected history of judicial independence and excellence,” said Prime Minister Justin Trudeau, in a news release from the Prime Minister’s Office.

“The judiciary, the legal profession, and all Canadians will be well served by his dedication to upholding the laws and Constitution upon which this country is founded.”

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SCC rulings weigh in on privacy of text messages

SCC rulings weigh in on privacy of text messages
Patrick McCann says the SCC ruling ‘really held that the expectation of privacy — or the privacy interests in text messages — is not in the phone or the account where they’re found, but in the content of the message itself.’

Two Supreme Court of Canada rulings last week focused on expectations of privacy in text messages. In one case, a production order used to gather text messages that served as evidence against an accused man stood, but in another case, R. v. Nour Marakah, the SCC ruled the text messages had been improperly seized.

In R. v. Tristin Jones, a man found guilty of drug and gun-related offences challenged the convictions after police used text messages from his Telus account as evidence against him. He argued that a police production order for the texts violated his s. 8 right under the Charter, which prohibits unreasonable search and seizure. A trial judge didn’t accept the Charter argument, and convicted Jones.The SCC also ruled the production order should be upheld.

Patrick McCann, who is counsel with Fasken Martineau DuMoulin LLP in Ottawa and who acted for Jones at the SCC, says he was disappointed with the majority’s decision that seizing text messages from a service provider after they’ve been delivered is not an intercept under Part VI of the Criminal Code, which governs wire tap provisions.

However, he says in both Jones and Marakah the SCC “really held that the expectation of privacy — or the privacy interests in text messages — is not in the phone or the account where they’re found, but in the content of the message itself, the information contained in the text message.” He also says there are other important elements on the case.

“I was pleased with the decision on the standing issue, because the Crown had taken the position throughout, from trial on, that the accused had to testify in order to establish a subjective expectation of privacy in the text messages, and that any expectation of privacy could not relate to text messages found on somebody else’s account,” he says.

“So, they completely agreed with me on that, that no, there is no requirement for the accused to testify if the Crown is alleging they are his text messages, then for the purposes of a s. 8 application, it can be assumed that they are his text messages.”

The ruling said it is “objectively reasonable for the sender of a text message to expect a service provider to keep information private where its receipt and retention of such information is incidental to its role of delivering private communications to the intended recipient.”

“That is intuitive. One would not reasonably expect the service provider to share the text messages with an unintended recipient, or post them publicly for the world to see,” said the ruling. “In this case, it was therefore reasonable for [the accused] to expect that the text messages that he sent would not be shared by Telus with any parties other than the intended recipient, notwithstanding that he relinquished direct control over those messages.”

However, while the court determined that the accused had a right to challenge the order, the SCC ultimately concluded that the evidence was properly obtained by police.

“[The accused’s] s. 8 Charter right was not breached because records of text messages stored on a service provider’s infrastructure were lawfully seized by means of a production order under s. 487.012 of the Criminal Code,” said the ruling.

“Based on its plain meaning and read in context, the term ‘intercept’ in s. 183 of Part VI of the Criminal Code encompasses the production or seizure of historical text messages stored by a service provider.”

In Marakah, SCC Justices Beverley McLachlin, Rosalie Abella, Andromache Karakatsanis and Clément Gascon (with Justices Michael Moldaver and Suzanne Côté dissenting) found that text messages of an accused were improperly seized by police.

In the ruling, the accused, known as “M,” had sent text messages to an accomplice, known as “W,” about firearms.

After police obtained warrants and seized both their phones, they found text messages that were used as evidence. However, the accused argued that the seizure had violated his rights under s. 8 of the Charter, which limits unreasonable search and seizure.

“The text messages offer highly reliable and probative evidence in the prosecution of a serious offence and their exclusion would result in the absence of evidence by which M could be convicted. This favours admission,” said the ruling.

However, the ruling noted that “the police conduct in accessing and searching the electronic conversation through W’s iPhone without a warrant two hours after his arrest was sufficiently serious to favour the exclusion of the evidence.”

“This breached s. 8  of the Charter  not only because of the extent of the search, but also because of its timing. On the application judge’s findings, this simply was not a search incident to arrest,” said the ruling. “In addition, the police conduct had a substantial impact on M’s Charterprotected privacy interest in the electronic conversation. On balance, the admission of the evidence would bring the administration of justice into disrepute.”

The SCC held, therefore, that the convictions should be set aside.

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VIDEO: Lawyers are catalysts for reconciliation, according to panel discussion

VIDEO: Lawyers are catalysts for reconciliation, according to panel discussion
Valarie G. Waboose, Sara Mainville and Nicole Richmond discuss the Indian Act and the importance of reconciliation

The Ontario Bar Association, in partnership with the Roundtable of Diversity Associations, held the third-annual diversity conference with the theme “where we are and where we are heading,” in Toronto on Nov. 27.

Sara Mainville, senior associate at Olthuis Kleer Townshend LLP, moderated a panel entitled “What Reconciliation Means for the Legal Community,” which featured two other indigenous lawyers, Nicole Richmond, director of justice at Chiefs of Ontario, and Valarie G. Waboose, assistant professor at University of Windsor Faculty of Law. 

The panel touched upon the years of colonization and colonialism in North America, especially how the Indian Act was so harmful for indigenous peoples. They panelists stressed the importance of lawyers playing a role in reconciliation because it’s not just up to the legal system or government to do so. 

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Indigenous activist heads back to court in fight against Cleveland Indians logo

Indigenous activist heads back to court in fight against Cleveland Indians logo
Paul-Erik Veel, one of the lawyers representing Douglas Cardinal, says the continual use and display of the Cleveland Indians logo causes some to have to ‘make a choice between avoiding a game altogether, or attending a game at an increased burden to themselves.’

An Indigenous activist’s case against a Major League Baseball team and its league will be before the Ontario Divisional Court next week as the league argues that Ontario’s Human Rights Tribunal does not have jurisdiction to hear the case.

In 2016, Douglas Cardinal — a renowned Canadian architect of Blackfoot descent — commenced two applications, before the Canadian Human Rights Commission and the Human Rights Tribunal of Ontario, seeking to enjoin the Cleveland Indians Baseball Company, Major League Baseball, and Rogers Communications Inc. from displaying, broadcasting, communicating or otherwise disseminating any representations or depictions using the word “Indian” or any form thereof in relation to the Cleveland Indians and using the “Chief Wahoo” logo within Canada.

The logo, as Legal Feeds previously reported, is a cartoon caricature of an aboriginal man, red-skinned with a toothy grin and a feathered headband, holding a baseball bat. Cardinal argues that the team name and the logo are racist and discriminatory, and using them in baseball games contravenes human rights codes.

“What the continual use and display of that logo at a baseball game means is that individuals who are wildly offended and troubled by that logo have to make a choice between avoiding a game altogether, or attending a game at an increased burden to themselves,” says Paul-Erik Veel, a partner at Lenczner Slaght Royce Smith Griffin LLP in Toronto and one of the counsel representing Cardinal.

Since the logo depicts an aboriginal person in a caricatured and racist way, says Veel, a burden is placed on individuals attending a Cleveland Indians game “as a condition of being able to access that service.” Cardinal’s counsel will argue before the Ontario Divisional Court on Wednesday that Ontario human rights law prohibits discrimination in the delivery of a service.

In October 2016, Ontario Superior Court Justice Thomas McEwen dismissed Cardinal’s application for an injunction just hours before a Cleveland Indians playoff game before the Blue Jays at the Rogers Centre in Toronto. In written reasons delivered the following month (Cardinal v. Cleveland Indians Baseball Company Limited Partnership, 2016 ONSC 6929), Justice McEwen found that “there is no reason why the application cannot have been brought long ago on a non-urgent basis.”

In May, Cardinal won a judgment allowing the case to proceed through Ontario’s Human Rights Tribunal. It is this judgment that one of the respondents, Major League Baseball, will challenge before the Ontario Divisional Court, on the grounds that the Tribunal does not have jurisdiction to hear the case against an American baseball team.

If Cardinal wins his case, the Cleveland Indians would be required to wear their alternate jerseys, which display the team’s stylized “C” logo but not the Chief Wahoo logo, when playing in Ontario or possibly anywhere in Canada.

In recent years sports teams at all levels have faced criticism for using indigenous peoples in their team names and logos.

“Each case that comes before the Tribunal will have to be considered on its own facts,” says Veel when asked about the implications for other sports teams if his client’s application is successful. However, he says, a successful outcome in Cardinal’s application “would at least further the dialogue about a number of names and logos used by various professional sports teams that a number of groups have considered to be quite racist.”

A hearing date in the application before the Human Rights Tribunal of Ontario has not yet been set.

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New judges for the Provincial Court of Alberta

Three new judges have been appointed to the Provincial Court of Alberta.

David Hancock was appointed to the Provincial Court, Edmonton Family and Youth court. Hancock was a lawyer practising in criminal, civil, family and corporate law before becoming an elected representative and member of the government of Alberta for 18 years. During that time, he served as premier and Government House Leader, held numerous cabinet positions such as deputy premier, minister of justice, minister of health and wellness, minister of human services and minister of education. He retired from public service in 2014.

He continues community advocacy in Edmonton, serving in various positions at local organizations including board member for the Edmonton Community Foundation, the Citadel Theatre and the Alberta Arbitration and Mediation Society. He also served as Chancellor of St. Stephen’s College at the University of Alberta.

Marian De Souza has been appointed to Provincial Court, Calgary Region. She began her legal career representing legal aid clients in civil, criminal, family and child protection matters, and then moved on to spend 10 years with a Fortune 500 company as legal counsel and then as a director.

De Souza has served in various roles with the Law Society of Alberta and the Canadian Bar Association. Most recently, she was president and executive officer of the Alberta branch of the CBA. She continues to be an active volunteer in Calgary, providing pro-bono legal advice and services through a number of local community organizations.

The third newly appointed judge is Robert Shaigec, who takes his place on the bench of the Provincial Court, Edmonton Region. He began his legal career as a partner with an Edmonton law firm, where he practised as a criminal defence lawyer and appeared as counsel in all levels of court, including the Supreme Court of Canada.

Providing legal aid services to those facing barriers to access to justice — such as those with low incomes, mental illness, addictions and homelessness — has made up a significant part of his work over the years. He has served as a committee member for Legal Aid Alberta and held numerous positions with the Criminal Trial Lawyers Association.

The newly appointed judges “have each made positive and lasting contributions to Alberta’s justice system and their communities,” said acting Minister of Justice and Solicitor General Marlin Schmidt in the announcement.

“I congratulate them on their appointments to the Provincial Court of Alberta and I am confident their experience will be a valuable asset as they move forward in their careers as members of the judiciary.”

Candidates for the appointments go through a multi-step process where they are first screened by the Alberta Judicial Council, which includes representatives from the Alberta Provincial Court, Court of Queen’s Bench, Court of Appeal and the Law Society of Alberta, as well as two people appointed by the minister of Justice and Solicitor General. Candidates are then interviewed by the 11-member Provincial Court Nominating Committee, which has representatives from the Alberta Provincial Court, the Law Society of Alberta, the Alberta branch of the Canadian Bar Association and people from the province’s legal community and the public appointed by the minister of Justice and Solicitor General.

The nominating committee provides recommendations on which candidates should be appointed to the minister of Justice and Solicitor General.

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Boniferro is Ontario’s next deputy attorney general

Boniferro is Ontario's next deputy attorney general
Prior to joining McCarthy Tétrault, Paul Boniferro was a senior policy adviser to the Ontario minister of Labour.

McCarthy Tétrault LLP lawyer Paul Boniferro is taking on the role of deputy attorney general of Ontario effective Jan. 3, 2018 for a two-year term.

Boniferro, a partner in the firm’s national labour and employment group, is taking on management of what he says could be considered the “second largest law firm in the country” (second to the federal government’s Department of Justice).

A practising labour and employment lawyer and at one time the national leader of practices and people at McCarthy’s, Boniferro says he hopes some of the experience he has had in the private sector in a management role can be leveraged in the MAG’s office.

“In my private practice I prided myself on client service and I see this as just serving a new client and that client happens to be the attorney general [Yasir Naqvi] and his premier. I look forward to serving them well in terms of their legal needs,” he says.

The position was left open in May when former deputy attorney general Patrick Monahan was appointed a judge of the Superior Court of Justice in Toronto.

“I’ve always had a keen interest in public service and the government and government law. My public service interest stems back to my parents who, when I was growing up, were very active in our local community in Sault Ste. Marie,” says Boniferro. “I have been at a stage in my career where I was looking forward to a new challenge and new opportunity and this became available and I decided to take it.”

With the next Ontario provincial election taking place in June of next year, Boniferro is entering the role at an interesting time, but doesn’t see any issues if there was to be a change in government next summer.

“Canadians do a much better job at transition of governments. Regardless of the outcome of any political stripe, the public service for the most part is kept intact and continues to serve the government of the day. I’ve learned over the years that the beauty of the public service in Ontario and Canada is that they are truly professionals and serve the government of the day. The elections don’t have a major impact on roles at the deputy minister level.”

“I look forward to continuing to serve the premier and her cabinet and until told otherwise that’s my duty and what I look forward to doing,” he says.

Boniferro also enters the job at a time when there is much talk about the need to introduce technology to revolutionize the administrative of justice — a challenge he says he looks forward to taking on with the rest of the executive team at the MAG.

“It’s an area I’m passionate about and an area I hope I can have some impact on,” he says.

As the most senior executive legal counsel in the Ontario Public Service, Boniferro will lead the MAG and along with his team will provide strategic advice to enable informed policy and program decisions affecting Ontario and beyond.

Prior to joining McCarthy Tétrault, Boniferro was a senior policy adviser to the Ontario Minister of Labour. There, he advised the government on changes to the Labour Relations Act, the Workers’ Compensation Act, the Employment Standards Act and the Pay Equity Act. Since joining McCarthy Tétrault in 1996, he has been retained by the government on a number of occasions to provide advice on labour relations and employment issues.

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PI lawyers critical of Ontario’s new car insurance plan

PI lawyers critical of Ontario’s new car insurance plan
Darryl Singer says new plan will rely on insurance companies to act in good faith with no incentive to do so.

Ontario’s new “Fair Auto Insurance Plan” will leave accident victims without an advocate and at the mercy of insurance companies, say personal injury lawyers.

The government is aiming to deliver lower insurance premiums by allowing insurance companies to “bully” accident victims, says Darcy Merkur, a partner at Thomson Rogers in Toronto.

“It’s a smart thing for the government to do. It’s just totally unfair to accident victims. In so much as they care about helping accident victims, it’s horrific,” says Merkur. “The recommendations were all about letting the insurance company get away with cheap mistreatment of accident victims, all with the purpose of saving the public auto insurance premiums, but to the total detriment of accident victims.”

On Dec. 5 the Ontario government announced it plans to “reduce costs in the system by changing the emphasis from cash payouts to ensuring appropriate care for victims.”

Some personal injury lawyers say this shows an intention to eliminate cash settlements between automobile accident victims and insurance companies, which would eliminate the incentive to take on automobile accident insurance claims.

The government’s recommendations follow a report by David Marshall called the “Fair Benefits Fairly Delivered: A Review of the Auto Insurance System in Ontario.” Marshall is former president and CEO of the Workplace Safety and Insurance Board.

In the report Marshall writes: “There should be no cash settlements in the accident benefits portion of the Ontario auto insurance system for those benefits specified in the legislation as being for medical and rehabilitation care.”

The new plan is an effort to earn votes before the June provincial election, says Darryl Singer of Singer Barristers Professional Corp. in Markham, Ont.

“I think this is really an election ploy to say, ‘Hey Ontario, we’re going to bring down your auto insurance premiums,’” he says. “You’re paying the highest premiums in the country, on average and we’re going to bring those down and here’s how we’re going to do it.”

Legal Feeds contacted the Ministry of Finance for comment but did not receive a reply by time of posting.

Singer says that in instances in which insurance companies deny treatment to people injured in an accident, under the current system the injured person can get a lawyer to fight for the claim, who often settles with the insurance company for a cash payout — a percentage of which goes to the lawyer for their services. Singer says the insurance companies prefer providing treatment over providing a cash payment equal to what the treatment costs because victims often do not use all the treatment they are awarded.

Taking away cash payments takes the lawyer away from the accident victim, leaving them with no one to fight the insurance companies if they then deny the treatment, says Singer.

“If you come to me on an accident benefit matter and say, ‘My insurance company has denied my treatment and I’ve got lots of ongoing injuries and I need this treatment,’ I can fight for you because if I ultimately get your case settled with a cash payout I get to take a percentage of that and I earn a fee,” Singer says. “If you come in the door and say, ‘I have to fight to get treatment but there’s no cash payout and I don’t have any money to pay you,’ well, then how do I get paid?”

The government’s plan also includes “creating independent examination centres to provide assessments of more serious auto collision injuries, to help resolve and reduce diagnosis disputes, and to reduce system costs and inefficiencies stemming from disputes.”

Merkur says these independent examination centres are the same as the designated assessment centre system that used to operate in the province. Instead of accident victims seeing their family doctor or their specialist, they will have an assessment from someone assigned through this system, which Merkur says will not be “thorough, comprehensive or well-reasoned.”

Singer says that the DAC system was a failure.

“If you go back and look at the designated assessment centres of the past, they were dismantled. We know this doesn’t work,” he says.

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