Friday, October 17, 2014

Criminal wiretap evidence can be produceable in civil matters

Imperial Oilv. Jacques, 2014 SCC 66:

A party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation

Wednesday, October 15, 2014

The Lonesome Death of Hattie Carroll

For people of a certain age and background Bob Dylan's early song "The Lonesome Death of Hattie Carroll" (1963) is life altering. 
It tells of a wealthy man who kills a servant and, through his power and wealth, escapes justice. The song tells a true story - or that's what I believed until quiet recently. 

The song shaped my thinking about power inequality and the law for as long as I can remember. 

The lyrics are:

"William Zanzinger killed poor Hattie Carroll
With a cane that he twirled around his diamond ring finger
At a Baltimore hotel society gath'rin'
And the cops were called in and his weapon took from him
As they rode him in custody down to the station
And booked William Zanzinger for first-degree murder
But you who philosophize disgrace and criticize all fears
Take the rag away from your face
Now ain't the time for your tears

William Zanzinger, who at twenty-four years
Owns a tobacco farm of six hundred acres
With rich wealthy parents who provide and protect him
And high office relations in the politics of Maryland
Reacted to his deed with a shrug of his shoulders
And swear words and sneering, and his tongue it was snarling
In a matter of minutes on bail was out walking
But you who philosophize disgrace and criticize all fears
Take the rag away from your face
Now ain't the time for your tears

Hattie Carroll was a maid of the kitchen
She was fifty-one years old and gave birth to ten children
Who carried the dishes and took out the garbage
And never sat once at the head of the table
And didn't even talk to the people at the table
Who just cleaned up all the food from the table
And emptied the ashtrays on a whole other level
Got killed by a blow, lay slain by a cane
That sailed through the air and came down through the room
Doomed and determined to destroy all the gentle
And she never done nothing to William Zanzinger
But you who philosophize disgrace and criticize all fears
Take the rag away from your face
Now ain't the time for your tears

In the courtroom of honor, the judge pounded his gavel
To show that all's equal and that the courts are on the level
And that the strings in the books ain't pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught 'em
And that the ladder of law has no top and no bottom
Stared at the person who killed for no reason
Who just happened to be feelin' that way without warnin'
And he spoke through his cloak, most deep and distinguished
And handed out strongly, for penalty and repentance
William Zanzinger with a six-month sentence
Oh, but you who philosophize disgrace and criticize all fears
Bury the rag deep in your face
For now's the time for your tears"

Now I happened to hear the song again recently while I was preparing for a homicide trial. 

And something struck me. William Zanzinger was charged with First Degree Murder - but he killed for no reason and without warning. 

That doesn't sound like First Degree Murder - it sounds like manslaughter. 

I was curious and dug deeper. 

In fact William Zantzinger (Dylan dropped the "t", perhaps to make the words scan better) was a dreadful man and a nasty racist. He did come to a fancy dress ball with a twenty five cent toy cane. He did push around staff and called them racial names. In short he was a very bad guy and the police took him away and charged him with assault and public intoxication - and rightly so. 

But oddly he was not charged at first with assaulting Hattie Carroll. And, again at first, she had no injuries but was deeply upset but being called dreadful names by William Zantzinger. The records are not clear but it is possible that she was not hit at all by Zantzinger - or she may have been. If she was assaulted she was hit on her shoulder. Either way she suffered no direct physical injuries. But she was almost immediately taken ill. Hattie Carroll told co-workers, "I feel deathly ill, that man has upset me so."

Hattie Carroll's arm became numb, her speech thick. She collapsed and was hospitalized. Carroll died eight hours later.  Her autopsy showed hardened arteries, an enlarged heart, and high blood pressure. She died of a brain hemorrhage probably caused by the stress of Zantzinger's verbal abuse.

There was a very real causation issue. 

What's more, the assault, if it happened, was not one that would have suggested death was a likely (or even plausible) result.  A conviction for manslaughter was far from a sure thing. 

But a conviction resulted. 

Manslaughter has a remarkable range for sentencing - everything from discharge to life imprisonment. The Zantzinger sentence was low - but not so low as to be an inconceivable result even today. My own sense is a court today would be more likely to give a three or four year sentence but with the right type of pre-sentence reports a lower sentence might follow. 

I should be clear that I am not acting as an apologist for William Zantzinger -- who died in 2009. He seems to have been a thoroughly dreadful person (at least in the early 60s). 

But the story is far more complex than I had known ,,,

Appeal route determined by entire Order and not merely parts appealed

The route an appeal takes depends critically on the nature of the order appealed. So appeals may, or may not, go to Divisional Court depending on whether they are for specific payments of money. What is an order would go to the Court of Appeal if the order was appealed in full but the parts appealed would, standing alone, go to Divisional Court?

Hanisch v. McKean, 2014 ONCA 698 holds the entire order, not just the passages appealed, determines the appeal route:

[19]       The specific question raised by the respondent concerns the meaning of "final order" as it appears in ss. 6 and 19 of the CJA. If "final order" can properly be read as referring to the particular term(s) of a final order that is/are under appeal, then the respondent is correct and this appeal lies to the Divisional Court. 

[20]       However, if "final order" must be read as meaning the entire final order, irrespective of what portions of the final order are under appeal, then the respondent is incorrect and this court has jurisdiction to entertain this appeal.

[21]       I note at the outset that, when determining this court's jurisdiction over orders having both final and interlocutory aspects, this court has generally distinguished between the final and interlocutory aspects of the order: see, for example, Albert v. Spiegel (1993), 17 C.P.C. (3d) 90; Cole v. Hamilton (City) (2002), 60 O.R. (3d) 284. However, this distinction is required by s. 6(1)(b) of the CJA, which limits the appellate jurisdiction of the Court of Appeal to final orders. 

[22]       In my view, two factors point strongly to the conclusion that "final order," as it appears in ss. 6 and 19 of the CJA, must be read as meaning the entire final order, irrespective of what portions of the final order are under appeal. 

[23]       First, in Sepe v. Monteleone(2006), 78 O.R. (3d) 676, at para. 6, this court described the purpose of section 19(1)(a) of the CJA as being "to define an easily applied cut-off line for litigants to determine the proper appeal route in any particular case." Examining the overall scheme of ss. 6 and 19 of the CJA in the light of this purpose of s. 19, interpreting "final order" as meaning anything other the whole of the final order would not make sense. 

[24]       When ss. 6(1), 6(2) and 19 are read in combination, it is apparent that the scheme of these sections is to give the Court of Appeal default jurisdiction over appeals from final orders of the Superior Court of Justice – subject only to the exceptions created by s. 19 of the CJA and other specific statutory provisions. Section 6(2) underlines the intention to give the Court of Appeal default jurisdiction by providing that, where more than one court has jurisdiction over appeals in the same proceeding, the Court of Appeal may assume jurisdiction over all appeals.

[25]       Considered in the context of this statutory scheme, it would not make sense to interpret "final order" as meaning anything other than the whole of the final order. 

[26]       For example, in the context of an order made in matrimonial proceedings, if "final order" were interpreted as including the particular term(s) of an order that is/are under appeal, one spouse could be required to appeal the support award to the Divisional Court, whereas the other spouse could be required to appeal the equalization payment made under the same order to the Court of Appeal. While it is true that under s. 6(2) of the CJA, the Court of Appeal would have jurisdiction to entertain both appeals once the appeal of the equalization payment was filed, it is unlikely that the legislature intended that appeals would have to be transferred or truncated depending on which party was the first to deliver its notice of appeal. 

[27]       When read in light of the purpose of s. 19, which is to provide an easily applied cut-off line for litigants to determine the proper appeal route in any particular case, it is my view that "final order" as it appears in ss. 6 and 19 can only sensibly be interpreted as meaning the whole of the final order. Otherwise, the proper appeal route from an order could change, depending on the terms of the order and the grounds of the appeal or cross-appeal.

[28]       Second, in applying the four subparagraphs in each of ss. 19(1.1) and (1.2) of the CJA to determine which court has jurisdiction, this court has generally focused on the final order as a whole and not simply the aspect of the order under appeal or the amount claimed on appeal by individual parties. In doing so, this court has made it clear that each of the subparagraphs in ss. 19(1.1) and (1.2) are disjunctive and therefore must be considered separately.[3] However, although claims and counterclaims are not to be combined,[4] when applying each subparagraph, all of the claims (or counterclaims) are to be added together, even if claimed by more than one party,[5] in order to determine which court has jurisdiction. Such an interpretation puts the emphasis on the entire final order and not simply on the aspect of the final order under appeal.

[29]       So, for example, in McManus v. Feldman Investments Ltd., [2003] O.J. No. 5762, this court determined that it had jurisdiction over an appeal where the appeal related solely to punitive damages quantified at $16,750, but the total amount of the judgment was $148,143. 

[30]       Similarly, in Mohammed (Personal Representative of) v. Tucci, 2009 ONCA 554, 97 O.R. (3d) 145, this court held that for the purpose of applying ss. 19(1)(a) and 19(1.1)(c) or (d), the value of all the plaintiffs' claims that were dismissed must be added together to determine the total amount of the dismissed claim. In that case, the plaintiffs sued for damages arising from the death of their infant son, alleging medical malpractice. The trial judge dismissed the action, but assessed the damages for each parent in an amount that fell within the jurisdiction of the Divisional Court. However, when those sums were added together, the total exceeded the jurisdiction of the Divisional Court, giving this court jurisdiction. 

[31]       Based on the foregoing reasons, I am satisfied that "final order" as it appears in ss. 6 and 19 of the CJA refers to the whole of the final order and I would not give effect to the respondent's preliminary objection concerning jurisdiction.

Thursday, October 9, 2014

A threat of violence is a form of violence

R. v. Steele, 2014 SCC 61, perhaps surprisingly, holds a threat of violence is violence:

...a threat of violence is itself a form of violence ...

Tuesday, October 7, 2014

An annoyed judge may disqualify themselves

Cabana v. Newfoundland and Labrador, 2014 NLCA 34 :

[45]        The manner in which a judge conducts a hearing may result in a reasonable apprehension of bias disqualifying the judge from hearing proceedings involving a particular litigant.  As a general rule, the patient and courteous treatment of all litigants will serve to maintain the community's confidence in and respect for the courts and the justice system (Ethical Principles of Judgessupra, under "Adjudicative Duties").  In this context, the fact that a litigant is not represented by counsel may be a relevant consideration.   

[46]        In this case, Mr. Cabana submits that the judge exhibited hostility towards him and did not appear to approach his case with an open mind.  He submits that this was particularly exhibited in the judge's response to his attempt to present evidence to support his request that she recuse herself.          

[47]        On the Friday before the hearing on recusal, set to commence on the following Monday, the judge advised Mr. Cabana to assemble his facts.  Mr. Cabana did not have legal counsel.  He was left to determine what facts he should marshal and how he should obtain them.  This was not an obvious or easy task.  

[48]        When Mr. Cabana sought to enter the information regarding the judge's pre-appointment political donations, the judge could have explained to Mr. Cabana why the information was not relevant and would not be considered, or she could have received the information and dealt with it in her recusal decision.  Instead, the judge responded to Mr. Cabana using intemperate and hostile language.  Key quotations from the transcript of proceedings at the February 25thhearing are as follows:


Q.        … It seems to me that you spent a great deal of energy on the weekend researching my prior life and you now want to seek to rely on political donations that were either made by me personally or that are being made or have been made by my husband's firm as part of the assertions relative to the impartiality claim.


Q.        … Now I want to caution you, Mr. Cabana, that I think you've crossed the line here, okay?


Q.        … While judges are subject to appropriate scrutiny, what I expect from you and from all the counsel that are here from you today and every day is a focus on what's relevant … .  So when documents are forwarded to the Court or when statements are made that become vexatious, scandalous or embarrassing, there are consequences, but if somebody gets out of line in a courtroom, there are other types of consequences … .  Findings of contempt can be made. …


Q.        I want you to treat this as a warning from me …


Q.        … I'm not going to entertain any reference from you of contributions made by anybody to political parties as far back as 1996 …  I became a Justice of this Court in March of 2007 and I consider these types of things to be irrelevant, pre-appointment matters that suggest  ̶  I'm going to say suggest for the moment – a vendetta.  Okay, and this is where I think you crossed the line.


Q.        A vendetta.  So that's where I think you crossed the line, so do not in your arguments or any further submissions that you are going to make on this issue of impartiality, get into that, … 

(Emphasis added.)

[49]        Clearly, the judge was offended that Mr. Cabana sought to use her pre-appointment political donations as a basis for reasonable apprehension of bias.  That is understandable, but by her words she demonstrated what could reasonably be considered to be an animus against Mr. Cabana.  Impartiality and an open ear are critical for the judicial role. 

[50]        If the judge had briefly adjourned and upon returning to the bench received Mr. Cabana's submissions on donations, if she had indicated that she had spoken in haste and assured Mr. Cabana that his application would be impartially dealt with, the reasonable and right-minded person at the back of the courtroom that day would have had their concerns assuaged.  No such "rescue" of the situation was made