Appeal Court Rejects Shoplifter's Argument that Trial Lawyer was Incompetent

In a recent decision [Hordyski v. Her Majesty the Queen 2014 SKCA 102], the Saskatchewan Court of Appeal dismissed an appeal from a convicted shoplifter who argued that his trial lawyer had been incompetent. 

 

The evidence against Mr. Hordyski was not complicated.  He had been observed on a CCTV camera by a store's loss prevention officer shoplifting merchandise.  At the time, he was with his young son and a woman, Pearl Peters, who was the mother of his son, in the household goods area of the store.  Ms. Peters left her shopping basket with Mr. Hordyski and left the area. 

 

The CCTV camera footage showed Mr. Hordyski removing the price tag from a soft shell lunch bag and then transferring items from Ms. Peters' shopping basket into the lunch bag.  Mr. Hordyski then picked up his son, concealed the lunch bag between the two of them and walked towards the store exit.  He paused by the cashiers to look around before walking past them and out of the store with the items.  The loss prevention officer confronted Mr. Hordyski outside the store where he was arrested for theft.  The value of the stolen items totalled approximately $220.

 

At trial, the Crown called the loss prevention officer and the investigating police officer.  Both witnesses were thoroughly cross-examined by Mr. Hordyski’s lawyer.  Mr. Hordyski was the only witness called for the defence.  His defence was that he did not have the necessary intent to commit the offence of theft under $5,000 because his reason for leaving the store was to look for Ms. Peters so she could take their son to the bathroom. 

 

The trial judge made specific findings of fact and credibility and concluded Mr. Hordyski was guilty as charged.

 

On appeal, Mr. Hordyski contended that his trial lawyer was incompetent because he failed to called corroborating evidence to bolster Mr. Hordyski’s theory that his relationship with Ms. Peters was dysfunctional and to confirm the extent of Mr. Hordyski’s debilitating back injury.  According to Mr. Hordyski, that evidence would prove that he did not have the intent to commit the offence. 

 

The Saskatchewan Court of Appeal ruled that there is a two-step process involving an allegation of incompetent trial counsel:  1. The first step is to establish that trial counsel’s failure to call corroborating evidence constitutes incompetence;  and 2.  the second  step is to establish that a miscarriage of justice resulted. 

 

The Court of Appeal noted that the trial judge had accepted Mr. Hordyski’s evidence on the nature of his relationship with Ms. Peters and his evidence as to his back injury.  In both instances, the trial judge ruled that such evidence did not raise a reasonable doubt as to Mr. Hordyski's intention to steal the items in question. 

 

The Court of Appeal could not find any error with the trial judge’s rejection of Mr. Hordyski’s explanation for leaving the store with the items and also found that his trial counsel more than adequately cross-examined the Crown’s witnesses and elicited evidence (which was rejected) in Mr. Hordyski’s examination in chief relating to his defence. 

 

More particularly, the Court of Appeal found that there was nothing unreasonable about the trial counsel’s alleged failure to call corroborating evidence on the two issues because the proposed evidence did not relate to material issues but only to facts the trial judge had already accepted.  The trial judge accepted Mr. Hordyski’s testimony with respect to the nature of his relationship with Ms. Peters and his physical condition.  More importantly, however, the trial judge rejected Mr. Hordyski’s explanation as to why he took the items from the store.

 

In the result, Mr. Hordyski’s conviction appeal was dismissed. 

Regards,

Blair 

Ontario Court Upholds Citizenship Oath's Allegiance to the "Queen of Canada"

The Canadian Citizenship Act (“Act”) requires permanent residents who wish to become Canadian citizens to swear an oath or make an affirmation in the following form:

 

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada Her Heirs and Successors and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen. 

 

In the case of McAteer v. Canada (Attorney General), 2014 ONCA 578, the appellants objected to the portion of the oath that referred to being faithful and bearing true allegiance to the Queen, her heirs and successors.  They asserted that the requirement to swear or affirm allegiance to the Queen in order to become a Canadian citizen violated their rights of freedom of conscience and religion, freedom of expression and equality under the Charter of Rights and Freedoms.  They argued that the government could not justify any such violation as being a reasonable limit in a free and democratic society and sought a declaration that the impugned section of the Citizenship oath was optional. 

 

The appellants lost their application before Mr. Justice Morgan of the Ontario Superior Court.  They appealed from that decision to the Ontario Court of Appeal.  The Attorney General of Canada cross-appealed Justice Morgan’s finding that the oath violated the appellants’ right to freedom of expression (although Justice Morgan found that such violation was justified under Section 1 of the Charter). 

The application had been initiated by Charles Roach, a well-known human rights lawyer.  Mr. Roach died in October 2012.  Originally from Trinidad, Mr. Roach was a committed republican who believed that to swear fealty to a hereditary monarch violated his belief in the equality of human beings and his opposition to racial hierarchies.  When Mr. Roach died, Michael McAteer, also a committed republican took up the torch.  Mr. McAteer deposed that taking an oath of allegiance to a hereditary monarch who lived abroad would violate his conscience, betray his republican heritage and impede his activities in support of ending the monarchy in Canada.  Mr. McAteer further deposed that taking an oath to the Queen perpetuated a class system and was anachronistic, discriminatory and not in keeping with his beliefs of egalitarianism and democracy.

 

Other appellants supported Mr. McAteer’s position.  Dror Bar-Natan deposed that the oath violated his conscience because it was a symbol of a class system.  Simone Topey was a Rastafarian who regarded the Queen as the head of Babylon.  She deposed that it would violate her religious beliefs to take any kind of oath to the Queen.  She further deposed that on account of the oath she would feel bound to refrain from participating in anti-monarchist movements.  Howard Gomberg, a former applicant, deposed that taking an oath to any human being was contrary to his concept of Judaism. 

 

The Ontario Court of Appeal (Justices Weiler, Lauwers and Pardu) dismissed the appellants’ appeal and allowed the cross-appeal of the Attorney General of Canada.  The court found that the appellants’ arguments were based on a literal, “plain meaning” interpretation of the oath to the Queen in her personal capacity.  The court held that the correct approach was the "purposive" interpretation mandated by the Supreme Court of Canada, which led the court to the conclusion that the appellants' interpretation was incorrect because it was inconsistent with the history, purpose and intention behind the oath. 

Justice Weiler, writing for the court, held that the oath in the Act is remarkably similar to the oath required of members of Parliament and the Senate under the Constitution Act (1967).  In that oath, the reference to the Queen is symbolic of Canada’s form of government and the unwritten constitutional principle of democracy.  She held that the harmonization principle of interpretation leads to the conclusion that the oath in Act should be given the same meaning.   

Further, the Court of Appeal found that the appellants’ incorrect interpretation of the meaning of the oath could not be used as the basis for a finding of unconstitutionality.  The approach to analysing such claims as set out by the Supreme Court, requires the court to determine:

 

1. whether what is in issue is expression;
2. whether the purpose is to compel expression; and
3. whether there is an effect on expression that warrants constitutional disapprobation.  

 

Applying this approach, the Court of Appeal found that there was no issue that the oath was expression.  The purpose of the oath was not to compel expression but to obtain a commitment to Canada’s form of government from those wishing to become Canadian citizens.  Although the oath had an effect on the appellants’ freedom of expression, constitutional disapprobation was not warranted.  Thus, there was no violation of the appellants’ freedom of expression.  In the alternative, if there was a violation of the appellants’ right to freedom of expression, it was justified under Section 1 of the Charter.

 

The court held that there was no violation of the appellant’s right to freedom of religion and freedom of conscience because the oath is secular and is not an oath to the Queen in her personal capacity but to Canada’s form of government of which the Queen is a symbol. 

 

Finally, the court found that the oath was not a violation of the appellants’ quality rights when the correct approach to statutory interpretation was applied. 

Regards,

Blair

 

     

 

 

Parties Gearing Up For Chevron's Ecuadorean Pollution Case at the Supreme Court

The Canadian Bar Association (“CBA”) announced last week that it was withdrawing its application to intervene before the Supreme Court of Canada in the pollution case of Chevron Corporation et al. v. Yaiguaje, et al.  The original US$19 billion judgment of a court in Ecuador was one of the largest judgments ever imposed by a court for environmental pollution.

The CBA said that its Intervention Policy required that its Legislation and Law Reform Committee sanction the factum before it could be filed with the court.  In this case, the Committee concluded that while the factum was well-drafted and of a high standard of quality, it did not meet the specific requirements of CBA’s Intervention Policy.  As a result, the CBA concluded that without certification of the factum, its intervention could not move forward and would be withdrawn.

 

The withdrawal was reported as an “eleventh-hour reversal” by the CBA.   It had planned to intervene at the Supreme Court on behalf of Chevron in its on-going battle involving enforcement of the judgment obtained by Ecuadorian indigenous plaintiffs for pollution of their lands in the Amazon basin rainforest.  After a lengthy legal battle that has lasted nearly 20 years, an Ecuadorian court found Chevron liable for oil pollution.  The nearly US$18 billion damages awarded in 2011 was reduced by appeal courts in Ecuador to US$9.5 billion.  

 

Chevron has refused to pay and has condemned the judgment as a product of fraud and bribery.  It has obtained a US District Court fraud ruling against the plaintiffs’ US lawyers and others. 

News outlets reported that lawyers working in aboriginal affairs, environmental law and civil law had all objected to the CBA’s decision to support Chevron’s arguments. 

The original decision of the CBA sparked protests across the country, with some lawyers resigning their CBA members.  Reports say that critics complained that the action was being driven by Blake, Cassels & Graydon LLP, which prepared the factum on a pro-bono basis but also does corporate work for Chevron.

Other interveners, notably the International Human Rights Program at the University of Toronto’s Faculty of Law, MiningWatch Canada and the Canadian Centre for International Justice have argued in their factums filed with the Supreme Court that the jurisdictional requirements proposed by Chevron are novel and unnecessary and “are tantamount to asking this court to raise additional barriers for those attempting to enforce judgments obtained against transnational corporations for environmental or human rights harms”.   

Chevron has argued that its legal battle with the Ecuadorians has nothing to do with Canada and its Canadian subsidiary.  However, the Canadian Human Rights interveners argue that the well-established legal principle of separation of identity between a parent company and its subsidiaries should be disregarded in this case, “The rigid application of common law principles regarding the strict separate of parent corporations from their wholly owned and controlled subsidiaries has been repeatedly cited as an unjustified and unjustifiable barrier to justice and remedy that is out-moded in our current globalized world”.   

I will keep you posted.

Regards,

Blair

 

 

Supreme Court Rules that Iranian Government Cannot be Sued in Canada for Zahra Kazemi's Torture and Death

The Supreme Court of Canada recently released a decision -Kazemi Estate v. Islamic Republic of Iran 2014 SCC62 - that concluded that foreign states and their functionaries cannot be sued in Canada for acts of torture committed abroad.  The Court held that the State Immunity Act (“SIA”) in its present form, does not provide for an exception to foreign state immunity from civil suits alleging acts of torture occurring outside Canada.    

 

As the Court commented, the facts of this case are horrific.  Zahra Kazemi, a Canadian citizen, visited Iran in 2003 as a freelance photographer and journalist.  In June of 2003, Ms. Kazemi attempted to take photographs of individuals protesting against the arrest and detention of their family members outside the Evin Prison in Tehran.  Ms. Kazemi was ordered arrested and detained by Saeed Mortazavi, Tehran’s Chief Public Prosecutor. 

 

During her time in custody, Ms. Kazemi was not permitted to contact counsel, the Canadian Embassy, or her family.  She was interrogated by Iranian authorities.  She was beaten.  She was sexually assaulted.  She was tortured. 

 

Sometime prior to July 6, 2003, Ms. Kazemi was taken from the prison and transferred to a hospital in Tehran.  She was unconscious upon her arrival.  She had suffered a brain injury and numerous other injuries including strip-like wounds on her back, the back of her legs, fractured bones, broken nails on her hands and toes and extensive trauma on and around her genital area. 

 

Ms. Kazemi died of the injuries that she had sustained.  

 

Ms. Kazemi’s son, Stephan (Salman) Hashemi, requested that his mother’s remains be sent to Canada for burial.  Despite such request, Ms. Kazemi was buried in Iran.

 

In late July, 2003, the Iranian government commissioned an investigation into Ms. Kazemi’s death.  Despite a report linking members of the judiciary and the Office of the Prosecutor to Ms. Kazemi’s torture and death, only one individual, Reza Ahmadi, was tried.  The trial was marked by a lack of transparency.  Mr. Ahmadi was acquitted. 

 

In commenting on these facts, the Supreme Court, in a decision written by Mr. Justice LeBel, concluded that it was impossible for Ms. Kazemi and her family to obtain justice in Iran.

 

In 2006, Mr. Hashemi instituted civil proceedings in Quebec seeking damages on behalf of himself and his mother’s estate against the Islamic Republic of Iran, its Head of State, the Chief Public Prosecutor of Tehran and the former Deputy Chief of Intelligence of the prison where Ms. Kazemi was detained and tortured.  Mr. Hashemi sought damages on behalf of his mother’s estate for her physical, psychological and emotional pain and suffering as well as on his own behalf for the psychological and emotional prejudice that he sustained as a result of the death of his mother.  Both Mr. Hashemi and the estate sought punitive damages.

 

The Iranian defendants brought a motion in Quebec Superior Court to dismiss the action on the basis of state immunity.  The plaintiffs raised exceptions provided in the SIA and challenged the constitutionality of certain provisions of that act.

 

The Quebec Superior Court dismissed the constitutional challenge to the SIA and dismissed the action with respect to the claim brought by Ms. Kazemi’s estate.  However, it allowed Mr. Hashemi’s action to proceed on the basis that it could potentially fall within a statutory exception to the state immunity applicable to proceedings related to personal injury that occurs in Canada.  The Quebec Court of Appeal allowed the Iranian defendants' appeal with respect to Ms. Hashemi’s claim.  The matter was further appealed to the Supreme Court of Canada. 

 

Justice LeBel held that an over-arching question which permeated all aspects of the appeal was whether international law had created a mandatory universal civil jurisdiction in respect of claims of torture, which would require Canada to open its courts to the claims of victims of acts of torture which were committed abroad.  In addition, the court was asked to determine whether torture could constitute an official act of a state and whether public officials having committed acts of torture can benefit from immunity.

 

The majority of the court (Madam Justice Abella dissented), held that neither Mr. Hashemi nor Ms. Kazemi’s estate could avail themselves of a Canadian court in order to sue Iran or its functionaries for the torture that Ms. Kazemi had endured.  Further, there are challenges based on the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights should be dismissed.

 

In coming to this conclusion, the Supreme Court held that state immunity is not solely a rule of international law, it also reflects domestic choices made for policy reasons, particularly in matters of international relations.  Canada’s commitment to the universal prohibition of torture is strong.  However, Parliament has made a choice to give priority to a foreign state’s immunity over civil redress for citizens who have been tortured abroad.  That policy choice is not a comment about the evils of torture but rather an indication of what principles Parliament has chosen to promote.

 

With respect to Mr. Hashemi’s claim for “personal or bodily injury”, the Court held that the exception to the SIA only applied where the tort causing the personal injury or death had occurred in Canada.  It does not apply where the impugned events or the tort causing the personal injury or death did not take place in Canada.

 

Further, the Court held that the SIA provides that a “foreign state” is immune from the jurisdiction of any court in Canada.  The definition of “foreign state” includes a reference to the term “government”.  Public officials must be included in the meaning of “government” as that term is used in the SIA.  States are abstract entities that can only act through individuals.  However, public officials will only benefit from state immunity when acting in their official capacity.  The heinous nature of the acts and torture did not transform the actions of the individual defendants into private acts undertaken outside of their official capacity.  By definition, torture is necessarily an official act of the state. 

 

The Court reasoned that Parliament has given no indication the Canadian courts are to deem torture an “unofficial act” and creating this kind of jurisdiction would potentially have considerable impact on Canada’s international relations.  This decision is to be made by Parliament and not the courts.

 

The Supreme Court held out one ray of hope in concluding that the fact that a foreign state and its functionaries cannot be sued in Canada for acts of torture committed abroad does not freeze state immunity in time.  It stated that Parliament has the power and the capacity to change the current state of the law on exceptions to state immunity, just as it has done in the past, and to allow those in situations like Mr. Hashemi and his mother’s estate to seek redress in Canadian courts.   

Time will tell as to whether Canada's Parliament will find the courage to take such action

Regards,

Blair  

 

Supreme Court Strikes Down Legislation Providing For Court Hearing Fees

The Supreme Court of Canada recently released its decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2014 SCC 59.  The majority of the Supreme Court struck down legislation in British Columbia which obliged parties to pay fees to use courtrooms for trials. 

 

The parties in the case were involved in a child custody dispute.  The plaintiff brought an action to have the custody issues resolved.  In order to get a trial date, she had to undertake in advance to pay a court hearing fee.  At the outset of the trial, the plaintiff asked the judge to relieve her from paying the hearing fee.  The judge reserved his decision on the request until the end of the trial.  The parties were not represented by lawyers and the hearing took 10 days.  The hearing fee amounted to $3,6000 – almost the net monthly income of the family.  After legal fees had depleted her savings, the plaintiff could not afford to pay the hearing fee.  In declaring the legislation unconstitutional the Supreme Court held that these hearing fees infringed upon the plaintiff's constitutional right of access to justice and offended the rule of law.

 

Writing for the majority of the court, Chief Justice Beverley McLachlin, stated, “As access to justice is fundamental to the rule of law and the rule of law is fostered by the continued existence of the section 96 Courts (Superior Courts of the Provinces) it is only natural that section 96 of the Constitution Act, 1867 provides some degree of constitutional protection for access to justice…when hearing fees deprive litigants of access to the Superior Courts, they infringe the basic right of citizens to bring their cases to court.  That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the Superior Court.”  

Justice McLachlin held that a fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it subjects litigants to undue hardship, thereby effectively preventing access to the courts.  She held that it is the role of the provincial legislatures to devise a constitutionally compliant hearing fee scheme.  As a general rule, hearing fees must be coupled with an exemption that allows judges to waive the fees for people who cannot, by reason of their financial situation, bring non‑frivolous or non‑vexatious litigation to court.  A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set at an amount such that anyone who is not impoverished can afford them.  Higher fees must be coupled with enough judicial discretion to waive hearing fees in any case where they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims.                      

Regards,

Blair