Ineffective assistance of Counsel in Criminal Proceedings

There are a number of hurdles to jump before successfully making a claim of ineffective assistance of counsel in Criminal Proceedings. The following recent quote from the highest court in Ontario highlights hurdles in the path of such a claim:

“To succeed on an ineffective assistance claim, the appellant must establish the material facts upon which he relies, that the assistance was ineffective and that the ineffective assistance resulted in a miscarriage of justice, either by virtue of an unreliable verdict or an unfair trial. Deference is owed to counsel’s performance at trial and there is a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance..” (R v. M.M. 2018 ONCA 1019, at para. 2).*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice a lawyer should be consulted on the specific circumstances of your case.

The Canadian Bankruptcy process: A Rollercoaster of Expectations For Some Bankrupts

The Canadian Bankruptcy Process can be a rollercoaster of expectations. A bankrupt may believe the he or she is free of creditors only to find that some debts may survive a bankruptcy discharge. Or a discharge may be granted on condition of payment of a monetary amount the Bankrupt hoped would not happen or at least not for the amount the court ordered. A bankruptcy may even in the appropriate circumstances be annulled. Bankrupts may believe they don’t have to worry about lawsuits which are stayed ,only for creditors ,under the right circumstances, moving successfully to obtain leave to proceed. Claims the Bankrupt may have thought are in the rear view mirror , are not, as the trustee allows them as claims provable in bankruptcy. Expectations for a “Fresh start” become frustrated as the start as not as “Fresh” and as quick as expected.

The Bankrupt’s expectations may take further rollercoaster rides. Bankrupts may not have disclosed certain assets, example, share certificates or accounts receivable, only to find that the Trustee’s report reflects the Bankrupt’s lack of financial disclosure. It seemed like a discrete asset that no one would find, until somebody did. The Bankrupt may believe that they don’t have to worry about Creditor A in the Bankruptcy process who was taken care of prior to bankruptcy only for the court to establish a fraudulent preference in the right circumstances. Bankrupts who expect to travel through the process armed with bad faith, dishonest and misappropriating behaviour soon recognize that the Bankruptcy process is built on integrity and such behaviour is not valued and expectations of a quick fresh start are defeated. Bankrupts might believe the income they make after bankruptcy is there only to find there is surplus income which should be shared. Transfers made by the bankrupt at undervalue are put under the bankruptcy microscope and those transfers are not as free and clear as may have expected.

Not all defeated expectations are a product of bad faith, fraudulent or other types of behaviour of the same flavour. Some bankrupt’s expectations are deflated for other reasons. The honest but unfortunate bankrupt will have an easier navigation path through the Bankruptcy process than the dishonest one. Temptations to go off or remain off the integrity path will lead to detours in the forest, with legal consequences the bankrupt may not expect.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise of the specific circumstances of your case.

The Debt Collection Highway

Sometimes, Debt Collection can be a straight route. Invoices are rendered for goods/services. There is no issue the goods/services were provided. The debtor does not contest the quality of the services/goods. Claim, summary judgment, and hopefully a debtor who will pay up once you have the judgment. A key question in any debt collection case upfront, is whether it is worthwhile to chase the debtor. Is it worth the time, money? Does the debtor have any income/assets? Will the debtor have any income assets in the foreseeable future? Apart from this key concern , the Debt Collection highway is not always linear leading straight to collection.

Sometimes the Debt Collection Highway has twists and turns. Lawyers must navigate these twists and turns to keep the prospects of actual debt recovery reasonable. Some of the matters that may arise along the highway requiring careful navigation include:

@ Do we have a debtor bent on not paying the debt with a talent for moving assets? Fraudulent Conveyances? Need for Mareva Injunction?

@ There may be many creditors vying for a piece of any pie left. Priority of Creditor issues?

@ Does the debtor have any interest in the subject assets/funds or are the funds really trust funds for someone else?

@ Is it the type of debt that will survive bankruptcy if the debtor decides to file for bankruptcy? What is the likely disposition on an application for discharge from bankruptcy? Conditional discharge? Absolute discharge? Is there anything in the bankrupt estate that it is worthwhile following up on and filing a proof of claim with the trustee? Not all bankrupts get absolutely discharged. Some debts survive bankruptcy and sometimes bankrupts are conditionally discharged requiring further payments for the benefits of creditors as a condition of discharge

@ Do we have enough information on the debtor? Examination in aid of execution? Private Investigator?

@ Do we have enough time to launch the claim against the debtor? Limitation Period?

@ Is this really a debt owed by the debtor or by a corporation? Can the corporate veil be pierced?

@ Is there potential Oppression remedy claims under the Ontario Business Corporations Act?

Some of the above issues may never arise on a debt collection matter. In other matters, the debt collection case may have some of these issues and others. The above list is not exhaustive.

Although some debt collection highways are straight with little obstacles to navigate, many others require proper expertise to keep the prospects for actually collecting on the debt alive. A steer down the wrong detour can waste time and money and give the debtor the momentum he or she or it needs to gain distance on the Creditor’s realistic prospects of collection.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice a lawyer should be consulted to advise on the specific circumstances of your case.

Break and Enter in Canada

Like many Criminal Offences, there are a host of different factors that come into play when sentencing the Break and Enter Defendant. A spectrum of cases exist from the less serious to the Defendants who face serious penitentiary time. A justice must balance a number of factors to arrive at a fair sentencing disposition. Some of the large number of factors that have been considered (the list below is not exhaustive) are:

@ First time Offender or Break and Enter pro with numerous prior convictions for Break and Enter?

@ Youthful offender?

@ Gladue considerations?

@ Home invasion with occupants present or break and enter with no one home?

@ Weapons used?

@ Breach of court orders while committing Break and Enter Offence?

@ Violence, serious injury?

@ Plea of guilt? Showing of remorse? Co-operation with Police?

@ Positive Pre-Sentence Report?

@ Out of Character behaviour?

@ Supportive Families? Full time employment, children relying on Defendant for financial support? Good Rehabilitation potential?

@ Drug addiction?

As can be seen, the above non-exhaustive sample of factors shows just a few of the matters that may come across a Criminal Sentencing Justice’s desk. The Justice must apply skill and creativity to craft the proper disposition, protecting the public, achieving deterrence but then also being sensitive to the unique factors in each individual case. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Practicing Law with Professionalism, Integrity, Humility

Some of us have to know the intricacies of sentencing law. Others must ensure construction liens are registered on time. Some have to be up to date on the law of rescission. Others may have a strong working knowledge of trust law concepts. Others are quite prepared to deal with Charter issues, hearsay arguments, bad character evidence issues, similar fact evidence or Mareva injunctions. Yet others must ensure all ducks are in a row as a large Corporate deal works its way towards closing. Title insurance is something some of us won’t be able to ignore. Ensuring a distress is properly taken in commercial lease matters may be somebody’s concern tomorrow. Others may feel the weight of prosecuting a criminal organization/ gang matter. Some may have to move rather quickly to try to get bail for another. Others may try to avoid someone getting bail. Appeal processes may occupy some minds, others will be dealing with issues before the Ontario Human Rights Tribunal.

As Lawyers we are collectively called upon to serve so many causes, deal with a number of injustices and try to balance the scales to arrive at a fair result. Much study and effort has gone into knowing all these different areas and keeping current on the fine points that may come across one’s desk, whether substantive law, procedural law, ethical issues or any other host of issues that may arise.

But ultimately, the study of law is about maintaining professionalism and integrity in the face of a number of various challenges. And also important is maintaining humility and a sincere concern for the people caught up in the legal process, our clients.

So regardless of the court, the situation, the challenge, applying the professionalism, integrity and humility guides will provide reliable navigation through many types of legal forests. While the forests may change from week to week, month to month, year to year, our guides will always be there to help with navigation.*

William Poulos, Barrister
* This legal blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

The Strands of Criminal and Civil Cases

Many cases have different legal strands weaving through them. Recognizing those strands and marshalling the facts and law around them is important to the structure/integrity of a given case.

A Criminal lawyer may have many strands to worry about. There could be forensic evidence strands, hearsay issues, disclosure matters, bad character issues, similar fact evidence strands, identification issues, immigration threads Charter issues, party liability matters and so on.

A Civil lawyer also will have to be concerned in cases about multi-strands. There could be pleadings issues, discovery issues, constructive trust/fiduciary principles, and there is always the concern with limitation periods.

Regardless of whether the case is Criminal or Civil, there is one common strand: issue identification. Each strand of the case must be understood and preparation will involve an understanding of all strands to best preserve the structure of a case for trial or to even set up a favourable settlement outcome. Miss an important strand, and the structure of the case weakens. Civil and especially Criminal Law requires sound understanding of evidentiary law and the many strands that fall within this area. The latter area also in Canada requires a sound understanding of Canadian Charter of Rights and Freedoms law. So dealing with a case and marshalling the law on 2 strands is not enough if a material third or fourth strand is not dealt with. Your legal case /building may be propped up in litigation for a while on the 2 strands you are focused on, but at some point the building can come crushing down with it’s weakened structure.

William Poulos, Barrister
*This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Running the Litigation Path

A plaintiff commences an action for relief. The hope is the plaintiff’s action will make it to the finish line whether on settlement or at trial with the relief requested or at least a substantial part of it. Along the way there may be hurdles in the race: hurdles which can put an end to the race. Our Civil Litigation system has a number of hurdles that are purposely set up to block those seeking to use the racetrack when they don’t belong on it. A plainly obvious claim that has no merit can meet its first hurdle early under Ontario Rules of Civil Procedure, Rule 2.1, and ultimately the Justice could put an end to the claim early in the race under that rule. But even if this first hurdle does not apply or is successfully jumped, others potentially will appear before that desired litigation finish line. Motions to strike pleadings under Rule 21, Motions to dismiss actions that are not reasonable, and an often used potential hurdle, the motion for summary judgment. All these hurdles ensure that the racetrack is used for legitimate runs not those who wish to use the tract for collateral improper purposes and for cases that simply don’t belong on the track.

Proper pleadings at the outset go a long way to helping in the run to the desired outcome. This requires knowledge of the different potential types of claims, remedies and the material facts to support them. Without this, it is like a runner going down the track with shoe laces undone: inevitable trip.

The litigation path to be followed to the desired finish line requires that the race include hurdles. Without proper hurdles in the system anyone with the wrong motives can use the track. Track time is limited as are the resources that support it to ensure fair , timely races for those that belong on the track. So even if a runner has a proper pleading and clears initial hurdles, there are potentially more to come down the race path, ex motion for summary judgment.

Gather and reflect on the material facts in your case. Reflect on the possible legal claims. Prepare for the run and always as you are going down the path be open to new information that comes in and be flexible to adjust to this new information. It will help to deal with each hurdle as it may arise. *

William Poulos, Barrister
*This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Substance in harmony with Form: Court Matters

The substance over form principle appears in many areas of law. The Court is concerned with the essence of the matter before it regardless of the label that may be used by one of more parties. There may be advantages to one party by labeling the relationship as X as opposed to Y or to labeling the issue as A instead of B. If we can define the issue, sometimes that might work to a party’s favour depending on how the issue is worded. But here again , substance prevails, as the Courts taking into account all relevant factors will be very interested in getting to the heart of the matter. The “labeled” issue by one party must coincide with what really is in dispute not what a party knows he or she can successfully advocate. Collateral issues add to the time and expense of a lawsuit and parties are left to drift in the legal forest without any real compass. Bearing in mind what really is in dispute and how you are going to prove it, will go a long way to navigating legal terrain.

Part of your navigation through legal terrain may involve all sorts of legal documents. In litigation, there are notices, court forms, actions, applications ,factums and a myriad of other court documents/forms to deal with different aspects of litigation. The best navigation tool here will be to have your substance and form work in harmony. Form is important as it conveys your credibility, your professionalism and your knowledge/skill. So law is not just about Substance trumping form. To get to your litigation destination, the best path will be not just to hope the substance over form principle will carry the day but rather substance working in harmony with form from the outset until you reach your destination.

Although , substance often trumps form when it has to facilitate justice, the two applied in harmony will help you better navigate the legal forest. It is true the forms and court documents don’t mean much if they don’t contain the substance but attention to both the form and the substance and ensuring they are working together to best present your case in the best possible light is a useful guiding light from the very beginning of a lawsuit to its end whether by court order or settlement.

William Poulos, Barrister
* This blog is not intended to be legal advice. Should you require legal advice, a lawyer should be consulted to advise of the specific circumstances of your case.

The Law of Negligence: Value-ridden law

Duty of care, standards of care, proximity, reasonable foreseeability, risk of harm. Words we see in the law of negligence. This area of law has its foundations in important values: fairness, justice but also accountability ,but not to the point of indeterminate liability. Accountability for many: Lawyers, Engineers, Architects, Police Officers, drivers of vehicles and the list goes on and on. We value accountability/responsibility in our society. We are human , we make mistakes. But when we make mistakes that are reasonably foreseeable we value holding the defendant to reasonable standards of accountability. Our society depends heavily on the responsibility/accountability of others.

At the same time, we balance our value of accountability with other values such as fairness. If there is no causation of harm, there should be no liability. If a defendant has not been perfect but has acted reasonably we know that people are not perfect and we value not holding people to this perfect standard. We all make mistakes.

Our values of accountability extend to all types of harm. Physical harm, Property damage, Psychological injury, Pure economic loss. And we place a value in sharing the blame/loss : multiple tort defendants and joint and several liability and contributory negligence.

The categories of Negligence are not closed. Our law has left open the doors to the development of new torts. And we have a framework in the Anns test for assessing whether in law we should recognize new duties of care. They say the Charter of Rights and Freedoms is like a living tree which develops in time and Negligence law also has living roots. No doubt policy considerations come into play at the appropriate stage in the Anns test but as our laws change and develop one thing will always be our guiding force: Our values.*

William Poulos, Barrister
*This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

The General Warrant in Canadian Criminal Law

The Oxford Minireference Thesaurus describes the word General as “usual, customary, common, ordinary, normal, standard, regular, everyday, typical, conventional, habitual, run-of-the-mill..”

However a General Warrant is not intended to be common or usual. It’s role for searching is prescribed by set criteria in the Canadian Criminal Code and it is to be applied sparingly, a warrant of limited resort. When it’s reach is extended beyond what is proper, Charter rights suffer and the administration of justice is brought into disrepute. No doubt it is a useful device in specific situations but is not there for “general use” or to avoid meeting more stringent conditions for searches in other areas of the Criminal Code.

The courts have applied a substance over form analysis in determining whether a general warrant is proper. For example the propriety of using a general warrant to intercept future texts , “electronic conversations” as opposed to meeting the more stringent requirements of Part VI of our Canadian Criminal Code dealing with interception of private communications. It is not surprising the courts will apply a substance over form analysis in this area. Our laws have applied the same analysis in many other areas , ex. Is it a lease or a license? Is it a bailment? Labels are not determinative. What is behind the labels in essence is the key for understanding what is really going on. Even more so when Charter rights are at stake.

Perhaps it is time to change the adjective label for General Warrant to “Limited Resort Warrant” or something to that effect. If we are going to use the substance over form analysis in this area perhaps we should change the name of the warrant to coincide closer to what in substance this warrant is and it’s true role.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.