The Lawyers Weekly - June 3, 2011

simply give up on the process and ignore a subpoena).

Neither side of this debate is wrong. Relieving the complainant of responsibility for what happens in a domestic violence prosecution makes sense for a variety of reasons (not least of which is that a criminal case is a matter between the accused and the state, not the accused and the alleged victim; it’s also the only effective way to deal with the pressure, ranging from pestering to terrorism, which the accused will often visit on the complainant, to “do something” about the situation that “you’ve got us into”).

On the other hand, it is unfair and demeaning to the complainant’s dignity to deprive her completely of the same opportunity that is de facto available to victims in most other criminal cases: to give meaningful input and even direction about whether and how a case will proceed. (For instance, it’s hard to imagine a situation where a man who is punched by his buddy in the course of a drinking bout would be forced by either police or Crown counsel to be part of a criminal prosecution, if he didn’t want charges laid.)

The solution is to recognize that every case is different and that they are seldom as clear-cut as the initial Crown synopsis may suggest. “Zero tolerance” is fine, but “one-size-fits-all” is not.

It’s therefore vital that real dis-
cretion, on all aspects of a pros-
ecution, be vested in the actual
prosecutor whose boots are on
the ground in the bail or trial
court—a figure who seems
increasingly to feel that his or her
“hands are tied,” in terms of
responding decisively to the end-
less variations and particulars
that emerge as a case proceeds
(both by policy and by the trend
toward designating domestic-vio-
lence specialists within the Crown
attorney’s office, neither of which,
as I understand it, were ever
intended to replace the discretion
of front-line prosecutors).

Maybe the guy is violent because of a long-standing drinking problem that the couple was starting to work on together; maybe it stems from having been a victim himself at one time; maybe they’ve been married for 40 years and have divided the household responsibilities, such that a complete bar on communication makes their lives unlivable.

In some cases, the risk of escalating violence may be so great that they just have to lump it; but that will not be so in all cases, and what will never work is presuming that the accused fills no other role than “villain” in the complainant’s life, and proceeding accordingly. Ontario Crown policies on domestic matters consistently make clear that their intent is not to rob prosecuting lawyers of their individual discretion, the best tool we have to build a system that sensibly serves the huge variety of situations it must tackle.

But there seems to be an ever-growing trepidation about acting on that principle, as though Crown counsel feel the exercise of their discretion will not be supported from above, should an unexpected disaster occur. Maybe it’s time for an emphatic word from the top, confirming that prosecutors in these cases need not avoid using their heads, for fear of losing them.n

Continued From Page 13

ters. The bad old days of police encouraging a violent husband to cool off at a pal’s place and come home in the morning, or prosecutors throwing in the towel at the first appearance because a frightened spouse had been badgered into withdrawing her complaint, are over.

Now, a prosecution will often proceed even if the complainant does not wish it (or is actively hostile to it); strict bail orders (usually involving prohibitions on contact and co-residency) are often insisted on, even if the complainant does not want them.

But from the perspective of some complainants, this approach is not caution; it’s mechanical over-responsiveness. And, as they see it, it’s paternalistic, because at its root is the assumption that the Crown attorney is better able to decide what’s good for them than they are themselves. Unfortunately, I have heard more than one complainant observe that, if she knew how little control she would have over the chain of events that would follow from a call to police to defuse a heated argument, she would never have called in the first place.

I hope comments like that are made merely out of frustration with the process and are not in earnest, but it would be an ugly irony if the policies put in place to protect women from violence in the home had the effect of leaving some women unwilling to seek help at all.

The broader irony is that, in trying to help empower women who find themselves stuck in abusive and controlling relationships, these policies can leave some feeling more powerless than ever (or even land them in jail, should they

Neil McCartney is a partner in the firm of Atwood Labine Arnone McCartney LLP, of Thunder Bay, Ontario. He practises criminal and other regulatory litigation.

Lawddities

An oddity in Criminal Law

Lawddities Bank robber gave teller ID, police say

Police arrested a man who they say gave bank tellers his ID to open an account— and then changed his mind and demanded cash.

Daniel Rahynes of Harrisburg, Pennsylvania visited a Metro Bank and began filling out an application to open an account after giving tellers two pieces of ID. He then allegedly announced that he was really there to rob the bank and drove away with a small amount of money, according to The Patriot-News.

Police eventually caught up with him and charged him with robbery. They had no trouble identifying him. — Natalie Fraser

Legal Oddities in (Blank) Law

NATHAN SMITH / ISTOCKPHOTO.COM

www.lawyersweekly.ca June25,2010| 15 THELAWYERSWEEKLY

DONALEE MOULTON

Sex is not only for the young. For older individuals living in nursing homes and other long-term-care facilities, the expression of intimacy raises important, and often unique, issues. It must be appropriate, respectful — and legal.

“Things are becoming a lot more complex. Services are being provided to more people with cognitive impairment and increasing physical needs. We need to be careful about the assumptions we make,” said Charmaine Spencer, a lawyer and research associate with the Gerontology Research Centre at Simon Fraser University in Vancouver.

Many of those assumptions are related to competency. “Fundamentally, for someone to engage in intimate sexual relations, there must be consent,” said Judith Wahl, a lawyer and executive director of the Advocacy Centre for the Elderly in Toronto.

“If a person has some degree of demen-
tia,” she noted, “it does not mean they are not
competent or not competent all the time.”
Consent is compounded by questions of
competency and accepted patterns of behav-
iour. For example, noted Spencer, who is also
an adjunct professor in the Department of
Gerontology at Simon Fraser, take the situa-
tion of a resident who is cognitively impaired
and having sex with her spouse, who lives in
the community. “There is a question about
the ability to consent.”
“There are consent issues— and cul-
tural expectations,” she noted, stressing
that, “Children cannot consent. It will still
be an assault.”
Not that long ago, the issue of intimacy
among long-term-care residents was not
an issue at all. “We’re very good at meeting
the physical needs, spiritual and recrea-
tional [needs]. Traditionally, we haven’t
been good at responding to [resident’s]
sexual needs,” said John O’Keefe, a senior
social worker at Northwoodcare Inc. in
Halifax, which provides a range of living
accommodations for seniors and others.
“At one time,” he added, “we tried to
keep people apart. Now we have evolved to
the point where we try to support consent-
ing adults.”
One indication of that support is the
development of guidelines around the
expression of intimacy. Such guidelines,
said Wahl, are important. “Long-term-
care homes are people’s homes. It should
be a normalized environment.

“The acuity of needs of people is increasing. A lot more people are not capable,” she added. “Staff needs to address this in an appropriate way.” In the absence of guidelines, there is often no uniform direction for staff and only personal reactions, noted Spencer. “There really is a strong need for guidelines. Otherwise people are trying to address these on an ad hoc basis and personal values really kick in.” O’Keefe developed such guidelines for Northwood a decade ago. They include guidance on distinguishing between appropriate and inappropriate sexual and intimate behaviour; on dealing with residents who are cognitively aware— and those who are not; and on inappropriate intimate behaviour directed toward staff themselves. Duty of care is acritical legal issue, said Wahl, past chair of the CBA National Elder Law Section. “The home has aresponsibility. These are people’s homes. These are adults.

There has been a proliferation of tax shelters involving charitable donations in recent years. Although the details have always varied among shelters and have changed over time as the courts and Parliament have decidedagainstvariousshelter structures, one common feature in the shelter has been taxpayers who somehow obtain a charitable donation tax credit worth more than the hard cash paid by the donor in relation to whatever was donated to the charity as partoftheshelter.Theshelter structures also typically required the charity to pay significant “fundraising fees” to the promoters of the tax shelter.

In Innovative Gifting Inc. v. House of the Good Shepherd, [2010] O.J. No. 2210, Justice Roberts of the Ontario Superior Court of Justice decided that promoters of one particular charitable donation tax shelter should not only be prevented from collecting their outstanding fundraising fees, but should also be required to return any fees already paid. Innovative Gifting Inc. (IGI) had approached a number of small Canadian charities with an offer of gifts of shares and cash. IGI claimed that the shares had been owned by a S wiss philanthropist who wanted to give the shares to individuals in Canada who were willing to donate these shares and some cash to Canadian charities and receive a charitable donation receipt equal to the sum of the cash and the then trading value of the shares. The recipient charity would then be required to pay a fundraising fee equal to as much as 18 per cent of the total donated amount (or 90 per cent of the cash donated amount if no shares were received). IGI did raise in excess of $1 million in cash, which it provided to the charities along with shares in a public company with a significant apparent value. The charities then paid their fundraising fees of over $1.1 million. The various charities involved eventually became suspicious of IGI and stopped receiving Tax shelter promoter faces civil liability

See IGI Page 16 ROBERT HAYHOE

Intimate relations
in nursing homes
Facilities must find balance between protection and independence

DREAMSTME.COM

See Intimacy Page 17 FOCUS

Wills, Estates, Charities & Trusts

www.lawyersweekly.ca

THE LAWYERS WEEKLY FOCUS Civil Litigation

May 28, 2010 | 9

Among the many skills required of courtroom lawyers is the ability to perform without a script. Court procedures can be unpredictable, and when unanticipated events occur, counsel must roll with the punches.

In Palkowski v. Ivancic, [2009] O.J. No. 4103, counsel appearing on a routine pleadings matter were ushered out of the courtroom by court staff to meet with the motion judge in a small anteroom adjacent to the courtroom. There were no staff in attendance and, of course, no members of the public were present. When both counsel were seated awkwardly on the opposite side of a small desk, the judge began to deal with the matter. What does a lawyer do when summoned away from a courtroom for a private hearing?

Much of the court’s business is
conducted by judges in their
chambers and in retiring rooms
and anterooms, but the open
court principle is a fundamental
canon of our legal system. Both
counsel were faced with the pros-
pect of objecting to the closed-
door hearing.

The case arose out of the Pal-
kowskis’ claim of a beneficial
title to a home they had owned
until 1996, when they sold it to
Ivancic. They continued to live in
the home after the sale. Ten
years later — after the property
had nearly tripled in value — they
demanded the return of their
property. They claimed they were
the true owners, despite the sale.
Not surprisingly, Ivancic refused
and the Palkowskis’ claim soon
followed.

Ivancic moved to strike the claim. Justice Alexandra Hoy, who heard the motion, struck the claim without leave to amend, but before the order was finalized, the Palkowskis sought leave to make additional claims — for the first time — for upgrades they had made to the property after 1996.

Justice Hoy granted the Palkowskis leave to amend their claim to include compensation for the alleged upgrades to the property. The Palkowskis’ appeal to the Court of Appeal (regarding the matters that had been struck) was dismissed.

The Palkowskis then served a proposed amended statement of claim in which they claimed— for the first time — remedies under the Conveyancing and Law of Property Act. Ivancic took the position that the proposed amended statement of claim offended Justice Hoy’s previous orders. A

The dangers of hearing
matters in chambers
Can ‘public
hearings’ be
held in private?

EVGENY BURGASOV / DREAMSTME.COM

See Private Page 10 WILL O’HARA

& ANNA HUSA

Notacausationcaseinthe countrygetsadjudicatedwith-out reference to Resurfice Corp. v. Hanke, [2007] 1 S.C.J. No. 7. In that seminal decision, the Supreme Court of Canada attempted to clarify when the “material contribution” te st for causation displaces the “but for” test. In order to apply the “material contribution” test, the court found that two requirements must be met. First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test, and the impossibility must be due to factors that are outside the plaintiff’s control. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. After the release of Resurfice , observers complained that the court’s “clarification” of the tests for causation gave rise to more questions than answers. Many wondered what the thresholds set out in the decision actually mean. However, there is at least one clear principle emanating from the decision. The “material contribution” test cannot be used unless it is impossible to prove causation on the “but for” test. And yet, since Resurfice was released, plaintiffs’ counsel have been arguing, and trial judges have been finding, that causation has been proven on the basis of the “but for” test, and in the alternative, finding that causation is not possible to prove on the “but for” test such that the “material contribution” test may apply. While I am generally a proponent of “in the alternative” arguments, this one stretches the limits of such arguments beyond all recognizable borders. How canonearguethatcausationis established on the “but for” test and, alternatively, that causation Causation: Pick your theory please!