In Court

Jury can’t decide on Kobylanski

A Halifax Supreme Court jury could not reach a decision on most of Michael Kobylanski’s charges on Thursday. The jury found him guilty of assault and not guilty of choking, but could not decide on his charges of sexual assault, sexual assault with a weapon, uttering threats, and confinement. A new trial will be scheduled, and he will be sentenced for the assault charge in April.

Kobylanski has a violent criminal record that wasn’t presented to the jury, as it would have been highly prejudicial. It’s not clear how the public attention garnered by his criminal record will affect the selection of a new jury.

Last week the jury asked several questions of the judge and listened again to numerous excerpts from testimony. It was communicated to Justice Cacchione that the jury was having difficulty reaching a decision. In such a case, a trial judge may exhort the jury, as Justice Cacchione did. A trial judge can’t tell the jury they must reach a verdict or which verdict to reach, but the judge can encourage them to listen to each others’ differing views “in order to avoid disagreement based on fixed, inflexible perceptions of the evidence that one or other of them may have developed” (R v Sims). Oh, to be a fly on the wall in that jury room.

Closing arguments in Howe hearing stretch on

Lawyer Lyle Howe’s professional discipline hearing continued this week with closing arguments beginning Tuesday. The unprecedented hearing has taken nearly 60 days since it began in December 2015, and is the longest disciplinary proceeding in Nova Scotia’s history.

The panel has heard from 40 witnesses. Howe’s defence has called attention to allegations of racial discrimination within Nova Scotia’s legal system. Readers who have yet to binge-read into Stephen Kimber’s “Who is Lyle Howe?” series should get right on that. Closing arguments will continue for two more days, starting Monday.

Bridgewater boys guilty of sharing intimate images

The six Bridgewater boys behind a Dropbox account full of nude photos of their female classmates pleaded guilty today to distribution of intimate images without consent. Five pleaded guilty in person. A sixth was absent, but his lawyer told CBC’s Angela McIvor that he intends to plead guilty and that the judge accepted that as a guilty plea. The boys had also faced charges of possession and distribution of child pornography, which were dropped.

The case has highlighted the new offence of non-consensual distribution of intimate images, which was created to better address the gaps in the Criminal Code that arose when dealing with cyberbullying and cybercrime.

In the News

Rehtaeh Parsons case recommendations mostly being followed, says DOJ

And speaking of non-consensual distribution of intimate images, the Department of Justice said Wednesday that 14 out of 17 recommendations arising from the investigation into the Rehtaeh Parsons case have been implemented, and that the remaining three are in progress.

Parsons died in April 2013 after attempting suicide following bullying and the alleged spreading of intimate images of her around her school. The 2015 investigation found that charges of distribution of child pornography could have been laid following Parsons’ original complaint to police, and media attention surrounding Parsons’ death led to the creation of the offence of non-consensual distribution of intimate images.

Police’s first “Voluntary Surrender event” will take place April 29

Halifax Regional Police are offering individuals with outstanding warrants the opportunity to present themselves to police during a “Voluntary Surrender event” on April 29 at the Dartmouth North Community Centre between 8:30am and 4:30pm.

Why would anyone do this? Having an outstanding warrant means you must be brought before a court to answer to a charge, but it rarely involves a large-scale manhunt or sepia-toned “wanted” posters. Rather, if you ever got pulled over, or if police decide to attend your home or workplace, that would be it — you’d be “picked up” and brought to court to address your outstanding charges. This can be inconvenient and embarrassing at best, or seriously disruptive to your life at worst, even if you are later released on your own recognizance. If you have to get arrested, the opportunity to choose when and where is attractive. Of course, you can probably do that at any time by attending a police station.

This is the first time a Canadian police force has attempted a voluntary surrender event. I have to say the use of the word “event” is an interesting choice; presumably they are expecting a crowd. I will be interested to learn how many people attend.

Decisions

Disability rights case passes procedural hurdle

Three people living in mental institutions for years began a human rights complaint in 2015 against the province, alleging discrimination by failing to provide them with community-based housing. Their lawyers argue the three are effectively not allowed any choice or agency in their living situations.

UPDATE, March 24: A member of the legal team for the Disability Rights Coalition contacted me to explain that “agency and choice” is in fact how the Province has characterized the complaint. To be more precise, the individuals and the DRC allege that the Department failed to provide them with the necessary accommodations and support to live in the community. They aren’t arguing that they’ve been denied their top choice or first pick, but rather the ability to live in the community at all. The DRC is a party to this dispute in addition to the three individual complainants, and supports their complaints of discrimination by the Province due to the combined effect of their mental disabilities and their reliance on social assistance, while also making a claim of systemic discrimination by the Province against all persons with disabilities in Nova Scotia since 1986 on the same grounds.

This week, the Court of Appeal ruled on a procedural issue in the case. One of the respondents in the case, the Attorney General of Nova Scotia, argued that the chair of the Board of Inquiry ought to recuse himself, as he had written two letters to the Minister of Community Services in 2000. These letters, they argued, showed the chair was biased in favour of the three people at the center of the case.

Full disclosure: in the summer of 2016 when these letters were found, I was working at Dalhousie Legal Aid Service, counsel for the Disability Rights Coalition, a party in this case. I was not involved at all in this case. I wish I had been, as the late Prof. Dianne Pothier was part of the legal team. Justice Saunders paid her tribute in his decision: “Her customary wise counsel, meticulous preparation and ability to identify and explain the truly important features and consequences of any given case will be missed.”

The Court dismissed the appeal, finding that the Attorney General had not provided sufficient evidence of the Board chair’s bias. Justice Saunders included the letters and their replies from Minister Peter Christie as appendices to the decision. The Board of Inquiry will now proceed with hearing the 2015 human rights complaint.

Luxury homeowners must repay difference in prize money

A Waverley homeowner has been ordered to repay her former business partner the difference between the $1,075,000 she was paid by Bryony House to purchase her home as a lottery prize and the $621,500 she paid to the winners to buy the home back.

Blair Rhodes summarized the background of the case including the Dare to Dream lottery. As a director of the company they owned jointly, Kris Martin owed a fiduciary duty to the company. Justice Richard Coughlan found she had failed to avoid conflict and self-interest in the sale and repurchase of her home, and found her husband liable for his involvement in the sale and repurchase.