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Strong first appearances
Does silence on language rights warrant a new trial? Plus damages for intimate image disclosure and the lawyer facing a hefty costs award.
Dylan Gibbs, Alexandra Son & Ethan Russell
May 07, 2024
Good morning.
The judge hearing Donald Trump’s hush money trial said he really means it this time.
Judge Merchan fined Trump for disparaging jurors in a TV interview—Trump’s second fine and tenth contempt citation since the trial started two weeks ago. If Trump keeps at it, Judge Merchan said he’ll put him in jail.
— Dylan Gibbs, with Alexandra Son and Ethan Russell
TODAY'S DOCKET | 6-min read |
Forgetting about language rights
Foreign interference transparency
Damages for intimate image disclosure
And the lawyer bearing the costs of a mistrial
LANGUAGE RIGHTS
No language info? New trial
The Criminal Code lets people choose the official language for their trial. And it says courts need to explain that right to the accused at their first appearance. But what happens if they don’t?
The BC Supreme Court convicted Franck Tayo Tompouba after an English trial and never told him he could proceed in French. Tayo Tompouba appealed, asking for a new trial.
The Court of Appeal put the onus on Tayo Tompouba—since he didn’t show that the language error prejudiced his trial, he was out of luck.
The SCC ordered a retrial. Chief Justice Wagner wrote that courts make an error of law when they don’t mention the right to pick between French and English. Even though the error happens before trial—at the accused’s first appearance—there’s still a presumption the error prejudiced the accused.
The burden is on the Crown to disprove prejudice—not the other way around. And that was enough to set aside Tayo Tompouba’s conviction.
Room for disagreement: Justices Karakatsanis and Martin dissented, writing that an accused who raises a language issue for the first time on appeal should be forced to prove a miscarriage of justice. Otherwise, they could game the system.
Big picture: A Quebec judge is concerned about the same language rights for different reasons. A law taking effect June 1 requires Quebec courts to translate English judgments into French before releasing them. Concerned that the rule delays timely justice for English-language litigants, Judge Dennis Galiatsatos raised a constitutional challenge on his own motion. And he took exception to Quebec challenging that approach:
To be abundantly clear, the amendment impacts how and when a judgment may be rendered... It goes to one of the judge’s core functions, exercised almost weekly. This is far from a purely intellectual exercise being raised out of caprice or boredom. With great respect, it is surprising that the Quebec Attorney-General’s Office objects to the judge raising the issue. It is akin to opening a shoe store and then recoiling at the fact that a customer would dare discuss how shoelaces are tied.
HEARSAY ROUNDUP
Canadiana
📇 On the heels of the foreign interference inquiry’s interim report, the federal government debuted a foreign influence transparency registry.
🌳 The Competition Bureau is investigating Lululemon for greenwashing.
📸 BC’s Civil Resolution Tribunal published its first decision under the province’s Intimate Images Protection Act. The tribunal awarded $5,000 in damages after a man shared two intimate images without consent. The decision covers several points of uncertainty under the new legislation, including the concept of “nearly nude” images:
The [Act] does not define [“nearly nude”], and it is somewhat ambiguous.
I find that there are two components that inform whether a person is “nearly nude” in an image. First, to state the obvious, the term “nearly nude” requires that the person not be wearing very much clothing. However, I find that the term “nearly nude” is not characterized by the amount of clothing alone. The context for the image’s creation is crucial. To take the example above, surreptitious footage from a changeroom of a woman trying on a bikini would likely be an intimate image, whereas a photo of a public beach that includes a distant shot of the same woman in the same bikini likely would not be.
💉 New Brunswick is delaying the controversial legislation that would let authorities force people into drug addiction treatment.
↩️ After a lukewarm reception for the first draft, Alberta promised to amend its proposed legislation expanding the province’s power over municipal governments. The current draft lets the province remove elected city councillors if it’s in the “public interest”. Premier Smith said the amendments will spell out criteria to limit that broad discretion.
🛩️ The Manitoba Court of Appeal dismissed Peter Nygard’s extradition appeal. He’ll face sex trafficking charges in New York (as soon as he wraps up all of his outstanding sexual assault matters here in Canada).
🏠 The Supreme Court is releasing an expropriation decision on Friday.
Beyond the border
📱 Is Snapchat a human right? A man in Norway thinks so. A court banned him from the app for two years after he used it to groom children. He’s now challenging the ban, arguing that his right to free expression includes the right to use social media.
THINGS NOT TO DO
Don’t use your spouse’s consulting firm to hire expert witnesses. Justice Edwards of Ontario’s Superior Court of Justice ordered a mistrial late last year after a lawyer’s conflict of interest came to light mid-trial. Now he has ordered the lawyer to shoulder the costs of that mistrial:
I fully understand that my decision may have an impact on Ms. Masgras’ reputation. Her reputation and the reputation of any lawyer is something that must be assiduously guarded by the lawyer. Once a reputation is lost it is difficult to regain. Ms. Masgras must reflect on what she did that caused the mistrial as well as this court’s order in awarding costs against her. It will be up to Ms. Masgras to regain the confidence of the court.
Researching case law that doesn’t exist (5.0)
— litigation_god (@GodLitigation)
May 3, 2024
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