Blogosaurus Lex

The case of Robinson v. Morrell Estate might be every divorced person’s worst nightmare.  Here is what happened.  Ingrid Ostrum and Ezra Morrell divorced in 2007 after a six year marriage.  They signed a separation agreement in which they both agreed to renounce and waive any claim that they had on each other’s estates. When they divorced, the agreement became part of the divorce settlement. However, in 2008 Ezra Morrell died in an automobile accident at the age of 31 without making a new will.  His existing will left the residue of his estate to his former wife.  You can see where this is going!

Ingrid Ostram decided that she would claim the residue under Ezra’s will.  Ezra’s mother, Anne Robinson  challenged her right to do so.  In a chambers application, the judge ruled that the separation agreement did not revoke the will and that Ingrid was entitled to inherit the residue of the estate.  Ms Robinson appealed that decision to the Nova Scotia Court of Appeal.  The issue before Mr. Justice Oland was whether Ms Ostram was bound by contract law to renounce a gift under her former husband’s will.

The Court of Appeal took an exhaustive look at case law, including some English cases from the 1800s and some American cases.  The Court first stated that “until the death of the testator, a person has nothing more than an expectancy and one cannot disclaim or renounce an interest in something to which he or she has no legal interest.”  The Court said that when there is only an expectation, there is nothing on which a renunciation can “bite”.

Once Mr. Morrell died, Ingrid Ostram had a choice.  The Court noted she chose not to renounce or refuse to take the residue of the estate.  Anne Robinson argued that Ms Ostram shouldn’t get to choose: she was contractually obligated under the separation agreement to renounce any claim to her former husband’s estate.  She further claimed that the agreement was a valid contract because it was supported by valuable consideration.    However, the Court ruled “…the appellant has failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death.”

Justice Oland identified a further problem with Ms Robinson’s challenge.  He noted that she was relying on contract law to make her case that Ms Ostram could not step away from her renunciation under the separation agreement. However, the Judge stated that “The parties to the contract were Ezra Morrell, and Ingrid Ostram, and its clause 2 states that its terms are binding on their heirs, administrators, executors, successors and assigns. The appellant was not a party to the separation agreement, nor is she one of the persons named under clause 2.  Even if it had been determined that Ingrid Ostram was contractually bound to refuse the testamentary gift, there does not appear to be any privity of contract between the appellant and Ingrid Ostram which would allow the appellant to enforce clause 20 of the separation agreement.”

The Judge dismissed Ms Robinson’s claim and also ordered that she pay costs of $2000 to the estate.

What is the moral of this story?  It is one of the oddities of Canadian law that existing wills are, with certain exceptions, invalidated by marriage, but not by divorce. Lawyers across Canada for generations have cautioned their clients that wills, generally speaking, are not revoked by divorce.  (Note that the law in Nova Scotia changed after the time of Mr. Morrell’s death. Now, the Wills Act has been amended so that divorce will revoke a bequest to a testator’s former spouse.)

The law may vary province-by-province across Canada. For example, Alberta’s Wills Act states that marriage and entering into an adult Interdependent relationship will, in most circumstances, revoke a will, but  that  “ a will speaks and takes effect as if it had been made immediately before the death of the testator with  respect to…real and personal property.”  Note too, that under the Alberta law, “A will is not revoked by presumption of an intention to revoke it on the grounds of a change of circumstances.” So, even though it may seem obvious that after a divorce, a testator intends to make a new will,  good intentions are not enough.  Therefore, prudence dictates that no matter where they live, divorcing parties should make new wills as soon as possible after a divorce.  Most lawyers advise their divorcing clients to make new wills immediately.  It is advice that should be heeded.  If not, then a result like the Morrell decision could occur.

Adapted from the July/August issue of LawNow.

One of our LawNow contributors, Lesley Ellen Harris, maintains a blog that is “a one-stop site on copyright law, licensing and digital property”. The site’s purpose is outlined as follows:

• educate about copyright, licensing and digital property in plain English
• provide resources from articles to discussions to newsletters to courses and books
• arrange for a private consultation
• help you make money, save money, and mitigate your risks

She recently sent us a link to her post about The Lesser Known Subject of Moral Rights in Copyright Law which mentions her article from the Arts and the Law issue (May/June 2010) of LawNow.

Check out her post to read the article as well as an interesting article on the moral rights for film directors.

A recent court decision and the proclamation of a new federal law offer an  interesting study in contrasts.   On February 22, 2010 a statute that amends the Criminal Code came into force.  It is called the Truth in Sentencing Act, a label that seems more ideological than merely descriptive.

The Act changes the way that judges can deal with prisoners who have spent time in remand centres prior to their trials being held.   Previously, judges had the discretion to credit days that accused persons spent in remand on a two-for-one and sometimes three-for- one basis to their  after-conviction jail sentences.  Now:

• a judge may allow a maximum credit of one day for each day spent in pre-sentence custody;
• if the circumstances justify it, a judge may allow a maximum credit of one and one-half days for each day spent in pre-sentencing custody;
• if the person’s criminal record or breach of conditions on bail was the reason for the pre-sentencing custody, a judge may not allow more than one day’s credit for each day spent in pre-sentencing custody;
• At a bail hearing,  if the judge orders that an accused who has a criminal record be placed in custody, the judge must then state his or her reason on the record, so that the judge who later sentences the person knows the reason for the pre-sentence order, preventing that judge from allowing more than one day’s credit for one day in pre-sentencing custody; and
• A judge who decides to allow credit for pre-sentencing custody must give reasons for the decisions and state those reasons on the record, including the amount of time credited, the sentence actually imposed, and the term of imprisonment that would have been imposed if credit had not been given for pre-sentencing custody.

The new rules for pre-sentence custody apply only to persons charged after the law comes into force.

The new law comes close on the heels of a decision by the Alberta Court of Queen’s Bench Justice Richard Marceau, which deals with the horrible conditions in the Edmonton Remand Centre, and how these conditions amounted to breaches of the prisoners’ rights under the Charter of Rights.

The case dealt with a number of inmates at the Edmonton Remand Centre, who asked for declarations that their Charter rights to be free of cruel and unusual punishment; arbitrary and unreasonable search and seizure; racist and discriminatory treatment; and unfair disciplinary hearings and punishments had been violated.  The inmates had been held in Remand for very long periods while awaiting trial on a massive drug-trafficking case. Justice Marceau agreed that their Charter rights had been breached in several ways.  He found that:

• inmates were locked up two to a cell for 18 -21 hours a day with limited access to recreation or other activities for months, and for some, for years at a time.  This was cruel and unusual punishment under s. 12 of the Charter and the breach shocked the conscience and was grossly disproportionate treatment;
• instances of supplying inmates with communal underwear that was sometimes not properly laundered was also a breach of s. 12 and did not meet public standards of decency;
• the s. 7 Charter guarantee of liberty was breached because the inmates were not told the basis for their security classifications or given an opportunity to appeal them; and
• the use of racist epitaphs and jokes against some inmates was a breach of their s. 15 Charter guarantee of equality under the law.

The Alberta government stated that many of the problems that led to this decision have been addressed, and that a new Remand Centre with a much larger holding capacity is due to open in 2012.

How do we reconcile the new law with the recent court decision?  One of the rationales given for the new law is that accused persons through their lawyers deliberately stall trials so that they can take advantage of the judges’ discretion.  But no credible evidence exists that this takes place, criminal defence lawyers vehemently deny it, and given the dreadful conditions in many remand centres across the country, is it really likely that this is commonplace?   The Edmonton Journal, in an editorial in its February 26, 2010 edition stated:

“Over the past 20 years, more accused persons in Canada have been spending more time in jail awaiting trial. What’s more, the conditions under which they’ve been kept have, on the whole, worsened. By passing Bill C-25, the government has assumed a responsibility to ensure these conditions improve. If time served before trial is to be treated as legally the same as time served after it, the conditions under which the two stretches are lived cannot differ as drastically as they do today.”

If the government does not take steps to improve the conditions in the nation’s remand centres, then many more Charter challenges to the new law are likely to ensue.

Many Canadians may not know that there is a separate system of justice for Canada’s military personnel.

Called the courts martial, these courts are established under the National Defence Act to hear cases where charges have been laid under the Code of Service Discipline.  This Code applies to all Canadian Forces personnel and to civilians who accompany the Forces on active duty.  The courts are presided over by a military judge and a panel of five.  If the accused person is an officer, then all five members of the panel must also be officers.  The higher the rank of the accused person, the more the makeup of the panel is adjusted.  Decisions may be appealed to the Court Martial Appeal Court.  This is a division of the Federal Court of Canada.  There are some links on the Federal Court’s website to the Court Martial Appeal Court site and to external links that provide very interesting information about military justice in Canada.

My interest in this topic was sparked by some interesting bits of legal trivia contained in a recent Globe and Mail column by Christie Blatchford.  Her column of January 26, 2010 is entitled “What not to wear: A court-martial case descends into goofiness.” She was writing about a trial currently underway in Gatineau, PQ.  Captain Robert Semrau is accused of second-degree murder of a suspected Taliban fighter.  It is alleged that he shot and killed the severely injured man, a very serious charge indeed.  But Blatchford reports that in a pre-trial motion, the judge was asked to rule on what participants in the trial could wear.  Defence counsel for Captain Semrau alleges that his client may not be able to get a fair trial if participants wear their uniforms because military personnel can “read” uniforms, rank  insignia, medals, and decorations and may be intimidated by them.   The defence counsel suggested that junior personnel on the panel could be intimidated by their superiors because of rank.   He pointed out that the military has recognized this problem in the past and made changes.  For example:

• Judges some time ago began to wear judicial robes instead of their uniforms;
• When it is time to decide, the panel gives its votes in ascending order of rank so that junior members are not affected by seeing how their superior officers vote.

In the Semrau case, the judge dismissed the request by defence counsel, but not before sarcastically suggesting about possible alternatives to uniforms: “ Why not a Tilley hat, cargo pants and a Columbia shirt? “  Tough on the defence counsel, I think.  He is just trying to do his job in providing the best possible defence for his client.  And possible intimidation of junior soldiers by superior officers -  not intentionally perhaps -  but because of a system that focuses on rank, respect, and obedience?  It seems quite possible to me.

For more information about the unusual nature of this trial, take a look at this report from James Cudmore of the CBC.

Our hot-off-the presses issue of LawNow for January, 2010 is entitled “The Law and the Olympics”. Included in the magazine is a great online law column by guest columnist Jodi Lommer, a practicum student from the Library and Information Science Faculty at the University of Alberta, listing websites with information about legal issues and the Olympics.

Shortly after the Law and the Olympics issue was printed, we came across a few more online resources relating to the Olympics. So the purpose of this post is to update our readers with some additional material:

• From Slaw (“a co-operative Canadian weblog about all things legal”), Simon Fodden writes about the Olympic Protester’s Legal Guide, published by Lawyers Rights Watch Canada (LRWC). This 43-page Guide begins with a short essay on Canadian civil disobedience and then, according to Simon

“…becomes intensely practical. For example, there’s counsel about whether it’s wise to wear a mask at demonstrations, what it’s useful to bring along to a demonstration, what to do if pepper spray is used against you, and even a small section on the new ‘sonic guns’ Vancouver police are equipped with. A long section gives sensible advice about dealing with the police, offering information about fundamental rights and at the same time down-to-earth examples of how they might apply in various situations.”

• From the BC Civil Liberties Association, readers can learn how to “make a difference during the 2010 Olympic Games.” One way to get involved is to become a Legal Observer:

“Legal observers are volunteers who represent the watching eyes of the BC Civil Liberties Association (BCCLA) during the 2010 Olympic Games in Vancouver. They will be focused on police, military and private security conduct to ensure accountability. More concretely, they will be observing major protests and other potential hot spots like Olympic venues and the Downtown Eastside. Legal observers will report observations back to BCCLA’s team of volunteer lawyers who are prepared to go to court to protect people’s rights where complaints cannot be resolved informally.”

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I spend a week a month in Ottawa and our condo is about two blocks away from the Supreme Court of Canada.  Sometimes when I am here I like to make a field trip to see what is going on there, so I mosey on down to the Court to observe. 

The Supreme Court of Canada building does not lend itself easily to moseying.  It is a tall, grey, austere, brooding building.  It is serious architecture, as befits its serious business.  In contrast, the Parliament buildings are neo-gothic Victorian follies, perhaps reflecting the theatrical tenor of many of the exchanges there.  The Supreme Court is mysterious; it does not open itself easily to the observer. And, there are some interesting mysteries and traditions associated with the building. For example:

In front of the Supreme Court of Canada are two beautiful statues: on e of Justice (Justicia)  and one of Truth (Veritas).  These statues were commissioned in the 1920s as part of a memorial to King Edward VII, and are the work of famed Canadian sculptor  Walter S. Allward.  (Allward is perhaps best known as the creator and architect of the war memorial at Vimy Ridge.  Indeed, the statues on the Vimy Memorial are instantly recognizable as the work of the same artist.)  What is little known is that the two statues that grace the front of the Court mysteriously disappeared and were lost for almost 50 years.  In 1969 they were discovered in crates under an Ottawa parking lot!  Recovered, they were finally installed in front of the Court in 1970. http://www.scc-csc.gc.ca/court-cour/info/eng-ang.pdf

Another mystery involves a missing red leather chair.  Many years ago, when the court was smaller than today’s bench of nine, each of the judges had a matching red leather chair.  Six of seven are accounted for today, but the Court is on the lookout for the missing seventh chair.  If you or someone you know has a battered old red leather chair languishing in their basement, the Supreme Court of Canada would like to have it back!

I recently learned of a tradition of the Court that was new and interesting to me.  In front of the building are two flagpoles.  The pole to the west flies the Canadian flag. The one to the east also flies the Canadian flag, but only when the Court is actually sitting.  So, as I mosey on down to the Court, I can check the east flagpole.  If the flag is flying, then the Court is in session. If it is not, I can forego a visit to the building, if my purpose was to watch the proceedings.

Another tradition: several years ago, I had the privilege of a “backstairs” tour of the Court.  In the judges’ lounge is a lovely, inlaid wood table.  Every judge of the Court has an assigned spot at the table, and even the places where their coffee cups are placed was labelled!  The table is not hierarchical in terms of a head and foot: it is round.  But still, this seems to take organization to great lengths!  (I think that it is in this room that they are looking for the missing red chair.)

The Supreme Court of Canada is open daily for tours.  I highly recommend it should you be visiting Ottawa. http://www.scc-csc.gc.ca/home-accueil/index-eng.asp

We have all read the famous quote by American anthropologist Margaret Mead:  “Never doubt that a small group of thoughtful, committed citizens can change the world: indeed, it is the only thing that ever has.”  The quote has become too familiar, even a bit of a cliché, but like many clichés, it has the ring of truth.  Certainly, the quote is apt in describing the actions of a small group of committed citizens in the small Alberta hamlet of Rocky River. Three women, Susan Kelly, Linda McGinn, and Lillian Duperron appealed a decision by the Alberta Energy Resources Conservation Board (ERCB), which denied them status to be heard at a hearing into the drilling of sour gas wells near their town. The Board ruled that they had failed to show that they would be directly and adversely affected by the presence of the well. 

On October 28, 2009 the Alberta Court of Appeal, in Kelly v. Alberta (Energy Resources Conservation Board  ruled that the plaintiffs must be heard.  The Court wrote that the Board’s own definition of a protective action zone, or PAZ, indicates that those who live in a PAZ could have their rights “directly or adversely affected as a result of a hazardous release. It is difficult to see how any other conclusion could be available. Should the wells leak and the wind be blowing from the southeast, poisonous gas could be blown over and into the appellants’ homes and farms.”  The Court ordered the ERCB to hold another hearing, and this time, give the women a chance to be heard.

Reaction was swift after the judgment was released. On November 3, 2009 the government of Alberta issued a press release stating that the ERCB was temporarily suspending the issuance of licences for sour gas wells, facilities, and pipelines. 

Then, on November 13, 2009 the ERCB announced that “it has corrected its own error regarding emergency response modeling parameters following its review of a recent Alberta Court of Appeal ruling”

 Way to go, women of Rocky Rapids: Margaret Mead would be proud!

Canadians might be surprised to know that their government is pushing forward with many more mandatory minimum sentences for criminal offences at the same time as the United States, reflecting on its experience with mandatory minimums, is backing away. Indeed, the Supreme Court of the United States has ruled that federal mandatory minimum sentencing requirements are unconstitutional.

The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security met on July 16, 2009 to examine the issue and consider three proposed laws that will provide judges with more discretion in sentencing. Virginia Sloan, President of the Constitution Project said “The Committee…concluded that our system of justice is best served when judges, after looking at all the facts and arguments of a case, can determine what a fair and sensible punishment is for the guilty party.”

The Committee is hardly a hotbed of bleeding-heart liberals: it is bipartisan, and one of the co-chairs was Ronald Reagan’s Attorney General.

Meanwhile, back in Canada, the government is working on a bill which imposes automatic jail terms for drug crimes.  Judges will have no discretion in sentencing drug traffickers, which could include offenders who grew and sold as few as five marijuana plants. Janice Tibbets, writing for Canwest News, reports “…an 18-year old who shared cocaine with a 17-year old friend could be jailed for at least one year, and small-time addicts who are convicted of pushing drugs near youth hangouts would automatically go to prison.” (Ottawa Citizen, Thursday, June 4, 2009 at Pg. A5.) The government defends the new law as necessary to get tough on crime. But today, Statistics Canada is reporting that crime is falling in Canada for the fifth year in a row. Both the traditional crime rate and the Crime Severity Index fell 5% last year.

The American experience shows that their jails are bursting with inmates and drug crime has not abated significantly.  Why are we following this failed experiment, which the Americans are working to correct? If we want to look southward, let’s learn from the U.S. experience and not repeat its mistakes.

Hi.  I am Teresa Mitchell, the editor of LawNow magazine.  LawNow is one of the best kept secrets of the Legal Resource Centre! Thirty-four years old, it has been around since the very beginning of the Centre; first as a short newsletter produced entirely with material from in-house staff, to its present incarnation a bi-monthly  48 pages featuring articles by an eminent group of lawyers, academics, and social commentators.  It is the only national public legal education magazine in the country, but it struggles to become better known and more widely read.

Part of the problem is that LawNow is produced by a not-for-profit organization, so that funds to publicize the magazine are virtually non-existent. Another factor is the mistaken perception that because LawNow is Alberta-based, it does not cover the national legal scene.  Perhaps my presence as a blogger on our new Legal Resource Centre blog will help to introduce new readers to LawNow. As a start, did you know that you can take a look at LawNow at our website: www.lawnow.org?

In the months to come, I hope to share with you stories about the magazine, our contributors, and how we produce it. I also hope to discuss cases of significance from our courts; some obscure, some taken from the day’s headlines. Canada has a judiciary and a justice system that is the envy of the world. Every day the stories of Canadians are played out in our country’s courts. These are fascinating stories I hope to bring to our blog’s readers. I hope, too, to receive feedback about what you think of these stories.