Archive

Archive for May, 2011

Condos & Early Planning Agreements – Part 2

May 17th, 2011 Comments off

A little while ago, we began a discussion about early planning agreements.  In the kind of response we love to see here at the LRC, a reader, Yakov A., provided a great deal of further information on the topic (see his comments on arguments that might result in the return of the deposit).

In a nutshell, Yakov informed us that, for various reasons, these contracts (also sometimes called “Reservation Agreements”) may not be “enforceable” by the developer, but they may be enforceable by the purchaser. So what does that mean?  Well, it means that, should a developer go to court to say “I demand what I think I am entitled to under this contract”, the developer might not get it. On the other hand, and for various other possible reasons, the person buying the house might have better luck.  And, once again, the answer provided by the law will be: it depends. One of the things upon which it depends is the arguments made by the people presenting the case.

What should we take away from this? Well:

  • if you are already in this situation, don’t let the arguably as-of-yet-not-totally-clear law on this topic deter you from trying to get your deposit back – it might work;

 

  • if you do try to get your deposit back, consider hiring a lawyer. As you can see from Yakov’s insightful comments, lawyers who specialize in a particular field are truly a wealth of information and can really be helpful in reaching your goals; and

 

  • if you are buying a condo and/or entering into one of these agreements,  do your homework, protect yourself, and make sure you understand what you are doing.After all, even if you can go to court to get all or some of your money back, or reach a settlement before going to court, these process are long, emotionally draining and do cost money in and of themselves (not to mention arguably the last thing you need as you search for another property)!

 

Thanks again Yakov!

Share

Another Ancient Defence Receives Scrutiny

May 16th, 2011 Comments off

This blog post will be featured as Today’s Trial in the May/June issue of LawNow magazine. To view the magazine and subscribe please go to www.lawnow.org

The Ontario Court of Appeal recently released a decision that dealt with the offence, and the partial defence, of infanticide. Infanticide has been part of the criminal law of Canada for over 60 years but no appellate court in Canada had ever before reviewed the infanticide provisions in the Criminal Code of Canada.

In the case of R. v. L.B., the Crown Prosecutor argued on appeal that a strict interpretation of the wording of the Criminal Code section creating the offence of infanticide did not allow for the use of infanticide as a partial defence to a charge of murder. The question before the Court was:  is infanticide both an offence and a partial defence to a murder charge, or is it exclusively an offence that may, in some cases, be an included (and lesser*)offence in a charge of murder to be considered if, and only if, the Crown fails to prove murder?

As we recently discussed with regard to the defence of provocation, the partial defence of infanticide to murder has its roots in English law.  Like the defence of provocation, the offence of infanticide was created because English juries had a strong aversion to convicting mothers who killed their newborn babies of murder, for which, under the law at the time, they would face the death penalty. The English Infanticide Act, 1922 set out a connection between mothers who kill their newborns and  mental disturbance attributed to giving birth. It provided that mothers convicted under this Act should receive a sentence that would be the same as if the conviction was for manslaughter, thus circumventing the death penalty.

Canada enacted its first infanticide law in 1948. As the Ontario Court of Appeal noted:  “Like their English counterparts, Canadian juries were reluctant to brand mothers as murderers, many of whom were very young, emotionally distraught, and in dire social and economic circumstances at the time of the homicide. As in the United Kingdom, the death penalty was mandatory for all murders in Canada in 1948.”

Like the English law, the Canadian law tied the offence of infanticide to an imbalance of the mother’s mind because of giving birth. However, unlike the English law, the Canadian statute did not require that the sentence be the same as for manslaughter. Instead, it set out a maximum penalty of three years.  The Ontario Court of Appeal decided that the wording of the 1948 Act made infanticide not only a stand-alone offence, but also a partial defence to a murder charge. In other words, if an act of culpable homicide (murder) fell within the definition of infanticide, it was deemed not to be murder or manslaughter, but was deemed to be the offence of infanticide.

However, in 1954 a number of amendments were made to the offence of infanticide in a comprehensive overhaul of the Criminal Code . The changes included:

  • increasing the penalty from three to five years;
  • the removal of the words: “shall be deemed not to have committed murder or manslaughter”;
  • defining “newly born child” as a child under one year of age;
  • adding breast-feeding as a second source of mental disturbance that could support the offence of infanticide.

The most important of these amendments, and the one that led to this court challenge by the Crown, was that the new definition of infanticide removed the phrase “shall be deemed not to have committed murder or manslaughter”. Its removal prompted the Appeal Court to ask whether the amendments of 1954 meant that Parliament at that time intended to remove infanticide as a partial defence to murder (even though it did not specifically say that).

Justice Doherty, writing the decision for the Appeal panel, noted that the panel had reviewed the parliamentary debates when the amendments were introduced, as well as secondary sources such as the Introduction to that year’s Criminal Code.  He further noted that the creation of infanticide happened in 1948, only six years before the amendments. He concluded: “The 1953-54 Criminal Code did not alter the tripartite division of culpable homicide into murder, manslaughter and infanticide created by the infanticide amendments in 1948. …Treating infanticide as a partial defence to murder is consistent with the distinction drawn between infanticide and murder by Parliament. It allows juries to draw that distinction in cases where mothers are charged with murdering their children and evidence brings the homicide within the very narrow factual confines of infanticide.  Eliminating infanticide as a partial defence effectively allows the Crown to remove the distinction between infanticide and murder through the exercise of its charging discretion.”

The Court ruled:  “Infanticide was initially, and still is, both a stand alone indictable offence and a partial defence to a charge of murder”.

Cases of infanticide are rare in Canada. However, shortly after the Ontario decision in R. v. L.B., the Alberta Court of Appeal dealt with an appeal of a conviction of a young mother for second-degree murder.  In the case of R. v. Effert, 2011 ABCA 143,  the Alberta Court referred to the Ontario decision, and quoted it with approval.  It stated: “Infanticide is a partial defence to murder, and where the facts support both a conviction for murder and infanticide, the jury should be instructed to enter a verdict of guilty of infanticide: R.v. L.B, 2011 ONCA 153 at paras.97-9. The burden is on the Crown to prove that the partial defence of infanticide does not apply; to obtain a conviction for murder, the Crown must prove that there is no reasonable doubt that the accused did not kill the child ‘by reason of her mind being disturbed.’”

In the Alberta case, a jury had found the mother guilty of second-degree murder. The Alberta Court of Appeal took the unusual step of overturning a jury verdict. It noted that the jury chose to disregard the evidence of two psychiatrists about the state of mind of the mother. The Appeal Court ruled that even if the jury had doubts about the experts’ testimony, it should have been left with at least a reasonable doubt about the state of the mother’s mind. The Court wrote: “Viewing the matter ‘through the lens of judicial experience’ it is impossible to say that there was not at least a reasonable doubt present on this record. That conclusion would mean the jury found the opinions of both experts were so seriously flawed that they should be given virtually no weight at all.”

The Alberta Court of Appeal overturned the verdict of second-degree murder and replaced it with a  conviction of infanticide.

* A lesser offence is one that is a part of a major offence that is charged against a person, but which lacks an essential element of the major offence. For example, manslaughter and infanticide are lesser offences in relation to murder.

Share

Carole and the LRC featured in the Edmonton Journal

May 16th, 2011 Comments off

Staff lawyer, Carole Aippersbach (popular contributor to Blogosaurus Lex!) was featured in the Edmonton Journal over the weekend talking about the importance of planning for the future.

Carole talks about our Older Adult Knowledge Network (OakNet) and our series of booklets that describe in plain language how to make a Will, Power of Attorney, and/or Personal Directive.

Read the article: Centre helps make paperwork simpler on the Edmonton Journal website!

Share

Alternative Voting Systems

May 10th, 2011 Comments off

Recently, we had a federal election here in Canada, and many people noticed that when all was said and done, the distribution of seats in the House of Commons didn’t very closely match the distribution of votes that each party received.  There is a good reason for this, and it has to do with the voting system we use here in Canada, a system known as “First Past the Post” or “Single Member Plurality”.  Given the recent election here in Canada, as well as the fact that people in the UK recently engaged in a referendum about whether they should change their voting system (they opted not to), we thought our readers might be interested in a brief overview of how our system works, what some of the alternatives are, and the history of alternative voting systems in Canada.

Single Member Plurality

Here in Canada, we use a system based on the Westminster parliamentary system found in the United Kingdom.  The Single Member Plurality system (also known as the “winner take all” system) has the advantage of being very easy to understand.  Basically, Canada is divided up into 308 geographical areas (known as “ridings”), and voters in those areas cast a ballot for the candidate that they feel would best represent them.  The candidate in each riding who garners the most votes is declared the winner and becomes a Member of Parliament.  There are a number of advantages to this system, not the least of which is that it is very simple.  People cast one vote, and that vote is directly accounted to a single candidate.  Moreover, it allows people to vote for a person who is explicitly responsible for the area that they live in, giving a sense of direct representation.

There are, however, some downsides to this system.  Because a candidate only has to get more votes than every other candidate to win, the winner doesn’t necessarily have to get the support of the majority of the voters in their riding.  Here is an example from the 2011 election:

Party Candidate Votes Percentage
Conservative John Baird 25,226 44.7
Green Party Mark MacKenzie 2,279 4.0
NDP-New Democratic Party Marlene Rivier 11,128 19.7
Liberal Anita Vandenbeld 17,790 31.5

Notice that Conservative candidate John Baird received the support of less than half of the voters in the riding, but because he received a plurality of votes (more votes than anyone else) he was declared the winner and will represent all of the voters in the House of Commons.

While this might seem somewhat unequal on a local level, the difference is even more pronounced if you look at the results across the entire country.  In our political system, the party that wins the largest number of seats is generally the party that forms the government, especially if that party wins a majority of the seats, as the Conservative Party did in 2011.  But, just as a candidate can win a riding without the support of the majority of voters, so too can a party win a majority of the seats in the House of Commons without the support of the majority of Canadians.  In the 2011 federal election, the popular vote each party received is as follows:

Green Party: 3.9%
Conservative Party: 39.6%
Liberal Party: 18.9%
NDP: 30.6%
Bloc Quebecois: 6.0%

But the actual percentage of seats that each party won was very different:

Green Party: 0.3%
Conservative Party: 54.2%
Liberal Party: 11.0%
NDP: 33.1%
Bloc Quebecois: 1.3%

In fact, if the seats in the House of Commons were distributed proportionally to the votes that each party received, the House would look very different:

Image by Bryan Beca. Click for full size

Read more…

Share

A Question about Donating to a Charity

May 5th, 2011 Comments off

Question of the month from the Garvie Reading Room:

I was recently asked to donate to an organization that I’ve never heard of before. How can I find out more about this charity and whether I can get an income tax receipt for my donation?

In Canada, organizations can apply to the Charities Directorate of the Canada Revenue Agency (CRA) for charitable status. As a “registered charity” they must meet specific criteria and follow a standard set of rules, and then they are allowed to issue official donation receipts for income tax purposes. Check our Charity Central website for some FAQs about registered charities or this Fact Sheet about the differences between non-profits and registered charities.

The Charities Directorate provides some helpful information for donors. You can search their Charities Listings to find out if an organization is a registered charity, and to see a charity’s information return (T3010) to learn about their finances and activities. Their website also provides an array of information for donors including videocasts, questions and answers, and a tax credit calculator. And of course, these days many charities also have their own websites which may give you a window into their operations.

Share

Condos & Early Planning Agreements

Anyone who has ever bought, or looked into buying, a condominium, knows that owning a condo is really very different from owning a house.  First, there is the condo corporation. Then, there are matters such as the condo board, the condo fees, common areas, the reserve fund, and the by-laws. Now, for potential buyers of incomplete condos, we can add “early planning agreements” to the list of things they really need to learn about.

An early planning agreement is a contract which authorizes the developer to design a condominium according to the buyer’s specifications and gives the buyer the option to sign a purchase agreement later at an agreed upon price. Although this sounds like a great idea (a condo made just for me!!), it has led to some problems, and those problems have started to wind their way through the courts.

The issue? Early planning agreements are not covered by the Condominium Property Act, which otherwise gives buyers the right to cancel a contract within 10 days of signing a purchase agreement with a developer, as well as the right to a full refund within 10 days of the developer receiving notice to cancel.  In early planning agreements, on the other hand, there may be no right to refund of the deposit at all. What you are entitled to depends on what you signed, and each contract is different.  That being the case, court results have varied, depending on the specifics of each situation.

So, as always, be sure to read you contract very carefully before you sign it. Ensure that any cancellation and deposit refund rights are clearly spelled out and that you understand them. Consider getting independent legal advice.

For more information on early planning agreements, see Service Alberta’s news release. 

For more information on condo-buying in general, see Service Alberta’s  tipsheet about buying and owning a condo.

Share